DECISION
Siphiwe Nyanda (the 1st Applicant), Solly Zacharia Shoke (the 2nd Applicant) and Malekolle Johannes Rasegatla (the 3rd Applicant) were all members of the African National Congress ("the ANC") and Umkhonto we Sizwe ("MK").
The 1st Applicant, during 1977, was appointed as a Commissar in the Transvaal Urban Machinery ("TUM") of MK. He became the Commander of the TUM during 1979. He was appointed Chief of Staff of the Transvaal Command of MK during 1983. He was part of the command structure of the Politico-Military Council during the period 1984 to 1985 and was, from 1986 to 1988, the chairperson of the Regional Politico-Military Council, stationed in Swaziland. He, during the period that he was a member of the Regional Politico-Military Council, also headed the Transvaal structures of the Military Committee. During the period 1990 to late 1992 he was attached to Military Headquarters as Deputy Chief of Staff. He thereafter became Chief of Staff, which position he held until 1994. He was a member of the National Executive Council of the ANC during the period 1990 to 1994.
The 1st Applicant when completing the application form for amnesty on 10 May 1997 applied for amnesty in respect of "Acts unknown to me unless stated otherwise by individuals, amnesty applicants". In the same form he described the nature and particulars of the acts or offences in respect of which he applied for amnesty as follows: "As declared in the ANC submissions (22 August 1996) operational documents (12 May 1997) and the Declaration attached hereto". He thereafter, after the cut-off date for the submission of amnesty applications submitted a document titled "Further Particulars" to the amnesty application in which he provided further particularity of the incidents for which he applies for amnesty. The further particulars were supplied in response to a request from the Amnesty Committee.
In the Further Particulars the 1st Applicant sets out a list of 37 operations which, to the best of his knowledge, were carried out by the TUM. He also provides a list of 6 operations which were carried out during the Cetshwayo landmine campaign. The Cetshwayo landmine campaign was dealt with by another Sub-Committee and is not subject to this decision.
The 1st Applicant explained, both in his testimony at the hearing of this matter and in the Further Particulars, that cadres of the TUM carried out operations in a covert manner and that they operated within given guidelines, the selection of the date, place and target of the operation being at their discretion within such guidelines. Communications between cadres operating on the ground and the command structure were erratic and not all operations were reported back to the command. The 1st Applicant extracted the aforesaid 37 operations from the list of MK operations which appears as Appendix Four to the Further Submissions and Responses by the ANC to Questions Raised by the Commission for Truth and Reconciliation dated 12 May 1997. It is apparent that not all of the 37 listed operations were carried out by the TUM. The operations listed as numbers 10 (the explosion at John Vorster Square on 5 March 1986), 13 (the limpet mine attack at the Department of Community Development in Johannesburg on 3 December 1983), 15 (the three explosions at Brakpan on 15 May 1985), 16 (the limpet mine attack at the Medical Centre, Johannesburg on 30 May 1985), 17 (the explosion at the Southern Cross Fund offices on 31 May 1985) and 34 (the limpet mine attack at Capital Park substation during 1981) were, according to evidence received at the amnesty hearing of Abboobaker Ismail and others, carried out by members of the Special Operations Unit of MK.
There are, in addition to the operations listed by 1st Applicant, other operations which are known to have been carried out by the TUM. These are the Johannesburg Magistrates Court bombing during 1987 (which was referred to by 1st Applicant in his Further Particulars), the attack on Uncle Tom's Administration offices during 1980 and the attempted sabotage at Watloo Petrol depot. The 1st Applicant testified that he was involved in the planning of the Johannesburg Magistrates Court bombing and that he gave the instruction for the operation to be proceeded with. The 2nd Applicant testified that he was personally involved in the attack on Uncle Tom's Administration offices and the attempted sabotage at the Watloo petrol depot in his capacity as a member of the TUM.
Mr Wagener, who appears for Mr D.J. Visagie, a victim of the Wonderboom Police Station bombing during 1981, which was one of the operations listed by the 1st Applicant as having been carried out by the TUM, has submitted that the 1st Applicant should not be granted amnesty in respect of any incident or operation. He contends that the information supplied by the 1st Applicant in his application form makes no reference at all to any specific incident and the further particulars provided by the 1st Applicant were tendered after the cut-off date for applications. The application in regard to specific incidents was, he submits, made too late and one therefore cannot have recourse to the provisions of section 19 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act") as the hurdle of section 18 has not been crossed.
Section 18(1) of the Act provides that "any person who wishes to apply for amnesty in respect of any act, omission or offence on the grounds that it is an act associated with a political objective, shall within 12 months from the date of the proclamation referred to in section 7(3), or such extended period as may be prescribed, submit such an application to the Commission in the prescribed form". We do not agree with the contention that the provisions of section 19 cannot be applied in the 1st Applicant's case because he failed to specify any particular acts or offences in his application form. Sections 19(1), (2) and (3)(a)(i) and (iii) provide as follows:
"19(1) Upon receipt of any application for amnesty, the Committee may return the application to the applicant and give such directions in respect of the completion and submission of the application as may be necessary or request the applicant to provide such further particulars as it may deem necessary.
19(2) The Committee shall investigate the application
and make such enquiries as it may deem
necessary.
19(3) After such investigation:
(a) The Committee may
(i) inform the Applicant that the application,
judged on the particulars or further
particulars contained in the application as
provided by the applicant or revealed as a
result of enquiries made by the Committee, if any, does not relate to an act associated with a political objective;...
(iii) decide whether the application, judged on the particulars referred to in subparagraph (i), and in such further submission, relates to such an act associated with a political objective."
It is, in our opinion, clear from these provisions of section 19 that the Committee is entitled to request further particulars from an applicant and then to consider the application after receipt of the further particulars. There is no provision in the Act that requires the further particulars to be supplied before the cut-off date and it was obviously not the intention of the legislature to have such a restriction - such a restriction would unfairly discriminate against applicants who submitted their application form on the cut-off date or shortly before the cut-off date when time would not allow for the submission of further particulars before the cut-off time.
Mr Wagener also referred us to the case of another of his clients, Brigadier Schoon, who applied for amnesty in respect of 18 incidents but bona fide did not apply for a particular incident in which he was involved either because he had forgotten about it or because his attorneys omitted to include it in his application. Application was then made on behalf of Brigadier Schoon for him to be included as an applicant when the applications of other applicants concerning the same incident were being heard. The application was refused and in its ruling the Committee hearing that matter stated, inter alia, the following:
"The application, in our view, is seeking leave for the applicant to be allowed to raise a matter which has not been raised at all in the original application. There is moreover, in our view, no basis or framework which has been established for entertaining the incident in the original application. In fact there has simply been no reference to the incident at all. In our view there is no legal provision entitling us to grant the application. It is in our view a necessary result of failing to submit an application for amnesty in respect of a specific offence or delict in the stipulated time period that the matter cannot subsequently be considered by the Amnesty Committee".
We, with respect, do not agree entirely with the views expressed in he last sentence of the above quotation as we are of the opinion that a deficiency in the original application can be cured after the stipulated time period by the provision of further particulars. We are also of the view that the 1st Applicant's matter is distinguishable from Brigadier Schoon's matter. In the Further Particulars supplied by the 1st Applicant he, after explaining the inherent communication problems that existed between himself and the operatives who were carrying out the operations under his command, sets out a list of operations which he bona fide believes is complete. He, however, qualifies the list with the following statement:
"However, there does remain the possibility that other operations were carried out of which I am presently unaware, that may have resulted in injury to or even the death of person whose identities are entirely unknown to me. I respectfully stress that if there should be any such further incidents, the fact that such incident is not included in the schedules set out herein, is, solely because of possible shortcomings in my present level of information and not, in any way whatsoever, because of a wish on my part not to make disclosure thereof. I have no such wish. Should there be any amnesty application by another person, in which reference is made to myself as having been involved in any operation, I am willing to present myself and to answer questions with regard to my involvement."
By qualifying his application for amnesty in such a manner he has not, in our opinion, made an application for blanket amnesty. He only requests that consideration for amnesty be made in respect of incidents which are specifically identified and which include his involvement and which have not been included in his list for the reasons explained. Two such incidents are those of the attacks on Uncle Tom's Administration offices and the Watloo petrol depot. Both of those incidents are before us as they have been included in the 2nd Applicant's application for amnesty. The aforesaid caveat in the 1st Applicant's application pertinently caters for such a situation and, in the circumstances, we believe that it would be just and correct to include those incidents in his application.
We, after considering the evidence and documentation before us, accept that the incidents mentioned by the 1st Applicant in the Further Particulars, save for those referred to above which we know were carried out by Special Operations, were carried out by the TUM. In this regard, Mr Wagener submitted that the operations listed by 1st Applicant as numbers 11, 28 and 36 were also carried out by Special Operations. This is not so. The operation listed as number 11, the explosion at Military offices, Marshall Street, Johannesburg on 10 February 1983, was not carried out by Special Operations. Special Operations carried out an attack at the Old Defence Force offices in Marshall Street on 9 February 1985. Also, in regard to the operation listed as number 28, the attack at the Department of Internal Affairs in Marshall Street, Johannesburg on 12 August 1984, the attack carried out by Special Operations at the Department of Internal Affairs took place at Harrison Street, Johannesburg on 3 September 1984. In respect of the operation listed as number 36, the attack carried out at the Rosslyn substation, we have evidence before us that such an attack was carried out by the 2nd Applicant. The list of MK operations submitted to the TRC shows that two attacks were carried out at the Rosslyn substation during 1981. Special Operations carried out the attack which took place on 13 November 1981.
We are satisfied that all actions carried out by the 1st Applicant in his capacity as a commander of the TUM were carried out with a political objective as envisaged by section 20 of the Act. It is also our opinion that either or both criminal and delictual liability can be attached on the 1st Applicant in respect of all the operations which were carried out by members of the TUM under his command. Although he was not personally involved in the execution of such operations they were all carried out under his general order and instruction.
We are also satisfied that the 1st Applicant has, to the best of his ability, made a full disclosure of all relevant facts pertaining to his conduct as commander of the TUM.
We are accordingly of the view that the 1st Applicant is entitled to the grant of amnesty in respect of those operations which have been identified as having been carried out by the TUM.
The 2nd Applicant joined the ANC and MK during 1976. After receiving military training he was deployed to Mocambique as a member of the TUM. After a change in the structures during 1983 he became commander of the Transvaal Urban Unit, reporting to the 1st Applicant. He later was appointed as second in command under the 1st Applicant of the Transvaal structure of the Military Committee.
The 2nd Applicant was directly involved, as a combatant, in the following operations: (1) the bomb blast at Daveyton police station during 1978; (2) the attack on the Maroka police station during 1979; (3) the attack on the Orlando police station during 1979; (4) the attack on the Booysens police station during 1980; (5) the arson attack on Uncle Tom's Administration offices during 1980; (6) the attack on the Mabopane police station during or about 1981; (7) the explosion at the Rosslyn substation during 1981 and (8) the attempted sabotage at the Watloo petrol depot. He was also indirectly involved in the planning and facilitating of the bombing at the Johannesburg Magistrates' Court and the landmine campaign known as Operation Cetshwayo.
It is clear from the evidence that the 2nd Applicant at all material times acted in furtherance of the policies of the ANC and MK. We are satisfied that his participation in all the aforementioned operations was politically motivated. We are also satisfied that he had made a full disclosure as is required by the Act.
The 3rd Applicant, after joining the ANC and MK, received military training in Angola as well as the German Democratic Republic. He was a commander of a TUM unit and participated in the attacks on the Orlando police station during 1979 and the Booysens police station during 1980.
We, like in the case of the other Applicants, are satisfied that he has given a full disclosure of all relevant facts and that his participation in the aforesaid operations was politically motivated.
We are accordingly satisfied that all the Applicants qualify for amnesty and:
1. Siphiwe Nyanda is GRANTED amnesty in respect of the following incidents
1.1 the attack on the Booysens police station during 1980;
1.2 the attack on the Orlando police station during 1979;
1.3 the bomb explosion at the Germiston police station on 12 December 1977;
1.4 the bomb explosion at the Daveyton police station on 2 February 1978;
1.5 the limpet mine attack on a security branch member on 19 March 1985;
1.6 the limpet mine attack at the Braamfontein station on 10 April 1986;
1.7 the limpet mine attack at the De Deur substation on 22 February 1986;
1.8 the explosion at the Meyerspark Post Office on 24 April 1986;
1.9 a landmine attack on a SAP caspir vehicle in Mamelodi on or about 16 February 1986;
1.10 the explosion at an SADF building in Marshall Street on or about 10 February 1983;
1.11 an explosion on a railway line at Bosmont on or about 3 November 1983;
1.12 an explosion on railway lines at Dunswart and Apex during November 1977;
1.13 a hand grenade attack on a police patrol in Soweto on 6 December 1985;
1.14 a limpet mine attack on a police vehicle in Jabulani, Soweto, during 1989;
1.15 a hand grenade attack on a police parade at Katlehong during 1989;
1.16 two hand grenade attacks on policemen in Pretoria townships on 9 May 1985;
1.17 the attack on a police patrol in Katlehong on 22 June 1986;
1.18 an explosion at or near the Silverton police station on 10 July 1986;
1.19 a limpet mine explosion at the Mamelodi police station;
1.20 an attack on the Municipal police barracks in Soweto during February 1989;
1.21 a hand grenade attack on the Municipal police training centre during April 1987;
1.22 an explosion at Tshabalala's Dry Cleaners in Soweto on 7 August 1984;
1.23 an attack at the Department of Internal Affairs offices in Marshall Street, Johannesburg on 12 August 1984;
1.24 an attack on a policeman's house in Springs during 1986;
1.25 an attack on a policeman's house in Mamelodi during 1987;
1.26 a limpet mine explosion at the Springs railway station during 1986;
1.27 an explosion on a railway line near Phomolang railway station during 1983;
1.28 an attack on the Wonderboompoort police station on 26 December 1981;
1.29 an attack on the Mabopane police station during or about 1981;
1.30 an attack on the Maroka police station during 1979;
1.31 a limpet mine attack at the Rosslyn substation during or about 1981;
1.32 a car bomb explosion at the Johannesburg Magistrates' Court on 20 May 1987;
1.33 an arson attack on the Uncle Tom's Administration offices during 1980;
1.34 attempted sabotage at the Waterloo petrol depot.
2. Solly Zacharia Shoke is GRANTED amnesty in respect of:
2.1 the bomb explosion at the Daveyton police station on 2 February 1978;
2.2 the attack on the Moraka police station during 1979;
2.3 the attack on the Orlando police station during 1979;
2.4 the attack on the Booysens police station during 1980;
2.5 the arson attack on Uncle Tom's administration offices during 1980;
2.6 an attack on the Mabopane police station during or about 1981;
2.7 a limpet mine attack at the Rosslyn substation during or about 1981;
2.8 attempted sabotage at the Watloo petrol depot;
2.9 a car bomb explosion at the Johannesburg Magistrates' Court on 20 May 1987.
3. Malekolle Johannes Rasegatla is GRANTED amnesty in respect of:
3.1 the attack on the Booysens police station during 1980;
3.2 the attack on the Orlando police station during 1979.
We are of the opinion that the persons mentioned below are victims and this matter is referred to the Committee on Reparation and Rehabilitation for its consideration in terms of the Act:
1. The landmine attack on a SAP Caspir at Mamelodi on 16 February 1986: J.J. Bezuidenhout, M. Legoabe, L.D. Makgete, J.W.F. Makkink, M.G. Moatshe, E.W. Moore, W.A. Nel.
2. Explosion at Mamelodi police station: Madimetsa Abram Moatshe, Samuel Munsho Mogano.
3. Attack on Municipal police training centre during April 1987: Enoch Chiloane Dibakoane, Lucas Mandla Dube, Cyprian Mkhonbeni Khumalo, Christopher Mathebula, Simon Thembinkosi Ndawonde, Pieter Ngobeni.
4. Explosion at Tshabalala's Dry Cleaners on 7 August 1984: Lina Msimango.
5. Attack on Moroka police station during 1979: Daphney Magagula, Edward Moreni, Sam Nkosi (the son of Ernest Nkosi), Sam Sangweni, Brian Tembe (deceased), Godfrey Tshabalala.
6. Attack on the Wonderboompoort police station on 26 December 1981: S. Booysens, J.J. Malebe, R.J. Mngonyana, W.P. Nel, D.M. Nkosi (deceased), W.O. O'Reilly, D.J. Visagie.
7. Attack on Orlando police station during 1979: Thami Goodenough Dyantjies, Joseph Lekondeni, Amos Mashaba, Michael Msibi, Sipho Moses Zungu.
DATED AT CAPE TOWN THIS
: DAY OF
: 2000.
JUDGE S M MILLER
ACTING JUDGE N J MOTATA
MR J B SIBANYONI
