DECISION
These are applications for amnesty in respect of a wide range of incidents, namely attacks on police, planting of limpet mines, bombings and unlawful possession and use of firearms and explosives. The attacks took place in Pretoria, Mamelodi and Atteridgeville between 1988 and 1990. All the applicants were members of Mkonto Wesizwe ("MK"), the then military wing of the African National Congress ("ANC") when these acts were committed. It is our intention to summarise the evidence that was led in respect of the different incidents in which respective applicants were involved. We do not deem it necessary to detail the evidence of each applicant, save for where there are compelling reasons to do so. We should also mention that some of these applications are being opposed.
It appears from the evidence that after Toka had been trained by MK in exile, he returned to the Republic of South Africa with orders to carry out military operations on behalf of the ANC and MK in the Pretoria area. He says when he and his commander, Mishack Oderille Maponya, were infiltrated into the country in 1988 their orders were to recruit, train and arm ANC supporters in its armed struggle against the previous government. Initially the command structure consisted of himself and Maponya, but later of himself, a "Liverpool" and "Webster". Once they had given the necessary training to the recruits it was their task to ask the ANC in exile to send them weapons to pursue the struggle. The weapons were then distributed amongst the recruits to attack selected targets in terms of the ANC policy. Amongst the ANC supporters who were recruited by Toka in the Atteridgeville area were:- Francis Pitsi, Earnest Ramadithe, George Mathe and Johannes Maleka.
In Mamelodi the following were recruited:-
Peter Maluleka; Stanza Bopape (deceased); Reginald Noah Legodi; Thapelo Reuben Kgotso and James Kgase. As the political commissar Toka gave them political education and issued specific orders as commander. Generally, at all relevant times the applicants received instructions from him and Maponya. He says a recruit would identify a target and motivate why it had to be attacked. Then a discussion would take place around the proposed target and plans would be made to ensure the success of the operation. Toka and Maponya supplied the necessary weapons. In many of the initial operations Webster did the reconnaissance before attack. Until they were arrested and held together in police custody, members of the two groups from Mamelodi and Atteridgeville were not aware of each other's existence and operated separately. Peter Maluleka was only involved in one incident, hence his application was dealt with separately and amnesty granted.
1. THE MURDER OF THREE (3) MEMBERS OF THE SOUTH AFRICAN POLICE FORCE.
The attack on three (3) policemen, namely Barney Mopa, Andrew Mphahlele and Nelson Phanyase was carried out at Mariana Street in Atteridgeville on 18 March 1988. Pitsi, Mathe and Ramadithe executed the attack on the targets who were patrons in a shebeen at the time. The victims were shot and killed because the applicants believed that they were taking part in police bombing of homes of comrades. It had already been gathered that they frequented the shebeen and this was a convenient place to launch the attack.
The three were not the only targeted police in the area. According to Mathe, David Motaung and Freeman Lesley were also going to be attacked at some stage in the future, for the same reason that they were harassing comrades. In one of the incidents a woman whose daughter had been killed by police in the unrest, had her house bombed on the day of the funeral. She died as the result of injuries sustained. The applicants and ANC supporters generally believed that this was an attack by the police.
An AK47, a Markarov Pistol and a handgrenade were used to attack the 3 deceased. After the attack the relevant applicants retreated to Marble Street where they met Maponya who asked if all had gone well. They replied in the affirmative. Pitsi was accidentally injured in the attack, probably shot by one of his comrades, and had to travel to Botswana to have the bullet removed. Toka did not take part in the attack but received a report from Pitsi who commanded the operation.
Before the attack was proceeded with, Toka communicated with his superiors and commander in Botswana, Naledi Molefe. The latter subsequently died there in a SADF raid. Toka had supplied the necessary hardware for the attack which took place at night. The following persons were also accidentally injured:-
1. Tickey Maleka; and
2. Ananias Nkoane
The applicants have testified that these two (2) victims were patrons at the shebeen and were shot by mistake. They were not the intended targets. At the hearing the two victims testified and accepted the explanation. They do not oppose the applications.
2. THE HANDGRENADE ATTACK ON THE HOUSE OF LUCKY MANETTE KULELE AT MAMELODI GARDENS.
Applications here are for the following offences:-
1. The murder of a 14 months old baby, Patience Kulele;
2. The attempted murder of Rose-Mary Muzwayine;
3. The damage to property, namely House No. 855, Mamelodi Gardens belonging to Lucky Manette Kulele; and
4. Unlawful possession of a handgrenade on the 10 May 1988.
In the evening of the 10 May 1988, and whilst Kulele was at work, his home was attacked with a handgrenade. Patience was killed as the result of injuries sustained in the attack. her mother, Rose-Mary, was severely injured. Extensive damage was caused to the house and furniture. Toka testified that the attack was directed at Kulele, and not at Patience and Rose-Mary. The latter is the spouse of Kulele. Kulele was being attacked because he was a policeman who harassed members of the applicants' predominantly ANC community in trains. It was expected that he would have been at home at the time of the attack. There is much controversy and confusion as to who exactly carried out the attack, but Joseph Nkosi and Bernard Mokonyana were, in one way or the other, involved in the attack. We shall not delve into the contradictions at this stage. Mokonyana has not applied for amnesty for his alleged involvement in the attack. At the trial he was found not guilty on the charges of murder of Patience and the attempted murder of Rose-Mary. Toka says he instructed Webster whom he trusted to be an expert in intelligence work to do the reconnaissance. Webster later reported to him that the attack could go ahead. He had not made mention of a woman and a baby staying with Kulele. Toka says after the attack had been launched there was a general feeling amongst members of his unit that the operation had not been a success. For some unexplained reason, it had been carried out before the hour for which it was scheduled to take place, and a woman and a baby were affected. Toka asked Webster why he had not told him about the presence of the two (2) in the house, and it is also not clear what explanation was given by Webster, but he did not find it satisfactory. Toka was questioned at length as to what precautions he had taken to ensure that no innocent women and children would be injured. At the end of his testimony it was quite clear that the case was a example of what was envisaged at the ANC Kabwe Conference in 1985 where it was resolved to intensify the armed struggle against the previous Government, inevitably putting more civilians at risk. It is against this background that the actions of the applicants should be viewed. Toka repeatedly states that he entirely relied on Webster who had received extensive training in intelligence work in Russia. He was also responsible for the screening of new recruits to prevent infiltration. For these reasons we are of the view that his explanation should be accepted as it is clear that it was a bona fide operation carried out by bona fide members of a publicly known liberation movement, bearing no malice against the resultant victims. There is also no indication that they acted in pursuit of personal gain.
Nkosi testified that he was present when Bennie Mokonyane reported to Toka and Webster that he had identified police houses to be attacked. Toka instructed Webster to do the necessary reconnaissance and report back to him. At that stage Nkosi did not know the intended targets, but he later became aware that Kulele was one of them. When Webster came back to give the report, Toka issued an order to Mokonyana that the attack be carried out. Nkosi says he was later advised by Toka that the operation had been carried out. He does not know who else was involved but he personally never took part. He says he is seeking amnesty because he was present when the order was given and associated himself with the intended action. He did not know that Kulele stayed with a wife and a baby. He goes on to say that he knew Webster as an intelligence operative who worked under Toka and when they were arrested Webster became a state witness, and later an askari. He was subsequently killed for having betrayed his comrades. Nkosi also testified that he does not know why a handgrenade was used because he was not there when it was issued, presumably by Toka. He is the one who introduced Mokonyane to Toka, since as a driver he could help the latter with transporting weapons to certain destinations. He does not know who Toka reported to in Botswana, as he claims, but he reported to MK authorities in Swaziland. It is not necessary to deal with his credibility in any great detail. In general he was a very poor witness who continuously evaded questions. At the end of his testimony it became clear that he was doing his best to minimise his role in the incident. In the circumstances he certainly cannot be said to have given a full disclosure. Another witness who testified, having been called by Counsel for the family in this matter, was Bennie Mokonyane but it is not necessary to deal with his evidence in the light of our conclusions and the reasons therefor.
3. THE JUICY LUCY BOMB BLAST ON THE 26 MAY 1988.
The applicants in this incident are Toka, Pitsi, and Mathe. Ernest Ramadithe who is said to be now mentally afflicted, or affected also took part. He has not applied for amnesty. His mental state is most unfortunate as he could have thrown further light on the matter. Juicy Lucy was a cafe at Vermeulen Street in Pretoria, selling fast foods and perishables. The applicants say intelligence gathering revealed that it was frequented by members of the South African Defence Force ("SADF") who had an office nearby. They also say they had information that the National Party ("NP") was on that day celebrating its 40th anniversary of uninterrupted rule. The applicants wished to disrupt the celebrations and expected that if a limpet mine was placed at Juicy Lucy or in the vicinity, members of the SADF would be killed in the blast. This would also make a political statement of ANC presence inside the country. Toka says the operation was carried out with the approval of the ANC in Botswana. Either himself or one Godfrey Makobe went there to obtain the necessary approval, as they had always done before carrying out an operation. Reconnaissance of the area was done by Webster and Toka also came there to see the place and satisfy himself. He says he was able to confirm the correctness of the information. Amongst the Juicy Lucy patrons he saw were SADF members who constituted the majority and a few civilians. Although Pitsi had taken part in the earlier discussions and planning for the operation, he did not participate in its execution. At that stage he was still recuperating from the injuries previously sustained when they attacked the three police. He did not even go there to see the place to be attacked, nor did he know when exactly the operation was going to be carried out. Toka testified that he gave no details as to where exactly the limpet mine was to be placed. This was going to depend on the circumstances at the scene and the discretion of the operative on the ground. He was not there when the mission was carried out, and he had not seen Mathe and Ramadite shortly before they left to execute the operation. So, he did not know what arms exactly each one of them had in his possession. A while before Mathe and Ramadite met Pitsi who supplied them with the arms which he had previously obtained from Maponya. On the same day Mathe was supposed to place a limpet mine in a car at Proes Street. Ramadite was to place the limpet mine in the Juicy Lucy area. He placed it on the pavement on the Corner of Andries and Vermeulen Street in a flower pot. When it exploded the following civilians who were in the vicinity were injured:-
1. Matilda Eleonare Venter;
2. Elke Martha Hansen;
3. Anna Marina Prinsloo;
4. Susanna Maria Magdelina Kruger and
5. Alida Maria Claasen
Various buildings in the area were also damaged, namely Golf PRO Business Enterprise; State Library; Magistrates' Office Building; Old Mutual Building and a vehicle belonging to SADF. Not a single SADF member was injured or affected by the blast which occurred between 13h00 and 14h00. Toka says it is unfortunate that the victims were injured because they were not the targets. The tries to explain that:-
"Once you identify a group of soldiers who eat in a certain place, what is in the mind of a soldier when you place a bomb, is to carry out an attack against the soldiers who are eating there. He is not carrying out an attack against those people that are passing there."
Prinsloo testified that on the day in question she ad her four (4) colleagues were coming from Juicy Lucy when they were struck by an explosion approximately 20 yards away. That is where they used to have their lunch, approximately once a week and would stay there for approximately 30 minutes to an hour. She says Juicy Lucy was mostly visited by women. Very seldom did male SADF members visit the place. There was no concentration of such members in the vicinity when the explosion occurred. She sustained severe shrapnel wounds to her face and right hand side of her neck. Both eyes were injured and she had to undergo two (2) operations on her right eardrum. She still suffers from severe hearing problems. Worst of all, she still has shrapnel in her body.
The problem in this case is that Ramadite, who placed the bomb, did not testify to explain why he placed the limpet mine n a flower pot and not adjacent or near the entrance of Juicy Lucy. Mathe testified that he attended the planning meeting where Maponya, Toka, Pitsi and Ramadite were present. Maleka was not a member of the unit at that stage. The subject of discussion was plans to place a limpet mine in the vicinity of Andries and Vermeulen Streets. At the meeting Ramadite pointed out that the offices of Finance, Trade and Industry were situated in the Juicy Lucy vicinity. Seemingly, he was suggesting that in the alternative, they should be targeted. The suggestion was not followed and in the end Ramadite was told "to target SADF members", but he was not told where precisely to place the limpet mine. This was a general order and he was warned to avoid hitting civilians. It is clear that once the order was issued such danger was inherent to the operation. There is, however, no evidence that any attention was paid to that art of the order that injury to civilians be avoided.
After carefully considering all the problems pertaining to the Juicy Lucy operation we are satisfied that the incident occurred as the result of the conflicts of the past. There is no doubt that this was an operation carried out by members of a liberation movement. The matter has to be seen in the context of the 1985 ANC Kabwe Conference resolution to which we have already alluded. The applicants further appear to have given a full disclosure of the relevant facts. Their evidence, that the operation was aimed at SADF personnel in the area to make a political statement of ANC presence inside the country, has to be accepted. The evidence does not suggest that they were acting out of malice or personal gain when they carried out the operation. It is now clear that in many cases civilians were increasingly getting caught up in the violent conflict of the past.
4. THE PROES STREET BOMBING
This operation was planned in conjunction with the Juicy Lucy attack. Mathe placed a limpet mine on a Renault vehicle parked in Proes Street in Pretoria. The vehicle belonged to B.R. Walster. No person was injured. Mathe says he had strict orders from Toka to ensure that no civilians would be hit. The sole aim of the blast was "to undermine the security of the (Apartheid) regime" and make the presence of the ANC felt. He acted alone. Mathe and Ramadite had travelled together from Atteridgeville, using a taxi with the limpet mines in their possession. When they arrived in town, they went in different directions. Mathe went to Proes Street and Ramadite to Juicy Lucy, each carrying his own limpet mine.
5.
THE BOMBING OF ATTERIDGEVILLE MUNICIPAL : OFFICES
This incident occurred in 1988 and (it) was carried out by Maleka who used a "Super" Limpet mine to blow up the offices. All the municipal employees had already left and no person was injured. The offices were seen as a legitimate target of the ANC. Maponya had given the order.
Maleka testified that at the time there was a rent boycott by residents. Whenever they marched to the offices to discuss the issue with the authorities they would be shot and killed by the security forces. Maleka also said he had timed the bomb in such a manner that it would explode after municipal employees had left. He did not want them to be there when the explosion occurred.
6. THE ATTACK ON THE HOUSE OF SIMON MYEKE AND THE ATTEMPT TO KILL HIM
This house, at Block "O" 8414; Mamelodi East, was attacked on 4 June 1988. Myeke was a member of the South African Police and was amongst those police who were targeted. The attack was carried out by Legodi; Kgase and Kgotsa on the orders of Toka. No person was injured and the house was damaged. According to the charge sheet, which is undisputed by applicants, Myeke and his family were in the house when Kgotsa threw a Russian made handgrenade and this operation was an attempt to kill them, and to damage their house. Kgase also had a handgrenade but he did not use it. The applicants say the aim was to kill Myeke.
7. THE ATTACK ON THE HOUSE OF BANGIWE CHARLES NDALA
Toka says they received information from their "intelligence sources" which he could not disclose, that Ndala was passing off information about comrades to the police. They say this was because a member of the SAP, Wiseman Hlongwane frequented his house. Ndala testified and denied that he was an informer. He said Hlongwane used to come and enquire about the whereabouts of a woman who used to stay with him. She had joined the ANC in exile at the time. A hand grenade was thrown into Ndala's house No. 12670 at Mamelodi East. The structure and a Toyota Kombi of Ndala that was parked outside that evening were slightly damaged. No person was injured in the attack. The handgrenade did not get into the house and exploded as it hit against the wall. The operatives were the same unit that had attacked the home of Myeke,namely Legodi, Kgase and Kgotsa. They were acting on the orders of Toka. At the hearing Counsel for Ndala submitted that not to reveal the names of the sources of the information constituted a failure to make a full disclosure and that the applications should therefore be refused. We have already given a ruling on the issue and expressed disagreement with the view. We accept that the applicants did not know the stated purpose of the visit by Hlongwane and subjectively believed that Ndala was an informer. However, there is objectively speaking no credible evidence to that effect before the Committee, and it cannot be said that the applicants acted out of malice, spite or ill-will when they attacked Ndala.
8. THE ATTACK ON RONALD MULATEDZI'S HOUSE NO. 12193, MAMELODI EAST
Mulatedzi was also a member of the SAP at the Mamelodi West Police Station. It is clear that he was quite unpopular to comrades in the area and thus became a target of the same group that had carried out the attacks at the homes of Myeke and Ndala. No person was killed and no damage was caused when a Russian made FI handgrenade was thrown at his house.
9. STERLAND THEATRE COMPLEX; LION BRIDGE FEEDS AND VAN ASWEGEN BROTHERS: BOMBINGS
The Sterland incident occurred on 15 April 1988 when Oderille "Mainstay" Maponya was accidentally killed by a bomb which prematurely exploded in his hands. Toka is the only one amongst the applicants who was in the company of Maponya at the time. This was at the Corner of Beatrix and Schoeman Streets. There was no specific human target for the bomb but to make a political statement of ANC presence in the Pretoria area. Toka was about 150 metres away from Maponya when the bomb accidentally exploded. Cars were damaged in the explosion and Carin Janse Van Rensberg received minor injuries. Toka applies for the attempted murder of Van Rensberg and other cinema goers who could have been killed and for damage to nearby cars that were damaged as a result of the explosion. The vehicles belonged to Mr J.A. Botha, Mrs H.M.P. Du Preez. "Sonstraal-Woonstelle" building was also damaged.
Nobody was injured in the other explosion but damage was caused to the buildings occupied by Lion Bridge Feeds and Van Aswegen Brothers.
10. THE BOMB EXPLOSION AT SAULSVILLE RAILWAY STATION
This happened on 5 June 1988, being carried out by Ramadite, Maleka and Mathe. It was on a Sunday and trains were expected not to be too busy. The blast was intended to coincide with a stay-away which was to commence the following day. Nobody was injured and the train (No. 9018) was damaged by the Russian made 158 mini limpet mine which had been placed inside.
11. THE ATTACK ON THE HOUSE OF MPHAHLELE
This occurred at Tsakane Section in Mamelodi in the evening of the 15 April 1988 and was carried out by Legodi and Kgotsa. Initially they conducted the reconnaissance around the place for several days. They then contacted Toka and Maponya for permission to go ahead with the attack. Toka told them to wait. He was going to revert to them at a later stage. Thereafter he came back and told them to proceed. Legodi and Kgotsa then took an AK47 and a handgrenade and proceeded to the house to launch the attack. Legodi threw the handgrenade at the window whilst Kgotsa gave cover. It exploded and only caused minor damage to the wall. No person was injured or killed. Mphahlele who was a member of the South African Police Force was staying alone in the one-roomed house. There were people staying in the main house, a separate structure, but they were not targets as they were only renting out the room to him.
12. EXCAPING FROM MODABI PRISON
All the applicants were arrested for these offences and whilst they were being held at Modabi prison they escaped on the 18 February 1990 with the assistance of ANC underground structures. No prison member took part in the execution of the escape plan and no member of the prisons service was injured.
CONCLUSIONS
The Committee concludes that the applicants are entitled to amnesty for the various offences committed. They have complied with the requirements of the Act and have given a full disclosure of the relevant facts. It is clear that they acted with a political objective and the applications are accordingly decided as follows:-
1. Amnesty is hereby GRANTED to Rodney Abraham Moeketsi Toka; Francis Pitsi and George Mathe for the following offences
(a) The murder of Barney Mopa; Andrew Mphahlele and Nelson Phanyase.
(b) The attempted murder of Tickey Maleka and Ananias Nkoane.
Amnesty is further GRANTED to Francis Pitsi and George Mathe for unlawful possession of unlicensed firearms, namely an AK47 and a Makarov Pistol, respectively during the period relevant to the aforementioned attacks.
2.1 Amnesty is GRANTED to Rodney Abraham Moeketsi Toka for the following offences
(a) The murder of Patience Kulele;
(b) The attempted murder of Rose-Mary Muzwayine;
(c) Malicious injury to property House No. 855, Mamelodi Gardens.
2.2 It is however REFUSED to Joseph Nkosi in respect of the crimes under paragraph 2.1.
3. Amnesty is hereby GRANTED to Abraham Moeketsi Toka; Francis Pitsi and George Mathe for the following offences:-
3.1 The attempted murder of Matilda Eleonare Venter; Elke Martha Hansen; Anna Marina Prinsloo; Susanna Maria Magdelina Kruger and Alida Maria Claasen.
3.2 For Malicious Injury to Property caused in the course of the execution of the "Juicy Lucy" bombing, namely an SADF Vehicle; Golf Pro Business Enterprise Premises; State Library; Magistrate's office Building and Old Mutual Building.
3.3 Amnesty is also GRANTED to Francis Pitsi and George Mathe for unlawful possession of Russian made limpet mines at Pretoria on the 26 May 1988.
4. Amnesty is GRANTED to George Mathe and R.A.M. Toka for the Proes Street Bomb Blast, Pretoria, and for the damage caused to a vehicle belonging to B.R. Walster on the 26 May 1988.
5. Amnesty is GRANTED to R.A.M. Toka and Johannes Tshipane Maleka for the planting of a bomb and for the consequent damage caused to the Atteridgeville Municipality Offices in 1988. They are also GRANTED amnesty for unlawful possession of a "Super" Limpet Mine at the time.
6. Amnesty is GRANTED to Toka; Reginald Legodi; Alfred Kgase and Reuben Kgotsa for the attempted murder of Simon Myeke and for the damage caused to his property. Amnesty is further granted to Reuben Kgotsa and Alfred Kgase for unlawful possession of a handgrenade on the 4 June 1988.
7. Amnesty is GRANTED to Rodney Abraham Moeketsi Toka; Reginald Noah Legodi; Alfred Kgase and Thapelo Reuben Kgotsa for the attempted murder of Bangiwe Charles Ndala and Ronald Mulatedzi. They are further granted amnesty for malicious damage to property and for unlawful possession of handgrenades at the relevant time.
8. Amnesty is GRANTED to Rodney Abraham Moeketsi Toka for the attempted murder of Chris Janse van Rensberg and other unknown persons and the malicious injury to property relative to the Sterland Theatre Complex incident.
9. Amnesty is GRANTED to Johannes Tshipane Maleka and to George Mathe for Malicious Injury to the property of the former Department of South African Railways and Harbours on 5 June 1988 at Saulsville and for unlawful possession of a limpet mine.
10. Amnesty is GRANTED to Rodney Abraham Moeketsi Toka; R.N. Legodi; and T.R. Kgotsa for the attempted murder of Constable Mphahlele and malicious injury to property. They are also GRANTED amnesty for unlawful possession of an unlicensed AK47 and a handgrenade on 15 April 1988.
11. Amnesty is GRANTED to Rodney Abraham Moeketsi Toka in respect of the bomb explosions at Lion Bridge Feeds and van Aswagens at Pretoria on 15 April 1988.
12. All the applicants are GRANTED amnesty for escaping from lawful custody.
It is recommended that the victims of the various offences and actions of the applicants be declared victims in terms of the Act, and are hereby referred to the Reparations and Rehabilitation Committee of the TRC.
SIGNED AT CAPE TOWN ON THIS THE
: DAY OF
: 1999.
JUDGE SELWYN MILLER
CHRIS DE JAGER SC AJ
ADV. NTSIKELELO SANDI
