DECISION
The applicant applies for amnesty for a number of incidents in which he was involved during the period between December 1974 and February 1976 while he was doing compulsory military service as a conscript. It appears as if the applicant originally made a statement to an investigator of the TRC on June 29, 1996 which was attested to.
Subsequent to this statement, an amnesty application was completed on July 4, 1996, not signed by the applicant, yet attested to by the same TRC investigator as Commissioner of Oaths, to which the original statement was attached. It is also clear that this statement was taken for some other purpose (the conscript hearing?) since it focuses on the atrocities of others and the plight of the applicant. Although there is a quote from this application in volume 2, chapter 2 of the TRC final report in paragraphs 105 - 107, it seems not to have been corroborated. The Committee could not corroborate any of the incidents, and with limited information and no names of alleged victims or perpetrators available, no notices in terms of section 19(4) were issued. The Committee had to decide on the basis of the evidence of the applicant only.
A. INCIDENT 1
This incident occurred in May or June 1975 in Namibia. The applicant was based at Mapungervlei. They went on a seven day foot patrol. The officer in charge was Lt Ferreira and their general instructions were to sweep the area for weapons, terrorists and to obtain information about terrorist movements. They were further instructed to eliminate or arrest any terrorist. On the first night of the patrol when it was already dark, they suddenly came under attack of heavy gunfire. The attack and exchange of fire lasted for about two and a half hours.
At daylight they were instructed to examine the area and specifically not to take any hostages. They found several dead bodies. The applicant came across three severely wounded terrorists. Their arms, legs and lower bodies "were badly severed". Realising that none of them could survive, he shot and killed them. He said that although this was according to instructions and that one had no option but to comply with such order, his personal state of mind at the time was that he could not take this further suffering and that he turned his head away as he shot them. On being questioned he replied that his state of mind at the time was one of ending the suffering, not one of compliance with the order. No corroboration of the incident could be found and the Committee has to rely on the evidence of the applicant.
Accepting the evidence of the applicant, the committee is satisfied that the applicant made full disclosure of all material facts. It is also clear that the incident took place within the context of the conflicts of the past. The remaining question is whether the act was an act associated with a political objective as envisaged in Section 20 (b) of the Act, given the applicant's statement that the actual shooting was motivated by an urge to end suffering of the wounded. However, having regard to the terms of section 20 (3) as guidelines for a decision as to whether the act is an act associated with a political objective, it is clear that the motive of the perpetrator to be considered in terms of Section 20 (3) (a) is but one of a series of considerations to be taken into account. The shooting was committed within the ambit of a political motive as defined, directed at a political opponent (20 (3) (d) ); following an order (even if not done in execution thereof, then certainly with the approval of his commanding officer) (Section 20 (3) (e) ) and not for gain or out of malice. The Committee therefore finds that the act was indeed an act associated with a political objective as contemplated in the Act and amnesty is consequently GRANTED to the applicant in respect of this incident.
B. INCIDENT 2
The applicant applies for amnesty for an incident that relates to the capture of four unarmed terrorists near a missionary, Cachet, where several AK47 rifles were found. The four persons were brought to Mapungarvlei base and placed into a seven foot deep hole, eight foot square, where they were kept under guard. Whilst the applicant was on guard, some of the troops poured boiling water over their heads and one jumped into the hole "and cut off the left ear and centre finger of the right hand of one of the prisoners". Although he was in charge as guard, he did nothing to prevent the assaults and he applies for amnesty for this omission. He does not know who the victims were, nor does he remember who any of the perpetrators were.
Again, the Committee has to rely on the evidence of a single witness, the applicant. For the purposes of the consideration of amnesty, the Committee accepts the evidence. Amnesty is therefore GRANTED to the applicant in respect of this evidence.
C. INCIDENT 3
This incident occurred while the applicant was in the employ of a private company known as Community Protection Services in Johannesburg. He was instructed by his superior to collect a police vehicle at John Vorster Square and to drive this to a certain address in Pinetown where the contents were to be delivered. He was also handed a sealed envelope addressed to a Mr Smith. During offloading of the cargo in Pinetown, a crate fell and broke and to his amazement he saw that the contents were R1 and R3 rifles. He drove the vehicle back to John Vorster Square. He did not report the incident to his employer, from whom he received the instruction. The applicant made it clear that as far as he was concerned, he personally did not regard the act as one associated with a political objective. He knows his erstwhile employer, who has since died, to have been a supporter of the IFP.
The Committee was unable to corroborate any of the evidence of the applicant. The act was clearly, even as far as the applicant was concerned, not an act associated with a political objective. The application for this incident is therefore REFUSED.
SIGNED AT CAPE TOWN ON THIS THE
: DAY OF
: 2000.
JUDGE R. PILLAY
MR W. MALAN
ADV. S. SIGODI
