DECISION
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The six Applicants are applying for amnesty in respect of all acts, omissions, delicts or offences committed by them, pertaining to the abduction and murder of Johannes Mabotha and the destruction of his body with explosives at Penge Mine, near Burgersfort (Weltevreden) on 4th October 1989, and any other offence or delict flowing directly from or linked to the said abduction and murder, including defeating the ends of justice or any cover up of the offences. Amnesty has already been granted to W W Mentz (AM 2775/96 - AC/99/0033) in respect of this incident.
Although Jan Daniel Potgieter was listed as an Applicant in this hearing, it transpired that this was an error and Mr Rossouw, who appeared on behalf of Potgieter, clarified Potgieter's position as that of an implicated person.
The general background about Vlakplaas as an operational unit of the Security Police and the role of askaris as well as their political motivation has been covered previously. For this incident, it may be convenient to start by referring generally to the background about Penge Mine.
This is an old, unused asbestos mine situated at Weltevreden near Burgersfort in the Mpumalanga Province. From time to time it was used by Vlakplaas, with the knowledge and consent of its owners, to conduct training exercises for askaris and Vlakplaas members.
These training exercises included fitness training, training in the use of explosive devices such as hand grenades, land mines and other explosives and in the use of firearms. The explosives and weapons used were from many sources including South Africa, Europe (NATO) and Eastern Bloc countries. When firearms or explosives were to be used the mine employees resident in the area were notified to avoid any unnecessary reaction or enquiries from them.
De Kock gave evidence about the details of the circumstances surround the abduction and murder of Mabotha. The other five Applicants gave evidence about the role each of them played in the incident. Potgieter, the implicated person, filed an affidavit giving his version of the circumstances surrounding the killing of Mabotha. Such version differed on material respects with the evidence of De Kock and this necessitated the Committee calling Potgieter to testify and be subjected to cross-examination. His evidence is dealt with below.
In testifying before the Committee, De Kock gave general evidence about the problems experienced with the askaris, which included the fact that they would arrive late for duties or fail to report on some days. They gave a variety of excuses for that.
Mabotha was a member of uMkhonto weSizwe (MK) under the ANC and underwent military training abroad. After his infiltration into South Africa, he was arrested, interrogated and tortured. He chose to co-operate with the Security Police and was sent to Vlakplaas to work there as an askari. He later disappeared and never reported for duty again.
Thereafter, De Kock received a telephone call from the Soweto Security Branch that Mabotha had once again been arrested and was being held at Marble Hall. he had been involved in ANC activities again. After discussing the matter with Brigadier Schoon and General Basie Smit, De Kock and Bellingan departed from Vlakplaas and went to Marble Hall.
On the following morning, De Kock and Bellingan met members of the Soweto Security Branch at Marble Hall Police Station; Mabotha was brought to them and accompanied by Colonel Grobler. They all went to a house in a rural area (farm). There Mabotha was interrogated, assaulted, tortured, among other means a bag and a rubber band was used to suffocate him. His clothes were taken off and he was hung upside down. ice was put in his anus. Mabotha sustained injuries as a result. De Kock participated by assisting in hanging him upside down and suffocating him. De Kock denied that it was Bellingan who placed ice blocks in Mabotha's anus. He stated that he and Bellingan left when the ice blocks were used. That was the first time that De Kock saw such a method of torture and he did not believe it would assist in extracting information. The interrogation started at about 09h00 or 10h00 and lasted until 15h00 to 16h00.
De Kock, as commanding officer of Vlakplaas wanted to know what information Mabotha would have leaked out about its existence and about the identity of its officers and men.
The police believed that Mabotha absconded and joined the Mandela Football Club under the control of Winnie Mandela and that he was involved in the killing of police. When arrested at Marble Hall, Mabotha had been in telephonic communication with Winnie Mandela and he had in his possession her telephone number and a message transcribed in his handwriting which was a report to the Star Newspaper that Stompie Sepei was not dead but was in Botswana, running away from the South African Police. (Mabotha was supposed to leave the country and go to Botswana to give such a report. He gave the report from Groblersdal).
De Kock testified that he had no further interest or use for Mabotha. He had left Vlakplaas for about two weeks to a month and to him, Mabotha was no longer an askari and it would be a great risk to try to convert him into an askari again.
Information was gleamed from Klopper's affidavit, that from Marble Hall, Mabotha was taken to Soweto where he was further interrogated by askaris. He was detained under Section 29 of the Internal Security Act for some six months during 1989 and his detention was determined on 10th October 1989.
Some time shortly before the 10th October 1989, Major Potgieter of the Soweto Security Branch telephoned De Kock and requested his assistance as he believed Mabotha could not be released into the streets and be allowed to be at large. De Kock aligned himself with this view. At that time De Kock and Potgieter were both majors although De Kock was the senior.
When Potgieter requested De Kock's assistance with Mabotha, De Kock understood him to have suggested that Mabotha should be killed. Potgieter denied that he ever suggested that Mabotha should be killed and maintained that he would never have suggested that, because there was a good relationship between him and Mabotha. He thought De Kock would make a plan and give Mabotha accommodation at Vlakplaas until such time as Mabotha would be called to give evidence in a high treason case contemplated against Winnie Mandela. The case never materialised because the political situation changed and political organisations were unbanned and political prisoners were released.
In De Kock's opinion, Mabotha was someone who could never again be trusted. His history was thought to prove this. He had joined the ANC and received training from them but on his return to this country and his subsequent arrest, he agreed to become an askari (that is to act as an agent for the South African Police). He then deserted from his new position and joined the Mandela Football Club, a body closely linked to the ANC. On his re-arrest, he again agreed to assist the SAP by giving evidence against Mrs Winnie Mandela. De Kock thought that there was a very real danger he would again revert to the ANC and supply them with information which might place the lives of policemen he had worked with at risk or which might prejudice the operations carried out by the Security Branch or damage the reputation of the government.
It was to prevent this that De Kock decided he would have to be killed. A further contributing factor was that Mabotha had allegedly participated in the killing of two SAP members in a shebeen.
We do not consider the conflicts between the evidence of De Kock and Potgieter as to precisely what was said and how these remarks were in fact understood to be of any importance in our arriving at a decision. They were giving evidence about an incident that took place years ago and both of them had different interests in mind when the conversation took place. De Kock was interested in protecting his unit and his country by permanently removing a potential danger. Potgieter was concerned with a possible prosecution of a very public figure and wanted to safeguard and supervise a potential witness. De Kock and Potgieter had not been working together in respect of either incident. De Kock made it clear that the decision was his and did not attempt to rely on any alleged order from Potgieter who was, as he pointed out, junior to him at the time.
As a result of the conversation De Kock had with Potgieter, arrangements were made to meet some distance from De Deur Police Station near Vereeniging on 4th October 1989, to decide on final arrangements as to how Mabotha would be handed over to the members of Vlakplaas and to conceal his disappearance. De Kock had initiated arrangements for the death of Mabotha and as a result did not want it to be known that his unit had taken Mabotha into custody.
Vermeulen and Snyman prepared explosives and proceeded to Penge Mine to start arrangements for shooting (night ambush) exercises as a cover for the explosion which was to take place that evening when Mabotha's body would be blown up. On the following day they would use phospho-grenades to ensure that any remains were destroyed if this proved to be necessary.
Mentz and De Kock monitored the activities at De Deur Police when Mabotha was handed over to Warrant Officer Brits, Van Niekerk and Sgt Flores, who were in a third vehicle about 500 metres or more away from the Police Station so that there would be no eye witnesses observing the handing over. This was done to protect Potgieter who was handing Mabotha over and also De Kock's group, which was receiving him.
Mabotha was handed over and Brits, Van Niekerk and Flores left for Penge Mine. Mentz and De Kock returned to Vlakplaas to complete some tasks and thereafter proceeded to Penge Mine to join the other members of the group. On the way there, Mabotha who had up to then offered no resistance, was handcuffed.
It was arranged that some members of the group would spend the night at Penge Mine. A fire was made and Mabotha, still in handcuffs, sat next to the fire. De Kock asked him a few questions about his involvement in the shooting of police officers and the whereabouts of weapons. Mabotha did not furnish the required information and laughed. De Kock instructed members of the group and Mabotha to walk down the hill to the mine shaft.
They reached a spot where there was about 25 kilograms of military explosives, PE4 about as big as six land mines. Somebody asked "who has the weapon?" At that stage Mabotha saw the charge with a detonator attached to it. He turned around, looked at De Kock as if he wanted to say something. From a distance of about two metres, De Kock fired two bullets from a .38 special and shot Mabotha in the heart.
Brits and Vermeulen removed Mabotha's clothes, which were subsequently burnt so that no traces of them would remain. The body was placed over the explosives and cortex was wrapped around it. Brits prepared the detonator whilst Vermeulen made arrangements for the machine guns to commence firing to cover the sound of the explosion. Brits duly detonated the explosion and inspected the scene afterwards. Vermeulen and others did so the next morning when no traces of the body were found.
In his application for amnesty, which was heard separately from the other members of the group, Mentz's evidence differs from De Kock's. He mentions that when they arrived at Penge Mine, Mabotha was chained to a pole, that Mabotha pleaded with De Kock not to be killed. Mentz also mentions that at Penge Mine, members of the group braaied meat and drank liquor.
After the operation, De Kock reported to Brigadier Schoon that Mabotha, "the askari who had run away" would not bother them again, euphemistically meaning that he did not exist anymore. Schoon simply accepted the report and did not ask for details. Schoon, in his affidavit said he had no recollection of any such conversation and had he understood De Kock to be reporting a killing, he would have questioned him about it.
Applicants Brits, Klopper, Snyman, Vermeulen and Flores also testified before the Amnesty Committee. They gave evidence about the specific roles they individually played in the abduction and killing of Mabotha and the subsequent cover up of the incident.
After Brits, Klopper and Flores received Mabotha near De Deur Police Station and whilst driving away their vehicle was overtaken by De Kock and Mentz's vehicle. As pre-arranged, that was a signal for them to stop. Mabotha was overpowered and handcuffed. De Kock approached their vehicle and sarcastically said to Mabotha "You think you are clever" and left.
Due to the fact that the version of the Mabotha incident as stated in Potgieter's affidavit materially differed from the evidence by De Kock, the Committee decided that it was necessary to call Potgieter as a witness, to give evidence under oath and be subjected to cross-examination.
The conflicts between his version and that of De Kock have been referred to above.
Based on the aforegoing evidence, the Committee has to decide whether the Applicants are entitled to amnesty. In doing so, it should be borne in mind that an application for amnesty is based on three pillars. Firstly, the application should comply with the technical aspects of the Act in that a form should be completed and submitted before the cut off date. The Committee finds that this requirement has been complied with.
Secondly, the incident for which amnesty is sought should be an act associated with a political objective. The evidence before this Committee is that Mabotha could legally have been accepted and used as an askari again after he had returned back from the ANC. The Committee was told that it could have been a great risk to accept him to be an askari again. It was feared that he would easily return to the ANC again and involve himself in ANC activities or supply information to the ANC. It was also feared that askaris at Vlakplaas would not have welcomed him, suspecting that Mabotha might have exposed their identities to the ANC. If he was released from detention and allowed to go wherever he liked, it was feared that he would obviously go and rejoin the ANC. He was regarded as a political enemy to the Security Forces. The Committee finds that the application complies with Section 20(1)(b) of the Act with regard to act associated with a political objective.
The third pillar requires that the Applicant should make a full disclosure of all the relevant facts. In this application, the Committee looked at the areas where details of events in one Applicant's version differs from that of another, such as when Mentz states that on their arrival at Penge Mine, Mabotha was chained to a pole whereas De Kock stated that he was sitting next to the fire, where Mentz says before he was shot and killed, Mabotha was pleading for his life to be spared, whereas De Kock said he shot Mabotha before he could say anything when he noticed the explosives linked to a detonator and possibly started to suspect for the first time that he was going to be killed.
Ms Ramula Patel, the TRC's Evidence Leader, argued strongly that because of the discrepancies and contradictions between the evidence of the Applicants it cannot be said that the Applicants have made a full disclosure. Ms Patel argued that their conduct was not proportional to the objective they intended to achieve.
The Committee finds that these discrepancies are not fatal to the application and can be ascribed to the long period of time which has passed from the date of the incident and when the application for amnesty was brought before the Committee.
The discrepancies which cause some concern are those between Potgieter's and De Kock's version as already pointed out above.
The Committee finds that De Kock's evidence cannot be rejected on the basis of Potgieter's evidence. The Committee is satisfied that the Applicants meet the requirements of "full disclosure".
In the result the Applicants De Kock, Brits, Snyman, Vermeulen and Flores are granted amnesty for the following offences:
a) The abduction of Johannes Mabotha at or near De Deur Police Station, Vereeniging on 10th October 1989.
b) The murder of Johannes Mabotha on the same date at Penge Mine near Burgersfort, Mpumalanga Province.
c) Desecration of the body of the deceased.
d) Contravening Sections 2, 28, 29, 32, 36 and 39 of the Arms and Ammunition Act 75 of 1969.
e) Contravening Section 2 of the Dangerous Weapons Act 71 of 1968.
f) Contravening Sections 3,4,5,6,9 and 27 of the Explosives Act.
g) Intimidation.
h) Obstructing the course of justice.
i) Any offence or delict directly arising from the incident mentioned in (a), (b) or (c) above.
The Applicant Klopper is GRANTED amnesty in respect of the following offences:
a. Assault with intent to do grievous bodily harm on Johannes Mabotha at or in the vicinity of Marble Hall.
b. Intimidation.
c. Any offence or delict directly arising from the incident mentioned in (a) above.
It is the opinion of the Committee that the mother and member of the family of Johannes Mabotha, who were represented at the hearing, are victims in terms of the Act.
DATED AT CAPE TOWN this day of 2000
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JUDGE A WILSON
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ADV N SANDI
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MR J B SIBANYONI
