DECISION
______________________________________________________The Applicants, all erstwhile members of the Security Branch in Durban, apply for amnesty for the assault ("torture") of Messrs Pravin Gordhan and Raymond Lalla on or about 13 July 190 at or near Bethlehem in the Free State.
Both the aforementioned victims were held for questioning in terms of the Internal Security Act at the offices of the Security Branch at Bethlehem to where they had been transported from Durban where they had originally been detained. They were being questioned in regard to the ANC operation, generally referred to as "Operation Vula", in Kwa-Zulu Natal, more particularly with a view to obtaining the name of a suspected "mole" within the ranks of the Security Branch.
It is common cause that the victims were political activists engaged in furthering the cause of the ANC/SACP Alliance and that the incident took place during the later stages of the political struggle.
The victims, who appeared in person at the hearing, put questions to the applicants in cross-examination, but elected not to testify. They opposed the application of the first applicant, Botha, but did not express opposition to the applications of the other three applicants who acted upon the orders of the first applicant and assisted him during the interrogation and assault on the victims. All the applicants testified under oath.
The opposition to Botha's application, as expressed by Mr Gordhan, can be summarised as follows:
1. The applicant did not make a full disclosure, particularly around the arrest of Mr Charles Ndaba who was a key figure in Operation Vula and who was killed by the Security Police.
2. There was no political objective on the part of Botha and his actions were the result of a personal choice and style and a manifestation of personal vindictiveness.
3. There was no proportionality in the relationship between the information requested from the victims during the interrogation and the techniques of assault used.
From the evidence given by the applicants and the questions put to them by the victims during cross-examination, it is evident that the assaults took place by way of a method of suffocation in that the victims were wrapped in a blanket and then suffocated by means of a "sack" or towel or possibly some other instrument placed over their heads. In the case of Mr Lalla, this resulted in an asthma attack and the assault was terminated almost immediately.
Medical assistance was rendered to him. In the case of Mr Gordhan, the assault, according to Botha, lasted approximately 10 minutes and according to Mr Gordhan, as put in cross-examination, about 30 to 50 minutes. Another issue which emerged from the cross-examination was the reason why the victims were taken from Durban to Bethlehem.
The Committee carefully considered the objections raised by the victims and came to the conclusion that there is no evidence before it to suggest that the acts under discussion were not committed with a political objective as required by the Promotion of National Unity and Reconciliation Act, 34 of 1995, hereinafter referred to as the "Act".
As regards the requirement of full disclosure, the Committee is of the opinion that the circumstances regarding the arrest of Mr Ndaba is peripheral to this incident and not a material issue in so far as this application is concerned. The question as to why the victims were taken to Bethlehem, being such a long distance from Durban where the holding cells were allegedly full, caused the Committee some difficulty, but we find that this is not such a material issue as to preclude the granting of amnesty, especially not in the absence of evidence indicating that the applicants were not telling the truth.
The duration of the assault, in the opinion of the Committee, is the one issue which may have a direct bearing on both the requirement of full disclosure and the question of proportionality. In both the case of the applicant Botha and the victim Mr Gordhan, the duration of the incident suggested by them were based on estimations, if one further takes into consideration that, according to common human experience, the duration of "torture" would feel much longer for the victim than the perpetrator, there is nothing before the Committee to warrant a finding that the applicant was deliberately hiding the truth in this regard. If this be so and in the absence of the Committee finding that the assault lasted for an extraordinarily long time or was of a particularly savage nature, the question of proportionality automatically falls away.
The Committee further finds that there were no inherent improbabilities in the evidence of the applicants. Minor contradictions are such that one would expect from witnesses attempting to recall what happened about nine years ago.
The Committee is therefore satisfied that all the applicants have complied with the requirements for amnesty as set out in the Act and accordingly amnesty is GRANTED to:
1. Hendrik Johannes Petrus Botha for the assault on Pravin Gordhan and Raymond Lalla at or near Bethlehem on 13 July 1990.
2. Marius Greying for the assault on Pravin Gordhan and Raymond Lalla at or near Bethlehem on 13 July 1990.
3. Karl Durr for the assault on Pravin Gordhan and Raymond Lalla at or near Bethlehem on 13 July 1990.
4. Frans Stephanus Bothma for the assault on Pravin Gordhan and Raymond Lalla at or near Bethlehem on 13 July 1990.
Messrs Pravin Gordhan and Raymond Lalla are declared victims in terms of section 14 of the Act and referred to the Committee on Reparation and Rehabilitation for its consideration.
Dated at this day of 1999.
____________________________JUDGE S MILLER
____________________________ADV F J BOSMAN
____________________________MR ILAN LAX
