DECISION
This is an application for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The matter relates to the murder of 13 persons and the attempted murder of 4 persons at the home of the Ntuli family at Kwa Makutha in the district of Umbumbulu, KwaZulu Natal on or about 12 January 1987. The incident resulted in the trial of a former Minister of Defence in the previous government and a number of high ranking members of the former South African Defence Force ("SADF") in the Durban and Coast Local Division of the then Supreme Court. Both the trial and the incident have been widely publicised. The incident arose from a SADF operation codenamed Operation Marion. Applicant appeared as a State witness at the trial and was not granted indemnity against prosecution by the trial court.
Applicant was the only witness to testify in support of the amnesty application which was opposed by the victims of the incident. A number of witnesses were called to testify in opposition to the application. Applicant's version will be set out followed by that of the other witnesses.
As part of his official duties, Applicant was involved in the military training of a number of operatives who were to constitute a para-military force to be deployed in KwaZulu Natal in support of the Inkatha Freedom Party and the KwaZulu Natal government. This was apparently the principal objective of Operation Marion. The training occurred in the Caprivi strip in Namibia. Part of the training included what Applicant referred to as "house cleaning". This term refers to an operation undertaken in an urban area where a house would be penetrated and its occupants systematically shot and killed. During such an operation, the attackers would move from room to room inside the house and kill any potential witnesses. The objective would be to eliminate the identified target as well as anyone who could incriminate the perpetrators.
At all material times, Applicant was stationed at Pretoria under the direct command of Captain Opperman. Approximately two days prior to the incident, Applicant and Captain Opperman travelled to Ulundi in KwaZulu Natal and called en route at the Fern Tree base near to Cathkin Peak in the Drakensberg. There they collected some weapons and travelled directly to Ulundi. Although Applicant suspected that an operation will be launched, he was not given any details by Captain Opperman. During the course of the morning preceding the attack, Applicant was informed by Captain Opperman that there would be an attack upon Victor Ntuli and he was provided with a sketch plan of the house. Applicant war ordered to prepare a group of former Operation Marion trainees to execute the attack. The preparations took place near to Ulundi and it entailed what is referred to as urban counter terrorism. Applicant basically prepared the group on how to penetrate the house and gave them some shooting exercises. The preparations took place during midday whereafter Applicant and Captain Opperman left Ulundi for Durban transporting the weapons which were to be used in the attack. At approximately 01h00 the next morning Applicant and Captain Opperman met the group of attackers close to the Durban airport and handed the weapons over to them. The group left and eventually returned in high spirits. They were excited and reported that the operation was a success. Applicant and Captain Opperman collected the weapons and handed them over to an officer at the SADF Natal Command. Applicant testified that he was disappointed when he discovered the next morning that instead of having killed the target, a number of women and children were killed in the house. He indicated that if he were in command of the operation, the attack would never have taken place. In his view those people who were charged with intelligence gathering for the purposes of the attack failed to properly execute their duties since it would have been quite clear that, instead of the target, there were only women and children inside the house if they had surveilled the house properly. Applicant apologised to the victims and next-of-kin of the deceased and asked for their forgiveness. Applicant, moreover, conceded that the attack was not justified because the wrong people were killed. In his view, the objective of the attack was not achieved because the target, Victor Ntuli, was not killed and the attack spurred on even further violence in the area. He also conceded that it was wholly disproportionate to deploy a group armed with 10 AK47 assault rifles in order to kill one person. He indicated that the attack should not have taken place and that to his mind it was the wrong way of going about trying to kill Victor Ntuli. He testified that although this was a standard "house cleaning operation", the operation would only have been triggered if Victor Ntuli was present in the house. He also conceded that he was bound by the negligence of the operatives or any other person involved in the execution of the operation.
The effect of the versions of the witnesses who testified on behalf of the victims basically was that the house in question belongs to the father of Victor Ntuli. Mr Ntuli snr was a priest at the time in the Twelve Apostles Church. A number of very young children were killed in the attack and one of the women killed was a parishioner who was given refuge from a domestic conflict. All of the occupants of the house were either members of or somehow linked to the church. According to Mrs Ntuli, her husband was a very strict man and none of their children, including Victor, was allowed to carry on any activities other than those related to the church. None of the victims nor anyone of the occupants of the house at the time of the attack, were directly linked to any political organisation or involved in any political activities. It was, in fact, a well-known fact that members of the church would meet at or be present at the house on a regular basis. The witnesses, moreover testified to their tragic loss and the devastating consequences of the attack on the lives of those affected by the incident.
Having carefully considered the matter, we are not satisfied that the attack was directed against any members or supporters of any publicly known political organisation or liberation movement as required by Section 20(2)(b) of the Act. The victims of the attack can by no stretch of the imagination be classified as political enemies of the State or of the perpetrators of the attack. Most, if not all, of the victims were either very young children or women not linked to politics at all. Even if, it would have been justified to launch a so-called "house cleaning operation" the absence of Victor Ntuli in the house renders the attack completely devoid of any justification as was readily conceded by the Applicant. Moreover, in our view, the attack was wholly disproportionate to any objective which the perpetrators were seeking to achieve. There is no relationship direct or otherwise between mercilessly mowing down a group of sleeping women and children and the objective of eliminating Victor Ntuli, who was regarded as a political enemy by the perpetrators. The sheer brutality and callousness of the act surpasses comprehension. In our view, even if the Applicant was not directly responsible for planning the attack, he played an indispensable role in the eventual tragedy that occurred at the Ntuli home. He, therefore, cannot escape the consequences of the actions of his co-perpetrators with whom he made common cause.
In the circumstances we are not satisfied that the attack constitutes an act associated with a political objective as envisaged in Section 20 of the Act and the application is accordingly REFUSED.
DATED AT CAPE TOWN THIS
: DAY OF
: 2000.
JUDGE R PILLAY
JUDGE D POTGIETER
ADV N SANDI
