DECISION
The applicant is a former member of Umkhonto we Sizwe ("MK"), the military wing of the African National Congress ("the ANC"). He is presently a high ranking officer of the South African National Defence Force. He is seeking amnesty for a wide range of incidents, namely, conspiring to attack members of the erstwhile South African Police ("SAP"), planting of limpet mines, bombings and unlawful possession and use of firearms and explosives. At the relevant time the applicant was an MK Chief of Staff in Botswana wherefrom he commanded Oderille "Mainstay" Maponya and Rodney Abraham Moeketsi Toka to infiltrate the borders of the Republic of South Africa and carry out operations on behalf of the ANC and MK. At the hearing the applicant was the only witness to testify and his application was unopposed.
The applicant testified that as Chief of Staff his duty was to give orders to the operatives to infiltrate the Republic of South Africa and recruit sympathetic members of the community to join MK. These people were then trained by Mapnya and Toka and participated in military activities in pursuance of the aims and objectives of the ANC's armed struggle. The applicant never made any contact with the recruits. Neither did he know who they were but he would receive reports that operations had been carried out. He did not always receive such reports because initially reports were sent to his superior "Naledi Molefe". When the latter was subsequently killed in an ambush in Botswana by members of the South African Security Forces the applicant took over from him. The applicant and the late Molefe would convey the reports to senior MK cadres such as the late Mr Chris Hani who came to Botswana to receive same and give further instructions. The applicant testified further that sometimes it would be difficult for Maponya and Toka to communicate with them or travel to Botswana to give such reports. In other cases reports would be received much later after an operation had been carried out. The command structure in Botswana comprised the applicant, Pat Thwala and Che Ogara and so reports would not always come to him but would go instead to one of the said members. It sometimes happened that when reports were conveyed to Botswana the applicant would not be there.
When Maponya was killed in an accidental explosion of a bomb in Pretoria, Toka took over as the new head of the internal units. It is convenient to mention that Toka and other cadres of MK previously applied for a host of actions which were carried out on the orders of the applicant's command structure, which applications were granted by the Committee (See AM6034/97; AM7193/97; AM7452/97; AM5697/97; AM7745/97; AM7653/97; AM7737/97 and AM7273/97).
The applicant recalls receiving reports in respect of some of the incidents for which Toka et al were granted amnesty. He states that as commanders they were not involved in the selection of the targets and the actual planning of the attacks. Toka, Maponya (initially) and Webster, as well as the recruits had a discretion in the identification and planning of attacks, as long as the nature of the selected targets was in line with the ANC policy of not deliberately attacking or endangering the lives of innocent civilians. The said policy, however, envisaged the ever-present risk and danger of civilians getting caught up in the cross-fire. Most importantly, he asserts that all the targets that were selected met the criteria of the ANC. However, he regrets the fact that civilians were injured or killed in some of the operations inter alia the Juicy Lucy attack and the incident where a child, Patience Kulele, was killed at the house of Lucky Manette Kulele. This attack was carried out by the unit on or about the 10 May 1988. The applicant states that according to ANC policy the Juicy Lucy restaurant constituted a legitimate target since it was frequented by members of the SADF. Kulele's house was attacked because he was a member of the policy force and at the time the police were seen as enemies of the ANC since they defended and enforced the apartheid system and its unjust laws.
In addition to the incidents which were carried out by Toka and his men, he is seeking amnesty for another incident in which his underlings Stoffel and Tabagu forced their way through a road block set up by the Bophuthatswana Defence Force. There were also members of the police force that were present on the scene and the two operatives randomly opened fire on them. The applicant does not know when exactly the incident took place but it was during the same period Toka and his unit were busy carrying out operations, namely, between 1988 and 1990. He also does not know if any members were killed or injured in the incident.
After carefully considering the matter we are satisfied that the applicant's application complies with the requirements of the Act. It is clear that the actions that were carried out are "acts associated with a political objective" in terms of Act.
It further appears that he has given a full disclosure of the relevant facts, where he could do so.
Amnesty is accordingly hereby GRANTED to Applicant in respect of all offences and delicts which resulted from the operations conducted in the Republic of South Africa by the MK Units acting under Applicant's command during or about the period commencing in the 1980s until approximately 1990, including all incidents referred to in the amnesty applications referred to above which, inter alia, encompassed:
1. Conspiring to murder Barney Mopa; Andrew Mphahlele and Nelson Phenyase.
2. The attempted murder of Ticky Maleka and Ananias Nkoane.
3. The conspiracy to murder Patience Kulele and the attempted murder of Rose-Mary Muzwayine.
4. Conspiring to cause malicious damage to property to house No. 855, Mamelodi Gardens.
5. Conspiring to murder Matilda Eleodora Venter; Elke Martha Hanse; Anna Maria Prinsloo; Susanna Maria Magdelena Kruger and Alida Maria Claasen.
6. Conspiring to cause malicious damage to property which crime was committed in the course of the execution of the "Juicy Lucy" bombing, namely, an SADF Vehicle; Golf Pro Business Enterprise Premises; State Library; Magistrate's Offices Building and Old Mutual Building.
7. Conspiring to place a bomb at Proes Street, Pretoria, and for the damage caused to a vehicle belonging to B.R. Walster on the 26 May 1988.
8. Conspiring to murder Simon Myeke and for malicious damage to property.
9. Conspiring to murder Bangiwe Charles Ndala and Ronald Mulatedzi as well as for malicious damage to property.
10. Conspiring to commit malicious injury to property of the former Department of South African Railways and Harbours in or about 1988.
11. Conspiring to murder Constable Mpahlele and for malicious injury to property.
12. Conspiring to attack and murder members of the Bophuthatswana Defence and Police Forces in the 1980's.
13. Conspiring to murder members of the South African Security Forces in general and to cause injury to their person and property.
14. Contravening the provisions of the Explosives Act.
15. Defeating the ends of Justice.
16. Crossing international borders without a valid passport.
17. Contravening the provisions of the Arms and Ammunition Act.
It is recommended that the victims of the aforesaid incidents be declared victims in terms of the Act.
SIGNED AT
: THIS THE
: DAY OF
: 2000.
D POTGIETER (AJ)
ADV N SANDI
ADV F BOSMAN
