: DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Ac, No.34 of 1995 ("the Act"). The Applicant is seeking amnesty for attempted murder and torture of members and supporters of liberation movements during the period 1991 to 1993. We commence with his brief political background.
At the time of the commission of the actions referred to herein, he was an askari and a former cadre of the Azanian People's Liberation Army ("APLA"), the military wind of the Pan Africanist Congress of Azania ("the PAC"). he left the Republic of South Africa ("the RSA") in 1986 and went to Botswana where he received military training under the auspices of the PAC. In 1989 he was sent back to the RSA by the PAC where he was arrested by members of the SAP at Zeerust Border Post. He had no valid passport. He was held under the notorious Section 29 detention in terms of the Internal Security Act whereafter he was recruited to join the police, which he did. He worked as an askari but later he was given a permanent appointment as a member of the force.
He subsequently testified as a State witness against APLA cadres who were arrested and charged with committing subversive activities against the State. During the time he was in the SAP he was never issued with a rank and worked under Captain Venter who commanded askaris.
At first he was commanded by Sergeant Barnard and other white members of the Security Police and his duties were inter alia to gather information around the activities of freedom fighters. Where possible he had to arrest them and report to his white handlers. He states that his handlers would convey the information to Eugene de Kock who then saw to it that the necessary action was taken.
THE 1ST INCIDENT
On the evening of a certain day during 1991, at or near Zulu Street, Rocklands, the Applicant noticed that he was being followed by a group of fourteen (14) to fifteen (15) people. He was armed with a Makarov pistol. These people appeared to be armed with knives. They were advancing towards him. The Applicant states that it was clear that they were plotting to attack him. Fearing for his life, he produced his firearm and fired a warning shot. The assailants were still undeterred and continued to advance towards him. Then the Applicant emptied the entire magazine on the crown and fled. He does not know if any person was injured or killed but he returned to the scene late that evening and early the next day to pick up the spent cartridges. On the scene there was no indication that any person had been injured or killed. The Applicant says he opened fire on those people because he thought they wanted to kill him since he was an askari. It does not appear that any one of the said persons had uttered a word to indicate what their intention was.
In the circumstances we are of the view that the Applicant acted in self-defence and there is no indication why the said people wanted to attack him. It cannot be said that the action was an action taken against political opponents. The Applicant has laid no foundation for such a belief. The would-be assailants could have desired to attack the Applicant for any number or reasons, including straight robbery. We deliberately refrain to speculate. By the same token it cannot be suggested that every person who attacked the Applicant during the relevant time meri motu did so because the latter was an askari. There is also no evidence that the Applicant committed an offence, let alone that it is "an act associated with a political objective" in terms of the Act. If he was being attacked he was quite entitled to defend himself.
In the result amnesty for murder or attempted murder of the unknown persons is REFUSED.
THE 2ND INCIDENT
Some time between 1990 and 1991 the Applicant was transferred by his superiors to Bloemfontein where they operated from a farm outside the city. He states that the Security Police and askaris used that farm as an "office base". Activists would be taken there for torture and questioning. One of the activists was Abel Choane who was initially an askari but had subsequently fled due to his dissatisfaction with treatment and conditions in the SAP. He was supposed to recaptured. Whilst Applicant and his colleagues, including Barnard, were in Ficksburg they received information that Abel was in the Bloemfontein area. They followed up the information so they could arrest him. They went back to Bloemfontein. It was the Applicant, Victor Gadi and Patrick Ngamela who were also members of the Security Police. In Bloemfontein they came to Peter's Tavern where they bought liquor and entertained themselves. After monitoring the situation there they produced firearms and ordered all the patrons to lie down. Amongst the people they arrested there was Abel Choane's brother, Norman Choane. The suspects were put in the Kombi which had curtains and taken to the Security Police offices in Fountain Building, 5th Floor, Bloemfontein. This is where they were required by Barnard and other security police to be questioned about the whereabouts of Abel Choane. The Applicant states that he was present during the questioning and torture of Norman Choane. He took part in the torture, having been instructed by Lieut Landman to do so. He tied Norman with a bandage and his legs and hands were cuffed. They forced him to lie down and he was covered with a blanket and rolled with it so that he could face up. One of the Applicant's colleagues sat on his legs. The Applicant administered the notorious "tube torture" method to suffocate him. This was done for five to six times as the Applicant would put the tube on and off his face to exert pressure. The Applicant estimates that the tubing took approximately three hours. After some time the victim said Abel was somewhere in the Bloemfontein area but he did not know his exact whereabouts. Landman and probably Barnard as well were present during the torture. The Applicant says in addition to administering the tubing he slapped the victim on the face and hit him with fists. The Applicant does not know what happened to the victim thereafter as he left him with his colleagues.
Later Abel was arrested. He was also assaulted and tortured in the same manner as Norman. Barnard and Matsisa gave the orders for the torture and assault which took longer than that of Norman. Oupa Mashiba who as since died was responsible for the assault whilst the Applicant administered the tubing. He further states that at the time he did not know the political affiliation of Norman, if any, and only knew that he was a teacher. He acted to carry out orders from the white superiors.
At the hearing counsel for Abel submitted from the bar that his client denies that he was ever an askari; that he was tortured or in any way assaulted by the Applicant and, further, that he was ever subjected to the notorious tubing method. The Applicant, in order to extricate the riddle, said at the time he had a permed hair and that this was perhaps the reason why the victim could not recall him. The victim, Abel, was still adamant that he had never been questioned or tortured by a policeman with a permed hair. There was no such a policeman amongst the police when he was being questioned and tortured.
We are of the view that Abel might be mistaken in his recollection of the events. The question is why would Thejane implicate himself and say he tortured Abel if this never happened. Our view here is fortified by the fact that no person can implicate himself or herself unless he is insane. There is no evidence or suggestion that the Applicant is mentally afflicted.
We take note of the fact that all the suspects who were arrested and tortured were subjected to the same method of torture by tubing. The question then is why would Abel be tortured differently? In the circumstances we find it difficult to accept Abel's version and we accept what the Applicant says, namely that he tubed Abel. We also take note that this was a very common method of torture by members of the South African Security Police.
THE 3RD INCIDENT
One of the persons who were tortured in or about 1992 was Moeketsi Johannes Jikile. The Applicant was the main role player in the tubing of Jikile who was being questioned about APLA farm attacks in the Orange Free State region. Having been arrested at his home he was held at Botshabelo Police Station near Bloemfontein and the Applicant would be sent by Barnard to go and fetch him. This happened for about four times and he would be tortured and assaulted in the same method as the others, namely the tubing method.
The Applicant states that he has since met Jikile and apologised to him for the torture, which apology was accepted. At the hearing Jikile did not testify but submitted a statement in which he said he sustained a broken rib as the result of the torture. The Applicant could neither admit nor deny the allegation. He says he personally did not know Jikile but simply carried out orders from his white superiors. At the relevant time he believed that he was an opponent of the State which it was his task to defend.
THE 4TH INCIDENT : GENERAL APPLICATION FOR AMNESTY
The Applicant says that during the time he worked for the Security Police as an askari he was involved in the assault and torture of many activists whose names he cannot recall. He is seeking amnesty for the said assaults and tortures.
The problem with this particular part of the Applicant's application is that it is a general application. The Committee has previously stated its view that general applications cannot be granted. We refer here to the so-called ANC 37 case.
The Applicant further testified that in 1993 all askaris who were attached to Vlakplaas were addressed by Eugene de Kock who told them that the Vlakplaas Security Police Unit was being disbanded. They were promised a"golden handshakes" which he subsequently received.
After considering the matter we are of the view that the Applicant has complied with the requirements of the Act. The Applicant has partly shown that the offences committed are "acts associated with a political objective" in terms of the Act. He further appears to have given a full disclosure of all the relevant facts.
In the result amnesty is GRANTED for the following offences:
1. The torture of Abel Choane, Norman Choane and Moeketsi Johannes Jikile in Bloemfontein during or about 1991 and 1992;
2. Amnesty is REFUSED in respect of the murder or attempted murder of unknown persons at or near Zulu Street, Rocklands, during or about 1991;
3. The general application for the torture of unknown persons during the time the Applicant was an askari is also REFUSED.
It is recommended that Abel Choane, Norman Choane and Moeketsi Johannes Jikile be declared victims in terms of the Act and they are accordingly referred to the Reparation and Rehabilitation Committee for consideration.
SIGNED AT CAPE TOWN ON THIS 29TH DAY OF JANUARY 2001
J MOTATA, JUDGE
C DE JAGER, AJ
ADV N SANDI
