: DECISION
This is another application by De Kock and some of his former colleagues who were based at Vlakplaas in the years prior to the historic elections in April 1994. The applications primarily relate to the supply of arms and ammunition to the late Col Craig Duli in East London in or about 1991. Duli required the arms to overthrow the then existing military rule in Transkei under the leadership of Gen Bantubonke Holomisa. Prior to that time and in or about February/March 1990, De Kock supplied Anton Nieuwoudt with arms for the same objective. The third occasion was after the abortive Duli coup. De Kock again supplied Nieuwoudt with arms for the overthrow of Holomisa and his colleagues in the Transkei. We commence with the political context.
At the relevant time Transkei was governed by a Military Council under Gen Bantu Holomisa who was its Chairman. Initially Duli was one of the closest colleagues and a member of the Military Council and Transkei Defence Force ("TDF"). Later he was killed in the attempted coup which took place on or about the 22 November 1990.
At the hearing before the commencement of the proceedings, the legal representative for Nieuwoudt advised the Committee that the latter was withdrawing his application in this matter and another case in which he was seeking amnesty in respect of the murder of Charles Xhanti Sebe and Onwald Guzana. Counsel further informed the Committee that the reason for the withdrawal of the application was because in their view the facts of the case do not constitute an offence. Pumelele Gumengu's application also could not be heard because he had not attended the hearing. It was agreed that this evidence could be heard later when other applications relating to the Duli attempted coup would be heard, albeit on a different aspect of the matter. We then proceeded with the evidence of the remaining Applicants.
De Kock testified that the joined the South African Police Force ("the SAP") as a young man and was later transferred to the Security Branch of the SAP; he was subsequently transferred to Namibia as a Koevoet member where he spent many years fighting an armed struggle against the military wing of the South West African Peoples' Organisation ("SWAPO"). In 1985 he returned to the country. He was based at Vlakplaas where he initially worked under Brig Jack Cronje. In the same year he took over as the head of the unit. We shall not deal with this evidence pertaining to the Vlakplaas unit and its activities as all that is now common cause. Before he succeeded Cronje he was involved with others in quite a number of gross human rights violations inside and outside the country as a member of the unit. He states that the unit had been involved in such activities long before he joined it and when he took over it consisted of about fourteen (14) or fifteen (15) members and twenty (20) to twenty five (25) askaris viz. those who were previously members of the Umkhonto weSizwe ("MK") and the Azanian People's Liberation Army ("APLA") and were turned by the police. De Kock further testified that the activities of the unit were known to the top echelons of the leadership of the SAP. They approved of them. At the time he believed that such activities were necessary to combat the onslaught of liberation movements in the country and their armed wings. He was very committed to the struggle to fight the liberation movements with all might.
Before we deal with the events relative to this particular matter it is important to mention that De Kock in his initial address referred to a large quantity of arms which he brought from Namibia to Vlakplaas. These consisted of pistols; guns; machine guns; mortars; handgrenades; plastic explosives; TNT; gun grenades a non-backfiring cannon; a 122mm rocket launcher and many launchers for anti-tank purposes; South African and Eastern Bloc made limpet mines; detonators and a myriad of arms. The weapons were secured through liaison between Brig Schoon and Gen Hans Dryer from the Namibian South West African Territorial Force ("SWATF"). No entry was made into the police register for these weapons which were kept at Vlakplaas. De Kock was the only person who enjoyed exclusive access and control over them. Even De Kock's second-in-command, Major Baker, would have to obtain authority from him before he could take weapons. Some of the weapons were taken by the Security Police Head Office and subsequently used in operations. The different regional offices of the Security Police also requested specific weapons which were supplied. De Kock states that initially he kept a written record of weapons which were issued but later he realised that it was not necessary because there was a danger that it could get lost and cause embarrassment to the police and the government of the day. He states that for this reason he ceased to keep such record. According to De Kock the different regions in the country needed the weapons to train their members and askaris on the use of Eastern Bloc arms. They also needed to use such weapons to disguise the actions of the Security Police and askaris as attacks by liberation movements. When the Harms Commission was appointed to investigate the then alleged atrocities by the police on opponents of the previous government De Kock received an order from his superiors to remove the weapons from Vlakplaas. This he did. Members of the press were then allowed to enter the premises and take photographs whilst they were being shown around the place. He says the objective was to create the impression that Dirk Coetzee and Nofemela were lying in their testimonies to the Harms Commission. The weapons were taken to Daisy Farm and Maleeuskop Farm, Security Police Intelligence unit raining facilities. A large quantity was taken to the South African Police College in Pretoria but a bulk still remained under De Kock's exclusive authority and control. These were required for the normal Vlakplaas unit operations and activities.
De Kock has applied for three incidents in regard to which he delivered weapons which were going to be used in prospective coup d'états in the Transkei.
THE FIRST SUPPLY OF ARMS EARLY 1990
De Kock states that he was approached by Commandant Antony Nieuwoudt, a senior Staff Officer of the Directorate of Covert Collections ("DCC") in Pretoria who served under the command of Col Nel and Brig Tolletjie Botha. Nieuwoudt wanted De Kock to supply him with a quantity of weapons, ammunition and handgrenades for a coup in the Transkei. De Kock states that he complied with the request and the weapons were fetched from Vlakplaas and delivered at Bloemfontein to a person who was involved in the first attempted coup in 1990. At that stage those who were plotting the overthrow were based on a farm near Queenstown in the Eastern Cape. This is where they were subsequently arrested and nothing came of the intended coup.
THE SECOND SUPPLY OF ARMS FOR THE DULI COUP IN OR ABOUT NOVEMBER 1990
De Kock testified that in or about 1990 he was approached by Gen Krappies Engelbrecht after the latter had visited the Eastern Cape. He informed him that he had spoken to a well-known businessman there, viz. Chris van Rensberg who was a member of the JALC Company. This was a front company of the Military Intelligence. According to Engelbrecht Van Rensberg was complaining that since the takeover of the reigns of power by Holomisa in Transkei, the Eastern Cape, and East London in particular, was experiencing an economic decline. Transkei was being used as a safe haven for MK and APLA cadres and trade unions had unlimited freedom. De Kock states that at that stage he had no sources of information in Transkei except three (3) former members of the Transkei Security Police who had fled from Holomisa. They were being accommodated at Vlakplaas but this did not mean that Vlakplaas members were working against Holomisa. However, there was a constant flow of information to the Security Police Head Office in Pretoria about the training of MK and APLA personnel in the Transkei and according to the reports, primarily from an MK member who was based in Transkei, Holomisa actively supported the two (2) liberation movements with logistics and material assistance. Engelbrecht suggested to De Kock that he was going to introduce a Transkei businessman. De Kock was supposed to use him as a source of information. Indeed, later he introduced to him Vusi Mbotoli who became De Kock's paid informer. He gave him extensive information on Holomisa's role in assisting the ANC and the PAC in the region.
De Kock states that on numerous occasions he flew Mbotoli to Johannesburg where they met and discussed the security situation in the Eastern Cape, especially in the Transkei region. On one occasion Mbotoli told De Kock that Col Craig Duli, whom De Kock had not met at that stage but had heard of, wanted to meet him as a matter of urgency. He agreed to meet him. They met at Jan Smuts Holiday Inn. It was De Kock, Mbotoli and Duli who was escorted by his security guard. Before the meeting De Kock contacted Nieuwoudt and asked him if he knew Duli. Nieuwoudt assured him that Duli was quite supportive of the government of South Africa and that he should not hesitate to deal with and assist him where he so required.
At the meeting Duli told De Kock that he had "a shopping list" of weapons that he wanted to be supplied with. He stated that he required the weapons for a coup in the Transkei. Holomisa was to be toppled and replaced with Matanzima. This shopping list included assault weapons; handgrenades; machine guns; gun grenades; ammunition for all the weapons; 60mm mortars; 82mm mortars; and mortar bombs of various calibers, anti-tank weapons with launchers and missiles; demolition chargers; and radio equipment which initially did not appear in the list but on De Kock's suggestion it was included. All the weapons were delivered to Duli in Maclear. They had been taken from the Vlakplaas arsenal. De Kock fetched these at Meken (a Vlakplaas disposal) from two shipping containers and other weapons came from individual Vlakplaas unit members. At the meeting De Kock asked Duli on whose behalf he was going to carry out the coup. He replied that he had the support of both the Security Police Intelligence Unit and the Military Intelligence of the SADF. De Kock states that he subsequently reported to Engelbrecht who warned him to be cautious not to be caught. Engelbrecht further commented that it was high time that Holomisa be removed from power.
De Kock stated that thereafter he, W/O Nortje, W/O Snyman and W/O Vermeulen left for East London where they met Duli. Upon De Kock's arrival in East London Duli immediately requested four (4) AK47 assault rifles with magazines and sixteen (16) handgrenades which were supplied. This particular meeting was held at Osner Hotel where Duli had rooms from where he master-minded the operation. (De Kock heard later from Nieuwoudt that this particular set of arms was supplied to four (4) of his agents who took it to Transkei where they were going to act as watchdogs, in the event of things going wrong).
Later that day De Kock learnt from the radio reports that the coup had failed and that Duli had been captured. At that stage De Kock and his companions were still in East London but there was nothing they could do to salvage the situation. He says whilst they were at Osner Hotel Nieuwoudt and Clive Brink arrived. This was merely a coincidence because the meeting had not been arranged. The two were very disappointed and frustrated that the coup had not been successful. They were consuming alcohol and in the course of the conversation De Kock told Nieuwoudt that he had supplied the weapons for the Duli attempted coup. Nieuwoudt was not aware of this fact. Nieuwoudt said the overthrow should not be seen as a failure at that stage because there were four (4) other people with AK47 rifles, magazines and grenades. They were going to continue fighting. He was referring to the weapons which were supplied by De Kock.
After the incident De Kock continued his contact with Nieuwoudt who three (3) weeks later told him that Duli was severely tortured by members of the TDF before he was shot and killed. He also maintained his sources in the Transkei and he was able to warn Nieuwoudt of plans in the Transkei to overthrow Brig Oupa Gqozo in the Ciskei. He also received intelligence reports from the East London Security Police which confirmed the information he obtained from his sources.
De Kock states that the overthrow of Holomisa in the Transkei was necessary to install a sympathetic government to the National Party regime. According to the plan Kaizer Matanzima would be installed as the head of State and Duli the Chief of the TDF and Holomisa and his companions who were seen to be fervently supporting the ANC and the PAC would be ousted. He states that at the time there were constant reports of attacks by PAC cadres on whites and military bases had been established in the Transkei. If the overthrow had been successful the SAP, and Vlakplaas unit members in particular, would have entered Transkei and arrested all ANC and PAC cadres who were hiding there. They would have been able to destroy the many arms caches which existed there.
THE THIRD SUPPLY OF ARMS IN OR ABOUT FEBRUARY/MARCH 1991
After the unsuccessful Duli attempt to depose Holomisa, De Kock was once again approached by Nieuwoudt who requested to be supplied with arms. He specifically requested Eastern Bloc demolition chargers and seven (7) missiles. De Kock complied with the request and, accordingly, a large quantity of arms which was more than what was previously supplied to Duli was delivered to Mr Casper Kruger who was under the command of Nieuwoudt. De Kock further testified that when he supplied the weapons he did so without any aim to benefit himself. He states that he did so with a political objective viz. to have a government installed in the Transkei which would be sympathetic to the National Party regime. No offer of remuneration had been made to him. He continues and says:
MR DE KOCK: No Chairperson, but the evening before we departed, the members who helped me with supply of these weapons to Commandant Nieuwoudt, the same evening Commandant Nieuwoudt visited me and placed a white bag on my bed at which he said there was something here for me. When I asked him what it was, he said I had to have a look at it, it was for me. I opened the bag, it had money in it, notes."
MR HATTINGH: Did you know how much money was in there?
"MR DE KOCK: No Chairperson, I did not count it. I was surprised. I told him that I did not want it and he told me that you must take it. He had seen to himself and the other members. I took the money and I loaded it into my vehicle, where it lay there for about two or three weeks. After I discovered, during those two or three weeks, that it was an amount of about R130 000 to R140 000. Initially I did not know what to do with the money. It sounds strange, but that is true. I later bought a plot in Pretoria, which I gave to W/O Nortje when he told me that he and his wife wanted to buy a house or wanted to build a house and I gave this plot to him. I think it was worth, it cost about R96 000 or R97 000 and the rest of the money, I bought a second plot with a house on it, which I gave to Capt Kobus Klopper. Initially I would have stayed there myself, but Klopper approached me if I could assist him as I did with W/O Nortje which seemed like blackmail to me, but it was not important to me and I gave this plot to him. I must mention here that there was no benefit to me from any of these actions."
De Kock maintains that no promise of remuneration was made to any member of his unit before, during or after the supply of the arms. This is quite a troubling aspect of the matter because Vermeulen in his affidavit states that he was promised that he would receive a plot for his participation in the supply of arms. (We shall deal with Vermeulen's and Nortje's evidence later)
The questioning of De Kock on the matter elicited the following. The money was far less the value of the arms which were worth about R1.5-million to R2-million; Nieuwoudt was deeply committed to the idea to remove Holomisa; when De Kock met Duli it was clear that he knew how he was going to execute this coup, and he needed no advice from him; he was told by Nieuwoudt that some of the men that were involved in the Duli coup were his paid agents.
De Kock further states that all the Vlakplaas unit members who came to East London with him were not aware of the real purpose of their presence in the Eastern Cape. All they knew was that the trip was part of their normal function of tracking down MK and APLA cadres. They did not know that a coup was being planned by Duli and all was done on a "need to know basis".
Nieuwoudt's legal representative put it to De Kock that Nieuwoudt denies that he made any financial gain for himself and his agents as alleged by him. De Kock very vehemently stands by his testimony that he was told by Nieuwoudt that the money was part of a false claim which he made to Brig Oupa Gqozo. He said he had told the latter that the weapons were purchased in Mozambique for R300 000. Nieuwoudt further told him that he had already paid all his agents and that he had taken care of himself as well.
Accordingly to Nieuwoudt amongst the properties he purchased himself were two (2) motor fishing boats and a Land Rover to tow the boat, and a house near the Gonubie River Mouth in East London. He does not know the total amount that was gained by Nieuwoudt from the operation. This is also denied by Nieuwoudt.
De Kock states that he did not know what to do with the money and, for that matter, even if it was stolen it would not have mattered to him because his attitude was that it was not his money. He never told anyone of his superiors such as Engelbrecht about the money. When he bought the two (2) plots which he initially registered in his name this was just a way of getting rid of the money from Nieuwoudt and when he later donated the plots to Nortje and Klopper the latter did not know where the money came from.
Nortje testified that on a certain day during 1990 De Kock told him that Nieuwoudt and Hendrik van der Westhuizen, also a member of the DCC, were involved in plans to topple Holomisa in the Transkei. According to De Kock the two officers had requested to be supplied with arms for the stated purpose. De Kock gave him orders to make the necessary preparations and they collected weapons. At that stage there was no mention of Duli but later his name featured in the discussion. It took him two weeks to collect the arms from the different places where they were being kept. He was being assisted by Vermeulen and Snyman who had similarly received orders from De Kock. Then later De Kock said he was going to meet Duli. According to De Kock the meeting with Duli was going to be arranged by Van der Westhuizen. On the day of the meeting which was held at the Johannesburg Holiday Inn, Van der Westhuizen was present. Nortje says Duli was also present and it was clear to him that he was the person who was going to effect the coup. Duli insisted that he wanted to have a private discussion with De Kock. There was also a coloured body guard who escorted Duli. After the meeting Nortje was told by De Kock that Duli did not want to disclose his plans for the carrying out of the coup. This he wanted to keep to himself. Whilst De Kock and Duli were busy discussing in one corner of the room both Nortje and Van der Westhuizen were present in the same room, but they occupied a different corner. That is why they could not hear what was being discussed by the two.
A week or two later two groups travelled to East London with arms. One group comprised Marthinus Ras, Dave Baker and Hoffie Hoffman. They were not told why they had to go there and were only told that the trip was part of their normal duties. The second group were Nortje and himself, De Kock, Snyman and Vermeulen. his group left a day later with a Cressida vehicle. On their arrival in East London they went to the holiday resort and then the other members went to Windsor Cabanas.
They next day they attended to the packaging of the weapons which they sealed in black refuse bags. Discussions took place in the Osner Hotel bar. Nieuwoudt, Clive Brink and other members of the Ciskei Military Intelligence whose names are unknown to Nortje also took part in the discussions about the place and time for the handing over of the arms to Duli. Nortje says they had hired a kombi vehicle from Avis for the delivery of the arms and when Duli requested to be supplied with four (4) AK47 rifles and sixteen (16) magazines it was agreed that these could neither be given to him in the premises of the hotel nor anywhere in the East London beach front vicinity. It was arranged that Nortje and his companions drive to the East London West Bank motor car race course where Duli and his men were supplied with the first load of arms. In the evening of the same day they drove to Maclear where they gave a large quantity of arms to Duli.
Nortje then deals with the question of financial gain. In his founding affidavit he states that De Kock, Nieuwoudt and Henry van der Westhuizen were the main role players in the operation and benefited immensely from the supply of arms to Duli. At the hearing he retracted this statement and said he was referring to the rumours which he heard after the attempted coup. He further states that he never received any financial gain for his participation in the incident and he did not take part with the intention to benefit himself. There was no mention of benefit before or after the mission had been carried out. The plot which was given to him by De Kock had nothing to do with his participation in the supply of arms for the overthrow of Holomisa. Under cross-examination it emerged that Nortje did not know about the first supply of arms and subsequently learnt about it from De Kock. Nortje denies that he and his wife approached De Kock with a request for a plot and says what had happened was that in or about 1992 De Kock gave him the plot as a gesture of goodwill. De Kock said to him he was giving him the plot for everything they had done together, referring here to the fact that they had worked together for over ten (10) years. Similarly, De Kock gave other Vlakplaas members gifts of goodwill.
Ras testified that he was a member of the Vlakplaas unit until 1993 when it was disbanded. He took part in many of its covert operations. This is one of about eighteen incidents for which he has applied for amnesty. At all times he acted within the command structure of the unit viz. initially under the Col Jack Cronje and later De Kock. He states that he was not part of the delivery of arms from the Vlakplaas unit to Duli and, for that matter, was not even aware that there was going to be an attempt to topple Holomisa. He did not understand this to be the purpose of their travelling to East London. All he knew was that the trip was part of the routine activities of tracing MK and APLA cadres. When they checked in at the hotel he was still not aware of the real purpose and when he saw Snyman and Vermeulen a day after they had arrived, he was surprised. He was not expecting to see them there. When he walked over to them he noticed that their bakkie contained "these things (which were wrapped in black bags, (and) they were rather surprised to see me there". He did not ask them what was in the bags. They had a short discussion and thereafter Vermeulen and his group left. They checked out of the hotel and later in the day he saw Nortje in town (East London). He told him that they had brought arms for a coup in Transkei. The next day they were called by De Kock into a safe house which had been provided by the East London Security Police. Also present were askaris who had travelled with him from Vlakplaas. De Kock told them that there was going to be a coup in Transkei and that they should follow the developments from the radio in order to enter the territory as soon as the coup was completed. De Kock further told them that on entering the region they should identify and arrest MK and APLA cadres who were hiding there.
Ras states that he was in favour of a coup in Transkei because Holomisa did not allow members of the SAP to enter the region to apprehend MK and APLA cadres. He believed that the operation had been authorised from the top of the military and Security Police leadership in the South African government. He never saw Nieuwoudt in East London but was told by Nortje that he had come to the hotel for discussions. He concluded his evidence and said that although he was not part of the plan to supply arms to Duli for the coup when he became aware in East London of what was happening he supported the action and, being a policeman, he knew that this was a violation of the law, but kept quiet and never reported the incident to the authorities. It is for this offence that he is seeking amnesty. Further, he never received and is not aware of any participant in the incident who received any gain for participation. He heard for the first time at the hearing that Nortje and Klopper received plots.
Snyman testified that in or about 1992 he received orders from De Kock to fetch weapons with the purpose of delivering them in East London. They fetched some of the weapons from the stock pile that was in their offices. Other weapons were secured from different Vlakplaas members who were keeping them. There were also those that came from the Police College. All these were weapons which originally came from Namibia. Snyman states that he received a specific instruction to remove the serial numbers on the arms. The arms were loaded into two bakkies and transported to East London. The Applicant then confirms the other Applicants' evidence pertaining to their delivery to Duli. He states that at the time he knew that the weapons were going to be used to effect a coup in Transkei and further believed that such action was necessary to stop the activities of the ANC/SACP Alliance. According to Snyman there was no mention of promises or gifts except that during the discussions prior to the delivery of the weapons De Kock made a joke that if the coup was successful they would each be rewarded with a plot, in which event they would have to live in Transkei. He says this is, however, not the reason why he took part in the operation but it was because it was part of his duties to fight opponents of the government of the day. Snyman states that he was only involved in the first and second supply of arms and (he) is not aware of the third consignment whereafter De Kock obtained money from Nieuwoudt. Vermeulen testified and confirmed his co-Applicants' evidence about the source of the orders; what they believed was the political objective of the operation and that his actions were not for personal gain. He never received any reward for his role in the mission.
We have very carefully considered the evidence in the matter, we are, first of all, satisfied that the Applicants have complied with the formal requirements of the Act. We accept that the offences committed are "acts associated with a political objective: as required by the Act. There can be no doubt that the military government of Holomisa at the time was seen to be less than enthusiastic to act against members of MK and APLA in the territory. It is also well known that the relations between the authorities in the Republic of South Africa and Holomisa soured to the point that in 1993 South African Security Forces launched a raid in Umtata, allegedly in search of APLA military bases. We are also satisfied that the Applicants have made a full disclosure of the relevant facts. There is also no evidence that when the Applicants carried out the operation they did so with the intention to make a personal gain from it. At the hearing counsel for De Kock, Adv Hattingh submitted a very thorough and well researched argument on the vexing issue of "acted for personal gain". We accept that if an Applicant receives a gift after completion of an operation, such a person cannot be said to have acted for personal gain, in the absence of such evidence at the time the act was carried out. In the circumstances is also cannot be said that when Nieuwoudt gave De Kock the bag containing money it was specifically for the supply of arms to Duli. According to De Kock he said: "Vat dit vir al die dinge wat ons saam gedoen het". Meaning: ("Take this for all the things we have done together"). This could include the time they were together in Namibia as Koevoet members. In this respect it is also important to bear in mind that at the time the bag that contained the money was given to De Kock, it was only the two of them in the room. De Kock could very easily have kept quiet about the money. But he did not do so. There is also no evidence that those who acted on his orders did so with the intention to make a personal gain. There was no such discussion prior to the operation. They were not even aware of the money which was given to De Kock by Nieuwoudt.
In the result amnesty is GRANTED to all the Applicants for the following offences:
1. Supplying of arms for the attempted coup d'état in Transkei in or about March and November 1990;
2. Conspiracy to murder members of the Transkei Defence Force;
3. Any contravention in terms of the provisions of the Arms and Ammunitions Act 75 of 1969 and;
4. Any contravention in terms of the Explosives Act 26 of 1956 and
5. For any offence or delict flowing from the supplies.
Eugene Alexander De Kock is further GRANTED amnesty for supplying Anton Nieuwoudt with arms in preparation for the attempted coup d'état in Transkei in or about February/March 1991.
Ras is GRANTED amnesty for conspiring to murder Bantubonke Holomisa in or about 1990, and being accessory to the attempted coup in Transkei. Evidence was led that after the supply of arms to Duli he was aware that a coup was being contemplated, yet he did nothing to prevent such eventuality. He also listened to the radio whilst the attempt was being effected. He also testified that he had suggested to De Kock that Holomisa be killed. At that stage he had already taken the initial steps of collecting information regarding Holomisa's flight details and the routes he would take when he drove from the East London Airport to Transkei. However, the matter was not taken any further than that because De Kock advised that such action was unnecessary.
SIGNED AT CAPE TOWN ON THIS THE 20TH DAY OF MARCH 2001
JUDGE S MILLER
ADV N SANDI
MR JB SIBANYONI
