DECISION
The Applicants apply for amnesty for various acts and offences which arose as a result of an attack on an alleged transit house in Diratapeng, Ramatlabane in Botswana on the 11th December 1988.
The operation was conducted under the command of Eugene Alexander de Kock and his Vlakplaas team but included members of the National Defence Force's Special Forces allegedly because in terms of the then guidelines regulating cross-border operations, the South African Police could not on its own conduct such an operation without the inclusion of the Defence Force in whose area of jurisdiction, such operations ordinarily fell. The Special Forces members who were instructed by their superiors to participate therein were Jacobus Christoffel Erasmus and Billy Boucher.
The operation was conducted pursuant to information received from inter alia, the Bophuthatswana Intelligence Services and after an extensive surveillance conducted by De kock, Ras Radebe, Nortje for almost 3 months prior to the execution of the operation.
The Applicants testified that the house was attacked because from the information received from sources and from their own surveillance the house was used as a transit house and their objective was to destroy the house by means of explosives and kill the occupants therein who were believed to be either ANC members or collaborators. Permission for this operation had been received from both Brig Schoon who was then head of Vlakplaas and Brig Loots within whose jurisdiction the targeted house fell.
The operation was not carried out in accordance with the original plan because whilst the Applicants were strategically placing explosive cables around the out building structure Y, which was known to accommodate the alleged infiltrators, one of the ANC activists came out and noted the presence of the police on the premises, and a shooting between the activists and the police resulted. During this operation the outbuilding structure was also bombed with explosives prepared by Vermeulen resulting in the complete destruction of one of its walls. Miraculously, one of the activists Steven Bahumi survived even though he was buried under the thick debris of bricks. During this attack three people were killed and a thatched rondawel and the main house were set on fire. The other occupants in both the outbuilding structure and the main house narrowly escaped from the clutches of death.
We do not intend to give a detailed summary of facts in view of the admissions made by the survivors of the attack, Mr Funi Steven Lesole and Steven Bahumi (Aka Moshengu), who gave evidence before this Committee in relation to this incident. It will be sufficient for our purposes to briefly deal with each Applicant's participation.
N J VERMEULEN
He was an explosives expert who manufactured the explosive device that was used in the destruction of the outbuilding structure Y. H also set on fire a thatched rondawel in the premises because he believed that it facilitated the purpose for which the targeted house was used.
WILLEM ALBERTUS NORTJE
He was part of the surveillance team that reconnoitred the house a week before the operation was launched. He assisted Vermeulen with the strategic placing of the explosive device in the outbuilding structure Y. He was armed with an Uzzi, for purposes of carrying out the operation.
LAWRENCE JOHN HANTON
He participated in the planning of the operation under the command of De Kock. However, he did not illegally gain entry into Botswana but remained at the base in order to render support to the other Applicants.
BELLINGAN, TAIT AND HOFFMAN
They participated in the planning of the operation but did not gain entry into Botswana.
MARTHINUS RAS
He participated in the planning of the operation and headed the surveillance team that observed the transit house prior to the execution of the operation. He participated in the planning and the execution of the operation and in particular shot the deceased Rapula Thika.
EUGENE ALEXANDER DE KOCK
He was in command of this operation and participated in its planning and execution.
SIMON RADEBE
He participated in the surveillance of the transit house and participated in the planning and execution of the operation.
It is vitally important to note that there was no dispute on the evidence given by the Applicants and that given by the victims regarding the objective of the attack on the house and how the attack was carried out, save for the type of firearms which were used by the Applicants. Whilst the Applicants who were on the scene of the attack persisted that only Uzzis and a pachete were used, Mr Lesole stated that much more powerful guns like the RPG 7 (Bazookas) were used in the operation. We do not consider this to be material in our determination of whether the Applicants have complied with the requirements of full disclosure.
Mr Marimbane, the legal representative of the survivors and the families of the victims, did not oppose the granting of amnesty to the Applicants for all acts and offences applied for save for the killing of Rapula Thika, who was 15 years old.
The pivotal issue to consider by this Committee is the justification for the killing of Thika, in the light of the evidence tendered that he did not ordinarily reside at the targeted house nor its premises but had, on the night in question, been visiting his friend Kuntakana who resided at the premises of the targeted house. in this regard evidence was given by Lesole that Kuntakana had indeed assisted the ANC activists in checking the security situation at the border and had prior to the execution of the operation been interrogated by the South African Police concerning the purpose for which the house was used, as testified to by the Applicants. The Applicants had also contended that Kuntakana was seen as a collaborator of the ANC and as such was eligible for elimination in terms of their general mandate. What is instructive is that Lesole conceded that Rapula Thika may have been reasonably mistaken for Kuntakana by the Applicants because they were of the same build and height. In the light of the fact that Kuntakana was not well known by Ras, having interrogated him only once and the fact that their operation was carried out at night, it is also our view that such a mistake was reasonable.
Furthermore, having regard to Lesole's concession, we do not consider it to have been unreasonable for the Applicants to have mistaken Rapula Thika for Kuntakana. We also accept the political motivation advanced by the Applicants for the killing of Kuntakana and find that the killing of Thika was an act associated with a political objective.
After careful consideration of all these applications we are satisfied that the Applicants have complied with the requirements of Section 20(1) read with Section 20(3) and amnesty is accordingly GRANTED to:
EUGENE ALEXANDER DE KOCK
in respect of the following:
1. The murder of Mr Mapua and Rapula Thika;
2. 6 counts of attempted murder (Bahumi, Lesole, Kuntakana, Tabane, Mrs Lesole and unknown person)
3. Defeating the ends of justice;
4. Illegal possession of explosives in contravention of the Explosives Act;
5. Illegal possession of firearms and ammunition;
6. Illegal crossing of the border;
7. Arson to the main house and thatched rondawel;
8. Malicious damage to property and all delicts flowing from the above acts.
MARTHINUS RAS
in respect of the following:
1. The murder of Mr Mapua and Rapula Thika;
2. 6 counts of attempted murder (Bahumi, Lesole, Kuntakana, Tabane, Mrs Lesole and unknown person)
3. Defeating the ends of justice;
4. Illegal possession of explosives in contravention of the Explosives Act;
5. Illegal possession of firearms and ammunition;
6. Illegal crossing of the border;
7. Arson to the main house and thatched rondawel;
8. Malicious damage to property and all delicts flowing from the above acts.
TAIT, BELLINGAN, HOFFMAN AND HANTON
in respect of the following:
1. Conspiracy to kill an undetermined number of ANC activists and collaborators;
2. Murder of Mr Mapua and Rapula Thika;
3. Arson to the main house and thatched rondawel;
4. Malicious damage to property.
VERMEULEN
in respect of the following:
1. The murder of Mr Mapua and Rapula Thika;
2. 6 counts of attempted murder (Bahumi, Lesole, Kuntakana, Tabane, Mrs Lesole and unknown person)
3. Illegal possession of explosives in contravention of the Explosives Act;
4. Illegal possession of firearms and ammunition;
5. Illegal crossing of the border;
6. Arson to the main house and thatched rondawel;
7. Malicious damage to property and all delicts flowing from the above acts.
SIMON RADEBE
in respect of the following:
1. The murder of Mr Mapua and Rapula Thika;
2. 6 counts of attempted murder (Bahumi, Lesole, Kuntakana, Tabane, Mrs Lesole and unknown person)
3. Illegal possession of explosives in contravention of the Explosives Act;
4. Illegal possession of firearms and ammunition;
5. Illegal crossing of the border;
6. Arson to the main house and thatched rondawel;
7. Malicious damage to property and all delicts flowing from the above acts.
NORTJE
in respect of the following:
1. The murder of Mr Mapua and Rapula Thika;
2. 6 counts of attempted murder (Bahumi, Lesole, Kuntakana, Tabane, Mrs Lesole and unknown person)
3. Defeating the ends of justice;
4. Illegal possession of explosives in contravention of the Explosives Act;
5. Illegal possession of firearms and ammunition;
6. Illegal crossing of the border;
7. Arson to the main house and thatched rondawel;
8. Malicious damage to property and all delicts flowing from the above acts.
We are of the opinion that the survivors Mr Funi Steven Lesole, Steven Bahumi and the families of the victims are victims, as defined by the Act, and are hereby referred to the Reparations and Rehabilitation Committee in terms of Section 22 of the Act.
SIGNED ON THIS THE 3RD DAY OF APRIL 2001
JUDGE R PILLAY
JUDGE S KHAMPEPE
ADV F BOSMAN
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