DECISION
INCIDENT 1: The first 5 Applicants apply for amnesty for the abduction, assault and killing of Sipho Stanley Bhila near Durban on 22 February 1987.
INCIDENT 2: The 4th, 5th, 6th, 7th, 8th, 10th and 11th Applicants apply for amnesty for the abduction from Swaziland and killing at Elandskop of Phila Portia Ndwandwe, also known as MK Zandile, towards the end of October 1988.
INCIDENT 3: The 4th, 5th, 6th, 7th, 8th and 9th Applicants apply for amnesty for the abduction, assault and killing of Phumezo Nxiweni at Durban on 4 and 5 November 1988.
INCIDENT 4: The 4th, 5th, 6th, 7th and 8th Applicants apply for amnesty for the abduction, assault and killing of Sibusiso Ndlovu, Amanzi Vilakazi and Elias Gift Matjale and the disposal of their bodies by explosives at Durban on 18 November 1988.
The 4th Applicant, who had passed away prior to the hearing being held, and the 10th Applicant, who at the time of the hearing was overseas, did not testify at the hearing. All the other Applicants gave oral testimony.
At all times relevant to the acts for which the applicants apply for amnesty, the 1st, 2nd and 3rd Applicants were members of a unit of Vlakplaas working with the Durban Security Branch of the South African Police under the command of the 4th Applicant who held the rank of captain and was at the head of C-section. The 5th Applicant was a warrant officer at the Durban Security Branch, also falling under the command of the 4th Applicant. The 6th Applicant was a colonel and overall commander of the Durban Security Branch. The 7th Applicant was a major and head of the intelligence unit, C-section, reporting to the 4th and 6th Applicants. The 8th and 9th and 10th Applicants were respectively a major and sergeants in the unit. The 11th Applicant was a colonel and the head of the Midlands Security Branch, stationed at Pietermaritzburg.
The evidence, which is common cause among the Applicants, can be briefly summarised as follows:
At all relevant times, Natal and particularly the Durban area, was a hot spot of political violence. Act of terror and sabotage were the order of the day. The ANC carried out various military operations and its strategy was to infiltrate MK cadres into the area which compromised the internal security and which was the duty of policemen, more specifically the Security Branch's, to maintain. Organisations aligned to the ANC worked to promote civil disobedience and anarchy. The aim of the ANC was to render the country ungovernable. Policing in general became increasingly difficult as so-called "no-go areas" were created. Policemen became "legitimate targets", they themselves becoming targets for assassination when policing the townships. All this happened while a state of emergency was in force. The state of emergency was proclaimed on 21 July 1985 and only lifted on 18 October 1990 in Natal, some four months after it had ended in the rest of the country. The pressure derived from their superiors and from politicians' public utterances increased. They were to turn the tide and normalise the situation. They were not to allow an ANC/SACP government taking control. They had to combat the struggle at all costs.
In 1986 it was discovered that the ANC had established an Area Political Military Committee (APMC) in Natal that committed a number of acts of violence, terror and sabotage in Natal. The unit, under the command of the 7th Applicant, successfully uncovered their operation, conducted under the code name Operation Butterfly. 54 persons were arrested on the 23rd December 1986. A number of them made statements to the police in terms of Section 29 of the Internal Security Act and were released, some of them to be used as State witnesses. 12 persons were charged in State vs Buthelezi and 11 others, Case No. CC70/86. This was later to become known as the Ramlakan Case. 9 of the 12 accused were convicted. Because of a lack of evidence, resulting from a last minute refusal of the State witness, Lulamile Khate to testify, three of the accused were discharged. These included Sipho Stanley Bhila, the victim of the first incident and Phumezo Nxiweni, the victim of the third incident. Phila Portia Ndwandwe was among the 54 originally arrested but released after having made a statement, to be called as a State witness and listed number 38 in a list of 72 witnesses. She, however, left the country and did not testify. The three of them were all involved in Operation Butterfly.
INCIDENT 1
Sipho Stanley Bhila (Bhila) was acquitted in the Ramlakan Case on 18th February 1987. Apart from being involved in Operation Butterfly, he was also suspected to have been involved in the Amanzimtoti bombing with Andrew Zondo.
The first three Applicants arrived in Durban as part of a unit from Vlakplaas under command of the 1st Applicant on 10th February 1987 and reported for their deployment with the 4th Applicant. On about the 20th February the 1st Applicant was briefed by the 4th Applicant that Bhila, who despite his activities, had been acquitted on all charges because of a lack of evidence, was to be abducted and killed. He was told by the 4th Applicant that it was in the interest of the safety of the State as there was no other way to stop him from carrying on with his activities.
The 1st Applicant instructed an askari from Vlakplaas, Ernest Ramatala, who worked under his command, to contact Bhila, pretending to be a member of MK and tell him that the ANC wanted him to leave the country. The meeting was arranged and on 22 February 1987 Bhila was intercepted near Lamontville by the 1st, 2nd and 3rd Applicants. He was taken first to an old railway shooting range at Winkelspruit and in the evening taken in a vehicle by the 1st, 2nd, 3rd, 4th and 5th Applicants and one Michael Lembede, who was also a member of the Durban Security Branch and who was later killed in a shoot-out with MK members, all of them under the orders and command of the 4th Applicant, to a deserted place off the Umbumbulo road at the edge of a steep cliff, whereupon he was killed by the 1st and 2nd Applicants firing shots into the back of his head and his body thrown down the cliff. The weapons that they fired with, .25 Baby Browning pistols, were not authorised issue, they possessed them illegally. He was never interrogated nor assaulted during the operation. The objective was simply to kill him and dispose of his body.
Ernest Ramatala was called as a witness by the leader of evidence. His evidence, although deviating on non-material aspects, corroborated the evidence of the Applicants. There were also a number of contradictions and discrepancies in the evidence of the Applicants, all of which are not material and can be ascribed to the lapse of time, resulting in loss of memory and faulty constructions.
The Committee is satisfied that the incident occurred within the context of the conflicts of the past, that the acts of the Applicants were associated with a political objective and that they have made a full disclosure of all material and relevant facts.
They are accordingly GRANTED amnesty for the abduction of Sipho Stanley Bhila who in the opinion of the Committee is a victim as envisaged by the Act. His particulars and those of his next-of-kin are being referred to the Reparations and Rehabilitation Committee for its consideration.
INCIDENT 2
Phila Portia Ndwandwe (Ndwandwe) after her arrest, statement and release, left the country during 1986 and according to information received military training in Angola. She then went to Swaziland where she soon became MK Commander for Natal operations. The Durban Security Branch continued to receive regular reports about her activities from informers placed in Swaziland. The terrorist activities continued under her command in the area of Port Natal and during October 1988 the 6th, 4th and 7th Applicants decided that she had to be neutralised and killed. If, however, she could be persuaded to turn and work with the Security Branch, she could be of immense value to them. It was therefore decided to first abduct her from Swaziland in an effort to recruit her, failing which she would be killed.
A plan was devised and put into operation. The 11th Applicant, who commanded the Midlands Intelligence desk, was ordered by the 6th Applicant to participate. The application of the 10th Applicant is based on his servicing and preparing one of the vehicles to be used by the other Applicants in the operation, full knowing that it was to be used for the abduction. The 4th, 6th, 7th and 11th Applicants travelled together in the 4th Applicant's vehicle (Taylor's car) from Durban to Onverwacht border post where the 6th Applicant remained at a vacant police house while the other three crossed into Swaziland, using false passports.
The 5th and 8th Applicants travelled, with two informers that knew Ndwandwe, in a Toyota minibus (the Kombi) and an Isuzu bakkie (the bakkie). All the vehicles were fitted with false number plates. They too travelled to Onverwacht where the two informers "jumped the fence" (illegally crossed the border). The 5th and 8th Applicants crossed at the border post and in Swaziland met up with the informers who on their own travelled in the bakkie to meet with Ndwandwe. At the George Hotel in Manzini the informers, waiting in the bakkie, were approached by Ndwandwe. She got into the bakkie with them and they drove from Manzini towards the Sipho Fanene turn off where the Kombi was waiting. Ndwandwe was transferred, without any force being used, to the Kombi. In the meantime, the 4th, 6th, 7th and 11th Applicants were observing all of this from Taylor's car, being in radio contact with the Kombi. Ndwandwe's hands were tied with masking tape and the 7th Applicant also got into the Kombi with Ndwandwe. They all drove to Sipho Fanene, to Big Ben, to Ntoko and towards Lavumisa and then towards Hlubi where they again transferred Ndwandwe. The 5th and 8th Applicants took over the bakkie and the 7th Applicant and Ndwandwe got onto the back of the bakkie, partially covering themselves as it had just begun to rain. While the other vehicles and Applicants, with the informers, crossed the border at Golela, the bakkie proceeded to Onverwacht. Close to the border post the 7th Applicant and Ndwandwe illegally crossed through the border fence where they were met by the others. From there they travelled to the police house where the 6th Applicant had been waiting for them. The purpose of his waiting there having been to be able to react should anything go wrong. As it was, everything went like clockwork. It was too late for the 5th and 8th Applicants to return as the border post had already been closed. They only joined them the next morning early. That same evening of their arrival at the police house, the 7th Applicant started to interrogate Ndwandwe with a view to recruiting her. At first she was reluctant to respond to questioning. She was treated nicely, was never assaulted and later began to respond, confirming information known to them and providing some information that was new to them. She inter alia told them that the Pinetown Post Office limpet mine explosion of the 12th of August, as well as a number of other incidents, had been the work of units under the command of Phumezo Nxiweni (Incident 3). As the main purpose of the interrogation was Ndwandwe's recruitment, the 7th Applicant particularly searched for signs that she might co-operate as an informer. She was made a direct offer to become an informer. None of the signs he was looking for was forthcoming, not in her body language, nor in her communication. She did not raise the issue of her safety. She did not ask who else would know of it or how communications would work.
The next morning they travelled to a safe house on a farm Elandskop near Pietermaritizburg of which the 11th Applicant had use. Both on the way there and at Elandskop the 7th Applicant continued with his questioning of Ndwandwe. Although she continued to co-operate, none of the signs that she may work with them was forthcoming. It became clear that she would not be turned, certainly not without some delay which would render it impossible to replace her in Swaziland without her finding it impossible to explain her absence and whereabouts over a longer period of time. It was never their intention that Ndwandwe would be charged and prosecuted. They could in any event not prosecute following an abduction from Swaziland. On the other hand there was no way in which she could be released to continue her activities. In addition, not only would the two informers; safety now be compromised, but the exposure of the whole informer network would be at risk. The 7th Applicant returned to Durban, leaving Ndwandwe in the custody of the 4th Applicant and taking the two informers with him. The latter were in no way involved with Ndwandwe other than as described above.
During the further course of the day Ndwandwe was interrogated by two members of the Eastern Transvaal Security Branch, they having been advised by the 4th Applicant that she was in his custody. The 6th Applicant personally then interrogated Ndwandwe to satisfy himself that she could not be turned. She told him that she would not co-operate with them and specifically stated that she would continue her activities should she be released. He then gave the 4th, 5th, 8th and 11th Applicants the order to eliminate her and left.
The 5th and 8th Applicants then dug a grave while the 4th and 11th Applicants remained with Ndwandwe, the 4th Applicant communicating with her in Zulu. The 5th and 8th Applicants returned to the house. They told Ndwandwe that she was again to be transferred somewhere else. She was blindfolded and led to the grave some fifty to eighty metres from the house among high trees. The 5th Applicant hit her on the head with a baton which rendered her unconscious. He then shot her in the head. She was derobed and placed in the grave. Lime was sprinkled over the body which was then covered with plastic bags and the grave filled with soil.
Contradictions and inconsistencies in the evidence of the Applicants were not material and can be ascribed to the lapse of time and resulting loss of memory or faulty constructions. In the case of the 4th Applicant, evidence was adduced to the effect that he had suffered from memory losses at the time of his completing his application for amnesty flowing from the advanced stage of cancer of the brain which soon thereafter ended in his death.
In our opinion, the only issue that was seriously pursued by the lawyers of the family of Ndwandwe and by the Committee's Evidence Leader was the failure and refusal of the Applicants, more specifically the 7th Applicant to disclose the names of the informers with whom Ndwandwe got into the bakkie at the George Hotel in Manzini. They conceded that it was in fact trite law that the identity of informers, as a general rule, ought to be protected. In the present instance however, it was argued that they were in effect co-perpetrators of the Applicants in that they had lured Ndwandwe into the vehicle under some false pretext and by prior agreement effectively handed her over to the Applicants at least full knowing that she was to be abducted. As co-perpetrators they are therefore not informers in the classic sense of the word. The Committee was asked to rule that the Applicants were obliged to disclose the names of these informers and should they refuse to disclose that amnesty be refused for their failure to do so. The Applicants argued that even if under the circumstances the informers were regarded by the Committee to have been co-perpetrators in the abduction, they would still be entitled to the protection of their identity as informers. One of the main considerations for the protection of the identity of informers, is the regard for their personal safety. In the present circumstances they claimed that the personal safety of the informers and even their lives were at stake. Should the Committee rule that they had to disclose their names they would still refuse rather risking the refusal of amnesty.
The Committee did not make a ruling. It was agreed that the 7th Applicant would approach the informers and enquire as to whether they would be prepared to, of their own accord, disclose their identities. The hearing was postponed. The Committee was subsequently informed that the informers expected of the Applicants to under no circumstances disclose their identities and that they would under no circumstances join the process.
The Committee has therefore to decide whether the failure to disclose the names of the informers places the Applicants in breach of their obligation to make "a full disclosure of all relevant facts" as envisaged by Section 20(1)(c) of the Act on the Promotion of National Unity and Reconciliation, Act 34 of 1995 (the Act).
The Committee firstly considered whether the informers in the present instance were to be regarded as co-perpetrators. Now it has to be said that in every instance where the identity of an informer is an issue, such an informer must have by definition contributed to the eventual outcome of the incident. Such information could relate to the activities of a person, to her whereabouts and even to presence at a specific place at a specific time. It could certainly entail the pointing out of a person to a policeman who may there and then apprehend the person so pointed out.
In the present instance it is common cause that the informers to the 7th Applicant for approximately a year prior to the abduction of Ndwandwe. They had been giving information to the 7th Applicant on a wide range of issues and persons not related to Ndwandwe's person or her activities. The Committee is mindful that on the evidence before the Committee, corroborated by documents introduced by the leader of evidence, the informers, other that leading Ndwandwe directly into the trap set by the Applicants played no active role nor even physically restrained Ndwandwe. On the facts of evidence before the Committee it is tantamount to a situation where the services of an informer would be made use of to arrange an appointment between herself and another person, where the other person is than apprehended at the meeting point. This was indeed exactly what happened in the case of Phumezo Nxiweni, which is the third incident where the Applicants apply for amnesty, dealt with hereunder. The Committee therefore finds that in the present circumstances the informers would still be entitled to the protection of their identities as informers.
The Committee, in addition id not see its way open to rule for the disclosure of the identity of the informers on the basis of the fear for their lives expressed by the Applicants. The Committee is therefore loathe to find that the Applicants should have disclosed their identities and that their failure to disclose would warrant a refusal of amnesty.
The Committee also considered the matter in the second place from the question of the meaning of the concept of "all relevant facts". The Committee, like all other Committees of the Amnesty Committee, interprets the concept to refer to all material facts related to the incident. It was argued that the disclosure of the identity of co-perpetrators of Applicants was sine qua non for amnesty to be granted. This, in our opinion, is clearly wrong. Were this to be the interpretation, the legislature would, in our opinion, have explicitly so enacted. What is relevant to an application is by definition what the Committee decides to be relevant in each particular situation, having regard to all the evidence. Therefore, what is material is by definition what the Committee, having regard to all the evidence in a particular application, deems to be material. In the present instance, the Applicants have all made a full and truthful disclosure of the smallest of detail related to the incident. They have described fully how the informers accompanied them to Manzini, how they waited at the George Hotel, how Ndwandwe got into the bakkie with them and exactly how they drove to the meeting point where she was transferred to the Kombi when their participation ceased. The Committee does not need the names of the informers to enhance the picture or add information necessary for the Committee to decide whether the Applicants would qualify for amnesty. Although the Committee understands the basic and human need of the family of Ndwandwe to know the identity of those whose collaboration lead to her abduction and killing, the Committee is of the opinion that the identity of the informers is not material to its coming to a finding and therefore, under these circumstances, not a relevant fact as envisaged in the Act.
The Committee is satisfied that the Applicants have all made a full disclosure of their acts related to the incident which occurred within the context of the conflicts of the past and that these acts were associated with a political objective as envisaged in the Act. They are accordingly all GRANTED amnesty for their acts as described above in their various roles in the incident related to the abduction and killing of Ndwandwe, including their illegal use and possession of false passports, the illegal crossing of the border and re-entry and the illegal possession of firearms and ammunition.
The Committee is further of the opinion that Phila Portia Ndwandwe is a victim as envisaged in the Act and her name and the particulars of her next-of-kin is being forwarded to the Reparations and Rehabilitation Committee for its consideration.
INCIDENT 3
Phumezo Nxiweni (Nxiweni) was, as stated above, one of the accused in the Ramlakan case who was acquitted because of the failure of Khate to testify. According to the Applicants, Nxiweni was indeed involved in all the incidents listed on the charge sheet against him. After his release he continued with his involvement in a number of MK-units in the KwaMashu area, a number of them being under his direct control. These included the KwaMashu unit, established after the Ramlakan case. Evidence was adduced concerning a number of incidents for which Nxiweni, according to the informer network, was directly involved. As was stated above under Incident 2, Ndwandwe also gave or confirmed information relating to the activities of Nxiweni. At the time of the present incident he was living in the Allan Taylor residence. It was decided that Nxiweni should also be eliminated to stem the acts of sabotage and terror that he co-ordinated.
In the beginning of November 1988 an informer made contact with Nxiweni. An appointment was made by the informer to speak to Nxiweni. Nxiweni honoured the appointment which was on the 4th November 1988 at King's Park Stadium in Durban. He was there abducted by the 7th, 8th and 9th Applicants and taken to a safe house at Verulam where he was intermittently interrogated and assaulted by all three of them. During the interrogation he supplied information about an explosion that was carried out the previous night at the Rossburgh Station by the KwaMashu 3 (Incident 4). He furthermore told them that on that same evening, that is the 4th November 1988, another explosion was to occur on the railway line at Montclair. The 8th and 9th Applicants drove to the place. On their way there they received a report that the explosion had just taken place and on their arrival they saw that a bomb had indeed exploded on the railway line. The police were already on the scene. Nxiweni was held at the safe house overnight and the following day. In the late afternoon the 4th and 5th Applicants returned having been away on other work and called at the safe house. The interrogation continued. Nxiweni, inter alia, provided information about an arms cache in a storeroom at the Allan Taylor residence. The 5th, 7th and 8th Applicants broke into the storeroom and retrieved a trunk full of arms and ammunition, including limpet mines, mini-limpet mines and detonators, which they took to the safe house. The 7th Applicant briefed the 4th Applicant about the abduction and interrogation and his intention to kill Nxiweni as the only way to stop him from continuing with his activities. The 4th Applicant agreed, having been aware of Nxiweni's activities, also having heard the information about Nxiweni shortly before from Ndwandwe (Incident 2).
The 4th Applicant then took control. He ordered the 7th and 9th Applicants to leave and the 5th and 8th Applicants to kill Nxiweni. The 4th Applicant himself dug a grave. Nxiweni was then blindfolded, told that he was to be transferred to another place, lead to the grave and shot by the 8th Applicant in the back of the head with a Scorpion pistol, fitted with a silencer, which pistol was also unauthorised issue. His clothes were removed, his body placed in the grave, lime sprinkled over his body and the grave filled with soil.
The incident was later reported to the 6th Applicant who explicitly approved of their actions after the event.
In cross-examination it was suggested that Nxiweni, after his acquittal in the Ramlakan case, became inoperative and that the killing was an act of spite following the acquittal. No evidence, however, was led to substantiate these suggestions. No request was made for the disclosure of the identity of the informer.
There were inconsistencies in the evidence of the Applicants which can all be ascribed to memory loss resulting from the lapse of time. In the case of the 4th Applicant it appears that in disclosing his role in his written application, he, in his construction, places himself in situations where all the other Applicants deny his involvement, such as when they went to the Allan Taylor residence. The Committee, having regard to the evidence about the state of mind of the 4th Applicant due to his illness, is satisfied that on the evidence before it, the Applicants have all made a full and truthful disclosure, that the incidents occurred within the context of the conflicts of the past and that their acts were associated with a political objective as envisaged in the Act. They are accordingly all GRANTED amnesty for their various roles in the incident as applied for. The Committee is further of the opinion that Phumezo Nxiweni is a victim as envisaged in the Act and his name and the particulars of his next-of-kin are being referred to the Reparations and Rehabilitation Committee for its consideration.
INCIDENT 4
After the events described in the Incident 3, the attention of the Security Branch focused on the MK unit of KwaMashu. An informer was tasked to infiltrate the unit in order to acquire information on the identity of the members of the unit, its logistics and infrastructure. The informer succeeded and he kept the 7th Applicant abreast of discussions in the unit and of planned operations. On the 18th November 1988 he reported that the unit was to effect an explosion on the railway line at Phoenix. It was arranged that he would lead the members of the unit to the Avoca Bridge where the 7th, 8th and 9th Applicants would be waiting to "arrest" them. Although they were expecting four members of the unit, only three arrived in the company of the informer. They were duly apprehended and taken to the safe house at Verulam where the 4th Applicant had been waiting for them. The three members of the unit apprehended were Sibusiso Ndlovu, Amanzi Vilakazi and Elias Gift Matjale. The fourth person they were expecting was a person named Naya Ngema.
When apprehended, they were found in possession of three SPM limpet mines with detonators held in a bag. They were assaulted and questioned about the origin of the limpet mines. They fabricated a story to conceal the true facts known to the 7th Applicant through the informer. In view of their refusal to admit to the true facts and against the background of a series of incidents in the recent past, perpetrated by their unit and other units, it was not seriously entertained that they could be recruited. The 4th and 7th Applicants decided that they had to be killed. It was decided that they would be killed and their bodies destroyed by the use of explosives.
They were taken in a minibus to the railway line near Phoenix by the 4th, 5th, 7th and 8th Applicants. They arrived at the railway line. The 4th Applicant remained in the minibus while the other three Applicants walked with Ndlovu, Vilakazi and Matjale to the railway line. They were told to kneel down. Each one was shot with a Scorpion pistol in the back of the head, each of them by one of the three Applicants. Their bodies were placed in a star formation with their heads and hands together, the limpet mines placed in the centre and detonated.
They reported to the 6th Applicant who approved of their actions and associated himself therewith. The incident was listed as an explosion by members of MK who had died in execution of the explosion. It was thus a so-called false flag operation.
In cross-examination it was suggested that the KwaMashu unit was under command of Naya Ngema and not of Nxiweni. This was denied by the Applicants. No evidence was led on behalf of the families of Ndlovu, Vilakazi and Matjale.
Again there were some inconsistencies in the evidence of the Applicants and that of the 4th Applicant in his written application. Again all can be ascribed to loss of memory and faulty constructions.
The Committee is satisfied that this incident was part of a chain of events that occurred within the context of the conflicts of the past, the acts of the Applicants associated with a political objective and that they have all made a full disclosure of all relevant facts as envisaged by the Act. They are accordingly all GRANTED amnesty.
The Committee is further of the opinion that Sibusiso Ndlovu, Amanzi Vilakazi and Elias Gift Matjale are all victims as envisaged in the Act and their names and particulars of their next-of-kin are being forwarded to the Reparations and Rehabilitation Committee for its consideration.
SIGNED AT CAPE TOWN THIS THE DAY OF 2001
JUDGE A WILSON
ADV. S SIGODI
MR W MALAN
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