DECISION
______________________________________________________
The Applicants applied for amnesty in respect of their roles on 7 November 1988, at 369 Bembo Street, Vosloorus in the then Transvaal:
1. In the killing of Samson Xolile (MK Valdez Thabang);
2. assault with intent to do grievous bodily harm to Samson Xolile (MK Valdez Thabang); and
3. in defeating the ends of justice.
All five Applicants testified as to their involvement in the matter and set out their background and how they came to be involved in the incident. All were members of the South African Police ("SAP") and were part of the Security Branch ("SB") C1 unit based at the Vlakplaas. De Kock was the commander of the unit at the time.
Johan Hendrik Tait ("Tait") testified that he had gone to a house in a black township together with other Vlakplaas members and members of the Special Task Force ("Task Force") of the SAP. They were to penetrate a particular house where a suspected member of uMkhonto weSizwe ("MK") the military wing of the African National Congress ("ANC") was thought to be hiding. While the Task Force members were busy with the house penetration, Tait and Leon William John Flores ("Flores") were at the rear of the house. The deceased apparently suddenly emerged from the house and proceeded to climb over a wall with an adjoining property. While he was doing so, Flores shot him was an Uzi sub-machine gun.
The deceased was then apprehended and placed in the back of a police vehicle where other policemen questioned him. The deceased apparently died during the questioning.
Eugene Alexander de Kock ("De Kock") testified that the SB at Germiston had requested Vlakplaas to assist them and the Witbank SB with the detection of suspected MK members. De Kock called in the Task Force. A briefing session was held at the SB offices in Germiston. The information at their disposal indicated that they were dealing with a group of "hard-core" people who were planning to bomb the Wimpy Bar in Germiston and who may have been responsible for other incidents. Based on the information received, the policemen proceeded to the house in question. They expected opposition.
As they arrived at the house, De Kock noticed a vehicle driving away. he ordered the house penetration to proceed and followed the vehicle. He fired at the rear wheel and vehicle stopped. The occupants were arrested and detained.
He returned to the house and was told that a person had run from the house and that he had been shot in the leg. There was some dispute as to who had in fact shot the person. Flores said he had done so and Capt. van Dyk also claimed to have. Van Dyk apparently later denied this claim. De Kock said that members of the Task Force with paramedic training stabilised the deceased by the application of a tourniquet and an intravenous drip. This happened while the deceased lay on the grass in the garden of the house. The house was thoroughly searched and a firearm and several items were found. De Kock then decided to question the deceased.
The deceased was taken to a truck and loaded into it. He was made to lie on his back and De Kock handcuffed him to the metal legs of some seats. Thereafter, de Kock sat on his chest and covered his mouth with a wet cloth. A SB member from Witbank held his nose closed. Van Dyk took notes of what the deceased told them. The doors of the truck were closed at that stage. After fifteen to twenty minutes of this torture, the deceased provided certain information including addresses. De Kock and a group of policemen and askaris then left and went to the various addresses. Various weapons and other items were found. De Kock said that the deceased was alive when he left.
On his return to the truck, De Kock was informed that the deceased had died. He removed the intravenous drip and thereafter made a report to a detective who had arrived on the scene that the deceased had been shot and that he had died before they could get him to hospital. He did not mention the torture.
At a later sate, de Kock made a statement for the inquest. This was a false statement designed as a cover-up.
Izak Daniel Bosch ("Bosch") then testified. He merely confirmed the evidence that had already been given insofar as it related to himself.
Flores then testified. His recollection of the event was different to the extent that recalled chasing the deceased for quite a distance over a period of 5 to 6 minutes before shooting him. This was the only major deviation in his testimony from that of the others.
Willem Albertus Nortje ("Nortje") then testified. He also confirmed the evidence that had already been given insofar as it related to himself. He also indicated that as far as he could recall the deceased had been shot in the adjoining property.
Thandi Josephina Shongwe, the wife of the deceased was present and represented at the hearing. It is evident that there are children born of their marriage. She was also a member of MK and was arrested an detained on the same day. She showed a remarkable capacity for reconciliation and declined to oppose the applications for amnesty.
On a careful analysis of all the evidence we are satisfied that there are no material differences between these various testimonies. While there are some differences between the evidence of the Applicants, these are no more than would be usual bearing in mind that this instance occurred eleven years before the hearing. Accordingly, we are satisfied that the Applicants have made full disclosure of all relevant facts.
It remains to be decided whether the Applicants meet the requirements of Section 20(1) of Act 34 of 1995 as to whether "the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of sub-sections (2) and (3)".
It is clear that De Kock acted in support of the SB members from Germiston and Witbank. They were busy with an operation to detect and arrest MK guerrillas who they believed were "hard-core" operatives intent on bombing and other acts of violence. The deceased was shot while resisting arrest and his subsequent interrogation, torture and ultimate death as well as the cover-up, are the acts that form the offences for which amnesty is being sought. These are acts committed against a member of an opposing liberation movement and were regarded by De Kock as necessary in order to obtain the information to prevent further acts of violence.
With regard to the other Applicants, it is clear that they merely followed De Kock's orders. They had no reason to doubt his authority as he was their commander and they and other members of their unit had been involved in other similar operations previously.
The Committee is satisfied that the offences were committed in the course of the conflicts of the past and that all the Applicants fall within the provisions of Section 20(2).
The Committee, after considering the guidelines set out in Section 20(3) is further satisfied that the offences committed were associated with a political objective.
In the result, amnesty is GRANTED to the Applicants for their part in:
1. The killing of Samson Xolile (MK Valdez Thabang) on 7 November 1988, at 369 Bembo Street, Vosloorus in the then Transvaal:
2. assault with intent to do grievous bodily harm to Samson Xolile (MK Valdez Thabang); and
3. in defeating the ends of justice with regard to the death of Samson Xolile (MK Valdez Thabang).
The Committee is of the opinion that Thandi Josephina Shongwe and the dependants of Samson Xolile (MK Valdez Thabang) are victims and they are referred to the Committee on Reparation and Rehabilitation for consideration in terms of Section 22 of Act 34 of 1995.
DATED AT CAPE TOWN THIS DAY OF 2001.
_____________________
JUDGE A.B.M. WILSON
____________________
MR J.B. SIBANYONI
____________________
MR I LAX
??
/...
2
/...
6
/...
