DECISION
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These are applications for amnesty in terms of Section 18 of Act 34 of 1995 ("the Act").
The Applicants, who will be referred to by their surnames in the interests of brevity, applied for amnesty in relation to their respective roles on 14 August 1986, in the vicinity of the South Africa - Swaziland border near the T-junction between the Lothair -Nerston road and the Nerston/Amsterdam road and/or at a place along the Nerston - Amsterdam road, in the then Transvaal:
1. In the killing of Mobongeni Kone (MK Bernard), Shadrack Msolwa Sithole, Assen Jeremia Thimula (MK Tallman), Mzwandile Hadebe (MK Zandile) and Shadrack Maphumulo:
2. In the attempted killing of Vusimusi Lawrence Sindane; and
3. In defeating the ends of justice, perjury and other related acts, omissions or offences in respect of the cover-up of their actions in 1 and 2 above.
Ten of the eleven Applicants testified as to their involvement in the matter and set out their backgrounds and how they came to be involved in the incident. All were members of the South African Police ("SAP") and were either part of the Security Branch's ("SB") C1 unit based at Vlakplaas, C2 unit based at headquarters or members of the SB stationed at Middelburg, Piet Retief, Nelspruit or Headquarters in Pretoria respectively. De Kock was the commander of the Vlakplaas unit at the time.
Willemse was unavailable due to illness and an affidavit setting out his evidence was tendered and accepted into evidence in lieu of testimony. This was consented to by all the other parties subject to their right to request cross-examination in the event of a substantial deviation from the version presented in his application. No such request was made and his affidavit thus stands as his evidence before us.
The evidence of the Applicants is briefly the following:
The Applicants, other policemen and askaris were busy with operations in the Piet Retief area, including the abduction of Glory Sedibe from Swaziland. Pienaar informed De Kock that an informer had provided information regarding the proposed infiltration of a number of MK operatives together with arms, ammunition and explosives into the country. The informer's role was to drive the MK operatives to their final destination inside the country once they had safely crossed the border.
De Kock and Pienaar went with the informer who showed them where it was planned, that he pick up the operatives near the border fence. De Kock and Pienaar then pointed out a place along the Nerston - Amsterdam road where the informer was to stop the vehicle under the pretext of needing to urinate. he was instructed to alight from the vehicle and then walk away from the vehicle to one side. They told him that they would then arrest the MK operatives. After this they returned to Piet Retief and the informer returned to Swaziland.
The following day the Applicants and others met at a safe farm in the area and De Kock briefed them about the operation. They would be divided into a number of groups with one positioned near the border fence at the point of entry, another at the spot indicated to the informer, and possibly a third at a different location in case the informer took a different route. The various Applicants have differing recollections in this regard.
There were also different versions as to whether the plan was to arrest or eliminate the MK operatives. A further permutation entailed a combination of both of these with a decision being taken at a later stage to eliminate them all. We do not intend to examine this matter in any great detail because the fact remains that ultimately the operatives were killed and most of the Applicants had orders to do so. It is thus of little relevance whether they understood this to initially be their instructions or whether such instruction was given at a later stage.
The Applicants were issued with weapons and they left for the respective venues. De Kock, Pienaar, Botha, Deetlefs, Fourie, Greyling, Bosch and Labuschagne were waiting at the ambush site on the Nerston - Amsterdam road. Van Dyk, Nofemela and Willemse together with other persons were waiting at the border site.
De Kock testified that he had placed the Applicants at the roadside ambush site on both sides of the road. Other Applicants denied this. De Kock conceded that he might have been mistaken in this regard. It is unlikely that De Kock's recollection is correct as this would have posed a danger to the people present due to the possible cross-fire.
The Applicants then testified that they were hiding on the one side of the road in some long grass. The vehicle arrived at the site and stopped as arranged. The driver, who was the informer, got out and moved to the one side as arranged. The driver, who was the informer, got out and moved to the one side as arranged. The Applicants opened fire with various firearms. There were two occupants in the vehicle and the driver. All were killed on the scene by the shooting. The Applicants were positioned approximately between two to ten metres from the vehicle. From photographs of the vehicle, it is clear that a great deal of gunfire was directed at the vehicle. The Applicants found certain weapons and explosives in the back of the vehicle and close to the deceased in the front of the vehicle. The driver was unarmed.
After the incident the Applicants from the other site arrived at the roadside site and informed De Kock that there had been a shoot out resulting in the death of one person and one person escaping. The person who escaped was apprehended the following day by soldiers having been wounded in the shooting.
What transpired at the border fence site was that the Applicants and others who were present there, saw four people passing them carrying bags on the way in to South Africa. They then waited for the guide and whoever else might return to Swaziland. After hearing the vehicle drive away they saw two people approaching. There were differing versions as to what happened next. One version given by Van Dyk is that he then shone his torch at the two persons. One of them had a firearm over his shoulder. Thereafter, a shootout ensued with shots being fired from both sides. Willemse says in his affidavit that the two people were told to stop by Van Dyk first and then the shooting broke out. Once the shooting stopped Van Dyk chased after the person who escaped but he was unable to locate him.
This then in brief were the relevant aspects of evidence on behalf of the Applicants.
Vuisimusi Lawrence Sindane ("Sindane"), the person who escaped and who was wounded in the shooting testified that he and the other person were shot at without warning. He said that he had no opportunity to fire his weapon and that he dropped it in his haste to escape. he confirmed that he was severely wounded in the shooting and that he was arrested on the following day. He went on to describe his treatment at the hands of the police including some of the Applicants but as these matters are not directly relevant to the present applications we do not intend to traverse them in this decision.
We also heard medical evidence relating to the post-mortem examinations conducted on the deceased. The gist of this evidence was that it is possible that some of the deceased were shot at point-blank range because of the presence of burn marks noted in the post-mortem examination reports. While this conclusion may be possible, it is also possible, based on the evidence of some of the Applicants, that tracer bullets were used in the operation and that the burn marks may have been caused by such bullets. Although this is unlikely, we are unable to make a finding in this regard based on a lack of conclusive evidence either way.
After the two incidents the Applicants made false reports and statements which were intended to cover up their actions and give the impression that the deceased had been killed as a result of lawful action on the part of the policemen involved in the operation. These false affidavits and statements were handed in at the inquests into these deaths and the Applicants were never prosecuted in respect of the ambushes.
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 fourteen years before the hearing and many of the Applicants were involved in numerous other operations including other ambushes of a similar nature. 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 the Act 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 concert with the SB members from Piet Retief and other centres. They were busy with an operation to ambush and eliminate MK guerrillas who they believed ere armed operatives intent on bombing and other acts of violence. The deceased were all members of MK and were shot and killed in the ambushes. Their deaths and the cover-up, are the acts that form the offences for which amnesty is being sought. These are acts committed against members of an opposing liberation movement and were regarded by De Kock as necessary in order to prevent further acts of violence.
With regard to the other Applicants, besides Pienaar and Deetlefs in relation to the driver's death, it is clear that they merely followed De Kock's orders. They had no reason to doubt his authority as he was either their commander or seen as being in command of the operation.
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).
We turn to consider the question of the killing of the driver of the vehicle. De Kock testified that the reason he ordered Labuschagne to kill this person was because they did not trust him and they had fears that he might "sell them out". He said that he, Pienaar and Deetlefs agreed that this should be done. However, we have a difficulty with this contention. This informer had, on the evidence, co-operated with the police previously. He co-operated fully with regard to this incident and there appears to us to have been no reason why he should have been killed. If he did become a problem at some point in the future they could have dealt with him at that stage, but at the time the decision was taken to kill him, on the evidence before us we are not satisfied that it was necessary to eliminate him.
The Committee, after considering the guidelines set out in Section 20(3) is thus satisfied that except in relation to De Kock, Pienaar and Deetlefs in relation to the driver's death, the offences committed were associated with a political objective.
In the result, amnesty is GRANTED to all the Applicants in relation to their respective roles on 14 August - November 1986, in the vicinity of the South Africa - Swaziland border near the T-junction between the Lothair - Nerston road and the Nerston - Amsterdam road and/or at a place along the Nerston -Amsterdam road, in the then Transvaal:
1. In the killing of Mbongeni Kone (MK Bernard), Shadrack Msolwa Sithole, Assen Jeremia Thimula (MK Tallman) and Mzwandile Hadebe (MK Zandile);
2. In the attempted killing of Vusimusi Lawrence Sindane; and
3. In defeating the ends of justice, perjury and other related acts, omissions or offences in respect of the cover-up of their actions in 1 and 2 above.
Amnesty is also GRANTED to Botha, Fourie, Greyling, Bosch and Labuschagne with regard to the killing of Shadrack Maphumulo on the same date and place referred to above and defeating the ends of justice, perjury and other related acts, omissions or offences in respect of the cover-up of their actions in connection with this killing.
De Kock, Pienaar and Deetlefs are REFUSED amnesty in respect of the killing of Shadrack Maphumulo and the related cover-up of his death.
The Committee is of the opinion that Vusimusi Lawrence Sindane and the relatives and dependants of Mbongeni Kone (MK Bernard), Shadrack Msolwa Sithole, Assen Jeremia Thimula (MK Tallman), Mzwandile Hadebe (MK Zandile) and Shadrack Maphumulo are victims and they are referred to the Committee on Reparation and Rehabilitation in terms of Section 22 of the Act for its consideration in terms of Section 26 of the Act.
SIGNED AT CAPE TOWN ON THE DAY OF 2001
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JUDGE A. B. M. WILSON
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MR I LAX
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MR J B SIBANYONI
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