Decisions

DECISION

INTRODUCTION

These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").  The matter relates to an incident which occurred during the early hours of the morning on 26 March 1992 at or near Nelspruit, Mpumalanga, when Oscar Mxolisi Ntshota, Glenack Masilo Mama, Lawrence Jacey Nyalende and Khona Gabele ("the deceased") were shot and killed by some of the Applicants at an ambush on the road to KwaNyamazane and later during the same day when Tietsetso Leballo ("Tiso") was killed and the body subsequently destroyed by means of explosives at Penge Mine near Weltevreden by some of the Applicants.  The First Applicant, Eugene Alexander De Kock ("De Kock") was arraigned and convicted on five counts of murder arising out of the incident in the then Transvaal Provincial Division of the Supreme Court and was sentenced to life imprisonment plus 80 years.  Some of the other Applicants appeared as State witnesses at the trial of De Kock and were granted indemnity against prosecution by the trial court pursuant to their testimony.  The applications were opposed by the Leballo, Nyalende and Mama families who were all legally represented at the hearing.  The hearing lasted a number of days and entailed a very substantial volume of testimony and other material including documentary exhibits.

All of the Applicants were at the relevant time serving members of the South African Police having being attached to either the Security Police contingent stationed at Vlakplaas near Pretoria or the Pretoria Murder and Robbery Unit.  The respective Applicants held differing positions of seniority and played different roles during the course of the incident.  It is accordingly necessary to give a brief summary of the salient features of the testimony of the individual Applicants before proceeding to assess the merits of the applicants.  We now embark upon that course setting out the respective versions in a more logical sequence than that followed at the hearing.

EUGENE ALEXANDER DE KOCK

He was at all material times the commander of the Security Police Unit stationed at Vlakplaas known as C10.  All of the other Applicants who were attached to Vlakplaas were under his direct command.  He in turn reported to General Engelbrecht who was the overall commander of Vlakplaas.  Subsequent to the unbanning of the liberation movements in February 1990, the role of the Vlakplaas Unit underwent transformation.  Whereas its prior focus was exclusively on actions against members of liberation movements, referred to as counter-insurgency, its new role focused on support for other units of the South African police in fighting crime.  Attempts were made to re-orient Vlakplaas members to fit into this new role based on investigation and crime prevention.  Members attended lectures and talks by their superiors explaining the new role.  In spite of these developments, De Kock held the view that although it was not explicitly confirmed by their superiors, the Vlakplaas Unit was authorised to also continue with its counter-insurgency role against members or supporters of liberation movements in addition to the new role.  He relied in this regard upon the fact that General Engelbrecht told him that the unit should not be disbanded, since it should be ready to become operational in the event of there being a breakdown of the political negotiations that were being conducted at the time between the government and the liberation movements.  De Kock also indicated that the Vlakplaas members were allowed to retain their arsenals of illegal weapons which included items such as handgrenades and rockets which cannot be reconciled with a role of solely having to investigate or fight crime.  He also contended that although the African National Congress ("ANC") was engaged at the time in political negotiations with the then government, and had formally suspended the armed struggle, it was still unofficially waging an armed struggle in his view.  He referred in this regard to Operation Vula in support of this contention, although he was unable to dispute the fact that this incident occurred some time prior to the incidents forming the subject-matter of these applications and accordingly does not support his contention that the ANC's armed struggle continued even during 1992 when the incidents in question occurred.  (To the extent that it is relevant, Operation Vula relates to the incident when some ANC members were arrested in connection with certain activities relating to the armed struggle, subsequent to the unbanning of the ANC.)

It should be interposed here that General Engelbrecht was given notice of the hearing in terms of section 19(4) of the Act and he submitted an affidavit in response to the allegations made against him in the written amnesty applications.  He basically pointed out that at the time he took command of Vlakplaas, the focus of the unit shifted to dealing with ordinary crimes.  He catalogued the steps which he initiated to re-orient the unit and its members.  He emphatically denied having given any orders to commit or having ratified the Nelspruit-incident.  He accordingly disputed the thrust of De Kock's version in these regards.

In the course of his duties (indications are that this occurred during late 1991) De Kock was informed by one of his subordinates, Frederick Daughlas Reed Holtzhausen ("Holtzhausen"), who participated in the proceedings as an implicated party, that a group of military trained ANC members were planning to execute a robbery on behalf of the ANC.  This information was reportedly conveyed to Holtzhausen by one, Ben Van Zyl ("Van Zyl") a co-Applicant, who was a source or informer of Vlakplaas at the time.  De Kock effectively gave permission to Holtzhausen to continue with planning an operation against the intended robbers with the assistance of Van Zyl.  De Kock was only peripherally involved in the planning of the operation, although Holtzhausen reported developments to him from time to time.  According to the information, one of the would-be robbers, Tiso, had received military training in exile under the auspices of the ANC and he was still actively involved in the ANC and was in fact the driver of Mrs Winnie Madikizela-Mandela.  In view of the information conveyed to him, De Kock was under the impression that all of the persons who would participate in the intended robbery would be armed and be militarily trained members of Umkhonto we Sizwe ("MK"), the military wing of the ANC.  He was accordingly quite happy to authorise an operation in terms of which the would-be robbers would be led into an ambush and be summarily shot and killed.  Prior to the actual date of the operation, he cleared the travel arrangements of the group of Vlakplaas members with his superior, General Engelbrecht, but failed to convey any detail to General Engelbrecht in regard to the nature of the operation and particularly that a group of would-be robbers would be shot and killed in an ambush set up by the police.  De Kock indicated that he actually enjoyed implied authority at the time to authorise an operation of this nature on his own without reference to his own superiors.  As required by the applicable rules (specifically to obtain permission to travel), an information note was submitted to his superiors in regard to the intended operation.  The note, also, did not contain any reference to the intended ambush and killings and was in effect false.  In accordance with this note, the operation was described as police action to be taken against a group of weapon smugglers from Mozambique.  This, of course, completely misrepresented the actual state of affairs in regard to the intended operation.

On the day of the operation, De Kock had another commitment in the Kruger National Park, which he had to attend to together with General Engelbrecht.  He accordingly played only a very minimal role in the detailed planning of the operation on the actual scene.  He was merely assigned the duty to act as a sentry who had to warn the police contingent who would actually participate in the ambush, that the vehicle carrying the would-be robbers was approaching.  During the course of the day prior to the incident, he left his office and briefly called upon the group of his colleagues who had congregated at a hotel in Nelspruit in preparation of the operation.  After having satisfied himself that the arrangements seemed to be running smoothly, he proceeded together with some other colleagues to the park where certain other unrelated business had to be attended to.  He later returned to the hotel in Nelspruit with Willem Albertus Nortje ("Nortje"), a co-Applicant, who had accompanied him to the park and also had to participate in the business in the park with General Engelbrecht.  Upon their arrival at the hotel, the police contingent was already in the course of leaving for the scene of the ambush.  They in fact caught the last vehicle in the convoy as it was leaving the hotel premises and they followed this vehicle to the scene of the ambush.  De Kock did not know where the ambush would take place because he did not effectively participate in the final planning that was done at the scene itself where Holtzhausen and Deon Gouws ("Gouws"), a co-Applicant and commander of the Pretoria Murder and Robbery Unit contingent on the scene, basically took control.  De Kock took up his position on a bridge some distance away from the point of the ambush, from where he had a good view of the road in order to spot any approaching vehicles.  After some wait on the scene, the police started accepting that the would-be robbers would not arrive and that the plan might have gone awry.  Just as they were preparing to leave the scene, someone spotted the approaching vehicles and warned the group of police on the scene.  As planned, Van Zyl drove alone in a BMW vehicle ahead of the would-be robbers who were travelling in a minibus vehicle which was earlier stolen at the instance of De Kock and made available for the purposes of the operation in question.  Van Zyl was allowed to drive past the scene but as the minibus reached the group of police, they opened fire with automatic firearms on the vehicle.  De Kock noticed that instead of coming to a halt, the minibus actually accelerated and he ran from the point where he was doing duty towards the road on which the minibus was travelling and immediately opened fire with an automatic rifle on the vehicle.  He fired a large number of rounds at the vehicle.  At one stage during the shooting he noticed that the line of police was in disarray and that there was a risk of some of the police being shot by their colleagues.  He intervened and re-established order while the firing at the vehicle continued.  He then again withdrew to his position on the bridge.  He was taken aback when he noticed that at some stage the minibus, which he had arranged to be stolen from a friend of is who was in financial difficulties, was on fire.  There was also an explosion in the vehicle which threw one of the occupants out of the vehicle onto the road.  This person was busy burning and was still alive.  De Kock established that at some stage handgrenades had been placed in the vehicle.  It transpired that the fire was caused by petrol which was sprinkled over the inside of the vehicle and set alight.  To De Kock's understanding, none of this formed part of the original planning.  He was therefore surprised at this turn of events.  He was later approached by Holtzhausen who informed him that the fifth member of the group of would-be robbers was not in the minibus but had been captured on the road.  Holtzhausen was concerned that this person would pose a threat to the police and enquired from De Kock about his fate.  Holtzhausen was in favour of this person being killed and De Kock eventually went along with this idea after it transpired that none of the possible alternatives such as detention or removing the person to Swaziland, was viable.  De Kock instructed that Nicolaas Johannes Vermeulen ("Vermeulen"), a co-Applicant and an explosives expert from Vlakplaas, should be contacted and the person be taken to Penge Mine.  This was a reference to a practice clearly understood among Vlakplaas members that the person should be killed and the body disposed of by means of explosives at Penge Mine.  The Vlakplaas Unit in fact followed this modus operandi in an earlier killing.

At some stage later in the morning, General Engelbrecht arrived at the scene and he was briefly informed by De Kock that Vlakplaas had been involved in the incident and that things had gone wrong.  The latter was a coded reference to the fact that the operation was illegal.  General Engelbrecht then arranged that no statements should be given to the local police who had taken charge of the investigation and that statements would be made available at a later stage.  General Engelbrecht was in fact subsequently involved in the drafting of false statements in order to exonerate the police.  According to De Kock, this amounted to ratification of the operation by General Engelbrecht.

De Kock conceded that the police never considered to arrest the would-be robbers.  On the strength of the available information, he regarded the summary killing of the would-be robbers as a fully justified act of counter-insurgency.  The alleged political profiles of the would-be robbers justified that they be killed in accordance with the well-established and entrenched role of the Vlakplaas Unit in acting against "terrorists".  He, however, conceded that he could have been misled by the information furnished about the would-be robbers, in which event alternative ways of acting against them would have been justified, for example, by leaving the Murder and Robbery Unit to deal with the matter in accordance with their normal anti-crime duties.  He, moreover, conceded that the police did not investigate the veracity of any of the information apparently supplied by Van Zyl in regard to the alleged political profiles of the would-be robbers.  He was unable to dispute the proposition put to him on behalf of the Mama family that Glenack Masilo Mama had never left the country illegally nor could he be described as an insurgent who had received military training.

He eventually left the scene to attend to his business in the park and never had any further significant direct dealings with the matter which was left to his colleagues to sort out.

BEN BURGER VAN ZYL

He was a former member of the Murder and Robbery Unit and had left the police to start his own private investigations business during the late 1980's.  Part of his business entailed furnishing information about criminal activities to the different units of the South African Police against payment of a fee.  He started having occasional business dealings with Vlakplaas during late 1991 and was subsequently approached and persuaded by De Kock to become an informer for Vlakplaas on a more regular basis.  Holtzhausen eventually became his handler.  Some time after having commenced working as an informer for Vlakplaas, Van Zyl made contact through one of his employees, Hamilton, with Tiso who had shown an interest in certain criminal activities.  Van Zyl's modus operandi was to pose as a member of the criminal underworld and so establish contact with criminals or obtain information about crime.  He would then sell any information so acquired to the relevant unit of the police dealing with the particular crime in question.

Tiso showed a keen interest in making a lot of money quickly.  After he was exposed while attempting to defraud Van Zyl by trying to sell baby powder to the latter as cocaine, their discussions started focusing on armed robberies.  Once he was satisfied that Tiso would indeed participate in a robbery, Van Zyl suggested to him that the depot of Coin Security in Nelspruit, Mpumalanga would be an ideal venue for an armed robbery.  It was in fact part of Van Zyl's modus operandi to suggest venues for robberies to intended robbers and then to convey the information to the police who would make the necessary arrangements to foil the robbery and to arrest the would-be robbers.  Van Zyl would then be paid a fee.  Throughout his discussions with Tiso, Van Zyl kept Holtzhausen abreast of developments.  The Coin Security robbery was set up between Van Zyl and Holtzhausen but it never materialised because Tiso and his group were frightened off by the presence of a security company patrol vehicle in the vicinity.

At some point during their contract, Tiso indicated to Van Zyl that he was a military trained member of MK.  Van Zyl later also learnt that Tiso was working as a driver for Mrs Winnie Madikizela-Mandela.  Van Zyl formed the impression that Tiso was committing robberies on behalf of the ANC.  When he conveyed this information to Holtzhausen, the latter showed great interest and advised Van Zyl to continue with the plans to set up a robbery for Tiso to commit.  This was subsequent to the abortive first robbery attempt at Coin Security.  After further talks with Tiso, it was agreed to again implement the earlier plan to rob Coin Security in Nelspruit.  Tiso indicated that he would get a group of persons together to execute the robbery.  He requested Van Zyl to supply two vehicles and some AK47 rifles for the purposes of the robbery.  Van Zyl formed the impression that Tiso would assemble the same group that was suppose to have executed the abortive first robbery at Coin Security.  He was furthermore under the impression that all of them were also members of MK, like Tiso.  He was, however, merely speculating since he never met any of the members of the group who was suppose to have been involved in the first robbery.  Tiso was in fact purposely preventing any contact between Van Zyl and the rest of the group.

Van Zyl was under the impression that the same plan that the police made in respect of the first robbery would also apply in this instance.  The basic features of that plan were that members of the police would replace the normal staff at the premises prior to the planned time of the robbery and would arrest the robbers before they execute the robbery.  The necessary arrangements were made with Tiso who had to collect a vehicle, which actually belonged to Vlakplaas, in order to transport the would-be robbers to Nelspruit.  Upon their arrival there, the robbers would transfer to the second vehicle which would be used to commit the robbery.  The first vehicle would then serve as a getaway vehicle after the robbery was committed.  Earlier during the evening of the incident and while waiting for Tiso to call to collect the first vehicle, Van Zyl had telephonic contact with Holtzhausen who informed him that the police would set up an ambush at a point identified by Holtzhausen and that all of the robbers would be shot and killed in the ambush.  Van Zyl accepted this, to his mind, revised plan.

Tiso failed to arrive at the agreed time but eventually arrived much later to collect the first vehicle from Van Zyl.  Tiso and his group used the vehicle to travel to Nelspruit while Van Zyl was leading the way in another vehicle, a BMW, which was also used by Vlakplaas for operational purposes.  Upon their arrival in Nelspruit, and contrary to Van Zyl's expectations, Tiso stayed behind in the first vehicle and the rest of the group collected the second vehicle, the minibus which De Kock arranged to steal from one of his friends, from the point where it was left by the Vlakplaas members as arranged with Van Zyl.  Before departing to the point of the ambush, Van Zyl briefly spoke to the driver of the minibus arranging for the group to follow him.  In this process, Van Zyl fleetingly glanced inside the vehicle and formed the impression that he saw what appeared to have been an AK47 rifle, in the possession of one of the persons sitting at the back.  The two vehicles then departed with Van Zyl driving in front.  When they reached the point of the ambush, Van Zyl unexpectedly accelerated leaving the minibus behind.  As he drove on he heard volleys of gunfire from behind and subsequently turned around and drove past the scene of the ambush again.  He basically corroborated De Kock's version concerning the state of the vehicle and its occupants after the shooting.  He also confirmed having seen Holtzhausen at one stage firing shots with an AK47 rifle from inside the minibus and returning from the vehicle without the AK47 rifle.  It should be pointed out in this regard that Van Zyl was unable to reconcile his impression that one of the occupants of the minibus was in possession of an AK47 rifle with the fact that the only weapons subsequently found inside the minibus were the two AK47 rifles which, it was common cause, the Vlakplaas members planted in the vehicle.  It was, moreover, not in contention that the occupants of the minibus did not fire any shots from inside the vehicle nor was it disputed that they were unarmed.  The faint suggestion made on behalf of Van Zyl to some witnesses in cross-examination that the latter possibly saw a plastic toy rifle inside the vehicle, was never followed through or supported by any other evidence.  Van Zyl was clearly wrong in his impression that one of the occupants of the minibus was armed with an AK47 rifle.  It was common cause that Tiso was the only member of the group who was armed, since he was still in possession of a revolver furnished to him by Van Zyl for purposes of the first abortive robbery at Coin Security.

During his brief stay on the scene, Van Zyl informed Holtzhausen that Tiso was not inside the minibus and explained that he was waiting in the first vehicle at an agreed meeting point.  He indicated that he would have conveyed his concern to Holtzhausen about the potential problems which Tiso could have caused.  He left the scene and eventually returned to Johannesburg.  He was subsequently informed that the matter concerning Tiso had been taken care of and he received payment from the police for the services which he rendered in regard to the incident.  There was some dispute concerning the actual amount paid over to Van Zyl.  It was common cause that compensation in the sum of R20 000-00 was authorised and paid over by the police administrative authorities.  Van Zyl denied that he received the full amount.  This issue is not of critical importance for present purposes.

Van Zyl indicated that he formed the impression that Tiso never trusted him and had taken various steps to test whether or not Van Zyl was genuine.  Tiso was also someone who was given to bragging or boasting and was actually caught out on a few occasions doing so by Van Zyl.  This is illustrated by the incident with the baby powder.  He was also not surprised that Tiso did not accompany the rest of the group in Nelspruit, since he was the type of person who would get others to do the dirty work.  This also tied in with Van Zyl's impression that Tiso never really trusted him.  He relied almost exclusively on what Tiso had told him for many of the conclusions which he drew in regard to Tiso's perceived profile and activities.  He attempted to ascertain Tiso's profile through his contacts in the underworld, but none of them knew Tiso at all.  He indicated that he also had no independent information nor any knowledge concerning the possible political affiliation of the group that accompanied Tiso to Nelspruit and he was unable to dispute the proposition put to him in cross-examination that Nyalende was not a political activist.  He also conceded that he had no information whatever about the background or profile of Mama.  He was never introduced to any of the deceased and was unable to identify any one of them.

Van Zyl indicated that he wanted to have Tiso killed because of his fear that Tiso might expose him, but conceded that Tiso was completely unaware of his Vlakplaas connections.  He also indicated that the option to arrest the would-be robbers which was to have been followed in the abortive first Coin Security robbery, was still open to use against the group in Nelspruit.

FREDERICK DOUGHLAS REED HOLTZHAUSEN

At all material times, he was a member of Vlakplaas which he had joined during September 1990 after having served as a detective in the Diamond and Gold Unit of the South African Police.  At some stage he was appointed as the handler of Van Zyl and basically confirmed Van Zyl's testimony in regard to the first attempt at robbing Coin Security.  He subsequently advised Van Zyl to continue to plan another robbery with Tiso.  Van Zyl informed him that the would-be robbers were committing robberies on behalf of the ANC.  To the best of his recollection, it was subsequent to the first attempt to rob Coin Security that he learnt from Van Zyl that Tiso had contact with Mrs Winnie Madikizela-Mandela.  He thought that setting up Tiso and his group would present an opportunity to get to Mrs Madikizela-Mandela and also bring the ANC into disrepute at the same time.  According to his version, Van Zyl actually requested that Tiso and his group should be killed.  Holtzhausen accordingly knew, even during the planning stage of the operation, that the group of would-be robbers would be killed.  He also planned already in Pretoria to plant AK47s and handgrenades in the vehicles after they had been shot.  He was the author of a false intelligence or information note to the police authorities in order to obtain permission to travel to Nelspruit for the purpose of executing the operation.  His purpose in falsifying the information in the intelligence note, was to create the facade that the operation was a murder and robbery action.  He was opposed to involving the Nelspruit Murder and Robbery Unit in the operation, because he did not trust them.  He accordingly made arrangements with certain members of the Pretoria Murder and Robbery Unit to participate in the operation.  Some of these latter Murder and Robbery Unit members were friends of his and colleagues who had participated with him in the activities of the Koevoet Police Unit during the border war in Namibia.

He indicated that Tiso was the actual target of the operation given his links to Mrs Madikizela-Mandela.  He confirmed having relied entirely upon the information given by Van Zyl and that he never investigated any aspect of the information and allegations conveyed to him by Van Zyl.  He conceded that he had no personal knowledge of the personal backgrounds of any of the deceased.  He was unable to dispute the propositions that neither Mama nor Nyalende were members of the ANC.  He was, furthermore, unable to comment on the proposition put to him in cross-examination that although Tiso was in exile, he had spent most of that time in detention at the ANC's detention camp at Quattro.  He confirmed that none of the occupants of the minibus fired at the police and that there were no other weapons inside the minibus except for those planted there by the police.  The initial arrangement was that the group of would-be robbers would be taken to Coin Security and be dealt with there.  It was only in Nelspruit and after De Kock had already departed that he decided that the operation would take the form of an ambush in which the would-be robbers would be shot and killed.  He conceded that there was no obstacle to effecting an arrest as was the plan with the first abortive robbery at rob Coin Security.  However, a conscious decision had been taken to rather shoot and kill the would-be robbers instead of effecting an arrest.

He basically confirmed the testimony of Van Zyl in regard to the subsequent discussions concerning the fact that Tiso was not in the minibus.  He and some other members left the scene to search for Tiso and eventually apprehended him.  He reported back to De Kock on the scene that Tiso had been apprehended and he was not further involved in the subsequent steps taken to kill Tiso and to dispose of his body.  He was later informed about the details in this regard and was instrumental in preparing false statements for the members who were involved in the incident.  These statements were submitted to the authorities for purposes of an inquest which was held into the incident.  The outcome of the inquest exonerated the police.

ROLF DIETERS GEVERS

He was a member of the Security Branch and joined Vlakplaas during September 1991.  He held the rank of captain at the time.  To his knowledge, the role of Vlakplaas had changed during 1992 and the focus of their work had shifted to normal crime.  He was assigned to a unit which was primarily charged with tracing firearms.  They were also available as a support component to other units doing investigations.  During February 1992 he was approached by Holtzhausen to assist in an operation against robbers at the premises of Coin Security in Nelspruit.  Although the police had taken up positions at the Coin Security premises, the robbery never materialised.  During March 1992 he was again informed by Holtzhausen that the robbers would now proceed with the earlier robbery and that he and a colleague, Sergeant C. Chait, should call on Holtzhausen in Nelspruit during the afternoon of 25 March 1992 on their way back from other business in order to assist with the intended operation against the robbers.  He and Chait were involved in a motor collision on 24 March 1992 but eventually managed to join Holtzhausen in Nelspruit during the course of the morning on 25 March 1992.  He further confirmed the planning of the robbery as testified to by the other witnesses.  According to his understanding, the robbers were acquiring funds to continue the armed struggle of the ANC against the former National Party government of which he was a supporter.  He conceded, however, that this was all based on hearsay and that he had no first-hand knowledge concerning any aspect of the intended robbery, including the backgrounds of the would-be perpetrators.

He was one of the group that was positioned next to the road at the scene of the ambush as testified to by the other witnesses.  He was armed with a R5 rifle and also fired at the minibus together with his colleagues.  None of the occupants of the minibus fired any shots at the police and they were unarmed.  He saw Holtzhausen firing shots from the inside of the minibus with an AK47 rifle and confirmed that the police planted two AK47 rifles and some handgrenades inside the minibus.  At some stage petrol was sprinkled inside the minibus.  The vehicle set alight and it was eventually rocked by two explosions presumably caused by the handgrenades inside the minibus.

At a later stage, he was called aside at the scene by De Kock who told him to accompany two of his Vlakplaas colleagues, namely Chait and Colonel J. Swart.  De Kock gave him no further details.  He drove with Chait and Swart in the latter's vehicle and they followed another vehicle driven by Nortje.  They drove to a spot on a dirt road where they met two of their black Vlakplaas colleagues.  The latter handed a black male who was being held in the boot of their vehicle over to Gevers and his group.  The person's hands were tied and he was blindfolded.  The person was then placed into the boot of the car in which Gevers was travelling and he, Chait and Swart then proceeded to a point which was identified by Nortje where they would meet two other Vlakplaas colleagues, both co-Applicants namely Vermeulen and Dawid Jacobus Brits ("Brits").  On the way he was informed by Chait and Swart that the person in the boot of their vehicle would be killed.  They further informed him that the person, who was identified as Tiso, was actively involved in obtaining weapons and funds to enable the ANC to continue its armed struggle and also that he was a confidant of Winnie Madikizela-Mandela.  Gevers then accepted that it was necessary to kill Tiso in order to protect the then government and political system.  They eventually met Vermeulen and Brits, both explosives experts, at the appointed meeting point.  After some discussions it was agreed that Vermeulen and Brits would collect explosives in Pretoria and that they would meet Gevers' group at another point.  They parted company some time during the course of the early morning and met again late that afternoon, whereafter Vermeulen and Brits led the way to the Penge Mine.  After their arrival at the mine premises, Tiso was left in the company of Gevers and Brits who proceeded to interrogate Tiso.  During the course of the interrogation Tiso was assaulted in an attempt to extract information from him.  No information of any note was extracted from Tiso in regard to his own activities.  After the rest of the group joined them, Tiso was taken to an open mine in the complex under the pretence that he would be released.  Gevers had earlier volunteered to shoot Tiso once they reached the open mine.  After Tiso was lured from the vehicle, Gevers shot him three times in the vicinity of the heart.  Gevers is not certain whether Tiso died as a result of the shooting.  Once Tiso had fallen to the ground, all of his clothes were removed and were later burnt except for his shoes, which were taken by Brits.  They then put the body in a sitting position and placed explosives on its lap and attached further explosives to the body.  Once they had left the open mine, the explosives detonated whereafter they returned to the spot where the body was left.  It was by then already dark and they only noticed a massive hole where the body was blown up.  They retired to a derelict building on the complex and waited until it became light before returning to the open mine.  They then searched the entire area of the open mine very thoroughly and recovered all of the remaining body parts and collected them in the same hole where the earlier explosion occurred.  The remaining body parts were again blown up with explosives.  The group then repeated the exercise of combing the area, recovering all remaining body parts and blowing them up in the spot where the earlier explosions occurred.  After they were satisfied that the entire body was completely disposed of, they departed from the mine.  Throughout their stay at the mine they were drinking beer.  Gevers ignored a paged message that was conveyed to the group to meet De Kock at their Vlakplaas offices.  He instead proceeded home.  He only saw De Kock on the Monday immediately following the incident at Penge Mine which occurred on a Friday.  He was advised by De Kock to submit false claims in the amount of R2 000-00 per month for 5 months.  He received payment for 2 or 3 months whereafter he was advised by De Kock to cease the false claims.  All of the members who were involved in the incidents in question, subsequently submitted false statements for the purposes of an inquest into the deaths of the four occupants of the minibus.

He conceded that he had no knowledge whatsoever about the backgrounds of the four persons who were killed in the minibus.  He also had no first-hand knowledge about the background of Tiso.  According to the information furnished by Holtzhausen the group of would-be robbers were vigilantes, members of the SDU's who had received military training in exile and were bank robbers acquiring funds for the ANC/PAC (Pan Africanist Congress).  He confirmed that the idea to rob Coin Security was initiated by Van Zyl who showed Tiso where the premises were situated.  He further conceded tat, to the knowledge of all of the members of the police present at the scene of the ambush in Nelspruit, no robbery was to be committed by the group of would-be robbers who were unarmed and were merely lured into an ambush where they would be summarily shot and killed.

WILLEM ALBERTUS NORTJE

He was a member of Vlakplaas since August 1984 and held the rank of Warrant Officer at the time of the incident.  He was involved with Holtzhausen in some aspects of the planning of the incident.  The extent of his participation in the incident can be stated briefly as follows.  He participated in moving the minibus, which was parked in his garage at home after the theft, to the vicinity of Nelspruit and eventually to the point where it was collected by the group of would-be robbers in Nelspruit.  He was also involved in the arrangements to obtain the AK47 rifles that were planted in the minibus as well as the petrol which was used to set the minibus alight.  His role during the incident itself, was to keep the minibus under observation where it was left in Nelspruit for collection by the group of would-be robbers and to alert the police present at the scene of the ambush by radio once the minibus was collected, which he duly did.  After Van Zyl and Tiso's group collected the minibus, he took up position at a point a few 100 metres away from the scene of the ambush from where he could observe the road and announce the approach of Van Zyl's vehicle and the minibus.  He alerted his colleagues at the scene over the radio that the vehicles were approaching and he was some distance away when the shooting occurred.  He eventually arrived at the scene at the stage when the minibus was already alight.  He never participated in any of the shooting on the scene.  He was subsequently involved in the apprehension of Tiso and the arrangements to summon Vermeulen and Brits as testified to by the other witnesses.  He was later only peripherally involved in preparing false statements for the purposes of the inquest into the incident.

He conceded that there was no risk of a robbery being committed and that the so-called robbery was a set up and an excuse to lure Tiso's group to the place where the ambush had been arranged in order to summarily shoot and kill them.  He furthermore indicated that although there had apparently been information that the robbers was somehow linked to politics, he had no first-hand knowledge about this fact.  He indicated that the benefit of shooting the would-be robbers was that there were quite a number of robberies being committed at the time and it was necessary to put an end to that situation.  He also indicated that a further purpose for shooting the would-be robbers was to enable the source, Van Zyl, to obtain compensation.  He also understood that it was an ancillary consideration on the part of De Kock to financially benefit the owner of the minibus.  The latter was a friend of De Kock and was himself a party to the apparent theft of his vehicle.

Nortje experienced difficulty during cross-examination to explain his failure, in his testimony at the criminal trial of De Kock, to indicate that Tiso's group was committing robberies in order to acquire funds for the ANC, which aspect was central to his amnesty application.  He also struggled to coherently deal with his version at the criminal trial that it was part of the planning of the operation that Van Zyl would convince Tiso's group that the weapons which Tiso had requested for the purposes of the robbery, namely AK47 rifles, would be furnished to them in Nelspruit and that it was accordingly not necessary for the group to bring any firearms along.  It was accordingly known beforehand by the police that Tiso's group would be unarmed.  This version was never repeated in Nortje's testimony until the aspect was raised in cross-examination.  Various aspects of his testimony conflicted with the versions of the other witnesses, particularly De Kock.

DEON GOUWS

He was at all material times a Sergeant in the Pretoria Murder and Robbery Unit which he joined during 1986.  He became involved in the incident in question on the instructions of the acting head of the Unit, Captain Geldenhuys.  He was involved in the police plans in regard to the abortive first attempt to rob Coin Security and was later instructed during March 1992 by Geldenhuys to assist with the incident at Nelspruit.  He, Geldenhuys and another Murder and Robbery Unit member Boshoff, joined the Vlakplaas contingent in Nelspruit the day before the incident.  In accordance with his assigned duties during the incident, he took up position next to Holtzhausen at the beginning of the firing line and opened fire on the minibus with an R5 rifle immediately after Holtzhausen fired the first shot.  He was also in possession of an AK47 rifle which was handed to him by Holtzhausen for the purpose of planting it in the minibus after the shooting.  He basically confirmed the sequence of events on the scene as testified to by the other witnesses.  He tossed the AK47 rifle in his possession into the minibus after Holtzhausen had fired a number of shots from the inside of the minibus with an AK47 rifle which the latter subsequently also left inside the minibus.  He also saw Holtzhausen planting two handgrenades inside the minibus.  Although he saw the petrol containers on the scene, he did not actually see who had sprinkled the petrol inside the minibus.  He later saw that the minibus was on fire.  He had no knowledge about the situation relating to Tiso and played no further role on the scene.

He never asked before the incident whether the Vlakplaas members had any information concerning the specific identities of the persons who would be inside the minibus.  Holtzhausen had indicated at one stage that the persons who would be involved in the robbery would all be ANC members.  He acted entirely on the strength of the information furnished by Holtzhausen in this regard and he had no specific knowledge concerning the situation or backgrounds of the would-be robbers.  He confirmed that no robbery was to be committed and that the operation was based entirely upon an ambush set up by the police in which the so-called robbers would be shot and killed summarily.  He did not find this situation strange, since the victims were criminals and members of the ANC.  He felt that the members of the Murder and Robbery Unit were to some extent misled by the Vlakplaas members since the latter had involved them in an operation which eventually transpired to have simply been an ambush in which persons would be shot and killed and where none of the specialists skills of the Murder and Robbery Unit members was required.  He indicated that he had acted entirely on orders from Geldenhuys who had also participated in the operation.

KOBUS KLOPPER

At all material times he was a member of the Vlakplaas Unit and held the rank of either Lieutenant or Captain at the time of the incident.  He was kept abreast of but did not actually participate in the planning of the incident.  On the day before the incident he travelled to Nelspruit together with De Kock and two secretaries of the Vlakplaas Unit.  All of them drank heavily on the way and were intoxicated upon their arrival in Nelspruit.  They met some of the other members of the police who were involved in the incident at the Drum Rock Hotel in Nelspruit.  After having spent a short while at the hotel, they drove to the Kruger National Park and returned later that night to join their colleagues at Nelspruit.  Upon their arrival at the Drum Rock Hotel the rest of the group were in the course of leaving for the scene of the ambush.  De Kock was travelling with him and the two of them followed the other members to the scene where they eventually slept in the vehicle.  At some stage they were alerted about the approach of the vehicles and he took up his position in the line of participants in the ambush.  After Holtzhausen had opened fire on the minibus he joined in the shooting and fired a large number of rounds with his R5 rifle, at the vehicle.  He in fact emptied three magazines on the minibus and estimated that he fired approximately 100 rounds on the scene.  He basically confirmed the rest of the sequence of events on the scene as testified to by the other witnesses.  At some stage after the shooting he pulled his vehicle into the road with a blue light in order to fake a road block.  The idea was to create the false impression that the police had set up a road block and that the occupants of the minibus opened fire on the police at the road block whereafter the police returned fire and killed the occupants.  At a later stage it was ascertained on the scene that the minibus was not reported stolen and he accompanied De Kock who telephoned the latter's brother, Vossie, to arrange for the minibus to be reported stolen.  He subsequently also signed a false statement for the purposes of the inquest into the incident.

He confirmed that he initially believed that the objective of the operation was to prevent a robbery and that arrests would be made but realised at a later stage that the victims would simply be ambushed.  He also confirmed the version in his written amnesty application that the victims were simply set up and that De Kock indicated that he wanted to teach them a lesson pursuant to an earlier robbery in Witbank in which a white lady was shot by some robbers.  He was unable to explain why there was no reference in two of the written statements deposed to by him and submitted as art of the amnesty application, that the would-be robbers were ANC members who wanted to fill the coffers of the ANC.  He, however, testified that some of this information was mentioned among the police although he was unable to state who in particular mentioned this information.

He also confirmed that the focus of the work of the Vlakplaas Unit shifted during 1991 away from politics towards criminal matters.  He confirmed having never received any orders to retain the arsenal of arms to which they had access at Vlakplaas.  These weapons were moved at one stage to another location due to fears of a possible raid on Vlakplaas.

He pointed out that the members of Vlakplaas, including De Kock, were engaged in large scale fraud and corruption concerning false monetary claims, which permeated the entire Unit.  He referred to what can only be termed an organisational culture of corruption, in the following dramatic terms:  "If the Generals could steal, if they give you instruction to steal, why can't you steal for yourself?  I think that this was the feeling of the people, it seems even Mr De Kock".  He indicated that it was a general practice to institute fictitious claims in order to fund various activities including some of a personal nature.  Even in the case of genuine claims submitted on behalf of sources, often only a part of the compensation eventually authorised and paid out by the police authorities was paid over to the source.  The balance would be used for the benefit of the Vlakplaas members.  In such cases the receipt for the lesser amount signed by the source would be destroyed and a receipt for the full amount paid out would be signed by means of a forged signature and submitted as part of the official police records.  Although he had no first-hand knowledge of the specific circumstances relating to compensation in the Nelspruit incident, he indicated that in the light of the general practice followed at Vlakplaas, it is likely that only a portion of the R20 000 paid out in respect of the incident was actually handed over to Van Zyl and that the balance was kept by the members of Vlakplaas.

JOHANNES JACOBUS SWART

At all material times he was a Sergeant attached to the Vlakplaas Unit.  Prior to the incident in question he was instructed to proceed to Nelspruit to assist with the operation.  He acted on orders from his commander, De Kock.  He basically confirmed the sequence of events leading up to the shooting.  He had taken up a position just behind Klopper on the scene and after Holtzhausen had opened fire on the minibus, he joined in the shooting by firing on the minibus with an R5 rifle.  He used up two magazines.  After the shooting had died down, he proceeded to the minibus which had come to a halt some distance away from where the shooting occurred.  At some point he looked inside the minibus and saw a person who was still alive at the back.  The person reached towards him and since it was dark at the back of the minibus he was not sure whether the person was armed.  He suspected that the person wanted to shoot him.  He made observations inside the minibus in the light of a torch which was in the possession of Klopper.  He immediately fired approximately 5 shots into the chest of the person at the back of the minibus whereafter he withdrew from the scene.

At a later stage he was ordered by Captain Geldenhuys and Gevers to empty the boot of his vehicle and to follow the vehicle of Nortje.  He did so and was accompanied by Gevers and Chait.  They met two of their black colleagues who was in the company of an unknown black male, who was later identified as Tiso.  Tiso was later placed in the boot of his vehicle and they drove to a point where they had to meet up with Vermeulen and Brits on the orders of Nortje.  Eventually they followed Vermeulen and Brits to the Penge Mine where they drove to a derelict building.  At some stage Brits and Gevers interrogated Tiso while he took notes.  Tiso admitted being a MK member who robbed on behalf of the ANC and he was the driver of Mrs Madikizela-Mandela.  He also gave the names of people who were smuggling arms.  Swart did not only contradict Gevers in regard to what Tiso allegedly conveyed to them during the interrogation but his version in regard to the assaults during the interrogation also conflicts with the evidence of Gevers.  On his version there was only a minor assault whether Tiso co-operated with them to such an extent that they gave Tiso three beers to drink.  He basically confirmed the sequence of events leading up to the killing of Tiso in the open mine as well as the aftermath to the killing including the destruction of the body with explosives.

He conceded under cross-examination that he has no knowledge of the political affiliation of Mama and that the latter could possibly have been robbing for his own gain and not on behalf of a political organisation.  He also indicated that he did not know for what reason Tiso was killed or what the political motivation behind the killing was.  He experienced difficulty in cross-examination to explain the fact that there was no reference to the alleged ANC affiliation of the would-be robbers in his written amnesty application although he later indicated that he had actually forgotten to refer to that in the written application.  He furthermore testified that according to the available information, the robbers were wanted in connection with other robberies and that one of the group was involved in the incident at Witbank where a white woman was killed by robbers.

JOHANNES HENDRIK PETRUS HANEKOM

He was a Sergeant at Vlakplaas for a period of 2 years at the time of the incident.  He was instructed by Holtzhausen, a day before the incident, to prepare to travel to Nelspruit to participate in the operation.  He only had limited knowledge of the circumstances relating to the incident.  He eventually joined the group at the scene of the ambush and also opened fire with a R5 rifle after Holtzhausen had fired the first shots at the minibus.  After a few rounds his rifle jammed and he fired a few more rounds at the minibus with his 9mm pistol.  He estimated that he did not fire more than 9 rounds in total at the minibus.

According to the available information he understood that the victims were a group of robbers who were involved in ANC activities.  He confirmed the statement contained in his written amnesty application that Ben Van Zyl gave the police false information concerning the incidents ("Ben Van Zyl die SAP vals ingelig het rondom die waarheid").  He also indicated that the junior officers were misled about the nature of the operation and indicated that if he had known the robbers were out to rob for themselves, he would not have taken part in the operation.  He confirmed that he did not know who the occupants of the minibus were and that he could not give any information concerning the background or political affiliation of the deceased Mama.

He testified that since 1990 subsequent to the unbanning of the liberation movements, the role of Vlakplaas had changed to the investigation of common crimes.

DAWID JACOBUS BRITS

He was an explosives expert and held the rank of Warrant Officer at the time of the incident.  He was stationed at Vlakplaas under the command of De Kock.  He had no prior knowledge of the Nelspruit incident, but became involved in the killing and destruction of the body of Tiso afterwards.  He was telephoned early on the morning of the incident by Vermeulen who informed him that the Vlakplaas Unit had problems on their hands and that they needed assistance.  He then accompanied Vermeulen to Middelburg where they met Gevers, Swart and Chait.  Gevers gave them brief details about the earlier incident at Nelspruit and informed them that Tiso was in the boot of Swart's vehicle in which they were travelling.  They were informed that Tiso was the driver of Mrs Madikizela-Mandela and that he had received military training.  He had to be killed and the body destroyed.  He and Vermeulen then returned to Pretoria to get explosives and arranged with Gevers to meet them on the way to the Penge Mine.  They later proceeded to the mine and first called at a derelict building in the vicinity.  Here, Tiso was interrogated at his instance.  Swart kept notes and Gevers also participated in the interrogation to some extent.  He indicated that it was simply a whim on his side to interrogate Tiso, since he was also a detective who was always interested in obtaining information that could be used during other investigations.  He indicated that the notes of the interrogation were not handed over to him and that he had never seen them since neither did he find any use for the information furnished by Tiso which turned out to be irrelevant.  Tiso, however, confirmed that he was a military trained MK member and that he was involved in robberies to raise funds for the ANC.  He contradicted the evidence of Gevers on the extent of the assaults perpetrated upon Tiso during interrogation.  On his version, these assaults were much more limited than alluded to by Gevers and in his view there was no need for the assaults.  He made the remarkable proposition that in spite of all of the prevailing circumstances, Tiso voluntarily participated in the entire process right up to the point when he was killed.

At a later stage Tiso was taken down to the open mine.  He held onto Tiso's arm as they walked into the mine and at some point he turned Tiso around to enable Gevers to shoot Tiso.  He corrected the earlier version in his written amnesty application which was confirmed in his evidence in chief that Tiso's clothes were removed before he was shot and indicated that this in fact happened after the shooting.  The body was then blown up with 25kg of military explosives which was in their possession.  The next morning they returned to the site of the explosion and combed the area collecting all the remaining pieces of bones and tissue.  These were again blown up and this process repeated until all traces of Tiso's remains were completely destroyed.  Later that evening Tiso's clothes were burnt, but he held onto Tiso's shoes.  He emphatically denied that he intended stealing the shoes, but indicated instead that the shoes had buckles which would not have been destroyed in the fire and he was concerned about leaving any evidence behind of Tiso's presence at the scene of the killing.  In spite of these concerns, he kept the shoes for approximately 2 months in his office until he suddenly remembered about it and handed the shoes to Swart to destroy.

Tiso had to be killed in order to prevent further damage and loss of innocent lives which normally result from robberies and because he was the driver of Mrs Madikizela-Mandela.  A further reason for killing Tiso was because he was an MK member who was raising funds for the ANC through robberies.

NICOLAAS JOHANNES VERMEULEN

He was a member of the Vlakplaas Unit and an explosives expert who held the rank of Warrant Officer.  He became involved in the Nelspruit incident after the shooting had occurred and at the stage when Tiso was apprehended and had to be killed and the body destroyed.  After having received the telephone call from Nortje, he and Brits proceeded to Middelburg where he met Gevers and the other Vlakplaas members.  After Gevers briefed him and Brits about the situation, arrangements were made for Gevers and his group to proceed to the vicinity of the Penge Mine where he and Brits would meet them after having collected the necessary explosives from Pretoria.  He basically confirmed the sequence of events leading up to and following the killing of Tiso as testified to by the other witnesses, in particular Brits.  He indicated that he had merely acted on instructions which were conveyed to him by Gevers and which he assumed emanated from De Kock.  He was unable to comment on the proposition put to him in cross-examination that it was unnecessary to kill Tiso.

He had earlier been involved in the theft of the minibus which was used in the Nelspruit incident.  On that occasion he had accompanied De Kock to the premises of the Riebeeck Hotel in Benoni.  A friend of De Kock, one Manny, held an interest in the hotel.  After he and De Kock had been inside the hotel, De Kock handed over a car key to him and took him to where the minibus was parked in the hotel's parking area.  He removed the minibus and kept it in his garage at home for approximately 1 or 2 weeks whereafter he was instructed by De Kock to bring the minibus to the premises of the Unit at the Grasdak in Waterkloof, Pretoria.  He had not seen the minibus subsequent to that.

He received compensation for his participation in the incident at the Penge Mine.

EVALUATION

The following summary of undisputed facts as well as factual findings are material to assessing the merits of the applications :

1.    None of the occupants of the minibus ("the deceased") was a member of the ANC or a political activist;

2.    There was no credible evidence or any reasonable basis or a bona fide belief that the deceased were committing robberies on behalf of the ANC or were MK members.  Van Zyl, supposedly the source of the information allegedly relied upon by the police, had no personal knowledge about the background or possible political affiliation of the deceased and was never introduced to them.  All of the other Applicants allegedly relied upon Van Zyl for their view that the deceased were MK members committing robberies on behalf of the ANC;

3.    The deceased were not on their way to commit a genuine robbery but were being set up to be killed in an ambush;

4.    There was no obstacle which prevented the police from arresting the group.  The police took a conscious decision not to effect any arrests.  This was contrary to their approach towards the first abortive Coin Security robbery where their objective was to arrest the robbers whom they later believed to have been the same group killed in the subsequent incident;

5.    The deceased were unarmed and posed no threat to the police;

6.    The operation was authorised beforehand only by De Kock, himself one of the perpetrators.  He failed to raise the matter with his superior, General Engelbrecht but was instead party to submitting a false information note to the police authorities in order to obtain the necessary permission to travel to Nelspruit to perpetrate the killings.  There is no persuasive evidence that De Kock had the necessary authority to personally authorise an operation of this nature under the specific circumstances when the mandate of the Vlakplaas Unit had shifted to ordinary crime duties and away from politics and at a time when the ANC had been a lawful organisation for almost two years and had been engaged in political negotiations with the then government.  General Engelbrecht strenuously disputed the suggestion that he ratified the killings, although only limited weight can be attached to his written version which was obviously not subjected to cross-examination;

7.    The Applicants failed to investigate and neglected to take any steps to independently ascertain the background and circumstances of the group before deciding upon such radical action as summarily killing all of them.  This is particularly unjustified in view of the fact that Van Zyl had scant, if any, reliable information in this regard.

8.    It was not in serious contention that in the absence of an established political connotation to the activities of the group, the justification relied upon by the Applicants for the ambush and killings would fail.

One of the requirements, set out in s20(2) of the Act, in order to qualify for amnesty is that the offence in question should constitute an act associated with a political objective as envisaged in the Act.  For present purposes, the relevant requirement is that the offence should have been directed against a political opponent.  The Committee is, moreover, also required to have regard to the criteria set out in s20(3) of the Act which include the questions whether the victim was a political opponent and whether the offence was proportional to the objective which the applicant pursued.  In our view these issues are determinative of the applications.  It is accordingly unnecessary in our view to deal with any of the other requirements of the Act and we consequently proceed to only consider these relevant requirements.

It is clear that in spite of Applicants' attempts to argue to the contrary, there is absolutely no acceptable or convincing basis for suggesting that any of the victims in the minibus was a political opponent of the National Party or the then government supported by the Applicants.  The evidence of the Applicants that these victims were militarily trained MK members who were executing robberies on behalf of the ANC, was basically founded on unacceptable and unfounded assumptions and inferences.  All of them who were confronted on this aspect in cross-examination, conceded that they had no evidence in support of this contention.  None of them was aware of the identities of these victims or ever met them before, save for Van Zyl who fleetingly looked inside the unlit minibus when he asked the driver to follow the vehicle driven by Van Zyl.  It is clear that Van Zyl's view that these victims were members of the group involved in the abortive first robbery attempt at Coin Security, was nothing more than speculation.  He had never met or ever seen the members of that group properly.

In many instances, the alleged political affiliation of the victims was never raised in prior statements, prior testimony or in the written amnesty applications of some of the Applicants.  There were, moreover, suggestions that some members of the group were members of the Pan Africanist Congress ("PAC") and mention was even made of the Inkatha Freedom Party ("IFP") in this regard.  It was not seriously contested that the ANC by all accounts never had an official policy of sanctioning or executing robberies.  Tiso's involvement with Mrs Madikizela-Mandela does not detract from this fact.  The allegation or innuendo that Mrs Madikizela-Mandela was somehow involved in nefarious activities or even bank robberies was never backed up by any concrete evidence or proof submitted by any party at the hearing.  In any event, the reference to Mrs Madikizela-Mandela does not link any of the activities of Tiso or the victims in the minibus to the ANC.  In fact, there were suggestions on the part of some Applicants that Tiso made it clear that he was allegedly involved in a dispute with Mrs Madikizela-Mandela and wanted to commit a robbery for his own account, hence his involvement in the plan suggested by Van Zyl to rob Coin Security.

In view of the facts set out above, we are not satisfied that any of the victims in the minibus was a political opponent of any of the Applicants or their principals in the sense set out above.  Insofar as Tiso is concerned, it is common cause that he was a MK member, but that he had a dispute with the ANC authorities and that he had consequently spent the greater part of his time in exile in the ANC detention camp at Quattro.  His dispute with the ANC continued after his return home, although it was eventually resolved.  He started working for Mrs Madikizela-Mandela during March 1992, the month in which he was killed.  Neither Van Zyl nor any of the other Applicants was in a position to substantiate their allegations or impressions that he was committing robberies on behalf of the ANC.  This impression is contradicted by the fact referred to above, that Tiso allegedly indicated that he wanted to commit robberies for his own account after the alleged argument with Mrs Madikizela-Mandela.  Any possible weight which could be attached to the suggestion that Tiso himself allegedly confirmed that he was robbing on behalf of the ANC is countervailed by the fact that Tiso was given to "boasting or bragging" and clearly never fully trusted Van Zyl even up to the very last moment when he failed to accompany the rest of the group in Nelspruit.  It is accordingly highly improbable that he would take Van Zyl, whom he did not fully trust, into his confidence on a crucial aspect such as the alleged role of the AC thus implicating the ANC and exposing it to the risk of being discredited for engaging in common crimes.  It was not even necessary for Tiso to disclose this information for purposes of the planned Coin Security robbery.  We, moreover, reject the version of Brits and Swart that Tiso confirmed during interrogation that he was robbing on behalf of the ANC.  This allegation is contradicted by Gevers who indicated that Tiso never conveyed anything of note during the interrogation in spite of having been assaulted and interrogated for some time.  Brits' suggestion that Tiso co-operated voluntarily until he was shot and that there was need to assault him during interrogation is so inherently improbable that we unhesitatingly reject it as false.  Tiso had been apprehended many hours earlier and was tied with a rope and transported over long distances in the boot of a vehicle.  Indications are that he was never given anything to eat and drink.  He was taken to a deserted area in an old mine which would obviously have been a strange environment to him.  He had never taken to any police station or dealt with in accordance with normal police procedure.  Given his background with MK, he would in all probability have been aware that he was about to be killed.  It is beyond the realm of belief that he would have voluntarily co-operated with his captors as suggested by Brits.  The version of Gevers that Tiso was assaulted for some time, approximately 15 minutes, during the 1 - 11/2 hours long interrogation, is more probable.  We also find Brits' version improbable that although Tiso had given critical confirmatory information that he was robbing on behalf of the ANC and that notes were taken of the interrogation, he never had any further dealings with the notes.  This conclusion is reinforced by his version that he initiated the interrogation which was never planned, because as a detective he was always interested in obtaining information which could be of assistance to the police.  On his version he managed to elicit crucial information from Tiso which corroborated the very basis for Tiso's killing, yet he subsequently showed no interest at all in the notes containing that information.  He was not even sure what exactly happened to the notes subsequently.  The version of Gevers that Tiso gave no significant information, is more probable and explains why there was no particular interest in the interrogation notes which would have been of little, if any, value.  Brits was unable to explain why the notes, with the allegedly important information, was not handed to Gevers who was a captain and highest in rank among those present.  The suggestion of Brits and Swart that the crucial confirmation of the ANC involvement could have been given by Tiso at a stage when Gevers was not inside the room, is a shrewd but transparent attempt to avoid the clear contradiction between their version and that of Gevers.  Even if it was so, it could be expected that they would have mentioned this crucial bit of information to Gevers, who was their superior and who also participated in the interrogation.  In fact, on their version Gevers was the one who assaulted Tiso presumably because he was not co-operating.  The disclosure concerning the ANC would have been significant confirmation that Tiso was now co-operating, which would obviously have satisfied Gevers.  There was accordingly every reason for Brits and Swart to have conveyed this development to Gevers.  In any event, the version of Gevers was never disputed in cross-examination on behalf of Brits and Swart.  In the circumstances, we have no hesitation whatever in rejecting the version of Brits and Swart concerning the interrogation where it conflicts with that of Gevers.

The allegation that Tiso wanted to commit the robbery for his own account is more probable and it is not unlikely that he would have conveyed this information to Van Zyl even if he did not trust the latter completely.  He was prepared to go along with the plan and there would thus be no added risk in indicating to Van Zyl that he wanted to rob for his own account.  The very basis of his discussions with Van Zyl was all along that he wanted to make money quickly.

Having carefully considered the matter as well as all the evidence and argument in this regard, we are not satisfied that Tiso was committing robberies on behalf of the ANC as argued by the Applicants.  We find that he was planning to commit robberies for his own account and that his possible connection to the ANC had no relevance to his alleged criminal activities.  It is not uncommon that individual members of political organisations, for various reasons such as need or even greed, engage in criminal conduct not sanctioned by the organisation.  Such crimes cannot be ascribed to the organisation particularly where, as in the present case, the organisation has no policy authorising the commission of such crimes.  In Tiso's case the conclusion that he was acting to enrich himself, is supported by the fact that he earlier unsuccessfully attempted to dupe Van Zyl into buying baby powder for cocaine.  It is far-fetched to suggest that this conduct was sanctioned or authorised by the ANC who was engaged in very serious attempts at the time to arrive at a solution to the political problems of the country so as to pave the way for elections which on all accounts would have placed the governance of the country into its hands.  In all the circumstances, we are not satisfied that the killing of Tiso amounted to action taken against a political opponent.  In our view there is also no reasonable grounds for such a belief on the part of any of the Applicants either in respect of Tiso or the deceased in the minibus.  At the time of the killings political negotiations were in progress and the traditional role of Vlakplaas had changed.  None of the Applicants, including the junior officers, furnished any persuasive grounds supporting a bona fide belief that they were acting against political opponents.  The particular context and circumstances ought to have alerted them to the fact that the planned killings could be unjustified and thus necessitate a proper enquiry into the particular circumstances of the case.  The most elementary enquiry would have disclosed that the source, Van Zyl, himself had virtually no credible evidence or proof that the would-be robbers were political opponents.  No basis was laid by any of the Applicants, justifying this neglect to properly investigate the matter.  There was no Applicants, justifying this neglect to properly investigate the matter.  There was no particular urgency to execute the operation and the police were fully in control of the circumstances surrounding the planned robberies through the source.  Van Zyl.

In considering the relevant criteria set out in section 20(3), we are, moreover, not satisfied that the killings were authorised by Applicants' superiors.  In our view, despite the position which might have obtained earlier, De Kock did not have the necessary authority to order such radical action as summarily killing five people, at the time and under the prevailing circumstances which will be set out more fully below when we deal with the issue of proportionality.  We are not persuaded by the argument that he enjoyed the necessary discretion to have authorised the operation without reference whatever to his superiors.  In view of all the developments which occurred at the time in regard to the role of Vlakplaas and generally on the political scene, he could not have reasonably believed that he enjoyed such powers.  The fact that he was a party to misleading his superiors by means of a false information note, is indicative of the fact that he knew full well that the killings would never have been authorised given the lack of any substantial information concerning the alleged political context of the actions of the victims and the fact that the option of arresting the group was wide open to the police.  There was simply no attempt to inform the superiors of the true state of affairs and then asking for directions possibly off the record, even if the false information note was intended to serve as the version of the operation to be used in the official records.  There were indications that in illegal operations, the true nature of the operation can be conveyed verbally so as to avoid having a potentially incriminating written report on the official police records.  None of this was done in the instant case.  The faint attempts to make out a case that General Engelbrecht somehow ratified the killings are unconvincing.  Not only does General Engelbrecht flatly deny and contradict this version, some of the Applicants pointed out that General Engelbrecht merely assisted with ensuring that the statements which had already been drafted by that time, cohere.  The argument was raised that General Engelbrecht was a party to consciously covering up the illegality of the operation by assisting to draft false statements for those involved.  He is thus said to have ratified the killing.  In our view, even if General Engelbrecht was a party to preparing false statements, it does not necessarily follow that he ratified the killing.  He could have been involved in defeating the ends of justice, in an attempt to assist his subordinates in dealing with a difficult situation without necessarily approving of what they did.  In any event, De Kock was quite emphatic that he personally issued the order to kill the victims and that he never had any authorisation nor did he seek authorisation from any of his superiors, including his immediate superior General Engelbrecht who was at all material times readily available and accessible.

Having regard to all of the circumstances of the matter, the summary killing of four unarmed persons who had been led into an ambush and the subsequent killing and gruesome act of destroying the remains of Tiso are grossly disproportionate to any conceivable objective which the Applicants could arguably have pursued.  All of the Applicants indicated that they were acting in defence of the government against the threat of the ANC's armed struggle.  It was common cause and generally known that all liberation movements, including the ANC, were unbanned on 2 February 1990, more than two years prior to the killings.  The ANC had been engaged in political negotiations with the then government in order to resolve the political impasse which faced the country.  It could not reasonably have been doubted at the time of the killings that the ANC was committed to finding a negotiated political settlement.  The organisation had in fact earlier suspended its armed struggle.  Some of the Applicants, particularly De Kock, contended that the ANC had a secret agenda, in that it pretended to be committed to negotiations, while i effect continuing with the armed struggle.  They rely on the Operation Vula incident as support for this contention.  It was however, conceded by the Applicants involved that this incident had occurred some time prior to the killings and that Operation Vula had effectively been terminated after the arrests of those ANC members involved.  This incident accordingly does not support the position contended for by the Applicants.  The argument that the ANC was still actively engaged in the armed struggle at the time of the killings, is completely unfounded.  The allegation is simply absurd that the organisation was engaging in bank robberies in 1992 to finance the armed struggle.  The argument that the killings had to be perpetrated in order to stop these robberies and cut off a channel of funds for the armed struggle, is a desperate attempt on the part of the Applicants to conjure up some political context for their despicable deeds.  The so-called robbery was initiated at the instance of the police through the agency of Van Zyl who had actively influenced Tiso to engage in the robbery.  The police had virtual complete control over the developments on the night of the incident.  They could have intervened at any stage to stop or arrest the group who was unarmed, except for Tiso who had a revolver furnished to him by Van Zyl.  The police was never under any threat of being harmed by the group and they knew that there was not going to be any genuine robbery at all.  They mercilessly shot, instead of rendering assistance to, those victims in the minibus who miraculously still showed some signs of life after the minibus was peppered with numerous volleys of automatic gunfire.  One of the victims was left to burn alive after the police had set the minibus alight with petrol and the handgrenades which were planted in the minibus, detonated.  All of these shocking actions were allegedly authorised by one of the perpetrators, De Kock, on his own without any reference to his superiors at a time when the Vlakplas Unit was re-oriented to focus on the investigation of crime.  The killings were purportedly justified by the Applicants as a blow against the alleged armed struggle of the ANC, which was a lawful organisation at the time.  Not surprisingly, no convincing reasons were given why the stated objective of the Applicants could not have been achieved through the arrest of the group and the concomitant exposure and discrediting of the ANC as an organisation involved in criminal activities, such as bank robberies.  On all accounts, this course was always open to the perpetrators who, in fact, consciously decided against it without clearing the matter with their superiors.

In the case of Tiso, the motivation for the killing was obviously to cover-up the earlier killings of the victims in the minibus and to protect the police, particularly Vlakplaas, from being exposed.  There was no indication that Tiso would have been able to make the connection between Vlakplaas and the killings.  He had known Van Zyl as a character from the underworld and was unaware of Van Zyl's true identity and legitimate business activities.  To Tiso's mind the victims would have been killed in a shoot-out with the police on their way to commit a robbing at Coin Security in Nelspruit.  He had earlier requested AK47 rifles from Van Zyl.  It appears that Tiso and his group were brought under the impression that these firearms would be supplied in Nelspruit, as was the case with the minibus.  The planted evidence would have indicated that the victims shot at the police at a roadblock.  This would largely have fitted into Tiso's understanding of how the robbery was planned.  To his mind, he would not have been linked to the robbery or the killings except through Van Zyl.  Tiso was accordingly not likely to have gone to the police to report the matter and implicate himself.  There was accordingly little, if any likelihood of the ambush being exposed by Tiso.  His killing was therefore completely unjustified and grossly disproportionate to the Applicants' stated objective.  Moreover, in view of our finding that the killings of the victims in the minibus were wholly unjustified and not associated with any political objective, the objective pursued in killing Tiso would have been to conceal the criminal conduct of the police.  This objective is devoid of any political connotation and obviously cannot justify the cold-blooded killing of Tiso in terms of the Act.

CONCLUSION

Having carefully considered the matter and for the reasons set out above, we are not satisfied that either the killings in question or any other offences committed by the Applicants in the course thereof, constituted acts associated with a political objective as envisaged in the Act.  More particularly, the offences were not directed against political opponents as required by the Act and the killings were grossly disproportionate in all of the circumstances of the matter.  The applications accordingly fail to comply with the provisions of section 20(2) of the Act and are REFUSED.

DATED at CAPE TOWN this                 day of MAY 2001.

ACTING JUDGE D POTGIETER

ACTING JUDGE C DE JAGER

MR J B SBANYONI

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