DECISION
The Applicants applied for amnesty in respect of the following offences and delicts:
1. The murder of persons known as MK Brown and MK George in Swaziland near the Oshoek border post on or about 8 December 1981;
2. All other offences and delicts directly related and connected with the murders and flowing from the facts deposed to.
The Applicants Wandrag, Strydom, Hope, Dercksen, Steenberg, Le Roux and Moolman were all members of the Special Task Force of the South African Police ("SAP"). Moolman as well as another member of this Task Force, Prinsloo are deceased. Moolman applied for amnesty and the Committee was advised that amnesty on his behalf would still be sought as his estate might otherwise be held liable on delictual grounds.
The other Applicants, Viktor, Nel, Gert Visser and Schalk Visser were all members of the Security Branch of the SAP. The Committee will also refer to Willem Frederich Schoon, Sergeant Selepe (also deceased) and Mr Mnisi in this decision.
The offences were ordered, advised, planned or directed within the Republic of South Africa ("RSA") while the actual deaths occurred in Swaziland.
The Committee will firstly deal with the application of the deceased Moolman. His application is formally in order. His participation and the role he played are made clear in the evidence of the other Applicants. Section 20(7) of Act 34 of 1995 ("the Act") states:
"(c) No person, organisation or State shall be civilly or vicariously liable for an act, omission or offence committed between 1 March 1960 and the cut-off date by a person who is deceased, unless amnesty could not have been grated in terms of this Act in respect of such an act, omission or offence".
The Committee is satisfied that his application should be regarded as similar to the applications of Hope, Dercksen, Steenberg and Le Roux who acted under the command of Strydom.
According to the evidence Willem Frederich Schoon was also present at Oshoek in order to report back to Security Police head office. He did not pay an active role in the operation and did not give any orders. Although he applied for amnesty in a large number of incidents, eh did not include this incident in his application. An attempt was made at the hearing to amend his application to include this incident. The Committee refused the application for an amendment because it was sought after the deadline for filing applications had expired and it attempted to introduce an incident that was not referred to in his amnesty application. He was therefore not an Applicant in this incident.
Mnisi, who lured the deceased to the spot where they were to be arrested (or killed), also applied for amnesty. His application concerns various offences and, was dealt with in a separate hearing. Although the name of Sergeant Selepe was also mentioned, there was no evidence that he played any active role in the incident. He is also deceased.
The Committee will now deal with the applications of the remaining Applicants.
Nel testified that he was a Major in the SAP serving in the Security Branch. His task was to investigate security matters relating to treason, terrorism and political offences. There was an attack with a 122mm rocket on the Voortrekkerhoogte Military Base on 12 August 1981. At approximately the same time the Impala electrical sub-station outside Elarduspark near Pretoria was damaged with limpet mines. The African National Congress ("ANC") accepted responsibility for both incidents. Nel and Gert Visser were charged with the investigation. As a result of information obtained one Molefe was questioned and that led to the arrest of Mnisi. Mnisi later joined the Security Police. During his interrogation after his arrest he admitted that he was sent to the RSA by Siphiwe Nyanda, Aboobaker Ismail and MK George who were prominent leaders in Special Operations of Umkhonto weSizwe ("MK"), the military wing of the ANC. According to him violence and attacks were escalating at the time, originating from the Swaziland MK command.
Mnisi later applied for amnesty for his involvement in the incident referred to as the Magoos Bar Attack, as well as attacks on the Impala electrical sub-station and several other electrical power sub-stations.
After Mnisi's decision to co-operate with the Security Police it was arranged that he should lure MK George to the Swaziland border where he could be arrested. They realised that MK George and Mnisi's instructors were well trained and would in all probability be armed and that an arrest would not be without danger. It was for this reason that Viktor requested General Johan Coetzee to instruct Wandrag, who was the Commander of the Special Task Force of the SAP, to carry out the operation.
The reason for the latter's involvement was that they anticipated resistance and the Task Force was specially trained and equipped to deal with such a situation. After the go-ahead had been given, Mnisi telephoned MK George and attempted to arrange a meeting in the RSA near the Swaziland border so that the arrest could be carried out. George was reluctant to meet Mnisi outside Swaziland and ordered him to meet him at a venue in Swaziland near the border. It then also became clear that an arrest would not be possible, and it was decided to carry out an abduction.
Nel further testified that Viktor, Gert Visser, Detective W/O Selepe, Mnisi and himself proceeded to Oshoek border post on the Swaziland border. They were met at the border post by Schalk Visser who was the Divisional Commander of the Security Branch at Middelburg. The operation would be carried out within the area falling under Visser's command.
At the border the above-mentioned members of the Security Branch met the members of the Special Task Force under the command of Wandrag. He further testified that Schoon was also present at Oshoek.
Gert Visser took the members of the Task Force to point near the proposed venue where Mnisi was to meet MK George. The members of the Task Force acted under the command of Strydom who was to be the operational commander. The senior officers, Wandrag, Viktor, Schoon and Schalk Visser remained near the Oshoek border post.
Wandrag testified that he was the senior officer on the scene and he arranged with the SAP border patrol unit to limit their patrols so that there would not be a clash between members of the Task Force and the patrolling unit during the operation.
The Task Force members, under the command Strydom and accompanied by Gert Visser, crossed the border and took up position near the point where Mnisi and George had agreed to meet each other.
Strydom testified that as expected a vehicle approached the scene but stopped at a distance outside their reach. The vehicle stopped for a few minutes, then turned around and drove away. They abandoned the operation and went back to the RSA and later departed for Pretoria.
In the meantime Nel and Mnisi had driven back to Carolina from where Mnisi again telephoned George. He told George that he had seen the latter's vehicle but that it had stopped at the wrong place. They then again discussed the spot where they would meet and agreed to meet each other at the venue later the same night.
The Task Force members were at that stage already on their way back to Pretoria but were called back. Back at the border the Task Force was again instructed to take up position in Swaziland. They slightly changed their positions from where they were earlier that night so that they could cover a wider area. After a while the same vehicle approached and stopped much closer to them than the previous time. Strydom gave the signal that the members of the Task Force should approach the vehicle to carry out the abduction. He thereafter heard a person shouting from the vehicle and also heard that an automatic weapon was cocked in the vehicle. They were very close to the vehicle and he gave the command to fire at the vehicle. According to Strydom he himself, Steenberg and Hope fired as they were the nearest to the vehicle. After hearing the automatic weapon being cocked, he had no doubt that the people in the vehicle would start firing at them. He cannot remember how many shots he had fired but the vehicle caught fire and they had to leave the scene. He later learned that two people were killed.
He testified that he acted in order to stop the revolutionary onslaught and that he bona fide believed that the steps taken did fall within the ambit of his duty as a member of the Security Force. The other members of the Task Force carried out his orders.
On being asked whether he thought that this operation was justified, he replied: "yes, my unit would have executed this operation even if we had to swim to Russia to execute this operation. This is how convinced we were. But we did not question any orders, we did what we were told to do".
He further testified: "we were involved in a war and we would have executed an order, it did not matter what the order was".
All the other Applicants testified, confirming what is summarised above.
It was later established that the two deceased were members of the MK command structure. They were known as MK George and MK Brown.
In order to qualify for amnesty the Committee should be satisfied that the requirements laid down in Section 20 of the Act have been met.
Section 20(1)(a) stipulates that the application should comply with the requirements of the Act. It was common cause that the applications were formally in order and filed timeously.
Section 20(1)(b) requires the Committee to be satisfied that:
"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 subsections (2) and (3)".
It is common cause that the offences were committed in the course of the conflicts of the past. The Applicants also met the requirements laid down in Section 20(2)(a), (b), (f) and (g). Section 20(2)(b) in particular deals with members of the Security Forces of the State. The relevant part reads as follows:
"(b) ....... any member of the Security Forces of the State ...... in the course and scope of his or her express or implied authority against a publicly known political organisation or liberation movement engaged in a political struggle against the State ....... or against any members or supporters of such organisation or movement".
It is common cause that all the Applicants were members of the Security Forces. Similarly, it is common cause that both deceased were members and supporters of political organisations who were engaged in a political struggle against the State.
The provisions of Section 20(3) remain to be dealt with. This subsection deals with the criteria for deciding whether the act committed was an act associated with a political objective.
Section 20(3)(a) requires the Committee to have regard to "the motive of the person who committed the act". There was no suggestion that the offences were committed for person gain or out of malice. The Applicants testified that they acted to protect the government of the day and to keep that government in power. The decision was made by the commanders and they obeyed the order.
Section 20(3)(b) requires that the context in which the act had been committed be considered. The evidence was that it was committed in reaction to attacks commanded from Swaziland by inter alia the deceased MK George.
Section 20(3)(c) refers to the legal and factual nature of the acts. In many hearings before the Committee the legal and factual nature of the offences were that people, and in certain instances, innocent bystanders or children were killed or attacked.
Section 20(3)(d) requires that regard be had of the "object or objective of the act and whether it was primarily directed at a political opponent". The objective was to abduct the deceased but if the abductors were endangered they had to respond. The Applicants were aware that the deceased would probably be armed. They were committing an offence and in the process created an emergency situation. They would not be able to rely on self-defence in an emergency caused by themselves. Their wider objective was to neutralise a political opponent by arresting or abducting him so that he would not be in a position to command or execute attacks against the then government.
The acts were committed in the execution of an order of, or on behalf of, or with the approval of the institution as required by Section 20(3)(e).
Subsection 3(f) deals with the relationship between the offence and the political objective pursued or the proportionality between the offence and the objective pursued. The objective was to neutralise the deceased by arresting or abducting them and in the event of resistance, which might endanger the lives of members of the Task Force, to kill them. In the course of abduction, it became apparent that the abductees were armed and were preparing to fire an automatic firearm. The abductors opened fire which resulted in the death of the deceased.
The Committee is satisfied that the Applicants have made a full disclosure of all relevant facts and that the requirements of the Act have been met. Amnesty is accordingly GRANTED to the Applicants in respect of the following offences:
1. The murder of persons known as MK Brown and MK George in Swaziland near the Oshoek border post on or about 8 December 1981.
2. All other offences and delicts directly related and connected with the murders and flowing from the facts deposed to.
In our opinion the next of kin of the deceased are victims and they are accordingly referred for consideration in terms of the provisions of Section 22 of the Act.
SIGNED AT CAPE TOWN ON THIS THE 24TH DAY OF MAY 2001
D POTGIETER A-J
C D JAGER A-J
ADV L GCABASHE
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