MINORITY DECISION
These are applications for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995. In the main the applications relate to the conspiracy and murder of Khulumile Portia Shabangu, Thabo Louis Mohale and Derek Mashobane ("Mpho Desmond Mashoeng") in February 1989. (The deceased shall be referred to as Shabangu, Mohale and Mashoeng, respectively.) The conspiracy took place in South Africa early 1989 and the deceased were ambushed execution-style by members of the Vlakplaas Security Police in Swaziland on 12 February 1989. All the applicants were members of the South African Security Police ("the SAP") when the events referred to herein occurred. They played different roles in the execution of the plan to lure the deceased out of South Africa and kill them in Swaziland. At the hearing only the Mohale family were legally represented. According to the Evidence Leader the identity and whereabouts of the next-of-kin of Shabangu and Mashobane had not been traced. However, after the hearing of evidence and as we were preparing a decision on the matter we received affidavits from one Nonhlanhla Marcia Khoza (ID No. 8212240596 083) and Lameck Khoze (ID No. 601114 5488 087). The former claims to be the daughter of Shabangu and the latter her erstwhile boyfriend. According to the deposition of the latter Nonhlanhla is their daughter. It was also brought to our attention that prior to the amnesty hearing of the matter, the TRC Human Rights Violations Committee had received statements from Phumla Marina Mashoeng (KZN/TM/001) and from Colin Mohale (JB/03397/02NP/LTM). It also became apparent that the names of Derek Mashobane were incorrect. He is said to be "Mpho Desmond Mashoeng". It is convenient to use both names but in this decision I shall refer to him as Mashobane. According to the depositions Pumla Marina Mashoeng is the mother of Mashobane and Colin Mohale is the brother of Mohale. It is not disputed that Mohale was an active member of the South African Students' Congress ("SANSCO") when the events referred to herein occurred. For the reasons which will emerge later I think it is necessary to traverse the evidence at length.
Before the commencement of Coetzee's evidence his legal representative handed up to the Committee a number of documents inter alia exhibit "A" on the general background to his clients' actions and applications for amnesty. A great deal of the background has already been dealt with in many previous hearings and is now common cause. I do not intend to deal with it in much detail. In a nutshell at the relevant time members of Mkhonto we Sizwe ("MK"), the military wing of the African National Congress ("ANC"), were operating clandestine bases in Swaziland and other neighbouring countries. Coetzee says that the SAP had become aware from intelligence reports that ANC and MK supporters were being taken out of the country to Swaziland for military training. When they returned to South Africa they would be involved in acts of violence against members of the security forces, civilians and those whom they perceived to be collaborators. It also emerged from intelligence reports that the youth and students in general were the primary targets for recruitment. In the circumstances the SAP had to act and bring these activities to an end. This is the context within which the incident occurred.
Coetzee testified that during January 1988 up to July 1989 he was attached to the Group D Intelligence Unit at the Security Branch Head Office in Pretoria. He worked under the command of Brigadier Alfred Oosthuizen and Major General Gerrit Nicholas Erasmus. Oosthuizen was his immediate superior. His duties entailed managing and handling informers who were infiltrated into liberation movements and other anti-apartheid organisations inside the country. Some of these organisations were the South African Youth Congress ("SAYCO"), SANSCO and the Congress of South African Students ("COSAS"). He also states that one of the purposes of the infiltration was to assist in the investigation of criminal cases against some of their members. He claims that the infiltration was very successful because he became aware that it was part of the strategy of the ANC-SACP Alliance to encourage students at tertiary level to form secret MK cells. These were being used to spearhead the revolution and total onslaught against the previous government. Coetzee says that the danger which was posed by this plan for the security of the State was taken very seriously by the SAP. So much so that in August 1988 Oosthuizen granted permission for a national workshop to be held in Pretoria by members of the Special Branch to discuss the problem. Many members of the security police, including Coetzee, attended the workshop where the problem was thoroughly discussed and analysed with a view to finding possible preventive measures. Towards the end of 1988 he obtained information from informers and police agents about the activities of Thabo Louis Mohale. Mohale was "a managing member of SANSCO's Transvaal Regional Management". He says Mohale was previously a student at the University of the North ("Turfloop") where he was expelled for having been involved in acts of arson. He says that by then Mohale had already worked with underground MK structures. It was put to him by counsel for the family that Mohale had never been a student at Turfloop. Coetzee did not persist with the allegation. He replied that that was what he was told by his informers. At the relevant time Mohale was in the Johannesburg area where he had established himself as a SANSCO activist. The information from sources indicated that he was "part of a core group within SANSCO who popularised and supported the armed struggle in the R.S.A.". Mohale and other members of SANSCO "had contact and liaison with SAYCO and COSAS structures to which the particular members already had access or formed part of MK underground structures in the RSA, Soweto and Turfloop". He says that Mohale desired that SANSCO conduct discussions with MK outside the country in order for students to receive military training and arms to pursue the struggle. He forwarded the information to Oosthuizen, Erasmus, Schoon and other senior members of the Special Branch at the Head Office. From time to time Coetzee would discuss these matters with De Kock in the latter's capacity of Commander at Vlakplaas. De Kock had a number of operatives working under him, as well as askaris. They were very useful to gather information on the activities of MK structures underground and their sympathisers.
Early February 1989 he received information from his informant, Phineas Motlalepule Moshoaliba, who had earlier infiltrated "Mohale's group" in SANSCO. Moshoaliba reported that there was now a new development in that Mohale and his group wanted to travel to Swaziland to implement the ideas they had been advocating. Coetzee conveyed this to Oosthuizen who, after some discussion of all the information they had, suggested that Coetzee continue with the planning of an action. Oosthuizen was going to discuss the matter with General Erasmus whereafter he would revert to him. After Oosthuizen had discussed the matter with Erasmus the latter told him that he was going to discuss the matter with Brigadier Schoon. In the meantime, Erasmus said, they should continue with the planning. Afterwards Coetzee and Oosthuizen visited the Vlakplaas security police where they spoke to De Kock. After discussing with him the dangers of student involvement in the armed struggle and, in particular, the fact that Mohale was now going to visit Swaziland, they decided that if the Head Office could approve, Mohale and his companions would have to be led into an ambush and killed.
Coetzee's evidence continues as follows:-
"MR COETZEE: In this regard, I wish to point out that the particular informants and agents for this purpose was managed by me, and that all information with regard to the particular operation, was co-ordinated on a continual basis with Brig Oosthuizen and Col de Kock. We foresaw a real problem that at that stage, possibly 10 to 15 political activists would travel to Swaziland if they would make use of a minibus. Furthermore the possibility could not be excluded that innocent persons may be in the bus as well and action in such regard, would lead to great loss of life. Because at this stage we had access to very well penetrated informers, Brig Oosthuizen proposed that we should take control over the operation by making a vehicle available and ensuring that only those persons whom we have already prioritised as those persons responsible for the student unrest's and violence, would be in the vehicle. The idea was to rent a vehicle by means of a source. I then made available an Open Kadett to the Mohale group.
MR VISSER: What kind of vehicle was it?
MR COETZEE: It was a Regulation 80.6, Chairperson.
MR VISSER: What does Regulation 80.6 mean?
MR COETZEE: Chairperson, a vehicle which was declared by the State.
MR VISSER: And then became State property?
MR COETZEE: Yes.
MR COETZEE: The particular Saturday, the 12th of February 1989, I accompanied Brig Oosthuizen, Col D. Els and Col Snyman to Vlakplaas, during which the new information was conveyed to Col de Kock and we wished them luck. At the same time, I handed over a plastic bag to Col de Kock.
MR VISSER: That must read an envelope, not a plastic bag, I handed over a plastic bag with an envelope in it?
MR COETZEE: Yes Chairperson, I handed it over to Col de Kock and in the envelope there was a letter which was written in code, it was a fictional letter which had to serve to create the impression that the ANC had killed them.
MR VISSER: What was the idea with the letter?
MR COETZEE: Chairperson, to make an allegation that they collaborated with the South African system.
Before Mohale and his two companions, Shabangu and Mashobane, left for Swaziland in the morning on 12 February Moshoaliba gave Mohale the vehicle. Their departure from South Africa was to be monitored by some of the applicants who had been tasked by Coetzee to check in Witbank and Oshoek border post as to whether they had travelled past there. It was part of the arrangement between Mohale and Moshoaliba that as soon as they arrived in Swaziland he should phone him, using a telephone number of a security police safe house which Coetzee and Moshoaliba were using in Johannesburg. Moshoaliba had already promised Mohale that he was going to introduce him to ANC and MK members in Swaziland for training and arms. Mohale was completely unaware that Moshoaliba was a police agent. At approximately 22h00 Mohale phoned and spoke to Moshoaliba. Coetzee states that Mohale informed Moshoaliba that he had established contact with certain MK members in Swaziland and that they were going to meet them again the next day. Moshoaliba told the deceased to return to the post office in Manzini where they were going to meet the so-called MK comrades. The fact that these were askaris was also unknown to the trio. Later Coetzee heard that the trio had been led into an ambush and were eliminated in Swaziland.
Coetzee further points out that on Monday following the incident he, Erasmus, Schoon and Oosthuizen held talks with De Kock at Vlakplaas with regard to the vehicle with which the deceased had travelled to Swaziland. There was a problem because it had been identified in Swaziland as an SAP vehicle. A decision was taken to duplicate the vehicle. (De Kock elaborates). In justification of his actions he avers that the incident took place in a war situation where the normal rules of conducting a war were not applicable. His aim was to prevent members and supporters of liberation movements from bringing the erstwhile government to its knees by causing anarchy and violence in the country.
Under cross-examination Coetzee admitted that whilst they were waiting for a call from Mohale one of his co-Applicants, Pieter Hendrik Botha, phoned from Swaziland. He asked where was the "Flower Arrangement" (meaning the deceased) that was supposed to meet the askaris. Botha and Baker were in Swaziland specifically to see if the deceased had made any contact with the askaris. The deceased who were apparently late had not yet arrived. He further admitted having conveyed to De Kock that he was expecting the vehicle to carry only five people but when it left Soweto for Swaziland, he learnt from Moshoaliba that it was in fact carrying only three people. (It is significant that he makes no mention of who the other two passengers were going to be and what information they had about them.) At that stage he could not contact De Kock and convey this to him and his operational team who were going to ambush them. They were already in Swaziland by then. Whilst being cross-examined by the victims' legal representative he testified that he had no information about Shabangu and Mashobane. He does not recall the contents of the letter which was left in the vehicle after the ambush. He states that they could not arrest the trio and charge them with attempting to join a banned organisation in exile because this could have exposed Moshoaliba as a police agent.
Oosthuizen testified that on a certain day he was approached by Coetzee who told him that they had received information that Mohale's group wanted to travel to Swaziland in the weekend of 11 - 13 February 1989 "to establish liaison with MK structures, to receive military training and to smuggle weapons to R.S.A. in order to establish an underground cell and to enter the armed struggle. To hold discussions with members of the ANC, to co-ordinate student activities on a national level in order to promote the creation and extension of the people's war strategy." He says he had no reason to question the credibility of the information because Coetzee was an experienced intelligence officer. Coetzee suggested that a controlled covert offensive operation be launched with regard to the intended trip. He motivated this by raising the point that normal legal actions were out of the question because of intimidation and fear on the part of potential witnesses. The smuggling of weapons into South Africa and contact between students and the ANC had to be prevented at all costs. Oosthuizen and Coetzee then agreed that Mohale and his companions could not be allowed to depart for Swaziland with their own transport. They were to be provided with a vehicle and thus keep contact with them as they travelled to Swaziland. He says that he also foresaw that if a minibus were made available a large group of people would have travelled and this would not necessarily mean that only members of the "core group" would go. (He makes no mention of who the so-called core group members were and what information was available on each of them). He further states that the possibility existed that innocent persons could be killed. He asked Coetzee to prepare "a proper coverage legend" to satisfy himself that the identity and safety of police informers would not be jeopardised.
In the afternoon Oosthuizen submitted the entire operation (proposal) to Erasmus. He also furnished him with all the documents and intelligence reports with regard to student unrest, violence, the profiles of suspects, ANC objectives and the existing contact between the ANC and students. (Once again there is no mention of Shabangu and Mashobane). After considering the reports, Erasmus told him that he agreed in principle with the proposed course of action but he wanted approval from the Head Office. In the meantime they could proceed with the necessary preparations. The next morning he and Oosthuizen went to Vlakplaas where they held discussions with De Kock regarding the details and political objective of the operation. They then agreed with De Kock that he was going to be the person in charge to execute the operation on the ground. Coetzee was going to liaise with De Kock in regard to the logistics. That afternoon Oosthuizen was called by Erasmus to his office. He told him that the operation had been authorised by Head Office. Oosthuizen says that he was not part of any further planning of the operation. He is also not aware as to whether it was De Kock's or Coetzee's staff that carried it out. During the weekend he received a report that the operation had been successfully carried out. He further confirms having had a discussion with De Kock, Schoon, Erasmus and Coetzee at Vlakplaas regarding the vehicle after the operation and the decision they took to deal with the problem. Under cross-examination Oosthuizen testified that when they discussed the operation with De Kock he advised him of the discussions he had had with Erasmus. He states that he never knew Mohale and all he knew about him was that he was "a political student activist". He believes that Shabangu and Mashobane were part of the core group of Mohale. He is unable to recall the contents of the reports he received from Coetzee. He saw some of the co-applicants in the morning before they left for Swaziland, but he was not aware of the exact details of the operation. When he was asked why they could not set up road blocks and arrest the deceased when they returned from Swaziland for unlawfully undergoing military training with the ANC and for bringing arms into the country, he replied that this would have exposed Moshoaliba. He says that in any event, the purpose was to eliminate and not to arrest them.
Erasmus testified that he was the commander of Group D at Head Office in Pretoria, Brigadier Schoon the Group Commander of C1 and General Basie Smit the Head of the Security Police. He does not recall the details of the reports he received from Oosthuizen and the precise details of the many discussions they had prior to the ambush. However, he agrees that the SAP took a very hard line on contact between students and the ANC because it posed very serious implications for national security. He confirms having been approached by Oosthuizen who proposed that "a controlled covert offensive operation" be launched with regard to a group of student activists who wanted to go to Swaziland. He says he shared Oosthuizen's concerns and agreed that a rented vehicle be used in order to establish control over the group and to ensure that wrong persons were not eliminated.
Erasmus states that on the same day he fully discussed the matter with Schoon who agreed with the plan. Schoon further promised to take up the matter with De Kock. Erasmus then reported this to Oosthuizen. Afterwards Erasmus was told by Schoon that De Kock had agreed to carry out the operation. Erasmus says that he was never present when a discussion took place between Schoon and anyone else. He was also not involved in the execution of the plan. He was later contacted by Oosthuizen and advised that the mission had been accomplished. He did not know who exactly the targets were and all he knew from police reports was that Mohale and his "core group" were activists. He does not recall the name of Portia Shabangu or any person's name for that matter being mentioned in the reports. (This is unlikely to have happened because Moshoalibane who was the first line of contact with the trio also did not know Shabangu and Mashobane). Erasmus also says by having the deceased killed in a foreign country they were avoiding criminal investigations which would have followed had the murders been carried out in South Africa. He says they were also protecting their informer. The other reason was to make it appear as if they had been killed by the ANC. He does not say why they wanted to blame to be attributed to the ANC.
Schoon says he has a very vague recollection of the facts pertaining to the incident. He accepts and relies on the correctness of the testimonies of his co-Applicants, insofar as his role is concerned. He does not even know when the incident happened. However, he says when the matter was presented to him he agreed with the plan. After the discussion he had with Erasmus he gave De Kock an order to liaise with Group D personnel. De Kock was to obtain the relevant information and make the necessary preparations for the execution of the plan. He then reverted to Erasmus and told him that the plan was going to be implemented by De Kock. Later he was informed that three or four people had been killed in an ambush in Swaziland. He further states that he took the decision without authorisation from higher authority in the Special Branch because he was the only most senior officer who was present in the office on the day Erasmus came to discuss the matter with him. He denies that he took part in a discussion with De Kock at Vlakplaas to plan the execution of the elimination. All this was for De Kock and his team to do. He also confirms having attended the meeting after the operation where it was decided to duplicate the vehicle.
Botha testified that he and his colleagues were told by De Kock to get themselves ready for a cross-border operation in Swaziland. He told them that they were going to ambush "ANC terrorists" who were about to infiltrate the country. The aim of the ambush was to stop them from doing so. They were told by De Kock to carry false passports. This they did. Botha and Baker went to Mbabane in order to observe the deceased meeting the askaris. They were aware of the plan that the askaris would pose as ANC cadres. As soon as the contact was made they were to inform De Kock and his colleagues by radio communication. De Kock and his team of executioners were waiting for the askaris and the deceased in the plantation to come. Because the deceased came late to the place where they were to meet the askaris Botha and Baker could not see them. When they made a radio contact with De Kock he told them to contact Coetzee in Johannesburg who informed them that the "Flower Arrangement" would be late. They again returned to the post office in Manzini where they were waiting before. Afterwards they witnessed the contact they were expecting to happen. The askaris who were travelling in their own vehicle led the deceased in the direction of the ambush. At some point Botha and Baker's vehicle drove past the Mohale group's vehicle and Baker made a signal to the askaris as to where precisely the activists were to be led into the ambush. After this they did not see the vehicle of the deceased again. They were satisfied that the askaris had led them to the ambush. The next day they returned to South Africa. Later he heard that four armed ANC members were killed in the ambush. Baker's evidence is to the same effect.
Snyman testified that his specific role was to ascertain whether the vehicle of the deceased would travel on the main road to Oshoek. He had to ensure that no other persons and/or vehicle came with Mohale and his colleagues to Swaziland. He never saw them on that route. He says that he knew that they were going to be eliminated as soon as they came to Swaziland. He also states that he took no part in the conspiracy to murder the deceased. Els testified that his role was to wait on the main road to Delmas and take notice of the vehicle of the deceased. He was to report to Coetzee how many occupants were in the vehicle. On the morning of the operation he, Snyman, Coetzee and Oosthuizen went to Vlakplaas. Whilst they were there a discussion took place between De Kock, Coetzee and Oosthuizen. After some time he went to the Delmas junction where he expected to see the vehicle between 08h00 and 09h00. He never saw it. He reported this to Coetzee who never told him anything about the vehicle having left later than the expected time.
De Kock testified about the meetings he had at Vlakplaas with Coetzee, Oosthuizen, Erasmus and Schoon. (This was the first planning meeting). He was told that there were ANC supporters who intended travelling to Swaziland to obtain military training from the ANC. They were planning to further the military aims of the ANC in the country as soon as they returned from Swaziland. He agrees with the evidence of Coetzee and Oosthuizen that extensive discussions took place at different times regarding the profile of the persons in question. Initially he was made to understand that about sixteen to seventeen people were going to undertake the journey in a minibus, but later he was told that they would be given a small vehicle for five occupants. Coetzee gave him the registration number and description of the vehicle. He showed this to the members of his Unit who were going to take part in the ambush. These were Bellingan, Tait, Du Plessis, Snyders, Brits and Flores. According to his plan two askaris (i.e. former members of the ANC who had been turned and were now working for the SAP against the ANC), Geoff Bosigo and Chris Magopa, were to meet the SANSCO activists at a post office in Manzini. The askaris were to lead Mohale and his companions into the ambush. The reason why askaris were used was to ensure that they would be able to imbue a sense of confidence in the trio. They could speak the language which was generally spoken in ANC camps quite well. De Kock placed some of his colleagues on strategic points to monitor if their presence in the area was being observed by any person. At that stage he had already chosen the spot for the elimination. This is where they were dropped off before the askaris brought the trio. According to the plan the elimination was to take place between 18h00 and 19h00, to give them time to travel to the border post and return to South Africa by 22h00. The execution spot was in the shape of a cul de sac and there was no way that the activists could escape once they had been led into the place. He says Botha and Baker had radios so they could alert them if anything suspicious had happened. This was important because they would have had to abort the plan if things had not worked strictly according to the plan. The askaris had not been given any radios because they would have attracted attention from strangers. In the end and because the SANSCO members had left for Swaziland later then the expected time, the shooting only took place between 21h00 and 22h00. This meant that they were late for 22h00 at the Oshoek Border Post. By then the borders were closed until the next day. They spent the night at their rented flats in Swaziland and left for South Africa very early the next day. He says that because he expected five people to be in the vehicle after the shooting he conducted a body count. There were only three bodies. Two were completely dead but one of them was still gasping. He shot that one twice in the head. When he opened the eyelids of the two others he was satisfied that they were dead. One of the victims was a woman. They then pushed the vehicle down a slope.
De Kock says after the ambush: "There was an envelope with documentation which was sealed, it was given to me in a bag. I'm not certain if I left it under a person or whether I placed it in a case which was in the vehicle, but one of those two took place. The nature of the documentation is unknown to me, except that according to my understanding it was misinformation which was later then on a strategic basis, used to place the activists in a position of disfavour."
About two days later De Kock was contacted by one Captain Viktor who wanted to know if he had any knowledge of an operation that had recently occurred in Swaziland in which a police vehicle was involved. De Kock denied any knowledge of such an incident. He promised Victor that he was going to investigate the matter. When De Kock spoke to Schoon, the latter contacted Erasmus by telephone. Immediately thereafter the two came to see him at Vlakplaas. They were in the company of Coetzee. He says after some discussion they decided that the vehicle would be duplicated in all respects, namely the colour of the seats, the seat covers and the year of issue. The registration number of the vehicle was also changed to make it appear to be the same as the number of the vehicle which was involved in the operation in Swaziland. This was to ensure that in the event of investigations they would be able to deny that the vehicle that was found in Swaziland belonged the SAPS. Tait testified and confirmed his participation in the murder of the deceased. Baker testified and confirmed the nature of his participation as testified to by Botha.
Bellingan states that he was asked by De Kock to convey him, Willemse, Tait, Snyman and Brits to the point where the ambush was to take place.
This he did and after dropping them off he returned to the main road. He waited there until the ambush was over. He then went back to fetch them. He had used a police kombi with false registration letters and numbers. They were armed with AK47 machine guns with silencers. The vehicle had been modified and fitted with invisible panels where the arms were hidden. Flores confirms that before the ambush took place he went to inspect the area. He subsequently took part in the killing of the deceased. Hanton testified that he was asked by De Kock to load the minibus with the arms. Snyders', Du Plessis' and Willemse's evidence is generally to the same effect as their aforementioned colleagues and they all took part in the elimination. Brits did not physically appear before the Committee and testify, due to health reasons, and it was requested that an affidavit be accepted by the Committee in lieu of viva voce evidence. The Committee acceded to the request. In the deposition Brits confirms that he was part of the elimination group.
The last witness to testify was Moshoaliba. I do not wish to comment on the manner in which his evidence was led and would rather let the record speak for itself. It is for this reason that I think that the evidential value of certain aspects of his evidence, and in particular his evidence-in-chief, have to be handled with care. However, he generally confirms the role he played to lure the deceased into the ambush. Surprisingly, he says initially he did not know that the trio were going to be killed. He only suspected that something might happen to them when "a white person" phoned from Swaziland and said they had seen them there. Later he heard that the deceased had been led into an ambush. He did not know Shabangu and Mashobane and only saw them for the first time on the day they were leaving for Swaziland. He had known Mohale for a very short period of time before the incident. When he gave a report about him to Coetzee he was ordered to continue monitoring his activities. He claims that gradually he won Mohale's confidence and discovered that he was interested to make contact with the ANC and MK. He had never been to his house before. He had been told by Mohale that he resided in Diepkloof. Although his task was to monitor Mohale and whoever was close to him he has not testified as to who those people were and what activities exactly they embarked upon. He only claims that there was a group of about ten SANSCO activists who were very close to Mohale. When asked if he ever attended SANSCO meetings and what matters were discussed, he replied in the affirmative and said that only issues affecting students' welfare were discussed. As far as he was concerned, no offence had been committed by Mohale and other SANSCO activists by vocalising student demands and grievances. (If at these meetings Mohale had urged students to join the ANC and MK, Moshoaliba would say so because as a police agent that was precisely what he was deployed to do. He would also have reported this to Coetzee). Moshoaliba also claims that during the short time he knew Mohale he told him that he was once a student at Turfloop where he was expelled for his participation in acts of arson. I have already mentioned that this has been denied by the representative of the Mohale family. He claims that he also told him that he was studying through Unisa. This has not been denied.
Early 1989 Moshoaliba says he became aware that Mohale and some few people were of the view that time was ripe for them to contact the ANC. (Again no names are given). He says the only problem Mohale and his companions had is that they did not know how to go about making such a contact. Moshoaliba, acting on orders from Coetzee, told Mohale that he could facilitate the contact with the ANC and MK members in Swaziland. He also offered to assist him with transport, namely his Opel Kadett. Initially Mohale wanted to use a kombi for the trip because he was expecting a number of students to go. Later he changed and said he only required a small vehicle. Before they left Moshoaliba lent Mohale his car so he could go around and contact people who were interested to go. Afterwards Mohale told him they wanted to leave on a Saturday afternoon. When Moshoaliba reported this to Coetzee he told him to ascertain how many people were leaving and what time they were going to depart. When Moshoaliba gave the vehicle to Mohale in Braamfontein on Saturday morning he says that he was in the company of a man and woman who were both unknown to him. Mohale said that these were the only people who were going. He gave Mohale a telephone number where he could contact him as soon as they arrived in Swaziland. This was a telephone number of a security police safe house where Moshoaliba and Coetzee were going to sit and wait for a call from Mohale. He also gave Mohale a Tracy Chapman musical cassette so he could use it to identify himself to the so-called contact from the ANC. They were to meet the contacts near a post office in Manzini. After the trio had left, Moshoaliba returned to Coetzee. He told him that they had left. They then went to the place where they were to wait for a telephone call from Mohale. There were other members of the Special Branch in the safe house but he did not know who they were.
Late at night Mohale phoned and reported that they had arrived late at the post office and, as a consequence, could not meet Moshoaliba's contacts. Mohale further told him that they had met some people in Swaziland and that these people had promised to meet them the next day. He urged Mohale to return to the post office. This was the end of their conversation. I have already alluded to Moshoaliba's evidence that during all that time he never suspected that anything would happen to the deceased. This is not only improbable but it also raises a question as to whether this particular applicant has committed an offence.
After carefully considering the matter I am not satisfied that all the applicants are entitled to amnesty. Note must be taken of the fact that in this case very serious crimes were committed. Three unsuspecting youths were lured into a trap and killed in a foreign soil. Save for very terse and vague generalisations in respect of Mohale, very little or nothing at all was known by the applicants about the other deceased and their activities. There has been no suggestion by Moshoaliba that Shabangu and Mashobane were part of the so-called core group which he testified was operating with Mohale whom they regarded as a threat. The decision to lure the deceased and cause them to be killed in Swaziland was a joint decision of Coetzee, Oosthuizen, Erasmus and Schoon. In the circumstances of the case I do not accept that Coetzee acted on orders from superiors. He was the author of the operation and subsequently succeeded in persuading his superiors to accept the plan. I also have a great difficulty to accept the proposition that these particular applicants took the decision because they could not resort to other less drastic measures to deal with the problem they say they were confronted with at the time. They had provided the deceased with a vehicle and it is quite clear that through Moshoaliba Coetzee was in contact with the deceased right from the very moment they left for Swaziland. It also does not appear that at any stage that they lost contact with them because when they arrived in Manzini Mohale phoned Moshoaliba. He wanted to know where they were going to meet his (Moshoaliba's) so-called ANC contacts. I am therefore not convinced that the applicants would not have been able to monitor their movements and arrest them when they returned to South Africa with arms. The decision to kill three persons rather than take the risk of having Moshoaliba exposed as a police agent was totally excessive, especially considering the fact that there is no suggestion that the deceased were unrepentant revolutionaries. Perhaps the reaction would have been understandable if the applicants were dealing with trained combatants or persons who for quite some time had been causing problems for the Special Branch. Here they were dealing with two young men and a woman who allegedly desired to make contact with the ANC in exile. Whilst it is undisputed that Mohale was a leading figure in SANSCO, I think it is improbable that he previously had contact with ANC/MK structures. Had this been the case he would have used his own sources to contact the ANC. What further compounds the problem in this matter is that: Evidence has been led that after the deceased were killed a note was left in the vehicle to create the impression that they had been killed by the ANC. I find this irreconcilable with the stated objective of discouraging potential recruits from heeding the ANC and MK call to join the liberation struggle against the previous regime.
I accept that in this matter a distinction should be drawn between those who took the decision for the elimination and those who were tasked to carry it out. In my view the former comprise Coetzee, Oosthuizen, Erasmus and Schoon whilst the latter are De Kock, Willemse, D. L. Snyman, Hanton, Du Plessis, Els, J. J. Snyman, Moshoaliba, Botha, Flores, Tait, Bellingan, Baker and Snyders.
In the circumstances and for the reasons I have already given, it is my considered view that amnesty should be DENIED TO THE FIRST GROUP but GRANTED TO THE LATTER. It would appear from the evidence that all the crimes they committed in regard to the incident were carried out in execution of orders from their superiors. I further recommend to the Reparation and Rehabilitation Committee that the dependants of the deceased be declared victims in terms of Section 22 of the Act. The only names we have so far are Nonhlanhla Marcia Khoza, Lameck Khoza and Colin Mohale.
SIGNED AT CAPE TOWN ON THIS DAY OF 2001.
ADV N SANDI
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