DECISION
The applicants make application for amnesty in terms of the Promotion of National Unity and Reconciliation Act No 34 of 1995 as amended (the Act) and in respect of various offences flowing from an incursion into Lesotho on or about the 19th December 1985.
With the assertion of power in 1948, the National Party began a programme of legalizing the system of Apartheid. With this exercise came draconian laws intended to deal with any resistance to the Apartheid programme.
The African National Congress (ANC) was the largest anti-apartheid group opposing the system on various fronts and in many ways by the early 1960's it included an armed struggle through its military wing, uMkhonto weSizwe (MK), a variety of anti-apartheid propaganda which took different forms and other means of opposing the said system.
These strategies developed over the years and the ANC elicited foreign assistance which took various forms. Not insignificant assistance was rendered by the neighbouring States just outside the borders of South Africa. Lesotho was one of the States from which the ANC launched their campaign. It was also one of the States which facilitated the flow of MK members into and out of South Africa. Political violence increased over a twenty year period till just before the 1994 democratic general elections. The violence took the form of confrontation between both anti-apartheid forces and the apartheid machinery.
The apartheid government recognised that the ANC was operating from outside South Africa. It was agreed at a meeting of the State Security Council (SSC) that strategies to neutralize the influence of the ANC outside South Africa should be tabled. This occurred on 21 October 1985.
By 13 December 1985, according to a minute of the SSC dated 20 December 1985, a report on the presence of MK members in Lesotho was in possession of a certain Minister Botha. It is not clear which Minister Botha it was as there were two Minister Botha's present according to the said minute. It was suggested in that meeting that diplomatic steps be employed to counter the threats as well as certain practical preemptive steps such as better control at the border post. It seems that as a last resort, violent cross-border incursion into Lesotho would be regarded as an option.
During October or November 1985, 5th applicant received a written report from the Security Police stationed at Ladybrand and this was sent on to the various security structures. The details of such information was that during October 1985 a further thirty MK members arrived in Lesotho to join the other fifty already there. As a result of this information, the Department of Foreign Affairs were requested in a meeting of the Intelligence Coordinating Committee, chaired by Dr L D Barnard, to warn and inform Lesotho of these circumstances. The warning must necessarily be interpreted as a threat to use violence if deemed necessary.
During the earlier part of December 1985, the Security Police under the leadership of the 5th applicant, were informed that there was a group of trained MK members intending to infiltrate South Africa with the intention of launching attacks on the Orange Free State, including the detonation of a bomb in a shopping mall. This was to have taken place during the festive season.
This group came to be known as the "Meyer group".
Armed with this information, 5th applicant gave instructions to Brigadier Schoon to investigate the feasibility of the Security Police acting against the group in Lesotho and to report back as a matter or urgency.
It seems that Schoon requested 2nd applicant to do the actual investigation. 2nd applicant then submitted a hand written report to Schoon who transmitted its contents to 5th applicant. 5th applicant accepted that this was what had happened but testified that he had no independent recollection thereof. The report recommended that the attack be considered as it was possible to do it. 5th applicant then verbally raised the matter of this proposed attack in Lesotho with representatives of the Department of Foreign Affairs who were on their way to a Coordinating Intelligence Committee (CIC) meeting. He stated that he was not certain of the date. It could have been the meeting held on the 3rd December 1995 or thereafter. At best it could have been before the 19th December 1985. No minute of such a meeting between the 4th December and 19th December 1985 was produced at the hearing. It is not clear if such a meeting took place at all. The same can be said of any meeting of the SSC if held at all.
During early October 1985, a document setting out the guidelines related to attacks by South African Security Forces was completed and approved of, with certain technical amendments, by the SSC on the 21st October 1985. The relevant passage regarding incursions into Lesotho was approved of as suggested and that was the policy at the time of this attack on or about the 19th December 1985.
These guidelines are to be found on page 5 of the minute under the heading "Lesotho" and under cover of the letterhead of the secretariat of the SSC and referred and approved of as decided in the minute of the SSC meeting of the 21st October 1985.
Clearly from this the intrusion into foreign States, including Lesotho, was reserved by policy for the South African Military (SADF). During the course of this hearing, this was often confirmed by the various witnesses including former Minister of Foreign Affairs, Mr R F Botha.
It can be seen from these guidelines that an incursion by the SADF into foreign States for the purposes of such attacks required the permission of the chairman of the SSC and in some cases, also the permission or approval of the then Minister of Defence. 5th applicant testified that he would definitely have dealt with in concurrence with CIC in order to ensure that there was no conflict of intent between the Police and the SADF.
In his original application he stated that the attack was approved of by CIC. He explained he meant to say that there was no opposition to the idea of the proposed attack in Lesotho from CIC. He further stated that because he was a Brigadier at that stage he was not able to depend on his own judgment but had to liaise with his peers from other departments to establish whether they agreed with the idea that the Security Community (Security Branch of the Police) could act against MK members. He went on to testify vaguely that he would take seriously what CIC's approach to the matter was and it seems that he would not have defied the CIC approach. He knew it was important that he not act on his own This was 5th applicant's first and indeed his only involvement, as he testified, in cross-border attacks. After 5th applicant allegedly raised the matter with a member(s) of the Department of Foreign Affairs, he gave authority to the Security Police operatives to proceed with the operations of eliminating the Meyer Group They were aware of who these members were The group consisted of Leon Meyer and others whose identities are now uncertain In terms of the plan, Macaskill who seemed to know who were supposed to infiltrate South Africa would gather them at his home. It is not clear that other MK members would be at this planned party, but what is clear is the infiltrating group, who were the actual targets would be in that house and would be eliminated. Any other MK member who happened to be in the house at the time would be possibly killed in the crossfire. This aspect becomes very relevant in respect of the deaths of Jacqueline Quinn and Nomkhosi Mary Mnisi which is dealt with below.
The identity of the members of this group and their intention to launch attacks in South Africa was information obtained by the South African Police through an informer. Once the decision was made to enter Lesotho and to eliminate the Leon Meyer group was made, 2nd applicant together with 3rd, 4th and 6th applicants as well as Lieutenant Adamson and Sergeant Coetzee formed the unit which was going to complete the mission of eliminating the Meyer Group.
In assessing, as requested, the feasibility of the attack, 2nd applicant had contacted Elvis Vincent Macaskill who was born in Lesotho and was a resident there at the time of this attack. Macaskill was able to move freely amongst the members of MK in Lesotho.
At the outset it would be best to say that Macaskill was not a very good witness and under no circumstances could he be regarded as a truthful witness who could be believed on his own. However, much of what he says coincides with the other evidence tendered in this hearing and in particular the general trend of events which occurred on that fateful night. Many of the details which affect his personal morality is in dispute and indeed he changed his evidence on numerous occasions to suit himself in an attempt to create the impression that he was not such a bad person that he was made out to be. We choose not to comment on his integrity and credibility any further, save to say that only where his evidence is supported by other independent evidence, is it of any value.
After all the necessary preparations, the aforementioned group went into Lesotho with the intention of eliminating the Leon Meyer Group who it was believed was on the verge of entering South Africa to commit the crimes as referred to already.
The plan was that Macaskill would arrange a party at his house and invite the group to join the party. He was also armed with some drug to dose the people at the party so as to facilitate the killing of these people. He would be paid R5000.00 per person killed. It seems that he had difficulty in obtaining the amount he thought was due to him. It is understandable that some other MK members may also have been at the party and not the primary targets but could have become casualties in the cross-fire. This was thought of and catered for. By the nature of the plan all of the people in the Macaskill home at the relevant time would be killed, in particular the Leon Meyer group, the specific targets.
When the 2nd applicant's group arrived in Lesotho they met Macaskill at the prearranged place. He then indicated that some people had arrived at the party unexpectedly and were innocent people. It seems that these were local Lesotho citizens. Macaskill also said that his family were still also in the house. They arranged to delay the attack for about one hour so as to give Macaskill an opportunity to get his family and these others out of the house. Shortly thereafter he went back to the 2nd applicant's group and informed them that he had arranged for the innocent persons to go and that only MK members would be there in the house. Significantly only the persons in the house were to be attacked with the proviso to avoid killing others not connected to the group if possible. At some point before the attack on Macaskill house, the group also stationed outside the house to keep watch on the Leboa Jonathan Highway which ran parallel to the house. 2nd and 3rd applicants proceeded towards the house. About 20 metres away they observed a person come out of the house and bend at the motor vehicle parked outside the house. 2nd applicant shot this person twice in the head as a result of which the person died. It turned out to be Nomkhosi Mary Mnisi, a female person.
Thereafter, the two penetrated the house and shot and killed six others in the home. They were Lulamile Danitile, Vivian Stanley Mathee, Monwabisi Themba Mayoli (all South African citizens) Mankaelang Mohatle, Boemo Tau and Amelia Leseuyeho (all Lesotho citizens). There were others in the house who were not killed. One in particular was a lady who defended herself in the kitchen of the house and was pushed away or hit away by 2nd applicant when she climbed onto the back of one of the intruders.
All the members of the 2nd applicant's group then left with Macaskill and proceeded to South Africa.
The Act provides that amnesty must be granted to an applicant if he or she committed the offence for which amnesty is sought for political reasons and provided further that he or she has made a full disclosure of the facts related to the commission of the offence. Furthermore, the Act requires that certain formalities must be fulfilled before amnesty can be considered. The Committee is satisfied that the necessary formalities have been fulfilled by all the applicants.
At the beginning of the hearing, the Committee was informed that Adamson had since passed away and that Butana Almond Nofemela, a listed applicant, had already testified before another panel in this regard and such application would be dealt with by that panel.
It was argued that both 5th and 7th applicants based their applications on the grounds that they acted in defence of other citizens of South Africa and therefore did not commit any offence for which amnesty should be granted. Without wanting to delve into the law relating to defence in any great detail, it seems that the requirement of "imminent danger" in this particular instance was far too remote to satisfy the requirements of the law covering defence.
Furthermore, it is clear that 7th applicant acted under the leadership of 5th applicant in this instance, despite his rank. He complied with what he was asked to do by 5th applicant. In the view of the Committee, he was entitled like the rest of the applicants, to rely on the information and impression given by 5th applicant in regard to the authority to embark on the operation. Indeed, insofar 7th applicant is concerned, all he did was to do what he was instructed to do by 5th applicant. he falls in the same category of applicants as those who actually committed the attack. He was aware of what was going to happen and helped prepare the operation. This operation was embarked upon specifically to eliminate a specific group of people, the Leon Meyer group. There was no other reason for the operation.
If regard is had to the guidelines established by the SSC, it is as clear as daylight that incursions into neighbouring states fell within the domain of the military. Indeed this was the trend of the evidence throughout this hearing. It is true that there was a slight suggestion that those guidelines applied to the military but did not exclude police operations outside the country. It is difficult to accept this contention since it was common knowledge that the policy, as regards security, was that any external operation would be done by the military and that would be regarded as legal. It can therefore not be argued that any member of the South African Police could think otherwise. However, it is on this basis that 5th applicant stated that the plan to enter Lesotho for this purpose was approved of by CIC. Yet during the hearing, his approval" was watered down to give the impression that it was a matter upon which he himself decided and that he thought at the time he was entitled to do so. But that version is further weakened if regard is had to the evidence of erstwhile Minister of Foreign Affairs, Mr Pik Botha who testified that no such approval was obtained, least of all through his department which had to deal with foreign legions officially. In brief, Lukas Daniel Barnard and Mr van Heerden, who was attacked to the Foreign Affairs Department at the time, categorically denied that CIC, the meetings of which both regularly attended, or the Department of Foreign Affairs approved of such an attack. All three of these witnesses stated that they and their departments did not know of the proposed attack even less approved of it. 5th applicant's contention that he laboured under the impression that he was entitled to act as he did in authorising the attack, does not make sense because if that was so, he would not have gone to all the trouble of informing high-ranking officials who attended important CIC meetings in which security matters such as this were regularly discussed almost exclusively.
Furthermore, if this was the only cross-border attack that he was involved in, (as he testified) it is difficult to understand why his evidence is so vague on the question of who he actually informed of the plan. He did not deal with the issue of who actually gave authority for this attack in any acceptable manner. On the one hand he stated that he would have proceeded with the operation in any event but on the other hand he stated that it would have had a big negative impact on his career if he did not at least contact CIC in this regard. His assertion that he had spoken to high-ranking officers of the Foreign Affairs Department does not seem probable. Firstly, he cannot say who he spoke to and secondly it is not probable that he would inform that department of the proposed attack given its historical objections to such activities.
He could not satisfactorily explain why he could not have discussed the matter with his immediate superior Commissioner P J Coetzee who was on leave. It is well known that such high-ranking officers always left forwarding telephone numbers and addresses precisely for reasons such as this. It is improbable that he could not contact him before the attack as he testified was the position. Indeed Coetzee stated that he could h ave been contacted.
One of the slants of 5th applicant's evidence is that having informed the CIC and because there was no objection from it, he assumed that he was entitled to proceed with approval, tacit as it might be.
In view of the policy that such incursion would fall within the ambit of legal military activity, it is improbable that he would have received such authority either implicitly or otherwise. It is difficult to accept that such a high-ranking official within the security fraternity, such as 5th applicant was, could in the circumstances, draw such convenient conclusions. Indeed, in the circumstances, drawing such conclusions is highly improbable in itself.
5th applicant furthermore did not make a good impression as a witness. Apart from what has already been said of his testimony, he tended to change his evidence to suite his case as it proceeded. He was also prone to want to fit his version into that of other witnesses when he could, especially when he was confronted with issues in which he could do so. Where he could not do so, he tended to resort to bouts of amnesia.
It is also difficult to accept that he was not aware of cross-border attacks of any kind being activities which fell by law and policy within the terrain of the South African Defence Force and that it was not an operation that the South African Police would proceed with under any circumstance. He was a high-ranking officer at the time and his unconvincing attempt to give the impression that he in fact consulted or sought authority (it is unclear what he actually wanted to convey to the Committee in this regard) when it is in all probability something that did not occur at all given his lack of memory on this score together with erstwhile high-ranking officials who would have known of the matter denying that it occurred at all.
In the circumstances it cannot be found that 5th applicant has made a full disclosure as to the act related to this incident insofar as it affects him.
The Committee is therefore not satisfied that the 5th applicant has complied with all the requirements of the Act and his application for amnesty falls to be REFUSED.
It is significant that the proposed attack by the Leon Meyer group was never disputed. Consequently it is probable that there was some truth in the information obtained by the Security Police through the Ladybrand division. It seems, furthermore, that there was a bona fide belief that the attack would occur. There is no doubt that 5th applicant controlled the operation from the point of view of 2nd, 3rd, 4th, 6th and 7th applicants. They all knew that the Leon Meyer Group were the specific targets and acted in accordance with the authorization, at least from the 5th applicant to embark on this attack.
It is common cause that Leon Meyer and his wife were shot and killed that night. It would be prudent to point out here again that in terms of this operation Leon Meyer himself was the target. 2nd applicant indeed sent Adamson and Coetzee to kill him.
In the meantime, 2nd, 3rd, 4th and 6th applicants proceeded in another vehicle to Macaskill's home. 4th applicant was left in the motor vehicle to keep watch and to facilitate a quick escape from the scene. 6th applicant was informed that Leon Meyer, the main target, had left the party and had gone home.
2nd Applicant then ordered Adamson and Coetzee to Meyer's home. Macaskill was told to go with them to point out the house as this was a slight deviation from the plan. Macaskill would show them the house and also knock on the door so as to encourage the door being opened in case there was an enquiry from inside before the door was opened. He would then move away. It seems that this is what happened but Macaskill cannot shed any light on what happened at Leon Meyer's home thereafter.
Sergeant Coetzee was not an applicant in this matter. He refused to adhere to a subpoena from this commission and such refusal has been referred to the Attorney General of the Cape Division of the High Court for his attention. He is possibly the only living person who can shed light on how and why Jacqueline Quinn was killed. It must be remembered that Macaskill stated that he moved away from their home immediately before the door was opened and cannot say what happened thereafter. All that is known is that she was shot at and killed in circumstances in which she was not a target. It is not apparent whether she was killed in the cross-fire. What is clear is that she was not part of the group that was expected to infiltrate South Africa and therefore did not fall within the group of primary targets. In the circumstances, it cannot be said why or under what circumstances she was killed. The applicants cannot claim amnesty in this instance.
With regard to Nomkhosi Mary Mnisi, she was killed outside of the Macaskill home. In terms of the plan only people inside the house would be attacked. 2nd applicant was aware that arrangements had been made for people who were not supposed to be there to leave. Given that the primary targets were the members of the Meyer group, it seems that it was not necessary to shoot at anyone who was not inside the house. Indeed nothing could have led him to believe that the person next to the motor vehicle should be killed. Indeed, as it turned out, she was not one of the Leon Meyer group scheduled to infiltrate South Africa. Secondary targets in the form of MK members would understandably be regarded as proper victims such that applicants could obtain amnesty in respect of attacks on them, especially where such members were killed in the cross-fire. But in terms of the plan and instructions upon which they acted, this would have had to occur inside the house. Consequently, Nomkhosi Mary Mnisi was not a person who could be described as a target, primary or secondary. In this instance also, it does not seem that the applicants are entitled to amnesty.
The Committee is not satisfied that Jacqueline Quinn and Nomkhosi Mary Mnisi were killed in circumstances that are covered by the requirements of the Act, wither as primary targets or in the cross-fire. The applications of 2nd, 3rd, 4th, 6th and 7th applicants in this regard also falls to be REFUSED.
The Committee is, however, satisfied that the 2nd, 3rd, 4th, 6th and 7th applicants have complied with the requirements of the Act and in respect of all the other offences for which amnesty is applied for. Amnesty is therefore granted to them as follows:
1. 2nd, 3rd, 4th, 6th and 7th Applicants
(a) For the murder of Lulamile Dantile, Leon Meyer, Vivian Stanley Mathee, Monwabisi Themba Mayoli, Mankaelang Mohatle, Boemo Tau and Amelia Lesemyebo;
(b) Malicious injury to the property in which Leon Meyer was killed.
2. 2nd, 3rd, 4th and 6th Applicants
(a) Unlawful possession of firearms and ammunition;
(b) Unlawful departing and entering South Africa in order to commit this attack.
The next-of-kin of the aforementioned deceased persons in 1(a) above, as well as those of Nomkhosi Mary Mnisi and Jacqueline Quinn, are in the opinion of the Committee victims as envisaged by the Act and are referred to the Reparation and Rehabilitation Committee for attention.
DATED AT CAPE TOWN THIS DAY OF 2001.
JUDGE R PILLAY
JUDGE S KHAMPEPE
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