DECISION
The Applicants apply for amnesty in respect of crimes committed by them in relation to the kidnapping, assault and murder of Justice Mbizana (the Deceased), also known as MK Mandla.
At the hearing of this matter, testimony was received from all the Applicants with the exception of the 3rd Applicant who had died prior to the hearing being held. The 3rd Applicant was the head of Unit C having been transferred from the Uniform Branch to the Security Branch. The 1st Applicant had been the head of the unit and then became the second-in-command of the unit. For all practical purposes, he remained at the helm. The 3rd Applicant was seen by all as a novice concerning security matters.
The facts pertaining to the events that led to the death of the deceased which are common cause to the Applicants may be summarised as follows:
During 1987 members of the Unit C of the Northern Transvaal Security Branch of the South African Police under the command of the 1st Applicant, arrested the Deceased in Eersterust, following a lead received from an informer. Those amongst the Applicants who were involved in the arrest are the 1st, 2nd and 5th Applicants. The Deceased, who was a member of the Masina Group of MK - activists, escaped arrest when the other members of the group were arrested, some two to three months prior to the incident. These other members of the group were at the time being held pending further investigation with a view to their prosecution, which was successfully completed when they were convicted on 1 March 1989, some two years after the present incident. They had been involved in the assassination of identified black policemen and informers in the area.
After the arrest of the Deceased, he was taken in a car by the 1st Applicant to Compol Building in Pretorius Street where Unit C had their head office and where he was interrogated by the 1st Applicant. From Compol Building he was taken in a trunk to a vehicle and from there driven to a farm, Klipdrift near Hammanskraal, where Unit C had established a camp-site. He was guarded by the 2nd, 4th, 5th and 6th Applicants during various times of his stay on the farm. During this period he was visited a number of times by the 1st Applicant for further interrogation. He continued to cooperate, inter alia by telling the 1st Applicant that he had compiled a list of names of specific policemen to be targeted for assassination which names with addresses had been plotted on a map or sketch plan of the township.
After about a week on this farm, the deceased was assaulted one evening, by the 3rd and 9th Applicants by inter alia burning him with a log taken from a fire while tied to either a water tank or a tree. He was hit with a bottle and shots were fired by the 3rd Applicant from a firearm held next to his head. This happened in the presence of the 5th and 6th Applicants, the latter withdrawing to his quarters when the deceased was burnt with the log. By early morning the deceased was untied and taken to the tent where he was being held and where the 4th Applicant administered an ointment to his wounds.
The next day the 1st Applicant arrived at the farm where he first called on the farmer who told him that he had heard shots fired from the camp the previous evening enquiring as to the reason or cause. He proceeded to the camp site and established what had happened. By all accounts he was very upset. He ordered the 3rd Applicant who was the commander of the unit and the 9th Applicant off the farm and then instructed all the others to leave for their homes to return only the following day. He gave the Deceased a coke he had earlier spiked with sleeping tablets. The Deceased fell asleep.
The Deceased was then placed in the boot of the 1st Applicant's vehicle. At some prearranged venue he met with the 7th and 8th Applicants who had by then been instructed by the 10th Applicant to assist the 1st Applicant with the disposal of a body by the use of explosives. They drove towards Rustenburg. Along the road between Brits and Rustenburg they stopped. The Deceased was taken from the boot of the vehicle and given another spiked coke to drink which soon had an effect on him. He was again put into the boot of the car after which they drove through Rustenburg towards Kopfontein in Bophutatswana where they turned into a two track road and stopped. The Deceased was taken from the boot of the car. He appeared lifeless. He was then struck 2 or 3 times on the head with a sharp edge of spade by the 1st Applicant and draped by the 7th and 8th Applicants with the explosives, attached to a time delay mechanism. The detonator was then activated and they observed the flames from a distance of approximately 150 metres as they were driving back to Pretoria. The 1st Applicant later reported to the 10th Applicant that the mission had successfully been concluded. He also lodged a complaint with the 10th Applicant against the 3rd and 9th Applicant for interfering with his work, reporting the assault on the Deceased and demanded that the 3rd Applicant be removed.
The above, as already stated, is a brief summary of what is common cause in the evidence.
There is, however, much evidence which is contradictory. Many of the contradictions that exist between the evidence of the Applicants related to matters of detail which are not material and may be put down to a loss of clear recollection due to the passing of a long period of time. There are, on the other hand, contradictions which relate to a very important and material issues.
The first of this latter category of contradictions relates to the authorisation for the killing of the Deceased. In this regard we have the two different versions of the 1st and 10th Applicants.
The 1st Applicant's evidence was that after the arrest of the Deceased, both on the way to Compol Building and that same night at Compol Building, he confronted the Deceased with the information he had about the Deceased's involvement in the Masina group and the activities of the group, the other members of which were being detained following the arrest The Deceased pledged his co-operation and indeed did co-operate, basically confirming the information at his disposal. He immediately formed the opinion that the Deceased could be recruited as an Askari. He did not proceed with the paperwork for the arrest and after questioning him for much of the night, the next day took him to the farm, where they had the camp, the members of the unit doing their field work, meeting informers in the Hammanskraal area etcetera, which was then done as described in the summary of common cause facts. He reported this to the 10th Applicant. After a few days and after several visits and further questioning of the Deceased, he one day arrived at the farm to find that the attitude of the Deceased had changed. On that occasion his objective was in the main to get information about a certain Gebuza who was the MK contact in Swaziland and to whom information was being relayed and from where instructions emanated for action by MK in the RSA. The Deceased refused to answer any question and then specifically stated that he would not talk or cooperate any further. It was at that moment clear that it would not any more be possible to recruit him as an Askari.
Part of the information earlier obtained from the Deceased was that they had been reconnoitring in Mamelodi and had compiled a list of names and addresses of policemen and even had drawn a map pinpointing the specific addresses. These individual policemen were to be targeted for assassination. The map had been hidden somewhere but he would not tell where that was. It was clear to the 1st Applicant that, if that information would reach the decision makers in Swaziland, these individuals' lives would be in great danger. He reckoned that it would be very unwise to prosecute the Deceased with the other members of the group, since it would then become possible for the Deceased, with the assistance of intermediaries, to relay the information to Swaziland. He decided that the Deceased would have to be killed. He approached the 10th Applicant. They discussed the issue and the 10th Applicant agreed that the Deceased had to be killed. He said that he would make the necessary arrangements. He was subsequently telephoned at his office by the 10th Applicant who informed him that the 7th and 8th Applicants would assist him and that he had already told them to render their assistance. He knew both of them to be demolition experts from Unit B of the Security Branch. Although the 10th Applicant had never told him to personally kill the deceased, he assumed that it would be his responsibility to at least render the Deceased incapacitated in order to have his body blown up with explosives, deducing that to be the plan from the instruction that the two demolition experts were to assist him. This led to his spiking the cold drinks with sleeping tablets and the handling of the situation as described in the summary of common cause facts.
The 10th Applicant's version was that he had informed of the capture of the Deceased and his subsequent removal to the farm. He approved of this. Some time later the 1st Applicant approached him with a request for assistance with the destruction of the body of an activist that had died during interrogation as a result of which he instructed the 7th and 8th Applicants to assist the 1st Applicant with the disposal of the body. He had all along been aware that this person was the Deceased. The 1st Applicant at no stage informed him that the Deceased was still alive. He had done so, he would certainly not have instructed explosive experts to assist, but would h ave instructed Hechter and Van Vuuren, who he had normally instructed if persons were to be killed.
It is clear that it is not possible that both the 1st and 10th Applicant can be correct on the subject matter of the request of the 1st Applicant, i.e. whether it related to the killing of the Deceased as averred by the 1st Applicant or to the destruction of his body, the Deceased already having died, as allegedly understood by the 10th Applicant. On the face of it, one of them is not telling the truth.
The evidence of the 7th and 8th Applicants' version at first glance seems to support the version of the 10th Applicant. They testified that they were summoned to the office of the 10th Applicant and instructed to assist the 1st Applicant with the destruction of a body. No detail was discussed and no detail given to them by the 10th Applicant. They were to follow orders of the 1st Applicant. The 7th Applicant proceeded to build na explosive device. Two days later they were called to the office of the 1st Applicant, asked whether they were ready and they arranged to meet that night for the execution of the operation. They both testified to the fact that they were surprised to find a living person when they first saw the Deceased on their way to Rustenburg. They were tasked by the 10th Applicant to assist in the destruction of a body. Much cross-examination turned around the exact wording used by the 10th Applicant, whether he referred to the destruction of a body or a corpse. This, in any event, would not take the matter much further. It is clear though that both were under the impression that the body they were to destroy by the use of explosives, was to be the body of a person who had earlier died. The 10th applicant, though, did not give them any background. They were merely told to assist the 10th Applicant, taking orders from him. They seem not to have taken the fact that the Deceased was still alive too seriously as they never reported on the fact to the 10th Applicant nor to anyone else. They did not mention their surprise to the 1st Applicant.
The probabilities support the version of the 1st Applicant. Firstly, he would not have deceived his immediate superior on the question, knowing that the 7th and 8th Applicants could report to the 10th Applicant the true state of affairs. Secondly, there is nothing to explain why the 1st Applicant would not have disclosed the real situation. The 10th Applicant, in his testimony, in fact said that had he been told what the 1st Applicant alleges, he would have had no hesitation in ordering his killing. He only would have tasked other persons than the 7th and 8th Applicants. Thirdly, the 10th Applicant confirmed the evidence of the 1st Applicant, that he had been kept abreast of the arrest of the deceased and of him having been taken to the farm. He also confirmed that he had sent the 3rd and 9th Applicants on another operation to Swaziland immediately following the complaint by the 1st Applicant after the assault by them on the Deceased. This was further corroborated by the 9th Applicant who testified that on the morning of the second day after the assault he and the 3rd Applicant were sent on an operation to Swaziland. It is further common cause that the Deceased was killed within 24 hours after the assault. Since it is clear from the evidence that the assault and complaint took place after the 10th Applicant had already tasked the 6th and 7th Applicant to assist the 1st Applicant with the destruction of the body of the Deceased, it is virtually impossible to reconcile the evidence of the 10th Applicant about his knowledge of the complaint related to the assault with his evidence that he had been told that the Deceased had died during interrogation.
In addition, the 10th Applicant clearly had little if any recollection of the events. Much of his evidence was led on hypotheses and constructions. He made it clear, though, that he had been unaware that this person who had supposedly died during interrogation and the Deceased was one and the same person. There was no suggestion that the 1st Applicant did not disclose the identity of the Deceased.
The Committee is satisfied that the version of the 1st Applicant is to be accepted on a balance of probabilities.
This then leaves the question as what to make of the evidence of the 10th Applicant. The requirement of full disclosure in our opinion should be interpreted to mean truthful disclosure. It does not require accurate description where inaccuracies are a result of faulty memory or faulty reconstructions. In addition the Committee must treat applications as separate and individual. The amnesty process is not intended to be an adversarial process between applicants and to the extent that differing versions about the same incident could reasonably co-exist, they should both be accepted for the purposes of full disclosure. It could therefore be argued that the 10th Applicant's memory merely left him in the lurch as he has conceded on a number of points in the present application and as he did in fact state in his written application that on a large number of incidents he has no recollection at all. It could even be argued that his version about the nature of the communication to him by the 1st Applicant related to faulty reconstruction, relying on the fact that the 7th and 8th Applicants had indeed been involved in the destruction of the body of the deceased. Unfortunately, the applications were heard in a hostile environment where every small detail was placed in dispute and elevated to the level of principle, even concerning mere peripheral and irrelevant issues.
Considering the application of the 10th Applicant on its own, the application has to fail on the grounds that the application is an application for amnesty for an order for the destruction of a corpse which is very different from what is borne out by the facts. This being so, he did in fact not commit any crime related to the killing. Furthermore, the emphatic implication of the 1st Applicant and the adamant refusal to concede that he may be confused in his version of events, given his memory failing him on so many other aspects and incidents, cannot, again given the finding on probabilities in favour of the 1st Applicant's version, be construed other than being wilfully false. The Committee finds that this goes to the heart of full disclosure and it has no alternative than to REFUSE the 10th Applicant amnesty for the killing of the deceased.
The second issue related to the category of important and material differences concerns the assault on the Deceased by the 3rd and 9th Applicants. On this incident there are again two version that place issues material to the assault in dispute. These concern both the circumstances and nature of the assault, as represented by the version of the 3rd and 9th Applicants on the one hand and that of the 5th and 6th Applicants on the other.
The version of the 3rd and 9th Applicants can be summarised as follows: The 3rd Applicant was the head of Unit C and the 9th Applicant a warrant officer under his command. They had been involved on the farm in the several activities of the unit when one afternoon they left to buy food, on their return in the evening to find the Deceased tied by his hands to a tree in a hanging position with his feet on the ground. He was fully clothed. It was clear that he had been severely assaulted by the 5th and 6th Applicants. The 3rd Applicant commenced to interrogate the Deceased and the 9th Applicant participated. In order to intimidate the Deceased, the 3rd Applicant fired shots from his pistol while holding it next to the Deceased's head. He also burnt him with a log which was taken from the fire. The 9th Applicant struck the Deceased with a soda water bottle. It was the only occasion in which the 9th Applicant was involved in interrogation of the Deceased and also the only occasion that he had seen the 3rd Applicant interrogating the Deceased. The 5th and 6th Applicants were present but did not take part in the interrogation or assault. They left for home later that night and returned the following day. When they arrived there, they found the 1st Applicant. He was very upset because of the assault. The 9th Applicant said that he did not want to argue with the 1st Applicant, got into his car and went home. They never saw the Deceased again. Shortly after this incident both the 3rd and 9th Applicants were sent on an operation to Swaziland by the 10th Applicant.
The version, according to the 5th and 6th Applicants, is that they both were constables attacked to Unit C and that they were responsible for guarding the Deceased while detained at the camp. They also had to cook for him and provide him with food. They received their instructions from the 1st Applicant. They did not participate in any interrogation of the Deceased at the farm, nor there assaulted him or observed any assault on the Deceased except for an assault by the 3rd and 9th Applicants and Van Vuuren. On that occasion they, with the Deceased, were sitting beside a fire when they arrived. The Deceased was fully clothed. They ordered the Deceased to stand up and take off all his clothes. He was then tied to either a tree or a water tank. They were clearly under the influence of alcohol. They immediately started burning the Deceased with a burning log taken from the fire. The 6th Applicant then returned to his tent while the 5th Applicant remained at the fire. He, that is the 5th Applicant, saw them continuing to consume whisky while assaulting the Deceased accusing him of being a terrorist. They did ask him some question, but they mainly shouted at him. The Deceased could not answer as he was continually being assaulted and was crying. The 5th Applicant had never observed such an interrogation and would therefore not describe it as interrogation. They burnt him with the log inter alia on his private parts.
Evaluating the evidence of other Applicants, the Committee finds no support for the version of the 3rd and 9th Applicants. It is extremely improbable that the Deceased would have been assaulted by the 5th and 6th Applicants, or for that matter by any of the black members on their own initiative. Virtually every Applicant testified that the orders of the 1st Applicant were not to interrogate or assault the Deceased. There was no evidence that anyone had observed any interrogation or assault prior to the incident in question, by anyone other than interrogation by the 1st Applicant. It is simply inconceivable that the black policemen would on their own initiative have taken the Deceased, tied him to a tree and physically assaulted him against the clear instructions of the 1st Applicant in the period of two to four hours of the 3rd and 9th Applicants' absence from the farm.
Secondly, the evidence of the 4th Applicant is explicit in its support for the version of the 5th and 6th Applicants. He testified that in the early morning he was called upon in his tent where he was sleeping, by the 5th and 6th Applicants who told him that the Deceased had been burned by certain persons and that he had to come and take a look. He went outside and found the Deceased naked, tied to a water tank. He had been burnt on his forehead, his private parts and between his buttocks. The 4th Applicant untied him. He then loosened him and applied Betadine ointment to his forehead and asked the black members to apply the ointment to other parts of his body which had been affected. He then had him put on his trousers and sit down inside the tent. he did not want to put on his shirt. He was clearly in pain. This evidence was not challenged on behalf of the 3rd and 9th Applicants.
The 9th Applicant was a very bad witness. The Committee has no hesitation in rejecting his version and in finding that he has not made a full and truthful disclosure. The 3rd Applicant, having died prior to the hearing, did not give evidence. His application, for the purposes of disclosure, has to be considered on the basis of what he had disclosed in his written application. The Committee finds that he too, did not make an honest and full disclosure of the events.
Both the 3rd and 9th Applicants are accordingly REFUSED amnesty.
There are a number of other issues on which there is conflicting evidence but which the Committee finds to be of the former category described above, i.e. that could be put down to faulty memory or faulty reconstructions. As we have said above, some of the disputes related to issues that are irrelevant to the applications.
Among these are testimony about who were present at the initial arrest, whether the detention of the Deceased at Compol Building lasted for a night and part of a day or two or three days, the presence of the 1st Applicant during the assault on the Deceased by the 5th Applicant at Compol Building and the meeting point between the 1st and the 7th and 8th Applicants on their way to killing the Deceased. In most of these one or more of the Applicants contributing to conflicting information, conceded that they might be mistaken. These issues are, in our opinion, not material in that there is nothing that indicates that any applicant had any motive to be untruthful on any of these issues.
The 1st Applicant was generally a good witness. The one aspect the Committee finds to have been the exception was his evidence on his source for the sleeping tablets with which he had spiked the cold drinks. At first he refused to disclose the name or names of the persons for fear of victimising them. His testimony as to how he obtained the tablets was not really plausible and the information had to be dragged out of him. However, there is nothing in the evidence that suggests that he was protecting anybody who might have been involved in the preparation for the eventual killing of the Deceased. A reasonable possibility exists that his evidence on this aspect can be true.
In light of the above, the Committee finds the evidence of the 1st, 2nd, 4th, 5th, 6th, 7th and 8th Applicants to have been satisfactory and finds that they have all made a full and truthful disclosure of all material facts related to their various roles in the incidents for which they seek amnesty. The Committee furthermore is satisfied that their acts were associated with a political objective. The 1st Applicant reasonably believed that the actions of the 10th Applicant, informing him that 7th and 8th Applicants would assist him, implied that he would have some role in either incapacitating or killing the Deceased. The 2nd, 4th, 5th, 6th, 7th and 8th Applicants clearly acted on orders of their superiors. They are all accordingly GRANTED amnesty.
The Committee, on the evidence of the 10th Applicant, is satisfied that he is entitled to amnesty for the abduction and assault on the Deceased by the 5th Applicant for which he is GRANTED amnesty.
To summarise then:
The 1st, 2nd, 4th, 5th, 6th, 7th and 8th Applicants are all GRANTED amnesty for their respective roles in the abduction, assault and killing of the Deceased and the disposal of his body. The 3rd and 9th Applicants are REFUSED amnesty. The 10th Applicant is GRANTED amnesty for the abduction of and assault by the 5th Applicant on the Deceased. He is REFUSED amnesty for the killing of and disposal of the body of the Deceased.
We are further of the opinion that the Deceased is a victim as defined in the Act and his name and particulars of his next-of-kin are being referred to the Reparation and Rehabilitation Committee for its consideration in terms of Section 22 of the Act.
DATED AT CAPE TOWN THIS DAY OF 2001.
JUDGE S KHAMPEPE
JUDGE N J MOTATA
MR W MALAN
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