DECISION
The Applicants applied for amnesty in respect of the crimes committed by them in relation to the kidnapping, torture and murder of Japie Kareng Maponya (the Deceased) which took place on 25th and 26th September 1985.
At the hearing of this matter testimony was received from all of the Applicants as well as one Frederik Johannes Pienaar. Andries Eximeleng, a brother of the Deceased, made an unsworn statement.
The facts pertaining to the events which led to the death of the Deceased which are common cause to the Applicants may be summarised as follows:
During or about May 1985 the West Rand Security Division of the South African Police, which was under the command of Johan Hendrik Le Roux (the 1st Applicant), was requested by the Pretoria Security Branch to assist in the tracing of Odirile Meshack Maponya, a brother of the Deceased, who was the commander of an uMkhonto weSizwe (MK) unit and who was suspected of having been involved in the murder of Warrant Officer Tswane, a member of the South African Police.
Captain Johannes Kleynhans was put in charge of the investigation into the whereabouts of Odirile Maponya. During the course of the investigation, various people were approached by the Police, including the Deceased and his father, Joseph Maponya. The sear for Odirile was unsuccessful and during September 1985 Kleynhans suggested to the 1st Applicant that Unit C1, which was attacked to the head office of the Security Branch, should be called in to assist in the tracing of Odirile Maponya. The 1st Applicant agreed and sent a telex to head office requesting the assistance of Unit C1, also known as Vlakplaas.
Thereafter, on or about 25th September 1985, certain members of Vlakplaas including Willem Albertus Nortje (the 3rd Applicant), David Jacobus van der Walt (the 5th Applicant), Thapelo Johannes Mbelo (the 6th Applicant), Simon Makopo Radebe (the 8th Applicant) and the Askaris (former members of liberation movements who had been turned to work for Unit C1) Gaboutlwelwe Christopher Mosiane (the 7th Applicant), Almond Butana Nofemela and Bhekintaba Moses Nzimande proceeded to Krugersdorp.
After the 3rd Applicant, who was the most senior member of C1 present, had discussed the matter with certain members of the West Rand Division, it was decided that an Askari approach the Deceased on the pretence that he was an MK cadre wanting to meet with Odirile Maponya. The 7th Applicant was sent to talk to the Deceased who was on duty at the bank where he worked as a security guard. The 7th Applicant tried without success in getting any information from the Deceased concerning the whereabouts of Odirile.
The 3rd Applicant then contacted Eugene Alexander de Kock (the 2nd Applicant) who was the commander of Unit C1. Sometime thereafter, the 2nd Applicant, together with Eugene Fourie (the 4th Applicant) arrived at the offices of the West Rand Division. Thereafter, a discussion involving the 1st Applicant, the 2nd Applicant, the 3rd Applicant and Captain Kleynhans was held. It was decided that the Deceased should be kidnapped and taken to Vlakplaas for interrogation.
The actual abduction took place in a public street when the Deceased was on his way home after finishing work. The abduction was carried out by the 6th Applicant, the said Nofemela and the said Nzimande. They, without being disguised, approached the Deceased, identified themselves as policemen and then bundled the Deceased into their nearby motor vehicle. When in the vehicle the Deceased was blindfolded and covered with a blanket.
The Deceased was then taken to Vlakplaas where he was interrogated. The interrogation lasted approximately half an hour and during the course of which the Deceased was severely assaulted. He was repeatedly beaten and kicked and was sprayed with teargas. Present at the interrogation were the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Applicants, Nofemela, Nzimande, Kleynhans and a lieutenant Dunkley, who was a member of the West Rand Security Division.
The interrogation was called off by the 2nd Applicant when he realised that no useful information regarding the whereabouts of Odirile Maponya would be obtained from the Deceased.
The Deceased was then cuffed to a steel bed which was in a storeroom on the farm and was made to spend the night there.
The next morning the 2nd Applicant went to his head office to speak to his commander, Brigadier Schoon. He could not locate Brigadier Schoon and then returned to Vlakplaas.
The Deceased was then made to lie on the floor of the back passenger section of a motor vehicle and he was covered with a blanket. The 2nd, 3rd, 4th and 5th Applicants then drove with the Deceased in that vehicle to Piet Retief where they went to the house of Frederick Johannes Pienaar. From there they drove to a spot approximately two or three kilometres away from the Nerston border post. The vehicle was parked close to the border fence. The 5th Applicant remained behind at the vehicle and others climbed through the border fence with the Deceased. After having proceeded about one hundred metres into Swaziland the 3rd Applicant struck the Deceased on the head with an Uzi submachine gun. The Deceased fell to the ground. The 3rd Applicant then tried to shoot the Deceased with the Uzi but it had jammed and did not work. The Deceased rose to his feet and the 2nd Applicant hit him with a spade. The 3rd Applicant then shot the Deceased in the head using a pistol which was loaded with a subsonic round. The Deceased's handcuffs and clothes were removed and efforts were made to bury him. They couldn't dig a proper grave and the body was then covered with branches and grass. They then drove back to Pienaar's house in Piet Retief before returning to Pretoria.
The body of the Deceased was never recovered.
The Deceased was not a political activist.
The above, as already stated, is a brief summation 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 related to 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 three differing versions of the 1st, 2nd and 3rd Applicants.
The 1st Applicant testified that after the failed attempt by the 7th Applicant to obtain information from the Deceased he had a discussion with the 3rd Applicant. The 3rd Applicant proposed that the next step to be taken should be to abduct the Deceased and interrogate him. The 1st Applicant stated that he weighed the pros and cons of either arresting the Deceased and detaining him in terms of Section 29 of the Internal Security Act or of unlawfully abducting and interrogating him. He agreed that the most effective way to proceed would be for members of Unit C1 to abduct and aggressively interrogate the Deceased. He testified that he thereafter had another meeting which included both the 2nd and 3rd Applicants. At this meeting the question of the abduction of the Deceased was again discussed. He stated that the 2nd Applicant informed him that it was a working method of Unit C1 to pick up suspects with the object of recruiting new agents or informers. This assisted him in agreeing to the abduction of the Deceased. He denied that at any stage before or during the discussion with the 2nd Applicant did he either consider or discuss the killing of the Deceased. He also denied that he ever said he never again wanted to see the Deceased in Krugersdorp or that he wanted him dead. He stated that he firmly believed that the interrogation of the Deceased would be successful and he did not even consider what the consequences would be should the Deceased not divulge the required information. He also expressed the opinion that once the Deceased had been abducted by members of Unit c1, the matter would be out of his jurisdiction as the 2nd Applicant and his team were attached to head office and were playing the leading role and also because Vlakplaas was beyond his area of jurisdiction.
The 1st Applicant testified further that the morning following the abduction of the Deceased he decided to go to Vlakplaas. He gives no reason for going there other than to say that he wanted to see what the place looked like. He did not go there to meet with anybody or to find out how the interrogation of the Deceased was proceeding. He found the farm to be somewhat rundown and he did not see anyone there. He decided to leave and as he was returning to his motor vehicle he was approached by Captain Kleynhans. Kleynhans told him that the interrogation of the Deceased had yielded no information and that as it was feared that the Vlakplaas operation may be put in jeopardy if he was freed as he may be able to identify some of its members or lay a charge because he was assaulted, it had been decided that the Deceased must be eliminated. The 1st Applicant responded by saying either "it is not my problem or "it is not a problem" and then immediately left the farm. He cannot recall which of the two statements he uttered but he is sure he uttered one of them. This results in the bizarre situation that he said one of two things which in context have completely different meanings - by saying "it is not my problem" he would be distancing himself from the decision; by saying "it is not a problem" he would be indicating his assent.
The 2nd Applicant testified that there were two discussions involving himself, the 1st Applicant and the 3rd Applicant. At the first discussion the question of abducting the Deceased was discussed and agreed upon. The 2nd Applicant then went to reconnoitre the area where the Deceased worked to establish whether a successful abduction would be feasible. He concluded that the abduction could be done and then returned to the office of the 1st Applicant with the 3rd Applicant. At this second discussion the 2nd K pertinently asked the 1st Applicant what they should do with the Deceased after the abduction and interrogation. The 1st Applicant responded by saying that he does not want to see the Deceased again in Krugersdorp. The 2nd Applicant states that it was clear to him at this discussion that the deceased was to be killed. He testified that it was clear in his mind that the Applicant would have to be killed as they were committing a capital crime in kidnapping him in addition to the fact that if released Vlakplaas members may be identified and the Security Police would be compromised. He understood the 1st Applicant's statement that he did not want to see the Deceased again in Krugersdorp to indicate his agreement that the Deceased should be killed after the abduction.
The 2nd Applicant testified that the morning following the abduction of the Deceased he went to head office to inform his immediate Commander, Brigadier Schoon, of the situation. Brigadier Schoon was not at his office and could not be found by the 2nd Applicant. The 2nd Applicant then telephoned Captain Kleynhans and asked him if he would enquire from the 1st Applicant if he still wanted the Deceased killed. Kleynhans asked him to telephone back after a few minutes. On the return call Kleynhans informed the 2nd Applicant that the original decision stood.
The 2nd Applicant testified that the incident relating to the Deceased was a West Rand Division operation and was at all times under the command of the 1st Applicant.
The 3rd Applicant testified at the hearing of this matter that after the failure of the 7th Applicant's attempt to get information from the Deceased one of the black members of Unit C1 suggested to him that the Deceased be abducted and interrogated. The 3rd Applicant then went and put this suggestion to the 1st Applicant. They then discussed the question of abduction. The 3rd Applicant states that he warned the 1st Applicant that the possibility existed of the Deceased dying either during the course of the interrogation or later of injuries received during the interrogation. He said he informed the 1st Applicant that he would have to secure the presence of the 2nd Applicant before any final decision regarding the abduction is made as he had no authority himself. He then communicated with the 2nd Applicant who later arrived at the offices. He states that a further discussion was then held with the 1st Applicant which was on much the same lines as his previous discussion with the 1st Applicant. As far as he is concerned all that was agreed upon at Krugersdorp was that the Deceased be kidnapped and interrogated. There was no decision taken that he should be killed although the 1st Applicant was told of the possibility of the Deceased dying during or as a result of the interrogation.
He testified further that after the 2nd Applicant called an end to the interrogation he dismissed the black members of Unit C1 and told them they need not work the next day. He stated that he believed that the 2nd Respondent had formulated a plan to kill the Deceased. He also understood that, the next day when the 2nd Applicant returned from head office, authority had been given to killed the Deceased, although the 2nd Applicant did not specifically inform him of this.
The other major discrepancy between the evidence of some of the Applicants concerns the presence or otherwise of Frederick Johannes Pienaar at the scene of the murder of the Deceased.
In this regard the 2nd Applicant testified that prior to leaving for the Swaziland border in order to kill the Deceased he telephoned Pienaar, who was the commander of the Security Branch in Piet Retief and asked him about the movements of the Police counterinsurgency unit and the army who patrolled the border. The Deceased was put in a four-wheel drive vehicle as were extra cans of petrol and he, together with the 3rd, 4th and 5th Applicants, then drove to Piet Retief. He states that no spade or other gardening tool wa packed into the vehicle at Vlakplaas. They arrived in Piet Retief late at night and went to Pienaar's house. The 2nd Applicant stated that he again asked Pienaar about the movements of the police and army patrols on the border and he also borrowed a garden spade and/or a fork or pick from him. He did not tell him the reason why they were in the area. They then departed from Piet Retief without Pienaar and proceeded to a spot along the border fence which was near the Nerston border post and which was approximately sixty five kilometres from Piet Retief. After killing the Deceased they returned to Pienaar's house in Piet Retief where he returned the garden tools he had borrowed. Pienaar gave him eight beers for them to consume their trip back to Pretoria. They then drove back to Pretoria.
According to Pienaar, his recollection of the events that night are very vague. He testified that to him the arrival of the 2nd Applicant and the other C1 unit members at his house was an insignificant occurrence. He stated that there were several instances when members of C1 came to his house and borrowed spades from him. Some of the roads in the area were bad and spades would be required to dig vehicles out when they got stuck. He stated that he didn't know the nature of the operation they were on and he is adamant that he did not accompany them to the place near Nerston where the Deceased was murdered. He said that if he was requested to point out a suitable spot to them on the border he would not have gone to Nerston. He knew the environment very well and he would h ave suggested a more suitable spot in either the Bothashoop or Houtkop border post areas which were closer to Piet Retief.
The 3rd Applicant testified that before they left for the Swaziland border and after the 2nd Applicant had spoken to Pienaar on the telephone, the 2nd Applicant told him that Pienaar would find a place for them, which he understood to mean that Pienaar would find them a suitable place in Swaziland to carry out their deed. He stated that the vehicle was loaded with extra cans of petrol and that he also put a spade and he thinks also a pick into the vehicle. They then proceeded to Piet Retief where they went to Pienaar's house. Pienaar joined them in the vehicle and directed them to Nerston. They did not take any garden tools from Pienaar's house. When they got to the place near Nerston, the 5th Applicant remained at the vehicle and he, together with the 2nd Applicant, the 4th Applicant, Pienaar and the Deceased climbed through the border fence and went into Swaziland. After the Deceased was killed and his body covered they returned to the vehicle and drove back to Piet Retief where they dropped off Pienaar at this house. They then drove back to Pretoria.
The 4th Applicant testified that he saw a spade in the vehicle before they left for Piet Retief. They drove to Piet Retief where they went to Pienaar's house. Pienaar got into the vehicle and they drove to the place near Nerston. He, like the 3rd Applicant, testified that Pienaar entered Swaziland with them and that after the killing of the Deceased Pienaar was dropped off at his house before they returned to Pretoria.
The 5th Applicant also testified that a spade was loaded into the vehicle at Vlakplaas before they departed for Piet Retief. He is also adamant that they picked up Pienaar in Piet Retief and that Pienaar accompanied them to the place near Nerston where the Deceased was murdered.
With regard to the discrepancy in the evidence relating to the authorisation to take action against the Deceased it is common to all the versions that it was the 3rd Applicant who first suggested to the 1st Applicant that the Deceased be abducted and interrogated. The two of them discussed the matter and agreed that they would be the best cause to follow. A final decision to abduct and interrogate was not taken at that first meeting as the 3rd Applicant required his commander, the 2nd Applicant to be involved in the matter. The 2nd Applicant was called in and the matter was again discussed and it was finally decided to abduct the Deceased. In our opinion the probabilities are overwhelming that they must have discussed and decided what to do in the event of the interrogation of the Deceased being unsuccessful. Although they may have believed that the Deceased had information about the whereabouts of his brother it would be unreasonable to find or assume that they were absolutely certain that the Deceased would disclose the required information during the interrogation. The Deceased had, after all, been previously approached for information by the Police on more than one occasion without any success. There was therefore a distinct possibility that they would not get the information from the Deceased.
It is inconceivable that the 1st Applicant, when weighing up the pros and cons of either arresting the Deceased in terms of Section 29 of the Internal Security Act or unlawfully abducting and interrogating him, did not consider how the situation should be dealt with in the event of the abduction and interrogation failing. Taking into account his experience as a policeman and his seniority it would be naive in the extreme for him to have believed that once the Deceased was abducted and taken to Vlakplaas he could wash his hands of the matter as it would then be out of his jurisdiction. The action against the Deceased was a West Rand Division matter and it was that Division which requested the assistance of Unit C1. It had a very real interest in the outcome of the interrogation. If the interrogation was successful then the obtained information would have been forwarded to the 1st Respondent's office. If it was unsuccessful and the police were compromised by their unlawful actions the 1st Respondent would have been involved in the repercussions. His evidence about going to Vlakplaas the following day and upon being told there by Kleynhans that the Deceased was to be killed to which he responded by stating either that "it is not my problem" or "it is not a problem" is unconvincing. The reason given by him for going there is implausible and his evidence that he was there is not supported by either the 3rd or the 5th Applicants who were at the farm that morning. Neither of them testified that either the 1st Applicant or Kleynhans were present at the farm that morning.
The 3rd Applicant in his testimony at the hearing of this matter endeavoured to separate, both in time and place, the decision to abduct and interrogate the Deceased and the decision to kill the Deceased. He associated himself in the decision making process of the abduction and interrogation but distanced himself from the decision process of the killing.
The 3rd Applicant gave a different version when he testified at the criminal trial of the 2nd Applicant and he did not, in our view, satisfactorily explain at the hearing of this matter why he deviated from his previous testimony. The version that he gave at the trial was very much in line with the version given by the 2nd Applicant and the hearing of this matter as is evidenced by the following quotations taken from the 3rd Applicants evidence at the trial:
"Hoe ek dit geweet het, ek was, ons was gewoonlik daagliks in kontak met hom gewees en toe ek daardie spesifieke dag bel van die Generaal se kantoor af toe het ek hom gekry op Zeerust en ek het vir hom gesę, net so vinnig verduidelik op die telefoon en toe sę hy vir my reg, hy kom deur ons moet vir hom wag, want ek het toe vir hom gesę luister, ons sal dalk hierdie man moet wegvat as hy nie wil praat nie, met ander woorde, ons sal hom moet ontvoer en met hom praat en as hy nie wil praat nie sal ons hom dalk moet wegvat, dit is die idee wat ek toe nou al klaar in my kop gehad het wat kan gebeur"
and
"Hy het nog dieselfde dag deur gekom en ons is weer na Le Roux se kantoor. Ons het did by hierdie geleentheid duidelik aan Le Roux, Kleynhans en Dunkley gestel dat indien ons vir Japie sou dwing om oor sy broer te praat ons hom nie weer sou kon laat gaan indien hy nie sou praat nie. Dit het daarop neergekom dat ons permanent van h om ontslae moes raak. Generaal Le Roux het presies verstaan waarvan ons praat en ingestem met die reëlings. Hy het gesę dat ons die saak volgens ons goeddunke moes hanteer."
and
"Op daardie stadium toe het ons weer na die kantoor toe gegaan en ons het toe, die Generaal was ook daar by gewees en Dunkley dink ek was by, ek glo hy was by, hulle moes by gewees het, want soos ek sę dit was hulle belange gewees. Toe sę ons vir hulle ons sal die man vat en vir hom gesę, maar as ons hom nie kry dat hy kan praat nie, sal ons hom moet wegvat ... met ander woorde elimineer."
We, on this aspect, accept the version of the 2nd Applicant as being the most probable and correct version. The versions of both the 1st and 3rd Respondents in this regard are accordingly rejected as being false.
We have also considered carefully the evidence relating to the question whether or not Pienaar accompanied the others to the place where the Deceased was murdered. On this aspect neither the evidence of the 3rd, 4th and 5th Applicants on the one hand nor the evidence of the 2nd Applicant and Pienaar on the other can be rejected out of hand as being so incredible or unsatisfactory that it is untruthful. The two versions are diametrically opposed and recourse must be had to the probabilities in determining which version to accept.
There is no obvious reason why the 3rd, 4th and 5th Applicants should falsely implicate Pienaar.
On the contrary, the evidence was that there was no ill-feeling between Pienaar and the other three. It is also difficult to imagine any advantage that the 3rd, 4th and 5th Applicants would gain by falsely implicating Pienaar. It is also not a matter in which all three of them could be genuinely mistaken about.
The 2nd Applicant, prior to leaving for Piet Retief, stated that he spoke to Pienaar on the telephone about the movements of patrols in the area. He therefore had no qualms about speaking about such matters over the telephone. On his version they travelled at least an extra two hundred and fifty kilometres in the dead of night merely to go to Piet Retief to enquire from Pienaar whether there had been any change in the patrol movements since the telephone call and pick up gardening tools and then return them to Pienaar. This extra travelling and wasted time could have easily been avoided by making a further telephone call from Amsterdam or any other place en route and by taking their own gardening tools. It, in our opinion, is improbable that they went to Piet Retief for the reasons stated by the 2nd Applicant.
It is, to our minds, far more probable that they went to Piet Retief to fetch and again later to return Pienaar. Pienaar was far more acquainted with the area than any of the C1 members and it is probable that they relied on him to take them to a suitable place to kill the Deceased. The fact that Pienaar stated that he would have taken them to a suitable place closer to Piet Retief does not render it improbable that he took them to the Nerston area. The Deceased was in fact killed in a suitable place in the sense that the murder was not detected and the body was never recovered. Furthermore, if the body was discovered it would more likely to have been returned to Amsterdam than Piet Retief.
We accordingly find that the probabilities favour the versions of the 3rd, 4th and 5th Applicants in this respect and we accordingly find that the spade was taken from Vlakplaas and that Pienaar was present at the place where and when the Deceased was killed.
Section 20(1) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995, ("the Act") provides that if the Committee, after considering an application for amnesty, is satisfied that (a) the application complies with the requirements of the Act; (b) 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); and (c) the applicant has made full disclosure of all relevant facts, it shall grant amnesty in respect of that act, omission or offence.
Section 20(2) of the Act provides, inter alia, as follows:
"(2) In this Act, unless the context otherwise indicates "act associated with a political objective" means any act or omission which constitutes an offence or delict which, according to the criteria in subsection (3), is associated with a political objective, and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic during the period 1st March 1960 to the cut off date by:
a. .........
b. any employee of the State or any former State or any member of the security forces of the State or any former State in the course and scope of his or her duties and within the scope of his or her express or implied authority directed against a publicly known political organisation or liberation movement engaged in a political struggle against the State or a former State or against members or supporters of such organisation or movement and which was committed bona fide with the object of countering or otherwise resisting the said struggle;
c. ......
d. ......
e. ......
f. any person referred to in paragraphs (b), (c) and (d), who on reasonable grounds believed that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority;
g. any person who associated himself or herself with any act or omission committed for the purposes referred to in paragraphs (a), (b), (c), (d), (e) and (f)."
Section 20(3) of the Act provides, inter alia, as follows:
"(3) Whether a particular act, omission or offence contemplated in subsection (2) is an act associated with a political objective, shall be decided with reference to the following criteria:
(a) the motive of the person who committed the act, omission or offence;
(b) ........
(c) ........
(d) the object or objective of the act, omission or offence and in particular whether the act, omission or offence was primarily directed at a political opponent or State property or personnel or against private property or individuals;
(e) whether the act, omission or offence was committed in the execution of an order of, or on behalf of, or with the approval of, the organisation, institution, liberation movement or body of which the person who committed the act was a member, agent or a supporter; and
(f) the relationship between the act, omission or offence and the political objective pursued and in particular the directness and proximity of the relationship and the proportionality of the act, omission or offence to the objective pursued."
With regard to the first of the requirements set out in Section 20(1) we are satisfied that the applications of all the Applicants comply with the requirements of the Act in that they were duly completed in the correct form and were timeously submitted.
In respect of the second requirement, namely political objective, the evidence shows that the 4th, 5th, 6th, 7th and 8th Applicants at all times acted under order either from the 2nd Applicant or the 3rd Applicant. Strict discipline prevailed in Unit C1 and they were expected to carry out orders without question. Failure to do so would no doubt have resulted in serious consequences for them. The 6th, 7th and 8th Applicants were only involved in the abduction and interrogation of the Deceased and played no role whatsoever in the murder. They were, in fact, specifically excluded from the events which took place on 26th September 1985, the day of the murder. The 4th and 5th Applicants played a lesser role in the killing than the 2nd and 3rd Applicants and did not take part in the actual assault upon the Deceased at the murder scene. They were also not involved in the decision process to kill the Deceased.
The 4th, 5th, 6th, 7th and 8th Applicants acted with blind allegiance in response to orders they could not question and there is nothing in the evidence to suggest that they at any stage exceeded the bounds of their orders or that they acted on their own initiative. They at all times were acting in the course and scope of their duties as policemen or askaris and believed that their actions were countering the political struggle that was being waged against the government. We are accordingly satisfied that their applications satisfy the requirement relating to political objective.
With regard to the 1st, 2nd and 3rd Applicants, it is our finding that they all participated in the decision making process and that the decision to abduct, interrogate and, in the event of not extracting any information, kill the Deceased, was a joint decision involving all three of them. In this respect the fact that the 3rd Applicant was junior in rank to the 1st and 2nd Applicants does not absolve him from responsibility. It was he who first suggested the question of abduction to the 1st Applicant and he participated fully in all the discussions concerning the plan. Also, the fact that the 1st Respondent issued the ultimate order or gave authorisation for the plan to be proceeded with does not mean that the 2nd and 3rd Applicants were not responsible themselves for the decision.
Although all three of them may have bona fide believed that the Deceased had information regarding the whereabouts of his brother, they must have realised, because of the previous failed attempts to extract information from the Deceased that it was by no means certain that the interrogation would succeed. This raises the question of proportionality. The death of the Deceased was backed against the uncertainty of extracting information from him. Even taking into account the background of the intensity of the political conflict at that time and that the government and the police and other security forces were of the view that they were subject to a total onslaught against them and that there was an urgent need to apprehend Odirile Maponya, we are of the view that the decision to kill and the killing of the Deceased was grossly disproportionate to the objective pursued. It was appreciated by all three of the Applicants concerned prior to the abduction that they were embarking on an unlawful course of action and that if the Deceased was set free after being unsuccessfully interrogated there might be serious and embarrassing repercussions for them and the Security Branch. They also realised that the Deceased would be able to identify some of their members during the course of the abduction and interrogation. It was these factors which prompted them to decide, before the abduction, to kill the Deceased in the event of him not co-operating. They, therefore, balanced the life of the Deceased against the outcome of his interrogation and that, in our opinion, was disproportionate to the ends they sought to achieve.
The evidence reflects that the Deceased was not a political activist. There is no evidence that he was a member or supporter of any political movement or party. He was not the subject of any police investigation. There is no evidence at all to suggest that he was a political opponent of the State or any other institution or organisation. The only thing against him was that it was suspected that he may have knowledge of the whereabout of his brother. Whether he did in fact have such knowledge is not known. Section 20(2) (b) of the Act provides, inter alia, that the offence for which amnesty is applied should have been directed 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. Section 20 (3) (d) directs us to take into consideration whether the offence was primarily directed at a political opponent or a private individual. At best in this matter it may be said that although the victim of the interrogation was not a political opponent, the objective was to extract information for use against a political opponent. However, the killing of the Deceased was not an act against a private individual and was not directed against a political opponent. The motive for the murder was nothing more than the protection of themselves and the Security Branch , in particular Unit C1.
We are accordingly of the view that the crimes committed by the 1st, 2nd and 3rd Applicants in regard to the Deceased were not acts associated with a political objective as envisaged by the provisions of the Act.
With regard to the third requirement, namely, full disclosure of all relevant facts, we are satisfied that the 4th, 5th, 6th, 7th and 8th Applicants did, to the best of their ability, make a full disclosure of the roles that they played in this whole incident. As mentioned earlier, there were a number of inconsistencies in their evidence; but these did not relate to cardinal issues and did not give rise to a suspicion that they were wilfully telling untruths. We are satisfied that they have complied with the requirement relating to full disclosure.
It has already been found that the 1st and 3rd Applicants did not give a truthful account of the discussions which led to the decision to launch the operation against the Deceased. Likewise, the evidence of the 2nd Applicant relating to Pienaar has been rejected as being untruthful. Both of these issues are of material importance and it therefore cannot be said that the 1st, 2nd and 3rd Applicants have made a full disclosure of all the relevant facts.
In the result:
a. The amnesty application of Johan Hendrick Le Roux relating to the kidnapping, torture and murder of Japie Kareng Maponya is REFUSED.
b. The amnesty application of Eugene Alexander de Kock relating to the kidnapping, torture and murder of Japie Kareng Maponya is REFUSED.
c. The amnesty application of Willem Albertus Nortje relating to the kidnapping, torture and murder of Japie Kareng Maponya is REFUSED.
d. Eugene Fourie is GRANTED amnesty in respect of any unlawful act perpetrated by him in relation to the kidnapping, torture and murder of Japie Kareng Maponya;
e. David Jacobus van der Walt is GRANTED amnesty in respect of any unlawful act perpetrated by him in relation to the kidnapping, torture and murder of Japie Kareng Maponya;
f. Thapelo Johannes Mbelo is GRANTED amnesty in respect of any unlawful act perpetrated by him in relation to the kidnapping and torture of Japie Kareng Maponya;
g. Gaboutlwelwe Christopher Mosiane is GRANTED amnesty in respect of any unlawful act perpetrated by him in relation to the kidnapping and torture of Japie Kareng Maponya; and
h. Simon Makopo Radebe is GRANTED amnesty in respect of any unlawful act perpetrated by him in relation to the kidnapping and torture of Japie Kareng Maponya.
We are of the opinion that Maureen Zondi, the common law wife of the Deceased, the daughter of the Deceased whose name is not know to us, Andries Eximeleng Maponya, Akanyang Daniel Maponya, Kenneth Maponya, who were the brothers of the Deceased and Julia Maponya, the sister of the Deceased are victims and this matter is referred to the Committee on Reparation and Rehabilitation for its consideration in terms of the Act.
SIGNED AT CAPE TOWN ON THIS THE 7TH DAY OF FEBRUARY 2001
JUDGE A WILSON
ACTING JUDGE C DE JAGER
MR J B SIBANYONI
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