Decisions

DECISION

At the relevant time the 1st applicant, Colonel de Kock, was commander of Vlakplaas.  The 2nd, 7th, 9th, 10th, 13th and 14th applicants were also members of Vlakplaas.  The 6th applicant, Frederick Johannes Pienaar was head of the Piet Retief branch, a sub-branch of the Ermelo Branch of the Eastern Transvaal Division of the Security Police Branch with Head Office at Middelburg.  The 3rd, 4th, 5th and 11th applicants were members of the security police, stationed at Piet Retief, under the command of the 6th applicant.  The 15th applicant, Colonel Deetlefs was commander of the Ermelo Branch to which the 12th applicant was attached.  The 8th applicant was a Colonel and the head of the Witbank Branch of the Eastern Transvaal Security Division.

It is common cause that at the time, while the level of unrest in the Eastern Transvaal had already been high, there was a further drive by the ANC to infiltrate MK-members from Mozambique via Swaziland into South Africa, more specifically into Northern Natal and Eastern Transvaal.  Evidence was given that incidents of violence and terror at the time, particularly in the Eastern Transvaal, included landmine incidents, the killing of civilians in these and other incidents, explosions of bombs and the killing of policemen.

It is further common cause that at the time the Swaziland Government was also acting against MK in Swaziland, inter alia as a result of liaison with and pressure from South Africa, which was also part of the responsibility of the 15th applicant on behalf of the Republic of South African authorities.  As a result the strategy of the ANC in Swaziland was to infiltrate MK-members passing through Swaziland into the Republic of South Africa as quickly as possible.  The MK commander in Swaziland at the time was Charles Ndaba.

This was the situation when information was received by the 5th and 6th applicants that some 36 MK-members were to be infiltrated into the RSA from Swaziland.  They received information from an informer handled by the 5th applicant and consulted also by the 6th applicant, the informer whose responsibility apparently was the provision of transport on the South African side of the Swaziland border once those who were illegally to cross the border, found themselves on the South African side. 

Having received this information, the 5th and 6th applicants conspired with the informer that they would provide the necessary transport.  It is not clear to what extent, either before or after the incidents to be discussed, the informer was aware of the plans the 6th respondent immediately formed to set an ambush to kill those to be infiltrated.  In evidence they, that is the 5th and 6th respondent, maintained that they did not tell the informer, either before or after the incidents, what the situation was.  Any relationship with an informer was intended to receive information and to impart as little as was absolutely necessary.  It is though clear that the informer must have expected ill fate to meet with the MK infiltrators.

Incident of the 8th June 1988

The 6th applicant, having received the information on the 7th of June 1988, contacted the 1st applicant, requesting assistance from Vlakplaas with a proposed ambush following the infiltration expected on 8 June.  C-section had a team-building exercise scheduled on the Natal North Coast at a place called Island Rock.  1st applicant, having received the request, reported to Brigadier Schoon, head of C-section, with whom he was to travel to Island Rock and then on the 8th left, a day before their scheduled departure to Island Rock, with some of the Vlakplaas members that he had instructed to accompany him to Piet Retief where he met up with the 6th applicant.  He also consulted with the informer.

It was agreed among them all that a vehicle, a Toyota Corolla, the property of the Piet Retief branch, would be sent with a driver, a Captain Gladstone Mose, who came from Vlakplaas, who would pose as a taxi-driver, presenting himself as Amos, to receive the infiltrating MK-members at the border.

The detail of the pick-up and planned ambush was then decided between the 1st and 6th applicants.  The ambush was planned to take place about 15 kilometres from the Swaziland border on the Houtkop road, there lined by plantations on both sides.  Mose was taken and shown the exact spot where he had to stop, having received his passengers.  The place was easily recognisable, by either an old deadwood Eucalyptus tree or a telephone pole.  Evidence on what constituted this beacon was conflicting but not material.

Approaching the spot, Mose had to flicker his headlights indicating his approach and to bring the vehicle to a stop at the pre-arranged point.  He also had to give an indication whether his passengers were armed, or whether he suspected them to be armed.  This was according to some applicants to be done by activating the left indicator lights and by others by running around the  front of the vehicle into the plantation.  The importance of this would merely be for those in waiting to assess their own risk, since the plan was clearly to kill all the MK-members.  They did though expect that these MK-members would be armed.

Everybody who was to participate in the operation was then briefed and given instructions.  Those from Vlakplaas who participated were the 1st, 2nd, 7th, 10th and 14th applicants.  From Piet Retief were participating the 3rd, 4th, 5th and 6th applicants.  They took up positions for the ambush, all of them on the left hand side of the road.  The vehicle approached, flickered its headlights for identification (some say the left indicator lights were activated), came to a halt and Mose alighted, ran past the front of the vehicle and into the bushes on the left hand side of the road.  The 3rd applicant held a searchlight on the vehicle.  The windows were misted.  1st applicant started shooting which was then followed by all the others joining in.  After a while 1st applicant gave the order to cease fire.  When they approached the vehicle, the back door opened and a woman fell out of the car.  She still showed signs of life, as if attempting to speak.  1st applicant ordered the 7th applicant to shoot here, which he then did.  All the other passengers, two black women and an Indian male, had been killed.  No arms were visible and a thorough search of their bags did not reveal any.  It presented them with a crisis that would have had a very negative effect on the Security Forces would it become known that unarmed people were killed.

Weapons of Russian origin were then planted on the deceased persons, the provider of which was not clear but which the Committee accepts were supplied by the 7th applicant.  Some of the applicants thoughts they were brought from Vlakplaas while others thought it was from Piet Retief.   The 7th applicant was emphatic that they were from him.  All of the applicants who were present, participated in the shooting with the exception of the 3rd applicant who handled the searchlight.  The bodies of the four (4) deceased were loaded into a police van and taken to the morgue in Piet Retief.  Early that morning the 1st applicant, with the other members of Vlakplaas, left for Island Rock where he reported to Brigadier Schoon, also that the deceased were unarmed and that they had covered that up.

The incident was kept secret and not until quite some time after the second incident was information given to the media.  In the meantime the identities of the deceased were established as Surenda Lenny Naidu, who the police had earlier linked to a handgrenade attack on the home of Mr Armichand Rajbansi, then a member of Parliament in the house of Delegates;  Makhosi Nyoka who, information from Swaziland indicated, had been assisting infiltration of MK - members, Lindiwe Mtembu and June Rose Cotoza, who had once before been arrested by the 6th applicant.  All four the deceased were attached to the intelligence unit of the ANC.

When the incidents were disclosed, apparently for the first time by then Minister Adriaan Vlok in a statement in Parliament, they were presented as a shoot-out at a police roadblock with MK members who were making their way to Northern Natal.  The 6th applicant (Pienaar) lead the "investigation".  At some stage the 6th applicant was replaced as investigating officer by a Brigadier van Wyk and the latter, apparently on retirement, by General Krappies Engelbrecht.  At the judicial inquest the lie was perpetuated by everyone of the applicants who testified.  According to the applicants both Van Wyk and Engelbrecht were actively involved in the cover up.  The whole investigation was designed to cover up and was so "police sanctioned".

The incidents of the 12th of June 1988

Since the incident of the 8th June had been kept secret, it was expected that infiltration would continue.  It was arranged that the 1st applicant would remain in touch with the 6th applicant to ascertain when further infiltration would take place, they having decided to repeat the operation.  As no telephone was available at Island Rock, he telephoned at least twice from Mathubathuba, having travelled there from Island Rock.  On the morning of the 12th June, C - section, having completed their team-building exercise, travelled back to Pretoria.  At about 11h00 that morning, they stopped over at Moolman, about 30 kilometres from Piet Retief, from where the 1st applicant phoned again and was told by the 6th applicant that an infiltration and ambush was planned for that night.  He informed Schoon and when the latter and others left for Pretoria, 1st applicant instructed applicants 2, 7, 10 and 14 all of whom were involved in the incident of 8 June, as well as applicants 9 and 13, to accompany him to Piet Retief. 

Information was that some eight to ten MK - members would that night be infiltrating, which probably accounts for the larger contingent from Vlakplaas.  The same procedure as on 8 June would be followed.  On this occasion a mini-bus was used (some thought it was a Toyota Hi-Ace), apparently a Nissan E20 and a Warrant Officer Manzini, from the Piet Retief detective unit, was used as driver, also under a false name, presenting himself to his passengers as Johannes, the brother of Amos (Mose).

The mini-bus was supplied by the 8th applicant from Witbank branch at the request of the 6th applicant and he also participated in the ambush.  6th Applicant advised the 15th applicant (as he did with the incident of the 8 June, which 15th applicant could not participate in since he was otherwise occupied) and requested his presence.  He also participated in the 2nd incident and at his instructions the 12th applicant accompanied him.

It appears that in the time between the 8th and the 12th of June, the 5th applicant had been in contact with the informer.  He, again on the principle of minimum imparting of information to an informer, told her simply that the operation was successful.  He would not speculate as to how she understood this communication.  She in any event again arranged the transport on behalf of the ANC at least fully knowing that the infiltrating members of MK would be received on the South African side of the borders by the Security Police.

Since it was assumed that news would break after this second operation and infiltration via the informer would cease, it was decided to send men into Swaziland to kill those that would deliver the infiltrating group to the border.  For this purpose the 1st applicant tasked the 10th applicant with the 7th, 9th and 11th applicants to cross the border at the spot where Manzini was to pick up the infiltrating group and to kill the person or persons who would deliver them at the border, only after Manzini had departed with the infiltrators.

As the others left to prepare for the ambush, the 7th, 9th and 11th applicants, under command of the 10th applicant crossed over into Swaziland after having hid their vehicle on the RSA side of the border.  On the Swazi side of the border was a road running parallel to the border where they waited.  A vehicle approached them, turned around and stopped about 150 meters from them on the other side of a small bridge.  They could hear persons speak as they alighted from the vehicle.  The car boot was opened and they heard weapons being cocked.  The persons walked towards the border and when their voices could no longer be heard, they approached the vehicle and took up positions on the opposite side of the road, about 6 to 10 metres from the vehicle.  They awaited the return of whoever were to board the vehicle again.  They heard voices as persons were returning.  They saw the one coming round the vehicle, clearly visible on their side.  Before the second person, still on the far side of the vehicle could come into clear sight, the 10th applicant fired and the others followed.  He explained in evidence that although the plan had been to shoot only when everyone returning had again boarded the vehicle, he heard one of his party unlocking a safety catch of his weapon.  The noise was apparently also overheard by the person standing at the car.  He then decided to fire immediately.  They heard the second person retreating into the bushes.

They scouted the immediate surroundings of the vehicle, saw the one person (later identified as Bongani Gaga Zondi) Lying next to the vehicle, shot up the fuel tank and set the car alight.  Not knowing the whereabouts of the other person, they worked at speed and returned to the vehicle to join up with the others at the ambush, which was over by the time they arrived.  They reported to the 1st applicant who was very upset that the second person had escaped as that had put the informer's life at great risk.

In the while, the ambush proceeded as planned with all the others present there.  Apart from the 1st applicant, from Vlakplaas was involved the 2nd, 13th and 14th  applicants;  from Piet Retief the 6th applicant with the 3rd, 4th, 5th and 11th applicants;  from Witbank the 8th applicant and from Ermelo the 15th and 12th applicants.

The ambush was at the same spot as that of the 8th June.  They waited a long time.  Eventually the 2nd and 11th applicants drove towards the border to investigate.  They passed the mini-bus on the way and then made an about-turn, back to the place of ambush.  When they arrived the shooting was over.  Manzini approached the ambush with the mini-bus, giving all the signals as in the first incident, but, for a reason unknown, only came to a halt some 80 metres beyond the agreed spot, where he jumped out of the vehicle and ran round the front into the left hand side of the road plantation.  1st applicant ran towards the vehicle with the others following.  1st applicant was about 4 metres from the vehicle when a person on the front passenger seat alighted with an AK in his hands.  1st applicant immediately shot him a number of times.  1st applicant was fairly adamant that this person had not fired a shot at him though a number of applicants insisted that they had seen the flash of a shot from his gun before he was shot.  This discrepancy is not material.  It is common cause that the intention was to kill everyone in the vehicle.  In any event, immediately after the first shot was fired, all opened fire.  On this occasion, the search light was handled by the 5th applicant.  The order to cease fire was given by the 1st applicant.  On inspection four (4) people were found dead.  They were riddled with bullets all over their bodies, all of them also sustaining bullet wounds in the head which on each occasion in the post-mortem inquest were given as reason for death.  Four (4) AK-47s each with a second magazine and 4 grenades were found on the deceased.  A suggestion in cross-examination that they were in cold blood shot in the head and that the weapons were again planted, was denied by all.  The deceased persons were later identified as Nkosinathi Bruck Mshwayo, Howard Sifiso Nxumalo, Jabulane Sibisi and Sam Thembu, all members of MK.

The Vlakplaas members left the following morning early and the 1st applicant reported to Schoon in Pretoria.

Again the investigation and inquest took the form of a cover-up.  It was also presented as a shoot-out at a road block.  A number of applicants testified that they were presented with ready prepared statements they had to sign and attest to, these statements also prepared apparently by Van Wyk in collaboration with Pienaar.  A significant departure, other than could be expected, from fact was the omission of the name of the 1st applicant.  According to the version presented, the 15th applicant was in command and was substituted in role for the 1st applicant.  The latter testified that he was rather taken aback and for a long time assumed that the 15th applicant wanted to take the credit for the operation.  The latter, as well as the 8th applicant, testified that the omission of the name of the 1st applicant was the result of a "request from head office conveyed by Van Wyk to the 8th applicant and by the 8th applicant to the 15th applicant.

The applications were opposed on behalf of the families of the victims mainly on the basis of the applicants having lied to the Committee and not having made a full disclosure.  These were not in the opinion of the Committee of a material nature and can be ascribed to different understandings at the time of the incidents or to different memories after a lapse of time.

One of the main arguments centred around the written applications of the 3rd, 4th, 5th, 6th, 8th, 10th, 11th, 12th and 15th applications which had all been prepared in virtually the same wording and by the same legal representatives.  The written applications further attested to intended arrests in contradiction to the oral evidence of planned ambushes with intent to kill.  There were also other less prominent contradictions.  It is not uncommon to find in written applications for amnesty, where a group of applicants applied, represented by the same legal representatives, that the lawyers after consultation with applicants, had churned out word processed applications which they would have applicants signed and attested to.  One of the major reasons for this phenomenon was the fact the Security Police establishment, at a very late stage and shortly before an earlier cut-off date for submission of amnesty applications, decided to participate in the process after initial distrust.  It was argued at the hearing that the applications were a continuation of a conspiracy to cover up the real facts.  Each applicant denied this.  No one could explain why reference had been made to intended arrests.  All made it clear that the intention was to kill.  The Committee is satisfied that whatever contradictions were to be found between the written applications and oral evidence, the applicants disclosed without any hesitation in their evidence-in-chief that the intention was to shoot to kill and that these were indeed the orders.

The identity of the informer was also an issue.  It was alleged by the 5th applicant that the informer had been paid on two claims, amounts of approximately R10 000.  It was further alleged that she had been abducted by the ANC and detained in Sunset Camp in Zambia to an extended period.  After her release from Zambia she again approached the 5th applicant for compensation and was paid R50 000 or R60 000.  (To a letter forwarded to the Committee after the hearing on behalf of the 5th applicant, a receipt for R100 000, signed by the informer, was attached).  The applicants, more specifically the 5th and 6th applicants did not want to disclose the name of the informer for fear of putting her life at risk.  As the hearing proceeded, it became clear that firstly the informer was in fact more than an informer, indeed a co-perpetrator in that she not only supplied information, but arranged the transport in conjunction with the applicants, full knowing that the deceased were to meet with ill fate.  Secondly, it was clear from the cross-examination on behalf of the victims' families that the identity of the alleged informer was known to all, the representative for the victim families having drawn attention to a statement in the bundle of documents which dealt with some of the information presented in evidence by the 5th applicant.

The name of the informer was handed up to the Committee.  The person was given notice in terms of section 30 of the Act of her being implicated.  A request was then received from her legal representative to have the hearing postponed to enable him to study the record.  It was agreed that the Committee would await communication on behalf of the implicated party and it was further indicated that the families of the victims would decide their position after having heard from the implicated party.

The Committee then received a letter from the implicated party's attorneys, dated the 1st September 1999, which reads as follows:

RE:   RESPONSE OF SO-CALLED "INFORMER" REFERRED TO IN EVIDENCE AT THE AMNESTY HEARINGS HELD FROM 26TH JULY 1999 TO 30TH JULY 1999

      As this Committee was previously informed, I act for the so-called "informer" referred to on the above dates and, more especially, in the evidences of F.J. Pienaar and F.K. Theron.

      My client's instructions, which concur with my advice to her, are that she does not, at this stage, see any need to give evidence at the Commission for the following reasons:-

      (i)   She feels no obligation to give any evidence, more so, since she has not been subpoenaed, is not an applicant and is not implicated in any crime per sé, and

      (ii)  That her evidence, should she testify, could be of some assistance to the Amnesty Committee in its evaluation of the applications of F.J. Pienaar and F.K. Theron.  This, however, is far outweighed by the potential, and very probable, danger she exposes herself to should her name and whereabouts became known.

      The aforegoing shot not, in any way, be construed as my client being agreeable to or accepting the evidence given before the Commission thus far, insofar as they relate to her.  More specifically, my client denies that:-

      (a)   she was ever employed as or performed the role of an "informer" to the South African Police Services;

      (b)   that she received any remuneration from the South African Police Services, either in the amounts claimed in the evidence, or, in any amount whatsoever;

      (c)   that she had any knowledge, or inkling that the MK members were to be ambushed and killed on the 8th and 12th June 1998; and

      (d)   that when she reported back to Swaziland regarding the successful completion of her mission of the 8th June 1998, she had done so wilfully mislead her MK comrades in Swaziland.  She had merely reported the successful accomplishment of her task which was purely to procure transport for the MK members, which she did by approaching known taxi operators, who were a Mr Msibi for the first contract of the 8th June 1998 and, thereafter, a Mr Sibeko who was supposedly Mr Msibi's brother, for the contract of the 12th June 1998, as Mr Msibi, himself, was not available.

      I trust that the above is in order.  Should  you have any further queries kindly contact my offices.

      Yours faithfully

This response corroborates to virtually every detail the relevant evidence of the 5th and 6th applicants despite the denials in paragraphs (a) and (b).  It may well be true, given the evidence of the applicants, that she did not have advance knowledge that her colleagues would be killed in ambush, as she alleges in (c).  That she had approached well known taxi operators, is clearly false.  It is further significant that she does not deny the communication that the 5th, 6th and 1st applicants alleged they had with her and that she did not tender any explanation as to what the object of such discussions were, if not to lead her comrades into trap, virtually delivering them to the Security Police.

Her not having availed herself of the opportunity to lead evidence in face of the fact that her name could have been cleaned, leaves us no room other than to find that she had indeed been involved in the incidents not merely as an informer, but indeed as a co-perpetrator.  The disclosure of the name of this person is in our opinion under the circumstances material to the requirement of full disclosure by the applicants.  The name of this person, handed up to the Committee on behalf of the 5th and 6th applicants, was given as Rita Mazibuko.

The statement referred to in cross-examination on behalf of the victims' families, appears on 151 of the bundle prepared for the hearing.  The statement which seems to have been taken from Mazibuko, is dated 1997 but is not signed.  In this unsigned statement both incidents are covered and the role of Mazibuko in providing the transport described in the same way as in the letter from her attorneys, quoted above.  It is clear that the information in this document could only have been obtained from Mazibuko.  She describes in detail how she was abducted by the ANC, taken to Mozambique where she fell ill with malaria and then to an RC camp in Zambia where she was detained in a cell that she describes as a hole, for seven months, in the worst of conditions.  She was then taken out of the cell but still detained in the camp, then transferred to Sunset prison and a year later to Tanga Camp in Tanzania, only returning home in 1992.

The Committee is satisfied that the applicants all acted with a political objective and within the context of the conflicts of the past as envisaged by the provisions of the Act.  We are further satisfied that all the applicants have made a full and truthful disclosure of all the material facts related to these incidents.

Amnesty is accordingly GRANTED for all acts or omissions that may constitute an offence or delict, related to the incident of 8 June 1988 to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 10th and 14 applicants and related to the incidents of the 12th June 1988 to all the applicants for their various roles as reflected in the evidence.

The Committee is further of the opinion that Lenny Surendra Naidu;  Makhosi Nyoka;  Lindiwe Mthembu;  June Rose Cotoza;  Nkosinathi Bruce Mshwayo;  Howard Sifiso Nxumalo;  Jabulane Sibisi,  Sam Thembu and Bongani Gaga Zondi are victims as defined in the Act and the particulars of their next-of-kin are being referred to the Reparation and Rehabilitation Committee for its consideration.

SIGNED AT CAPE TOWN on this      day of          2001.

JUDGE S MILLER

ADV L GCABASHE

MR W MALAN

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