DECISION
The applicants are former members of the then Port Elizabeth Security Police. They are seeking amnesty for their respective roles, as more fully set out hereunder, in the abduction and murder of Sipiwo Maxwell Mtimkhulu and Topsy Madaka in April 1982. Van Rensburg further applies for amnesty for perjury as he denied to the Harms Commission in 1990 any knowledge of what could have happened to the deceased. The abduction took place in Port Elizabeth near Holiday Inn Hotel, and the murder at Cradock the following day. At the time in question Erasmus was the Commanding Officer of the Eastern Cape Security Police Division and all the applicants worked under him.
They all supported the previous National Party Government, believed in its policies and saw it as their duty to keep it in power. They say the elimination of the deceased was necessary to curb high levels of political unrest and disturbances which prevailed in the Port Elizabeth area during 1981 and 1982. They also believed that the deceased were involved in ANC underground structures.
The applicants were the only witnesses to testify and no oral evidence was received from the side of the Mtimkhulu and Madaka families who opposed the applications.
At the time of the occurrence of the events referred to herein Mtimkhulu was a 22 year old youth and one of the leading figures in the Congress of South African Students (COSAS), which primarily opposed some of the policies of the previous government on education. There seems to be no dispute that COSAS was aligned with the African National Congress (ANC). Madaka was not a student and is said to have been employed as a salesman by an insurance company in Port Elizabeth. It is common cause that he frequently transported Mtimkhulu with his vehicle and the two were together when they were abducted and subsequently killed. For reasons that will emerge later, it is compelling to commence our decision with the last detention of Mtimkhulu before his abduction and murder.
On the 31st May 1981 Mtimkhulu was detained under section 6 of the then Terrorism Act for his participation in a demonstration which opposed National Party celebrations for what used to be known as the "Republic Day". We pause here to mention that, under the previous order that day was not recognised as such by liberation movements and other groups which opposed the Apartheid order inside the country. No charges were laid against Mtimkhulu who was released on the 20 October of the same year. On his release he was not served with any banning order to restrict his movements and activities. Immediately upon his release he was very sick. According to his mother Joyce Mtimkhulu, who previously testified before the Human Rights Violations Committee of the TRC, he complained of pains in his stomach and feet. By the second day he was unable to walk and on 26 October he was admitted at Livingstone Hospital. From there he was later transferred to Groote Schuur Hospital for diagnosis. There he was hospitalised from 3 November 1981 to 17 January 1982 when he was discharged on condition that he returned later for review. On his discharge he was on a wheelchair as he could not walk. Whilst at Groote Schuur his hair had begun to fall. This particular information was contained in bundles "A" and "B" which were placed before the Committee at the hearing.
Medical tests and investigations revealed that he had in all been probability been poisoned with thallium, a rare type of poison.
Professor Francis Rix Ames who was the Head of the Neurology Department and other medical officers who all attended to Mtimkhulu at Groote Schuur did not testify at the hearing. Applicants stated that they neither admit nor deny the correctness of the said findings. They however deny having poisoned Mtimkhulu or having any knowledge of the person who could have done so.
When Mtimkhulu disappeared on the 14 April 1981 after he had gone for a medical check up at Livingstone Hospital, he had already filed two civil claims against the Minister of Police for the alleged acts of torture and poisoning, the first one having been issued in December 1981 and the second on 2 April 1982. A judicial inquiry into the alleged poisoning had also been scheduled for hearing at the Port Elizabeth Magistrate's Court on the 5 May 1982 and some of the members of the security police had been subpoenaed to appear.
The evidence of the applicants is as follows: About 10 to 14 days before the 14 April Erasmus was approached by Du Plessis and Van Rensburg. They discussed with him the role of Mtimkhulu and Madaka in the promotion of political unrest in the Port Elizabeth area, and in particular the role Mtimkhulu was playing since discharge from hospital. He was once again getting too involved in mobilising the youth and students. To this end, he was being assisted by Madaka who had a vehicle and played a very secret role in the promotion of the aims and objectives of the ANC. According to reliable sources they were both involved in an underground ANC cell and recruited the youth to undergo military training outside South Africa. Madaka acted as a courier for the ANC and used his vehicle to transport weapons between Lesotho and Port Elizabeth. He had set up "Dead Letter Boxes" (DLB's) for hiding arms. When ANC cadres infiltrated the area Madaka looked after them and their needs. He also had a brother in exile. Erasmus also says at that stage he was also aware that in 1979 (1978) at the funeral of the late Robert Sobukwe, a PAC leader, both Mtimkhulu and Madaka were involved in a shoot out on Gatsha Buthelezi and his security guard who sustained injuries. Previous detentions to curb Mtimkhulu's activities had yielded no positive results.
Erasmus says in their discussion they reached a stage when they asked themselves the question: "What must we do ---- with the two people?". At that stage Mtimkhulu was already being regarded as a martyr because of his suspected poisoning, allegedly by the police. This he used as propaganda against them and as a tool to mobilise and radicalise youth. He specifically incited them against the police. In that discussion they all felt that their head office would never authorise another detention of Mtimkhulu since he had not fully recovered. He was still sick. There was also a possibility that his detention could provoke further political unrest and riots. Madaka also could not be detained for the reason that the identity of a very delicately placed informer who operated closely with him could be exposed.
They had several discussions regarding what should be done with the two. Du Plessis and Van Rensburg had to go and come back to Erasmus with possible solutions but in the end there was no other way to deal with the two, but to eliminate them. Although in the end this was a joint decision, Erasmus says he takes full responsibility for having given the instruction because he was the Commanding Officer. He was not involved in the details of the planning regarding when and where the elimination would take place, but it was agreed that Mtimkhulu and Madaka would be abducted and taken to a secret place where they would be killed. It was up to Du Plessis and Van Rensburg to decide who to involve amongst other security policemen. He later became aware that they were going to involve Nieuwoudt in the operation. When the abduction took place he was telephonically informed that the two had been abducted and were being conveyed to the place where they were going to be killed. The next day Van Rensburg told him that the elimination had been carried out. He did not ask for details because this was a "need to know basis" operation.
As the hearing progressed it became clear that the real issue in this matter namely whether the applicants should get amnesty for murdering the victims in April 1982, became clouded by what may have been an earlier attempt to murder the deceased Mtimkhulu during October 1981. The applicants are not applying for amnesty in respect of this attempted murder. This would be a separate offence and if one or more of the applicants would on evidence which might be available, be suspected of the commission of that offence they could and should be prosecuted in that regard. The granting of amnesty in the present applications would not affect that position because the Committee is presently dealing with a different offence, committed at a different time and place and also involving a further victim. Matters that might be relevant facts relating to the earlier offence might not be relevant to the same extent in the later offence and vice versa.
Another factor that we had to consider is the weight to be attached to the statements of possible witnesses who didn't testify before the Committee. In this respect we refer to the statement of Mrs Mtimkhulu and the report of Professor Amis. They did not testify at the hearing and could not be cross-examined by the legal representatives of the applicants. While realising that this Committee is not a court of law, the rules of natural justice and entrenched fundamental rights has still to be observed. Their "evidence" related to the first offence, the attempted murder on which the Committee was not called upon to adjudicate, and we would deal with it on that basis. We don't say that it is totally irrelevant or should be ignored but the weight attached thereto should be considered in the light of what was said above.
After hearing the evidence and reading the statements there is at least prima facie evidence that there was an attempt to murder Siphiwo Mtimkhulu while he was in custody during October 1981 or shortly thereafter. There may even be a suspicion that one or more of the applicants might have a hand therein. It is equally possible that they might not have been involved at all because on the evidence before the Committee one or more members of the Security Police who were not parties to this hearing might equally have had the opportunity to administer poison to the victim, as well as other persons not even directly involved. All the applicants deny that they were involved in an attempt to murder the deceased during October 1981 and there is no evidence before us to contradict their denial. It could cause grave injustice to regard suspicion as proof against one or all of them, and if against one, who would be that one?
The fact of the matter, however, is that the consequences of the attempt to murder during October 1981 played a part in the leading up to the offences during April 1982 on which the Committee is called to decide. These factors have been summarised at the outset. The three applicants, van Rensburg, du Plessis and Erasmus, who took the decision to eliminate the deceased, denied that they took the decision to eliminate the deceased in order to protect the Security Police. They testified that at that stage it was already well publicised that Mtimkhulu has instituted legal action and what his allegations were. The reasons advanced for their decision were that the deceased was considered to be a martyr and gained more and more support in his stance against the government. During the beginning of 1982 there was a political turmoil in Port Elizabeth. Houses were burnt down and the police clashed with Cosas. Class boycotts followed and there were bomb attacks on government buildings. Mtimkhulu was actively involved in mobilising the youth and students against the government. According to information gained from an informer the deceased were involved in an underground ANC cell and recruited youth to undergo military training outside South Africa. No evidence was tendered to contradict his involvement in the political struggle. The evidence of the applicants stands uncontradicted and is to an extent supported in the statement of Mrs Mtimkhulu "what I mean is the political involvement. Siphiwo was very much involved, he was a staunch member of the organisation. We realised that we couldn't do anything, he seemed to be addicted. And seemingly he was regarded as influential and being an instigator".
She continued about his conduct after his detention:
"After six months he was released. He continued with politics, he never turned his back. Each time he was detained, he would come out and be stronger than before".
Erasmus stated that he took the decision in order to protect the National Party government of the day and to keep the government in power.
According to the evidence Madaka was involved in arms smuggling and establishment of safe houses. It is true that this information obtained from an informer wasn't confirmed by extraneous evidence. But it is also true that no evidence was tendered on behalf of Madaka whose family was legally represented at the hearing that Madaka was not involved in the struggle and did not take part in the alleged activities.
The Act (Act 34 of 1995) lays down the requirements for amnesty.
Section 20(1)(a) stipulates that the application should comply with requirements of the act. It was common cause that the applications were formally in order and filed timeously.
Section 20(1)(b) requires the Committee to be satisfied that: "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).
It is common cause that the offences were committed in the course of the conflicts of the past. The applicants also meet the requirements laid down in section 20(2)(a)(b)(f) and (g). Section 20(2)(b) in particular deals with members of the Security Forces of the State. The relevant part reads as follows:-
"(b) ---------- any member of the Security Forces of the State ----- in the course and scope of his or her duties and within the scope of his or her express or implied authority 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 of movement -"
It is common cause that all the applicants were members of the Security Forces. Similarly, it is common cause that both deceased were members or supporters of political organisations who were engaged in a political struggle against the state.
The provision of Section 20(3) remain to be dealt with. this subsection deals with the criteria for deciding whether the act committed was an act associated with a political objective.
Section 20(3)(a) requires the Committee to look at "the motive of the person who committed the act". All the applicants testified that they killed the deceased because they wanted to protect the government of the day and to keep them in power. There is no evidence negating this. They denied that their motive was to prevent Mtimkhulu from pursuing his legal action against the State for damages flowing from his poisoning which might have been extremely damaging to the government of the day and the security police. Although it seems improbable that this wouldn't have been a factor in their deliberations, their denial can only be rejected if it can be said that in coming to the decision at the time the other problems prevailing in the area, were not paramount in their minds. The unrest must, in their minds, have been of such importance that it overrode all other factors.
It must be also kept in mind that the decision to eliminate was taken by Erasmus in consultation with van Rensburg and du Plessis. There is no evidence that Nieuwoudt was party to this. On the evidence he received an order to carry the elimination after it had been taken by his superiors.
Subsection 20(3)(b) requires the context in which the act has been committed to be considered. The evidence was that during the beginning of 1982 boycotts, marches, burning of houses, and recruiting of members for military training and smuggling of weapons into the area were part of the ongoing struggle between the liberation movements and the government. The deceased played an active role: Mtimkhulu in inciting people and Madaka more clandestinely in underground activities.
Section 20(3)(c) refers to the legal and factual nature of the act. Murder can never be regarded as negligible. Unfortunately the Committee had to deal with this in almost every amnesty application in which a hearing was required and where amnesty was granted for killing opponents and even innocent people including children and infants.
Subsection 20(3)(d) lays down as one of the criteria "the object or objective of the act and whether it was primarily directed a political opponent". Crude as it may be, it is clear that the objective was to eliminate the deceased so that they wouldn't be in a position to carry on with their opposition to the government.
Subsection 20(3)(e): "whether the act was committed in the execution of and order of, or on behalf of or with the approval of ----- the institution." Nieuwoudt clearly acted under instructions. The other applicants maintain that they acted in the course and scope of their employment and that they acted in the interest and on behalf of the government.
Subsection (3)(f) the relationship between the offence and the political objective being pursued ----- or the proportionality between the offence and the objective pursued". According to the applicants they decided to eliminate the deceased because detaining him served no purpose. This seems also to be the opinion of Mrs Mtimkhulu who stated that after being detained "he would come out stronger than before".
After considering other decisions where amnesty was granted, even in cases where churchgoers or holiday makers or children were killed, we cannot find that in this instance the act was so disproportionate to the object pursued that amnesty should not be granted, bearing in mind that something akin to a war situation existed in the country.
It now remains to deal with the requirement laid down in section 20(1)(c). Did the applicants make a full disclosure of all the relevant facts? They certainly disclosed fully how they abducted the deceased, killed them, where they killed them, and what happened to their remains. Not only in evidence but also in their applications they disclosed the facts about the alleged poisoning of one of the deceased. It is true that they deny that they were responsible for the alleged poisoning. It is also true that no evidence was laid before the Committee to prove that they were responsible for the poisoning or that they knew who was responsible for the poisoning. As already stated they didn't ask for amnesty in this regard and no amnesty can be granted to them in this respect. Whoever might be responsible for the attempted murder through poisoning of Mtimkhulu can still be and should still be prosecuted. The facts pertaining to the poisoning relate to another offence which might have been committed by other perpetrators. Those facts are not per se relevant facts to the offence in respect of which amnesty is sought but have been taken in consideration as relevant as far as a motive for the killings may be concerned.
Having made the enquiry into the jurisdictional facts which had to be proved and having found that those facts exist, in terms of section 20(1) of Act 34 of 1995 the Committee has no discretion - it "shall grant amnesty".
We are therefore satisfied that the following order should be made:
1. Amnesty is GRANTED to Erasmus, van Rensburg and du Plessis in respect of the conspiracy to abduct and murder Mtimkhulu and Madaka during April 1982 at or near Port Elizabeth.
2. Amnesty is GRANTED to all the applicants in respect of the murder of Mtimkhulu and Madaka on or about 14 April 1982 at Post Chalmers in the district of Cradock, and for offences and delicts directly linked to what happened on that specific date.
3. Amnesty is GRANTED to van Rensburg for perjury committed before the Harms Commission in 1990 where he denied any knowledge of the abduction and death of the deceased.
4. Amnesty is GRANTED to Nieuwoudt in respect of the abduction of Mtimkhulu and Madaka on or about 14 April 1982 at Port Elizabeth.
The next-of-kin of the deceased should be declared to be victims in terms of Act 34 of 1995.
Signed at Cape Town on this the
: day of
: 2000.
Judge A. Wilson
C.D. de JAGER (AJ)
Adv. N. Sandi
