AC/2001/161

TRUTH AND RECONCILIATION COMMISSION

AMNESTY COMMITTEE

APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995.

AGGIE SHOKE 1ST APPLICANT

(AM8014/97)

HAROLD MATSHIDIDI 2ND APPLICANT

(AM8007/97)

LESTER DUMAKUDE 3RD APPLICANT

(AM7679/97)

JOHN ITUMALENG DUBE 4TH APPLICANT

(5310/97)

DECISION

We are now dealing with the Ellis Park Rugby Stadium bombing incident which occurred on 2 July 1988. Following the incident the four Applicants are now seeking amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 ("the Act"). The offences in respect of which amnesty is being sought are the following:

1. The murder of Linus Mare;

2. The murder of Clive Winston Quayle Clucas;

3. The attempted murders of the following persons whose names and the nature of the injuries they sustained, appears at page 21 - 22 of the police docket;

3.1 Maria Gloria Dos Santos Assuncao (shock);

3.2 Lucindan Dias Da Costa Ramos (minor injuries);

3.3 Janene Stander (minor injuries);

3.4 Japie Ferreira (minor injuries);

3.5 Kevin Weller (minor injuries);

3.6 Isu Robbertse (minor injuries);

3.7 Pieter Johannes Bayes (minor injuries);

3.8 Kingsley Yung Fah (minor injuries);

3.9 Maria Irene Nunes Dos Santos (minor injuries);

3.10 Jose Dos Santos Pais (minor injuries);

3.11 Gezine Ferreira (minor injuries);

3.12 Brian Robert Weller (minor injuries);

3.13 Zagarias Petrus Booysen (minor injuries);

3.14 Ryno Johannes Opperman (minor injuries);

3.15 Theron Human (minor injuries);

3.16 Theunis Johannes Rossouw (minor injuries);

3.17 Gideon Retief Von Willigh (minor injuries);

3.18 Charmaine van der Walt (minor injuries);

3.19 Johannes Jacobus Brand (minor injuries);

3.20 Barned Nicholaas Venter (shock);

3.21 Willhelm Johannes Jacobus van der Merwe (serious injuries);

3.22 Graham Walter Theck (minor injuries);

3.23 Michael Edward Hansen (minor injuries);

3.24 Phillip Yung Johnson (serious injuries);

3.25 Hennie Pietersen (minor injuries);

3.26 Christo Horn (minor injuries);

3.27 Wallace Lewis (minor injuries);

3.28 Evelyn Mohono (minor injuries);

3.29 Alina Monoto (minor injuries);

3.30 Mnube Tobila (minor injuries);

3.31 Shirley Mateem (minor injuries);

3.32 Roger Hagetty (serious injuries);

3.33 Gordon William Eddy (serious injuries);

3.34 Abie Mabubo (minor injuries);

3.35 Casper Lombaard (minor injuries);

3.36 Marthinus Jacobus van der Merwe (minor injuries);

3.37 Elizabeth Maria Sussana Cronje (minor injuries).

At the commencement of the hearing Mr Prior advised the Committee that Section 19 notices which notified interested parties were sent out before the Committee convened to hear the evidence. Apart from Mrs Clucas and Mrs Erasmus (she has since remarried), the widows of the two persons who died as a result of injuries which they sustained during the bombing, there was no response from any person who suffered either physical injuries or damage to property. Both widows appeared before the Committee and testified to the hurt and sorrow they suffered as the result of the death of their husbands. They opposed the applications primarily on the basis that the deceased had no interest in politics and that they never supported the previous government. They also opposed the applications on the ground that they placing of a bomb in a car outside the gate of the stadium was an attack on innocent civilians and that it was disproportionate to the objective of sensitising the white community to the plight of the disenfranchised majority in South Africa. The two widows had asked to be represented by Mr Prior, an Amnesty Committee employee. We indicated that we had no problem with the arrangement.

One of the problems that the Committee had to deal with before any evidence could be led in the matter, was the fact that initially only the applications of Shoke and Matshididi were set down for hearing. According to Mr Prior, Dumakude and Dube had not applied for amnesty in respect of the Ellis Park bombing incident. The Committee made a ruling that the evidence of all four Applicants would be heard and the question as to whether or not Dumakude and Dube have applied for amnesty would be decided by the Committee after all testimonies had been heard and in tandem with the merits of the applications.

In his application from which was submitted to the TRC before the closing date, Dumakude states the following:

"I endorse the submissions made by the ANC and Umkhonto weSizwe to the Truth Commission (Committee on Human Rights Violations) as well as the general NEC declaration submitted to the Amnesty Committee. I take command responsibility for all acts which took place in South Africa committed by units under my command from 1981 where these actions fall within the general policy guidelines of the African National Congress. I do not know at this stage whether all the operatives have applied for amnesty, but hope that my submission will cover them if they have not.

Detail regarding the task and mandate of Special Operations has been provided in the Amnesty application of Aboobaker Ismail. I endorse this. If there are any operations for which I had sole responsibility I will answer accordingly.

During the operations carried out by Special Ops since its inception there occurred damage to property, injuries and deaths. Details of these will be provided by individual operatives who worked inside the country."

In response to a question under paragraph 10(a) of the application form as to what political objective was being sought for the operations, he goes on to say:

"All the operations detailed above were carried out in accordance with the aims and objectives of the African National Congress. As a member of Umkhonto weSizwe my objective was the furtherance of the armed struggle against the Apartheid state with the intention of overthrowing this state and replacing it with a democratic one. All my actions were geared towards the undermining and weakening of this state."

Aboobaker has not applied for amnesty in respect of the Ellis Park bombing incident. There is no evidence that he was ever involved in the bombing. One of the problems in this case is that this is not a matter in which Dumakude solely gave orders. He not only gave the orders but was personally involved in the assembling of the bomb, which he personally placed in a BMW vehicle outside the Ellis Park Rugby Stadium gate.

At the hearing Dumakude testified that during the relevant time he was a commander of the Special Ops Unit of the ANC. He reported to the High Command structure of MK who included the late Chris Hani. He also testified that after the operation he reported the incident to Hani. The question is whether he has made a full disclosure regarding the incident. It should be noted that in his evidence Dumakude states that he expected that his application would be supplemented through the asking of questions by the TRC. This never happened and his application was regarded as a "general application".

After a very careful consideration of this aspect of the case and the evidence that was led on it, we have come to the conclusion that his explanation should be accepted. The primary purpose of the Act is to facilitate the granting of amnesty to those who confess their crimes and, in the view of the Committee, comply with the requirements of the Act.

In his amnesty application form which was also received by the TRC before the closing date, Dube states that he is seeking amnesty for the following acts:

"Bombing of Ellis Park Stadium and Witbank car bomb also anything that might be brought against me, I might not remember."

There is no dispute about the fact that the Applicants were involved in quite a number of operations on behalf of the ANC and its armed wing, some of which they were not able to remember at the time of the completion of the amnesty application forms.

At the time of the occurrence of the incident all the Applicants were members of Umkhonto weSizwe ("MK"), the military wing of the ANC. There is no dispute about their political membership. According to the Applicants they all belonged to an underground MK unit which carried out a number of attacks on selected targets inside the country. The Applicants have testified that Dumakude was the first in command of the unit and Dube the second. Dumakude would give orders and in his absence Dube gave them. Evidence was led that Dumakude, as the Commander of Special Operations, commanded a number of other underground units and the Applicants' unit was only one amongst them. he had to do a wide variety of tasks and was in and out of the country. It is also apparent from the evidence that was led that Shoke and Matshididi were foot soldiers who only carried out orders from Dumakude and Dube who liaised with the MK leadership outside the country. We think mention should also be made of the fact that Dumakude's names appear in the ANC documents which were submitted to the TRC. Also, the ANC in its submissions to the TRC acknowledge the Ellis Park Rugby Stadium bombing as an act which was carried out by its cadres and on its behalf. There is no doubt from the contents of the documents that Dumakude was one of the most senior leaders of MK who prosecuted the armed struggle on its behalf.

At the time of the hearing he held the rank of Lt. Colonel in the South African National Defence Force ("SANDF"). Dube is also a member of the SANDF whilst Matshididi is an employee of the South African Security Services. No mention was made of the present occupation of Shoke but we are satisfied that he was also a bona fide member of MK.

All the Applicants are ad idem that the order to carry out the operation came from Dumakude. After Dumakude and Dube had held the initial discussions they came to Matshididi and Shoke and told them that they should conduct a reconnaissance of the stadium because they were going to place a bomb there on a Saturday afternoon whilst the match was in progress. It was stated to them by Dumakude that the reason for placing the bomb in a car outside the stadium was to sensitise white South Africans about the plight of the majority in the country who had no say in the running of the affairs of the State. It was further to make whites feel that the ANC's armed struggle was at their doorsteps and that they should pressure the whites-only regime of the National Party to introduce fundamental changes and enter into a dialogue with the ANC. Dumakude states that the target was chosen because a large number of white South Africans would be attending the match at the stadium and that they would take the news of the bomb explosion to their homes and urge other whites to put pressure on the government of the day to change.

The bomb was physically manufactured by Dumakude, who obviously has experience as an explosives expert and it was timed to go off at 17H00 and shortly before the match ended. Evidence has been led that the bomb exploded about 10 to 15 minutes after 17H00 when the match was over and spectators were dispersing. There seems to be some confusion and conflict amongst the different Applicants as to what time exactly the bomb was intended to explode but they agree on one thing that the aim was not to kill any person as it would have been contrary to the ANC's policy of avoiding civilian casualties.

Dumakude states that he did however foresee the possibility of civilians getting injured or killed but this was certainly not his aim. There is a difficulty with this statement in view of the fact that the bomb was very powerful and when it exploded it covered a wide radius and extensive damage was caused not only to the stadium but several cars which were parked in the vicinity, and including a bus. The BMW vehicle and other cars were damaged beyond recognition and the nearby houses were also damaged. Dumakude states that as a precaution after reconnoitring the stadium before he personally brought the bomb to the scene with the stolen BMW, he inserted three separate detonating devices. He says this included a timing device which was the primary device, a watch with a timing control. The device was set to explode prior to the end of the match. His testimony is further that as he was withdrawing from the scene after placing the car with the bomb it appeared to him that his presence in the area had attracted the attention of two white males, that is the deceased persons in this case. They were walking towards his direction as he was walking away from where he had parked the BMW. He says in the circumstances he had no choice but to trigger the explosion with the remote control. He says he did so to avoid causing injuries to too many civilians. Dumakude states that if the match had ended before 17H00 he would have aborted the mission.

The Applicant was subjected to prolonged and vigorous cross-examination on this aspect of his evidence and it must be stated that he was not very impressive. He says he was monitoring the progress of the match from the car radio reports and that when the bomb exploded it was still in progress. There was no indication from the radio reports as to when the match was still going to continue. He also states that when he detonated the device he was out of the radius of the bomb and the two suspicious men were no longer following him. There is information in the statements contained in the bundles that some of the houses in the vicinity of the stadium were occupied. The Applicants state that when they conducted the reconnaissance there was no indication that any person lived there. The Applicants state that in their observations these were dilapidated houses.

We have carefully considered the Applicants' evidence in this matter and we are satisfied that they have complied with the requirements of the Act. We think it is quite clear that at the time of their carrying out of the operation they were bona fide members of the ANC and its armed wing, MK. We accept that they acted on its behalf.

In this regard our view is fortified by the evidence of Dr Louis Luyt who testified that after the explosion he held a meeting with ANC leaders in Lusaka. The latter did not per se condemn the bombing but said they wanted to ascertain as to whether one of their operatives had carried out the bombing and, of course, expressed condolences to the victims. We are mindful of the contradictions and inconsistencies in the evidence of the Applicants but we do not think they are so serious that the Applicants cannot be said to have made a full disclosure. We have also carefully examined the argument that he power of the bomb and the manner in which the operation was executed viz. the timing and place where the bomb was placed was disproportionate to the objective of making a political statement to the white section of the population. We are not satisfied that from all those considerations it necessarily follows that the incident did not occur as a result of the conflict of the past. There has been no suggestion that the Applicants were actuated by any grudge, ill-will or spite against one or more of the victims of the explosion.

In the result amnesty is GRANTED for the murder of the two deceased persons and the attempted murders of those who suffered physical injuries as the result of the explosion. Amnesty is also GRANTED for damage to property; for any offence in contravention of the provisions of the Explosives Act and for any offence or delict flowing from the incident.

The persons who were affected by the incident through loss of their loved ones, physical injuries and damage to property are hereby being referred for consideration as victims in terms of Section 22 of the Act.

DATED AT CAPE TOWN THIS 9TH DAY OF MAY 2001

JUDGE A WILSON

DR WM TSOTSI

ADV N SANDI

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