TRC Final Report

Volume 6

Section 3

Chapter 1

Subsection 2

FACTORS IMPEDING AND ENCOURAGING APPLICATIONS

12. The most striking aspect about the applications from the state is that, on the whole, security force members who applied to the Commission for amnesty were not supported by politicians and policy-makers at whose behest they had operated. While there were significant applications from command levels, this was by no means exhaustive and the majority of applicants were the ‘triggerpullers’.

13. In the early days of the Commission, most members of the former security forces viewed the amnesty process with antipathy and deep suspicion. Many of them were bitter and confused. They had committed their careers (and indeed their hearts and minds) to defending the interests of the former regime. Now that the ANC was in power, they found themselves in the spotlight, torn between the need to account for their actions and their fear as to what might happen if they did. Many were angered by what they saw as betrayal by their former political masters as every man scrambled to save himself. Moreover, despite the fact that the negotiated settlement, the Interim Constitution and the ensuing legislation required that the amnesty provisions be even-handed, state perpetrators of human rights violations continued to be wary of the Amnesty Committee and the Commission as a whole.

14. A number of factors eventually persuaded state operatives to participate in the process :

Threat of prosecution

15.The granting of amnesty based on individual disclosure was built on what was described as the ‘carrot and stick’ approach. In other words, if you came forward and told all (other factors being equal), you would be granted amnesty. If you did not, you could face prosecution for your crimes. Hence, some members of the security forces submitted applications for amnesty because they knew they would be found out and prosecuted.

16. There is no doubt that, without the prosecution of Colonel Eugene de Kock, the Commission would have received far fewer amnesty applications. In October 1996, De Kock, the former commander of the C1/Vlakplaas⁶ unit, was found guilty on eighty-nine charges and sentenced to two life terms plus 212 years’ imprisonment. De Kock was one of the first to submit an application for amnesty to the Amnesty Committee, leading to a stream of applications fro m co-perpetrators. Indeed, the number of applicants in De Kock-related incidents accounts for 48% of all Security Branch applications.

17. The Amnesty Committee also received applications from Northern Transvaal security force operatives and several from the SADF following an extensive investigation by the Transvaal Attorney General’s Office. Similarly, when the Eastern Cape Attorney General’s Office investigated the disappearance of the ‘PEBCO⁷ Three’ and the killing of the ‘Cradock Four’, a number of applications w e re received from the Eastern Cape Security Branch.

18. Likewise, following an investigation by the Commission of Inquiry regarding the Prevention of Public Violence and Intimidation led by Judge Goldstone, and a later investigation by the Natal Attorney - General’s Office into the activities of the Port Natal Security Branch, a number of applications were received fro m members of that branch.

19. Conversely, in a number of instances, it is clear that applicants chose not to apply for incidents where they believed that there was little investigative interest or likelihood that the state would make headway with a case against them. Applications from Civil Co-operation Bureau (CCB) operatives, for example, referred to only a handful of incidents committed in the Western Cape, despite their involvement in a far wider range of unlawful activity both inside and outside South Africa.

Protection from civil liability

20. Although amnesty granted by the Amnesty Committee provides protection from civil liability, the various South African indemnity laws do not.⁸ The former security forces enjoyed extensive indemnity under the law, which covered actions arising from unrest policing and the apprehension of political suspects. Such indemnity did not, however, apply to abuses committed during covert operations. Many members applied for amnesty in order to avoid being privately sued.

Official interventions

21. Urged by a former state attorn e y, Mr Jan Wa gene r, General van der Merwe, the former Commissioner of Police, approached the Commission to discuss the concerns of security force operatives. He afterwards convened a meeting of members of the former Security Branch and assured them that they would have the backing of the generals for actions undertaken in the course of their duty, provided that such actions had been authorised.

22. Discussions were also held between former SADF generals and the Amnesty Committee. The generals were concerned about the fact that, while the legislation gave both the Amnesty Committee and the Commission a mandate beyond South Africa’s borders, amnesty granted by the Amnesty Committee did not preclude a foreign state from seeking to pursue prosecution. Because an amnesty granted in South Africa has no validity in international law, the former SADF leadership advised its members not to apply for amnesty for actions outside South Africa.

23. Amnesty applications from former SADF members were channeled through a ‘nodal point’ set up by the South African National Defence Force (SANDF)⁹ and run entirely by former members of the SADF. The purpose of the nodal point was to channel requests from the Commission. Members of the former SADF were encouraged to work through the nodal point when applying for amnesty. As noted earlier, few applications for amnesty were received from SADF-linked operatives, and the Commission received a strong impression that the nodal point acted as a gate-keeper rather than facilitator for amnesty applications.