DECISION
This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 in respect of the following offences:
1. The death of Ashley Kriel, who died on 15th July 1987.
2. The interrogation and torture of:
Tony Yengeni, Gary Kruser
Peter Jacobs, Ashley Forbes, Alan Mamba,
Niclo Pedro and Anwar Dramat.
3. Perjury committed during the trial of Gary Kruser and inquest proceedings in which he gave evidence on oath.
All those offences were committed during the period June 1986 to June 1990, when the applicant was a member of the Terrorist Detection Unit in the Cape Peninsula. Prior to that period, he was a member of the Murder and Robbery Unit in Bishop Lavis. he is at present employed at the Airwing of the South African Police Service, Cape Town, where he holds the rank of Captain.
The Terrorist Detection Unit or the Anti-Terrorist Unit, as it was called, was under the command of Lieutenant Liebenberg and its other members were Warrant Officer Nel, Kotze, Van Zyl and Goosen. The unit was stationed in Culemborg, Cape Town. The Safety Information System of the South African Police would alert the Anti-terrorist Unit of the province, of the presence, in the Peninsula of a member of the liberation movement. The unit would as a matter or urgency, trace and arrest such person, search and take possession of their weapons of terror and obtain information about their colleagues or sympathizers. Benzien said that it was not his task to extract confessions from the suspects. Liebenberg's instructions to Benzien were that the unit must act urgently and to make use of unconventional questioning methods, if necessary. As far as possible, suspects were not to be assaulted, but if it became necessary to use force on them, care should be taken not to inflict injuries which left physical marks on suspects. After their weapons had been taken away from them and maximum information about their colleagues and sympathizers had been obtained from them, they were usually detained in terms of section 29 of the Internal Security Act and the detainee was then handed over to the Security Branch for further action.
On last July 1987 Benzien and Sergeant Ables proceeded to 8 Albermarie Road, Hazendale, Athlone. They had been instructed by Lieutenant Liebenberg to do surveillance of the house an it's immediate vicinity as the police had received information that Ashley Kriel, a trained ANC terrorist might be hiding out there. He and Ables went to the house disguised as municipal employees pretending to check the sewerage. They found the front door of the house locked and proceeded to the door at the back of the house. Sergeant Ables knocked at the door. Moments later a man opened the door. Benzien immediately recognised him as Ashley Kriel. Kriel held a jersey and towel in front of his trousers in his right hand and his left hand was pressed against the covered right hand. Benzien told him that they had come to inspect the drainage on the property. Kriel said nothing and tried to get back into the house. Benzien suspected that Kriel might be armed with a pistol or hand grenade, so he moved quickly, put his arms around Kriel's arms and chest trying to pin his arms to his body. Benzien identified himself as a policeman and told Kriel that he was arresting him. In the process the towel and jersey fell off revealing an automatic pistol in Kriel's hand. Benzien disarmed Kriel and struck him a heavy blow on his forehead causing him to fall to the floor. Sergeant Ables then tried to handcuff Kriel, but Kriel sat up and grabbed Benzien's right hand in an attempt to retrieve his pistol. While Ables was trying to handcuff him, Kriel suddenly stood up, but Benzien held him from behind with the pistol still in his hand. Then a shot went off and Kriel fell to the ground. He had been wounded and blood came out of his mouth and nose. Ables handcuffed Kriel. Benzien went to his vehicle and radioed for help. When Benzien returned, he found that Kriel was dead. They searched the house for weapons and found a hand grenade under Kriel's pillow. Benzien maintained that their intention was to arrest Kriel and not to kill him. He said that the shooting was accidental.
Benzien conceded that he could have dropped the pistol, so as to put it out of Kriel's reach but he did not do so because he was grappling with a terrorist and he believed that no purpose would be served by dropping the pistol. He said that he did not cock the pistol as it was already cocked when he took it from Kriel. he admitted that he could have subdued Kriel by hitting him on the head with the firearm but could not recall whether the thought of doing so had occurred to him at the time. He conceded that it was more than likely that at some stage he pointed the firearm at Kriel and that his finger was on the trigger when the shot went off. He maintained that he did not consciously pull the trigger but conceded that the shot went off while the gun was in his hands and he therefore accepted sole responsibility for Kriel's death.
Benzien's evidence did not convey a clear picture of the events or the sequence in which they occurred. There are inconsistencies and even contradictions on some aspects. For instance, it is not at all clear whether Kriel was shot while he was attempting to get up or when he was standing. Nor is it clear whether Benzien climbed onto Kriel's back when the shot went off. Part of the explanation for this may be that Benzien was giving an account of a fast moving scene ten years after the event.
The family of Kriel opposed the application. Their counsel submitted that section 22 of the Act required that the act, commission for which amnesty may be granted must amount to "an offence or delict". He said that on Benzien's version the shooting of Kriel was accidental. That being so, his conduct did not constitute an offence or delict and he was therefore not entitled to amnesty.
The possibility exists that he did not intend to kill Kriel. However, there is no doubt in our mind that he was negligent in the way he held on to Kriel with the pistol in his hand while Ables was trying to handcuff him.
We now proceed to deal with the evidence relating to the torture inflicted on the persons mentioned above.
Benzien's favourite method of torture, was what has been described as the "wet bag" method. It is a cloth bag normally used in police stations for keeping loose articles of a prisoner's property. The procedure described by Benzien was a follows:
The suspect is made to lie on the ground on his stomach, with his hands handcuffed behind his back. Benzien then sits on the small of his back, with his feet between the victim's arms. A bag soaked in water is then pulled over the head of the victim and twisted tightly around his neck, cutting off the air supply to the victim. The suspect is then questioned. From time to time, the bag is released to avoid the victim losing consciousness. The bag is only removed when the victim shows signs of wanting to talk.
According to the evidence of Benzien, his technique was so effective that he invariably got the desired results within a matter of thirty minutes. The suspect was usually undressed and sometimes he was blindfolded before the wet bag was put over his head. This was done to disorientate the suspect. The wet bag is held tight over the victim's head and is released to prevent him from suffocating. The victim is usually under considerable distress. Benzien concedes saying to some of his victims that they would be treated like animals if they did not co-operate and refused to answer questions.
Benzien said that it was not official policy to torture political detainees and that there were no written instructions in police manuals on how to question detainees. Nevertheless, police used all forms of duress to obtain confessions and information of political activities of suspected terrorists. The so called "wet bag" method was common knowledge to members of the anti-terrorist unit and he would be surprised if Lieutenant Liebenberg and his seniors did not know about it. Although on occasions, one or other member of his unit may have been present whilst he was torturing a suspect, he invariably acted alone when he did it. The reason for that was that if in a trial allegations were made that he had tortured suspects, he would deny it and it would be his word against the word of the victim. he ensured that as far as possible, there would be no signs of any injury on any of his victims. No record whatsoever was kept of the interrogation, torture or assault of any of the suspects as it was policy to deny that it ever happened.
He was arrested on 16 April 1986. Benzien admitted using the wet bag on him while interrogating him but denied that anyone administered electric shock to him. He admitted assaulting Forbes more than once. The assaults damaged Forbes' ear drum. During his detention in terms of section 29 of the Internal Security Act, Forbes was kept awake for long periods and subjected to lengthy interrogation. He conceded that Forbes had tried to commit suicide because of the physical cruelty to which he had been subjected.
After Kruser was brought to Culemborg he was handcuffed to the burglar proofing of the window and to the grille in such a way that his arms were outstretched and his feet did not touch the ground. Benzien admitted that he punched Kruser in the stomach whilst he was so suspended. During his interrogation Kruser was assaulted by Piet Goosen and possibly by Liebenberg as well. Kruser was known to have moved in and out of the country. To learn more about his activities, it became necessary to have a look at his passport. Benzien said that he had to assault Kruser because Kruser did not co-operate. At Kruser's trial Benzien denied using the "wet bag" method on him.
Benzien admitted that he failed to get any information about arms or weapons from Kruser, nor did they get any information from him about his contacts or associates.
He was shot and wounded in his upper legs at the time of his capture. Benzien was not involved in this arrest, but first saw Jonas when he was brought to Culemborg late in the afternoon. Benzien admits that although Jonas was wounded, he was not immediately taken to hospital for medical treatment because they wanted information from him about weaponry that he had. It was only after they had taken him to Khayelitsha and taken possession of the weapons pointed out by Jonas, that Benzien took him to hospital where it revealed that both his femurs had been shattered. Benzien denied that he had jumped on Jonas' wounded legs in order to get information from him about weapons. Benzien conceded that recovering Jonas' weaponry was more urgent than attending to his injuries.
Benzien admitted that after Jacobs was brought to Culemborg he was handcuffed and then questioned about the whereabouts of Ashley Forbes. Benzien said that Jacobs was evasive in his answers and appeared to be playing for time. He was then subjected to torture by the "wet bag" method. He was also subjected to electric shock treatment and in this he was assisted by John Kotze. Benzien said that he could not remember to which part of the body electric shock was administered and it was only when he was reminded by Jacobs, that it was his rectum and in his ear that Benzien conceded that it could be so. Benzien admitted that the interrogation and torture of Jacobs commenced shortly after nine o'clock in the morning and continued until after 2 p.m. after which time the wet bag was used on him on several occasions. Benzien conceded that Jacobs was subjected to cruel treatment for a long period of time.
He said that he would have used any means at his disposal to get Jacobs to reveal where his compatriot was hiding and at one state whilst Jacobs was being suffocated by the wet bag, Benzien admitted saying to him:
"Peter, I will take you to the verge of death as many times as I want to, but here you are going to talk, and if it means that you will die, that is okay".
Was arrested near the border of Lesotho on 15 August 1987. From there he was driven to Cape Town and brought to Culemborg where he was interrogated by Benzien and Nortjie. They wanted to know from him the names of the people he was supposed to meet in Lesotho. He was undressed and handcuffed to a grille in much the same way as Benzien had done to Gary Kruser and subjected to interrogation for the whole day until late into the night. From time to time, he was punched and slapped by Nortjie and Benzien, but mainly by Benzien. Benzien told him that he was the one who had killed Ashley Kriel and threatened Niclo Pedro with dire consequences if he did not co-operate with them. He had been deprived of sleep and was given no food. Benzien had threatened to use the wet bag on him but did not do so. The interrogation took place during the whole of that day and it was late that night when Niclo Pedro started giving information to Benzien. He told them that he had been given a letter which he was to open only after he had crossed into Lesotho. Then he would find out the people to whom the letter was to be delivered and where he was supposed to meet them.
Pedro said that at the time of his arrest he had destroyed the letter but when he was questioned about it, he told Benzien that he had eaten the letter. Pedro was then subjected to the humiliating experience of being taken to another room where he was asked to squat and defecate, as Benzien appeared determined to retrieve the letter from his stomach. Benzien went to the extent of inserting his hand covered in a plastic glove into his anus. When Pedro told him that he would never recover the letter, Benzien then pressed the handle of a broom into his anus, but nothing happened. He said he did not readily give information to Benzien but because of the violence that had been used on him and the feat that had been instilled into him, he agreed to accompany them that night and point out houses of some of his comrades.
Mr Donan who appeared on behalf of Niclo Pedro and Anwar Dramag submitted that torture was an international crime in terms of the "Contravention against cruel or other inhuman or degrading punishment (1984)". He said that South Africa was a signatory to this convention although it had not yet ratified it. He argued that Benzien had subjected his victims to torture and degrading treatment. His conduct amounted to an international crime as defined by the contravention and for that reason his application for amnesty should not be entertained. Torture or severe ill treatment are included in the definition of "gross violation of human rights in terms of Section (1) of the Act of 1995". The Committee is obliged to conduct a hearing where the offence for which amnesty is sought constitutes a gross violation of human rights and was associated with a political objective.
The Anti-Terrorist Unit was part of the machinery of the State in its onslaught against the Liberation Movement. Benzien and his colleagues were engaged in arresting and detaining suspected terrorists. In attempting to arrest Kriel and in torturing and assaulting his victims, Benzien believed that he was doing his duty as a policeman and assisting in defending the government against its enemies. There can be no doubt that his action related to a political objective.
Benzien confessed to committing perjury each time he denied assaulting or torturing his victims.
Johannes Lodiwikus Griebenauw gave evidence in support of Benzien's application. He had been a member of the South African Police until July 1992, when he retired with the rank of Major General. For the longest part of his period in office, he was attached to the Security Branch. He was second in command of the Security Branch in Cape Town during May to December 1989 and from December 1989 to December 1990 he was Regional Commanding Officer, Security Branch, Western Cape. He knew both Liebenberg and Benzien and was in overall command of both of them during the latter period. He said that nobody was instructed to torture victims but it was widely known that where victims refused to give information which they had, they were subjected to torture. In answer to questions put by Mr Donan, Griebenauw said that he was never told of a convention signed by the South African Government in 1949, relating to internal wars. He wasn't aware that his convention specifically forbade torture of people who were either injured who had been detained during a war. Torture was usually condoned, as there was tacit approval of it. The Special Branch were engaged in protecting the government of the day against the revolutionary onslaught of the Liberation Movement and so, in order to extract information from suspects, unconventional methods of interrogation were used. It was accepted by all in the police force that the end justified the means. As a matter of course, it was customary for the police to deny that they had tortured their victims. He was aware of the fact that Benzien was given a medal for combating terrorism without him ever having done border duty. He had heard about the killing of Ashley kriel, but he was not involved directly or indirectly in the Ashley Kriel incident. At that time he was not even in Cape Town, in fact he was not in the Western Cape during the period that Benzien committed the various offences for which he is applying for Amnesty. The methods used by the Security Police in the Western Cape to extract information from their victims were methods that were used throughout the country.
On a consideration of all the evidence, the Committee has come to the conclusion that the offences for which the applicant seeks amnesty were committed during and arose out of the conflicts of the past between the State and Liberation Movement.
Benzien is
GRANTED: amnesty for
1. The unlawful killing of Ashley Kriel on 15 July 1987.
2. Although there was no evidence of ill treatment and assault on Anwar Dramat or Alan Mamba, we are of the view that he should be given amnesty for assault with intent to do grievous bodily harm on them and on Tony Yengeni, Gary Kruser, Peter Jacobs, Ashley Forbes and Niclo Pedro.
3. He is
GRANTED: amnesty for having committed perjury in the trial of Gary Kruser and at the inquest proceedings on Ashley Kriel.
(Signed)
