DECISION
______________________________________________________
These are applications for amnesty by former members of the then Port Elizabeth Security Police; namely, Snyman; Du Plessis; Van Zyl; Nieuwoudt and Lotz, as well as by the Vlakplaas Security Police.
For the sake of convenience and easy reference, Applicants 3, 4, and 5 shall be referred to as the PE Group ; the 6th , 7th and 8th applicants, including Joe Mamasela and Roelf Venter, whose application was previously heard by a different panel, as the Vlakplaas Group.
In the course of the prolonged hearings in this matter Mamasela; Mogoai and Koole, who was never a member of a liberation movement, were referred to as "the askaris". It is only convenient to adhere to the reference. The term is apparently used to refer to former members of liberation movements who were turned and worked for the security forces of the previous government. Mamasela and Mogoai are former members of Umkhonto weSizwe (MK), the military wing of the African National Congress (ANC) who were so turned and worked for the Security Police at Vlakplaas.
As already implied, Koole was a permanent member of the Security Police when the events referred to herein occurred and, like all members of his group, was based at Vlakplaas. Although Mamasela was the first person in 1994 to reveal his involvement in the abduction and murder of the deceased referred to herein by members of the then South African Security Police, he has not applied for amnesty.
All the applications arise out of the disappearance of the so- called PEBCO 3 in 1985, namely Sipho Charles Hashe; Qaqawuli Godolozi and Champion Galela.
The PE Group's applications mainly relate to the abduction in Port Elizabeth on the 8 May 1985 and subsequent murder at Cradock of the PEBCO 3 on the 9 or 10 May of the same year. Snyman and Du Plessis were not physically involved in the abduction and murder of the said deceased but, for reasons which will become apparent in due course, the two had authorised the abduction and murder of the deceased. Snyman who was the most senior, and the Commanding officer of the then Eastern Cape Security Police had been approached by Du Plessis who suggested that the three activists be killed. When Snyman agreed to the idea Du Plessis approached Van Zyl and ordered him to set up a team for the operation. Van Zyl set up the PE Group team consisting of himself; Nieuwoudt and Lotz. The PE Group were physically involved in the abduction and murder of the deceased.
The Vlakplaas Group who assisted in the abduction did not take part in the killing of the PEBCO 3. Mamasela is alone in his evidence that all the Vlakplaas Group members and a number of senior Security Police officers from Port Elizabeth and different parts of the country were involved in what he described as a brutal torture and murder of the deceased after they were abducted.
Mogoai and Koole apply for amnesty for their role in the abduction and for assaulting Hashe and Godolozi.
Beeslaar applies for amnesty for his role in the abduction of the said three and specifically an assault on Hashe when he kicked him.
Van Zyl further applies for amnesty in respect of the offences of unlawful possession of an unlicensed firearm which he had brought into the Republic of South Africa in 1975, which weapon was used in the murder of the deceased. He also seeks amnesty for defeating the ends of justice, in that he destroyed the weapon by cutting it with a saw to destroy any possible physical evidence of the crimes committed.
Generally all the applicants are being opposed by the deceased, primarily on the ground that no full disclosure has been made.
The PEBCO 3 were at all material times office-bearers of the Port Elizabeth Black Civics Organisation ( PEBCO), an affiliate body of the then United Democratic Front (UDF) which was aligned to the ANC. It appears from the evidence that there is much conflict as to whether the elimination could have occurred on the 9th or 10th May. It is, however, not necessary to deal with the conflicting evidence on this particular point. Different legal representatives appeared for different applicants who all gave different and conflicting testimonies of what happened, in particular regarding how and by which one of the applicants the deceased were abducted at the airport.
It is also not necessary to deal with these contradictions as all applicants admit having abducted the PEBCO 3, hence the applications.
There is a welter of conflict and confusion regarding when exactly, how and by whom the deceased were violated. The PE Group, Venter and Beeslaar, save for his admission in regard to Hashe, vehemently deny having assaulted and tortured the deceased. Mogaoi and Koole deny brutally torturing the deceased to death as alleged by Mamasela.
On the whole this matter has given rise to considerable difficulty and we have been able to derive little assistance from Mamasela whose testimony, although in the main confirms the evidence of Mogoai and Koole that the PEBCO 3 were severely assaulted during the interrogation, but is just as contradictory and, on some points, improbable.
After carefully considering all the evidence in the matter it is clear that the myriad of contradictions can be classified into material and immaterial differences which can largely be attributed to human failure of memory, due to lapse of time. There are also those that are not that innocent. We shall accordingly refrain from expressing what our conclusions would have been upon every issue. We do, however, think that in the circumstances if the deceased were assaulted and tortured, as it is now being claimed by some of the applicants, that is a very important information for applicants to disclose. An applicant who fails to do so cannot be said to have made a full disclosure. It has been suggested that the duty to make a full disclosure only requires of an applicant to give evidence pertaining solely to the offence or delict in respect of which he seeks amnesty and is not required to make disclosures on acts, offences or omissions for which he is not seeking amnesty. The argument cannot be accepted. To adopt such approach would be placing an unwarranted restriction on and giving a very narrow interpretation of the relevant portion of the Act. Those who appear before this Committee are expected to be frank and honest about their actions. They may not withhold important information pertaining to their actions and the actions of others in the planning and execution of acts or omissions forming part of the subject matter of the incident under consideration.
It is common cause that in the evening of the 8 May 1985 the PEBCO 3 left their homes to meet an official from the British Embassy. For many years various attempts to trace them, and including court proceedings against the South Africa Security Police, to produce their bodies yielded no positive results. Up to the time of submission of their amnesty applications the PE Security Police denied any knowledge of or involvement in the disappearance of these men.
It is also common cause that before 8 May 1985 Hashe had made telephone contact with one Tozamile Botha, a co-founder and former member of PEBCO who was an ANC exile based in Lusaka at the time. In that conversation Hashe solicited Botha to organise funds for PEBCO and Botha indicated that he would ascertain the possibility of obtaining such aid, either from or via the British Embassy. He was going to communicate with him later in regard to progress made in that connection. Fatefully for Hashe, that conversation was intercepted by Nieuwoudt who was monitoring his movements and activities. The PE Group then lured Hashe and his two comrades to the Port Elizabeth airport under the impression that they were to meet an official from the British Embassy.
When the unsuspecting trio came to the airport they were swiftly abducted and taken into the askaris' kombi which transported them to Cradock where they were held in the old disused Post Chalmers Police Station. At the time the Vlakplaas Group under Captain Roelf Venter were in the Eastern Cape, assisting to curb the high levels of political violence and tracing MK cadres who had infiltrated the area. The Port Elizabeth Security Police believed that the PEBCO 3 played a crucial role in fomenting the political unrest and the general strife that existed in the area. They had been told by their informers that they were part of the ANC underground network which recruited supporters to undergo military training in exile and had knowledge of the presence cadres and weapons in the area. These activists were to be killed to weaken the PEBCO in its mass mobilisation campaigns. According to the PE Group the askaris were only there to help with the abduction and they were not going to be involved in questioning of the three activists, since they lacked interrogation skills. They were not even supposed to know that they were going to be killed, hence the "superficial" interrogation to make them (Vlakplaas Group) believe that the abduction was solely for interrogation. They also say that they as part of the plan, the elimination was only going to take place after Du Plessis had advised them that "the coast was clear" meaning that they had not been seen by anyone when they abducted the activists at the airport the previous day. This he did the following day when he came to Post Chalmers at about 12 noon. He spent about an hour there with the PE Group. They say at that stage the Vlakplaas Group had already left.
Du Plessis says he did see the PEBCO 3 there who were in a relaxed mood and showed no signs of having been assaulted at all. Neither did they lodge such a complaint to him, which he is convinced they would have done had such been the position. The PE Group say after Du Plessis had left each one of them shot and killed one of the PEBCO 3. Their bodies were placed on a pile of wood and burnt with diesel. The remains of their bodies were collected and thrown into the Fish River by Nieuwoudt the next day when they were returning to Port Elizabeth where Van Zyl gave a report to Du Plessis on the success of the operation.
The latter reported to Snyman who asked for no details as to how the abduction and killings had been effected, because the operation was carried out on "a need to know" basis. He was not supposed to know where and by whom the deceased had been killed and only the actual killers were to know.
In this matter amongst a number of documents that were made available to the Committee is a transcript of the evidence of Venter which was frequently referred to at the hearing. He had testified that he had been asked by one of the Port Elizabeth Security Police to make his askaris available for the abduction and was given photographs of the activists to show to the askaris. Initially he only knew that the activists were going to be abducted for interrogation and removed from their areas where they instigated unrest, but later he "gathered" (suspected) that the three were to be eliminated since their car had been burnt. He says immediately after the abduction had been carried out they all met outside the airport where it was asked of him by Van Zyl to make his askaris available to assist with the interrogation and further investigation. This he did and left them under the PE Group command. He says both himself and Beeslaar did not go to Post Chalmers that evening but returned to Glen Connor in Port Elizabeth where the Vlakplaas Group were accommodated in the course of their presence in the Eastern Cape.
That evening the askaris and the PE Group travelled together to Cradock where the interrogation was going to take place. It was only the following day that he and Beeslaar went to the Post Chalmers where he learnt from on of the PE Group members that a lot of information had been obtained through the interrogation. He also saw the PEBCO 3 whose faces were covered with a cloth and they showed no signs of having been assaulted. He denied participating in the interrogation of and assault on the activists as alleged askaris. He has no knowledge and never heard what happened to the PEBCO 3 after he left them there with the PE Group. His claim of the consumption of liquor at Post Chalmers is denied by the PE Group 3, but it is being supported by Beeslaar and all three askaris. The evidence of the presence and use of liquor by some of the applicants must be accepted and it is clearly not unrelated to the evidence of the use of violence against the activists.
The PE Group’s evidence that the askaris never participated in the questioning of the PEBCO 3 must be rejected as false. All three askaris, and particular Mogoai and Koole, implicate themselves and say that they took part in the questioning and assault on Hashe and Godolozi whilst Galela was screaming endlessly in a cell where he was being kept separately. They say the interrogation was being led by the PE Group and all Vlakplaas Group members participated in the questioning and assault of the deceased. This evidence is accepted as reasonably true and is consistent with probabilities , having regard to the reason for the decision to abduct and kill the PEBCO 3.
They were believed to have been some of the most dangerous activists in the area and possessed knowledge of ANC underground structures. This view is fortified by evidence of Beeslaar who spontaneously kicked Hashe. He says he did so because Hashe 's head was covered with a cloth and he wanted to speak with him about something. He does not even recall what he wanted to talk to him about because he was not part of the interrogation. There is no evidence at all that anyone of the applicants who were there reprimanded Beeslaar for the assault. This alone sufficiently lends credence to the view that, in so doing Beeslaar was taking part in a general atmosphere of assaults and torture of the PEBCO 3. It is not deemed necessary to repeat the details of the assaults and order in which the activists were taken from the garage where they were being kept and brought outside to be questioned and assaulted.
Evidence has been led that during the questioning Hashe admitted keeping an AK47 at his sister's place. This soon turned out to have been a lie as Hashe later said he was lying and had done so to relieve himself from further assaults. The deception is said to have infuriated his interrogators who administered more blows to him. Considering this evidence with the other evidence from Nieuwoudt that at some stage Hashe and Godolozi volunteered themselves to work as police informers, which offer was refused, the conclusion is inescapable that they were being seriously assaulted during the questioning. Not surprisingly, even Nieuwoudt himself says they did not believe the offer to be genuine, but a trick by the activists to be released.
In this context it is necessary to deal more fully with the evidence of Du Plessis who clearly has chosen to collude with the PE Group to deny that the PEBCO 3 were tortured before they were killed. It is not being implied here that Du Plessis witnessed the assaults and torture. He says there was not supposed to be any interrogation at all because they knew that they were not going to get anything they did not know. He says the purpose of the operation was simply to kill the PEBCO 3 and thus weaken the PEBCO in its activities. It was not to obtain information from them because they were satisfied with the information they were receiving from their informers. But contrary to this explanation Nieuwoudt says when Du Plessis arrived at Post Chalmers that morning he wanted to know if any new information had been obtained from the activists. He was answered in the negative. This shows that he clearly expected interrogation to have taken place and, indeed, according to Nieuwoudt, a superficial questioning did occur before Du Plessis came and after he had left. It is quite unlikely for Du Plessis not to have intended that the PEBCO 3 be interrogated, and if need be even to be assaulted to obtain new information from them before they were killed. He was quite senior to all the PE Group members who carried out the operation in terms of his orders. His evidence that the captives were at ease with themselves is rejected as improbable and only tendered to bolster the alleged veracity of his claim. He says if the PEBCO 3 had been assaulted before his arrival they would have told him. This is quite an unlikely thing to have happened in the circumstances. That PEBCO 3 knew that they had been lured to the airport; they had been abducted and not arrested in the way arrests are normally effected, and being held in a remote desolate place where no passers-by could hear their screams, they must have known that their fate was sealed.
The alleged mood of relaxation is highly unlikely in the circumstances. It further appears from the evidence that the questioning took quite some time without meaningful progress, and it is quite improbable that no assaults ever took place to force them to reveal the presence and whereabouts of MK cadres and location of arms in the area. The deceased were believed to be master-minding the prevailing unrest and their questioning must have been intense to ensure that they disclosed whatever information they had before they were killed.
Before concluding we also need to deal with the testimony of Koole and decide to what extent he has been frank and honest. Previously Koole made a statement to the Attorney General's office, which statement was taken by Captain De Lange. In that statement he repeatedly implicated Nieuwoudt in his account of the events.
In this regard it is important to mention that although Mogoai, who was generally an impressive and satisfactory witness who answered all questions truthfully with neither exaggeration nor hesitation, at the hearing he could not identify anyone of the PE Group members who was present and took part in the interrogation and assaults. He did, however, testify that these were the same Security Police from Port Elizabeth who had taken part in the abduction at the airport. Nevertheless, that presents no evidential problems as the PE Group members place themselves on the scene save to deny having assaulted the deceased.
Proceeding to deal with the evidence of Koole. At the hearing he suddenly denied ever making the allegations which implicated Nieuwoudt. De Lange testified and said he wrote the statement according to what was said to him by Koole. Surprisingly, the signature of Koole was appended to the statement and one hand-written correction had been made and initialled by him. Koole says when he appended his signature it was agreed between himself and police messengers from the A/G's office that the necessary corrections would been made so he could sign again. It is not necessary to traverse all the evidence that was led in this respect, but suffice it to say that a prolonged and rigorous questioning revealed that Koole was not being truthful. He was evasive in his answers and would refuse to answer clear and simple questions. At times he would ask that such questions be repeated and explained. Although he had testified that when De Lange took the statement from him he tried to persuade him to implicate Nieuwoudt, he had not even told his legal representative about what he believed to have been an irregular and unprofessional conduct by De Lange. Further questioning on the matter showed that there was nothing improper about the questions that were put to him by De Lange.
De Lange was called to testify and he was a very impressive and candid witness who answered all the questions without equivocation.
In the result the various applications are decided as follows:-
1. Amnesty is hereby GRANTED to HAROLD SNYMAN for conspiring and ordering the abduction and murder of Sipho Charles Hashe, Qaqawuli Godolozi and Champion Galela.
2. Amnesty is hereby REFUSED to HERMANUS BAREND DU PLESSIS for the conspiring and ordering the abduction and murder of the three deceased.
3. Amnesty is hereby GRANTED to KIMANI PETER MOGOAI for the following offences:-
i) The abduction of PEBCO 3 ; and for
ii) Assault on Sipho Charles Hashe and Qaqawuli Godolozi.
4. Amnesty is REFUSED to the following applicants:
4.1 Johannes Martin Van Zyl;
4.2 Gideon Nieuwoudt;
4.3 Gerhardus Johannes Lot;
FOR:
The abduction and murder of Sipho CharlesHashe; Qaqawuli Godolozi and Champion Galela - the reason being failure to make a full disclosure in respect of the assaults. It would be too artificial and absurd in the circumstances of the case to separate the two offences as they were both committed in a continuous train of events.
5. Amnesty is REFUSED to Gerhardus Cornelius Beeslaar for the offences of abduction and assault on Sipho Charles Hashe. The applicant has not shown that he had any political objective when he assaulted Hashe. He has not made a good impression on the Committee and in his evidence displayed a selective memory of the events that occurred. This observation is being made mindful of his alleged medical condition affecting his ability to remember events.
Having regard to all the evidence he clearly cannot be said to have made a frank and honest disclosure to the Committee regarding the assaults on the PEBCO 3 whilst they were being questioned. There is sufficient evidence that he was present and took part in the questioning and the general assault and torture. Although his evidence regarding his role in the abduction has not been challenged in any material respect, amnesty cannot be granted for the offence. He has not disclosed his part in and knowledge of the role of the others in the assaults and torture. His persistent denials in this respect must be rejected as false.
6. Amnesty is further REFUSED to JOHN MARTIN VAN ZYL for the following offences:-
i) Unlawful possession of an unlicensed firearm and
ii) Defeating the ends of justice.
There is no evidence that he had any political objective when he took possession of the said firearm in 1975, and the fact that it was used in 1985 in the elimination of the PEBCO 3 does not automatically alter its possession into an act or offence associated with a political objective. There is no evidence suggesting that in destroying the said firearm he committed the offence of defeating the ends of justice.
7. Amnesty is REFUSED to JOHANNES KOOLE for the
abduction of the PEBCO 3 and assault on Sipho Charles Hashe and Qaqawuli Godolozi.
The widows and dependants of the deceased are declared victims in terms of Section 22(2) of the Act.
Signed at Cape Town on this ...........day of ......................1999.
.................................................
JUDGE B. NGOEPE
................................................
ADV DE JAGER SC
................................................
ADV N J SANDI
