DECISION
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The applicants make application in terms of Act 34 of 1995 as amended ("the Act") for amnesty in respect of the murders of Matthew Goniwe, Sparrow Mkhonto, Fort Calata and Sicelo Mhlauli respectively ("the deceased"). The first mentioned three deceased were residents of Cradock while Mr Mhlauli was a permanent resident of Oudtshoorn at the time of the incident. He was a friend of Goniwe and formerly a resident of Cradock. The murders were committed at or near Port Elizabeth on or about the 27th June 1985.
On the morning of the 27th June 1985 some of the applicants, who were all members of the Security Branch, South African Police station at Port Elizabeth at the material time, received information that Goniwe was scheduled to attend a meeting with Professor Swartz at Port Elizabeth later that day and was scheduled to return to Cradock thereafter. The plan devised by the applicants to murder him was then put into operation. Johan Martin van Zyl,(also known as "Sakkie"), was charged with handling the operation which included the execution thereof. The
murders would be made to look like the result of a vigilante attack. Indeed it seems that the manner in which the murders were committed confirms that part of the plan. In order to execute the murder, he elicited the assistance of Eric Alexander Taylor, Gerhardus Johannes Lotz as well as the late Sergeant Faku, Goduka and Sakati (the last three were subsequently murdered in another incident).
That night, Van Zyl, Taylor and Lotz waited somewhere along the Port Elizabeth National Road for the motor vehicle in which the deceased was travelling. The motor vehicle was stopped and the four deceased were kidnapped, taken to different secluded placed in the Port Elizabeth district where each was killed and their bodies burnt to varying degrees. The motor vehicle in which the deceased were travelling was also burnt.
The applicants' evidence broadly suggests that the whole event occurred as a result of an order in terms of which they acted.
The four victims were reported missing and the ordinary police unit investigated the disappearance. The bodies were discovered after a few days and not surprisingly, none of the applicants revealed the truth either during investigations into the murder or
at any time during two inquests into the deaths of the four victims. According to the applicants who actually perpetrated
these deeds, Van Zyl acted on the instructions of Nicholas Jakobus Janse van Rensburg (third applicant), second in command of the Security Police Unit and Hermanus Du Plessis who supported and approved the killings. According to Janse van Rensburg, he received instructions in this regard from his immediate superior and fellow applicant, Harold Snyman who did not testify at all in this hearing.
It was testified that the order from Snyman was to the effect that "the best must be done for the country" in view of the unrest situation in the Eastern Cape which was "beyond control". This was interpreted, it was explained, to mean approval for these assassinations. In his written application, Snyman confirms that that is what he meant. Snyman in turn stated in his written application that it was the former Minister of Law and Order, the late Mr Le Grange, who, in a conversation with him about the unrest situation in the Eastern Cape, mentioned that a "plan" had to be made regarding unrest agitators in the Eastern Cape. This Snyman said, he interpreted as an order to assassinate those who were the leaders of those persons directly responsible for the said unrest.
Van Zyl said that it was the view of his unit that the United Democratic Front (UDF) was responsible for politicising the people and consequently for the unrest experienced in the various Eastern Cape areas including Cradock where the Cradock Residents Association ("CRADORA") was established and had played a prominent role in this regard. The whole unrest situation worsened and was totally politically motivated. The deceased were regarded as pivotal to the causes of the unrest as it occurred in the Eastern Cape which unrest was considered to be based on the "G" plan attributed to Goniwe.
The applicants believed that Goniwe, Calata and Mkhonto were members of CRADORA which was in turn affiliated to the UDF of which Goniwe was the Regional Organiser. The rest of the executive committee of the UDF, (Eastern Cape) consisted of other well-known and high profiled political personalities of the area.
Goniwe was a teacher who was at some stage in his career relieved of his teaching duties at the high school in Cradock. The consequences thereof together with his activities as a member of the UDF gave rise to discussions in various government circles
including some high-ranking committees which dealt with the security of the country. These discussions, it seems, led to decisions ranging from reinstatement to his teaching post on the one hand to cryptic commands interpreted to relate to neutralising (including assassinating) Goniwe and others and thereby quelling the unrest. Significantly the highest decision making body of this kind (the State Security Council), decided that the feasibility of Goniwe's reinstatement at the Cradock school should be investigated. This occurred shortly before his death. There were also other conflicting "decisions" which came to light and occurred immediately prior to the deaths of the deceased. One of these was the notorious "permanent removal from society" order which formed the subject matter of an inquest into the deaths.
All the applicants who testified claim not to have had any knowledge of the proposed reinstatement and say that even if they did, it would not have affected their political decision to assassinate all the deceased because it was the only way to curb or stop the violence. It was also suggested that that "decision" to consider reinstatement, was possibly a smoke-screen never intended to be implemented in any event. Significantly there is no
allegation that any of the other UDF executive committee members holding office at the time were considered candidates
for assassination either separately or as part of this plan in order to end the violence. The matter of those decisions will be returned to presently.
What is clear is that Van Rensburg relies on Snyman's statement to "do what is best for the country". This he conveyed to Du Plessis and Van Zyl who in turn conveyed it down the line structure on a need to know basis.
Similarly, it is alleged, that the original statement to "make a plan with leaders" by Le Grange was interpreted by Snyman as an order to assassinate. Consequently, this led to the murders of Goniwe and the other deceased.
The idea of killing Goniwe, it transpired, was first mooted about a year before his actual murder. Jacobus Jan Hendrik Van Jaarsveld was attached to the Intelligence Unit at the Security Branch of the South African Police at Head Office in Pretoria during 1984.
He testified that he was ordered by Craig Williamson, head of intelligence at Security Police Head Office at Pretoria, to investigate the possibility of killing Goniwe. He went to the
home of Goniwe on some other pretext but specifically to see how Goniwe could be killed and to see if he could perhaps be killed in his house. He testified that when he did so he was in the company of Van Zyl and others and that it was highly unlikely that Van Zyl did not know the actual reason for the journey. What is more, he remembers the date as being the 21st March 1984 (being the day on which the traditional commemoration of the "Sharpeville Massacre" takes place) when he was party to damaging the motor vehicle of Miss Janet Cherry. It is common cause that her car was in fact damaged on that day. When he testified, Van Jaarsveld identified Van Zyl by way of a photograph because the latter was not present at the hearing at the time. The reason for this was that Van Zyl had earlier indicated that he did not remember going on this journey with Van Jaarsveld. This raised the question as to whether Van Jaarsveld in fact knew Van Zyl. It seems that he would only have known Van Zyl if they had met on this trip. It should be added that the identification by way of the photograph could not have been rehearsed because of a lack of time and opportunity prior to the availability of a photograph of Van Zyl. Neither was it
apparent long beforehand that the question of Van Jaarsveld being able to identify Van Zyl would become relevant.
Furthermore, one is hardly like to forget such a trip to a prominent politician's or activist's house especially if that person had attracted the attention of the very unit in which one was employed.
Either he did go to the house or did not do so. The prominence of the individual and the subsequent enquiries into his death do not allow one to forget the journey especially because it was not a routine matter. It was a specific trip in preparation for an action which was, foreseeably, going to be the centre of high level and widespread scrutiny. The non-committal approach of Van Zyl in regard to his possibly accompanying Van Jaarsveld on this trip is nothing more than a matter of convenience and a strategy to provide an opportunity for him and his co-applicants to leave the impact this might have on their application open-ended, in the hope that an acceptance of Van Jaarsveld's evidence would not dent their credibility. Van Jaarsveld also testified that after assessing the situation, he advised that Goniwe could not be
killed in Cradock but that he should be killed at a secluded spot. The killings in fact occurred in that way.
Van Jaarsveld made a good impression as a witness. His version did not relate to the actual murders of the deceased. He did not
exaggerate his version nor did he shy away from issues that may have embarrassed him. He also made concessions when necessary and his version fits in with what generally occurred before Goniwe's death.
There is nothing that can be said to detract from the evidence of Van Jaarsveld and for these reasons his evidence is accordingly accepted as the truth.
It follows therefore that Van Zyl did not hear of the idea of killing Goniwe for the first time only about three weeks before the actual murders were committed as he alleged.
This casts serious doubt on the actual operation which led to the eventual death of the four deceased. The whole plan, as it was envisaged in 1984, was to assassinate Goniwe only.
At best for the applicants, even on their own versions, the involvement of Calata, Mkhonto and Mhlauli in the political situation at the time and which was the ostensible reason for their deaths, was peripheral. Indeed there was no evidence of specific activities, by any of the deceased which could have led the applicants to conclude that they were able to influence the flow
of events related to the unrest situation in the Eastern Cape. It is difficult to understand how the conclusion, which is sought to justify the murders, was reached.
Mhlauli's position must have had the least impact, if any at all on the political situation in the Eastern Cape. It is difficult to understand how the conclusion, which is sought to justify the murders, was reached.
Mhlauli's position must have had the least impact, if any at all, on the political situation in the Eastern Cape. He could hardly have been regarded as a threat to the law and order in the Eastern Cape and could not have been held responsible in any way for the situation as it existed at the time of the murders. The allegation that he was a leader whose demise would have led to or helped to reach a solution of the unrest in the area is flimsy to say the least. He was not even a member of CRADORA. The applicants failed to provide any convincing factual basis for concluding that he was a leader required to be assassinated. His elevation to political leadership and therefore a candidate for assassination seems to us to be a mendacious, convenient and opportunistic way of explaining his murder.
If the leadership positions of the deceased formed the basis for the justification of all these murders, the same argument relating to Mhlauli's murder applies to the murders of Calata and Mkhonto.
Van Zyl also denied that he contacted De Kock in order to establish a way to retain possession of the firearm used in the murders rather than dispose of it, because he regarded it as a collector's item which he was reluctant to dispose of. This was confirmed by De Kock who testified that he advised Van Zyl to throw it into the sea. It seems that the gun was in fact then disposed of.
De Kock makes application for amnesty in respect of defeating the ends of justice in that he advised Van Zyl what to do with the firearm.
De Kock was an impressive witness who seemed to be committed to speaking the truth. He was questioned about other crimes with which he is somehow connected. He dealt with these satisfactorily and did not try to conceal his role therein. Indeed, he stated that he associated himself with these crimes, insofar as
he did because he understood and accepted, in good faith, that they were committed for political reasons.
All the applicants testified that all the deceased were in fact primarily responsible for the unrest situation existing in the Eastern Cape at the time. It follows then that their demise would substantially, if not totally, have ended the unrest. It is noteworthy that none of the applicants' applications was based on a version which incorporated or accounted for the murder of any one for the deceased because it was circumstantially convenient to do so at the time or that it was committed to facilitate the primary objective of solving the unrest problems in that area.
The applicants, who were actually responsible for these murderous deeds, explained that their actions in executing these murders, such as burning of the bodies and the motor vehicle was intended to create the impression that the incident was the result of vigilante action. Indeed what was found thereafter resembled a picture normally associated with the results of vigilante attacks at that time.
Significantly, no consideration was given to the possible abandonment of the operation for any reason such as avoiding the
commission of an offence which was unnecessary for the attainment of their primary goal or the commission of an offence against a person not connected to any great degree or at all to the cases of the said unrest.
It is common cause that at the time there were a number of legal mechanisms through which the movements and freedom of citizens could be curtailed or indeed substantially controlled. At the discretion of certain ranked members of the South African Police and to which ranks some of the applicants had already been promoted, citizens could be and indeed many were incarcerated without trial for reasons related to alleged political activities. At the time most of the executive members of the UDF in the area were incarcerated for long periods.
It was also common cause that none of the deceased were detained for questioning or under any of the special legal mechanisms already mentioned. Any of the deceased could have been removed from their position of perceived power to cause the unrest, by invoking the appropriate laws or regulations which were available.
The whole operation was well planned. Its success was a result of a well orchestrated team effort by each of the participants.
The smooth execution of the operation makes it difficult to accept that the details thereof and the motivation for it was something that was concealed from those involved in the commission of these offences. What is more, the allegation that the gathering of weapons and other materials required for the execution of these crimes was kept from some of the participants and that they were therefore ignorant of the plan is so improbable that it falls to be rejected.
Consequently, all the perpetrators must be treated on the same basis. It is common cause that a decision concerning Goniwe's future was taken at the highest government level (the State Security Council). The decision entailed an investigation to assess the feasibility of reinstating Goniwe as an educator. Clearly at that level Goniwe's death was not contemplated and his continued participation in education was central to the discussions about resolving the disruption of schooling in Cradock.
While the applicants deny knowledge thereof or of any of the decisions, all of them testified that the murders would in any event have been committed despite the said decision. This is a remarkable proposition in the light of their allegation that their actions in this incident were the result of an order from superiors. The existence of the alleged order they rely on is effectively excluded by their own decision to kill the four deceased, including Goniwe, in any event. So their reliance on and respect for orders on the one hand and their decision to kill (despite the existence of a decision on a higher level that did not contemplate the death of Goniwe) on the other, is self-destructive. Again the operation they describe becomes tainted.
The level at which the aforementioned decision was made coupled with the fact that the idea of killing Goniwe existed approximately a year prior to his actual assassination places the existence of the order relied upon in this application, in serious doubt. This is even more so given the difficulty to understand the reasoning that the four deceased (who were in fact locals connected to Cradock in one way or another) were leading figures in causing or manipulating the unrest in the Eastern Cape for which organisationally, the UDF in the Eastern Cape was held responsible.
The allegation that the killings would effectively quell the unrest applicants complain of is capable of being further criticised. It is also common cause that of the four deceased, only Goniwe was an official of the Executive-Committee of the UDF in the Eastern Cape. The others had at best, indirect membership, through their own organizations. Goniwe was in a position to possibly influence the UDF In that regard assuming that the UDF was in fact responsible for the violence. However, the decisions of the UDF cannot be attributed to him only. In the absence of credible evidence, it is doubtful whether Goniwe carried so much sway within the UDF that his demise would effectively have ended the said violence as alleged.
In the circumstances, the killing of the four deceased does not make sense at all because if it was the UDF that was responsible for the unrest, then the deaths of the deceased would only have fuelled the flames rather than douse it, especially if the applicants succeeded in making the community believe that it was the work of a vigilante group. The plan itself then becomes counter productive and in fact its existence as described by the applicants again becomes doubtful.
In the absence of any attempt to remove any of the deceased from a position on alleged influence, the decision to kill one or all of them must also be questioned. It cannot be said that these assassinations were the only route to a possible solution to the unrest problems. Indeed it cannot be said that the reasonably foreseeable consequences of killing the four deceased, in particular Goniwe, could in any way have been the appropriate action to ensure calm and peace between two opposing political factions or to serve the political interests (as submitted by the applicants) of the applicants and of those they supported. This is even more so given the fact that the fires that raged between the two groupings were being stoked by the applicants themselves. There is little doubt that these events would have had a worsening effect upon the situation which the applicants say they were trying to avoid.
Consequently even the motive for the killings takes on a sinister complexion.
Save for De Kock, none of the applicants made a good impression as witnesses. The evidence of each of the applicants falls to be criticised in similar ways as already set out above. Their forgetfulness on crucial issues regarding the events so often referred to over the years and their lack of explanation surrounding the order, planning and execution of these offences does not lend itself to a favourable credibility finding.
As a result we do not believe the versions of the applicants (aside from De Kock).
An objective view of the whole set of circumstances related to when the idea of assassinating Goniwe was first considered as well as the effects such an assassination would have had in an already volatile situation leaves us with the inescapable conclusion that not all that should have been disclosed has in fact been told.
In the case of Harold Snyman, who did not testify, it was argued that his matter could be determined on his written application. Section 18 of the Act clearly, in our view, contemplates an open public hearing in applications involving a gross violation of human rights. Snyman's application is one such matter.
The failure to testify would ordinarily have been fatal. However, for the purposes of this decision, we have conveniently dealt with the applicants globularly because they rely on the same version in support of their respective applications. The circumstances of these applications as alleged by the applicants as well as the conclusion we have reached in each application justify, in our view, this approach and is not intended to create a deviation from the clear requirements of the Act. Certainly it is not to be regarded as a precedent for any perceived deviation.
But for De Kock, all the applicants rely on the same set of circumstances in support of these applications. Hence the merits of Snyman's application should follow the result of the applications of the other applicants with whom he associates in this matter.
The Act requires that amnesty shall be granted if the Committee is satisfied that:
(a) the application complies with the requirements of the Act;
(b) the act, omission of 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 sub-sections (2) and (3) of Section 20 of the Act;
(c) the applicant(s) has made a full disclosure of all relevant facts.
Just before this decision was about to be delivered, the Committee was informed of an intended application by the families of the deceased to lead further evidence and consequently to re-open the hearing. We heard argument on behalf of the families of the deceased as well as the applicants and reserved our decision on the application. We will furnish reasons for our decision thereon if necessary and upon request. Suffice it to indicate that we rule that the application to lead further evidence is refused.
Because of the lacunas in the applicants' version (except De Kock) and the lack of details referred to above, we have reservations as to whether the requirement related to political objectives have been complied with. On the other hand, apart from De Kock, they have failed to disclose everything they know about the murders.
In the result we are not satisfied that the applicants, but for De Kock, have complied with the requirements of the Act.
Consequently the applications of Taylor, Lotz, Van Rensburg, Snyman, Van Zyl and Du Plessis for amnesty in respect of the murders of Matthew Goniwe, Sparrow Mkhonto, Fort Calata and Secelo Mhlauli together with all the other offences incidental to the commission of those offences are REFUSED.
The application of De Kock in respect of defeating the ends of justice and any offence incidental there to is GRANTED.
SIGNED AT ............... THIS ..... DAY OF ............. 19...
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JUDGE R PILLAY
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ACTING JUDGE D POTGIETER
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DR T TSOTSI
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ADV F BOSMAN
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ADV S SIGODI
