DECISION
The applicant applies for amnesty in respect of the torture of several people and also in respect of an incident which took place near Willowvale on 21st January 1987.
The applicant was born, brought up and educated in the rural areas of the district of Qumbu. After leaving school he joined the Transkeian Police Force and underwent his basic training at the police college in Umtata. He states that at that stage he was politically naive and was almost completely ignorant of matters political both in Transkei and South Africa. After completing his basic training he was deployed in the Security Branch as a constable. He first served duty at Port St. Johns and thereafter at Libode, Lady Frere and Tabankulu before being posted to Umtata during 1984.
During his initial period of service he, from time to time, was obliged to attend lectures where he was indoctrinated and, inter alia, taught that members and supporters of the African National Congress (the ANC) and other liberation movements were the enemy.
Part of his duties when stationed as a constable at the Umtata Security Branch was to effect the arrest of persons against whom warrants of arrest had been issued by commissioned officers in terms of section 47 of the Transkeian Public Security Act, No. 30 of 1977. Persons arrested were then detained under strict conditions and subjected to interrogation. The applicant testified that he never interrogated a detainee alone and that all interrogations were undertaken in the presence of a number of security policemen, including senior officers. Interrogations almost variably involved torturing the detainee.
The applicant freely admitted to participating in such tortures and described a number of methods of torture that were resorted to. These included the so-called helicopter method (whereby the victim was cuffed by ankles and wrists to a pole and made to suspend upside down between two tables), the canvas bag method (where a canvas bag would be filled with water and then placed over the head of the victim), hitting and punching the victim, forcing victims to hold a chair in the air until he or she collapsed from exhaustion, forcing the victim to do strenuous physical exercises for an inordinate length of time and forcing victims to kneel against a wall for long periods.
The applicant admits to having tortured a large number of persons. He cannot recall the names of all his victims, but those that he can remember are Dugard Maqhekeza (now deceased), Archie Mayekiso, Thobile Ndlaku, the Ntshobane brothers, Manelisi Nyoka, Edgar Zothe and his brother, Nomonde Matoti, Mvulu Mtimkulu, Sisa Ndamase, Boy Jafta, Mbeko Mnyatheli, Tom, Toto Maqwentshu, Dr Nombe (now deceased), Pambili Jizana, Xola Ntsikilane, Ernest Tsotsi and Somwabo Mbekela.
All these tortures took place during or about 1986 and 1987.
The applicant also testified about the events which took place on or about 21 January 1987 at the premises and shop occupied by the Jafta family in the district of Willowvale. On that day the applicant was part of a joint force, consisting of policemen and soldiers which proceeded to the premises occupied by Mr and Mrs Jafta in search of certain MK cadres who were suspected of hiding there. During the operation the Jafta premises were destroyed and their shop was looted. It is apparent from the evidence of the applicant that he played no role in the destruction of the property or the looting of the shop as he was not in the close vicinity of the premises at the time. He had taken up a position some distance away near a forest and was unaware, either before or at the time, of the actions of those who caused the damage to the premises and who looted the shop. We are of the view, and it has been conceded by Mr Dukada, who appeared for the applicant, that the applicant does not qualify for amnesty in respect of the events which took place on or about 21st January 1987 at the Jaftas' premises in the district of Willowvale.
With regard to torturing of the persons mentioned above, we are satisfied that the offences committed by the applicant were acts associated with a political objective as envisaged by the provisions of section 20 of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 (the Act). The applicant, at all times, committed such crimes in the performance of his duties as a policeman on the instruction of and with the knowledge of his superiors. The victims were all political detainees and were tortured with the intention of extracting information from them which could be used by the security branch against their political opponents.
We are, after careful consideration, also of the view that the applicant has made a full disclosure of all relevant facts as required by the Act. Certain statements have been made by or on behalf of some of the victims which reflect that the applicant tortured them in a manner not entirely in accordance with the description given by the applicant (e.g. burning with cigarettes, pouring water down nostrils, dunking head into water and suspending upside down from the ceiling). In certain instances the applicant denied that such methods were used in his presence and in others he stated that he may have forgotten as the events occurred a long time ago. The applicant has confessed to having indulged in atrocious acts of torture which, in some cases, resulted in serious and lasting injury, both physical and psychological, to his victims and we are of the opinion that the aforementioned differences as to the modes of torture used are not so damaging as to be fatal to the application.
The applicant is accordingly GRANTED amnesty in respect of the assault and torture of Dugard Maqhekeza, Archie Mayekiso, Thobile Ndlaku, the Ntshobane brothers, Manelisi Nyoka, Edgar Zothe and his brother, Nomonde Matoti, Mvula Mtimkulu, Sisa Ndamase, Boy Jafta, Mbeko Mnyatheli, Tom, Toto Magwentshu, Dr. Nombe, Pambile Jizana, Xola Ntsikilane, Ernest Tsotsi and Somwabo Mbekela at or near Umtata during 1986 and 1987.
We are of the opinion that the persons mentioned in the preceding paragraph are victims as contemplated by the Act and this matter is referred to the Committee on Reparation and Rehabilitation for consideration.
SIGNED AT CAPE TOWN THIS THE
: DAY OF
: 2000
JUDGE S MILLER
MR J B SIBANYONI
MR I LAX
