DECISION
These are applications for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").
The applicants apply for amnesty in respect of a number of different sets of activities. Other panels of the Amnesty Committee either in chambers or after hearings have already decided upon some of these activities.
For the purposes of this application, the acts for which amnesty is being sought are best summarised from the Judgment and indictment at the trial of Mohammed Rafiq Rohan ("Rohan"). He was convicted of the following:
1. Terrorism in contravention of Section 54 (1) of Act 74 of 1982, read with Sections 1, 54 (6), 54 (7) and 69 of the said Act, in that on or about 28 January 1989 and at or near Ridge Road, Durban, the accused placed an explosive device, consisting of 2 (two) 158 Mini-Limpet mines and 4 (four) SZ-3 demolition charges, at an electricity transformer in front of the South African Police ("SAP") Radio technical workshop and caused the device to detonate, causing damage to the said transformer and adjacent State and private properties.
2. Terrorism in contravention of Section 54 (1) of Act 74 of 1982 read with Sections 1, 54 (6), 54 (7) and 69 of the said Act in that on or about 10 March 1989 and at or near the Natal Command Headquarters of the South African Defence Force ("SADF"), Marine Parade Durban, the accused placed an explosive device consisting of 2 (two) 158 Mini-Limpet mines an 4 (four) SZ-3 demolition charges and caused the device to detonate, causing damage to the adjacent State and private properties.
3. Unlawfully and willfully causing an explosion, upon or about 7 April 1989 and at or near the SAP Single Quarters, C.R. Swart Square, Stanger Street, Durban, whereby life and property was endangered.
4. Unlawfully having in his possession, during the period 31 December to 8 April 1989 and at or near Albert Park, Durban, 501 Trafalgar Heights, Brickfield Road, Overport, Durban and 52 Spearman Road, Sydenham Durban, handgrenades and bombs to wit:
(a) 20 (twenty) SZ-3 demolition charges;
(b) 19 (nineteen) 158 Mini-Limpet mines;
(c) 35 (thirty-five) RGD-5 handgrenades;
(d) 35 (thirty-five) F1 handgrenades.
5. Unlawfully having in his possession, during the period 31 December to 8 April 1989 and at or near Albert Park, Durban, 501 Trafalgar Heights, Brickfield Road, Overport, Durban and 52 Spearman Road, Sydenham Durban, machine guns or machine rifles and/or parts thereof to wit
(a) 1 (one) AKM machine rifle Serial No. 1964/A3798.
(b) 1 (one) AKM machine rifle Serial No. 1965/3N2422.
(c) 8 (eight) AKM machine rifle magazines.
6. Unlawfully having in his possession, during the period 31 December to 8 April 1989 and at or near Albert Park, Durban, 501 Trafalgar Heights, Brickfield Road, Overport, Durban and 52 Spearman Road, Sydenham Durban, firearms without being licensed to possess them to wit
(a) 1 (one) Makarov semi-automatic pistol Serial No. SA5058;
(b) 1 (one) Makarov semi-automatic pistol Serial No. 6E5169;
(c) 1 (one) Makarov semi-automatic pistol Serial No. PY3059;
(d) 1 (one) Makarov semi-automatic pistol Serial No. 6E2513;
(e) 1 (one) Makarov semi-automatic pistol Serial No. PK4303;
(f) 10 (ten) Makarov pistol magazines.
7. Unlawfully having in his possession, during the period 31 December to 8 April 1989 and at or near Albert Park, Durban, 501 Trafalgar Heights, Brickfield Road, Overport, Durban and 52 Spearman Road, Sydenham Durban, ammunition without being in lawful possession of an arm or arms capable of firing such ammunition to wit
(a) 160 (one hundred and sixty) rounds of 9 mm ammunition;
(b) 240 (two hundred and forty) rounds of 7,62 x 39 mm ammunition.
Rohan was sentenced to a period of imprisonment for the above convictions. He was released under the prevailing indemnity legislation on 20 May 1991. Neither Riaz Saloojee ("Saloojee") nor Aboobaker Ismail ("Ismail"), the other two applicants before us, were prosecuted in respect of these matters.
The Leader of Evidence informed us that most of the people injured in the incidents forming the subject matter of the hearing had been traced and had been notified of the hearing. These people have indicated that they did not wish to attend these proceedings and none did so.
Rohan testified and confirmed that he had been recruited into Umkhonto weSizwe ("MK") the military wing of the ANC African National Congress ("ANC") during October 1998 by Ismail and that he thereafter received intensive basic, explosives and weapons training from Saloojee. He said that at the time he knew both Ismail and Saloojee as Rashid and Kelvin Khan respectively. The training occurred in Zimbabwe during several visits there by Rohan in his capacity as a journalist.
After his training was completed Rohan was equipped with a range of weapons and explosives and commencing in January 1989 began to carry out the activities that formed the basis of his convictions. Rohan was arrested after the last of these incidents.
Saloojee testified and confirmed his application for amnesty as well as the statement, application and evidence of Rohan insofar as they related to him. He further confirmed that he had ordered Rohan to commit the various acts and that he had reported to Ismail as to the outcome. Ismail was at the time his commander.
Ismail testified and confirmed his application for amnesty and statement. He also confirmed the applications, statements and evidence of Rohan and Saloojee insofar as they related to him. He further confirmed that he had ordered Saloojee and Rohan to commit the various acts and that he had been their commander at the time. No further evidence was led on behalf of the applicants or any other parties.
It is clear to us that all the applicants acted in their capacities as members of MK. Their actions as aforesaid were in line with the policies and guidelines of the ANC at the time. They all appreciated that as a consequence of their actions, in addition to military targets and personnel, civilians might be killed or injured and property damaged. We are also satisfied that they committed such acts during the course of the conflicts of the past and that such acts are acts associated with a political objective as required by the Act. We are also satisfied that they have disclosed all relevant facts.
One aspect, which requires discussion, is the issue of whether we can properly hear Mr Ismail’s application. These instances are not specifically canvassed in his application. He seeks to rely on certain passages in his application. He explains that due to the large number of operations he commanded and the period of time over which he acted as a commander, as well as the lack of records, he was unable, as at the time of making his application, to remember each and every instance where he had commanded cadres to carry out operations. He nevertheless expressed an intention to apply for amnesty for all acts carried out by him or by those under his command. This is explicitly stated in his application for amnesty.
His situation is different to those of other leadership figures or persons on leadership positions. Whereas they have made largely symbolic applications for amnesty where few or no acts are specifically noted or acknowledged, in the present case, amnesty is applied for in specific terms and even those instances affected by poor memory or lack of records are intended to be applied for.
We heard argument and were referred to relevant decisions of the Amnesty Committee in which other applicants had to varying degrees couched their applications in similar or slightly different terms. We have considered such arguments and believe that Ismail’s application is entitled to be considered despite having made no mention of the specific incidents under consideration in this matter.
We say this for the following reasons: The primary purpose of the Act is to achieve as complete a picture as possible of the various gross violations of human rights and other acts, offences or delicts committed during the conflicts of the past. With specific reference to the amnesty process, applicants are encouraged to reveal their participation in return for the possibility of receiving amnesty. Where, as in the present case, an applicant gives a reasonable explanation for not mentioning the specific instance under consideration but still expresses an intention to apply for other matters he is unable to remember as at the time of making the application, and the Committee is satisfied as to the applicant’s bona fides, we are of the view that it would be in order to consider such application.
In the present applications, Rohan has referred to Saloojee as being the person who instructed him. Saloojee in turn refers to Ismail. Ismail has given a credible explanation for his failure to mention the matter and we are satisfied that he did in fact intend to apply for it.
With regard to Saloojee and Aboobaker a further aspect requires attention. Saloojee applied for amnesty in respect of his activities as Regional Commander of Ordinance, in Zimbabwe, during the period 1988 to 1990. Aboobaker applied for amnesty in respect of his activities as Chief of Ordinance, during the period 1987 to 1994.
Such activities entailed gleaning relevant information regarding future operations planned by MK and then directing appropriate ordinance and materials to places where they would be required for operations by cadres of MK. Although neither of them knew precisely what specific operations were to be conducted and by whom, they facilitated the supply, importation and caching of such weaponry, materials and ammunition into South Africa. We may mention that ordinance and materials are shorthand for the gamut of weaponry and related supplies required for the waging of the liberation struggle.
Once the ordinance had been safely cached inside the country, their operatives would send them sketch plans identifying the localities of such caches. These would be handed to the operational commanders who would inform the relevant cadres. Both applicants accepted that MK cadres would use the ordinance in operations and that possible death and injury to persons and damage to property would be likely to ensue.
Neither of the applicants is able to give specific details with regard to the chronology, type, quantity and locations of such operations. They say that this is because of the difficulty of recall due to the lapse of time and the lack of records due to security considerations.
Saloojee furnished the committee with the names of the operatives who acted under his command. He emphasised that although they brought weapons and explosives into the Republic of South Africa they were not party to the planning of any specific offences and did not have knowledge thereof.
With regard to these instances is also clear to us that the applicants acted in their capacities as members of MK. Their actions as aforesaid were in line with the policies and guidelines of the ANC at the time. They all appreciated that as a consequence of their actions, in addition to military targets and personnel, civilians might be killed or injured. We are also satisfied that they committed such acts during the course of the conflicts of the past and that such acts are acts associated with a political objective as required by the Act. We are also satisfied that in the circumstances they have disclosed sufficient relevant facts.
In the result, we are satisfied that the applicants have complied with the requirements of the act and they are GRANTED amnesty as follows:
In respect of Mohammed Rafiq Rohan, his convictions as set out above as well as all delicts flowing therefrom.
In respect of Riaz Saloojee and Aboobaker Ismail:
1. The offences for which Mohammed Rafiq Rohan was convicted as set out in clauses 1 to 7 on pages two to four above, as well as all delicts flowing therefrom;
2. All offences, delicts, acts or omissions arising out of their activities as Regional Director of Ordinance, in Zimbabwe during the period 1988 to 1990, and Chief of Ordinance, during the period 1987 to 1994, respectively, and which were carried out with weapons and explosives which were brought into the country by one or more of the following operatives acting under their command:
2.1 Felicity Barbara Anderson;
2.2 John Sporoplos;
2.3 Nigel Crawhall;
2.4 James Garraway;
2.5 Martha Gordon;
2.6 Evan Abrahamse;
2.7 Dominic Pelissimo;
2.8 Klaus and René Von Twillert;
2.9 Doug McKinley;
2.10 Hazel Compton;
2.11 Lee Hobbs;
2.12 Jackie Nolte;
2.13 Bob Jolise;
2.14 Pier Thierry.
The following persons who were either injured or had property damaged or destroyed, are found to be victims and are accordingly referred to the Reparation and Rehabilitation Committee in terms of Section 22 (1) of the Act:
Mrs. V.D. Lingen
Mrs. S.B. Van Niekerk
Cmdt. J.P. Smalberger
Mrs. Nettleton
Cmdt. P.J. Loots
Mrs. A. Loots
Cmdt. A.G.W. Saunders
Mrs. M.C.M. Saunders
Cmdt. A. Coetzee
Mrs. L.S. Coetzee
Cmdt. C.F. Crous
Maj. J.A. Moxham
Maj. C. Maser
Mrs. Z. Cloete
Brig. J.H. Pretorius
Ms. Lyle
SIGNED AT CAPE TOWN ON THIS _________ DAY OF ______________ 2000.
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JUDGE C. DE JAGER
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ADV. S. SIGODI
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MR. I. LAX
