DECISION
These are applications for amnesty by former members of the Vlakplaas Unit. All the applications are for accessory after the fact to culpable homicide of an askari, Pumelelo Moses Ntehelang, at Vlakplaas in 1989, and other crimes of delicts flowing therefrom including conspiracy to defeat the ends of justice and desecration of a body. In the case of de Kock he also asked for amnesty for fraud consequent upon the arrangement he made to have the deceased's salary paid to his mother to cover up his disappearance. At the relevant time de Kock was the Commanding Officer and Baker the second in command of the unit. All the other applicants worked under their supervision and command. At the trial de Kock was convicted of the offence of accessory after the fact to culpable homicide and a sentence of twelve years' imprisonment was imposed. Initially he had been charged with murder but the Court decided that the State had failed to prove intent on his part.
The Court further accepted that he could not have been responsible for the death of the deceased. In the result it was held that, regard being had to the evidence, the only inference that could be drawn was that van Heerden and another member(s) of Vlakplaas had negligently caused the death of the deceased by subjecting him to prolonged suffocation with a rubber tube. At this stage we refrain from making any comments on the findings of the Court and shall deal with the evidence before the Committee. In general, none of the applicants explicitly take responsibility for the death of the deceased, save for van Heerden who says he took part in the interrogation during which the deceased was killed. But it is clear that his drunken state had a great deal to do with his conduct. At one stage he implicated Bellingan but later withdrew that version and said Bellingan only brought the rubber tube and questioned the deceased whilst he was being interrogated. These allegations are denied by Bellingan who says he immediately left the canteen when de Kock hit the deceased with a snooker cue. There is a great deal of confusions and contradictions as to who exactly participated in the assault and tubing of the deceased that led to his death. So much so that we do not intend to deal with them, save to say that the interrogation and tubing of the deceased was totally unjustified in the circumstances. Further, the applicants are not seeking amnesty for the killing of the deceased.
The background to this incident is briefly as follows. Shortly before the incident de Kock and his compatriots were deployed in the Eastern Transvaal area along the borders of Swaziland. There they expected a group of armed members of a liberation movement to infiltrate from Swaziland into South Africa. The expected vehicle never came and they were returned to the Vlakplaas base in Pretoria. On their way back they stopped at various places consuming alcohol and on their arrival at Vlakplaas de Kock told them to stay and not to go home. He unlocked the canteen where they continued their drinking spree and playing billiards. At that stage the deceased, who had been working as an askari at Vlakplaas for about seven months had not reported to duty for some time. So much so that he had missed a deployment duty. due to his absence without leave. His whereabouts were unknown and there was a suspicion that he may have been playing a double role of working as an informer for the ANC whilst at Vlakplaas. De Kock says the deceased was reported not to be giving full co-operation and he had been warned that he would have to be watched very carefully.
De Kock says whilst they were playing billiards he was told by one of the applicants, possibly Bellingan, that the deceased had returned. He was somewhere in the Vlakplaas camp and was said to be drunk. He had been found in a nearby shebeen at Laudium. De Kock ordered that the deceased be called and when he came he asked him where he had been all the time he was away, and what he had been doing. The deceased was still drunk and said his pistol had been stolen at a shebeen. He was displaying a very strong sense of contempt. This caused de Kock to lose his temper, whereupon he struck him about four times on the head with the cue. The force applied was so hard that the cue broke. De Kock says he then smacked him with his right hand. The deceased fell to the ground and de Kock left the canteen. He went to his office to recompose himself as he was very angry. Whilst he was there one of the applicants came and told him that "something had happened at the canteen". When he went there he found the deceased on the ground. He was dead. He realised that this would cause serious problems for the South African Security Police and the Government of the day. Unless he devised a way to conceal the body, the existence of the Vlakplaas Unit would be exposed. He ordered one of the applicants to bring a blanket to cover the body and a rope to tie it up. This was done. He contacted Ras, who up to that stage had not been there, and instructed him to come to Vlakplaas at once. He did not tell him why he was calling him. De Kock's plan was to order Ras to find a place where they could bury the body. On enquiring from his colleagues as to what had happened whilst he was away, de Kock was told that the deceased had died whilst he was away, de Kock was told that the deceased had died whilst he was being questioned and suffocated with a rubber tube. He had also been kicked and assaulted. The canteen was cleaned and, to conceal any sign of a murder, Baker was ordered (by de Kock) to "create a false file for a missing person", namely the deceased. De Kock says he also requested Brigadier Schoon to authorise an extension of salary payments for six months. Money was accordingly deposited into the account of the mother of the deceased. He did not tell Schoon what had happened and the surrounding circumstances
Ras testified and confirmed de Kock's evidence; that they loaded the body of the deceased into a vehicle and left for the Western Transvaal where it was buried on a farm that belonged to someone who was known to him. It was himself, de Kock, Snyders, Willemse and Flores. The owner of the farm was not told of the secret grave on his farm. The same farm had previously been used for the same purpose and the owner was made to believe that Ras and his compatriots were simply coming there for hunting. He says that this was quite a shallow grave because when he came to point it out to investigators the bones could not be found. He surmises that it was dug out by hyenas which were quite common in the area, or swept away by water as it was on the banks of a river.
All the applicants say they did not report the incident to the authorities because it was part of the culture that existed at Vlakplaas and in the South African Police in general not to report or to talk about such incidents. In any case, nothing would have happened and political repercussions would have been too ghastly to contemplate for both the police and the ruling party. This tradition of secrecy required members to keep quiet even if they did not agree with a particular act ostensibly committed in furtherance of State security.
It is quite clear from the evidence that was led that the incident flowed directly from the drunken state the applicants were in. It is unacceptable that the deceased was interrogated at a time he was drunk and, what is worse, the interrogators themselves were also drunk. The evidence does not demonstrate a compelling necessity not to postpone the questioning to the next day when everyone was sober. The deceased had not manifested any desire to escape from Vlakplaas. When he returned he had done so on his own volition and he had not been placed under guard to prevent him from escaping. In the circumstances, one can understand why some of the applicants say they walked out of the canteen when the assaults and questioning had commenced. This was clearly not the right time to question the deceased, if they had any serious suspicions about him. There is also no credible evidence that the applicants genuinely suspected the deceased of being a double agent.
There was no evidence that any of the applicants intended to kill the deceased or, in fact, foresaw the likelihood of his death. The use of a rubber tyre during interrogation was all too common at Vlakplaas. In these circumstances, the offence which was committed would have been that of culpable homicide.
However, it is accepted that it was in the interest of the Vlakplaas Unit, the South African Security Police and the Government of the day that the incident be covered up to conceal the way in which members of the Security Police stationed at Vlakplaas had behaved and their relationship with askaris. Although we have made no finding as to who was responsible for the killing of the deceased we are satisfied that the applicants were guilty of being an accessory after the fact to culpable homicide arising out of their conduct in concealing the body or failing to disclose the fact that the deceased had been killed as he was. This "cover up" was in our view carried out to safeguard the interests of the Security Police and consequently of the Government and was an act associated with a political objective.
In the result amnesty is GRANTED to all the applicants for accessory after the fact to culpable homicide and for all crimes and delicts flowing therefrom and to de Kock for fraud in connection with the extended salary paid to the deceased's mother.
It is recommended that the dependants of the deceased be declared victims in terms of the Act.
SIGNED AT CAPE TOWN ON THIS
: DAY OF
: 2000
JUDGE A WILSON
ADV N SANDI
MR J B SIBANYONI
