DECISION
______________________________________________________This is an application for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act 34 of 1995, as amended (hereinafter referred to as "the Act").
The Applicants are former members and were in the hierarchy of uMkhonto weSizwe ("MK") the military wing of the African National Congress ("ANC").
The first Applicant was chief of staff of the then Eastern Transvaal machinery of MK. He commanded a project code named Cetshwayo, in terms of which MK infiltrated hardware, that is both weaponry and soldiers from Swaziland into South Africa ("SA") during the period 1985 - 1987. He had with him in the command structure the Second Applicant, the late Theophilus Dlodlo (cde Viva) and the commissar Molefe who is also deceased. He was based in Swaziland. He commanded the operation from early 1985 to early 1987. The details of some of the incidents which occurred under the operation are listed in the further particulars furnished by First Applicant. Presently he is the Chief of the South African National Defence Force ("SANDF").
The Second Applicant was also part of the command structure of the Eastern Transvaal machinery relating to operation Cetshwayo. He was responsible for the supply of hardware whenever requisitions were made to him. Presently he is in the SANDF as Director of Personnel Acquisition (i.e. Recruitment).
The Third Applicant was an operative on the ground. His duties were to do reconnaissance in the areas where landmines had to be planted in the implementation of operation Cetshwayo. He was assisted by his late brother, Ndumiso Mkhonto, who received training underground and became part of the unit operating within the country.
As commander of operation Cetshwayo, the First Applicant applies for amnesty for offences and delicts committed by his command structure in planning and co-ordinating the operation by planting landmines in areas around SA borders with neighbouring countries where the then South African Defence Force ("SADF") and South African Police ("SAP") patrolled and arrested MK cadres who infiltrated into the country. The Second Applicant applies for amnesty for his role in supplying hardware and the Third Applicant seeks amnesty for his role in the actual planting of the explosives.
In furnishing further particulars, the First Applicant referred to operations conducted in the former eastern Transvaal and to a lesser extent to the East Rand. His testimony was limited to operation Cetshwayo.
The Third Applicant testified about three incidents he recalls where he planted landmines. The first one is where Corporal Albert Marthinus Le Roux was killed whilst riding on horse back. The second one is where a bakkie detonated a landmine. four occupants were killed and two others, Bhangu James and William Motha, survived. The third one is where a Casspir detonated a landmine and the occupants thereof sustained minor injuries.
The Third Applicant also testified that great care was taken before planting landmines in trying to avoid civilian casualties. He reconnoitred the area for three days, sleeping in the forest before proceeding to plant explosives on the road where the incidents occurred. He observed that the road was only used by the SADF and police in providing logistics (food supply) to soldiers guarding the SA borders. The foot patrols were assisted by a helicopter which often flew in the area. He testified that the whole area was militarised and there was little sign of civilian activities. A few kilometres away there were two SA security forces camps. Even today the area had been converted into a game reserve and there are no people living there.
Advocate Berger, who appeared on behalf of the Applicants, referred the Amnesty Committee to the Promotion of Density of Population in Designated Areas Act 87 of 1979 in terms of which the previous SA government encouraged white farmers to stay and farm along the borders by providing loans to them; the farms were managed according to SADF directives and farmers were to always avail themselves to the SADF to carry out reconnaissance and intelligence. Thus they were incorporated into the SADF and were regarded as legitimate targets by MK. This militarised border zone was significantly extended in 1983 to approximately 50 kilometres. Operation Cetshwayo was launched in 1985 in response to the government's attempts to create a buffer zone along the borders thus frustrating the infiltration of cadres and weaponry into the country. The SA government thus blurred the distinction between military structures and the civilian farming community in these areas.
There was no appearance on behalf of any interested party pursuant to notices given of the hearing. Attorneys Coetzee, Brauckman and Schutte of Middelburg sent a letter dated 2 May 2000 (the actual day of the hearing) by fax to the TRC office in Cape Town on behalf of their client Albertus Rossouw indicating that although their client received the notification of the hearing in terms of Section 19(4) of the Act o 19 April 2000, that they are unable to attend and require the matter to be postponed. Having listened to argument on the matter by Advocate Berger and Ms Mtanga, the leader of evidence, both strenuously opposing any postponement of the matter, we found that no proper basis had been laid for a postponement and that it would accordingly be in the interest of justice for the hearing to proceed.
The positions of the other known victims of the operation are as follows. Mr Johannes Petrus Roos, the next-of-kin of Mrs M C Roos and Jaco Roos emigrated to Botswana and his whereabouts could not be ascertained; Mrs A H van Tonder, the next-of-kin of Corporal Albert Marthinus Le Roux, has since relocated to a new address unknown to the present occupants of the house where she previously resided.
The next-of-kin of the late Msesi Tryphina Msibi and the occupants of the bakkie which detonated the explosive on the Barberton - Diepgezet mine road were also not present at the hearing. Ms Mtanga advised the Committee that attempts to serve notices on them were unsuccessful. The assistance of Igwalagwala FM and Barberton Community Radio was enlisted to announce that these victims should urgently contact the TRC in connection with the hearing.
At the end of the hearing the Committee indicated that any information which may be tendered by the victims before the decision is made, would be considered and made available to the Applicant's legal representatives.
On the 3rd May 2000 the aforesaid victims responded to the radio broadcasts and consulted with the evidence leader who conveyed to the Committee that they do not wish to oppose the application. The matter is accordingly unopposed.
Having carefully considered the matter, we are satisfied that the actions by the three Applicants were associated with a political objective. They were military actions done in the interest and at the behest of MK, the military wing of the ANC. They fall squarely within the ambit of Section 20(2) of the Act, in particular subsections 2(a), (d) and (f).
The Third Applicant's evidence in describing the area where the van detonated the explosives accords with the contents of the affidavit deposed to by Bhangu James Motha (William Motsa) to the police on the 28th April 1987 and which forms part of the papers before us.
We are also satisfied that the Applicants made full disclosure of all relevant facts. Their applications also comply with the technical requirements of the Act.
We are accordingly satisfied that all three Applicants complied with the requirements of the Act. They are hereby GRANTED amnesty for all offences, delicts and acts or omissions committed and directly arising out of the activities of operation Cetshwayo during or about the period 1985 - 1987 at or near the Eastern Transvaal border including the following landmine explosions:
(i) at or near Volksrust on or about 5 July 1986 where one person was injured;
(ii) at or near the Mozambique border on or about 7 September 1986, resultant damage or injuries unknown;
(iii) at or near the Mozambican border on or about 7 September 1986 when a SADF vehicle detonated a landmine and approximately 6 SADF members were injured;
(iv) at or near Volksrust on or about 22 October 1986 when two explosions caused unspecified damage to property;
(v) at or near Nelspruit on or about 4 November 1986 when one woman was killed and an unspecified number of children injured;
(vi) in or near Eastern Transvaal on or about 4 November 1986 when Lance-Corporal Le Roux was killed on horseback;
(vii) at or near the Barberton-Diepgezet Mine road on or about 28 March 1987 when four occupants of a bakkie were killed and two occupants injured.
In our opinion all the persons killed or who sustained injuries or suffered damages as a result of this operations are victims and are referred for consideration in terms of Section 22 of the Act.
DATED at CAPE TOWN this day of 2000
________________________JUDGE DENZIL POTGIETER
________________________ADV N SANDI
________________________MR J B SIBANYONI
