: DECISION
The applicant originally compiled a statement dated 13 December 1996 for the TRC special Health Sector hearings.
The statement deals with (some of) the applicant's experiences during his period of services as a SADF conscript and mainly relates his observations of gross human rights violations by others. Extracts from his statement were quoted in the TRC Final Report.
This statement was attached to a prescribed amnesty application form in which reference is simply made to the statement. The application was signed and attested to in the Durban offices of the TRC, also on 13 December 1996. Significantly the applicant in the body of the prescribed form states: "I was caught up and faced a six (6) years in prison if I refused SADF service. I never did anything which I personally regarded as a violation other than served in an illegitimate force and was as such part of a total oppression strategy".
It is clear that the applicant did not originally intend applying for any act or omission which constituted a crime or delict. The application was however enrolled and the applicant given an opportunity to supplement his original statement, so indicating, would he so choose, on what specific incidents he might apply for amnesty.
The Committee on the day of the hearing was handed a supplementary statement, Exhibit A, which formed the basis of his oral evidence. This statement listed ten so-called incidents for which the applicant was seeking amnesty. These are:
1. The fact that his training as a medica t Thembisa and Kathlehong Hospitals allowed him "to practice" on black civilian patients in order to equip him to save lives of SADF members, had racial overtones and so constituted a gross human rights violation.
2. During 1983 whilst at Ongiva in Angola the International Red Cross referred an Angolan woman to "them", who had been diagnosed with breast cancer and enquired whether it was possible to have her transported to South Africa for treatment. He never saw this woman. Applicant made representations to the Base Commander, whose name he cannot remember, and was reprimanded for having spoken to the Red Cross, since acknowledging the patient would be acknowledging the SADF's presence in Angola. The woman probably died and he applies for amnesty for attempted murder.
3. While at Ongiva a conscript shot himself in the foot, "to the best of my (applicant's) knowledge" in an attempt to return to South Africa. Applicant applies for amnesty for his "inability to meet the psychological need" of this person.
4. Whilst on a Koevoet patrol applicant and his colleagues captured two SWAPO members. The "Koevoet members" interrogated, murdered and reported them killed in action. Applicant applies for amnesty for his failure to prevent the torture and killing or to report same.
5. One John Deegan, his unit commander, executed one of the applicant's "patients", a seriously wounded SWAPO Commissar, applicant was attending to. Applicant applies for amnesty for his failure to prevent or report the execution.
6. Applicant had instructions to attend to a patient in a detention cell. He realised that the patient had been interrogated and that boiling water had been poured over his chest and genitals. Koevoet members later realised that the patient had no SWAPO connections at all and asked him to attend to the patient without telling anybody. As he felt helpless and not qualified to do anything to assist he got a doctor to attend to the patient. He seeks amnesty for his silence in the fact of this obvious abuse.
7. During a skirmish with SWAPO, applicant was shooting from the gun-port of a Casspir. After the contact he realised that his gun had jammed and that he had fired only a single shot. He was so angered that someone had tried to kill him that he stood on top of the Casspir and fired shots into the body of a dead SWAPO member. By so doing he "violated the dignity and humanity of this dead SWAPO member", mutilated his body and so "acted beyond the bounds of his duty and rationality".
8. Applicant participated in a practice of tying corpses to bumpers and mudguards of Casspirs. This intimidated the civilian population. It was also done for the purposes of later identification of victims and for the collection of bounty. For his participation in this practice, he seeks amnesty.
9. On the basis of the TRC having found in its Final Report that activities of the SADF and the SAP in the former South West Africa and the military campaign in Angola led to gross human rights violations on a vast scale, and further that these institutions and their members were accountable, applicant seeks amnesty, him having been a conscript.
10. On the basis of the TRC finding that Koevoet was responsible for gross human rights violations, applicant having participated in Koevoet, applies for amnesty.
Mr Dehal, on behalf of the applicant, and before applicant commenced with his oral evidence, then asked for certain paragraphs to be deleted from this supplementary statement, Exhibit A. This resulted in the withdrawal of his application for amnesty of incidents 1, 3 (of which no reference was made in his original application) 7 and 8.
The applicant then gave oral testimony. Now it needs to be said that the applicant was not a good witness.
Firstly, the bulk of the incidents for which he applies, relates to alleged crimes of others, where he could remember neither the names of the victims nor the names of alleged perpetrators. His alleged crimes were based on his own failure to prevent or report the crimes of (unknown) others.
Secondly, when he was questioned on material aspects, such as the Red Cross referred cancer-diagnosed Angolan woman, he became rather evasive convoluted and relied on "deduction" made "through the veil of time".
Dealing with the incidents above:
Incidents 1 and 3
The application for amnesty in relation to these incidents was withdrawn.
Incidents 2, 9 and 10
In none of these incidents does the applicant disclose any act or omission on his part which constitutes an offence or delict as envisaged in the Act and the application for amnesty as far as these incidents are concerned, is REFUSED.
The applicant, in his original statement to the Health Sector hearings, attached to his formal amnesty application, stated that two SWAPO members were captured, tortured and eventually killed by the unit of which he was part, and then reported killed in action. In Annexure A, filed at the hearing, applicant alleged that these members were captured, reported as killed in action and then tortured and killed. When the conflicting versions were put to the applicant and he was asked to offer an explanation, he affirmed the second version. When pressed further to explain the conflicting versions and why they were immediately announced as killed in action, he could not offer an explanation. When further questioned he stated that this was the only occasion when such an incident occurred, yet other medics later informed him that it was common practice in other Koevoet teams.
On further questioning, the applicant tendered as a factor the possibility of a bounty being paid for members of SWAPO captured or killed. When asked to explain, he reverted to a position that the bounty would have been the same, whether these persons were killed or captured. He further stated that his moral guilt only developed later and at the time he accepted and identified with the actions of the team.
He was a regular fighting member of patrols and must have been out at least 12 times in a period of 6 months, each patrol lasting a week. Bounty was paid to the team and not to individuals, but he denies having ever shared in the spoils, at least not in cash and never to his knowledge, in kind.
Now the applicant in the beginning of his evidence made it clear that he applied for amnesty too on the basis of omission. He was aware of what was going on and failed to act to prevent the incident, or to report it after the event. When questioned the applicant conceded that at the time he had probably fully associated with the actions of the team, that it did not matter to him.
Given the different conflicting statements, both with regard to the sequence of events and the state of mind of the applicant, and given in the circumstances applicant's failure to supply any information relating to the identity of the "real" perpetrators, the Committee is not satisfied that the applicant has made a full and truthful disclosure related to all the material aspects of his involvement in this (alleged) incident and the application for this incident is therefore REFUSED.
5. Incident 5
On one of the patrols of the unit, they followed a spoor (tracks) of an individual for two days. On the second day this Commissar, not having been able to outrun the Casspirs, took shelter in a kraal. One John Deegan was acting Commander of the team. He ordered that a Casspir be driven over the hut and that the team fire into the rubble of the hut. The Commissar was pulled out of the rubble and handed to applicant for treatment. The fact of his being a Commissar, was established at that point from a notebook found in his pocket. He was severely injured and applicant was attending to his wounds, putting up a drip and bandaging the person. They then considered the possibility of either driving the patient to a hospital, about an hour or two away, or have him flown there by helicopter. Deegan wanted to know from this person where his handgun was. He would not give the information as a result of which Deegan shot him in the head while the applicant was putting in a drip.
Again, the applicant stressed, he applies on the basis of omission for his failure to prevent or to report the incident.
The applicant was then read some of the extracts from a statement by John Deegan which related the events differently. It is not necessary to go into any detail and suffice to say that the applicant responded by "painting the picture" in his mind. He stressed that the statement he relies on was already made in 1996 and that even that statement related to incident 14 years before 1996.
Applicant's attention was specifically drawn to his statement to the Health Sector hearings that attributed the killing to Deegan's motive as securing the commissar's weapon for his (Deegan's) personal collection. He conceded that Deegan had made no such mention in his statement, that he was not aware of any such collection of Deegan's, that Deegan had never told applicant of such motive or collection. He could not explain why he had said this other than to say that "people like Koevoet Commanders go home from war with prizes and collections and I don't think John was any different to those people".
On being further questioned he again introduced the bounty policy and money as the probable reason for Deegan's need to find the handgun.
From Deegan's statement, which formed part of the bundle, it is clear that the interrogation by Deegan was about much more than a gun. He wanted to know inter alia where this person's weapon was, where their meeting point was, and even brought a colleague of the captured person to show him that "it's over". When he still denied any knowledge, a terrible rage overcame Deegan and he then shot the Commissar, identified by his captured colleague as "Congo".
Applicant made it clear that he did not at the time feel any remorse. It was "another day's job". As he stated it, he is of the opinion that it concerned him that his patient was killed, but not that a human life was taken. He did not foresee, nor did he expect the killing. What remains of his application, is then his failure to report the incident.
The Committee is of the opinion that given all the inconsistencies in the evidence of the applicant, and despite the corroboration by Deegan in his own statement of the shooting, that the applicant, did not make a truthful disclosure to the Committee and the application is therefore REFUSED.
6. Incident 6
The incident is summarised as above. Applicant in his formal application, as presented by Mr Dehal on his behalf, applied for amnesty for attempted murder on these facts. Asked to explain why he had called in a doctor if the treatment was to be secretly done, he said that he had first asked the permission of the Koevoet members. he then asked one of the medics to introduce him to a doctor that would "be friendly" to him, a "friendly doctor who would talk to (him) off the record". Asked further to explain how, if he got access to the cells for this doctor, he would still talk of him secretly treating this patient, he said that the patient was not taken to hospital.
He, the applicant, never heard of this patient again. Asked whether he had no need to learn how to treat such serious wounds, he said that he had previously treated more severe burns. Asked to explain why then he regarded himself not to have been qualified to treat the patient on this occasion, he said that the treatment did not extend to healing of the patient but simply to the relieving of pain. Asked about his counselling with the other members before calling on the doctor, he said that his "personality probably would have gone to the doctor first and only then "told them" that the problem was being attended to.
The Committee is of the opinion that given the fact that again it has to rely on the evidence of the applicant only, that none of the alleged perpetrators could be mentioned, and given the various contradictions and inconsistencies in the applicant's version, the Committee is not satisfied that the applicant has made a full and truthful disclosure and amnesty is REFUSED.
7. Incidents 7 and 8
The facts relating to these incidents are summarised above. The applicant initially withdrew his applications for amnesty for these incidents. It was pointed out to him that these, on the face of his application, were the only incidents where he clearly applied for amnesty on the basis of commission, as opposed to all the other, where his alleged criminal conducted related to omission. Asked by the Panel for the reason for the withdrawal, the applicant said that that resulted from what he perceived to be "a challenge by the Panel" and as he did not see that any of these two incidents constituted a specific crime, they were withdrawn. When the Chair made it clear that he would allow the application to be reinstated with regard to these two incidents since no such challenge nor the creation of such perception was intended, the applicant chose to proceed on the basis of the reinstatement of these two incidents in his amnesty application.
It needs to be pointed out that on the first of these two incidents, incident 6, on the testimony of the applicant, after having fired the shots into the body of the corpse of the SWAPO member, he was severely reprimanded by his commander.
Secondly, with regard to the practice of tying bodies to Casspirs, bounty was indeed collected by the team, but he never shared in the spoils.
It is not necessary to deal with further evidence here. The Committee finds that as far as these incidents are concerned, the applicant at least accepted some personal responsibility for his actions and amnesty is GRANTED to him for his involvement.
To summarise then:
With regard to Incidents 1 and 3, the application was WITHDRAWN.
With regard to Incidents 2, 4, 5, 6, 9 and 10 amnesty is REFUSED.
With regard to Incidents 7 and 8 amnesty is GRANTED.
SIGNED AT CAPE TOWN THIS THE 29TH DAY OF JANUARY 2001
