: DECISION
Gerrit Nicholas Erasmus (the 1st Applicant), Petrous Lodewikus du Toit (the 2nd Applicant), Charles Alfred Zeelie (the 3rd Applicant), Andries Johannes van Heerden (the 4th Applicant) all apply for amnesty in respect of the bombing of the Why Not Club in Hillbrow, Johannesburg on 22 September 1988.
At the time in question the 1st Applicant was the Commanding Officer of the Johannesburg Security Branch of the South African Police, the 2nd Applicant was second in command and the 3rd and 4th Applicants were members thereof. The 5th Applicant was also a member of the South African Police and was a member of C-Section, more commonly known as Vlakplaas.
The facts which are common cause in this matter may be briefly summarised as follows:
On 21 September 1988 a bomb explosion, which injured a number of people, occurred at Vanderbijl Square in the central business district of Johannesburg.
The scene of the explosion was attended by, inter alia, the 1st Applicant and the 3rd Applicant, who was there in his capacity as an explosives expert. The Vanderbijl Square bombing was but one of a number that had taken place in the Johannesburg area.
The 1st Applicant expressed his frustration in this regard to the 3rd Applicant and told him that fire should be fought with fire and that a reprisal attack should be carried out against the African National Congress ("the ANC"). It was later that day decided to detonate an explosive device in the Why Not Club in Hillbrow. The Why Not club was identified as a target by the 3rd Applicant who had reliable information that it was frequented by supporters of the ANC. He had obtained such information when he was previously investigating a bombing which took place at the Café Zurich which is situated across the road from the Why Not Club. During that investigation he learnt that the attack on the Café Zurich was launched by members of the ANC from the Why Not Club.
The 3rd Applicant instructed the 4th Applicant to assist him in the operation. Later that night the two of them drove to Crown Mines where members of Vlakplaas, who were operating in the area, were temporarily based. They requested the Vlakplaas members to assist them in the operation. From there the said two Applicants together with three Vlakplaas members, namely, the 5th Applicant, Paul van Dyk and Douw Willemse, drove to Hillbrow. The 3rd Applicant had prepared two mini limpet mines which were strapped together.
They parked their vehicle near the Why Not Club. The 5th Applicant refused to enter the Club and stated that he did not want to be part of the operation as he had not been authorised to do so by his commander. he remained in the vehicle while the other four entered the Club for reconnaissance purposes. After completing their reconnaissance they returned to the vehicle, hid the limpet mines on the person of the 4th Applicant and returned to the Club. The 5th Applicant remained at the vehicle.
The 3rd Applicant set the detonating device into operation and the limpet mines were placed underneath a seat against the outer wall of the Club. The four of them left the Club and returned to vehicle. A short while later the limpet mines exploded. The explosion took place in the early hours of 22 September 1988.
Extensive damage was caused to the premises of the Why Not Club and thirteen people were injured. The 3rd Applicant stated that he placed the mines under a chair against the outer wall because he wanted to keep casualties to a minimum.
There are discrepancies between the evidence of some of the Applicants. The 1st Applicant stated that after speaking to the 3rd Applicant at the scene of the Vanderbijl Square bombing, he had no further discussions with the 3rd Applicant until after the bombing of the Why Not Club. He did not know that the Why Not Club was to be the target for the reprisal attack. He does, however, accept full responsibility for initiating the attack and believes that his discussion with the 3rd Applicant at Vanderbijl Square constituted an order to carry out a reprisal attack, particularly in the mind of the 3rd Applicant. When he heard that the explosion had occurred he gave his approval thereto. The 3rd Applicant, on the other hand, testified that during the evening of 21 September 1988 he went to the recreational room at the South African Breweries where he met the 1st Applicant and the 2nd Applicant. They had a discussion about targets for the operation which concluded with the 1st Applicant ordering him to carry out the operation at the Why Not Club.
The 2nd Applicant had little recollection of the incident. He cannot recall whether he was aware of the fact that the bombing was a Security Branch operation prior to it occurring or that he only learnt of such the following day. He also cannot recall whether he was at the South African Breweries on the night of 21 September 1988. he was called to the scene of the bombing in the early hours of 22 September, but can't remember if he spoke to the 4th Applicant who was sitting in a vehicle not far from the Why Not Club - the 4th Applicant testified that the 2nd Applicant did speak to him at the scene and told him to remain in the vehicle so as not to be identified.
The 2nd Applicant did, however, testify that he, at no stage, voiced opposition to the operation, that he fully associated himself with it, that he covered up the Security Branchs' involvement in the operation and that he must accordingly accept responsibility for the operation.
After carefully considering all the evidence in the matter we are of the view that the versions given by the 3rd and 4th Applicants are more probable and acceptable than those of the 1st and 2nd Applicants. The evidence given by the 3rd and 4th Applicants, although not flawless, indicates that they have a clearer recollection of the events than the 1st and 2nd Applicants. We are, at the same time, also of the view that the 1st and 2nd Applicants did not wilfully tell untruths in order to reduce their culpability in the incident. They both admitted responsibility and the 1st Applicant, in particular, confessed to being the instigator of the whole operation. The failure of the 1st and 2nd Applicants to recall clearly the events which took place may be ascribed to the passing of time and the fact that both of them were involved in a large number of incidents and operations.
We are accordingly of the view that all the Applicants have satisfied the requirements of making full disclosure of the relevant facts.
We are also satisfied that the bombing of the Why Not Club was an act associated with a political objective committed during the course of the conflicts of the past. The bombing was a counter-attack in response to a number of bombings that had recently been carried out by the ANC. The evidence of the 3rd Applicant, that he had reliable information from a person arrested in regard to the Café Zurich bombing that the Why Not Club was frequented by members of MK and ANC supporters stands uncontradicted and is accepted, as too his evidence that the mines were placed in such a position as to minimise the causing of death.
With regard to the 5th Applicant, it is clear that although he disassociated himself from the operation, he nevertheless is not free of having committed an offence. He at all times was a policeman and allowed a crime to be conspired and carried out with his full knowledge and thereafter covered up the commission of the crime.
In the circumstances, all of the Applicants are GRANTED amnesty in respect of all offences and delicts committed by them, either directly or vicariously, in respect of the bombing of the Why Not Club on or about 22 September 1988, at Hillbrow, Johannesburg.
We are of the opinion that the following persons are victims: Michael Langa, Avhapani Joseph Nanebaneba, Molebogeng Audrey Tsholo, Nonhlanhla Lushaba, Wendy Bhunde, Eric Ngema, Thomas Ngema, Emanuel Langa, Virginia Ndau Venda, Welcome Bengu, Mervyn Resant, Graham Dedericks and other persons who were present in the Why Not Club at the time of the explosion whose names are not known to the Committee. This matter is referred to the Committee on Reparation and Rehabilitation for its consideration.
SIGNED AT CAPE TOWN THIS 30TH DAY OF JANUARY 2001
JDUGE S MILLER
A/J C DE JAGER
ADV S SIGODI
