: DECISION
The applications of the Applicants listed above, all former members of the Security Branch of the former South African Police in Natal, flow from actions related to the deaths of two African National Congress operatives MBUSO SHABALALA and CHARLES NDABA in or near Durban during or about July 1990. At the time of the incident which forms the subject matter of this hearing, the Applicant Steyn was a Brigadier and second-in-command of the Natal Branch of the South African Police. The Applicant, Botha, was in charge of the Intelligence component in the region of Port Natal under the overall command of Col Andy Taylor, now deceased. The other Applicants were all working under the direct command of Botha.
The Panel at the inception of the hearing was under the chairmanship of Judge H Mall who has since passed away. Judge A Wilson took over from him halfway through the hearing and it was agreed between the Panel and the legal representatives of the parties concerned that the hearing would not start anew but in the event of Judge Mall recovering from the illness, he would rejoin the Panel. This did not however materialise and the decision in this matter is the decision of the three undersigned Members.
The Applicants apply for amnesty for:
a) The unlawful arrest of Mbuso Shabalala and the unlawful detention of Charles Ndaba and Mbuso Shabalala;
b) The murders of Charles Ndaba and Mbuso Shabalala;
c) The contravention of legislation pertaining to the use, possession and conveyance of weapons and/or ammunition;
d) Defeating the ends of justice;
e) The unlawful disposal of the human remains of Charles Ndaba and Mbuso Shabalala;
f) The failure to report the deaths of Charles Ndaba and Mbuso Shabalala;
g) Malicious damage to the Toyota Corolla motor vehicle, the property of Mbuso Shabalala;
h) Housebreaking and entering with the intent to commit theft of documentation and equipment from safe houses of the African National Congress used in a secret military operation termed "Operation Vula";
i) Any act, omission, offence or delict, committed by the Applicants which may be directly or indirectly associated with all the above.
The Applicants all testified at the hearing under oath. The members of the Ndaba and Shabalala families opposed the applications. Mr S Maharaj, at the time of the incident the commander of "Operation Vula", was called as a witness on their behalf and also testified under oath. He testified about the status of the two deceased within the structures of the African National Congress (the ANC) more particularly their involvement in "Operation Vula".
Briefly the evidence of the Applicants was as follows. Charles Ndaba was an MK commander involved in "Operation Vula" and according to Botha a double agent and police informer handled by him (Botha). Ndaba was arrested by an askari, Vusi Ninela, who did not know that he was an informer. Botha after the arrest informed his co-Applicants of the status of Ndaba as an informer. About 4 to 7 weeks prior to his arrest Ndaba had conveyed to Botha that an operation had been planned to launch a project for a mass revolt in the country and that prominent ANC leaders had infiltrated the country. Ndaba himself was to be involved. According to Both he did not realise the full import of the information Ndaba had given him at that time. His focus was very much on information, which could help with preventative actions against political violence.
On the day of his arrest by Ninela, Ndaba had indicated to Botha that he was to meet Shabalala, who was hid commander at that time, on that same afternoon. It was decided that the meeting would go ahead and that the Security Branch policemen would monitor the meeting since Ndaba was concerned that word of his arrest may have leaked out and that he might be in danger. Although the purpose of letting the meeting go ahead was not to arrest Shabalala but to gain more information it was agreed that if Ndaba felt that he was in danger he would give a pre-arranged signal and that Shabalala would then be arrested. The meeting took place, Ndaba apparently lost his nerve, the signal was given and the arrest was made in such a way that it appeared that Ndaba was also arrested. All the Applicants with the exception of Steyn were involved in this.
Du Preez, Wasserman and Van der Westhuizen took Shabalala to a safe house on a farm near Verulam. Ndaba drove there with Botha. Ndaba expressed fear that if the ANC became aware of his arrest that morning they would suspect him of being an informer. Botha explained the problem that had arisen from the arrest of Shabalala. Shabalala could not be prosecuted for any offence because the evidence would have to come from Ndaba whose identity they wanted to protect. Shabalala could also not be released for fear of him informing the ANC that he suspected Ndaba of working for the Security Branch. He was therefore unlawfully detained at the safe house. At this stage Botha had already considered the elimination of Shabalala as a possible means of protecting Ndaba.
Steyn was informed of Shabalala's arrest. At the safe house Botha had further discussions with Ndaba on how to make ... to place him back in the operation safely. Ndaba suggested that he should stay in the safe house for a few more days and Botha agreed that that would give them more time to monitor the situation and assess Ndaba's safety. Botha then gave permission for Ndaba to be questioned by members of the Security Branch Unit C-20 who were busy doing certain photograph identifications and interrogation of other informers at the safe house. He thought they had also spoken to Shabalala.
During the time it became clear to Botha that the impact and extent of "Operation Vula" was far greater than he had previously realised. He and Du Preez then gained entry into the two safe houses that Ndaba had described to Botha and they confiscated documents and computer print-outs which would later prove the importance and scope of "Operation Vula".
The information that was obtained was considered so important that Botha and Steyn went to Pretoria on 10 July to brief their seniors and the Commissioner of Police, Gen JV van der Merwe. It was decided that further arrests would only take place once the Government was informed. Later numerous arrests took place and although the impression was created that Ndaba was also arrested Shabalala accused Ndaba of being a traitor causing Ndaba to begin to fear for his safety as an informer. After Botha had told him that the operatives of "Operation Vula" were not to be prosecuted he became unwilling to cooperate further. He was offered money to start a new life abroad but indicated that he would rather hand himself over to the ANC. Botha informed Steyn of Ndaba's attitude and was told by Steyn to use any means to solve the problem. According to Botha that stage it was supposed by both him and Steyn that if Ndaba could not be brought to other insights both he and Shabalala would have to be eliminated.
Botha felt that it would endanger the whole security network of the Security Branch in Durban and expose other informers in Ndaba returned to the ANC. He also believed that should Shabalala be released even if Ndaba's safety would no longer be a consideration if he were to be eliminated, the same would happen. Shabalala would inform the ANC of his abduction and detention and if he alone would be released would deduced that Ndaba had been eliminated.
The mere fact of such an allegation would have created embarrassment for the National Party during the time of negotiations. Botha considered various options as to how to deal with the matter but in the end decided that the best way to protect the interests of the Security Branch, the Police and the National Party would be to eliminate both Ndaba and Shabalala. he tried to contact Steyn to inform him of this but he was not available and he concluded that Steyn had departed for Pretoria for further information and planning. He then discussed the problem and various options with Du Preez his next in rank and they came to the conclusion that the best option would be to eliminate both. Wasserman and Van der Westhuizen were then instructed to assist.
Ndaba and Shabalala were told that they were going to be transferred to another safe house. Instead botha, Du Preez, Wasserman and Van der Westhuizen took them to a spot near the Tugela River mouth. There they were shot by Du Preez and Botha respectively. Their bodies were wrapped in hessian, tied to two concrete poles, and dumped into the river. The Applicants stayed for a while to make sure the bodies did not rise to the surface, cleared the area, wiped out their tracks with branches from the surrounding bushes, and returned to the safe house.
At the safe house the clothes of the victims were burnt. Petrol was siphoned from a motor vehicle, and the Corolla that belonged to Shabalala was burnt at a spot on the Ndwedwe Road about 30km from Verulam. On the Monday Botha reported to Steyn what had happened. Steyn ratified and associated himself with everything that had transpired. The bodies of the deceased were never found.
Mr Maharaj testified that he did not believe Ndaba to have been a police informer because a very thorough screening of persons involved in "Operation Vula" took place. He also in his evidence referred to documentation of the Security Police to show that it was improbable that Mr Ndaba was an informer for them. His evidence in this regard was in the opinion of the Committee more of a speculative than factual nature and not proof of the fact that Ndaba was not an informer. He conceded in the end that he could not prove definitively that Ndaba was not Botha's informer. (Page 1175 of the record). He finally also conceded that the information that enabled the Security branch to smash "Operation Vula" was obtained from Ndaba and or Shabalala but alleged that it was "under torture". (Page 1178 of the record).
On the evidence outlined above, despite certain discrepancies in the evidence of the Applicants, the Committee finds that the acts and offences committed by them were acts associated with a political objective in the context of the political conflict of the past as envisaged by Section 20 of The Promotion of National Unity and Reconciliation Act, 34 of 1995, hereinafter referred to as "the Act".
The Applicants all comply with the formalities of the Act and the main issue to be decided is whether they have made a full disclosure of all relevant facts. This mainly centres around the issue of whether Ndaba was indeed a police informer and to a lesser extent the question as to whether Shabalala's vehicle was indeed destroyed as testified by the Applicants. As regards the destruction of the vehicle the Committee is unable to make an adverse finding against the Applicants since the suggestion that they are not telling the truth in this regard is contained in written statements the authors of which were not called to testify. Furthermore the Applicants Du Preez and Wasserman conceded that a blue Toyota Corolla similar to the one that belonged to Shabalala could have been cut up at a farm in Camperdown. They did however state categorically that it was not that of Shabalala.
It has already been indicated that the evidence of Mr Maharaj does serve to disprove that Mr Ndaba was an informer. This question has therefore to be decided on the evidence of the Applicants. Although there are some discrepancies in the evidence given by the Applicants these do not relate to the issue under discussion. Furthermore the discrepancies are not of a material nature and can generally be explained as being the result of a time lapse of some ten years since the occurrence of the incident and the resultant loss of memory or faulty reconstruction. The evidence presented to the Committee by the Applicants if factually of such a complex nature that it militates against a suspicion of fabrication. one would have expected a much more simplified story if they were not telling the truth and a more simplified story would have been more likely to be a made-up one. Their evidence was tested by extensive cross-examination and yet they did not falter in their version. There is no basis for a finding that the Applicants had not made a full disclosure of all relevant facts.
Accordingly amnesty is GRANTED to:
Johannes Albertus Steyn, Hendrik Johannes Petrus Botha, Salmon Johannes Gerhardus du Preez, Lawrence Gerald Wasserman and Casper Adriaan van der Westhuizen for all acts, omissions and offences flowing from or directly associated with the murder of Charles Ndaba and Mbuso Shabalala on or about 12 July 1990, at or near the Tugela River Mouth, KwaZulu Natal.
Hendrik Johannes Petrus Botha and Salmon Johannes Gerhardus du Preez for the breaking and entering with intent to steal and the theft of documentation and equipment at two ANC safe houses at or near Durban on or about 7 July 1990.
The Committee is of the opinion that the relatives and dependants of Mbuso Shabalala and Charles Ndaba are victims and they are referred to the Committee on Reparation and Rehabilitation for its consideration in terms of Section 22 of the Act.
SIGNED AT CAPE TOWN ON THIS 27TH DAY OF MARCH 2001
JUDGE A WILSON
ADV F BOSMAN
MR I LAX
