DECISION
These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act") by former members of the South African Police ("SAP") who are herein referred to by their surnames. The matter relates to the killing of Eustice "Bimbo" Madikela, Ntshingo Mataboge (referred to as "Matubane" in the application forms) and Fanyana Nhlapo (collectively referred to as "the deceased") and the attempted killing of Zandisile Musi ("Musi") in an explosion at Krugersdorp on or about 15 February 1982 ("the incident"). The applications were opposed.
The circumstances relating to the incident are largely common cause and can be set out briefly. Mfalapitsa was an askari, which is the term used to describe erstwhile members of the liberation movements, particularly the African National Congress ("ANC"), who had joined the SAP and were working against their former comrades. Before his defection, he had a close relationship with the two elder brothers of Musi who served with him in Umkhonto we Sizwe ("MK"), the military wing of the ANC, in exile. After Mfalapitsa joined the SAP, he and Musi established contact. Musi was a member of the Congress of South African Students ("Cosas"), a popular national student movement active at secondary schools and associated with the ANC at the time. He was desirous of leaving the country to join the ANC in exile with a group of his comrades. His Cosas membership was unknown to Mfalapitsa. He explored the possibilities of leaving the country with Mfalapitsa whom he erroneously still regarded as a member of MK. Mfalapitsa's defection was a closely guarded secret. He was in fact stationed at Vlakplaas, a secret security police base, at the time. Mfalapitsa reported his discussion with Musi to Coetzee, his superior at Vlakplaas. Mfalapitsa was in due course ordered to lure Musi and the deceased to a pumphouse at a mine near Krugersdorp, under the pretence of wanting to give them military training. Here they would be killed in an explosion under circumstances which would create the false impression that they blew themselves up while undergoing military training. The order emanated from senior officers within the SAP and was conveyed to Coetzee by his superior, Schoon. Coetzee arranged with Rorich, who was a SAP explosives expert, to place the explosives inside the pumphouse and to detonate them on the signal of Coetzee. Grobbelaar had to accompany Coetzee on the mission and act as a look-out. These were in fact eventually the respective roles played by each one of the Applicants in the incident.
There were material disputes of fact between the versions of Coetzee and Mfalapitsa which need to be dealt with. According to Coetzee's written statement, which was confirmed in his evidence, Mfalapitsa reported to Coetzee that he had met Musi. According to this report, Musi had indicated to Mfalapitsa that he and three other Cosas members intended to kill a member of the security police, one Nkosi, and that Mfalapitsa should train them in the use of armaments ("wapentuig") and supply them with arms ("wapens"). On the instructions of Schoon he advised Mfalapitsa to attempt to persuade the group to abandon their plan. Some time prior to the incident the group produced a sketch plan relating to the planned attacks. This version was contradicted in the evidence of Mfalapitsa. According to Mfalapitsa's testimony, Musi indicated to him at their first meeting that Musi and his friends intended to leave the country and that Mfalapitsa should assist them to do so. The group wanted to leave the country in order to receive military training. There was never any question of attacking anyone at that stage. Mfalapitsa reported this to Coetzee who indicated that Mfalapitsa should dissuade the group from leaving the country. Mfalapitsa should also attempt to ascertain whether the group had any specific reason for wanting to receive military training and whether they had already identified any targets. In the latter event Mfalapitsa should offer to give the group military training. Mfalapitsa then had further meetings with Musi and managed to persuade him not to leave the country but settle for local training which would be given by Mfalapitsa. When asked whether they had any specific targets, Musi indicated that they wanted to attack Nkosi and a community councillor, one Matsidisa who was one of the teachers at a primary school which Mfalapitsa attended. Mfalapitsa reported back to Coetzee on this discussion. Coetzee instructed Mfalapitsa to arrange a specific date for the military training when the group would in fact be trapped. Mfalapitsa made the necessary arrangements. On the appointed day he collected the group during the evening in a vehicle driven by a fellow askari, Joe Mamasela, and conveyed them to the mine in the vicinity of Krugersdorp. They showed a sketch of the houses to be attacked to Mfalapitsa. The group was lured into the pumphouse on the mine where Mfalapitsa pretended to be giving them military training. As arranged with his handlers, Mfalapitsa left the pumphouse at one stage under the pretext of wanting to fetch more arms from the vehicle. Once he was clear of the pumphouse the explosives inside were detonated.
In evaluating the respective versions of Coetzee and Mfalapitsa in regard to the issues in dispute between them, we bear in mind that Mfalapitsa is the only Applicant who had direct contact with Musi. We find nothing in his testimony or demeanour which would justify his evidence being rejected on these issues. His version that he would have raised suspicions is he had attempted to dissuade Musi from attacking Nkosi as alleged by Coetzee, is highly probable. He in fact succeeded in persuading Musi not to leave the country, which was the only issue raised by Musi in their discussions. Coetzee on the other hand was testifying in this regard on what Mfalapitsa allegedly conveyed to him in regard to the discussions with Musi. The latter corroborates Mfalapitsa in regard to the fact that he only informed Mfalapitsa that he and his comrades had "intentions of crossing the border and joining the liberation movement and later become members of ANC". He indicated that part of their intention "of going outside the borders of the country [was] to receive military training". Mfalapitsa's evidence was not seriously attacked on behalf of Coetzee. Attempts were rather made to argue that the versions could somehow be reconciled. We accordingly accept the version of Mfalapitsa as truthful insofar as it concerns the issues in dispute between himself and Coetzee.
There were also some disputes between the versions of Mfalapitsa and Musi, particularly insofar as the latter's intentions to attack Nkosi and Matsidisa and the existence of a sketch plan concerning these targets, are concerned. We are prepared to accept, without deciding, for purposes of this decision that Musi indicated to Mfalapitsa that Nkosi and Matsidisa are targets for attack and that Musi's group produced a sketch plan concerning the intended attacks on the day of the incident as testified by Mfalapitsa. We accordingly proceed to deal with the matter on that basis.
One of the crucial requirements of the Act which must be considered in deciding the applications is whether the offence in question constitutes an act associated with a political objective. In our view this issue is determinative of the matter and it obviates the need to deal with the other requirements of the Act. The applications shall accordingly be evaluated against the provisions of section 20(2) and (3) which are relevant in this regard. In view of the decision which we have reached on the matter we will assume, without deciding, that the applications comply with the locus standi requirements set out in section 20(2), although the case, particularly of Mfalapitsa, is dubious on this aspect.
Insofar as the provisions of section 20(3) are concerned, it should be pointed out that we are required to consider the relevant facts of the matter in order to be able to apply the relevant criteria to the applications. On the basis set out above, the relevant facts for the purposes of section 20(3) could be summarised as follows. The victims in the matter are four youths who were ordinary members of Cosas when they met Mfalapitsa who was at all material times unaware of such membership. They believed that he was still a member of MK who had earlier left the country together with two of the elder brothers of one of the victims, Musi. Musi indicated to Mfalapitsa that the group intended also to leave the country to join the liberation movement and undergo military training. He enlisted Mfalapitsa's assistance in regard to the group's intention to leave the country. After having reported the matter to his superior and on the latter's instructions, Mfalapitsa persuaded the group not to leave the country and instead offered to give them military training. This offer was unsolicited and was a ruse intended to lure the group to a secluded spot where they would be killed with explosives. Within a few days after Mfalapitsa's first discussion with Musi, three of the youths were killed and Musi very seriously injured in a planned explosion caused by some of the Applicants under the guise that the victims were being given military training. The three deceased were unknown to Mfalapitsa and the other Applicants before the day of the incident. No formal investigation was launched into the matter or the backgrounds of the intended victims prior to the incident. On the instructions of Coetzee, Mfalapitsa elicited information from Musi concerning targets which the group intended attacking. In the process he obtained the names of Nkosi and Matsidisa and was shown a sketch plan relating to the intended attacks, on the day of the incident.
We are enjoined by section 20(3) to consider a range of criteria in determining whether the incident in question constitutes an act associated with a political objective. In this process we also have to take into account the criteria which were applied in the repealed indemnity legislation in accordance with the provisions of section 20(4). In our view this does not require a piecemeal analysis but rather a holistic approach in terms whereof we should consider the relevant facts in the light of the applicable criteria in order to determine whether the applications comply with the requirements of the Act. We intend to now embark upon that course.
The stated motive for the murders and attempted murder was basically to protect the lives of Nkosi and Matsidisa and other possible targets of an attack by the victims of the incident. This was in turn linked to the broader objective of maintaining the previous regime which is dealt with more fully below. It is relevant in this regard to point out that there was scant evidence concerning these planned attacks. Mfalapitsa testified that he elicited this information from Musi who in turn denied this. As pointed out above, we accept for present purposes that these victims were referred to by Musi. On the accepted version there was no reference to any planned attacks until Mfalapitsa elicited the information concerning Nkosi and Matsidisa. It has not been established that these attacks were imminent. On Mfalapitsa's version these were possible victims identified for attack after Musi's group had received military training. The evidence concerning the existence of a sketch plan is equally inconclusive. As pointed out above we accept, without deciding, that the sketch plan was only shown to Mfalapitsa on the day of the incident. Such a plan would have served little purpose to Musi and his group who were familiar with the particular surroundings. They would certainly not have needed a sketch plan in order to be able to attack Nkosi and Matsidisa whose identities and whereabouts would have been known to them. On the probabilities, the group would only have produced a plan of this nature at the request and upon the advice of Mfalapitsa. Accordingly in our view, there is no merit in Applicants' suggestion that the existence of the sketch plan was indicative of the advanced nature of the group's planning and the seriousness of their intent. It is more probable that the inexperienced group of youths identified Nkosi and Matsidisa as possible targets and produced a sketch plan after they were prompted by their discussions with Mfalapitsa. There is no credible indication that they volunteered any of this information. The group clearly only had vague notions of going into exile to support the liberation struggle without any wherewithal to realise this objective at the stage of the first contact with Mfalapitsa. This was in fact the only issue mentioned to Mfalapitsa in the initial discussions. The question whether the attacks were imminent is dealt with further in the context of the issue of proportionality.
We take into account that the incident occurred in the context of the political conflict between the government and liberation movements when perceived supporters of the apartheid regime such as the police and community councillors, were targets of attack by liberation movements. We also have regard to the fact that the offences in question are very serious, namely the murder of three youths who were unknown to the perpetrators and the attempted murder of Musi. In the latter case, the only relevant knowledge at the disposal of the police at the time was that the Musi family had links to the ANC as a result of Musi's elder brothers having joined the ANC in exile. There was no suggestion that the police had any specific interest in Musi prior to this incident. The gravity of the offence is exemplified by the fact that three youths lost their lives and Musi was very seriously injured in a pre-meditated and well-planned explosion under circumstances which would have supported a false suggestion that the victims inflicted the injuries upon themselves while engaged in covert military training. We accept that the offences were committed on orders from superiors within the SAP.
According to the Applicants, their political objective in committing the offences was, broadly speaking, to protect and maintain the previous regime ("beskerming en instandhouding van die vorige regeringsbestel"). Although Mfalapitsa's position as an askari was much more tenuous in this regard, we would accept for present purposes that this consideration also applied to him. We are required by section 20(3)(f) to consider the proximity and directness of the relationship between the offences and this objective as well as the proportionality of the offences to this objective. We take into account in this regard that the victims were youths whose political profiles or roles were completely unknown to the Applicants, save for Musi's family's links with the ANC as referred to above. The fact that the victims were ordinary members of Cosas, was not even known to Mfalapitsa who was the only Applicant who had direct contact with the victims. There was, moreover, no persuasive evidence that the victims were involved in an imminent attack upon Nkosi or Matsidisa or any other person. At best for Applicants, the evidence of Mfalapitsa indicated that the victims would have attacked these targets once they had received military training in exile and were possibly later deployed in the area where they hailed from. The group had no access to arms or to military training hence the initial approach to Mfalapitsa. We also take into account that Applicants neglected to do any investigations into the matter before summarily eliminating the victims. No steps were considered to persuade the group to abandon their plans to obtain military training, especially in view of the success of dissuading them from leaving the country. The idea to give the group military training internally in fact emanated from the police. Mfalapitsa was in a position to exercise considerable influence upon the decisions and actions of the group. His contact with the group would have enabled the police to keep abreast of their intentions and plans. There was no reason why the group could not have been monitored until a full and more reliable assessment could be made of the actual threat posed by the group, before precipitately deciding upon such radical action as summarily killing them.
We have considered the arguments raised by Applicants which apparently militated against opting for arresting and arraigning the group. We find Applicants' version in this regard wholly unpersuasive, that this option would necessarily have led to Mfalapitsa being exposed as an askari. In fact, Applicants do concede that the group could have been charged and convicted of the unlawful possession of arms, ammunition and explosives without the need for Mfalapitsa to testify against them. Applicants' objection to this course of action was that they were not assured that the group would receive long prison sentences. They also argued that there was a danger that the group could possibly have disclosed that Mfalapitsa supplied the armaments, which would necessarily have led to his being unmasked as an askari. There is no merit in the latter suggestion. The prospects of the group implicating Mfalapitsa would have been relatively slim and even if they were to do so they would have referred to him as MK member. They were unaware of the fact that Mfalapitsa was an askari and the police themselves would obviously not have unmasked him. There was accordingly no real prospect of this happening on the remote possibility that the group might have implicated him. Insofar as the former consideration concerning a possible inadequate prison sentence is concerned, it needs to be pointed out that the offences in question were serious ones and would have been so regarded by the courts at the time. The real likelihood of heavy sentences being imposed upon conviction, was therefore not excluded. There was accordingly no reasonable basis for discounting this fact out of hand in the circumstances of the case and to opt for illegal activity with such drastic consequences. The option of arrest and arraignment was thus in our view available to Applicants as an effective, legal and far less drastic option than settling for murder. There was also the further available avenue of acting against the group in terms of the security legislation which allowed, amongst other things, for preventative detention. This option was not explicitly excluded in the applications. Applicants' stated aversion to arresting the group similarly does not effectively exclude the latter option which was also open to the Applicants in the circumstances. In our view the option to eliminate the group could never justifiably have been adopted in the circumstances of this case, until the effect of these less drastic measures was tested and fully and properly assessed. None of the victims were seasoned activists or hardened revolutionaries. The probability that these alternative options would have had the desired effect can therefore not be excluded out of hand or be considered so remote that the only realistic option that remained was to murder the members of the group. It needs to be pointed out that we are mindful of the fact that we have to adopt a realistic approach in assessing the options available to the Applicants and should not allow ourselves to be unduly influenced by the wisdom of hindsight. We bear all of these considerations in mind.
Having carefully considered the matter, we are not satisfied that there was any direct or proximate relationship or nexus between the offences and the political objective which the Applicants allegedly pursued. The alleged relationship was speculative and fanciful in our view. The offences were, moreover, wholly disproportionate in the circumstances. Applicants failed in particular to lay any convincing basis for excluding the adoption of the less drastic measures which were at their disposal and which are referred to above. To summarily murder three members of the group and very seriously injure Musi within a few days of the first discussion with Mfalapitsa, fall way short of the actions which could be justified in the instant case in terms of the criteria set out in section 20(3)(f).
In the circumstances the applications are REFUSED.
DATED AT CAPE TOWN THIS DAY OF 2001.
D POTGIETER, A J
ADV L GCABASHE
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