DECISION
These are applications for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act, No.34 of 1995.
The applicants, who were all members of the South African Police at the time of the occurrence of the events referred to herein, are seeking amnesty for offences arising out of an incident which took place on or about 5 march 1986 in Atteridgeville, Pretoria.
On that particular day the home of the Masukus at 44 Mashifane Street was attacked with petrol bombs. As a result of the injuries which she sustained in the attack, Esther Masuku died. Four other occupants of the home were nearly injured. These were Ezekiel Oupa Masuku, his three younger brothers, Thabo, Ndumasi and Clifford. The attack was directed at Oupa Masuku who was identified as a political enemy of the State.
We are merely stating the gist of the facts and shall deal with the evidence of each Applicant in seriatim.
Before the hearing commenced it was agreed between the legal representatives of the respective parties that Cronje, who is currently ill, would not give viva voce evidence and, instead, his affidavit would be accepted as his testimony in the matters. Needless to say, this is the most undesirable situation as such testimonies do not go through the rigorous test of cross-examination.
However, the gravamen of Cronje's affidavit is that during the time in question the Applicants worked under his command. He also states that because of the currently poor state of his health he is unable to recall which specific operations were authorised by him. He does, however, continue to say judging from the type of attacks that were carried out by the Applicants and the political profile of the targeted persons, he is of the view that these actions, albeit unlawful, fell within the scope of their duties as members of the security police.
The deponent continues to state that he therefore supports the Applicants' request for amnesty and the he takes full responsibility for their actions. Consequently, he is also seeking amnesty for the actions. So much so for Cronje's deposition.
Hechter testified that during the relevant time he was based in Pretoria where he worked under the command of Cronje. He was in charge of a team of operatives who occasionally went out at night to attack people whom they saw as enemies of the previous government. It was their task to defend that government. He further states that he was involved in so many incidents in which political activists' homes were petrol bombed at night that he is unable to recall this particular incident viz. the incident of the evening of 5 March 1986 when the house of Oupa Masuku was attacked.
However, he accepts the version of his co-Applicants that he was involved in the incident. He states that it is because after he read the application of Coetser he recalled that the modus operandi, which according to Coetser was used in the attack, was the same as that which he used to use when he carried out attacks in those years. (We shall deal with the evidence of Coetser in due course.)
He accepts responsibility for the actions attributed to him and is thus seeking amnesty. It has been brought to the Applicant's attention that his co-Applicants are not seeking amnesty on his behalf and that he as an applicant in the matter has an obligation in terms of the Act to confess an offences) or omission(s) which he committed and the political objective he sought to achieve with his actions. To this Hechter replied as follows:
"I understand, Chairperson. Unfortunately I cannot add to that. I would have been physically in control, I would have been physically on the scene. The modus operandi was that I personally would have had that bomb in my hands physically and a person with me would have accompanied me, we would have placed the bomb, I would have placed it myself, and then I would have run away after I had set the bomb.
That was the modus operandi.
If it was different in this regard, I am not able to tell you, but I do believe that it would have been. I myself would have gone, I would have been there myself, I would not have sent any other persons. I was there physically myself, and I do accept the responsibility thereof, that I was there and I placed the bomb there.
I am not saying other people did it, but I physically myself did it. Someone was with me, but I cannot recall who it was. I cannot even recall that we were at a specific house. For example, I would never be able to find that same house again if I had to go there. I do not know where it is at all.
At that stage I was familiar, all the source reports came through me, it came to my desk, I saw who the activists were, I saw where they lived and as the reports came through I formed an image of who those persons were and then I went out and during the day I went and had a look where this particular residence was. Two days or the evening or whatever the case may be, later, I would go to this residence during the night, usually after twelve I would go to this residence, and whatever the case may be, I set it alight or placed the bomb, depending on how active the member was or the person was, or the person who was tasked. If it was a smaller activist and if it was a greater activist like Masuku - I have to refer to the normal operation, I cannot recall the detail there of it. I can see in Oupa's statement itself, where he says how great an activist he was. I cannot recall him at all. I might bump into him and I do not know who he is, although I knew what he looked like back then. That is my problem now. But as I have said, I myself would have been there, if the other Applicants place me there, then I accept it because that type of conduct was done by myself. I was in command of the branch, that was my conduct and I did it myself then."
(We shall later revert to this aspect of the matter when we evaluate and analyse all the evidence, relevant facts and information.) There is no dispute that for many years Oupa Masuku was an activist of prominence in Atteridgeville, Pretoria. In his statement Oupa states that for many years he was a member of the Atteridgeville Youth Organisation. Oupa had been detained on several occasions during his youth days and he also participated in numerous other organisations which opposed the previous government. All these arrests and detentions could not deter him to desist from his political activities.
A newspaper report, Sowetan March 6, 1986, which was part of the bundle was brought to Hechter's attention but it still could not help him to recall the Masukus, what specific role they played in political organisations and what information exactly was available on their activities from police informants. Hechter, having read the article, imagined that they would have adopted the attitude that the Masukus be taught a lesson. All this is no direct evidence as he is only surmising from the report what the police reaction would have been to people of the given profile.
According to the report Esther Modiphoro was a member of the Saulsville Atteridgeville Women's Organisation. This is not admitted by Oupa, the son of the deceased.
Hechter, because of the memory quagmire he is in, accepts Johannes Jacobus Viktor's (Jnr) evidence that at the relevant time he (Viktor) was the commander of the Mamelodi unrest Investigation Unit and that due to the nature of such investigations he was working very closely with Hechter's unit, hence on the day he was involved in the attack on the Masuku family.
He also accepts his further evidence that in those days in Atteridgeville, Mamelodi and other black townships in the Pretoria area there were many incidents of petrol bomb explosions, political murders ("necklacing"), widespread intimidation and damage to property. He agrees with Victor's evidence that the ordinary laws of the country were inadequate to deal with the situation that existed and that if an activist was detained he would subsequently become a hero. Instead of halting their political activities ex-detainees would be more involved in the activities and programmes of the anti-apartheid organisations. Hechter states that his memory about this incident is so obscure that he is unable to testify as to whether or not at the time of the attack they believed that Oupa Masuku was at home. He states that they would have assumed that he was there because the attack would have been directed at him.
Johannes Jacobus Viktor (Jnr) testified that between February and May 1986 he was involved in an extensive number of attacks on activists' houses in the Pretoria area. There were approximately thirty (30) petrol bomb attacks and about ten (10) bomb attacks with manufactured bomb devices. As already mentioned, at the time he was the commander of the Mamelodi Unrest Investigating Unit and in this capacity worked very closely with the NTVL Regional Security branch, primarily Hechter's unit.
He then confirms Hechter's evidence regarding the political context within which the incident took place. He avers that the orders to wage attacks and counter-attacks on activists would frequently come from Brigadier Cronje who relayed them through Hechter, but at other times they came from Hechter directly.
Viktor further testified that in many of these operations he worked with Captain van Jaarsveld, Tiny Coetser, Joe Mamasela and Hechter. However, van Jaarsveld was not present at the house of the Masuku family when it was attacked.
He avers that he suffers from PTSD and that he is unable to recall all the relevant facts. He relies on the testimonies of other Applicants. For example he states that -
"I have now been informed that shrapnel was placed in the explosive device which exploded at the Masuku residence...."
According to Viktor the purpose was to intimidate and not to kill Masuku and if they wanted to do so there were other methods of attack which were available. However, they were quite aware that innocent persons could be fatally injured. Until the moment he read Coetser's application he was not aware that someone was killed in the operation.
He states that he does not agree with Coetser's impression and understanding of the statement that was made by Brigadier Viktor (Snr), his father, that activists must be killed to coerce them to stop their actions against the government. He, like Hechter, left the meeting with the impression that they were to put pressure on activists by intimidating them into passiveness.
He further testified that at the time Brigadier Viktor (Snr) was part of the Counter-Insurgency Unity; he was a detective and Hechter and Coetzer were security police officers. There was thus no direct line of command from Brigadier Viktor. The latter was not in a position to give them orders. Although he does not pertinently remember the Masuku incident he accepts Coetser's statement that the target was Oupa Masuku and further that Esther Masuku as accidentally killed. In this regard it is important to mention that Viktor's evidence about dogs which he says were barking incessantly. This is consonant with Oupa Masuku's statement that dogs were barking frantically before they heard a loud bang on the window.
We have already alluded to Coetser's version of the events which is briefly as follows. On the evening in question he, Hechter, Viktor and an unknown black policeman went to the house of Oupa Masuku. He states that he was the driver and the aim was to torch the place with explosives. Hechter had provided these. On their arrival Hechter and Viktor got out of the vehicle and threw the explosives at the window. He and the black policeman stood near the vehicle. They were watching out in case a disruption occurred. As they were leaving the area the bombs exploded. The next day he heard that the mother of Oupa Masuku had died as a result of injuries which she sustained.
It has been suggested by the opposition that amnesty should not be granted for the killing of Esther Masuku because she was not an activist and, further, that Oupa Masuku was the only member of the household who participated in political activities. The opposition is also based on the fact that Oupa's younger brothers, Thabo, Ndumani and Clifford were nearly killed in the explosion. They only sustained slight shrapnel injuries whilst Oupa was seriously injured.
After considering the matter we are of the view that the Applicants have complied with the requirements of the Act. It is quite clear to the Committee that the incident occurred as a result of the conflict of the past. It is common cause that Oupa Masuku at whom the attack was directed was a prominent activist in Atteridgeville. During the course of the violent conflict of the past political activists and members of the security police were fighting each other and in many of these conflicts innocent bystanders would be caught up in the crossfire. It has been suggested that the killing of Esther Masuku cannot pass the test of proportionality if the objective, according to the Applicants, was to intimidate Oupa Masuku to refrain from his activities. We find ourselves unable to agree with this proposition. There is no evidence that it was the aim of the applicants to kill Esther Masuku but what is clear is that the Applicants foresaw the possibility of people in her position being injured or even killed but nevertheless proceeded with the attack. We have come across many similar cases in the amnesty process in which applicants were members of the former liberation movements.
In the result amnesty if GRANTED to all the Applicants for the following:
1. The murder of Madiphoso Esther Masuku;
2. The attempted murders of Ezekiel Oupa Masuku, Thabo Masuku, Ndumani Masuku and Clifford Masuku;
3. Arson in respect of burning house no.44 Mashifane Street, Atteridgeville, on or about 5 March 1986;
4. Defeating the ends of justice;
5. Any offence in contravention of the provisions of the Explosives Act;
6. Any offence or delict flowing from the incident.
We are further of the opinion that Oupa Masuku, Esther Masuku, Thabo Masuku, Ndumani Masuku and Clifford Masuku are victims as defined in the Act and their names are being forwarded to the Reparation and Rehabilitation Committee for its consideration.
Signed at Cape Town on the 31st Day of May 2001
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JUDGE J MOTATA
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ADV N SANDI
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MR W MALAN
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