DECISION
I have read the decision as formulated by Miller J I hold a different view on both issues he refers to as contradictions related to the category of very important and material issues, that is:
1. The authorisation for the killing of the Deceased, and
2. The presence or otherwise of Frederik Johannes Pienaar at the scene of the murder of the Deceased.
Before commencing with discussing the specific issues I need to set out a frame for their consideration:-
The Act provides for the Amnesty Committee to consider applications by individuals who in the prescribed form apply for amnesty. In terms of Section 19 each application has to be considered individually and on its own merits. There is no provision for the Committee, if it so wishes, to consider applications jointly (Section 19 5(b). These provisions do not suspend the other provisions of Section 19. In the final analysis, however, each Applicant's application, taking account of all the evidence, has to be considered on its own merits.
As the process unfolded and the Committee became better organised, the practice developed to schedule hearings around incidents for which more than one applicant had applied for amnesty and to hear all the applicants on a specific incident in a single session, schedules for a number of days. As a result it often happened that a hearing degenerated in acrimonious and adversarial relationships between applicants and between legal representatives, causing extensive cross-examination on minutiae and non-material matters, where versions contradicted each other. More often than not, the Committee would simply dispense with the difficulty by finding contradictions and discrepancies to relate to non-material and therefore non-relevant matters, as has been done in the present decision, save for the two issues specified, ascribing them to memory loss or faulty constructions. There is in principle no reason whatsoever why, in a specific application, contradictions on material issues cannot also result from memory loss or faulty construction. Various decisions related to applications of Jan Hattingh Cronje (AM2773/96) and Jacques Hechter (AM2776/97) could be referred to as examples.
The Act (Section 20(1) enjoins the Committee to grant amnesty if it is satisfied that an applicant has complied with the provisions of Section 20(1)(a), (b) and (c). The Committee has consistently interpreted satisfied to suggest that an applicant's version of events has to be reasonably possibly true. It has consistently found that there is no onus of proof on an applicant, not even on a balance of probabilities. It is therefore, if one has to refer to a measure of any kind, as I understand it, more or less akin to the principle of reasonable doubt in a criminal case. If the Committee can therefore not find that an applicant's version is false beyond reasonable doubt, it should be satisfied that an applicant is entitled to amnesty.
The requirement of full disclosure of all relevant facts in my opinion has therefore to be interpreted as follows:-
* Relevant facts can only refer to facts that are material to an incident related to an application for amnesty;
* What is material is that which the Committee deems necessary to be disclosed in order for it to be satisfied;
* Full disclosure can only mean truthful disclosure of all relevant facts. It does not relate to accurate disclosure;
* If, in the event of contradictions existing between applicants (or an applicant and implicated parties or witnesses opposing the application) the Committee is satisfied that they can both reasonably possibly be true, (and that they have been truthful) the applicants should both (or all) be granted amnesty. Only if conflicting versions cannot survive side by side on the basis of both being truthful the Committee has to revert to finding the more probable version.
I now turn to the second issue, that is the presence of Pienaar or not at the scene of the killing of the Deceased.
Firstly, I am not of the opinion, on the evidence before us, that this is material to the application. On the version of the 3rd, 4th and 5th Applicants, Pienaar played no role whatsoever in the killing of the Deceased. He only directed them to drive to Nerston and to stop approximately 2 to 3 kilometres to the South of the border post. He did not handle the Deceased. He did not provide any equipment. He did not carry any of the equipment. He did not assist in any endeavour to prepare a grave nor to cover the body after the killing. They did in fact not place him at any specific spot related to the others at the scene. For all intents and purposes other than travelling with them and directing them where to stop, he was not at the scene.
I agree that there is no indication whatsoever that they had any reason to falsely implicate Pienaar. Were that so they would not have made a truthful disclosure and not entitled to amnesty. Were that so they would not have made a truthful disclosure and not entitled to amnesty. If, on the other hand, they believing Pienaar to have accompanied them had not disclosed as much with a view to protecting him, they would not have made a full disclosure and would likewise not have been entitled to amnesty. I am therefore satisfied that on this issue they have made a truthful disclosure.
I would not rule out the possibility that they may be genuinely mistaken about Pienaar's presence, them having been involved in a number of other incidents with him for which they all apply for amnesty.
The same goes for the 2nd Applicant. It can only be found that the 2nd Applicant has not made a full and truthful disclosure if the Committee is satisfied that on the evidence he is protecting Pienaar or seeking some benefit for himself by denying the presence of Pienaar. Pienaar himself corroborated the version of the 2nd Applicant. He vaguely remembers the incident as described by the 2nd Applicant. It was an insignificant event and not at all unusual in his life as commander of the Piet Retief Branch of the Security Police. They were both fully aware of the implication of Pienaar during the trial of the 2nd Applicant. They both applied for amnesty for a number of incidents of gross human rights violations in which the 2nd Applicant implicated Pienaar. There is no logical reason why the 2nd Applicant should protect Pienaar or deny his presence, given the nature of the other incidents for which Pienaar applied for amnesty, especially given his limited alleged involvement in the present incident. Miller J. in fact accepts that their version cannot "be rejected out of hand as being so incredible or unsatisfactory that it is untruthful." If the evidence adduced by the 3rd, 4th and 5th Applicants had not been forthcoming from other Applicants for amnesty, he would have been satisfied that the 2nd Applicant had made a truthful disclosure, more so given his finding that the version of the 2nd Applicant on the issue of authorisation of the killing is preferred. I content that it is under the circumstances wrong to revert to probabilities. Yet even if probabilities were to be considered:-
* It is not at all clear to me why one would not, travelling at night, rather travel on a clearly superior road such as the N17 to Piet Retief which is not much further from Vlakplaas than is Nerston via Amsterdam on the R65, which is an inferior road to the N17;
* Why given a return journey on the evidence of close to 8 hours one would not rather personally verify the most recent information than relying on finding a public telephone in Amsterdam, if the trade off is a return trip of 65 kilometres each way from Piet Retief to Nerston and back, which would take a little more than an additional hour.
* Why, if at 3 of the Applicants involved had a fair knowledge of the border, they would have involved Pienaar for "finding a suitable spot" for the killing.
In my view it is not possible to come to a finding on probabilities. It is, however, in my opinion not necessary to come to a finding on probabilities. The two version are indeed diametrically opposed. They cannot both be accurate. They are, in my opinion, on the evidence both truthful. The issue, in my opinion, is though not material and therefore simply not relevant.
I now turn to the issue relating to the authorisation of the abduction, assault and killing of the Deceased.
The summation of common cause facts as appears in the decision of Miller J. holds in effect that the events that took place on or about the 25th September 1985 occurred within a single day, in fact within a period of 10 hours or less. This was indeed the frame within which the evidence was presented. There was much evidence which was inconsistent with this 10 hours frame which on reflection did not receive the necessary scrutiny during the hearing.
This includes:-
* The 5th Applicant's evidence that they had returned from Josini already on the Sunday 22 September and that on Wednesday, at lunch with the 2nd, 3rd and 4th Applicants, the plan for the abduction was discussed.
* Evidence that on arrival in Krugersdorp the Askaris were dispersed into the township to track or trace the whereabout of Odirile Maponya, including evidence that they had been looking for Odirile Maponya in the townships before the actual day of the abduction.
* The evidence, both during the trial and at the hearing, that black members of C1 received their instructions from either the 2nd Applicant or the 3rd Applicant at Vlakplaas, both before their deployment to Krugersdorp after returning from Josini and on the morning of the actual abduction.
* The evidence of Daniel Maponya (and Zondi) at the trial that the Deceased and he himself were taken to Chamdor during September and asked about Odirile.
* The evidence of the 1st Applicant that he was under the impression that the events took place over a number of days as well as evidence that it was only later suggested to him that the Deceased be abducted.
* The evidence of the 2nd Applicant that he was called by the 3rd Applicant in Mafeking on the day before the abduction, that is on the 24th September and that he travelled from Mafeking to Krugersdorp on the morning of 25 September.
To be blunt, it is not only inconceivable and thus highly improbable but practically impossible for the events to have all occurred on the 25 September or within a single day:-
The contingent from Vlakplaas arriving on the morning of 25 September as a contingent, from Vlakplaas or from Josini, the 3rd Applicant meeting with Kleynhans and the 1st Applicant with no prior knowledge other than that they were to report for duty; being briefed by Kleynhans and/or the 1st Applicant that they were to trace Odirile Maponya; giving instructions to the Askaris and dispersing them into the Township; receiving feedback from them that they could find no source on or any connection to Odirile Maponya; sending the 7th Applicant into the United Bank to speak to the Deceased, receiving his feedback; speaking again with Kleynhans, the 3rd Applicant, suggesting an abduction; then advising the 2nd Applicant, awaiting his arrival from Mafeking, the 2nd Applicant arriving before lunch; the 6th Applicant, Nofomela and Nzimande being instructed to travel from Vlakplaas with the vehicles, number plates having been obscured, brought from Vlakplaas to do the abduction at 16h00 or 16h30. On this construction all happened from arrival at Krugersdorp to the execution of the abduction within approximately 8 hours.
The above perspective having prevailed at the hearing was caused probably by the 3rd Applicant relying on his recollection of in 1989 having seen a note in his pocket book under the date 25 September "Captain Kleynhans" or "Lieutenant Kleynhans" as the day he had, as instructed by the 2nd Applicant, to report for duty at Krugersdorp. Whatever caused such note to be made in his pocket book, accepting that such a note had indeed been made, it could not have referred to the date of reporting at Krugersdorp.
Probabilities favour a construction that the normal 3 weeks deployment of Vlakplaas units, in this present instance at Josini, was either schedules for 2 weeks only, or reduced to 2 weeks only, that the unit returned to Vlakplaas not later than Sunday the 22nd September and reported at Krugersdorp on Monday 23 September for a deployment of the unit in Krugersdorp. This would be the only time frame which could logically accommodate the facts of reporting for duty, instructing of the Askaris, their deployment into the townships, receiving their feedback somewhere in the afternoon or evening of Monday, sending the 7th Applicant into the United Bank on Tuesday to speak to the Deceased, then on Tuesday, probably in the late afternoon, suggesting an abduction and agreeing to proceed subject to the consent of the 2nd Applicant, phoning the 2nd Applicant in Mafeking (or Zeerust), the 2nd Applicant travelling from Mafeking to be able to arrive in Krugersdorp in the late morning/noon of Wednesday 25, his meeting with the 1st Applicant, preparations for vehicles and individuals to be brought from Vlakplaas, doing the necessary briefing and giving instructions and be ready to perpetrate the actual abduction at 16h00 or 16h30.
None of the Applicants who gave evidence even remotely created an impression that events followed one another at neck-breaking speed. To the contrary, the impression was that actions were duly considered and planned as if time was not of the essence.
I now turn to the specific issue of authorisation for the abduction, assault and killing of the Deceased.
The decision of Miller J. appears to reject the evidence of the 1st and 3rd Applicants on this issue and to find the evidence of the 2nd Applicant to reflect the true facts. I have a difficulty with this since on the evidence I would come to a different conclusion on a basis of probabilities. I will briefly deal with this infra.
The 1st and 3rd Applicants' evidence was to the effect that up to the time of the abduction, no order had been given or decision had been taken that the Deceased was to be killed.
The 1st Applicant was adamant that he had authorised the abduction and had assumed an assault, but having accepted (rightly or wrongly) that Vlakplaas would be taking control of the Deceased after his abduction, did not consider what would happen to the Deceased. He did not entertain the possibility that the Deceased might have to be killed. He merely accepted the suggestion of the 3rd Applicant to abduct the Deceased for an aggressive interrogation and accepts the responsibility for having authorised the abduction and resultant assault.
His application for amnesty for the killing of the Deceased is based on his omission to intervene when informed by Kleynhans at Vlakplaas, on the day following the abduction, that it had been decided to kill the Deceased to protect the identity of individuals and the Vlakplaas operation, to which replied that it was "not a problem" or it was "not my problem".
It seems to me that the evidence of the 1st Applicant is being rejected on a balance of probabilities mainly on account of his evidence related to:
(1) his not having considered the fate of the Deceased after interrogation,
(2) his visit to Vlakplaas and
(3) his words "it is not a problem" or "it is not my problem", being considered to be false.
As to the first of these three aspects it must be borne in mind that the 1st Applicant, save for the present incident, did not apply for amnesty for any gross human rights violation. The four other incidents for which he did apply were all committed following instructions from higher command and were so-called false flag operations. It is furthermore common cause that Vlakplaas had never before, nor after the present incident, been involved or deployed in activities of the Krugersdorp Security Branch. His only knowledge of Vlakplaas was from official communication and whatever Kleynhans had told him. Clearly he had no involvement in a culture of killings. I do, therefore, not agree that he would have considered the fate of the Deceased after interrogation. Whether he should have done so, is not relevant in the present instance. He clearly accepted from the official communication and Kleynhans' information and, to my mind, reasonably accepted under the circumstances, that Vlakplaas as specialist unit was taking control.
As to his meeting Kleynhans at Vlakplaas, his evidence in the absence of any other evidence to the contrary cannot be rejected. His evidence on his visit does not strike me as improbable, especially given Kleynhans' evidence at the trial of the 2nd Applicant, that he met with the 2nd Applicant at Vlakplaas on the day after the abduction. The fact that the 1st Applicant had not been observed at Vlakplaas on that day by any of the other Applicants, follows almost as a matter of course, given the evidence that all the black members had been sent to their homes by the 2nd Applicant and that the 2nd, 3rd and 5th Applicants only arrived later during the day while the 4th Applicant testified that he might not have been at the farm for all of the day.
As to the exact words used by the 1st Applicant when informed by Kleynhans that the deceased was to be killed, the 1st Applicant did not only mention that in his evidence-in-chief but had consistently held to a version that he could not remember his exact words. Evidence to that effect he had already given to a Committee of the TRC when giving evidence after having been called upon to do so in terms of Section 29. He himself raised the contradiction even before he had made application for amnesty. He testified consistently that he had agonized for his not having intervened at the time, trying to recall his exact words because of him possibly having been understood by Kleynhans to have sanctioned the killing of the Deceased. He consistently, though, testified to his recalling his state of mind having been to endeavour to remove himself as far as possible from what he had learnt was to happen.
The 3rd Applicant corroborated the version of the 1st Applicant. His only contradiction of the 1st Applicant was during the trial of the 2nd Applicant, excerpts having been quoted in the decision of Miller J.
Now during his testimony in chief at the trial the 3rd Applicant made it clear that he could not recall when they returned from Josini to Vlakplaas/Krugersdorp, that they might have first travelled to Vlakplaas and that they might have arrived at Krugersdorp before the day of the 25th September 1985. He testified that the purpose as told to him by Kleynhans and the 1st Applicant was to track down Odirile Maponya. He testified that at some stage the 7th Applicant was sent to the United Bank to speak to the Deceased and that when that did not bear any positive result, the plan to abduct the Deceased was conceived. This was first discussed with the 1st Applicant, Kleynhans and Dunkley and then when they agreed to go along, was the 2nd Applicant contacted who demanded everything to be put on hold pending his joining them in Krugersdorp.
The 3rd Applicant was not a good witness. Much of his evidence, if not most, was based on constructions. A reading of the trial record reveals that his evidence at the time was very much in the same vein, if not more so. Bearing in mind that he had to consider so many different version over a period of time, staring with his Denmark statement, having been involved in the Goldstone Commission, the trial of the 2nd Applicant and the present hearing, him being unclear on a number of issues, especially given his tendency to construction, is to be expected.
The first excerpt quoted by Miller J. refers to a discussion between the 3rd and 2nd Applicants and reflects the state of mind of the 3rd Applicant. He explicitly said that it was what he had foreseen might happen. It also confirms the culture from which he came to the incident, very different from that of the 1st Applicant, and it confirms his other evidence to the effect that such actions where not foreign to Vlakplaas conduct:
"Dit was die tendens gewees op daardie stadium."
The 1st Applicant when asked, still in his evidence-in-chief, what the decision in the office of the 1st Applicant was after the 2nd Applicant had arrived at Krugersdorp was "Daar is toe besluit ons gaan hom ontvoer. Die Generaal, ek kan nie sy woorde so spesifiek onthou nie, maar hy het nie gesę nee "okay", doen dit nie, hy het net toestemming gegee, hy het nie gesę nee, moet did nie doen nie".
And then later he testified:
"......want net na die aanranding wat ons nou besluit het "okay" on gaan hom noou weg vat ....."
The second quotation in the decision of Miller J. is from a statement taken from the 3rd Applicant's affidavit in Denmark and was quoted to the 3rd Applicant at the trial in cross-examination on behalf of the accused (the 2nd Applicant). It is important to note that during this cross-examination the 3rd Applicant had made a number of concessions regarding the presence of Dunkley, the day on which the 2nd Applicant was contacted and the planning of the abduction according to the version of the 5th Applicant.
But what is most important is that immediately following the last sentence "hy het gesę dat ons die saak volgens ons goeddunke moet hanteer", he continues:- "Ons het op 'n grypaksie besluit, met ander woorde dat ons Japie sou ontvoer".
There are quite a number of excerpts from the trial record that could be quoted to show that the evidence of the 3rd Applicant was often in accordance with his evidence at the amnesty hearing. The following should suffice:-
"U het nou besef kyk, hier het ons die man nou ontvoer, ons het hom al kwaai aangerand. Hy gaan nie praat nie, hy sal maar uit die weg geruim moet word? --- Wel ja, dit is die besluit wat ek en die beskuldigde, of ons het daaroor toe begin praat."
And a little further:-
"Goed. Nou toe die besluit nou geneem is dat die aanranding gestaak moes word, wat het toe gebeur? --- Wel, ons het toe was nou begin praat en sę wel, daar is nou nie, net een ander uitweg, ons al die man nou dalk moet doodmaak.
"Wie is die ons waarvan u nou praat? --- Ek en die beskuldigde"
and a little further again:-
"Toe het hy vir my gesę ons sal hierdie man moet wegvat....
Hoekom het hy vir u gesę die man sal nou maar moet weggeneem word en doodgemaak word? Dit was mos nou al klaar besluti gewees?...Wel, dit was die finale besluit gewees."
And lastly a quote from the Goldstone Commission where the 3rd Applicant testified, quoted to him in cross-examination:-
"Ons het hom maar ondervra en toe besef ons sal nie hierdie man nie kan los nie, want as hy nou hier uitgaan, gaan daar moeilikheid wees".
It should be borne in mind that the evidence of the 3rd Applicant at the trial was evidence against the 2nd Applicant, not against the 1st Applicant and that the latter had no opportunity to cross-examine the 3rd Applicant so as to introduce his version.
The version of the 3rd Applicant can indeed be construed as a conspiracy with the 2nd Applicant to abduct the deceased, from the outset foreseeing the probability of killing the deceased in the event of his not parting with the information on the whereabouts of Odirile Maponya they suspected him to have had, following on the briefing by Kleynhans. Such a view, however, does not fully take into account the relationship between the 2nd and 3rd Applicants.
Firstly, the 3rd Applicant testified, and this is confirmed by the body of evidence, that he did entertain the possible necessary killing of the Deceased from the outset, once the abduction became to be considered. He clearly based this on his experience of practice at Vlakplaas:- "Dit was die tendens gewees op daardie stadium."
Secondly he testified that he would have done nothing without the approval or order of the 2nd Applicant, not even taking orders from the superiors of the 2nd Applicant without having cleared such orders with the 2nd Applicant.
Thirdly it follows that he merely suggested to the 2nd Applicant what in his experience would have been the course of action the 2nd Applicant would have chosen. The 2nd Applicant, on the evidence, did decide to follow the specific course of action and the 3rd Applicant from the outset operated under the direct command of his immediate superior who he idolised and followed blindly. Although his evidence was often vague and based on constructions, it appeared to be truthful.
The version of the 2nd Applicant on the issue of authorisation in my view presents the most improbabilities and contradictions of the 3 versions.
It is highly improbable that he, not knowing the 1st Applicant at all, would have suggested an abduction with a possibility of an active killing of the Deceased in the event of him failing to divulge the required information. The evidence was clear that Vlakplaas at the time operated covertly and that it was unlikely that the Krugersdorp Security Branch would have had knowledge of Vlakplaas killing people. His evidence that he would have cautioned, mentioned that the abduction was a capital crime, this being a discussion between experienced policemen, is unconvincing, more so advancing this as a reason, among others for relying on an order by the 1st Applicant. The wide variety of the ways in which the order was allegedly given by the 1st Applicant as relied upon by the 2nd Applicant, give rise to doubt as to the authenticity of his version. These ranged from a direct order to eliminate, to a statement that he never wanted to see the Deceased in Krugersdorp again, to his body language showing he knew exactly what they were talking about. This, in any event, begs the question why the 2nd Applicant, if he had a clear and direct order from the head of the Krugersdorp Security Branch and a senior officer, he would have seeked an order from Schoon at head office and, even more important, he would have seeked confirmation of the original order from the 1st Applicant, especially via a subordinate, Kleynhans and not directly from the 1st Applicant. The evidence of the 2nd Applicant on the alleged order of the 1st Applicant via Kleynhans to kill the deceased, was not corroborated at the hearing. The evidence of all the others Applicants from Vlakplaas was to the effect that they were under the impression that they were acting under orders of the 2nd Applicant emanating from head office (Schoon). Finally, the evidence of the 2nd Applicant fixing the order with the 1st Applicant should be considered with great circumspection given the evidence of the 2nd Applicant's unexplained intense dislike of the 1st Applicant, also canvassed at the trial. If a reason has to be found for this disposition of the 2nd Applicant towards the 1st Applicant it is probably to be found in the mere fact of his being one of the group of Generals who the 2nd Applicant, as he had often testified in hearing of the Amnesty Committee, expected to assume responsibility for all the acts perpetrated by subordinates.
This brings me to a consideration of the provisions of Sections 20(1)(b), 20(2) and 20(3) of the Act.
Section 20(3) is clear in its wording that its provisions merely serve as criteria to be considered in deciding whether a particular act is an act associated with a political objective as suggested in Section 20(2).
It can be accepted that there was absence of malice, ill-will, or spite that no personal gain was involved as contemplated in Section 20(3)(i) and (ii), as far as any of the Applicants are concerned. As far as the 1st Applicant is concerned, I accept his version that his authorisation related to the abduction and assault and that his omission to intervene before the killing is therefore to be treated separately. Accepting on the evidence that a reasonable suspicion did exist that the Deceased indeed had knowledge about the whereabouts of Odirile Maponya whose tracking down was then almost a national priority, I have no hesitation in coming to the conclusion that the authorisation for the abduction and assault was an act associated with a political objective, the objective being finding Odirile Maponya. His omission to intervene on the killing, given the risk of exposure of identified individuals and security operations, likewise is clearly covered by the provisions of Section 20(2) and 20(3) and the 1st Applicant is therefore ENTITLED TO AMNESTY.
As far as the 3rd Applicant is concerned, I accept his evidence that as between himself and the 2nd Applicant the understanding was that the Deceased was to be abducted, assaulted and interrogated and in the event of his failing to cooperate or be turned to work with the Security Police, be killed. Given the culture within which he operated at Vlakplaas and his experience; the information given to him about the Deceased's probable knowledge and his withholding information and given the fact that he at all times acted under the control of the 2nd Applicant, I have no hesitation in finding his acts related to the abduction, assault and killing of the Deceased to have been acts associated with a political objective as contemplated in Section 20(2) and 20(3) and therefore finding that the 3rd Applicant is ENTITLED TO AMNESTY.
As far as the 2nd Applicant is concerned, special consideration has to be given to the criteria stipulated in Section 20(3)(d), (e) and (f).
As far as the provisions of Section 20(3)(d) is concerned, it primarily relates to the object or objective of the act. It is common cause that the objective was to establish the whereabouts of Odirile Maponya, which at the time was a national priority.
It is indeed common cause that the Deceased was not a political activist. It is not common cause that he was not sympathetic to the struggle. On the evidence there was reason to believe that he did have information which he did not want to part with. It is further common cause that at least two of his brothers were activists. It is common cause that whatever information was given to the 2nd Applicant, accepted as being correct and accurate. It is common cause that while the Deceased was the victim of the abduction, assault and killing, the objective related to the tracking down of Odirile Maponya in countering the onslaught by the liberation movements against the State, with which objective the abduction, assault and killing was associated.
Concerning the provisions of Section 20(3)(e) it is clear on evidence that the 2nd Applicant bona fide believed that he was acting on behalf of the State, albeit to my judgement not in terms of an expressed order.
As far as the provisions of Section 20(3)(f) is concerned, it may be objectively true that the "remote possibility of obtaining information was backed by the 2nd Applicant against the killing of the Deceased". There is, however, nothing in the evidence to suggest that the 2nd Applicant had seen that possibility as remote. In any event, Section 20(3)(f) is but one of a list of criteria.
Taking into account the provisions of Section 20(2)(b) and having jointly considered all the criteria in Section 20(3), I am of the opinion that the abduction, assault and killing of the Deceased as it relates to the 2nd Applicant were indeed acts associated with a political objective, committed in the course of the conflicts of the past as envisaged in Section 20(1)(b).
The final question to be decided then is whether the 2nd Applicant, given his evidence on the authorisation, has made a full disclosure as envisaged in Section 20(1)(c).
As I have stated above, the evidence of the 2nd Applicant on the alleged order by the 1st Applicant is, at least suspect. This coupled with his known ill disposition towards generals of the South African Police generally, raises the questions of him wilfully, falsely implicating the 1st Applicant. Were that to be found, he would of course not be entitled to amnesty.
I am conscious of the fact that Miller J. has found on probabilities for the version of the 2nd Applicant. I have already indicated that on probabilities I reject the version as being incorrect or inaccurate, as factually not true. The question, however, is whether it is truthful, in other words whether it can be accepted that the 2nd Applicant, whatever the initial conversation in Krugersdorp entailed, reasonably believed that the 1st Applicant had authorised the killing. For the purposes of this assessment regard also has to be had to his evidence on his visit to head office and subsequent telephonic conversations with Kleynhans, the latter for which no corroboration nor contradictory evidence exists. No evidence of Kleynhans is available on this point in any of the records and he was not called as a witness. His real role is therefore not fully known to the Committee.
I cannot find that the 2nd Applicant's version, in summary that he subjectively believed the 1st Applicant to have authorised not only the abduction but also the conditional killing of the Deceased, is not reasonably possibly true. In this I am swayed by Miller's judgement that on probabilities the 2nd Applicant's version is to be preferred, although I differ strongly with him on this score.
In the event I am satisfied that the 2nd Applicant has also made a full disclosure of all relevant facts related to the authorisation of the abduction, assault and killing of the Deceased.
To summarise then, I concur with the decision to GRANT AMNESTY TO THE 4TH, 5TH, 6TH, 7TH AND 8TH APPLICANTS for the reasons advanced by Miller J. I also GRANT AMNESTY TO THE 1ST, 2ND AND 3RD APPLICANTS.
I concur that Japie Maponya is a victim as envisaged in the Act and the names and particulars of his next-of-kin is to be forwarded to the Reparations and Rehabilitation Committee for its consideration.
SIGNED AT CAPE TOWN ON THIS THE DAY OF 2001.
MR W MALAN
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