The applicant is seeking amnesty for the abduction and murder of the following persons:

The deceased were abducted in East London and subsequently killed near the Kei River Bridge on the 21st of May 1993. For reasons that will emerge later, it is necessary to detail the evidence at inordinate length.

The applicant was a member of the Transkei Defence Force ("TDF") at the time of the occurrence of the incident. He held the position of Sergeant and reported to Captain Mdze who was his senior. He was stationed at Port St Johns Military Base and attached to the Special force Unit. At the time the Transkei territory was still a so-called independent Bantustan under the rule of Major General Holomisa.

It is, further, a matter of public record that relations with the South African regime and the Military Council of Holomisa were not very cordial and the period of his rule saw a number of attempted coups to topple Holomisa. The South African Government, as may be expected, was consistently blamed for the attempts.

It was a part of the applicant’s duty to trace and apprehend those suspected of involvement in such attempts or any subversive activity against the authorities of the "independent" territory.

Initially, Matyolo had also applied for amnesty for his involvement in the abduction and murder of the deceased. At the hearing he suddenly withdrew his application. We also understand that there is a criminal case pending against him in this regard. The applicant was the only person to adduce viva voce evidence in support of his application which is being opposed by the families of the deceased persons, on the ground that the latter were not involved in any political activities against the erstwhile Transkei regime.

On 31 March 1993 the applicant was on duty at Port St Johns when Mdze gave him an instruction to take off his uniform as he was going to drive for him. They were going to travel to Butterworth to visit TDF Military Intelligence offices. En route to Butterworth Mdze told him that they were going there to see Matyolo, which they did. They found Matyolo, Corporal Powa amd two other gentlemen who were unknown to him. The applicant, Mdze, Matyolo and Powa then travelled to East London. On the way Matyolo said they were going to meet Zonwabele Mgudlwa in East London at Amalinda. No mention was made of what the meeting was going to be about and why. The applicant later inferred that both Zonwabele and his brother, Pamapa were working as informers for the TDF Military Intelligence. Zonwabele was not at home when they came and they had to wait for him for quite a while before Papama came, and later Zonwabele.

When Zonwaablee came Matyolo called him aside to speak with him alone and, after the two had so spoken, they came back to rejoin them in the sitting room. Matyolo said they were going to do a "mission" at Wana’s house and that they should wait until it was dark. Wana was to be "taken" (abducted) and taken to Umtata. Wana was suspected of involvement in an attempted overthrow of Holomisa. He was to answer all allegations there.

When it was dark they all, including the Mgudlwa brothers, got into the Nissan Sentra and Zonwabele was now the driver of the vehicle which the applicant had driven all the way from Port St Johns. On the way Zonwabele issued both the applicant and Mdze with 9mm pistols. No verbal instructions were given and the applicant took safety precautions, and tied it to his belt.

Whilst they were still on the way, Zonwabele said they should not worry because Papama got out of the car. He knocked on the door and there was no response. There was nobody there. He walked back to the vehicle and suggested that himself, the applicant, Matyolo and Mdze should enter the house, Zonwabele and Powa were to wait outside. On entering the house Matyolo gave them (the applicant and Mdze) positions where to sit on the look-out. They were waiting for Wana to come. Papama and Matyolo searched the house and found files. He said they were the files they had been looking for. The applicant does not know what they contained.

After a while of waiting there they heard banging of doors of a car outside. Matyolo said they were to be silent. Three gentlemen, who later happened to have been the deceased in this case, entered the house, obviously not knowing that they were inside. On switching the lights on they were shocked by their presence. Papama and Matyolo ordered them to "stand still" and raise their hands. The trio complied. One of them appeared to know Papama as he pleaded with him to spare their lives because they were "innocent".

Whilst this was happening Mdze opened the door and ran away. He did not again join the applicant’s group. The trio said Wana was in Cape Town. Matyolo demanded their car keys and when same was handed over gave it to Papama. The trio were taken outside to their own car, a Volkswagen vehicle. It was now dark and their Nissan Sentra was no longer there. The trio were ordered to get into the boot of the Volkswagen vehicle, which they did. Two of them got into the boot and one sat at the back with the applicant. Matyolo ordered Papama to drive to the house of Zonwabele.

On the way there Matyolo said to the one inside the vehicle if they did not reveal the whereabouts of Wana they would be killed. At Zonwabele’s house Matyolo was the only one to alight from the vehicle and at the gate spoke with the former’s wife. The applicant did not hear what they spoke about. It did not appear to him that Zonwabele was there.

On returning to the vehicle Matyolo commanded Papama to start the car and go. He did not say where they were going to and on the way Papama said there was a problem in that one of the trio knew him. He wanted to know what should be done with them in the light of the circumstances. Matyolo was now getting "aggressive" and his words were being expressed in a tone of an order "because the mission was not successful". During all this time Papama was driving.

The applicant does not know the area but at some point they followed a gravel road into the veld. There were no houses there.

When the vehicle stopped in a semi-dark spot Matyolo grabbed the one who was in the vehicle and ordered him to lie down in front of the vehicle. Papama took the two out of the boot and told them to lie down, next to the first one. The engine of the vehicle and lights were switched off. As they were lying down on their stomachs Matyolo took out his pistol, gave it to Papama and told him to shoot them. Before the shooting the trio said they were just looking after the house whilst Wana was away. The applicant says he heard some shots but does not know how many. He was shocked and afraid. He took a few paces away and got closer to the vehicle. Then he heard Matyole saying, "stop now, give me my weapon". He asked the applicant to where was his weapon, and this he produced. He took it and gave to Papama who again started shooting. After the second series of shots Matyolo said they could return to the car. They had "finished the mission".

They all got into the vehicle and went back to Zonwagele’s house where they found him with Mdze and Powa. Matyolo told them that the trio had been killed. Mdze wanted to know who had killed them and Papama replied that he had, because they knew him.

After some time they left, returning to the Transkei. The applicant was ordered to follow the Nissan Sentra vehicle with the Volkswagen vehicle, which on the advice of Zonwabele, was to be destroyed to divert any police suspicions or traces of the crime. This they did near Komga on the way to the Kei River Bridge.

Zonwabele who was represented by Mr Nyoka, denied all involvement in the incident but chose not to testify. In particular, he denied being an informer. We do not deem it necessary to make a finding on the issue. It is not necessary to recall the evidence but it is apparent that not only was the applicant carrying out orders from his superiors, but he also played a singularly minimal role in the incident. The least that can be said of him is that he participated in the abduction of the deceased and was present when it was conspired to abduct Wana. That would constitute an attempted abduction. There is no evidence that he associated himself with the murder of the deceased but after the murders, and in spite of his knowledge, he did not reveal who killed the deceased. This behaviour was to be expected of him, given the nature and circumstances of the clandestine operation. We however, do not equivocally say that the killing of the three young men was totally unjustified in the circumstances. It was totally unrelated to the objective of maintaining the rule of the military council in the Transkei.

In the result amnesty is GRANTED to the applicant for the following offences:

Amnesty CANNOT BE GRANTED for the murder of the deceased. The evidence does not suggest that he participated or associated himself in any way with the murder of the three.

The next-of-kin of the deceased are referred to the Committee on Reparation and Rehabilitation in terms of the Act.

Signed at Cape Town this 17th day of February 2000.

ACTING JUDGE D POTGIETER

DR W ME TSOTSI

ADV NTSKI SANDI