AC/2001/124

      TRUTH AND RECONCILIATION COMMISSION

      AMNESTY COMMITTEE

APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT NO. 34 OF 1995.

HENDRICK JOHANNES PETRUS BOTHA      1ST APPLICANT

(AM4117/96)

SALMON JOHANNES GERHARDUS DU PREEZ

(AM4130/96)                                2ND APPLICANT

CASPER ADRIAAN VAN DER WESTHUIZEN

(AM4388/96)       3RD APPLICANT

LAWRENCE GERALD WASSERMAN     4TH APPLICANT

(AM4508/96)

ROELOF BRAND VISAGIE    5TH APPLICANT

(AM5169/97)

ADRIAN DAVID BAKER      6TH APPLICANT

(AM5284/97)

SIMON MOKOPO RADEBE     7TH APPLICANT

(AM7249/97)

      DECISION

The Applicants applied for amnesty in respect of their roles during the period April/May 1987, in:

1.    The abduction of Ntombikayise Priscilla Khubeka at Battery Beach, Durban;

2.    Unlawful detention/deprivation of liberty of the said Ntombikayise Priscilla Khubeka at the abandoned shooting range at Winklespruit, near Durban;

3.    The death of the said Ntombikayise Priscilla Khubeka at the abandoned shooting range at Winklespruit, near Durban;

4.    Unlawful disposal of the body of the said Ntombikayise Priscilla Khubeka near Bhambayi informal settlement, near Durban;

5.    Defeating the ends of justice in relation to the above;

6.    Any lesser or related offence flowing from and/or in relation to the above;

7.    Any offence or delict supported by the facts.

At the commencement of the hearing we were informed that Xola Frank Mbane ("Mbane") was incorrectly reflected as an Applicant.  He was in fact a co-perpetrator, who had applied for amnesty in respect of other incidents but not the present one.  He had been given notice, as an implicated party, in terms of Section 19(4) of the Act and was intent on testifying at the hearing.  The application of Marthinus David Ras Jnr ("Ras") was withdrawn.  Andrew Russel Cavill Taylor ("Taylor") had died before the hearing of the application and his application was not heard.  This left the remaining applicants who are reflected above.

With regard to Roelof Brand Visagie ("Visagie"), we were informed that he was out of the country and unavailable to attend the hearing.  His application was left on the roll pending the leading of evidence and it was argued that depending on the nature of the evidence referring to him his application might either be dealt with in chambers, be finalised as part of this decision or dealt with in some other manner.  We have considered the question of how to approach this application and we are of the view that the application cannot be dealt with by us as the Applicant has not appeared and the objectors do not consent to it being dealt with on such basis.  Accordingly, we are unable to make any decision in respect of the application.

The evidence in this matter is very briefly the following:

Ntombikayise Priscilla Khubeka ("Khubeka") who lived in KwaMashu, a township to the north of Durban, came from a family that was active in the political struggle against apartheid.  Khubeka was known to the South African Police's ("SAP") Security Branch ("SB") in Durban.

At the time of this incident, various members, including askaris, of the SB's C1 unit based at Vlakplaas and commanded by Col. E. A. de Kock, were working in Durban and the surrounding areas on operations aimed at the identification and arrest of trained members of the liberation movements.  Some of the Applicants and other members were involved in these activities.  There was co-operation between the Vlakplaas members and the Terrorist Section of the Durban SB.  Taylor commanded this section.  Botha was head of the Intelligence component of the section.  All the Applicants were policemen or askaris and were part of these units.

During their operation, certain information became known regarding Khubeka and her activities.  Based on the information an operation was decided upon that entailed the infiltration of Khubeka's activities.  Mbane and Nicholas Dube ("Dube"), who were askaris and part of the Vlakplaas group, would gain the confidence of Khubeka by posing as returned exiles.  Simon Mokopo Radebe ("Radebe"), a policeman also based at Vlakplaas would handle Mbane and Dube.

The operation proceeded with Mbane and Dube making contact with and infiltrating Khubeka's activities.  Radebe also made contact at certain stages.  Apparently, useful information was obtained.  There are different and conflicting versions of precisely what progress was made with the operation and as to whether some of Khubeka's associates were arrested or detained at that stage.  We do not intend to canvas these discrepancies except to note them as problematic aspects of some of the Applicants' testimony.

On the version of Radebe and Mbane at some stage, Khubeka apparently became concerned and suspicious and it was decided to abduct her.  We mention that on Botha's evidence, Khubeka was abducted unexpectedly because he thought and expected to be abducting a person who was the commander of a group of MK cadres apparently working with Khubeka.  his version of this aspect was that he had tasked Mbane to make contact with Khubeka so that she could lead him to this group and its commander at an agreed rendezvous at Battery Beach.  There were further conflicts in the Applicants' testimony as to who was in the vehicle when it arrived and as to whether the actual rendezvous took place at all.  Botha, salmon Johannes Gerhardus du Preez ("du Preez"), Casper Adriaan van der Westhuizen ("van der Westhuizen"), Roelof Brand Visagie ("Visagie"), J.H.A. "Joe" Coetzer ("Coetzer") and the late W/O "Bossie" Basson ("Basson"), were all waiting at Battery Beach for the vehicle being used by Mbane, Dube and Radebe to arrive.

The vehicle arrived at the rendezvous and Khubeka was abducted, bundled into a panel van, blindfolded and taken to the abandoned S.A. Railways and Harbours Police shooting range at Winklespruit just south of Durban.  She may also have been bound at that stage.  This venue has featured in other applications and was used regularly by members of the SB as a base.  She was placed unbound and blindfolded in one of the storerooms there and then was interrogated by Taylor, Botha, Lawrence Gerald Wasserman ("Wasserman"), van der Westhuizen, Coetzer and Basson.  Adrian David Baker ("Baker") who was the senior Vlakplaas officer present went into the storeroom from time to time to hear what information had been obtained regarding liberation movement cadres.

Mbane, Dube and Radebe were not required for the interrogation and they remained outside and took no part in the interrogation.  There was some conflict as to where they ended up and what they did but we do not intend canvassing this aspect.

During the interrogation, Taylor struck Khubeka with a sjambok.  According to Botha, this was not a severe assault, but a way of emphasising the seriousness of the situation and the need for her to co-operate with them.  The interrogation lasted approximately fifteen to twenty minutes and Taylor struck her approximately 10 to 15 times.  It is clear to us from Botha's evidence and that of the other Applicants that these assaults continued for some time and that there must have been marks on Khubeka's body as a consequence.  We may mention that Taylor in a lucid and factual account of this incident in his written application denies that any assault took place.

Botha and other Applicants testified that during the course of the interrogation Khubeka suddenly "began to gasp, grabbed at her chest and fell over.  Her body shook and she urinated.  Within seconds she lay still."  In spite of wetting her with water, she did not react.  There was no pulse or breath when they checked these.  The Applicants then realised she was deceased.

It was part of the Applicant's case that the reason they decided to "dump the body of the deceased" in the vicinity of her home" was that she had not been assaulted and had died of natural causes.  They thus expected that at the post mortem examination no foul play would be indicated.  None of them mention the assaults in their written applications.  In the light of the assaults, this is an improbable expectation and explanation.

Taylor and Botha discussed the matter and it was decided that the body be "dumped" near her home.  According to Botha he told Du Preez, who had been sent on an errand to fetch provisions or food and who had by that stage returned, to wait until the other members had left the place or gone to sleep and then to dispose of the body along the lines mentioned above.  About an hour later, Du Preez and Wasserman loaded the body of the deceased into the boot of their vehicle and left the shooting range.  Botha informed Taylor that they would "make a plan with the body."

Du Preez and Wasserman then drove north past Durban, towards KwaMashu and along the Inanda Road.  They say they disposed of Khubeka's body somewhere near Bhambayi informal settlement.  This took place at night.  During the hearing they were asked to point out the place where they had disposed of the body.  An inspection-in-loco was held.  The area had changed a great deal with much development having occurred.  The road had also been upgraded with different intersections and a slightly different route.  It was thus difficult to identify the actual place they left the body, except in the most general of terms.

The place pointed out by Du Preez and Wasserman was estimated to be at least 5 kilometres ("as the crow flies") from Khubeka's home in KwaMashu.  By road this distance would be considerably more.  We find this action totally incompatible with the Applicants' stated intention to dispose of the body "in the vicinity of Khubeka's home" and thereby having the body found and hopefully identified.  In fact, on Wasserman's evidence, they left the body in Bhambayi because it was a "war-torn" area and the injuries would thus not attract undue attention.  This version is quite different to that of Botha and Du Preez who said the body would be left in the vicinity of her home as already dealt with above.

After disposing of the body, Du Preez and Wasserman returned to the shooting range where they reported to Botha.  None of the Applicants reported Khubeka's death or the disposal of her body.

Apparently, efforts were made at Botha's behest to ascertain the situation at Khubeka's home and the family's understanding about her apparent whereabouts.  The family apparently suspected nothing at that stage and the police let matters lie.  At a later stage, Botha heard an allegation that Khubeka and another person had left the country for Mozambique because of the attentions of the SB.  This suited the police and Botha did nothing to dispel this rumour.

This then in brief was the evidence on behalf of the Applicants.

Mbane testified as to his version of the incident.  We do not intend dealing in detail with this evidence.  Suffice it to say that he differed in his version from that given by the other Applicants insofar as a number of issues including, in particular, the nature of the assaults, are concerned.  As will be evident from what follows, not a great deal turns on these differences.

The rest of the evidence at the hearing then revolved around the identification of human remains exhumed by Dr. S.M.Aiyer and his assistants from a pauper's grave at Charlottedale Cemetery, Stanger.  These remains were traced as a result of investigations conducted by members of the Investigation Unit of the TRC.  After the exhumation, Dr. S. R. Naidoo of the SAP Medico-Legal laboratory conducted a post-mortem examination of the remains at the Pinetown Mortuary.

His post-mortem report appears in Bundle 2 of the papers from pages 24 to 33.  His conclusions confirmed in his testimony are contained in paragraph 1 of the report and state as follows:

a)    Race              -     Negroid

b)    Sex               -     female

c)    Stature           -     Between 1,35 - 1.42 metres in height

d)    Age               -     Young adult - under 40 years - see dental report

e)    Cause of death -  Consistent with gunshot wound of the head.

The report ends with the following:

      "In general, the autopsy finding are such that the features of identification match those of the alleged deceased NTOMBI KUBHEKA".

In addition, a single metallic object of approximately 10mm, later identified by a ballistics expert as a spent 7.65mm bullet, apparently fell from the skull.

The above aspects were also confirmed in his testimony.

An attempt was made to use DNA testing as a further aid to identification.  Although DNA was isolated from samples of bone and teeth, these were of a degraded nature and could not be used for the DNA typing.

The skull of the deceased was sent to Dr P. Venezis ("Venezis"), Regius Professor of Forensic Medicine and Science and Head of Department at the University of Glasgow.  Venezis is a recognised authority regarding a facial identification technique that entails the use of video superimposition.  Briefly, the process involves the scanning, using a high-resolution video camera, of images of an unidentified skull and photographs of the possible deceased person using 3-D computer graphics.  The images are standardised in terms of size and orientation and then super-imposed.  Landmarks are used to determine the nature of the match.  The skull is first examined to confirm the autopsy finds and anthropological data.  In his evidence Venezis added that a preliminary video superimposition is also carried out to confirm the anthropological data.  If this matches the anthropological data, the actual video superimposition is then undertaken.

Venezis' report is Exhibit M to the proceedings and was confirmed under oath during his testimony via satellite video conference.  His report ends with a section titled "Results and Conclusions".  It is quoted below:

      "The reconstructed facial image reflected, within acceptable limits, the photographs of the deceased, Ntombi Kubheka.

      The skull to photo superimposition carried out revealed an excellent match in all respects with the photographs examined.

      I am satisfied that there is an excellent match between the photographs examined and the skull in question and I am of the view therefore that it is highly likely that the skull is part of the remains of Ntombi Kubheka."

Venezis was cross-examined regarding his methodology and his findings and we were impressed with his testimony.  We have no reason to doubt his finding.

The Applicants, through their legal representatives, requested that another expert based at the SAPS Forsenic Science Laboratory in Pretoria examine the skull.  A report by Sgt. T. M Briers ("Briers") of this laboratory forms Exhibit V to the papers.  He also performed a skull-to-photo video superimposition on the skull in question also using two photographs of the deceased.  His conclusion is contained in paragraph 6 of his report and is quoted below:

      "All the above landmarks have been taken into consideration and it is found that the skull and face on both photographs are consistent with each other.  No contradictions were found."

The landmarks and the photographs used are essentially the same as those referred to by Venezis.  The Applicants did not challenge Brier's conclusions.

Other evidence led related to the identification of certain clothing found with the exhumed remains and whether such clothing would have fitted a person matching Khubeka's size.  A neighbour, Mrs J. R. Dludla ("Dudla") and a dressmaker, Ms. M. Fick-Jordaan ("Fick-Jordaan") also testified.  The gist of Dludla's evidence is that as far as she can recall, the clothing found is similar to that worn and owned by the deceased.  Fick-Jordaan compared the clothing found with the remains with other clothing alleged to have belonged to the deceased.  She took certain measurements that are contained in Exhibit S to the papers.  She confirmed these in her testimony.  She was satisfied that the garments in question could all have belonged to and have been worn by the same person.

We briefly wish to deal with some of the contentions raised on behalf of the Applicants in argument with regard to the issue of identification.  The Applicants have pointed to certain shortcomings in the investigation, exhumation and identification of the remains.  In particular, they argue that the remains found cannot be exclusively lined to the deceased in that inter alia, there may have been other remains in the grave;  there was no good reason for not exhuming two other deceased who in their opinion may have fitted the appropriate parameters;  the identification by video superimposition is patently flawed and inconclusive;  the finding of Dr Naidoo are wrong;  the items of clothing allegedly found with the remains would not have fitted the deceased and were not found with the remains and therefore cannot be relied upon.

On the question of the other two deceased and possible remains in the grave in question, these persons were found in the Newlands East area which is to the south of KwaMashu whereas the place where the body of Khubeka was apparently left and the remains discovered prior to burial, is north of KwaMashu.  It is thus clear to us that no good reason would have been served to have exhumed those bodies.  Regarding the possibility of other persons being buried in the same grave, there was no suggestion either put to Dr Aiyer or Dr Naidoo that we were dealing with more than one skeleton.  Although the coffin apparently holding the remains had disintegrated, the remains were contained within a plastic "bag" which was either a body bag but more likely the plastic coffin liner.  The clothing in question was intermingled with the remains and was within this plastic and thus it is hardly likely that they are from a separate or different body.  We may note no separate mention is made of any such body as being evident in the same grave by anyone.  But as will be seen, there are other more cogent reasons why we are satisfied about these matters.

On the question of the video superimpositions, our attention was drawn to certain apparent defects in the match shown on the video provided by Venezis.  Frankly, we could not see these apparent "defects".  What is more, neither did Briers, who came to the conclusion that "no contradictions were found."  We are quite satisfied with the evidence and explanations by Venezis and find his evidence compelling.

Regarding the question a "positive identification", it is clear to us that the Applicants have misunderstood the meaning and import of this concept.  It is correct that a positive identification would only transpire if individual features are evident.  However, what was said was that such a positive identification would mean a 100% certainty.  In other words, an expert would only be able to give a finding with a 100% degree of certainty, i.e. a positive identification, if there were particular features individual to the suspected deceased and the skull displayed such features.  This of necessity means that everything else short of this then falls into the realm of probabilities and possibilities.  This is why Venezis, despite being invited to do so, would not go that far.  He, however, stuck to his "highly likely" finding which in his view is clearly in the upper realms of probability rather than, as was argued on behalf of the Applicants, the level "of possibilities or indeterminate", i.e. the lower realms.  Of course everything short of "positive" is not necessarily indeterminate but it is also not clearly definite.  Be this as it may, it is clear to us that on common sense approach "highly likely" means highly probable.  There was never any question that the finding were anything less than this.

Regarding the letter from Sgt. F. Peens ("Peens") also of SAPS Forsenic Science Laboratory in Pretoria, entered as Exhibit U in the papers, Peens makes it quite clear that what are noted are only apparent problems and that the skull and photographs are required to "give a correct result".  It was always understood that this letter was merely for the purposes of laying a basis for a further examination.  It was never put up as evidence for the purpose of challenging the correctness of otherwise of Venezis' report.  In any event, a further examination was carried out by Briers with a clear "result" and it has been dealt with above.  In the result, no weight can be attached to the letter of Peens.

On the question of Dr Naidoo's finding, we have noted the aspects raised by the Applicants in argument.  Dr Naidoo was subject to testing cross-examination on many of the issues raised.  He gave his evidence in a cogent and honest manner.  He made concessions when these were required and his answers were well reasoned.  He explained most of the aspects raised on behalf of the Applicants and we do not intend to dwell on these matters suffice it to say that we found his testimony helpful and compelling.  We have no hesitation in accepting his findings.

On the question of the clothing, there is no evidence before us to suggest that the clothes were not found with the remains in question.  It is true that there was no police photographer present and that Aiyer could not recall precisely what he saw as the exhumation proceeded.  However, it was never suggested to him or dr Naidoo that the clothing in question did not come from the grave.  Dr Naidoo spoke of needing to remove bones from the clothing in order to separate the bones from the clothing.  The clear impression this created was that the "body" was still "dressed" in the clothing.  His recollection was that the bones and clothes were mixed up in the same plastic covering.  Unless someone purposefully mixed the clothes in with the remains with the ulterior motive of trying to facilitate the identification of them as the deceased and no one has suggested this to be the case, common sense dictates that the clothing was in fact found with the remains.  We are also satisfied with the broad thrust of the evidence of Dludla and Fick-Jordaan as set out above and these add further weight to the probability that the clothing belonged to Khubeka.

What is striking in the final analysis is that in our view all the above aspects taken together point to the inescapable conclusion that the body exhumed from the grave at Charlottedale Cemetery, Stanger, is in fact that of the deceased, Ntombikayise Priscilla Khubeka.  This makes the various arguments about the investigation, the "post-mortem" of Dr Chetty and other minor inconsistencies of less import.  We say this because regardless of those factors and apparent inconsistencies such as they may be, the expert witnesses are in essence unanimous that the match is a good one and therefore it flows that the probability is "very likely" that the remains are those of the deceased.  If the identity of the deceased is established which we accept it is, these other aspects are not of any consequence.  This is in our view sufficient for present purposes and we find accordingly.

Having thus found that the remains are those of Khubeka, we now have to deal with the question of the bullet wound to the skull.  It was argued on behalf of the Applicants that no gunshot was heard by Mbane and therefore no shot was fired.  This is a non sequitur.  There may be any number of reasons why Mbane didn't hear a shot being fired.  The fact remains that a shot was fired.  This much is evident from the bullet wound in skull of the deceased and the recovered spent bullet.  It follows that those of the Applicants who saw or handled the body or were present at her death must have seen the gunshot wound or heard the shot.  If a silencer was used those present in the room and who saw the body must have known about it.  This would include the following Applicant, Botha, Du Preez, Wasserman and Van der Westhuizen.  Radebe and Baker did not see Khubeka's body.  Radebe says he was asleep in the Kombi and left the place approximately two to three hours after arriving there.  Baker went with Du Preez to collect provisions and returned after Khubeka had died.  He says he was told she had died of a heart attack but did not see the body or the vehicle removing the body.

We briefly examine the question of the heart attack.  Dr Naidoo emphasised that the occurrence of hear attacks in African females, even overweight an under the sort of stress likely to be caused by the situation Khubeka found herself in, would be extremely rare.  This makes the likelihood of Khubeka suffering a heart attack highly improbable.  However, the Applicants have stressed that it was because she died of natural causes that they hoped the body would be found.  This, in turn, is not borne out by the actual facts of the disposal which occurred in a manner and place where the likelihood of the deceased being identified was greatly reduced.  In fact the body was only found months later and it was never identified.  This tends to show that the Applicants are not being forthright when they say they intended to dispose of the body near her home.  The only reason they would not have disposed of the body near her home would be if foul play would be suspected.  The reason foul play would be suspected was that Khubeka had been shot.  This thus negates the heart attack story.

A further aspect which lends weight to the probability that Khubeka did not die of a heart attack lies in the fact that she posed a dangerous threat to the SB and their askaris.  She, by that stage, was aware that she had been "sold out" and it seems clear that although she may have co-operated to some extent, she was unwilling to "turn".  The way the Applicants solved this situation in almost all the other matters of a similar nature that came before the Committee was to eliminate such people and dispose of the bodies.  This case fits that pattern precisely.

In the light of the above we did find that Botha, Du Preez, Wasserman and Van der Westhuizen have failed to make full disclosure as required by the Act and their applications for amnesty are thus REFUSED.

We add that Mr Wills on behalf of the family of the deceased made out a cogent argument regarding the question of the political motivation of some of the Applicants regarding their actions after the deceased began co-operating with them.  However, in view of our finding above, we will not canvass this aspect further.

With regard to the remaining Applicants, it is clear that Khubeka was a political opponent and that her abduction took place within the context of the conflicts of the past.  The object of her abduction was for the purposes of questioning her regarding her activities and the identities of the people she was connected to.  Radebe's participation in this is thus an act for which amnesty can be granted.  It is also clear that Khubeka's death would have posed difficulties for the SB, the police and the government of the day.  Baker's knowledge of her death, the disposal of her body and his failure to report this, thus comprise the acts for which amnesty can be granted.

Baker is GRANTED amnesty for defeating the ends of justice in relation to the abduction and death of Khubeka as well as the disposal of her body.

Radebe is GRANTED amnesty for the abduction of Khubeka.

The Committee is of the opinion that the relatives and dependants of Ntombikayise Priscilla Khubeka are victims and they are referred in terms of Section 22(2) to the Committee on Reparation and Rehabilitation for consideration in terms of Section 26 of Act 34 of 1995.

DATED AT CAPE TOWN THIS    DAY OF                  2001.

___________________

JUDGE S. MILLER

__________________

ADV. F.J. BOSMAN

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MR I. LAX

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