Sunday, July 13, 2014

The Conflict of the Past - A Factual Review (PART 2)

As compiled by General Johan van der Merwe, the last Commissioner of the former South African Police.

Continued from PART 1.


The findings of the various amnesty committees were divergent and there were many shortcomings as Judge Andrew Wilson, Advocates Chris de Jager and Francis Bosman, as well as Mr Wynand Malan, who served on the amnesty committees, will immediately concede. The minority decision, delivered by Mr Wynand Malan in the Maponya case, serves as an excellent example of how some members of the amnesty committees erred in their judgement. Mr Malan’s minority judgement in the Maponya case can be found here on the Internet Archive. A striking pattern also becomes noticeable when one looks at the composition of those amnesty commissions where amnesty was denied to ex-members of the security branch and minority judgements were passed.

Most probably the greatest shortcoming in the whole process was that no provision was ever made for some or other form of administrative revision. That meant that, where an amnesty committee reached an incorrect conclusion and amnesty was denied, the person who was denied amnesty had to approach the Supreme Court for an administrative revision. The legal costs in such cases can be enormous and amount to a million rand or more, which made it unaffordable to most ex-members of the Security Branch. Besides, the grounds on which a revision could be applied for were far more restrictive than in ordinary criminal cases.

It was indeed a glaring injustice which ex-members of the Security Branch were subjected to!

In the Motherwell amnesty trial, where amnesty was refused to the late Col Gideon Nieuwoudt and other former members of the Security Branch, Advocate Louis Visser and Mr Jan Wagener agreed to represent Brig du Toit and Col Nieuwoudt in their application for revision on a contingency basis.

The application for a revision was heard by a Full Bench of Judges of the Cape Supreme Court on 23 November 2001. Judge Jeanette Traverso-Coetzee acted as presiding judge and was assisted by Judges Dennis Davies and Jerome Ngwenya. All three judges unanimously adjudged the findings of the amnesty committee in the case of Brig. du Toit and W/O Ras to be incorrect and set them aside. Judge Davis was of the opinion that the amnesty committee was correct in refusing Col Nieuwoudt’s application for amnesty. The other two judges, however, disagreed with him and set aside the findings in the case of Col Nieuwoudt as well. The Court ordered that a new amnesty hearing be held.

In the subsequent amnesty trial, amnesty was granted to Brig. du Toit and W/O Ras but amnesty was refused in the case of Col Nieuwoudt. According to Adv Visser and Mr Wagener, the Amnesty Committee once again erred in their finding and they would once again recommended an application for revision.. However, Col Nieuwoudt passed away shortly thereafter. This means that such a process could carry on indefinitely.

In the case of the PEBCO 3, where Col Deon Nieuwoudt, Capt Sakkie van Zyl and Sgt Johannes Koole were refused amnesty and subsequently charged with murder, application for revision was already made more than three years ago. This application has been delayed for more than three years by the Department of Justice who fail to give their answer. As a result the trial has been indefinitely postponed.

On the 25th of July 1993, defenceless churchgoers, including women and children, were attacked in St James’s Church, Cape Town, with AK 47 rifles and 11 were cold-bloodedly killed and several others were wounded. Dr Allan Boesak made the following comment regarding this incident:

“We are horrified and deeply distressed by the savage attack on the congregation at St James's Church, Kenilworth, yesterday evening. Not only is this a monstrous crime against humanity, but also a shameful desecration of a place of prayer and worship.

This is the latest in a series of barbaric and vicious armed attacks that have taken place since the announcement of significant agreements at the World Trade Centre. This tragedy can only strengthen our belief that there are dark forces at work, determined to wreck all efforts to build peace and democracy in our country.

We wish to express our deepest and most sincere sympathies with the families of the deceased in their grief. From the bottom of our hearts we wish them the strength and courage to endure a tragedy that goes beyond the personal and must affect our country as a whole.

We call on the security forces to launch an immediate and urgent investigation into this terrible crime and to bring its perpetrators to justice. For the sake of all South Africans, it is absolutely crucial that the sinister forces behind these horrifying attacks are brought to book before they can do any more damage."  -- Issued by Allan Boesak, Chairperson.

During the amnesty hearing of the APLA members involved, the following finding was made:

“APLA has publicly accepted responsibility for this attack and in its submission to the TRC it stated:

"It should therefore not surprise anyone that targets like the St James Church, King Williams Town Golf Club, Heildeberg Tavern etc. were selected. The leadership of the APLA takes full responsibility for all these operations. The APLA forces who carried out these operations followed the directives from their commanders and those directives were from the highest echelons of the military leadership. We do not therefore regret that such operations took place and there is therefore nothing to ask forgiveness for.”

Mr Letlapa Mphahlele, the President of the PAC and the man responsible for giving the orders for these attacks, was initially prosecuted and appeared in court for these murders but the case was postponed and has since faded away.

It is striking that, while persons like Mr Jacques Pauw and other like-minded people insist vehemently at every opportunity that former members of the Security Branch must be prosecuted, they make no mention of cases like that of Mr Letlapa Mphahlele and the NEC of the ANC.

There is great confusion regarding the number of NEC members who applied for amnesty. Initially there were 37 members, which subsequently increased but, as a result of mal-administration on the part of the TRC, became so entangled that it is difficult to determine what the a actual number is. Nevertheless, they were all refused amnesty. In their application for amnesty, members of the NEC expressed themselves as follows:

……””””We, the applicants, having at various times between 1 March 1960 and 10 May 1994, as indicated below, been members and leaders of the African National Congress (hereinafter referred to as the ANC) elected and/or appointed to serve in various structures including its highest organ, the NATIONAL EXECUTIVE COMMITTEE, do hereby make the following declaration:

During the said period, the ANC played the foremost role in the leadership of the struggle of the masses of our people for the end of the hateful system of apartheid, appropriately dubbed a crime against humanity by the international community.

In the course of our people’s struggle, with the intent to induce the apartheid government of the National Party to abandon apartheid with its concomitant violent repression, and with the intent to achieve, bring about and promote fundamental political, social and economic changes in the Republic, the ANC inter alia, established its military wing, UMKHONTO WE SIZWE, through which it prosecuted an armed struggle.

At all material times UMKHONTO WE SIZWE operated under (the) political authority, direction and leadership of the ANC.

Due to its peculiar circumstances, and the attacks mounted upon it by its adversary, the apartheid government, the ANC established various organs at various times such as the RC, PMC and a security organ NAT which at all material times also operated under its authority, direction and leadership.

Due to the circumstances which prevailed in the townships in the early 1990’s as a result of third force activities, the leadership of the ANC established and in some instances encouraged the establishment of SELF DEFENCE UNITS (SDU’s) which played a critical role in the defence of defenceless communities.

In the event, and to the extent that any of the activities of the above mentioned institutions and structures, including the SDU’s, could in any manner whatsoever be regarded as the kind of acts or omissions or offences envisaged in the PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, we collectively take full responsibility therefore (sic) applying for amnesty in respect thereof……….””””.

Continue reading... PART 3 - Final.


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