MEMORANDUM
The
Conflict of the Past: A Factual Review
More
than two decades after political negotiations were started and the ANC, as well
as other revolutionary organisations, ceased the armed struggle, there is still
large scale confusion and ignorance regarding the nature of the violence that
raged in South Africa from 1960 to 1990.
The
TRC, which unquestionably consisted overwhelmingly of ANC-supporters and
sympathisers, laid the foundation for a propaganda onslaught in which the SABC
and certain members of the media merrily took part.
One
example of the manner in which this propaganda campaign was conducted is the
Special Assignment program about the conflict of the past, presented by the
SABC on 18 November 2008.
This
program was presented in such a one-sided and distorted fashion that the
Foundation for Equality before the Law found it necessary to lay a complaint
with the Independent Broadcasting Complaints Commission. After conducting a
trial, they found:
"Taking
all these facts into consideration, the Tribunal is of the view that one-sided
impressions were created in the programme, which is to the detriment of the
security force officers. This does not mean that we are of the opinion that
these officers were innocent of any atrocities. They (or some of them) admitted
to such atrocities. What we find is that there was not sufficient balance in
presenting this particular programme, because a lasting impression is created
in the mind of the reasonable viewer, firstly, that the security officers were
the only people who committed atrocities during the armed struggle, and,
secondly, that they then tried to prevent victims from giving evidence against
them at the TRC hearings. In finding thus, it is not our intention to interfere
with the editorial prerogative of the presenter. The presenter is free to take
a particular angle or line and to emphasize aspects that he or she considers to
be more important than others. However, when the presenter is dealing with
controversial issues of public importance, he or she should treat all parties
involved in the issue fairly, and see to it that balance is obtained in
presenting different viewpoints. If this is not done, the broadcast can
deteriorate into propaganda, a situation that cannot be allowed in any
democracy."
Examples
of this type of propaganda appear in our Media daily and it is sad that certain
Afrikaans newspapers, either due to ignorance or because of journalists with
dubious motives, often take the lead.
It
is also a pity that Mr FW de Klerk and other former Ministers of the National
Party do not feel obliged to rectify these skewed and distorted reports
regarding the conflict of the past.
The
following facts are lost sight of, consciously disregarded or maliciously
distorted.
For
more than three decades the RSA was subjected to a fierce struggle filled with
deeds of terror through which the ANC and other revolutionary organisations
attempted to take over the Government.
Car-bombs,
landmines, limpet mines and other explosive devices exploded on a regular basis
and defenceless people - women and children - were killed or horribly maimed
and the community faced a constant threat. Limpet mines in Wimpy Restaurants
and explosive devices in refuse containers or terror attacks, in which persons
might be mowed down indiscriminately, irrespective of whether they were women
or children, were a real daily threat. The Church Street Bomb-explosion and the
attack on the St James Church were characteristic of the reckless and barbaric
way in which the revolutionary groups conducted the struggle. Pressure was
mounted on the police from all sides, especially on the Security Branch, to
safeguard the community at large from these attacks.
Members
of the South African Police Force were regarded as ‘hard targets" and
attacks on members and their families became a frequent event. Black members of
the force, especially those living in black townships, lived under constant
threat. In some areas black policemen had to be housed in tents in secure areas
in order to safeguard them against attack from the ANC. From 1973 to 1990 more
than 346 members of the force were killed in the revolutionary onslaught.
Where
the slightest suspicion existed that someone had given information to the
police or cooperated with the police in any way, that person was branded a
collaborator and collaborators were burned alive using the most inhuman and
barbaric method known as the ‘necklace method'. During the period 1 September
1984 to 31 March 1993, 505 persons, exclusively members of the black community,
were burned alive by the necklace method. 36 persons, whom they were able to
rescue in time, were severely burnt. During the same period, 710 persons, once
again solely members of the black community, were burnt alive while 320
received serious burns. This all but destroyed the ability of the police to
obtain information from the black community or to get people to give evidence
against members of Umkhonto we Sizwe or other revolutionary organisations. As a
result the legal processes available to the police became impotent. Even the
declaration of a state of emergency and emergency regulations were not enough
to stop the terror. On the 26th of September 1992 the previous Government and
the ANC entered into an agreement or so-called "RECORD OF
UNDERSTANDING" in terms of which 176 prisoners were released. One of the stipulations
of this Agreement determined that:
"The
two parties agreed that all prisoners whose imprisonment is related to the
conflict of the past, and whose release could make a contribution to
reconciliation, should be released."
With
the exception of Barend Strydom, the so-called "Wit Wolf", all of the
other prisoners were released at the insistence of the ANC. These included
persons who were serving long sentences for "necklace murders". In so
doing, the ANC clearly confirmed that the ‘necklace murder" was indeed a
tool of the revolutionary struggle and was carried out to further their aims.
The abhorrent deeds committed by some of these prisoners far exceeded anything
that Eugene de Kock was involved with.
Members
of the police force were deployed in both South West Africa (Namibia) and
Rhodesia (Zimbabwe) in order to stem the revolutionary onslaught. The training
of the police had to be drastically adapted to enable them to meet this task.
This training also conflicted with classic policing methods where minimum force
may be used and where the main objective is to bring charges against a suspect
and to bring him before the court. Police work became a life or death struggle
which hinged on the extermination of the enemy. The policeman was compelled to
kill or be killed.
The
revolutionary struggle was seen as an East-West struggle both internally and
externally and the Soviet Union's involvement and support for the ANC added the
element of Soviet expansionism.
Members
of the police force, particularly members of the Security Branch, were
regularly exposed to the carnage and violence which resulted from this
conflict. It was a regular tactic of the ANC to set up mines and explosive
devices in such a way that the first explosion drew the police to the scene while
the second mine or explosive device would explode some while afterwards with
the aim of harming the police. Several members of the police force were
brutally killed in this fashion.
Members
of the Security Branch were often at scenes where motorcar-bombs, landmines,
limpet mines or other explosive devices had been detonated and their colleagues
as well as defenceless people, including women and children, were blown apart
and body-parts flung over a wide area, and had to help gather up the body-parts.
This inevitably left an indelible impression on the minds of policemen on the
scene which, in many cases, led to a hardening in their attitude towards
members of revolutionary groups and their supporters.
Vociferous
statements by politicians that the ANC had to be wiped out roots and all,
ambiguous instructions and the covert manner in which they were given created
the impression that everything possible had to be done to wipe out the ANC. Due
to all of these factors, it was impossible for the Security Branch to combat
the ANC threat with the legal means at their disposal. The desperate situation
which prevailed led to desperate measures. In these circumstances Mr PW Botha
and other members of his cabinet themselves authorised or tacitly approved
actions which fell outside the usual letter of the law. This inevitably led to
members of the Security Branch, who were at the forefront of the struggle
against terror, taking the law into their own hands.
It
is widely known that no power in the world has been able to combat large scale
and well organised terror, which carries the express or tacit approval of the
majority of the people of that country, by legal means. There are several
examples to support this view and, without exception, powers who became
involved in such revolutionary struggles had to resort to unconventional means
to combat them. The war that Britain fought in Malaya is a case in point! South
Africa was no exception since the police had to protect the population against
the terror attacks of revolutionary organisations while the majority of the
black population supported them, whether voluntarily or as a result of severe
intimidation.
From
the very beginning the TRC-process was characterised by a one-sided approach in
which members of the Security Branch were often harshly discriminated against.
To qualify for amnesty, former members of the Security Branch had to meet the
following requirements:
They
had to prove that the unlawful acts in which they were involved were associated
with a political objective and committed in the conflict of the past
That
the acts were committed in the course and scope of their duties and within the
scope of their express or implied authority and
They
had to make a full disclosure.
These
provisions of The Promotion of National Unity and Reconciliation Act made a
mockery of the closing passages of the Interim Constitution which expressly
determines that amnesty shall be granted in respect of any action or omission
associated with a political objective and committed in the conflict of the
past.. It is clear that Mr de Klerk and former ministers of the National Party,
who were involved in drafting these provisions, did not have the foggiest idea
of the conditions under which the security forces carried out these deeds or
else they didn't really care.
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.). 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..........."
One
of the most shocking incidents of terror in South African history occurred on
20 May 1983. A motor car loaded with powerful explosives was detonated at
around four o'clock in the afternoon right in front of a Nedbank Square
building. (Commonly known as Nedbank Square Maritime House). Altogether 19
people died, including 12 civilians and 7 members of the army. In total 219
people were either severely injured or maimed, of which 217 were civilians and
2 were army members. In his book "The Long Walk to Freedom", Mr
Mandela expressed his regret over the incident but, at the same time, stated
that the ANC accepted that incidents of this nature would occur during the
armed struggle.
The audi alteram partem rule, which is the foundation of natural justice, has never
been applied to members of the Security Branch. This rule has been replaced by
the rule: "The Law is determined by those who make the loudest noise and
who talk and write the most and fill the empty spaces in, especially Afrikaans,
newspapers" - and they are, without exception, those who for some or other
reason have a grudge against the former Security Branch - people like messers
Max du Preez, Jazques Pauw and other like-minded people who, in the past,
leaned towards the ANC.
The
time has come when the people of South Africa must take note of what really
happened in the past and that past events be viewed with more empathy and
understanding for the sacrifices made by members of the Security Branch at
great personal cost to themselves and their families.
Should
equality before the law be upheld and everybody to whom annesty was refused in
the past be prosecuted and should any sense of law and justice remain, it
should start with the members of the NEC of the ANC. The real issue is whether,
by doing this, expression is given to the final paragraph of the Interem
Constitution, which also forms the foundation for the present Constitution. A
quotation from the closing paragraphs of the Interim Constitution reads as
follows:
The
adoption of this Constitution lays the secure foundation for the people of
South Africa to transcend the divisions and strife of the past, which generated
gross violations of human rights, the transgression of humanitarian principles
in violent conflicts and a legacy of hatred, fear guilt and revenge.
These
can now be addressed on the basis that there is a need for understanding but
not for vengeance, a need for reparation but not for retaliation, a need for
ubuntu but not for victimization.
In
order to advance such reconciliation and reconstruction, amnesty shall be
granted in respect of acts, omissions and offences associated with political
objectives and committed in the course of the conflicts of the
past......."
Apart
from the fact that the one-sided prosecution of former members of the Security
Branch will be a gross violation of the principle of equality before the law,
perhaps the most important principle of the Constitution, it will also be in
glaring contrast to the provisions and essence of the concluding paragraph of
the Interim Constitution and will once again flare up the hatred and discord of
the past. Is this the kind of justice and future that some persons and members
of the media envisaged for South Africa?
Seen
as a whole and taking into account everything that has happened, it is a crying
shame that Col de Kock hasn't yet been pardoned.
Various
members of the NEC were not in the country when these attacks were at their
fiercest levels and, as such, escaped prosecution.
During
1996, Col de Kock was found guilty in the Supreme Court in Pretoria and was
sentenced to life plus 80 years imprisonment for the five murders that took
place at Nelspruit. In total he received two life sentences plus 212 years
imprisonment on six other counts of murder (including that of Japie Maponya),
various counts of attempted murder and other charges.
With
the exception of the murders that took place at Nelspruit, the various amnesty
committees found that all the other incidents were committed with a political
objective and were, in fact, connected to the conflict of the past. He was
refused amnesty on two of these counts as it was felt he had not made a full
disclosure. Application for a revision of these cases would unquestionably have
succeeded. However, even Adv Hattingh, who appeared on behalf of Col de Kock in
all of his amnesty hearings, conceded that there was no possibility of a
successful revision in the Nelspruit case. It would therefore not have
benefited him to apply for a revision.
Sometimes
the impression is created that Eugene de Kock is in a fix while the generals
are scot-free - but this stems from ignorance of the facts. In the Nelspruit
case, Col de Kock tried to implicate General Krappies Engelberecht but, during
the criminal and amnesty hearings, conclusive evidence was presented to the
effect that his assertions were unfounded.
In
the Rapport of 10 January 2010, Jacques Pauw insisted, inter alia, that Gen
Engelbrecht be brought to trial. It is not clear whether this stems from malice
or from an inability to grasp the evidence given during the criminal and
amnesty hearings.
There
isn't a shred of evidence on which Gen Engelbrecht can be prosecuted and we
challenge Mr Pauw to demonstrate on what grounds he believes Gen Engelbrecht
could be charged.
There
is no evidence whatsoever that any of the generals was implicated in any of the
murders which Col de Kock was found guilty of. In the Maponya case General le
Roux was still a colonel and was refused amnesty along with Col de Kock.
However,
as Mr Malan ably demonstrated in his minority finding, amnesty was wrongly
denied in the Maponya case. Mr Pauw and any of his like-minded colleagues can
quite safely read Mr Malan's finding and perhaps get someone with a legal
background to explain it to them.
Apparently
the principle of equality before the law had to give way before the harsh
manner in which prosecution of former members of the Security Branch was
insisted upon. As any advocate experienced in criminal law will confirm, on the
basis of common purpose there exists, purely from what can be seen, damning
evidence to prosecute all those members of the NEC who were not granted
amnesty. It is striking, however, that no one seems to insist that equality
before the law should be maintained.
Lately
the possible pardoning of Col de Eugene de Kock has been severely criticised
and persons, who presumably haven't the vaguest idea what Afrikaner character
is all about, loudly condemned the move on behalf of the Afrikaner. They have
even less insight into the disgusting and objectionable conditions Col de Kock
was exposed to during his career in the police.
On
various occasions he was decorated with medals for gallantry. During the
negotiation process the members of the Vlakplaas Unit became an embarrassment
for Mr de Klerk and his cabinet who were more concerned about winning favour
with the ANC at that stage. As a result they had to get rid of the unit.
Members of the unit were treated like lepers and this undoubtedly caused much
bitterness within their ranks.
While
negotiations regarding amnesty were in progress and a general amnesty for all
was being strongly considered, Judge Goldstone began to investigate cases
against Col de Kock and other members of the Security Branch, which were
associated with a political objective and committed in the conflict of the
past. Gen Johan van der Merwe approached Mr de Klerk and objected to this and
called for the investigation to be stopped - but. Mr de Klerk wouldn't hear of
it indicating that it would give the impression that he was trying to cover up
the atrocities of the Security Branch.
Members
of the South African Police were expressly forbidden by Mr de Klerk to
investigate similar charges against members of the ANC. Had the principal of
equality before the law been adhered to, and law and justice prevailed, the
investigation of all such cases would have been put on hold until there was
clarity surrounding the matter of amnesty. Had this been the case, Col de Kock
would, without doubt, have received a lighter sentence because he could only
have been prosecuted for the Nelspruit incident and on the theft charges. The
judge would also have had the advantage of knowing material facts uncovered
during the amnesty process, which would definitely have set the hearings in a
different light.
The
audi alteram partem rule, which is the foundation of natural justice, has never
been applied to members of the Security Branch. This rule has been replaced by
the rule: "The Law is determined by those who make the loudest noise and
who talk and write the most and fill the empty spaces in, especially Afrikaans,
newspapers" - and they are, without exception, those who for some or other
reason have a grudge against the former Security Branch - people like messers
Max du Preez, Jazques Pauw and other like-minded people who, in the past,
leaned towards the ANC.
The
time has come when the people of South Africa must take note of what really
happened in the past and that past events be viewed with more empathy and
understanding for the sacrifices made by members of the Security Branch at
great personal cost to themselves and their families.
Should
equality before the law be upheld and everybody to whom amnesty was refused in
the past be prosecuted and should any sense of law and justice remain, it
should start with the members of the NEC of the ANC. The real issue is whether,
by doing this, expression is given to the final paragraph of the Interim
Constitution, which also forms the foundation for the present Constitution. A
quotation from the closing paragraphs of the Interim Constitution reads as
follows:
The
adoption of this Constitution lays the secure foundation for the people of
South Africa to transcend the divisions and strife of the past, which generated
gross violations of human rights, the transgression of humanitarian principles
in violent conflicts and a legacy of hatred, fear guilt and revenge.
These
can now be addressed on the basis that there is a need for understanding but
not for vengeance, a need for reparation but not for retaliation, a need for
ubuntu but not for victimization.
In
order to advance such reconciliation and reconstruction, amnesty shall be
granted in respect of acts, omissions and offences associated with political
objectives and committed in the course of the conflicts of the
past......."
Apart
from the fact that the one-sided prosecution of former members of the Security
Branch will be a gross violation of the principle of equality before the law,
perhaps the most important principle of the Constitution, it will also be in
glaring contrast to the provisions and essence of the concluding paragraph of
the Interim Constitution and will once again flare up the hatred and discord of
the past. Is this the kind of justice and future that some persons and members
of the media envisaged for South Africa?
Seen
as a whole and taking into account everything that has happened, it is a crying
shame that Col de Kock hasn't yet been pardoned.
Curtesy
of PoliticsWeb
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