TRUTH AND RECONCILIATION COMMISSION
APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995.
TAKALANI JOSEPH NESAMARI APPLICANT
MUTHEIWANA GABRIEL RAMUSHWANA APPLICANT
PHUMULA JOSIAS MANGA APPLICANT
MUTHUPHEI LEDWICK RAMAMLIGELA APPLICANT
AZWIFARWI CARLSON NETSHIVALE APPLICANT
This is an application for amnesty in terms of the provisions of section 18 of the Promotion of the National Unity and Reconciliation Act No. 34 of 1995 ("the Act") by the applicants who were all members of the Security Branch of the former Venda Police. The application relates to incidents which occurred in Venda during 1981 -1982 involving the torture of several persons following an attack on the Sibasa police station in 1981 in which two policemen were killed. The applicants, save for the 5th applicant also apply for amnesty for defeating the ends of justice and perjury committed in the course of civil litigation which flowed from the incidents of torture.
All the applicants appeared and testified at the hearing . The applications can be summarised as follows:
1. Takalani Joseph Nesamari ( the first applicant ) applies for amnesty for the assault on Ndanganeni Petrus Phaswana and Ramaano Thshikororo and for defeating the ends of justice.
2. Mutherwana Gabriel Ramushwana (the second applicant) applies for amnesty for the assault on Ndganeni Petrus Phaswana and for defeating the ends of justice.
3. Phumula Josias Managa (the third applicant) applies for amnesty for the assault on Phineas Mbulaheni Phosiwa, Tshenuwani Simon Farasini, Ndanganeni Petrus Phaswana and Mbengeni John Ravele and for defeating the ends of justice and perjury.
4. Muthuphei Ledwick Ramaligela applies for amnesty for the assault on Phineas Mbulaheni Phosiwa, Tshenuwani Simon Farisani, Ndanganeni Petrus Phaswana, Mbengeni Jon Ravele and for defeating the ends of justice and perjure.
5. Azwifarwi Carlson Netshivhale applies for amnesty for the assault on Mr Tshifhwiwa Maumela, Romano Thiskororo, Ndanganeni Petrus Phaswana and four other persons in respect of whom no information or evidence was placed before the Committee.
The applications are opposed by a number of victims of whom the following testified at the hearing: Tshenuwani Simon Farisani, Ndanganeni Petrus Phaswana, Phineas Mbulaneni Phosiwa, Tshenuwani Tsifhiwa Maumela, and Romano Tshikororo. The incidents will be dealt with more fully below.
The victims were all at various times held for questioning following the attack on the Sibasa police station on the 26th October 1981. The applicants were under orders to leave no stone unturned to apprehend the persons responsible for the attack. During the interrogation of the victims who were suspected of having information relating to the attack various incidents of torture occurred.
The Committee is satisfied that the applications comply with the formal requirements of the Promotion of National Unity and Reconciliation Act 34 of 1995 hereinafter referred to as "The Act", and finds that all the acts in respect of which amnesty is sought by the applicants were committed with a political objective as required by the Act.
It is common cause that at the time of the incidents a section of the community was opposed to the government of the time which in turn was intent on stamping out all political opposition and more particularly to neutralise the activities of all political activists engaged in the liberation struggle. The victims, from the evidence placed before the Committee, fall into the latter category.
We shall now consider the requirement of full disclosure in terms of Section 20(1) of the Act and we shall in doing so deal separately with the applications of the second and fifth applicant and collectively with that of the first, third and fourth applicants.
THE SECOND APPLICANT : MUTHEIWANA GABRIEL RAMUSHWANA
The second applicant was, at the time of the incident, the deputy commanding officer of the then Venda Security Branch. He testified that the then President of Venda summoned all senior police officers after the attack on the Venda police station and told them to go out and find the people responsible. They were told to leave no stone unturned and to report progress on an hourly basis. This he conveyed to his subordinates.
Apart from having assaulted Mr Phaswana by slapping him in the face when he lost his temper and assaulting a number of unidentified suspects with his bare hands he did not participate in the torture of the victims neither was present when they were assaulted by other policemen. He did, however, condone the actions of his subordinates because it was a political case and he was under the severe pressure from the President who actively encouraged the methods used by the applicants.
The second applicant further testified that the statement made by the victims was false and that he had perjured himself. The evidence given by the victims confirmed and corroborated that of the second applicant and committee is satisfied that he had made a full disclosure of all relevant facts as required by the Act.
The Committee considered as a separate issue the second applicant's request to be granted amnesty for condoning the actions of his subordinates. The Committee, however, views this as tantamount to a general amnesty which does not fall within the ambit of the Act.
THE FIFTH APPLICANT : AMWIFARWI CARLSON NETSHIVALE
The fifth applicant was a constable in the Venda Police Force at the time. He testified that he was called upon to participate in the interrogation of suspects. He and his colleagues were instructed that people who were against the government should be assaulted. He admitted that he participated in the assault of the victims Tshikororo, Phosiwa, Phaswana and Maumela but added that these were the only people he could remember.
In broad outline his evidence corresponded with that of the victims who claimed that he assaulted them and he also disclosed the names of the other of his colleagues who were present. The only matter not disclosed by him was that he had caused the victim Maumela to do strenuous exercises by telling him to stand upright and "flicker" his hands and palms held above his head. Maumela testified that apart from the exercises he could not "read any concealment in the evidence given by the fifth applicant. The Committee does not deem the matter of the exercises as so material as to impact negatively on the evidence of the fifth applicant and is testified that he has made a full disclosure of his participation in the incidents.
THE FIRST, THIRD AND FOURTH APPLICANTS:
All three of the above applicants testified at the hearing. Both in their written applications and in their oral testimony it became clear to the Committee that these three applicants were constantly playing down their role and involvement in the assault and torture of the victims who were tortured separately but from whose evidence a picture of consistency in the methods employed became apparent. The use of a bag filled with water over their heads; the application of electric shocks to their ear lobes and private parts; the pulling of hair from various body parts; the instructions to do strenuous exercises and vicious assaults by the applicants by using their bare hands emerged during the evidence of the victims so consistently that the Committee cannot but accept the truth of their testimony. Much was made in argument that the victim Farisani had not specifically mentioned the electric shocks applied to his private parts in his evidence before the HRV Committee a transcript of which was made available to the Committee. It did, however, transpire that this was indeed contained in a prior written statement to the HRV Committee and the Amnesty Committee is satisfied that the omission in his oral testimony before the HRV Committee does not warrant any negative inference as to the truth of his evidence.
The Committee is not satisfied that the above three applicants have made a full disclosure of all relevant facts as required by section 20(1) of the Act and their applications must consequently FAIL.
1. Takalani Joseph Nesamari, Mutheiwana Gabriel Ramushwana, Phumula Josias Managa and Muthuphei Ledwick Ramaligela are GRANTED amnesty for the offence of defeating the ends of Justice and perjury committed at Sibisa in about June 1982.
2. The application for amnesty of Takalani Joseph Nesamari for the assault and torture of various suspects during 1982 -1990 is REFUSED.
3. The application for amnesty of Mutheiwana Gabriel Ramushwana for the assault on Ndanganeni Petrus Phaswana is GRANTED at or near Sibasa in Venda in about 1982.
4. The application for amnesty of Phumula Josias Managa for the assault on and torture of Phineas Mbulaneni Phosiwa, Tshenuwani Simon Farisani, Ndanganeni Petrus Phaswana and Mbengi Jon Ravele is REFUSED.
5. The application for amnesty of Muthuphei Ledwick Ramaligela for the assault on and torture of Tshenuwani Simon Farisani and various other suspects is REFUSED.
6. The application for amnesty of Azwifarwi Carlson Netshivale for the assault on and his participation in the torture of Tshifniwa Maumela Ramaano Tshikororo and Ndanganeni Petrus Phaswana in Venda in or about 1982 is GRANTED.
Signed at ............................... this the ........................... day
of ................... 1999
JUDGE S. MILLER
JUDGE S. KHAMPEPE