TRUTH AND RECONCILIATION COMMISSION
APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995.
ONTLAMETSE BERNSTEIN MENYATSOE APPLICANT
The applicant applies for amnesty in respect of the murder of Jacobus Stephanus Uys, Alwyn Wolfaardt and Nicolaas Cornelius Fourie at Mafikeng on 11th March 1994.
The applicant, on 11th March 1994, was a constable in the Bophuthatswana Police Force. The aforementioned deceased persons were all members of the Afrikaner Weerstandsbeweging (the AWB).
The period during which this incident took place was when South Africa was preparing for its first democratic elections.
Bophuthatswana, and in particular Mafikeng/Mmabatho area, was
experiencing severe unrest. The basic cause of the unrest was the stance taken by the President of Bophuthatswana, Mr Lucas Mangope, and his government not to reincorporate Bophuthatswana into South Africa.
This stance taken by the government resulted in widespread protest action which reduced itself to rioting, the burning of a major shopping complex and shooting. It also caused a division amongst members of the public service and the security forces.
One of the consequences of this unrest was that a large heavily armed contingent of members of the AWB entered the country in a convoy of motor vehicles on 10th March 1994. They drove to Mafikeng and spent the night at a military base. Their intention in entering the country was to assist the Mangope government in restoring calm.
That evening the applicant received a report from his neighbour that the AWB had taken over the military base. That report distressed the applicant as he feared that the police would also be taken over and he was not in favour of Bophuthatswana being controlled by the right-wing.
The next day, 11th March 1994, the applicant went to his workplace at the police Headquarters in Mafikeng. A large group of people had gathered there. It was, however, the night before agreed between representatives of the government and the AWB that the AWB would withdraw its' contingent from Bophuthatswana. In the process of withdrawing, the convoy of vehicles drove through the streets of Mafikeng. The situation was extremely volatile and shooting broke out. Members of the AWB shot at people alongside the road and they were shot at by members of the defence force and the police. Many of the people in the area were injured and killed.
The applicant himself shot at the convoy. Two people who were in his close vicinity were shot and injured. The vehicle in which Messrs Wolfaardt, Uys and Fourie were occupants was at the back of the convoy. It was shot at and struck by bullets. It came to a standstill and its occupants, one of whom was critically injured, exited the vehicle and lay on the ground. A relative calm ensued. The three members of the AWB were clearly no longer a threat to anyone. They were lying prone on the ground next to the vehicle and had indicated their surrender. A number of people, including members of the media, gathered in the vicinity. After a lapse of approximately fifteen minutes the applicant walked up to the three AWB members and, without prior warning, shot each of them at close range, killing all three of them. The shooting of the deceased persons was filmed with a video camera.
The application is opposed by the family of Mr Uys and the AWB.
It has been argued that the applicant was not a satisfactory witness. In this regard reference has been made to certain discrepancies that exist between the evidence that the applicant gave before this committee and earlier statements made by him relating to this incident. Certain of these discrepancies are, in our opinion, not material and may be ascribed to a lapse of memory due to the passing of time and the trauma of the events that took place on the day in question. More serious is the evidence given by the applicant at the hearing of this matter to the effect that he was a supporter of the African National Congress (the ANC) and that he shot the deceased persons in self-defence as he thought one of them was reaching for a firearm. He made no mention of either of these two factors in any prior statement made by himself concerning the incident.
Cross-examination of the applicant revealed that he was not a member of the ANC, that he never attended an ANC meeting and that he was ignorant of the policies of the ANC. One would also expect that the applicant would have made reference to the fact that he was an ANC supporter when completing his application form in this matter. It was only during the course of the hearing that application was made to amend the application form to include the words "supporter of the ANC" in response to the question contained therein asking whether the applicant was a supporter of any liberation movement.
One would also have expected the applicant to have made mention in earlier statements that he had acted in self-defence when he shot the deceased persons had that in fact been the case. The video film of the incident does not support the version of self-defence nor do the photographs of the deceased persons which were taken at the scene. The applicant also made no mention in the application form for amnesty of having acted in self-defence.
Although we do not find that the applicant, on the day of the incident, acted in self-defence or as an active supporter of the ANC of long standing, we are satisfied that in the circumstances that prevailed on that day he acted in support of the sentiments of the people who opposed the Mangope government.
The events which led to the general chaos and violence which reigned in Mafikeng that day were clearly politically driven. The applicant was present at the scene where innocent civilians were shot in their numbers and his evidence that he was both angered and traumatised by the events is accepted as being reasonable.
After long and careful consideration of all the circumstances we are of the view that the applicant did not shoot the deceased persons merely out of malice, ill-will or spite or for any other purely personal reason. He, in our opinion, acted in reaction to the horror of the events he had minutes before experienced and witnessed. We also accept the evidence of the applicant that he, at the time, was in favour of Bophuthatswana being reincorporated in South Africa, that he was angered by the presence of South African right-wing elements who he believed were supporting the Bophuthatswana government in its stance against reincorporation and that his anger was heightened when he witnessed civilians being shot at by members of the AWB.
The killing of the deceased persons was, in our opinion, committed in the course of and as part of a political disturbance. In this regard reference is made to section 20(3)(b) of the Promotion of National Unity and Reconciliation Act, No 34 of 1995 (The Act).
In taking all the circumstances into account we are satisfied that the crimes committed by the applicant were acts associated with a political objective committed in the course of the conflicts of the past as contemplated by the Act.
The applicant has given a full account of the events which took place and, despite the unsatisfactory features of his evidence which have been mentioned above, we are also satisfied that he has made disclosure of all relevant facts.
In the result the application succeeds and the applicant is GRANTED amnesty in respect of the murders of Jacobus Stephanus Uys, Alwyn Wolfaardt and Nicolaas Cornelius Fourie at Mafikeng on 11th March 1994.
In our opinion the surviving spouses, children and parents of the three aforementioned murdered persons are victims and in this respect the matter is referred to the Committee on Reparation and Rehabilitation in terms of section 22 of the Act.
SIGNED AT THIS THE DAY OF 1999
JUDGE S.M MILLER
ADV. S. SIGODI
ADV. F.J BOSMAN
JUDGE N.J MOTATA
MMABATHO OLD PARLIAMENT BUILDING
COMMITTEE: JUDGE S MILLER, ADV F BOSMAN,
ADV S SIGODI & JUDGE NJ MOTATA
NAME/S AND APP. NUMBER OF THE APPLICANT/S:
1. MENYATSOE OB AM7498/97
ADV C MPSHE
LEGAL REPS FOR THE APPLICANT/S:
43 MOLOPO ROAD MAFIKENG
CONT: 083 457 5369 OR 0140
LEGAL REPS FOR THE VICTIMS/N.O.K.:
JG VAN DEN BERG,
CONT: 012 3201791
LEGAL REPS FOR IMPLICATED PERSONS: (AWB)
LR NEL, J ENGELBRECHT
P.O. BOX 23550
CONT: 012 329 7011
FAX: 329 7000