TRUTH AND RECONCILIATION COMMISSION
APPLICATION IN TERMS OF SECTION 18 OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION ACT, NO.34 OF 1995.
1. ADRIAAN JOHANNES VLOK
2. JOHANNES VELDE VAN DER MERWE
3. GERRIT NICHOLAS ERASMUS
4. WILLEM FREDERICK SCHOON
5. WAHL DU TOIT
6. EUGENE ALEXANDER DE KOCK
7. PAUL FRANCIS ERASMUS
8. DOUW GERBRANDT WILLEMSE
9. CHARLES ALFRED ZEELIE
10. ANDRIES JOHANNES VAN HEERDEN
11. IZAK DANIEL BOSCH
12. JACOB FRANCOIS KOK
13. LARRY JOHN HANTON
14. NICOLAAS JOHANNES VERMEULEN
15. HENDRIK VAN NIEKERK KOTZE
16. GEORGE FRANCOIUS HAMMOND
17. MICHAEL BELLINGAN
18. FRANK McCARTER
19. PETRUS CASPARUS SNYDERS
DECISION - KHOTSO HOUSE INCIDENT
The 16 applicants are applying for amnesty in respect of all acts, omissions, delicts or offences committed by them pertaining to the damaging by explosion of Khotso House in Johannesburg during August 1988 and any other offence or delict directly flowing from or directly linked to the said explosion including defeating the ends of justice or any cover up of the offence.
At the outset it may be convenient to refer in general to the role played by each of the applicants. Vlok, as Minister of Law and Order, discussed the situation surrounding Khotso House (to which we will refer later) with van der Merwe, the head of the security police. They submitted a report to PW Botha the then State President. The matter was amongst others discussed by the State Security Council. After this meeting, and in a private discussion, Botha instructed Vlok to look into the matter in depth and take the necessary steps to make the building unusable. Schoon, the commander of the Security Police in Pretoria and Gerrit Erasmus the commander in the Johannesburg area were instructed to take the necessary steps and to issue the necessary orders to carry out the operation. Schoon instructed de Kock, the commander of C-Unit of the Security Police at Vlakplaas to take the necessary steps to carry out the intended explosion. The operation had to be carried out in Johannesburg and de Kock had discussions with Gerrit Erasmus who ordered a number of Security Police stationed in the Witwatersrand area to assist in the operation. Du Toit and Kok were attached to the technical division of the SAP dealing with the preparation and the handling of explosives. Hammond and Kotze were members of the Security Police specialising in bomb clearance and neutralising of explosives. They assisted de Kock, Kok and Beyers in setting the explosives in the basement of Khotso House. Hanton and Vermeulen assisted in carrying the explosives to the scene where the explosive operatives took possession thereof while they themselves were posted as guards near the building. They were accompanied by Willemse. Van Heerden, Zeelie and Bosch were keeping observation in order to keep civilians away from the vicinity of the intended explosion. Zeelie also returned after the explosion "to investigate" the crime.
Mc Carter and Snyman were involved with the driving of the motor vehicles transporting the operatives to Khotso House and guarding of the vicinity. Bellingan was involved in obtaining information about activities carried out in Khotso House. For this purpose he had a "printing business" across the road from Khotso House and did printing for some of the organisations housed in Khotso House. He reported about visitors to the building and testified that from information gathered, including a daily perusal of the S.A.C.C. telex communications, he believed that Khotso House was a central point of organised dissent which promoted the revolution engulfing the country at the time.
During August 1988 explosives were put in the basement of Khotso House and the building was badly damaged in the ensuing explosion. A night watchman was injured but fortunately nobody was killed. All the applicants played a part, as envisaged above, in the carrying out of the operation.
After the explosion general Joubert of the SAP (since deceased) was in control of the investigation. He reported to Vlok that he obtained information that a person resembling Shirley Gunn, and identified on an identikit as an MK instructor known as Vivian, was earlier on the night of the explosion seen in the vicinity of Khotso House with two men. According to the report they made enquiries about Khotso House. The person thought to be Vivian carried a heavy briefcase. It was also reported that part of a briefcase cover was found in the rubble after the explosion. The Strategy Department of the police then built a theory on the "circumstantial evidence" and implicated Shirley Gunn as a suspect responsible for the explosion and issued a statement to that effect. Vlok approved this Press-release. Gunn was later arrested and detained but later released. In his evidence before the Committee Vlok apologised to Miss Gunn for falsely implicating her in the Khotso House explosion. He maintained that other incidents were also investigated against her at the time. Michael Bellingan, as a member of Stratcom, helped to spread the disinformation concerning Shirley Gunn although he didn't select her specifically.
The Committee is satisfied that the respective applications are formally in order. The applicants have also made a full disclosure of all the relevant facts pertaining to the explosion. The requirements of section 20(a) and 20(c) of the Act 34 of 1995 as amended, have been met.
It remains to be considered whether the requirements of section 20(b) of the said Act have been met. This requires the weighing up of the requirements laid down in sections 20(2) and 20(3) of the Act.
All the applicants were at the time members or supporters of a publicly known political organisation; in this case the National Party which constituted the government of the day. They testified that they acted in countering the political struggle waged by the liberation forces. This may bring them or some of them within the ambit of section 20(2)(a). For reasons later mentioned, it is not necessary to make a finding in this respect.
It should now be examined whether all of them (including Vlok) were employees of the state and/or whether all of them were members of the Security Forces of the State acting in the course and scope of their duty and within the scope of their express or implied authority against a political organisation or liberation movement or against member of supporters of such organisation or movement and whether they acted bona fide with the object of countering or otherwise resisting the struggle. If so, they would fall within the provisions of section 20(2)b.
Firstly is a cabinet minister an employee of the State?
There are various definitions of the word employee. It is defined as referring to a person rendering services in a subordinate relationship to an employer; a person over whom supervision and control are exercised during the rendering of services; a person subjected to the guidance of an employer in regard to performance of services. Lawsa (1st issue) Vol 13 paragraph 31 and 32 emphasises a relationship of authority between employer and employee, the exercising of supervision and control and the rendering of guidance with regard to the performance of duties. Similar to a director of a company, a minister would normally not be regarded as an employee notwithstanding the fact that he receives a salary and performs his services under the control of Parliament. The same would apply to members of Parliament or similar functionaries. The Committee is of opinion that in passing Act 34 of 1995 Parliament did not intend to exclude its members or ministers from the categories of persons who may qualify for amnesty. In this particular case minister Vlok did not act as a member of the National Party in giving the instruction to render Khotso House unusable. He acted in his capacity as Minister of Law and Order. As a minister, receiving a salary and operating under the control of Parliament, he could be regarded as an employee of the State in the broader sense of the word. In Azapo and others vs President of the Republic of South Africa 1996 (4) 671 on 698 Mahomed D.P. concludes in Section 50:
"In the result, I am satisfied that the epilogue to the Constitution authorised and contemplated an 'amnesty' in its most comprehensive and generous meaning so as to enhance and optimise the prospects of facilitating the constitutional journey from the shame of the past to the promise of the future".
To include a minister as being an employee in Section 20(2)(d) will in the view of the Committee be in accordance with the view expressed by Mahomed D.P.
Secondly what is meant by the words:
"in the course and scope of his or her duties and within the scope of his or her express or implied authority"
The Committee's attention has been drawn to several decisions dealing with the interpretation of this phrase or similar words. In Mkize vs Martens 1914 AD 382 the Appellate division dealt extensively with this problem
Innes J.A. on page 389 stated:
"But perhaps the most satisfactory statement of it is that given by Pollock, Torts (8th ed., p. 78) founded upon a pronouncement of Chief Justice Shaw, of Massachusetts: "I am answerable for the wrongs of my servant or agent, not because he is authorised by me or personally represents me, but because he is about my affairs, and I am bound to see that my affairs are conducted with due regard to the safety of others".
Solomon, J.A. on page 394 continued:
"The master, therefore, should be held liable for the negligence of his servant if the latter cause injury to a third person in doing his master's work, or, in the language of the English authorities. "in the course of his employment". If, however the act which caused the injury was something outside of his master's work, something which he was doing entirely on his own account, for his own pleasure or in his own interest, the master would not be responsible".
J. de Villiers A.J.A. on page 400 puts it as follows:
"Now the law which has been adopted in the case of April vs Pretorius (1906, T.S.C., p 827) is thus laid down by Pothier on Obligations (Evans' translation), paragraph 453: "It is not only by contracting that managers oblige their employers; whoever appoints a person to any function, is answerable for the wrongs and neglects which his agent may commit in the exercise of the functions to which he is appointed", and he relies for this, proposition on D. 14, 3, L.5, paragraph 8. And in paragraph 456 he puts it as follows: "Masters are likewise answerable for the faults of their servants when they have not prevented them, having it in their power to do so. They are even responsible for those which they could not prevent, if the servants committed them in the functions to which they were appointed...".
In Estate van der Byl vs Swanepoel 1927 AD the Appellate division quoted the Mkize decision with approval. De Villiers J.A. in Estate van der Byl vs Swanepoel puts it as follows on page 151.
"The principle to be applied in cases of this kind was laid down by this Court in Mkize vs Martens (1914 AD 382). That principle as expressed amongst others by Voet (9.4.10) and adopted by the Court is that the master is only liable for the torts of his servant committed in officio aut ministerio cui a domino fuit praepositus. The master is liable to third parties if the tort was committed in the affairs or the business of the master to which the servant had been appointed. Voet adds the reason for the rule: for the blame rests with the master for appointing a careless or spiteful person to his affairs. Substantially the same principle is laid down by Pothier (Obligations, sec. 453). Thatis also what is meant by the English Courts when it is said that the act complained of must be within the scope of the agent's authority or must have been committed in the course of the agent's employment. These expressions are synonymous, according to Lord Lindley who delivered the judgment of the Privy Council in Citizens Life Assurance Co. Ltd v Brown (1904, A.C, 423).
In Feldman (Pty) Ltd vs Mall 1945 AD 733 Watermeyer C.J. on page 736 decided:
One is apt, when using the expression "scope of employment" in relation to the work of a servant, to picture to oneself a particular task or undertaking or piece of work assigned to a servant, which is limited in scope by the express instructions of the master, and, to think that all acts done by the servant outside of or contrary to his master's instructions are outside the scope of his employment; but such a conception is too narrow. Instructions vary in character, some may define the work to be done by the servant, others may prescribe the manner in which it is to be accomplished, some may indicate the end to be attained and others the means by which it is to be attained. Provided the servant is doing his master's work or pursuing the master's ends he is acting within the scope of his employment even if he disobeys his master's instructions as to the manner of doing the work or as to the means by which the end is to be attained".
In the same decision Davies A.J.A on page 787 laid down:
"It must be remembered that the master employs the servant of his own free will for his own benefit; he could either undertake the activity himself or altogether abstain from engaging in it. If he chooses to perform it through a servant, he cannot both appropriate and reprobate. The question is not whether he authorised, or indeed desired, some particular act of his servant, or whether it is to his benefit, but whether, whatever his attitude towards it and whatever its consequences to him, that act of the servant flows sufficiently naturally from what he did authorise that he should have foreseen it as a likely result should the servant prove untrustworthy".
As far as the word "acting" is concerned the meaning was aptly dealt with in Horn vs Union Government 1931 CPD 165 on page 171: "Now acting must, in my opinion, include acting wrongly. For if the section applied only to regular action, there would be little need of it, for it is when there has been wrong action that litigation arises. The action must be within the scope of the Act, but it need not be correct". In order to obtain amnesty under Act 34 of 1995 the act must in fact be an offence or delict.
The Committee in the result concludes that all the applicants fall within the ambit of section 20(2) and that this requirement of the Act has been met. They were all at the time employees of the State and all of them, except possibly Vlok, were members of the Security Forces. For the purpose of this decision the Committee does not find it necessary to decide whether the Minister of Law and Order as head of the police is indeed also a member of the Security Forces, as it has been accepted that he was an employee of the State.
In order to decide whether the acts (the malicious damage of property and the using of explosives) were acts associated with a political objective, it is necessary to refer to the evidence.
It is common cause that at the time a war situation existed within the RSA between the government of the day and the liberation forces. The perspective of the police has been dealt with in the decision on application 2773/96 to which this Committee refers without repeating the background again. Both Vlok and van der Merwe dealt extensively with the political background as seen from their perspective in their evidence.
Khotso - house, which was the target attacked, was largely used for office purposes by the South African Council of Churches. Vlok testified that he was present at a meeting between the then president P.W. Botha and members of the SACC where Botha requested them to withdraw their support for the ANC and SA Communist Party. According to him, they refused to do it. Khotso House served as head office of inter alia the UDF which was seen as the internal arm of the liberation forces. Meetings were held in the building which the applicants alleged later resulted in violence on the streets of Johannesburg. Applicants submissions were that at that stage it was also known that the religious community selectively in groups or as organised individuals, was a potential ally in the people's war as envisaged by Mr Tambo.
Special attention had been given to this aspect at the National Consultative Conference of the ANC in June 1985 where it was according to the evidence inter alia recommended that:
"We should aim to create ANC units both within the established Churches and independent Churches and other religious bodies".
Vlok testified that he didn't regard the SACC as a body to be involved in the revolution but he was convinced that individuals within the body rendered assistance to the cadres entering or leaving the country on a mission to participate in the armed struggle. They were convinced that the building was used in the transfer of weapons and that cadres received financial assistance from occupants of the building. They were convinced that the building was used to assist the liberation forces in the armed struggle but they were also aware that it would have world wide repercussions if they would execute a police raid on church offices.
Vlok testified that P.W. Botha discussed the problem with him and requested him to investigate the problem and to report to him what the police intended to do about it. He then studied all available information and concluded:
× that Khotso House was used by the UDF for purposes of planning their operations against the government;
× meetings leading to violence in the streets of Johannesburg were held in the building.
× the building was used as a communication base for receiving and sending messages to and from the liberation movements.
According to Vlok, Botha then instructed him to see to it that the building should become unusable to the liberation movements. Botha, although he didn't give evidence in this hearing, stated in his representations to the Truth Commission that he didn't instruct Vlok to use explosives. He stated that he did instruct Vlok to see to it that the building would be unusable for the liberation forces. Vlok interpreted that to mean that something should be done to the building to destroy it and he and van der Merwe decided to use explosives. Vlok testified that he believed that the destruction of the building would be an act to the disadvantage of the liberation forces and that the act was aimed against them and not against the Council of Churches. He believed it was his duty as Minister of Law and Order and political head of the police to take whatever steps he deemed necessary to counter the revolutionary onslaught. In his testimony he referred to countless incidents on which he based his belief at the time that his acts were politically justified. We do not intend to deal with this in this decision.
As stated above, after Vlok and van der Merwe decided to act on PW Botha's request that Khotso House should be rendered unusable, they instructed the other applicants to carry out the operations.
In conclusion the Committee is satisfied that the offence was committed with a political objective, that the context in which the offence took place was in the course of the political struggle and in reaction to the use of the building for the furthering of the political objectives of the liberation forces. The loss of life had, in terms of the instructions, to be avoided as far as possible. In fact nobody was killed in the incident but due to the explosion people living across the street suffered shock and a night watchman, Mr Welcome Ntumba, was injured.
The objective was to render the building unusable and was directed at a political opponent and was committed in the execution of an order and with the approval of the Minister of Law and Order.
The evidence was that the severe damage of the property was to the disadvantage of inter alia the UDF and that they to an extent succeeded in their objective to disadvantage the liberation forces. The relationship between the offence and the political objective was not so disproportionate that it could be considered to be a factor disqualifying the offence to be regarded as associated with a political objective.
The Committee therefore is satisfied that in terms of Section 20(1)
(a) The applications comply with the requirements of the Act.
(b) The offence is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of section 20(2) and sec 20(3).
(c) That the applicants have made a full disclosure of all relevant facts.
Amnesty is therefore GRANTED to all the applicants in respect of the following offences:
Conspiracy to commit and the committing of:
1. Public violence and malicious damage to the property known as Khotso House on the 31 August 1988 at Johannesburg.
2. The unlawful possession of arms, ammunition and explosives for the purposes of committing the offences referred to under (1) above.
3. Defeating the ends of justice, by inter alia spreading disinformation about the possible involvement of Shirley Gunn in the explosion.
4. Any other offence or delict directly or indirectly linked to the explosion caused at Khotso House on 31 August 1988 based on the facts and disclosed in the evidence before the Committee at the hearing.
Signed at Cape Town on this day of 1999.
JUDGE A. WILSON
ADV. C DE JAGER SC
ADV. L GCABASHE
ADV. JB SIBANYONI