Issued by: Truth and Reconciliation Commission
September 5, 1997
NEWS RELEASE ON AMNESTY DECISIONS
(The following summary is given purely to assist those journalists needing a quick initial summary of the application and is not a binding document with any legal status.)
The Amnesty Committee of the Truth and Reconciliation has denied amnesty to an Afrikaner Weerstandsbeweging (AWB) and Orde Boerevolk (OB) leader who led an attack on a bus in which seven passengers died near Durban in October 1990.
The Committee granted amnesty to two other AWB and OB followers who took part in the attack. However, in the first minority opinion handed down in TRC proceedings, one member of the Committee dissented from the majority opinion and said all three applicants should be reused amnesty.
The applicants were David Petrus Botha, 51, formerly the Richards Bay commandant of the AWB and a cell leader of the Orde Boerevolk, Adriaan Smuts, 43, and Eugene Marais, 33. They were sentenced to death in December 1992 for an attack on a bus near kwaMashu. They subsequently had their sentences commuted. Botha is serving a 30-year jail sentence, and Smuts and Marais have been serving 25-year sentences.
They attacked the bus on October 9, 1990, avenging an attack upon pedestrians on the Durban beachfront earlier in the day by youths wearing Pan Africanist Congress T-shirts. The three were convicted on seven counts of murder and 27 counts of attempted murder.
The decision of the Committee was signed by Judge Hassen Mall, the Chairperson, Judge Andrew Wilson, the Deputy Chairperson, Judge Bernard Ngoepe and Adv. Chris de Jager SC. The minority opinion was signed by Ms Sisi Khampepe.
The majority of the Committee held that the attack on the bus was an act associated with a political objective. But it said there was no evidence that Botha had received instructions to carry it out, nor was there evidence that the attack had the approval of either the AWB or the OB. Smuts and Marais, however, had acted on Botha's instructions.
Ms Khampepe said in the minority opinion that she did not agree that Smuts and Marais had simply executed orders. "In my view they did far more than that. They participated in the selection of... targets..." She also said the selection of the bus as a target was disproportionate and there had been no reasonable basis for its selection.
Extracts from the full text follow:
FROM THE MAJORITY DECISION:
"The actions of the perpetrators undoubtedly arose from and were associated with their political objectives, namely to oppose the political reform for which the liberation movements were fighting and with which the National Party Government, to a greater or lesser degree, identified itself, and to send a message to the liberation movements that if they murdered innocent white civilians, innocent blacks would suffer the same fate. This message would in the nature of things have an effect on the National Party government because it was responsible for ensuring the safety of all South Africa's inhabitants and for avoiding a racial conflict....
"In this case political retaliation was not personal revenge, and the actions were accompanied by a political objective, namely the dissemination of a political message that if a liberation movement such as the PAC attacked white civilians then the same would happen to black civilians.....
"People will, of course, differ vehemently from the policy and speeches of the organisations of which the applicants were members. This does not however alter the fact that those organisations were publicly-known organisations engaged in a political struggle with the government and other political organisations. This brings the applicants within the provisions of Section 20(2)(a) of Act 34 of 1995. The act which they committed is an act which was 'associated with' a political objective. The question is whether they meet the criteria laid down in Section 20(3) of the Act. This sub-section lays down criteria or norms and not prerequisites.....
"The incident arises from the conflicts of the past and relates directly to the struggle of the liberation movements for greater and more equitable political representation and the resistance to this from among others the AWB and the Orde Boerevolk. Both of these organisations were publicly-known political organisations which were in vigorous opposition to the intended political reforms of the time and all three applicants were members of these organisations. Both organisations fought tooth-and-nail against the State's reform process as well as the objectives of the liberation movements....
"The evidence was further that the applicants believed that the attack on whites by youths with PAC shirts and emblems was the beginning of an open conflict, as experienced elsewhere in Africa. The acts were committed in the period during which slogans such as 'One settler, one bullet' and 'Killer a farmer, kill a boer' were often heard in speeches and songs of the liberation movements. Militant speeches by leaders of the organisations of which the applicants were members were also the order of the day....
"The legal and factual nature of the acts was particularly serious. Innocent bus passengers lost their lives or were seriously injured. During the period it was indeed shocking, but not foreign to the South African political scene. Many innocent civilians also died in bomb or limpet mine attacks, and attacks took place at sport events, churches and funerals. The incident at the beach the same morning was indicative of the political milieu. Although it was reprehensible - as is any loss of human life - it reflected the factual situation which prevailed at a stage in the conflict of the past and with which account has to be taken. Indemnity was granted in cases which were just as gruesome as the present one and where innocent women and children were also the victims and even where the recommending committee found, in terms of proportionality, that the means used was remote from the political objective being striven for.
"From the evidence it also came clearly to the fore that the conflict among certain sections of the community was to a great degree a racial conflict - a struggle against racial discrimination and a struggle in favour of what was called racial differentiation. This is one of the truisms of the past which is often avoided or denied but which has to be faced squarely. The political settlement which was reached prevented the conflict from growing into a full scale racial war.....
"On the evidence before the Committee, it cannot be found that Botha acted in this specific incident on the instructions of his organisation. Smuts and Marais, however, did act as a result of the order of their superior and they were entitled to accept that he, as commander, would have cleared the action with his leaders. They therefore contend that they acted on behalf of or with the approval of their organisation in a political struggle and a war situation which they believed existed. The actions must be seen in the context of the prevailing political struggle of the time, which was characterised by attacks back and forth by the protagonists and by incidents during which civilians were killed, whether in attacks by security forces or liberation movements. The weapons and ammunition which Smuts and Marais had in their possession at this time were, according to their evidence, obtained and stored to be used in the political war which they foresaw
"As a result amnesty is granted to Smuts and Marais in respect of all the offences of which they were convicted. Amnesty is refused to Botha, except that amnesty is granted for the unlawful possession of a firearm and ammunition secured for same purposes as in the cases of Smuts and Marais."
FROM THE MINORITY OPINION:
"I do not agree that the Second and Third applicants simply executed orders from the First applicant, their cell commander in the Orde Boerevolk. In my view they did far more than that. They participated in the selection of both targets, namely the minibus taxi (whose attack was aborted for reasons which are unclear and are not relevant in this decision) as well as the bus which was fired at by the applicants as a result of which 7 people died and 27 others suffered serious injuries resulting in many of them being permanently disabled and disfigured......
"The fact that the First applicant gave the order to fire at the bus is neither here nor there, as the whole purpose of selecting the target was in any event to launch an attack. The pertinent point for consideration in my view is whether the applicants, by selecting their target, bona fide believed that the selected target would assist them in the furtherance of a political struggle waged by their organisation against their known opponents.
"Having regard to these objectives [of the Orde Boerevolk] and the objective which the applicants alluded to in their testimony (which was to deter the PAC from killing an Afrikaner person) the selection of the target by the Second and the Third applicant in order to achieve these objectives was completely disproportionate. What if the occupants attacked were the opponents of the PAC ?
"It is common cause that in Durban black people were members or supporters of several political organisations or liberation movements, namely the ANC, SACP, PAC and the IFP. It is trite that this region was already engulfed in serious conflict between predominantly black political organisations resulting in tragic bloodshed by constant fighting between these organisations for political turf.
"From the above it is clear that the applicants selected their target indiscriminately. They should have known that there was a reasonable possibility that the persons inside the bus could be members or supporters of different predominantly black organisations including those opposed to the PAC. The Second and Third applicants' positions differ from a person who has been given an order to execute.... They were aware of the objectives of their organisations and therefore knew which organisations or political parties had been identified by their own organisations as their political opponents. Therefore the selected target could not reasonably have achievedplicants.
"... [T]he Second and Third applicants have not complied with Section 20(1) of the Act and their application for amnesty is refused."
(THE FULL TEXT OF THE DECISION IS AVAILABLE FROM THE COMMISSION'S OFFICES.)
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