Despite a ruling that found him guilty of non-politically motivated torture and murder, an ex-policeman still hopes to get amnesty, reports Jim Day
SITTING in a conference room at the maximum-security Zonderwater Prison, east of Pretoria, Hennie Gerber looks more like a casually dressed insurance salesman than a convicted murderer. He seems a nice enough guy, the kind who likes to braai and drink a couple of beers.
Then he starts talking about how he used to take suspected gangsters out to an abandoned mine-dump near Cleveland, hang them upside-down all day and shock their testicles with a hand-held generator.
But that was in the bad old days when he was at war with the forces that wanted to overthrow the state, he says, first fighting these forces with his colleagues on the police force, then as an investigator with Fidelity Guards in Johannesburg. He does not believe he deserves to sit in prison with what he calls “bad, bad people”.
The amnesty committee of the Truth and Reconciliation Commission was wrong, he says, when it denied him amnesty last year for the May 1991 torture and killing of Samuel Kganakga, whom Gerber suspected of taking part in thefts of millions of rand from Fidelity Guards. Gerber was convicted in 1993 of the murder of Kganakga, and sentenced to 20 years in prison.
Gerber, 48, is putting together an application to have the high court review the amnesty committee denial. If he succeeds in getting his application before the court, it would be the first high court review of an amnesty committee ruling, legal experts confirm.
Gerber is basing his appeal on the argument that other applicants received amnesty for similar crimes. He says that in denying him amnesty, the amnesty committee denied him the “equal justice” guaranteed in the Constitution.
Last week, Gerber filed a motion with the high court to force the truth commission to release documents pertaining to the cases of five amnesty applicants – identified in his motion as P Thulo, R Petrus, Mphondo, B Diale, and C Makgale – whose cases he believes were similar to his own. In that motion, he claims officials in the commission have denied him access to these documents.
Truth commission legal consultant Hanif Vally told the Mail & Guardian this week that he is reviewing whether Gerber is entitled to access to the documents or if the commission should oppose his motion in court.
Gerber may be grasping at legal straws in a desperate attempt to get out of prison. The amnesty committee was clear in articulating why it denied his first amnesty application: Gerber failed to prove that the killing was linked to his belief that Kganakga was a Pan African Congress operative, and, therefore, was politically motivated; he failed to show his own belief in a political ideology; and he failed to show that the killing fell within the scope of carrying out his duties, all of which are requirements for amnesty.
The committee found, instead, that the interrogators had taken the whole Kganakga incident “as an entertainment of some sort”, the consequences of which they hoped to shirk.
“The applicants were in the habit of indulging in unlawful torture when interrogating persons and relied on their police connections to avoid any unfortunate consequences of such acts,” the committee found.
The facts of the Gerber case may also fail to tug the heartstrings of a sympathetic public: Gerber, Johan Van Eyk and Francois Oosthuizen took Kganakga to the abandoned mine-dump where Gerber used to braai in his time off. They tortured Kganakga throughout the day of May 21 1991, drinking brandy and vodka to ease the strain of a tough interrogation.
Sometime before 6pm, for reasons they did not explain, Oosthuizen shot the suspect in the shoulder. Kganakga then tried to escape, so Gerber shot him dead. Van Eyk took the body to another site, where he doused it in petrol and burned it. The whole affair might have been forgotten except, as Gerber explains it, one night several months later he and Oosthuizen got in a fight over their investigative methods, and Oosthuizen put a gun to Gerber’s head, so Gerber shot him. Oosthuizen, wounded in the shoulder, got mad and spilled the beans to the police, and all three were charged and then convicted of murder.
Van Eyk, who is incarcerated with Gerber in Zonderwater, joined Gerber’s application to the truth commission, but has decided against a court appeal.
Gerber, meanwhile, insists he deserves amnesty, like other men who committed violent acts in a violent time. He knows his rights, and he’ll be damned if he’s not one to fight for them.