Almost twelve and a half years after the murder of the Motherwell Four and six years after three former security policemen were convicted of the crime, the killers are still successfully riding a legal merry-go-round and are out on bail.
Mark Whale of the Directorate of Public Prosecutions, the chief investigator, this week said he was dismayed at the lack of progress. He said the families of the dead men — three policemen and an askari — were bitterly unhappy that the murderers have not yet spent a day in prison.
Whale described the “incredible” saga of the three apartheid operatives — Gideon Nieuwoudt, Wybrand du Toit and Martiens Ras — that started in 1989.
Nieuwoudt had instructed the four victims to observe a house in Motherwell, a residential area outside Port Elizabeth, on December 14 1989 and had supplied them with an unmarked police car.
Warrant Officer Glen Mgoduka, sergeants Amos Faku and Desmond Mapipa, and the askari Xolile Sakati, also known as Charles Jack, were a few hundred metres from Motherwell when the vehicle was destroyed in an explosion. No one survived and the dead men became known as the Motherwell Four.
Nieuwoudt was the explosives expert who investigated the crime scene. Little remained of the vehicle and less of the four occupants. An informal inquest a month-and-a-half after the incident blamed unknown people for the deaths.
The ANC, then a banned organisation, had claimed responsibility for the deaths. But a second formal judicial inquiry was ordered after newspaper reports that the South African Defence Force had ordered various killings in the Eastern Cape.
Judge Neville Zietsman, then judge president of the Eastern Cape, presided over the inquest. The legal team representing the defence force claimed the security police had organised the bombing to cover up the deaths of Mathew Goniwe and other anti-apartheid activists in the Eastern Cape.
Zietsman ruled that “the evidence given in connection with the explosion uncovered many strange facts and left many questions not satisfactorily answered. The … evidence … raises a suspicion that the truth has not been told and that the deceased might have deliberately been killed by their colleagues.”
A damning report by the Goldstone Commission, a special investigation team established in May 1994, led to the reopening of the investigation into the deaths of the Motherwell Four.
Five security policemen — Nieuwoudt, Du Toit, Ras, Gerhardus Lotz and Jakobus Kok — were arrested and charged with the murders. The trial started in the Port Elizabeth High Court in January 1996.
Eugene “Prime Evil” de Kock, commander of the Vlakplaas dirty tricks and assassination squad, broke his silence and volunteered to testify for the state, though he was facing charges in the Pretoria High Court.
Nieuwoudt, Du Toit and Ras were convicted of the deaths of the Motherwell Four. Lotz and Kok were acquitted on all counts.
Towards the end of June 1996, six-and-a-half years after the murders, Nieuwoudt was sentenced to 20 years’ imprisonment, Du Toit to 15 years and Ras to 10 years. The three were granted leave to appeal to the Supreme Court of Appeal in Bloemfontein and were released on bail.
The families of the dead men instituted civil claims against the state, which were settled out of court.
After the establishment of the Truth and Reconciliation Commission (TRC) and its amnesty committee, perpetrators of gross human rights violations had until December 1996 to apply for amnesty. The three convicted men and six other former security policemen applied for amnesty for the Motherwell Four killings. The other six were: Nic van Rensburg, who arranged the bombing; De Kock, who coordinated the bombing; Nicolaas Vermeulen and Lionel Snyman, who took part in the bombing but testified for the state; and Kok and Lotz.
The three convicted men’s appeal was due to be heard in February 1997, but was delayed pending the outcome of their amnesty hearings.
On December 10 1999, three-and-a-half years after their conviction and 10 years after the killings, the TRC refused all the applicants amnesty, though one member of the committee felt all the men should receive amnesty.
Legal teams for the three gave notice that they intended to take the decision on review to the Cape Town High Court. The TRC indicated it would oppose their motion.
Before their appeal could be heard by the Supreme Court of Appeal in Bloemfontein on May 14 last year the three brought an application against the TRC before the Cape Town High Court. Their council asked the Supreme Court of Appeal to postpone the matter pending the outcome of the review. The state opposed the application, with the Supreme Court of Appeal first reserving judgement and then postponing the appeal until November 26 last year.
But the defence succeeded in getting the Supreme Court of Appeal to postpone the appeal indefinitely, claiming that the Cape Town High Court had not yet delivered judgement in the review proceedings. They argued that it would be pointless to argue the matter and then have the Cape Town High Court grant their review application and thereby grant amnesty.
Whale said the Cape Town High Court handed down its judgement three days before the appeal hearing was to be heard. The majority of the court ruled that the amnesty committee’s decision on all three applicants should be set aside.
The full bench of the court directed the minister of justice to establish a committee on amnesty to consider the applications, though the amnesty committees had ceased to exist.
The appeal has been postponed indefinitely and the TRC Act incorporating the functions and decisions of the amnesty committee has ceased to exist. The applicants won’t continue with the appeal until the Cape Town High Court’s decision has been complied with.
Eugene de Kock and other apart-heid killers are in prison for their crimes and others have been pardoned. But it appears that nothing can be done to resolve the fate of the Motherwell Four killers, says Whale.