“Let me just ask the Commission something. The Commission law – would this override the Official Secrets Act? Are you entirely sure of that? Because I don’t want to be guilty…”

Rownan Fernandes is an explosives expert who worked for the Durban Security Branch in the early 90s. He asks this question, while facing his first in-camera inquiry at the Truth and Reconciliation Commission, held under Section 29 of the Promotion of National Unity and Reconciliation Act (1995). The year is 1996, the city is Durban, and the country is South Africa. The past six years have seen alternating violence and optimism – both to an extent undreamt of by many. More deaths occurred between 1990 and 1994 than throughout the many years of Apartheid oppression, and yet the first democratic election on 27^th April 1994 saw unprecedented calm, with voters queuing patiently and in safety.

South Africa’s fragile and uncertain transition is mirrored by the anxious, cagey phrasing of Fernandes, as he sits in front of this confidential Section 29 panel on the 14^th of November 1996. An unnamed chair runs the proceedings, while Fernandes will be questioned by Ilan Lax, a respected attorney. We know this, because the South African History Archive (SAHA) – an independent, activist archive with roots in the anti-Apartheid movement – recently gained access to transcripts of these secret inquiries. Over a decade of requests for these transcripts, directed to the Department of Justice, finally bore fruit in December 2014, when the Department settled out of court to avoid legal action. SAHA’s Freedom of Information Programme had persisted with their application in terms of the Promotion of Access to Information Act 2000 (PAIA) – and over 15,000 pages of text were delivered to SAHA, in four large cardboard boxes.

The Section 29 investigative clause was a neat tool open to the TRC, to encourage those guilty of human rights violations under Apartheid to come forward and confess. The “carrot” element of this was clear: no information gained from a Section 29 inquiry could be used in a court of law, and the inquiries would remain confidential until deemed otherwise by the TRC. The “stick” side of things was as punitive as its opposite was accommodating: perjury, lying and dissembling to a Section 29 panel was a criminal offence.

Fernandes begins at the beginning. He was transferred from the Security Branch at Vryheid, to Durban, in 1990. After waiting four years for a place to open up, he realised his long-held dream of becoming an explosives expert by winning a spot at the sought-after explosives training course. Seeing his bomb disposal career as a “service to the community”, Fernandes is an unusual security branch operative. He has no known cases of assault, torture, harassment or intimidation against him. He is clear that he was never involved with interrogation of detainees during Apartheid, and his knowledge of the notorious Eugene de Kock appears to be limited to gossip he overheard at social events: “Don’t fuck with the manne van [men of] Vlakplaas…that’s as much as I know”.

But the panel aren’t interested in Vlakplaas. They want to hear Fernandes’ version of events that led to the death of a Pan-African Congress (PAC) operative in Inanda, February 1992. The name of this murdered man changes, like many returning exiles’ names changed and morphed as they bled out of South Africa, and then slipped back in. Moses Maake, alias Themba Ncophoyi (more likely, Ncopai), was killed in a four-roomed house in Inanda, on the evening of 27 February 1992. He was shot during a security branch raid on the property, allegedly for resisting arrest. “Why is this Inanda case bothering you such a lot?” Fernandes asks the Section 29 panel, confused. The chair’s temper flares – “You’ll find out why we are bothering about this ‘Inanda saak [case]’”, he snaps back.

Fernandes is asked to describe Security Branch procedure that would lead to property searches. He explains that when any information came in about possession of weapons, ammunition or bombs in Durban, an explosives expert would be sent to investigate. He lays out the modus operandi of an operation of this sort, explaining that a team would go to the suspected site and do a quick recce of the property. Upon their return, a sketch of the site would be drawn up, and following a briefing meeting, a reaction unit would accompany the investigators to secure the property for search.

The Durban Security Branch had received intelligence that weapons were present at Ncophoyi’s house. Fernandes happened to be on stand-by duty that day, and so he was called in as an explosives expert to conduct the search. On this particular operation, Fernandes claims he had finished searching the bedroom, where he had already discovered an AK[47] under a mattress. A single black man had been identified on the property, and was secured inside the house. Fernandes had moved to the lounge to begin searching under the sofa cushions, when he heard a loud yell – “GRENADE!”

“I work with explosives,” says Fernandes. “I know what they can do to people – then I just run away…I think I dived into the hedge [outside]”. The next thing Fernandes heard was not the anticipated explosion, but gun shots. Returning inside, the single black man was dead.

“From the minute this thing came up you’ve started to look very uncomfortable”, the chair has cautioned. “I want you to think about this and answer honestly”. The Section 29 panel mentions that this dead man was a PAC operative.

“Oh?” says Fernandes. “I didn’t know that”.

* * *

The TRC was no stranger to the contested nature of truth. In its final report, the TRC laid out multiple notions of truth, while acknowledging its primary focus on “obtaining accurate information through reliable (impartial, objective) procedures”. The Section 29 inquiries were part of that apparatus, designed to obtain a forensic admission of guilt, or statement of innocence. The punishment for lying to the TRC, whether in public or at the in-camera inquiries, was the same: it was a criminal offence, perjury.

In 1996, the threat of prosecution was the TRC’s biggest leverage tool. If amnesty was not sought, or full facts were not disclosed, jail time seemed the likely alternative. The vast number of amnesty applications that were turned down, and a suggested prosecutions list 800-strong that was handed to the National Prosecuting Authority by the TRC, indicated these were not empty threats at the time.

Criminal liability, albeit the most powerful, was not the only weapon in the TRC’s Section 29 arsenal. An advantage to holding closed investigative inquiries, was that no witness (in theory) would know what their colleagues had confessed to. In this way, the TRC was able to gather many versions of the same event, compare them, probe them and come to conclusions that would feed into the TRC’s more public work in amnesty and human rights violations committees.

In the case of Rownan Fernandes, it soon became clear that the chair was unhappy with the story as told by the explosives expert. “I want to give you a different version”, he says. “I put it to you that that operation was not a bona fide operation at all.” With that sentence, Fernandes’ future as a free man hangs in the balance. The crime of perjury has a history of being punishable by prison time in South Africa, depending on the circumstances. What other version of this Inanda incident did the TRC have?

The chair lays out this alternative history of the death of Themba Ncophoyi. Ncophoyi was a known PAC operative who had made the same broad mistake as Irene Motasi and Batandwa Ndondo. Their crimes? Identifying an informer who was working with the security branch. If the informer’s identity was compromised, the security branch’s cover was blown. Elimination of such a dangerous man as Ncophoyi was inevitable – but how to make calculated murder seem accidental?

“I put it to you that no hand-grenade was ever found on the scene”, states the chair. “I put it to you that the person was deliberately killed in that house and thereafter a hand-grenade was supplied…and that the subsequent formal inquest was a fabrication and a cover-up. What do you have to say to that?”

The chair’s version of events puts Fernandes squarely in the midst of an assassination. As an explosives expert, he would know about the staging of the scene; as a member of the security branch who testified at the inquest, his innocuous statement there heightens the seriousness of his complicity, if the chair’s version of events is true.

“I must deny that because I don’t know anything about it. That version that you put for me, I don’t know anything about.” Fernandes follows the well-trodden track of initial blanket denial. The chair counters with a Section 29 privilege: “And if there are other members of the police force who have made sworn statements to that effect, they would be lying?”

The chair implies an interesting legal tangle. There are two (or more) statements of the same event, so someone is lying. The chair describes the statements as “sworn”, and we know Fernandes is under oath. It seems, at the very least, someone’s going to be done for perjury. The chair explains how much more serious it could get:

“Are you aware that if it is shown at a later stage that you were aware of this incident and this cover-up, it opens you to charges of murder, conspiracy to murder, obstruction of the course of justice, accessory after the fact…Do you realise that? And you stick with the version that you knew absolutely nothing about this?”

The Section 29 investigators and panelists often led witnesses along the winding, tortuous path of their own half-confessions, filled with amnesia and nebulous remembrances of first names, last names, nick-names – only to turn suddenly and denounce them, laying bare an alternative timeline and immediately probing the gaps and absences therein. This, combined with the threat of prosecution, unearthed numerous truths that did make way for amnesty applications.

But Rownan Fernandes’ inquiry hearing ends with a full denial of complicity: “I did not know that that is how things happened. You’ve said things to me now which I did not know. We were pawns in this entire set-up. In the security branch you would have been a pawn.”

* * *

One of Rownan Fernandes’ colleagues in Durban’s 1980s security branch was the notorious Frank Sandy Bennetts. Bennetts was infamous in Durban in the 1980s – for the high levels of assault charges against him, among other things. His police career spanned years in the riot squad, patrolling the volatile Chesterville location and surrounds, as well as a stint as a caretaker at a Vlakplaas farm. He waived his right to confidentiality at his Section 29 inquiry, also in November 1996, to allow his wife to be present during his testimony, and is candid about his actions and their motivations during his years as a security policeman.

As the TRC Amnesty Committee’s work peaked in 1999 and 2000, Frank Sandy Bennetts filed his own application. In Bennetts’s amnesty submission, heard over three days in June of 2000 in Pinetown, one specific incident required a little more of the amnesty committee’s time. Bennetts implicated himself and others in the murder of a PAC member in Inanda – Bennetts couldn’t remember the man’s name. In his application, Bennetts explained that he was called to a meeting where the elimination of this man was suggested, as he had identified an activist turned informer working with the security branch. The operation was planned to look like the PAC operative was killed while resisting arrest.

In his own words: “My role was to supply a dud hand grenade which would be planted on the scene if necessary. Fernandes was aware that I had in my possession two hand grenades with no detonators or explosives in them which I kept as mementoes. I was requested to attend on the scene with one of these hand grenades.”

With this confession, Rownan Fernandes is back in the hot seat. It’s the same case, after all – the same PAC operative whose name no-one can pin down, the same search operation – the same cry of “GRENADE!” shattering the evening’s peace. Bennetts also says he heard gunfire, as Fernandes did. What happens next, however, does not fit with Fernandes’ story:

“He [Fernandes] then came out and requested me to contact an ambulance and the Duty Officer. We then proceeded to my vehicle and called for them on the radio. While at the vehicle, I handed to Fernandes the grenade as requested, and he returned to the house.”

Bennetts believes that Fernandes returned to the house to complete the mission as it was designed: to plant explosives and create a plausible story for this man’s death, that could be signed off at a friendly inquest. And Fernandes is right back where he was four years ago in 1996, implicated in conspiracy to murder.

Both Bennetts and Fernandes claim to be telling the truth. Both have made sworn statements about different versions of the same death, and Fernandes is ruthless in his rebuttal of the allegations made against him. Called to the amnesty hearing to account for Bennetts’ accusations, Fernandes labels Bennetts a liar – someone who would make up “braaivleis stories [tales told around the fire]” that turned out to be untrue, in order to position himself as someone important. “If you know Frank Bennetts as we know him” – Fernandes’ sentences are clipped and measured – “then you will understand this whole issue much better”. Labelling his summons to the amnesty committee hearing a waste of time, and the allegation that he planted a grenade “absurd”, Fernandes could not be more dismissive of Bennetts’s confessions.

“I will tell you categorically” – now Fernandes is angry – “that no offence was committed at that house”.

In the end, Frank Bennetts’s record of assault charges, coupled with his inability to remember the details of human rights violations he committed, seem to weigh against him. His amnesty application, which covered two additional violations against human rights, was denied. In writing their decision, the judges highlighted that Fernandes was a good witness – and the applicant was not. Fernandes has a clean record without gossip, hearsay or criminal charges. His words and explanations are plausible and calm, next to Bennetts’s statements, which are littered with confusion and amnesia. The TRC, and thus, South Africa, accepts that Rownan Fernandes has been telling the truth all along. As he so pointedly reminds the amnesty committee, when asked whether he sticks to his version of events: “Why must I change the truth? In whose favour?

* * *

Into whose favour does the truth play? In the context of this tale, Fernandes is vindicated and Bennetts must await what surely should have been prosecution – if not for conspiracy to murder the forgotten PAC operative, then for the numerous incidents of assault and torture that he admits to. But South Africa’s government has been remiss in using truth-telling as an aid to prosecution – and thus, as an aid to accountability.

When the amnesty committee wrapped up its work, 800 cases (500 cases regarding missing persons, and 300 others) were handed to the NPA. And yet, the two most high profile TRC-related prosecutions have both ended in acquittals. The legal saga of “Dr Death” AKA Wouter Basson, the head of Apartheid’s Chemical and Biological Warfare Programme, was thrown out of court in 2002, and refused by the Supreme Court of Appeal in 2003. Despite being found guilty of unprofessional conduct in 2013 by the Health Professions Council of South Africa – a non-governmental organ – Basson is still awaiting his sentencing in 2015. The prosecution of two low-level Ciskei Defence Force personnel for the Bisho Massacre – where 28 ANC supporters were gunned down during a protest march in 1992 – also resulted in an acquittal. Senior commanders at the scene of the massacre were never prosecuted. There have been no court appearances for senior South African Police officers who committed abuse under Apartheid (Bennetts included).

More examples abound: Nokuthula Simelane’s family requested a formal inquest just last week – the latest in a decades-long battle for closure on the fate of this young MK operative who was kidnapped and disappeared 32 years ago. Rather than focusing on the Priority Crimes Litigation Unit at the NPA, where the TRC cases sit, South Africa’s bureaucrats seems set on pursuing further Presidential pardons for those accused of political crimes, and currently serving jail time. Clive Derby-Lewis, who helped plan the assassination of Chris Hani, has submitted another request for medical parole recently.

Truth was at the centre of South Africa’s TRC. Globally respected for its approach to this thorny transitional justice issue, South Africa’s focus on truth recovery has gained valuable international currency, which makes its devaluation at home even more desperate. The quest for the truth about the death of Moses Maake, alias Themba Ncophoyi, ended with Bennetts’s amnesty application. But without accountability of some kind – any kind – South Africans won’t know whether telling the truth matters at all. DM

Leslie and Chauke are the Right to Truth Project team, which is part of the South African History Archive’s long-standing work on the unfinished business of the TRC. This is part one in a series of articles discussing the newly released Section 29 materials. You can read more about SAHA, Right to Truth and Section 29 here.

Photo: City of Durban, by Terrence Franck.