DECISION
The applicant applies for amnesty for the killing of Mr Steven Bantu Biko and for assaulting Mr Peter Jones during the general period at which time Mr Biko died. He is one of five persons who make the application for the same events but the applicant's application is a separate one.
The death of Mr Biko and the assault on Mr Jones has regularly been in focus for more than twenty years and been the subject of various enquiries. Generally, it seems whoever testified at these forums, submitted versions that are not too different from the version tendered by the applicant.
In short, he stated that Mr Biko and Mr Jones were arrested near Grahamstown in the Eastern Cape. They were taken to the local police cells where they were held for a while. It is common cause that neither of them were in any way injured at the time. Their conditions remained the same and they were both, though separately, transferred to Port Elizabeth and into the direct custody of the then Security Branch of the South African Police to which the applicant was attached.
He said that he was part of a team that interrogated the two detainees separately. The interrogation of Mr Biko continued for between twenty four to forty eight hours. At some stage during the interrogation Mr Biko sustained some injuries, the most important thereof being to the brain.
Amongst the other injuries observed during the post mortem examinations were extensive but minor bruises and abrasions. There were two distinct scabs on the upper lip, two localised bruises on the rib cage, tramline scars to the left buttock, and bruising to the region of the left eye. There were also a number of lesions found on the brain.
While there was no direct medical evidence at this hearing, the reports of some pathologists or experts with equivalent qualifications were placed before us. The authors of reports were persons who had examined the body of Mr Biko. We will have regard for the general import of the report especially in respect of aspects upon which there was general agreement amongst them.
We will furthermore have only general regard for the applications and evidence of the other applicants who have made applications for amnesty in respect of the same incidents.
According to the applicant, at some stage during the "interrogation", Mr Biko had a violent outburst and directed this at his interrogators. As a result Mr Biko was taken hold of in self-defence and in the ensuing struggle which has been termed a "scuffle", Mr Biko's head struck one of the walls, sustaining the head injury which he suspects lead to his eventual death. He said that initially, upon Mr Biko's outburst, he hit him with a hosepipe in an attempt to compel some restraint but this did not help. He then assisted his colleagues in grabbing hold of Mr Biko after which they all fell in the direction of the wall against which Mr Biko struck his head. Mr Biko then fell onto the floor. It seems Mr Biko was rendered unconscious or almost unconscious as a result.
There are variations in the versions as testified to by the applicant and the versions of the others who also made applications in respect of the same incidents. However, we do not find it necessary to have much regard for these differences.
The applicant testified that thereafter, he assisted in handcuffing, into a crucifix position, a very near unconscious (if not completely) Mr Biko to the iron grille in that room. It is common cause that Mr Biko was later transported to Pretoria for the purposes of receiving medical attention at some state institution where he was declared dead on arrival or died soon after arrival. It is not clear as to why Mr Biko could not or did not receive medical treatment at Port Elizabeth when it seems that this was the most appropriate action to have been taken.
The applicant also admits to assaulting Mr Jones. He testified to assaulting him a number of times by means of the piece of hosepipe while the two of them were alone after the rest of the interrogating team had left the room for reasons which are not really clear. This was after about eighteen hours of interrogation which did not produce any significant information. He hit him a few times after which and as a result of which a full statement was written out by the detainee.
On the other hand Mr Jones rendered a substantially different version of the events related to the assault on him. He said that from the time while he was first in custody at the Walmer Police Station, he suffered from assaults by his interrogators including the applicant. He says that he was not assaulted in the matter described by the Applicant.
Clearly the activities of the applicant and his colleagues were not the result of orders, direct or otherwise, but occurred during interrogation completed within the course and scope of their employment. In the case of both the late Mr Biko and Mr Jones, the applicant suggests that the interrogation was necessary because not much was known of the two detainees save that they were opponents of Apartheid. More information was needed from them especially about the authorship of a particular pamphlet which the applicant and his colleagues found offensive. In addition, it seems, information was also required because of a need for evidence so that contemplated prosecution of the detainees could be processed.
Essentially the material actions of the applicant and his colleagues was a defensive mechanism.
Section 20 of the Promotion of National Unity and Reconciliation Act No 34 of 1995 as amended (hereinafter referred to as 'the Act') provides for the granting of amnesty. It deals with issues relating to persons who are able to qualify for amnesty and under which circumstances' amnesty must be granted.
For the purposes of this application, the relevant provisions of section 20 of the Act are the following:-
(a) "the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsections (2) and (3) of section 20; and
(b) the applicant must make a full disclosure of all relevant facts".
In relation to (a) above, subsection 20 (2) (b) thereof has relevance and reads as follows:
"any employee of the State or any former state or any member of the Security Forces of the State or any former state in the course and scope of his or her duties and within the scope of his or her express or implied authority directed against a publically known political organisation or liberation movement engaged in a political struggle against the State or a former State or against any members or supporters of such organisation or movement, and which was committed bona fide with the object of countering or otherwise resisting the said struggle".
Furthermore, subsection 20 (3) deals with criteria as a means of establishing whether the act, omission or offence is one which is contemplated in subsection 20 (2). These are a number of crucial considerations which fall to be decided in this particular application.
The nature of the Act demands a direct relationship between the offence, the result of the act and the political motive for it. The death of Mr Biko was, on the applicant's version, not intentional nor could it have been foreseen. Therefore it was not a consequence that ought to have been foreseen. As a result, at least the criminal liability of the applicant must be doubted. Furthermore, the requirement of political motivation carries with it the implicit (at least) component of direct intention to commit an unlawful act in order to counter political opposition and to achieve or contribute towards achieving that kind of result. Here again Mr Biko's death did not occur as a result of achieving or contributing towards countering political opposition. Indeed it is not clear whether the applicant knew if the two detainees were members or supported any politically party involved in opposing apartheid. Nor did the applicant or his colleagues know whether Mr Biko and/or Mr Jones were connected to a political party which caused so much political discomfort to the government of the time. Therefore the acts admitted by the applicant cannot be regarded as having been necessary to achieve or contributed to achieving the destruction of any opposition.
The nature of the applicant's explanation of the events does not lend itself to the finding that he and or his colleagues had reasonable grounds to believe that their actions were related to destroying political opposition, in any way. On his own version, the actions which lead to Mr Biko's death were intended to control him and to defend the interrogators. This was their only objective and the material actions related solely to police duties which were expected in the circumstances and not to any political objective. The actions which led to the death of Mr Biko are far too remote and distinct from any political motive.
While it is also peremptory that the applicant should have made full disclosure of all the relevant facts pertaining to the activities for which amnesty is sought, in view of our findings, we do not deem it necessary to deal with the question of full disclosure.
As for the application relating to an assault on Mr Jones it is, to our mind, clear that two independent assaults and distinct are being referred to.
Mr Jones refers to an assault(s) on his person committed by the applicant and his colleagues during the course of his detention, while the applicant refers to an assault committed when Mr Jones was in the applicants' company only. Mr Jones does not refer to this and the applicant does not make application in respect of the assault referred to by Mr Jones.
In the circumstances it seems to us that we are called upon to decide on the application in respect of the assault referred to by the applicant.
We make no finding on the alleged assault referred to by Mr Jones because no application was made in respect thereof.
It is clear that Mr Jones was arrested for what was essentially political reasons and the assault was effected in order to obtain information which was intended to lead to punishment in the form of imprisonment of a political opponent. The assault was committed to facilitate the eventual imprisonment.
While there is no evidence to confirm the said assault we find it strange that the applicant would admit to a non-existent assault. It is possible that after such a long period and the fact that Mr Jones was interrogated for long periods and assaulted on various occasions during his detentions that the assault referred to by the applicant may have occurred but was not significant by comparison to the other assaults for it to have been the subject matter of a mental note that Mr Jones could have made. Without casting any doubt on the integrity of Mr Jones, we prefer to give the applicant the benefit of any doubt in this regard and it seems that the application for the assault as referred to by the applicant, on Mr Jones should be granted.
In the result and for the reasons as set out above, we are not satisfied that the application in respect of the death of Mr Biko complies with the Act and consequently the application is
REFUSED: . In respect of the assault on Mr Jones, and for which the applicant seeks amnesty, the application is
GRANTED: .
DATED AT CAPE TOWN THIS 14 DAY OF DECEMBER 1998.
JUDGE R. PILLAY
ADV. CHRIS DE JAGER S.C.
ADV. S SIGODI
