CHAIRPERSON: Mr Booyens are we ready?

ADV BOOYENS: Yes, M’Lord. Mr Chairman I ask leave to hand in, in the time available to me, rather cryptic Heads of Argument. I've got three copies for the Bench and copies for my learned friend, Mr Bizos and for the evidence leader and a copy for the ......

Mr Chairman and gentlemen of the Committee, I do not propose reading my Heads of Argument onto the record, I've always thought that was to be a waste of time.

In paragraph one we just deal with a very brief introduction of the facts. It is really a complete summary, or not a complete summary, a very brief summary as to the events which culminated in this. Thereafter we deal with the applicant, Mr Snyman.

Now in a nut-shell what we are saying about Snyman, is the following: Snyman is an old man, he is not a man in good health. He was testifying about events which occurred at the time, just about twenty years ago. We should remember that Snyman, and I will concede that there are points of criticism against Snyman, but in essence when all is said and done Snyman was cross-questioned, as my learned friend is fully entitled to do of course, about very fine details.

Now one always hears the argument but this was an out of the ordinary event and for that reason you should be able to remember better. But M'Lord, if one was, for example involved in a motor accident about twenty years ago, where somebody was killed, and if I'm asked exact details about that today, and my brain is still in reasonably good health - my brain is still reasonably active, even I would have some difficulty in remembering details. I think one must take that factor into account; that he was asked detail, he was crossed-examined for a long time and for that reason there are certain points of criticism against his evidence.

Nevertheless, Snyman persistently stuck, in essence, to the version of the scuffle. Obviously it was a moving scene; there was one of the examples one can remember as at one stage he said his head hit the wall and then it appears that he actually heard something which he thought was the man's head hitting the wall, but in essence his version remained the same. For that reason, as we deal with it more fully in our Heads of Argument, we would submit that we cannot for that reason just outright go and reject the evidence of Snyman.

The evidence of Mr Siebert which where he had the disadvantage of giving evidence and then having to continue his evidence some while later, of course apart from the fact that he's got youth on his side, suffers from the same problem of the effluction of time.

We submit that Siebert was frank and what he said to the Committee, he readily admitted that he was, it was actually his behaviour which induced the whole incident - the whole scuffle. If he did not tell the deceased to get up and pulled him upright, the fight wouldn't have started.

What we should remember Mr Chairman, and what we cannot get past is; if this is not a trial, these people are not being charged with something; they are not trying to defend themselves against something, if it was a trial, an argument such as you're trying to water things down, would have some conviction, but we are dealing with a completely different process. A process even if this investigating team did beat up the deceased, and if he was hit with fists and so on during the course of the interrogation, they could still have approached this Committee and say to this Committee, "we did it for a political purpose".

And then one must ask yourself the question, why would they water it down? In fact, one may go further and one may even say to them, "you know, if you water it down it may not sound as credible if you say what people perceive to have been, would have been the Security Police's behaviour", but nonetheless, they insisted that this is what happened, and for that reason that is a factor that we've got to take into account.

M'Lord, we cannot with respect, because we hold certain beliefs as to how the Security Police would have acted, hold that factor and say that they would have acted that way.

Furthermore one should not lose sight of the fact that had the incident not occurred; and I'm talking about the scuffle and the fall, and had the interrogation proceeded over a long time, and I'm just - we are speculating, but then indeed the methods, the third degree methods oft used to adduce or get information out of detainees might have came to the fall, but because the deceased got injured very early on in the proceedings, that next stage, if one wants to call it a stage, never occurred.

It is for that reason that we submit that in fact Mr Siebert has not been demonstrated to be deliberately untruthful and for that reason also in his instance, we would submit, that there has been full disclosure to the best of his ability and that I want to make very clear M'Lord. If any one of us here today has to make a full disclosure about an incident twenty years ago, at best it can be to the best of your ability, bearing in mind that it was twenty years ago.

Mr Chairman, the applicant Mr Marx, I describe him as an outstanding example of frankness and honesty and that is a submission which I submit is one that I've got every right to make; is that, at no hesitation of saying, I wasn't happy with the fact that the deceased was chained to the grill afterwards. I wasn't happy with the way things were developing and I went to Goosen and I said to Goosen I want to withdraw from this lot. But the important bit in the evidence of Marx is simply the following. Marx, who in our submission is an honest witness, tells us:

which he doesn't claim that he saw how it started,

The significance of that is, Mr Chairman, that Marx with very good evidence strengthens the version of the other applicants that there was indeed a scuffle. Now, Mr Chairman, once we accept that there was indeed a scuffle, then one should not make the error of entering into the field of conjecture and speculation and expecting minor details.

Mr Chairman, if a fight between four people breaks out in the centre of the stage now, and all of us are required to describe in minute detail ten minutes later what happened, it is highly unlikely that our detail would also differ. And it is for that reason that we submit that once we accept the fact of the scuffle, once we accept the fact of people falling, there is the one aspect which has caused a lot of cross examination from our learned friend, the phrase was used "in die muur met hom vas gehardloop", but once again as so frequently happens with pleadings, the use of a single word can sometimes connotes something different but at the end of the day one must look at the totality of the picture.

My learned friend himself, has adduced, has put to the witnesses the size of the room. The room still had furniture in it. And once we take that factor into account most certainly then to really be able to talk of "hardloop" or run into a four metre space, M'Lord that by itself indicates that it was perhaps not quite as elegantly phrased, but then the witness is qualified. Marx made it clear what happened. They were wrestling and they fell towards the wall. Siebert made it clear. There was never a question of the man being run deliberately, one got the impression that there was an effort to convey that one had the situation that one sees sometimes in this big rate movies of a man's head being used as a battering ram against the wall, but that is evidently not what happened, and once again I would urge your Lordship - Mr Chairman and the other gentlemen Commissioners to look at the totality of the picture as sketched by all the applicants. So we would respectfully submit that there has indeed been full disclosure.

Now, Mr Chairman, in dealing with the evidence of Mr Peter Jones, I understood yesterday that my learned friend says that Mr Jones's evidence is introduced on the basis of similar fact and is admissible for that reason. We would submit that in fact, I am aware of the cases such as Letsogo and others 1964 (4) 768. The reference is contained at page 8 of my Heads, that was followed in a later '80 case which I'll give your Lordship just now, but the principle in Letsogo was that similar fact where a certain group of policemen were involved in using certain third degree methods to extract confessions from detainees, the evidence of other detainees could be used in support of the evidence of those who wished to challenge it. But what of course makes this different Mr Chairman is, that in this fact Mr Jones' evidence is not similar fact evidence, because similar to which facts?

There has not been one bit of evidence that Mr Biko had been visited at the police cells at night; there has not been one bit of evidence that Mr Biko had previously been interrogated; there has not been one bit of evidence that Mr Biko had earlier on been treated in the way by standing on bricks, by trying to make him exhausted, so what we are really, what the Commission is really being asked to do here is to make a finding that because Mr Jones was treated in a certain way, Mr Biko who was a detainee at this stage would have been treated in the same way, and I presume per inference, one can then perhaps argue and say all other detainees that were there at the time would have been treated in the same way, but we heard nothing from the other detainees. And for that reason we submit that it would be extremely dangerous to place any reliance into make a finding that Mr Biko was deliberately assaulted on the evidence of Mr Jones, and we would persist in our attitude that for this reason Mr Jones's evidence does not meet the norm for admissibility of similar fact evidence and his evidence about assaults should be ignored, at least insofar as the assaults go to prove that the deceased was assaulted.

I presume it could be argued, I don't know, but if you deny that you assaulted him, you're not making a full disclosure but that with respect is also wrong because Mr Jones was a separate incident. If they did assault Mr Jones then they can be charged for it. They haven't applied for amnesty for assaulting Mr Jones. They cannot get amnesty. If they walked in here and they gave evidence on the way the applications stand at the moment, and they gave evidence and said under cross-examination by my learned friend for example, "yes, no we did assault Mr Jones, we beat him up", then they couldn't get amnesty for assaulting Mr Jones because they haven't applied for it, and full disclosure ins far as the Act is concerned surely can mean only full disclosure directly relevant to the incident complained of.

Mr Chairman I do not want to deal at length with Mr Jones. We have dealt fairly fully on pages 6,7 and 8 with what we say, have to say about his evidence. We do criticise him in some regard, but our primary submission is that it is not even necessary for the Committee to consider that evidence. And for that reason it is only should the Committee hold, that in fact the evidence of Mr Jones can be used for either of the two purposes I mentioned, then we would ask the Committee to look at the criticisms of him as a witness. We submit that we do not get to that stage even.

Mr Chairman as far as the political motive is concerned, we deal with that in our Heads as well. In summary the resondre en tre(?) for the existence of a security police in this country or a similar type of police force in any other country in the world is to protect that government against those forces which tries to overthrow it or to effect its effectiveness and which tries in whatever way that the Government of the day perceives to be an improper way. One cannot go so far as to say that the Government that governed this country in 1977 was a minority government and for that reason because the government did not have legitimacy in the eyes of the majority the acts of the Security Police trying to keep that Government that lacked legitimacy into power can for that reason never be politically motivated.

Why, we must ask ourselves, did the paths of Mr Steve Biko and the Security Police cross? Those paths crossed because Mr Biko and others like him believed that the Government of the day should not be governing the country; they believed that a more representative Government should be governing the country and for that reason they resisted the Government. The Government used it's laws to react to that. They caused a banning order in the King William’s Town District to be served on Mr Biko. They prevented his freedom of movement. They arrested him.

Their forces were under instructions that they must take steps against those which the Government of the day perceived to be a threat to its security. That filtered down to the policemen on the ground, the front line soldiers of apartheid one would call them. They had to take the battle to the enemy in a manner of speaking. And it was during this confrontation, and the only reason why there was this confrontation, between Mr Biko on the one hand and the Security Police on the other hand, is because the political interest that the Security Police sought to protect, in their perception the Security of the State, and the ability of the State to continue governing, and the interest of Mr Biko and those ideals he stood for that says, "but that State is not a State which could legitimately govern this country". Those two interests clash and the point of impact was at Sanlam Building in Port Elizabeth.

MR POTGIETER: But Mr Booyens, I have a difficulty, was it all that profound, wasn't it a very simple question of Mr Biko having been regarded as breached the banning order, in other words he had breached the law, and the Police arrested him! That's how their paths crossed!

ADV BOOYENS: Well, I said that's how their paths crossed, I said that the collision occurred at Sanlam Building Mr Chairman.

MR POTGIETER: You know the point is that when he was stopped at the road block, he was obviously in breach of his banning order and that is how his contact with the Police came about. They thought he was committing an offence. They were not out to engage in a political battle with him, not so?

ADV BOOYENS: Mr Chairman, why was he banned in the first place? Surely he was not banned because, at least the theory is, he would have been banned because of his political beliefs. When he ended in that road block, obviously that created an opportunity. If it was just for a breach of the road block, of his banning order, remember he wasn't even caught in Port Elizabeth, he was caught at Grahamstown, but listen to the evidence of Mr Jones.

Mr Jones was questioned at length about other activities; about other political activities; about why the visit to Cape Town, we cannot - it will be a complete over simplification and a serious misdirection to say that the only reason why the clash occurred is because Mr Biko broke his banning orders. Because then there was no need to interrogate him, or for that matter no need to interrogate Mr Jones.

We could have charged Mr Biko under that section that said that you have to stay in the district and you could in all probability I presume, and it's been some time since I prosecuted, but you could in all probability charge Mr Jones as an accomplice to aiding and abetting him in breaking his banning order, but it is clear from the evidence of Mr Jones that that was not all that they were interested in.

MR POTGIETER: What about the pamphlet?

ADV BOOYENS: What about it Mr Chairman? The evidence clearly was Mr Jones says that they had nothing to do with the pamphlet. The test I would submit with respect is not whether or not Mr Biko indeed had something to do with the pamphlet, the test is, did the Police believe that Mr Biko had something to do with the pamphlet. Mr Jones's evidence somewhere says, if I recall correctly that it was in fact in some stage put to him that Marx; assist me Mr Commissioner, I think he says in fact somewhere that it was said that Marx - some policeman, I think it was Marx had seen them at a school in the PE District off-loading the pamphlets.

MR POTGIETER: Yes, can I Mr Booyens just explain. You see, I understand the applicants to have said that they never intended to cause the death of Mr Biko. What they wanted to do was to get a criminal charge to stick against him and to get him dealt with by the courts, possibly imprisoned and neutralise his influence in that way. So I understand them to say that obviously the breach of the banning order is cut and dry - I mean he was guilty of that one, there's no question about that. But they were also interested in the pamphlet because they obviously believe that he had some critical role to play either as the author or somehow distributing the pamphlet, so they could possibly make that charge stick against him as well. Because I mean look, the wording of that pamphlet had opened up quite a few serious charges, you could think of sedition, you could think of all sorts of serious charges.

So I had thought what they were trying to tell us was that that was really what they were all about. They were going to use the law against him; they were going to throw the book against him; get him convicted and take him out of circulation or am I mistaken in that impression?

ADV BOOYENS: I think the pamphlet was only part of it. There was also interrogation about the purpose of the visit to Cape Town according to Mr Jones. So yes, they were interrogating him about his political activities.

CHAIRPERSON: Apart from Mr Jones's explanation as to why, what is the evidence of the applicants as to why Biko was arrested?

ADV BOOYENS: As to the why he was arrested, it's simple! He was arrested by another branch because he breached his banning orders.

CHAIRPERSON: Yes, and then that gave rise to an interrogation of him.

ADV BOOYENS: On issues clearly outside the breach of the banning order it doesn't sound if the breach of the banning order was at all considered. That was cut and dry.

CHAIRPERSON: So then the next question was that because he breached his banning order and was known to have gone to Cape Town, they wanted to know why was he in Cape Town?

ADV BOOYENS: That’s it.

CHAIRPERSON: So they interrogate him in why were you in Cape Town? Is that the interrogation?

ADV BOOYENS: Well, the intended, just remember with respect Mr Chairman that the intended interrogation never really took place. But yes, he would ....(intervention)

CHAIRPERSON: .....what the purpose they had in mind

ADV BOOYENS: The purpose they had in mind would be to questioning about his political activities, determine whether his political activities which could include his visit to Cape Town, which could include distribution or whatever he had to do with the pamphlet and to determine whether he indeed - those political activities indeed amounted to a breach of the plethora of the security legislation at the time, but also to obtain information, because I think there was some questioning of Mr Siebert if I am not mistaken as to what the purpose was, and he said it was twofold. First of all you see what information you can get and you use that information, you question me under, I think it was Section 6 in those days ... (intervention)

ADV SANDI: Can I just ask ....(intervention)

ADV BOOYENS: Can I just complete my answer please Mr Sandi, then I'll deal with your question through you Mr Chairman.

You're detained under Section 6, they obtain certain information from you, they used that information then to go and confront other people; in other words they would question me under Section 6; they can't use that against me in court, but during my interrogation I say that Pete and Paul were with me. Now they go to Pete and Paul and they get statements from them.

Mr Chairman through you Mr Sandi has indicated that he has a question for me.

CHAIRPERSON: Yes, I understand.

MR SANDI: Mr Booyens when you say the Security Police wanted to interrogate Mr Biko about his political activities, as I understand not all political activities will amount to the breach of the law. What exactly did they want to find out about his political activities? Didn't they know that he was a politically active person? Weren't they monitoring his movements? What crime were they investigating in relation to his visit in Cape Town?

ADV BOOYENS: Mr Chairman, what crime they would have investigating, appears at page 135E of the record.

That emanates from the statement of Mr Siebert, but you asked me what crime?

I think Mr Potgieter has probably put it much more succinctly than I can. If for example they could pin that pamphlet onto them, there's sedition there. I think if I still remember the old Security Legislation correctly there would certainly be some or other offence there under the Terrorism Act. If there was a conspiracy in Cape Town with people to get forces together with the ultimate purpose of overthrowing the Government, that would have been some crime under the Security Legislation. Mr Chairman, there was - if he played a role in the unrest in the Eastern Cape at that stage that probably would have been sedition. So in those days with respect Mr Chairman those of us who are slightly older would recall that with a loaded Act, the loaded old Terrorism Act and all the presumptions contained in it, that people could be charged with terrorism or something like that very easily without necessarily carrying a hand grenade and a AK47.

So I think there are any number of crimes which they could have been investigating, but obviously as it would go in crime investigation matters you would end up with the situation where first you would get the act, the acts of the man together, what had he done; and the decision as to whether what everything he did amounts to a crime of the one or the other does not ultimately rest with the Police, it rests with the Attorney General to decide whether he should prosecute.

MR SANDI: You see, I'm asking you this question because the impression I personally get from the evidence of all the applicants, is that they seem to have had a vague suspicion that somehow Mr Biko was involved in the general unrest that was taking place in this area. Now when I look at this pamphlet I noticed that it does not even say that it has been issued by BPC.

ADV BOOYENS: No, it doesn't. But Mr Jones said they said to him, that they saw him and Mr Biko handing out this pamphlet in PE. Mr Chairman, with respect to Mr Sandi, if I was involved with an activist organisation in 1978, and I think if any one of us was involved, and we issued that pamphlet, the last thing you would want to put on is you're identity or even you're organisation’s identity. If you state in that pamphlet that it was issued by the BPC, the BPC would have been banned and outlawed and all its - its whole - I am not saying it was issued by the BPC, all I'm saying is whoever issued that pamphlet would certainly not be too forthcoming as to that it was me who issued this pamphlet. I think that would have been, I don't think the people involved in liberation movement, would have been that short-sighted Mr Chairman, with respect.

MR POTGIETER: Mr Booyens, could I just clear up this one impression that I had. I just want to ask you, on paginated page 4, that's the application of Mr Snyman. Have you got that? It's also the typed page 4 of Mr Snyman's application form.

ADV BOOYENS: Yes Mr Chairman.

ADV BOOYENS : Can I just refer you to this section and just see if we understand this to have been the situation. Say the last third of that long paragraph that starts with Steve Biko and Peter Jones, have you got that one? That long paragraph. About the last third of that paragraph it starts with a sentence:

go two lines further down, there's another sentence that starts;

ADV BOOYENS: Well yes, it seems that the whole purpose of questioning the man was simply to ultimately to neutralise him, but neutralise him by way of having him prosecuted. But then of course Mr Chairman, we must not make the mistake of saying that if the Police, the Security Police, because it seems to me that maybe the reason these questions are asked of me, that because the Security Police are interrogating a detainee to find out whether he has committed political crimes because what we are talking about here are political crimes, to determine whether he is involved in the commission of political crimes and during that process, gross Human Rights Violation takes place; and that for that reason we must go back further.

Why did the questioning start in the first place? The questioning started in the first place because there's a struggle going on. Because if we are going to say that whenever a Security policeman acts in terms, wanting to question a political detainee and for that reason it cannot have a political motive, then we are -surely the whole political motive is to get him into jail; to get his political activity stopped.

MR POTGIETER: But isn't that part of the normal duty of the police, if you had committed an offence is to investigate. If you are, if there's evidence against you, to have you prosecuted and imprisoned if it's necessary.

ADV BOOYENS: That is the normal duties of the police, but it is not the normal duties of the police to use third degree methods. And it is in that conflict situation against political background, what we are talking about.

But quite frankly, if we are going to say that no Security policeman that ever interrogated a man and an interrogation got out of hand, can get amnesty, then we will seriously have to consider whether it is worthwhile for 90% of the policemen who applied for amnesty to proceed, if that is the interpretation on the Act, then 90% of the Security Police who applied for amnesty will have to reconsider their position!

MR SANDI: Yes, but when you say that Mr Booyens, are you not by implication suggesting that everything that happens to a political detainee whilst in detention, is necessarily an act committed with a political objective, is that what you are saying?

ADV BOOYENS: No, that's not what I'm saying. Mr Chairman, what I am saying is; the policemen are busy with an investigation where a man - they are investigating the possibilities whether a man has in fact been involved in breaking the political laws of the country. So the whole matter has got a political colour. Now in order to get results, because there is a lot of pressure from the politicians and from their Head Office, they commit a human rights abuse. It's not everything, we are dealing with human rights abuses. I am not suggesting that, to use a simple example, if a political detainee is refusing to eat his food and the constable who is in charge of him at the ex-police station gives him a smack; that would be a political act - that would be ridiculous; it can never be.

MR SANDI: Let us look at the situation we dealing with here. You have a high profile political detainee. He’s about to be questioned about matters in which he is suspected of playing a role; he refuses to stand up whilst being interrogated; he insists that he will sit down. Now in that situation could the police not achieve the same goal of interrogating Mr Biko, by allowing him to sit down and question him. Isn't this really how this whole thing started?

ADV BOOYENS: Yes, that's what I said in my Heads of Argument. This whole thing started because Mr Siebert told him to stand up. ....(intervention)

MR SANDI: Yes, but do you concede that the Security Police in that situation could have achieved the same objectives by allowing Mr Biko to sit on the chair and questioning him? What harm, this is my question; what harm would be sustained by the interrogation process by allowing this gentleman to sit down and ask him the questions they want to ask him. ...(indistinct)

ADV BOOYENS: We missed each other Mr Potgieter.

MR POTGIETER: I thought I'll just add it before you answer. Bearing in mind that Mr Jones was allowed to sit down!

ADV BOOYENS: Well, not all the time. I think Mr Jones told us that he had to stand on some bricks with some chairs. Mr Chairman I don't really understand the point of the question but I'll try to answer it.

The Security Police could have, throughout all the years that they were dealing with the Liberation Organisations, could have treated all the people that they questioned as well as, I wouldn't say counsel, I would say attorneys, because I understand they are more decent than we are treat their clients when they take instructions from them. Yes, they could have done that, then we wouldn't have needed this Commission.

MR SANDI: Do you recall from the evidence of Mr Siebert that this whole thing would never have happened had he allowed Mr Biko to take a seat and he questions him. And he also went on to say it would never have happened had Mr Beneke not rushed from the other office to interfere with his interrogation act?

ADV BOOYENS: Yes, I recall it; but the fact is it did happen. The reason Mr Siebert gave is the method of interrogation employed by the Security Police was that you, as the interrogator, had to establish a position of supremacy in a manner of speaking over the person that you are busy interrogating. Obviously we can debate the right or the wrong of it, but the whole point is, that that is why we are here. It's not because they cross-questioned the man in the right way, it's because they did it in the wrong way!

MR SANDI: Do you recall that none of the applicants were able to identify or point out any leader or politician in their church or the National Party who had said; "political detainees should not be allowed to take a seat whilst being interrogated?"

ADV BOOYENS: Mr Chairman they wouldn't be able to point out any politician that would have said, they would took a vote then ....(intervention..)

CHAIRPERSON: I think in any case that's a different issue as to whether they were acting on their orders or instructions of political leaders. That's a different argument, isn't it?

ADV BOOYENS: Quite so Mr Chairman.

CHAIRPERSON: We are now talking about the purpose for which the interrogation was considered by the police to be necessary. ADV BOOYENS : Yes

CHAIRPERSON: Whether that purpose was a political purpose or not.

ADV BOOYENS: Yes.

CHAIRPERSON: That's the argument you are trying to develop, isn't it?

ADV BOOYENS: Yes, that's the argument that I'm trying to develop Mr Chairman. It goes without saying that no politician aren't prepared to say whoever told them that people are to sit or to stand or to be given water every fifteen minutes or something like that, I think politicians talk nonsense on a higher level than that. They do not - wouldn't deal with something like that.

But the purpose of the interrogation; the crux of the question is whether the purpose of the interrogation was a political one. The purpose of the interrogation could only have been to exactly find out what Mr Biko's political attitude is; Mr Biko's political attitude was relevant to determine whether he committed a political offence, so the whole Biko police confrontation was a confrontation between the forces of Liberation on the other hand and the forces of State on the other hand, and that collision was on the political level. The policemen were the instruments that were used in this political clash.

It is very very conceivable that bearing in mind their own political background in that what they believed, that it is exactly because of the fact that this a political background that emotions would get frayed easier then in case of a ordinary criminal investigation.

Mr Chairman, so our submission would be that there was indeed a political motive and that if the act is a political act as envisaged by, as set out on page 9 paragraph 3 of our Heads of Argument, now we deal with how we say that the term "satisfied" should be interpreted.

Then another potential issue, which I think there's not clarity on is; it may indeed even be arguable to say well, what people like Marx didn't sow amounted to no offence, at least as far as Mr Biko is concerned there is of course always the perjury and so on. But that is not in our submission really within the province of this committee to decide the fact that there is a risk that the prosecuting authorities may institute a prosecution, is in our submission adequate reason for us to approach this Committee and to say give us amnesty. It's not for this Committee to decide the technicalities of what offence and on what basis there is a risk on these facts that the prosecuting authorities may institute a prosecution.

Mr Chairman, if one looks at the other requirements of the Act, there's a full disclosure whether there was orders. The order that comes through to me is a general one. "You must resist the efforts of the Liberation Movement to overthrow the Government." It's comparable to a situation where a General in a war situation would tell - would insist that a certain enemy stronghold be taken; but the how and the why and the method does not rest with the General. He gives the order to take the enemy stronghold, but it is the captain or the lieutenant on the ground that decides how he does it. So quite frankly to suggest that one can attach any validity to the fact that the politicians never said to people that they shouldn't sit down and so on, or they must tell them to stand up, with respect that is not really the issue. The real issue is did the politicians insist that the police get results, that police Headquarters insist that they get results, and then we must look at the methods employed by the men on the ground. They were told to get results and in the process things went wrong - horribly wrong, to quote somebody else.

MR SANDI: Can you not get the same results by giving the gentleman a chair and you interrogate him? Can you not get the same results by giving this detainee a chair and you question him intensively about whatever you suspect him of being involved in?

ADV BOOYENS: Mr Chairman I don't know. I'm not an expert at interrogation. Maybe theoretically there a hundred and one possibilities; maybe what they could have done if they invited him for a beer, they could have obtained the same result. The answer to that is, I don't know! But quite simply we cannot now twenty years down the line take an armchair attitude and say that, but this is completely disproportionate because you told a man to stand up. So as far as the issue of proportionality is concerned, Mr Chairman the Security Police lived in an era where you did not take a man for beer and trying to get information out of him that way. And yes, they probably could have got the information out of him, I don't know in how many other ways - I'm not an expert in interrogation, but maybe the only way they could have got the information out of them, in their perception.

MR SANDI: And now perhaps one does not have to be an expert in interrogation to know that, to know that you would be able to extract as much information as you want from a detainee who is well-known to all of you as Security Police, by simply giving this man a chair, a man who was prepared to answer all those questions but he said, "I will not be on my feet whilst answering those questions. I want a chair, accord me the respect which I deserve; don't humiliate me."

ADV BOOYENS: I do not recall hearing that evidence Mr Chairman, but my memory is of course not infallible, but .....(intervention)

CHAIRPERSON: I think what is attempted to be put to you was not the words of Mr Biko, but the proposition that there was no reason to suggest that Biko was recalcitrant and not willing to answer questions. There's no evidence that he was unwilling to do that. That being so, couldn't he have been questioned with greater civility?

ADV BOOYENS: Speaking for myself, yes. I said earlier on that it could perhaps in all probability be said that the soft approach might have worked sometimes, I don't know. There certainly was not - the insistence to place him at a disadvantage was there, it was perhaps not necessary that was another assault on his dignity as a person, but if we are going to insist that ask every time but surely the Security Policemen or whoever could have always have taken the lesser alternative and that wouldn't only go for interrogations which went wrong; that would go for people that were killed; that would go for people that were seriously assaulted. That is always true. There was - if one must really approach it on the basis of was it ever necessary, then perhaps one would have said that perhaps none of the lives lost in the struggle on either side was necessary. But that's not the test.

Mr Chairman, I think unless there is something else specifically which the Committee would like to hear me on, and bearing in mind my Heads of Argument, those are the submissions I wish to make.

CHAIRPERSON: Do you concede that the fate of the applicants is inextricably wound up and therefore the Committee does not have to look at the acts of each individual to determine whether amnesty should be granted to him or not? That they are all part of a concerted action on that day and that their combat must be judged not individually but as a group, collectively, and that if one qualifies the others qualify; if anyone does not qualify the others do not qualify. Have you applied your mind to that?

ADV BOOYENS: I can obviously only speak for my applicants. ......(intervention)

CHAIRPERSON: I'm taking about your applicants.

ADV BOOYENS: My three applicants, because I think they are in a different position. Yes, as far as they are concerned, because they were a team made up with the same purpose - of course with one exception, that's a factual one, and that is Marx's involvement, Mr Chairman, only goes so far as to the scuffle. He's got nothing to do subsequently because he deliberately pulls him out of that, but I think that is purely factual. If one is going to place reliance on the subsequent fact and that blame in any case in our submission is rests squarely on the shoulders of Goosen and not on these, but if the Committee finds a distinction is to be made and some significance to attach to the fact that adequate medical assistance wasn't obtained for Mr Biko, then of course Marx is out of that one clearly.

But that is really where - but insofar as the initial intention and how things started is concerned, even here there is of course a slight distinction as far as Marx is concerned because he walks in uninformed as to why this scuffle started. What he sees, you would recall Mr Chairman, he sees a scuffle involving a detainee and some of his colleagues and he joined in to help. But those are factual distinctions. I think the legal principle is the same for all of them.

CHAIRPERSON: Yes, thank you. Mr Erasmus?

MR POTGIETER: Just a minute, just a minute Mr Booyens just before we conclude

You put your submission that there is no need to identify any particular offences, but in your submission, to what acts or omissions, do the applications of your clients relate? What is it?

ADV BOOYENS: Well, the acts in those acts-I think there are two legs - those acts which contributed to the death of Mr Biko. What I was trying to say Mr Chairman is it doesn't matter whether you call it murder or culpable homicide, and those acts relating to the making of the false statements. Those are the two categories.

MR POTGIETER: Just with regard to the first category of acts, to the death of Mr Biko, is your submission that we have to judge that on the basis of the case that was made out by your clients in respect of how this incident occurred?

ADV BOOYENS: Oh yes, Mr Chairman, if the Committee is going to find for some or other reason, that in fact what happened, for example, was that Mr Biko was pursued into a corner and beaten up in circumstances completely unrelated to what they have told you, then obviously the only facts that are placed before you, in fact, are the facts as alleged by them, and that is the facts that I will submit.

So if the Committee finds, " no, no ,no this didn't happen that way. Something completely different happened there." But then the applications fail on the basis that they did not make full disclosure.

CHAIRPERSON: I follow that. I do understand that submission. I wanted to just get to a different point.

Is your submission that we have to find that what happened was, in a way, let's call it for the moment accidental really? It was an attempt to restrain an aggressive detainee, that the incident happened?

ADV BOOYENS: Yes, well, that was their version. Mr Chairman, just one thing that I have forgotten to mention which springs to mind just now, is one of the aspects that were raised by my learned friend during cross-examination, which I would like to refer the Committee to, and that is that by consent the inquest record was handed in, including medical evidence. We of course didn't have the advantage of hearing the medical evidence. We know that some of the doctors are dead. I think we should try prevent these hearings turning more and more into retrials, that's not what they're supposed to be.

But the only fact which I want to point out is that there's a difference of view between the pathologists as to whether the four brain lesions could have been caused by one or more than one application of force. The view of Professor Loubscher and that view - sorry it was five brain lesions, it was not four - that view appears in the inquest records at page 1154, 1157, 1158, 1169 and pages 1215 to 1210. Loubscher gives reasons for his view, that it could have been a single application because there were other views as well. I do not really think that it even takes the matter much further, on the description given by the applicants of a scuffle going on and people falling about and blows with fists being hit, and so on. There's probably room for both possibilities that there was a single application of force or more than one application of force to the head which could have caused injury.

CHAIRPERSON: Does it matter whether the injuries were inflicted with one blow, or several blows?

ADV BOOYENS: Yes, but the injuries could have been inflicted with a blow, or a fall - we don't know - or a bump against the wall.

CHAIRPERSON: The question related to blows. Does it matter whether the injuries could have been inflicted by one blow or many blows? Does it matter to the eventual outcome of this application?

ADV BOOYENS: I don't think it does. Provided that the blow, of course, subject to this qualification; if Mr Biko, during the scuffle received four or five blows, or one blow, but its still during the scuffle, it doesn't matter. As long as the scuffle goes on its a "free for all."

CHAIRPERSON: Yes Sir,

MR POTGIETER: Can I just come back to conclude this point I was trying to get some clarity on. Are you then submitting that we must find that these acts which we have now identified are associated with a political objective as defined in the Act?

ADV BOOYENS: If I wasn't suggesting that, I wouldn't be here Mr Chairman. Yes, obviously.

MR POTGIETER: So, even on the version that what happened was possibly exceeding the bound of reasonable conduct in the circumstances, assuming that to be the act or omission that we are talking about in respect of the death of Mr Biko, because remember we must be satisfied that it is an offence or a deed in terms of the Act. Assuming that your submission is that, that is an act associated with a political objective?

ADV BOOYENS: Yes, Mr Chairman.

MR POTGIETER: Just in a word, or a sentence, what would be the political objective there?

ADV BOOYENS: Political objective: security policeman resisting, in terms of the policy of the Government of the day, the efforts of the Liberation Movement, they interrogate. The purpose of the interrogation gets out of hand. It does not now all of a sudden, become a non-political event. It's in the cause of this whole process: it's not much different. It starts with a man being told, "get up". It starts with a fight. It will be artificial to say that all of sudden why did the fight take place? The fight took place to subdue him so that they could interrogate him further.

MR POTGIETER: Or to defend themselves, or to protect one of their colleagues against an unlawful attack.

ADV BOOYENS: Mr Chairman, yes, one can look at it that way, but then you are introducing another artificial point because this would not have happened if Siebert did not act the way he did. It may even be debatable whether it can be said that in the circumstances - remember if I act unlawfully, I cannot rely on self- defence, and so I do not think the self-defence issue really came in here. The whole tenure of the evidence, was "we grabbed him to subdue him, not so much because he attacked Siebert." - remember his attack on Siebert was still a chair pushed in his direction and a mis-swing, I think. That cannot stand loose from what happened subsequently once the man - I think Reuben Marx put it very well. He said when he wiped his hand over his eyes he could see now he is okay now he is sort of chained to the grille. The whole purpose obviously is to subdue him.

That the coincidence, you see we must be cautious, with respect Mr Chairman, to take an armchair attitude here and to say "but it could have been only this, it could have been only that." I think there are a number of factors here that play a role at the same time, and which one of these was also to subdue him from attacking Siebert, but to subdue him to continue the interrogation comes in at the same time. So I think we are moving into a very dangerous area of artificial distinction if we start doing that. It's not necessarily self-defence.

MR POTGIETER: No, no the difficulty is were does one draw the line. You agreed with the point that Mr Sandi raised that not everything, not every act, not every incident that follows the detention of a high profile political activist would now suddenly become political. Somewhere its conceivable that there are acts which would have nothing to do with the political nature of that incident. For example, assume Mr Biko didn't like one of the interrogators, because they had some disagreement, unrelated to politics previously, and he attacked that person, and in defending their colleague they exceeded the bounds, and it could he said they have assaulted Mr Biko. Obviously that didn't fall within the political context of the particular incident. That is why I'm asking you , you know , it is a question of where does one draw the line?

ADV BOOYENS: I think as long as you are in the process of trying to establish dominance over a political opponent, or in the process of actually joining issue, or trying to actively oppose his political views as opposed to your political views or those that you protect, I think that is the line. I mentioned the example earlier on where the policeman on duty at the police station smacks him because he doesn't eat. That has got nothing to do with establishing political dominance over him , that is a -

Mr Chairman , I think that it is perhaps the example that one gets in the law of delict with the liability of a master for the acts of his servant could perhaps assist one here, with some qualification. The moment it becomes a product of their own that's got nothing to do with their work as security policemen anymore, really. Then I think you cannot say that it has a political motive, but as long as it is in an interrogation with the purpose of subduing a political

opponent then it's clearly within that sphere of their doing their job as the protectors of the safety of the State. I hope that has answered your question Mr Potgieter.

CHAIRPERSON: Mr Erasmus.

MR ERASMUS: Thank you Mr Chairman for the opportunity to address you. The application of Mr J.J.O.Beneke will be dealt with in argument on the basis of the legal requirements set out in the promotion of the National Unity and Reconciliation Act Number 54 of 1995.

An applicant has to satisfy the Committee in terms of Section 2120 sub-section 1 that:

For purposes of determining whether an act is associated with a political objective the sections in Section 20 sub-sections 2 should be taken into account. To determine whether an act is associated with a political objective, the factors as set out in Section 20, sub-section 3 should be taken into account.

Now I want to pause here, and I want to refer you to page 13D of the paginated documents. That is the application of Daniel Petrus Siebert 13D. It's about a third from the top.

Going a little bit further down.

And then again in the middle of 13E.

What I want to say to you by this, is interrogation of Mr Steve Biko had in fact not only been related to the fact that he did not obey his banning order, the fact that he moved beyond a certain area, the reason for the interrogation in fact stretched far more broadly. It was not only because of the statutory misdemeanour. In was in fact of the relevant security legislation, and this is also the legislation in terms of which he had been detained. The intention with the interrogation was in fact far wider. It related to his part in the distribution of the pamphlet and his part in the unrest of that time. I will also return to this at a later point.

However, Mr Erasmus, the intention was to take action against Steve Biko in terms of Criminal Law. There are two possible such acts that could be taken.

Firstly; the mere misdemeanour, the fact that he acted against his banning order, that he stepped outside of an area to which he had been inhibited. That would have been a such a misdemeanour, but there was another part to the interrogation of Steve Biko, namely; his participation in the distribution of the pamphlet, and his part in the unrest.

You will also see this on page 13. On page 13E you will see that the intention of the interrogation was to determine his involvement in the continuing violence and unrest in the Eastern Cape, as well as the distribution of the mentioned pamphlet, and in the last place to determine what the intention had been of his visit to Cape Town, in order to take the necessary action against him in terms of Criminal Law. There was, therefore, elements of a mere interrogation in terms of Criminal Law, but there was also interrogation in terms of his participation in the political unrest at that time. And that in fact takes it beyond a mere criminal act in that regard, the fact that he disregarded his banning order, because in my view it would not have been necessary to detain him in terms of security legislation, if the only matter involved had been the fact that he disobeyed his banning order.

In determining the question if an act was associated with a political objective, it is submitted that in terms of Section 20, sub-section 2, an applicant should prove the following:

If you would bear with me for a moment. I submit to you that it is clear that Section 20, sub-paragraph 2B, contain both objective and subjective elements. Now, the principles of the 1990 Indemnity Act have been referred to in Rapholo v The State President and Others 1993 (1) SA 680 (T).

In this case an application for review of the refusal of the Amnesty Committee to grant amnesty in respect of four acts was brought against the State President The Committee found in the Rapholo case, that Section 20, sub-section 3, sub-section B, related solely to political uprising or disturbances. The Court, however, found that that was a too narrow construction. This gives an indication that this requirement should be interpreted widely. It should therefore go further than a simple political uprising, disturbance or event, and could also pertain to a war situation, which existed between the South African Government on the one hand, and the Liberation Movements on the other.

Section 23D refers to the object or objective of the act, and in particular whether the act, omission or offence was primarily directed at a political opponent or against private property or individuals . The Court in the Rapholo case found that the test in terms of this guideline was not whether a cause was served, for example, the political opponent or its property was targeted as opposed to private individuals and their property.

Now, Section 20, sub-section 3, sub-section F, refers to the relationship between the act, omission or offence, and the political objective pursued, and in particular the directness and proximity of the relationship and the proportionality of the act, omission or offence, to the objective pursued.

In the Rapholo case, the Committee found on page 687A, that for the purposes of this guideline, something akin to a war situation has to be envisaged. It could therefore never be that the killing of a political opponent would mero motu not be proportional to the political objective.

It is submitted that the Rapholo decision provides legal precedence for the application of the amnesty principle as set out in Section 23 of the Act, and that this should be applied according to the Rapholo decision.

I want to refer you to another case where Section 20 was referred to. That is the case of AZAPO and Others v the President of the Republic of South Africa 1996 (4) SA 671 on pages 671 to 683. The rationale of the act as a whole was discussed on page 683 and 684, and it is submitted that Section 20 should also be interpreted taking into account the reasons behind the act, the purpose of the act, and the objectives of the act.

I want to pause hear just to read some of the objectives. I only have the Afrikaans version here.

In terms of Section 20 sub-section 4 the previous indemnity acts shall be taken into account when Section 20, sub-section 3 is applied. I place emphasis on the word 'shall'. It is therefore obligatory to take account of the previous acts.

In terms of the Indemnity Act number 35 of 1990 indemnity could be granted to any person who applied therefore on the basis of the guidelines published in Government Gazette number 12834. Now the following was stated in the guidelines:

There is no generally accepted definition of political offence or political prisoner in International Law. What is generally accepted, however, is that principles developed in the field of Extradition Law are relevant in distinguishing between political offences and common crimes. The law and practice of states show that there is now a considerable degree of consensus both as to the types of offence which may in principle be classified as political as well as to the sort of factors which should be taken into account in deciding whether an offence is political or not.

The further Indemnity Act, that is now the Act No. 151 of 1992, was promulgated in 1992 incorporating a much wider test for purpose of determining political objective. A political objective was defined as follows in Section 1 of that Act, that is now the 1992 Act.

It is submitted your Lordship that the further Indemnity Act, that is now the Act of 1992, widened the scope of the test, and placed the emphasis on a subjective test. It is therefore submitted that in the interpretation of Section 20 of the Promotion of National Unity and Reconciliation Act, that is now the 1995 Act, more emphasis should be placed upon the subjective part than the objective part of the test in each instance. This would apply to application of Section 20, sub-section 3 of the Act.

Furthermore, a wider, rather than a narrow interpretation in a case of doubt should be applied. This argument is important as an applicant's view of the political character of his act may conflict with the objective facts. An applicant may therefore have acted with a political motive, but not knowing that the act itself was not political itself in nature and purpose.

It is submitted that the Committee should, when applying Section 20(3), place more emphasis on the subjective part of the test, than the objective part of the test. In any event, there can be no doubt whatsoever in the minds of the Committee, that all the incidents in respect of which Mr Beneke testified, occurred against a background, and in the context of the conflicts between the Liberation Movements on the one hand, and the South African Government and National Party on the other hand. They all therefore occurred within the sphere and context of a political uprising, disturbance or event, or in reaction there to. Objectively therefore, the applicant, Mr Beneke, should be regarded as a political offender.

MR POTGIETER: Mr Erasmus, even in spite of his own testimony? If we were to apply these subjective tests that you refer to, what weight should we attach to his own testimony, that what he was doing had nothing to do with a political objective? He wasn't part of the interrogation team. He was an occupant of an adjoining office, and he heard some noises, and he arrived on the scene and immediately acted to defend or protect one of his colleagues. And he says it had nothing to do with the political objective.

MR ERASMUS: I am glad that you are asking this question of me. I don't want to involve my learned friend client Mr Marx in this regard, but Mr Reuben Marx finds himself in a similar situation. My submission to you is that one cannot categorise this matter, in other words, now you're busy with a political objective, now you're not busy with a political objective, now I'm again busy with a political objective, now I'm not busy with a political objective.

The facts in this matter are, that there was an interrogation. This interrogation had to do with the combating of the broader situation of unrest, and in the course of this interrogation with regard to the broader situation of unrest, Mr Beneke rushed into the room with the intention of inhibiting what he thought as an attack by Mr Biko, but one must consider the broader picture, rather than attempting to compartmentalise the events into little pieces, and that is why I say that you must look at the subjective occurrence, and the broader intentions of the gathering of that persons that morning.

You must recall that Mr Beneke was in fact a member of the Security Branch, even though not of that particular investigating team. He was particularly involved in considering terrorist acts. I will at a later point refer you to the case of Steyn, where I will link to this question again.

MR POTGIETER: So you are saying, regardless of Mr Beneke's subjective attitude or view, you must find that he was mistaken, that even though he himself says that he had not attempted to achieve any political goal, you must find him to have been mistaken, and that he had in fact been politically motivated, that what he had done was done with a political purpose?

MR ERASMUS: No Chair, that is not what I'm saying. There's a fine and subtle difference involved here. I am saying that this part of the events must be considered as the whole, the broader whole of events. The particular act of inhibiting that situation was not done with a political motive, it was simply intended to protect his colleague against what he considered to have been an attack, but it occurred within the context of a political interrogation.

ADV SANDI: But Mr Erasmus, when Mr Beneke rushed into this interrogation room, there were about three or four hefty men who could have been able to defend Mr Siebert if Mr Biko was posing any threat to Mr Siebert at all.

MR ERASMUS: That is not a matter which has been properly explored at any point, during testimony or cross-examination which of these other persons would have been able to contain this considered attack. Testimony is that it occurred in a second, a matter of part of a second and in view of the training of police officers we are not looking at who should have reacted. A person who sees something happen, must act regardless of the fact that four persons might be present. If all of us took this "let's wait and see what happens" position, then it might have occurred that the attempted blow by Mr Biko might well have hit its object, that the situation might then have escalated beyond control.

Considered the other way round, your question that the opposite of your question is just as important. What would have happened if no-one acted? Would it not then also have led to a situation of chaos!

ADV SANDI: I think that submission, and remembering his concession in the course of his evidence-in-chief, or whilst answering questions in re-examination, when he was specifically asked if his conduct right at that stage was influenced by his previous knowledge of an allegation or rumour that Mr Biko had previously assaulted a member of the Security Police, and his answer to that was, yes!

MR ERASMUS: He most certainly in view of his trial, although this was not his personal experience, this was hearsay information which he had received, but he did act in view of that information to protect one of his colleagues.

CHAIRPERSON: It seems that he only comes into the picture and makes common cause with his colleagues at a time when a scuffle had broken out. He had nothing to do prior to that incident, and he walked in there because he sees a physical development taking place and he joins in. That is his evidence. And I think that it is fair to put it this way that if the didn't see the threat of an assault on one of his colleagues, he might not have joined in. So what motivated him in joining in, was a desire to protect a colleague.

You invite us to look at his conduct in the broader context, that because he's a policeman, when he joined in, he was joining in the fight against people in the Liberation Movement, that is what you are trying to say. Is that not so?

MR ERASMUS: He intervened in the scuffle where a member of the Liberation Movement in your words, was in fact assaulting or attempting to assault one of his colleagues.

CHAIRPERSON: That's the limit of his commitment, to participate in the physical assault, or to prevent an assault taking place.

MR ERASMUS: That is correct with regard to that particular incident. We will deal at a later stage with the perjury which occurred on the Saturday. With the regard to the assault on the particular day of the 6th of September, it was in fact delimited to what you have sketched.

I want to invite your intention to Section 20(2) the question about an offence or delict. It is not necessary to elaborate on the meaning of this. In the applicant’s application the offences were set out in detail in respect for which offences amnesty are applied for. It is respectfully submitted that any competent verdicts in terms of Section 256-279 of the Criminal Procedure Act 51 of 1997, falling under the offences should be incorporated as well as other offences not specifically identified, but which appear from the facts.

Furthermore, amnesty should also be granted in respect of any act which could be regarded as a delict, and therefore amnesty should be granted in a wide manner, referring to the specific act or omission in respect of civil liability. Section 20 provides for the granting of amnesty in respect of an act, omission or offence. Criminal Law pertains to the last mentioned. In respect of Civil Law, amnesty should be granted in the widest possible terms, with reference to the act or omission.

It is therefore submitted that amnesty should be granted in respect of any delict which could arise from any act or omission committed by the applicant, as referred to in the facts of the application, and the evidence pertaining to each and every application.

Mr Chair what I attempt to say in this, is that it is not only the events of that morning of the 6th September which has to be considered, but also those events of the afternoon after two with regard to Mr Beneke. You will recall that at about two o'clock he returned to duty and Sergeant Nieuwoudt and himself were given the instruction to guard the late Mr Biko. The testimony of Mr Beneke was that immediately at two o'clock he gave instruction to Niewoudt to report that Biko required medical attention. I am not here to make - to argue a case against my client, but it could be argued that a reasonable person might well have made more incisive inquiries with regard to the granting of medical assistance to Mr Biko because the fact is that Mr Biko was still partly unconscious during the course of that afternoon, between two and four o'clock in the afternoon. There is only a single report with regard to the quest of medical attention. There is no testing with regard to whether this had been attended to. It might well be that under particular circumstances it could be argued that there is in fact delictual culpability.

MR POTGIETER: What political purpose would your client have had when he committed this delict?

ADV ERASMUS: The political intention, and I've already referred to this, and I believe in my submission that we must be careful not to categorise this. It is part of a bigger picture and this bigger picture is, that there had been at that time, I would like to say a war between the State and the so called Liberation Movements. I do not want to place ever particular act under a microscope. I want to say that we must look at the bigger picture. That is my submission that the bigger picture is one of resistance against the Liberation movements and the maintenance of the then order, and if he had been negligent subsequently that would have been part of that struggle. Yes it would have been a part of the bigger picture.

I want to refer you to Section 20, sub-section 2, sub-section A. The applicants have all stated that they had been supporters of the National Party, which formed the previous government until 1994, and which was a publicly known political organisation. The evidence of all the applicants has been that they have been involved bona fide in the furtherance of the political struggle waged by the National Party, which was the Government, against the Liberation Movements including the ANC, PAC and SACP.

The whole background and context in which the applicants had to operate, especially pertaining to orders in respect of covert operations, added to a reasonable belief that any order to eliminate an activist or terrorist, and orders to take counter-revolutionary steps, such as bombings and interrogations, were all part of the counter-revolutionary strategy of the Government.

Let's again look at Rapholo v The State President. The context against which the acts took place with particular reference to the question if it was a political uprising, disturbance or event, or reaction thereto, is a wide requirement. A wide interpretation was also applied by his Lordship, Mr. Justice Van Dykhorst, in the Rapholo v State President. It is in any event clear that the actions of the applicants were at all relevant times part of the counter-revolutionary strategy of the National Party Government against the Liberation forces, as part of a war effort called the People’s War by the Liberation Movements, and that it was directed against the political strategy of the Liberation Movements, and specifically at the ANC with a view to overthrowing the Government. The context was therefore clearly political.

The offences for which the applicant has applied for are listed in his application. It is submitted that in certain instances there may be doubt on the facts if the applicant had committed a certain offence. In this regard it is submitted that the applicant, Mr. Beneke, should be afforded the benefit of the doubt, and that he should receive amnesty for such offences as well. Furthermore, all competent verdicts falling under a specific offence is also included in the application amnesty.

MR. POTGIETER: Does that include murder?

MR ERASMUS: With respect Chair, there was no intent amongst these applicants to murder Mr Biko. At most this could be culpable homicide, in view of the testimony given here.

I further want to invite your attention my Lord to Section 23F, 20(3)(F). His Lordship Mr. Justice Van Dykhorst said the following in the Rapholo decision pertaining to this interpretation.

This is correct, but in my respectful view it is not a relevant consideration. That is what Mr. Justice Van Dykhorst says.

CHAIRPERSON: At what page is that?

MR. ERASMUS: That should be - I cannot give you the specific page on this day Sir, but I will come back to you on that one.

For the purposes of the guidelines something akin to a war situation has to be envisaged. It is submitted that a war situation prevailed in South Africa and that there was a low intensity guerrilla war in South Africa. Actions of Security Policemen should be regarded in that light. The killing of a political opponent in a war situation would then become more accepted and justified. This especially so if such and opponent took part in the hostilities."

My Lord I see it is almost 11 o’clock. Maybe time to adjourn at this stage?

CHAIRPERSON: Have you got very much more to deal with? Yes, we'll take a short adjournment. Let's try be punctual. Let's be here within fifteen minutes.

CHAIRPERSON: Yes, Mr. Erasmus.

MR. ERASMUS: Thank you My Lord.

I want to invite your Lordships attention to Section 23(3)(I) and sub-section 3(II). It is clear from the evidence that not one of the applicants received personal gain from any of their actions and that nothing was done out of personal malice, ill-will or spite directed against their victim.

I want to draw your Lordships attention to a decision of Hendrik Jakobus Steyn; it was an application number 69 of 1996. In this application, evidence was led of the death of ANC member after a gun fight between member of the Police and Terrorists. The victims were wounded by the Security Forces. The applicant, Hendrik Jakobus Steyn recognised the two wounded as two well known terrorists. He testified that he knew that they would eventually be redeployed against the Security Forces. He testified that the Courts could not handle the situation, and that it was necessary to act outside the normal legal system. He then killed the two wounded soldiers.

In the judgment the Committee found that the motive of the applicant was to kill the deceased so as to prevent them from acting in future against the Security Forces. Steyn did so because the normal legal process was not successful in that regard.

This is important with respect for the argument pertaining to the application of the applicant, and the reason why they acted outside the normal scope of the legal system. It is also important for purposes of the couter-revolutionary strategy and the prevention policy of the South African Police at that time. It was found that the context of the action was against the background of a fight between Security Forces and Terrorists. The Committee found that it was foreseeable that people could die because of the struggle. The deceased were all political opponents.

In respect of proportionality, the Committee found that the South African Police on the one hand, and the Liberation Movements on the other hand, were legitimate targets of each other, and that the killing in this specific instance of a person was therefore not necessarily not proportional to the political objective.

Now it is submitted that this judgment of Steyn supports the application of Mr. Beneke and the other co-applicants.

Now I want to turn to disclosure of all relevant facts.

CHAIRPERSON: Do you have a copy of this judgment?

MR. ERASMUS: I haven't got a copy here, but I can have you sent one in due course.

CHAIRPERSON: Yes please.

MR. ERASMUS: I will do so.

CHAIRPERSON : Do carry on.

MR ERASMUS: I'm turning to disclosure of all relevant facts. It is submitted that the applicant has disclosed all relevant facts. It is furthermore submitted that relevant facts mean, the facta probanda" in respect of criminal offences and the principles of a delict in respect of delicts. These requirements have been complied with in the evidence pertaining to each and every incident. It is submitted that where there is no evidence to the contrary, and where it was not put to any of the witnesses that any other witnesses would contradict the evidence, the applicant’s evidence should stand uncontested and should be accepted as true and a full disclosure of such facts.

Care should be taken not to be too harsh on the applicants in respect of their memories. If one has due regard to the fact that a lot of the incidents have taken place more than twenty years ago, and that their memories have been affected.

It is furthermore submitted that the applicants had no reason to lie whatsoever. It is submitted that it should be taken into account that Mr Beneke came forward out of his own free will to participate in this process to apply for amnesty and to place before the Committee the full version of the facts. He did so without having been forced to do so and there should therefore be no reason whatsoever for him to have lied. The only effect of a lie would have been the refusal of amnesty which would clearly not be to the advantage of the applicants.

ADV BOOYENS: I want to pause here for a moment because I anticipate an argument from my learned friend that there would not have been full disclosure. You will take into account that these events fall beyond the twenty year annuation date with regard to capital crimes, would there have been any consideration of a capital crime. This is prior before Mr Beneke came to bring testimony. He could have withheld his application or withdrawn his application but he did not do so. Since in a spirit of the law he wants to come and tell what the true facts are. It is important that you should

understand this and understand why it is our submission that Mr Beneke, and I want to say this actually on behalf of all of the applicants, why they are coming to tell you the truth. It has to do with an attempt to achieve national unity; to serve the well-being of all South African citizens; to serve the purpose of reconciliation and the reconstruction of our society. That is what is involved here. For what single purpose, twenty years after the event should you be presented with a pack of lies. Mr Beneke is no longer a member of the police service, therefore any effort to cover up anything is of no interest to him. In the eyes of the media he would have no reason to come and tell you lies. Why would he subject himself to this process?

MR ERASMUS: I submit that the applicant Mr Beneke has made out a proper case for amnesty in terms of Section 20 of the Act and the Committee are requested to grant amnesty to the applicant in respect of every incident referred to during the hearings. I thank you M'Lord.

CHAIRPERSON: Thank you Mr Erasmus. Mr Bizos?

ADV BIZOS: Thank you Mr Chairman. We oppose the applications of all the applicants for amnesty Mr Chairman and members of the Committee and want to say at the outset that we do so primarily because we consider their applications an attempt to

clear their names with a self-defence story in order that the record should be expunged that they are in fact responsible for the death of Mr Biko.

The argument of Counsel for the applicants Snyman, Siebert and Marx has, we will submit, a fundamental deficiency and that is never mind the facts. Let us broaden the canvas on which this has to be painted; let us ignore fundamental facts and deal with fictitious circumstances.

Similarly the argument on behalf of Mr Beneke, we submit that it is an erudite legal argument which our learned friend read out in English, but there was no attempt to apply the legal principles that were so well set out in the document from which he was reading to the facts of this case.

By way of contrast we will deal with the facts of this case as they were dragged out of them in cross-examination in the 1977 inquest, and similarly attempts were made here to get to the truth and we will submit that they were far from forthcoming. We will deal with the legislation, the purpose for which it was enacted, what it's precise provisions are and how far short the facts have emerged to be inconsistent with what is expected of them from the legislation.

First of all may we refer to Section 20(2). A starting point with an application for amnesty is that there must be an act or omission which constitutes an offence or delict.

The applicants have said in their application forms that they are applying for amnesty in relation to the crimes of assault. Mr Beneke applies in respect of the offence of murder; the others apply for culpable homicide and one of them merely speaks of death.

We have to look at the evidence Mr Chairman and members of the Committee, as to whether what they now tell us is the truth; and if it is the truth whether or not a crime or delict is proved by what they had to say.

In the inquest they denied that any offence was committed by them. They have now, as the Act entitles them to do said well, we did not tell the truth at the inquest and they give a reason why they did not tell the truth. They say because they were instructed to lie by their Commanding Officer, Colonel Goosen, who has now passed away. Leaving that aside one would have to bear in mind in relation to their credibility if before this Committee that their lying started before Saturday morning when their instruction is said to have been given by Colonel Goosen. In the Occurrences Book entries were made by Mr Snyman, which are now admitted to have been false, but that was before the general instruction that they should all lie. Of course Mr Snyman says that he had a private instruction from Mr Goosen, but then what was the motive for lying at that stage? Mr Biko was not yet dead and nobody knew of what had happened to him in detention.

Now, in the description of the nature and the circumstances of the act, none of these applicants disclose any liability or responsibility for these offences, and will take them one by one. Snyman claims he is only responsible because he was head of the team. He did not assault Biko, nor directly cause his death. Siebert claims that he is responsible for not obtaining medical attention on the first day and shackling Mr Biko to the grille. None of these acts to which he admits, are either an assault or an element of constituting the crime of culpable homicide or murder. Beneke claims he only pushed Biko and it was an order to protect Siebert, his colleague. Such conduct is neither an assault nor an element of the crime of culpable homicide or murder.

Marx claims that he only held Biko from behind to try and restrain him. That is neither an assault nor an element of the crime of culpable homicide or murder.

Let us give further particulars in relation to this Mr Chairman. Let us deal with Mr Snyman. At pages 78,82 and 84 of the typed record he denies that he assaulted Biko. May I apologise Mr Chairman that we were unable to prepare written Heads. I actually have written Heads but not typed Heads Mr Chairman, so that we can actually type them if you so wish so that to avoid you having to write the page numbers or the details down and we will send them to the members of the Committee and to our colleagues so that they can have a record that we do not go beyond them in the written document. I'm really reading this out and it may be convenient so that you do not have to make detailed notes Mr Chairman.

MR CHAIRMAN: Mr Bizos we will appreciate the typed notes if they are made available to us.

ADV BIZOS: In his amnesty application Snyman applies for amnesty for assault of Steve Biko and culpable homicide. That is form one which is part of the bundle before the Committee. In written amnesty applications Snyman applies for assault and death of Steve Biko and you will find that on page 3 of his application. In his application he does not admit that he was personally involved in the struggle; he did not touch Biko but "watched the fight", to use his own words - amnesty application page 5 paragraph 5.

In cross-examination he denies that he assaulted Biko or that he associated himself in any way with an assault that may have been committed on him or that he witnessed any assault or associated himself with in any manner which may be said to show that he associated himself with the assault in relation to Biko, this is on the evidence page 78,81,82 and 84.

Mr Siebert applies for amnesty for assault and death of Biko on the 6th September 1997 in Port Elizabeth. He does not, however, admit to assault in his amnesty application, he admits to -

That doesn't constitute any assault on the part of Mr Siebert. He admits to hitting Biko back together with Mr Beneke, after Mr Biko became violent and hit at them; an act of self-defence is not an assault.

That has an element of self-defence in it and certainly not an assault.

In amplification, in under cross-examination he states that,

He explains his statement in one application by saying that he did not intend his statement to mean that they took hold of Biko. He disallowed any intention to run into the wall with him, but rather the members of this wrestling, they lost their balance brought about by the circumstances. This is his evidence in chief on page 282 to page 283.

In cross-examination he denies he assaulted Biko during the "scuffle" which we put in inverted comma's. He claims that he is only responsible for his death inasmuch as he was a participant in the incident in which he was injured, but this was - he denies it - he denies that he assaulted him, and when asked by why he then applied for amnesty for assault, he claims that this is because; firstly, he did not offer him medical attention and he shackled him on the gate. We submit that neither of these two submissions amount to an assault, nor to a contribution to his death.

The denial of medical attention was not for the moment that Mr Siebert had control on his evidence over Mr Biko, the denial of medical attention was that during the days after the 7th, in which not only the Security Police, that is the senior members of the Security Police, and particularly Colonel Goosen, but also the disgraceful conduct on the findings of the Medical Council of Dr’s Tucker and Dr Laing.

That failure to provide medical attention is not shown to have been Mr Siebert's fault, even his transporting him to Pretoria was probably too late to really be of any help having regard to the stage that he had reached by the time the decision was taken. The probabilities are that, we submit, they took him to Pretoria in order to put him in the hands of the prison authorities rather than have a person that they knew was going to die on their hands.

In his amnesty application he claims that he was not sure if he was dazed, in the confused state and he says that it was temporary and that he later only chained him in order to protect himself lest he became aggressive again if he became fully conscious.

He claims further that after he had been chained to the grid, Biko was still arrogant, recalcitrant and non-co-operative. This of course is in stark contrast of Mr Marx's evidence that he was disorientated and confused and couldn't see properly, and is also of course consistent with the evidence of Professor Procter and Professor Loubscher that he would have been unconscious for at least ten minutes. Although Professor Loubscher, and we will give you the reference later to the evidence of the record, concedes as a theoretical possibility that he may not have been fully conscious, you will have to decide, with respect, on the probabilities and the two doctors, and the two professors are in agreement that there would have been, on the probabilities, unconsciousness but that there was a possibility of not being so.

The evidence with Mr Marx of course corroborates Professor Procter’s and excludes the theoretical possibility that was deposed to by Professor Loubscher.

Then, in relation to the shackling on the grille he claims in his amnesty application that he put shackles on Biko in case he started fighting again; that on the evidence must be false, if in fact the Professors are correct and if the evidence of Mr Marx that has come in this hearing for the first time is correct.

That he did this at the instance of Mr Snyman does not take the matter very much further and that Colonel Goosen arrived to give instruction that Biko must be left in a standing position still doesn't carry the matter any further Mr Chairman. None of these acts really amount to an assault or an unlawful death. We refer here to pages 7 and 8 and those are on pages, with a large indication of pages 13F and G and also to page 288 of the typed record.

Accordingly we submit that in his evidence, his amnesty application and both in-chief and in cross-examination, Siebert denies that there was an assault and by clear implication denies that he was in any way responsible for the death.

What we are saying here Mr Chairman is this; in view of the rhetorical peroration by the legal representative of Mr Beneke - why should they lie! They are lying because they hope to get amnesty to clear their name and to clear their record, but they haven't got the courage to tell the whole truth; that they actually punched this man to death and they have not had the courage to come forward and explain how the numerous injuries that have been listed by Professor Loubscher were inflicted. It is no answer to say that Professor Loubscher described many of the injuries as minor. Professor Loubscher describe them as minor at the inquest for the purposes of distinguishing them from those that had actually caused the death; but one would have expected applicants who wanted to tell the truth for the purposes of at least salving their conscious to tell the whole truth and to give account as to how each one of the injuries were inflicted and to openly admit that he was punched by not merely putting it forward as a theoretical possibility in order to explain the medical evidence, but only when members of the Court when they gave the various possibilities of knocking against the wall; knocking against the table or another piece of furniture, only when they were directly asked whether the possibility of a punch having caused the injury that led to his death, is it conceived as a theoretical possibility.

Mr Marx is also in the same category in the sense that he has not admitted to an assault or causing the death that is to any act or omission amounting to an offence or a delict. He applies for assault and culpable homicide. In his amnesty application he claims that he left the room in which Siebert was, whilst he went to the next room and he heard loud voices and noise. He rushed to the room, and that he immediately tried to help to control Biko and joined in the whole group, fell on one another . He soon went out of the room, you will find this in his application page 23E.

In his oral evidence before this Committee, Marx claimed that all that he had done, was to grab Biko from behind and on the waist in order to try and stop the fight. He does not admit to an assault or culpable homicide. He had no idea that he should apply for amnesty, but he was asked to do so by Mr Niewoudt, who of course may have, having regard to his other applications, may have a different agenda to Mr Marx.

As far as Mr Beneke is concerned, in his application form he applies for amnesty for murder and assault. There is a slight variation on page 9 of his application in which he speaks of assault and death. In his application he claims that he was coincidentally in the adjoining room where Biko was being interrogated and although not a part of the team he went and he saw Biko and saw a chair, and he saw Mr Siebert hitting in the direction and formed the impression that Biko was going to assault Siebert. He was in the room, pushed Biko in the stomach with his shoulder, and pushed him against the wall. There was a scuffle and punches were slung. In this struggle Biko banged his head against the wall and landed on the floor. He has no intention to bang his head against the wall, it was as a result of the struggle. "He would also have banged his head against me", he says.

In his oral evidence Mr Beneke denied that he punched Biko. He claimed that he had only acted in order to protect Siebert. He only acted to, he says, to assist Siebert and Biko. He does not admit to an assault, nor does he admit to any act or acts which caused his death.

So then, if we apply the facts deposed to by them to the requirement of Section 20(2) of the Act which the Committee has to administer, none of them admit to having committed an assault nor to have contributed to the death of Biko. They have made their bed, it is their evidence, whatever motive they may have had or applying for amnesty, and I have suggested the one of expiation when they are truly not entitled to it by telling a mass of untruths, they certainly do not pass the first requirement in sub-section 2 of Section 20.

Now in deciding the requirements set out in the sub-sections of sub-section 2 of Section 20 Mr Chairman, you are required to consider what is set out in sub-section 2 A-F and the proviso, particularly proviso 2 at the end of sub-section 3. We will turn to that subject now.

The question of motive! And what we submit is, that while on the applicants’ version the motive of the detention was to serve to obtain information this is to be distinguished, we submit from the motive for the assault and the causing of the death.

May I pause there for a moment Mr Chairman and members of the Committee, and let us confine ourselves to the facts of this case and pick up an answer given by Mr Beneke during the course of his cross-examination. He said that -

Those of course are interesting facts, and the Committee if had those facts would to apply its mind to those facts as to whether that was acted bona fide and whether it was a legitimate response to a situation by committing an act or omission with a political objective.

But those are not the facts in this case. Mr Biko was arrested on the 18th August. He was allowed to rot in a cell, naked and ill-treated and he came to the room and he was beaten as a result of which he died. Those are the facts!

Of course Mr Chairman you have had a submission that we do not know what happened to Mr Biko, from the 18th August to the 6th September, but then there is an admission from Mr Snyman, who in cross-examination admitted that we can assume that what the manner in which Mr Biko was held in detention before he was brought to Sanlam Building, the interrogation room on the morning of the 6th, would have been no different to that which was meted out to Mr Jones.

Perhaps it is an appropriate time to deal with the question of the admissibility or weight to be attached to the evidence of Mr Jones as to what pre-interrogation treatment was meted out during the softening up process of the detainee. We submit that the evidence is both admissible and of value in deciding what the facts in this case are.

Reference was made by our learned friend to the Letsogo case. He is correct that it is the leading case on the subject. It was the case that I had in mind when I addressed the Committee without the benefit of the report before me. I would now ask for leave to hand in three copies of the Letsogo judgment which we submit is particularly apposite to the facts and circumstances of this case.

Mr Chairman this was an appeal in which the learned Judge of first instance had decided that complaints of people being interrogated by an interrogation team, were decided by him one at a time. They all objected that they have had statements extracted from them by force, but the Judge of first instance said, "well each person had to tell his own story"; he listened to the story of each one of them; rejected the story and of course the complaint was that he was wrong in doing that. He should have taken the evidence of each one of the persons who gave evidence together with the evidence of other people who said that they had been similarly treated. The head note, the last paragraph reads that, held -

And if, Mr Chairman we turn to the ...(inaudible) in this case at the bottom of page 774 against capital letter H, the following is said by his Lordship, Mr Justice Holmes whose judgment the other two judges of Appeal concur. At the bottom of the page it is stated,

said Shriner JA in R v Matthews and Others 1996 (1) SA752 (AD) at page 758,

As was said by Lawrence J, R v Bond (1906) 2 KB389 at 424

The passage was approved by this Court in S v Green 1962 (3) SA 886 (AD) at page 894.

Now we have the body of Mr Biko given evidence by way of the injuries listed by Professor Loubscher, and we have the evidence of Mr Jones who says what happened to him. We have the admissions of an applicant whose application has been postponed that this hosepipe or hosepipes were used on Mr Jones and we find tramlines on the back of Mr Biko's body. It is true that if we had more of the people that were interrogated in that room the inference may have become stronger, but the two are sufficient for the purposes, we submit, because the indisputable evidence of injuries on the back of Mr Biko's body are corroborative of Mr Jones as is Mr Jones's account corroborative of how these gentlemen went about treating people that were under their power.

It goes to the whole question of motive, of full disclosure and the other factors, but because we are going to rely on Mr Jones evidence for various purposes, we thought it convenient to address you on its admissibility and cogency at this stage.

Now what we say about motive which is the first of the requirements under sub-section 3 that has to be looked into, we say, while on the applicants’ version the motive of the detention was to obtain information, this has to be distinguished from the motive for the assault. The applicants do not claim that if they did in fact assault him, that that particular assault was intended to exact information from him. None of them said that the assault, ill-treatment or deprivation of medical attention was in order to bring about the furnishing of information that he was withholding. That evidence is just not there! So that talking about low intensity civil war and obtaining information, that may be important, but for another case; for another set of circumstances. They didn't assault him and they did not deprive him of medical attention; they didn't shackle him for the purposes of getting further information from him. We must look at the facts as a whole and find another motive for it. It was not for the purposes of obtaining information.

On their evidence at best for them they punched him, pushed him, may have accidentally inflicted injuries to his lips and head in a "scuffle", which caused brain damage; and whipped him because of an argument which began as to whether or not he was entitled to sit on a chair. That is why he was assaulted. Not for the purposes of getting information. And what this Committee has to decide, is this the sort of motive for which, on this test or any of the other tests, that because their white pride was insulted by a black man claiming the right to sit on a chair, that he should lose his life - that is the issue in this case. Not the low intensity civil war; not what happened with a Security Policeman out in the field killing, as we were told, two wounded guerrillas because if they were not killed they might recover and continue the struggle. Those cases and those principles have got absolutely nothing to do with this case.

I will deal with the questions raised in the Rapholo case Mr Chairman, and we will hand in copy in order to show that the arbiter dicta of his Lordship, Mr Justice van Dykhorst, may be interesting, but when you look at the facts of that case, the case actually supports our contentions rather than negates them, but we are making copies of the case and we will hand it in and we will address you further on the Rapholo case in due course.

Mr Chairman, Mr Snyman's amnesty application talks about the chair on page 5, Mr Siebert on 13F, I am sorry, Mr Snyman's evidence at page 156 of the record as to the same affect, Mr Siebert’s evidence on page 277, says that he did it because he lost his temper - he lost his temper that Biko sat on a chair. And far from Mr Biko being the aggressor generally speaking it is he who loses his temper and whose pride is offended that becomes aggressive. There was no reason, on their version, for Mr Biko to become angry. It is possible of course that after they started beating him up; punching him on various parts of his body; you will recall the evidence in the medical report that there was tenderness and bruises on his chest. It may well be that he would not take kindly to being assaulted and it may be that there was a scuffle, but not for the reasons that they have given or the manner in which they say it started.

Marx on 23D says that insofar as he was present that that was the reason for this scuffle and in any event he condemns his colleague for losing his temper and behaving in an undignified way towards Mr Biko. Mr Beneke's amnesty application supports this that this was the motive for this was because of the man wanting to sit on the chair on page 20H of the application and he says that he was out of the room at the time that it started.

There is another difficulty in relation to motive and that is introduced by the contradiction between Siebert and Beneke. On the evidence of Siebert, matters were being normalised between him and Biko when Beneke came rushing in and grabbed Biko. There is some support for this in 13F, in Siebert’s application, but it was categorically stated when Beneke was questioned by a member of the Commission, Advocate Potgieter, where he said that matters were calming, normalised and they were calming down when he suddenly appeared and re-started what may never have been now happening by tackling Mr Biko.

Mr Beneke's evidence is that his intention was to assist his colleague, Mr Siebert, whose evidence says in any event he did not require assistance. You will find the references to this on page 13F and 20H, and also you will recall the evidence of Beneke conceding that it may not have been necessary for him to intervene as he did, and of course the tell-tale response by Mr Beneke, he had heard the rumour or report that Mr Biko had hit a Security policeman in King William’s Town, without knowing whether it was in self-defence or not. He joins the fray, influenced on his own admission by this hearsay knowledge that he had. We would ask that is it not an unreasonable inference to draw that this pack of Security Policemen were game to make sure early in the morning of the 6th, that Biko could do that in King William’s Town, but he was now under the authority of the mighty Security Police in Sanlam Buildings and they would call the shots and they started repaying the debt that they owed to their colleague who was punched by Mr Biko. He conceded that he probably would not have been involved at all in he hadn't heard of this report.

But what has that motive or non-motive got to do with the overall struggle, saving South Africa for Western civilisation capitalist system or any of the other, what I would submit as irrelevant slogans which are introduced into these applications that have no bearing on the facts.

There is in fact no clear and uncontradicted evidence that Biko had refused to answer questions that the act or acts for which amnesty is being sought had started.

We would refer to the evidence of Siebert at page 277, where it is said that Biko denied some claims and the evidence of Snyman 156. He says that he was resistant and didn't want to answer any questions, but the evidence is not that he was hit for that reason. The reason was because he sat on a chair.

If on the other hand Mr Chairman, the reason for the act of assault or beating up was for the purpose to soften him up in order to succumb to the applicants’ will, and give them the answers they required in connection with the interrogation, then they have not told you the truth. They have not made full disclosure. They have not advance that that is the reason for the assault. And they are not entitled to amnesty and their applications must be refused on the ground that they have not made full disclosure of the facts required in terms of Section 20 1C. But we will develop that further when we give a more complete picture.

Then sub-paragraph B the context in which the act, omission or offence took place, and in particular whether the act or omission or offence was committed in the course of or as part of a political uprising, disturbance or event or in the action thereto. What is submitted in relation to that Mr Chairman is that on their version there was no political uprising, disturbance or event to which the applicants reacted. They reacted to his persistence to sit on a chair. Not to any political uprising, disturbance or event to which the applicants reacted. The applicants reacted initially to the event of Biko sitting on a chair, and the manner in which he pushed it away from himself.

Now the picture one has if one takes the evidence as a whole, that whatever Biko did, seemed not to have achieved its purpose. He pushes the chair, but he doesn't touch anybody. In fact, what one has in one's mind when one hears their versions contradictory, and at times very thoughtfully and slowly given. The pushing of the chair is equally consistent with a stage haven't been reached to Mr Biko saying, here's your chair, so worried about it, here you are, have it.

How come the chair didn't touch anybody he is accused of having punched at Siebert, that doesn't land. We are told that there were punches exchanged. He didn't manage to land a single one of them. We submit that the evidence of Snyman page 156, Siebert at 177, where the one says that he refused to get off the chair and that Siebert says that he lost his temper; that is the context in which the act is to be adjudged and not this sloganeering about saving South Africa "vir God en Vaderland."

There was accordingly, we submit no reaction to a political uprising, disturbance or event. They were not reacting in a broader political sense that Biko was involved albeit not non violently. The argument that the Committee has heard has a fundamental fallacy in it, the argument from my colleagues acting for the applicants. What it does amount to is this, that if a Security Policemen smashes to death a person involved in politics, then that is a political act and he doesn't have to explain or answer anything more. That's not what the Acts say; that's not what the law says; that is not the function of this Committee.

The reaction that the applicants depose to was a minimal situation created in the interrogation room which was far removed from the political situation in the country, but it was the expression of the will of those in control of that interrogation room, who on the evidence had taken upon themselves to do as they please with the life of a human being. What they reacted to, is to be found in Siebert's evidence 277 to 278 and in Snyman's evidence at page 157 to 158. May I remind you of what this - what they were reacting to, Snyman at 157 -

That's why they did it! Yes, your state of mind at that time and having regard to the words that you used in your application was that the late Mr Biko was stubborn, " parmantig" and too big for his boots for a black man. Your Honour, that was the case. That is the impression that he created to for us. That he did not really want to listen to us. How far removed is that for the acts or omissions or crimes or dealings having been committed for the purposes of a general political motive to save the country from terrorism?

Then if we may turn to the next requirement. The legal and factual nature of the act, omission or offences including the gravity of the act, omission or offence. The nature of the act is that Steve Biko died as a result of brain damage caused by a blow or blows to his head. The amnesty applicants and their oral evidence do not disclose a clear explanation as to how, when or by whom this injury was sustained. That's the crux of the matter. The legal nature of the act isn't clear on the applicants version. All the applicants applied for amnesty for are the assault on and either the murder, culpable homicide or death of Steven Biko, yet none of the applicants in the amnesty applications. or in evidence before the Committee admit to being guilty of assault, culpable homicide or murder or give a clear account as to how these things happened.

The act resulted in Steve Biko's death. A strong healthy comparatively young man in the custody of five Security Policemen. Before they get amnesty they've got to say who inflicted the fatal blow. They have evaded it, they covered it up then at the inquest, ,\and they are covering it up now. It is only as a result of a direct question that they even give as a possibility that one of the punches above the left eye may have led to the ....(inaudible) injury and the four lesions in his brain that led to his death. They all shy away from it, they cannot get amnesty unless they come clean.

Then we deal with sub-paragraph D of Section 20, sub-section 3. The object or objective of the act, omission or offence and in particular whether the act, omission or offence was primarily directed at the political opponent or State property or personnel or against private property or individuals. Although Biko was a political opponent of the applicants and sadly one would have to admit that the police were not merely to be regarded as upholders of the law, but as political opponents, he was not what may be called in their terminology a "terrorist" in their amnesty applications, because they themselves in answer to questions they had not taken the trouble to inform themselves what his political organisation, the BPC stood for; what Black Consciousness stood for; what he was doing at or about the time that he was arrested. He was a political opponent, he was therefore a terrorist. There is a non sequitur whole, the whole of this situation Mr Chairman. You will recall that we put to Mr Snyman his application for amnesty in the case of the Goniwe, Kalata and two other deceased and the Pebco 3. The reasons that he gives for having killed Goniwe and the three others and the Pebco 3 are almost a carbon copy of the reasons that he gives for the death of Biko. It shows the lack of thought or appreciation of the differences in the two situations in the furnishing of the reasons for the acts performed.

There was no distinction to be made between civic leaders like Goniwe and the Pebco 3, Khalata and the others and the men who wielded AK47s and were doing battle with the Security Forces. Then in relation to the fifth sub-paragraph D, was the political objective. The applicants in their written applications duplicate each others reasons, which were framed in a vague and broadly worded security police jargon which may have been useful slogans at the time but do not attempt to address the requirements of the legislation which the Committee is administering. We would submit that a careful perusal of those documents shows no clear, coherent or consistent political objective related to one or other of the acts committed by the applicants. In giving their oral evidence it was apparent that the applicants had little actual knowledge of the aims, ideals, activities or the moral standing of Mr Biko. They were blinded by their own prejudices which they repeat in their applications in insulting words, such as "terrorist" and other words completely inappropriate to the person whose death they brought about.

They have just or not have any idea what the groups with which Mr Biko was associated were about. If they had applied their mind to it at all the words in these applications would have been completely different.

Then E, Mr Chairman, whether the act, omission or offence was committed in the execution of an order of or on behalf of with the approval of the organisation, institution, liberation movement or body of which the person who committed the act was a member, an agent or supporter, and of course Mr Chairman, you will have to have regard in view of some of the argument that was submitted to you about objectivity and subjectivity with paragraph F of Section sub-section 2. Any person referred to in B, C and D who on reasonable grounds believes that he or she was acting in this course and scope of his or her duties, and within the scope of his or her express or implied authority.

And also to read with 3E the concluding words in sub-section B and which was committed bona fide with the object of countering or otherwise resisting the said struggle; or C bona fide with the object of countering or resisting the said struggle. It would be a contradiction in terms in our submission Mr Chairman to say that where the requirements of the existence of reasonable grounds and bona fides in the legislation to say it doesn't really matter what the reality of the situation was, the subjective state of mind of the applicant was different. We would submit that it was not the intention of the legislature to give credence to the views of bigots who put blinkers on and would not look beyond their nose as to what the real situation was. And in this regard we say it on the facts that on the version of the applicants was not a spontaneous response to certain actions of Steve Biko and who could have not been committed either in the execution of an order or with the approval of the State.

Mr Siebert, who although Mr Snyman's junior, seems to have been the much more committed ideologue and active participant in wrongdoing than the older and apparently more retiring Colonel Snyman. Siebert decided how he was going to deal with the situation and his less committed friends made themselves party to it.

None of the applicants can quote or name anybody in their church or their National Party or anyone in their police force that a detainee was not allowed to sit on a chair. It may be, but they took it upon themselves to make them stand on bricks as part of this torture process and it may be that their colleagues are quest in it, but the evidence was that at that time, at any rate when Mr Vorster was still Prime Minister, the people of South Africa on the evidence were told that those detained were not ill-treated, they were not assaulted and that the political opponents and Human Rights Organisations who in many instances was the same thing, must stop making false allegations against the Government. There was nothing illegal being done to any detainees and we were told that the decisions of the Appellate Divisions and the Provincial Divisions that there was to be no assault and no ill-treatment of detainees were respected. That is the period in which Mr Biko's death took place. Not what was said in '85 and '86 about total onslaught and total responses and attempts being made by the Army and the Supreme Court application in the middle 80's that the law didn't apply to them because there was a declared war and even then they were thrown out of court by the Cape Provincial division that they had no right to do that or to even think about it. In the 80's even they would never have had the temerity to put up such an argument in the 70's.

They, Siebert and Co, made themselves a law unto themselves. They’re not obliged to apologise or to feel sorry for it in order to get amnesty, but the absence of course of anything of the sort from any of them indicates their present attitude.

Reference was made to the Indemnity Acts. They were different acts, the discretion was really a discretion of the President, then President De Klerk, but if they are to be applied, the primary purpose that was to be achieved was reconciliation. Those who got indemnity from him often had to sign an undertaking that they regretted what they had done, but that of course is another matter.

The applicants cannot name the person in the National Party, who said anything about the methods to be used and Snyman at page 113 confirmed this and Mr Beneke told us yesterday that no one had told him that he or anyone else could deviate from the standard orders or legality.

And furthermore the applicants cannot name any person in the service of the police who said, that to break the resistance you must take hosepipes and beat them up, not even Mr Goosen.

Then of course there is the question of proportionality in sub-paragraph F, Mr Chairman. On the evidence of the applicants the hitting of Mr Biko or punching him was known by them to be an offence to be contrary to their instructions, and has to be compared with the wrong that he did, namely to sit on a chair. On their own evidence the punishment meted out to him was cruel and inhuman punishment and had little to do with restraining. There is of course the possibility that if there was a scuffle that it was a scuffle as a result of Mr Biko trying to avoid the vicious assault that was being perpetrated on him. It may well be that Mr Beneke's evidence that he got two blows with a hosepipe is consistent with one member of this team and that his actions are not to be excluded merely because his application is no longer before you; because obviously they were acting as a pact. The probabilities are that Niewoudt had gone berserk and he was hitting out on Mr Biko’s back indiscriminately. The shackling him against the grille, crucifixion style could not have had anything to do with restraining him from attacking them again. It was conceded that even if he had been fully conscious, which he was obviously not, his brain had been smashed, one handcuff against the grille would have been sufficient restraint to avoid the consequences that they say they feared.

If indeed they wanted information from him, there was no particular hurry in getting them as we indicated earlier. They could have used less cruel and inhuman methods than shackling him up in that fashion.

Mr Chairman you will find the passages in the record on the matters that we have now mentioned, on pages 112, 119, 121 and 207. Then the injuries that were found on Mr Biko's body are to be found in Volume 16 in the evidence of Mr Loubscher on page 1189 to page 1190. And there were among others a serious injury above on the forehead - the left forehead; bruises on the rib-cage; injuries apparently caused by a sharp object; abrasions to his wrists and ankles; injuries to his toe, where it appears as if he had been pricked with a needle; all the injuries can be counted on the report Mr Chairman which is Exhibit D. The probabilities that he was the aggressor and those against whom his aggression was directed came out unscathed, except possibly what Mr Beneke told us. Not very clear as to how it happened. It is so improbable that it should be rejected.

And it's important to have regard what the results of these assaults were. All the pathologists agreed Mr Chairman that there was a contra coup injury. We refer you to Volume 18 page 1291 of the Inquest Record and Volume 16 1154 that this large lesion to the brain directly opposite the left temporal front injury on the forehead; that it was the opinion of Professor Procter that contra-coup injuries are caused by a rotational mechanism and that the lesions were too widespread and that there were too many of them to be accounted for by a rotational effect.

In particular Professor Procter's evidence was that the lesion 1 on the right and the lesion 2 on the occipital of the head could not come from one single blow, because lesion 2 was not directly opposite the blow on the left forehead. In his opinion it was a contra-coup, then the blow responsible for it would have been the left, but on the middle of the head and not above the eye. The references to this can be found at 1297 in relation to Professor Procter and we ask you to compare the evidence of Professor Loubscher at 1156 and 1162 of the record.

Professor Procter's view was that if the lesions were to be accounted on the basis of one blow and the rotational force, then the degree of duration of the unconsciousness would have been greater. Mr Chairman you will find that on 1307. And that in his opinion there were three applications of force to the head. You will find that on page 1315 of the record. The lesions on the lip appear to have been of insufficient force to have produced any intra-cranial complication. You will find that evidence of page 1307 and 1315. And you will find Mr Chairman, that Professor Loubscher on the references given to you previously is in substantial agreement with Professor Procter, although being a state pathologist and dealing with matters beyond reasonable doubt, he cannot exclude the possibility that there may have been a less number of blows. Which leads me to a submission Mr Chairman that in an inquiry such as this, there is certainly no onus on us to show precisely what happened. There is an onus on the applicants to produce evidence as to what did happen, not beyond a reasonable doubt, we agree that it has to be the civil test which is on a balance of probabilities, but what we submit is that they have made no attempt whatsoever to bring any evidence as to how these injuries were caused and they were there. Others may be entitled to speculate - they cannot speculate before the Committee and give mere theoretical possibilities that these injuries came about as a result of the assaults they committed on Mr Biko.

I see Mr Chairman that we have exceeded the period and I still have a number of pages of notes and also we hope to make a copy of the Rapholo case to hand in and address you on it.

CHAIRPERSON: We will take the adjournment now, but will it be convenient for Counsel for us to resume at two o'clock?

MR BIZOS: Yes, we certainly will make the arrangements.

CHAIRPERSON: Adjourn now and resume at two o'clock.

MR CHAIRMAN: Mr Bizos?

MR BIZOS: Mr Chairman we have handed out a copy of the Rapholo judgment. We submit that this judgment is not of any assistance to the Committee on any of the matters upon which it has to bring its mind to bear in these applications. There is only one matter that I think I ought to put right, and that is that the reasoning of the Advisory Committee finishes at page 687, and there were extracts read to you by Counsel for Mr Beneke, from the reasons of the Advisory Committee to the President. You will recall that in that legislation the Committee couldn't make a final decision, it could only make a recommendation to the President who had an absolute discretion whether to follow it or not. Now passages from that Committee's decision have been read to you, and what I would like to draw attention to is at page 687 against the letter D to F, his Lordship Mr Justice Van Dykhorst says this:

This is what was read out to you. That comes from the Committee's report, and what his Lordship says,

So I don't know to what extent that statement from the Committee can be of any assistance to this Committee.

And of course, you might have noticed Mr Chairman that I was on the losing side of that case. The only ratio there really is that the President doesn't have to give the applicant a hearing, and he doesn't have to follow the recommendation of the Committee. So I don't know what assistance this judgment can possibly be.

Now, there are two more aspects that we have to deal with, Mr Chairman, and that is on the question of full disclosure, and on the question of malice, or ill-will or spite, and certain general submissions, and I shouldn't be very long Mr Chairman in completing this argument.

What we say Mr Chairman, that's its no answer to say what have they got to gain by not making full disclosure. That begs the question. The question is, has there been full disclosure or not? We have to a certain extent addressed you on that issue in broad terms, but what we want to submit is that, for whatever reason, the evidence that is being given is contradictory and improbable, and may we deal with the question of the so-called scuffle.

In Siebert’s application and on the evidence his claims that -

There is no mention of the men shouting at each other or fighting prior to Beneke's entry, and we refer here to Siebert's evidence at page 277 to 280.

Snyman claims on the other hand that Biko refused to answer questions and Snyman claims that Siebert punched Biko before Beneke entered the room. You will find that at page 176.

In relation to the injury above the left eye, Snyman and Siebert claim that they, in their evidence, they did not notice the mark above Mr Biko's eye at any stage and you will find that in page 89 to 90 in Snyman. The evidence of Mr Siebert has not yet been typed, but there is the evidence to that effect.

On the other hand Beneke and Niewoudt claim in their amnesty applications that they did see it. Beneke claims in his evidence that he saw the mark. You will find the statement in Beneke's application page 20, in Beneke's evidence which has not been typed and in Nieuwoudt's amnesty application on page 42 paragraph 19.

In relation to the hosepipe none of the applicants who gave oral evidence admit that they saw the hosepipe prior to the interrogation or the scuffle. See that on Snyman page 109 and Siebert at page 261. Marx says the same and Beneke says the same. It's highly improbable we submit, that this hosepipe, particularly taking into consideration the evidence of Mr Jones, that it was standard equipment with statements of calling the one black power and the other green power, attempts at heavy irony or sarcasm in relation to the use of those words by the Security Police. It is most unlikely that it would have just appeared there out of the blue. They are really not telling the truth when they do not admit that it was one of their instruments of torture that was there. And they do not want to admit it because it would not fit in with their lying at the inquest and lying now, that hosepipes were not part and parcel of their treatment of the detainees.

Snyman in particular, who was a spectator, denies that he saw a hosepipe there at page 110 and 111. He must be untruthful in relation to that, because not to have seen the assault on Biko and the blows that landed on Mr Beneke's back are inconsistent with his having told the truth.

There are contradictions in relation to Mr Biko's behaviour after he was shackled up. Siebert claims in his amnesty application that he was still arrogant, and that he didn't co-operate after he was shackled to the grille, but contradicts the evidence of Snyman, who does not describe Biko against the grille, but he, Snyman says they were actually able to continue interrogating him.

Siebert in his amnesty application in paragraph 13G, Siebert in his evidence at page 287 and Snyman on page 28F, Siebert's explanation to Pretoria that even though he had not had the benefit of advice to be untruthful from Colonel Goosen, he says, he admitted, but demurred only in relation to minor detail that he could not deny in the main the affidavits of Botha, Dorfling and Pretorius that statements which were handed in as exhibits, that he was unable to contradict them in the main. He therefore contradicts himself with what he said at pages 298-299. He was obviously untruthful in relation to the state of health of Biko having regard to what the senior prison officials saw.

Snyman's evidence as to how the detainees should be treated is contradicted, and we refer to pages 84 to 85 in Snyman’s evidence. We submit that what their attitude to detainees is, is corroborated by Mr Jones' evidence. Snyman changes his evidence. The evidence given on pages 84 to 85 by saying the opposite in 86, as to what the position of detainees was.

In relation to the evidence given by Mr Jones. Snyman says the position of Biko and Jones would have been the same on page 88. Snyman denies that he ever beat up Jones, page 105 of Snyman's evidence. He admits that he took part in the interrogation of Jones at page 110, and he denies that he ever saw the hosepipe being used on Mr Jones.

He contradicts most of what he says in his evidence, because he admits on page 4 of his application, that he was the leader of the interrogation team, and particularly the team that interrogated Mr Jones.

Mr Beneke denies that he ever met Mr Jones, but of course having regard as to his denial as to whether or not he was part of

the interrogation team, one cannot reject the evidence of Mr Jones and accept that of Mr Beneke in preference.

The probabilities that we are relying on that there has not been full disclosure, is that the hosepipe would have been there, unless it was regularly used.

The use of punches and whippings haven't been denied having regard to the objective evidence on Mr Biko's body and coupled with the statement of Mr Jones.

The restraining of Biko on the grille, and claiming that it was for the purposes of calming him is obviously false, because we know that he was unconscious or semi unconscious.

The reason given to the Pretoria prison officials that he had come there for medical observation is contradicted by the evidence that he was taken there so that he would not be seen by any friendly person at Port Elizabeth.

The purpose of the detention, and the attempts to connect him with an illiterate pamphlet which was obviously intended to frame him, Mr Titi and Mr Jones, is a matter which ought to be taken into consideration, and a conclusion should be made and a finding of facts should be made that there were no bona fides in their interrogation, and that there was no truth or bona fide belief that Mr Biko was involved in such activities. That of course is corroborated by the fact the neither Mr Titi nor Mr Jones were charged and what better evidence for lack of care for the liberty of the individual, that Mr Jones was detained for seventeen and a half months, no charge having been made against him.

In relation to the credibility of Mr Marx, he has attempted to disassociate himself. There may be elements of ex post facto attitude. We submit that the evidence of Mr Jones clearly shows that he was a junior. He himself said that he was unpopular because he was not prepared to go the whole way, and it may well be that he was a person with some mental reservations, having been brought up before the apartheid doctrine was pumped into people like Mr Siebert and Mr Beneke and Mr Snyman, that he was not as enthusiastic a wrong-doer as the others, but the evidence of Mr Jones should be accepted.

One almost contemporaneous statement to be used for litigation purposes was made by him shortly after his release from detention, and the so called discrepancies between his evidence and the statement do not really adversely affect Mr Jones's credibility. When a person has undergone the ordeal that Mr Jones had undergone, and in relating them he leaves some portion of his ill-treatment out when re-relating it, is not evidence of untruthfulness, but rather nothing more than some of the details are pushed back to one's mind. There is no suggestion that the printed statement which was published eventually was done for any purpose other than the litigation and knowing that he would be subjected to cross-examination and he would have to convince a court of its truthfulness, if in fact a case did materialise. The case unfortunately did not take place because of the advice that his action had prescribed.

In relation to the proviso that one is not entitled to amnesty if one acted out of personal malice, ill-will or spite directed against the victim, we submit that this is an appropriate case which this proviso should be put into operation. The evidence that he punched another police officer, the fact that they would not allow him to sit on a chair because he was a black man, the fact that they lost their temper because he was not prepared to jump up in fear of them when they ordered him to leave the chair, and the lengths to which they went, that they actually beat him up in a manner which led to his death are sufficient factors which are completely consistent with personal malice, ill-will or spite.

Then, insofar with reference to the two Indemnity Acts is concerned, their emphasis was that there must be an opinion that the granting of the amnesty will lead to reconciliation. On the facts that have been disclosed, on the lies were told at the time of the inquest, and many of them repeated in this application, and particularly that none of them took personal responsibility - " Yes, I struck the blow or blows that led to Mr Biko's death", must of necessity, we respectfully submit, lead to the refusal of applications of all three applicants, whose applications are now - four applicants, that is Mr Snyman, Mr Siebert, Mr Beneke and Mr Marx.

The grounds are not to be taken alone, and to summarise the position, if they are to be believed there was no assault, or an act leading to the death. They were not in good faith, they were not ordered, their act is non-proportional, and they acted out of personal malice. I think that each one of them is enough, but a combination of them makes it almost imperative, we submit, that the applications for amnesty should be refused.

Thank you Mr Chairman.

CHAIRPERSON: Mr Mpshe?

MR MPSHE: Mr Chairman we are making no submissions, thank you.

CHAIRPERSON: Mr Booyens, do you wish to reply? Do you wish to say anything at all ?

ADV BOOYENS: Only very briefly Mr Chairman, I did promise not to detain the Committee for more than two minutes, and the only

aspect on which I wish to reply is my learned friend says on their own evidence they committed no offences, that of course is not entirely correct, with respect. A Court may hold that for four people to detain a single man in a rather forcible fashion may exceed the bounds of reasonableness, and would then, should he suffer an injury in the process, could lead to a prosecution on a charge of culpable homicide.

My learned friend says Siebert does not admit an assault, Siebert in fact says it was either him or Snyman or both of them said that the man was left on the grille for a substantial period of time in order to, the order was to breakdown his resistance. Now, Mr Chairman to have left the man in a crucified position chained to a grille, I don't know if my learned friend is not going to complain to the police if they do that to him, I am certainly going to complain, there's no doubt about that.

CHAIRPERSON: Even if it didn't amount to a crime, surely that would be a delict, wouldn't it?

ADV BOOYENS: I think it's a crime in any case Mr Chairman. I'll be mildly surprised if somebody leaves me on - and I can't get a conviction if I'm a prosecutor.

And then of course there is the other question as far as culpable homicide is concerned. Your Lordship would recall the judgment of your erstwhile brother Hugo in the Natal Provincial division as to the duty of the policemen, that he’s got, once a crime has been committed, now that obviously also would go further, and its not only good enough to the Commander, the Commanding Officer, will - has a duty to get medical treatment. If I'm in charge of a person, then I've got a duty to get him medical treatment if he can't get it himself. If I don't do it I'm negligent, if he dies, I'm culpable.

So, my Lord, I think those really are the only law points. Those are the submissions I wish to make in this regard.

CHAIRPERSON: Mr Erasmus, do you wish to say anything?

MR ERASMUS: Nothing more. I concur with my learned friend and I've got no further submissions.

CHAIRPERSON: This brings to an end the somewhat lengthy application, it took some time. A great deal of evidence has been led. A number of documents have been handed in as exhibits or referred to, and it is quite clear that the Committee will have to take time to consider its decision, and it will in due course take that decision and notify the parties accordingly.

Thank you very much for having made our task easier than it could have been otherwise.

That brings to an end ladies and gentlemen, the hearing of this application. The Committee now adjourns.