MR STEENKAMP: May I just apologise for starting late, Mr Chairman, it's due to me speaking to some of the victims of the second matter, I do apologise.
CHAIRPERSON: The effect of that should speed up the beginning of the second matter. It's only counsel engaged in the first matter only who've had to wait. Right, we're ready to proceed. We're continuing now with the De Ru application for the purpose of addresses on the evidence of yesterday. It was indicated yesterday that if counsel wishes to supply written argument on any legal points that arise, they will be at liberty to do so.
MR MADASA: Thank you, Mr Chair. Mr Chair, I will just proceed making submissions orally, as indicated yesterday by Mr Chair, and if there is a need after I've made the submissions, then subsequent submissions could be done in writing to the Committee, if there are matters that the Committee feels they have been uncovered or as the matter may be.
CHAIRPERSON: The purpose of that's merely that if you feel there are matters that you want to check up on, as you indicated yesterday, you said there were certain matters, you're at liberty to do so and submit a written submission in regard to those, because certain matters arose yesterday which you may not have applied your mind to before.
MR MADASA: Thank you, Mr Chair.
Mr Chair, this is an application by the applicant, sorry, for amnesty relating to the killing of three persons, namely Makulu Solomon Khumalo, Richard Makhubo and Joseph Kabokoane, who were murdered on the 7th April 1992 near Sentra Hypersave, Vaal Park in Sasolburg.
The applicant gave evidence and admitted in his evidence that he was involved in the murder of these three persons.
CHAIRPERSON: Is this being recorded and coming through to the translators?
MR MADASA: Mr Chair, it clearly can be inferred from the evidence that was given by the applicant, that the applicant admitted to the murder of the three persons.
CHAIRPERSON: How can you say he admitted to murder when he said he only gave instructions for his people to shoot after they had been shot at, to safeguard the lives of the people under his command?
MR MADASA: Thank you, Mr Chair. My submission on this is based on the fact that in law the applicant may have, primarily have planned to arrest the persons, but the consequence of that plan clearly in law is prima facie murder, that is my submission, Mr Chair, in law that is prima facie murder and he could be charged for murder. The question whether he can be convicted or not, does not arise before this Committee, but there's sufficient basis in law, prima facie, from that evidence, to infer that he admitted to murder, because simply on the question, amongst others, of dolus eventualis, he foresaw the possibility of these people being killed, and he planned accordingly. That's if ...(intervention).
CHAIRPERSON: Are you saying that every time a policeman goes to arrest someone whom he knows to be armed and he foresees danger, and that person resists and he shoots him, that is murder?
MR MADASA: Mr Chair, I'm not saying every time, I'm saying in these circumstances, in accordance with this plan, I'm saying from that evidence it can be inferred that the applicant was reckless, having foreseen the possibility of resistance from the deceased, but he took no steps to ensure that that eventuality does not arise, and he reconciled himself with that eventuality by planning in such a manner that they would then kill if that case arose, and this is what happened.
Or alternatively, he could be charged on culpable homicide, and if he is so charged, then he's entitled to amnesty if his case is good.
I'm saying it could be inferred from his evidence that he admitted to culpable homicide, for example, which is a competent verdict to murder, and if he's granted amnesty on murder charge for example, he cannot be charged subsequently on the charge of culpable homicide on the similar facts. Therefore, if he's granted amnesty on the murder charges, he's as well exempted from being charged for culpable homicide, and the basis for saying that he could be charged for culpable homicide is clearly that a reasonable man, in the position of the applicant, ought to have taken necessary steps that would have been indicative that the gunfire only came from the car under the circumstances, and that only in that eventuality would they have opened fire on the occupants of the car, and the applicant did not, and secondly, a reasonable man in his position, having foreseen the possibility of fire triggered by some other source, other than by the occupants of the car, ought to have taken such steps to prevent the killing of occupants in that case, and applicant did not and was therefore negligent, it can be argued, and he admitted in his evidence, and it is trite that if a trap is flawed, as it seems to have been the case here, in law such a trap would be rejected.
Issues to be decided, Mr Chair, here are whether the applicant committed the offences as described him, and those offences whether they were associated with a political objective, and secondly whether he made a full disclosure.
Now I proceed to address that. The following facts are common cause: that the applicant was a member of SAP at the time, that is on the 7th April 1992, and was a captain in the Detective Branch, Sasolburg.
Secondly, that his immediate superior was Swanepoel, and that the applicant planned the arrest which resulted in subsequent killings of the deceaseds.
It is also common cause that the applicant ordered Fouche, his colleague, to infiltrate the deceaseds' group organisation or gang, with a view to trap them and arrest them on behalf of the State, of which he was an employee.
It's also common cause that on that day the deceased persons proceeded to Vaal Park Sentra Hypersave in a stolen yellow Cressida. They were armed, albeit with small arms, and were shot and killed by the applicant and his colleagues.
On the question of political objective, it is disputed by the leader of the investigation, on behalf of the families, that the deceased were members of a political organisation, and the Committee has to make a finding in this respect, and the applicant has stated that according to the information that he received, and his belief, based on that information, the deceased persons were members of a political organisation, namely ANC and MK.
Secondly, on the issue of political objective, the Committee must make a finding on whether, if it accepts that the deceased were members of a political organisation, whether the applicant had reason to believe that the deceaseds' conduct was associated with a political activity.
Thirdly, the Committee must also make a finding on this aspect as to whether the applicant's actions, which resulted in the commission of the killings, were associated with a political objective.
Now, on the question whether the deceased were members of a political organisation, the applicant, in his evidence, stated that he relied on information from three sources, namely Chris Fouche, Elsa de Lange and Joseph, one of the deceased persons. These people supplied him with information either collectively or at different instances or occasions.
The applicant's evidence has not been challenged by way of evidence, testimony before the Committee, except for some untested evidence by way of statements in the bundle, and that evidence remains untested by cross-examination.
Therefore, on that basis, the Committee is obliged to accept applicant's version.
CHAIRPERSON: Why do you say that? The Act provides for the Committee to make investigations, to conduct inquiries, and then to hear evidence. This is not a trial.
MR MADASA: Thank you, Mr Chair. Well, in the absence of any other evidence arising, then if the applicant's testimony stands alone, as it is at the moment, then I submit ...(intervention).
CHAIRPERSON: It must be weighed against the other investigation which has emerged as a result of investigations.
MR MADASA: Thank you, Mr Chair.
CHAIRPERSON: Don't you agree?
MR MADASA: Yes.
CHAIRPERSON: You do agree with that?
MR MADASA: Yes, Mr Chairman. I submit as well that if the applicant's version on the issue of these people being members of political organisation or MK, even after the Committee has made investigations, remains unchallenged, then the Committee must accept it, and I submit on this point that there is objective evidence to support his claim, namely on the second bundle which I referred to in evidence yesterday, on page 42, on that page the activities of deceaseds' unit or organisation in that article of the newspaper clearly explained or described, and those activities only relate to political activities, nothing else.
Besides that, there's also Fouche's statement on page 252 of the bundle, paragraph 4. Fouche is said to have told the applicant that the deceased talked about their political feelings, expressed their preference for an ANC government. Elsa confirmed the fact that the gang, or the organisation or unit, would attend rallies, political rallies, and were involved in fighting with IFP.
Elsa corroborated the applicant in this aspect in all material respects, namely that the deceased were MK ANC activities and underwent training, but she said, which appeared to be a discrepancy, which I submit it was not, her understanding of political activities were involvement in political violence, so to speak, bombings, murder and so on, and she was firm that her group did not involve in those, but then explained what they were involved in, but obviously the Committee knows that from what she admitted and denied it's one and the same thing, all these activities were political activities. Whether she was aware of that or not is irrelevant.
CHAIRPERSON: What activities do you say were political? Trying to make money out of selling or handing in weapons to the police, do you say that's a political activity?
MR MADASA: No, Mr Chair. She admitted that there was gun-running, that they were fighting the IFP, Inkatha, she admitted that ...(intervention).
CHAIRPERSON: She didn't admit that members of her group were doing that.
MR MADASA: She did, Mr Chair. She did, Mr Chair. It's a pity that I didn't make a note of her particular instance in her evidence, but she did make reference to that, and on your question to her, she admitted as well that she was trained to handle an AK, and in fact used it when Mr Fouche was present. Isn't that enough?
MR MALAN: Mr Madasa, did she not say that she only on one occasion fired two times, two shots, with an AK, and that was under the direction of Fouche shortly before the incident, that was the only occasion on which she ever fired a weapon?
MR MADASA: Thank you, Committee Member. In any case, my argument here, submission, is the following, that what we are looking at is the belief subjectively of the applicant, based on information that he received, and the information that he received, wrongly or correctly, is that these people were involved in political activities, and Fouche, in his statement on page 252, paragraph 5, alludes to that, and Elsa told the applicant the same, and then he believed that. Therefore he had a factual basis to believe that these were activists and he needed to act on them. That is all that the applicant has to show.
MR MALAN: Sorry, I missed that, Mr Madasa, will you repeat, what did she tell the applicant, what did Elsa de Lange ...(intervention).
MR MADASA: I say Elsa and Fouche gave information to the applicant as to the political activities of the unit or organisation in which she belonged, and on that basis she believed, I mean the applicant believed that they were therefore political activists.
CHAIRPERSON: But she repeatedly told us they were not political activists, didn't she, she said the only one who was a member of a party was Joseph, the others weren't, didn't she say that?
MR MADASA: But, Mr Chair, I've addressed that. Obviously that witness is naive inasfar as politics were concerned.
CHAIRPERSON: Well when, if that is what she believed, what would she have told De Ru about political activities?
MR MADASA: She would have told De Ru what she did not believe were political activities, but which De Ru in fact that they were political activities.
MR MALAN: What was the evidence that she gave that you rely on, that she communicated to De Ru, I cannot recall that, can you refresh my mind?
MR MADASA: She said she met De Ru and spoke to him, and gave him information, but she did not expand on that, but De Ru gave evidence to say he received information from her in this regard, and from Fouche, and if you look at that page 252, Fouche specifically says
"I told the applicant that these people were involved in terrorist activities".
CHAIRPERSON: She said in her evidence, she said, "I never reported to De Ru about my involvement. I don't know if Fouche gave him information", that was her evidence, and she's your witness.
MR MADASA: I say, Mr Chair, be that as it may, De Ru, in is evidence said ...(intervention).
CHAIRPERSON: "I did not tell De Ru I was a member of Umkhonto we Sizwe, I did not tell him anything, he never asked me", but you have now been relying on what she told De Ru.
MR MADASA: I'm not relying on that alone, I'm saying the applicant himself says he received information from her, and from Fouche, and even ...(intervention).
CHAIRPERSON: But who must we believe, her or the applicant? We have conflicting evidence here now.
CHAIRPERSON: But on that point, importantly, Mr Chair, is the fact that there's objective evidence to support this view that this person was involved in political activities. She may have denied it for her own purposes under oath, but the fact of the matter is, this is corroborated by objective evidence from (indistinct), first white woman in Sasolburg to join the ANC. She has admitted to that.
This person it appears from evidence that she was an informer, she worked for the police for ANC as well, she's got every reason to duck and dive on this aspect, but there's objective evidence to support this view.
CHAIRPERSON: What objective evidence? Fouche?
MR MADASA: (Indistinct) correctly.
CHAIRPERSON: So we accept also Fouche's evidence in the bundle that the applicant told him they would have to kill these people and that she must make them fire shots on the way to the scene, that is also evidence in the bundle from Fouche, do you say we must accept that?
MR MADASA: I'm not saying that.
CHAIRPERSON: Well you're picking and choosing. You must either say, "We accept it" ...(intervention).
MR MADASA: Mr Chair will be well aware that on the question of analysis of her evidence, that the Committee or a court would pick and choose, yes, but provided what it picks has corroboration, what it chooses, has corroboration, and I'm saying on this point, what I pick and choose there has corroboration, but that is how evidence is approached and analysed. You can't reject it because there are lies in evidence and reject it in total, and the evidence of the applicant has not been contradicted in evidence. We have bare denials from the family by way of questions by the leader of evidence, but the family members are here, they are here, they did not give evidence to refute what the applicant has said, and we don't have evidence as to whether the deceased person lived with their families and the duration thereof if they lived together, whether their families were aware of the deceaseds' movements, we don't have evidence to that. What we have is that it is denied, but I'm saying that is a bad denial, in the face of the applicant's insistence that the information he received was that they were members of a political organisation.
Now, on the question whether the shooting was connected with a political objective on the 7th of April 1992, now I submit that an important question to ask there on this aspect is whether the applicant was malicious in this plan, was he genuinely conducting his duties, or did he have an ulterior motive, was he malicious, I submit that is the question to be asked.
Now, I submit that he was not, he was doing his duties, an implied duty. At that time all members of the police, whether detective or security, the dichotomy between various duties of the police did not exist inasfar as political matters were concerned, it was not maintained by the State, it was there on paper, but any member of the police, it's a notorious fact that they would do their duties inasfar as political matters are concerned, irrespective of a unit. It would be artificial to argue that this man was involved in a crime investigation and that had nothing to do with security matters, that should have been handled by security matters. That did not exist. Even municipal police, traffic officers, were involved in arresting political activists, even members of the public, if they were so inclined.
Now, my submission is that the applicant, it was within his duty to plan and arrest, and if necessary kill the deceased. That is borne out by the statement made by General Malan in the bundle, even if that statement did not exist, this is a notorious fact, it's known by anybody in South Africa at the time, that activists had to be eliminated, because otherwise they would eliminate the State. That's how these matters were resolved.
Now, I submit that ...(intervention).
CHAIRPERSON: And for people to get amnesty for having eliminated them in the interests of the State, they have to come and tell us that.
MR MADASA: Yes, Mr Chair, I agree with that, and I submit that the applicant has told the Committee that he did this within his duty, he felt it was his duty to arrest these people and if necessary kill them, but I submit that he took precautionary measures before they went there to wait for the deceased, in that he gave orders, he planned, albeit the fact that the plan was somewhat clumsy, but he planned how they were going to arrest these people.
MR MALAN: Mr Madasa, did the applicant indeed say that he regarded it his duty to kill them if necessary, and that's what you quoted now? I cannot recall such evidence. I can vividly recall that he said he had no intention, no expectation even that they would be killed. Dolus eventualis didn't cross his mind. He said he believed on putting down the two shock grenades, that they would give themselves up.
MR MADASA: Mr Chair, I believe I've addressed this point at the beginning, and I stand by my submissions earlier on, that from his evidence it can be in fact that there was dolus eventualis. As to whether that was not the primary purpose, as stated by him, but from that evidence objectively, in fact even subjectively, it can be in fact that he had dolus eventualis, but that is as far as I can go on this aspect.
MR MALAN: Let me then take you to your point that you've been arguing now. Are you saying that he should be entitled to amnesty on the basis of it being his duty to eliminate, to kill, which you, in any event, construct on a basis of dolus eventualis, the inference from the evidence?
MR MADASA: Yes, I'm saying that's the inference from the evidence, that he was performing his duty to arrest these people, but then subsequently they were murdered, even though that was not his primary purpose, but from that evidence it can be inferred that he was doing his duty by killing them.
CHAIRPERSON: You have just said, "subsequently they were murdered", are you conceding that these people were murdered ...(intervention).
MR MADASA: This is ...(intervention).
CHAIRPERSON: ...(inaudible) contrary to your client's evidence?
MR MADASA: This is my submission, that from that evidence, this is a lay person inasfar as - this is a very technical issue, whether this could be perceived as murder or culpable homicide or other competent verdicts, but my submission is that in law it can be inferred and be seen as such prima facie.
CHAIRPERSON: So he committed no offence at all, you are saying now?
MR MADASA: I'm saying the opposite, I'm saying from that evidence he committed an offence.
CHAIRPERSON: But you're just saying in law it can be seen as this, so if in law it can be seen as the legal consequence of his attempted arrest, then he committed no offence.
MR MADASA: But in his evidence he admitted negligence, he definitely admitted negligence.
MR MALAN: Mr Madasa, but this remains my difficulty, how do you bring negligence to political motive and intent? Does not motive go with intent? That's really my question. Perhaps it's something for a written, legal argument.
MR MADASA: Yes, I submit ...(intervention).
MR MALAN: But that, sorry, that remains my basic difficulty, how do we get political motive to the killing? One can argue the political motive to the investigation, but anything subsequently happening, whether you construe it as negligence and therefore culpable homicide or whatever, would that qualify for amnesty in terms of the Act? I'd like you to cover that, if not now, then think it through and argue it for us in writing as soon as possible.
MR MADASA: Yes, Mr Chair, I think I'll do that in writing. I believe I've covered that, but if you still have a difficulty with that, we can submit it in writing. Personally I don't see any difficulty.
Continuing on the fact that the applicant was not malicious, he took precautionary measures and this does not detract from the fact that his conduct was criminal. All I'm arguing on this point was the fact that he was not doing this out of malice, he took measures to ensure that people were not killed unnecessarily, even if they were political activists, one was expected to arrest, or at least to attempt to arrest first, and this is what he did.
ADV SOGODI: Mr Madasa, sorry, what measures did he take to ensure that people are not killed?
MR MADASA: Various measures, amongst others, he organised what he referred to as top-up groups to close all the routes to that area where the shooting took place, he had shock grenades, he had a bug which was placed on Chris Fouche, he told Fouche to give a sign if these people were armed and if they were indeed going to rob, and he told him to leave the car alone and go around the corner, and ...(intervention).
ADV SOGODI: That's just the problem I'm having, because this (indistinct - mike not working).
MR MADASA: Yes. I'm saying he took these measures to ensure that the occupants of the vehicle were not unnecessarily killed. He was protecting them, because his plan was to arrest them, he was protecting the occupants of the vehicle by taking these precautionary measures, he wanted to ensure that they were arrested, that was the plan, but then if they did not give themselves up and if they fired at them first, then they would shoot at them. That's how the plan went. But you see I'm not saying the plan was good, but this is how he planned it.
CHAIRPERSON: Did he have anybody watching the car?
MR MADASA: No, he did not, and ...(intervention).
CHAIRPERSON: But surely that would be the most elementary precaution, to have someone watching the car who could tell him what was happening?
MR MADASA: I agree, Mr Chair, but these are the matters I referred to as flaws in this plan.
CHAIRPERSON: This is a basic flaw if he wanted to protect them, isn't it? It shows that there was no interest in obtaining information about what they were doing?
MR MADASA: Well that's not necessarily the conclusion, but it shows that he was not careful in his plan, I would submit. Therefore he was negligent. But an important aspect to see here, and this can be gleaned from his evidence and from Elsa's evidence, that one of the reasons that this plan didn't go according to the plan is the element of Chris Fouche, which the applicant referred to as own agenda. What seems to have happened here, and I say this especially on the strength of Elsa's evidence, that she says Fouche became involved in his own interests, for personal gain, and she referred to the matter of him being involved in smuggling and with a view to get money for divorce and to travel to South West Africa and the fact that, as far as she was concerned, this robbery was planned by the police, which is a possibility, if it was planned by Fouche without communicating that to the applicant. One can infer from this evidence that there's a possibility, a strong reasonable possibility that Fouche might have had internal problems with this group and may have led them to their demise.
MR MALAN: Mr Madasa, on this point, if, and I'm not sure that that possibility is not more than a possibility on the evidence before us, but if that is so, on what basis still, this remains the question, is it to be construed that the applicant had a political motive to kill? That's really the question that you must answer. The argument that you're putting before us now is clearly that he has been misled, that he had no such intention, that he did not plan their killing and that, therefore, on trial he should not be found guilty. Now if, because these are the exact arguments that I think would be argued in a trial, if he then is acquitted on trial, on what basis do we, on the same evidence, grant him amnesty now for a murder, assuming that he would or could be found guilty in trial?
MR MADASA: I have argued this matter. Once more I say it's on the basis of foreseeability, foreseeability that would be the basis, the foreseeability, even though the motive initially was - this is what happened when, for example, robbers go to a bank with a view to rob, only to rob, but you see they realise that there's a possibility, they foresee a possibility of resistance, and then they arm themselves, and then sometimes they kill and they are found guilty of killing, not because the motive was to kill, the motive was money, but part and parcel of that, in law, on the basis of public interest, so to speak, it has to be construed that murder was foreseen.
MR MALAN: No, but the difficulty in that example compared to the case before us is that in the case of the robbers going to rob a bank, arming themselves, foreseeing the possibility of resistance and conflict and a shootout, everything is part of a plan which is illegal or unlawful throughout. The case before us, on the argument, is that the applicant acted within the scope of his duties, within the law all throughout, and then suddenly something went wrong, people get shot, and now the lawfulness changes to an unlawfulness. So it's not comparable to the example that you're giving us.
MR MADASA: Mr Chair, really we seem to differ on this point, I view it strongly differently from how you see this, from analysis, because if, it doesn't matter the fact that this man was working for the State, the fact of the matter, that duty he was performing was unlawful in the manner he did by this plan, because I'm saying this plan ...(intervention).
MR MALAN: No, no, just a second, where was it unlawful? Wasn't it all lawful in terms of preventing a robbery, in terms of capturing these people for the purposes of investigation, isn't that all lawful?
MR MADASA: Provided the plan was good. The law says the plan must be good. If it leaks negligently, it's not acceptable, it's not a good trap and it's not lawful, it's not a lawful trap. The same happens in matters of being trapped in shebeen matters, these kind of cases, if the police go there and the trap is not good, even diamond matters when police conduct a trap, the law requires that that trap must be good. It is rejected if it's not good and certain precautional measures have to be taken, and in this case they were not taken, and therefore that act of being negligent in this plan, the plan not being watertight, that makes it unlawful.
CHAIRPERSON: Can I take you back for a minute? You said that Fouche may have planned this robbery? Did you say that Fouche may have planned this robbery? Who planned the robbery?
MR MADASA: I said, Mr Chair, according to Elsa, Fouche, the police, she did not say Fouche specifically, the police, it was a police plan.
CHAIRPERSON: Is the evidence of Mr De Ru not that Fouche told him about the robbery, told him when it was going to take place, showed him the vehicle they were going to use for the robbery, gave him all the details, to make quite sure the police would be able to prevent the robbery?
MR MADASA: Yes, that is ...(intervention).
CHAIRPERSON: So there can be no suggestion that Fouche was planning a robbery for his own benefit, because he took every possible step to ensure that it was not successful, didn't he?
MR MADASA: That could be the case, but he may have planned the death, even if he did not plan the robbery itself, he may have ...(intervention).
CHAIRPERSON: So he may have anticipated that De Ru would make faulty arrangements, would misconceive what was happening and would kill people, you're saying that he may have planned that? You can't suggest that, can you, he can only have planned the deaths if he knew that Mr De Ru intended to kill the people if they went there, then you can say he planned taking them there into the trap, which is precisely what he said he did.
MR MADASA: Mr Chair, Chris Fouche was the only link at that point between the police and the gang, and he knew what the plan was. Now, and he was in a suitable position, if he had an ulterior motive to cause the plan to falter, because he was the man on whom the police relied, specifically on the issue of the sign, whether the people were armed, whether they were indeed, let alone they have planned a robbery, whether indeed on that day they were going to rob, and that he should leave the car alone, not with Joseph. So I'm saying he was in a suitable position to cause it to falter, even if he had communicated to the police that indeed the robbery was planned, and this is what happened, this plan faltered in the applicant's version, it did not go according to the plan and I'm saying it can be in fact that Chris Fouche was the cause for that.
CHAIRPERSON: But you are now saying he must have anticipated that De Ru would lose his head and order his ten men to open fire, because there was no plan according to your applicant's version to kill these people, that was the last thing they planned, they were to arrest them, they were to avoid any loss of life, that was the plan that he knew of, wasn't it?
MR MADASA: No, Mr Chair, I'm not saying that.
CHAIRPERSON: Was that not what De Ru says the police plan was?
MR MADASA: Fouche was told about the whole plan. He was told that if these people fired from their car, then the police would then shoot the occupants. Now ...(intervention).
CHAIRPERSON: If they fired from their car, that was the crux of the matter?
MR MADASA: Yes, but this is the area really of the negligence, that in fact what happened, the fire did not come from the car, it did not come from the car, and the only reasonable conclusion, that it came from Fouche himself, when ...(intervention).
CHAIRPERSON: Who was round the corner of the building, some considerable distance away, if you look at the plans, and I must say I had difficulty in accepting that anybody can think that bullets came from, how many feet below them we're told, ten feet below them, when in fact the shots were round the corner of a building, some distance away.
MR MADASA: Mr Chair, with respect, if you could try and recall in detail around this aspect, the plan was not see if the gun sound came from the car. The plan was that if gunfire went off, it would be presumed that it came from the car, it would have been presumed that it came from the car, if they ...(intervention).
CHAIRPERSON: Oh come, come, if the gunshot went off half a mile away, it would not be presumed to come from the car. For your client to succeed on that version, he has to say, "I believed it came from the car".
MR MADASA: And Fouche was not miles away, he was around the corner, and if gunsound went off there and these people were in a state of anticipation, surely then it would have triggered off the fire?
MR MALAN: Mr Madasa, the construction that you're putting before us is the probability again of Fouche having planned the death of this gang, of the three male members of the gang. Why would the applicant, having had access to Elsa, who's with the gang, who has infiltrated the gang, Fouche, who has infiltrated the gang, on all accounts, Joseph that he has contact with, living with Elsa, why would they not have planned some other opportunity, where only two more members of the gang were present, unarmed, to be arrested and investigated? It's very, very difficult, on the basis of the facts, to accept that it would have been such an elaborate plan, assuming now the argument that Fouche indeed planned the killing, that the applicant would not have suggested a different plan, an easier one? Why should we not also deduce that the applicant was in on Fouche's plan?
MR MADASA: Firstly because he denies that. Secondly, because he trusted him, he says he trusted him, the information that he received from him.
MR MALAN: That, I accept both of your arguments, my question is really why would the applicant not have said to Fouche, "Do we really have to go through a robbery, why can't you bring in, I know Elsa, she comes to my office, I visit her at home, Joseph has been to me, we need the other two members, can't they all come and bring guns, so we can pay them for the guns and arrest them, detain them and investigate them?"
MR MADASA: The applicant stated on this point, I think he was asked, and he said he wanted to accumulate evidence and arrest these guys on robbery, amongst other things, because this was, what was foremost in his mind, that these guys were involved in robberies where they would then use the money for gun running and political activities. In his mind he wanted a big case of robbery, which he would then stop and arrest these guys. Now whether that was foolish or not, really, it does not arise, what is important that this is what he states, that he wanted to get them on a big case of robbery, and this is why he waited for that, there were many opportunities, I agree, to have arrested these guys in other manner or earlier on and so on, but, he may have been over-enthusiastic, I don't know, but he wanted to arrest them on a charge of robbery.
CHAIRPERSON: But this arrest was to take place before there had been any attempt to commit a robbery, merely while they were sitting in a motor car. They could have been arrested when they left home, couldn't they?
MR MADASA: Yes, Mr Chair, but obviously they would have obtained good evidence had he arrested them at the scene and having had evidence sufficient enough to indicate that they were about to embark on their plan of robbery.
CHAIRPERSON: Robbing who? We have been told by Mr De Ru that there was nobody there at the time.
MR MADASA: It was stated that that place opened normally at five o'clock in the morning.
CHAIRPERSON: On that occasion there was nobody there.
MR MADASA: I say, Mr Chair, they were going to rob people.
CHAIRPERSON: Well don't you have to rob people, isn't that what robbery is about?
MR MADASA: Mr Chair, they were going to rob that place, the ...(intervention).
CHAIRPERSON: (Indistinct), it was a housebreaking case, was it, and theft, they were going to commit housebreaking and theft, is that what you're now saying? Although we have heard that Mr De Ru suspected them of having killed six policemen, I would have thought that was a very much higher case to have arrested them for?
MR MADASA: According to the information that the applicant received, he anticipated that these people were going to arrive there and open at that time, and then they would be robbed, that was the ...(intervention).
CHAIRPERSON: The point I'm making is, they hadn't, he knew they hadn't, he knew there was nobody there at all, so it wasn't going to be a high profile robbery, was it?
MR MADASA: But that was the plan and anticipation that it was going to be.
CHAIRPERSON: Mr De Ru was at the scene, he could see what had happened, he could see there was nobody there at all, couldn't he?
MR MADASA: I don't know the policy-making, Mr Chair, are you saying he should have then aborted the plan?
CHAIRPERSON: He could have arrested them on numerous other incidents, if he had the evidence we've been told he had, why, why choose this?
MR MADASA: But it is the information he received, he went according to information he received from Fouche that on that particular day they were planning this kind of robbery, and he says he was misled.
CHAIRPERSON: And he must have realised he was misled. The point I'm simply making is, you have been saying he wanted to get a big robbery, but he wasn't, he could see he wasn't going to get it.
MR MADASA: It was too late, Mr Chair, I mean at the scene, it was too late, everything happened fast there, it was too late now to withdraw or to realise that, at that moment, it was a hit of the moment and it was a matter of life and death at that stage.
Mr Chair, I go to full disclosure. I submit that applicant made full disclosure as to what he believed and what he was told. He was honest and straightforward. There is no evidence before the Committee that there are matters that he left out or deliberately omitted which are material to his application.
I submit lastly that in terms of the Act, section 20A and B, the requirements thereof, that the offences were political and were associated with the conflict of the past. I submit that his version, if it's accepted that these people were indeed members of ANC and MK, which was in conflict with the government of the past, and that he then made full disclosure, and in terms of section 22B, he satisfied that requirement, namely that the offences were ordered by an employee of the State, here I refer to the letter by General Malan, but I'm saying even if that letter didn't exist, there was an implied authority on the employees of the State at the time to deal with political activists, either by arrest and/or killing.
I submit further that,in terms of section 23 ...(intervention).
MR MALAN: Sorry, may I again interrupt you there, I have a major difficulty with that argument. The argument that you're putting before us and the evidence is that the killing was never planned, it only eventuated when things went wrong. Now that is not a political motive, that's part of police duties then, to act in a certain way. How do you bring political motive, because it's not, the political in terms of 22B is not in the broad political conflict, especially when it concerns a functionary of the State, it must be under an order or a direct order. You rely on an implied order, which I think the Amnesty Committee has taken as a line, but the implied order does not relate to duties, it relates to criminal activities, outside of the scope of duty. Sorry, Mr Madasa, that's perhaps again the argument that I asked you earlier to think through, put it in clear terms before us, because I remain with a difficulty with that at the moment.
MR MADASA: Thank you, Mr Chair, indeed I'll do so.
Further on, I submit that in terms of section 23, the applicant has shown that these offences which he committed were associated with a political objective, in that he believed that the deceased persons were members of a political organisation and in attempting to arrest them and then killing them, he was doing his duty as a policeman, and that the killing was directed at the opponents of the State, because they were members of a political organisation.
I further submit that the applicant had the factual basis, on the fact that the deceased were political activists, on the information received from Fouche and Elsa.
And lastly, in terms of section 23F(I), the applicant did not benefit personally from the offences that he committed, and I submit that he has made a good case and he should be given amnesty.
Thank you, Mr Chair.
CHAIRPERSON: Well we were told yesterday that the other three gentleman are going to be short, which of you is going to start?
MR COETZEE: Mr Chairman and esteemed members of the Committee, I'm not going to address anything as to the soundness of the application, it is only my respectful submission that the only true full disclosure as to the cause and the facts leading up to the death of the deceased is contained in the two statements by Fouche, who I'm representing, and that is in fact the full disclosure of the truth, and I will leave it at that. Thank you.
UNKNOWN SPEAKER: Thank you, Mr Chairman, I deem it unnecessary to advance any argument on behalf of the implicated person, Isak van der Merwe, alternatively I'm of the opinion that it will have no relevant contribution to any decision taken.
Thank you.
UNKNOWN SPEAKER: Thank you, Mr Chairman, the position of the victims were from the beginning that they're opposing the application because of the basis that the actions of the applicant were not politically motivated whatsoever. This is still the view of the victims, except to say, maybe lastly to say that the victims feel that the applicant didn't take the Committee in his confidence and there was no political motivation whatsoever for his deeds, and his application must therefore fail.
Thank you, Mr Chairman.
CHAIRPERSON: I take it you don't want to reply to that. How long would it take you to prepare arguments basically on the points raised by the members of the Committee, or on any other legal points you wish to raise? A week? I don't want to push you too hard on this, I'm aware you have other things to do. How long would you need?
MR MADASA: Mr Chair, just before I answer that, I'll answer that, shortly on this admission by Advocate Coetzee that the statement of Fouche must be taken as such and as truth. I submit that Fouche had an opportunity to go there and tell the Committee his version. He did not have courage to do so, for obvious reasons, and an adverse inference can be properly drawn from that fact.
Mr Chair, lastly, on the last question then, a week would be sufficient.
CHAIRPERSON: Could you arrange to have it sent to the Cape Town office and they can forward it to us? I think that's easier than asking you to send copies to all three of us at different places.
Thank you. We will now adjourn this matter to allow ...(intervention).
MR MADASA: Sorry, Mr Chair, I've a question to ask from Mr Chair about the first application, just, I don't have an indication of what is going on in that application. Is Mr Chair in a position to supply ...(intervention).
CHAIRPERSON: Well I don't know what's going on either, because as you will recollect, we discussed at some length the fact of the second application, and the Committee that heard the first application considered it desirable that they should hear the second, and in fact if questions of credibility were to arise, and if you look at the end of the transcript of the evidence of the first, there is a request that arrangements be made to set that application down at the same time as the present application, so they can be dealt with together. As you know, that hasn't been done, we now sit with a separate Committee, so the previous Committee will have to decide on what it has heard or on any information that's become available here on that application, but do you wish to advance further argument, because you did, as I recollect, on certain points say that you would rather not address the Committee?
MR MADASA: Mr Chair, eventually I did ...(intervention).
CHAIRPERSON: You did submit a fairly long, you have submitted helpful and detailed written argument, but I don't know whether you, as I, were under the impression that the Committee was going to sit again and that you would have an opportunity. I don't want to deprive you of that opportunity. If you are satisfied that you don't want to add anything to the written argument you have already submitted, we can proceed to deal with it on that basis.
MR MADASA: Yes, thank you, Mr Chair, I have nothing to add, except to request Mr Chair to, in his powers, to expedite that matter.
CHAIRPERSON: Thank you. As I say, we'll now adjourn for a few minutes to enable a fresh team to arrive and for such arrangements to be made.
COMMITTEE ADJOURNS
