Amnesty Hearings

CHAIRPERSON: For the record, it is Monday the 18th of October 1999. This is a hearing of the Amnesty Committee, held at Cape Town. The Panel consists of myself presiding, Denzil Potgieter, I am assisted by Advocates Bosman and Sigodi. We will be hearing the application of Michael Philip Luff, the amnesty reference number is AM3814/96. I am going to ask you to put yourself on record, gentlemen.

MR RHEEDER: As the Committee pleases. My name is Bennie Rheeder, from the firm of Attorneys De Klerk & Van Gend Incorporated. I am assisted by my colleague, Mr Robbie Engela from the same firm of attorneys, and we appear on behalf of the applicant Michael Philip Luff.

CHAIRPERSON: Thank you Mr Rheeder. And then Ms Patel.

MS PATEL: Thank you Honourable Chairperson. Ramula Patel, Leader of Evidence, I also appear on behalf of the parents of the deceased, the Dyasi family. I wish to indicate at this stage the position of the family is that they are not at this stage opposing the application, but reserve their rights in this regard, thank you.

CHAIRPERSON: Yes, thank you Ms Patel. Mr Rheeder, is there anything else that you want to put on record or are you ready to present the evidence of your client?

MR RHEEDER: We are ready.

CHAIRPERSON: Very well. I assume your client will be testifying in Afrikaans?

MR RHEEDER: That is correct.

CHAIRPERSON: Mr Luff, will you just switch on your microphone please. Can you give your full names for the record?

MR LUFF: Michael Philip Luff.

MICHAEL PHILIP LUFF: (sworn states)

CHAIRPERSON: Thank you, please be seated. Mr Rheeder?

EXAMINATION BY MR RHEEDER: Thank you honourable Chairperson. Mr Luff will read his affidavit as evidence into the record, the affidavit compiled and attached to his application, whereafter I would like to ask him a few questions and then turn him over to Ms Patel, as the Committee pleases.

CHAIRPERSON: Yes, thank you Mr Rheeder. The affidavit, just give us the numbering in the Bundle.

MR RHEEDER: That will be number ...

CHAIRPERSON: The page number?

MR LUFF: Number - two pages, 6 to 14.

CHAIRPERSON: Yes, thank you very much.

MR RHEEDER: Thank you. Mr Luff, can you then continue to read your affidavit into the record as evidence?

MR LUFF: Mr Chairman, I just want to make a few changes to this affidavit because this was made in 1996. I am a few years older, I am 40 years old now and my children are 12 and 16 years old. I am not 37 years old and they not 9 and 13 years like in the record. The children are 12 and 16 years old, thank you.

CHAIRPERSON: Thank you.

MR LUFF: Can I continue? I, Michael Philip Luff, declare as follows under oath - I am a 40 year old man, an Inspector in the service of the South African Police Service and I am stationed in Ceres. I live in 21 Orange Street, Ceres, I am married and have two children of 12 and 16 years old. I have no previous convictions of any nature.

CHAIRPERSON: Don't go too fast please for the Interpreters' sake.

MR LUFF: During November 1985, I was busy with seconded service at the Unrest Unit in Worcester. At that time I was stationed at the Uniform Branch of the South African Police in Ceres. As I have understood the position at that time, the ANC and its alliance were involved in the liberation struggle and a campaign in Worcester to make this town ungovernable. Unrest which led to stoning and damaging of property and even loss of life, was prevalent. Because the Police Force in Worcester could not contain this unrest all by themselves, I myself and a few colleagues from the nearby towns, were on seconded service to the Unrest Unit in Worcester. Our task was to suppress the political upheaval, especially in Zweletemba in Worcester and if possible to arrest some of the people involved. The people who were involved in this political unrest were either members or supporters of the ANC, UDF who were in a political struggle against the State. We were deployed to combat this struggle and to prevent this.

At approximately 20H30 on the 3rd of November 1985, I together with Cons Chris Geldenhuys from the Uniform Branch in Ceres who was with me on seconded service at the Unrest Unit at Worcester, we were placed there by David Vincent Frost. At that time he was also from the Uniform Branch in Worcester. Apart from us, there were also other members from the Force, and our instruction was to deploy in Zweletemba and any unrest which occurred, had to be suppressed, and any people who were involved in these unrests, had to be arrested. Cons Geldenhuys and myself carried our service pistols and also shotguns. I can remember that one of these shotguns was a certain type of shotgun and the other was a semi-automatic shotgun. Ammunition was also issued to us for these shotguns and included SSG and other cartridges.

Cons Geldenhuys and myself were busy in Zweletemba and we used a patrol van from the Unrest Unit. While we were moving around in Zweletemba, roundabout 20H40, we were informed by radio of people stoning the community hall in Zweletemba. Because we could not drive with the vehicle to there because of the stone throwing, we left the vehicle and went there on foot. When we arrived there, a Constable of the previous Administration Board told us that this hall was being stoned and a few window panes had already been broken. Round the hall and in the hall, there were many stones laying around. Shortly after that, I noticed that a group of people from behind a fence on the opposite side of the road, were coming from there and were throwing stones at this hall. People were about 30 paces from the hall.

After the people stoned the hall, they moved back to behind this fence again. Afterwards Cons Geldenhuys and myself took up positions on a stoep at the back side of the hall, to prevent the hall from being further damaged and to prevent that the hall would be arsoned. When these people came to the fore again, and started stoning this hall, I shot a warning shot with my shotgun to the left side of the group of people who were standing there. It had no noticeable effect on these people and they kept on throwing these stones. Afterwards I fired a shot on the person whom I identified as the leader of the group. Almost simultaneously with the shot which I fired, Cons Geldenhuys also shot at these people. Later on he told me that he was firing in the direction of the same person as I was doing.

Just after we had shot at this person, he bent forward and I thought that he was busy to pick up a stone. Then he turned around and ran back to the fence like the rest of the group did. The person whom I was shooting at, was wearing a light green T-shirt with a grey trousers. I have to mention that my shotgun and that of Cons Geldenhuys was using SSG shotgun cartridges at that stage, because we were in an area from where there were being shot on the police. We would have used the shotguns to protect ourselves.

Earlier that evening, shots were fired at police officers in Zweletemba. Cons Geldenhuys and myself then moved in the direction to where this group of people had disappeared, to see whether we had not hit any of these people, and then we would have been able to arrest them. Because according to us, they were involved in the offences of public violence or the malicious damage of property. We could not see anybody and we stayed behind a fence in Tusa Avenue to do surveillance. After half an hour a vehicle passed in Tusa Avenue and blew its horn. That same vehicle repeated this movement and then stopped. Somebody who was moaning and who was probably hurt, was then carried to this vehicle from a house, and the vehicle then left.

Cons Geldenhuys and myself then returned to the charge office in Zweletemba and asked that the members had to be notified by radio that they should be on - see whether they could find this specific vehicle. Lt Frost then accompanied us to this community hall and he was an officer on service, to see what was happening. We explained to him there what had happened. At that stage, there was not any unrest in the vicinity of this town hall. After we had indicated to Lt Frost what had happened there, it was about 23H00.

Later that night, Cons Geldenhuys and myself returned with our vehicle to Tusa Avenue, where we were surveying earlier. We left the vehicle just there. Then we moved among these houses to see whether we could not possibly find any people of this group. Behind one of these houses there was a shack where a light was burning. I went nearer and I looked through either the door or the window, I cannot remember exactly what the position was, I saw that a person with a light green T-shirt was laying on a mattress on the floor of this hut. I recognised this person as the person at whom I had shot earlier that evening, and I entered this little shack. I saw that this person had blood on one of his shoulders, I think it was the right shoulder. I asked the person what was wrong with him and he answered me that the police had shot him earlier that evening. He did not answer on my question, where or when it did happen.

Apart from that person, I am sorry, there was another woman or two women in the shack and they were laying on a bed. I then told this person that I was arresting him on a charge of public violence and asked him to accompany me. He put on his shoes and stood up. I took him, I took hold of his left arm and at that stage it did not seem to me as if he was seriously injured. I accompanied the person outside, when I came to the door, Cons Geldenhuys said that he wanted to see whether there were not other people hidden in this little shack.

I accompanied the arrested person in the direction of the road, on the way to the patrol vehicle. The next moment this person broke loose and ran from, through the gate of this premises in the direction of Tusa Avenue. I followed him, I stumbled over something and later on I established it was a cement stoep and my shotgun fell from my hand. I picked up the gun and shouted at the person that he had to stand still. Although I cannot remember the exact words I said, it had meant that he had to stand still. This person did not react on my warning and I realised that I would never be able to get near to him. Here I have to mention, at that stage, I weighed about 140 kilograms and that I was 1.86 metres tall. The deceased on the other hand, was a young man, athletically built and there was no possibility that I would be able to overtake him. I recognised him because of the clothes he was wearing and later on, I would not have been able to identify him should he change the clothes he was wearing. Then I followed, I shot a shot in his direction with my shotgun, to prevent that he gets away. At that stage, when I had shot at this person, I heard him running down Tusa Lane, that was a little way from me. Later on I established that he was about 20 paces from me in a direct line, but because he ran through the gate and moved in the left direction, he had an advantage of about 35 paces from me. I did not shoot a warning shot before I fired at him, because there was absolutely no time for that. After I had shot at him, I heard this person, I noticed that he had stopped running. I ran in his direction and saw that he was seriously wounded. He was laying on his stomach in the road.

Cons Geldenhuys then went to the patrol vehicle on my request, and contacted the charge office by radio. Shortly afterwards Lt Frost appeared on the scene, they picked up the deceased and took him to the hospital. Later on I heard that the person had died. I was very shocked because of this incident and did not work any further that night, and stayed at the charge office. The next morning I identified the weapons to the police photographer and the person who drew the map. During January 1987 there was a formal inquest, during which evidence was given regarding the death of the deceased, and this happened in the Magistrate's court in Worcester.

On the advice of my legal representative, I refused to answer any questions which could incriminate me, but in a statement which I made regarding this incident, it served before this Court. A copy of this is attached as Annexure MPL1. As far as there are differences between this Annexure 1 and this affidavit, the information in this affidavit is true and correct and it explains things as I can remember them. After evidence was given, this Court handed down judgement and I attach it as an annexure too. This Court found that where somebody is killed to prevent that he escapes, you can rely on Section 49(2) of the Criminal Procedure Act, 51 of 1977, and if a person had to be arrested according to Annexure 1. According to a Schedule 1 of the Criminal Procedure Act, 77 of 1951, at that stage did not include the offences of damage to property or public violence. The Court decided as follows: "This Court then has to come to the conclusion that Cons Luff could not rely on Section 49(2) to prove that it was indeed a justifiable homicide. This conclusion makes it unnecessary for the Court to speculate further regarding any further evidence, namely the onus which the suspect has to acquit himself of, etc.

Then once again, as a result of the fact that in any event, he cannot rely on Section 49(2), if a Court then has to decide whether the death was caused by an action or an omission which constitutes an offence on the part of anybody, then the Court comes to the conclusion of yes, on the side of Cons M.P. Luff, also see page 290 or 209 of Annexure MPL2." In spite of the Magistrate's finding, the Attorney-General decided not to institute proceedings against me an during 1996, the Attorney-General however changed his mind and I was prosecuted in the Regional Court in Worcester on charges of murder in connection with this incident. The case was postponed to the 4th of April 1997 and then a charge was put to me, to give me an opportunity to bring this application to the honourable Commission.

It is my respectful submission that the shot fired by me at the deceased and at the community hall, as well as the shot which killed him, at Tusa Lane, was fired by me in a bona fide contemplation of furthering or rather countering the struggle waged by the liberation movements, namely the ANC and the UDF at that stage against the State. It was my intention to resist the struggle. There is no doubt in my mind that the deceased was a supporter of this organisation, otherwise he would certainly not have taken place in this riotous incident, and I further submit that I committed this act within the course and scope of my duties and within the course and scope of my express authority.

I further submit that I acted on the command of Lt Frost and acted to prevent a riotous assembly in Zweletemba and to arrest the persons involved in that riotous assembly and that that was the reason for my conduct, or at least that I had good reasons, and bona fide reasons to believe that I was acting within the course and scope of my duties and authority. The fact that William Dyasi was shot dead by me in the circumstances as set out above, is something which will haunt me for the rest of my life. As already mentioned, I was extremely shocked by the incident and the effect has developed into my married life and my relationship with my spouse and at this stage, I have virtually come to terms with this incident, it is 10 years later, and now I am being charged in terms of this incident committed by me and all these tensions have now again come to the fore.

I can only say that I am sorry that a young man had to lose his life and I beg understanding for the circumstances under which I had to operate and I offer my most sincere apologies to the family and next-of-kin of the deceased. Signed M.P. Luff. If the honourable Court will then please give me an opportunity, I would also like to say something to the parents. To the parents, I would like to offer my sincere apologies for what had happened and I would like to say that I am very sorry about what had happened, and for you as parents, I ask your forgiveness for this incident. As already mentioned, this will stay with me for the rest of my life, and it is certainly not something which is pleasant to remember.

I, myself, have a young son and I can only imagine how you must feel. I am also prepared to speak to you personally as parents and to ask your forgiveness and to apologise, if that is what you would choose. It does not matter what the outcome, the eventual outcome of the case, it was God's will that things happened the way they did, and I believe that he will assist you and me in the further development of this incident, and that is all, thank you.

MR RHEEDER: Thank you Mr Luff. If the Chairperson would just allow me to ask a couple of questions in clarification. Mr Luff, in your statement and in your evidence you mentioned your service, your seconded service in Worcester, what does this secondment actually mean?

MR LUFF: That is when one is asked to go to neighbouring police stations or areas to assist there, because they don't have the necessary manpower to control certain incidents, and then we are seconded to those areas where we are needed.

MR RHEEDER: In 1985 you were stationed at Ceres, were there any problems in Ceres at that stage, any serious problems?

MR LUFF: At that stage there were no problems in Ceres.

MR RHEEDER: And you were specifically seconded to Worcester since Worcester was experiencing a lot of this type of problem and riots?

MR LUFF: Yes.

MR RHEEDER: Before you went to Worcester, had you been seconded to any other place, where you had to deal with political unrest?

MR LUFF: I was sent on secondment to Graaff-Reinet for about three and a half months.

MR RHEEDER: What were conditions there, what did you experience there?

MR LUFF: Myself and some of the more senior members were taken by an officer in charge to do surveillance in this area where we were supposed to do duty, and when we entered the residential area the casspir vehicle in which we were being conveyed, came to a halt and all our, my colleagues cocked their weapons and told us that we would rather, we should do that as well, because things were going to turn ugly. We entered the residential area and within half an hour, 14 petrol bombs had been lobbed at the vehicle. The casspir was on fire, and several shots had been fired at the casspir as well as from the casspir into the crowd. It was a very frightening experience for me, I realised that this was war in the true sense of that word. I had not expected anything like this.

MR RHEEDER: And this took place within a residential area in Graaff-Reinet?

MR LUFF: Yes, it was in one of the residential areas there.

MR RHEEDER: When was this approximately?

MR LUFF: It was earlier that year, it was June/July if I remember correctly. I cannot remember a specific date.

MR RHEEDER: But it was 1985?

MR LUFF: Yes, just before this incident.

MR RHEEDER: And then just to return to Zweletemba and Worcester, this specific evening on which the incident occurred, you testified and said that you and he was then Cons Geldenhuys, you were requested to attend the community hall where there was reported incidents of stone throwing. Could you explain to us what this community hall was?

MR LUFF: It was a hall where the community came together to do certain things, whether it was for recreational purposes of sometimes it was used as a church, but it was State property.

MR RHEEDER: As a Uniform policeman at that stage in 1985 and then also specifically where you had been seconded to, Riot Control, what was your impression of the attitude of the people in these residential areas towards State property?

MR LUFF: In the first place they were not well disposed towards the police at all, and they wanted to burn down the property of the State, or they wanted to damage it in some way so that they could topple the then government.

MR RHEEDER: Is that how you experienced it?

MR LUFF: Yes.

MR RHEEDER: You also referred to the judicial inquest which was held and certain bits of documentation have been annexed to this Bundle and which relates to the inquest, I would like to refer specifically to one document and that is the post-mortem report by Prof Knobel and that is on page 196 to 212. Is it correct that Prof Knobel testified at the inquest?

MR LUFF: Yes.

MR RHEEDER: And you were present during the inquest and during his evidence?

MR LUFF: I was never inside the court, but I was just present at court.

MR RHEEDER: And you had read his post-mortem report?

MR LUFF: Yes.

MR RHEEDER: Could you just tell the Court, his opinion as you understood it relating to the distance as to which the deceased had been away from you when you fired the shots?

MR LUFF: Prof Knobel said in his report that it was definitely not a contact shot and that the deceased must have been some distance away from me, he agrees with me that it is possible that it could have been 20 paces, which is my contention.

MR RHEEDER: According to your knowledge, were any other witnesses present at the scene or in the vicinity who had witnessed the fatal shot and the surrounding events?

MR LUFF: No, I don't know of any other witnesses.

MR RHEEDER: And no other witnesses were called during the inquest?

MR LUFF: No.

MR RHEEDER: And then just generally, Mr Luff, when did you join the police?

MR LUFF: On the 2nd of February 1978.

MR RHEEDER: And when did you join the Detective Branch?

MR LUFF: During November 1990.

MR RHEEDER: So from 1978 to 1990 you were a member of the Uniform Branch?

MR LUFF: That is right.

MR RHEEDER: Mr Luff, just to return to the incident, you testified that the deceased Mr Dyasi, you took him by the left arm when you apprehended him in this corrugated shack, can you specifically remember how you had kept hold of him?

MR LUFF: I cannot remember specifically where on his left arm I had grabbed hold of him, but I do recall that it was his left arm where I held him and that is how we left the house.

MR RHEEDER: Could you perhaps explain how it was possible for this person to break free from your grip?

MR LUFF: I cannot tell the Court exactly how he had broken free, but before I knew what had happened, he had already scampered.

MR RHEEDER: That is all for now.

NO FURTHER QUESTIONS BY MR RHEEDER

CHAIRPERSON: Thank you Mr Rheeder. Ms Patel, have you got any questions?

CROSS-EXAMINATION BY MS PATEL: I do, thank you honourable Chairperson. Mr Luff, you state that you ...

CHAIRPERSON: Mr Luff, you can either listen to the questions in English directly if you prefer that, but you can also put on the headset so that you can listen to the interpretation into Afrikaans.

MR LUFF: I will listen in English, and if I don't understand, I will ask for the question to be repeated.

MS PATEL: That is fine, thank you honourable Chairperson. Mr Luff, you stated that you acted in accordance with your instructions at the time, is that correct?

MR LUFF: That is correct.

MS PATEL: Would you tell us what your specific instructions were from Lt Frost at the time?

MR LUFF: It was to suppress the riots and to prevent them damaging State property, and possibly to try and arrest some of the suspects.

MS PATEL: Sorry, is that all?

MR LUFF: That is correct.

MS PATEL: Okay, were you not also aware or informed at the time that the minimum amount of force was required to be used when you were carrying out these duties and thereafter you were supposed to act in accordance with the principles as set out in the Criminal Procedure Act? That is in fact what Lt Frost testified at your inquest?

MR LUFF: I cannot remember exactly what the word were that were used because at that stage, we had been busy for quite some time with riot matters. I won't deny it, if Lt Frost did testify to that effect.

MS PATEL: You were aware though that the general tenure or the general manner in which you were supposed to carry out your duties, were in accordance with these instructions from Lt Frost, not so?

MR LUFF: I was aware of what my powers were, but I would like to add that at that stage there was a state of emergency or that area was in a state of emergency.

MS PATEL: Mr Luff, can you tell us that at the time when you were called to the municipality buildings or the administration buildings as you referred to them, what was the lighting in that vicinity at the time, on that evening?

MR LUFF: The light situation, the lighting was very bad and if I remember correctly, there was a single light which was some distance away from the hall and which gave some light.

MS PATEL: You estimated the crowd of stone throwers at the hall to be about 15 people, can you tell us from what distance you gauged this?

MR LUFF: They were about 30 paces away from us.

MS PATEL: Can you tell us from your observation at the time, what the group or who the group comprised of, were they generally young people or adults or can you not comment on that?

MR LUFF: I really cannot remember, and I cannot comment on whether they were youths or adults or whatever. I simply know that there was a group of about 15 people.

MS PATEL: Okay. Can you recall whether this group was being led by any specific person or persons?

MR LUFF: Yes, as I have already testified, the person wearing the light green shirt, continually pushed himself into the foreground. I don't wish to say thereby that he was indeed the leader of the group, but it seemed to me to be the case at that stage.

MS PATEL: For how long did you observe this group before you shot at them?

MR LUFF: I cannot say exactly how long it was, but it was some time.

MS PATEL: Would it be half an hour, ten minutes, 15 minutes, an hour, could you just give us a rough estimation of how long?

MR LUFF: As I have said, I simply cannot say how long it was, it was a short while. It definitely wasn't as long as half an hour.

MS PATEL: Can you recall the dress of any of the other members of the group?

MR LUFF: No.

MS PATEL: Why is it that you remember specifically what William Dyasi was wearing that evening?

MR LUFF: The first time that this group appeared, he simply, he was quite noticeable because of the light coloured clothing that he was wearing and thereafter, I specifically watched him.

MS PATEL: The rest of the group, you are saying you concentrated on him because he had light coloured clothing only?

MR LUFF: And because he was always the one who came forward first.

MS PATEL: How many of the others in the group, threw stones, can you recall?

MR LUFF: No, I cannot remember that. All I know is that there were a lot of stones being thrown and they were certainly not being thrown by only one person.

MS PATEL: Can you recall whether the person in the light coloured T-shirt at any stage, ever said anything to the group that was standing there?

MR LUFF: The group was about 30 paces away from us, so I couldn't hear anything being said.

MS PATEL: And when you shot, you shot at him specifically?

MR LUFF: My second shot was fired directly at him.

MS PATEL: What was your intention when you shot at him?

MR LUFF: to protect the community hall and to prevent the crowd from causing further damage to the community hall.

MS PATEL: Your intention was not to kill him at that stage?

MR LUFF: No, not at all.

MS PATEL: Merely to injure him?

MR LUFF: Excuse me?

MS PATEL: Merely to injure him?

MR LUFF: That is correct.

MS PATEL: All right. Can I just refer you to, honourable Chairperson, grant me a moment, I just want to find the reference, in the statement that you have prepared for the inquest, it is found on page 15 to 17 of the Bundle, honourable Chairperson, you state there, let me just count, it is about eight lines from the bottom of page 15, you state there that

"... I fired in the direction of the black man wearing a light shirt, since that was where the greatest concentration of people were."

MR LUFF: That is correct.

MS PATEL: That is very different to you shooting specifically at Mr Dyasi because he appeared to be the leader of the group, don't you agree?

MR LUFF: He was in front, he was a couple of paces ahead of the group. That is why I said I fired at him specifically.

MS PATEL: Well then how do you explain your statement here that you fired in that direction, because the majority of the stone throwers were where he was?

MR LUFF: I don't understand because in the statement it said I fired in the direction of the black man wearing a white shirt, since the majority of the people were in that area, so in the statement I said I fired in the direction of the man wearing the light shirt.

CHAIRPERSON: Yes, but the question revolves around the reason why you fired like that. Here the reason why you fired at that direction is simply because the majority of the stone throwers were there and Ms Patel's question is that as far as she is concerned, that differs from your evidence today where you said that you fired in order to neutralise the leader of the group. Do you understand the distinction and the point she is making?

MR LUFF: I am trying to understand, but what I am trying to say is that I fired at the person in the light coloured shirt and the group were concentrated in one group, but my intention was to fire at the person in the light coloured shirt, and that is why I specifically mentioned it in the statement.

CHAIRPERSON: Ms Patel?

MS PATEL: Thank you honourable Chairperson. In what direction did the group disperse after the shots were fired?

MR LUFF: From where I was standing, well, I cannot say whether that was in a northerly or southerly direction, but they ran away from us.

MS PATEL: Okay. If you can give me an indication, where is Tusa Lane from where you were, is it behind or in front or ...

MR LUFF: I don't know Zweletemba very well, but I know the direction of the road in which they ran away, was immediately in front of us.

MS PATEL: Sorry, I didn't get that, did you say that they dispersed towards the road in front of you?

MR LUFF: Yes.

MS PATEL: Because that is the street that you say you ran down 200 metres?

MR LUFF: That is correct.

MS PATEL: Now, my instructions from Mr Dyasi is that when he found his son William, William had said to him that he was shot as he was coming down Butsani Lane and it was close to the corner of Tusa Lane and Butsani Lane? What is your comment on that?

MR LUFF: Chairperson, I am assuming that that is the road that runs directly in front of the hall?

MS PATEL: Yes, it comes passed the police station if my bearings are correct?

MR LUFF: Yes. It is correct like that, that is the road where he was shot at.

MS PATEL: He states further that his son said to him that he was walking down Butsani Lane and had seen two policemen and had turned around and started running because he was afraid that the two policemen were coming towards him and so he ran and that is when he was fired on?

MR LUFF: No, that I deny most vehemently. I cannot vouch for what the son told his father, I cannot comment on that, but I deny vehemently that we wanted to arrest him and then shot at him. We had watched him for quite some time, and then only did we shoot.

MS PATEL: Mr Dyasi states further to me that when the son ran, he had intended to go through the premises that he was eventually found at and he was going to scale the fence at the back and then make his way back home, but because he was injured so badly, he couldn't scale the wall and that is how he ended up at the home of Mrs Hardy?

MR LUFF: Once again, I don't know what the son told his father.

MS PATEL: Mr Dyasi states further that he had sent his son out that evening to go and collect his youngest daughter, meaning the deceased's youngest sister who had been at somebody's place down the road and they asked him to go and fetch the little girl and that is how he ended up in that vicinity?

MR LUFF: I would like to repeat, I cannot comment on the conversation that took place between the son and his father.

MS PATEL: All right. Let's deal with your actions after the crowd dispersed. You state that you were, if my memory serves me correctly, somewhere in Tusa Lane for about 45 minutes, yes in Tusa Lane, yes that you were in Tusa Lane for about 45 minutes observing the area, is that correct?

MR LUFF: That is correct.

MS PATEL: Were you with Mr Geldenhuys at the time?

MR LUFF: That is correct.

MS PATEL: The point from which you had carried out your observation, would that be just in front of the hall, I imagine?

MR LUFF: Yes, it was very close to the hall.

MS PATEL: Also very close to the police station, it is about three blocks down, three streets down, three, four streets down, not so?

MR LUFF: The police station wasn't very far away, I cannot remember exactly how far, but it was quite close.

MS PATEL: You make mention in your statement on page 9, well from page 8 to 9 of the Bundle, that you saw a vehicle in the street and that it had hooted and then went away and came back and then somebody was put into the vehicle, is that correct?

MR LUFF: That is correct.

MS PATEL: Can you say from what distance the vehicle was from you at the time more or less?

MR LUFF: I would say about two or three houses away from us.

MS PATEL: Can you tell us what the lighting was in that vicinity besides the one street lamp across from the hall?

MR LUFF: The street lighting was very bad. That is also the reason why we could never ascertain what kind of vehicle it was.

MS PATEL: Okay. Can you just give me an indication, the house where you eventually found the deceased, how far from that house was this vehicle?

MR LUFF: I cannot say exactly how far away it was, but it was approximately between one and three houses, away from us where this whole incident took place. If I remember correctly the house where we found the deceased, very close to that, but I cannot say that the vehicle had been right in front of that house.

MS PATEL: You state that you imagined that somebody who was injured was put into that vehicle?

MR LUFF: That is correct. That is as a result of the inference which I drew as a result of the noises coming from that side.

MS PATEL: Correct me if I am wrong, but the purpose in you carrying out that observation was to attempt to find some of the people at least who dispersed from the hall, not so?

MR LUFF: That is correct.

MS PATEL: And here you imagine that somebody who was injured, was being carried into a vehicle, but you did nothing about it at the time? Can you explain why not?

MR LUFF: At that stage I also had a fear for my own life. Earlier that evening shots were fired at police officials in the area in which we found ourselves and that is why I decided just to stay where I was, just remain seated behind the bush, it seemed to me the safest option at the time and I was actually afraid to go to the vehicle to see what was happening, and that is why we went back to the charge office and not to the vehicle.

CHAIRPERSON: Are you saying that you were hiding behind a bush?

MR LUFF: Yes, it was a hedge or a bush near one of the houses, we were hiding behind that.

CHAIRPERSON: Were you on some premises?

MR LUFF: Yes.

CHAIRPERSON: At one of the neighbouring houses and you were hiding behind the scrub or whatever?

MR LUFF: That is correct. And that is the point from which we did our observation, the purpose of which was to see whether the crowd would gather again and start their stone throwing again and then we would be behind them.

MS PATEL: Thank you honourable Chairperson. Did Mr Geldenhuys agree with you that the two of you should do absolutely nothing at that time?

MR LUFF: I never spoke to Sgt Geldenhuys about this, what we should or shouldn't do. I simply felt that we should remain there and I am assuming that he stayed there because I stayed there. Because we were both rather afraid of what could happen.

MS PATEL: You were both quite heavily armed at the time, not so?

MR LUFF: Each one of us had a shotgun and also a service pistol. I may also say to Ms Patel that we had nothing like armoured vehicles or bullet-proof vests or anything of the kind. We simply were people in possession of firearms. We were actually perfectly normal and it would have been very easy to hit us anywhere on our bodies, there were no bullet-proof vests at the time.

MS PATEL: But Mr Luff, you had had seven years' experience in the Police Force at the time that this incident had occurred? Seven years is a long time?

MR LUFF: Seven years is a long period, and I agree, but it wasn't seven years of riot control. At that stage, I had only had about five months of this kind of riot control, before that I had done normal policing duties and I had never found myself in a riot situation, I had never been trained to deal with it. That only happened later.

MS PATEL: After you went to the police station to report this vehicle was there and what you thought you saw, did you ever return to that house where the vehicle had stopped and where the person had allegedly been brought from? Did you ever follow up on that?

MR LUFF: Not at that stage. Not immediately. Later that night we went back there to see what had happened there, once it had quieten down.

MS PATEL: But why did you wait, here is allegedly supposedly somebody who could very well have been involved in an act of violence, who could have been arrested, is removed from a house and you don't go back to check immediately, why waste time?

MR LUFF: Once again I say that we were scared to enter that area because we didn't have armoured vehicles and we didn't have bullet-proof vests, that is why we didn't go back immediately. We waited for it to quieten down in the area and only then did we go.

MS PATEL: The police station is down the road, it is within walking distance, why didn't you ask for backup?

MR LUFF: If I remember correctly, there were four policemen on patrol, four of us. The reinforcements would have been very meagre.

MS PATEL: So the sum total is you didn't act because you were afraid and you were short-staffed at the time, yet you were not afraid when you entered the house of Ms Hardy, you didn't know what you were going to find inside there?

MR LUFF: That was late in the evening, late at night, it was perfectly quiet in the area and that is why we took the chance of going in there. That is totally different to the situation that had reigned at the time of the incident. I must add that at the time when we entered the home, we were still afraid, but because it was quieter, we made the decision to enter.

MS PATEL: How did you realise that Mr Dyasi was in that house?

MR LUFF: We didn't go to a specific house, we moved around in amongst the houses and peered in the windows to see what we could see and it was then that I saw the deceased laying behind a little corrugated shack at the back of the house. We didn't go to a specific house.

MS PATEL: It was just you and Mr Geldenhuys who at that hour, been moving in and around all those houses?

MR LUFF: That is correct.

MS PATEL: There was a curfew at the time in the area not so?

MR LUFF: Repeat the question please.

MS PATEL: There was a curfew in the area at the time? Do you need an explanation?

MR LUFF: No, I cannot remember that. It might have been, but I cannot specifically recall that.

MS PATEL: All right, my instructions are that there was a curfew at the time and that people were meant to be in their homes by a specific hour. Mrs Hardy says that William Dyasi had come into the house, basically knocked the door open. The door was unlocked, but he had knocked the door open and fallen on the ground in her place and that he was badly injured and that he lay on the floor for a long time, because he was in so much pain. She says that they were afraid, she was in the house with a companion, a female companion, they were afraid and didn't know what to do and didn't go out because of the curfew also at the time and so they stayed in the house with Mr Dyasi, William Dyasi.

MR LUFF: I really cannot comment on what Mrs Hardy did, but it is possible. It is possible that there was a curfew in operation at the time, but I cannot recall that.

MS PATEL: Okay. You state also that you looked either through the window or the door, you cannot recall which when you noticed Mr Dyasi on the floor?

MR LUFF: That is correct.

MS PATEL: Now my instructions in that regard is that it couldn't have been the door and it couldn't have been the window either, because the window is not on that side of the house where Mr Dyasi was laying on the floor, and in fact the curtains to her place, were drawn.

MR LUFF: I cannot recall specifically whether it was the window or the door, I know it was either the window or the door. I saw a candle, a lit candle on the floor next to the person.

MS PATEL: Honourable Chairperson, may I just take instructions for a moment, thank you. Thank you honourable Chairperson, sorry Mr Luff, did you say that the candle was under the table or did you say that the candle was next to the boy?

MR LUFF: The candle as far as I was concerned, was standing on the floor, next to the person.

MS PATEL: Now, I accept that the home of Mrs Hardy is a fairly small place, nevertheless Mrs Hardy says that the candle was under a table, it wasn't next to, it wasn't specifically next to the boy, but the table was quite close to where the boy was laying.

MR LUFF: Then I am not understanding this properly, Ms Patel says the candle was on the ground under the table, which was close to the boy? I cannot remember the table, but I can recall seeing a candle, a burning candle on the floor.

MS PATEL: Okay, I won't take that point much further. Sorry honourable Chairperson, a moment please. Okay, sorry Mr Luff, you stated at some stage that what attracted you to that specific house was the light, was the candle, not so? I recall reading that somewhere?

MR LUFF: I cannot recall saying that.

MS PATEL: Mrs Hardy says if you are standing outside, that the light is very dim and because it is under the table also, more so, that it is very dim and you cannot really see it from outside, what is your comment?

MR LUFF: As I have testified, the door was slightly ajar and I saw the candle light through the door that was ajar.

MS PATEL: Now earlier on you stated that you were not sure whether it was the door or the window that you looked into, now you are saying that the door was ajar?

MR LUFF: Yes, that is true, but whatever it was that I looked through, I saw the candle, whether it was the door or the window. I saw that the candle was lit and that the person was laying on the floor and he was wearing this light coloured shirt.

CHAIRPERSON: Was the door slightly ajar?

MR LUFF: This opening through which I looked, was slightly open or ajar and I am convinced that it was the door, but I cannot say with certainty whether it was the door or the window. I am pretty certain that it was the door.

CHAIRPERSON: So it is either the door or the window?

MR LUFF: Yes. The door or the open was slightly open and it was through this (indistinct) that I saw the candle.

MS PATEL: Thank you honourable Chairperson. If I may just refer you to page 9 of the Bundle, paragraph 14, it is about five, six lines, about five lines down. You say

" ... behind one of the houses, there was a corrugated shack in which a light was burning. I approached the shack."

The inference is that you saw the light and then you were attracted to the place? Mrs Hardy says to me that that light is under the table, it is so dim that it would never have attracted you, and besides that, the curtains were drawn, the door was closed?

MR LUFF: If it is very dark outside, and even a match is struck, that will draw somebody's attention to the fact that there is some light in the room. And it was very definitely dark that night, outside.

MS PATEL: All right. If I can just backtrack and take you to the point where Mr Dyasi came and found his son on the floor. Both Mr Dyasi and Mrs Hardy concur that William was on the floor, he wasn't laying on a mattress and they both say that he was in severe pain. In fact Mr Dyasi states that when he got to his son, he tried to lift him up so that he could go and get help, but he couldn't because the child was in so much pain and he couldn't lift him up himself and it is on that basis that he then went to look for help and he first went to the pastor who couldn't assist him and then they went to the police station in all innocence to look for help.

MR LUFF: I cannot comment on what the father did, it is true that the deceased must have been suffering pain since he had been shot earlier that night. Any wound, gunshot wound will be accompanied by pain.

MS PATEL: He states that, he states further that it is in fact after he had reported to the police where his son was and the circumstances under which his son was there, that they then after that, while he was still at the police station, that they then heard the gunshot go off, that had killed his son. It was only after they went to the police station to inform the police where his son was, that the son was thereafter killed and you say to us that it is then per chance that you managed to look through this either window or open door, and the circumstances that followed according to you, ensued?

MR LUFF: I was nowhere near the charge office or the police station and I don't know whether the father actually went there.

MS PATEL: Did you have radio control with the police station at the time?

MR LUFF: Yes, we were in radio contact.

MS PATEL: All right. Can you - the condition in which you found Mr Dyasi, you stated that he was only lightly injured, that he was able to walk.

MR LUFF: As I testified, according to me the person had been wounded and there was visible blood on his right shoulder, blood had already congealed at that stage and according to my observation the person was not in any critical danger at that stage.

MS PATEL: Mr Dyasi states to me that besides the incredible pain that his son was in at the time, that there was also blood coming from his mouth? That he definitely could not walk?

MR LUFF: According to my observation, there was no blood visible at the deceased's mouth.

MS PATEL: And yet ...

MR LUFF: In any event, not at the stage when he was laying in the house, I simply did not observe that.

MS PATEL: Do you say he was fit enough to put his own shoes on and walk out with you?

MR LUFF: He struggled to put on his shoes, but he did, he did actually put on his own shoes.

MS PATEL: How long did it take him to put on his own shoes, Mr Luff?

MR LUFF: I cannot say, it was too long ago.

MS PATEL: What was Mr Geldenhuys doing at the time?

MR LUFF: Sgt Geldenhuys, if I remember correctly, stood there next to me, with the deceased.

MS PATEL: What exactly did you say to the deceased when you came into the house?

MR LUFF: I asked him what was the matter with him and he told me that the police had shot him. I asked him when and where it had happened, but he did not answer me.

MS PATEL: Could it be that he was in too much pain?

MR LUFF: I won't be able to say. I don't know whether the person couldn't or didn't want to answer me.

MS PATEL: What was his mental state at the time, was he very calm, was he agitated, what was the deceased's mental state at the time, can you say? Was he calm, did he respond to you, in what tone, give us an indication of what that was like?

MR LUFF: He certainly appeared to be afraid.

MS PATEL: Yes, that is what Mrs Hardy says, he was very afraid. In fact he was crying and screaming for his father? Would you like to comment Mr Luff?

MR LUFF: I cannot recall him having shouted, shouting for his father, or screaming or anything like that.

MS PATEL: Mrs Hardy also says she cannot, well she cannot, it is a long time ago, but she cannot recall whether it was you or Mr Geldenhuys, but when you barged into her home, you said to the deceased "here is the bastard", do you recall saying that?

MR LUFF: I deny saying that.

MS PATEL: And further that "this is the person that we have been looking for", or words to that effect in Afrikaans?

MR LUFF: Your Worship, I could have said "here is the person we have been looking for", because it was the person we were looking for. It could have been possible that I or Cons Geldenhuys could have said that. With that I don't want to say that it had been said, but it could have been possible that we could have said "this is the person we have been looking for".

MS PATEL: Did you have to hold him up when you walked him out?

MR LUFF: No. As a security measure because we were not using handcuffs with the uniforms, I grabbed him on his left arm and he was walking all by himself.

MS PATEL: Did Mr Geldenhuys not come out with you?

MR LUFF: I cannot remember precisely whether Geldenhuys left the shack together with me. I can remember that he said that he wanted to search the house for more wounded persons or suspects. I cannot remember whether he left the house before me, after me or together with me.

MS PATEL: Mrs Hardy says that she recalls that both you and Mr Geldenhuys dragged the deceased, screaming, out of the house and it was a very short time after that, that the shot was fired. She does not recall Mr Geldenhuys staying behind to search the premises. She says you both left together with him. Is it possible?

MR LUFF: As I have already testified, I cannot remember whether Geldenhuys left the premises before me, after me or together with me. I can just remember outside of this house, he told me that he was just going to search the premises further. With that I am not saying that he had entered the house again, possibly he went around the back of the house, I don't know exactly what he had done because I was standing with the deceased.

CHAIRPERSON: The point is that you and Geldenhuys dragged the deceased from the house while he was screaming?

MR LUFF: No, me nor Geldenhuys did not drag this person from the house. I led him from the house by holding him to his left arm.

CHAIRPERSON: Ms Patel?

MS PATEL: Thank you honourable Chairperson. Why didn't you call for help when you say the deceased had managed to escape. Why didn't you call Geldenhuys?

MR LUFF: There was no time to call anybody. It was very dark and this person was busy running away.

MS PATEL: This is an injured person who you say is trying to run away, what do you mean there was no time? Mr Geldenhuys couldn't have been very far from you, if he wasn't with you, that premises is very small, he couldn't have been more than a couple of paces away from you, what do you mean there was not time?

MR LUFF: I don't know where Geldenhuys was at that stage, I only know that I did not know him. I pursued this person immediately.

MS PATEL: Are you saying that after you fell and you managed to retrieve your weapon, you pursued him and then shot him?

MR LUFF: I pursued this person immediately, I stumbled over something, I fell, I grabbed my shotgun again and then I shouted to him to stand still. I cannot remember exactly what I said, but it was something to that regard, I told him to stand still otherwise I was going to shoot.

MS PATEL: The distance from where he was shot to where you had fallen, you had fallen at the stop of the main house, the house in front, not so?

MR LUFF: That is correct yes.

MS PATEL: And the deceased was shot just outside the front gate, not so or that is where he had fallen?

MR LUFF: It was approximately near to the next house that he fell, it was almost on the fence of the next house, that is where we found him.

MS PATEL: Which angle did you shoot, did you shoot in the direction of the gate or did you shoot in the direction of, well, let me get my bearing, towards where the hall would have been?

MR LUFF: I cannot say exactly which angle I shot at, all I know is that I fired a shot. I fired in the direction where I heard the deceased running away.

MS PATEL: Mr Luff, you have a set of photographs in front of you, honourable Chairperson, this was not included in the Bundle, my apologies for that, may we tender it as Exhibit A?

CHAIRPERSON: Yes. How many photographs are there?

MS PATEL: Four.

CHAIRPERSON: So will you mark them A1 to A4 and just indicate the sequence of the photographs.

MS PATEL: Mr Luff, if you go to the last photograph, it says photograph 4, can you give us an indication as to where you were at the time when you fired the shot?

MR LUFF: Approximately where that person on the photograph is standing, the person marked "c".

CHAIRPERSON: Isn't there another copy of those photographs?

MS PATEL: You mean the originals honourable Chairperson?

CHAIRPERSON: Well, whatever. Oh, I see there is one copy ...

MS PATEL: No, okay.

CHAIRPERSON: Is it the next, oh, all right, oh yes, it seems to be attached to this affidavit. Yes, all right, we've got that, sorry. Just tell us where you were?

MR LUFF: Approximately, well exactly where that man is standing "L" is standing.

CHAIRPERSON: Thank you.

MS PATEL: Thank you honourable Chairperson. And where was the deceased's body found on that photograph, can you tell us?

MR LUFF: More or less where that person marked "M" is standing.

MS PATEL: So that is not a great distance, Mr Luff?

MR LUFF: The distance, I cannot estimate how far that is, I would say that is about 20 paces.

MS PATEL: All right.

CHAIRPERSON: Ms Patel, have you inspected this area?

MS PATEL: I have honourable Chairperson.

CHAIRPERSON: Have you, is there a key that gives an idea of the distances?

MS PATEL: There is, yes, there is honourable Chairperson, it is the page - let me just ...

CHAIRPERSON: Oh yes, I see it is page 2 of the key and it seems to suggest that the distance between "L" and "M" is 11 yards or 11 paces.

MS PATEL: Yes.

CHAIRPERSON: Would that be correct?

MS PATEL: That would be correct honourable Chairperson, it is actually a very small, the home itself is very small and the distance from the gate, the front gate to where Mrs Hardy's front door is, is also a very small distance.

CHAIRPERSON: Thank you.

MS PATEL: All right.

CHAIRPERSON: Mr Luff, that distance is indicated in the key to these photographs as 11 paces, do you accept that?

MR LUFF: Yes, I accept that it could be possible, I estimated about 20 paces. I do not have the key to this plan.

CHAIRPERSON: Thank you. Ms Patel?

MS PATEL: Thank you honourable Chairperson. And within such a short space of time, you decided (a) that there was no time to call for Mr Geldenhuys' assistance and (b) given where the deceased eventually fell, is such a short distance that in that time, you didn't have alternatives, reasonable alternatives available to you except to shoot this child or this young boy, young man?

MR LUFF: Your Honour, it is so that I shot at this person, it is so that it happened very quickly, but this all happened in a fraction of a second. Today, years afterwards it is very easy to think back about why and how, why did it all happen so quickly. At that stage you never considered all these things. This all happened within a fraction of a second. That is why I am here today Your Honour.

ADV BOSMAN: Mr Luff, I don't know whether I have heard correctly what you said, did you say you could have acted too quickly?

MR LUFF: No, I said it now, years afterwards, it would be easy to say I could have reacted too quickly, at that stage everything was in a state of confusion, everything happened so quickly. On the one hand you are frightened that they would shoot at you, petrol bombs or stones were thrown at you, you never knew what chance he would take by running away. Would I overtake him, there would be other dangers. At that stage, I was a thick set person, I was much bigger than what I am today and I never knew whether I would be able to overtake that person.

ADV BOSMAN: I just wanted to make sure if I heard you correctly.

MS PATEL: Mr Luff, those circumstances that you have just highlighted now about the unrest at the time may well be so, but let us confine ourselves to this particular situation at that particular time. It was you, Mr Geldenhuys and an injured boy, that is what we are dealing with here. We are not dealing with 20 other people who are throwing stones at you or petrol bombs at you or a child who is even armed and you have stated in your application that the reason, part of your reason for killing him is that you wouldn't later be able to identify him should he get away.

MR LUFF: It is so. The chances that I would be able to overtake him according to me, was not there. If this person was able to get away, there were many bushes, he could just ran into the premises of the next house, and we won't be able to get hold of him, and the next street, two houses further on, if he ran in that direction, he would be able to get away. I wouldn't have been able to get hold of him again.

MS PATEL: I put it to you Mr Luff, even on your allegation that the child had tried to run away, even on that which is not accepted, or which is not conceded, even on that, this child was injured, how far could he have gotten that your fears about not being able to locate him and arrest him, were reasonable? He couldn't have gotten very far?

MR LUFF: I am repeating, according to me I wouldn't have been able to overtake this person, I do not deny that he was wounded, but according to my observations, this person ran away. I shot a shot in his direction where I heard him running, and unfortunately this shot fatally wounded him low down in his back.

ADV BOSMAN: Could you perhaps just enlighten us on the age of the deceased?

MS PATEL: Let me just confirm, I believe he was 17 at the time, I will just double check that age. He was 17, he was in fact 17 at the time. Mr Luff, are you ready? Are you ready?

MR LUFF: I am, yes.

MS PATEL: Okay. Can you explain to us when you shot him, what was your intention?

MR LUFF: The reason why I fired this shot in his direction was to try to bring it under his attention that I was serious to arrest him, or to re-arrest him.

MS PATEL: So on your version for all intends and purposes, your motivation was to arrest?

MR LUFF: That is correct, yes.

MS PATEL: This is very simply an act of arresting a suspect that had gone according to you, horribly wrong?

MR LUFF: Your Honour, yes, I wanted to arrest this person.

MS PATEL: So your political motivation, could you explain that to us again, in terms of this arrest that had gone wrong?

MR LUFF: I don't understand your question.

CHAIRPERSON: Can you repeat that Ms Patel?

MS PATEL: Thank you honourable Chairperson. The act of shooting the deceased, William, was in fact about an arrest that had gone wrong, now in terms of that, could you once again explain how that act related to your political motivation?

MR LUFF: Your Honour, the charges against the deceased was one of public violence. This was committed when they were throwing stones as the hall. On the basis of that, it was according to me a political incident.

MS PATEL: ... Mr Luff, it wasn't necessary to kill William Dyasi in order to achieve those political objectives that you say you had, not so?

MR LUFF: I never, never had the intent to kill this boy. My objective was to stop this person from fleeing so that I would be able to arrest him.

MS PATEL: Let me ask you Mr Luff, would it have made any difference whether the allegation against Mr Dyasi was that perhaps he was accused of being in a robbery and with that same allegation, the circumstances under which he was arrested, had then ensued, would you have acted the same?

MR LUFF: Your Worship, I think I would have acted in the same way.

MS PATEL: I want to put it to you Mr Luff, that there was in fact no political motivation for the murder of this child, of William, that it was in fact even on your version, just an arrest that had gone wrong.

MR LUFF: Your Honour, I deny that. Right from the beginning I have told this person that I was going to arrest him for public violence.

MS PATEL: I put it to you further that you haven't made a full disclosure to this Committee?

MR LUFF: I cannot hear.

MS PATEL: I put it to you that you haven't made a full disclosure to this Committee?

MR LUFF: Your Honour, there is a God above me, and he knows that I have spoken the truth today. I am not here to hide anything today.

MS PATEL: Honourable Chairperson, would you grant me a moment please? Thank you honourable Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS PATEL

CHAIRPERSON: Thank you Ms Patel. Mr Rheeder, do you have any re-examination?

RE-EXAMINATION BY MR RHEEDER: Thank you Mr Chairman. There are one or two issues I would like to address. Mr Luff, is it correct that if it was not for the political situation during 1985 specifically and also specifically the riots which occurred, you would have not been in that township at that stage?

MR LUFF: That is so Your Honour.

MR RHEEDER: Is it correct that you were a Constable in the police at that stage?

MR LUFF: That is correct, yes.

MR RHEEDER: Did you have any idea of the person you found in the little shack, did you have any idea regarding his political affiliation?

MR LUFF: No, I had no idea whatsoever. All I know is that he was part of a group of people who were throwing stones at the hall.

MR RHEEDER: You also testified and said that you did not shoot at him with the intention to kill him. At that stage when you fired the shot, did you see the deceased?

MR LUFF: No Your Honour, as I have testified I fired a shot in the direction of where I heard him running away.

MR RHEEDER: No further questions, thank you.

NO FURTHER QUESTIONS BY MR RHEEDER

CHAIRPERSON: Thank you Mr Rheeder.

ADV BOSMAN: Mr Luff, I remember that you testified that you were carrying two weapons?

MR LUFF: That is correct, I had my service pistol, that was a 9mm pistol and a shotgun.

ADV BOSMAN: The second instance when you fired the shot, which weapon did you use?

MR LUFF: I used the shotgun.

ADV BOSMAN: Did you have any reason for that choice?

MR LUFF: Yes, normally I used the shotgun or rather I preferred it above the service pistol, because it could not shoot so far and the penetration was only an eighth of a 9mm pistol. The result would be that I could have shot right through a house with a 9mm pistol and it reaches very, very much further than that of a shotgun.

ADV BOSMAN: Is it not so that a shotgun's bullets spread further wide?

MR LUFF: No, but it does not so shoot as strongly as a 9mm pistol. I did not think about using my service pistol. Had I used my service pistol, I could have shot somebody kilometres from there and the shotgun maximally had the reach of 70 metres.

ADV BOSMAN: I am not trying to catch you out.

MR LUFF: But this is why I am telling you, that is why I used the shotgun, because it was - it did not have such a far range as the service pistol.

ADV BOSMAN: I just want an honest answer from you, whether the fact that the shotgun, that it spreads, just give me a minute, the fact that the shotgun spreads, mean that it was easier to hit somebody, do you want to say yes or no?

MR LUFF: It is so, yes.

ADV BOSMAN: I just wanted to establish if you considered that?

MR LUFF: As I have testified that was a split second decision and the shotgun was in my hand, the service pistol was still in the holster.

ADV BOSMAN: So that whole evening while you were busy, you were carrying the shotgun?

MR LUFF: That is correct, yes.

ADV BOSMAN: Thank you.

CHAIRPERSON: The shotgun had SSG cartridges?

MR LUFF: That is correct.

CHAIRPERSON: Is it not the most fatal cartridges that you could use?

MR LUFF: That is so, yes. As I have testified we were in a dangerous situation and because of that, the tendency was that you use SSG cartridges when you wanted to defend yourself or defend premises. I first loaded SSG because I wanted to protect myself in the first instance. The shotgun we used when we had to control crowds, and in big riots, first you would use the shotgun and then SSG. In this case we used SSG cartridges for self-protection.

CHAIRPERSON: I accept that it was known to you that if you used SSG bullets, the chances were good that should somebody be hit, that would be fatal?

MR LUFF: The range or the power of SSG and a shotgun was the same at a short distance, but SSG spreads further than the others. There is not a difference in the penetration of the two.

CHAIRPERSON: You say it is bigger pieces, therefore it is more dangerous for somebody's life?

MR LUFF: Yes.

CHAIRPERSON: And if I understand correctly, the police used SSG in the most serious situations.

MR LUFF: That was for self-defence, that is why I had SSG in the shotgun, because my life was in danger and people were shooting, throwing stones at us.

CHAIRPERSON: Did you ever consider it to shoot a warning shot?

MR LUFF: There was no time for that at all. A warning shot, I never considered that, there was no time for that.

CHAIRPERSON: So you never thought about a warning shot?

MR LUFF: Thinking back at that, if I had shot a warning shot, I could have hit one of the other houses. I never thought about that.

CHAIRPERSON: You shot to hit?

MR LUFF: No, I testified that I shot in the direction where this boy was running away.

CHAIRPERSON: You tried to hit him?

MR LUFF: Yes, my intent was not to kill him.

CHAIRPERSON: Mr Rheeder, do you have any other questions, follow up questions? Mr Luff, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Mr Rheeder, do you have any other witnesses?

MR RHEEDER: Mr Chairman ...

CHAIRPERSON: Just switch on your microphone.

MR RHEEDER: Sorry. Mr honourable Chairperson, if I can maybe request a short adjournment, I would like to consult with my learned colleague, Ms Patel regarding the proceedings. I don't foresee that we are going to call any further witnesses, I just want to ask her if she is going to call witnesses and what the position is.

CHAIRPERSON: We will adjourn for a short while and you will indicate when you are ready to proceed. Yes, we are adjourned.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Yes Mr Rheeder?

MR RHEEDER: Mr honourable Chairperson, I have discussed the matter with my learned colleague and the indication at this stage is that Mr Dyasi, the father of the deceased would like to testify and say something. We are trying to curb unnecessary witnesses and evidence which we don't think will be necessary for the proceedings, so we have agreed that he will testify, we will see how it goes and that might be the last witness in this matter.

CHAIRPERSON: Yes, we have noted that. Ms Patel, that would be your witness, would it be?

MS PATEL: That is correct honourable Chairperson. Okay, Mr Dyasi will testify in Xhosa.

CHAIRPERSON: Mr Rheeder, so subject to what you have said, at this point your client's case would be closed, subject to possibly whatever happens here, you might consider further action?

MR RHEEDER: That is correct honourable Chairperson.

CHAIRPERSON: But for the moment your client's case is closed, that is your client's case?

MR RHEEDER: That is correct.

CHAIRPERSON: All right, we understand. Thank you Mr

Rheeder. Ms Patel, do you want to call Mr Dyasi?

MS PATEL: That is correct honourable Chairperson.

CHAIRPERSON: Yes. Mr Dyasi, can you hear the interpretation on your headset?

MR DYASI: Yes, I can, thank you.

CHAIRPERSON: Thank you. Won't you just switch on your microphone and then stand. Give your full names for the record please?

MR DYASI: Stephans Metle Dyasi.

STEPHANS METLE DYASI: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Ms Patel?

EXAMINATION BY MS PATEL: Thank you honourable Chairperson. Mr Dyasi, it is correct that you are the father of the deceased William Dyasi, not so?

MR DYASI: Yes, that is correct.

MS PATEL: Can you tell us, your son, what was he doing at the time when he was killed, was he a student, was he working?

MR DYASI: My son was working at the time. He had impregnated a girl, that is why he had to go and work, so that he could be able to support the child.

MS PATEL: Okay. Was he living in your home at the time when he was killed? Was he staying with you?

MR DYASI: Yes, that is correct.

MS PATEL: The evening of the 3rd of November 1985, you sent your son out that evening, is that correct?

MR DYASI: Yes, that is correct.

MS PATEL: Can you please tell the honourable Committee why you sent him out, for what purpose?

MR DYASI: I sent him to go and look for my daughter in some house because it was getting late and my daughter was not yet home at the time, so I wanted him to go and look for her.

MS PATEL: Okay, and some time after you sent him out, you received information that he was shot, not so?

MR DYASI: Yes, I was told that he was shot.

MS PATEL: Can you tell us how it came about that you got this information?

MR DYASI: When I got this message, I was in the house with my wife, the neighbour came to tell us that he or she received a call from Tusa to tell me that my son was shot. He was in some shack at the back of a certain house there.

MS PATEL: Okay, you say received a call from Tusa, do you mean someone in Tusa Lane?

MR DYASI: A person from Tusa Lane called my neighbour because my neighbour had a phone. My neighbour is the one who came to tell me about the message.

MS PATEL: Okay. After you received the phone call, you proceeded to the house where your son was, not so?

MR DYASI: Yes, that is correct.

MS PATEL: Can you tell us what happened when you got to the house, in your own words.

MR DYASI: On that evening I went to that particular house. I got into the house, I realised that that was my son laying there, when I looked at him, I realised that he was shot. I could see in between his shoulders and on the arm and he was also bleeding and he was in pain. I asked him what had happened. He said "I was shot at by two policemen whom I met with on the streets."

MS PATEL: Did he explain to you the circumstances under which he was shot, why he was shot?

MR DYASI: When he explained to me, he said to me as he was walking down the street, he met with two policemen walking and he saw these police coming to his direction and he decided to run away after realising that the police were coming to his direction. That is when they shot at him without doing anything. They just shot at him while he was running.

MS PATEL: Okay, and where, why did he, did he explain to you why he ran in the direction that he did?

MR DYASI: Yes, he explained to me, I asked him "why did you run", he said to me that he was afraid because the police were coming straight to his direction, that is why he decided to run, because he thought they were going to assault him or do something else to him.

MS PATEL: Okay, what was your son's physical condition at the time when you got to him? Was he in pain, was he able to move, was he able to walk from your observations?

MR DYASI: When I looked at him as he was laying down there, he was in pain and he was screaming silently. I tried to lift him up, but it was impossible and as I was talking to him, I could see some of the bullets coming out of the mouth, but he couldn't even stand up from where he was laying.

MS PATEL: By bullets, do you mean pellets?

MR DYASI: Yes, I am talking about pellets, those were the pellets that were coming out of his mouth and he told me that the could feel these pellets in his system. Some of them were coming out of the mouth.

MS PATEL: Okay. What did you do after that?

MR DYASI: I tried to take him to the doctor, but it was difficult because he couldn't stand up and I had no other option, I had to leave him there, to go outside and try and get some assistance so as to take him to the hospital.

MS PATEL: Okay, and who did you seek assistance from?

MR DYASI: At first I went to the pastor who was also in my church, I told him and we went to the police station with him, to make a statement. That is when, I am not sure whether you want me to go on from there.

MS PATEL: Please proceed.

MR DYASI: After telling the pastor that he was in a shack, I wanted him to be taken to the hospital, I went with him to the police station, the pastor that is. I found a policeman who was sitting there and I told him that my son was shot at at Tusa Lane, so I wanted him to be taken to the hospital to get some medical assistance. Just before I could finish my explanation at the police station, I heard a gunshot while I was still at the police station. This policeman said to me, "just wait a minute, some Lieutenant is coming", he told me to wait. I did so, waiting for the policeman, the one that was coming. I remained there. After a short while, when this policeman came, they wanted to know where was this son of mine and I told them that he was at Tusa Lane. We got into the van, myself and the pastor at the back of the van. When we arrived at Tusa Lane, there were other vans that were already there and I saw my son and I realised that he was the one who was shot at again. He was the one who was laying on the street. I tried to shout, talking to this policeman to stop the car and I told him that that was my son, the one who was laying there on the street. They opened the van, I went straight to my son, try to shake him and calling him, but there was no response, and I told them that this was my son. I even asked the police "who shot my son again", and the other policeman responded saying to me, he was rather aggressive and he was very cheeky, he said "I did so, that is me who shot at your son", and when I looked at this policeman, he was staring at me. This policeman said "I am the one who did that" and he was rather aggressive, and he was holding his gun and he was also looking at me. It looked like he also wanted to shoot at me also and I cried and I said nothing thereafter. After that, they waited there on the other side for a very long time, talking. I was taken in the van with my son, he was already dead and he was taken to the hospital.

MS PATEL: Mr Dyasi, from the condition, the physical condition in which you left your son when you went to the police station to look for help, what is your comment on the applicant, Mr Luff's allegation that your son was able to put on his shoes and walked out with them and then tried to escape and in fact, ran away at the time that he was shot?

MR DYASI: As far as I am concerned, Mr Luff, I don't think Mr Luff is telling the truth. If he is afraid of God or if he wants to ask for an apology or be granted amnesty, I think he must speak the whole truth, because as far as I am concerned, I could see my son, he couldn't stand up and I don't even know why, I am not sure if Mr Luff is telling the truth as a senior person at the time. How could my son escape in that physical condition as he was, he even had pellets that were coming through the mouth, how could he escape from a person as big as he is, that is what I am saying? He must tell the truth. I don't think he is telling the truth in front of this Committee, before this committee.

MS PATEL: From your knowledge of your son, Mr Dyasi, can you tell us whether he was a member of a political party, of the ANC or the UDF, an active member, do you know?

MR DYASI: I cannot say for sure, but as far as I was concerned, he had nothing to do with those.

MS PATEL: All right, is there anything else that you want to say, Mr Dyasi?

MR DYASI: Yes, I would like to say something honourable Chairperson. I want to direct my words to Mr Luff. If truly he is truly afraid of God or if he has any respect for this Committee and the audience and respect himself, I have this question - I want to know for how long, about the time that elapsed after shooting my son and about this time up to now, what attempts did he make to show that he was really apologetic in front of God. I want to know if he ever wrote a letter to me, asking for forgiveness or he ever made a call, trying to ask for an apology as he is actually saying here today. If he did any of those things, I would say that really he is regretful for what he did because I never received any letter from him, or even a phone call saying that I am asking for forgiveness because I made a mistake by shooting your son. Right now he wants to ask for forgiveness to Mr Dyasi for something that is not true, he is not here to ask for forgiveness if he hasn't revealed the true facts. I was willing to forgive him if he did tell the truth, just to tell the truth, a simple thing. That is all I have to say.

MS PATEL: Thank you honourable Chairperson, that is our evidence-in-chief.

NO FURTHER QUESTIONS BY MS PATEL

CHAIRPERSON: Thank you Ms Patel. We will take the lunch adjournment and reconvene at two o'clock.

MS PATEL: All rise, please.

COMMITTEE ADJOURNS

STEPHANS METLE DYASI: (s.u.o.)

CHAIRPERSON: Mr Rheeder, have you got any questions?

CROSS-EXAMINATION BY MR RHEEDER: As the honourable Chairperson pleases, I do have a few points that I would like to take up on instructions.

Mr Dyasi, to start off with, your final statement I am instructed to put the following statement to you. My client indicated that he did not contact you at all since the incident, he is as a policeman and was taught if there is any possibility of criminal charges being investigated against him as a policeman, you should not contact the complainant or their families in the sense that that can lead to further charges of obstruction of justice, the indication is there, I am not giving you evidence at this stage, I am just making the statement to you, you can respond to it if you want to or not.

MR DYASI: I understand what you are saying sir, but I don't think that it would be the obstruction of justice if you ask for forgiveness to the person that you have offended or maybe if you can write a letter. I don't think that will be obstruction of justice, so that that letter can be proof that indeed, he has asked for forgiveness.

MR RHEEDER: Then Mr Dyasi, I am also instructed to put to you that and we will get to certain points in due course, a lot of your evidence that you have given to the honourable Committee is to a large extent hearsay testimony and opinion evidence. If you can just indicate if you understand what hearsay and opinion evidence is or if I should maybe explain that. It is evidence that was conveyed to you by somebody else, in this instance the unfortunate circumstances of your deceased son and secondly then, opinions that you made yourself due to what you saw and is not, you were not a witness to the specific incident of the shooting itself.

MR DYASI: It is true that I was not present, but my son told me like I testified.

MR RHEEDER: Regarding the unfortunate circumstances and incident that occurred that specific evening, if I understand your testimony correct, it was approximately nine o'clock that evening that you requested your son to go and have a look for your daughter? Is that correct?

MR DYASI: I cannot remember, yes, I sent him out to look for my daughter, but I cannot remember the exact time.

MR RHEEDER: Maybe if I can refresh your memory, on the 5th of November 1985 which was two days after the incident you made a statement to the police in Worcester, is that correct?

MR DYASI: I think I made the statement on the 4th.

MS PATEL: Sorry, I am just showing him a copy of what you are referring to.

MR RHEEDER: Maybe to assist the Committee, it is page 31, pages 29 to 31 of the Bundle and on page 31 is the specific stamp by the police indicating that it was attested to on the 5th of November 1985.

In any event, you do acknowledge that you made a statement, you admit that you made a statement to the police?

MR DYASI: Yes, I made the statement.

MR RHEEDER: You also indicated to the police in your statement and started off by saying that you do speak Xhosa, Sotho, but you also understand, to such an extent that you can read, write and - sorry, read, talk Afrikaans or read and speak Afrikaans?

MR DYASI: Yes, I do speak Sotho, Xhosa and Afrikaans.

MR RHEEDER: In the statement you indicated that it was nine o'clock that evening that you sent your son out, you remember it specifically because it was just as the TV programme, Network, ended and it was nine o'clock? Can you now maybe better remember the time when you sent him out?

MR DYASI: Yes, I do remember, we were watching TV at that time. Yes, I do remember that we were watching TV.

MR RHEEDER: It is also, in terms of your statement you went to bed after you sent him out and it was quite a few hours in the excess of three to four hours later that you were contacted by your neighbours, indicating that your son was shot?

MR DYASI: Yes, that is correct.

MR RHEEDER: You personally have got no indication as to what your son did from the time when he left the house until the time when you got him or met in the house where you found him after he was shot?

MR DYASI: Yes, that is correct.

MR RHEEDER: I want to put it to you that it was possible and in accordance with Mr Luff's testimony, possible that your son could have partook in the attack and the stone throwing on the community hall that evening?

MR DYASI: I wouldn't know sir, as I have already said, I was not there.

MR RHEEDER: Thank you. You also, when you made the statement, I would assume the incident was very fresh in your memory at that stage, at the time when you made the statement?

MR DYASI: Yes, that is correct.

MR RHEEDER: If I understand your testimony this morning, correctly, you indicated at the time when you met your son at the address after he was shot, you indicated that you saw blood and pellets coming from his mouth?

MR DYASI: That is correct.

MR RHEEDER: You see, nowhere in the statement do you make, nowhere in the statement is there any reference to any blood or pellets coming from his mouth. You do indicate that you saw on his right upper arm and also between his shoulder blades, as you testified this morning, but there is no indication in the statement that there was any blood or pellets coming from his mouth.

MR DYASI: Yes, because I wasn't asked that question, but what I am saying is that I saw the pellets and the blood coming out of his mouth.

MR RHEEDER: It is also correct that you testified before the Truth and Reconciliation Commission hearings on the 24th of June 1996 and I refer to pages 237 and further of the Bundle?

MR DYASI: Yes, that is correct.

MR RHEEDER: You see also in that testimony you referred to the bullets coming out of his mouth, but again I couldn't find any reference to any blood coming from his mouth at that, you know, you also didn't mention it to the Commission when you conveyed the version to them.

MR DYASI: Yes, I do remember that I mentioned that the pellets were coming out of his mouth.

MR RHEEDER: Sorry, you didn't mention the blood?

MR DYASI: No, I don't remember mentioning the blood.

MR RHEEDER: You see the reason I am putting this to you is because Mr Luff, as he testified, said that they didn't notice any pellets or any blood coming from your son's mouth at the time when they found him or when he found him at that house, that specific morning. I assume you can't really respond to that, except to take note of it.

A further point, just to take you back to the statement that you made to the police, on page 30 of the Bundle, you also mentioned to the police, you did mention that according to you he was in pain, but you furthermore mentioned that he was capable of speaking normally. Can you remember that?

MR DYASI: Yes, I do remember mentioning this and he could speak normally.

MR RHEEDER: So he was not in so much pain that he was not able to communicate with you and speak normally even?

MR DYASI: I was there, I was in front of him, I could see that he was in terrible pain and I wanted to wake him up, but he couldn't wake up, so how can you say that he was not in pain?

MR RHEEDER: You are now referring to waking him up. I understood you to say that you spoke to him and he conveyed to you in a normal way, he spoke to your normally so can we then take it that he was awake at the time when you got there?

MR DYASI: Sir, if you understood me well, I said he was laying down when I arrived and he was in pain. He was screaming silently, he was in pain when I was arriving there and I could see that he was in pain, that is what I said.

MR RHEEDER: What was your impression at that stage, were you under the impression that he was in serious danger?

MR DYASI: Yes, I could see that he was in danger because I saw him laying down and I was trying to pick him up to take him with me, but I could see that that was very difficult. He couldn't stand up.

MR RHEEDER: What did you do, where did you go first after that, at that stage? Where was the first place that you went to?

MR DYASI: As I have already said, I went to the pastor, my pastor, he is the person I went to first and I told him about the incident, before I went to the police.

MR RHEEDER: So after you left the pastor, you went to the police station?

MR DYASI: Yes, I went to the police station after that.

MR RHEEDER: And again to refer you to your testimony in front of the Truth and Reconciliation Commission hearings on the 24th of June 1996, and specifically page 240 of the Bundle, you indicated to them that you and the minister went back to where your son was and thereafter you went to the police station.

Your indication on that day was that you went back to your son, that you were there twice before you went to the police station.

MR DYASI: I don't remember sir, as I have already said, I went to the pastor, I don't know whether I am making a mistake of whether I went to that house or I went to the police station, I cannot remember that well, but what I know is that I went to the minister, the pastor.

MR RHEEDER: Why didn't you immediately go and obtain assistance, either by going to the police or the hospital or trying to phone an ambulance?

MR DYASI: At that time people were sleeping and the houses were dark, I just thought I should go to the pastor and inform him so that he can accompany me. I didn't want to go alone to the police.

MR RHEEDER: You see, it becomes a bit more important to try and establish and if you really cannot remember then we will have to accept that, but to try and establish if you, after you went to the pastor, if you first went back to your son and then to the police station or if you as you got to the pastor, you immediately went to the police? I would just like to try and request you to try and think back and remember.

MR DYASI: Sir, at that time as a person that was shocked, I was confused. I couldn't think properly, I was like an insane person. That is why I am saying that I cannot remember clearly whether I went to the police station first or I went back to the shack where my son was, but I was with the pastor.

MR RHEEDER: Okay, thank you Mr Dyasi.

Regarding the police station, you testified - let me start off this way, an indication was given this morning that the possibility exists that you reported the matter to the police station and then police were sent out to this specific address, but if I understand your testimony correctly, that couldn't have happened, that was not so, because you testified and said whilst you were still talking to the policemen and explaining to them what happened, you were interrupted by the gunshot which you heard, which must have been the fatal gunshot?

MR DYASI: Yes, that is correct, when I was still there, I heard a gunshot, while I was still at the police station.

MR RHEEDER: I want to go further and say your testimony was specific that while you were still explaining to the police that your son was shot and that they must please assist, you heard the gunshot and again I would like to refer you to the Truth and Reconciliation hearings also on page 241 and just to quote

"... when we arrived at the police station, there was one policeman. I pleaded with him, asking him and telling him the story of my son and I told him that I need some assistance, if he could please help me take my son to hospital. But there was an interruption whilst I was speaking to the policeman, I heard the gunshot."

MR DYASI: Sir, I don't know whether you understood me well, as I arrived at the police station, I said there was one policeman that was there and when I was telling him about this story, he said to me "I know Pienaar", I said "yes". He said I must wait for the Lieutenant, the Lieutenant that is coming, so while I was still talking about, while we were still talking about that, I heard a gunshot and I didn't know where it was coming from at the time.

MR RHEEDER: The point that I just want to make that according to your own version of the events, especially at the time when you were at the police station, it couldn't have been a question of you reporting where your son was and then the police going out to that place to either find him or to shoot him, but it was as Mr Luff testified, by looking around and looking at the houses or looking into the houses, they by accident came across your son?

MR DYASI: Sir, at that time when I was at the police station, they asked me where he was and then I said that he was in Tusa, so this police told me to wait there, to wait for the Lieutenant and then the Lieutenant arrived, he asked me whether I know where my son was. I said, yes, he was in Tusa.

MR RHEEDER: But the gunshot was heard whilst you were still speaking to the first policeman, before any other policeman arrived on the scene, that is the way that I understood your testimony this morning, or earlier today?

MR DYASI: Yes, that is correct.

MR RHEEDER: Thank you Mr Dyasi. Mr Dyasi, it is, as I mentioned earlier on, my instructions, we all accept a very unfortunate accident occurred that evening. Did you at any time come to an opinion as to in which manner your son was shot?

MR DYASI: Can you repeat your question sir?

MR RHEEDER: Did you at any time come to some sort of opinion as to what you think occurred at the time when your son was shot and mortally wounded?

MR DYASI: No, I didn't have any opinions, I just saw him being shot the way I saw him.

MR RHEEDER: You didn't actually see him being shot, you just saw that he was wounded on two occasions that evening, once when you first met him at the shack and the second time when you went back, and you saw him laying in the street?

MR DYASI: Sir, when I arrived, he was already shot. I didn't see him being shot.

MR RHEEDER: You see, because I want to put to you and I have got a further document here that I just want to hand up to the Commission which is a document which comes from the inquest, it is a further statement by Prof Knobel, I made certain copies.

CHAIRPERSON: That will be Exhibit B.

MR RHEEDER: As the honourable Chairperson pleases. You see Mr Dyasi, according to Prof Knobel who was the Pathologist who inspected your son's body after the incident, he also came to the conclusion that your son was shot at a distance. He specifically says that it couldn't have been a contact shot or a shot within a metre or two from your son.

Mr Luff this morning testified that your son was a distance away at the time when the mortal wound was, when he shot at your son in the direction of your son. Do you accept that as the truth?

MR DYASI: Sir, I don't accept that because if I understood him well he said there was a group of youths that night, so that is what I don't understand. Why could he hit him alone, even though there were a lot of youths at the time. When he was shooting, he could have shot other people if there were a lot of them.

MR RHEEDER: Mr Dyasi, as difficult as it is, we will have to just make a distinction between the first incident that happened at the community hall in the street itself, and the second incident, the second shot that you heard whilst you were at the police station.

According to all the evidence, your son was mortally wounded the second time, that was after you saw him in the house. At that second time and the mortal wound, according to the expert witness, he said that your son was not shot at close range, that is his opinion, that your son was not shot at close range. Do you accept Mr Luff's testimony?

MR DYASI: Sir, I don't accept Mr Luff's testimony because Mr Luff as he testified here today, he said that he was a big and hefty man, a strong man, so I don't understand why such a strong man could lose the wounded person, when he was grabbing or holding him, how could that happen?

That is why I don't accept that evidence. How could he have escaped from him?

MR RHEEDER: Mr Dyasi, again, as difficult as this is, you know, unfortunately I have to ask you the question again, just dealing with the aspect of the distance that your son was away from the person who shot him, I am now talking about the distance between the person who shot him and your son himself, and I understand that you were not there, you don't know specifically, what I am putting to you is that the expert witness is of the opinion or the expert witness at the death inquest is of the opinion that it was not a shot at close range.

Mr Luff testified and only dealing with that point, Mr Luff testified that it was not at close range. Do you accept that, that specific point as the truth or not?

CHAIRPERSON: Mr Rheeder, how does that help us? What is the relevance of putting this to a lay person to respond to who told you that he was not present at the scene, he does not know how the shooting happened?

Does this take this case any further?

MR RHEEDER: Honourable Chairperson, Mr Dyasi indicated that he does not believe Mr Luff and what he testified. There is a specific point where we've got further, or there is clear evidence that supports Mr Luff on that one point, the point that I am trying to make is that Mr Dyasi does not believe that point, he will not believe Mr Luff at all. It is a question of trying to elicit the response in the sense that if he believes him, how can I put it, he - if he does not believe that point, if he does not in himself believe that as the truth, if he believes that his son was shot at close range, he will not believe anything else that Mr Luff says and his belief as to the truth, cannot then be taken into account, because his belief in what he believes is the truth, does not correspond with expert witnesses and expert testimony.

CHAIRPERSON: Yes, I understand the argument, I understand the purpose possibly of putting this to Mr Dyasi in view of your client's apology and so on, but how does it help us to decide this, if you elicit, whatever you elicit from Mr Dyasi in this regard, whether he says he believes you or he does not believe you or he believes Dr Knobel or he does not believe Dr Knobel, I mean it does not help us at all, it does not assist us to decide the matter.

MR RHEEDER: I will leave it at that honourable Chairperson, I will leave it open for argument. Can I just get a moment with my client?

CHAIRPERSON: Yes.

MR RHEEDER: Thank you.

Honourable Chairperson, no further questions.

NO FURTHER QUESTIONS BY MR RHEEDER

CHAIRPERSON: Thank you Mr Rheeder. Have you got any re-examination Ms Patel?

RE-EXAMINATION BY MS PATEL: Thank you honourable Chairperson, I will be brief. Mr Dyasi, when you went to the police station to report the matter, there was a certain Mr Pieter Theron who was in charge of the police station at Zweletemba, do you recall that or do you not remember his name, but his name is definitely Theron?

MR DYASI: I don't remember, but I found a white policeman in the police station.

MS PATEL: Honourable Chairperson, for the record, I gather my information from page 82 of the Bundle, in which a certain portion of Mr Theron's statement, which we do not have in our possession, is in fact put to Lt Frost and the portion that is put to him states

"... I told him (that is Mr Dyasi) that he should go to the Worcester charge office."

That is what he told the father, he said he was the Sergeant. The father arrived and said that there was a shooting."

Then we look at Theron's statement and it says -

"... I then told him that he should go to Worcester and he should make enquiries there because I was aware of a person who had been shot in the previous period and who had been taken to hospital."

MR DYASI: No, I don't remember that. At that time there was, it was only one white policeman, I didn't see the policeman that you are referring to and he was not at the police station.

MS PATEL: Can you however recall that you were told to wait there or to go to the Worcester police station? Can you remember this at all?

MR DYASI: No. Nobody told me to go to the Worcester police station.

MS PATEL: Thank you honourable Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS PATEL

CHAIRPERSON: Thank you Ms Patel. Mr Dyasi, thank you very much, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Have you got any other evidence that you intend to tender, Ms Patel?

MS PATEL: No honourable Chairperson, Mrs Hardy is present, but she is a 74 year old woman, I do not intend to subject her to these proceedings or to cross-examination, thank you.

CHAIRPERSON: Yes, thank you. Mr Rheeder, have you got anything else that you are going to present?

MR RHEEDER: No further evidence Chairperson.

CHAIRPERSON: Mr Rheeder, have you got any submissions on the merits of the application?

MR RHEEDER IN ARGUMENT: Mr Chairman, on behalf of my client, I will speak in Afrikaans.

This is a reasonably unique situation that in a certain sense, there is only one person who can testify about what had happened regarding the specific death of William Dyasi, and that is the applicant appearing before the Committee.

Regarding the merits of the case, it is my respectful submission that his version as provided to the Committee, is the true and correct version of what had happened. This is corroborated by the only real evidence which is available, in this case as my client testified and also said, you have a certain acceptance of a father and mother being here today, and the father acknowledged that that was a very tumultuous evening, he was very shocked and his part of the testimony which may be relevant, can be regarded or should be regarded in that light.

It is my submission that my client, Mr Luff, was specifically allocated to combat riots. Riots which in 1985 consisted of political groupings who was in insurrection against the system of apartheid and what had happened on the 3rd of November was a direct consequence of that. The only reason why Mr Luff became involved was because of these Riot Unit or combating these riots which the police had to do on a large scale. This was the reason why they were at that community hall on that specific evening. Their activities there was once again only based on Mr Luff's evidence and he said that they were attacked by a group of people, that he and his colleague fired some shots in the direction of this group and according to them, it seemed or it appeared that somebody had been hit.

Mr Chairman, I wish to present to the Committee the fact that this was a deed committed in a political context and this falls within the context of Subsection (3) of the relevant Act. Mr Luff acted in the course and scope of his duty. This is Section 20, subsection (b).

After this incident, and I request the Committee that you must please accept Mr Luff's version as the truth, and when they found the deceased later on in the house, they took the deceased outside, the deceased started to run, Mr Luff followed him and when - Mr Luff fell and when he got up, he shot the fatal shot. The reason why he is appearing here is because he did not act correctly. We can accept that and you can expect that he should have had better judgement under those circumstances. It could have been an offence. He is asking for forgiveness, he is applying for amnesty and I ask the Commission to accept his version as the true version and that he has made a full disclosure of all the relevant facts.

And furthermore that the firing of the second shot, just as the action at the hall was the result of a political situation which existed during 1985, and that he acted as an employee of the South African Police Service.

Mr Chairman, without repeating myself I want to emphasise that only Mr Luff or Mr Luff's evidence regarding the first incident and the second incident, has been given under oath, because he is the only person who can testify and I request the Committee to accept that as the true version. I don't know whether there are any other issues you want to address me on.

MS PATEL IN ARGUMENT: Thank you honourable Chairperson.

Honourable Chairperson, it is my respectful submission that the applicant has not complied with the basic requirements of the Act in terms of having made a full disclosure to us, or that his act was politically motivated.

Honourable Chairperson, my respectful submission that the evidence that we have heard right from the identification of the deceased as the leader of the group that had apparently been stoning the hall to the very final allegation of him having managed to escape and under those circumstances having been shot and killed by the applicant, it is my respectful submission that we have not heard the truth from the applicant in that respect.

The applicant has stated that, on one hand he states that he identified the deceased as the leader of the group and on the other hand, he says that he shot in that specific direction merely because the bulk of the group was standing there.

Furthermore, if one looks at the testimony of the father, Mr Dyasi, who states that his purpose in sending William out that evening was in fact to collect his youngest daughter. The circumstances under which he was shot, was in fact relayed to his father in as much as my learned colleague has stated that that is hearsay evidence, it is my respectful submission that it is in fact admissible as one of the exceptions to the hearsay evidence rule, that it is a statement made by a dying person.

In that regard, you are entitled to take judicial cognisance of it.

Furthermore, we look at the evidence of Mr Dyasi in respect of the physical condition of the deceased, that his son was not in a position to stand up even, he was so badly injured and that he made in his statement, way back in 1985 to the police as well.

Clearly it does not accord with the conditions or the circumstances that Mr Luff would have us believe that he removed the deceased from the premises. Mr Luff's credibility is also subject to concern, especially if one looks at the question of him having observed that street for some 45 minutes and a possible perpetrator of the stone throwing incident was then removed from the scene, and Mr Luff does nothing about it except later goes down to the police station.

Here is an ideal opportunity for them to have at least arrested some of the people whom they are saying they went out there to look for, otherwise what is the purpose of the observation? He would have us believe that he was afraid whereas he had in fact had seven years' experience by then in as much as he may have only been working in unrest areas for five months prior to that, it doesn't change the fact of his seven years experience.

My submission is that his explanation in this regard is rather incredible. And also that the police station was just down the road, he could have called for assistance and there was no follow up to that observation at all, subsequent to his reporting the matter.

I will also ask you to take into consideration Mr Luff's version about, or his explanation for why in fact he shot William. He didn't fire a warning shot, he didn't call, Mr Geldenhuys was in the immediate vicinity, for help. He shot him with an SSG round which is clearly lethal, he knew the impact of, he knew the effects of him having firing that shot, that Mr Dyasi could in fact have been killed by that. It does not accord with his version to us, that he had intended merely to arrest the deceased.

Then furthermore he seeks to rely on Section 20(b) of the Act, which expects, sorry not expects, according to which Mr Luff ought to have acted both in the course and scope of his duties or under express or implied authority.

The evidence by his Commanding Officer, Lt Frost, at the inquest was clear that he had to act with the minimum amount of force and in accordance with the provisions of the Criminal Procedure Act. Neither of that was done.

Furthermore if one looks at Mr Luff's political motivation for having committed the offence, if one looks at the one requirement of proportionality, it is - it wasn't necessary for William to be killed in order for the overall political objective as Mr Luff would have us believe, to be achieved. He had help, they could have arrested him and the normal process could have taken its course. There is no evidence before us that had Mr Dyasi been arrested, that the normal judicial processes could not have run its proper course at the time.

Also I will ask you to take into consideration that Mr Luff has conceded that regardless of what the allegations against Mr Dyasi was at the time that he was arrested, he would still have acted in the way that he did, by shooting him. Also his explanation about them not being able to subsequently identify the victim had he escaped, is clearly laughable, the man was severely injured. By all counts, he wasn't even able to walk on his own. Mr Luff was a healthy, tall, strong policeman at the time with seven years' experience.

My respectful submission is that having taken all this into consideration, that there was no political motive for this killing and that we haven't heard the truth here today, honourable Chairperson. Those are my submissions, if there are any further points you would like to hear me on.

CHAIRPERSON: Thank you Ms Patel. Are there any reply Mr Rheeder?

MR RHEEDER IN REPLY: Mr Chairman, just on one or two legal aspects.

My learned colleague concluded by saying that Mr Luff did not have a political motive at that stage when the deed was committed. It is my respectful submission that the objective or the requirement according to the Act is not a political motive, but a political objective ... (transcriber's own translation) ... The motive of the person committing the deed is only one of six factors to be taken into consideration by the Commission to determine whether a political motive or whether the criteria for a political motive have been complied with.

It is my respectful submission that the fact that Constables and Sergeants, policemen in uniform in 1985 went into townships with shotguns to protect State property and to break up crowds of people involved in riots, and that was all part of a political objective of the previous dispensation.

Mr Luff is a person who played a very small role in that political objective. Therefore I am asking the Committee like - as the Act describes it regarding a political objective in that regard and I am referring to the criteria in subsection 3 of Section 20, and specifically (b), and I don't think it is necessary to read this out, or to repeat it.

I wish to add that when my learned colleague indicated subsection 2 of Section 20, it does not only have to do with expressed powers, but also to tacit powers. It is my respectful submission that this deed falls within the description of political objective as determined by the Act. Thank you.

ADV SIGODI: Mr Rheeder, isn't it the case that at the time that he shot the deceased for the second time, there was no longer any stone throwing?

MR RHEEDER: Honourable Chairperson or Committee member, sorry, the facts, yes, it is so that there was no stone throwing.

ADV SIGODI: Right. Isn't it the applicant's case that when he shot the deceased, he shot him only to apprehend him, to arrest him?

MR RHEEDER: Yes, that is also, that was his testimony.

ADV SIGODI: And is it not his case that his intention was not to kill the deceased, but to be able to arrest him?

MR RHEEDER: That was his testimony.

ADV SIGODI: Yes, now isn't that, doesn't that fall within the use of force in arresting a person, in criminal law, doesn't that make it a lawful action?

MR RHEEDER: Honourable Committee member, Mr Luff sits in an interesting legal situation. The use of force and especially where the arrestee died during the use of force, you can only rely on the provisions of the Criminal Procedure Act. If he was arrested for specific crimes and there is a certain schedule attached to the Criminal Procedure Act, if a person is arrested for one of the crimes in that schedule and he flees and is then killed, the policeman can rely on that Section. At the time when this was committed, political unrest, the crime, was not in the schedule, it was added later on. Mr Luff is in the position that at the time when this happened, political unrest was not one of the crimes defined in this Section as a crime for which the person must have been arrested.

ADV BOSMAN: You mention that it was indeed as the law stood then, an unlawful action?

MR RHEEDER: Looking at the definition in the Criminal Procedure Act, let me put it this way, honourable Committee member, my client is not able to rely on the Criminal Procedure Act to escape prosecution in this matter, or conviction in this matter. There are other principles applicable in the Criminal Law and I am sure you know, dealing with intent and negligence and going even further, error and so forth, but he is not able to rely on the Criminal Procedure Act in this instance, whereas if it would have happened in 1990 or 1989 I even think, he would have been able to do that. The specific crimes were later added to the schedule.

CHAIRPERSON: Yes. Have you got any other submissions?

MR RHEEDER: None, thank you honourable Chairperson.

CHAIRPERSON: Thank you.

Yes, well that concludes the formal part of these proceedings. The Panel will consider the matter and will notify the parties as soon as the decision is available. Under the circumstances we would reserve the decision in the matter. Ms Patel, is there anything else that is on the roll for today?

MS PATEL: No, honourable Chairperson, we have only set this one ...

CHAIRPERSON: Does that conclude the proceedings?

MS PATEL: Yes.

CHAIRPERSON: Very well. Then we will adjourn at this stage and we will reconvene here tomorrow morning at 9 o'clock. We are adjourned.

COMMITTEE ADJOURNS