ADV VISSER: Mr Chairperson, we want to call Mr Fuchs as a witness.
PAUL PHILLIPUS FRANCOIS FUCHS: (sworn states)
EXAMINATION BY ADV VISSER: Mr Fuchs, just switch on the microphone in front of you. Mr Chairman, we refer you to your Section B of the bundle of documents before you, page 48 - well, really it is page 50 and following.
Mr Fuchs, are you comfortable with the earphones?
MR FUCHS: Yes, thank you.
ADV VISSER: You are an applicant for amnesty before this Committee and your application deals with the incident which took place on the 10th of July 1986, near Alldays on the Breslau/Alldays road, is that correct?
MR FUCHS: That is correct, yes.
MR BLACK: Mr Chairman, sorry to interrupt, I don't think the witness has been sworn in?
ADV VISSER: He has.
MR BLACK: Has he, I am sorry, I was busy. Sorry Mr Visser.
ADV VISSER: You completed the necessary form for amnesty and that appears in the bundle under B, on pages 50 onwards. Do you have that document or have you read it recently, are you satisfied that it reflects the true facts in so far as they are applicable to your application?
MR FUCHS: Yes, I am so satisfied.
ADV VISSER: In your application you also referred to two documents, the one is the submission for the foundation for equality before the law and the other is the submission made by General Van der Merwe which was made to the Truth Commission and you are requesting these documents to be incorporated in your application as so far as it is relevant to your application?
MR FUCHS: That is correct.
ADV VISSER: You have also referred to the application of Andries Johannes Gerhardus Erwee, who has just testified in respect of the facts of the matter?
MR FUCHS: Correct, yes.
ADV VISSER: Now, you have also listened Mr Fuchs to the evidence of the previous witnesses in this matter so far. You were present in the hall when this took place?
MR FUCHS: That is correct.
ADV VISSER: And do you agree with their evidence in broad terms and in so far as you are aware of what happened at that time?
MR FUCHS: That is correct, yes.
ADV VISSER: I am of course not referring to Mr Sehlwana.
MR FUCHS: Yes, that is what I thought.
ADV VISSER: More specifically as far as you are concerned, your career in the police you summed up from pages 50 to 51, do you confirm that that is correct, or is there a mistake?
MR FUCHS: It is entirely correct.
ADV VISSER: What is your current position in the South African Police?
MR FUCHS: I am still an active member of the SAP, I am still stationed at Internal Stability, that is the old Security Branch.
ADV VISSER: As far as your role in this incident is concerned, now perhaps we can leave the planning issues behind, can you tell the Committee when you became involved in the run up to the events which took place on the 10th and what your duties were? Please tell us in your own words?
MR FUCHS: Yes, on the 9th of July I had been at the festival grounds for a day or so and I was requested to go to Alldays, to the police station there, where certain instructions would have been given to me there.
ADV VISSER: I need to interrupt you there. You say you were at the festival grounds, now where is that?
MR FUCHS: I must correct myself, on the 24th and the 25th of June I was at the festival grounds after we had received information that three foreign persons would go to Seshego, which is very close to Pietersburg.
ADV VISSER: Where is this festival grounds?
MR FUCHS: The festival grounds are just outside Pietersburg, on the Dendron road, approximately 500, 600 metres on the other side of the Seshego turn off.
ADV VISSER: What was your duty, what were you supposed to do?
MR FUCHS: There were ABS people with me, Internal Stability people with me and there were also two vehicles from the Internal Stability staff. My estimation is that there were between eight and ten people.
ADV VISSER: ABS is referring to Division Internal Stability?
MR FUCHS: Yes.
ADV VISSER: What was your duty in that regard?
MR FUCHS: During the 24th and the 25th a request was made to me that if the people were to travel to Seshego, I had to stand there to ascertain whether or if they went to Seshego, that these DIS people should be made available to arrest them if they were in houses in Seshego or wherever.
ADV VISSER: Were you aware of the type of vehicle which you were supposed to observe?
MR FUCHS: Yes, it was a light brown Toyota Corolla sedan.
ADV VISSER: And on the 24th and the 25th did this light brown Toyota drive past or what happened?
MR FUCHS: No. I received a request from my office by radio that it was no longer necessary and that I should withdraw from the terrain, that was on the 24th and also on the 25th, I got the same request.
ADV VISSER: Afterwards you were once again involved. Please tell us what happened?
MR FUCHS: On the 9th of July, I was requested by my office to go to Alldays. I was supposed to report to the police station and receive instructions.
ADV VISSER: Did you receive instructions there at Alldays on the 9th of July?
MR FUCHS: When I arrived at the police station, there were already a number of staff members, well-known people from Louis Trichardt and Messina. We stood around whilst Captain, who is now Colonel Erwee, went to the office along with the Defence Force person and I think that that is where they did the planning.
ADV VISSER: Now you talk about a Defence Force person, who is that?
MR FUCHS: He was an Officer. At that stage I did not know who it was, it was only the next morning that I learnt that it was Captain Born and that he was the Officer of the Defence Force.
ADV VISSER: What instructions did you receive as far as you can remember Mr Fuchs?
MR FUCHS: Nothing much was told to us that afternoon, but that evening at the farmhouse where we were to overnight, we were told what we were supposed to do the next morning and the full planning was actually done the next morning at the scene.
ADV VISSER: What was your understanding of the purpose of your operation and what were your instructions?
MR FUCHS: I went with a group of people in this specific combi to the scene where the casspir accompanied us and there was probably one vehicle, a bakkie, which also went along.
I was in the little bus, the minibus and we drove early in the morning and arrived at this place where we were to perform the operation.
ADV VISSER: What was the purpose of the operation, or what were your instructions?
MR FUCHS: The instructions were that we had to arrest six trained people who came from Botswana.
ADV VISSER: Where were you placed during this incident?
MR FUCHS: Perhaps I should just pre-empt it here, I was also present where I saw that Captain Born and Colonel Erwee, as well as Matthews were busy rehearsing the events.
I was standing on the bank of the river and I watched whilst this was being done.
ADV VISSER: What was your understanding of that rehearsal, what was to happen?
MR FUCHS: It was very clear that these people we had been told about, we had to arrest them.
ADV VISSER: Yes, but how did you understand this rehearsal, how was this to take place?
MR FUCHS: If I understand you correctly, I clearly observed that the vehicle would be brought to a halt on a low water bridge after which the driver, who was Matthews Sehlwana would then jump out and run away so that he could remove himself from the dangerous situation and so that we could then arrest these people.
ADV VISSER: Where were you placed during this incident?
MR FUCHS: I was inside the casspir.
ADV VISSER: Along with Erwee?
MR FUCHS: With Colonel Erwee and some other people that I can remember, I don't know whether I should mention them?
ADV VISSER: Did you listen to his evidence, was his evidence correct, regarding the people who were with you in the casspir?
MR FUCHS: Yes, entirely correct.
ADV VISSER: We learnt that what ultimately happened is that at about nine o'clock, the casspir blocked the road and the combi arrived and stopped. Can you tell the Committee what your experience was of what had happened there, your own observation of what happened there?
MR FUCHS: I was inside the casspir, we sat inside the casspir for quite a while, after we learnt that the vehicle was on its way.
Our instructions were to listen to the whistle. I was quite tense, I kept my R1 next to me and when the whistle sounded to tell us that the vehicle was close, the casspir pulled away with quite a bit of speed.
To make it a bit clearer, this bank which had been discussed, was a bank which had been formed by the regular grading by a road grader and we drove over this bank with such force, that I fell of my chair. I was totally off balanced until the point where the casspir stopped right in front of the minibus.
Through the window of the casspir I could observe what was happening.
ADV VISSER: And what did you see?
MR FUCHS: The moment when the combi came to a halt, I saw the person who was to throw the gas grenade, and I must say he was running quite fast, I heard at some stage that a shot rang out.
This shot didn't sound like a gunshot to me and seconds afterwards somebody shouted they are shooting at us. That I heard very clearly.
The next moment ...
ADV VISSER: Excuse me, this person whoever shouted this, where did this shout come from, what direction? From where you were on the bank, or from the bottom of the river bed or more or less where or don't you know?
MR FUCHS: It was definitely not inside the casspir, it was from outside, but I can't pin point exactly from where.
ADV VISSER: Now, where you were on the top of the bank, outside the casspir, who was there according to your recollection?
MR FUCHS: I can remember very clearly where Captain Born and two of his members were standing on the bank, diagonally in front of the back part of the casspir.
ADV VISSER: Was there anybody else there?
MR FUCHS: I knew about them and I also saw when the shot rang out, how Captain Born collapsed. At that stage I didn't know whether he had been hit or whether he was just seeking cover.
But I heard the shot and shortly afterwards I also heard a volley of very fast shots from outside. And afterwards I realised, I must say it was the first time I found myself in such a situation, I jumped hither and thither and then, when I heard shots firing from inside the casspir, I jumped out and also tried to fire from the roof.
ADV VISSER: Yes? So the sequence of events is that a pistol shot rang out?
MR FUCHS: Yes.
ADV VISSER: Where did that shot come from?
MR FUCHS: Also from outside somewhere and I suspected also from the minibus.
ADV VISSER: You suspected that but you didn't see anybody firing?
MR FUCHS: No. Because there I was experiencing a bit of a balance problem.
ADV VISSER: You saw Born falling, he was seeking cover or he was wounded, you didn't know, but you saw him falling onto the ground?
And then another volley?
MR FUCHS: Yes, after which somebody shouted they are shouting at us.
ADV VISSER: Now this volley from where you were standing, could you determine where it was coming from?
MR FUCHS: Definitely also from outside.
ADV VISSER: When you say outside, do you mean outside the casspir?
MR FUCHS: Yes, from outside the casspir.
ADV VISSER: Afterwards you became aware that there was shooting from the casspir?
MR FUCHS: Yes, that is correct. After we heard they are shooting at us, some of our people started shooting and I would have done exactly the same, but my R1 rifle had stalled with the first and second shots and in both cases, I removed it from the stalled position, it still didn't move. I then dropped it onto the floor of the casspir, I took out my pistol and shot in the direction of the bus.
ADV VISSER: Now this whole process, how long or how many shots did you fire with the R1?
MR FUCHS: I don't think a single shot from the R1.
ADV VISSER: And how many shots did you shoot with the pistol?
MR FUCHS: I think about eight.
ADV VISSER: Did you shoot at a particular person?
MR FUCHS: No, on the contrary, I simply shot into the combi because at that stage there was quite a bit of teargas inside the bus.
ADV VISSER: Could you see the teargas bubbling out of the windows?
MR FUCHS: Yes, it was white.
ADV VISSER: This teargas, it is something that I have neglected to mention before, was this teargas at any stage so dense that you couldn't see the combi at all from where you were at the casspir?
MR FUCHS: No, you could see, you could see the outline of the combi.
ADV VISSER: So you could see the direction in which you were supposed to be shooting?
MR FUCHS: Yes.
ADV VISSER: And then, did you stop firing?
MR FUCHS: I stopped firing after Mr Erwee, who was standing next to me, shouted seize fire.
ADV VISSER: What were your movements immediately afterwards?
MR FUCHS: When the gas started overwhelming us, I was totally overcome, I jumped out of the casspir and ran away to the bushes, simply to be able to breathe.
ADV VISSER: And how did you feel, emotionally speaking, about this experience you've just related?
MR FUCHS: Well, Chairperson, as I've said just now, it was my first case in my police career where I had to deal with people who answered fire with fire and I was in a state of shock.
ADV VISSER: Please continue and tell us what happened next. The next significant thing that happened.
MR FUCHS: I sheltered behind a fairly thick tree truck for quite a while, I stood there for quite a while because I was coughing, I couldn't really regain my equilibrium and it took me about 15 - 20 minutes to come to my senses.
I saw the helicopter landing and I saw them running with somebody towards the helicopter and I also saw it taking off.
ADV VISSER: Now afterwards you still stood there at the tree?
MR FUCHS: I stood there for quite a while until I regained my senses again and stopped coughing, my eyes were also full of tears. So when I pulled myself together, I took up position at the bank again.
ADV VISSER: What did you see there?
MR FUCHS: I saw the people busy at the combi and I also saw how Colonel Erwee carried this wounded person down to the dry river bed and put - lay him down there. At that stage I hadn't yet approached.
ADV VISSER: What happened then?
MR FUCHS: Colonel Erwee called me and said that I should come and help him. He said that he needed somebody to come and talk to this man.
ADV VISSER: Did you notice Matthews Sehlwana in the area then?
MR FUCHS: No. I didn't notice him anywhere, it is possible I was in a state of shock, it is possible that he could have been there, but that I didn't see him.
ADV VISSER: Now, you then went to where Erwee was and Erwee was busy with this wounded person?
MR FUCHS: Yes.
ADV VISSER: And we know that the wounded person came from the combi?
MR FUCHS: Yes. Yes, I could see that from where I was standing.
ADV VISSER: Now, when you got there, what did you notice?
MR FUCHS: My first observation was that the man was very heavily wounded and that he was covered in blood, his clothes were covered in blood.
ADV VISSER: Did you think he would live?
MR FUCHS: When I crouched next to the man to speak to him, I immediately noticed and I didn't hear it from other witnesses, but I noticed that the man was shaking, as if he was shivering.
But it was a lot more serious than just shivering. And before Mr Erwee told me what I was supposed to ask this man, I thought that I would speak to him in Sotho to try and calm him down and my first question to him was such that he simply would be able to hear that I spoke Sotho and I asked him where do you come from and I asked him that in Sotho.
Where do you come from and he told me that they came from Gaberone.
ADV VISSER: Did he speak easily or with difficulty?
MR FUCHS: He spoke quite softly, but immediately afterwards when he heard I spoke Sotho, he said I want to work with you.
ADV VISSER: Say in Sotho what he said.
MR FUCHS: I asked him where do you go and he said we come from Gaberone. Immediately he said in Sotho and that is how I make the inference that he could communicate with me, he said to me that he wanted to work with us.
I don't think I even told that to Erwee. He said I want to work with you and immediately afterwards Colonel Erwee said to me, ask this man where they are going.
Now, this process took time because this person's eyes were closed. You could see that he was really suffering and that he was losing consciousness from time to time.
I continued talking to him to just try and see whether he could just regain consciousness and he told me that they were on their way to Pietersburg.
ADV VISSER: Did he speak Afrikaans?
MR FUCHS: No, he was speaking in Sotho. The whole three or four minutes while I was chatting to him, I spoke Sotho to him and told Mr Erwee what he had said, in Afrikaans.
CHAIRMAN: Can I just interrupt. I am not listening to the interpretation. The words which the witness uttered in Sotho, a language which is in fact my language, would accord more or less with what he told us.
ADV VISSER: Thank you Mr Chairman.
CHAIRMAN: I just wonder whether it was put through in the translation, for anybody to access whether the witness does in fact understand Sotho.
ADV VISSER: Yes, thank you Mr Chairman.
CHAIRMAN: If that was not done, then maybe I must just place it on record that it is in fact what, it would be an accurate translation by the witness into Afrikaans as to his conversation in Sotho with the injured person.
ADV VISSER: Yes. Yes, thank you Mr Chairperson. Thank you Mr Chairman.
Could you just continue. You said that you spoke to him for about three to four minutes, with this wounded person. He spoke very softly. Did anything further happen to this wounded person?
MR FUCHS: Whilst I was busy questioning him, I heard Colonel Erwee requesting somebody to come and inject this wounded man. My honest opinion is and as I already said, this whole situation was not a familiar one for me, I saw how this person, the medical orderly, injected the wounded person in the thigh, in his upper leg or thigh.
Shortly afterwards it appeared to me that the man wasn't shaking as he had done before, that he had calmed down a bit. Yes, he became a little bit calmer and I thought he was resting.
But he couldn't communicate with me much longer.
ADV VISSER: I am not quite sure where you were in the conversation. Erwee asked you to ask him where they were going to, what did he say to you?
MR FUCHS: Must I repeat it in Sotho?
ADV VISSER: I think the members of the Committee will now know that you can speak Sotho.
MR FUCHS: They told me that they were on their way to Pietersburg and that they would meet a person at the railway station, wearing a yellow shirt or a yellow scarf and it would be a male, Black person. That is the inference that I drew.
ADV VISSER: Is there anything further?
MR FUCHS: I may just mention that I couldn't do very much more, because the person looked really bad. In fact I wouldn't have wanted to interrogate him any further, I noticed that this man was really at death's door.
ADV VISSER: And you could see that you couldn't really extract any further information from him?
MR FUCHS: Absolutely not.
ADV VISSER: You later learnt that Mr Van Dyk had made a tape recording of the scene?
MR FUCHS: I forgot to say that. I saw him, he was very close to me at the wounded man's mouth where we were talking to each other.
ADV VISSER: Did you see him making a tape recording of what the person had said?
MR FUCHS: Yes, I saw that.
ADV VISSER: If you say close to the wounded man's mouth, do you mean the tape recorder was close to this wounded person's mouth?
MR FUCHS: Yes. Yes, he was speaking very, very softly. The little bit that he did say, was very, very soft.
ADV VISSER: After this person was no longer able to speak and there was no further reaction from him, what happened then?
MR FUCHS: I heard Colonel Erwee requesting somebody, well I was still in a crouched position next to this person, I heard Erwee shouting get a vehicle, so that we can get medical help for this man.
ADV VISSER: This wounded person, how was he laying, can you remember?
MR FUCHS: Yes, very well. He was laying on his back, very heavily wounded. I noticed blood and I could see that he was very heavily wounded.
ADV VISSER: Where was the blood and the wounds?
MR FUCHS: Where he was laying, there was a pool of blood coming from his back and also his thighs, he was heavily wounded.
I can't say exactly, because he was wearing clothes.
ADV VISSER: But more or less his whole body was covered in wounds?
MR FUCHS: Yes, he had numerous wounds.
ADV VISSER: What happened then?
MR FUCHS: The next moment, Colonel Erwee and somebody else, plus some other helper, took this person to a vehicle.
ADV VISSER: What did you do?
MR FUCHS: Whether I stood there or went to the combi, that short episode I can't tell you.
ADV VISSER: What is the next thing that you did, that you can recall?
MR FUCHS: A while after the person was evacuated in the vehicle, I started helping with the clearing up operation near the combi.
ADV VISSER: When he left the scene from the position where you were sitting next to him in a crouched position, would you say he was still alive or was he already dead?
MR FUCHS: I don't have a lot of knowledge in this regard, but my prognosis was that the man wouldn't live very much longer.
ADV VISSER: But was he still alive when he was carried away?
MR FUCHS: Yes, he definitely was still alive.
ADV VISSER: You heard what Matthews Sehlwana had said.
MR FUCHS: Yes.
ADV VISSER: He said that after you questioned him, you took out a pistol, pressed it against his chest and shot him?
MR FUCHS: That is definitely not the case.
ADV VISSER: Can you think of any reason why you would have wanted to shoot him?
MR FUCHS: I can think of no reason.
ADV VISSER: He was dying in any event?
MR FUCHS: That is what I thought. I thought he looked very, very bad.
ADV VISSER: Were any Defence Force people around?
MR FUCHS: Yes. There were people. I remember how Mr Erwee told these people to move back. And I think that is when the Medic came to inject this person.
There were quite a few people around.
ADV VISSER: Now, this Medic, was he a Black man?
MR FUCHS: Yes, I remember him as a Black man.
ADV VISSER: Were there other Black Defence Force members in the vicinity?
MR FUCHS: Yes, there were.
ADV VISSER: Can you think of any reason why Matthews have told the story about you?
MR FUCHS: It was an incredible shock for me when I heard this the first time, that my name was linked with the shooting incident.
ADV VISSER: When did you hear it for the first time?
MR FUCHS: Perhaps before I answer that, I want to say to the Commission or to the Committee, that Matthews and I mention him by name, we worked together for about eight years. We worked on the same floor of the same building. We were on very good terms, not only the two of us, but I was on good terms with all my Black colleagues and I think my advantage was that I could speak their language.
I have absolutely no idea why Matthews said such a thing.
ADV VISSER: When did you hear this story for the first time?
MR FUCHS: I think about two months ago when Mr Erwee came to me and said Tokkie, I have bad news for you. There is an investigating team and he mentioned the names of the members, Captain De Lange, Mr Ivor Human who were busy doing an investigation and that they had mentioned my name and said that I had eliminated this person at the scene.
ADV VISSER: How has it effected you and your family, this allegation?
MR FUCHS: We have all been shocked. My wife is very sensitive and she is not taking this well. I told her that she should just take a week's leave for this week's proceedings, because she is really distraught.
She can't believe that her husband could have done something like that.
ADV VISSER: Where does she work?
MR FUCHS: She works for the police at the Commissioner building for the past 13 years.
ADV VISSER: Do you Mr Fuchs, feel that you have done anything wrong or acted outside the scope of your orders as a policeman and the specific instructions which you had to carry out that day?
MR FUCHS: No. I don't believe that I have done anything wrong.
ADV VISSER: Why are you appearing here to ask for amnesty?
MR FUCHS: I have been following the press and the media reports fairly closely this past times, and it was made very clear on television, in the newspapers that if you had any doubt as to whether you should apply for amnesty, you should apply and Archbishop Desmond Tutu also said that very same thing a couple of times.
You must ask for amnesty if you think that you possibly did something wrong and if you have any doubt in your heart, then you must apply and when Colonel Erwee came to me and said there was an investigation under way, I felt that I hadn't done anything wrong and that is why I came to ask for amnesty.
ADV VISSER: One last aspect Mr Fuchs, after these events of the 10th of July, some of these security people went to a farm and I am not sure, but I think they overnighted there?
MR FUCHS: That is correct. I also slept there that night.
ADV VISSER: And that night after the events, you ate there and you had a braai?
MR FUCHS: That is correct.
ADV VISSER: And Matthews Sehlwana said that you poured some beer over his head and said something to him?
According to him, you said to him that he wouldn't get any promotion or something to that effect? It is not particularly important what was said. What happened there that night between yourself and Matthews? Could you please tell the members?
MR FUCHS: It is a very long time ago.
What I can remember is that we stood in the kitchen. We were preparing the meat in the kitchen. I know I was in the kitchen, Matthews came to me and I said to him, you did good work, but as to throwing anything over his head, I don't know.
Perhaps what I can mention to the Committee, is the fact that we have been debating this issue, this past week and Superintendent Joggie Kruger said to me, Tokkie, do you know what you have done? You were busy drinking your drink and you were mixing your ice.
ADV VISSER: With your finger?
MR FUCHS: Yes, with my finger. I do that all the time and when he entered, coincidentally at that time, I just flicked some ice and water at him, saying to him, you did good work.
I can't even remember that, that is what one of my colleagues told me.
ADV VISSER: Chairperson, that is all as far as this witness is concerned, thank you.
NO FURTHER QUESTIONS BY ADV VISSER: .
CHAIRMAN: Mr Rossouw.
CROSS-EXAMINATION BY MR ROSSOUW: Thank you Mr Chairman. Mr Fuchs, what I find very significant is that Matthews, Mr Sehlwana's recollection of events coincides very significantly with what you have testified here up to a point and I will mention the specific incidents to you.
The fact that you did the questioning, that was also said in his statement. The fact that you asked the question where did you come from, that was mentioned by him whilst Captain Erwee wasn't even aware of that.
The fact that you crouched over this wounded person and that is what Mr Sehlwana also testified, that there was a tape recorder involved, he also testified as to that. And then the next evidence from his side is that a shot was fired by you.
You say you can't explain why he would have added that. There is absolutely no reason? You can't advance any reason?
MR FUCHS: Well, Chairperson I can't see why he said that, because I didn't shoot this person. I never fired a shot.
MR ROSSOUW: Would there have been any reason for him why he would like to implicate you in this manner?
MR FUCHS: I have no idea.
MR ROSSOUW: Your relationship with him seems to have been a fairly friendly one, according to your evidence?
MR FUCHS: Yes, at all times.
MR ROSSOUW: Still?
MR FUCHS: Yes, absolutely.
MR ROSSOUW: So, you would agree with me that there seems to be absolutely no reason why he would want to implicate you?
MR FUCHS: I can't understand why he does it.
MR ROSSOUW: I want you to listen very carefully to what I am going to put to you. If you assume for a moment that a person, I am not saying you, that a person had in that situation shot the wounded person, the wounded MK person, on your evidence that would have been murder?
MR FUCHS: Yes, it would have been murder.
MR ROSSOUW: Such action, if it had taken place, would no longer have added anything to the achievement of the objective with which the whole operation had been planned. Such conduct shooting the person, the wounded person, would no longer have formed part of the overall objective which had been planned for that day?
MR FUCHS: No it would not have served any purpose to shoot that person.
MR ROSSOUW: Because the planning was to arrest them?
MR FUCHS: That is correct.
MR ROSSOUW: Would you agree with me that such conduct would also not have been committed with any political objective in mind?
MR FUCHS: If I understand you correctly, I am not quite sure about the question...
MR ROSSOUW: Well, let me make it clear. If there had been such an action, we are working with a supposition now, if there had been such an action, then that would not have been an action which could have had any political motive?
MR FUCHS: Correct, yes.
MR ROSSOUW: I have nothing further Mr Chairman.
NO FURTHER QUESTIONS BY MR ROSSOUW: .
CHAIRMAN: Well, one should just observe of course that what you put to the witness is not necessarily correct, he could still - you know we have just a few weeks ago, we have granted amnesty to a policeman who arrived at a scene, he found people had been arrested already, they were injured and he found them on a bakkie, ordered the bakkie to get into the bush and then he shot both of them dead.
We gave him amnesty, so you know what you are putting to the witness must be qualified, you know it is not hundred percent correct.
ADV VISSER: Mr Chairman, I didn't interrupt because I thought it is a matter for argument, but thank you for pointing that out. CHAIRMAN: Mr Black?
CROSS-EXAMINATION BY MR BLACK: Thank you. Mr Fuchs, this tape recording of the interview or questioning of the wounded man, was that tape recording taken back to Pietersburg Security Branch?
MR FUCHS: I think so, yes, because a week or so afterwards I listened to the incident again, so I say yes, it was taken back to Pietersburg.
MR BLACK: And on the recording, did you hear the interview which took place?
MR FUCHS: Yes, correct. I did listen. Even the shooting incident has been recorded. Shortly afterwards you could hear my interrogation of this wounded person. My discussion with the person plus Mr Erwee's questioning.
MR BLACK: Do you know Mr Francois Jakobus van Zyl who was working at the Pietersburg station at the time, Security police?
MR FUCHS: Yes, definitely. He worked for about a year and a half with me. We almost worked in one office, but I am not correct on that, I am not sure.
MR BLACK: If he says that he had occasion to listen to this tape recording on more than one occasion and that the recording was played to him by yourself, would you agree with that, would that be possible?
MR FUCHS: No, I cannot disagree, but I never have had the recording with myself. Maybe for a short period, but I am actually in doubt about that.
MR BLACK: And then did you, during the course of events, during the course of time after this operation, do you recall telling him, Mr Van Zyl, that at the - during the operation, your R1 was jammed and that you had to use your pistol? Could you have told him that?
MR FUCHS: It is very possible and at office level, we did discuss it. On various occasions we talked about this incident.
MR BLACK: Now, Mr Fuchs, where was this tape recording kept at Head Office?
MR FUCHS: As I've already said, I was never in possession of this tape recording. Somebody at some stage came and played this tape recording for us and it might have been Colonel Van Dyk, but I never physically had this tape recording in my possession.
Why I am saying that is that every Security policeman has his own little tape recorder. I didn't have a tape recording machine at the scene. I do use it when I question informers and so on, so I wouldn't have kept someone else's tape recording with me.
MR BLACK: The point I am getting at Mr Fuchs, evidence of this nature, where would it normally be kept at the Security offices?
MR FUCHS: Mr Chairman, if I can perhaps just comment on what I would have done or what happened in my case.
I don't know, a tape recorder which can only take one cassette and for which you have to sign, is used over and over again. In other words I am talking about in my case, what happened with informers. As soon as I was finished with one person, I would make notes to form the basis on a report. I would then with my next appointment with another informer, I would start afresh, so I can't say where it would have been kept and whether it might still be available.
MR BLACK: Mr Fuchs, here is clear evidence that for some weeks after this event, the tape recording was still in existence and it was played to various members of the Security police and it was heard by several people, as Mr Van der Berg has testified.
Mr Van Zyl has given information, you have heard it, together with other people. Now that evidence, which it is, of a very important event must be kept somewhere, there must be a record of that evidence.
Don't you normally important or significant evidence which you feel necessary to keep and not replay over the tape, where, what is the normal procedure? If you obtain evidence and information on a tape recording or any other form of recording, what is the normal procedure that is followed in the Security police Head Office with such evidence?
Do you keep a record of it, is it kept in a safe place or what is the procedure that is followed?
MR FUCHS: Today I am a Captain, I am an officer, I would not neglect to say that I would have kept the tape, but in that period I didn't think it was necessary to do so as a Sergeant.
My colleagues were officers and whatever they did with the tape or tape recording, it was not really for me to enquire into and I think, or I thought that it was the work of the officers, they had to deal with it.
MR BLACK: Mr Fuchs, perhaps you are misunderstanding what I am getting at and my question, even if you are an officer or a non-commissioner officer, you obtain evidence of a recording and a recording is made of a very significant event.
You've got the tape, you come back to Headquarters with this evidence, one of your specific tasks with this evidence, I just want to know what normal procedure then is followed in order to store this evidence in a safe place to make a record of this evidence and who gets informed?
What was the practise that was followed?
MR FUCHS: Mr Chairman, I would sum it up by saying that the tape recording had to have been given to somebody, I don't know.
MR BLACK: Okay.
ADV DE JAGER: It is a very, very simple question that is put to you. Suppose I am being suspected of having committed murder and you are investigating the case and you have your tape recorder with you and I confess or admit to having committed the murder, would you go and tape something else over that tape or would you keep it in safe custody to use as evidence against me?
MR FUCHS: No, I would preserve it, I would keep it.
ADV DE JAGER: So why was this tape recording not kept, I think that is what we all want to know.
MR FUCHS: Chairperson, I don't know. I can't answer that.
MR BLACK: Mr Fuchs, okay, let's just move on, I just want to get a picture of the situation. I understand that before you, I think it is the night of the 9th, you slept over at a farm at Alldays and proceeded to the scene early the next morning on the 10th of July?
MR FUCHS: That is correct Mr Chairman.
MR BLACK: Now, how far is this farm from the scene of the incident?
MR FUCHS: If I remember correctly, if we are talking about the Alldays police station, then you moved backwards in the direction of Pietersburg and then turned off onto a gravel road, and from there it is about 20, 30 kilometres.
I am not sure, because I was only there twice and from where you enter the Pietersburg/Alldays road again, it is a further seven to ten kilometres and then, I would say from Alldays a further 50,60 kilometres.
But the farm laid on the right side of the police station, in other words completely away from the scene.
MR BLACK: What I am trying to get at, is the farm between before you get - situated between the scene and the operation and Alldays, is it in between there?
MR FUCHS: No, Mr Chairman. If I could perhaps repeat. The farm house is to the right of Alldays, then you get the police station and then you would drive to the scene.
MR BLACK: Okay, then the police station is nearer to the scene than the farm, is that correct?
MR FUCHS: That is correct.
MR BLACK: Now, how far is the police station from the scene about?
MR FUCHS: About 50 to 60 kilometres, Chairperson.
MR BLACK: And how far is Alldays from the scene of the operation?
MR FUCHS: I don't know Mr Chairman, the police station is in Alldays.
MR BLACK: Okay, thank you. I thought it was situated ...
ADV DE JAGER: Alldays doesn't exist of more than a police station.
MR FUCHS: Yes, that is correct.
MR BLACK: I have no further questions, thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR BLACK: .
ADV DE JAGER: The tape recording was made by Colonel Van Dyk?
MR FUCHS: That is right.
ADV DE JAGER: He was then a Captain?
MR FUCHS: He was an officer.
ADV DE JAGER: And he was in charge of the information, or he had the instruction to control or check all the information and collect the information so that a report could be made?
MR FUCHS: That is what I heard during the evidence that he dealt with all the information.
ADV DE JAGER: Yes. If you had a tape recording, in normal police work and that entails evidence, how is it stored in the police station, how is it kept in safe custody as not to lose it?
MR FUCHS: Chairperson, in the Security Branch and by implication myself, have never been in such a situation that I had to actually store my tape recordings anywhere.
I used to sign for the tape recorder and the cassette and it was in my possession at all times, it was never necessary for me to go and store it somewhere.
But in this context it seems that it was different, but I was never in that situation that I needed to store it elsewhere.
ADV DE JAGER: Did you only use it to refresh your memory to be able to write the report, you didn't send the tape with the report?
MR FUCHS: All the years, that was the way it worked that the informers were often seen at night, so that you couldn't actually make notes and a recording, the tape was then used to take down the information, vis-à-vis this informer - sometimes the discussion lasted for 20 minutes or longer and then we had to send all information to Pretoria to Head Quarters in writing and that tape recorder helped me then the morning after an interview, to extract all the relevant information, write my report and then to send it back to Head Quarters through the normal channels.
And then the next occasion I would use the same tape for a different person or interview.
CHAIRMAN: Mr Fuchs, why did you decide to shoot at the combi, because Colonel Erwee was in charge of the operation and he never ordered you to shoot? Why did you?
MR FUCHS: When I heard somebody shouting that they are firing at us, and I saw the Colonel collapsing - I don't know why, whether he was wounded or seeking shelter, but shots started going off and I realised that now we have to fire back, we have problems.
The first shot, after I listened to the tape it was very, very clear that one shot, one pistol shot would ring out very clearly and then the volley and then the person shouting they are shouting at us.
And at that stage, I had not option but to assist and to help because I could see that the fight was on and that I also tried to fire although my first couple of seconds were wasted because my gun stalled and I had to first try and un-jam it.
CHAIRMAN: But we know that according to your evidence the idea was not to kill these people, but to arrest them? Isn't that so?
MR FUCHS: Yes, the first though was definitely and that was most pertinently put to us that these persons should be arrested.
CHAIRMAN: That being the case, you see your Commander, the person in charge of the operation, he doesn't ask you to shoot, he is using his R1 rifle because he was the first person to shoot and in fact in your evidence, you have said that before you started shooting, you noticed that your colleagues in the casspir, were already shooting at the combi.
Now he is in charge of the operation, he is using his rifle and he is not asking you to help. Why did you join in and fire eight shots if the idea is just to, you know, to immobilise this people and not to kill them?
MR FUCHS: I would answer to that that when fire came from the combi I realised that my life was in danger, and my colleagues' lives were in danger and I most certainly would not have left my colleagues in the lurch by not firing.
CHAIRMAN: You are shooting to kill, weren't you?
MR FUCHS: I fired, I fired into the combi and it could have had detrimental effects.
CHAIRMAN: In fact you stopped only when Colonel Erwee said stop fire?
MR FUCHS: That is correct. I fired about eight shots with the pistol and I stopped when the shout came, seize fire.
What I should perhaps add, I think I said it in my previous evidence, that that was my first opportunity at which I was involved in such a thing, and I was in a state of confusion. I can't say I acted correctly or not, but I did shoot.
CHAIRMAN: But under normal circumstances, Mr Fuchs, ordinarily, shouldn't you have waited for an order to shoot?
MR FUCHS: That morning, when we rehearsed the event, we were told that these persons had to be arrested and I was involved in many arrests in the past and by implication I can mention a couple, where we went all out and in fact arrested these people.
So there was no doubt in my mind that we were going to arrest these people. Although we were also told that should we be fired at, should any trouble arise, then we were simply not going to stand and do nothing, we were going to answer fire with fire and that is what happened there.
CHAIRMAN: But even so, I would have thought that there would have been some order. I mean people can't just do what they wanted at a scene or at a situation like that? surely things must follow a certain order, somebody must be in charge and people must listen to the instructions and orders from somebody in charge?
MR FUCHS: I don't understand? Is this during the shooting incident?
CHAIRMAN: Yes, I am talking about on that morning. I am just saying to you that no matter what instructions had been when you left the office about the arrest and how people should be arrested, I am saying there was somebody in charge there at the scene and surely somebody had to be in control at the scene and I would expect therefore that, I mean I expect you to have been under the command of Colonel Erwee and he would say to you do this, come and interpret here, take the person to the hospital, shoot, stop fire, you know? Those rules still had to apply, isn't it?
MR FUCHS: To me it amounts to the same, Colonel Erwee was the Commanding Officer, we acted according to his instructions.
From the moment we arrived there, when the rehearsal took place and there we were told, we were given certain instructions, we were told exactly how the
sequence of events would unfold, it is normal that the people would be placed apart from each other for the possibility of an interrogation.
Now, the order to shoot that happened in a fraction of a second. When they opened fire on us, we immediately answered the fire without Colonel Erwee saying let us fire or I didn't hear it any way.
CHAIRMAN: Yes, that is just what worried me, any way. I think I have asked you about that.
RE-EXAMINATION BY ADV VISSER: On this last point, according to the way you understood your orders and instructions in the police, if you were to find yourself in a conflict situation and people fired at you and there was a senior Officer present, were you obliged to wait for him to give an order or could you fire immediately to protect yourself?
MR FUCHS: No, I would think that I would certainly not endanger my own life by waiting for an order from a senior Officer if I could clearly see that I could also be shot dead.
ADV VISSER: Was this the case according to you on that particular day?
MR FUCHS: That is true.
CHAIRMAN: Did you think you were in any danger of being shot dead in the casspir?
MR FUCHS: Well, Chairperson, it is the first time I was involved in such a situation, it could have happened that I could have been shot dead and I answered fire.
CHAIRMAN: Did you really think that, sir that you were in danger of being shot dead in the casspir?
MR FUCHS: Perhaps I can take it a little bit wider. Our colleagues outside didn't have much shelter. Obviously I would have felt a little bit more protected if some of my colleagues who were in the river bed ...
CHAIRMAN: Yes, yes, now that is a different matter altogether, I am asking you about your answer to Mr Visser's question was that you feared for your own life, you felt your life was in danger in the casspir.
I understand if you wanted to protect your colleagues who weren't in the shelter of the shelter?
MR FUCHS: Yes, I just want to say that their lives were actually more threatened than mine, but as far as I was concerned, I had to lift myself outside of this hatch, the casspir hatch to shoot.
I could also have been hit without any doubt.
CHAIRMAN: But the reason why you would emerge from the casspir was to shoot?
MR FUCHS: Yes.
CHAIRMAN: Do you have any questions to ask?
ADV VISSER: I have no further questions, Chairperson.
NO FURTHER QUESTIONS BY ADV VISSER: .
CHAIRMAN: Mr Fuchs, thank you.
MR BLACK: It may be a convenient time, perhaps seeing that we started on time at nine o'clock this morning, to steal five minutes and add it onto our tea today Mr Chairman.
CHAIRMAN: And shall we try to start at the latest half past eleven?
MR BLACK: Half past?
COMMISSION ADJOURNS FOR TEA - ON RESUMPTION: ;
CHAIRMAN: I thought I wanted to ask Colonel Erwee something.
ADV VISSER: He is available Mr Chairman. Would you like to have him recalled?
CHAIRMAN: I thought that Mr Fuchs would still be here and then I would ask a question to him, but ...
ADV VISSER: Do you want Mr Fuchs as well?
CHAIRMAN: Yes, please.
ADV VISSER: Yes, Mr Fuchs, could you just come forward for a while.
CHAIRMAN: Colonel, you can be excused for a while, we just want to finish with Mr Fuchs and then we will ask you something.
I hope the record is not confused now. We are in fact now proceeding with Mr Fuchs.
PAUL PHILLIPUS FRANCOIS FUCHS: (still under oath)
CHAIRMAN: When you fired from the casspir, you used your pistol?
MR FUCHS: That is correct Chairperson.
CHAIRMAN: When you were interviewing the deceased, were you having your pistol with you?
MR FUCHS: Yes, it was next to me, I had it with me.
CHAIRMAN: That is the pistol which presumably Mr Sehlwana says you used but we all know now, that you say you did not use it to shoot the deceased?
MR FUCHS: It is the same pistol Chairperson.
MR BLACK: ... to ask this witness some information, can be during tea time. I won't be a minute.
CHAIRMAN: Why wasn't it asked ...
MR BLACK: I was only just during the tea interval, approached by one of the investigating officers. I just want to find out from this witness that in the event of ...
CHAIRMAN: Go ahead and formulate it properly.
FURTHER CROSS-EXAMINATION BY MR BLACK: Thank you. Mr Fuchs, would you be able to identify the person whom you interviewed or questioned, the wounded man on photographs of that person?
MR FUCHS: After eleven years I will take a chance, but I wouldn't be able to say that I could positively identify him.
MR BLACK: We may need to show you certain photographs later once I have them in my possession and perhaps you could assist them. Okay, thank you.
NO FURTHER QUESTIONS BY MR BLACK: .
CHAIRMAN: Well, we are taking advantage of your presence there Mr Fuchs. When you heard somebody say they are shooting at us, in what language was that?
MR FUCHS: That was in Afrikaans Chairperson.
CHAIRMAN: Thank you.
ADV DE JAGER: Do you want Erwee?
ANDRIES JOHANNES GERHARDUS ERWEE: (still under oath)
CHAIRMAN: Sorry to recall you, but you were the person in command that morning, so you have to answer more questions.
MR ERWEE: No, I accept that Chairperson.
CHAIRMAN: ... your application and I just want to have this cleared with you, I won't ask other people, I will ask you because they all support your application.
I would like you to explain to us, you know, what you want to convey by using the word elimination?
MR ERWEE: Chairperson, the word elimination, what I mean by that is the shooting dead or killing of six ANC MK members on the Breslau/Alldays road, further more the amnesty for any delict or offence based on involvement in this, which includes the inquest docket and possible obstruction of the course of justice.
CHAIRMAN: Yes, I am not so sure whether you understand what my concern was. You see we have heard evidence from many of your colleagues, or former colleagues and would suggested that perhaps you should say so and say well, I didn't mean it in that context?
MR ERWEE: What my intention is, is to state what our instructions were, to arrest but if do fire, we would also fire and then to shoot to kill and then death would then mean the elimination of the insurgents who fired at us, that is what it means, the killing of the six ANC MK members, should they resist arrest by means of firing at us.
CHAIRMAN: Yes, you see if you had just used that simple Afrikaans words, I am sure I wouldn't have called you back to come and explain anything, it is just that you had used a certain word. Thank you very much. Mr Visser, did you want to ...
ADV VISSER: No, Mr Chairman, I was going to suggest that you should call my Attorney because it is his word choice.
CHAIRMAN: I think he attended our hearings just too much. You are excused.
