DECISION
All of the above applications for amnesty in terms of Section 18 of the Promotion of National Unity and Reconciliation Act no. 34 of 1995 ("the Act"), relate to the death in detention of the Black Consciousness leader, Mr Steven Bantu Biko ("Biko"), which occurred at Pretoria Central Prison on the 12th September 1977. All of the Applicants are former members of the then Port Elizabeth Security Police. The application of a further Applicant in the matter, Gideon Johannes Nieuwoudt ("Nieuwoudt") was heard by a different panel after he successfully applied for his application to be separated from the applications being heard by us.
We now proceed to set out some of the relevant circumstances gleaned from the testimony which culminated in the tragic death of Biko.
At all material times hereto, Biko was banned under the security laws of the government of the day and was confined to the magisterial district of King William's Town in the Eastern Cape. He was prohibited from attending or addressing gatherings and could not be in the company of more than two persons at a time. He also could not be quoted in the media. On the 18th August 1977, whilst Biko and Mr Pieter Jones ("Jones"), a fellow leader in the Black Peoples' Convention ("BPC"), were travelling from Cape Town to King William's Town. They were stopped and detained at a road block by members of the Grahamstown Security Police. They spent the night at the Grahamstown Police Station and the next day they were handed over to the Port Elizabeth Security Police. Although Biko had clearly breached the conditions of his banning order he was not charged for that offence.
According to the Applicants there was a general state of unrest in the Eastern Cape at that stage which manifested itself in school boycotts, burning of government buildings and killing and intimidation of suspected or perceived collaborators. The Applicants also pointed out that a pamphlet calling for more acts of this nature with the view to terminating the Nationalist Party rule had been distributed in the black townships of Port Elizabeth. One Jack Titi ("Titi") had already been detained on the 12th August 1977 for questioning about this. There can be no doubt that the contents of the said pamphlet handed in as Exhibit B are highly inflammatory and sought to incite blacks to commit a wide range of crimes such as arson and murder. It also called for mourning in solidarity with those who had lost their loved ones in confrontation with members of the security forces. It further made a plea for solidarity with those in exile, obviously the outlawed liberation movements. In spite of information from Titi and other detainees of the alleged role of Biko in the production and possibly even distribution of this pamphlet, no charges were laid against Biko in this regard. The Applicants testified that Biko was to be the last of the suspects to be interrogated about his role in fomenting the violence, and his interrogation was to commence on the morning of the 6th September 1977. They further testified that Jones had also been questioned and he confirmed having overheard a conversation between Titi and Biko about producing a pamphlet. In his statement Jones further referred to the purpose of their trip to Cape Town which he said was to hold discussions with the view to unite black liberation organisations against the apartheid government. Applicants have submitted photocopies of the statements by Titi and Jones, which are Exhibits G, H and O respectively. We shall return to these documents.
Before the 6th September 1977 Biko had not been subjected to any questioning whatsoever and was kept naked at Walmer Police Station. Applicants alleged that it was a general practice to do so, to prevent detainees from using their clothes to commit suicide. That morning Biko was fetched and brought to Sanlam Building where the Port Elizabeth security police offices were situated. Siebert was to lead the questioning. Applicants alleged that Biko got injured in a scuffle which broke out after he, without having been invited to do so, seated himself on a chair. It is as a result of these injuries that he subsequently died in Pretoria where he had been transferred for medical treatment.
All the Applicants were supporters of the National Party Government and believed in its policies. None of them, except Marx, had met Biko before. They say they knew that although he was banned this had no effect in curbing his activities and support on the ground.
In order to decide the application it is necessary to consider more fully the incident which resulted in the injuries sustained by Biko. For this purpose we will deal with the version of each Applicant in this regard.
HAROLD SNYMAN
He held the rank of Major and headed the section on Coloured and Asian affairs. Shortly after the arrest and detention of Biko he was tasked by his Commander, Colonel Goosen, to lead an investigation team to interrogate Biko and extract information from him ("inligting uit Steve Biko te onttrek") and thereafter charge him for his role in the unrest. It was hoped that in this way his effectiveness in the BPC would be neutralised which would in turn serve to normalise the security situation. Goosen gave Snyman the following names for constituting the team :
1. Captain Siebert (second Applicant) who was the second in command of the Coloured and Asian Section;
2. Warrant Officer Marx (fourth Applicant) from the Black Affairs section, headed by Major Fischer; and
3. Detective Sergeant Nieuwoudt who was also from the Black Affairs section (whose application was separated).
According to the plan, Jones was to be the first to be questioned by different members of the team about the violence and unrest and more particularly the pamphlet and trip to Cape Town. He says the information from Jones and other people who had also been detained confirmed that Biko was one of the leading figures in the "Black Power" movement and was responsible for the production and distribution of the pamphlet. After sufficient information had been obtained to confront Biko with, he ordered that Biko's interrogation should commence on the 6th September 1977. On that day Siebert, Marx and Nieuwoudt went to fetch Biko at Walmer Police Station where he was being held and brought him to Sanlam Building. Goosen had instructed that Biko was to be interrogated "intensively". He should not be allowed to sleep in order to break his will to withhold information. The objective was to prove his involvement in the violence and production of the pamphlet.
On his arrival at about 9.00 a.m. at room 619, Sanlam Building, Biko was in foot chains and handcuffs. He immediately ordered that these should be taken off. All the members of the team were present. In retrospect he thinks the interrogation could have been handled more competently by Marx and Nieuwoudt since they were directly involved in the Black Affairs section and had the background information with which Biko could be confronted. Siebert started questioning Biko about the pamphlet and his trip to Cape Town and the fact that he had breached his banning order. Biko became rebellious and aggressive. He refused to answer questions put to him and instead of answering, seated himself on a chair. Siebert shouted at him and told him to remain in a standing position which he initially did but sat down again. He says Siebert then took Biko by his clothes and pulled him "upright very quickly". In the process Biko attempted to punch at Siebert but missed him and "when Biko pushed the chair very quickly in the direction of Captain Siebert, Mr Beneke entered through the door". He ran in and shouldered Biko and pushed him towards the wall. Biko stumbled or staggered backwards. Beneke's shouldering hit Biko "roughly below the ribs".
When Snyman was asked whether the shouldering caused Biko to make any contact with the wall his answer was "that might be possible". He says at that stage Marx and Nieuwoudt joined in to assist to shackle and handcuff Biko again. During all that time Biko was resistant and was fighting against the Applicants. He says "people were punching at each other" and it was such a "violent struggle" that it was not possible for him to see clearly whose blows were landing on who, or determine if all the blows hit the intended target. The Applicants, still attempting to control Biko and handcuff him, pushed him towards the northern end of the office. He says because Biko was on the side of the room his head hit the wall, so hard that he was stunned and disorientated. It was then possible to handcuff and shackle him, with both hands and feet tightly fastened to the metal grille in the passage. By then Biko was speaking in a slurred manner and they could not hear what he was saying.
In our view it is clear that Biko had at that stage already sustained severe brain injuries and was certainly in need of medical attention. Snyman says he saw an injury on Biko's body and his lip was bleeding, but in his affidavit he says he was not sure if he was indeed injured and thought perhaps Biko was shamming to avoid further questioning. He went to report to Goosen what had happened. He told Goosen that Biko might have injured himself when his head bumped against the wall. Goosen came to see Biko and tried to speak with him. Biko did not respond. He was still in the shackled position and Goosen said he should be kept in that position until the next morning and that interrogation should be suspended. From then onwards Goosen took command of the situation. Snyman instructed his team members to keep a careful watch of Biko and if he improved they would continue with the interrogation. He obtained no report on that day and on the 7th September 1997 he was told by other members that the condition of Biko had not changed.
He says after giving a report to Goosen on the 6th September 1977 he did not see Biko again that day. He went back to his office which was on a different floor. He has no personal knowledge of when the doctor was in fact called by Goosen, but he later became aware that Biko had been visited by Dr. Lang, the district surgeon. He also heard that in the evening of the 8th September 1977, Biko was removed to North End Prison in Port Elizabeth. He never visited Biko there. He says on the 8th September 1977 he was instructed by Goosen to go to Baaken Street Police Station and make a late entry about the incident and injuries. A copy of the entry is now Exhibit "C". Its contents are worth citing in full and are as follows:
"Entry number 633 at 10.44. Injury. Article 6(a) detainee. Major Snyman reports that on 7/9/77 at about 07:00 he and Siebert and Beneke at the Security Offices in Sanlam offices interrogated Steven Bantu Biko. The detainee was extremely arrogant, went beserk, took one of the chairs in the office and threw it at Snyman. With his fists he then stormed at other members and then other members overwhelmed him. After a violent struggle, he fell with his head against the wall and with his body on the floor and in this process he received injuries on the lip and body. Warrant Officer Beneke received an elbow injury and nonetheless did not go off duty. The district surgeon was informed and visited the detainee."
Snyman's signature appears at the foot of the page. There are corrections to the document and changes have been effected to the words "injury" and "duty". He says the handwriting is not his own and he does not know who made the changes in the entry. No incident book was kept at the Security Branch offices and whenever an incident report had to be made, it would be done at a complaints desk in a normal police station. Snyman admits that the entry contains a number of inaccuracies which he says are the following:
1. The date and the time of the occurrence of the incident are incorrect. This was done on instruction from Goosen which he (Snyman) questioned, but accepted after Goosen insisted. The incident occurred on the 6th September 1997 between 9.00 a.m. not on the 7th September 1997 at 7.00 a.m. He believes that this might have been done because the doctor was only called in on the 8th to examine Biko;
2. The report that Biko picked up a chair and threw it at him is incorrect. The chair was pushed towards Siebert;
3. The impression that the district surgeon was called on the same day of the incident is incorrect. He was only called two days later on the 8th.
He says these are the only inaccuracies. We reserve our comments at this stage pertaining to this entry, Exhibit "C". On the Saturday following the death of Biko, Goosen called a meeting of all the members that were involved. This included the night squad members who also watched Biko. At the meeting Goosen said the death of Biko was a great embarrassment to the Security Branch and the image of the South African government, and could possibly lead to loss of foreign investments. At this meeting everyone was given instructions not to state the true facts about what exactly had happened. Goosen personally took the written statements and directed the process. Snyman says he believed that this deception was necessary for the survival of the political system in South Africa and the interests of the Security Police. No copies of the said statements were placed before the Commission, but these were to the same effect as Exhibit "C". The statements were signed and sworn to under oath as if their contents were the truth. When General Kleynhans, the then Chief Detective of South Africa, came to take statements from all those who were involved, they all continued with the lie as it had been discussed at the meeting and deposed to in the statements.
Snyman repeatedly states that he told all these lies to Kleynhans and at the inquest Court because he was following Goosen's instructions. But very amazingly, he says the only lie he was told to insert in the entry book was in regard to the date of the incident. He testified as follows:
"MR BOOYENS : Did Goosen exactly tell you what to write into the occurrence book entry or what was the situation?"
MR SNYMAN : No your Honour, he only told me that I had to enter that the incident occurred on the 7th. For the rest I entered what I observed."
Snyman, just like the rest of his co-applicants, says that in spite of the manner in which Biko was treated, including suspending him in a chained and standing position against the barred metal gate and the fact that medical assistance was only sought at a much later stage, it was not their intention that he should eventually die. he categorically states that it was necessary to interrogate Biko and obtain information from him in order to bring criminal charges against him. He says it was their view that Biko's intentions were to subvert the status quo and if the security police did not act against him further anarchy would have been the result. He denies that he has applied for amnesty on inducement by Nieuwoudt. This should be viewed in the light of Marx's later testimony that he was persuaded by Nieuwoudt to apply for amnesty and frankly speaking, did not even see the need to do so because he did not do anything wrong to Biko. Snyman says he never saw anyone assaulting Biko and does not associate himself with any unlawful act that may be described as an assault in relation to the treatment of Biko. When an apparent contradiction was pointed out to him that in his founding affidavit he says there was an assault during the scuffle, Snyman replied that he was referring to what had happened during the scuffle when punches were thrown by members of the team to restrain Biko, but he still cannot say whether such punches did land on Biko. He is aware that at the police station both Biko and Jones were under the supervision of the Station Commander and were kept naked all the time they were there, in terms of orders from the Security Police Headquarters. There was nothing he could do to change such instructions.
He never saw the injury on Biko's left eye, otherwise he would have noted it in the entry book. However, he heard during the inquest proceedings that it had been noted by prison warders. Under cross-examination it was drawn to his attention that in his affidavit Beneke also says he noticed a bruise over Biko's left eye and his lip had some blood and it was also slightly swollen. He could not explain why his colleague saw this particular injury and not he. He could only say that he was acting under pressure from Goosen to conceal the truth. He also could not explain why he had not mentioned at the inquest that Biko hit his head against the wall. Snyman further admitted that he was particularly inventive and told the inquest Court that after Biko was confronted with certain information and affidavits, he admitted taking part in terrorist activities. Mr Bizos, who appeared on behalf of the Biko family, put it to Snyman that the affidavits which were produced at the inquest and which ostensibly formed the basis of what was put to Biko were in fact signed on a date after Biko had died. He replied that that was part of the false story and denied that such statements were obtained from detainees by smashing them up. This apparent discrepancy was later explained by Siebert who said, what was put to Biko were the hand written notes of Jones and Titi and not the typed post-dated affidavits which were prepared after the death of Biko. But the question still remains what would have been the point of preparing the affidavits at that stage as Biko had already died.
Snyman says that he never saw a piece of hosepipe in the room 619 and had not participated in the interrogation of Jones which took place in the same room. He does not know if a hosepipe was used on Jones. he suggested that it was possible that a hosepipe had been used to restrain Biko but he did not see it. He, however, thinks that it may have been irregular to use the hosepipe which was possibly a form of punishment rather than an act of restraint. We could mention that Nieuwoudt has applied for amnesty for assaulting Biko with a hosepipe during the scuffle and Siebert says he saw Nieuwoudt beating Biko with it on several occasions. It is impossible to understand how Snyman would not have seen this part of the scuffle because he says he was continuously present from the moment Biko was brought into room 619 to the moment when he was tied up on the grille with handcuffs and leg irons. Significantly, he also says he knows that a slurred speech and inability to move on the part of the injured person is clear evidence of brain injuries and therefore constitute a cause for urgent medical attention. He exculpates himself by saying this was Goosen's and not his business. He did not see Dr Lang when the latter came to see Biko on the 8th. When Dr Lang said there was nothing wrong with Biko he never doubted that opinion, yet he still accepted the report that Biko was physically not in a condition to be interrogated. he also made no enquiries from Goosen about what Lang had said. He agrees with the proposition that Goosen and Lang had conspired to lie about Biko’s condition to protect the police in the event of a subsequent civil action by Biko. He does not know why Biko was not taken to a normal hospital and thinks it must have been the decision of Goosen to send Biko to a prison hospital. He does not recall details of reports from prison officials that Biko could not handle a spoon, had been found in a bath with his clothes on and had the tendency to simply repeat the words used by others when they speak to him.
This evidence clearly demonstrates that the condition of Biko was not at all a matter of concern to Snyman. He says he was not involved in making arrangements to transport Biko to Pretoria and only heard about it on the day when Biko left. he says he did not even see Biko when he left. It was brought to his attention that at the inquest he had said in his affidavit that he was present on the 11th September 1977 when his colleagues went with Biko from Walmer Police Station to Pretoria. His answer was that it might be true, but the incident happened a long time ago and he should not be expected to recall all the details. When asked to comment on the condition of Biko at the time, he reverted to his original statement that he did not see Biko that day. When asked for what reason he could have said he saw Biko on the day of his departure if this was not in fact true, he conceded that he was unable to offer an explanation. He did not see Biko hyperventilating and has no knowledge of him having been on hunger strike. he does not know why Biko in his condition was made to travel 1200 kilometres lying at the back of the vehicle and not taken to one of the local hospitals. At this stage of his evidence he repeatedly said he had nothing to do with the matter after Goosen had taken over. He stuck so tenaciously to this position that the Chairman had to ask Mr Bizos to leave the matter for argument.
We find Snyman's apparent extreme disinterest in the condition of Biko very striking. This is particularly so in view of the fact that he was leading a team investigating a very serious matter, which investigation had now been suspended due to Biko's condition. There was simply no desire on his part to ascertain when Biko would possibly be ready for the continuation of what was clearly an important interrogation. He does not even know how it came to his knowledge that Biko had died. He guesses that he might have seen it in the newspaper or in telex message or learnt of it in a telephone call from security headquarters. He thinks Mr Jimmy Kruger was the Minister of Police at that time but does not recall the statement by Kruger that Biko had died as a result of a hunger strike. He claims that he has never made any contact with Kruger and things the information might have been conveyed to Kruger by Goosen.
DANIEL PETRUS SIEBERT
The tenor of his testimony relating to the general background largely coincides with the testimony of Snyman. He testified that during the many years he was a member of the security police, there was never a policy that detainees should be assaulted. However, assaults did occur in the interest of State security. Frequently the authorities never took action against the police involved. He says although police regulations provided that detainees should be given adequate time to sleep, on of the methods of interrogation was to deep detainees awake for prolonged periods to break them. In general the said regulations were blatantly ignored in security matters. He says Goosen was a very strong leader who rigorously enforced discipline amongst his subordinates. Failure to carry out an order could even lead to loss of employment in the force. During his service on the borders he witnessed many situations where civilians had been robbed, kidnapped, murdered or mutilated by members of liberation movements. In some of the incidents members of the security forces were also seriously injured and mutilated. He says:
"These experiences created in me a very deep horror of the so-called freedom fighters and persons who pretended that they were fighting against an unjust government system. At the same time I was of the opinion that the situation required of us that I would be the first to act, otherwise I would experience the same fate."
This attitude which weighed heavily with him clearly draws no distinction between armed combatants and untrained civilians who were simply opposed to Apartheid. In his view the involvement of the South African security forces in foreign territories in Southern Africa were necessary to maintain white rule, a system which he supported and in which he believed. When the political unrest broke out in June 1976 he was still in Ovamboland, Namibia and returned in August of the same year. He knew Biko as a very influential leader who wanted "to combat the Apartheid police, ...White people, White power, White domination" and if this was not resisted the entire white population would be affected and there would be anarchy and poverty in the country. He says South Africa would have been in the same state as other independent African States where Blacks had come to power. he further believed that he would be personally affected as well by such developments and would not be able to live his "own way of life". As far as he was concerned this was an "undeclared war" and the status quo had to be maintained "at all costs". His views made him feel very much at home in the security establishment where these perceptions were frequently expressed. he had known the former State Presidents, C.R. Swart and J.B. Vorster, quite well. He had once acted as a bodyguard to Vorster and discussed political matters with him. In these discussions Vorster impressed on him that the survival of the white government depended on "strict security".
He says he had to be involved in the interrogation of Biko because he had already questioned Jones who implicated Biko in his own statement, Exhibit H, wherein he stated that he had overheard a conversation between Titi and Biko about possible ways and means of producing the pamphlet in question. Before the commencement of the questioning that morning the team was briefed by Goosen to the effect that during previous detentions in Natal and King William's Town, Biko had refused to co-operate. He would simply ignore his interrogators and at King William's Town he had assaulted a certain police officer, Mr Hattingh with the fist. The beating was so severe that Hattingh lost his teeth. Siebert says after Snyman had introduced the team to Biko, the latter "without any invitation slammed himself down on a chair". He told Biko to get up since the general principle was that the interrogator had to maintain control. Biko stood up and was then told by Siebert what the questioning was going to be about. Initially Biko gave very little response and stuck to the version that he had gone to Cape Town because he had marital problems. They told Biko that that was not true and confronted him with the fact that he had gone to Cape Town to see Neville Alexander of the Non-European Unity Movement, a political movement that was mainly supported by Coloured people in the Western Cape at the time. Biko then realised that they had information about him. Siebert could see that Biko was now becoming "disturbed, concerned and shocked". He told Biko what the police knew about the pamphlet and this increased Biko's concern. Biko was now silent. They showed Biko the statement by Jones. This made Biko visibly "very upset and in fact (he) became angry". Biko again slammed himself down on the chair.
Siebert then testified as follows:
"I lost my temper at him. I went towards him. I grabbed his clothes, his shirt, I pulled him up by these clothes and when I approached him I could see that he was already rising, partly rising".
He says Biko was too heavy and large for him to lift. Biko stood up. At that stage the chair was partly to the right side of Biko who took the chair and pushed it away from himself, partly towards Siebert and to where Snyman was standing. he indicated that the chair was slightly lifted up. Using his hands he then prevented the chair from falling on his legs. He saw a movement above his head, blocked with his hand and pushed Biko away. he thinks Biko attempted to slap or punch him. They did not exchange any serious blows because the room was too small and they were too close to each other.
He confirms the evidence that Beneke "stormed into the middle of his (Biko's) body" with his shoulder, probably to punch Biko away from himself. He says at that stage it was clear to him that Biko was "becoming rebellious". Punches were again exchanged after Beneke had joined in but they had "no real impact". Nieuwoudt joined with the hosepipe and administered several blows to Biko which helped because Biko's attention was diverted away from himself and Beneke. This enabled them to grab Biko by his body and arms and in the process they bumped against the table which was in the middle of the floor. When they were about a metre or two away from the wall their "momentum then caused (us) to move in the direction of the wall". This was himself, Biko, Beneke and Nieuwoudt. He proceeded:
"We fell over one another's feet and in this process we hit the wall with Biko, ...who then fell against the wall and we fell on top of him and against him".
This version differs from the explanation given in his founding affidavit where he states:
"...All three of us then took hold of Biko and moved with him in the direction of the corner of the office and ran into the wall with him."
Biko was now "unconscious" and "disorientated" and his eyes looked "confused". The three of them stood up and Biko was "lying on his side with his back and shoulders lying against the wall." they waited to see what was his condition and when they suspected that Biko was regaining consciousness he ordered Nieuwoudt to handcuff Biko. Approximately five minutes later Biko appeared to be well orientated. Siebert ordered Nieuwoudt to chain Biko to the security gate in a standing position. Biko could not speak and "had completely switched off and was no longer at all willing to co-operate". When Goosen came Siebert went back to his office and Biko was left in the "care" of Nieuwoudt.
Siebert says he was present on the 8th at approximately 20H30 when Biko was transported by two black officers to North End Prison. Goosen had directed that this be done in the evening to avoid attracting public attention to the vehicle carrying Biko. He was chained and walking slowly between the two black members. It is not clear for what reason but Siebert drove in a different vehicle and when they all arrived at the prison he opened the door and "assisted him (Biko) by the elbow". Biko got out of the car and again walked slowly between the two members. Siebert only went as far as the reception area and did not accompany Biko and the two officers to the cells. It is again not explained for what reason Siebert had to go to the prison because he says Goosen was also there and dealt with the prison authorities and there were two black officers involved. Then in the morning of the 11th, on a Sunday, he received a telephone call from Goosen who told him that Biko was going to be discharged from prison. He had to arrange for Biko to be fetched, which he did at about 10H00 with Nieuwoudt and Sergeant Wilken. Biko's condition had deteriorated considerably. He could not speak and was mumbling. They assisted him to walk to the police vehicle and brought him back to Walmer Police Station. In the afternoon of the same day he was again telephoned by Goosen who told him that he should be on stand-by as he was making arrangements to secure an aircraft to fly Biko to the Pretoria Central Prison Hospital. He said if he failed to get an aircraft he would have to transport Biko with a vehicle.
Late that particular afternoon and whilst Siebert was at the police station he noticed foam on Biko's mouth. He asked Dr Tucker, who had come to see Biko, what was wrong with Biko. Dr Tucker said he did not know. He also gathered from their conversation that Dr Tucker was aware that Biko was to be taken to Pretoria with a Land Rover and Dr Tucker seemed to be happy with the idea. By then Goosen had already advised him that he had failed to get an aircraft and that the Land Rover was the only vehicle available. When he left for Pretoria in the evening he was accompanied by Nieuwoudt, Wilken and Fouche. They arrived there the next day at about 09H00. Before their departure he had asked his colleagues to prepare the vehicle and put Biko therein since he had to attend to a few personal matters, including buying food for the road. When they stopped on the way, just outside Port Elizabeth, he looked at the back. He noticed that Biko's right leg was open and naked. He was wearing underpants. When he enquired, his colleagues said that it was very difficult to dress Biko because he was "stiff and clumsy". He then realised that it was going to be difficult to dress Biko at the back of the vehicle where he was lying on cell mats, blankets and a pillow. He says Biko was fully covered but accepted that this was "inhumane". Biko was quiet all the way and was breathing deeply. In Pretoria they were met by Colonel Dorfling whom he advised that Biko had been attended to by a number of medical doctors and a specialist, after he had "fallen in an incident". He had been told by Goosen to tell the prison authorities that, previously when Biko was detained he performed yoga and pretended that he was not well. This he accordingly conveyed. He also told them that Biko was a very prominent leader in the BPC. Before he left he impressed on them that they should contact Dr Tucker immediately as he was waiting for their call.
In concluding his evidence he says the next day he heard that Biko had died. He then goes on to talk about the meeting of all members of the team and his evidence coincides with the testimony of Snyman. He dies having personally caused the death of Biko and claims that it was as a result of the incident. He does, however, hold himself responsible because he took part in the scuffle. When asked what he is referring to in his application where he applies for assault on Biko, he says it is the fact that medical attention was delayed and not arranged immediately after the scuffle and the fact that he ordered Biko to be chained and handcuffed. He is unable to say that he caused on or more of the injuries that were identified to have caused Biko's death and says it could have been anyone of his colleagues. He claims that he did not see the mark on Biko's forehead which was still visible at the time of the post-mortem.
RUBIN MARX
He is 75 years of age and saw no need to apply for amnesty. He had only done so on instructions from Nieuwoudt. He left the office to fetch a file when the argument started about sitting on a chair and only returned right at the end of the scuffle when his colleagues were trying to handcuff Biko. He is critical of the manner in which Siebert started in the interrogation by refusing Biko a chair to sit on. On his way back he heard Siebert shouting and he opened the door to see what was happening. He felt duty bound as an officer to assist his colleagues and grabbed hold of Biko around the waist. They all collapsed, with Biko lying on his stomach. Snyman was also there but did not take part in the incident. He saw Nieuwoudt hitting Biko with a hosepipe but it happened so quickly that he cannot say how many times.
After a while Biko was picked up by Nieuwoudt and Beneke. Biko was a little stunned and wiped his eyes as if he did not know where he was. At that stage he was leaning against the wall. Clearly not associating himself with the action of his colleagues, he expressed himself as follows:
"I did not do anything. They handcuffed him and that is when I thought, let me rather leave. I did not like the idea of him being handcuffed to the metal grille and that was the last of it. I went to Colonel Goosen, I said 'please excuse me' and he said to me 'carry on with your normal duties', and that was my only involvement with the deceased, Bantu Biko."
Marx says he never assaulted Biko and the duration of his participation in the scuffle was two or three seconds. When he fell with Biko he did not do so on purpose but simply to restrain him. Anyway he had known Biko from a previous encounter in 1974 and Biko had struck him as a "quiet, co-operative, courteous and civilised" man. He criticised Siebert for not having created a "good" atmosphere as a starting point. He says "I will not say that one would have won his trust, but at least one would have had mutual respect for one another".
JACOBUS JOHANNES OOSTHUIZEN BENEKE
He was aware of the rumour that Biko had previously assaulted a member of the security police. He says he was not involved in the interrogation of Biko and Jones. He was in his adjoining office when he heard "loud talking" from room 619. He went there to ascertain what was happening and the following is what he witnessed:
"I noticed at some point that Mr Biko threw a chair forward and that he tried to throw a punch at Captain Siebert. I moved forward very quickly and I grabbed Mr Biko's right arm with which he was performing this swinging motion or movement and I punched him on his shoulder with my shoulder".
They both fell to the northern wall, the wall furthest away from the door. His testimony proceeded as follows:
"I also tried to grab hold of his left arm. Other members who were in the office at that stage, also arrived at the scene. Several punches were punched. Sergeant Nieuwoudt had a hose pipe and he hit Biko on the back. I was also hit twice and in the process of the struggle that took place, we landed up on the floor. Mr Biko was restrained and he was picked up from me and was sitting with his back partly against this particular wall".
When asked who were involved with him in the scuffle he said it was Siebert, Snyman, Marx and Nieuwoudt. As a result of the scuffle with Biko his (Beneke's) clothes were torn and he also sustained an injury on his left elbow. Biko who was now dazed was pulled up by himself, Siebert and Nieuwoudt and taken towards the metal grille where he was cuffed to the bars with handcuffs on each wrist. He was leaning back with his back against the grille and his arms were outstretched to both sides of his body. He could not speak and his mouth was bloody. He had a mark above the left eye. Beneke says he cannot explain the injury on the mouth but goes on to say that:
"After we collided with the wall, Mr Biko fell forward and banged his head against the corner of a table".
This is new evidence as none of his co-applicants mentioned anything about Biko's head banging against a table.
Beneke explains that his only reason for getting involved with Biko was to prevent him from assaulting or attacking Siebert. In this regard it was put to him that his other colleagues were present and would have intervened if it was necessary to do so. He says he did not assault Biko, save for hitting him with the shoulder. He never punched Biko. He further explains that the only time they rammed into the wall with Biko was after he shoulder butted Biko whereafter they fell forward but did not land up against the wall. Beneke indicated that he only applied for amnesty because a court could possibly hold that he assaulted Biko, although at that stage he believed that he was not committing any wrong.
After the scuffle he went home to change his ragged clothes and when he returned he was instructed by Siebert to guard Biko with Nieuwoudt. Seeing that Biko was "standing there with open, staring eyes (seemingly) not entirely aware of what was going on around him", he immediately requested Nieuwoudt who was junior to him to arrange for medical treatment. He does not recall who Nieuwoudt went and spoke with regarding this instruction but when Nieuwoudt returned they unfastened Biko from the grille. He was then put down on a mat on the floor. Biko was still fully clothed as he had arrived there that morning. There was no more blood on his mouth but he does not know who wiped it. He denies having interrogated and assaulted Jones and says he has never seen Jones before. He only saw Jones for the first time when the amnesty hearing commenced. It should be pointed out that Jones testified that he was continuously interrogated and assaulted for several days and nights in room 619 which was next to Beneke's office. As far as Beneke is concerned, the death of Biko in the circumstances was just an unfortunate incident which should never have happened.
He had heard later that Biko had been visited by doctors but at that stage he was busy with other matters. He confirms the other evidence regarding the meeting that was called by Goosen after Biko had died. He abided by Goosen's order and falsely testified at the inquest. Under cross-examination he said it was necessary to handcuff and manacle Biko in order to restrain him, although he was semi-conscious, as the possibility was there that he could have regained consciousness and become aggressive again. He admits that they possibly overreacted by cuffing Biko against the grille. He further concedes that his reaction at the scene was influenced by his knowledge of the rumour that Biko had once assaulted Hattingh. He also says he had no political objective whatsoever and only acted to protect Siebert.
In his application Beneke says that he was a spectator when Biko was being questioned and specifically says Biko was refractory, contemptuous and aggressive. However, at the hearing he testified that he did not personally observe this particular stage of the altercation. He says he was simply drawing an inference because Siebert would never have been so agitated if Biko had co-operated. He denies Jones' testimony of the existence of two hosepipes in room 619, the green one called "Green Power" and the black one called "Black Power". He says there was only one hosepipe there and it was used by Mr Coetzee to syphon fuel from an extra canister which was always carried around in the Land Rover police vehicle. He could not explain why on that particular day a hosepipe was lying in the interrogation room and not kept in the vehicle. He says he only saw the hosepipe at the end of the scuffle but had felt the pains when Nieuwoudt had mistakenly hit him on the back.
THE EVIDENCE OF PETER JONES
We now turn to the question of the weight to be attached to the evidence of Mr Peter Jones which was introduced to establish a system of maltreatment of Biko and Jones by the security police interrogation team. In this regard it is important to note that although Jones was generally a credible witness who successfully withstood a very rigorous cross-examination, he is a single witness and the cautionary evidentiary rule should be borne in mind. Moreover, after they were separated on the 27th August 1977, Jones never saw Biko again. After that day he did not witness any treatment of Biko by anyone of the Applicants and, above all, he was not there at the time of the alleged scuffle. In our view, it is not necessary for purposes of this decision to embark upon a detailed analysis of the relevance and weight of the evidence of Jones.
Suffice to say that we have no hesitation in accepting the evidence of Jones relating to his own experiences at the hands of the security police above any denials on the part of the Applicants.
CONCLUSION
There can be no doubt that the death of Biko resulted from head injuries sustained on the 6th September 1977 when his head collided with an object in room 619, Sanlam Centre, Port Elizabeth. This much appeared to have been common cause at the hearing. All this happened during a confrontation between Biko and his interrogators which included the Applicants.
In our view this application can be decided simply on the version of the Applicants who must satisfy the Committee that their applications comply with the requirements of the Act. On this version Biko's head was accidentally knocked in an attempt to restrain him after he attacked Siebert. This was the sole objective sought to be achieved by the Applicants. There was clearly no political objective being pursued in restraining Biko. None of the Applicants alleged that they were actuated by a political motive in participating in the scuffle with Biko. The scuffle was, moreover, not directly linked to the wider objective of extracting information or admissions (confirming evidence already in their possession) from Biko with a view to a possible criminal prosecution. This objective is in any event not political in nature but forms part of normal police duties.
The version of the Applicants, moreover, does not disclose any offence or delict as required by the Act. Applicants accepted that they acted lawfully either in defence against an attack by Biko or simply in restraining him.
On the above basis alone, we are not satisfied that the Applicants comply with the requirements of the Act in that the killing of Biko is not an act associated with a political objective.
In any event, we are not satisfied that the Applicants have made a full disclosure as further required by the Act. Applicants' version as to the cause of the scuffle and the manner in which Biko sustained the fatal head injury is so improbable and contrary that it has to be rejected as false. Moreover, none of the Applicants has impressed us as a credible witness. They have clearly conspired to conceal the truth of what led to the tragic death of Biko soon after the incident and have persisted in this attitude before us. This has been exposed in the thorough cross-examination by Mr Bizos. Suffice it to say that in view of the above exposition of their versions, we are not satisfied that the Applicants testified truthfully to the events leading to the injury of Biko. It appears more probable that Biko was attacked after Applicants did not take kindly to his arrogant, recalcitrant and non co-operative attitude particularly exemplified by his occupying a chair without their permission to do so. This attack appears to be actuated by ill-will or spite towards Biko. This view is reinforced by the cruel and inhumane manner in which Biko was treated after he sustained the fatal injury, in particular the manner in which he was shackled to the metal grille and his transportation to Pretoria. There appears to have been no justification at all for Beneke to simply blindly attack Biko. This in all likelihood sparked off a general attack on Biko with most of the policemen present joining in. The attack was possibly also not unrelated to the fact that the Applicants were informed that Biko had beaten up one of their colleagues on an earlier occasion.
It is, however, not necessary for present purposes to finally decide any of these probable explanations for the incident, in view of our finding that Applicants failed to make a full disclosure.
On any account of the incident, we are, moreover, satisfied that the killing of Biko was wholly disproportionate to any possible objective pursued by the Applicants, particularly the stated one of extracting information or admissions from Biko with a view to a possible criminal prosecution.
In the result the applications are
DISMISSED: .
We are of the opinion that the next-of-kin of Biko are victims in relation to his killing and the matter is accordingly referred for consideration in terms of Section 26 of the Act.
(Signed)
H. MALL, J.
D POTGIETER, A.J.
ADV N SANDI
