CHAIRPERSON: Mr Alberts, I gather you had a pleasant trip here this morning?
MR ALBERTS IN ARGUMENT: Mr Chairman, may I at the inception beg your pardon for being late this morning, 24 hours doesn't seem to suffice any more. Mr Chairman, may I then also with your leave, hand up a set of brief Heads of argument which I have prepared regarding this matter.
CHAIRPERSON: (Microphone not on)
MR ALBERTS: As you please Mr Chairman. Thank you Mr Chairman, might I then also be permitted to apologise for the numerous typographical errors contained in the Heads, in all earnestness I didn't even have an opportunity to read them before they were copied, but I think the general import is clear enough.
CHAIRPERSON: I think speaking for myself, I am extremely impressed by the fact that you were able to produce Heads of this nature in the time available to you, and we thank you for them.
MR ALBERTS: Mr Chairman, in view of the section dealing with the facts, I won't touch on those again, I think those are fairly clear at this stage, to say the least. In so far as the requirements concerning the granting of amnesty are concerned, it is my submission that those have been satisfied by the application and the evidence placed before you in respect of Mr Goosen. I will accordingly ask for amnesty to be granted in respect of the offences and delicts stipulated in the schedule to the Heads. Might I just be permitted to place those on record now. Firstly, the murder of Walter Ledwaba, all these offences occurred at the same place and date, so I won't repeat that in each instance; then the attempted murder of Julian Selepe and as an alternative to that, assault with the intent to cause grievous bodily harm; also the attempted murder of all the other occupants which are known to have been in the house that evening. The applicants accept the factual allegations made on behalf of these interested persons or victims and all those people are also included in respect of attempted murder, also as an alternative, assault; then malicious injury to property, the concerned property at that erf; also arson. In Goosen's evidence a fire was disclosed albeit rather obliquely by way of the affidavit which he subsequently completed, but nevertheless ...
JUDGE PILLAY: Was there at least a scorch on the property?
MR ALBERTS: Mr Chairman, if I recall correctly, he stated that certain tests couldn't be conducted because of the fact that water had been used to obviously, to quell the fire. I think curtains in the room caught alight as a result of the blast, if my recollection serves me properly.
JUDGE PILLAY: Didn't he also say that the one wall was scorched from which he took a specimen, not properly though?
MR ALBERTS: Mr Chairman, that might be so. Honestly I don't recall that, but in all probability you are correct?
JUDGE PILLAY: The probabilities favour us.
MR ALBERTS: As you please Mr Chairman. Then there can be no doubt Mr Chairman, that Mr Goosen did disclose sufficient evidence to place him at jeopardy in so far as a charge of defeating the ends of justice is concerned. That all relates to his subsequent sweeping operation, if I may term it that in broad terms.
JUDGE PILLAY: Mr Alberts, you don't have to delve on one issue, one issue that concerned me yesterday perhaps I come to terms with it, his association with the group although he did nothing physical, did contribute at least to the extent that it increased the manpower of the group and in so doing, certainly he is visited with liability?
MR ALBERTS: I fully agree Mr Chairman. In my submission, there is on Goosen's own version, there is more than enough room to most probably find a common purpose between the three and that is clear, also on the evidence in its totality. On that score, I submit that he is entitled to amnesty in respect of all these offences, obviously subject to him satisfying the other requirements of the Act. Then the other offences are more technical offences.
CHAIRPERSON: Before you go on, shouldn't 6 be attempting to defeat the ends of justice, rather than defeating it?
MR ALBERTS: Well, Mr Chairman ...
CHAIRPERSON: What he did, was put forward misleading evidence. He hoped they would believe it. He was attempting to, we don't know whether the experts said I can't use this, I am going to go and take a sample myself.
MR ALBERTS: Well, he was an expert Mr Chairman.
CHAIRPERSON: He was merely the person on the scene, it was sent to the Forensic Examiner who examined the samples.
CHAIRPERSON: Who may have taken another sample, we don't know. It is perhaps being highly technical, but it seems that what he did was he attempted to mislead them. Whether he managed to succeed at it, we don't know.
MR ALBERTS: Well, unfortunately there was no evidence as to what the sequel was eventually.
CHAIRPERSON: No, that is why I say it should just be attempted defeat.
MR ALBERTS: I will settle for that, Mr Chairman.
CHAIRPERSON: I have another query for your last - is there any evidence at all as to that?
MR ALBERTS: Excuse me Mr Chairman, what are you referring to?
CHAIRPERSON: Illegal possession of a firearm.
MR ALBERTS: Well, once again he was an accomplice at least to ...
CHAIRPERSON: Who says it was illegal? A Policeman is issued with a firearm to carry out an operation.
MR ALBERTS: To the best of my knowledge Mr Chairman, not an AK47.
MR ALBERTS: One can licence them, there is no doubt about that.
CHAIRPERSON: Yes. And he was issued, the evidence as I understand it was that he would have been issued with it by the Lieutenant or the Captain?
MR ALBERTS: That unfortunately doesn't make it legal if no licence exists in respect of that firearm.
CHAIRPERSON: One knows that Policemen were authorised to use weapons.
JUDGE PILLAY: He may not have had the intention to possess it unlawfully. Do you follow and you need intention?
MR ALBERTS: I understand that fully Mr Chairman, but without placing too fine a point on it, that might be a bit of a nicety in his circumstances, I don't know whether any of these applicants can be heard ever to say they didn't have the intention to possess that firearm. They required ...
CHAIRPERSON: No, the person who can possess it, can say I knew it was illegal, but in this case, we have the unfortunate position that the persons concerned can't remember anything. They can't say anything about it.
MR ALBERTS: Which unfortunately Mr Chairman, has a result of leaving my client, the applicant, theoretically at least, at jeopardy. These offences are only included through motivations most probably of over-caution, but whilst one is busy with this exercise Mr Chairman, tactically in my view, it is prudent to go the full hog as it were. What I can point out Mr Chairman, and I gave you an undertaking last week which I must confess I didn't stick to, but this morning I did have a look at the Explosives Act and I once again considered all these Sections which everyone seems to be including in their applications as a matter of course. Mr Chairman, I will ask you - this was typed off - just taken off a former precedent.
CHAIRPERSON: While you are on this subject, let me ask you something else, what would you think if an order were made, granting amnesty in respect of contraventions of the Explosives Act, committed at the time of their commission of this act?
MR ALBERTS: That would obviously suffice Mr Chairman, but I had a look at the specific Section and in my view, the Sections in respect of which jeopardy exists, are the following
JUDGE PILLAY: Wouldn't what has been suggested, cover everything?
MR ALBERTS: They certainly would Mr Chairman, I merely point this out to you because I gave you an undertaking last week to have a look at this Act and to reconsider. Even if at this stage, it is only as a matter of interest, I mention that in my submission the applicable Sections - and I restrict that submission to this case - would be 5, 6, 9, 27 and 28. The rest mentioned in the list, are in my submission not appropriate. But Mr Chairman, I fully agree that the preferable order would be the one foreshadowed by yourself under these circumstances. Those are the submissions I have to make to you, unless there is anything else that you would require to hear me on at this stage.
JUDGE PILLAY: Mr Alberts, I just want to clear something up in my mind when one thinks and speaks about all these things. As I understand the case, the actual reason for wanting to commit this act or this offence, was that Mr Selepe was regarded to be a orchestrator ...
CHAIRPERSON: Not Selepe, Ledwaba.
JUDGE PILLAY: Sorry, Ledwaba, was regarded to be the orchestrator of a plan to harness support at a funeral and create some sort of an army for want of a better word, to attack Policemen and their houses and property, etc. Whoever hatched this plan, thought that by taking him out of the plan, it would at least minimise the risk of an attack on Policemen by this group who would have gathered soon after the funeral. Have I got it right so far?
MR ALBERTS: I agree with that summation.
JUDGE PILLAY: A bomb is then thrown into this house, what worries me is was that the only thing that could have been done, given the ultimate intention to take Mey Ledwaba out of a position where he could manipulate an army? It just concerns me because the Act gives us a guide as to how to approach this problem. The question is was that proportional in the circumstances or was there an alternative, objectively speaking, to get the same result and take him out of the system without having to throw that bomb into that house?
MR ALBERTS: Mr Chairman, might I submit the following in this regard - firstly, I think the immediate objective was to avert harm to the black Policemen, however, I would submit that the objective viewed in its totality went a bit wider than that. It is clear in my submission, from the evidence and this was never disputed either, when the opportunity arose, that Mey Ledwaba was, to put it in lay man's terms, an old hand. There is no doubt that the evidence discloses that he was a skilled and active member of MK and for several years before this incident occurred in fact. So, having regard to that fact, clearly the objective, it would be a prize of sorts in any event, just to get at him as a person, then besides that, Captain Hechter's testimony was quite clear that whether these threatening attacks on Police were ultimately stopped or not by the use of this explosion, the general thrust of this type of action was in any event aimed at intimidation of the victim and obviously of any one associated with him.
JUDGE PILLAY: The intimidation was directed at the community in general?
MR ALBERTS: Ultimately yes, ultimately yes. This sort of conduct, one can expect to have a broad intimidatory effect.
JUDGE PILLAY: I have a problem with that submission of his, that bit of evidence on more than one leg. Firstly, I must say that I got the impression it was an opportunistic answer to a question that was rather awkward to him, that was the first time in this hearing that the aspect of intimidating the broad community, came up. Secondly, it is strange then that if it is true that these acts of terror were performed with the purposes of intimidating the broad community of that area, that it wasn't done more often and indiscriminately. Why would it always be at someone who is involved with the struggle as it were, and the place where he stays when the intention was not really to intimidate him, but intimidate the broad community?
MR ALBERTS: Mr Chairman, let me commence at the beginning, it might be the first time in these hearings that this broader effect of the intimidation has been specifically mentioned, but with ...
JUDGE PILLAY: I am talking about this hearing only, I have come across it in argument before.
MR ALBERTS: Yes, with all due respect, that argument has been broadly canvassed on previous occasions and in so far as it might be suggested that it was opportunistically seized on yesterday, that perhaps is a bit harsh on Captain Hechter. If one merely has regard to his application in itself, the original application, one will undoubtedly see that much is made of this aspect in its totality. It is dealt with reasonably comprehensively. In so far as the second leg of the enquiry is concerned, whilst it might be a broad purpose to intimidate the community at large, it in my submission is physically impossible to do so unless it is done on an absolute indiscriminate basis and that would merely amount to senseless violence. The only way in which the community can I submit, really be effectively intimidated, is by selecting specific targets, who have a high profile and who associated with unrest, violence, acts of terror and the like. It is by making an example of those, it is by making an example of those that this effect spreads through the community as a whole. Really the broad intimidation in my submission, most probably is more correctly described as a secondary corollary of targeting specific people or instances. It is on that basis that I would urge you to accept the evidence of Captain Hechter. That leaves then, excuse me taking the long route Mr Chairman, but that then brings me to the nub of your question initially which is whether there is proportionality, sufficient for purposes of the Act in this instance, and in my submission, yes. Simply on the facts it should be found that the threat extended to the lives and property of several Policemen. That this was a mass sort of action planned, is also clear on the evidence. Now what in effect happened is that one house was targeted, but as must of necessity be concluded, is that there were several potential people there, some of which may be innocent and others which may be guilty, by association at least, and Mr Chairman, on this score might I just add this that it is very easy ex post facto to say that you are totally innocent, but if it is accepted by this Committee that Mey Ledwaba was a relatively high profile activist, then I submit that the experience would show that those around him ...
CHAIRPERSON: An eight year old child, or a 62 year old woman?
MR ALBERTS: Obviously not everyone, Mr Chairman but I mean there weren't only eight year old children or 62 year old women there. Might I refer to the evidence on record in that regard. Mey Ledwaba at the time of this incident, was most probably in his late 20's, the people present there were Julian Selepe, 23 years old, he was also injured; Walter Ledwaba, 18 or 19, Albert Ledwaba was an uncle, we don't know what his age is.
CHAIRPERSON: We were told that Mey Ledwaba was 34, weren't we?
MR ALBERTS: 34 yes, Mr Chairman, our evidence was ...
CHAIRPERSON: The deceased was 19?
MR ALBERTS: That is so. Mrs Elizabeth Ledwaba is a 62 year old lady, that you obviously referred to Mr Chairman. William Ledwaba, I may be wrong, but I have no idea what his age is and Michael Ledwaba and then the younger children. But there is a core, a nucleus of persons in my submission, present in that house, who might all have been politically active and associated themselves. The evidence was, well not the evidence, but what was placed on record was that Mey Ledwaba was born in that house and had resided there ever-since, in fact right to his death. These people, on that basis, Mr Chairman, were involved as a matter of probability on a day to day basis with him.
CHAIRPERSON: There was no suggestion of that in the evidence. The evidence was to the contrary, that he was there with a group of young men who were suspected of being activists under his control. Your witness did not once suggest that the family was known to be, did he?
MR ALBERTS: No Mr Chairman, but these facts were placed on record on behalf of the victims.
CHAIRPERSON: But the family lived there? But nothing was placed on record to suggest that they were politically active?
MR ALBERTS: That is so Mr Chairman. My submission I am pitching on the basis that in all probability it would be naive to suppose that Mey Ledwaba was an extremely politically active person in the community at that time, and that no one else around him, not even in his own home, had the faintest interest.
JUDGE PILLAY: Even if they did, so what? If the 62 year old person in that house had a political interest, a political bias, so what?
MR ALBERTS: That fact Mr Chairman, would merely serve to underscore that those persons would be legitimate if one could ever use that term, legitimate targets under the circumstances.
JUDGE PILLAY: Merely because of a political belief?
MR ALBERTS: And association with an enemy of the reigning political party in the country.
JUDGE PILLAY: Association could hardly be defended if he was born in the blood stream of his grandmother who had political bias and political beliefs.
MR ALBERTS: The realities at that time, Mr Chairman, was that that was sufficient. No one is trying to make this good at this stage. All I am trying to say is that there exists - sufficient facts exist to find that this act was under those circumstances - the attainment of the purpose was not so disparate to the result that it can be said that the requirement of proportionality has not been satisfied. In fact the evidence, and Mr Chairman, I am merely mentioning this because I appreciate that in these circumstances, the perception most probably is that absolutely innocent bystanders ended up being the victims of this violent explosion and all I am saying is that having regard to all these facts, that perception must be questioned, a pinch of salt must be added, but the evidence at the end of the day was in any event, was that other activists would in all probability also be present there. That was the information that they had, and that made it a legitimate target.
CHAIRPERSON: Don't you have a great difficulty here Mr Alberts, due to Mr Hechter's complete loss of memory because my recollection of the evidence is that your client said they stopped half a block away from the scene, they walked to the house and that Hechter seemed to know exactly where he was going to, he went down the alleyway on the side of the house to a window there, and threw the bomb into that window, which would appear to indicate, taking that on its own, that there was a selected target, that somebody was expected to be there, that it wasn't a random bombing of a house with lots of people in. That Hechter for some reason or another, had selected a target, and your client obviously as I understood his evidence, believed that Hechter knew precisely what he was doing. But now you can't get such evidence because of the failure, so you can argue, can't you on that, that it wasn't a completely random bombing, that there was an appreciation that other people may have been injured, we have heard that that was quite clear, but that the intention was still aimed at Mey Ledwaba, that the attack had been aimed at him.
MR ALBERTS: Mr Chairman, that is the most obvious inference to be drawn from that inference. That being so ...
CHAIRPERSON: We now have the position, can one say we wanted him, if we had to kill some innocent persons to get him, that as part of the war?
MR ALBERTS: That must have of necessity have been foreseen Mr Chairman, I mean there is no doubt whatsoever that Mey Ledwaba, once again if you will excuse the phrase, was first prize, no doubt, and anyone else associated with him, if they were activists, would most probably be second prize. Over and above that, if innocent people due to the association, even it be on a familiar level, had to suffer, then so be it, that consequence was foreseen. But that Mr Chairman, doesn't mean that the applicants aren't entitled to amnesty, with respect. What was at threat when numerous lives and property, what was targeted, was possibly numerous lives and one property and with respect, under those circumstances, it is my submission it is dubious as to whether one in a war situation, what proportionality entails. But leaving that aside for a moment, in my view, that requirement has been satisfied Mr Chairman, on the basis of those facts. A bomb unfortunately Mr Chairman, is by its inherent nature, indiscriminate.
JUDGE PILLAY: If Mr Alberts, there was reconnaissance and or information to indicate where Mey Ledwaba would have been sleeping, would it not have been the easiest thing to stick a gun through that window and shoot him because he is after all, the target?
MR ALBERTS: Mr Chairman, I would prefer Captain Hechter to answer that.
JUDGE PILLAY: I am talking of proportionality in your objective thinking. (Microphone not on) We are talking about proportionality. Given the risk attached to throwing a bomb in a house, and let us forget the various associations of people who didn't deserve that kind of treatment, compare that to the objective, political objective. Wouldn't it have been the more appropriate thing to stick a gun through that window and shoot him?
MR ALBERTS: Yes and no, Mr Chairman. Certainly any measure which could be, accepting for the moment of course, this is all prefaced by accepting that Mey Ledwaba was the only target, but accepting that for a moment ...
JUDGE PILLAY: That seems to be the only person who was targeted?
MR ALBERTS: With respect, no Mr Chairman. I have said that other persons, besides him were targeted. The target went wider than Mey Ledwaba on his own. He might have been first prize, but it didn't end there in my submission. But accepting that he was the only target or only legitimate target, if one wants to redefine it in those terms, then it really is a matter of speculation, now ex post facto to say whether a bomb was the answer or not, or whether a rifle pointed through a window would have been the answer. It might have been just as calamitous. Those facts we simply don't know now.
JUDGE PILLAY: But Mr Alberts, here the Act intends us to sit in the comfort, to the extent that they have comfort, in this room to examine precisely that, and therefore you have that guiding Section 20(3) to look precisely at that aspect, and that is why I asked the question.
MR ALBERTS: Thank you Mr Chairman, I appreciate what the purpose is of the question. What I am trying to convey to you is that if we have to approach this matter on the evidence and without entering into the realm of personal speculation, it is a very difficult and most probably neigh on impossible exercise. All we have is the evidence of Hechter who says that at that stage, he deemed that the most appropriate action to be taken.
JUDGE PILLAY: No, he didn't say that. He forgot what happened, he says that was the modus operandi at the time.
MR ALBERTS: That is so, but he is also speculating, but on the probabilities, I think one can accept that unless you want to postulate that he was on an absolutely senseless mission of his own. One must postulate that the decisions, good or bad as they were at that stage, were taken with a view to meeting the objectives and his evidence was that under such circumstances, he most probably decided on this course of action because that is the one that commended itself to him at that stage, as being the most effective. Mr Chairman, in so far as the applicant Goosen, is concerned, in any event, I would submit that the matter must be dealt with on the basis that he was a subordinate and that he was following his orders and that he bona fide at least, believed that he was acting within the course and scope of his employment. Section 20 makes provision for that, and in the case of his application, I submit that is the level at which he should be approached, and under those circumstances, in any event, in his case, I submit there can be little doubt that he has satisfied the requirements of the Act.
CHAIRPERSON: Can I change the subject a little and I am thinking aloud now, we know from the evidence that we have heard here and last week, that this was a clandestine Unit set up, Hechter, is it Gouws and Mamasela.
MR ALBERTS: Gouws, Mamasela, Van Vuuren, Goosen, Momberg but the core of the Unit was Hechter, Van Vuuren and Mamasela. The members of Unit B.
CHAIRPERSON: Yes, right, and the next thing we hear from Mr Goosen is that he was selected by Brigadier Cronje to accompany this Unit on operations as we have heard were other people, you have mentioned the names of some of them. This Unit from what I gather, was formed to carry out operations when the ordinary legal process could not be used, so the feeling would be when anything was passed on to that Unit, or to people assisting that Unit, that they were to merely do what they were told and not ask questions.
MR ALBERTS: That is the perception I have Mr Chairman, of the situation in broad terms. It is quite clear that it didn't lie in the mouth of a Sergeant to question his superiors, not a 22 year old Sergeant who was relatively inexperienced.
JUDGE PILLAY: Especially in that Unit?
MR ALBERTS: Especially in that Unit, I mean that then for those purposes is an Operational Unit and we all know what is required of the foot-soldier in those circumstances.
CHAIRPERSON: He knew the rules didn't apply to that Unit?
MR ALBERTS: Exactly but even if rules did apply, it is but to do and die. It is not to question why. That is the situation, and one accepts that this was an unofficial war, then certainly that is the background against which these applications must be considered, especially in the case of the subordinates.
MR MALAN: Mr Alberts, I tend to agree with your argument that certain tests are not applicable to your client on the basis of the evidence, applicant Goosen, but having discussed the proportionality principle to be applied, may I just hear your argument on how that is to be applied? Is it weighed against the consequences or the specific objective as understood? Do you follow the ...
MR ALBERTS: I think I understand which distinction you are seeking to attach. Mr Chairman, quite frankly I must confess that I haven't considered this distinction, but I think common sense would dictate that one must consider all the factors and that one shouldn't adhere to a rigid distinction between objective and or consequence. I think a fair-handed approach would be to take both those factors into account. I don't have any authority for that.
MR MALAN: Let me just put it to you and this is how I originally understood it, but I may be having second thoughts about it, if one argues that a specific act is now contemplated, planned, executed, the proportionality test should be saying that which is planned, is that proportional and therefore "acceptable" looking at the objective that is aimed at, also against the background of the reason why, or should one be saying for instance, the original objective, the taking out of Ledwaba might have been fine, also the foreseeing that some innocent bystanders or people by association may be killed or injured, but not if incidentally that bomb happens to be so powerful through some neglect, that it blows up 14 houses in the neighbourhood. In other words, what is not foreseen, necessarily foreseen to the extent, should that be weighed in terms of proportionality? Let me just put a second point to you, is there a difference between - in terms of proportionality - between having Mey Ledwaba as the target and being quite satisfied to kill some people who associate with him and even seeing the possibility that family may be killed, and on the other hand, going in there, taking out Mey Ledwaba and assassinating everyone else in the house including the same innocent or family members? Would there be a difference simply in terms of the proportionality test, not in the factual, but in the approach?
MR ALBERTS: Mr Chairman, I have already submitted to you that when approaching the question of proportionality, logic dictates to me that all these factors ... (tape ends) ... necessity mean that one cannot merely ignore consequences under any circumstances. The consequences cannot be ignored. Clearly there must be I would think, there must be a certain balancing or nexus, call it what you may, between the objective, the method employed to obtain that objective and the ultimate consequence. There must be a type of a - I am somewhat lost for words - Mr Du Plessis ...
JUDGE PILLAY: There must be a reasonable relationship between the three?
MR ALBERTS: Indeed. I mean one can postulate obvious examples I think, which will illustrate this effectively. You can't fly over Atteridgeville and drop a bomb to target Mey Ledwaba, clearly that sort of postulation could never stand the test. I really don't think I can take it much further than that. I think it becomes most probably more of an academic debate if I had to take it further than that.
CHAIRPERSON: Mustn't one extend objective to include the larger objective? We have rather confined ourselves in argument and questioning, to the taking out of Mey Ledwaba, but the ultimate objective was to secure the safety of the country, to stop active terrorism in the country. It wasn't just one person because I can understand the proportionality being very cogent if you are going to arrest someone because he is a car-hijacker, that would not entitle you to go and kill innocent people, but if it is part as Mr Hechter said rather, that the intimidation is not just directed at the one person, but directed against all those who are considering acts of violence in the country. Isn't that one of the factors that you must consider when balancing up against the consequences?
MR ALBERTS: Indeed, I think one must, when you consider the objective in itself, when you have regard to that, obviously it seems to me that one should approach it from the broad objective point which this entire struggle really concerned itself with, as a background and then reduce that to the specific objective which I think we find in this instance. In that relationship, that relationship in itself would most probably be relevant Mr Chairman, but certainly one cannot just merely close your eyes to the broad objective and ignore it totally. I don't think that would be correct, one has to take the objective in its various components when doing the balancing as it were.
CHAIRPERSON: Thank you. Did I understand that you had nothing further to say?
MR ALBERTS: That is correct Mr Chairman, thank you.
CHAIRPERSON: We will have to wait to hear you Mr Rossouw, we will take a short adjournment at this stage.
MR DU PLESSIS IN ARGUMENT: Mr Chairman, we have decided that I will argue next if you will allow me to. Mr
Chairman, may I start with the argument by saying that in respect of Captain Hechter and Brigadier Cronje, that we make common cause with the Heads of argument of my learned friend, Mr Alberts, pertaining to the facts set out there and I will deal at the end of my argument with the offences pertaining to Captain Hechter and Brigadier Cronje. However, certain questions were raised this morning which in my submission should be dealt with Mr Chairman. Some of these questions have arisen before and they have been dealt with before but the vexed question still remain. May I start with the question of proportionality and I want to address you on that and how one should approach that. Mr Malan asked the question to Mr Alberts how does one approach that, now if one looks at Section 20, there are really two issues which have to be satisfied. The first is Section 20(2)(b), that is the one Section that the applicants have to satisfy and then as part of that, one has to take out the words associated with a political objective and then you have to look at Section 20(3). May I just say for purposes of Judge Pillay and Mr Malan, the argument which I am going to address to you now, have been incorporated in the argument in the previous matter, which I handed up to you, which comes from my Heads of argument from Brigadier Cronje. I have dealt with these issues in a lot of detail in respect of proportionality and all the other issues which were raised this morning, and I refer you to those Heads of argument. I am not going to go into them in detail now. If one looks at Section 20(3), to determine whether an act was associated with a political objective, there are six requirements and what is important when one - can I go ahead - what is important when one looks at these requirements Mr Chairman, is the last word of subsection (e), the last word of subsection (e) is not a semicolon, but after the semicolon you have the word "and". The importance of that Mr Chairman, is the fact that the word "and" is used and not the word "or". This means that these six requirements should be regarded together, or should be assessed together, not separately. It means that if a person for instance qualifies for five out of the six requirements here, then he could still succeed in proving that he acted with a political objective, even though he doesn't succeed in proving one of them. If the word "or" was used, if he hasn't succeeded in proving one of them, it would cancel it out, then he wouldn't prove that he acted with a political objective. That is the first point I want to raise pertaining to the interpretation.
JUDGE PILLAY: Are you correct on that one, not that it is really material, I don't think, in this case. That Act refer to one or the other, then I would in my interpretation, then any one of them would do, but where it uses "and" on your argument, it is inclusive of all, it makes it more difficult?
MR DU PLESSIS: No, but it is inclusive of all, not to the extent that if you don't succeed with one, you don't succeed. It is inclusive to the extent that these factors, these criteria have to be taken into account as one. I am coming to the gist of my argument Mr Chairman. The gist of my argument is the following - if you look at these subparagraphs, you will see that some of them incorporate a subjective test and some of them incorporate an objective test. So for instance, the first one, the motive of the person is clearly subjective. The next one, the context, is clearly objective. The next one, the legal and factual nature of the act, is clearly objective and again the object or objective of the act, is subjective again and so we can go on. The question then arises, how does one deal with this? How does one deal with a set of criteria which you have to take into account to determine political objective where some of the criteria are objective and some of them are subjective? The argument which I tried to make out in my Heads of argument in the Cronje matter Mr Chairman, was that one should then if you have this situation, look at other factors which could point to how one should deal with this. The first factor which I want to refer you to is the Section referred to in Section 20(4) which refers to the criteria applied in the two previous Acts, the two repealed Acts, the Indemnity Act of 1990 and the Further Indemnity Act of 1992. If one has regard to those two Acts Mr Chairman, you will see and I think I incorporated it in my Heads of argument, you will see that those two previous Acts simply and purely incorporated a subjective test. It was simply subjective, there was nothing objective to those tests. That is the first factor in my submission, that one has to take into account when you ask yourself what is the overriding principle here, what is the overriding one of the two, should one say if there is a clash between your objective test and your subjective test, when you take all these criteria into account, which one is the overriding one?
JUDGE PILLAY: What would you say would be the test in respect of testing proportionality?
MR DU PLESSIS: I am coming to that Mr Chairman, please bear with me. I am coming to that. That one is the most difficult one by the way. The other submission I made in my Heads of argument, is that Section 20(3) are the principles which were applied in Namibia by Professor Norgard, he was the author of these principles. He wrote them and he took them out of all the international law pertaining to extradition, and the definition of a political offence in extradition law, internationally. In my Heads of argument, I incorporated the whole argument on the British law and everything to show how he got to this. By the way, in the international law, it is also a vexed question, what do you apply, the subjective test or an objective test? Professor Norgard's application of his own principles in Namibia were clearly subjective. I have the whole Norgard report available to you, I have attached it, I see Judge Wilson gets a smile, but that was the argument which I raised in the Cronje matter, pertaining to the interpretation of Section 20(3), and then if one looks at previous judgements of other Amnesty Committees in other applications, the approach to this is clear in my submission Mr Chairman, that the subjective test overrides. A very good example, which is also applicable to the matter before you today, is the example of the application of Brian Mitchell. You will recall that in that incident, the Security Police acted against a specific house or residence where they thought the people who they had targeted, were. They hit the wrong house, they killed 11 or 12 innocent people and eventually, the subjective application of this test was overriding in that judgement and he received amnesty. The same goes for the amnesty application in the Amy Biehl matter, in the St James Church matter, the Heidelberg Tavern matter and the Church Street bomb, exactly the same principle applied. The emphasis was on the subjective motives of the person who acted and his subjective if I can use the Afrikaans word "ingesteldheid". In fact Professor Norgard actually emphasised subparagraph (a) as the most important one of all six of them. Now Mr Chairman, if we come to proportionality, this is obviously the most difficult one of all to deal with and I want to make the point that although one has to deal with this, this obviously has to be seen together with the other principles, but apart from that, in the Rafolo decision of His Lordship Mr Justice Van Dykhorst, which I referred to in my Heads of argument in the pages that I have handed to you, on page 12, page 7, I beg your pardon, paragraph 12, page 7 to page 10, I refer to that decision and His Lordship, Mr Justice Van Dykhorst analysed the Norgard principles exactly as they are set out in the Act currently, he analysed them, and in respect of proportionality he found and if you will just bear with me, I am just trying to locate the exact place where I dealt with it in my Heads of argument, he said the following and that you will find on page 147 of my Heads of argument, he said
"... as regards to the relationship or proportionality between the offences and the political objective pursued ..."
sorry, can I just point out to you that this related to ...
MR DU PLESSIS: Judge Wilson, I was too scared to hand you another set, that is why I haven't handed you a set, I beg your pardon. Mr Rossouw said that he has got an extra set just for purposes of the argument perhaps. You've got so many ones in different matters, that I didn't want to give you another one. It is that Mr Chairman, I am sorry that it is not bound, I didn't have time at the stage when I handed it to you.
JUDGE PILLAY: That is the least of my worries.
MR DU PLESSIS: But it is not necessary for you to look at that now, you can follow my argument, I am trying to make it clear.
CHAIRPERSON: Sorry, can I keep this?
MR DU PLESSIS: I will present him with another copy Mr Chairman. Mr Justice Van Dykhorst said the following pertaining to proportionality
"... as regards the relationship or proportionality between the offences and the political objective pursued, the Committee held the view that in no civilised society could or would the killing of a political opponent be accepted or justified to further political ends."
This was an application for review of a decision of a Committee under the previous Indemnity Act.
CHAIRPERSON: What page is that?
MR DU PLESSIS: Page 147 Mr Chairman. Page 147 Mr Chairman, of my Heads of argument. He said
"... this is correct but in my respectful view, it is not a relevant consideration. In our warped world, what is frowned upon if done to a single individual becomes the stuff of saga's if in war time, when whole armies are wiped out. For the purposes of the guidelines, something akin to a war situation, has to be envisaged."
That was with reference to proportionality, page 147 Mr Chairman, page on top, not the paragraph.
CHAIRPERSON: (Microphone not on)
MR DU PLESSIS: I don't know if Mr Rossouw adapted my Heads Mr Chairman, or did something to them.
JUDGE PILLAY: He took it to a "vlak" and did it.
CHAIRPERSON: These are the Heads of argument of Mr Beeslaar?
MR DU PLESSIS: Yes, it would be the same, but the page numbers might differ Mr Chairman, the page numbers might differ, I am sorry. Mr Chairman, I am not going to go to the Heads of arguments too many times, so thank you. If we had expected it would be necessary this morning, I would have made other copies. Mr Alberts and I were surprised with the questions, that is why we don't have it available. If we look at the question of proportionality Mr Chairman, and we analyse subsection (f), and I am now away from my Heads again.
MR MALAN: Sorry Mr Du Plessis for interrupting you, but really that is not the question about proportionality, where you act against someone, the question is where consequences foreseen or unforeseen would go beyond that. Did you deal with that?
MR DU PLESSIS: I am coming to that. I dealt with that in the Heads of argument, but I want to argue it for purposes of this application, that is why I don't want to refer you too many times to the Heads of argument. You will find the argument I am going to raise now, in the Heads of argument if you read it. Subparagraph (f) refers to the relationship between the act, omission or offence and the political objective pursued. One has to look at the relationship between two things, between the act on the one hand, and the political objective pursued on the other hand. These are the two factors that you have to weigh. In my Heads of argument, I tried to find an international link to interpret proportionality, where does it come from and that principle does exist in military law. I have set the whole argument out, I am not going to bore you with that. The fact of the matter is that the argument is that one always has to weigh in military law, international military law, the result you want to achieve or the act you commit, against the result you want to achieve. Those are the two things that you have to weigh, that is where proportionality comes from. We all know in this matter what the act was, the act was the throwing of a bomb into a house. What was the political objective to be pursued - that is the next question if we apply the test of subsection (f). The political objective to be pursued as testified by Mr Goosen, was to stop or make it difficult for these activists to carry out their plan to attack Policemen the following day or days. That was the political objective. There was a further political objective attached to that, if I can put it like that, and that is intimidation. With respect Mr Chairman, the question of looking at the act and looking at the victim, does not arise when you deal with proportionality.
MR MALAN: In other words consequences are not to be considered?
MR DU PLESSIS: No. The only question is what is the political objective to be attained? Now, obviously Mr Chairman, consequence may have a bearing on this question. Let's take a hypothetical example, let us say these three people went and they targeted a house where all the occupants were apolitical, but one of the occupants was 70 years old and was the mother of a person who belonged to a Trade Union, and that Trade Union supported the ANC and these three operatives went and threw a bomb in that house because they come and say to you the political objective is to intimidate this grandmother, because she is the grandmother of this person who is involved in the Trade Unions. In that example, if you weigh the act against the political objective pursued and you weigh the relationship and the directness and proximity of the relationship and the proportionality of the act, you must say you know, really this becomes difficult to accept. In the same way one has to now weigh this action, on the one hand you have the action, the throwing of the bomb and on the other hand, you have the political objective pursued. Firstly to stop these people from attacking Policemen's houses and probably killing people, other people, killing the Policemen, we all know that happened, and that as I understood the evidence, would have been the plan. Secondly to intimidate the occupants of the house, to intimidate the people, well not the occupants of the house, the people who were involved in this planning and that is the question you have to ask pertaining to proportionality. How does that weigh, does that become something that becomes more acceptable in a military situation if we accept and that is where Judge Van Dykhorst's decision comes in, the only point I wanted to make with that is one should accept it was a war situation. Is this something that one can say is not totally out of proportion with what you expect to happen in a war situation? Let's take another example in the Vietnam war. I don't know if you have all heard of the Mai Ling massacre and the - I actually refer to the prosecution of the Officer who was involved in that massacre in the United States before a military tribunal, but let's apply that situation to this question of proportionality. I can't remember the facts hundred percent, but they went into a village and they just killed all the civilians in the village, that is as far as I can recall, we don't have to go into more detail, let's just accept that. Then the question arises, does the killing of civilians in a war situation, indiscriminately with an intention to kill the civilians, how do you apply that proportionality test? Then one perhaps would say, no, you know, the killing, what is the political objective, let's get to that. The first leg is the killing, the second is the political objective. Political objective in that situation was to stop the Vietcong from harbouring people, etc. Then you have to start asking yourself, was the killing of all the residents of this village really necessary to achieve your political objective. The evidence of Captain Hechter in this regard is quite important and broadly speaking what was presented to you, about the situation if one weighs this. Now, you have to take into account the position of the Security Police. When they sat and planned this and said to themselves, how are we going to stop that, how would they have argued? They would have said if we detain Ledwaba, Mey Ledwaba, the others would just execute this operation and in any case, detention is not an answer to anything, it doesn't stop anything. Do we arrest the people, perhaps we could do that but the evidence was that they knew there were some activists, they obviously didn't have the information and there is no evidence that they had information of exactly who was involved in this planning, so there may have been other people who could have executed this plan. What is the third alternative? The third alternative is to get as much information as possible, get people on the ground, try and determine which Policemen's houses will be attacked, go there that day, wait for them and the moment they attack the house with either a bomb or a gun or whatever, then try and arrest them. The evidence has been in lots of other matters that that simply was not feasible. That wasn't easy to do and it was not effective and it also caused a risk because if they didn't succeed, the Policemen would be dead. What do you do? The only other possible alternative to these people, left Mr Chairman, was to take the action they took, to intimidate the planners so that they don't know the next day, and that was Captain Hechter's evidence, or the day thereafter or whenever they executed this plan, are the Security Police going to wait for them? How much do the Police know about this operation? Are they going to shoot us when we get there? Is there perhaps an informer amongst us?
JUDGE PILLAY: Could those answers - were those questions not answered with purely arresting him in terms of the legislation that was available?
MR DU PLESSIS: Arresting Mey Ledwaba, yes, but the fact of the matter is Mr Chairman, there was no evidence ...
JUDGE PILLAY: Or his assistants if they did exist?
MR DU PLESSIS: Yes, but they didn't know who were involved in this plan. It may not necessarily have been the only people in that house who were involved in the plan. It may have been a much wider plan. The evidence and we can only go on Mr Goosen's evidence, we don't have more detailed evidence, but there was no evidence that they knew exactly who was involved in this planning, exactly who was going to execute this plan.
CHAIRPERSON: But wouldn't it have intimidated them if he had been arrested together with the other young activists who were with him and wouldn't it have made them wonder whether there was not an informer who had given information leading to this?
MR DU PLESSIS: Obviously I can't argue with you Mr Chairman, the question is would that have had that effect? Obviously they would have had to detain him, they would have had to have reasons to detain him and it is not necessarily, it would not necessarily have had the effect of eventually stopping this operation. It could have had that effect. In similar vein, I am not arguing that the throwing of this bomb as Judge Pillay pointed out, necessarily would have resulted in this political objective that they perceived. I am not arguing that this would have been hundred percent successful. All I am saying is one has to weigh this up and one has to now, when you do the weighing process, bring into play the subjective motives of the applicants. One has now to say what did they regard as something that would have been effective, how did they regard it and their evidence was Mr Chairman, under these circumstances, that this intimidatory act would have been the less risky and probably the most effective.
JUDGE PILLAY: As they reasoned?
MR DU PLESSIS: As they reasoned. Because Mr Chairman, that is the point I am trying to make, you cannot divorce these principles the one from the other. You can say part of the test is objective, part of the test is subjective. Even if you arrive at an answer, let's say you arrive at an answer that you are not sure if this was justified, you are not sure if this was justified, maybe this was a bit rough, maybe some other steps could have been taken, then you still have to revert to the overriding principle you have to apply in terms of Section 20(3), you have to again go back and say but even if that is so, let's look subjectively at the applicants. Let's look at what they thought. What did they think? Because even with proportionality Mr Chairman, you can have a subjective and an objective test. You can perhaps say objectively, this is a bit rough, maybe this wasn't warranted. But then you have to go back and you have to revert to the subjective test and that is why my submission is that in the application of subsection (f) alone, and together with the other principles, you have to go back to the subjective views of the applicants, and the subjective views of the applicants were they acted against this group, what they wanted to achieve, that was their objective, they wanted to achieve this operation not to go ahead, the attacks on the Policemen should not be carried out. How do we achieve that, this is the only possible way to achieve it, not necessarily hundred percent proved way, possible way to achieve that. If you then ask the question well, did they think in their minds that this was justified in the light of all the facts, and in the light of all the other principles, the context, the objective of the act, the question if they had an order, if you take everything into account, then you have to come to the conclusion on these facts, that the throwing of a bomb in circumstances such as this, is associated with a political objective. That must be the result, that must be the answer eventually. That is my submission. If you apply that test and you come to that conclusion, then you have found that the applicants acted with a - that their acts were associated with a political objective. Then the applicants have succeeded in proving that principle.
MR MALAN: Mr Du Plessis, won't you please also argue which is my primary question, I don't take issue with you on your argument and again speaking for myself, subjective test and all that goes with it, but you have been talking about the act which you have termed the throwing of the bomb, and the objective which is to deter them from killing Police and intimidating the larger community eventually as a sort of corollary to it, as you put it. My question really relates to the innocent people killed as far as the proportionality test is concerned, is it to be applied or weighed?
MR DU PLESSIS: Yes, I am sorry, I wanted to deal with that and I forgot to do that. How does one look at, how does one deal with the end result? Now you have a situation where the persons who should have been hurt in this incident, who should have been intimidated by getting hurt, was not hurt. Other people were hurt and we don't know what their position was, we don't know what their inclination was and their involvement was. One cannot and that is my submission is this regard, one cannot take the act and extend it to one single person and say, this act was justified and proportional towards a single person. You cannot say that the throwing of the bomb into that house, if it killed civilians, immediately the balance is such there is no proportionality. You cannot say that because that is not the test. The test is you have to look at the act and the political objective pursued. That is what you have to look at, and you have to ask yourself in this test was this justified to achieve the political objective? Part of that question obviously would be what about civilians, if you look at this, is it justified on behalf of the applicants, if you look at the act to throw a bomb, is it justified to achieve the political objective by taking a risk of injuring civilians and how does that influence this balancing act? I think that is your question, how does that influence this balancing act. My submission is the first thing you cannot do, you cannot take the act and just attach it to one civilian and then apply the test, apply it to the next person and apply the test, apply it to the 62 year old grandmother and apply the test, attach it to the eight year old child and apply the test. You have to look at this in a globular way. You have to ask yourself the question how do you deal with civilians in the cross-fire. That is the question pertaining to proportionality.
JUDGE PILLAY: I think your argument presupposes and I tend to agree with you if it does, it presupposes that that was the only appropriate action that could have been taken in pursuance of this political objective? Not so?
MR DU PLESSIS: It presupposes not the only, the most effective.
JUDGE PILLAY: Well perhaps even most effective, but it doesn't deal with the possibility of some other action being attempted in pursuance of that very same political objective with the minimum of risk to innocent parties, example in previous cases we have heard in this last two weeks that targeted activists or their family were taken to secluded spots to be dealt with. One gets this uneasy feeling in this case that there is no explanation why that could not have happened as opposed to risking the lives of other people.
MR DU PLESSIS: May I answer it in this way Mr Chairman, and that is that one should look at the broad picture. Hechter and some of the other applicants have applied conjunctively for numerous actions of bomb throwing, petrol bombs, other bombs, numerous incidents, many more incidents of that nature, than incidents of kidnapping and elimination. The kidnapping and elimination scenario is far in the minority if one just looks at numbers. I know the applications, that is why I can make that submission to you, and one should see that in the light of Captain Hechter's evidence that it was very difficult to kidnap somebody. It wasn't as easy as that, it wasn't so easy to do that. It would have risked the Security Police's operation.
JUDGE PILLAY: I am not suggesting that kidnapping was the answer, what I am alluding to more is using the legislation that was available to the Security Police at the time for example Section 29 of the Internal Security Act. I am not too sure whether the regulations relating to the state of emergency was in operation at that time.
JUDGE PILLAY: But those were aspects, those were possibilities that need to be examined now, as opposed to just throwing a bomb into a house where everybody knows there are likely to be children and older people for that matter, in that building.
MR DU PLESSIS: Mr Chairman, this question was raised lots of times before, and the answer to that question was simply in evidence and I think Captain Hechter answered it at this hearing, but in previous hearings he answered it over and over again, is that the moment a person was detained, and this is in general, not necessarily in reference to this incident, the moment a person was detained, you would not achieve a satisfactory result because lots of times you could not effectively interrogate him, because you couldn't just assault him while he was in detention.
JUDGE PILLAY: Mr Du Plessis, as I understand the evidence here, the purpose for wanting to take him out of circulation as an urgent matter, was to remove him from his ability to manipulate this army?
JUDGE PILLAY: Arresting him or detaining him would not be for the purpose of questioning him or whatever?
MR DU PLESSIS: Yes, I am making the submission in broad and then I will come to the situation. I am just outlining the evidence in broad terms, in broad terms the evidence was to detain him, would not achieve anything. The person would eventually come out of detention a hero and he would just be in a much more powerful position than he would have been. Your question in this instance is, would detention of Mey Ledwaba and the others that they possibly knew were involved in this planning, at that time, on the same night when they threw the bomb, if they had walked in there and detained them, would that not have been an alternative to throwing the bomb? The answer to that Mr Chairman, is the fact that obviously from the evidence, and we must rely again on Mr Goosen's evidence, they knew that there would have been a meeting that night, of people involved in this planning, but it is as clear as daylight, that they didn't know exactly who was involved in this planning, exactly who were the participants and would that have had an effect on the overall planning. They didn't know that, there was no evidence before you that Mey Ledwaba was the kingpin of this planning. That wasn't the evidence, he was one of them, yes, I am not denying that.
CHAIRPERSON: The evidence was repeated what an active person he was in terrorist operations.
MR DU PLESSIS: Yes, I am not denying that, I am talking of this specific plan.
JUDGE PILLAY: Indeed the bomb was directed at him, I think Mr Alberts referred to him as the cherry on top?
MR DU PLESSIS: Yes, but we don't know Mr Chairman.
JUDGE PILLAY: The other coincidental deaths may have been a bonus.
MR DU PLESSIS: But we don't know Mr Chairman, if there were other people involved in the planning of that operation who the Security Police did not have knowledge of.
CHAIRPERSON: But that wouldn't have affected their thinking if they had no knowledge of them?
MR DU PLESSIS: No, it wouldn't have had.
CHAIRPERSON: So the question goes back, he was the man they thought was responsible, was going to lead the group after the funeral, would it not have achieved their aims to detain him and the young men who were with him so they couldn't do this?
MR DU PLESSIS: Mr Chairman, the point I am trying to make is that detention of them, would not, may not have stopped other people, other parties who were involved in this planning, from executing this operation whereas on the other hand ...
JUDGE PILLAY: The same applies to the throwing of the bomb then?
MR DU PLESSIS: No, no, because the difference is Mr Chairman, when a bomb is thrown you don't know what the Security Police knows, so if you are a person who wasn't in that house and were part of that planning and a bomb is thrown in this way, you would know that somebody knows about this plan, somebody is warning us, somebody is saying to us you are going to get hurt. It is a much different situation from realising that one of your friends have been arrested. Lots of these people had been arrested all over the show.
CHAIRPERSON: Mr Du Plessis, the same affect the day before your friend and his colleagues have been arrested, have been detained, the word would get around that the Police know about it?
MR DU PLESSIS: But Mr Chairman, even if that is so, let us accept for purposes of the argument, that that is just as viable an option as throwing the bomb, let's accept that. Does that mean that we have to come to the conclusion that this act was not proportional to the political objective pursued?
JUDGE PILLAY: No, isn't the Act designed at investigating whether the worst kind of option was adopted or whether any attempts to protect innocent parties, was considered, and in that, we indulge in the arguments about proportionality and malice and all that types of things.
MR DU PLESSIS: Yes, Mr Chairman, the evidence before you and one must remember that, the evidence before you, from the applicant's point of view, and that is why I get back to the subject of argument again, was that the people in that house that night, would have been Mey Ledwaba and the other people involved in planning this operation, or some of the people involved in this operation. They never knew that there may have been innocent people. They testified that they accepted that possibility was always there, but their subjective view, their subjective knowledge was that they were going to intimidate the people involved in this planning. Now, if it subsequently turns out now that there were other innocent people in the house, one gets back to the question how do you deal with this? On the one hand you have the applicants, subjectively they know that the people in this house, are activists, those were the people in their house, that is their knowledge, their information, objectively that was not hundred percent true, there were children and an old woman there. Now you have from a subjective point of view, you have one scenario and from an objective point of view, you have another scenario and how do you weigh that up?
JUDGE PILLAY: With all these Policemen's experience, why is there a difference between the objective and the subjective knowledge? I think Goosen said in his evidence there was always the knowledge that innocent people may get injured or killed with this operation?
MR DU PLESSIS: There was always the possibility.
JUDGE PILLAY: And nonetheless they went ahead.
MR DU PLESSIS: There was always the possibility Mr Chairman.
JUDGE PILLAY: Yes, especially two o'clock in the night.
MR DU PLESSIS: But in the Cronje hearings this matter was pursued in respect of this Mr Chairman, and the evidence was always clear that they, as far as they could, they made sure and in my submission we can ...
JUDGE PILLAY: Make sure of what?
MR DU PLESSIS: I am coming to that - we can have regard to that Mr Chairman, because that is of a general nature and we don't have Captain Hechter's recollection of this incident. They always made sure that the person who they are going to act against now, was involved in serious acts and involved in serious actions, and they did that by referring to separate independent informant reports. If a person appeared in those reports, they would act against him. Then they also tried to obtain as much information as possible of other people who may be involved, civilians who may be injured in the action. They always tried to avert that. That was the evidence Mr Chairman.
CHAIRPERSON: But this family had lived in that house for more than 30 years, we have been told the Police visited regularly, looking and making enquiries about Mey Ledwaba. They must have known that there were young children living in this house, that this old woman was living in this house? This is not some strange house that they were suddenly told about? This was a house that had been the subject of Police investigation over the years?
MR DU PLESSIS: That is so Mr Chairman.
CHAIRPERSON: So we must accept that the Police knew these people were living there?
MR DU PLESSIS: On the other hand, we don't know if what the information was pertaining to that night, in the possession of the Security Police, what exactly did ...
CHAIRPERSON: Let me ask you something entirely different for the moment, which I am not sure if it is relevant, when was the Geneva convention entered?
MR DU PLESSIS: In 1950 something.
CHAIRPERSON: We were signatory to that?
MR DU PLESSIS: Mr Chairman, to the first part of it, but not the protocols thereafter.
CHAIRPERSON: And that prohibits the killing of civilians?
MR DU PLESSIS: No Mr Chairman, I don't know if you want me to go into the details of it.
CHAIRPERSON: You can tell me later, carry on with your argument.
MR DU PLESSIS: It provides Mr Chairman, if I can just perhaps I can get the answer for you quickly.
MR ROSSOUW: Sorry Mr Chairman, if I perhaps could be of assistance, as far as my understanding and recollection is that the Geneva convention only applies in terms of conventional warfare and not guerrilla warfare, so there is a difference.
CHAIRPERSON: Yes, but this is war carried on by our Police Force in the course of their official duties, and I want to know whether this is not something that they should consider.
JUDGE PILLAY: That it is not conventional war, would be aggravating, wouldn't it?
MR DU PLESSIS: Mr Chairman, the Geneva convention is not applicable to an internal conflict in a specific country, they are not applicable to this situation, that is why there was a protocol, the second protocol specifically made provision for the situation we had in South Africa, for an internal conflict where it is not a conflict between two different countries. I have dealt with that in my Heads of argument.
JUDGE PILLAY: And South Africa didn't want to sign that?
MR DU PLESSIS: Yes, South Africa didn't sign it and I think Israel also didn't sign the second protocol. There is also an argument Mr Chairman, about the question if the second protocol is applicable, was applicable to the South African situation. I have also dealt with that in my argument and my argument is that it was also still not applicable, but I don't think you want me to go into that, Mr Chairman. The important point I want to revert to is at the end of the day, the question when you apply Section 20(3) is, what was the subjective motive of the applicants and one has to accept that civilian casualties may arise from a conflict such as this. The applicants accepted that and at the end of the day Mr Chairman, one has to view the action not as an action against a specific person or persons, but an action against the liberation movements to stop a specific operation that would be carried out the next day. That is what one has to view.
MR MALAN: Mr Du Plessis, just so sum it up in my mind because I think I am getting now to the situation where I think the subjective test is overriding, that when you have a conflict between subjective and objective, you can really do nothing about it, the one has to override the other, because there is no other means of coming to some agreement on that. Then to apply it, the act must not be only the throwing of the bomb, but only the intended and foreseen consequences of that throwing, that all constitutes the act?
MR MALAN: The objective sought has to be then the political objective and what they want to achieve at the end of the day, so if reapplied, if that bomb was thrown at a clinic or a creche or a nursery where Ledwaba happened to be visiting at the time, knowing what they were doing proportionality would probably have said this is ruled out, even subjectively?
MR MALAN: But if they envisaged certain consequences, no specifics, but not to the extent of such "gross" consequences, then one has to look at it again from a subjective perspective, whether that is innocent people caught in cross-fire, foreseen as a possibility?
MR MALAN: But if foreseen as direct targets of it, again it has to be weighed in a different way, still subjectively?
CHAIRPERSON: What you in fact say now is what I put to Mr Alberts, you mustn't consider this as an operation against May Ledwaba?
CHAIRPERSON: You must consider this as an operation against the resistance movements?
MR DU PLESSIS: The liberation movements, yes.
CHAIRPERSON: The liberation movements?
MR DU PLESSIS: Yes, and Mr Chairman, while we are on that point ...
JUDGE PILLAY: The extent in which you say that innocent people not connected to any political party maybe, may be injured or killed?
MR DU PLESSIS: Yes, Mr Chairman, even from a subjective point of view, the killing of innocent people in a struggle such as this, in a war situation such as this, was envisaged from both sides. It was accepted in the Church Street bomb application that to plant a bomb, may kill civilians. To plant a landmine, may kill civilians. In the PAC applications, the PAC's political objective accorded with the view that it was all right to kill whites, and there ...
MR MALAN: But with respect Mr Du Plessis, on the PAC's perspective, the whites were the target.
MR MALAN: It wasn't innocent bystanders.
MR MALAN: People caught in cross-fire.
MR DU PLESSIS: Correct, but the point I am trying to make in respect of the PAC, is there the subjective test was also applied, from their point of view, from the operative's point of view, it was taken into account, from their point of view, what was justified in accordance with the way they acted and the way they perceived the war.
MR MALAN: I don't want to get into an argument with you, but I think that when you talk PAC, that is an issue of what was indeed their policy and the objective, it wasn't proportionality and subjectiveness.
MR DU PLESSIS: Yes, I don't want to go into, I haven't looked at those judgements, so I don't want to go too far into that submission, maybe I should withdraw that submission, because then we are going to be here the whole day. To come back to the point, to come back to the last mentioned point, that ties in with the test to be applied also in terms of Section 20(2)(b) and Judge Wilson will remember that this is the specific point I argued in the Williamson matter, where you will see that the test is any employee of the State or any former State and it goes on, then the third line, the last word is "directed" - directed, and then you can make a 1 there, against a publicly known political organisation, or liberation movement engaged in a political struggle against the State or a former State and then important Mr Chairman, the word "or", or against any members or supporters of such organisation or movement. In this instance, the applicants would fall under the first mentioned, they acted against the liberation movements and when you apply the proportionality test, you have to take that also into account. You cannot apply it in respect of the person who acts and the person, the specific person at the end of the action, and look at that simply in isolation.
JUDGE PILLAY: Mr Du Plessis, is the allegation of subjectivity capable of being tested? Is it the case if someone comes and say I acted subjectively and that is the matter? We have to accept that he acted subjectively?
MR DU PLESSIS: No, the submission that I am trying to make is that when you test whether a person acted, committed an act associated with a political objective, and when you apply the subparagraphs of subsection (3), you have to look at the subjective motive of the person as an overriding factor, so if you find that there are objective factors, which if you apply them, would give you an answer that this person doesn't comply with that requirement, you still have to go back to the subjective factors. The case of Brian Mitchell is a very good example Mr Chairman, if you take his actions which was directed at the wrong dwelling, which killed just innocent people, then obviously from an objective point of view, he had no, he could never have had any political motive to harm those people, he could never have had any objective against them, but from a subjective point of view, he did. He had a motive, a motive against the liberation movements, not against those people personally.
JUDGE PILLAY: One can understand that and I think the decision leans towards the correctness. I am saying isn't, despite the political agenda of the perpetrators of such an act, if they throw a bomb in where it risks the lives of innocent people, when there are obviously other alternatives which minimises that risk, don't the norms of society then guide us in determining whether that subjectivity is in order or not?
MR DU PLESSIS: No Mr Chairman, what we have to look at, is we have to look at the war situation and ask ourselves simply the question pertaining to civilians, are there actions which were taken which were regarded in this conflict as acceptable by both parties, where civilians could have been killed? The liberation movements had if you look at the ANC's submission to the Truth Commission, they had an expressed view on this, their attitude was that civilians should not be killed unless it happens in the cross-fire, exactly the same situation pertained to the Security Police, that was the accepted norm. You cannot look at the accepted norm in a peaceful civilised society, one has to look at the accepted norm in that war situation.
JUDGE PILLAY: Was the attack on innocent people in this case, unavoidable in view of attaining the same political objective?
MR DU PLESSIS: Mr Chairman, from the point of view of the applicants, that was the most effective operation and then you come back again to the subjective question. That is the point I am trying to make. If you look at it from, let's take the Church Street bomb as an example, you want to hit a military target, now you could have hit a military target in such a way perhaps, that only military personnel were injured, but that may have been too difficult, or there were all sorts of problems with that, so at the end of the day a target was hit where most of the people were military people, but there were civilians, and it was regarded as being acceptable that possibly there may have been civilians, or there may be civilians who would be killed or hurt in this action. The same with this situation, I agree with you there is this other possibility but when this other possibility arises, you've got to go back to the person himself, the perpetrator, look at his subjective mind and the circumstances surrounding him. The same goes with the planners of the Church Street bomb, their subjective view was maybe there is another alternative, we could have hit some Police station or something and they did so, they did it lots of times, there were only Policemen or military people who were targeted and killed, but in that situation, that was regarded as important for purposes of political objective that they wanted to pursue. The same in this situation Mr Chairman, we must accept that the killing of civilians was regarded under certain circumstances, as being acceptable. The throwing of a bomb into a house, or the planing of a landmine, is exactly the same situation. You can never made hundred percent sure that the people you are going to effect eventually, will be the right people. There is always that possibility and from that subjective view of the applicants, they accepted that that was the possibility. The fact that there is another alternative, that may be so, but that doesn't on its own mean that there is no proportionality Mr Chairman. I have taken up lots of time with this, I don't know if you want to hear me further on the proportionality point. I have made the submissions I have wanted to make. Can I go on to some other point, Mr Chairman, thank you. Just very shortly ...
JUDGE PILLAY: Is it necessary for him to deal with anything else?
CHAIRPERSON: He wanted to tell us which specific offences he wanted amnesty for.
MR DU PLESSIS: Yes, there are just one or two other submissions I wanted to make, Mr Chairman.
CHAIRPERSON: You were going to tell us what offences you wanted amnesty for?
MR DU PLESSIS: Yes, I will get to that Mr Chairman. I just want to make one submission and that is in answer to the question of Judge Pillay about - the question was the answer about intimidation just opportunistic. I think I have in my argument up to now, dealt with it really, and then the other point that I want to make is facts were placed on record, by my learned friend, Mr Steenkamp, about what the victims say, but although this is a Commission I know, and you can perhaps take that into account, it is not evidence before you. I am not saying that we don't have to accept who was in the house, I accept who was in the house, I am not saying that, but what I am trying to say is that doesn't detract from the evidence of the applicants which stand before you and one simply has to take that into account. And then I think I have made all the submissions I wanted to make, Mr Chairman. In respect of the offences, I would ask and I want to refer to my learned friend, Mr Alberts' Heads of argument, I would ask amnesty for Captain Hechter in respect of items 1 to 5, and item 7.
MR DU PLESSIS: 7 as amended Mr Chairman, thank you. And then in respect of Brigadier Cronje, 1 to 5, and 6 because Brigadier Cronje was told about the affidavit which didn't include everything. Thank you Mr Chairman, I have no further submissions.
CHAIRPERSON: We will try again, we won't take the adjournment now, we will let you talk.
MR ROSSOUW IN ARGUMENT: Hopefully for not that long Mr Chairman. Mr Chairman, as far as Mr Gouws is concerned, may I perhaps just touch on a few small aspects with regard to the proportionality principle, I don't want to disturb the dust which has sort of settled now.
JUDGE PILLAY: Unless there is anything new that you want to, I think I have heard everything I think I needed.
MR ROSSOUW: Mr Chairman, may I just come back to specific questions and perhaps give you another perspective perhaps, rightly or wrongly with regard to the questions. One question that was put by Judge Pillay was why was Mey Ledwaba not arrested. Mr Chairman, we know from the evidence that he was previously arrested and that he was out on bail. If the Police wanted to obtain the same objective by intimidation, the intimidation portion of that, arresting him again now, there is another possibility, he could have contravened his bail conditions for instance. It would not necessarily have the same intimidation effect with regard to the planned operation if he was arrested again. The Police knew about him and he was in fact out on bail, so arresting him again would not necessarily relate or give the message as far as intimidation is concerned, with regard to the planned operation. That is one perspective that I see with regard to that question. Mr Chairman, a further question was as far as the planned operation, or the planned attacks after the funeral is concerned, there is no evidence about this. I base my submission and the Committee should stop me if they feel I am speculating, but I will base my submission on the well known facts about what happened at those times, and also some videos that I know were shown to the Committee in specifically the Khotso House incident where the Chairman was presiding. Mr Chairman, my impression from that videos that were shown, what happened at some of these funerals were that actions that were taken after funerals, were spontaneous, it was not something that one would say was planned for the whole of the people who were involved. There might have been a (indistinct) figure yes, we saw the people on the stage speaking and then whipping the people attending the funeral into a frenzy and then one would say a lot of them would go out, and attack the Police houses or necklaced a person who was perceived to be an informer. Viewed from what happened in some of these instances, to say that you knew about this plan, why didn't you just arrest the people who were involved in the planning, except once again Mr Chairman, that it was not known who was, all of the people who were involved in this, even if there was just one person left, it could still have sparked this spontaneous frenzy where Policemen's houses could have been attacked.
CHAIRPERSON: But this attack was to kill him, to prevent this spontaneous frenzy do you say? What was the bomb attack for?
MR ROSSOUW: Mr Chairman, as far as Mr Gouws is concerned, and you will read this from his application, he is relying on the intimidation ...
CHAIRPERSON: I am relying on his evidence, he can't remember.
MR ROSSOUW: Indeed Mr Chairman.
CHAIRPERSON: So we have to rely on Mr Goosen?
MR ROSSOUW: Indeed. Mr Chairman, but there is also evidence that there is an aim of intimidation.
CHAIRPERSON: But I want to know why you talk about spontaneous frenzy as if there was no planned attack, so all that Mr Goosen says, that he was told, is wrong? Is that what you are telling us?
MR ROSSOUW: No Mr Chairman, I am not saying that. What I am saying is that the plan might have been hatched by a few people, but the people who actually would have participated, flowing from the funeral would have involved more than the people involved in the plan, and that is where ...
CHAIRPERSON: Yes, and you remove the person who is going to cause the trouble, who is going to stir up the frenzy and it won't happen. We have heard that evidence, have we, I don't understand what you are talking about.
MR ROSSOUW: Mr Chairman, what I am saying is that they were not aware who all the persons were involved in hatching the plan. If they attempted to arrest some of them, the action could have still followed from the funeral.
CHAIRPERSON: And if they killed someone, the action could still have followed from the funeral?
MR ROSSOUW: Indeed Mr Chairman.
CHAIRPERSON: So there was no point for this action then, on your argument, it was pointless?
MR ROSSOUW: No Mr Chairman. The value of intimidating of intimidation in this instance, is what I am arguing, was achieved.
MR MALAN: Mr Rossouw, are you not really arguing the principle of a political objective or motive, because I don't see where proportionality enters the debate when one debates legal options versus non-legal options. I don't think that is relevant as I understood both the approach and the argument in terms of - proportionality really concerns the nature of the act and the objective sought.
MR ROSSOUW: That is correct Mr Chairman, I am saying that the objective sought was also intimidating, intimidation. I won't take it any further, Mr Chairman, as far as the other aspects are concerned, question was put to Mr Gouws, why doesn't he dispute the memory of Mr Goosen as far as placing him on the scene of this incident, is concerned. Mr Chairman, simply for the fact that the modus operandi of this attack is in accordance with the other incidents that he was involved in. He cannot remember that he was involved in this specific incident, but he also similarly cannot dispute it, because of the similarity in the procedure that was followed, as described.
MR MALAN: Is that a valid way of arguing because when we look at the Van Jaarsveld implication, which he denied, he did not argue that Van Jaarsveld never attended similar activities and that is the basis on which he denies his presence, he argued, not that it is all that relevant. May I put another question to you to argue which is really the essential question, is Gouws really making any disclosure relating to this incident and is he therefore, on what basis is he entitled to amnesty if he can make no disclosure of his own?
MR ROSSOUW: Mr Chairman, if you read his amnesty application, and you will note that what he has disclosed, are the facts that are within his knowledge. He has told the Committee under oath here, that he doesn't know the street names and he couldn't point out the houses, the specific places. Mr Chairman, and I would submit that the Committee can accept on the evidence that there is no evidence to link him to the consequences of this - apart from his participation, but his knowledge of the consequences of this operation. This was one of similar operations that he was involved in and he is applying for amnesty. Now what disclosure did he make in respect of his application, he has told the Committee with whom he was involved. He has told the Committee under whose command he was involved, he has told the Committee what the modus operandi was, he told the Committee what bombs and petrol bombs were used under these circumstances. Mr Chairman, and that would apply in all respects to this incident. Mr Chairman, to say that he should have been aware that people had died in this specific incident, does not flow from the evidence, because there is no evidence that he was told about the outcome of this operation by anybody. That is as far as I can take it Mr Chairman.
MR MALAN: Thank you Mr Rossouw.
MR ROSSOUW: Mr Chairman, he cannot give you the specifics of the person that was targeted in this incident, but he has told you in his application that the aim of these operations were aimed against activists and that the aim of the operations were to intimidate, to get them to a point where they would not partake in any similar unrest related incidents, which is even if in a broad view, similar to what was aimed specifically in this incident. On that basis and the fact that he has made the disclosure to the Committee in his application, I submit that just because he doesn't have the knowledge of the house number, and what was the outcome of the operation, Mr Chairman, does not disentitle him to amnesty.
MR MALAN: Mr Rossouw, are you arguing that he would be entitled to amnesty on a general basis for all such attacks that he couldn't remember, or cannot remember because if I understood it correctly, that was sort of the catch all clause of many of the applications.
MR ROSSOUW: Mr Chairman, may I refer the Committee to a decision that was given in the Cronje hearings initially in respect of an application by Captain Hechter in respect of arson, attacks of petrol bombings on various houses. They were granted amnesty in respect of those instances Mr Chairman, where they have specifically said Mr Chairman, and it is repeated in the decision, that even though they weren't aware of who the people were, they can't remember the addresses of the houses and they foresaw that people could die, because this is Mr Chairman, I would say objectively viewed, one would be stupid to argue that this was not something that was foresaw ...
MR MALAN: I will read that then, so you don't have to take it further, thank you.
MR ROSSOUW: As far as this incident is concerned Mr Chairman, I would say the facts has now come to the knowledge of the applicant in respect of the consequence, what flowed from the operation, and as far as it is now being able to establish what happened there, the Committee can grant him amnesty in respect of that, because he is not denying that he was involved in the operation. Mr Chairman, may I lastly also mention that as far as Mr Gouws is concerned, he is in the same position as Mr Goosen as far as their rank is concerned. They were both Sergeants, they were following orders. The position of a foot-soldier in this instance, I would argue to the Committee is different from the Commanding Officer taking the lead and I could specifically refer the Committee to the amnesty decision of Dawid Petrus Botha who was an applicant and he was the Commanding Officer in respect of some soldiers who opened, they opened fire blindly on a bus full of black people, apparently as a sort of revenge attack for an attack by PAC people. Mr Chairman, in that instance amnesty was refused to the Commanding Officer because he didn't act under instruction. The foot-soldiers, acting under his command, was granted amnesty. As far as Mr Gouws is concerned, he told you that he was not aware who gathered the information and who identified the targets. He was not involved in that, but he followed the command of Captain Hechter in these operations and I would submit that being a 24 year old Sergeant, being seconded to the Security Branch at that stage, sharing an office with Captain Hechter, he was not in a position to question the orders given and that he would follow it. I would submit Mr Chairman, that he has made a full disclosure of all the relevant facts, that his application complies with the requirements ...
MR MALAN: Except those facts that he can't recall but I don't think you have to address us further on this and I think I am also speaking for the other Committee members when I say I don't think we need to hear you on any general argument on this, any further.
MR ROSSOUW: Thank you Mr Chairman.
JUDGE PILLAY: What is he seeking amnesty for?
MR ROSSOUW: Mr Chairman, I have foresaw that Mr Alberts will draw Heads of argument, and therefore I didn't take time to do so.
MR MALAN: He is known to be a diligent lawyer.
CHAIRPERSON: Are you asking for the same as Hechter, 1 to 5 and 7?
MR ROSSOUW: Mr Chairman, in respect of 8, I would ask for Mr Gouws, because he did carry the AK47. I can't address you on whether this was an illegal firearm as far as possession is concerned or not, but ...
CHAIRPERSON: Isn't the onus on him, so for him it is, it doesn't apply to Goosen because there is no onus on Goosen, but I think the onus isn't there if you are in possession of a firearm?
MR ROSSOUW: Indeed. Mr Chairman, one submission in respect of the firearm, we know that when they were on a sanctioned operation, they didn't hesitate to carry their weapons that they were issued with. Now they are on an illegal operation, a covert operation and I would submit that it is very unlikely, very improbable that they would carry a weapon.
JUDGE PILLAY: Is that presumption in terms of the Act, not still operative, that you are presumed to be in unlawful possession until you produce a licence, or has that gone?
MR ROSSOUW: I think all the presumptions Mr Chairman, has been declared unconstitutional. I would ask also for 8 and 7 as amended, Mr Chairman.
ADV STEENKAMP IN ARGUMENT: Thank you Mr Chairman. On behalf of the victims Mr Chairman, the victims are of the opinion that the attack on the house and the subsequent killing of one of the inhabitants, was totally disproportionate. Their view is basically the following - that the Police had different ways and legal means and even in this circumstances, illegal means to obtain their objective. Some of the legal means they had or powers they had, was for instance to use Section 29 the Security legislation at that time, which was still operative, they could even arrest him, they could even bring an application to revoke his bail application. The regulations regarding the state of emergency was also still operative. None of this was done, whatsoever, although we must remember that all the information regarding Mr Ledwaba was in the possession of the Police, which is uncontested or at this stage, as far as I am concerned, accepted, which was basically he was on bail, apparently the bail was granted to him at the High Court in Pretoria. Interesting enough, even though the applicants are saying that Mr Ledwaba was a high profile activist, I find it interesting enough that even the High Court in the circumstances, would still grant him bail. Be that as it may, he even reported on a daily basis to the local Police station. If I listen carefully to the applications, the applicants' detailed applications, they had a lot of information on Mr Ledwaba. Furthermore they had other means, I would call them for the moment, illegal means to even abduct him or kidnap him or just made him disappear. This was not done at all.
JUDGE PILLAY: They could have kept him at the Police station where he reported?
ADV STEENKAMP: Exactly Mr Chairman. My view is I would agree with my learned colleague ...
MR MALAN: May I just ask, is there any evidence before us except what you put before us by way of a statement?
ADV STEENKAMP: Well Mr Chairman, it was uncontested, it was accepted ...
MR MALAN: Mr Steenkamp, there was no evidence?
ADV STEENKAMP: Mr Chairman, be that as it may, the fact is that this was put and I am sure in the circumstances, I don't think although it may not be evidence, these facts were put to the applicants in the pure view that they will be accepted, because it was factual contents, that was my instruction. If there was no factual or dispute by any of my learned friends here, those facts were correct whatsoever. I would suggest Mr Chairman, in the circumstances, it is the view of the victims that this was a senseless and even callous, reckless attack on the house of the Ledwaba's. Nothing was done, this is my view Mr Chairman, where the question of proportionality comes into, is the fact, the question must be asked, what was done to minimise the hurt or the injury to possible lives of civilians. In the circumstances, taking all the information that was available and all the legal means that was also available to the applicants, it is my respectful submission that nothing, absolutely nothing was done. No steps were taken whatsoever, to minimise the possible killing or injure of any civilians. Specifically where other means and information were already in the possession of the Police, the Police knew the Ledwaba household very well, they even knew where he was staying. They visited his house. Although I made the suggestion from the bar, it is still my view although it is not evidence, the pure fact is it was never disputed whatsoever. In fact, if I am not mistaken, my colleague Mr Alberts actually in certain cases, supported the fact that yes, Mr Ledwaba was arrested, he was on bail, so for the pure fact that the only thing that can be in contention is the fact that Ledwaba didn't stay there and if necessary, eight or nine applicants or at least seven victims could have been called to say so. A further point I would like to make on behalf of the victims, Mr Chairman, and maybe this is just ...
CHAIRPERSON: Do you say he didn't stay there?
ADV STEENKAMP: No, I am saying he did stay there Mr Chairman, it is not in contention.
CHAIRPERSON: He stayed there all his life?
ADV STEENKAMP: Yes, that is correct Mr Chairman. Mr Chairman, the last thing I want to add to my submission is a very interesting fact, although Ledwaba was in the view of the applicants a very dangerous person, he was on the point, actually the next day to organise some sort of army for lack of a better word to attack Police Officers, after the incident, he was standing around there, never arrested, they just left him there, a day before they decide to kill him or at least attack his house to minimise the risk to Police Officers. During the incident, one of the applicants on the scene, Ledwaba was standing there even asking if he can help the Police or some of the people who were injured. He was never arrested, so nothing happened to him afterwards, which begs the question why was the Ledwaba household attacked? It is the view of the victims Mr Chairman, in the circumstances, it was a senseless attack. It was just an attack in this circumstances, without any reason. There was clearly no legitimate reason to attack the house except maybe to scare the people staying there.
JUDGE PILLAY: Mr Steenkamp, maybe that is so when we look at the facts afterwards, but didn't they rely on informers' information which may or may not be correct?
ADV STEENKAMP: That may be so Mr Chairman, but the uncontested fact still is nothing was done afterwards to either arrest him or abduct him or whatever, nothing was done. Apparently he was subsequently shot by the Police in a follow up operation, but not by one of the applicants. No action was taken whatsoever to prevent them.
JUDGE PILLAY: During the funeral or after the funeral?
ADV STEENKAMP: Mr Chairman, as far as I remember, there was no information that actually a funeral occurred or where Mr Ledwaba was present, he was as far as my information is concerned, he was present at the house after the bombing, specifically minutes after the bombing. He was present there, that is my point Mr Chairman, if this was such a threat to the community and a threat to the Police, nothing was done, why was nothing done afterwards? He was just left there on the scene. No further follow up of information. I think there was further questions by the Chairman to Mr Goosen in this regard and no question even to Mr Gouws or Mr Hechter, nothing came forward. They had the information, they had to kill this guy, this luckless Mr Ledwaba urgently or remove him from society, but nothing was done after the incident whatsoever, although he may be still alive, he was still alive.
MR MALAN: Mr Steenkamp, just on your statement about the presence of Mey Ledwaba after the bombing at the house, I can't recall such evidence, are you referring to your own statement?
ADV STEENKAMP: Yes Mr Chairman, I am referring to my own statement. Maybe I can just say there is no specific reason for not calling the victims, but I think in the circumstances and taking the emotional standard of the victims, I think it was my view at the moment, it is also the view of the victims, they didn't want to come in the witness box and be put under cross-examination in the circumstances. I thought in the circumstances all my learned colleagues at least for that moment, and for the facts that the moments put forward via my submissions to you, would be accepted, and it is my respectful submission that at this moment as far as I understand, it is accepted. It stands uncontested. Thank you Mr Chairman.
CHAIRPERSON: But as I recollect it, there is no evidence that any Policemen who knew him, were there afterwards? Mr Goosen did not know him, Mr Goosen was summonsed there as an expert, he was not asked about this, there is no evidence that presumably the Uniform Branch who investigated the explosion, that they knew anything about this at all, they would have realised that this man standing here is somebody the Security Police wants to assassinate. The Security Police certainly wouldn't tell them?
ADV STEENKAMP: That is absolutely correct Mr Chairman, I agree, but I think the only point I am trying to put to you is the fact that the Security Police had a broader view to intimidate the community. Although not maybe Mr Goosen or Mr Gouws knew him, the fact is the Security Police as a Unit, did nothing to abduct or remove him from society.
JUDGE PILLAY: How long after the incident did he die in fact?
ADV STEENKAMP: Mr Chairman, I don't have the full detail, I am sure maybe Mr Alberts can help us, but I think it was a few months after the incident that he was killed. A few months, I don't know.
MR ALBERTS: No Mr Chairman, as I recollect it, he was killed in 1992. This incident took place in 1986.
JUDGE PILLAY: It is a couple of years afterwards?
MR ALBERTS: It is a couple of years afterwards. Mr Chairman, Mr Goosen gave evidence as to the fact that he was out on bail, but that was in 1991, subsequent to 1991, between 1991 and 1992. He was on bail when he was killed eventually. All that was said that was relevant to the incident in 1986 by Mr Goosen, was that at that stage he was an accused in a necklace, but no there wasn't evidence that he was out on bail. In fact there was no trial, so I, that is the closest we can come to it. I just don't want any confusion to exist between the bail which was testified about in 1992 at least and the situation pertaining in 1986.
CHAIRPERSON: Is it really of any great relevance, it is quite clear he was well known to the Police, certain Policemen and that he was deemed to be an activist and he was arrested on various occasions on various charges. I think the last arrest was for the Delmas escape, wasn't it?
MR DU PLESSIS: Mr Chairman, I beg your pardon, there is just something that I have to raise now. I am not hundred percent sure if the victims - are the victims opposing this application and is Mr Steenkamp acting on behalf of the victims or what is the situation we have here, because my experience in previous applications was not that the TRC's Evidence Leader would act on behalf of victims and although I don't want to become embroiled in a dispute with Mr Steenkamp, I find that strange.
CHAIRPERSON: It does happen, it has happened in other applications.
CHAIRPERSON: And he informed us as I understood it, at the commencement of proceedings that he was acting for the victims.
MR DU PLESSIS: Yes, I don't want to make a point of that, I just want to be clear what the position is here. I have no objection if he acts on behalf of the victims. I just thought it strange, his vehement argument against my client Mr Chairman, that is all.
JUDGE PILLAY: Now you understand?
CHAIRPERSON: Does that conclude the argument? Very well, we will take time and we will adjourn now until two o'clock.