CHAIRPERSON: Alright gentlemen, we now come to the next matter set down for today's hearing, that is the attack on the house of Gregory Thulare in Tembisa. The Committee remains the same. Would the legal advisors please put themselves on record?
MR ALBERTS: Mr Chairman, I think my role has come to an end in these proceedings. Speaking for myself, I wish to thank you for the cordial and extremely pleasant manner in which these proceedings were conducted, I think it made everyone's task so much easier and then lastly, might I ask you to excuse me from further attendance.
CHAIRPERSON: I am not sure that one of your client's will agree it is quite so cordial as it might have been, but thank you for that. (Microphone not on)
MR NIEMAN: Chairperson, may I just come in here. I think my task is also completed now that Brigadier Van de Wall is finished. I also tried to give you shortened Heads of argument, I ask leave to hand it up if you will excuse me after that. Thank you.
MR DU PLESSIS: Mr Chairman, may I perhaps just for purposes of the record point out that Brigadier Cronje and Captain Hechter wishes to piggy-back on Mr Alberts' Heads of argument, Mr Chairman, in respect of the offences set out in the last paragraph, just for purposes of the record. Thank you Mr Chairman.
MR VISSER: Chairperson, complying with your request, my name is Louis Visser, I am instructed by Wagener Muller and I appear in the matter of the attack on the houses of Gregory Thulare and Godfrey Qwabe. We appear Chairperson, for two applicants before you, the first is Roos and the second is Viktor junior. Mr Chairman, while there is a moment of quiet, I may just inform you that we did not receive all the documentation which has been serving before you, we have merely been given extracts, so I don't know what your Bundles look like. I am sorry, I am sorry, my Attorney says he's got them. I will ask him for the reference pages, Chairperson.
JUDGE PILLAY: Mr Visser, that was one of the instances of a need to know basis.
CHAIRPERSON: The rest of you are on record?
MR DU PLESSIS: I am sorry Mr Chairman, I didn't follow, I beg your pardon. Mr Chairman, I act on behalf of Captain Hechter in this incident, as well as Brigadier Cronje in so far as he was the Commander of the applicants, on instructions of Strydom Britz Attorneys. I beg your pardon, Mr Chairman.
CHAIRPERSON: Brigadier Cronje in this, is just a general?
MR DU PLESSIS: It is the same kind of application as previously.
CHAIRPERSON: Yes, he hasn't set out any details in the application before us?
CHAIRPERSON: We haven't got detailed papers?
MR DU PLESSIS: No Mr Chairman, I can refer you to the specific page, page 101, and as far as I am aware it relates to Schedule 7 of Captain Hechter's application. It is Schedule 7 Mr Chairman, yes, of Captain Hechter's application, you will find that on page 101 of Bundle 1.
CHAIRPERSON: Sorry, 101, that was I thought Cronje's reference?
MR DU PLESSIS: Yes, that is Cronje's reference Mr Chairman. Captain Hechter's reference in this matter you will find in Bundle 1, his application you will find in Bundle 1, on page 39.
JUDGE PILLAY: Mr Du Plessis, have you informed the newcomers to this venue, about what the position of Mr Cronje is?
MR DU PLESSIS: No, I was going to place that on record now Mr Chairman. May I just place on record for purposes of Mr Visser and Mr Wagener, that Brigadier Cronje's application which was bound into the Bundles, was his first set of applications, which were already heard during the previous hearings. I handed up at the beginning of these hearings, a second set of applications of Brigadier Cronje, which includes applications for amnesty in respect of all the incidents where he was the Commander of people who worked under him. I think I have an extra copy of that available, I will make it available to Mr Visser.
MR VISSER: As long as it is not expected of me to deal with that, Mr Chairperson, because I know nothing about that, but perhaps on this topic, I might be permitted to refer you to the decision, the amnesty decision handed down by the original Amnesty Committee, where you will find on page 21 of that decision and perhaps I should just read it to you. We are talking about Cronje Chairperson, page 21 of his amnesty decision, handed down by the original Amnesty Committee and at that page, under Schedule 11 there is a heading that says "Offences committed by members under his command and his general instructions" and the Committee says
"... the applicant, in conclusion asks for amnesty in respect of his involvement as Commander in the offences committed by members under his command ..."
he stated that he was not personally involved in any of those offences and it may even be that he is still ignorant of some offences which might have been committed because of his general offences and over the page the relevant portion is this, Mr Chairperson -
"... the Committee refers to the decisions reached in the applications of Venter, Mentz, Hechter and Van Vuuren ..."
"... in every instance where they acted under orders of the applicant and received amnesty, a similar decision for amnesty is made in respect of the above applicant ..."
and then Mr Chairperson, if one might have regard to the amnesty decision in the case of Mr Hechter, page 4 thereof, under Schedule 4, you will note that he applied for amnesty in the following words -
"... various incidents of arson relating to the burning of houses in Mamelodi, Soshanguve and Atteridgeville during the period 1985 to 1987 ..."
and if you turn to page, the following page, page 5, you will see that the decision of the Amnesty Committee was that amnesty was therefore granted to the applicant and the said Van Vuuren as will be seen, etc, etc, in respect of and it says -
" ... various incidents of arson relating to the burning of houses in Mamelodi, Soshanguve, Atteridgeville..."
during that period of time which I have just mentioned and any offences, including any deaths or injuries that may have resulted from the burning of these houses. The only point here that appears here Chairperson, it does appear that because of the fact that the applicants and you will hear Viktor telling you the same today, being unsure of the facts of every incident, that there seems to be some sort of overlapping. There has been a general amnesty in the case of both Brigadier Cronje as well as Mr Hechter, but it now seems that where incidents have been able to be identified, they have been placed on your role in the present case, in addition to what they already have amnesty for, this is the only way I can look at it.
CHAIRPERSON: Yes. This incident for example, took place in Tembisa, a different area?
MR VISSER: Yes, it is a different area, yes.
CHAIRPERSON: And one they could remember and they put details, but it is exactly similar or appears to be, subject to (indistinct), to the other ones?
MR DU PLESSIS: Mr Chairman, I am sorry Mr Visser, maybe I could just deal with this issue because we dealt with it right at the beginning of these hearings and Mr Visser wasn't present. In Captain Hechter's, let me start with Captain Hechter, in his first application there were two applications pertaining to bombings of a general nature. The one concerned petrol bombings and the other one concerned other kinds of bomb attacks. That was contained in Schedule 17, you will recall we dealt with that right at the beginning. In respect of Schedule 17, you will see that the judgement was there weren't enough facts before the Committee, therefore the Committee would deal with that at a different stage when facts became available, Mr Chairman. You will recall that I approached you in chambers about that situation and requested from you an indication if that doesn't mean that the original Committee should hear those new applications. In so far as this application refers to a bomb attack not just by way of petrol bombing, it would fall under Schedule 17 of Captain Hechter's original application, which means that the Committee then gave an indication in respect of that, that they will consider it when new facts became available, and the Committee made a finding that in the previous application, he made a full disclosure of everything that he knew at that stage. I am sorry I don't have that Bundle with me, Mr Chairman. But it is where the judgement refers to Schedule, I think 17, 23 - there were four Schedules referred to.
JUDGE PILLAY: What you are referring to Mr Du Plessis, for Mr Visser's benefit is that he wasn't granted a blanket amnesty, but he would be granted amnesty in respect of the position he held, when and if identifiable incident is testified?
MR DU PLESSIS: Correct, such as this incident. And then may I just point out that in respect of Brigadier Cronje's application, the original applications, you should with respect keep in mind that when those applications were made, those were the incidents which they recalled. All these incidents are incidents which they didn't recall then and can't recall now. At that stage Brigadier Cronje applied as the Commander in respect of the incidents which Captain Hechter applied for, Colonel Venter applied for, Mr Mentz applied for. Subsequently these incidents such as we are dealing with now, came to light and Brigadier Cronje compiled a new set of applications, in which he said I know nothing of this, but I was the Commander, so similarly I take responsibility. He hasn't received amnesty for these new applications in respect of that general amnesty, he still has to apply.
MR DU PLESSIS: I just point that out for Mr Visser's purpose.
MR VISSER: I am indebted to my learned friend and particularly for drawing my attention to page 9 of Mr Hechter's amnesty decision, which deals with Schedules 8, 17, 19 and 23. I have a complete understanding of the situation now. Chairperson, if we can then directly continue. If you will allow me a word of introduction Chairman. On the 5th of February this year a meeting was held, Chaired by yourself at which Commissioner Malan was also present inter alia, during which meeting we were told that there was going to be an accelerated process in order to attempt to finish the amnesty applications during this year if possible. Chairperson, at that meeting, we were asked the way I understood it, whether we would contribute from our side, as best we can, in order to accelerate the process. Mr Chairman, one of the points which was very pertinently made, was the reality that in most amnesty applications, up to that point, we at least, and I am sure my learned friend, Mr Du Plessis, had prepared copious documentation and copious argument was also presented on matters which have since become common cause. We talk about issues referring to the struggle of the past, the conflict of the past, the position of Policemen, how they saw the pressures, how they experienced the pressured brought to bear upon them, how grey areas evolved in which they thought they might be acting lawfully, whereas they were in fact acting unlawfully and such matters, including Chairperson ...
CHAIRPERSON: (Microphone not on)
MR VISSER: I should have put it that way, thank you Mr Chairman, but the point I am trying to make is that it was sought by that meeting and agreed and we understood it, that we would be able in future merely to refer by way of cross-reference, to other evidence instead of repeating all of that each time we arrive before an Amnesty Committee with our future applications. Chairperson, we sat down and thought, my Attorney and myself, how we could contribute towards this end, and the one thing which we have done and which has been accepted by the Amnesty Committee before which we are appearing in Johannesburg at this time, is to have made a very brief synopsis of the issues which normally, which are normally relevant to most amnesty applications. We have been able to draw a very brief summary of the general background, because of the amnesty decision which the original Amnesty Committee handed down in the case of Jan Hattingh Cronje. We also referred to that. Chairperson, the idea was that at the beginning of a series of amnesty applications before a particular Amnesty Committee, we would simply hand that up, we would give the Amnesty Committee time to look through it and if there is anything which they wanted to raise with us, any of the Commissioners, we would then deal with it. As it turned out, nothing was raised during the last hearing. You will not even have to read through this, none of the Commissioners now on the bench as it were, would have to read this Chairperson, because you must have read this so often in the previous applications in which we appeared, that I really wouldn't inflict upon you a demand that you should read it, but may we hand it up to you with the request that that should serve as a basis for our applications so that we can go directly to the facts and there by save time?
CHAIRPERSON: Mr Visser, are you going to be at this meeting tonight?
MR VISSER: I understand there is a meeting in Johannesburg, we have a problem as to what we may or may not do, from moment to moment, I don't know whether I am appearing in the matter or not, Chairperson, but is something fundamental bound to happen at the meeting tonight, Chairperson?
CHAIRPERSON: I don't know what is going to happen, I am trying to find out, but my recollection and my notes is the same as yours, but I think that we went a little bit further, that the idea as I understood it was in the De Kock hearings, that at the commencement of the first hearing, we were to put up and I say we - all the applicants were to be given the opportunity at that one hearing, to put up documents such as you have now prepared, that they would then form part of the record of the De Kock hearing and it would not be necessary to do it again at other hearings. This is the background information and I hope to discuss it this evening and find out if anybody has done anything about it, except yourselves.
MR VISSER: Chairperson, if I am not authorised to go to this meeting, you will be able to place on the table what we are handing in to you now.
MR VISSER: What I propose to do tonight, one of the things that I propose to do, is that I will make myself available next week, here, in Pretoria, in this building for further consultations with persons appearing in the De Kock hearings, where we can get, I hope, documents such as this made available and it can be distributed before the hearings, so that we don't have to adjourn to read them, and I will tell the Leader of Evidence to keep and make contact with your Attorney and give him details of where and what. But if you wish to have any further discussions with me, I will give you a cellphone number and next week we can try to get this, because my recollection I may be optimistic, was that in fact we agreed to do slightly more than merely do the background, that there was to be a summary of witnesses to be called or affidavits of the evidence which would be circulated, they would be given to the victims, they would in turn give theirs back, so all the parties had sight of what amounts to the pleadings before the hearing, and I don't think this has been done.
MR VISSER: No, it hasn't Chairperson, my Attorney has just told me he has received nothing.
CHAIRPERSON: No, well, that I regret. I will see what we can do tonight, to sort it out. In the meantime you can hand that up if you want to.
MR VISSER: Yes thank you Chairperson. As I say Chairperson, it is a very brief summary and it is a very brief summary Chairperson, and it is intended to be an omnibus document for the very purposes which you have just mentioned. Chairperson, obviously not all applicants will find that everything applies to him, so that because of that, at the beginning of the evidence of each of the applicants, I will briefly ask him what portions of that is not applicable to him.
CHAIRPERSON: The practice we have followed here during these hearings where we have four Bundles of applications, is that in connection with each hearing, the applicant has been referred to the general averments in his application, pages 20 to 57 and then to the specific incident, and that is all each time. He has been taken through if there were points that they want to develop or deal, but we do not consider it necessary that he should have to go word by word through matters that he has already confirmed under oath.
MR VISSER: Chairperson, that is obviously the way to go. The only request which we would make or comment, would be that such an agreement would have to be binding on all other Amnesty Committees Chairman, because the moment you have one Amnesty Committee who does not follow these views which you have expressed and I have tried to place on record here this morning, the whole system is going to go by the wayside. We would like to think that in future, what we have been discussing here this morning, will be accepted by all Amnesty Committees, because it will place us in an invidious situation should we arrive before an Amnesty Committee who says well, I can't accept that, I want to know what Van der Merwe said, I want to know what Vlok said, that portion of his evidence are you relying on, and you can't just cross-refers to it. Allow me just to make that point. Chairperson, may I refer you to this ...
JUDGE PILLAY: Mr Visser, is it intended that that document would be excluded, disabled from being cross-examined upon?
MR VISSER: Not at all. Not at all, the rule as I understand it, is if anyone who has an interest wishes to cross-examine on any point, in fact the witness will have to be called. yes, no, quite clearly Judge Pillay is quite correct. Chairman, may I very briefly refer you to this document, could it be given an exhibit number Mr Chairperson, it will be B I suppose, oh A, yes, Exhibit A Chairperson. At page 1 of A, we have set out the cross-references in line with the new accelerates process, we have set out the cross-references to which we wish to refer to be incorporated in the evidence of the applicants. You will recall Chairperson, in February 1997 we handed up these documents to you and they were given exhibit numbers P45, P46 and P47 and the intention was that they would then serve once and for all, as background documents for all amnesty applications to come.
CHAIRPERSON: One of the problems that I see, is that is all very well for the original Committee who got all these, but there are now other Committees, different Committees and I am not sure if arrangements have been made to supply the members of those Committees with these documents which some of us heard them when they were mentioned for the first time, and had copies and I think it might be a matter that should be taken up by your Attorney with the office in Cape Town as to the making available to Committees or to the Chairman of the Committees these documents. I don't think you need make for example (indistinct), complete to everyone, if the Chairman has a copy, they can photostat the relevant pages if somebody wants to refer to it, matters of that nature, but I think I haven't appreciated this problem before that Mr Du Plessis has throughout the hearings, been proceeding on the basis of well, Judge Wilson will remember we had this evidence and Judge Wilson will remember we did this. But when one's got other people in who had not had that benefit, I think one should try to take some steps to ensure that they get the documentation.
MR VISSER: Yes Chairperson, point taken. It is true that originally it was only circulated among the original members of the - point taken, Chairperson. And then we refer to the evidence which we specified here of Gen Van der Merwe before the original Amnesty Committee on the 21st of October and on the 27th of February and in the amnesty hearing of Stanza Bopape and then that of Gen Van der Merwe and Adriaan Vlok, to which also the Amnesty Committee has referred in the Cronje decision, in the amnesty hearings of the Cosatu House, Khotso House and Cry Freedom. Then obviously we rely Chairperson, on page 2, paragraph 6, on the amnesty decisions for purposes of reliance in terms of trying to abbreviate the proceedings before you. Mr Chairman, very briefly to give you a feel of the document, we deal with the document ...
CHAIRPERSON: Sorry for interrupting you again, there is a Bundle of that before us now. Your Attorney's got a copy, he could, if it is going to be used elsewhere also, if he contacts our Cape Town office, draw their attention to this Bundle which you want to have made available to the other Committees?
MR VISSER: Yes, thank you Chairperson, yes, I believe that might already have been done, but - thank you Chairperson, again point taken Chairperson. We deal Chairperson, I am not going to go through it in detail with the background and experiences of Policemen, we refer you to the Brigadier Cronje judgement, page 2 thereof. This continues, we make various extracts from that in order to make the points, Chairperson, also at pages 5 and 6, we deal with the pressures. We deal with the Rooi Gevaar at page 7 and the evidence of Mr Vlok, we deal with the, very briefly indeed, with the conflict of the past and we again at page 11 refer you to your own judgement, upon which we heavily rely Chairperson. At page 13 we deal with the position of various applicants during the conflict, the political background and motivation. It speaks for itself Chairperson. Then at the bottom of page 15, we deal because in many instances it becomes relevant, we deal with the role which the neighbouring States played during the course of the conflict of the past, and we deal in turn with Botswana at page 16, Swaziland at page 18 and Lesotho at page 19. They will not be relevant before you in the present hearing Chairperson, and we briefly deal at page 20 with the importance of information and with the position of informants in general. And that is the sum total of what we place before you which will cover most instances, Chairperson, and which we would ask you to bear in mind in considering the amnesty applications. Chairperson, if I then may go directly to the present instance, the first witness which we wish to call is Mr Andre Roos, and we have prepared - yes my Attorney has just reminded me Chairperson, we have decided during the course of this week, when we used Exhibit A before Commissioner Denzil and other Commissioners in Johannesburg, that it might be appropriate to translate this document into English which we will do in due course for whatever it is worth.
JUDGE PILLAY: I was forced to do a course in Afrikaans, I understand.
MR VISSER: Thank you Chairperson, that would save you some work. Mr Chairman, we would beg leave to call Mr Andre Roos and in his case, as we want to do, we have prepared a brief statement which is very similar to his amnesty application, but for the possible assistance of the Committee in not having to take down notes of what he is going to say, we beg leave to hand that up as Exhibit B Chairperson. The amnesty application of Mr Roos, I am told, is to be found in Bundle 1, from page 72 onwards Chairperson and the actual incident is reflected at page 78 of that Bundle. If Mr Roos could be sworn in Chairperson.
EXAMINATION BY MR VISSER: Mr Roos, you are an applicant for amnesty and your application is contained in Bundle 1, from page 72, is that correct?
MR ROOS: That is correct Chairperson.
MR VISSER: With reference to page 2, or rather page 73 where you deal with your service in the South African Police, you say Warrant, currently Deputy Head Director Head Office, Pretoria, what is your situation at present?
MR ROOS: The component has been restructured recently and I am currently in the post of Information Security.
MR VISSER: Apart from that, did you look recently at your application, and go through it?
MR ROOS: I did study my application Chairperson and the contents thereof is still correct to the best of my knowledge.
MR VISSER: There is also a statement compiled for you which serves before the Committee as Exhibit B, did you go through the statement?
MR ROOS: I did look at it Chairperson.
MR VISSER: And the information in there, is that also true and correct?
MR VISSER: Mr Roos on page 1 of Exhibit B, you say that you have to take certain relevant evidence in to account and you refer to Exhibit A a general background document, is that correct?
MR VISSER: Did you have an opportunity to study this document before the time?
MR ROOS: I did indeed Chairperson.
MR VISSER: Are there parts of that document that do not apply to you?
MR ROOS: Certain parts are not relevant per se to my application, although because of my knowledge as a member of the Security Branch, I can associate myself with the contents thereof.
MR VISSER: Can you associate yourself with the contents of the entire document?
MR ROOS: Yes, indeed Chairperson.
MR VISSER: You asked me to indicate that there are certain paragraphs that affect you personally that you want to emphasise, are those paragraphs 14, 15, 16, 18, 19, 24, 41, 44 and 45?
MR ROOS: That is correct Chairperson.
MR VISSER: Can you then Mr Roos, refer directly to page 1. This matter took place, this incident took place in 1986, is that correct?
MR ROOS: That is correct Chairperson.
MR VISSER: And it was in Tembisa?
MR VISSER: Is that near Vereeniging?
MR ROOS: No, it is close to Kempton Park.
MR VISSER: We will argue at the end, that this was damage to property, possible attempted murder or a lesser judgement and perjury or any other crime or unlawful act that may appear from the facts, is that correct?
MR VISSER: Can you go to page 2 and tell the Committee what your knowledge and recollection of this incident is?
MR ROOS: Thank you Chairperson. From March 1986 I was transferred to Tembisa where I served in the rank of Branch Manager of the Security Branch. In that time, the township ...
MR VISSER: Can I interrupt for a moment, two aspects, the aim of the statement that we compiled was to avoid notes being taken, so can you please stay with the words of the statement? The second thing is would you please go a bit slower because everything that you are saying in Afrikaans, is being translated to certain other languages, so if you could just keep in mind that while you are speaking, please give the Interpreters the opportunity to stay with you. Continue with paragraph 2.
MR ROOS: In that time, Tembisa was under the burden of large scale unrest and violence. This was manifested amongst other things, in boycotts, school boycotts, consumer boycotts and wide spread unrest.
CHAIRPERSON: Mr Visser, we would be satisfied if he merely confirmed the contents, paragraph 1 to 16 and deal with anything that he wishes to amplify, where there may be some slight difference of opinion.
MR VISSER: Chairperson, that is indeed his evidence, he has already confirmed it, perhaps I should just deal with what is stated at page 3, paragraph 14. After the incidents took place, you say there was a considerable decrease in unrest in Tembisa?
MR ROOS: That is correct Chairperson.
MR VISSER: Do you believe that these incidents were contributory factors?
MR ROOS: That is my objective opinion.
MR VISSER: And you say that you did not act for personal profit or revenge, but what you did, you did in order to combat the unrest and thereby tried to keep the National Party, the previous government, in power?
MR ROOS: That is correct Chairperson.
MR VISSER: Is it also your conviction that you acted not as an individual, but that you acted as a Policeman in the execution of your duties and which you believed fell within the scope of your capacities?
MR ROOS: That is correct Chairperson.
MR VISSER: You are therefore asking the Committee to consider your amnesty application favourably, as already mentioned in page 1, paragraphs 1.1 to 1.4.
MR VISSER: Thank you Chairperson.
JUDGE PILLAY: Is there any person who was killed?
MR ROOS: Not to my knowledge Chairperson. I know there was a person injured in the Qwabe incident, but I don't know ...
JUDGE PILLAY: I am talking about this specific incident?
MR ROOS: To the best of my knowledge, no one was killed Chairperson.
MR VISSER: Chairperson, yes, just by way of explanation, we haven't gone through the evidence now, this witness wasn't present during the attack, point one, but secondly he sets out in paragraph 11 at page 3, that he later determined or established that a lady was injured in the explosion in regard to Godfrey Qwabe's home.
JUDGE PILLAY: I understand that, but that is not the incident we are dealing with.
CHAIRPERSON: Yes, the two we are dealing with. We are dealing with two attacks.
MR VISSER: Yes Chairperson, on the same night, two incidents took place.
CHAIRPERSON: An attack on Thulare and an attack on Qwabe?
MR VISSER: Yes Chairperson, and it was all part and parcel of basically the same operation. Chairperson, the other two witnesses who will follow Mr Roos, have a very vague recollection of this. The facts will show that there was an attack with a bomb on the house of Qwabe and that there was not a bomb attack, but a firearm attack whereby they shot with Russian firearms at the house of Mr Thulare, so I just wanted to give that background as well. Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR VISSER
MR DU PLESSIS: Mr Chairman, I have no questions.
NO CROSS-EXAMINATION BY MR DU PLESSIS
ADV STEENKAMP: Mr Chairman, I have no questions either, thank you Mr Chairman.
NO CROSS-EXAMINATION BY ADV STEENKAMP
JUDGE PILLAY: Mr Visser, can you help me, possibly it won't be necessary to ask the question, but the incident, the second incident of that night, is that mentioned at all in the original application? I cannot find it.
JUDGE PILLAY: The incident at the house of Godfrey Qwabe?
MR VISSER: Mr Chairman, yes, indeed. I may refer you to page 79 of Bundle 1, where you will find at the bottom of that page, he says there was a meeting between him and two operatives from Pretoria, the one was Hechter and we now know the other was Viktor, although Roos couldn't remember, and he says that that meeting took place at Olifantsfontein Police station...
JUDGE PILLAY: That answers my question.
MR VISSER: Thank you Mr Chairman. I may just add Chairman, that in line with his evidence, that took place after he had gone and spoken to Brigadier Cronje about his problems and Brigadier Cronje had undertaken to help him solve his problems. This was the way in which that was attempted to be done.