Amnesty Hearings — Port Elizabeth — UNKNOWN

UNKNOWN: That is correct with regard to that particular incident.   We will deal at a later stage with the perjury which occurred on the Saturday.   With the regard to the assault on the particular day of the 6th of September, it was in fact delimited to what you have sketched.
      I want to invite your intention to Section 20(2) the question about an offence or delict.   It is not necessary to elaborate on the meaning of this.   In the applicant's application the offences were set out in detail in respect for which offences amnesty are applied for.   It is respectfully submitted that any competent verdicts in terms of Section 256-279 of the Criminal Procedure Act 51 of 1997, falling under the offences should be incorporated as well as other offences not specifically identified, but which appear from the facts.
      Furthermore, amnesty should also be granted in respect of any act which could be regarded as a delict, and therefore amnesty should be granted in a wide manner, referring to the specific act or omission in respect of civil liability.   Section 20 provides for the granting of amnesty in respect of an act, omission or offence.   Criminal Law pertains to the last mentioned.  In respect of Civil Law, amnesty should be granted in the widest possible terms, with reference to the act or omission.   
	It is therefore submitted that amnesty should be granted in respect of any delict which could arise from any act or omission committed by the applicant, as referred to in the facts of the application, and the evidence pertaining to each and every application.
      Mr Chair what I attempt to say in this, is that it is not only the events of that morning of the 6th September which has to be considered, but also those events of the afternoon after two with regard to Mr Beneke.   You will recall that at about two o'clock he returned to duty and Sergeant Nieuwoudt and himself were given the instruction to guard the late Mr Biko.   The testimony of Mr Beneke was that immediately at two o'clock he gave instruction to Niewoudt to report that Biko required medical attention.   I am not here to make - to argue a case against my client, but it could be argued that a reasonable person might well have made more incisive inquiries with regard to the granting of medical assistance to Mr Biko because the fact is that Mr Biko was still partly unconscious during the course of that afternoon, between two and four o'clock in the afternoon.   There is only a single report with regard to the quest of medical attention.   There is no testing with regard to whether this had been attended to.   It might well be that under particular circumstances it could be argued that there is in fact delictual culpability.

MR POTGIETER: What political purpose would your client have had when he committed this delict?

UNKNOWN: The political intention, and I've already referred to this, and I believe in my submission that we must be careful not to categorise this.   It is part of a bigger picture and this bigger picture is, that there had been at that time, I would like to say a war between the State and the so called Liberation Movements.	I do not want to place ever particular act under a microscope.  I want to say that we must look at the bigger picture.  That is my submission that the bigger picture is one of resistance against the Liberation movements and the maintenance of the then order, and if he had been negligent subsequently that would have been part of that struggle.    Yes it would have been a part of the bigger picture.
	I want to  refer you to Section 20, sub-section 2, sub-section A.   The applicants have all stated that they had been supporters of the National Party, which formed the previous government until 1994, and which was a publicly known political organisation.   The evidence of all the applicants has been that they have been involved bona fide in the furtherance of the political struggle waged by the National Party, which was the Government, against the Liberation Movements including the ANC, PAC and SACP.
      The whole background and context in which the applicants had to operate, especially pertaining to orders in respect of covert operations, added to a reasonable belief that any order to eliminate an activist or terrorist, and orders to take counter-revolutionary steps, such as bombings and interrogations, were all part of the counter-revolutionary strategy of the Government.  
	Let's again look at Rapholo v The State President.   The context against which the acts took place with particular reference to the question if it was a political uprising, disturbance or event, or reaction thereto, is a wide requirement.   A wide interpretation was also applied by his Lordship, Mr. Justice Van Dykhorst, in the Rapholo v State President.   It is in any event clear that the actions of the applicants were at all relevant times part of the counter-revolutionary strategy of the National Party Government against the Liberation forces, as part of a war effort called the People's War by the Liberation Movements, and that it was directed against the political strategy of the Liberation Movements, and specifically at the ANC with a view to overthrowing the Government.   The context was therefore clearly political.
      The offences for which the applicant has applied for are listed in his application.   It is submitted that in certain instances there may be doubt on the facts if the applicant had committed a certain offence.   In this regard it is submitted that the applicant, Mr. Beneke, should be afforded the benefit of the doubt, and that he should receive amnesty for such offences as well.   Furthermore, all competent verdicts falling under a specific offence is also included in the application amnesty.
MR. POTGIETER: Does that include murder?

UNKNOWN: With respect Chair, there was no intent amongst these applicants to murder Mr Biko.   At most this could be culpable homicide, in view of the testimony given here.
      I further want to invite your attention my Lord to Section 23F, 20(3)(F).   His Lordship Mr. Justice Van Dykhorst said the following in the Rapholo decision pertaining to this interpretation.
"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 is correct, but in my respectful view it is not a relevant consideration.   That is what Mr. Justice Van Dykhorst says.

CHAIRPERSON: At what page is that?
MR. ERASMUS:: That should be - I cannot give you the specific page on this day Sir, but I will come back to you on that one.
"In our warped world what is frowned upon if done to a single individual, becomes the stuff of sagas if in war time, when whole enemies are wiped out".
      For the purposes of the guidelines something akin to a war situation has to be envisaged.   It is submitted that a war situation prevailed in South Africa and that there was a low intensity guerrilla war in South Africa.  Actions of Security Policemen should be regarded in that light.  The killing of a political opponent in a war situation would then become more accepted and justified.   This especially so if such and opponent took part in the hostilities."
      My Lord I see it is almost 11 o'clock.   Maybe time to adjourn at this stage?

CHAIRPERSON: Have you got very much more to deal with?   Yes, we'll take a short adjournment.   Let's try be punctual.   Let's be here within fifteen minutes.
COMMITTEE ADJOURNS
ON RESUMPTION