Amnesty Hearings — Bloemfontein — 1998-08-17

MR STEENKAMP: May I just apologise for starting late, Mr Chairman, it's due to me speaking to some of the victims of the second matter, I do apologise.

CHAIRPERSON: The effect of that should speed up the beginning of the second matter.  It's only counsel engaged in the first matter only who've had to wait.  Right, we're ready to proceed.  We're continuing now with the De Ru application for the purpose of addresses on the evidence of yesterday.  It was indicated yesterday that if counsel wishes to supply written argument on any legal points that arise, they will be at liberty to do so.

MR MADASA: Thank you, Mr Chair.  Mr Chair, I will just proceed making submissions orally, as indicated yesterday by Mr Chair, and if there is a need after I've made the submissions, then subsequent submissions could be done in writing to the Committee, if there are matters that the Committee feels they have been uncovered or as the matter may be.

CHAIRPERSON: The purpose of that's merely that if you feel there are matters that you want to check up on, as you indicated yesterday, you said there were certain matters, you're at liberty to do so and submit a written submission in regard to those, because certain matters arose yesterday which you may not have applied your mind to before.

MR MADASA: Thank you, Mr Chair.
	Mr Chair, this is an application by the applicant, sorry, for amnesty relating to the killing of three persons, namely Makulu Solomon Khumalo, Richard Makhubo and Joseph Kabokoane, who were murdered on the 7th April 1992 near Sentra Hypersave, Vaal Park in Sasolburg.
	The applicant gave evidence and admitted in his evidence that he was involved in the murder of these three persons.

CHAIRPERSON: Is this being recorded and coming through to the translators?

MR MADASA: Mr Chair, it clearly can be inferred from the evidence that was given by the applicant, that the applicant admitted to the murder of the three persons.

CHAIRPERSON: How can you say he admitted to murder when he said he only gave instructions for his people to shoot after they had been shot at, to safeguard the lives of the people under his command?

MR MADASA: Thank you, Mr Chair.  My submission on this is based on the fact that in law the applicant may have, primarily have planned to arrest the persons, but the consequence of that plan clearly in law is prima facie murder, that is my submission, Mr Chair, in law that is prima facie murder and he could be charged for murder.  The question whether he can be convicted or not, does not arise before this Committee, but there's sufficient basis in law, prima facie, from that evidence, to infer that he admitted to murder, because simply on the question, amongst others, of dolus eventualis, he foresaw the possibility of these people being killed, and he planned accordingly.  That's if ...(intervention).

CHAIRPERSON: Are you saying that every time a policeman goes to arrest someone whom he knows to be armed and he foresees danger, and that person resists and he shoots him, that is murder?

MR MADASA: Mr Chair, I'm not saying every time, I'm saying in these circumstances, in accordance with this plan, I'm saying from that evidence it can be inferred that the applicant was reckless, having foreseen the possibility of resistance from the deceased, but he took no steps to ensure that that eventuality does not arise, and he reconciled himself with that eventuality by planning in such a manner that they would then kill if that case arose, and this is what happened.
	Or alternatively, he could be charged on culpable homicide, and if he is so charged, then he's entitled to amnesty if his case is good.  
	I'm saying it could be inferred from his evidence that he admitted to culpable homicide, for example, which is a competent verdict to murder, and if he's granted amnesty on murder charge for example, he cannot be charged subsequently on the charge of culpable homicide on the similar facts.  Therefore, if he's granted amnesty on the murder charges, he's as well exempted from being charged for culpable homicide, and the basis for saying that he could be charged for culpable homicide is clearly that a reasonable man, in the position of the applicant, ought to have taken necessary steps that would have been indicative that the gunfire only came from the car under the circumstances, and that only in that eventuality would they have opened fire on the occupants of the car, and the applicant did not, and secondly, a reasonable man in his position, having foreseen the possibility of fire triggered by some other source, other than by the occupants of the car, ought to have taken such steps to prevent the killing of occupants in that case, and applicant did not and was therefore negligent, it can be argued, and he admitted in his evidence, and it is trite that if a trap is flawed, as it seems to have been the case here, in law such a trap would be rejected.
	Issues to be decided, Mr Chair, here are whether the applicant committed the offences as described him, and those offences whether they were associated with a political objective, and secondly whether he made a full disclosure.
	Now I proceed to address that.  The following facts are common cause:  that the applicant was a member of SAP at the time, that is on the 7th April 1992, and was a captain in the Detective Branch, Sasolburg.  
	Secondly, that his immediate superior was Swanepoel, and that the applicant planned the arrest which resulted in subsequent killings of the deceaseds.
	It is also common cause that the applicant ordered Fouche, his colleague, to infiltrate the deceaseds' group organisation or gang, with a view to trap them and arrest them on behalf of the State, of which he was an employee.
	It's also common cause that on that day the deceased persons proceeded to Vaal Park Sentra Hypersave in a stolen yellow Cressida.  They were armed, albeit with small arms, and were shot and killed by the applicant and his colleagues.
	On the question of political objective, it is disputed by the leader of the investigation, on behalf of the families, that the deceased were members of a political organisation, and the Committee has to make a finding in this respect, and the applicant has stated that according to the information that he received, and his belief, based on that information, the deceased persons were members of a political organisation, namely ANC and MK.
	Secondly, on the issue of political objective, the Committee must make a finding on whether, if it accepts that the deceased were members of a political organisation, whether the applicant had reason to believe that the deceaseds' conduct was associated with a political activity.
	Thirdly, the Committee must also make a finding on this aspect as to whether the applicant's actions, which resulted in the commission of the killings, were associated with a political objective.
	Now, on the question whether the deceased were members of a political organisation, the applicant, in his evidence, stated that he relied on information from three sources, namely Chris Fouche, Elsa de Lange and Joseph, one of the deceased persons.  These people supplied him with information either collectively or at different instances or occasions.  
	The applicant's evidence has not been challenged by way of evidence, testimony before the Committee, except for some untested evidence by way of statements in the bundle, and that evidence remains untested by cross-examination.  
	Therefore, on that basis, the Committee is obliged to accept applicant's version.

CHAIRPERSON: Why do you say that?  The Act provides for the Committee to make investigations, to conduct inquiries, and then to hear evidence.  This is not a trial.

MR MADASA: Thank you, Mr Chair.  Well, in the absence of any other evidence arising, then if the applicant's testimony stands alone, as it is at the moment, then I submit ...(intervention).