Special Hearings — Trojan Horse Hearings — 1997-05-21

MR NTSEBEZA: No that's just part of an investigative process, but we will see what we can do - but are you denying or are you saying you do not remember that in 1986, the following year, in March, you and Captain Bester ordered an unmanned vehicle to go into Guguletu and Crossroad areas where the Police would be hiding under canvas, in other words green ordinary plastic covering, are you saying you don't recall that incident or are you saying it never happened or are you saying ...(intervention)

UNKNOWN: No, I can't remember it.  You must remember Chairperson that in those days I was involved in a lot of planning.  There were a lot of things happening at the time and unless something specific happened on that day which will focus my attention on it then I wouldn't be able to recall.  Did anything specific happen on that day?  I would like to help you but I simply can't remember.

MR NTSEBEZA: I don't think it's going to assist us if you don't even remember when I tried to remind you that Captain Bester was one of the persons who was involved in that outing, Albertus Myburgh Smit was the driver.  The following persons James Meyer, Ralph Dennis Smith, Lourens de Jong, Francois van der Merwe, those were the police that were involved, more-or-less the same police were involved in this particular operation.  You don't remember it?

UNKNOWN: No.

MR NTSEBEZA: Now you said in your evidence that you also discussed the implications of Section 49 of the Criminal Procedure Act, did I understand you correctly?

UNKNOWN: Correct.

MR NTSEBEZA: Now can you tell the laypersons like the rest of us on the panel here what Section 49 of the Criminal Procedure Act provides?

UNKNOWN: Yes I specifically referred to the Criminal Procedure Act in the sense that ...(intervention)

MR NTSEBEZA: Section 49.

UNKNOWN: Ja.  That if there was no other way to perform an arrest than to kill somebody that must be borne in mind.  In other words when there is no other way to perform an arrest than a person may be killed to achieve the objective or violence may be used to achieve the goal.

MR NTSEBEZA: So that was decided at the planning meeting on the 15th that the operatives who were going to go into Athlone should realise that they have got a legal justification to kill, was that the sum total of what was discussed?

UNKNOWN: No, it was not decided during the planning session, that is what I told to Vermeulen in my instructions to him.

MR NTSEBEZA: Where was this?

UNKNOWN: That was after I called him in at 4 o'clock that afternoon and after I had explained the situation to him.

MR NTSEBEZA: In other words your order was that you must remember Vermeulen that you have a legal justification to kill?

UNKNOWN: You've just said the opposite to what I have said.  I said remember performing an arrest is our main objective but if an arrest cannot be achieved by the normal methods then Section 49 of the Criminal Procedure Act should be borne in mind.  But there are two connotations here, one negative and one positive and you are now taking the negative one.  I didn't say remember that there is a legal justification protecting you, therefore you are just free to fire, that's not what I said.

MR NTSEBEZA: I didn't say that either.  I am simply saying that you reminded Vermeulen that there is a law in this country contained in Section 49 of the Criminal Procedure Act which justifies the taking of a life when certain offences are committed, you have a legal basis to kill, is that what you explained to him?

UNKNOWN: That is correct.

MR NTSEBEZA: So you did anticipate that there may arise circumstances in that operation where police might be forced to kill?

UNKNOWN: As ...(intervention)

MR NTSEBEZA: You did foresee the possibility, no, the probability of the police in the circumstances having to kill.

UNKNOWN: (No translation is given for a good deal of this....)  Some of those people were wounded in the course of performing arrests, so yes I did foresee it because those are the realities of life.

MR NTSEBEZA: Yes.  May I suggest that in the particular circumstances of this case there was even more reason for you to believe that death would result.  I will tell you why.
 Firstly, you were sending a group of people in a built-up area, in other words where children, women, old women and men were moving around, it's a built up area and I've travelled here today and I've seen that the streets as you have testified are narrow.     
 Secondly, you had men who were going there under false pretences, in other words they were police going there as ordinary Railway people. 
 Thirdly, they were armed to the teeth.
 Fourthly, it was an area in which cars other than Police vehicles were being stoned and the possibility was that in this particular instance your car would be stoned.   Now, is it not reasonable to say, in this particular instance there was even more reason for you to believe that there was a likelihood, not just a possibility, a likelihood that, one, your vehicle would be mistaken for an ordinary vehicle and not a police vehicle.  
 Secondly, it would be attacked, stone-throwing would take place.
 Thirdly, your men, here hiding in crates, might panic and assume that their lives were in danger and that they would sooner use their rifles than otherwise, and that in the circumstances death might result.  Wasn't it reasonable to expect that this was the scenario that you should have had at the time that you were planning this?

UNKNOWN: If you look at the circumstances then it must be said that we intended to perform arrests and we realised that injuries could be sustained on both sides in this process.  It's something which you were aware of on a daily basis.  But we obviously expected that the vehicle would be stoned, that was the only way in which we could perform the arrests.  But I think that the intensity of the attack was so much worse that it wasn't simply a case of an individual throwing a stone and the officers jumping out and arresting, the attack was so intense that they first had to avert the attack.

MR NTSEBEZA: Now tell me, when you considered, and I want to assume that you applied your mind, when you considered the consequences of the Police having to resort to a Section 49 justification for killing and taking into account the area in which they were going to go into, I am just asking you now, did you think at that stage that being the sort-of built up area that children might be caught in the crossfire?  I am putting it at its most fairest for you.

UNKNOWN: No, I didn't think that children could become involved.

MR NTSEBEZA: No I am not talking about them being involved.  Didn't you think that in an area which you have described as having narrow streets and a built up area, residential area, that children might be wandering about and might be caught in the crossfire, did you not think that?

UNKNOWN: I didn't foresee that, but you must remember that a police officer is trained to shoot in certain circumstances but certainly not if the circumstances were such that innocent people could be killed.  It's just one of the basic principles we used in the police.
 I want to give you an example.  Where a robber robs somebody on a pavement in Cape Town and he runs away and he disappears amongst the pedestrians on the pavement there is no justification for a policeman to then shoot at that person running away because the possibility of hitting innocent people would be that much greater.  But where the policeman himself is being attacked, where the policeman is attacked by a robber armed with a firearm surely it can then be expected of him to fight back or shoot back, and in those circumstances people are injured and killed, yes.