Amnesty Hearings — Bloemfontein — 1998-08-17

CHAIRPERSON: But you are now saying he must have anticipated that De Ru would lose his head and order his ten men to open fire, because there was no plan according to your applicant's version to kill these people, that was the last thing they planned, they were to arrest them, they were to avoid any loss of life, that was the plan that he knew of, wasn't it?

MR MADASA: No, Mr Chair, I'm not saying that.

CHAIRPERSON: Was that not what De Ru says the police plan was?

MR MADASA: Fouche was told about the whole plan.  He was told that if these people fired from their car, then the police would then shoot the occupants.  Now ...(intervention).

CHAIRPERSON: If they fired from their car, that was the crux of the matter?

MR MADASA: Yes, but this is the area really of the negligence, that in fact what happened, the fire did not come from the car, it did not come from the car, and the only reasonable conclusion, that it came from Fouche himself, when ...(intervention).

CHAIRPERSON: Who was round the corner of the building, some considerable distance away, if you look at the plans, and I must say I had difficulty in accepting that anybody can think that bullets came from, how many feet below them we're told, ten feet below them, when in fact the shots were round the corner of a building, some distance away.

MR MADASA: Mr Chair, with respect, if you could try and recall in detail around this aspect, the plan was not see if the gun sound came from the car.  The plan was that if gunfire went off, it would be presumed that it came from the car, it would have been presumed that it came from the car, if they ...(intervention).

CHAIRPERSON: Oh come, come, if the gunshot went off half a  mile away, it would not be presumed to come from the car.  For your client to succeed on that version, he has to say, "I believed it came from the car".

MR MADASA: And Fouche was not miles away, he was around the corner, and if gunsound went off there and these people were in a state of anticipation, surely then it would have triggered off the fire?

MR MALAN: Mr Madasa, the construction that you're putting before us is the probability again of Fouche having planned the death of this gang, of the three male members of the gang.  Why would the applicant, having had access to Elsa, who's with the gang, who has infiltrated the gang, Fouche, who has infiltrated the gang, on all accounts, Joseph that he has contact with, living with Elsa, why would they not have planned some other opportunity, where only two more members of the gang were present, unarmed, to be arrested and investigated?  It's very, very difficult, on the basis of the facts, to accept that it would have been such an elaborate plan, assuming now the argument that Fouche indeed planned the killing, that the applicant would not have suggested a different plan, an easier one?  Why should we not also deduce that the applicant was in on Fouche's plan?

MR MADASA: Firstly because he denies that.  Secondly, because he trusted him, he says he trusted him, the information that he received from him.

MR MALAN: That, I accept both of your arguments, my question is really why would the applicant not have said to Fouche, "Do we really have to go through a robbery, why can't you bring in, I know Elsa, she comes to my office, I visit her at home, Joseph has been to me, we need the other two members, can't they all come and bring guns, so we can pay them for the guns and arrest them, detain them and investigate them?"

MR MADASA: The applicant stated on this point, I think he was asked, and he said he wanted to accumulate evidence and arrest these guys on robbery, amongst other things, because this was, what was foremost in his mind, that these guys were involved in robberies where they would then use the money for gun running and political activities.  In his mind he wanted a big case of robbery, which he would then stop and arrest these guys.  Now whether that was foolish or not, really, it does not arise, what is important that this is what he states, that he wanted to get them on a big case of robbery, and this is why he waited for that, there were many opportunities, I agree, to have arrested these guys in other manner or earlier on and so on, but, he may have been over-enthusiastic, I don't know, but he wanted to arrest them on a charge of robbery.

CHAIRPERSON: But this arrest was to take place before there had been any attempt to commit a robbery, merely while they were sitting in a motor car.  They could have been arrested when they left home, couldn't they?

MR MADASA: Yes, Mr Chair, but obviously they would have obtained good evidence had he arrested them at the scene and having had evidence sufficient enough to indicate that they were about to embark on their plan of robbery.

CHAIRPERSON: Robbing who?  We have been told by Mr De Ru that there was nobody there at the time.

MR MADASA: It was stated that that place opened normally at five o'clock in the morning.

CHAIRPERSON: On that occasion there was nobody there.

MR MADASA: I say, Mr Chair, they were going to rob people.

CHAIRPERSON: Well don't you have to rob people, isn't that what robbery is about?

MR MADASA: Mr Chair, they were going to rob that place, the ...(intervention).

CHAIRPERSON: (Indistinct), it was a housebreaking case, was it, and theft, they were going to commit housebreaking and theft, is that what you're now saying?  Although we have heard that Mr De Ru suspected them of having killed six policemen, I would have thought that was a very much higher case to have arrested them for?

MR MADASA: According to the information that the applicant received, he anticipated that these people were going to arrive there and open at that time, and then they would be robbed, that was the ...(intervention).

CHAIRPERSON: The point I'm making is, they hadn't, he knew they hadn't, he knew there was nobody there at all, so it wasn't going to be a high profile robbery, was it?

MR MADASA: But that was the plan and anticipation that it was going to be.

CHAIRPERSON: Mr De Ru was at the scene, he could see what had happened, he could see there was nobody there at all, couldn't he?

MR MADASA: I don't know the policy-making, Mr Chair, are you saying he should have then aborted the plan?

CHAIRPERSON: He could have arrested them on numerous other incidents, if he had the evidence we've been told he had, why, why choose this?

MR MADASA: But it is the information he received, he went according to information he received from Fouche that on that particular day they were planning this kind of robbery, and he says he was misled.

CHAIRPERSON: And he must have realised he was misled.  The point I'm simply making is, you have been saying he wanted to get a big robbery, but he wasn't, he could see he wasn't going to get it.