Amnesty Hearings — Port Elizabeth — UNKNOWN

UNKNOWN: And now perhaps one does not have to be an expert in interrogation to know that, to know that you would be able to extract as much information as you want from a detainee who is well-known to all of you as Security Police, by simply giving this man a chair, a man who was prepared to answer all those questions but he said, "I will not be on my feet whilst answering those questions.   I want a chair, accord me the respect which I deserve; don't humiliate me."

ADV BOOYENS: I do not recall hearing that evidence Mr Chairman, but my memory is of course not infallible, but .....(intervention)

CHAIRPERSON: I think what is attempted to be put to you was not the words of Mr Biko, but the proposition that there was no reason to suggest that Biko was recalcitrant and not willing to answer questions.   There's no evidence that he was unwilling to do that.   That being so, couldn't he have been questioned with greater civility?

ADV BOOYENS: Speaking for myself, yes. I said earlier on that it could perhaps in all probability be said that the soft approach might have worked sometimes, I don't know.   There certainly was not - the insistence to place him at a disadvantage was there, it was perhaps not necessary that was another assault on his dignity as a person, but if we are going to insist that ask every time but surely the Security Policemen or whoever could have always have taken the lesser alternative and that wouldn't only go for interrogations which went wrong; that would go for people that were killed; that would go for people that were seriously assaulted.  That is always true.  There was - if one must really approach it on the basis of was it ever necessary, then perhaps one would have said that perhaps none of the lives lost in the struggle on either side was necessary.   But that's not the test.
      Mr Chairman, I think unless there is something else specifically which the Committee would like to hear me on, and bearing in mind my Heads of Argument, those are the submissions I wish to make.

CHAIRPERSON: Do you concede that the fate of the applicants is inextricably wound up and therefore the Committee does not have to look at the acts of each individual to determine whether amnesty should be granted to him or not?   That they are all part of a concerted action on that day and that their combat must be judged not individually but as a group, collectively, and that if one qualifies the others qualify; if anyone does not qualify the others do not qualify.   Have you applied your mind to that?

ADV BOOYENS: I can obviously only speak for my applicants.   ......(intervention)

CHAIRPERSON: I'm taking about your applicants.

ADV BOOYENS: My three applicants, because I think they are in a different position.   Yes, as far as they are concerned, because they were a team made up with the same purpose - of course with one exception, that's a factual one, and that is Marx's involvement, Mr Chairman,   only goes so far as to the scuffle.   He's got nothing to do subsequently because he deliberately pulls him out of that, but I think that is purely factual.   If one is going to place reliance on the subsequent fact and that blame in any case in our submission is rests squarely on the shoulders of Goosen and not on these, but if the Committee finds a distinction is to be made and some significance to  attach to the fact that adequate medical assistance wasn't obtained for Mr Biko, then of course Marx is out of that one clearly.
	But that is really where -  but insofar as the initial intention and how things started is concerned, even here there is of course a slight distinction as far as Marx is concerned because he walks in uninformed as to why this scuffle started.   What he sees, you would recall Mr Chairman,  he sees a scuffle involving a detainee and some of his colleagues and he joined in to help.   But those are factual distinctions.   I think the legal principle is the same for all of them.

CHAIRPERSON: Yes, thank you.   Mr Erasmus?

MR POTGIETER: Just a minute, just a minute Mr Booyens just before we conclude
	You put your submission that there is no need to identify any particular offences, but in your submission, to what acts or omissions, do the applications of your clients relate?   What is it?

ADV BOOYENS: Well, the acts in those acts-I think there are two legs - those acts which contributed to the death of  Mr Biko.   What I was trying to say Mr Chairman is it doesn't matter whether you call it murder or culpable homicide, and those acts relating to the making of the false statements.   Those are the two categories.

MR POTGIETER: Just with regard to the first category of acts, to the death of Mr Biko, is your submission that we have to judge that on the basis of the case that was made out by your clients in respect of how this incident occurred?

ADV BOOYENS: Oh yes, Mr  Chairman, if the Committee is going to find for some or other reason, that in fact what happened, for example, was that Mr Biko  was pursued into a corner and beaten up in circumstances completely unrelated to what they have told you, then obviously the only facts that are placed before you, in fact, are the facts as alleged by them, and that is the facts that I will submit.
      So if the Committee finds, " no, no ,no this didn't happen that way.   Something completely different happened there."  But then the applications fail on the basis that they did not make full disclosure.

CHAIRPERSON: I follow that.  I do understand that submission.   I wanted to just get to a different point.
	Is your submission that we have to find that what happened was, in a way, let's call it for the moment accidental really?   It was an attempt to restrain an aggressive detainee, that the incident happened?

ADV BOOYENS: Yes, well, that was their version.   Mr Chairman, just one thing that I have forgotten to mention which springs to mind just now, is one of the aspects that were raised by my learned friend during cross-examination, which I would like to refer the Committee to, and that is that by consent the inquest record was handed in, including medical evidence.   We of course didn't have the advantage of hearing the medical evidence.   We know that some of the doctors are dead.   I think we should try prevent these hearings turning more and more into retrials, that's not what they're supposed to be.
       But the only fact which I want to point out is that there's a difference of view between the pathologists as to whether the four brain lesions could have been caused by one or more than one application of force.   The view of Professor Loubscher and that view  - sorry it was five brain lesions, it was not four - that view appears in the inquest records at page 1154, 1157, 1158, 1169 and pages 1215 to 1210.   Loubscher gives reasons for his view, that it could have been a single application because there were other views as well.   I do not really think that it even takes the matter much further, on the description given by the applicants of a scuffle going on and people falling about and blows with fists being hit, and so on.   There's probably room for both possibilities that there was a single application of force or more than one application of force to the head which could have caused injury.

CHAIRPERSON: Does it matter whether the injuries were inflicted with one blow, or several blows?

ADV BOOYENS: Yes, but the injuries could have been inflicted with a blow, or a fall - we don't know - or a bump against the wall.

CHAIRPERSON: The question related to blows.   Does it matter whether the injuries could have been inflicted by one blow or many blows?   Does it matter to the eventual outcome of this application?