Amnesty Hearings — Cape Town — 2000-11-21

CHAIRPERSON: And this Committee has got to be satisfied that he has made a full disclosure, that what he did was based on a political motive, which I'll get to just now.

MR COETSER: Well look in terms of the definitions in the Act itself, the act must be associated with a political motive, the Commission doesn't have to be satisfied that he personally had a political motive, so as long as the Commission is satisfied that that raid was done ...(intervention)

CHAIRPERSON: Are you serious when you argue that look, if someone commits a murder on behalf of somebody else who had a political motive to see to the death of the victim, that the perpetrator is entitled to amnesty?

MR COETSER: Well, no, it's a little different here because one has to bear in mind that he was an agent of the police, under contract, under employment, under instruction, which is covered by the various definitions concerned in the Act, so in that sense the situation ...(intervention)

CHAIRPERSON: Mr Coetser, let me remind you that all these policemen who acted on behalf of the SAP in committing all these atrocities, in addition to that, just didn't act as a conduit for some higher person's finicky wants.  They did it because and they all say it, they were supportive of the Nationalist Party and they wanted to protect the apartheid system that was in place.  It was also a personal activity on their part.

MR COETSER: Yes.

CHAIRPERSON: Now that's why I'm saying it doesn't really follow that because he acted in terms of orders, that that's sufficient.  He himself must have acted out of a political conviction.

MR COETSER: I'm not so sure, I think one must check the definitions in the Act.

CHAIRPERSON: So what intent did he have then?

MR COETSER: I'm sorry?

CHAIRPERSON: What intent would he have had?

MR COETSER: Well his intention was to go along with an action that was designed to interrupt the efficiency of the ANC.  In that sense ...(intervention)

CHAIRPERSON: Did he want to do that?

MR COETSER: That was his intention.

CHAIRPERSON: Or was he acting in terms of a command?

MR COETSER: Whether he privately agreed or disagreed with it is irrelevant.  That was his intent in the formal sense of the word, to go along with an action that was associated with a political motive.

CHAIRPERSON: That's what I found strange with your client's evidence, that he was very upset about what he did, but yet he went along with it.  He didn't want to do it because he felt he was selling himself out.

MR COETSER: To derive at an understandable answer in so far as that is concerned, you have to look at the totality of the evidence and the totality of the circumstances.  The man has given a brief precis as to his background history.

CHAIRPERSON: Very brief.

MR COETSER: Yes, that is so, but the fact of the matter as one knows, is an 18 year old together with many others, he was, what's the old phrase - press-ganged, for want  of a better phrase, by the South African government, when being arrested as a so-called illegal immigrant into the military.  That eventually sent him off to Koevoet, which eventually sent him off to the Police Intelligence System and as he explained, by that stage he was in a position where if he tried to leave he would be killed and this Commission has seen plenty evidence of others exactly in the same position as him, in fact my instructions are, coming from literally the same village, wanting to escape that situation and being killed.  If Mr Olifant's evidence, if I understand his evidence correctly, he tried to explain to the Commission that of those particular youths that he was with and were, for the want of a better phrase press-ganged into this entire situation, he's the only one left alive to tell the story.

CHAIRPERSON: Now what is he guilty of conspiring to do?

MR COETSER: Well his conspiracy, he's effectively with the military and the police to conduct a raid for the purposes of destroying property and lives.

CHAIRPERSON: The lives of people whom they considered a threat to South Africa?

MR COETSER: Of course.

CHAIRPERSON: Not innocent women and children?

MR COETSER: That is true.

CHAIRPERSON: How can he - if for example that child was killed by a soldier on a frolic of his own, can your client or any of the other clients then benefit by that?

MR COETSER: Well if that is proved, then obviously our client, Mr Olifant is innocent of that.

CHAIRPERSON: Precisely.

MR COETSER: Yes.

CHAIRPERSON: Isn't it correct then that this conspiracy was directed against people who were a direct threat to South Africa at the time?  Then maybe ...

MR COETSER: On the delictual aspect ...(intervention)

CHAIRPERSON: I may add that there may have been instances where innocent parties were killed, thinking or a mistaken identity of circumstances, but at the same time, in particular this child, could not have been considered by anybody on that escapade, as a threat to and would you agree also that it follows that it could not have been and would not have been on the evidence before us, part of the conspiracy?

MR COETSER: Correct.  The only issue that remains however is the question of within the conspiracy and the means that were adopted to carry out that conspiracy.  It could be argued that these people must have foreseen the possibility that an individual like a child, may well be killed in the process.

MR MALAN: In fact did foresee, not must have.

MR COETSER: They did.

CHAIRPERSON: And they excluded it.  They excluded houses where the possibility existed.

MR COETSER: Well look, they endeavoured to reduce the risk, that is their testimony.

CHAIRPERSON: No but there was one house where they allowed the child to leave.

MR COETSER: Yes, yes, that is understood, but  ...

CHAIRPERSON: So?

MR COETSER: What would appear, for example from Ms Mokoena's evidence and other testimony if I remember correctly, although it may come from this Silent War from Peter Stiff, is that the boy that was killed, occurred in circumstances where he made some sort of noise where he was hiding, or had come out from the place where he was hiding and the soldier instinctively shot before looking properly and only after he shot, realised that in fact the individual that he had shot was a boy.

CHAIRPERSON: And it shouldn't have happened.

MR COETSER: And it shouldn't have happened but the point is, what I'm trying to say is that although the testimony from the more senior figures in the police are that they adopted a course of action to try and minimise the risk of children being shot or injured in this particular raid, they nevertheless still foresaw the possibility at the end of the day, that such a risk may be realised, for example, by a soldier doing exactly that.

CHAIRPERSON: Doing exactly what?

MR COETSER: As I have described.

CHAIRPERSON: Where do we get that from?

MR COETSER: Well, as I've said, there is this explanation in Stiff's book, you know ...

CHAIRPERSON: I'm not going to take notice of Stiff.

MR COETSER: No, I understand that, but the point is, we're talking about foreseeability here.

CHAIRPERSON: No, we're not talking about foreseeability, we're speaking about a child discovered in a room and shot.

MR COETSER: Yes.

CHAIRPERSON: He could not be regarded, by any stretch of the imagination, as a threat to apartheid.

MR COETSER: No, that is so.

CHAIRPERSON: And isn't that the end of the matter?

MR COETSER: No, because it depends upon the scope of the conspiracy.

CHAIRPERSON: Well the scope of the conspiracy excluded the killing of innocent women and children.

MR COETSER: As far as possible.

CHAIRPERSON: The spirit of that decision and conspiracy excluded the killing of children.  Yes the spirit but the point is, in terms of the legalistic definitions of conspiracy, one has to look at the foreseeability aspect.

CHAIRPERSON: Is that all you've got to say?