Amnesty Hearings — Durban — 1999-09-29

MR RICHARD: And in argument I will submit that the inference and the only apparent inference that can be drawn from the two lists, is those that expose civilians to injury or did injure civilians, we put in the doubtful category, as opposed to those that were legitimate targets.

ABOOBAKER ISMAIL: No sir, that is not drawn from this.

MR BERGER: Chairperson, how can my ...

MR RICHARD: Is there any comment on what I will argue?

JUDGE PILLAY: Are you entitled to put that to him, is there sufficient basis for having to say so?

CHAIRPERSON: You are free to argue it, what Mr Ismail, how Mr Ismail views your argument, is that very important?

MR RICHARD: What I have given Mr Ismail an opportunity to reply to is that we have two lists before us.   One, a list of what in accordance with the Kabwe test that I outlined some minutes ago, are legitimate incidents, that is Appendix 4, then in Appendix 5, a list of what are obviously events in which civilians were either injured, killed or put in danger for which the ANC does not take unequivocal responsibility, and I say an inference may be drawn.  He has the opportunity to reply to me.

ABOOBAKER ISMAIL: Mr Chairperson, I have responded to that question already and I would suggest that Mr Richard please read the introductory note.  It explains itself, I have already alluded to it, and I think it is time that we really took note of the answers that are being given and it indicates quite clearly there are cases where the ANC does take responsibility, it said basically that these are things, it is uncertain, it does not then say that these are things that were classified as civilian targets, etc, and therefore the ANC does not take responsibility for it.

MR RICHARD: Your answer has been noted.   As an incident is referred to in the Truth And Reconciliation's Armed Forces Hearing, held on 10 October 1997 in Cape Town, I would refer you firstly and I hope this time the pages are consistent, to page 11.

ABOOBAKER ISMAIL: 11 of?

MR RICHARD: And that is where ...

CHAIRPERSON: Page 11 of which document, Mr Richard?

MR RICHARD: The transcript of the evidence received by the Truth And Reconciliation Commission at its Armed Forces Hearing.

CHAIRPERSON: Sorry, do we have that before us Mr Prior?

JUDGE PILLAY: What Volume would that be?

CHAIRPERSON: It is not part of our papers, but anyway if you can then put it and read it out, because we don't have it before us Mr Richard, that section that you wish to refer to.

MR RICHARD: Thank you.   Now, at page 11 and I will read out what the now retired Minister, Mac Maharaj, said.
"... If we look at our submission in August 1996, page 52 in the second column, half way down, we referred to a pamphlet that the ANC distributed in the country called "Take The Struggle To The White Areas", it made a call to the people and it gave them a guidance of what they should be doing in taking the offensive in the struggle.  It was not just saying "take arms and start shooting", it said number one ..."

MR BERGER: I am sorry to interrupt my learned friend, what is the reference?

CHAIRPERSON: Page 11 of the Armed Forces Hearing, page 52...

MR BERGER: Of which Volume?

CHAIRPERSON: That is the pamphlet that you were referring to when we were talking about the Kabwe ...

MR BERGER: Yes, but the reference that I have is at page 66, that is why I was just trying to see if there was another reference.

CHAIRPERSON: I haven't looked at it.  Page 52 you say Mr Richard?

MR RICHARD: Again, on the printout that I've got, it has got page 11 of 54.

CHAIRPERSON: Is that the submission of August 1996?

MR RICHARD: No, this was 7 - 10 October 1997.

CHAIRPERSON: The reference of the pamphlet on page 52, it was page 52 of what ...

MR BERGER: Chairperson, we have found it.  It is in the First Submission of August 1996.

CHAIRPERSON: So I have it here, it is the correct reference.

MR RICHARD: The now retired Minister of Transport, was giving evidence and said in the context of what was disciplined action, industrial action, not shooting away like cowboys, and I read the section.   Are you aware of the hearing that I am quoting?

ABOOBAKER ISMAIL: Yes, I am.

MR RICHARD: Were you present?

ABOOBAKER ISMAIL: Yes, I was.

MR RICHARD: And for the sake of brevity, do you believe that Minister Maharaj gave a fair summary of what the policy of the ANC was during the 1985/1990 period?

ABOOBAKER ISMAIL: Yes.

MR RICHARD: I will hand in the documents.   Then if we proceed further, there Mr Maharaj made this comment in answer to a question by Mr Lax and I will read the question and the answer
"... If I could just follow that up, I hear you.  I hear the difficulties of operational command, we heard that from APLA themselves and we heard it now, how difficult that became as the struggle intensified as more and more people were recruited, training became less intensive and more difficult as the struggle intensified.  But what we are trying to gain and understand of in essence is for example, the so-called notorious MAGOOS bomb where the vast majority of victims were civilian in that particular case, we have heard that it was a last minute decision to change the nature of the target, the specified place.  Cadres on the ground made that sort of decision, what sort of censure in the light of what subsequently happened came from the high command when it became apparent that this was a big mistake in a sense, what steps were taken?"
	Mr Maharaj answered -
"... then I think that the MAGOOS bar has again been dealt with extensively by us and what we showed was that in the ordinary operational situation we were living in, in an environment where the overwhelming majority of our actions were correct, well targeted, achieved what they set out to achieve.  Then we come to a number of operations that begin to move in the grey, faulty, Intelligence, false flagging, enemy Force penetrating and misleading our forces on the ground, directing them towards a target not in keeping with our policy.  It is in that situation that as command, we have to take correct actions."
	Now again, you were present at these hearings, why was MAGOOS bar put in that grey or faulty Intelligence category?

ABOOBAKER ISMAIL: Mr Chairperson, the Intelligence that was available at the time through Mr McBride would have indicated that Security Force personnel do frequent that place.   Perhaps right at that moment, Intelligence may not have been available or some other circumstances pertained.  The point is, it is known that civilians, some civilians were killed or injured in that operation, and it was put to Mr Maharaj that you know, if this was - and what he then said, he talked about the category of the Intelligence, which is what the ANC documents also speak of.

MR RICHARD: Chairperson, I had looked at the clock and I don't know if I saw it correctly, it is five past one, before I go onto the next topic, I have left the submissions and previous hearings.

CHAIRPERSON: Yes, it will be, it is just in fact a little before one, but it will be a convenient time to take the lunch adjournment.  We will take the lunch adjournment now.

MR RICHARD: Thank you Chair.
COMMITTEE ADJOURNS

ABOOBAKER ISMAIL: (s.u.o.)

CHAIRPERSON: Yes, thank you.  Mr Richard?

MR RICHARD: (cont)
	Thank you Mr Chair.   The last of the documents that I wish to bring into this record is an excerpt from the Pretoria hearings which related to the Church Street bomb and at 132 of that.

CHAIRPERSON: Is that the transcript of the hearing?

MR RICHARD: About just over half way down the page, Mr Trengove SC asked this question and I would like to ask you whether there is anything you would like to add or subtract from your answer.   The question was
"... it is correct that the ANC policy was never to select targets whose sole objective was to strike ...

MR BERGER: Chairperson, it is "is it correct".