Amnesty Hearings — Mmabatho — 1998-09-23

MR VAN DER BERG: Chairperson, I suppose one can speculate here.  What is the definition of a war situation, but if you look at his state of mind, any person who was acting at that specific moment in time, did not act within a war situation at that stage and this is very important.  The AWB was already retreating, so that is quite important.  The war which has been waged, already ended.
	I think it is De Koker who says that it was the last vehicle on its way out, apparently all the other vehicles were already out of Mmabatho so there can't be a war situation no longer.  Surely a war situation implies shots being fired from everywhere.
	But what happened here, was what happened between the police and the Defence Force.  You can't even be talking about a war.  If these people were shot in the Mercedes Benz, you can't even mention it, say it is a war situation because maybe the police were defending themselves.  It can't be a war situation.

ADV SIGODI: Sorry Mr Van der Berg ...

MR VAN DER BERG: Can I just add to that Chairperson and say that it is also important to remember what the case of the applicant was.  His case was that he was shooting in self-defence.  He conceded to this under cross-questioning.
	Surely that is the way he approaches the Commission and that is how the Commission must decide whether he should get amnesty or not.

ADV SIGODI: Just referring to this, I mean your statement that the war situation had stopped.  What caused the Mercedes Benz to stop?

MR VAN DER BERG: Sorry Mr Chairman, I didn't hear that question.

ADV SIGODI: The question is what caused the Mercedes Benz to come to a standstill?

MR VAN DER BERG: Mr Chairperson, we saw on the video's quite clearly that the Mercedes Benz came to a standstill and what caused that was I think a Nyalla vehicle which was in front of it and the Mercedes Benz was driving towards this vehicle.   A session of shots which were fired by the Nyalla people, they sat on top of a Nyalla vehicle and they had heavy automatic rifles and it is quite, you can hear those shots very clearly.  You can see it and you can hear it at the same time.
	When those shots were being fired from those automatic machine guns, one can immediately see how the Mercedes Benz pulled off the road.  You can see it.  The shots were coming from the front and you can also see that if you look at the car, it is apparent ipso facto that those shots killed Mr Fourie.
	That is an answer to that question.  Then also Chairperson, if I can continue ...

ADV MOTATA: No but Mr Van der Berg, let's take it a little bit further.  Could you say to us that we should accept that other than the Nyalla, the people, the occupants of the Mercedes Benz never fired a shot?  Can we really say that?  That probably the firing from the Nyalla was in retaliation and the other people were also firing at the Mercedes Benz?

MR VAN DER BERG: Chairperson, I think we are going to start speculating now.  The applicant's evidence in chief which he initially started with, in that he said the occupants of the Mercedes Benz aimed at him.  He used the word aimed.  He did not say they shot at me.  Only later he said they shot at me, but firstly he said they aimed at me and then apparently he shot the warning shot.
	I don't know what the warning shot was for, but in any case, shooting did take place, but there is no direct evidence which pertinently says that the AWB did indeed fire shots and if they shot at people.
	I can also just mention this as background, the Tebbutt Commission found that there were bystanders, who threw rocks at the Mercedes Benz and maybe this ignited this whole atmosphere and maybe then the AWB did fire shots, maybe it was only warning shots, we do not know.  
	But maybe this defused the whole situation.   But it is quite certain that yes, there was shooting.  But we are not sure who shot when or who shot at who.

ADV SIGODI: Just to clarify that because I want us to get this war situation clear, because it is important if you are saying that he shot when there was no need for him to shoot, when it was peaceful, if this is your submission.
	So, I want us to get that situation clear because if this Mercedes Benz came to a standstill because of the shooting maybe from the Nyalla and maybe there were rocks being thrown at it as you are saying, stones being thrown, and then the Mercedes stopped for approximately 20 minutes before he came to shoot at the occupants, then can we really say that a period of 20 minutes is enough to say that the war situation has stopped?

MR VAN DER BERG: Yes, definitely.  One must look at the circumstances.  This was not an offensive war taking place Chairperson, this was a shooting session which lasted only a few seconds.  It only lasted a few seconds, it is apparent from the video.
	So, the situation came to an end, the shooting immediately stopped when the car came to a standstill.  Then it was over.  So there couldn't have been a war, the term war, with all respect, is used outside of context.  You cannot speak of a war in the wider context here.
	That is why I said the definition of the state of war is as wide as God's mercy.

ADV MOTATA: Mr Van der Berg, let's look at this in perspective.  The video footage only relates the incident or the applicant shooting the then occupants of the Mercedes.  It does not give us a picture of what obtained within Bophuthatswana, does it?  I don't think it does, it just relates to an incident, and we have evidence before us that I am reluctant to use this word, mayhem in Bophuthatswana and we suddenly say no, no, no, in relation to the Mercedes Benz, the 20 minutes that lapsed, therefore the war had stopped.  Can we really say that, in reality, can we really say that because it doesn't show us the whole of Bophuthatswana, what happened here, it doesn't, does it?

MR VAN DER BERG: With all respect Chairperson, of course one can say the war came to an end.  If one party stops shooting, then the war is finished.  War means both parties are shooting at each other.  If one party says look the party is over, I am surrendering, I am lying on my stomach and I am giving my weapons to you, then the war is over.
	War implies both parties shooting, but if one party surrenders, then there can't be any war.