Amnesty Hearings — Durban — 1996-08-14

CHAIRPERSON: Where a gang, for example, conducts a number of offences in an area there is general lawlessness in that area, what I am trying to ask you is whether you seriously call that a war?  In almost any area where there is general lawlessness and police are required - .... said that the objective of the police is a political objective.  It's not their function really to police the area and arrest the lawless element (...indistinct) what the political objective would be in such a situation.

MR D'OLIVIERA: Mr Chairman, as I have argued before, the police were in actual fact called upon to do policing activities outside of normal policing activities.  This was an area in which there was unrest to such an extent that numerous murders, attempted murders, all linked to the political objective of the ANC were being conducted.  It is not a general lawlessness area, it was perhaps the intention of the deceased to make it lawless.  And it was this in particular which the police had to deal with.  On the one hand one can say, yes of course the police must use the only part of normal policing, but the fact of the matter is, as we know it now, they were not only used for normal policing.

ADV DE JAGER: Isn't the problem that as far as the list of offences or suspected offences we have before us, can we say that that was politically related, that in fact he acted against a politically-motivated gang committing offences associated with a political motive from the side of the offenders?  Have we got any evidence before us that for instance the "opsetlike saake skade" point number 1, was politically motivated, or any of the offences here?

MR D'OLIVIERA: Mr Chairman if one goes to the list there are obviously some of these offences which may not appear to be directly linked to a political struggle, but there are others and the majority of them are there.  You will see in this list that there were attacks on policemen, there were attacks on civilian population, there were murders, attempted murders, there were robberies which necessary obviously to keep their men in the field, but Mr Chairman the trial court acknowledged it.  The trial court acknowledged that at the very least these crimes had a political motive.  We can accept the findings of the trial court in that regard.  I am referring here to page 401 to which I had previously referred the court.

BERNARD MAKGABO NGOEPE: So you are saying if it's a mixed bag, if 50%, no, if 80% of the offences he was being sought for were purely criminal and if 20% could be described as political so that 20% is enough?  Well I would have thought it would be enough because he wouldn't know to what extent he was influenced by the non-criminal, he wouldn't know to what extent the applicant was influenced by the non-political offences and to what extent he was influenced by the political offences.  So one would say that as long as there is some - one or two of the offences for which the deceased was sought then there's a political requirement, is that what you are saying?

MR D'OLIVIERA: No that's not what I am saying because it's not borne out by the evidence before the trial court.  Most, by far, the majority of these offences relate to violence which can be considered in many ways to have a political motive behind them.  You make mention of one, the first one mentioned "opsetlike saake skade", but if you go through the list you will find that most of these quite clearly relate to murder, attempted murder, relate to armed robbery, relate to arson.  For example even that "opsetlike saake skade", "malicious injury to property", if you have a look at the brief details given there it says that stones at a bus. We know for a fact that stones were thrown in many instances where political activity was in process.

BERNARD MAKGABO NGOEPE: Yes but if we find that some of them were political objectives and others were not what it really means is that the applicant in doing what he did was also influenced, not only by the deceased's political offences, but also by the deceased's non-political offences, he was influenced by both and doesn't that neutralise the politics of his offence?

MR D'OLIVIERA: Mr Chairman the evidence of the applicant is also clear, he was influenced by the political element of these offences, whether or not the other crimes may have influenced him there is nothing to indicate that it did, but it is the political actions.  He made mention, for example, of the throwing of a handgrenade under a helicopter of the police.  I see it's also mentioned in this list here.  You know these are the types of crimes that clearly swayed him to believe the political angle of these offences.

JUDGE WILSON: Well is it political, here is a gangster being ... the police, they obviously get close to him with their helicopter so he attacks it.  Why is it political?

MR D'OLIVIERA: Mr Chairman one would not expect a criminal on the run to attack a police helicopter surrounded by police when he could quite easily have escaped.  His intention must have been more than just being a gangster.  He wanted to destroy wherever he could and he went ahead and did that.  We've got the evidence of the fact that he didn't wait for things to happen.  They went out to make things happen.

CHAIRPERSON: You referred us to the passage in the judgment where you said the trial court accepted that he was motivated by political considerations, can you tell me where, could you give me the page reference to that judgment please?

MR D'OLIVIERA: It is of the sentence of the trial court at page 401 starting from line 13.  I had made this available before the time Mr Chairman.

JUDGE WILSON: (...indistinct)

MR D'OLIVIERA: That's correct, I found that the documents you had been provided with were incomplete and I have a copy of the, a certified copy of the judgment here from which these copies were taken.  So I think the documents provided there were not complete that you had.  It's under the title Mr Chairman, "Vonnis", 9 December 1992.  May I read it again
"According to Colonel Nel the second deceased had been sought by the police for a series of very serious crimes including numerous murders which was allegedly committed by himself and his gang.  Even if only a small percentage of these allegations were true the second deceased and his gang indeed conducted a reign of terror in the area.  These facts would have been known to you and you could, with some measure of justification, have felt that the second deceased ought to pay for his crimes with his life.  He was, however, a known member of the ANC and the crimes could possibly have been regarded as politically motivated".
So the trial court did, in actual fact, recognise and found that the offences of the deceased were in actual fact those of a political motive.

JUDGE WILSON: (...indistinct) do you say that means "in actual fact"?  The court said didn't it,
"crimes could possibly have been regarded as politically motivated".
that's not finding in actual fact they were political is it?

MR D'OLIVIERA: Mr Chairman for purposes of this judgment the court must have found that the evidence placed before it indicated that this was the situation, otherwise it would not have been mentioned.

JUDGE WILSON: The court found that the accused might have believed that they were politically motivated.  You said a moment ago that the court found as an actual fact they were, that is what I am challenging.  The court never found as a fact they were politically motivated did it?

MR D'OLIVIERA: Mr Chairman no, one must go purely on the words that are before you.