Amnesty Hearings — Cape Town — 1998-01-14

MR PRIOR: Yes, I think that's what he says, he says he fired at Cerqueira because Cerqueira fired at him and he leaves it at that, he doesn't explain why - you know, whether he believed - I think one could safely infer from that that Mr Gqomfa did not want to be apprehended, it certainly would have been against their interest to be apprehended at that stage, by anyone who was shooting at them.
	And no doubt, if that was the case then that person had to be taken out as it where - to be killed or to be stopped from arresting them but that again - there's no evidence to support that, that would simply be possibly speculation or an inference - a possible inference to be drawn.

CHAIRPERSON: ...[inaudible] was to go and attack the Heidelberg Tavern and as obedient soldiers they carried out that mandate to attack the Heidelberg Tavern, does that cover them in respect of the attack on Cerqueira?

MR PRIOR: Mr Chairman, unless the mandate was to eradicate or get rid of all resistance ...[intervention]

CHAIRPERSON: ...[inaudible]

MR PRIOR: Yes.  With submission, if that was their mandate then clearly anything outside of that - for example other premises, would not be covered by that because the Heidelberg was specifically targeted, it was specifically identified.

CHAIRPERSON: Yes.

MR PRIOR: People coming out of Machados, like Mr Brode, Mr Cerqueira, his brother and Michael, were clearly not part of the military establishment within the minds - if we accept that, within the minds of the applicants.

JUDGE WILSON: But surely if you're instructed to carry out an operation, it is implicit that you defend yourself while doing so?

MR PRIOR: Yes.  Mr Chairman, I was going to conclude by referring the Committee to: "South African Criminal Law and Procedure - General Principles" where it deals with the nature and rationale behind superior orders, whether that can be of any assistance to the Committee.
	Unfortunately the authorities deal with and still refer to terrorist attacks where they are completely unjustified.  That's obviously dealing with it in a situation where you have a legitimate Government and a legitimate army fighting against liberation groups that are perceived to be the enemy, so the authorities are set in that  milieu.  
	However, the common law seems to be that the Law of Warfare - and I quote at page 108 of the S.A. Criminal Law and Procedure - General Principles, it's chapter 11:
"That the law of warfare however does not authorise certain acts, such as rape, looting, killing of civilians and the like.  The defence presently under consideration is pertinent to the situation where a soldier is ordered to perform an act which is not authorised by civil or military law"
An they go on to - if I may just refer to page 110, where they say:
'The defence would not be available in respect of a member of a guerrilla force carrying out the order of an officer in that force"
However, there's no basis or there's no - sorry, they refer to:
"State versus Andreas - 1989 : Two ...[indistinct] Reports - H38, South West Africa"
But again those authorities come from the old regime.
	May I just - possibly in conclusion, refer the Committee to an interesting remark dealing with proportionality made by - I think, Brigadier Fitla.  It was interesting at the open submissions or the open hearings, that the Committee questioned APLA on whether there were any limiting factors to the amount of force or the military - or the application of force and military operations and at page 220 - at halfway down the page Mr Chairman, there was a quote from an earlier submission that:
"The decision was aimed at carrying out legitimate reprisals and forcing the regime to end the killings of South African civilians.  This was done both in reprisal and self-defence and the only requirement was proportionality"
Sorry, if you'll just bear with me- at page 229, Mr Goosen on behalf of the Committee asked the question:
"What were the limiting principles"?
And at page 230, the answer was:
"Wherever an operation is not politically motivated, that operation falls outside our ambit of our definition of a target"

JUDGE WILSON: What page is that?

MR PRIOR: That's at page 230 - sorry, ...[intervention]

JUDGE WILSON: Page 230?

MR PRIOR: 230, yes.  Now, at page - sorry, I'm jumping around Mr Chairman, but the last quotation I want to refer you to is at page 228.  Now, Brigadier Fitla was the military person and seemed to be the person with the most military knowledge of APLA's Military High Command said - they were talking about political benefit and whether they would have lost political support and this ties in with my earlier submission that what seems to have been the motivation or the rationale behind these attacks - St James, Heidelberg, King William's Town, The Crazy Beat Disco in Newcastle, was the sense that APLA were losing or PAC were losing political support among the electorate and he says at - five lines from the top
"So that is the political benefit also we are talking about and when we talk about proportionality here, we could easily gone for easier targets than the adults, we could have gone for creches, we could have gone for institutions for the disabled but we had to look at proportionality.
	Some of the things we could also politically justify and defend.  If we had gone for children in a nursery school, we would not be in a position to stand on this platform today and proudly speak of those activities, so we had to look at our operations on two levels as well.  First the political benefits that we derived from those activities in terms of also the support that both APLA and PAC would enjoy. Also when we talk about the psychological effect to put 
pressure on the White community as well"
And Mr Chairman, I submit that that pretty well sums up - at page 228 of the bundle and it's at page 94 of their typed submission - Mr Chairman, it would seem then that APLA seems to suggest that there were certain limits to which one could or could not go and my argument is simply that the fact that the evidence of the applicants is that: 
"We believed this was a military target"
	I submit, must also be seen against the background of the porsity of evidence presented on their behalf or by them regarding the commands given.  There was some difficulty between Mr Madasi and Mr Gqomfa's recollection of who gave the orders, whether there was a meeting in Umtata, whether Bulelani Xuma - that seemed to be the suggestion of Mr Madasi, whether he was the one who gave the orders to attack the Heidelberg or whether it was Leklapa Mpashlela who gave those orders.  
	And for whatever reason, those persons were not called.  I understood that Mr Bulelani Xuma in fact was present at the last session - he was present at these proceedings, he was not called to give evidence.  
	One has a difficulty in understanding whether in fact those orders were in fact given by them or whether they were decided upon by persons like Mr Gqomfa - for the reasons supplied in the APLA submissions, as pure acts of reprisal against what was happening against the Black population.
	Mr Chairman, those are my submissions.

ADV SANDI: Mr Prior, have you had a look at page 235, the first three lines - that is the submission by APLA and Brigadier Fitla is doing the talking in that line, he says: they didn't know anything about International Humanitarian Law. That area concerns what happens to civilians when there is an armed conflict and he says they did not even educate their forces on those matter.

MR PRIOR: Sorry, do you want my comment?

ADV SANDI: Yes, the impression I get from that is that the applicants are people who have not even been trained on those matters - to draw distinctions between so-called hard targets and civilians.