Amnesty Hearings — Johannesburg — 1998-10-15

MR PRINSLOO: If we look at this application, what the first applicant says, he wished to do was to obtain firearms, that is what he believed that he went to do at that stage.
	The facts support this allegation, the fact that he worked there, etc.  The third applicant Mr Van Zyl, was just sitting in the car, and he knew that they were going to obtain firearms, it was his testimony.
	The matter of reconnoitring does not even occur in the application, so the Amnesty Committee cannot depart from the point that they were going to reconnoitre, because then they would have stated so in their application.
	The other aspect is that they were acting, there was no reason for Mr Holder to walk into that place with a balaclava, he was just reconnoitring, what was he doing with a balaclava and a firearm?  Why would he have to do that?
	What Mr Holder believed with respect Mr Chairman, can't be placed at the door of the first applicant, and he cannot be penalised by that.
	Let us assume with respect, that according to Mr Holder's version, that they hypothetically went to reconnoitre and they were confronted by guards who found them there on the military base, would he shoot?  Would it then have been a political motive or not?  I would with all honesty still say that it was still part of the struggle, and part of that political motive.
	It would be very unreasonable and unfair because circumstances dictated differently than was believed,  to penalise a person and say but you wished to commit some other kind of crime, but the crime which they committed and would have had to commit, would at least have been robbery and if violence had occurred, and a person had been killed, then at least murder.
	How could it change the facts at all whether there were one or two or six or eight people in that room?  How does that change it?  That is my argument in this regard, that if one were to look then at proportionality, it is completely different question and one would have to approach it on a different basis.

CHAIRPERSON: It also appears as if all three applicants say that part of the failure was that the person who died, was a totally innocent person, that was never a part of what they had envisioned.

MR PRINSLOO: With respect Mr Chair, what was envisioned, was to obtain firearms by robbery, which they foresaw in all probability according to the testimony of all three applicants, it is possible that somebody could have died.
	A person who was just guarding a place, would always be regarded as an innocent person, but these people were always regarded as a victim of the struggle.  There were many instances where innocent people were the victims.
	We can think of the Pretoria bomb, of the bus in Durban where people fired on a bus with totally innocent people riding in it.  There was not even a matter of testimony that they had anything to do with the difficulty that occurred on the beach. 
	Then if we look at the Heidelberg Tavern where they said One Settler, One Bullet, but the people who were killed, were people of the coloured group, the Indian group and the white group who were killed.
	With respect Mr Chair, it is a set of unfortunate circumstances that that person had to be the victim under the circumstances there.  But that in itself cannot be to the detriment of the fact that the objective was to find firearms for the struggle and that this could have been done in a way that also included violence.
	Then we have to go over and look at proportionality and what aspect it contributed there, and then I would like to argue that the proportionality with regard to this what had to be achieved, and that we have to keep in mind, is that this person wanted to rob an automatic firearm.  The fact that things went wrong, cannot change that objective.
	If we look at the facts, the applicant said he entered, he asked the persons to hand over the rifles, that they mustn't try to be Rambo's.  According to him, the deceased got up, lifted his firearm, he grabbed him, the applicant himself was wounded.
	That stands above any doubt and after that, he fired a shot which fatally wounded the deceased, who was killed in that action then.  If one compares that for example with the case which I had just referred to, just a moment's patience please, Harmse and Froneman's case.  In that case Harmse and Froneman on the command of their superiors went and planted a bomb on the stoep of a shop where they wanted to kill the owner, it was aimed against the Muslim community.
	An innocent policeman who came to investigate, kicked against the drum in which the drum was contained, and the policeman was killed, and they were granted amnesty for that.
	If one looks at the proportionality and the objective involved there, the person was an innocent victim just like Terreblanche, and it is exactly the same.  If one were to look at the case of the Heidelberg Tavern, the application of Gqomfa, H.L. - I can give you copies of those then I don't have to read out all the names, but in that particular case, it was also found that the purpose had been the attack on the Heidelberg Tavern was a particularly brutal one.  It appears from the evidence and the other information available to us, that the Tavern was a place largely used by students and other young people, and those who made use of its facilities, were not only members of the white community, that is the people frequently referred to as Settlers by APLA members.  Of the three young ladies killed, only one was white, the other was coloured and the third was an Indian.
	It is quite clear that they intended to kill as many people as possible. Evidence was that nails had been glued onto one of the grenades to increase the lethal effect of the explosion.  After arrival at the Tavern, shots were fired into the Tavern, using automatic weapons and the rifle grenade was fired, which did not explode.
	The attack took only a few minutes, and the attackers then retreated to the car.  Whilst they were driving away, they gained the impression that shots were being fired at them, by persons in the vicinity of the Tavern.  They opened fire on the persons they saw on the road, and in the process killed Nicolene Cerqueira, the deceased referred to in count 8.
	Shots were also fired in the vicinity of Benjamin Joseph Brodi, referred to in count 9, who was working with Cerqueira.
	The applicants also gave evidence as to the political objectives of APLA, which was basically to take back the land by force.  They all made it clear that they did not see it as their function to question how the operations carried out by them, would achieve this.  This was left to the leaders, and they merely carried out orders as has already been said.
	With respect Mr Chair, the applicants carried out an instruction which they had received.  They were told to obtain arms at all cost.

CHAIRPERSON: But that was a specific instruction with regard to a specific target, and a lot of people were killed.  It may be that the objective envisioned namely to create fear or to break down morality or whatever the case might have been, may have been close enough to the action involved.
	But let us take this case if you are looking at the element of proportionality.  Your client stormed into the guard house and shot according to all versions, an innocent young man who was doing his work.
	At best for your client, he took one side arm and they disassembled it and threw it away in a dam, somebody was killed.  Somebody was killed for the sake of this firearm that was now thrown into the dam.  How does one arrive at the proportionality?  How much worth was attached to that person's life under those circumstances?