Amnesty Hearings — Bloemfontein — 1998-08-17

MR MADASA: Yes.  I'm saying he took these measures to ensure that the occupants of the vehicle were not unnecessarily killed.  He was protecting them, because his plan was to arrest them, he was protecting the occupants of the vehicle by taking these precautionary measures, he wanted to ensure that they were arrested, that was the plan, but then if they did not give themselves up and if they fired at them first, then they would shoot at them.  That's how the plan went.  But you see I'm not saying the plan was good, but this is how he planned it.

CHAIRPERSON: Did he have anybody watching the car?

MR MADASA: No, he did not, and ...(intervention).

CHAIRPERSON: But surely that would be the most elementary precaution, to have someone watching the car who could tell him what was happening?

MR MADASA: I agree, Mr Chair, but these are the matters I referred to as flaws in this plan.

CHAIRPERSON: This is a basic flaw if he wanted to protect them, isn't it?  It shows that there was no interest in obtaining information about what they were doing?

MR MADASA: Well that's not necessarily the conclusion, but it shows that he was not careful in his plan, I would submit.  Therefore he was negligent.  But an important aspect to see here, and this can be gleaned from his evidence and from Elsa's evidence, that one of the reasons that this plan didn't go according to the plan is the element of Chris Fouche, which the applicant referred to as own agenda.  What seems to have happened here, and I say this especially on the strength of Elsa's evidence, that she says Fouche became involved in his own interests, for personal gain, and she referred to the matter of him being involved in smuggling and with a view to get money for divorce and to travel to South West Africa and the fact that, as far as she was concerned, this robbery was planned by the police, which is a possibility, if it was planned by Fouche without communicating that to the applicant.  One can infer from this evidence that there's a possibility, a strong reasonable possibility that Fouche might have had internal problems with this group and may have led them to their demise.

MR MALAN: Mr Madasa, on this point, if, and I'm not sure that that possibility is not more than a possibility on the evidence before us, but if that is so, on what basis still, this remains the question, is it to be construed that the applicant had a political motive to kill?  That's really the question that you must answer.  The argument that you're putting before us now is clearly that he has been misled, that he had no such intention, that he did not plan their killing and that, therefore, on trial he should not be found guilty.  Now if, because these are the exact arguments that I think would be argued in a trial, if he then is acquitted on trial, on what basis do we, on the same evidence, grant him amnesty now for a murder, assuming that he would or could be found guilty in trial?

MR MADASA: I have argued this matter.  Once more I say it's on the basis of foreseeability, foreseeability that would be the basis, the foreseeability, even though the motive initially was - this is what happened when, for example, robbers go to a bank with a view to rob, only to rob, but you see they realise that there's a possibility, they foresee a possibility of resistance, and then they arm themselves, and then sometimes they kill and they are found guilty of killing, not because the motive was to kill, the motive was money, but part and parcel of that, in law, on the basis of public interest, so to speak, it has to be construed that murder was foreseen.

MR MALAN: No, but the difficulty in that example compared to the case before us is that in the case of the robbers going to rob a bank, arming themselves, foreseeing the possibility of resistance and conflict and a shootout, everything is part of a plan which is illegal or unlawful throughout.  The case before us, on the argument, is that the applicant acted within the scope of his duties, within the law all throughout, and then suddenly something went wrong, people get shot, and now the lawfulness changes to an unlawfulness.  So it's not comparable to the example that you're giving us.

MR MADASA: Mr Chair, really we seem to differ on this point, I view it strongly differently from how you see this, from analysis, because if, it doesn't matter the fact that this man was working for the State, the fact of the matter, that duty he was performing was unlawful in the manner he did by this plan, because I'm saying this plan ...(intervention).

MR MALAN: No, no, just a second, where was it unlawful?  Wasn't it all lawful in terms of preventing a robbery, in terms of capturing these people for the purposes of investigation, isn't that all lawful?

MR MADASA: Provided the plan was good.  The law says the plan must be good.  If it leaks negligently, it's not acceptable, it's not a good trap and it's not lawful, it's not a lawful trap.  The same happens in matters of being trapped in shebeen matters, these kind of cases, if the police go there and the trap is not good, even diamond matters when police conduct a trap, the law requires that that trap must be good.  It is rejected if it's not good and certain precautional measures have to be taken, and in this case they were not taken, and therefore that act of being negligent in this plan, the plan not being watertight, that makes it unlawful.

CHAIRPERSON: Can I take you back for a minute?  You said that Fouche may have planned this robbery?  Did you say that Fouche may have planned this robbery?  Who planned the robbery?

MR MADASA: I said, Mr Chair, according to Elsa, Fouche, the police, she did not say Fouche specifically, the police, it was a police plan.

CHAIRPERSON: Is the evidence of Mr De Ru not that Fouche told him about the robbery, told him when it was going to take place, showed him the vehicle they were going to use for the robbery, gave him all the details, to make quite sure the police would be able to prevent the robbery?

MR MADASA: Yes, that is ...(intervention).

CHAIRPERSON: So there can be no suggestion that Fouche was planning a robbery for his own benefit, because he took every possible step to ensure that it was not successful, didn't he?

MR MADASA: That could be the case, but he may have planned the death, even if he did not plan the robbery itself, he may have ...(intervention).

CHAIRPERSON: So he may have anticipated that De Ru would make faulty arrangements, would misconceive what was happening and would kill people, you're saying that he may have planned that?  You can't suggest that, can you, he can only have planned the deaths if he knew that Mr De Ru intended to kill the people if they went there, then you can say he planned taking them there into the trap, which is precisely what he said he did.

MR MADASA: Mr Chair, Chris Fouche was the only link at that point between the police and the gang, and he knew what the plan was.  Now, and he was in a suitable position, if he had an ulterior motive to cause the plan to falter, because he was the man on whom the police relied, specifically on the issue of the sign, whether the people were armed, whether they were indeed, let alone they have planned a robbery, whether indeed on that day they were going to rob, and that he should leave the car alone, not with Joseph.  So I'm saying he was in a suitable position to cause it to falter, even if he had communicated to the police that indeed the robbery was planned, and this is what happened,  this plan faltered in the applicant's version, it did not go according to the plan and I'm saying it can be in fact that Chris Fouche was the cause for that.