Amnesty Hearings — Bloemfontein — 1998-08-17

MR MADASA: Mr Chair will be well aware that on the question of analysis of her evidence, that the Committee or a court would pick and choose, yes, but provided what it picks has corroboration, what it chooses, has corroboration, and I'm saying on this point, what I pick and choose there has corroboration, but that is how evidence is approached and analysed.  You can't reject it because there are lies in evidence and reject it in total, and the evidence of the applicant has not been contradicted in evidence.  We have bare denials from the family by way of questions by the leader of evidence, but the family members are here, they are here, they did not give evidence to refute what the applicant has said, and we don't have evidence as to whether the deceased person lived with their families and the duration thereof if they lived together, whether their families were aware of the deceaseds' movements, we don't have evidence to that.  What we have is that it is denied, but I'm saying that is a bad denial, in the face of the applicant's insistence that the information he received was that they were members of a political organisation.
	Now, on the question whether the shooting was connected with a political objective on the 7th of April 1992, now I submit that an important question to ask there on this aspect is whether the applicant was malicious in this plan, was he genuinely conducting his duties, or did he have an ulterior motive, was he malicious, I submit that is the question to be asked.
	Now, I submit that he was not, he was doing his duties, an implied duty.  At that time all members of the police, whether detective or security, the dichotomy between various duties of the police did not exist inasfar as political matters were concerned, it was not maintained by the State, it was there on paper, but any member of the police, it's a notorious fact that they would do their duties inasfar as political matters are concerned, irrespective of a unit.  It would be artificial to argue that this man was involved in a crime investigation and that had nothing to do with security matters, that should have been handled by security matters.  That did not exist.  Even municipal police, traffic officers, were involved in arresting political activists, even members of the public, if they were so inclined.
	Now, my submission is that the applicant, it was within his duty to plan and arrest, and if necessary kill the deceased.  That is borne out by the statement made by General Malan in the bundle, even if that statement did not exist, this is a notorious fact, it's known by anybody in South Africa at the time, that activists had to be eliminated, because otherwise they would eliminate the State.  That's how these matters were resolved.
	Now, I submit that ...(intervention).

CHAIRPERSON: And for people to get amnesty for having eliminated them in the interests of the State, they have to come and tell us that.

MR MADASA: Yes, Mr Chair, I agree with that, and I submit that the applicant has told the Committee that he did this within his duty, he felt it was his duty to arrest these people and if necessary kill them, but I submit that he took precautionary measures before they went there to wait for the deceased, in that he gave orders, he planned, albeit the fact that the plan was somewhat clumsy, but he planned how they were going to arrest these people.

MR MALAN: Mr Madasa, did the applicant indeed say that he regarded it his duty to kill them if necessary, and that's what you quoted now?  I cannot recall such evidence.  I can vividly recall that he said he had no intention, no expectation even that they would be killed.  Dolus eventualis didn't cross his mind.  He said he believed on putting down the two shock grenades, that they would give themselves up.

MR MADASA: Mr Chair, I believe I've addressed this point at the beginning, and I stand by my submissions earlier on, that from his evidence it can be in fact that there was dolus eventualis.  As to whether that was not the primary purpose, as stated by him, but from that evidence objectively, in fact even subjectively, it can be in fact that he had dolus eventualis, but that is as far as I can go on this aspect.

MR MALAN: Let me then take you to your point that you've been arguing now.  Are you saying that he should be entitled to amnesty on the basis of it being his duty to eliminate, to kill, which you, in any event, construct on a basis of dolus eventualis, the inference from the evidence?

MR MADASA: Yes, I'm saying that's the inference from the evidence, that he was performing his duty to arrest these people, but then subsequently they were murdered, even though that was not his primary purpose, but from that evidence it can be inferred that he was doing his duty by killing them.

CHAIRPERSON: You have just said, "subsequently they were murdered", are you conceding that these people were murdered ...(intervention).

MR MADASA: This is ...(intervention).

CHAIRPERSON: ...(inaudible) contrary to your client's evidence?

MR MADASA: This is my submission, that from that evidence, this is a lay person inasfar as - this is a very technical issue, whether this could be perceived as murder or culpable homicide or other competent verdicts, but my submission is that in law it can be inferred and be seen as such prima facie.

CHAIRPERSON: So he committed no offence at all, you are saying now?

MR MADASA: I'm saying the opposite, I'm saying from that evidence he committed an offence.

CHAIRPERSON: But you're just saying in law it can be seen as this, so if in law it can be seen as the legal consequence of his attempted arrest, then he committed no offence.

MR MADASA: But in his evidence he admitted negligence, he definitely admitted negligence.

MR MALAN: Mr Madasa, but this remains my difficulty, how do you bring negligence to political motive and intent?  Does not motive go with intent?  That's really my question.  Perhaps it's something for a written, legal argument.

MR MADASA: Yes, I submit ...(intervention).

MR MALAN: But that, sorry, that remains my basic difficulty, how do we get political motive to the killing?  One can argue the political motive to the investigation, but anything subsequently happening, whether you construe it as negligence and therefore culpable homicide or whatever, would that qualify for amnesty in terms of the Act?  I'd like you to cover that, if not now, then think it through and argue it for us in writing as soon as possible.

MR MADASA: Yes, Mr Chair, I think I'll do that in writing.  I believe I've covered that, but if you still have a difficulty with that, we can submit it in writing.  Personally I don't see any difficulty.
	Continuing on the fact that the applicant was not malicious, he took precautionary measures and this does not detract from the fact that his conduct was criminal.  All I'm arguing on this point was the fact that he was not doing this out of malice, he took measures to ensure that people were not killed unnecessarily, even if they were political activists, one was expected to arrest, or at least to attempt to arrest first, and this is what he did.

ADV SOGODI: Mr Madasa, sorry, what measures did he take to ensure that people are not killed?

MR MADASA: Various measures, amongst others, he organised what he referred to as top-up groups to close all the routes to that area where the shooting took place, he had shock grenades, he had a bug which was placed on Chris Fouche, he told Fouche to give a sign if these people were armed and if they were indeed going to rob, and he told him to leave the car alone and go around the corner, and ...(intervention).

ADV SOGODI: That's just the problem I'm having, because this (indistinct - mike not working).