Amnesty Hearings — Cape Town — 1997-07-07

CHAIRPERSON: I am talking about what was to be achieved by the actual killing?  What was the objective to be achieved?

ADV LOURENS: If in summary, I would say that his or his evidence in this regard was that he saw himself as an important part of the struggle and that he did not wish to be removed from that struggle and that he wished to continue to play a role in the struggle.

CHAIRPERSON: Speaking for myself, I have difficulty understanding this answer that you are giving.  I know the answer you are giving is the answer that he gave, more or less, but I have difficulty accepting that that was the objective.  You think that he would be thought very much more highly if in the community at large it was discovered that Maxam had killed an innocent domestic worker, on the one hand, and a gardener.

ADV LOURENS: Mr Chairman, I would say that in this community and that innocent people had been killed, one way or the other ...

JUDGE WILSON: Not ...

ADV LOURENS: ... in various ...

JUDGE WILSON: ... deliberately murdered, as my brother has put to you already.  You keep saying in the community they had.  All over the country innocent people were killed in the crossfire of this violence.

ADV LOURENS: With respect Mr Chairman, I would submit that if somebody is necklaced because they are perceived to be an informer or if policemen fire ammunition into a crowd of people the ...

JUDGE WILSON: Because they think ...

ADV LOURENS: ... same intention

JUDGE WILSON: ... they are (indistinct).

ADV LOURENS: ... to kill is still there.  It is not ...

JUDGE WILSON: It is not a cold blooded intention.  The first example you gave was someone was necklaced because he was thought to be an informer.  Not just because he happened to have seen them.  The police fire into the crowd, because they are throwing petrol bombs or throwing stones at vehicles.  In fact, it was rather surprising that the evidence seemed to be and I tried to make a note of it each time that the police fired with teargas or rubber bullets.  That was their violence.  Be that as it may.  This, as my brother put to you, was a very different type of killing.  Would the community have accepted that he shot a domestic worker who had just given him a glass of water to drink?  That he shot a gardener who was just standing outside?

CHAIRPERSON: He was lying on the ground.

JUDGE WILSON: Lying on the ground, in fact, on some of the evidence with his legs tied up.

ADV LOURENS: The evidence before the Commission is that there has been a petition of, from that community.  I cannot speak for the community.  I would say that if one has regard to the petition it probably expresses some sort of understanding for what occurred in those times.

JUDGE WILSON: 600 People of how many thousand live in that community?

CHAIRPERSON: Well, I do not think that we must concern ourselves with petitions, because petitions can be engineered.  Let us look at his case as it is on the ground and I asked you what the objective was, what could be the objective in killing these two people and your answer was that, well, he wanted to continue to be looked upon as a leader in the community.

ADV LOURENS: Not, Mr Chairman, not looked upon necessarily, ...

JUDGE WILSON: He wanted to (indistinct).

ADV LOURENS: ... but to participate.

CHAIRPERSON: Participate?

ADV LOURENS: To be active.

CHAIRPERSON: Yes.

ADV LOURENS: To continue in the struggle.

CHAIRPERSON: That is right.  Now then what you are really saying is that that is the objective, that is the objective?

ADV LOURENS: On his evidence ...

CHAIRPERSON: On his evidence.

ADV LOURENS: ... that is what, that is what, how I would summarise his evidence.

CHAIRPERSON: Very well.

SISI KHAMPEPE: You will remember, Mr Lourens, that the reason advanced by Mr Maxam for participating in this operation to steal firearms was to make sure that the operation succeeded and that the other people did not bungle, because he was the leader and he had no confidence in whether they would be able to successfully execute the operation.

ADV LOURENS: Yes, sorry, I had troubling hearing you.

SISI KHAMPEPE: I am saying when you are advancing the political objectives sought to be achieved by Mr Maxam you must bear in mind the reason which he himself advanced to the Committee for participating in this operation.  It was to avoid any mistakes being committed by the other members of the group.

ADV LOURENS: Yes, that is so, but then I would rely once more on the youth of these perpetrators at the time and their obvious lack of training, their obvious lack of not having more senior leadership, for example, or a clear cut plan.  This was clearly something that arose out of a situation in the township that morning where they got together.  Somebody said, oh, there are guns at this farm, let us go to the farm, we can get guns and we can do something about it.  The, it is clear that Mr Maxam was the leader of the group, but in so far as that has any real meaning given these other factors, I would ask that the Committee then to bear in mind that although those were the intentions to make sure that nothing goes wrong and, as you put it now, that in a way they probably were a rudderless ship, if I can use analogy with, and things started going wrong as they do sometimes in these, well, often in these kind of situations.

CHAIRPERSON: Mr Swart, is there anything you wish to say?
MR SWART ADDRESSES COMMISSION ON MERITS OF APPLICATION

MR SWART: Thank you Mr Chairman.  Mr Chairman, I would like to form my argument on the basis of the criteria which are set out in the Act and refer to each specific criteria.  Firstly in respect of the first applicant and then in respect of the second and third applicants together and I think I can cut short my argument very much by doing it in that manner.
	In respect of the first applicant, Mr Chairman, if one looks at the first of the criteria set out in Section 20, sub-section 3 that is what the motive and I think on his evidence and on the evidence of all the applicants the motive was to obtain firearms.  I will restrict it to motive at this stage and not go any further.  The second thing to be looked at, what was the context.  Now there was a wider and a narrower context, in my submission.  The wider context is the context of the political situation in the country and in that township round about that time, but the narrower context is the context of what happened on that day and in that respect the first applicant had a problem in that he was not reacting against somebody who was attacking him.  He was, as was said before, acting almost irrationally.  He was doing what was completely unexpected.  He was shooting defenceless people.

JUDGE WILSON: Can I interrupt you for a moment?

MR SWART: Yes.

JUDGE WILSON: Something I should have asked yesterday and I did not and I do not know if you can help.  What were the ages of the two deceased?  Do you know?

MR SWART: I am not sure.  I can tell you, I have actually got it in, I have got a newspaper report which should have it in.

JUDGE WILSON: Well, carry on with your address.  If you could at ...

MR SWART: Certainly.

JUDGE WILSON: ... the end tell us.