Amnesty Hearings — Cape Town — 1999-10-18

UNKNOWN: Thank you honourable Chairperson.
	Honourable Chairperson, it is my respectful submission that the applicant has not complied with the basic requirements of the Act in terms of having made a full disclosure to us, or that his act was politically motivated.   
	Honourable Chairperson, my respectful submission that the evidence that we have heard right from the identification of the deceased as the leader of the group that had apparently been stoning the hall to the very final allegation of him having managed to escape and under those circumstances having been shot and killed by the applicant, it is my respectful submission that we have not heard the truth from the applicant in that respect.   
	The applicant has stated that, on one hand he states that he identified the deceased as the leader of the group and on the other hand, he says that he shot in that specific direction merely because the bulk of the group was standing there.   
	Furthermore, if one looks at the testimony of the father, Mr Dyasi, who states that his purpose in sending William out that evening was in fact to collect his youngest daughter.  The circumstances under which he was shot, was in fact relayed to his father in as much as my learned colleague has stated that that is hearsay evidence, it is my respectful submission that it is in fact admissible as one of the exceptions to the hearsay evidence rule, that it is a statement made by a dying person.   
	In that regard, you are entitled to take judicial cognisance of it.   
	Furthermore, we look at the evidence of Mr Dyasi in respect of the physical condition of the deceased, that his son was not in a position to stand up even, he was so badly injured and that he made in his statement, way back in 1985 to the police as well.   
	Clearly it does not accord with the conditions or the circumstances that Mr Luff would have us believe that he removed the deceased from the premises.  Mr Luff's credibility is also subject to concern, especially if one looks at the question of him having observed that street for some 45 minutes and a possible perpetrator of the stone throwing incident was then removed from the scene, and Mr Luff does nothing about it except later goes down to the police station.  
	Here is an ideal opportunity for them to have at least arrested some of the people whom they are saying they went out there to look for, otherwise what is the purpose of the observation?  He would have us believe that he was afraid whereas he had in fact had seven years' experience by then in as much as he may have only been working in unrest areas for five months prior to that, it doesn't change the fact of his seven years experience.   
	My submission is that his explanation in this regard is rather incredible.   And also that the police station was just down the road, he could have called for assistance and there was no follow up to that observation at all, subsequent to his reporting the matter.  
	I will also ask you to take into consideration Mr Luff's version about, or his explanation for why in fact he shot William.  He didn't fire a warning shot, he didn't call, Mr Geldenhuys was in the immediate vicinity, for help.  He shot him with an SSG round which is clearly lethal, he knew the impact of, he knew the effects of him having firing that shot, that Mr Dyasi could in fact have been killed by that.   It does not accord with his version to us, that he had intended merely to arrest the deceased.   
	Then furthermore he seeks to rely on Section 20(b) of the Act, which expects, sorry not expects, according to which Mr Luff ought to have acted both in the course and scope of his duties or under express or implied authority.  
	The evidence by his Commanding Officer, Lt Frost, at the inquest was clear that he had to act with the minimum amount of force and in accordance with the provisions of the Criminal Procedure Act.  Neither of that was done.  
	Furthermore if one looks at Mr Luff's political motivation for having committed the offence, if one looks at the one requirement of proportionality, it is - it wasn't necessary for William to be killed in order for the overall political objective as Mr Luff would have us believe, to be achieved.  He had help, they could have arrested him and the normal process could have taken its course.  There is no evidence before us that had Mr Dyasi been arrested, that the normal judicial processes could not have run its proper course at the time.  
	Also I will ask you to take into consideration that Mr Luff has conceded that regardless of what the allegations against Mr Dyasi was at the time that he was arrested, he would still have acted in the way that he did, by shooting him.   Also his explanation about them not being able to subsequently identify the victim had he escaped, is clearly laughable, the man was severely injured.  By all counts, he wasn't even able to walk on his own.   Mr Luff was a healthy, tall, strong policeman at the time with seven years' experience.   
	My respectful submission is that having taken all this into consideration, that there was no political motive for this killing and that we haven't heard the truth here today, honourable Chairperson.  Those are my submissions, if there are any further points you would like to hear me on.

CHAIRPERSON: Thank you Ms Patel.   Are there any reply Mr Rheeder?

MR RHEEDER IN REPLY: Mr Chairman, just on one or two legal aspects.
	My learned colleague concluded by saying that Mr Luff did not have a political motive at that stage when the deed was committed.  It is my respectful submission that the objective or the requirement according to the Act is not a political motive, but a political objective ... (transcriber's own translation) ...   The motive of the person committing the deed is only one of six factors to be taken into consideration by the Commission to determine whether a political motive or whether the criteria for a political motive have been complied with.   
	It is my respectful submission that the fact that Constables and Sergeants, policemen in uniform in 1985 went into townships with shotguns to protect State property and to break up crowds of people involved in riots, and that was all part of a political objective of the previous dispensation.  
	Mr Luff is a person who played a very small role in that political objective.  Therefore I am asking the Committee like - as the Act describes it regarding a political objective in that regard and I am referring to the criteria in subsection 3 of Section 20, and specifically (b), and I don't think it is necessary to read this out, or to repeat it.  
	I wish to add that when my learned colleague indicated subsection 2 of Section 20, it does not only have to do with expressed powers, but also to tacit powers.  It is my respectful submission that this deed falls within the description of political objective as determined by the Act.  Thank you.

ADV SIGODI: Mr Rheeder, isn't it the case that at the time that he shot the deceased for the second time, there was no longer any stone throwing?

MR RHEEDER: Honourable Chairperson or Committee member, sorry, the facts, yes, it is so that there was no stone throwing.

ADV SIGODI: Right.  Isn't it the applicant's case that when he shot the deceased, he shot him only to apprehend him, to arrest him?

MR RHEEDER: Yes, that is also, that was his testimony.

ADV SIGODI: And is it not his case that his intention was not to kill the deceased, but to be able to arrest him?

MR RHEEDER: That was his testimony.

ADV SIGODI: Yes, now isn't that, doesn't that fall within the use of force in arresting a person, in criminal law, doesn't that make it a lawful action?