Amnesty Hearings — Cape Town — 1997-07-14

CHAIRPERSON: Mr Papier, one understands that, but what my brother is saying to you is that perhaps you know, I mean to speak of fraudulent basis, it is a very technical term.  I mean fraud is an crime which consists of a number of elements and your argument pre-supposes that the applicant's conduct met all the essential elements of a crime of fraud and that is not necessarily so.	Perhaps what you wanted to say to the witness was that when you went there, you purported to be what you were not.

MR PAPIER: Thank you Honourable Judge.  The Afrikaans translation is a bit of a problem.  Thank you.
	Captain Benzien, would you agree with me that you went there to create the impression that you were from the Municipality, that you were there to do maintenance work to the drains and that that fact does not appear in your statement before the Committee today?

JEFFERY T BENZIEN: Yes, I will concede that.  I will concede that I went there in disguise and with all due respect I once again refer to the inquest proceedings, where that was also mentioned.

MR PAPIER: I understand that you then gave Constable Abels orders to go knock at the back door, is that correct?

JEFFERY T BENZIEN: Yes, that is correct.

MR PAPIER: You were busy looking into the drains?

JEFFERY T BENZIEN: Yes.

MR PAPIER: He had to go and knock twice, is that correct?

JEFFERY T BENZIEN: Yes.

MR PAPIER: And it was on the second occasion when the back door was opened, correct?

JEFFERY T BENZIEN: Yes.

MR PAPIER: How far were you away from the back door?

JEFFERY T BENZIEN: I will concede the statement which I made was not a detailed version of what happened, minute by minute.  If I remember correctly, we moved along the side of the house, opened a manhole cover next to the side of the house.  	Everything seemed to be closed.  I looked through, I think the kitchen window, the curtains were nearly down to the window cill, it was dark inside the house and I think that I saw a movement inside the house.
	There where the manholes are, next to the house and passed the back door, not in line with the back door, was a garage and next to that or behind that, was another manhole which we opened.
	Abels knocked, we moved further.  He knocked again.  I brought it to his attention that I thought I had seen movement in the house, I wasn't sure and whilst we were standing some distance away from the door, the door opened.
	The distance between ourselves and the door, here I have to rely on my memory, it could possibly have been two paces, if I remember correctly.

MR PAPIER: Captain, I am referring to paragraphs 7 and 8 of your statement and I quote ..."after a couple of minutes a Coloured man opened the door.  The Coloured man held a jersey and a towel in front of his trousers and his right hand was covered with this jersey and the towel whilst his left hand was pressing up against his concealed right hand."

JEFFERY T BENZIEN: That is correct.

MR PAPIER: Was that your first image of what you had seen?

JEFFERY T BENZIEN: Yes.  If I remember correctly we knocked and we stood back from the door, we discussed the situation - there was anybody in the house, was anybody going to open.  Whilst we were still talking the back door opened and I then saw that the deceased was standing at the door, and his hands were in front of his body with the jersey and the towel covering his hand?

MR PAPIER: So you didn't actually see the door opening?

JEFFERY T BENZIEN: That is correct.  It wasn't as if we knocked and the door was then opened.

MR PAPIER: You see, I want to put it to you that that is not at all the impression which your statement creates to the Committee, it tells a different story.

JEFFERY T BENZIEN: Well, I don't know what other story it is telling.

MR PAPIER: My instructions are, perhaps you can confirm or deny this, that that door had a handle and also a little lever on the inside?

JEFFERY T BENZIEN: I can't comment on that.

MR PAPIER: If a person wanted to open that door, he would in all probability have had to use both hands?

JEFFERY T BENZIEN: I concede that.

MR PAPIER: I want to put it to you that if that was indeed the case, then it would be highly improbable that you could have seen the image which you have stated in your statement?

JEFFERY T BENZIEN: Your Honour ...

CHAIRPERSON: Unless this stable or whatever it was holding that door, had not been fastened at that stage?

MR PAPIER: Maybe the applicant would be able to assist us with that My Lord.

CHAIRPERSON: Unless there was a witness inside the house who is going to come and tell us what happened?

MR PAPIER: I would leave that there, Honourable Chair.  According to your statement Captain, you then said that you identified yourself to the deceased, Ashley Kriel.

JEFFERY T BENZIEN: Perhaps the statement doesn't read correctly.  After I identified him, I didn't immediately then say I was a member of the police.  He first came out of the house and I recognised him.
	I wasn't sure whether he recognised me.  I said a whole lot of things about drains and sewerage blockages and so on.  It is difficult to explain to the Committee or to anybody who wasn't in that situation, I had to make a snap decision as to how I was going to act. 
	Was I going to walk away from the scene knowing that this man was a trained terrorist or freedom fighter.  He had something in his hand and the way in which he concealed his hand, was unnatural.
	Had I walked away and he recognised me, or became suspicious, he might have if he had had a handgrenade in his possession, used this handgrenade, thrown the handgrenade and if he had a pistol, he could have shot us dead.
	That was the worst scenario which I could imagine.  You must remember that these are thoughts which flash through your mind in a fraction of a second.  
	Mr Chairman, may I try to sketch the situation to the Committee.  The second alternative was that he would recognise me, that he does not act against us in any way, but as soon as we leave the scene, he then leaves his hiding place and we would lose track of him.
	The third alternative, I had to consider as a trained policeman, was must I now as a policeman, irrespective of the risk continue with my arrest of this man and that decision was taken by me in a split second, to try and arrest this man, irrespective of the danger which the situation clearly posed.
	I moved to the door, the deceased stepped back a pace.  He was standing in the doorway and I tried to squeeze him.  At that stage he turned towards me.  I was convinced that he realised at that moment that this was not a worker from the Municipal Cleansing Branch.
	When I then grabbed him, I told him I was a member of the police and that I was arresting him.  I had hoped that he would subject himself to the ... (tape ends)

MR PAPIER: You said that you feared that he might have a handgrenade or a firearm in his possession?  Surely that was not the reason why you killed him?

JEFFERY T BENZIEN: At that stage and at no other stage, there was the intention, I never had the intention at that stage or any other stage to kill him, I wanted to arrest him.

MR PAPIER: You then succeeded in taking away the deceased's firearm from him?

JEFFERY T BENZIEN: Yes, that is correct.

MR PAPIER: Your colleague, Abels, was present there, he was assisting you, is that correct?

JEFFERY T BENZIEN: Yes.  He helped me to apprehend the deceased.

MR PAPIER: What did you do with the spade?

JEFFERY T BENZIEN: If I remember correctly, the spade was laying on the ground or I in fact now have a better recollection of the spade, as possibly leaning up against the garage wall where the back manhole was.

MR PAPIER: So if I understand you answer, you don't know what you actually did with the spade?

JEFFERY T BENZIEN: No.

MR PAPIER: Is it possible that you still had the spade with you?