Human Rights Violation Hearings — Bisho — 1996-09-11

ATTORNEY GEN W JURGENS: Your Grace, members of the Commission, I was a Deputy Attorney-General of the Republic of South Africa and I was sent to Ciskei where I served as Attorney-General well before the incident in November 1992 or rather September, until I took early retirement at the end of November 1995.  I am now in Port Elizabeth.
 I was approached by the members of your Commission, by Reverend Finca, to make submissions to the Commission, not so much on the events of the day, but on the aftermath as it were, and to put into perspective the reasons for the lack of progress towards a possible prosecution, or a final solution of the legal implications of the events of that day.
 After this shooting, Your Grace, I instructed the police to open 29 dockets of murder and one docket of attempted murder relating then to the general shooting on the demonstrators.  I was also involved with the Pickhard Commission and with the Goldstone Commission and I worked hand in hand with, I think he was then Colonel Schleller, who then became General Schleller and is now Deputy Commissioner Schleller in the South African Police Service.  
 We tried to get to the bottom of the facts and to unravel the facts from all the various perspectives and to make the case ready for a trial, either a prosecution or whatever, but this proved to be a very difficult task.  I say firstly, M'Lord, or rather Your Grace, that the Ciskei police had virtually no credibility in the eyes of large sections of the community and certainly those who participated in the demonstration.  They were therefore unwilling to come forward for information and evidence.   Even those, sir, whose names and addresses we had from police records, refused co-operation.  They said they were not going to speak to Gqozo's policemen and I understand the sentiments at the time.  I mean they were being shot at by Gqozo's soldiers and now they did not wish to have Gzozo's policemen.  How erroneous it was, that was the impression at the time.
 For instance sir, we took great trouble to establish exactly where each person was when he or she was shot at but that proved an almost impossible task without the assistance of the community.  We obtained press photographs from press photographers who were there.  We tried to link up the clothing of the corpses with the clothing we found on press photographs.  We contacted the Red Cross Ambulance who gave first-hand assistance there to the injured.  We asked the public who conveyed the injured people from here to the closest hospital, to come forward but we made very little progress.  We also asked Radio Ciskei and we went on air on Radio Ciskei but also with no avail.   
 Secondly, Your Grace, I should also mention that I was in formal contact with the attorneys for the Tri-partheid alliance and requesting them assistance for them to obtain statements and then to provide the statements to my office.  I have made telephonic contact with them, I wrote them letters and their response initially was positive.  They would certainly obtain from their supporters, statements to give to the Goldstone Commission and to my office.
 However, no such statements was forthcoming and on the 18th February 1993, I received a letter from the attorneys asking me whether I have also opened a docket investigating allegations against Mr Kasrils because if that was so, then of course their clients would obviously be reluctant to provide evidence against one of its senior members.  I wrote back to them to explain that I was not investigating any person or any person's activities on that day but I was investigating the whole event and I cannot prejudge the matter and of course I cannot give any assurance who will or will not be prosecuted.
 I may at this stage also interpose, Your Grace, by saying that when the name of Mr Kasrils first came to the fore, there was a lot of speculation and the media continuously phoned me and asked me can I confirm this.  I always refused to confirm this and I also always tried to downplay this but somehow the newspapers got it, managed to bring across the message that I was zeroing in on this leading figure of the ANC.  This was of course not the truth but be that as it may, on the 2nd March 1993 I say in paragraph 14 that the attorneys would revert to me after contacting their clients but they never did.  I must also say that before they could do so, of course there was the indemnity decree from Brigadier Gqozo's government and the resultant court action.
 Thirdly sir, I say in paragraph 15 that I should also record my frustration at the lack of co-operation from journalists who tried to hide behind some perceived professional privilege, not to give evidence.  Your Grace, the tragedy of that day was played out before the eyes and ears of the local, national and international media.  
 This really was the mass action to end all mass actions.  There could never, ever be in South Africa a mass action to improve or to worse than this one.  You could never, even if you have double the number of demonstrators, you could never have the electric atmosphere, the absolute antagonism, the absolute expectation of disaster.  I mean Bisho was deserted.  Everybody who had any sense stayed away from this place, except of course for the media world who were here in droves to capture what everybody realised would be a catastrophe.
 I say, Reverend Chairman, that across the country and across the world, people saw scenes of television crews, saw photographs, heard and read eye-witness accounts of the events and of reports of interviews conducted after the event.  Newspaper clippings of reports of the intended demonstration before the time and the official reaction thereto, and the resulted massacre and aftermath, were assembled by my office, Reverend Chairman.  These newspaper clippings made a bundle of about 30cm thick.  Imagine then in these circumstances, the frustration of a prosecutor who finds himself in a position where he is unable to prove facts which are already in the public domain, because journalists who have published these facts to the world are unwilling to substantiate or repeat those facts in evidence.
 I spent a great deal of time and effort talking and corresponding with certain journalists and their attorneys to convince them to make formal statements.  Even only to the extent to make a statement that they stand by what they had written in their respective reports but I had only very limited success in the process.  I must also say that there were a few journalists who did assist and who were prepared to make statements.
 Then I come in paragraph 19 sir, to a fourth and a major obstacle.  The lack of co-operation of the then Ciskei Defence Force.  I must at the outset say that I contacted Brigadier Oelschig and Colonel van der Bank for their statements and for assistance generally and they answered all my questions and promised the full co-operation of the CDF.  They also appeared before Judge Pickhard where we examined them to get the fresh view as soon as possible after the event.
 However Your Grace, the co-operation promised was not forthcoming, especially when certain details were sought and where all the firearms of the scene of the massacre were sought for ballistic tests.  General Schleller as the police investigator, concentrated on this aspect and I do not possess all the first-hand information about this but I can say sir, that on repeated occasions, undertakings were made by middle management of the Defence Force to have certain witnesses and to have certain objects available at a certain date and place and time.  The police would go there but after a long wait, some feeble excuse would be produced and they would have to go back and retry again to interview certain people, or to view certain books, or records, or to receive certain objects such as firearms especially.
 I regret to say sir, that in this fashion certain crucial evidence was still wanting when the indemnity decree was made.  To list a few, all the firearms had not been tested at that stage.  Full lists of members employed and where each was deployed precisely.  The details of the ammunition issued before the incident and returned after the incident.  I may just interpose here to say, Reverend Chairman, that the 400 or so doppies that was picked up on the scene represented but a small amount of the ammunition actually fired on that day.  We had the information, clear information, that an instruction was given that all the doppies  [that is now the spent cartridge cases]  be picked up by the soldiers themselves.
 We also had evidence from the helicopter pilot of the South African Police who was in the air at the moment, not hundreds, but thousands of rounds of ammunition were fired on that day.  So it was crucial to understand more about this and to know exactly what happened.  How many ammunition was issued that morning and how many was returned later that afternoon.  By the time I left my office sir, that information was still not at hand.
 Also sir, the personal details of the members I had provisionally identified as possible accused and also the members manning a machine-gun on top of the guardhouse at the Provincial Legislature.  I could extend on the list sir, for example the precise point where the grenade launcher and the other launcher was positioned.  How many was fired from that position and who fired them.  I could not ascertain that from the Defence Force.
 Also a statement from the official cameraman who video-taped events from that position.  As I have said, Reverend Chairman, I should not fail to mention that there was also co-operation.  Afterwards I heard that a military board of enquiry had been convened and that a report had been drafted.  I asked Brigadier Oelschig as he was then, for a copy of that report.  This thing was marked top secret and intended for the eyes of the Head of State and the Minister of Defence only, but after some initial reluctance, he surrendered that report to me and I must say that I have received considerable assistance from the report by those two officers who did that enquiry.
 Then on the top of page five sir, I regret that I also have to mention a lack of co-operation from the chairman of the National Peace Secretariat, who undertook to provide me with a full statement regarding the events leading up to the demonstration, and his efforts to avoid a bloody confrontation and/also the events of that fateful day.  I think he and others in his position, played a very important role in trying to diffuse the situation and to have on record, a chronological events of their attempts to bring the different parties to a compromise and also the reaction of the different parties in failing to reach a reaction, to reach a compromise, is crucial to get an understanding of the build-up to this tragedy.  But I am afraid that despite numerous telephonic and written reminders and despite his promise that he will give me such a statement, I have not received such a statement.
 Then I say also that a further complicating feature was the fact that the Ciskei was at that stage, a nominally independent country.  Its police could not operate outside its territory and its subpoenas, search warrants etc. had no validity outside its territory.  People were laughing at us from the other side of the border which was a few hundred yards from where we are sitting.
 When I realised, Your Grace, that the investigation was slowly grinding to a virtual standstill and that there was very little prospect of further progress, despite a lot of effort and frustrating time wasted, I decided upon the rather novel approach of drafting my preliminary views, based on the then available information, and to present that to the various suspects and to invite their response.  This I styled a draft preliminary indictment which is now already also in the public domain.  In that document, which is a fairly extensive document, I set out my ideas on the possible cases of murder, attempted murder and culpable homicide against a variety of people.  That was my views at the time on the information that I had at the time.
 What happened thereafter was as follows.  Firstly, on 18 March 1993 I forwarded a copy of this draft indictment to the then Minister of Justice here in Bisho, to forewarn him and government of forthcoming events, namely that I have embarked on this process.  On the 5th April 1993 I forwarded copies of, to the three sets of attorneys then acting for the Ciskei Police, the Ciskei Defence Force and the ANC, inviting them to respond to the contents of that document.
 Before I had received any response, on the 27th April 1994 the Minister of Justice here in Bisho informed me that the government intended to rely on an Indemnity Act of 1985.  That was an Indemnity Act passed by the Sebe regime after the bus boycotts and the shootings there at Egerton station at Mdantsane and all those things.  That Act had for some or other reason never been repealed and they intended to rely on that and they said of course, this makes nonsense of your attempt to prosecute anybody.  You haven't got a choice, you must just stop doing so.
 I then looked, had a very in-depth look into that Act and then in a letter to the Minister, I set out my disagreement with that view and stated that I was not, that that Indemnity Act would not cover the events of the 7th September and I said I will proceed.  During this period, it reached my ears, the government was considering passing a decree to indemnify all members of the Security Force and I had to await events.
 Then sir, on Friday the 14th May 1993, a journalist, a Ms Clair Keaton of Eknar phoned me and said that she saw a copy of my draft indictment and she wished me to confirm the document.  I did so and refused to identify any of the persons listed as possible accused persons.  In this regard Mr Chairman, may I just interpose also to say that when I gave my document to the three sets of attorneys, I deleted all the names thereon except the names applicable to the different sets of attorneys.  To the ANC attorneys I deleted all the other names.  To the police attorneys I deleted the names of the Defence Force and of the ANC, so that it was meant only for the police, and also the Defence Force.  I did so because of the possible fear of recriminations and I had actually been requested to do so.
 However, at some stage one of these documents found their way to the public and I have no quarrel with that, I never regarded that as a secret document.  Unfortunately the copy of the document obtained by some of the media was the one where everybody's name was deleted, except for the one member of the ANC and that fuelled now the fire that I was now sort of zeroing in for Mr Kasrils, which was not the case.  I was even taken to task on that but I wish I can explain it that way.  
 That evening on 8 o'clock news on SABC, the news broke that I have made this provisional indictment.  This was reported also on radio and in the newspapers over that weekend and on the Monday morning the 17th May 1993, the Minister of Justice of Ciskei, phoned me, said that Brigadier Gqozo was furious about my actions and he wanted to force me out of my position.  He wanted to kick me out on that Friday evening when the news broke there and then.
 He was dissuaded to do so then but a decision on my de-secondment was planned to be taken the next day and he asked me if there was anything I wanted him to say on my behalf, but I said I had done nothing, I did my duty and I will resist any attempt to get rid of me.  Then on the Wednesday, two days later, I read in the Daily Despatch that a decree was passed the previous day by Brigadier Gqozo and his Council of State, to absolve all members of the Security Force.  At that stage of course I was then faced with a fait accompli.  I could not do anything further.  
 I found myself in a stalemate position and I was still considering what my next step should be within the Constitutional set-up at the time, when the widow Matikenxow brought a Supreme Court application to strike down that decree as unconstitutional.  I then decided to await those events and with the police, we arranged that well there is not much we can do in any case, let's not close the investigation but let it proceed on a lesser priority until we hear what the Supreme Court says.
 Eventually the Supreme Court made a ruling in January 1994, striking down this decree as unconstitutional.  I was then asked from various quarters whether I would proceed immediately with the prosecution in terms of the indictment I had already drafted.  This was of course an erroneous view and I then made a press statement, explaining the position that the matter is not yet anywhere ripe for trial and that we have merely reverted to the decision immediately before that decree had been issued.
 At that stage, of course that was now January 1994, very little has changed that would allow the Ciskei Police to make meaningful progress in the investigation.  I was also mindful of the upcoming elections to be held in April 1994 and the police had their capability stretched to try and maintain the peace in this part of the world where Your Lordship will, sorry, Your Grace will remember there was this fight between the ADM and the ANC and it was an extremely hot political climate between the pro-Gqozo and the anti-Gzozo groups at the time.
 Also, one must remember that at the time and long afterwards, there was talk about the blanket amnesty, there was talk about, not a Truth and Reconciliation Commission as we have fortunately today, and what I did at that stage therefore is to restart the process, write again to the attorneys to ask them to comment on my preliminary indictment, or rather to get the comment of their clients.  Then Schleller and myself decided that we will wait for the amalgamation of the two police forces and then to have a new team investigating this matter.
 This amalgamation took much longer and I think it only happened in August 95.  I'm not sure of the date but I think it was about then and then early in 1995 I arranged with the newly appointed Provincial Commissioner in Port Elizabeth, for the investigation to be restarted by a new team.  I then handed to that team all the statements, documents, video material, newspaper clippings, several carton boxes full of evidence and information that I had, I handed over to the South African Police Service at that stage.   When I vacated my office, Mr Chairman, in November 95, that process was still in progress.  
 May I end then, Your Grace, by saying that I fully sympathise with the victims of the massacre and with the other interested members of the community, who may feel aggrieved and frustrated at the lack of progress towards a prosecution or somehow the final conclusion of this matter.  But sir, I can only ask them to understand also the frustration of the police and the prosecuting authorities, who faced almost insurmountable problems attempting to discharge their duties under the circumstances prevailing at the time, which were anything but normal.
 It is hard to imagine today sir, that we are sitting in this peace and calm attitude where a couple of years ago, was the scenes of a bloody confrontation.  Where it was a hotbed of political intrigue, of fighting, of everything.  Things were just not normal and to expect for the police under those circumstances, to have been possible to make this case ready for a prosecution, was simply ask too much.  I can only hope that the process will now reach its final conclusion.  Thank you Your Grace.