Amnesty Hearings — Johannesburg — 1999-02-10

MS NHLAYISI: Mr Chairman, the danger here would have been if those people were really IFP members they would have attacked them.  The applicant and his friend would have been attacked so to ...(intervention)

CHAIRPERSON: That was not his intention, not so?  His intention was not to defend himself or to avoid a possible attack, his intention was to arrest them and take them somewhere for questioning etcetera, that's what you submit.

MS NHLAYISI: That's his evidence.

CHAIRPERSON: Ja.

MS NHLAYISI: When this issue was taken further with him in evidence, I cannot remember who of the members of the panel asked the question, he was asked why was it necessary to shoot at them first.  Amongst what he said, he said
"I knew if I shoot first, they would not be in a position to shoot us."
That's what he said again in his evidence.

CHAIRPERSON: You see at best for him is that he shot at those people in an attempt to arrest IFP members.  Had he shot at them to prevent them attacking, that would amount to self defence?

MS NHLAYISI: That is correct.

CHAIRPERSON: So let's stick to the version that he initially gave that "look, I shot them because I wanted to arrest them" which will be bound or covered by the political motive aspect.  I'm saying his negligence at best for him to establish who he was shooting at, does that not taint his case?

MS NHLAYISI: In determining whether he was negligent or not, I request the Committee to take into account the circumstances that prevailed at the time when this incident occured in that there was no opportunity to can establish at that stage as to whether these people that he was seeing before him were or were not IFP members and the situation was such that there was a fight, it was not possible for him to make such an establishment.

ADV GCABASHE: Ms Nhlayisi, I just want to explore the subjective believe and those surrounding circumstances that you have referred to.  Really, those surrounding circumstances as I understood the evidence are as follows.
	This incident, the second shooting, occurred at about 2 o'clock in the afternoon, in broad daylight.  It's only the applicant who was armed, his friend was not armed.  They were not pursuing these particular persons in the sense that they were in hot pursuit but they had decided to come back to the school because they had realised that these chaps had run into the school, some of them had run into the school premises and as it was fairly contemporaneous but it was not a hot pursuit.  As they approached the school yard, these two persons emerged from the school yard essentially.  There's no evidence that they were wearing those distinctive red bands that the applicant and his friend had noticed earlier, vis a vis the vigilante group.  There is no evidence that they were running in any particular direction.  In fact when the translation was, it sounded like they were just walking by, passers by, so they were walking, yet - oh and then the applicant shouts at them to stop, which they do not do, they simply ignore him and he then shoots at them.  Now all of this in broad daylight.  Now just on the probabilities of him subjectively establishing that these two are persons who are part of that vigilinte group, I have a difficulty there.
	My second difficulty arises from again the probabilities.  Even if these two had been part of the vigilante group, which is what he believed, his intention is not to kill them, his intention is to arrest them and take them where to, 2 o'clock, broad daylight, brandishing a firearm, frog marching them or making sure they go to a particular place. I mean this the probabilities of that having been the intention and the consquences of his actions being that he was then going to take them to his comrades, the probabilities for me I still have a great difficulty with that.  I don't know if you can assist at all in narrowing the probabilities and saying it was quite likely, very likely that indeed all the things that he testified to were subjectively what he believed in.  Can you help me with this, having painted my own difficulties for you?

MS NHLAYISI: I will start by referring back to the evidence that he gave.  He said when they met with this group some of them were wearing these red head bands and arm bands.  Then if he says some of them, it means some were not and in his explanation again he says these two people that he met in the school yard were not dressed formally though he didn't take it further to explain as to how they were dressed.  Therefore it is my submission that seeing two people emerging from where those other people disappeared played a role in him thinking that these were part of the group though they were not wearing the same head bands and arm bands that he described were worn by the other members of the vigilante group, but for the reason that they emerged from that same spot where these others have disappeared, to him he thought these are the people who had run into the school and the fact that at some stage he tried to give a verbal warning to say they should stop and they didn't react to act, played a role to an extent that these are the people we were chasing, he's requesting them to stop and they are not complying for whatever reason,.  he doesn't know, therefore he resorts to firing a shot towards them to make them stop.

ADV GCABASHE: If I can interrupt you just there, they continue walking, they don't start running away as you would expect those vigilantes to have done, they simply ignore him and continue walking and yet in those circumstances he still assumes that assumes that this must be part of, this is his evidence, these people must be part of that grouping.  People are just walking along chatting, probabilities there, that's where my difficulty is and then the last aspect of course being the - what does he then do with them, you know, just again the probabilities, where is he taking them to and how does he does he get them there?  He's the only one who is armed?

MS NHLAYISI: If I recall the evidence, it's not clear because it was said in evidence that those people started running and it was after he shot, I distinctly remember that ...(intervention)

CHAIRPERSON: ...(inaudible)

MS NHLAYISI: Thank you for that.  I wish to concede on that score that by them walking maybe it would have brought something to his mind that they are not part - but this is not what happened because of the other circumstances that surrounded the happening of this event, he concluded that these were part of the group.

CHAIRPERSON: Can I also raise something else on a similar issue.  His evidence said there were a lot of people initially, some with arms bands and some with no arm bands.  Some of them ran into the school.  What are the probabilities of him shooting at two of the people even if he assumes they were members of that group in an attempt to arrest him.  Did he think he was going to be allowed a free route to collect his two or ...(indistinct) colleagues in the school yard?
Surely he could not have thought that?  He wouldn't take the chance.  It is likely that he may have been arrested and taken to their hold out for similar treatment that he had in mind for them, is that not so?

MS NHLAYISI: That may be the case but Mr Chairman as we do not have any evidence regarding that ...(intervention)

CHAIRPERSON: Well what are the probabilities, what do you say about the probabilities?  The probabilities that he shot there in order to arrest them and therefore commit a political act or did he shoot to really defend himself without any intention of making the arrest because it was unlikely that that kind of arrest would be successful and it was unlikely that somebody in the applicant's position would even have thought that he could make a successful arrest in those circumstances.  That's what concerns me.