Amnesty Hearings — Mmabatho — 1998-09-23

ADV MOTATA: No, but we look at the documents in its totality and we have regard to page 15.  He says the people who were actually exhorting them to fight the AWB, was ANC people.  He then showed his stance on which side he is.  Doesn't he say so in his papers Mr Van der Berg?

MR VAN DER BERG: No, with all respect.

ADV MOTATA: The second last paragraph, our client decided to act for the public who were mostly ANC members and supporters.  Our client joined them and moved across the street at TTA, being shielded by the group of people, thereby making a clear stance with regard to which side he is on.

MR VAN DER BERG: Mr Chairperson, can I just get the reference of that specific quote?

CHAIRPERSON: It is page 15, the second last paragraph.

MR VAN DER BERG: But sir, with respect Mr Chairperson, he mentions it here but it was not mentioned in his affidavit.  It is also not what appears in his application for amnesty.
	Furthermore if you look at page 11, paragraph 5, that part of his statement he also did not mention in his evidence in chief.   Mr Chairperson, can I just hear from you, I don't know what time the Committee would like to adjourn for tea.  I see now it is quarter past eleven?

CHAIRPERSON: Yes, we will have a short adjournment, we can resume at round about half past eleven.
COMMITTEE ADJOURNS

CHAIRPERSON: Mr Van der Berg?

MR VAN DER BERG: (continued)  As it pleases you Mr Chairperson.   Chairperson, just to get back to the last question which was put to me, I would like to continue with my Heads, the ones I have prepared.
	If we go to paragraph 15, it is quite evident from this paragraph, our client decided to act for the public who were mostly ANC members.  The applicant in this issue does not say that I am a supporter or that I am an ANC member, what does he say?  He said that he cannot become an ANC member because he was in the Police Force and he cannot belong to a political organisation, I can understand that.
	But he is not reflecting on himself here, and in the second instance Chairperson, if you look at page 4 of the reasons that he gives for obtaining amnesty, it also, it is not apparent and I would like to continue with my Heads in argument, and I am going to paragraph 17 in this instance.
	The applicant never knew what the policy of the ANC was and why he was a supporter of the ANC.
	This issue Chairperson also quite clearly became quite apparent after Mr Mpshe asked him the question what does the ANC stand for, what is their policy, etc.  I am not going to repeat all that allegations, but he said I like the ANC because the ANC are negotiating or they talk a lot.  With all due respect, that cannot be a reason why you like a party and then also paragraph 18, the question if there was a state of war during the incident, if there was a state of war prevailing during the incident, also does not hold any water in the light of the following:
	Firstly Mr Peter de Ionne testified that since the, from the time the blue Mercedes Benz came to a standstill up until the point that the AWB men were shot, no other shots were fired.  This does not tally with the evidence of the applicant that the shooting continued whilst he was standing next to the vehicle.
	Also on the video's one cannot hear any shots and this is contradicting what the applicant said.
	Then 18.3, Mr de Ionne also testified that the Security Forces had the situation under control and they monitored it, even though the atmosphere was a bit stressed.
	18.4, we can look on page 19 of bundle A, we can confirm Mr de Ionne's evidence.  You will see on the top of the page, my Mamba vehicle was standing on the opposite side of the road, I stood next to my vehicle.  I could see everything from where I was standing and at that stage, the whole situation was under control.  No further shots were fired.  There was quite a lot of media on the scene.
	Now Chairperson, it is very important to keep, to bear in mind that the Tebbutt Commission, I apologise the Tebbutt Commission found that the evidence of Mr De Koker was quite credible and you will find that on page 152 of the Tebbutt Commission's report if I remember correctly, but I can make sure.
	Then also Mr De Koker under cross-questioning during the Tebbutt Commission, I just want to see if I can find the passage Chairperson, during the Tebbutt Commission proceedings, you will find this on 1516 of the records of the Tebbutt Commission and I will read to you from the fourth line from the top.  Now you said that you secured the scene, is that correct, he says yes.  Were there soldiers around the vehicle in some kind of order in order to protect the whole scene, the Mercedes?  He says yes, our vehicles were ready.
	Now Chairperson, it is quite evident from this evidence of Mr De Koker that the situation was completely under control.  No shots were fired any more and we also know that the media was there and they were holding interviews and I also think you could see this from my Heads later on.
	If I can continue 18.4, Mr De Koker mentions that the situation was under control and no further shots were fired.  The whole situation was secure and safe.
	18.5, the Commission today knows the following:  firstly the AWB was busy to retreat out of Mmabatho.
	18.5.2, an ambulance was called whilst the AWB members were lying next to the vehicle.
	18.5.3, the AWB people, members, were disarmed.  The next one, no shots were fired.  The media was holding interviews and they were also taking photographs of the whole scene.
	6, the situation continued for about another 20 minutes since the Mercedes Benz came to a standstill up until the point in time when the incident took place and we also know that the AWB members, or one of the members who were in the car, shouted don't shoot and we also know further that they were injured.
	So in the light of these aspects Chairperson, with all due respect, a war situation could no longer have prevailed.  One has to look at the situation the way it was.  Not necessarily what happened beforehand because the shooting definitely did take place, but the 20 minutes and that is very important, 20 minutes lapsed whilst those three men were lying on the ground and they were completely, they had no weapons with them.
	In the context of what, the context to which the applicant is referring to, it is impossible that it could have been a war situation.
	Then ...

ADV SIGODI: Sorry Mr Van der Berg ...

ADV BOSMAN: Sorry Mr Van der Berg, can I just interrupt you here?  Can't you make a distinction between a war situation and a fighting situation?  We must look at the state of mind of the applicant.
	If he was under the impression that there was a war situation prevailing, wouldn't that be justified and that there wasn't a fighting situation at that stage?

MR VAN DER BERG: Chairperson, with all due respect, no.  The reason is simply the following.  A person cannot say okay, here is a war situation whilst the people are lying there defenceless.  Everything is under control and then a person comes from the outside, runs and shoots these people and says, that is fine, that was war.
	Maybe the war was only coming from his side, but there wasn't a war situation prevailing.  Those people were disarmed, they couldn't defend themselves.  To which war can he be referring if two of them are injured and one person is dead, then you can't even speak about a fight situation.

ADV BOSMAN: Mr Van der Berg, sorry, that is exactly my point.  If you see the situation in totality, wouldn't it be a justifiable inference on the applicant's side that around us there is a war situation.  Now you can say that he should have known that at that point in time, there wasn't really a fighting situation.