Amnesty Hearings — Pietermaritzburg — UNKNOWN

MR DU TOIT: What happened in my view was that before the trial - when you mean did it come out you mean into the open, the public, or do you mean was it mentioned to somebody else?  If you mean by coming out in the open, at the trial already when this was canvassed for the first time Major Terblanche was deceased.  So he was deceased because, as I said, he was killed by another special constable who was himself killed by other policemen.  So that in fact when there was the first opportunity for this to be made public he was already deceased.
But the discussion at the particular time, that is when the brigadier came to Pietermaritzburg, as I understand the position - to New Hanover, when they discussed the matter with my client, Terblanche was also present.  I think it was quite clear that his presence must have influenced the brigadier from head office, who just did nothing and allowed van Zyl, after a private 
	/discussion,
discussion, to go back to my client and say, "Don't worry,
nothing will happen."
But I must point out that it is not necessary for a successful application to show that there was a stamp of approval from the authorities.  That there was an instruction is enough, but I would suggest that on the probabilities, if one looks both at what happened at the time, what happened prior to the incident, and also what happened after the incident, even when the Trial Judge said, "But there should be an investigation into this.  What is this Joint Management System?"  WILSON J said, "How could policemen be involved in this?  This is not normal police function."  He said, "Could it be that this unit was used elsewhere?"  He posed various questions and he said, "Let there be an inquiry."  If there was any concern on the side of the authorities at that point in time to establish, to answer those very apposite questions, there would have been an inquiry.  I would suggest that the fact that there was no inquiry also tends to support that there was the stamp of approval, although, as I have indicated, that is not what the Act requires.   Even if the applicant, given what he knew, was reasonably - on reasonable grounds believed that he was acting within the course and scope, or express or implied authority, it would be adequate.
The background material was made available for two reasons.  Firstly to give a graphic description of what the typical reading material in this abnormal society was for a policeman.  In what normal society would a policeman be reading a strategy document and counter measures like that?  The answer is very obvious.  In no normal society.  	/And that
And that is why I say that one - and I think my client has
also lodged his plea with you to put you back not only to those years, but also if possible into his shoes from 18 years onwards on the one side, and that is what happened.  It is tragic that there were sides, and that the normal function of a police force to remain neutral was not adhered to.  What one found was the police force in general solidly on the one side, because the other side was perceived not only to be anti-Government, anti-State, but in fact the enemy.  And it is in an almost war-like situation that the police were pulled in and then used, in my view, to do certain things.  Because what is clear is that the Joint Management System should not have been something in which the police force and my client should ever have been involved in, but they were used in order to limit UDF domination, the internal ground swell which was unstoppable probably already at that point in time.

BERNARD MAKGABO NGOEPE: Mr du Toit, sorry, I don't want to interrupt you, but I just want to tell you that I have got two profound difficulties on which I would like you to help me.  You have touched them, but not clearly enough, and to me they are very basic, they are very fundamental.  The first one is you referred to section 21 (b) - and you must tell me if you want to come back to it or you want to deal with it now, but that is now ... (intervention)

MR DU TOIT: 20 (b).

BERNARD MAKGABO NGOEPE: 21 (b).

MR DU TOIT: No, it's 20 (b).

BERNARD MAKGABO NGOEPE: All right, let it be so, let it be so.

MR DU TOIT: Oh, 20 (2) (b).

BERNARD MAKGABO NGOEPE: 20 (1) (b), right at the top there, the
	/act or
act or offence which the application is associated with the political objective.

MR DU TOIT: Yes.

BERNARD MAKGABO NGOEPE: Now, we know what the political objective was, I guess.  What I am not so sure is - in fact let's get to the question of authority, because you see to argue on two legs.  You argue that there was actual authority, and even so, even if there was no actual authority, alternatively then you rely on ... (inaudible) ... am I right?  Now, the problem with this case is that - assume that the United Nations issues a resolution authorising Washington to launch a missile attack on Baghdad, and the United States unleashes such a missile, but it releases it in such a way that the missile lands on London.  Is that still within the authority of the United Nations?  That is the problem I have in this case.

MR DU TOIT: No, let me say I think ... (intervention)

BERNARD MAKGABO NGOEPE: In other words there has been some - the difficulty here is that there has been some aberration with tragic consequences.

MR DU TOIT: Mr Commissioner, yes.  Murder will always be an aberration, and that in itself also demonstrates the abnormality of ... (incomplete - end of Side A, Tape 5) ... of early release.  What we are saying is that he was ordered to place the specials, who he was told will come there, at Gabela's house, and he knew that the special constables would be used in the attack that evening.  That is not only authority, it is an instruction.  It is the fact that he obeyed the instruction that brought the special constables there, that brought him to take the special constables to Gabela, and also to use the
	/constables.
constables.  In other words he was instructed and he was not only give the authority, but he was given a direct order by a superior officer to do what he did.

BERNARD MAKGABO NGOEPE: By killing members of the IFP was he still within the premises of the stated political objective?  Did he not go outside the parameters of the political objective?