Amnesty Hearings — Cape Town — 1998-01-14

MR PRIOR: And the reference to the breakdown of communications was given by Brigadier Fitla at page 189 of that same bundle.
Now, it was conceded by the APLA or alternatively, PAC - at page 190 of those - of the bundle that is of their submissions, where the attack on White people - sorry, at page 190 the passage read:
"A new pattern arose in the 1990's where civilians within the White community were attacked.  In the nature of guerrilla war which is unlike conventional war, detailed plans could not be made from Dar es Salaam - targets were decided by local commanders"
And it went on to say that:
"This advantage had a disadvantage, there was little political work done and so on"
	Now the question was put that these were departures or errors which had been previously been avoided by APLA and in an earlier statement or in a statement submitted by APLA, the attacks on St James Church, Heidelberg Tavern and other attacks like King William's Town Golf Course, were referred to as being specifically ordered and within the knowledge of APLA High Command which later transpired not to have been the case because of this breakdown of communication.
	Now, if I may refer the Committee also to page 201 of that submission and 202 where the delegation were in fact taxed on this question of authorisation for these attacks and whether this was a departure and whether it had been countenanced by the High Command, Brigadier Mophokeng said the following at page 201 at the bottom:
"I want to add here to the answer, when these attacks took place and before the attacks took place, the leadership - the political leadership, was not informed, it was only the military people who were aware of these attacks when the attacks took place.
	The people who claim were our publicity department - the political leadership inside the country, Bennie Alexander for example, when they were interviewed by the media they denied this.  I don't know whether they are afraid because they are inside the country, if they claim they will be arrested or whatever but the military people claim these attacks"
Also at page 218, there's an indication - half way down the page Mr Chairman, it was the testimony of Mr Molumbo on behalf of APLA regarding these attacks:
"That such attacks did take us a little of guard, we were surprised and we discussed - when we discussed it.  I'm sure that initially with the question of King William's Town for instance, we were completely at a loss and we discussed and certain explanations were made to us by the High Command.
	Some of these explanations and the context of the changing environment and they needed to carry with us the constituencies that were the main support or pillars of support of APLA"
	My submission in this regard is that APLA had difficulty in deciding whether the military High Command in fact had ordered these specific attacks inter alias the Heidelberg Tavern attack or whether these were simply the decisions made by local commanders close to the targets.
	Now, I raise these aspects because one of the difficulties that one faces in this application is the acceptance of the political objective indicated by the three applicants.  The political objective stated does not seem to marry with what the military command of APLA was saying during their submissions made before the TRC Human Rights Committee during the week of the 7th of October because what was indicated at page 220 of that bundle, Brigadier Mophokeng again stated that:
"We were very much concerned about the killings of the African people attending the night vigils, commuting to work, the Boipatong etc., and so forth and we were concerned that only the African people are suffering in this regard and of course the oppressors were also to feel the pinch.
	I quote the late Chairman of the PAC, John Netai Pukela: "That it is high time that the oppressor also bury their dead"
Further on, on page 221, a member of the delegation said the following:
"Yes, I just want to add Comrade Chairman, that during the time when our people were being killed in the townships, members of APLA - those commanders who were inside the country, were very angry, to the extent that they thought that maybe our people will say they are not protecting them properly or successfully.   That is one of the things which made them to take this decision of mounting these operations.  They feel guilty that if the war is being taken to the Black townships, they must also take the war to the White areas - this was one of the reasons"
	Now Mr Chairman, if that in fact was the case then the political objective stated by the three applicants is considerably effective because what we have - being stated by the military command of APLA, was that the attacks on inter alias Heidelberg Tavern, was simply launched by the commanders as an act of reprisal against what was happening to the Black population and could not have been contemplated as furthering the political objective of reclaiming the land from the White oppressors and particularly seen at the time - in it's time frame, against the discussions that were occurring and to which the PAC were an active party.
	Mr Chairman, Section 20(3) sets out the criteria with which this Committee must approach the evidence before it - there are six criteria.  The motivation of the offender is particularly - is an important criteria to be considered. The circumstances in which the offence has been committed have been adequately presented before the Committee.  
	I do not propose to go into any length at all about the discrepancies on the evidence, I think it suffices to accept that the attack took place as described by my learned friend, that three people were killed inside the tavern premises, there were three or four people that were injured and Mr Cerqueira was shot on the street.  Whether a hundred rounds were used or a thousand rounds were used, whether an AK47 was used or an R4 rifle used, I think pails into insignificance.  
	I think - and my submission is, that given the gravity of the offence or of the occurrence, I submit one cannot lose sight of the fact that the attack was a sustained - whether it took only a few seconds or not, it was a sustained attack, it was sustained gunfire and the intention certainly was to create as much death or to cause as much death as possible and that is evidences by the nail studded rifle grenade that failed to explode.
	An important criteria with submission, is the fifth criteria:
"Whether the object of the offence, whether it was committed against Government personnel or property or directed primarily against private citizens"
	Mr Chairman, it seems from all the literature that is available - if one reads the literature on International Law, International Constitutional law, if one deals with the judgements - with the opinions written by Professor Noorgaard and the various supporting or the various commentaries on the Noorgaard opinions, it would seem that civilians or attacks on civilians are specifically excluded when one has to determine whether there is proportionality between the objective of the offence and the object of the - sorry, the political objective.

ADV SANDI: I'm sorry, Mr Prior, if I can ask one question for clarity on my part, I think you've heard Mr Arendse when in his argument he was referring to the Brian Mitchell case and he seems to argue that that particular case should be viewed in the same way as this one, do you have anything to say to that?

MR PRIOR: I submit that the Mitchell case can be used possibly as a yardstick - as a means of comparison but I submit, the facts may differ to whatever extent.  I'm ...[intervention]

JUDGE WILSON: It was aimed against civilians, there's no difference there.

CHAIRPERSON: Well now, it was aimed at people who had believed to be ANC supporters.

MR PRIOR: So we're dealing with a mistake - an error, on the part of the perpetrators?