Amnesty Hearings — Port Elizabeth — UNKNOWN

ADV BOOYENS: Yes, that's what I said in my Heads of Argument.   This whole thing started because Mr Siebert told him to stand up.   ....(intervention)

UNKNOWN: Yes, but do you concede that the Security Police in that situation could have achieved the same objectives by allowing Mr Biko to sit on the chair and questioning him?   What harm,  this is my question; what harm would be sustained by the interrogation process by allowing this gentleman to sit down and ask him the questions they want to ask him.    ...(indistinct)

ADV BOOYENS: We missed each other Mr Potgieter.

MR POTGIETER: I thought I'll just add it before you answer.   Bearing in mind that Mr Jones was allowed to sit down!

ADV BOOYENS: Well, not all the time.   I think Mr Jones told us that he had to stand on some bricks with some chairs.   Mr Chairman I don't really understand the point of the question but I'll try to answer it.
      The Security Police could have, throughout all the years that they were dealing with the Liberation Organisations, could have treated all the people that they questioned as well as, I wouldn't say counsel, I would say attorneys, because I understand they are more decent than we are treat their clients when they take instructions from them.   Yes, they could have done that, then we wouldn't have needed this Commission.

UNKNOWN: Do you recall from the evidence of Mr Siebert that this whole thing would never have happened had he allowed Mr Biko to take a seat and he questions him.   And he also went on to say it would never have happened had Mr Beneke not rushed from the other office to interfere with his interrogation act?

ADV BOOYENS: Yes, I recall it; but the fact is it did happen.   The reason Mr Siebert gave is the method of interrogation employed by the Security Police was that you, as the interrogator, had to establish a position of supremacy in a manner of speaking over the person that you are busy interrogating.   Obviously we can debate the right or the wrong of it, but the whole point is, that that is why we are here.   It's not because they cross-questioned the man in the right way, it's because they did it in the wrong way!

UNKNOWN: Do you recall that none of the applicants were able to identify or point out any leader or politician in their church or the National Party who had said;  "political detainees should not be allowed to take a seat whilst being interrogated?"

ADV BOOYENS: Mr Chairman they wouldn't be able to point out any politician that would have said, they would took a vote then ....(intervention..)

CHAIRPERSON: I think in any case that's a different issue as to whether they were acting on their orders or instructions of political leaders.   That's a different argument, isn't it?

ADV BOOYENS: Quite so Mr Chairman.

CHAIRPERSON: We are now talking about the purpose for which the interrogation was considered by the police to be necessary.

ADV BOOYENS: Yes

CHAIRPERSON: Whether that purpose was a political purpose or not.

ADV BOOYENS: Yes.

CHAIRPERSON: That's the argument you are trying to develop, isn't it?

ADV BOOYENS: Yes, that's the argument that I'm trying to develop Mr Chairman.   It goes without saying that no politician aren't prepared to say whoever told them that people are to sit or to stand or to be given water every fifteen minutes or something like that, I think politicians talk nonsense on a higher level than that.   They do not - wouldn't deal with something like that.
	But the purpose of the interrogation; the crux of the question is whether the purpose of the interrogation was a political one.   The purpose of the interrogation could only have been to exactly find out what Mr Biko's political attitude is; Mr Biko's political attitude was relevant to determine whether he committed a political offence, so the whole Biko police confrontation was a confrontation between the forces of Liberation on the other hand and the forces of State on the other hand, and that collision was on the political level.   The policemen were the instruments that were used in this political clash.   
      It is very very conceivable that bearing in mind their own political background in that what they believed, that it is exactly because of the fact that this a political background that emotions would get frayed easier then in case of a ordinary criminal investigation.   
	Mr Chairman, so our submission would be that there was indeed a political motive and that if the act is a political act as envisaged by, as set out on page 9 paragraph 3 of our Heads of Argument, now we deal with how we say that the term "satisfied" should be interpreted.   
      Then another potential issue, which I think there's not clarity on is; it may indeed even be arguable to say well,  what people like Marx didn't sow amounted to no offence, at least as far as Mr Biko is concerned there is of course always the perjury and so on.   But that is not in our submission really within the province of this committee to decide the fact that there is a risk that the prosecuting authorities may institute a prosecution, is in our submission adequate reason for us to approach this Committee and to say give us amnesty.   It's not for this Committee to decide the technicalities of what offence and on what basis there is a risk on these facts that the prosecuting authorities may institute a prosecution.
      Mr Chairman, if one looks at the other requirements of the Act, there's a full disclosure whether there was orders.   The order that comes through to me is a general one.   "You must resist the efforts of the Liberation Movement to overthrow the Government."   It's comparable to a situation where a General in a war situation would tell - would insist that a certain enemy stronghold be taken; but the how and the why and the method does not rest with the General.   He gives the order to take the enemy stronghold, but it is the captain or the lieutenant on the ground that decides how he does it.   So quite frankly to suggest that one can attach any  validity to the fact that the politicians never said to people that they shouldn't sit down and so on, or they must tell them to stand up, with respect that is not really the issue.  The real issue is did the politicians insist that the police get results, that police Headquarters insist that they get results, and then we must look at the methods employed by the men on the ground.   They were told to get results and in the process things went wrong - horribly wrong, to quote somebody else.

UNKNOWN: Can you not get the same results by giving the gentleman a chair and you interrogate him?   Can you not get the same results by giving this detainee a chair and you question him intensively about whatever you suspect him of being involved in?

ADV BOOYENS: Mr Chairman I don't know.   I'm not an expert at interrogation.   Maybe theoretically there a hundred and one possibilities; maybe what they could have done if they invited him for a beer, they could have obtained the same result.   The answer to that is, I don't know!   But quite simply we cannot now twenty years down the line take an armchair attitude and say that, but this is completely disproportionate because you told a man to stand up.   	So as far as the issue of proportionality is concerned, Mr Chairman the Security Police lived in an era where you did not take a man for beer and trying to get information out of him that way.   And yes, they probably could have got the information out of him, I don't know in how many other ways - I'm not an expert in interrogation, but maybe the only way they could have got the information out of them, in their perception.