Amnesty Hearings — Cape Town — 2000-11-21

CHAIRPERSON: Which in terms of South African law was perfectly legal.  Even at Hammanskraal he was not told what was going to happen.  At some stage before the attack, he himself says look he had an irresistible feeling and he drew that inference that these houses are going to be attacked and he drew that inference because of the usual way things happened within the forces.  The question then arises is when he became aware and where was he when he became aware of the atrocities that were intended.  If he became aware of it in Botswana, then his relation in respect of the offences doesn't fall within the jurisdiction of South Africa.  If however, he became aware of this prospect while he was still within the borders of South Africa, then he may fall in exactly the same category as Mr Visser's clients.

MR COETSER: Ja.  Well look, as he said, what was explained to him, although obviously it was on the need to know basis at that stage and pretty much all the way through, but he was asked by his handlers, I think it was Pretorius, if I'm not mistaken, whether he could still remember one or more of the houses that he had held observation and in effect, either before going to Hammanskraal or whilst at Hammanskraal, he was eventually advised that there was going to be this raid into Botswana, there were going to be attacks on houses, he was aware of the fact that people were also targets.

CHAIRPERSON: Was he told that at Hammanskraal?

MR COETSER: Well he has indicated in his evidence that at least by the time he was at Hammanskraal, this is what he had been advised.  No question.

CHAIRPERSON: By whom?

MR COETSER: Well his evidence is a little contradictory there.

CHAIRPERSON: Well that's precisely the point.

MR COETSER: Yes, he may have made himself guilty, at best I would suggest, of reconstructive reasoning when he made the statement.  As to exactly when ...

CHAIRPERSON: I must add I'm wary of the time lapse etc. also.

MR COETSER: Ja, but it's quite clear from his testimony in totality that at the time that he was at Hammanskraal busy with this training, he was aware that there was going to be this ...

CHAIRPERSON: Ja, I think you're right because at the end of the day, there was someone who came per helicopter to say that the Cabinet had, at least at that stage, there was some confirmation of the attack.

MR COETSER: And he knew what his function was going to be in the raid and namely that was to point out a house or houses.

CHAIRPERSON: So he was party to conspiracy.

MR COETSER: Ja and in addition to that obviously they wanted him to serve as some sort of lookout, so yes, he would fall within that category.

CHAIRPERSON: Now the question that then arises is conspiracy to commit murder, of whom in particular by the nature of the definition of conspiracy?

MR COETSER: Well you know at the end of the ...(intervention)

CHAIRPERSON: Nobody conspired to commit murder of a small kid.

MR COETSER: No but at the end of the day if one looks at the definition of the intent when it comes to murder, if one looks at the various doluses that fall within the category of murder and you know you have dolus directus, indirectus, generalis and of course eventualis and quite clearly there was a specific foreseeability in so far ...(intervention)

CHAIRPERSON: Well, my view is that there was no question but directus here.

MR COETSER: Yes, certainly, but in so far as the targets are concerned, I think one can look at it from a point of view of the dolus generalis type situation where there is an anticipation and a realisation that people who have been targeted, whoever they may be, may be killed.  It's more of a - it's like placing a bomb under a train.  You don't know who your specific victims are going to be, but you know people are going to be killed.

CHAIRPERSON: There's a slight difference here.

JUDGE MOTATA: The three houses for instance which he pointed out prior to the attack.

MR COETSER: Well he must have foreseen and quite clearly in terms of his testimony, he did foresee the possibility that, or in fact the very real likelihood that if those houses were attacked, there were going to be occupants in those houses.

CHAIRPERSON: Well this is the interesting point.  During the preparation for this attack, the representatives of the SAP and the Military got together quite a few times in preparation for this and they, as I understood it, I don't know what makes me think of a map with a number of flags on it and not often, but at times they used to remove these flags because of innocent women and children.  There was a decision and I think it was the SADF that was insistent on it and said:  "Look where there is any chance of that happening, that is not a target any more."  Now the spirit of that must have been conveyed to the military people who actually perpetrated this because in one instance they in fact allowed a lady and a child to leave.

MR COETSER: Yes, well this witness who testified was one of them.

CHAIRPERSON: Ja.  So, how does one explain then the killing of the 6 year old?

MR COETSER: Well one must, you know, one can only look at it unfortunately within the terms of Olifant's application and the fact of the matter is, we know that he was nowhere near part and parcel of that decision-making.

CHAIRPERSON: No I know that.

MR COETSER: Whatsoever.  All he knew was that he was to take part in a raid where houses and human targets were to be attacked, but in so far as the specific orders are concerned in relation to that, he was not part and parcel of any of that.  His only obligation in terms of that particular raid were to point our a house or houses that they wanted pointed out and to act as a look-out for one particular party in relation to one particular attack and that's it.  But within that framework, the man went along obviously with the raid, with the realisation, albeit not knowing what the specific instructions and orders and tactics and aims were going to be, that property was going to be attacked and damaged and that individuals stood to be killed.

CHAIRPERSON: But if he would be found guilty of conspiracy in an ordinary criminal court, who would he be - who would be the targets or the victims of his conspiracy to murder?

MR COETSER: Well on the basis of foreseeability, it would really be anyone and everyone who actually wound up being killed.

CHAIRPERSON: Surely when you're in a conspiracy to commit murder, you have an idea of who you want to kill?

MR COETSER: Yes, but it depends upon the type of conspiracy.  It depends upon the type of action that is intended, for example, if there is a conspiracy to kill a particular individual.

CHAIRPERSON: His own testimony is that he had Tim Williams in mind.

MR COETSER: No, I wouldn't go so far as to say that he had an intentional knowledge or belief that Tim Williams personally was going to be killed.

CHAIRPERSON: No, well it's difficult to draw the conclusion that if he was to point out the houses to identify that for attack and he associated Tim Williams with that particular house, then even on the far end of the stick that his foreseeability must have taken him to Tim Williams.

MR COETSER: Well there isn't evidence and we certainly don't know unfortunately exactly what the instruction, ultimate instructions were to the particular unit that was charged with the responsibility of attacking that house and he wasn't certainly made privy to that.

CHAIRPERSON: We don't know if there were any separate instructions to the different groups.

MR COETSER: Yes, we don't know.  That's the problem, you see.  It would have been nice if the military had come to this hearing, but ...(intervention)

CHAIRPERSON: Well, Mr Coetser, well they didn't.

MR COETSER: I know.

CHAIRPERSON: They had their own reasons, but the fact of the matter is that your client makes the application.

MR COETSER: Yes.