Amnesty Hearings — Mmabatho — 1998-09-23

MR VAN DER BERG: Mr Chairperson, we first have to go and look at the beginning of what he said in his affidavit.  That is on page 27 where he says that his duty that was given to him was to guard the TTA.  In other words that was firstly his instructions to guard the place.
	But the fact that he says that I protected the people, he did this what he is saying there, I am protecting the people, you are shooting in this war situation and the people will return fire and it was in protection of people.
	He did not act here and say that I am protecting people to go and take part in the elections, I am shooting other people because I want to protect these people's lives.  That is what appears out of his statements, to protect my own life and that of the people.  It is about the lives of the people that he wants to protect and that is what it is about.
	So he acted in his capacity as a policeman in order to protect the lives of people.

ADV MOTATA: No, but he was using his discretion when he saw that people with khaki clothes, the white people, that they are shooting now not just his people, he was also shot at.
	Did not he then have the discretion like a policeman, to protect the people?

MR VAN DER BERG: Certainly so, he had a discretion to protect the people.  He did not have the discretion, he had the duty to do it, but then he must execute his duty with the responsibility that is expected of him.  He did not do his duty when he blatantly shot the people who were lying there, that is not part of your duty.
	That is why I said, that is why I asked why didn't he arrest the people.  So definitely he has a duty to protect the people, but in the context of their lives and not just to go and kill them blatantly.
	Mr Chairperson, if I can continue with my Heads.  Paragraph 19, the applicant did not act on an instruction, but shot the AWB men on his own initiative.
	Paragraph 20, there is no proper explanation why the applicant thought it necessary to kill all three AWB members.  We also know that he said he could not remember which one he shot first, but he then decided that he would kill all of them.  It sounds nice to shoot all of them.
	Paragraph 21, the applicant is telling lies by telling the Commission that he alleged that he saw no other people on the scene despite the fact that there were people on the scene as we saw on the video and it took about 20 minutes.
	Paragraph 22, the applicant's explanation why he did not arrest the AWB men rather than shooting them or killing them, is with respect absurd.  There was good enough reasons and time to do it, and more so specific in the light of the fact that it was his duty as a police official.  He could have arrested them, he had the capacity to do it, but he chose not to.  He chose rather to shoot them after 20 minutes.
	Paragraph 23, the applicant also gave evidence that an R4 rifle was given to him in order to protect the nation.  This stand in opposition with his statement on page 28 of the bundle, where the applicant mentioned that his instructions was to protect the TTA.
	This allegation that he made here, he made that in answer to a cross-examination by my colleague Mr Mpshe, and this is the reason that he gave in answer to that.
	Then paragraph 24, it is also submitted that the applicant never came forward and admitted that he shot the AWB men if the police did not find him and question him about this matter.

ADV MOTATA: Would that be of importance Mr Van der Berg, that there was a lapse of time, and he never came forward?  If somebody had done a bad deed, and the police haven't found you, are you the one to go there and we look at the Act we are concerned with, serious one and probably face the death or life sentence, would you go forward and give yourself, or is the criteria here to say I submitted my application within the time prescribed by the Act, the Truth and Reconciliation Act?  Of what importance is it?
	Was he to go forward and say I own up or for him to make use of the process that is before us, and submit his application and whether that application is submitted timeously?

MR VAN DER BERG: Mr Chairperson, with great respect, after he was charged for murder, he was identified although it was wrongly, he was on his way to jail.  The applicant must also provide the Court with the whole truth and all the explanations that he gave us, was very confusing and vague and absurd in a manner.
	This is just to illustrate his bona fide of his honesty, it takes him three years, it suits him after the - he must now be charged for what he did and in my submission here, he would never have come forward if the police did not go and interrogate him.
	The guy who was innocent, would probably have been in jail till today.  It is in the wider context of his honesty.

ADV MOTATA: No but precisely, he did not wait for three years, because we look at the Act we are concerned with here, only came into being in 1995 and his application was made in 1997.

MR VAN DER BERG: The incident occurred in 1994 Mr Chairperson, the 11th of March 1994.  In other words then up until 1997, that is three years.

ADV MOTATA: No but if that was the case, it happened in 1994, are you saying to me, he should have come forward, go to the Court as you submit rather than say - your submission is that we should refuse amnesty, to go to court to be charged.
	My question to you, a rational person, or any person for that matter, who has done such a heinous crime or deed, would go by himself to the police and say look, I killed so and so, sentence me to jail or death.  Would we say really that is realistic?
	But we have in South Africa something very unique, truth and reconciliation, saying to us you can come forward and if we realise that your act was associated with a political objective and you come before the Committee that is duly constituted and says you have given us disclosure, we shall forgive you because what we are looking at at the end of the day, is to reconcile this polarised community of South Africa.

MR VAN DER BERG: Mr Chairperson, it is very simple.  The applicant's case so far was that I acted in order to protect the people.  If that was the case and he was innocent, and that appears in my Heads, that includes that it is mutually inclusive, in other words it is his case, he could have said that I shot them and this is what I thought, it other words, then I am innocent, can I just rectify this or correct it?
	He had a certain time or period when he could have applied for amnesty, it is approximately a period of two years.  Mr Chairperson, if I can then continue with my Heads.
	I think paragraph 24, it was also submitted that the - I think I have dealt with this.  Paragraph 25, the reason that the applicant gives on page 4 why it was a political crime or offence, could never fall within his field of knowledge.  It is also submitted that the applicant acted in self-defence and that it was in an emergency state.
	Paragraph 27, the applicant also do not meet the requirements in that it was not a political motive as he did not do it for personal gain, he did it for personal gain and out of maliciousness.
	Paragraph 28, ...

INTERPRETER: Could the speaker please read a bit slower, the Interpreters find it difficult to interpret.

ADV MOTATA: Mr Van der Berg, there is a request from the Interpreters.  They say you are reading very fast and they find it difficult to interpret.

MR VAN DER BERG: Paragraph 29, it is also submitted that the applicant did not act on an instruction or on behalf of an organisation.  On his own version, he acted to protect himself.
	Paragraph 30, there is no correlation between the death of the three AWB members and the alleged political motive.
	Paragraph 31, it is also submitted that the applicant killed the three AWB members out of personal gain and maliciousness.
	Paragraph 32, therefore I submit that this amnesty application must not succeed.