Amnesty Hearings — Durban — 1996-08-14

MR D'OLIVIERA: No Mr Chairman, not at all.  The act of killing someone can never be considered to be correct whatever the situation may be.  The point I am trying to make comes to the essence of why this Committee in actual fact sits, the soldiers fighting this political struggle on the government's behalf, were fighting a war.  They were subject to all the pressures as one would relate to a war.  I would not say it would be every single policeman ...(intervention)

CHAIRPERSON: When you talk about soldiers are you referring particularly to policeman as well?

MR D'OLIVIERA: Mr Chairman, yes, in effect that is what it was.  A policeman involved in this type of activity can be considered to be the soldier fighting on the one hand against the political enemy of the government.

JUDGE WILSON: He told us he knew what he was doing was unlawful, how can you then say that he, on reasonable grounds, believed he was acting in the course and scope of his duties?   He knew he was not allowed to kill prisoners, didn't he, and he did it.

MR D'OLIVIERA: That is so Mr Chairman.  The difference must be looked at here between what is clearly unlawful and what he believed, whether in the struggle which he is conducting, and I am referring to that in that harsh term, that in actual fact it was right, his actions at that moment.  From his evidence it is quite clear, he realised the unlawfulness of his actions, there is no doubt about it, but subjectively in his mind, if one looks at the pressures to which he was subject to, his belief was this is the right way to go.
	If I may add here, there is another issue which the trial court referred to and that was the, at that time, the quick release of prisoners ...(intervention)

JUDGE WILSON: He may have been suffering from all sorts of frustrations about release of prisoners, bail, this and that, but that doesn't excuse him murdering somebody, does it?  He knew he wasn't entitled to, he's told us, he's been perfectly honest about that.

MR D'OLIVIERA: (...indistinct), and he's been convicted of the murder.  He's not asking, he's not appealing against his sentence.

JUDGE WILSON: No but you were arguing that he was doing this, as I understood your argument, you said he clearly fell under the provisions of 22(f)
"Any person on reasonable grounds believed he was acting in the course and scope of his duties and within the course of his express or implied authority".
On his evidence he never once thought that.  He knew quite clearly it didn't fall within the course and scope of his duties or of his implied authority, didn't he, he said so.  He knew it was unlawful.

MR D'OLIVIERA: Yes he was aware ...(intervention)

JUDGE WILSON: He told the army people to say that he died on the way to hospital.

MR D'OLIVIERA: That is correct.  He knew of the unlawfulness of his actions, but as I have argued before the actions nevertheless flowed from his position as a policeman in this struggle.  One has to, I think, not take an absolutely literal meaning to the intention of the legislature in this regard.  One must have regard for the fact that if that was the case no member of the police that committed any offence which is obviously unlawful could take advantage of amnesty at all, and that's the point that we are trying to make.  	One has to go beyond that.  The case of HORNE v UNION GOVERNMENT makes that quite clear even in the most simplistic form where the State accepts liability, it would accept liability not because of a regular or correct action because then there would be no liability.  So in actual fact when we are looking at that we are looking at unlawful acts for which the State takes liability.

BERNARD MAKGABO NGOEPE: You know you are really - I hear what you are saying, you are actually relying on the contents of paragraph 6 of your original argument.

MR D'OLIVIERA: That's correct.

BERNARD MAKGABO NGOEPE: But of course the question can only arise where something wrongful has been done and as you say when the legislature enacted that it must have been within the course and scope, he must have acted within the course and scope of his employment.  If I understand you correctly you are saying the legislature must have accepted that the policemen must have acted unlawfully otherwise no policeman would get amnesty, is that what you are saying?
	But the point I am trying to raise with you, I understand your argument, but you see there must be - he must have acted in pursuit of an objective which he has been employed to achieve, otherwise if conduct deviates so far away from that objective for which he has been employed then there will be a problem, wouldn't that be a problem?
	Look a policeman is going out to arrest somebody and he has been employed to arrest people who committed crime.  He goes there, in the process of arresting a person he uses excessive force, that excessive force was used for the purpose of carrying out a legitimate objective, so in that sense that is the interpretation you are placing on HORNE's case applies and it would assist policemen who apply for amnesty provided they were pursuing an objective for which they were employed to do.  But when a person deviates so much that he is no longer really acting in pursuit of the basic objective for which he was employed then he cannot be covered because then he is on his own frolic.
	What was he doing - surely when he was employed he was never employed to shoot or kill people who had been arrested by the police, suspects who had been arrested by the police?

MR D'OLIVIERA: Mr Chairman it is correct.  His actions were unlawful and the question, as I understand it now, is how far away from the conduct of his duties was it? What I am arguing is that the context of the situation must be understood.  There was what amounted to a war situation in the Kwamanambe area.  His actions must be seen in the light of that.
	The actions must be seen in the light of what had happened before, the crimes he had committed in the pursuit, presumably of his political objectives, I'm referring to the deceased now, the fact that this wrongly in the mind of the applicant, this was the way it had to be dealt with in order to put an end to that terror.  This is as a result of what I would call the abnormal policing in which members of the police such as the applicant had become subjected to.  They were being used in a role which normally would not be associated with policing.  But nevertheless it came about because of the fact that he was employed by the police to do the duties of fighting off (...indistinct)

CHAIRPERSON: ...where there may be general lawlessness in any particular part of the country, in KwaZulu Natal, some particular pocket there might be general lawlessness and the police go there to quell the situation, you don't call that a war situation do you?  You don't equate that as a war?

MR D'OLIVIERA: Mr Chairman at this particular time, in the transitional phase that the country was going through there was a lot of uncertainty.  It was different, I think, to the type of unrest situations that you might have, for example, today.  But at that stage there was a lot of uncertainty.  We know for a fact that at a higher level decisions were made which, as you have heard in evidence, hadn't filtered through, but in effect there was still a war going on between the government on the one side, or the anti-insurgency forces on the one side and the ANC.  It wasn't a  - I would not equate it to an unrest area which one might have today.

CHAIRPERSON: So you say that the general lawlessness in that area was in fact a war situation, is that what you are saying?

MR D'OLIVIERA: Mr Chairman I have to refer to the list of crimes, for example, of which the deceased was being investigated upon.  I submit that even this goes beyond saying 'normal criminal activity' and was being conducted in this specific area.