Amnesty Hearings — Cape Town — 1997-07-07

ADV LOURENS: I repeat my previous submission that the applicant gave his explanation.  It was his subjective view that of why he did what he did.

SISI KHAMPEPE: But doesn't your client, Mr Lourens, have a serious problem with regard to the shooting of the gardener, because the gardener had not actually seen him?  There is no evidence that the gardener had observed him.  At no stage had the gardener actually come closer to Mr Maxam.  According to the evidence of Mr Ndinisa, Mr Maxam was about 30 paces away from the gardener and could not have had an opportunity to observe him well.  So the fear of being identified by the gardener becomes a little worrying.

ADV LOURENS: I think what you are referring to is after or just prior to the shooting.  The evidence, as I understand it, was that when they arrived the gardener was there and saw them, but the distance of the, well my understanding of the evidence was that there was this distance afterwards, but that they arrived together and that the gardener was there.

CHAIRPERSON: He did give an additional reason and that was that he feared that the gardener may tell the police the direction in which they had fled and it would have made it easier for the police ...

ADV LOURENS: Yes, that is so.

CHAIRPERSON: ... to hunt them down.

ADV LOURENS: At that, that is so Mr Chairman, and at the time the evidence also was or just prior to the shooting of the domestic worker, that she was screaming, while they were in the house there was, somebody shouted "sout" which is the warning, because there was a white combi approaching.  So it was not as though they were there and there was nobody coming or that they did not have any reason to fear that they would be caught or imminently caught.

JUDGE WILSON: But once again, all they see, all he sees is a white combi coming, does not know what it is, does not say it is a police vehicle, but for that he kills a man.  Is that rational behaviour?  A man who had not spoken to him, whose colleague said had not been close to him, who may have seen him walking past, but he kills him.  Is it not totally irrational?

ADV LOURENS: Mr Chairman, I do not ...

JUDGE WILSON: To cover up the fact that he has stolen one little box of bullets.

ADV LOURENS: I do not think the evidence was or Maxam's really evidence really was only for himself that fear of discovery.  I, they were a group together?

JUDGE WILSON: So what?

ADV LOURENS: If one got caught or discovered that could bring all of them down.

JUDGE WILSON: So they think, you submit, that it is a political purpose to go to a house on the basis if anybody sees us when we knock on the door we will kill them, because I do not accept, what, what we have heard and from the representations made by the ANC, that that was ever the ANC policy.

ADV LOURENS: I am arguing my client's version, my client's explanation and that is what I ...

JUDGE WILSON: Which was that as soon as somebody, he went up to speak to the woman, he called out to her to come, open the window, give him a drink.  He chose to do so and he then killed her, because she had seen him.  That is your client's version is it not?

ADV LOURENS: That is so Mr Chairman.

CHAIRPERSON: Well, when the first shot was fired it would seem that that was triggered off by the fact that she screamed.  That is when the first shot ...

ADV LOURENS: Yes Mr Chairman.

CHAIRPERSON: ... was fired, but the final shooting that took place, the second shot that he fired he did not care to see whether she was dead or alive.  He just shot simply because he did not want any evidence pointing at him in the event of the death of this person being discovered and people arrested.  So you draw a distinction between what happened and why he shot the first time, she screamed and he panicked.

JUDGE WILSON: But at the, when he shot the first time the only possible offence that had been committed was catching hold of her by the arm.  No thefts had been committed, no robberies, had they?

ADV LOURENS: Mr Chairman I do not, the import of his evidence was not that he was fearful, though of course it is part of it, of being caught out for the robbery, the, I submit that their evidence went further than that.  It was looking towards the future.

JUDGE WILSON: What did he kill this woman for then?  So he would not be known as a political activist when everybody in the, on the evidence that was led by him, everybody knew him to be a political activist.  He was a leader of, he was one of the founders of PAYCO.  This was not something people did not know.  These people were all, as you have said in your address, were all known political activists.  They did not have to cover that up.  He could only have killed her, because he wanted to commit a robbery and she got in the way and she might identify him and he was in a state of nerves.  Is that not the position?

ADV LOURENS: Well, I can only ...

JUDGE WILSON: Well, I am not saying even he killed her.  As my brother has correctly said, he fired the first shot at her then.  He then chose to fire another one later when she was doing nothing.

ADV LOURENS: If I might just ...

CHAIRPERSON: Do you draw a distinction in your mind between the cases of the first applicant and the other two applicants or do you not draw a distinction in respect of their applications for amnesty?

ADV LOURENS: Yes, there ...

CHAIRPERSON: Is your position that they will stand together or they fall together?

ADV LOURENS: That is not my position.  The, on their own versions, their explanations of their involvement in the actual events that transpired are different and I would ask the Committee to consider it in that light.

CHAIRPERSON: Yes, carry on.

ADV LOURENS: If I might just find my, because we have covered certain things now that.

CHAIRPERSON: Take your time.

ADV LOURENS: The, without belabouring the point, the political motive did, in fact, come out in the trial.  Just ask the Committee to have regard for the fact that in the late 80's this was not really a defence that could be relied on and that, I would submit, is why Judge Howie said to applicant number one's council in the appeal that she wisely did not rely on that aspect and that, possibly, this aspect was, well not possibly, it was never really fully canvassed in the actual trial of the matter.  I would ask the Committee to have regard to the fact that it is clear that the community from which these applicants come from do support them by having regard to the petition which forms part of the record and there was also evidence that there had been a previous petition in regard to the granting of amnesty.
	And then finally, in, I would submit that subjectively speaking each applicant at the time when the incident was perpetrated viewed, on their evidence, what they were doing as being correct and that in hindsight the remorse which has been expressed by the applicants at this hearing and by applicant number one at the Human Rights Commission speaks volumes in that regard, but that the situation they found themselves in at the time, this is what or this, applicant number one believed what he should do.

JUDGE WILSON: Yes, must you not draw a clear distinction ...

ADV LOURENS: Yes.

JUDGE WILSON: ... here between ...

ADV LOURENS: I am ...

JUDGE WILSON: ... applicant one and, as my brother has asked ...

ADV LOURENS: Yes.

JUDGE WILSON: ... you, for the ...

ADV LOURENS: I am ...

JUDGE WILSON: ... second and third applicant.

ADV LOURENS: Yes.

JUDGE WILSON: They did not say that what they did was right.

ADV LOURENS: I meant to, I meant, in fact, applicant number one.  Thank you Mr Chairman.  I have no further submissions.

CHAIRPERSON: What was the political objective to be achieved as far as applicant number one is concerned?  I am now not talking about the objective to go around obtaining firearms for his cause.

ADV LOURENS: The ...