Amnesty Hearings — East London — 1999-04-21

MR JANSEN: Sorry Mr Chairman, the statutory duties of a Policeman are also couched in very wide words, it is to investigate time, to police and secure public order, I haven't got that wording of Sections 2 or 5 or whatever in the Police, but the point is the way that our law has dealt with that, coming from in civil liability, from the case of Ewels v Minister of Police, it has placed especially on Policemen that duty to act positively.  That reasoning in Ewels, was referred to in this case of Gaba, that is found at, unfortunately the page numbers have been cut off, but it is the second last page there on the right.  It is at (b) and (c), there is a reference to Minister of Police v Ewels.  What it just says there is that to determine whether there is a legal duty, we look at the morays in society.  The illogicality of the matter is probably more apparent than real, one would obviously say well, you know, for somebody at Vlakplaas at that stage, the notion of reporting the crimes of his colleagues, especially those crimes where he has full knowledge of all the detail, not just the vague notion that they will be involved in covert operations, but of a specific crime of which all the relevant facts are known, the idea of reporting that, would not even occur to somebody.  In fact, somebody living in that culture for so long, would you know, the idea simply would not arise.
	But the fact of the matter is Mr Chairman, that the law will not judge somebody in that position, in that way.  The law will most certainly require of a Policeman who becomes aware of such serious offences, offences relating to the toppling of what one may in crude terms call, gun-running and toppling of a neighbouring country, there is no doubt in my mind that the law would place a duty on somebody to, on a Policeman, to report that offence and to do what reasonably can be done, to stop it.  I think if one reads the case of Gaba, it seems to be a lot less serious type of situation where that omission is found to constitute a criminal offence.
	For that reason Mr Chairman, I believe that Mr Ras is clearly an accessory because he heard at the time of the coup, of just after it had occurred, or at least at a time when it certainly could no be stopped any more, he heard of it.  He obviously knew of the smuggled weapons, in fact he had seen that previously, not the smuggled weapons, the weapons that were handed over, and then he subsequently realised what they were for.  He obviously, listening to the radio and the progress of the coup, must have become aware of the fact that people were dead or were killed, and therefore he comes an accessory in that respect.

ADV SANDI: If  I understand you, sorry Mr Jansen, if I understand you clearly, your submission here is that the test to be applied is not whether there is a reasonable prospect of criminal prosecution and civil liability, but there has to be a theoretical or slight possibility of such things?

MR JANSEN: Yes, I think you put it very well Adv Sandi.  I think, I haven't had chance to take that line of thought further, but I think it is correct.  We must not confuse the exercise that we are busy with here, with the exercise a Prosecutor would be busy with when evaluating a docket.  In other words, we must take cognisance of the fact that this process, to give an interpretation to this process, you also want people to come forward to give and to say and to tell what they know of things which are offences, but which would probably not be prosecuted by a Prosecutor, because it has this general, factual investigation underlying this entire commission.  I certainly ...

ADV SANDI: In other words, even if they were on the peripheral of things, they have to get into the picture as well, and apply?

MR JANSEN: Yes, because as you say, there is still a theoretical possibility that they can as a matter of pure law, be prosecuted, even though as a matter of practicality or in practice, they won't be.  That I think concludes my argument on that aspect, and it is just a question then of the wording.
	The next is the issue of the conspiracy to murder Gen Holomisa.  There I will concede that nothing that was done by Mr Ras there, can be said as an attempt for the simple reason that on Mr Ras' own version, and the entire way in which Vlakplaas worked was he would not have gone over to any sort of deed of execution of that deed, or a real deed of execution, until he had received the approval or the order to do so, and he never received that.  The issue is there was with respect, clearly a conspiracy.  The reason why I say so is, it would appear from that short portion of Burchell & Hunt that there was a fair amount of uncertainty in our common law  as to when the offence of conspiracy is committed or when a conspiracy is committed.  There seems to have been again stricter approaches and less strict approaches and the end result was that the common law conspiracy were, the law of conspiracy was really supplanted by statutory offences and in fact a various, a range of them dealing with different types of offences, but then the general ones being the (indistinct) Assemblies Act.

CHAIRPERSON: I think in this one as well, we can take a look at the definition of gross violation of human rights, in the Act, which says, means the killing amongst others, of a person or any inter alia conspiracy.

MR JANSEN: Yes.  That is why Mr Chairman, ...

CHAIRPERSON: On Mr Ras' evidence, he actually discussed it with his Commander, he then took steps to investigate the possibility of the success of the assassination by checking out the flight schedules and the route.

MR JANSEN: Yes.

CHAIRPERSON: I think it is, whatever way one takes a look at conspiracy, that one could say that it falls under this definition.

MR JANSEN: Yes certainly, especially this legislative history of giving conspiracy a very wide meaning, but as far as the order is concerned, that I suggested there in that hand-written note of mine, I just call it a conspiracy because the word is well known in our law, whether by common law or whether by some or other statutory provision.  I think that would suffice.
	Mr Chairman, that concludes my arguments as far as the merits is concerned.  As far as the issue of personal gain is concerned, that obviously does not ...

CHAIRPERSON: It does not affect Mr Ras.