Amnesty Hearings — Cape Town — 1999-10-18

MICHAEL PHILIP LUFF: During November 1985, I was busy with seconded service at the Unrest Unit in Worcester.  At that time I was stationed at the Uniform Branch of the South African Police in Ceres.   As I have understood the position at that time, the ANC and its alliance were involved in the liberation struggle and a campaign in Worcester to make this town ungovernable.  Unrest which led to stoning and damaging of property and even loss of life, was prevalent.  Because the Police Force in Worcester could not contain this unrest all by themselves, I myself and a few colleagues from the nearby towns, were on seconded service to the Unrest Unit in Worcester.   Our task was to suppress the political upheaval, especially in Zweletemba in Worcester and if possible to arrest some of the people involved.  The people who were involved in this political unrest were either members or supporters of the ANC, UDF who were in a political struggle against the State.   We were deployed to combat this struggle and to prevent this.
	At approximately 20H30 on the 3rd of November 1985, I together with Cons Chris Geldenhuys from the Uniform Branch in Ceres who was with me on seconded service at the Unrest Unit at Worcester, we were placed there by David Vincent Frost.  At that time he was also from the Uniform Branch in Worcester.  Apart from us, there were also other members from the Force, and our instruction was to deploy in Zweletemba and any unrest which occurred, had to be suppressed, and any people who were involved in these unrests, had to be arrested.  Cons Geldenhuys and myself carried our service pistols and also shotguns.   I can remember that one of these shotguns was a certain type of shotgun and the other was a semi-automatic shotgun.   Ammunition was also issued to us for these shotguns and included SSG and other cartridges.   
	Cons Geldenhuys and myself were busy in Zweletemba and we used a patrol van from the Unrest Unit.  While we were moving around in Zweletemba, roundabout 20H40, we were informed by radio of people stoning the community hall in Zweletemba.  Because we could not drive with the vehicle to there because of the stone throwing, we left the vehicle and went there on foot.  When we arrived there, a Constable of the previous Administration Board told us that this hall was being stoned and a few window panes had already been broken.   Round the hall and in the hall, there were many stones laying around.  Shortly after that, I noticed that a group of people from behind a fence on the opposite side of the road, were coming from there and were throwing stones at this hall.  People were about 30 paces from the hall.  
	After the people stoned the hall, they moved back to behind this fence again.  Afterwards Cons Geldenhuys and myself took up positions on a stoep at the back side of the hall, to prevent the hall from being further damaged and to prevent that the hall would be arsoned.   When these people came to the fore again, and started stoning this hall, I shot a warning shot with my shotgun to the left side of the group of people who were standing there.  It had no noticeable effect on these people and they kept on throwing these stones.   Afterwards I fired a shot on the person whom I identified as the leader of the group.   Almost simultaneously with the shot which I fired, Cons Geldenhuys also shot at these people.  Later on he told me that he was firing in the direction of the same person as I was doing.  
	Just after we had shot at this person, he bent forward and I thought that he was busy to pick up a stone.   Then he turned around and ran back to the fence like the rest of the group did.  The person whom I was shooting at, was wearing a  light green T-shirt with a grey trousers.  I have to mention that my shotgun and that of Cons Geldenhuys was using SSG shotgun cartridges at that stage, because we were in an area from where there were being shot on the police.  We would have used the shotguns to protect ourselves.  
	Earlier that evening, shots were fired at police officers in Zweletemba.  Cons Geldenhuys and myself then moved in the direction to where this group of people had disappeared, to see whether we had not hit any of these people, and then we would have been able to arrest them.   Because according to us, they were involved in the offences of public violence or the malicious damage of property.   We could not see anybody and we stayed behind a fence in Tusa Avenue to do surveillance.  After half an hour a vehicle passed in Tusa Avenue and blew its horn.  That same vehicle repeated this movement and then stopped.  Somebody who was moaning and who was probably hurt, was then carried to this vehicle from a house, and the vehicle then left.   
	Cons Geldenhuys and myself then returned to the charge office in Zweletemba and asked that the members had to be notified by radio that they should be on - see whether they could find this specific vehicle.  Lt Frost then accompanied us to this community hall and he was an officer on service, to see what was happening.  We explained to him there what had happened.  At that stage, there was not any unrest in the vicinity of this town hall.   After we had indicated to Lt Frost what had happened there, it was about 23H00.   
	Later that night, Cons Geldenhuys and myself returned with our vehicle to Tusa Avenue, where we were surveying earlier.  We left the vehicle just there.  Then we moved among these houses to see whether we could not possibly find any people of this group.  Behind one of these houses there was a shack where a light was burning.  I went nearer and I looked through either the door or the window, I cannot remember exactly what the position was, I saw that a person with a light green T-shirt was laying on a mattress on the floor of this hut.   I recognised this person as the person at whom I had shot earlier that evening, and I entered this little shack.  I saw that this person had blood on one of his shoulders, I think it was the right shoulder.  I asked the person what was wrong with him and he answered me that the police had shot him earlier that evening.  He did not answer on my question, where or when it did happen.  
	Apart from that person, I am sorry, there was another woman or two women in the shack and they were laying on a bed.   I then told this person that I was arresting him on a charge of public violence and asked him to accompany me.   He put on his shoes and stood up.   I took him, I took hold of his left arm and at that stage it did not seem to me as if he was seriously injured.   I accompanied the person outside, when I came to the door, Cons Geldenhuys said that he wanted to see whether there were not other people hidden in this little shack.   
	I accompanied the arrested person in the direction of the road, on the way to the patrol vehicle.  The next moment this person broke loose and ran from, through the gate of this premises in the direction of Tusa Avenue.   I followed him, I stumbled over something and later on I established it was a cement stoep and my shotgun fell from my hand.  I picked up the gun and shouted at the person that he had to stand still.  Although I cannot remember the exact words I said, it had meant that he had to stand still.  This person did not react on my warning and I realised that I would never be able to get near to him.  Here I have to mention, at that stage, I weighed about 140 kilograms and that I was 1.86 metres tall.  The deceased on the other hand, was a young man, athletically built and there was no possibility that I would be able to overtake him.   I recognised him because of the clothes he was wearing and later on, I would not have been able to identify him should he change the clothes he was wearing.  Then I followed, I shot a shot in his direction with my shotgun, to prevent that he gets away.  At that stage, when I had shot at this person, I heard him running down Tusa Lane, that was a little way from me.  Later on I established that he was about 20 paces from me in a direct line, but because he ran through the gate and moved in the left direction, he had an advantage of about 35 paces from me.  I did not shoot a warning shot before I fired at him, because there was absolutely no time for that.  After I had shot at him, I heard this person, I noticed that he had stopped running.  I ran in his direction and saw that he was seriously wounded.  He was laying on his stomach in the road.  
	Cons Geldenhuys then went to the patrol vehicle on my request, and contacted the charge office by radio. Shortly afterwards Lt Frost appeared on the scene, they picked up the deceased and took him to the hospital.  Later on I heard that the person had died.  I was very shocked because of this incident and did not work any further that night, and stayed at the charge office.  	The next morning I identified the weapons to the police photographer and the person who drew the map.  During January 1987 there was a formal inquest, during which evidence was given regarding the death of the deceased, and this happened in the Magistrate's court in Worcester.  
	On the advice of my legal representative, I refused to answer any questions which could incriminate me, but in a statement which I made regarding this incident, it served before this Court.  A copy of this is attached as Annexure MPL1.  As far as there are differences between this Annexure 1 and this affidavit, the information in this affidavit is true and correct and it explains things as I can remember them.   After evidence was given, this Court handed down judgement and I attach it as an annexure too.   This Court found that where somebody is killed to prevent that he escapes, you can rely on Section 49(2) of the Criminal Procedure Act, 51 of 1977, and if a person had to be arrested according to Annexure 1.  According to a Schedule 1 of the Criminal Procedure Act, 77 of 1951, at that stage did not include the offences of damage to property or public violence.  The Court decided as follows: "This Court then has to come to the conclusion that Cons Luff could not rely on Section 49(2) to prove that it was indeed a justifiable homicide.  This conclusion makes it unnecessary for the Court to speculate further regarding any further evidence, namely the onus which the suspect has to acquit himself of, etc.  
	Then once again, as a result of the fact  that in any event, he cannot rely on Section 49(2), if a Court then has to decide whether the death was caused by an action or an omission which constitutes an offence on the part of anybody, then the Court comes to the conclusion of yes, on the side of Cons M.P. Luff, also see page 290 or 209 of Annexure MPL2."  In spite of the Magistrate's finding, the Attorney-General decided not to institute proceedings against me an during 1996, the Attorney-General however changed his mind and I was prosecuted in the Regional Court in Worcester on charges of murder in connection with this incident.  The case was postponed to the 4th of April 1997 and then a charge was put to me, to give me an opportunity to bring this application to the honourable Commission.   
	It is my respectful submission that the shot fired by me at the deceased and at the community hall, as well as the shot which killed him, at Tusa Lane, was fired by me in a bona fide contemplation of furthering or rather countering the struggle waged by the liberation movements, namely the ANC and the UDF at that stage against the State.  It was my intention to resist the struggle.  There is no doubt in my mind that the deceased was a supporter of this organisation, otherwise he would certainly not have taken place in this riotous incident, and I further submit that I committed this act within the course and scope of my duties and within the course and scope of my express authority.  
	I further submit that I acted on the command of Lt Frost and acted to prevent a riotous assembly in Zweletemba and to arrest the persons involved in that riotous assembly and that that was the reason for my conduct, or at least that I had good reasons, and bona fide reasons to believe that I was acting within the course and scope of my duties and authority.  The fact that William Dyasi was shot dead by me in the circumstances as set out above, is something which will haunt me for the rest of my life.  As already mentioned, I was extremely shocked by the incident and the effect has developed into my married life and my relationship with my spouse and at this stage, I have virtually come to terms with this incident, it is 10 years later, and now I am being charged in terms of this incident committed by me and all these tensions have now again come to the fore.  
	I can only say that I am sorry that a young man had to lose his life and I beg understanding for the circumstances under which I had to operate and I offer my most sincere apologies to the family and next-of-kin of the deceased.  Signed M.P. Luff.   If the honourable Court will then please give me an opportunity, I would also like to say something to the parents.  To the parents, I would like to offer my sincere apologies for what had happened and I would like to say that I am very sorry about what had happened, and for you as parents, I ask your forgiveness for this incident.  As already mentioned, this will stay with me for the rest of my life, and it is certainly not something which is pleasant to remember.  
	I, myself, have a young son and I can only imagine how you must feel.   I am also prepared to speak to you personally as parents and to ask your forgiveness and to apologise, if that is what you would choose.  It does not matter what the outcome, the eventual outcome of the case, it was God's will that things happened the way they did, and I believe that he will assist you and me in the further development of this incident, and that is all, thank you.