Amnesty Hearings — Cape Town — 1999-10-27

MR RILEY: That is correct.  I would agree with the Honourable Chairperson on that point.
	Was there a further aspect?  Can I proceed?  Thank you.
	So Mr Chairperson, Committee, it is submitted that at all material times when the applicant went out on this mission as he put it, a mission to kill police on the 19th of January 1991, there is no doubt that he believed that he was acting with a political objective.  That was his objective.  He believed and the evidence is so and he was indeed a member of a Self-Defence Unit and Umkhonto weSizwe and he believed he was obliged to go out and in fact perform missions like this particular one, for example ambush the police, which was his intention on that particular night.  
	There is no evidence whatsoever that the applicant had acted for personal gain.  There's no evidence that he received any monetary reward or any other reward as a result of the incident that had occurred.  In fact the only reward, it is submitted, that the applicant acted for, was a political reward.  That was his belief.  The fact of the matter is that the applicant's evidence is quite clear.  What cannot be thought away is the fact that he went out there, there was obviously a lot of tension that existed at the time, there was a lot of nervousness that existed at the time, there was waiting under the trees for the kill as it were, there was a lot of anticipation, a motor vehicle pulls up, he hears at practically the last moment that the motor vehicle is there.   He is, from his version, blinded by the lights of the motor vehicle, he turns around and in fact fires shots at the motor vehicle in these circumstances.  At the time when he fires the shots, he believes that he is in fact firing at the police and when acting as he does, his version of the events is that he wants to make sure that whoever is in the motor vehicle, won't have the opportunity of pursuing them wherever they were going to go to.

CHAIRPERSON: Mr Riley, on what  grounds, according to his testimony, did he base his belief that he was firing at the police?  Are you able just to break it down?

MR RILEY: Mr Chairperson, the impression that is created from his evidence is that at the time when he fired, he believed that he was firing at police.  I get the impression from his evidence that he did not and there was obviously cross-examination on this particular aspect, he didn't check to make sure whether it was the police or not, because at the time that he was there, they were waiting for the police and his response was almost instinctive in the sense that he then proceeded to fire shots in the belief that he was in fact firing at the police at the time.  It is so that he was asked whether he made sure that it was a police vehicle, whether he made sure whether the people were in fact going to fire shots back at him, or going to do something to him, whether he made sure as to the identity of the persons.  His version of the events in that regard is that he didn't think of those things at that particular point in time, he just acted, shall I say almost automatically when he in fact fired the shots.

CHAIRPERSON: That belief has to be a reasonable one.  It has to be bona fide in the circumstances, in terms of the substantive legal requirements of the Act.  Now you say that he, is it common cause that he took no steps to ascertain the identity of the people who were in the vehicle?

MR RILEY: I think, Mr Chairperson, that it's common cause that he didn't do that.  I think that is borne out by his evidence.  He says that he didn't check.  The question that he obviously raised, or his contention was that there was, in his mind, not time to check that because if he did in fact check that he might have found himself in a situation where he had been attacked.

CHAIRPERSON: He believed that he was under threat at that point?

MR RILEY: That is the thrust of his version.

CHAIRPERSON: Did he say that, I don't know if I remember correctly, did he say that where they were standing under the trees, he didn't expect another vehicle but police to come up there?

MR RILEY: That is what I understood him to say.

CHAIRPERSON: Now was there anything else that he had said?  I'm just trying to isolate, if it's possible, the sort of grounds for his belief that he was acting against the police.  Wasn't this vehicle approaching from a totally different direction from whence he was expecting the police to come?

MR RILEY: Yes, that is so, however one must also accept that the police could possibly also have come from the direction in which that particular motor vehicle came from and the police did not necessarily have to in fact drive in a motor vehicle such as he had been expecting at the time, they could in fact have been from a totally different unit.

CHAIRPERSON: Yes, in fact I was going to just raise that too.  Is that entirely irrelevant in the circumstances, that he was expecting a canto vehicle, a sort of a - not a sedan vehicle, so he was on the lookout for this canto, would it be totally irrelevant that the vehicle that arrived where they were standing, clearly was not a canto vehicle.  Would that have been reason for the applicant to have at least inquired a bit further into the situation, seeing that on the appearance, on the immediate outward appearance of the vehicle, it was not the type that he was actually expecting, or are you submitting that he was still entitled reasonably to have just opened up and fired shots at the vehicle without taking any further steps?

MR RILEY: Mr Chairperson, on that particular point, from the applicant's evidence there was no opportunity, according to his version, for him to identify the particular vehicle.  In fact his version was that he had practically been blinded by the lights.  He didn't in fact check or make sure what kind of motor vehicle it was and because of what he says, his comrades or the persons who were with him, made him aware of the fact that the vehicle was approaching.  He, as I said, acted instinctively it appears and fired the shots on the basis that the vehicle was part of the police or was the police who had arrived on the scene.

CHAIRPERSON: Just in conclusion on this issue, do you agree that if the belief could not have been reasonable in the circumstances, in other words if the conduct of the applicant was not reasonable, that that would be a failure to comply with one of the principle requirements of the Act?

MR RILEY: We would have to concede that, Mr Chairperson.

ADV BOSMAN: If I could just ask, to take this point further, there was evidence that it was a fairly busy public road, Lansdowne Road and it wasn't particularly late at night, it was between half-past Nine and Ten, according to the evidence, are these not also two factors that should be taken into account in trying to establish whether it was a bona fide belief?

MR RILEY: Yes, Adv Bosman, those factors are certainly factors which must be taken into account.  It does appear though that at the time when this incident occurred, there's no evidence that in fact the traffic conditions were such, busy as you indicated, it would appear that it was fairly, a relatively quiet night there.

ADV BOSMAN: I'm not trying to indicate that there was evidence that it was busy at the time, but it was a busy road and it wasn't particularly late at night, surely that should have had an effect on the frame of mind of whoever was there and if a vehicle came past, that it would not necessarily be a police vehicle?

MR RILEY: That is a factor to consider.

CHAIRPERSON: Yes, thank you Mr Riley, you can carry on.