Amnesty Hearings — Johannesburg — 1999-02-10

MR SHANE: No, I accept that.  In exercising your discretion as to whether he has satisfied the requirements of Section 20, Mr Chairman, if the onus is not as strong as the civil onus, if he says that he tried to shoot the white policemen in this vehicle, to get their weapons, he also says at the same time he was trying to protect himself, which he does say, it doesn't mean that the fact that he tried to shoot these police for their weapons, must be rejected out of hand, with the greatest respect sir.
	He could have been doing both at the same time, trying to protect himself with that also in mind.  It is stupid ...

CHAIRPERSON: Are you serious?

MR SHANE: Well Mr Chairman, the fact of the matter is this, he got shot in the process.  Maybe he could have had it in his mind, he wanted to do a heroic thing for which he could die possibly.

CHAIRPERSON: It is not for you or us to speculate what he had in his mind, we are stuck with what he had testified.  I am asking you one last time, can we believe him, and if you say we must believe him, on what basis must we choose a particular version which is self destructive?

MR SHANE: Well Mr Chairman, I would submit that if you take into account, the unsatisfactory way in which his initial statement went, the fact that he says he was trying to defend himself, unfortunately is destructive for him, I must concede that Mr Chairman.
	The other aspects which I suppose you will find not relevant to this, which I thought should be mentioned and which should be considered, is also the fact that of all the applicants who were pursued, of all the applicants who were before you, I think there are about 40, it is significant that only three were actually pursued by the justice system.
	In this particular one, he was pursued for attempted murder.  There have been far more gruesome accounts of murder before you, none of those ever went through the justice system.

CHAIRPERSON: So what has that got to do with ...

MR SHANE: No, I am just mentioning it Mr Chairman.

CHAIRPERSON: Mr Shane, I need to write notes, I don't plan to write unnecessary things.

MR SHANE: Well Mr Chairman, as far as his actions are concerned, I cannot take it further than what I have tried to put to you, that he wasn't acting in self defence when he shot those white policemen.  You've got to take into account that there were other policemen as well.  There were black policemen who he didn't shoot either, who were there.

CHAIRPERSON: Okay.  Yes, that may count against him, but anyway.
	Now tell me, has he made full disclosure?

MR SHANE: Well Mr Chairman, he has said everything that he can say.  He has not hidden any facts.  There are certain things that may have been misunderstood, but I submit he said what he could say.  I don't believe he is wilfully ...

CHAIRPERSON: I don't know if you are going to agree with me and my suggestion that in the circumstances that he described, he could not have been acting in self defence and aggressively trying to get the firearms off the police at the same time?
	Now, if we should find that, do you still say that he has made full disclosure?

MR SHANE: Well Mr Chairman, he couldn't have acted aggressively and in self defence at the same time, that is quite clear.

CHAIRPERSON: You agree with that?

MR SHANE: I agree with that.

CHAIRPERSON: Now has he then complied with the second leg of the requirements, did he then make full disclosure to us?

MR SHANE: Well, all I could say Mr Chairman is, when he testified he believed he was disclosing everything.  He believed he was saying everything.

CHAIRPERSON: Well, he has contradicted himself in a material aspect, on the material aspect?

MR SHANE: Well Mr Chairman, if contradiction means that you cannot make full disclosure if you are contradicting yourself, then if that is the case, then he hasn't made full disclosure.

CHAIRPERSON: Well, would you like to argue the point that it could be or do you concede that it can't be full disclosure?

MR SHANE: Well Mr Chairman, it could be a mistake.  If mistake is - if you make a mistake, then you are not giving full disclosure, Mr Chairman, what I understand is full disclosure is knowingly withholding facts, information, from you.

CHAIRPERSON: No, it is not restricted to that.  It is when you give two different stories, one of which is false.  That is also not making full disclosure, you are not telling the truth.

MR SHANE: I would submit Mr Chairman, that he is not being dishonest.  He could be mistaken and I would submit it is more mistake than dishonesty.

CHAIRPERSON: Okay.

MR SHANE: I would say that the lack of full disclosure would have a hint, at least a hint of dishonesty if you are not going to give full disclosure, you would do so knowingly withholding something.

CHAIRPERSON: One last question, I don't know if you can answer it.  Is there any significance in the fact that he changed his version after one of the many breaks that we had?

MR SHANE: Absolutely no significance Mr Chairman, I didn't pick up a big change in his version.

CHAIRPERSON: Do you have any questions?

ADV GCABASHE: I just, I am not too sure about this mistake you mentioned.  He was mistaken about what Mr Shane?

MR SHANE: Madam, the crucial, the time factor is this, when he says he was acting in self defence, he also says he was, he had aggression, he had the intention to shoot the police to get their weapons.  There are these two contradictory versions, but I submit that maybe the contradictions can be dealt with if you look at the time factor, at the time he was acting in self defence and also at the time, he had this aggression.
	Now if for instance, obviously not at the same time, he could have in that action, that action could have taken minutes, it could have taken maybe five minutes, we don't know, but let's assume this action that he was involved in, took five minutes for argument sake.  Maybe at the beginning when he acted, he acted with the aggression and when there was no threat on him, and it wasn't self defence, and later in that action, he acted in self defence, because he says he acted in self defence.
	I am saying that by him saying that he acted in self defence, he is saying he did both.  He acted in self defence and with aggression.  They are contradictory if they happened at the same time, but if they didn't happen at the same time, then they are not necessarily contradictory, with respect.

CHAIRPERSON: Mr Shane, just to follow up there, I don't know if you recall your client's evidence.  He was retreating, running away when he shot.  It is strange for you to run away and shooting, from the very things that you want to obtain?   How does that work?

MR SHANE: I can't answer that Mr Chairman, that I must concede, I cannot answer that.  That is why I said madam, there could be a mistake on his part on that.

CHAIRPERSON: But we asked you what is the mistake, what is the mistake?

MR SHANE: As you say, it is speculation, it is pure speculation on my part.  He says he was running away, but he also says and all I am saying is, you shouldn't loose sight of the fact that he says he was trying to defend himself.  It is a contradiction as you said.  I can't take it further.

MR SIBANYONI: Just one aspect Mr Shane, if we look at the version of shooting to take the weapons from the police, is there any evidence before the Committee as to when such a decision was made, when did he decide to shoot the police and obtain weapons?

MR SHANE: As far as I recall sir, he did say that when he saw them, he made that decision.  That was the gist of his testimony.  When he became aware of these police, that is when he decided he wants to get their weapons.
	I think that is what came from the applicant.

MR SIBANYONI: Was it not at the stage when he was already retreating?

ADV GCABASHE: That is my recollection as well Mr Shane, not your version.