Amnesty Hearings — Pietermaritzburg — 1997-02-10

MR BRINK: Before commencing, I may just say, Mr Chairman, I am informed that the attorney for Mrs Jama is now present.
	Mr Chairman, the problem I have with these applications is that accepting that there was what one has heard in previous enquiries, a "sub culture" in the police, a sub culture of violence and very strong anti-ANC beliefs and so on, accepting that, the problem with these applicants is, I think, to a large extent the fact that in February 1990 the African National Congress, amongst other formerly illegal organisations, was unbanned.  And, indeed, on the day in question the applicants had been to some sort of gathering where there were approximately 2000 members of the ANC which they were monitoring and/or protecting or guarding.  And you will recollect further that one of the members of the ANC at that particular gathering requested Constable Harrington to ask him special constables to refrain from toyi-toying in case it led to I imagine difficulties.  And notwithstanding his avowed contempts and hatred for the ANC, he complied willingly in a spirit of great cooperation.  I find that strange. 
	Then later on these 10 or 15 young men are accosted.
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I believe that they would all have been searched, because the purpose of the police was to check on whether they had things, as came out in the evidence, firearms, dagga and the like.  And then this notebook or diary or whatever it is, is discovered. 
	It doesn't matter from whom it came.  The point is that on the evidence, and if you accept the evidence, there was this document which was extremely important to the applicants, more particularly to Mr Harrington and Mr Erasmus, because had they kept that document, and after the death of Mr Jama, they could have taken that document to their superiors and said this is what we've done and although maybe we shouldn't have done it, we did it because we discovered this vital information.  That would have helped them.  But to throw this document away, this pocketbook or whatever it is away, seems to me to be something which certainly can't advance their case.  Had they kept it and had they not killed Jama, but they did kill him so it doesn't matter, but the point is they would obviously have done better by taking him to the police station and arresting him.
	And then it is very odd, when you consider that at the bottle store, without discussing the matter between themselves - and I now refer to the first and second applicants - they have exactly or almost exactly the same thought.  They both have this so-called inner explosion, they both suddenly are reminded of the murder of Major Terblanche, they both refer to a member of the ANC, an avowed communist sitting amongst them, they both refer to atrocities of the past, and this is very extraordinary to say the least, they then have this feeling without having 
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discussed it. 
	I think the problems the applicants face are those and I myself am not persuaded that a political objective has been shown.  There may well have been some sort of political motive, but I am not that that covers what is required in terms of the Act.  And unless there are any questions, those are my submissions.

CHAIRPERSON: If there was a pocket book, on the assumption that there was, could it not have been thrown away as part of an exercise to destroy evidence of their criminal behaviour for fear it might be detected?

MR BRINK: Yes, there is that possibility.  More especially if we accept the evidence that one of the applicants called upon the other not to fire because of the danger of ballistics testing at a later stage.

BERNARD MAKGABO NGOEPE: But what did they kill him for?  Except that he was really a member of the ANC which was at loggerheads with the IFP at the time and bearing in mind that during that time there was a lot of political conflict in that area, I doubt whether had he not been a member of the ANC they would have killed him.  Doesn't that go a long way towards showing political motive? Political motive or, in the wording of the Act, towards showing that their act was associated with a political objective, to harass, to weaken, to kill members of the ANC?

MR BRINK: Yes, certainly to harass, and one accepts and I think Adv De Jager put a question at an earlier stage, notwithstanding the fact the ANC was unbanned, there was continual trouble which exists to this day between the ANC and the IFP, yes, that is so.  But of course it may well be that the applicants subjectively believed that the late Mr
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Jama was a member of the ANC.  I am not sure if the evidence disclosed he was wearing an ANC T-shirt, but he was certainly associated with the group, some of whom were wearing an ANC T-shirt. 
	But it seems, if you consider the statements handed in yesterday in their handwriting, what caused them to commit this murder?  In their own words they have this identical belief or identical motive the murder of Major Terblanche, the fact they have an ANC member and an alleged communist in their presence;  they both think that.  Personally speaking, my submission is that that doesn't amount in itself to a political objective.

BERNARD MAKGABO NGOEPE: You must remember that the whole idea of killing ANC members had been there even before that day.  It is not something which simply originated on that day.  It had always been in their mind, and probably they had killed others, I don't know.   The fact is that there had been that kind of mentality that you can kill an ANC member.  So it doesn't really surprise one, does it, that on that day both of them had the idea of killing the man.

MR BRINK: Mr Chairman, yes, I concede that and I agree with that entirely.  The point is that one has now learnt there was a degree of Third Force activities and that these two applicants were part of that Third Force.  Of that I think there can be little doubt, notwithstanding the fact the ANC was unbanned.  You've heard evidence and research has shown Third Force did exist, even after the unbanning of the ANC, more particulary so, yes, I accept that.

ADV DE JAGER: Mr Brink, if there was a Third Force, officially a Third Force, weren't they acting in the scope of the Third Force business?
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MR BRINK: That depends on whether the Third Force falls within the definition of a political organisation.  That sort of thing, yes.

ADV DE JAGER: Or Security Forces.

MR BRINK: Or Security Forces.

ADV DE JAGER: But they were officially paid by the government, the Third Force.

MR BRINK: Yes.  But of course you've heard there have been denials that a Third Force ever existed from the part of the previous government.

BERNARD MAKGABO NGOEPE: The other point that you made was that they had a strong case, or they could have had a strong case against the deceased with the diary and the like.  But my guess is that in many so-called political killings, even in the undisputed ones, the person had the choice to do something else.  It is just that they go for the worst thing which is murder.  But if you start looking at it, it doesn't mean that anyone of them didn't have any alternative.  For one thing they could have left the deceased.  Everybody had that choice.  I don't know whether one can use that rigorous test against their actions and say well, they shouldn't have killed him, they should have taken him to the police station.  After all they had the diary, that sort of thing.
All these murders are foolish, anyway, aren't they?