TRUTH AND RECONCILIATION COMMISSION

AMNESTY HEARING

DATE: 7 AUGUST 1998

MATTER: JOHANNESBURG MAGISTRATE'S COURT BOMBING - ARGUMENT

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ADV PRIOR: Mr Chairman may we then proceed with the Johannesburg Magistrate's Court Bombing, it's for argument.

CHAIRPERSON: Mr Landman?

MR LANDMAN IN ARGUMENT: Thank you Mr Chairman. Mr Chairman before I proceed with the (indistinct) written Heads of Argument which were supplied to the Committee, I understand, a few minutes ago. Mr Chairman may I deal with one matter, it arises from certain press reports which have appeared in the last two days and they concern the implicated person on whose behalf I appear, General Nyanda. The press reports are to the effect that General Nyanda did not submit an application for amnesty to the Truth Commission. I'm instructed and indeed I've had sight of his applications, in fact there are two applications by him and therefore there is an application or two applications by him before the Truth Commission. A date has not yet been set for the hearing of those applications, but nevertheless I just want to dispel the notion that he has not applied for amnesty. Mr Chairman I then would seek leave to take the Committee briefly through the Heads of Argument. Mr Chairman you will note that there are certain references to the ANC's submissions. I have in the short time been able to obtain a copy of the official submissions, with the official page numberings and I have been able to find a number of those statements and the page numbers. Those that I haven't found I will find as soon as possible and convey it to the Committee.

Mr Chairman it's our submission that the factual context within which the operation occurred is essentially not an issue. Mr Chairman on page 2 of the Heads of Argument, paragraph 2.4, we refer to a pamphlet which was published after discussion at the COBWE Conference, encourage cadres of MK to take the struggle to the White area. Mr Chairman that is dealt with at page 52 of the first submission and Mr Chairman we then place the encouragement given to the cadres in that pamphlet in it's context as testified to by the second applicant in this matter.

Mr Chairman it's been pointed out to me by my instructing attorney that there may be a possible misunderstanding. I am not suggesting in the Heads of Argument that it was only after the COBWE Conference in 1985 that members of the Security Forces were considered to be legitimate targets. It was more a case of after that conference there was an intensification of the armed struggle and certainly there was also a view that the struggle should be taken into the White areas.

Mr Chairman at all stages throughout the struggle from the 1960s Security Forces were considered to be legitimate targets in terms of ANC policy. Mr Chairman on page 3, paragraph 2.8, at the bottom of the page, we make the point that the attacks in the White areas were not to be random and indiscriminate. The policy was clear that the targets were the racist army, police, death squads, agents and stooges and the call to take the war to the White areas is defined as inter alia systematic attacks against the army and police. Mr Chairman that appears not only in the second submission but also in the first submission at page 52. Mr Chairman the context within which this attack took place was that it was an attack that was planned and co-ordinated from the Swaziland Regional Politico-Military Committee which at the time was headed by General Sepiwe Nyanda.

CHAIRPERSON: I just want to place on record here his present position.

MR LANDMAN: Mr Chairman he is presently the Head of the South African National Defence Force.

CHAIRPERSON: I should perhaps explain that I do so merely in the event of our coming to the conclusion that there can be no doubt that he held a very senior position in Umkhonto. This is confirmed by his present position.

MR LANDMAN: That is certainly so Mr Chairman in our submission. Mr Chairman the other point we wish to make about his position in Umkhonto is if one looks at the structure, one finds that his name appears very high up in those structure and the ... (intervention)

CHAIRPERSON: The reason I mention this is, I think all of us have experienced it in political or quasi-political structures you sometimes see names there of persons who aren't actually all that active, but having regard to the promotion or the position he now holds, there can be no doubt that he was an extremely active person.

MR LANDMAN: And if I might add Mr Chairman, extremely active in the military field.

CHAIRPERSON: Yes.

MR LANDMAN: Mr Chairman in the same vein we would submit to the Committee that the second applicant was likewise extremely active in the military structures of the ANC. Mr Chairman I would ask the Committee in as much as the Committee finds it relevant to have regard to the other acts for which the second applicant intends applying for amnesty, which includes attacks upon police stations and other installations and that stretches from the period 1979 onwards, so again we would submit that he was a highly placed member of MK.

Mr Chairman again it might also be then important to place on record that the second applicant ... (intervention)

CHAIRPERSON: He draws a distinction doesn't he, in his application between the acts that he was directly involved with and those that he accepts responsibility for as a result of the position he held in the Transvaal (indistinct)?

MR LANDMAN: That's the same Mr Chairman. Mr Chairman I would submit that that is also very significant in that obviously when one is an operative and is directly involved in acts it would seem to suggest that you are on the lower levels of the organisation and once you reach the command structures, it's more likely then that you'd be indirectly involved, by being involved rather in the planning and co-ordination of events as opposed to the ... (intervention)

CHAIRPERSON: But he's explained that he was stationed in Swaziland and that he was largely responsible for the supply and organisational side.

MR LANDMAN: Mr Chairman that was his evidence yes. Mr Chairman we submit further that that is also apparent from the structures as it appears in paragraph 6.4.1 of Appendix 1 of the ANC's second submission.

CHAIRPERSON: (Inaudible).

MR LANDMAN: Mr Chairman on page 4, paragraph 2.9.

CHAIRPERSON: 6.4.1 - page?

MR LANDMAN: Page 4 ... (intervention)

CHAIRPERSON: (Inaudible).

MR LANDMAN: Mr Chairman we'll ... (intervention)

CHAIRPERSON: I'm sorry, I thought you said it was a minute ago.

MR LANDMAN: No, no.

CHAIRPERSON: Oh you just said paragraph 6.4.1 you didn't give the page.

MR LANDMAN: It's in fact on page 53. Mr Chairman you'll also note from that that the second applicant's name also appears. He is in charge of the Ordinance under the Transvaal Urban Structure. Mr Chairman we would submit further that there can be no doubt that the first applicant acted under the instructions of General Nyanda when he surveyed certain possible targets, including the Johannesburg Magistrate's Court target.

Mr Chairman it is also apparent from the evidence that the purpose of surveying these targets was not so much to attack particular buildings, but rather to find venues where members of the Security Forces and the police would be present. Mr Chairman we say then on page 5 in paragraph 2.11 that General Nyanda acting in his capacity as Chair of the RPMC for Swaziland, devised this particular plan. Mr Chairman it's our submission it is significant that - and the plan was fully explained here - that there would be an attempt to entice policemen to the scene and at the same time ensure that civilians move away from the scene of the explosion. Mr Chairman I submit that that would certainly suggest that this was not meant to be an indiscriminate attach where civilian casualties would be caused no matter what.

Mr Chairman the speculation as to what might have happened if medical personnel might have been present in the area is, in our submission, not relevant in the present enquiry, when in fact that didn't occur. Mr Chairman if I can turn page 6 of the Heads of Argument where we, in paragraph 2.13, explain how it was that General Nyanda could have acted and have given these particular commands without having to consult with higher authority. Mr Chairman the page reference there should be page 47 of the ANC's second submission. Mr Chairman then from paragraph 2.14 we refer to the role played by the second applicant, a commander in the MK who was briefed to provide the first applicant with ordnance - in paragraph 2.14 - in the form of explosives. Mr Chairman I didn't mention at this stage but it is also his evidence that he gave the first applicant certain training in the use of explosives. What he called a layman's training, as the Committee will recall.

Mr Chairman, again demonstrating the military nature of the operation, the first applicant received a remote control device from Nyanda which for some reason was defective and the second applicant then played a role in providing the first applicant with a replacement. Mr Chairman the explosives were provided in the sense that a sketch plan was given of the letter box where the explosives and the mini limpid mine would have been found and in fact these explosives were indeed found at the place by the first applicant who then retrieved them and instilled or assembled the bomb in the boot of a Golf motor vehicle. Mr Chairman on page 7, paragraph 2.18, we deal with the third applicant's role in the events. His role was restricted to driving a second motor vehicle to the Johannesburg city centre on the day of the explosion and to give the applicant a lift back to Soweto. Mr Chairman there was a suggestion that he may have been, to some extent, suspicious as to what was in the boot but there was certainly no suggestion that he would have been aware or was aware what was about to take place. Mr Chairman he also conceded that he was not a member of MK or the ANC at the time, although he later joined MK. Mr Chairman this appears to have been an attempt to ensure that he was within the structure and that he wouldn't then be detected by the Security Forces and via him that the first applicant wouldn't be detected, but it is our submission that when he failed to inform the police of that which he knew about this incident he, by that act, demonstrated that he had associated himself with the activities of the first applicant.

Mr Chairman and Committee on page 8 we also deal with the way in which the first applicant returned to the scene ... (intervention)

MACHINE SWITCHED OFF

CHAIRPERSON: Isn't the effect of his evidence that - oh, no he said so directly, that's what I was looking for - that he was, although not a member, he was an ANC supporter?

MR LANDMAN: That's so Mr Chairman. There was some debate with him about how he demonstrated his support and whether he could have supported - the organisation at that stage was banned, but certainly that is his evidence. We don't abandon that part of his evidence at all.

CHAIRPERSON: Earlier in his evidence he had said that he was not supporting the first applicant, he was supporting the ANC in what he did.

MR LANDMAN: That is also correct Mr Chairman. Mr Chairman it will be our argument at the end of the day that the third applicant, in the evidence which is before you, would in any event fall under sub paragraph g as being a person who's associated himself with acts of persons who've committed the acts preferred to in the preceding sub paragraphs.

Mr Chairman on page 8 we set out the manner in which the first applicant set about actually detonating the bombs, from paragraph 2.22. Mr Chairman we submitted the significant in regard to the question of proportionality and whether there's a relationship between the act and the objective that was sought to be achieved. That he did attempt to minimise casualties by placing the explosives at the rear entrance of the Courts and by time the explosions to occur while the Courts were in session, that is to say before the spectators and other attendees at the Courts left on the lunch break.

Mr Chairman it's also apparent from the photographs themselves that the Johannesburg Magistrate's Court building is a very sturdy and solidly built building. Mr Chairman there can be no suggestion that he intended to cause major or major structural damage to that building and that the attack, as he has described, was indeed aimed against the Security personnel, although indirectly against the symbol of the judiciary at the time.

Mr Chairman the first applicant made full disclosure and he explained how he had connected a battery to the main bomb, how he placed the mini limpid mine near the spot where the Golf car was parked. He'd set the time, he waited in a nearby cafe until the mini limpid mine exploded and he observed and kept watch whilst the police placed the cordon around the area and policemen moved towards the scene of the explosion.

Mr Chairman the statements of the policemen who were present at the time confirm that this is indeed what happened and that the police did attempt, in fact moved towards and that civilians were being kept away. Vehicles were also parked at particular corners, again no doubt in an attempt to ensure that civilians did not approach the scene.

Mr Chairman on page 9 at paragraph 2.26 we say: "Standing at a distance and having determined that policemen were within range of the car bomb he activated same using the remote control device supplied to him by the second applicant". Mr Chairman we submit again that this is an indication that was a military operation intended to cause fatalities amongst a particular group of people and that is why it was necessary for him to be present and to ensure that the bomb would indeed cause the harm which was intended.

Mr Chairman it is so that a number of vehicles were damaged in the second explosion and some civilians were slightly injured. Mr Chairman the second applicant in particular has informed the Committee as to the ANC's approach to civilian casualties at the time. That because of the intensification of the armed struggle, the ANC came to realisation that it's initial pre-occupation with avoiding civilian casualties could no longer be sustained and that the civilians who were injured and the vehicles that were damaged were really part of the unfortunate casualties of war.

CHAIRPERSON: Thatís one of the unfortunate things that one has to accept, no matter how much the persons concerned endeavours to say that it was an act of war, if you go back to think of the bombing of Dresden, an open city. And these acts have been committed during every war that we have ever seen. That civilians have suffered as a result of the conflicts.

MR LANDMAN: Mr Chairman I would submit that that is the lesson which one learns from history and all armies would have to take responsibility for that, but Mr Chairman what we do wish to point out and submit is that the manner in which this operation was carried out, that there was a conscious effort to avoid civilian casualties, in as much as it was possible.

CHAIRPERSON: You find yourself perhaps in the embarrassing position that one can contrast this operation with the other one that we're presently hearing.

MR LANDMAN: Mr Chairman that's why I'm not totally dismayed that that matter was postponed. It gives me more time to think about it.

CHAIRPERSON: I think it is fair to say, and I think Mr Prior agreed, that this - steps were taken here to attempt to chose the target rather than indiscriminately leaving a bomb and hoping that nobody was there at the time it went off.

MR LANDMAN: Mr Chairman on page 10 we deal again with the third applicant's position which was very clear. He was asked to watch the television new, which he said he never used to watch and he saw the report and he deliberately refrained from informing the police about his knowledge.

Mr Chairman it's our submission therefore that the evidence of the applicants was satisfactory, there were no material contradictions and they testified freely and openly about their involvement in the issue.

Mr Chairman our submission is that they've made full disclosure as to their roles and the roles of others in this incident. Mr Chairman we therefore say in paragraph 5 on page 11 that the evidence given by them is to be accepted as the factual context within which the attack occurred.

Mr Chairman in paragraph 6 we deal with the three main requirements that have to be satisfied and which the Committee has to be satisfied about before amnesty shall be granted.

Mr Chairman we refer the Committee to one of the few reported cases dealing with the amnesty process of Gerber versus Kommissie van Waarheid en Versoening. Mr Chairman if I recall correctly, you Mr Chairman would have knowledge of this particular matter as it concerned an application in which inter alia yourself was involved as a Committee member. Mr Chairman, his Lordship Mr Justice Southwood in that case made a number of observations which I submit reflect the approach which the Committee, the Amnesty Committee indeed does take when approaching these matters. The first being that each case should be judged on it's own merits and shouldn't be analysed and considered in the light of other applications, but that the facts of the present matter ought to be taken into account.

Mr Chairman then on page 13 we deal with the three requirements. Mr Chairman only one of the three applications was sworn to or affirmed, depending on what the person would have done if the procedure had been followed fully, but Mr Chairman it's our submission that the failure to have attested to these applications is in our submission not a material defect which is so substantial as to prevent the Committee from considering the application.

Mr Chairman in regard to the second requirement ... (intervention)

CHAIRPERSON: I think in that regard both Mr Prior and myself are aware of the conditions appertaining in the office in Cape Town at the time the applications were lodged and that certainly in so far as any blame is to be attached it should not be attached to the applicant. Do you agree Mr Prior?

MR PRIOR: To the extent that these forms were, the applicants were assisted in completing these forms by competent persons, certainly some of the blame can be shared. I wouldn't go ... (intervention)

CHAIRPERSON: In the event of those persons being competent, they were assisted by people who should have known what to do, but unfortunately I think we will know that the procedure that should have been followed of returning forms for verification just wasn't done in those days.

ADV PRIOR: Certainly in that respect I must agree with you Mr Chairman.

MR LANDMAN: Mr Chairman I don't want to direct any criticisms at any parties, I just wish to point out for the sake of the Committee that the applications themselves bear a stamp of the Truth and Reconciliation Committee's investigative unit dated the 10th of May 1997, so they had been lying there for some time without this problem being detected.

Mr Chairman if I could go on to the second required then, though it should be an act associated with the political objective. Mr Chairman again in the judgement of his Lordship Mr Justice Southwood in the Gerber matter, he makes the point that the Committee would refrain from embarking upon the narrow investigation, this is at the top of page 14, but rather that the Committee will take all the circumstances pertaining to the application into account in the light of and against the criteria mentioned in Section 20 Sub Section 3 of the Act. Mr Chairman it is our submission that the acts committed by the applicants, alternatively those with which they associated themselves, and this is in regard to the third applicant, fall within the provisions of the sub sections.

Mr Chairman there can be no question that the first and second applicants were at the time members of a publicly known political organisation or liberation movement, namely the ANC and it's armed wing Umkhonto weSizwe. In respect of the third applicant he's the person who associated himself with the act committed by the first applicant and therefore falls within the definition of a person referred to in Sub Section 2.g. Chairman we submit further that the act was committed on behalf of the ANC/MK bona fide in the furtherance of the political struggle waged by that organisation against the State during 1987.

Mr Chairman we submit that that is the only conclusion that can be reached. When considering the act and the evidence given by the applicants against the submissions made by the ANC.

CHAIRPERSON: And although we didn't, perhaps we should have sought more clarification, it is clear isn't it regarding the evidence as a whole that the second applicant used his position as logistics officer to ensure that through ANC sources the necessary explosives and exploding device were put into the dead letter box.

MR LANDMAN: Mr Chairman as I understand his evidence as a whole he was indeed responsible for that and responsible for ensuring ... (intervention)

CHAIRPERSON: And there can be no doubt I think on the evidence we've heard that these were supplied by the ANC, they weren't any private explosives, it was never suggested that they were anything other than explosives supplied by the ANC for an ANC operation.

MR LANDMAN: Mr Chairman I would just also recall the evidence of the first applicant where he stated that all he had to do was simply to ensure that the battery was attached, otherwise the explosives were ready, it was properly prepared and clearly it was prepared by person with military knowledge.

Mr Chairman we submit that the first and second applicants testified as to the motives of the first applicant, Mr Chairman this being one of the criteria, and to a lesser extent - this is on page 15, paragraph 18 - and to a lesser extent the motives of the second applicant in committing and participating in the planning of the act.

Mr Chairman the first applicant evidence was that he was carrying out the instructions given to him by his MK Commander, Nyanda, and was thereby advancing the objectives and policies of the ANC which were inter alia to attack and afflict injury on South African Police personnel.

Mr Chairman similarly the second applicant's motives in training the first applicant in the use of explosives and supplying such explosives and the remote control were similarly to advance the policies of the ANC and MK to take the armed struggle to the White areas and to attack members of the South African Police. Mr Chairman we submit again the fact that the second applicant was in exile and was part of the MK command structures, again re-emphasises the fact that this was, that the motive was to further the aims of the ANC at the time.

Mr Chairman as was pointed out in Gerber case, the guidelines published under the Indemnity Act of 1990 are also to be taken into account by the Committee in terms of Section 24 and Mr Chairman the reason why I refer to that is because the guidelines in that case are - in some cases are slightly more explanatory and when dealing with the guidelines, one of them is the motive of the offender, that is to say if it is an offence that is committed with a political motive in mind for example to advance the objectives of a political organisation or whether it was for a personal motive. Mr Chairman our submission is that clearly this was with a political motive in mind.

Mr Chairman as far as the context within which the act occurred we submit it is clearly within the context of an armed struggle which had been moved into the white areas and that members of the South African Police were at that stage considered to be legitimate targets in terms of ANC policy and again I make the point I'm not suggesting that they only became legitimate targets at that particular point.

CHAIRPERSON: Well in this regard should we not also have regard to evidence led at other applications held before this Committee. I cannot recollect the exact date of the bombing of Cosatu House, it was in May 1987 as I recollect, I can't remember the precise date. But the officer who conducted that attack gave evidence before us saying he enquired into the instructions he was given because it was the first illegal attack the police had been asked to perform within the country. Up till then all their illegal attacks had been on ANC bases and personnel outside the country, so I would think that it was, is a consideration that we should have regard that the war was not only one-sided at that time, the South African Police, on the evidence given by a very competent and senior policeman in this regard were conducting attacks aimed at killing people outside and damaging property outside the Republic prior to this - at about this time and prior to this time.

MR LANDMAN: Mr Chairman we would go along with that argument, we would also point out in the ANC submissions that the ANC has made the point that some of it's cadres were considerably angered by a lot of the illegal attacks which took place and which were committed by the Security Forces in neighbouring states which led to suggestions that those sorts of attacks on innocent civilians should occur within the country as well, but committed by MK operatives. Again it gives one an indication of how the conflict escalated where targets were being chosen very quickly and with a great deal of brutality at the time.

Mr Chairman in regard to the factual and legal nature of the act, again one of the criteria, we submit that the attack was carried out as an ambush and accords with the tendency of guerrilla warfare and indeed Mr Chairman apart from possibly the romanticised versions that we have of the Battle of Waterloo where armies advanced upon one another in brightly coloured clothing and shot at each other, an ambush has for many years been considered to be a legitimate tactic to be employed in a war.

Mr Chairman we understand the criticisms which were raised by Mr Wagner when he said that the policemen were not in a position to fight back, however we submit that that is without merit in the context of this particular war, it was a guerrilla war, where the aim was to attack the police and Security Force personnel where they least expected it and the idea was to take them by surprise. Mr Chairman that also then would have the effect of avoiding casualties amongst one of the warring factions, the MK cadres. This again accords with the tendency of war.

Mr Chairman on page 17 we refer to the objective of the act. We say it was clearly perpetrated in order to cause fatalities amongst South African Police personnel and such was frankly admitted by the first applicant in his full disclosure of his motivations and objectives in his evidence. Mr Chairman our submission is therefore that the act was directed, not only primarily but solely at State personnel, the only involvement of civilians and private property was in the context of the civilians caught in the crossfire approach to warfare.

Mr Chairman and then we specifically refer to the ANC's first submission dealing with the risk of civilians being caught in the crossfire. That appears at page 51 of the first submission. Mr Chairman one of the other criteria is for the Commission to be satisfied or to consider whether the act was committed in the execution of an order given by a - in the execution of an order. In this particular case we submit that the order was given by a senior commander of the ANC of which the first applicant was a member.

Mr Chairman you'll also recall that we placed on record that General Nyanda, the person who gave the orders, does not intend to contradict any of the evidence which was given and indeed I'm instructed to inform you that he confirms that that is indeed the correct position, that the orders emanated from himself.

Mr Chairman then I wish to deal with criteria which has caused a number of applicants in amnesty applications some bother and that is the question of the relationship between the act and the political objectives being pursued and specifically whether the act was sufficiently direct and proportionate to the objective. Mr Chairman our submission is that the ANC's submissions before the Truth Commission demonstrate clearly that the political objective of the ANC was to create a democratic and non-racial society and this was to be achieved by pursuing a multi-pronged strategy consisting of the four pillars, one of which was the armed struggle. Mr Chairman others were for example the isolation of the apartheid state, but one of the pillars was the armed struggle and Mr Chairman it can certainly be again said that the South Africa of the 1960s to the late 1980s was certainly a society which the military and Security Forces as a whole played a large role in maintaining the government at that stage in it's position of power. In that context an armed struggle against such bodies, the Security Forces, would in our submission certainly be a justifiable struggle.

Mr Chairman particularly taking into account that the attack was directed primarily against South African Police personnel it is submitted that this was a direct attack upon the persons who were perceived by the ANC, and indeed in our submission, were involved in maintaining the apartheid state and therefore were involved in preventing the realisation of a democratic and non-racial society. Mr Chairman it has not been suggested at this hearing and I submit it is clear from ... (intervention)

CHAIRPERSON: Before we go on I think on this aspect and I'm thinking of some of the questioning, it is clear is it not that the real complaint is that the South African Police were the tool used by the Government. The South African Police were members of a quasi-military organisation, if one wishes to call them that, who also felt that they were there to obey orders, it was not for them to question the orders they were given and a great many of the things that are now ... (end of tape 1) wanted to. Do you accept that?

MR LANDMAN: We do Mr Chairman. Mr Chairman it's probably not necessary to get into the whole debate about whether, at the very least, a considerable number of the police who did become involved were indeed committed to the maintenance of the apartheid state, but never ... (intervention)

CHAIRPERSON: But the point you are making, aren't you, is that the police were an essential tool of the apartheid government, without the police and the police support they could never have continued and for that reason the police were the obvious target to attack.

MR LANDMAN: Mr Chairman we submit that that finding alone would be sufficient for purposes of this application.

Mr Chairman the ground upon which the Committee would certainly not grant amnesty is if it were to be established that the applicants were acting for personal gain or out of personal malice, ill will or spite. This we'll deal with briefly in paragraph 25 on page 19. Mr Chairman none of the (indistinct) has been, was suggested to them at the hearing and our submission is that it is clear from the evidence alone that they were carrying out orders, that this was a military operation and that is the proper, that explains the motivations behind the acts. Mr Chairman it is therefore our submission that the applicants have satisfied their requirements for amnesty and that they ought therefore to be granted amnesty in terms of the act.

Mr Chairman unless there's anything specific, those are my submissions.

DR TSOTSI: Mr Landman I see that we have dealt exhaustively with all the criterions that are (indistinct) of the act, motive, (indistinct) and so on. Do you consider that the Committee has to be satisfied in respect of each and every one of those criteria set out in the act. In other words (indistinct)

MR LANDMAN: Dr Tsotsi our submission and our view is that it's not necessary to meet all the criteria at all, but certainly we submit that in this particular case most of those criteria are quite obviously met. That's the reason why I have dealt with them and although I have dealt with them one by one, I have indicated in the Heads of Argument that an overall conspectus must be taken of all the criteria and the act itself in determining whether this is an act associated with a political objective.

MR SANDI: Just one thing for me. I don't know Mr Prior if you've heard anything from Mr Wagner?

ADV PRIOR: Mr Chairman yes I was going to, in my address, indicate that Mr Wagner had phoned me yesterday and had indicated that he was not attending as per the arrangement. There was no objection, or the objection that was initially envisaged was no longer there.

CHAIRPERSON: He in fact was withdrawing the objection that he had notified us of.

ADV PRIOR: Yes he was.

MR SANDI: There's just one problem for me Mr Landman. When were these Heads drafted? I see that it says 18 February 1998 at the bottom there. I'm sure that is a typist's mistake.

MR LANDMAN: Mr Chairman as - or rather Adv Sandi I must confess that on the 18th of February 1998 I didn't even know about this application at all. It just goes to show why it's important to brief members of the bar, they're just so clever. Mr Chairman I don't know where my typist got that from but I certainly will ask her.

CHAIRPERSON: Mr Prior?

ADV PRIOR IN ARUMENT: Thank you Mr Chairman. Mr Chairman there are just a few points I wish to mention. Obviously in the light of Mr Wagner's withdrawal of his objection on behalf of his clients, it is not up to the evidence leader to, and quite frankly having listened to the argument of Mr Landman, a lot of what Mr

Landman has said is factually and legally correct in terms of the act, however, I submit that on behalf, or representing the process a whole, I think that the Committee must not forget that despite or notwithstanding the legitimacy of the operation and the attack, there was a loss of human life. We are presented with the stark facts that - all be it policemen, young policemen, four young men lost their lives in a horrible way. Mr Kgoele said that the bomb that he planted was in the order of about 100 kilograms of explosives which was detonated when these policemen were within the killing field.

In addition hereto we also have injury to civilian and damage to civilian property. My submission is that in the granting or not granting of the amnesty application that cognisance be given and effect be given to those victims who are, who were and will still be affected by this event, less the wrong message be sent out that civilians in any armed conflict situation are merely expendable commodities caught in the crossfire between opposing political or military opponents.

And then lastly Mr Chairman there's just some concern, although the planning went with some military precision, as we've heard, the target was situated in a public place where civilians of all walks of life and as the list of injured also indicated, Black people who either through no choice of their own, were forced to attend that edifice or that symbol of apartheid. And in that respect I would ask the Committee to also consider the aspect of gravity of the act which was set out in Section 20, Sub Section ... (intervention)

CHAIRPERSON: Proportionality?

ADV PRIOR: Mr Chairman yes, it's a factor which also should be considered with proportionality.

Mr Chairman may I also then in conclusion urge that in the final analysis ... (intervention)

CHAIRPERSON: Before you go on Mr Prior, this was in fact part of a civil war was it not?

ADV PRIOR: Yes.

CHAIRPERSON: Where civilians are in danger. How many civilians were killed by members of the South African Police Force during attacks on neighbouring territories?

ADV PRIOR: Yes I accept that but I think for the - each case on it's own factual merits ... (intervention)

CHAIRPERSON: ... inevitable consequences of a civil war?

ADV PRIOR: I agree to a certain extent, but where one is going to adopt the attitude that because there were atrocities on one or both sides that the one justifies the other, to whatever extent ... (intervention)

CHAIRPERSON: We're not talking about atrocities, we're talking about deliberate acts where we have atrocities of bodies being roasted on braaivleises it's a different matter. I know it was a deliberate attack aimed at a section of the armed forces.

ADV PRIOR: I accept that, I have no difficulty with that, I'm simply saying that the Committee should not lose sight of the fact that within this conflict, innocent people were affected and I think the amnesty process mustn't exclude cognisance of that fact and that they and the victims of those deceased persons should be catered for in the decision or referred to in the decision, less the impression be gained that it is not a process about victims at all and that they're merely expendable in the situation. That was the point that I was simply making Mr Chairman.

Mr Chairman may I then in conclusion urge the Committee that in the final analysis that the victims and the injured persons and persons who sustained damage as set out in the bundles, quite clearly be found to be victims in terms of the application as victims and be referred to the Reparations Committee Mr Chairman.

CHAIRPERSON: ... (inaudible) who Mr Prior?

ADV PRIOR: Mr Chairman it's quite clearly set out in both documents.

CHAIRPERSON: As I said during the course of discussion earlier, is Anglo American - are they to be classed as a victim who we refer to the Reparations?

ADV PRIOR: Well Mr Chairman in terms of the acts if persons who sustain damage are victims in terms of the act then certainly property owners may well be victims.

CHAIRPERSON: Have those sort of property owners made any attempt to claim any form of compensation?

ADV PRIOR: I'm unaware of that Mr Chairman. They certainly haven't approached the Amnesty Committee. Well may I ... (intervention)

CHAIRPERSON: If you look at the list of buildings damaged, none of those people as far as you have informed us have approached the Amnesty Committee or taken any steps (indistinct)?

ADV PRIOR: Yes that is so Mr Chairman. Mr Chairman I was simply trying to assist. Apparently there is ... (intervention)

CHAIRPERSON: You refer to individuals who were injured and that is a different matter completely. If one is to start talking about compensation for everybody who suffered loss, I have some difficulty in accepting that, where they have no desire for such compensation.

ADV PRIOR: Mr Chairman may I then amend what I've asked the Committee to consider. Certainly on page 1 of the bundle the victims and next-of-kin were set out, those of the deceased persons and the injured persons. I think that's common cause that all those policemen were either killed or injured and then as far as the persons that were injured, including the civilian persons, that's set out in the second bundle. Simply to refer those names to the Reparation Committee Mr Chairman. I understand that it facilitates the reparations process if the Amnesty Committee has made a ruling in that respect.

CHAIRPERSON: Well it will facilitate our process if you were to let us have a list of the persons that you consider to fall into this category and we can then apply our minds to that.

ADV PRIOR: Thank you Mr Chairman. There are no further submissions.

CHAIRPERSON: I take it you have no objection to that Mr Landman?

MR LANDMAN: Mr Chairman I have no objection to that. I just wish to point out there was a particular gentleman who was present throughout the hearing who has suffered damage and who has taken a particular interest in the matter.

CHAIRPERSON: I think his name was placed on record wasn't it, at the commencement of proceedings and he quite clearly falls into a different category?

ADV PRIOR: Yes Mr Chairman, that's Mr Erasmus and he is present today. Certainly his name will be included on the list that I will submit to the Committee in due course.

CHAIRPERSON: Not only his name, I take it you've had discussion with him and you can supply details. Mr Erasmus can you talk to Mr Prior after we've adjourned. Thank you.

MR LANDMAN: I have nothing further Mr Chairman.

CHAIRPERSON: We may I gather hear from you with a paid reference or two, but nothing else and Mr Prior you will supply us with a list (indistinct). We'll adjourn to consider our decision which will then be announced in due course. We that those of you who have attended the hearings for your patience ... (inaudible) various delays which we have been unable to avoid and we sympathise deeply, as I said in the hearing of the other matter, with both the victims who are present, but more so with the parents who lost the lives of their, I have no doubt, beloved sons in this tragic incident and we have, I speak now for myself and I'm sure for everybody else here, the deepest sympathy and extend our blessings to you.

COMMITTEE ADJOURNS