ADV BOOYENS
Yes, M'Lord.   Mr Chairman I ask leave to hand in, in the time available to me,  rather cryptic Heads of Argument.   I've got three copies for the Bench and copies for my learned friend, Mr Bizos and for the evidence leader and a copy for the ......
	Mr Chairman and gentlemen of the Committee, I do not propose reading my Heads of Argument onto the record, I've always thought that was to be a waste of time.   
	In paragraph one we just deal with a very brief introduction of the facts.   It is really a complete summary, or not a complete summary, a very brief summary as to the events which culminated in this.   Thereafter we deal with the applicant, Mr Snyman.   
      Now in a nut-shell what we are saying about Snyman, is the following:   Snyman is an old man, he is not a man in good health.   He was testifying about events which occurred at the time, just about twenty years ago.   We should remember that Snyman, and I will concede that there are points of criticism against Snyman, but in essence when all is said and done Snyman was cross-questioned, as my learned friend is fully entitled to do of course, about very fine details.   
	Now one always hears the argument but this was an out of the ordinary event and for that reason you should be able to remember better.   But M'Lord, if one was, for example involved in a motor accident about twenty years ago, where somebody was killed, and if I'm asked exact details about that today, and my brain is still in reasonably good health - my brain is still reasonably active, even I would have some difficulty in remembering details.   I think one must take that factor into account; that he was asked detail, he was crossed-examined for a long time and for that reason there are certain points of criticism against his evidence.
      Nevertheless, Snyman persistently stuck, in essence, to the version of the scuffle.   Obviously it was a moving scene; there was one of the examples one can remember as at one stage he said his head hit the wall and then it appears that he actually heard something which he thought was the man's head hitting the wall, but in essence his version remained the same.   For that reason, as we deal with it more fully in our Heads of Argument, we would submit that we cannot for that reason just outright go and reject the evidence of Snyman.   
      The evidence of Mr Siebert which where he had the disadvantage of giving evidence and then having to continue his evidence some while later, of course apart from the fact that he's got youth on his side, suffers from the same problem of the effluction of time.   
	We submit that Siebert was frank and what he said to the Committee, he readily admitted that he was, it was actually his behaviour which induced the whole incident - the whole scuffle.  If he did not tell the deceased to get up and pulled him upright, the fight wouldn't have started.   
      What we should remember Mr Chairman, and what we cannot get past is;  if this is not a trial, these people are not being charged with something; they are not trying to defend themselves against something, if it was a trial, an argument such as you're trying to water things down, would have some conviction, but we are dealing with a completely different process. A process even if this investigating team did beat up the deceased, and if he was hit with fists and so on during the course of the interrogation, they could still have approached this Committee and say to this Committee, "we did it for a political purpose".  
	And then one must ask yourself the question, why would they water it down?   In fact, one may go further and one may even say to them, "you know, if you water it down it may not sound as credible if you say what people perceive to have been, would have been the Security Police's behaviour", but nonetheless, they insisted that this is what happened, and for that reason that is a factor that we've got to take into account.
      M'Lord, we cannot with respect, because we hold certain beliefs as to how the Security Police would have acted, hold that factor and say that they would have acted that way.   
	Furthermore one should not lose sight of the fact that had the incident not occurred; and I'm talking about the scuffle and the fall, and had the interrogation proceeded over a long time, and I'm just - we are speculating, but then indeed the methods, the third degree methods oft used to adduce or get information out of detainees might have came to the fall, but because the deceased got injured very early on in the proceedings, that next stage, if one wants to call it a stage, never occurred.   
	It is for that reason that we submit that in fact Mr Siebert has not been demonstrated to be deliberately untruthful and for that reason also in his instance, we would submit, that there has been full disclosure to the best of his ability and that I want to make very clear M'Lord. If any one of us here today has to make a full disclosure about an incident twenty years ago, at best it can be to the best of your ability, bearing in mind that it was twenty years ago.
      Mr Chairman, the applicant Mr Marx, I describe him as an outstanding example of frankness and honesty and that is a submission which I submit is one that I've got every right to make; is that, at no hesitation of saying, I wasn't happy with the fact that the deceased was chained to the grill afterwards.   I wasn't happy with the way things were developing and I went to Goosen and I said to Goosen I want to withdraw from this lot.   But the important bit in the evidence of Marx is simply the following.   Marx, who in our submission is an honest witness, tells us:
" I hear raised voices; I go back to the office and then I notice a scuffle..."
which he doesn't claim that he saw how it started,
"I noticed a scuffle going on between the deceased, Beneke, Niewoudt and Siebert, I joined into the scuffle."
	The significance of that is, Mr Chairman, that Marx with very good evidence strengthens the version of the other applicants that there was indeed a scuffle.   Now, Mr Chairman, once we accept that there was indeed a scuffle, then one should not make the error of entering into the field of conjecture and speculation and expecting minor details.   
	Mr Chairman, if a fight between four people breaks out in the centre of the stage now, and all of us are required to describe in minute detail ten minutes later what happened, it is highly unlikely that our detail would also differ.   And it is for that reason that we submit that once we accept the fact of the scuffle, once we accept the fact of people falling, there is the one aspect which has caused a lot of cross examination from our learned friend, the phrase was used "in die muur met hom vas gehardloop", but once again as so frequently happens with pleadings, the use of a single word can sometimes connotes something different but at the end of the day one must look at the totality of the picture.   
	My learned friend himself, has adduced, has put to the witnesses the size of the room.   The room still had furniture in it.   And once we take that factor into account most certainly then to really be able to talk of  "hardloop" or run into a four metre space, M'Lord that by itself indicates that it was perhaps not quite as elegantly phrased, but then the witness is qualified.   Marx made it clear what happened.   They were wrestling and they fell towards the wall.   Siebert made it clear.   There was never a question of the man being run deliberately, one got the impression that there was an effort to convey  that one had the situation that one sees sometimes in this big rate movies of a man's head being used as a battering ram against the wall, but that is evidently not what happened, and once again I would urge your Lordship - Mr Chairman and the other gentlemen Commissioners to look at the totality of the picture as sketched by all the applicants.   So we would respectfully submit that there has indeed been full disclosure.
      Now, Mr Chairman, in dealing with the evidence of Mr Peter Jones, I understood yesterday that my learned friend says that Mr Jones's evidence is introduced on the basis of similar fact and  is admissible for that reason.   We would submit that in fact, I am aware of the cases such as Letsogo and others 1964 (4) 768.   The reference is contained at page 8 of my Heads, that was followed in a later '80 case which I'll give your Lordship just now, but the principle in Letsogo was that similar fact where a certain group of policemen were involved in using certain third degree methods to extract confessions from detainees, the evidence of other detainees could be used in support of the evidence of those who wished to challenge it.   But what of course makes this different Mr Chairman is, that in this fact Mr Jones' evidence is not similar fact evidence, because similar to which facts?   
      There has not been one bit of evidence that Mr Biko had been visited at the police cells at night; there has not been one bit of evidence that Mr Biko had previously been interrogated; there has not been one bit of evidence that Mr Biko had earlier on been treated in the way by standing on bricks, by trying to make him exhausted, so what we are really, what the Commission is really being asked to do here is to make a finding that because Mr Jones was treated in a certain way, Mr Biko who was a detainee at this stage would have been treated in the same way, and I presume per inference, one can then perhaps argue and say all other detainees that were there at the time would have been treated in the same way, but we heard nothing from the other detainees.   And for that reason we submit that it would be extremely dangerous to place any reliance into make a finding that Mr Biko was deliberately assaulted on the evidence of Mr Jones, and we would persist in our attitude that for this reason Mr Jones's evidence does not meet the norm for admissibility of similar fact evidence and his evidence about assaults should be ignored, at least insofar as the assaults go to prove that the deceased was assaulted.   
      I presume it could be argued, I don't know, but if you deny that you assaulted him, you're not making a full disclosure but that with respect is also wrong because Mr Jones was a separate incident.   If they did assault Mr Jones then they can be charged for it.   They haven't applied for amnesty for assaulting Mr Jones.   They cannot get amnesty.  If they walked in here and they gave evidence on the way the applications stand at the moment, and they gave evidence and said under cross-examination by my learned friend for example, "yes, no we did assault Mr Jones, we beat him up", then they couldn't get amnesty for assaulting Mr Jones because they haven't applied for it, and full disclosure ins far as the Act is concerned surely can mean only full disclosure directly relevant to the incident complained of.
      Mr Chairman I do not want to deal at length with Mr Jones.   We have dealt fairly fully on pages 6,7 and 8 with what we say, have to say about his evidence.   We do criticise him in some regard, but our primary submission is that it is not even necessary for the Committee to consider that evidence.  And for that reason it is only should the Committee hold, that in fact the evidence of Mr Jones can be used for either of the two purposes I mentioned, then we would ask the Committee to look at the criticisms of him as a witness.   We submit that we do not get to that stage even.   
      Mr Chairman as far as the political motive is concerned, we deal with that in our Heads as well.   In summary the resondre en tre(?) for the existence of a security police in this country or a similar type of police force in any other country in the world is to protect that government against those forces which tries to overthrow it or to effect its effectiveness and which tries in whatever way that the Government of the day perceives to be an improper way.   One cannot go so far as to say that the Government that governed this country in 1977 was a minority government and for that reason because the government did not have legitimacy in the eyes of the majority the acts of the Security Police trying to keep that Government that lacked legitimacy into power can for that reason never be politically motivated.   
      Why, we must ask ourselves, did the paths of Mr Steve Biko and the Security Police cross?   Those paths crossed because Mr Biko and others like him believed that the Government of the day should not be governing the country; they believed that a more representative Government should be governing the country and for that reason they resisted the Government.   The Government used it's laws to react to that.   They caused a banning order in the King William's Town District to be served on Mr Biko.   They prevented his freedom of movement.   They arrested him.   
	Their forces were under instructions that they must take steps against those which the Government of the day perceived to be a threat to its security.   That filtered down to the policemen on the ground, the front line soldiers of apartheid one would call them.   They had to take the battle to the enemy in a manner of speaking. And it was during this confrontation, and the only reason why there was this confrontation, between Mr Biko on the one hand and the Security Police on the other hand, is because the political interest that the Security Police sought to protect, in their perception the Security of the State, and the ability of the State to continue governing, and the interest of Mr Biko and those ideals he stood for that says, "but that State is not a State which could legitimately govern this country".   Those two interests clash and the point of impact was at Sanlam Building in Port Elizabeth.