UNKNOWN
In his amnesty application Snyman applies for amnesty for assault of Steve Biko and culpable homicide.   That is form one which is part of the bundle before the Committee.   In written amnesty applications Snyman applies for assault and death of Steve Biko and you will find that on page 3 of his application.   In his application he does not admit that he was personally involved in the struggle; he did not touch Biko but "watched the fight", to use his own words -   amnesty application page 5 paragraph 5.
	In cross-examination he denies that he assaulted Biko or that he associated himself in any way with an assault that may have been committed on him or that he witnessed any assault or associated himself with in any manner which may be said to show that he associated himself with the assault in relation to Biko, this is on the evidence page 78,81,82 and 84.
      Mr Siebert applies for amnesty for assault and death of Biko on the 6th September 1997 in Port Elizabeth.   He does not, however, admit to assault in his amnesty application, he admits to -
"..push him away from him by touching him on the chest after Biko shoved or pushed a chair in his direction and lunged at him as if he was trying to slap him".
	That doesn't constitute any assault on the part of Mr Siebert.   He admits to hitting Biko back together with Mr Beneke, after Mr Biko became violent and hit at them; an act of self-defence is not an assault.   
"Punching Biko in the course of a scuffle and in fact a full scale fight in which punches were being dealt out over and again".
	That has an element of self-defence in it and certainly not an assault.   
"That he, Beneke, Siebert and Niewoudt took hold of Biko and moved him in the direction of the corner of their office and ran into the wall with him".
In amplification, in under cross-examination he states that, 
"....that the momentum caused them to move in the direction of the wall and they fell over him and in fact in the process he himself fell against the wall and they fell on top of him and against him".
	He explains his statement in one application by saying that he did not intend his statement to mean that they took hold of Biko.         He disallowed any intention to run into the wall with him, but rather the members of this wrestling, they lost their balance brought about by the circumstances.   This is his evidence in chief on page 282 to page 283.   
	In cross-examination he denies he assaulted Biko during the "scuffle" which we put in inverted comma's.   He claims that he is only responsible for his death inasmuch as he was a participant in the incident in which he was injured, but this was - he denies it - he denies that he assaulted him, and when asked by why he then applied for amnesty for assault, he claims that this is because; firstly, he did not offer him medical attention and he shackled him on the gate.   We submit that neither of these two submissions amount to an assault, nor to a contribution to his death.   
	The denial of medical attention was not for the moment that Mr Siebert had control on his evidence over Mr Biko, the denial of medical attention was that during the days after the 7th, in which not only the Security Police, that is the senior members of the Security Police, and particularly Colonel Goosen, but also the disgraceful conduct on the findings of the Medical Council of Dr's Tucker and Dr Laing.  
	That failure to provide medical attention is not shown to have been Mr Siebert's fault, even his transporting him to Pretoria was probably too late to really be of any help having regard to the stage that he had reached by the time the decision was taken. The probabilities are that, we submit, they took him to Pretoria in order to put him in the hands of the prison authorities rather than have a person that they knew was going to die on their hands.
      In his amnesty application he claims that he was not sure if he was dazed, in the confused state and he says that it was temporary and that he later only chained him in order to protect himself lest he became aggressive again if he became fully conscious.   
	He claims further that after he had been chained to the grid, Biko was still arrogant, recalcitrant and non-co-operative.   This of course is in stark contrast of Mr Marx's evidence that he was disorientated and confused and couldn't see properly, and is also of course consistent with the evidence of Professor Procter and Professor Loubscher that he would have been unconscious for at least ten minutes.   Although Professor Loubscher, and we will give you the reference later to the evidence of the record, concedes as a theoretical possibility that he may not have been fully conscious, you will have to decide, with respect, on the probabilities and the two doctors, and the two professors are in agreement that there would have been, on the probabilities, unconsciousness but that there was a possibility of not being so.   
	The evidence with Mr Marx of course corroborates Professor Procter's and excludes the theoretical possibility that was deposed to by Professor Loubscher.
      Then, in relation to the shackling on the grille he claims in his amnesty application that he put shackles on Biko in case he started fighting again; that on the evidence must be false, if in fact the Professors are correct and if the evidence of Mr Marx that has come in this hearing for the first time is correct.   
	That he did this at the instance of Mr Snyman does not take the matter very much further and that Colonel Goosen arrived to give instruction that Biko must be left in a standing position still doesn't carry the matter any further Mr Chairman.   None of these acts really amount to an assault or an unlawful death.   We refer here to pages 7 and 8 and those are on pages, with a large indication of pages 13F and G  and also to page 288 of the typed record.
      Accordingly we submit that in his evidence, his amnesty application and both in-chief and in cross-examination, Siebert denies that there was an assault and by clear implication denies that he was in any way responsible for the death.   
	What we are saying here Mr Chairman is this; in view of the rhetorical peroration by the legal representative of Mr Beneke - why should they lie!   They are lying because they hope to get amnesty to clear their name and to clear their record, but they haven't got the courage to tell the whole truth; that they actually punched this man to death and they have not had the courage to come forward and explain how the numerous injuries that have been listed by Professor Loubscher were inflicted.   It is no answer to say that Professor Loubscher described many of the injuries as minor.   Professor Loubscher describe them as minor at the inquest for the purposes of distinguishing them from those that had actually caused the death; but one would have expected applicants who wanted to tell the truth for the purposes of at least salving their conscious to tell the whole truth and to give account as to how each one of the injuries were inflicted and to openly admit that he was punched by not merely putting it forward as a theoretical possibility in order to explain the medical evidence, but only when members of the Court when they gave the various possibilities of knocking against the wall; knocking against the table or another piece of furniture, only when they were directly asked whether the possibility of a punch having caused the injury that led to his death, is it conceived as a theoretical possibility.   
      Mr Marx is also in the same category in the sense that he has not admitted to an assault or causing the death that is to any act or omission amounting to an offence or a delict.   He applies for assault and culpable homicide.   In his amnesty application he claims that he left the room in which Siebert was, whilst he went to the next room and he heard loud voices and noise.   He rushed to the room, and that he immediately tried to help to control Biko and joined in the whole group, fell on one another .   He soon went out of the room, you will find this in his application page 23E.
      In his oral evidence before this Committee, Marx claimed that all that he had done, was to grab Biko from behind and on the waist in order to try and stop the fight.   He does not admit to an assault or culpable homicide.   He had no idea that he should apply for amnesty, but he was asked to do so by Mr Niewoudt, who of course may have, having regard to his other applications, may have a different agenda to Mr Marx.   
      As far as Mr Beneke is concerned, in his application form he applies for amnesty for murder and assault. There is a slight variation on page 9 of his application in which he speaks of assault and death.   In his application he claims that he was coincidentally in the adjoining room where Biko was being interrogated and although not a part of the team he went and he saw Biko and saw a chair, and he saw Mr Siebert hitting in the direction and formed the impression that Biko was going to assault Siebert.   He was in the room, pushed Biko in the stomach with his shoulder, and pushed him against the wall.   There was a scuffle and punches were slung.   In this struggle Biko banged his head against the wall and landed on the floor.   He has no intention to bang his head against the wall, it was as a result of the struggle.   "He would also have banged his head against me", he says.   
      In his oral evidence Mr Beneke denied that he punched Biko.   He claimed that he had only acted in order to protect Siebert.   He only acted to, he says, to assist Siebert and Biko.   He does not admit to an assault, nor does he admit to any act or acts which caused his death.   
	So then, if we apply the facts deposed to by them to the requirement of Section 20(2) of the Act which the Committee has to administer, none of them admit to having committed an assault nor to have contributed to the death of Biko.   They have made their bed, it is their evidence, whatever motive they may have had or applying for amnesty, and I have suggested the one of expiation when they are truly not entitled to it by telling a mass of untruths, they certainly do not pass the first requirement in sub-section 2 of Section 20.
      Now in deciding the requirements set out in the sub-sections of sub-section 2 of Section 20 Mr Chairman, you are required to consider what is set out in sub-section 2 A-F and the proviso, particularly proviso 2 at the end of sub-section 3.   We will turn to that subject now.   
	The question of motive!   And what we submit is, that while on the applicants' version the motive of the detention was to serve to obtain information this is to be distinguished, we submit from the motive for the assault and the causing of the death.   
	May I pause there for a moment Mr Chairman and members of the Committee, and let us confine ourselves to the facts of this case and pick up an answer given by Mr Beneke during the course of his cross-examination.   He said that -
"If I am interrogating someone, and he is not being responsive; and I am in a hurry to obtain information from him because I reasonably believe that he has set a bomb where many people would lose their lives; I would have been entitled morally, at any rate, to assault him or put unlawful pressure on him in order to disclose the bomb which I knew would go off in a short while if we did not find it and defused it."
	Those of course are interesting facts, and the Committee if had those facts would to apply its mind to those facts as to whether that was acted bona fide and whether it was a legitimate response to a situation by committing an act or omission with a political objective.
      But those are not the facts in this case.   Mr Biko was arrested on the 18th August.   He was allowed to rot in a cell, naked and ill-treated and he came to the room and he was beaten as a result of which he died.   Those are the facts!   
	Of course Mr Chairman you have had a submission that we do not know what happened to Mr Biko, from the 18th August to the 6th September, but then there is an admission from Mr Snyman, who in cross-examination admitted that we can assume that what the manner in which Mr Biko was held in detention before he was brought to Sanlam Building, the interrogation room on the morning of the 6th, would have been no different to that which was meted out to Mr Jones.   
      Perhaps it is an appropriate time to deal with the question of the admissibility or weight to be attached to the evidence of Mr Jones as to what pre-interrogation treatment was meted out during the softening up process of the detainee.   We submit that the evidence is both admissible and of value in deciding what the facts in this case are.   
	Reference was made by our learned friend to the Letsogo case.   He is correct that it is the leading case on the subject.   It was the case that I had in mind when I addressed the Committee without the benefit of the report before me.   I would now ask for leave to hand in three copies of the Letsogo judgment which we submit is particularly apposite to the facts and circumstances of this case.
      Mr Chairman this was an appeal in which the learned Judge of first instance had decided that complaints of people being interrogated by an interrogation team, were decided by him one at a time.   They all objected that they have had statements extracted from them by force, but the Judge of first instance said,  "well each person had to tell his own story"; he listened to the story of each one of them; rejected the story and of course the complaint was that he was wrong in doing that.  He should have taken the evidence of each one of the persons who gave evidence together with the evidence of other people who said that they had been similarly treated.   The head note, the last paragraph reads that, held -
"That if a body of those Bantu had given credible evidence of that system and said that they were assaulted in the course of its application to them, during a period of two weeks after their arrest, there would have been a sufficient nexus in respect of proximity of time; of method and of circumstance, at least to add weight to their other evidence that had also happened to the applicants".
      And if, Mr Chairman we turn to the  ...(inaudible) in this case at the bottom of page 774 against capital letter H, the following is said by his Lordship, Mr Justice Holmes whose judgment the other two judges of Appeal concur.   At the bottom of the page it is stated,  
"The basic principle applicable in this case is that evidence is admissible if it is relevant to an issue in the case."
"Relevancy......."
 said Shriner JA in R v Matthews and Others 1996 (1) SA752 (AD) at page 758,
".... is based upon a blend of logic and experience lying outside the law.   The law starts with a practical or common sense relevancy and then adds material to it, or more commonly excludes material from it.   The resultant being what is legally relevant and therefore admissible.  To warrant the legal relevance and the admissibility of what is called " similar facts", there must be a sufficient nexus between the evidence sought to be led and the issue in respect of which it is sought to be led".
     As was said by Lawrence J, R v Bond (1906) 2 KB389 at 424  
"In proximity of time, in method or in circumstance there must be a nexus between the two sense of facts otherwise no inference can safely been deduced therefrom."
The passage was approved by this Court in S v Green 1962 (3) SA 886 (AD) at page 894.   
"To sum up so far in the present case the issue in the trial within the trial was whether the confessions were freely and voluntarily made, which involved the issue whether the appellants had been assaulted by members of the Police Sabotage Squad.   It was sought to leave evidence of a concerted modus operandi on the part of the Police Sabotage Squad, an investigational system which included assaults and was applied to all Bantu who had been arrested and charged in respect of the alleged offence in this case.
If a body of those persons were assaulted in the course of its application to them during the period of two weeks after their arrest, it seems to me that there would be a sufficient nexus in respect of proximity of time of method and of circumstance at least to add weight to other evidence that also happened to the appellants".   
	Now we have the body of Mr Biko given evidence by way of the injuries listed by Professor Loubscher, and we have the evidence of Mr Jones who says what happened to him. We have the admissions of an applicant whose application has been postponed that this hosepipe or hosepipes were used on Mr Jones and we find tramlines on the back of Mr Biko's body.   It is true that if we had more of the people that were interrogated in that room the inference may have become stronger, but the two are sufficient for the purposes, we submit, because the indisputable evidence of injuries on the back of Mr Biko's body are corroborative of Mr Jones as is Mr Jones's account corroborative of how these gentlemen went about treating people that were under their power.   
	It goes to the whole question of motive, of full disclosure and the other factors, but because we are going to rely on Mr Jones evidence for various purposes, we thought it convenient to address you on its admissibility and cogency at this stage.   
      Now what we say about motive which is the first of the requirements under sub-section 3 that has to be looked into, we say, while on the applicants' version the motive of the detention was to obtain information, this has to be distinguished from the motive for the assault.   The applicants do not claim that if they did in fact assault him, that that particular assault was intended to exact information from him.   None of them said that the assault, ill-treatment or deprivation of medical attention was in order to bring about the furnishing of information that he was withholding.   That evidence is just not there!   So that talking about low intensity civil war and obtaining information, that may be important, but for another case; for another set of circumstances.   They didn't assault him and they did not deprive him of medical attention; they didn't shackle him for the purposes of getting further information from him.   We must look at the facts as a whole and find another motive for it.   It was not for the purposes of obtaining information.
      On their evidence at best for them they punched him, pushed him, may have accidentally inflicted injuries to his lips and head in a "scuffle", which caused brain damage; and whipped him because of an argument which began as to whether or not he was entitled to sit on a chair.   That is why he was assaulted.   Not for the purposes of getting information.  And what this Committee has to decide, is this the sort of motive for which, on this test or any of the other tests, that because their white pride was insulted by a black man claiming the right to sit on a chair, that he should lose his life - that is the issue in this case.   Not the low intensity civil war; not what happened with a Security Policeman out in the field killing, as we were told, two wounded guerrillas because if they were not killed they might recover and continue the struggle.   Those cases and those principles have got absolutely nothing to do with this case.   
      I will deal with the questions raised in the Rapholo case Mr Chairman, and we will hand in copy in order to show that the arbiter dicta of his Lordship, Mr Justice van Dykhorst, may be interesting, but when you look at the facts of that case, the case actually supports our contentions rather than negates them, but we are making copies of the case and we will hand it in and we will address you further on the Rapholo case in due course.
      Mr Chairman, Mr Snyman's amnesty application talks about the chair on page 5, Mr Siebert on 13F, I am sorry, Mr Snyman's evidence at page 156 of the record as to the same affect, Mr Siebert's evidence on page 277, says that he did it because he lost his temper - he lost his temper that Biko sat on a chair.   And far from Mr Biko being the aggressor generally speaking it is he who loses his temper and whose pride is offended that becomes aggressive.   There was no reason, on their version, for Mr Biko to become angry.   It is possible of course that after they started beating him up; punching him on various parts of his body; you will recall the evidence in the medical report that there was tenderness and bruises on his chest.   It may well be that he would not take kindly to being assaulted and it may be that there was a scuffle, but not for the reasons that they have given or the manner in which they say it started.  
      Marx on 23D says that insofar as he was present that that was the reason for this scuffle and in any event he condemns his colleague for losing his temper and behaving in an undignified way towards Mr Biko.    Mr Beneke's amnesty application supports this that this was the motive for this was because of the man wanting to sit on the chair on page 20H of the application and he says that he was out of the room at the time that it started.   
	There is another difficulty in relation to motive and that is introduced by the contradiction between Siebert and Beneke. On the evidence of Siebert, matters were being normalised between him and Biko when Beneke came rushing in and grabbed Biko.  There is some support for this in 13F, in Siebert's application, but it was categorically stated when Beneke was questioned by a member of the Commission, Advocate Potgieter, where he said that matters were calming,  normalised and they were calming down when he suddenly appeared and re-started what may never have been now happening by tackling Mr Biko.
      Mr Beneke's evidence is that his intention was to assist his colleague, Mr Siebert, whose evidence says in any event he did not require assistance.   You will find the references to this on page  13F and 20H, and also you will recall the evidence of Beneke conceding that it may not have been necessary for him to intervene as he did, and of course the tell-tale response by Mr Beneke, he had heard the rumour or report that Mr Biko had hit a Security policeman in King William's Town, without knowing whether it was in self-defence or not.   He joins the fray, influenced on his own admission by this hearsay knowledge that he had.   We would ask that is it not an unreasonable inference to draw that this pack of Security Policemen were game to make sure early in the morning of the 6th,  that Biko could do that in King William's Town, but  he was now under the authority of the mighty Security Police in Sanlam Buildings and they would call the shots and they started repaying the debt that they owed to their colleague who was punched by Mr Biko.   He conceded that he probably would not have been involved at all in he hadn't heard of this report.   
	But what has that motive or non-motive got to do with the overall struggle, saving South Africa for Western civilisation capitalist system or any of the other, what I would submit as irrelevant slogans which are introduced into these applications that have no bearing on the facts.   
	There is in fact no clear and uncontradicted evidence that Biko had refused to answer questions that the act or acts for which amnesty is being sought had started.          
	 We would refer to the evidence of Siebert at page 277, where it is said that Biko denied some claims and the evidence of Snyman  156.   He says that he was resistant and didn't want to answer any questions, but the evidence is not that he was hit for that reason.   The reason was because he sat on a chair.   
	If on the other hand Mr Chairman, the reason for the act of assault or beating up was for the purpose to soften him up in order to succumb to the applicants' will, and give them the answers they required in connection with the interrogation, then they have not told you the truth.   They have not made full disclosure.   They have not advance that that is the reason for the assault.   And they are not entitled to amnesty and their applications must be refused on the ground that they have not made full disclosure of the facts required in terms of Section 20 1C.   But we will develop that further when we give a more complete picture.
      Then sub-paragraph B the context in which the act, omission or offence took place, and in particular whether the act or omission or offence was committed in the course of or as part of a political uprising, disturbance or event or in the action thereto.   What is submitted in relation to that Mr Chairman is that on their version there was no political uprising, disturbance or event to which the applicants reacted.   They reacted to his persistence to sit on a chair.   Not to any political uprising, disturbance or event to which the applicants reacted.   The applicants reacted initially to the event of Biko sitting on a chair, and the manner in which he pushed it away from himself.   
	Now the picture one has if one takes the evidence as a whole, that whatever Biko did, seemed not to have achieved its purpose.   He pushes the chair, but he doesn't touch anybody.   In fact, what one has in one's mind when one hears their versions contradictory, and at times very thoughtfully and slowly given.   The pushing of the chair is equally consistent with a stage haven't been reached to Mr Biko saying, here's your chair, so worried about it, here you are, have it.  
	How come the chair didn't touch anybody he is accused of having punched at Siebert, that doesn't land.   We are told that there were punches exchanged.   He didn't manage to land a single one of them.   We submit that the evidence of Snyman page 156, Siebert at 177, where the one says that he refused to get off the chair and that Siebert says that he lost his temper; that is the context in which the act is to be adjudged and not this sloganeering about saving South Africa "vir God en Vaderland."   
	There was accordingly, we submit no reaction to a political uprising, disturbance or event.   They were not reacting in a broader political sense that Biko was involved albeit not non violently.   The argument that the Committee has heard has a fundamental fallacy in it, the argument from my colleagues acting for the applicants.   What it does amount to is this, that if a Security Policemen smashes to death a person involved in politics, then that is a political act and he doesn't have to explain or answer anything more.   That's not what the Acts say; that's not what the law says; that is not the function of this Committee.   
	The reaction that the applicants depose to was a minimal situation created in the interrogation room which was far removed from the political situation in the country, but it was the expression of the will of those in control of that interrogation room, who on the evidence had taken upon themselves to do as they please with the life of a human being.  What they reacted to, is to be found in Siebert's evidence 277 to 278 and in Snyman's evidence at page 157 to 158.  May I remind you of what this - what they were reacting to, Snyman at 157 - 
In the background in which you grew up and in which you had training, we are not talking about now when you professed to be a democrat, but at that time, was it your general view that a black man had to obey an order of a white man, particularly a white man who was in the Security Police?
Your Honour, according to the State system or State order of that time it had been our thinking that it is the way that things should be done"
	That's why they did it!   Yes, your state of mind at that time and having regard to the words that you used in your application was that the late Mr Biko was stubborn, " parmantig" and too big for his boots for a black man.   Your Honour, that was the case.   That is the impression that he created to for us.   That he did not really want to listen to us.   How far removed is that for the acts or omissions or crimes or dealings having been committed for the purposes of a general political motive to save the country from terrorism?   
      Then if we may turn to the next requirement.   The legal and factual nature of the act, omission or offences including the gravity of the act, omission or offence.   The nature of the act is that Steve Biko died as a result of brain damage caused by a blow or blows to his head.   The amnesty applicants and their oral evidence do not disclose a clear explanation as to how, when or by whom this injury was sustained.   That's the crux of the matter.  The legal nature of the act isn't clear on the applicants version. All the applicants applied for amnesty for are the assault on and either the murder, culpable homicide or death of Steven Biko, yet none of the applicants in the amnesty applications. or in evidence before the Committee admit to being guilty of assault, culpable homicide or murder or give a clear account as to how these things happened.   
      The act resulted in Steve Biko's death. A strong healthy comparatively young man in the custody of five Security Policemen.   Before they get amnesty they've got to say who inflicted the fatal blow.   They have evaded it, they covered it up then at the inquest, ,and they are covering it up now.   It is only as a result of a direct question that they even give as a possibility that one of the punches above the left eye may have led to the ....(inaudible) injury and the four lesions in his brain that led to his death.   They all shy away from it, they cannot get amnesty unless they come clean.   
      Then we deal with sub-paragraph D of Section 20, sub-section 3.   The object or objective of the act, omission or offence and in particular whether the act, omission or offence was primarily directed at the political opponent or State property or personnel or against private property or individuals.   Although Biko was a political opponent of the applicants and sadly one would have to admit that the police were not merely to be regarded as upholders of the law, but as political opponents, he was not what may be called in their terminology a "terrorist" in their amnesty applications, because they themselves in answer to questions they had not taken the trouble to inform themselves what his political organisation, the BPC stood for; what Black Consciousness stood for; what he was doing at or about the time that he was arrested.   He was a political opponent, he was therefore a terrorist.   There is a non sequitur whole, the whole of this situation Mr Chairman.   You will recall that we put to Mr Snyman his application for amnesty in the case of the Goniwe, Kalata and two other deceased and the Pebco 3.   The reasons that he gives for having killed Goniwe and the three others and the Pebco 3 are almost a carbon copy of the reasons that he gives for the death of Biko.   It shows the lack of thought or appreciation of the differences in the two situations in the furnishing of the reasons for the acts performed.   
      There was no distinction to be made between civic leaders like Goniwe and the Pebco 3, Khalata and the others and the men who wielded AK47s and were doing battle with the Security Forces.   	Then in relation to the fifth sub-paragraph D, was the political objective.   The applicants in their written applications duplicate each others reasons, which were framed in a vague and broadly worded security police jargon which may have been useful slogans at the time but do not attempt to address the requirements of the legislation which the Committee is administering.   We would submit that a careful perusal of those documents shows no clear, coherent or consistent political objective related to one or other of the acts committed by the applicants.   In giving their oral evidence it was apparent that the applicants had little actual knowledge of the aims, ideals, activities or the moral standing of Mr Biko.   They were blinded by their own prejudices which they repeat in their applications in insulting words, such as "terrorist" and other words completely inappropriate to the person whose death they brought about.
      They have just or not have any idea what the groups with which Mr Biko was associated  were about.   If they had applied their mind to it at all the words in these applications would have been completely different. 
	Then E, Mr Chairman, whether the act, omission or offence was committed in the execution of an order of or on behalf of with the approval of the organisation, institution, liberation movement or body of which the person who committed the act was a member, an agent or supporter, and of course Mr Chairman, you will have to have regard in view of some of the argument that was submitted to you about objectivity and subjectivity with paragraph F of Section sub-section 2.   Any person referred to in B, C and D who on reasonable grounds believes that he or she was acting in this course and scope of his or her duties, and within the scope of his or her express or implied authority.   
	And also to read with 3E the concluding words in sub-section B and which was committed bona fide with the object of countering or otherwise resisting the said struggle; or C bona fide with the object of countering or resisting the said struggle.   It would be a contradiction in terms in our submission Mr Chairman to say that where the requirements of the existence of reasonable grounds and bona fides in the legislation to say it doesn't really matter what the reality of the situation was, the subjective state of mind of  the applicant was different.   We would submit that it was not the intention of the legislature to give credence to the views of bigots who put blinkers on and would not look beyond their nose as to what the real situation was.  	And in this regard we say it on the facts that on the version of the applicants was not a spontaneous response to certain actions of Steve Biko and who could have not been committed either in the execution of an order or with the approval of the State.
      Mr Siebert, who although Mr Snyman's junior, seems to have been the much more committed ideologue and active participant in wrongdoing than the older and apparently more retiring Colonel Snyman.   Siebert decided how he was going to deal with the situation and his less committed friends made themselves party to it.   
	None of the applicants can quote or name anybody in their church or their National Party or anyone in their police force that a detainee was not allowed to sit on a chair.   It may be, but they took it upon themselves to make them stand on bricks as part of this torture process and it may be that their colleagues are quest in it, but the evidence was that at that time, at any rate when Mr Vorster was still Prime Minister, the people of South Africa on the evidence were told that those detained were not ill-treated, they were not assaulted and that the political opponents and Human Rights Organisations who in many instances  was the same thing, must stop making false allegations against the Government.   There was nothing illegal being done to any detainees and we were told that the decisions of the Appellate Divisions and the Provincial Divisions that there was to be no assault and no ill-treatment of detainees were respected.   That is the period in which Mr Biko's death took place.  Not what was said in '85 and '86 about total onslaught and total responses and attempts being made by the Army and the Supreme Court application in the middle 80's that the law didn't apply to them because there was a declared war and even then they were thrown out of court by the Cape Provincial division that they had no right to do that or to even think about it.   In the 80's even they would never have had the temerity to put up such an argument in the 70's.   
	They, Siebert and Co, made themselves a law unto themselves.   They're not obliged to apologise or to feel sorry for it in order to get amnesty, but the absence of course of anything of the sort from any of them indicates their present attitude.   
	Reference was made to the Indemnity Acts.   They were different acts, the discretion was really a discretion of the President, then President De Klerk, but if they are to be applied, the primary purpose that was to be achieved was reconciliation.   Those who got indemnity from him often had to sign an undertaking that they regretted what they had done, but that of course is another matter.
      The applicants cannot name the person in the National Party, who said anything about the methods to be used and Snyman at page 113 confirmed this and Mr Beneke told us yesterday that no one had told him that he or anyone else could deviate from the standard orders or legality.   
	And furthermore the applicants cannot name any person in the service of the police who said, that to break the resistance you must take hosepipes and beat them up, not even Mr Goosen.   
	Then of course there is the question of proportionality in sub-paragraph F, Mr Chairman.   On the evidence of the applicants the hitting of Mr Biko or punching him was known by them to be an offence to be contrary to their instructions, and has to be compared with the wrong that he did, namely to sit on a chair.   On their own evidence the punishment meted out to him was cruel and inhuman punishment and had little to do with restraining.   There is of course the possibility that if there was a scuffle that it was a scuffle as a result of Mr Biko trying to avoid the vicious assault that was being perpetrated on him.   It may well be that Mr Beneke's evidence that he got two blows with a hosepipe is consistent with one member of this team and that his actions are not to be excluded merely because his application is no longer before you; because obviously they were acting as a pact.   The probabilities are that Niewoudt had gone berserk and he was hitting out on Mr Biko's back indiscriminately.   The shackling him against the grille, crucifixion style could not have had anything to do with restraining him from attacking them again.  It was conceded that even if he had been fully conscious, which he was obviously not, his brain had been smashed, one handcuff against the grille would have been sufficient restraint to avoid the consequences that they say they feared.   
      If indeed they wanted information from him, there was no particular hurry in getting them as we indicated earlier.  They could have used less cruel and inhuman methods than shackling him up in that fashion.   
	Mr Chairman you will find the passages in the record on the matters that we have now mentioned, on pages 112, 119, 121 and 207.   Then the injuries that were found on Mr Biko's body are to be found in Volume 16 in the evidence of Mr Loubscher on page 1189 to page 1190.  And there were among others a serious injury above on the forehead - the left forehead; bruises on the rib-cage; injuries apparently caused by a sharp object; abrasions to his wrists and ankles; injuries to his toe, where it appears as if he had been pricked with a needle; all the injuries can be counted on the report Mr Chairman which is Exhibit D.   The probabilities that he was the aggressor and those against whom his aggression was directed came out unscathed, except possibly what Mr Beneke told us.   Not very clear as to how it happened.   It is so improbable that it should be rejected.  
	And it's important to have regard what the results of these assaults were.   All the pathologists agreed Mr Chairman that there was a contra coup injury.   We refer you to Volume 18 page 1291 of the Inquest Record and Volume 16 1154 that this large lesion to the brain directly opposite the left temporal front injury on the forehead; that it was the opinion of Professor Procter that contra-coup injuries are caused by a rotational mechanism and that the lesions were too widespread and that there were too many of them to be accounted for by a rotational effect.
	In particular Professor Procter's evidence was that the lesion 1 on the right and the lesion 2 on the occipital of the head could not come from one single blow, because lesion 2 was not directly opposite the blow on the left forehead.   In his opinion it was a contra-coup, then the blow responsible for it would have been the left, but on the middle of the head and not above the eye.   The references to this can be found at 1297 in relation to Professor Procter and we ask you to compare the evidence of Professor Loubscher at 1156 and 1162 of the record.
      Professor Procter's view was that if the lesions were to be accounted on the basis of one blow and the rotational force, then the degree of duration of the unconsciousness would have been greater.  Mr Chairman you will find that on 1307.  And that in his opinion there were three applications of force to the head.  You will find that on page 1315 of the record.   The lesions on the lip appear to have been of insufficient force to have produced any intra-cranial complication.  You will find that evidence of page 1307 and 1315.  	And you will find Mr Chairman, that Professor Loubscher on the references given to you previously is in substantial agreement with Professor Procter, although being a state pathologist and dealing with matters beyond reasonable doubt, he cannot exclude the possibility that there may have been a less number of blows.  	Which leads me to a submission Mr Chairman that in an inquiry such as this, there is certainly no onus on us to show precisely what happened.   There is an onus on the applicants to produce evidence as to what did happen, not beyond a reasonable doubt, we agree that it has to be the civil test which is on a balance of probabilities, but what we submit is that they have made no attempt whatsoever to bring any evidence as to how these injuries were caused and they were there. Others may be entitled to speculate - they cannot speculate before the Committee and give mere theoretical possibilities that these injuries came about as a result of the assaults they committed on Mr Biko.   
      I see Mr Chairman that we have exceeded the period and I still have a number of pages of notes and also we hope to make a copy of the Rapholo case to hand in and address you on it.