UNKNOWN
Mr Chairman we have handed out a copy of the Rapholo judgment.   We submit that this judgment is not of any assistance to the Committee on any of the matters upon which it has to bring its mind to bear in these applications.   There is only one matter that I think I ought to put right, and that is that the reasoning of the Advisory Committee finishes at page 687, and there were extracts read to you by Counsel for Mr Beneke, from the reasons of the Advisory Committee to the President.   You will recall that in that legislation the Committee couldn't make a final decision, it could only make a recommendation to the President who had an absolute discretion whether to follow it or not.   Now passages from that Committee's decision have been read to you, and what I would like to draw attention to is at page 687 against the letter D to F, his Lordship Mr Justice Van Dykhorst says this
"As I have set out above, except for the gravity of the offences, I differ from the Committee's interpretation of the guidelines in material respects. The Committee adds further consideration, however, it is that the State President must in the opinion before he grants indemnity, that it is necessary for the promotion of peaceful constitutional solutions in South Africa, or for the unimpeded and efficient administration of justice that he should do so."
      This is what was read out to you.   That comes from the Committee's report, and what his Lordship says, 
" In my respectful view the Committee erred.   The promotion of peaceful constitutional solutions or the unimpeded and efficient administration of justice, are prerequisites found in Section 1.1 of the Act, the section deals with temporary immunity. This application was for permanent indemnity in terms of Section 2, which does not set out these requirements."
      So I don't know to what extent that statement from the Committee can be of any assistance to this Committee.  
	And of course, you might have noticed Mr Chairman that I was on the losing side of that case.   The only ratio there really is that the President doesn't have to give the applicant a hearing, and he doesn't have to follow the recommendation of the Committee.   So I don't know what assistance this judgment can possibly be.
      Now, there are two more aspects that we have to deal with, Mr Chairman, and that is on the question of full disclosure, and on the question of malice, or ill-will or spite, and certain general submissions, and I shouldn't be very long Mr Chairman in completing this argument.
      What we say Mr Chairman, that's its no answer to say what have they got to gain by not making full disclosure.   That begs the question.   The question is, has there been full disclosure or not?   We have to a certain extent addressed you on that issue in broad terms, but what we want to submit is that, for whatever reason, the evidence that is being given is contradictory and improbable, and may we deal with the question of the so-called scuffle.
      In Siebert's application and on the evidence his claims that -
"Biko was initially silent and then began to deny allegations and statements that were put to him.   When Biko sat down on the chair, Siebert lost his temper, pulled him up and suddenly Biko swung at him and Siebert pushed him away."
	There is no mention of the men shouting at each other or fighting prior to Beneke's entry, and we refer here to Siebert's evidence at page 277 to 280.   
      Snyman claims on the other hand that Biko refused to answer questions and Snyman claims that Siebert punched Biko before Beneke entered the room.   You will find that at page 176.   
      In relation to the injury above the left eye, Snyman and Siebert claim that they, in their evidence, they did not notice the mark above Mr Biko's eye at any stage and you will find that in  page 89 to 90 in Snyman.  The evidence of Mr Siebert has not yet been typed, but there is the evidence to that effect.   
	On the other hand Beneke and Niewoudt claim in their amnesty applications that they did see it.   Beneke claims in his evidence that he saw the mark.   You will find the statement in Beneke's application page 20, in Beneke's evidence which has not been typed and in Nieuwoudt's amnesty application on page 42 paragraph 19.
      In relation to the hosepipe none of the applicants who gave oral evidence admit that they saw the hosepipe prior to the interrogation or the scuffle.   See that on Snyman page 109 and Siebert at page 261.   Marx says the same and Beneke says the same.   It's highly improbable we submit, that this hosepipe, particularly taking into consideration the evidence of Mr Jones, that it was standard equipment with statements of calling the one black power and the other green power, attempts at heavy irony or sarcasm in relation to the use of those words by the Security Police.   It is most unlikely that it would have just appeared there out of the blue.   They are really not telling the truth when they do not admit that it was one of their instruments of torture that was there.  And they do not want to admit it  because it would not fit in with their lying at the inquest and lying now, that hosepipes were not part and parcel of their treatment of the detainees.
      Snyman in particular, who was a spectator, denies that he saw a hosepipe there at page 110 and 111.   He must be untruthful in relation to that, because not to have seen the assault on Biko and the blows that landed on Mr Beneke's back are inconsistent with his having told the truth.
      There are contradictions in relation to Mr Biko's behaviour after he was shackled up.   Siebert claims in his amnesty application that he was still arrogant, and that he didn't co-operate after he was shackled to the grille, but contradicts the evidence of Snyman, who does not describe Biko against the grille, but he, Snyman says they were actually able to continue interrogating him. 
	Siebert in his amnesty application in paragraph 13G, Siebert in his evidence at page 287 and Snyman on page 28F, Siebert's explanation to Pretoria that even though he had not had the benefit of advice to be untruthful from Colonel Goosen, he says, he admitted, but demurred only in relation to minor detail that he could not deny in the main the affidavits of Botha, Dorfling and Pretorius that statements which were handed in as exhibits, that he was unable to contradict them in the main.   He therefore contradicts himself with what he said at pages 298-299.  He was obviously untruthful in relation to the state of health of Biko having regard to what the senior prison officials saw.
      Snyman's evidence as to how the detainees should be treated is contradicted, and we refer to pages 84 to 85 in Snyman's evidence.   We submit that what their attitude to detainees is, is corroborated by Mr Jones' evidence. Snyman changes his evidence.   The evidence given on pages 84 to 85 by saying the opposite in 86, as to what the position of detainees was.  
	In relation to the evidence given by Mr Jones.   Snyman says the position of Biko and Jones would have been the same on page 88.  Snyman denies that he ever beat up Jones, page 105 of Snyman's evidence.  He admits that he took part in the interrogation of Jones at page 110, and he denies that he ever saw the hosepipe being used on Mr Jones.   
	He contradicts most of what he says in his evidence, because he admits on page 4 of his application, that he was the leader of the interrogation team, and particularly the team that interrogated Mr Jones.  
	 Mr Beneke denies that he ever met Mr Jones, but of course having regard as to his denial as to whether or not he was part of 
the interrogation team, one cannot reject the evidence of Mr Jones and accept that of Mr Beneke in preference.
      The probabilities that we are relying on that there has not been full disclosure, is that the hosepipe would have been there, unless it was regularly used.  
	The use of punches and whippings haven't been denied having regard to the objective evidence on Mr Biko's body and coupled with the statement of Mr Jones.  
	The restraining of Biko on the grille, and claiming that it was for the purposes of calming him is obviously false, because we know that he was unconscious or semi unconscious.    
	The reason given to the Pretoria prison officials that he had come there for medical observation is contradicted by the evidence that he was taken there so that he would not be seen by any friendly person at Port Elizabeth.   
      The purpose of the detention, and the attempts to connect him with an illiterate pamphlet which was obviously intended to frame him, Mr Titi and Mr Jones, is a matter which ought to be taken into consideration, and  a conclusion should be made and a finding of facts should be made that there were no bona fides in their interrogation, and that there was no truth or bona fide belief that Mr Biko was involved in such activities.   That of course is corroborated by the fact the neither Mr Titi nor Mr Jones were charged and what better evidence for lack of care for the liberty of the individual, that Mr Jones was detained for seventeen and a half months, no charge having been made against him.   
      In relation to the credibility of Mr Marx, he has attempted to disassociate himself. There may be elements of ex post facto attitude.   We submit that the evidence of Mr Jones clearly shows that he was a junior.  He himself said that he was unpopular because he was not prepared to go the whole way, and it may well be that he was a person with some mental reservations, having been brought up before the apartheid doctrine was pumped into people like Mr Siebert and Mr Beneke and Mr Snyman, that he was not as enthusiastic a wrong-doer as the others, but the evidence of Mr Jones should be accepted.    
	One almost contemporaneous statement to be used for litigation purposes was made by him shortly after his release from detention, and the so called discrepancies between his evidence and the statement do not really adversely affect Mr Jones's credibility.   When a person has undergone the ordeal that Mr Jones had undergone, and in relating them he leaves some portion of his ill-treatment out when re-relating it, is not evidence of untruthfulness, but rather nothing more than some of the details are pushed back to one's mind.   There is no suggestion that the printed statement which was published eventually was done for any purpose other than the litigation  and knowing that he would be subjected to cross-examination and he would have to convince a court of its truthfulness, if in fact a case did materialise.  The case unfortunately did not take place because of the advice that his action had prescribed.   
      In relation to the proviso that one is not entitled to amnesty if one acted out of personal malice, ill-will or spite directed against the victim, we submit that this is an appropriate case which this proviso should be put into operation.   The evidence that he punched another police officer, the fact that they would not allow him to sit on a chair because he was a black man, the fact that they lost their temper because he was not prepared to jump up in fear of them when they ordered him to leave the chair, and the lengths to which they went, that they actually beat him up in a manner which led to his death are sufficient factors which are completely consistent with personal malice, ill-will or spite.
      Then, insofar with reference to the two Indemnity Acts is concerned, their emphasis was that there must be an opinion that the granting of the amnesty will lead to reconciliation.   On the facts that have been disclosed, on the lies were told at the time of the inquest, and many of them repeated in this application, and particularly that none of them took personal responsibility - " Yes, I struck the blow or blows that led to Mr Biko's death", must of necessity, we respectfully submit, lead to the refusal of applications of all three applicants, whose applications are now - four applicants, that is Mr Snyman, Mr Siebert, Mr Beneke and Mr Marx.
      The grounds are not to be taken alone, and to summarise the position, if they are to be believed there was no assault, or an act leading to the death.  They were not in good faith, they were not ordered, their act is non-proportional, and they acted out of personal malice.   I think that each one of them is enough, but a combination of them makes it almost imperative, we submit, that the applications for amnesty should be refused.
Thank you Mr Chairman.