Amnesty Hearings

ON RESUMPTION

CHAIRPERSON: Mr Booyens, had we finished the evidence in-chief of Mr Siebert?

MR BOOYENS: No, I have not, Mr Chairman. It, in fact, appears that there are still a few minor aspects that we have to deal with, but before I deal with that there are just two aspects which, I think, we should deal with at this stage.

The first refers to the applicant, Mr Harold Snyman. I am in possession, this is a photocopy, but I am in possession of an original medical certificate, as far as he is concerned. He was diagnosed on the 19th of November 1997, he was diagnosed of, basically, what this in essence says is that he is suffering from stomach cancer and that his prognosis is extremely poor and even with chemotherapy his prognosis will remain poor. May I ask leave to hand this up and then ask that he be excused from further attendance in this matter?

Mr Chairman, the second aspect is ... (intervention).

MR BIZOS: Mr Chairman, before there is any further matter discussed, we would like it placed on record that the applicant, Snyman, is away for health reasons and that he waives any right to rely on his absence in relation to the final decision of this matter, Mr Chairman. Generally speaking, one would have expected all applicants who apply for amnesty to be present during the hearing. I would like an assurance by our learned friend that whatever the decision may be that they will not rely on an alleged irregularity of his absence during the portion of the proceedings.

MR BOOYENS: Mr Chairman, I would think I would hardly ask that he be excused and then rely on that. I do not even think it is, I think it is very obvious, but in so far as it may be necessary to give an assurance in the circumstances,I will give such an assurance.

CHAIRPERSON: Well, on behalf of the Committee, I am sorry that Mr Snyman is not well enough to attend and it is only natural that we all wish that he recovers and that he recovers speedily. I will wish that he not suffer any more pain than he is suffering already. I would like you toconvey that to Mr Snyman and his family.

MR BOOYENS: Thank you, Mr Chairman, I will do that.

Mr Chairman, the second aspect relates to the position of the applicant, Mr Niewoudt. Now, I wish to apply at this stage that his hearing be separated as far as this matter is concerned and which would then entail that we would only continue with the other applicants. It seems to me that, in the first place, there is most certainly room in that the Committee has got that authority, because if one look at sub-section, Section 19, sub-section 5B, the Committee is given the power, notwithstanding the provisions of Section 18(1),

"To consider jointly the individual applications in respect of any particular act, omission of offence to which such application relates."

If the Committee, I propose, got the, got that power,conversely I would submit it has also got a similar power. The basis on which I make this application, Mr Chairman, is based on the application by this very same Committee consisting of the three same members in the amnesty application number AM3920 of 96 and that is relating the amnesty application in respect of an assault on Mr Mkhuseli Jack and, more specifically, the finding made by this Committee on paragraph six, which I am not going to repeat, it is the Committee's own finding. The Committee was faced with two contradictory versions and the Committee made the finding in the last paragraph, paragraph six,

"Applicant has not made a favourable impression on us, given his view that the security police enjoyed virtual, unlimited powers at the time and were, in fact, above the Law."

and then at page seven,

"Having considered the matter carefully,we have no hesitation in rejecting applicants version where it conflicts with that of Mr Jack."

That, Mr Chairman, with respect, amounts to a credibility finding and I would then submit that based on the principles and I have just got a few of the relevant decisions. The first I wish to refer you to is 1955/2/TPD, at page 288. In that specific incidence what happened is, at a trial the prosecutor invited the courts attention to the fact that there was a certain witness in court who could give certain further information. The witness was then called, but then,the report is then quoted as saying the following,

"The assessors have now informed me that as a result of their association with another case which is due for trial,they are acquainted with certain activities of this person. The result of this acquaintance is that they have an opinion as to his credibility, which in their way, prevents them from giving an unbiased approach to the present case in so far as it depends on the credibility of the witness and the court thereafter discharged the assessors and itself from dealing with the matter."

Attorney-General, Transvaal v Assistant Magistrate and others 1960, Volume 1, 491, was a case where, in those days, still a petition, to lead further evidence was before the court and the Magistrate in his reply to the petition indicated that the, that he was of the view that there was, were certain untruths. He also expressed a view as to the credibility of the applicants in that matter. That was an application to lead further evidence and subsequent to that, the parties brought an application for the Magistrate to recuse himself, which he did. The Attorney-General said he could not recuse himself, but the court held that the magistrate was entitled to recuse himself and the matter should start dei novo and, I think, the most important case in this regard is where the clearest principles appear from is, is in the Industries (SA)(Pty) Ltd Metal and Allied Workers Union, 1992/3/SA673, (...indistinct) decision. That is the case where you have, as your Lordship might remember, where the late Mr Pierre Roux SC was Chairman of the or Deputy-Chairman of the Industrial Court and during the dispute between Mawu and the, and BTR in Howick, the, there was an adjournment and Mr Roux then attended on invitation and addressed the Congress relating to Labour Law in Johannesburg where some of the counsel appearing for the employers were also involved and it was also organised by a firm that had something to do with the employers and the important principle or one of the important principles, M'Lord, sorry, if I can just give you the reference, the reference of the BTR Industries case is 1992/3/SA673AD, and the important principles, as basically set out, in the first place, and I am also not suggesting that there is, there have to be, there does not have to be real bias. The testis whether in the eyes of a layman it could appear so and we revert to the old principle of justice should not only be done, but also be seen to be done and there in that instance where, to a layman, it might have appeared as if Mr Roux was associating with one of the sides by attending the conference.

Your Lordship's erstwhile brother, Didcot J, then held in the Natal Provincial Division, that, in fact, Mr Roux should have recused himself and it was wrong not to have recused himself. That decision was taken on appeal to the AD and the full bench of the AD, Hookster, JA giving the judgement in which Milne, Cumlieben, Grosskop and Goldstone concurred, so, it was a full bench decision. The Appeal Court, in fact, held that what you are dealing with, really, is the question of a suspicion of bias, there not, not be actual bias, a suspicion of bias not unreasonably held. Now, what is also important, Mr Chairman, and I have got photocopies of the relevant pages of the decisions which I will hand up to you shortly, is some of the passages that I have marked here where it is, inter alia, said especially as far as quasi judicial bodies, like this one is concerned,the court, with approval, quotes the following passage from Conradie's judgement in a certain, in counsel of the South African Defence Force.

"Since the appearance of impartiality has to do with the public perception of the administration of justice, it is only to be expected that some tribunals will be more vulnerable to suspicion of bias than others. The most vulnerable,I venture to suggest, are tribunals,others than Courts of Law, which have all the attributes of a Court of Law and which are expected by the public to behave exactly as a Court of Law does. The Court Marshall is, of course, such a tribunal."

In fact, it is the only tribunal I know which can also impose criminal sanctions, but I would submit that this Committee is also, find itself squarely in that situation and then I would also just like to refer at page 693 what the Court had to say. Quoting, with approval, from State v Malinde and others,

"The matter must be regarded from impartiality and I would submit that if it was held in the case of Mr Roux where he merely attended a conference and, although your Lordship's brother, Didcot, suggested that he might have been hobnobbing with the other side, although there was nothing to suggest it and that was some of the criticism expressed by the AD. It, nevertheless, held that the judgement of Didcot J, as he then was, was, in fact, the correct one and that Mr Roux should have recused himself."

Now, based on the same principle dealing with recusal, Mr Chairman, all I am saying is in this instance that the interest of justice will be served and justice will be seen

to be done in the event of Mr Niewoudt's, there be ordered a separation of Mr Niewoudt's application and that he then be tried by another Amnesty Committee and not this Amnesty Committee.

CHAIRPERSON: When you say "tried by another Committee", it is obviously not ... (intervention).

MR BOOYENS: No, that is his matter be heard by another Committee, that would be the correct terminology, Mr Chairman, obviously. So, in the circumstances, I bring such an application. Mr Chairman, may I ask leave to hand up the photocopies of the relevant judgement. I know we have not got the advantage of a Law library here.

CHAIRPERSON: (...Indistinct).

Mr Bizos, I can see you are not directly affected by this. When I say affected I (...indistinct). Nevertheless,I am inviting you to make such comment as you would like to make in connection with this application, if you wish to.

MR BOOYENS: Mr Chairman, our understanding is that in matters of applications for recusal, it is really a matter between the applicant and the Committee and that we should adopt a passive attitude in relation to the matter. We,therefore, have nothing to say, Mr Chairman.

CHAIRPERSON: Mr Booyens, the Committee would like to consider this at an appropriate time. I did not think it necessary that I should adjourn immediately and give a ruling on this matter, if I can avoid it. I would like to know whether we can proceed. I reserve my right to consider this matter, the Committee reserves its right to consider this matter at some stage during the day at a convenient time, whether we cannot proceed with the rest of the evidence.

MR BOOYENS: We most certainly can, Mr Chairman. I would,in fact, be obliged if the Committee would adopt that attitude. I would only suggest that, the only time when it really becomes important to consider this application will be at the stage when Mr Niewoudt, before Mr Niewoudt is due to give evidence. So, I am quite happy to proceed with the evidence of Mr Siebert.

ADV POTGIETER: Mr Siebert, would you please stand.

DANIEL PETRUS SIEBERT: (Duly sworn in, states).

ADV POTGIETER: Thank you, you may sit.

EXAMINATION BY MR BOOYENS

MR BOOYENS: Mr Siebert, in September when we adjourned, we were at that stage dealing with the stage up to where you had conveyed the deceased as far as Pretoria and had left him there. Just to complete the picture, you came back to Port Elizabeth and you learnt that he had died. Do you remember that?

MR SIEBERT: Yes, that is right.

MR BOOYENS: If you look at page eight of your application,please. The Saturday after his death, that is Mr Biko's death, what happened then?

MR SIEBERT: We were called to Colonel Goosen's office to try and compile the necessary statements regarding this matter.

MR BOOYENS: What, if at all, was suggested that you say about these declarations? Were they supposed to contain the full truth, the whole truth or what?

MR SIEBERT: As it was explained to us, the whole matter was a great embarrassment, not only for the security branch, the police, but also for the State and that our statements should be adapted in such a way that we should deal with the whole matter by omitting to mention certain facts so that it would not be prejudicial for the security branch or the police or the State.

MR BOOYENS: Were certain statements drafted which then publicised this incorrect perception and was this actually persisted in at the inquest?

MR SIEBERT: Yes.

MR BOOYENS: Now, in respect of the day on which Mr Biko sustained the injury, was the correct day reflected in the statement? In other words, that, well, we heard on what day he sustained these injuries, was it on that day or was it on some other occasion?

MR SIEBERT: It was on the sixth that this incident took place and it was moved forward to the seventh, the next day.

MR BOOYENS: You mean in the statements it was moved to the next day?

MR SIEBERT: Yes.

MR BOOYENS: We know that, and that has already appeared from your evidence, that there was a delay to obtain medical help for Mr Biko?

MR SIEBERT: That is correct.

MR BOOYENS: The whole lot of you were involved, did you then draft these statements and you persisted in this at the inquest?

MR SIEBERT: Yes.

MR BOOYENS: After the statements were prepared was it handed to Colonel Goosen?

MR SIEBERT: Yes.

MR BOOYENS: Did he check these statements to see whether he was satisfied?

MR SIEBERT: Yes.

MR BOOYENS: As you have already said, you also persisted in these falsehoods at the inquest?

MR SIEBERT: Yes.

MR BOOYENS: Now, if we look at page nine of the application, paragraph ten, the political Objectives sought to be achieved, you have already given evidence as to the political environment in which you grew up and which existed at the time, but, more specifically, relating to this particular incident, do you confirm what you have written here?

MR SIEBERT: Yes.

MR BOOYENS: What was the reason why Mr Biko was interrogated?

MR SIEBERT: The purpose of the questioning was to find out more about his participation in a planning for the riots and the distribution of pamphlets in Port Elizabeth and the Eastern Cape. We wanted to ascertain what his role was and in so doing we wanted to protect the political dispensation of the day and we also wanted to charge him and to bring him before a court.

MR BOOYENS: I think it is possibly already clear at this stage, but was there ever the intention to kill Mr Biko?

MR SIEBERT: No, never, not at all. The primary objective was to charge him and to have him tried and, therefore, to remove him and thereby to remove him from society.

MR BOOYENS: Was there any instruction that you should kill the man?

MR SIEBERT: No, not at all.

MR BOOYENS: You have already told us that you told him that he should stand up and so on. What was the reason behind that?

MR SIEBERT: That was to cast him in a subordinate position during this interrogation. We wanted to make it clear to him that he was the detainee and that he did not have the upper hand in this situation. We had the upper hand and we were putting the questions.

MR BOOYENS: Was there any other motive during the interrogation of Mr Biko and that which took place later on? Let us first look at the interrogation. Was there any other motive with the interrogation other than obtaining information from him and thereby protecting the State?

MR SIEBERT: No other motive other than to protect the State's interests.

MR BOOYENS: And as far as the fact that he was chained and hand-cuffed, rather, what was the purpose behind that?

MR SIEBERT: It formed part of the process, part of the interrogation process in order to protect and maintain the interests of the State and we tried to, also, break down his resistance.

MR BOOYENS: You mean ... (intervention).

MR SIEBERT: Yes, what I meant was to say that we wanted to break his resistance.

MR BOOYENS: Now, as far as attempts to twist the true facts concerned, you have already said that Mr Goosen said that you must do that and that you, in fact, did so. Is that correct?

MR SIEBERT: Yes.

MR BOOYENS: What was the reason for that?

MR SIEBERT: As we believed at the time, we did that to protect the State against the negative publicity surrounding this whole matter.

MR BOOYENS: Do you confirm pages ten, 11, ten and 11 of your amnesty application?

MR SIEBERT: Yes.

MR BOOYENS: Do you confirm, in so far as it is not being covered by the evidence, the contents of your amnesty application as a whole?

MR SIEBERT: Yes.

MR BOOYENS: Mr Siebert, is there anything you would like to add?

MR SIEBERT: No.

MR BOOYENS: That is the evidence, Mr Chairman.

NO FURTHER QUESTIONS BY MR BOOYENS

CHAIRPERSON: Mr Bizos?

MR BIZOS: Thank you, Mr Chairman.

MR BOOYENS: Begging your pardon, Mr Chairman, I think before my learned friend starts, I do not know whether my colleague appearing for Mr Beneke, I think he, in fact, was given an opportunity as far as the first applicant as to indicate first whether he has got any questions. I do not know whether he has, but, perhaps, ...

CHAIRPERSON: Mr Bizos, I think I should ask Mr Beneke. Thank you for reminding me. Mr Beneke, is there anything you wish to put to this witness.

MR ERASMUS: I have no questions to put this witness at this stage, thank you.

CHAIRPERSON: Yes, Mr Bizos.

CROSS-EXAMINATION BY MR BIZOS

MR BIZOS: Thank you, Mr Chairman.

Mr Siebert, did you assault Mr Biko?

MR SIEBERT: No, I did not.

MR BIZOS: No.

MR SIEBERT: No.

MR BIZOS: Did you cause his death?

MR SIEBERT: His death was caused by the incident which took place.

MR BIZOS: I asked you a simple question. Did you cause his death?

CHAIRPERSON: You, personally?

MR SIEBERT: I would not be able to say if it was my own, if I was responsible. There were a few of us present there.

MR BIZOS: Were you either responsible or partly responsible, which would make you responsible, for his death? Do you admit or deny your responsibility for Mr Biko's death?

MR SIEBERT: My participation in the incident, by implication, yes.

MR BIZOS: Now, you say you did not assault him. Please have a look at page three of your application. The question in 9(a)(1) is clear.

"What crime are you asking for amnesty for?",

and your response is

"Assault of Steven Bantu Biko".

Is that a false statement in your application?

MR SIEBERT: No, it is not. What I understood by the question was whether there was any other assault apart ...(end of tape 1A) ... that or the fact that no medical assistance was given to him for a day and the fact that he was chained to or hand©cuffed to the gate, that is what boils down to assault.

MR BIZOS: Not giving a person proper medical assistance is not an assault, Mr Siebert. You are a person who has a degree, you are an intelligent person, not giving medical

assistance is not an assault.

MR SIEBERT: I understand that it could boil down to assault, as such.

MR BIZOS: How can you possibly say that or is it just a flimsy excuse in order to get out of an untruth either in your evidence or in your application or both?

MR SIEBERT: No.

MR BIZOS: Do you wish to add anything else as to why the Committee should not believe you when you say that you did not assault Mr Biko in view of your admission that you apply for amnesty for assaulting him? Do you wish to say anything further about that?

MR SIEBERT: As I have explained to you, I keep to that.

MR BIZOS: Yes.

ADV POTGIETER: I am sorry, Mr Siebert, what is the assault that you are admitting to?

MR SIEBERT: The fact that the medical assistance was only given a day later and also the fact that he was hand-cuffed to the security gate and that he was in a standing position. As far as I was concerned, this was assault.

ADV POTGIETER: And are you admitting that you were responsible for this?

MR SIEBERT: I was part of that, yes.

ADV POTGIETER: Of hand©cuffing him?

MR SIEBERT: I said that they should hand©cuff him.

ADV POTGIETER: And the medical assistance?

MR SIEBERT: Well, the decision was taken by Colonel Goosen. I was part of the investigative team and, as I understood,it would also boil down to assault by not offering medical assistance.

ADV POTGIETER: Is this assault by you on Mr Biko?

MR SIEBERT: That is the implication as I interpreted it.

ADV POTGIETER: By you?

MR SIEBERT: Yes, I gave the instruction to hand©cuff him.

ADV POTGIETER: No, we are now talking about the medical assistance.

MR SIEBERT: Yes, by implication, that is how I understood that it could boil down to assault.

ADV POTGIETER: No, let us forget about that, that could be a legal argument. I want to know where your guilt lies? What guilt do you have in the fact that the person was not given medical assistance?

MR SIEBERT: Well, I am not being difficult, if it has to do with a legal argument, then I do not know.

ADV POTGIETER: Thank you.

MR BIZOS: Of course the evidence of Snyman is to the effect that you punched Biko. Do you say that that is false?

MR SIEBERT: I think that at that specific, in that specific part of his evidence, Snyman did not give the correct rendition. I did not punch him first.

MR BIZOS: Well, did you punch him second?

MR SIEBERT: After or during the incident I also hit him in the process or the intention of exerting control over him.

MR BIZOS: Was he, why is there not any mention in, of this striking of Biko in your application?

MR BOOYENS OBJECTS

MR BOOYENS: With respect, if my learned friend would look at page six,

"I punched Biko myself."

Second paragraph, about the fourth line from the bottom.

MR BIZOS: (...Indistinct) punched Biko (...indistinct). Now, then the next (...indistinct). If it appears in your application on page six then you did assault him?

MR SIEBERT: As I said to Mr Bizos, the assault which I am applying for, I have explained this. This part of the fight was to bring him under control.

MR BIZOS: Why did you deny when I first asked you whether you assaulted him, that you assaulted him?

MR SIEBERT: I explained this to you. I understood that you were referring to assault which took place apart, over and above this incident.

MR BIZOS: There was only one incident in which Mr Biko was injured as a result of assaults. Why did you deny that you had assaulted him when you now say that you punched him?

MR SIEBERT: That was part of the struggle when we were trying to get him under control ... (intervention).

MR BIZOS: How many ...

MR SIEBERT: ... and if this boils down to assault, then it is assault.

MR BIZOS: How many times did you punch him?

MR SIEBERT: During the struggle where several people were involved and it took place so long, such a long time, I cannot remember.

MR BIZOS: Please try to tell us how many times did you punch Mr Biko.

MR SIEBERT: I cannot give you an exact number of times. It could have been a few times that I hit him, ...(intervention).

MR BIZOS: Well, ...

MR SIEBERT: ... but I cannot give you an exact number.

MR BIZOS: ... let us go to the sure guide of the pathologist's report and Professor Proctor's evidence at the inquest.

"There were two lip injuries in which his lip was cut and they were still visible at the post mortem which means that they were inflicted on the sixth and they were still visible when he died on the night of the tenth, 11th September."

Do you accept that one or other or both those cuts to the lip were inflicted by you?

MR SIEBERT: I will not be able to say that I was responsible for it. During the struggle any one of us could have inflicted that, because it took place during that struggle. It could have been an elbow, a butt of the head,a fist, it could have been anything.

MR BIZOS: We are talking about the two lip injuries. They were visible at the post mortem, which means that they were visible during the last hours of his life. Are you able to admit or deny that those injuries were inflicted by you?

MR SIEBERT: During the struggle that took place any one of us could have been responsible for this. I cannot remember that I specifically hit him on the lip or wherever.

MR BIZOS: Who else punched Mr Biko besides yourself on the mouth in order to cause the two injuries to the lip?

MR SIEBERT: I will not be able to say. During the struggle I did notice who was hitting at which specific points.

MR BIZOS: Who else punched him?

MR SIEBERT: I accept that some of the people who were involved in the struggle also hit at him.

MR BIZOS: Whom did you see punching him?

MR SIEBERT: Warrant Officer Beneke was there and Sergeant Niewoudt and I, myself.

MR BIZOS: I did not ask you who was there, I asked you who else punched him?

MR SIEBERT: They also hit him.

MR BIZOS: Who ... (intervention).

MR SIEBERT: As I said, I did not notice at, where they hit him, but they did hit him.

MR BIZOS: Who else punched him on the lips or the head?

MR SIEBERT: I do not know.

MR BIZOS: Why do you not know, you were there?

MR SIEBERT: As I said, during the struggle there was no time to look at who was doing what and to give the finer details of such a struggle, it is impossible.

MR BIZOS: Are you still not trying to protect your erstwhile colleagues in the security police?

MR SIEBERT: No.

MR BIZOS: In so far, are you seriously suggesting that the cuts to the lip may have been inflicted when Mr Biko was said by you to have knocked his head on the wall?

MR SIEBERT: During the struggle, he was hit during the struggle and who hit him, I do not know, but this happened during that incident. How and with what, it is difficult to say.

MR BIZOS: The question was are you seriously suggesting that the two cuts to the lip could have been caused when you say Mr Biko knocked his head against the wall?

MR SIEBERT: I did not say that.

MR BIZOS: Well, let us just examine it. Can you explain how someone knocking his head against a wall might suffer two cuts on the lip without any injury to his nose?

MR SIEBERT: I do not understand what you are asking.

MR BOOYENS OBJECTS

MR BOOYENS: With respect, I do not know what came through to my learned friend, what I hear, heard here on Afrikaans is, I did not say that. So, I think there may be a misunderstanding here.

MR BIZOS: Yes, I (...indistinct), the question was are you contending that it is possible for someone to suffer two separate cuts on the upper lip by knocking his head on the wall without damaging his nose.

MR SIEBERT: I do not how to answer that question without speculating. It did not happen as Mr Bizos is suggesting.

MR BIZOS: Yes, it could not have happened at the time that he knocked his face on the wall. We must, therefore, assume on, at least the overwhelming probabilities, that the two cuts on the lip were done by fists, like happens to victims of assault, deliberate assault.

MR SIEBERT: I just want to rectify that. I never said that we hit his face against the wall.

MR BIZOS: Well, I do not know whether it is an answer to the question, but let us proceed.

According to Professor Proctor, who examined the brain of the late Mr Steve Biko, there were lesions in the brain at four different places. You recall that at the inquest?

MR SIEBERT: Yes.

MR BIZOS: Does that not mean that there were at least four considerable assaults on the head of Mr Biko to have caused those four lesions on his brain?

MR BOOYENS OBJECTS

MR BOOYENS: With respect, Mr Chairman, I do not think the witness is qualified to answer that. The evidence of Professor Loubscher was, who did the post mortem examination, I think my learned friend knows that far better than I do, because he appeared there, was that the lesions on the brain could also have been caused by a single application of force, if I am not mistaken.

MR BIZOS: (...Indistinct). Mr Chairman, I am talking about the evidence of Professor Proctor. We will come to the evidence of Professor Loubscher and I submit that there is no substance in the objection. I am entitled to put what the eminent professor's evidence was and ask the witness to deal with it.

CHAIRPERSON: Well, now, it is Professor Loubscher's evidence that is being put to you and you are invited to comment on that.

MR BIZOS: Professor Proctor.

CHAIRPERSON: I am sorry.

MR BIZOS: Proctor's.

MR SIEBERT: I cannot comment on the learned Professors findings.

MR BIZOS: Yes. Now, what do you say now, were there or were there not visible injuries on his lips and on the side of his head or not?

MR SIEBERT: There were bruises on his lip which I saw, the mark on his forehead I did not see.

MR BIZOS: It was visible at post mortem. You had so much to do with Mr Biko, how come that you missed this injury above the eye?

MR SIEBERT: I cannot say why I did not see it.

MR BIZOS: Well, were you not part of the conspiracy of silence of, that was decided upon by all the policemen and Dr Tucker and Dr Lang that they, nobody saw any injuries which were still visible at the post mortem stage?

MR SIEBERT: With all respect, I cannot, I would not have

come so far as to sit here today and to say that I did not see that mark on his forehead if I had seen it. Up to today I have not seen it, I did notice it and I can give no other explanation for that, as what I have just told you.

MR BIZOS: Well, it may be that your lack of observation may have been assisted by the fact that the evidence was that this was a massive, probably was, a massive punch above the eye, which caused the contra cue injury on the other side of the head, that if you hit a person here, his brain smashes against the skull on the other side if a particularly vicious blow is struck on the head. Can you say that one of your punches did not cause that injury?

MR SIEBERT: No, definitely not and I also think that to hit one, a person with a bare fist on that, in that part of his head, you could hurt your hand as well and that was not the case.

MR BIZOS: Well, how do we know that your hand was not hurt. You have told so many untruths, why should you ask the Committee to accept that your hand came unscathed as a result of this assault?

CHAIRPERSON: Mr Bizos, he is entitle to tell us that his hand was not hurt. Is there any evidence that is going to contradict that?

MR BIZOS: No.

CHAIRPERSON: Well, then, let us move on.

MR BIZOS: Did you not hear that the contra cue injury was of a similar nature of a blow delivered by a heavy weight champion against an opponent that usually leads to death? Do you recall the medical evidence to that effect?

MR SIEBERT: No.

MR BIZOS: Yes. Now, I want to deal with the question of untruths.

Is it your evidence, Sir, that had it not been for the advice of the Colonel, you would not have told any lies?

MR SIEBERT: Yes, at that stage and under those circumstances, we believed that we were doing the right thing and that is why I am here today, because we know that we did not make the right choice.

MR BIZOS: The question was, and I would like a direct answer, is had the Colonel not told you to deliberately lie,you would not have lied and you would have made truthful affidavits to be submitted to the inquest Magistrate?

MR SIEBERT: Yes.

MR BIZOS: But now on the evidence, Mr Siebert, you started lying almost immediately after the event and, certainly, by the time you came to Pretoria, which was before the Colonel told you to lie. Do you agree with that?

MR SIEBERT: I do not know what you are referring to.

MR BIZOS: Well, let me just start with the first, in chronological order. That the incident occurred on the seventh was recorded by Mr Snyman on the occurrences book. According to him, the day after the event. That was a lie. So, that to lie about the date was decided upon, it would appear if the evidence of Snyman is correct, immediately after the event and you did not have for the, to wait for the advice of the Colonel on the morning after the death.

MR SIEBERT: That was a negotiation between Colonel Goosen and Mr Snyman. I had nothing to do with that and I only became aware of it afterwards, after the matter was entered into the book and the date was changed.

MR BIZOS: Right. Did you believe, as you were driving to Pretoria, that this, that the pitiful condition in which Mr

Biko was, was as a result of the incident that you have described?

MR SIEBERT: Yes.

MR BIZOS: Why did you lie to the senior prison officials when you came there with his half dead body?

MR SIEBERT: About what?

MR BIZOS: Well, did you tell the people at the prison that the, that Mr Biko was shamming and that there was nothing wrong with him?

MR SIEBERT: While he was in the medical section of North End Prison and was there for observation, a report was made on his condition to Colonel Goosen. I do not know who did this. I am aware of the fact that he had contact with the doctors and information was exchanged and, among others, it was said that, in Pretoria I told the authorities who the man was, what his profile was and that he was in the medical department in North End and there was an assumption that he was making as if he was sick, that he was not eating his food, it was the information given to us by Colonel Goosen as a result of the liaison he had with his doctors or the prison personnel.

On that occasion I also told them, as was agreed with Dr Tucker in Walmer in the afternoon before we left, that the medical staff of the Pretoria prison had to phone Dr Tucker to get first-hand medical information.

MR BIZOS: Why do you not answer my question?

CHAIRPERSON: Well, now, he has given a lengthy answer. Part of it does answer your question.

MR BIZOS: But did you tell them that there was nothing wrong with him and he was shamming?

MR SIEBERT: It seems as though Mr Bizos did not listen to

me now. I did give an explanation.

MR BIZOS: No, you did not admit or deny that you told him,told them that there was nothing wrong with him and that he was shamming.

MR SIEBERT: If you want me to repeat it, I will repeat it,but that is the answer I gave. I did reply to that question.

CHAIRPERSON: Did not use the word "shamming", you said pretending to be sick.

MR SIEBERT: It is shamming. The Afrikaans word "vyns"means shamming.

MR BIZOS: Now, did you tell them that he had been in fourth year medicine and that he did yoga and that it was easy for him to mislead people?

MR SIEBERT: I said that, because it was told, I was told to give this information to them.

MR BIZOS: But you knew it to be false, because you told us that on your way to Pretoria, you knew that his pitiful condition was as a result of the incident that you described?

MR SIEBERT: I have no medical background, except that of a layman, and if four doctors, four District Surgeons examined him, a specialist and a, asked the opinion of a second specialist and within half an hour before I left Walmer Police Station I asked Dr Tucker, who was present, what was wrong with the man and he said that he did not know, then the idea would also arise that he was feigning illness or whatever.

MR BIZOS: The question was, you told us that you knew that his pitiful condition was as a result of what happened in the incident. Why did you not tell the truth to Lieutenant Colonel Dorfling and the Sergeant of the Department, Pieter Johannes Pretorius? Why did you not tell them the truth,that you knew that there was an incident where this man was punched where he had lost his conscience, according to you,or part of his consciousness? Why did you not tell them that and why did you feed them with information which you knew to be false, according to your own statement, that you knew on the way to Pretoria that it was as a result of the incident? Why did you not, why did you do that?

MR SIEBERT: Can I reply?

MR BIZOS: Yes, please.

MR SIEBERT: I accepted that that part of the particulars regarding the incident had already been discussed with, by Colonel Goosen with head office and that the liaison, I do not know up to today who did the liaison with the prison authorities to be able to receive Mr Biko there. This had already been conveyed and also the fact that Colonel Dorfling, that I told him personally that, what Dr Tucker's telephone number was and told him to phone him in order to get to hear about the medical condition of the person and I accepted that Dr Tucker would say this, that this was the case that the incident which led to his injuries, that this was concealed for one or other reason. I accepted that they knew this.

MR BIZOS: Do you believe that what you said was an answer to my question?

MR SIEBERT: Yes.

MR BIZOS: Very well, the record will speak for itself, I am not going to argue with you.

Now, did you say to them in Pretoria that he had been on a hunger strike?

MR SIEBERT: I did tell them, he also did not eat his food. That is all the information which was given to Colonel Goosen by the people who had to report to him during his admission to the North End Prison.

MR BIZOS: Did you tell them that he was an aggressive person and that he had assaulted a Major with a chair?

MR SIEBERT: I might have done so, I cannot remember.

MR BIZOS: Did you take him to the prison completely naked?

MR SIEBERT: He was wearing underpants.

MR BIZOS: Did the prison people want to dress him and did you advise the prison people not to do so?

MR SIEBERT: No.

MR BIZOS: And if Colonel Dorfling said so in his affidavit in the inquest, A42, was that wrong?

MR SIEBERT: It is not true.

MR BIZOS: And did you not say that they should not give him any clothes, because he might commit suicide when they asked you why, when they observed that he was completely naked?

MR SIEBERT: I would have told him that, because it was an instruction from head office at that stage to try and prevent suicides by detainees and it is a generally known procedure.

MR BIZOS: At the time that you took Mr Biko to Pretoria he was hardly able to move, is that not the position? (end of tape 2B).

MR BIZOS: He could not dress himself?

MR SIEBERT: Correct.

MR BIZOS: How did you expect him to lift himself up and commit suicide with a piece of clothing in his miserable condition that he had finished up in?

MR SIEBERT: Where?

MR BIZOS: Did you expect a person who was at death's door to have sufficient strength to pull himself up in order to commit suicide with a piece of cloth, a pair of underpants or anything else?

MR SIEBERT: Where? I do not understand the question.

CHAIRPERSON: In Pretoria when you told them that he should not be given clothes to wear. The question is at that stage.

MR SIEBERT: Thank you, Sir.

No, I said I did not tell Colonel Dorfling not to give him clothes. On the contrary, he was under their control and the regulations or the rules applying there probably differed from those which applied to a person in detention under police custody and control and he was admitted to a medical section. I did not tell Mr Dorfling that.

MR BIZOS: Please listen to the condition of Mr Biko in accordance with the affidavit, A49, of Mr Pieter Johannes Pretorius.

"I observed that the person's mouth was open and that he had difficulty in breathing. His mouth was dry and his eyes were staring upwards. In the entrance the person was placed on a stretcher and taken to the top floor in the lift.",

and then further down in the same paragraph,

"The person was naked, totally naked."

Is that evidence correct or incorrect?

CHAIRPERSON: The whole of that paragraph or just this last sentence?

MR BIZOS: The whole paragraph (...indistinct) portion of the paragraph (...indistinct) the last sentence. The total that I read out, Mr Chairman.

MR BOOYENS OBJECTS

MR BOOYENS: Mr Chairman, with all respect to my learned friend, that is unfair. There are a number of statements contained in that thing. I have got no objection against my learned friend, but we are now really trying to see how well can you remember, because there are a number of statements contained in there, a number of specific, if my learned friend take them one by one then I think, in all fairness, it would be far better as ...

CHAIRPERSON: Yes, Mr Bizos, in fairness to the witness, I think you just be pointed in your question.

MR BIZOS: I am pointed, Mr Chairman.

CHAIRPERSON: But when you read a whole paragraph and then ... (intervention).

MR BIZOS: (...Indistinct).

CHAIRPERSON: That paragraph has many statements in it and will take a lot of time.

MR BIZOS: (...Indistinct) the objection (...indistinct) affidavits.

CHAIRPERSON: (...Indistinct).

MR BIZOS: The objection (...indistinct) I read for too long, too long a passage. Well, do you want me to go through it sentence by sentence and ask you what is correct and what is incorrect, will you feel better about that, Mr Siebert?

CHAIRPERSON: Do you have this affidavit of this paragraph before you?

MR SIEBERT: No, with all respect, as far as Mr Pretorius' observations are concerned, that is his opinion, those are his observations. I can hardly comment on that. That is as far as the long passage just read, that is as far that is concerned. As far as what he was wearing is concerned, I believe that he was wearing underpants when he was being transported. That is how I can recall it.

MR BIZOS: Now, I do not know, Mr Chairman, whether the witness wants me to read out again the first portion of the paragraph that I read out.

CHAIRPERSON: Well, he said he does not want to comment or cannot comment on what Pretorius says. To the extent that Pretorius says he was naked, he is prepared to contradict that.

MR BIZOS: Well, these affidavits were available at the inquest. Can you recall whether your counsel contradicted the contents of these affidavits?

MR SIEBERT: No.

MR BIZOS: Can you recall whether you contradicted any portion of these affidavits by the prisons officials?

MR SIEBERT: I cannot recall.

MR BIZOS: Now, you say that you cannot remember. Surely, you must remember as to whether Mr Biko was taken out in a stretcher or whether he walked when you last saw him.

MR SIEBERT: It is so, that part is correct, but these observations such as the fact that he had difficulty in breathing and so forth, well, Mr Pretorius is entitled to his observations. That is correct, he was not, he did not walk, we put him on a stretcher or he was put on a stretcher as you read.

MR BIZOS: Yes. You see, I am going to put to you in connection, in relation to the nakedness that you were prepared right to the end to insult his humanity by handing him over in a completely naked condition.

MR SIEBERT: That was not the intention, it was not the intention to insult his humanity. I said in my evidence in-chief that with the risk that I took when we stopped along the road and I saw that he was naked to, there in the confined compartment of the Land Rover, to, not to try to dress him and I said that and I accepted that was irresponsible and, ultimately, it was an insult to his humanity.

MR BIZOS: Mr Chairman, I would like to hand in these two affidavits as exhibits. It would be EXHIBIT J, that would be the affidavit of David Zacariah Dorfling, marked A42 at the inquest, and EXHIBIT K of Pieter Johannes Pretorius, marked as A49 at the inquest, as Exhibit K, Mr Chairman.

I am sure that my learned friend has copies, I am sorry that we have not got copies for members of the Committee, but it may well be that during the adjournment.

Now, Mr Siebert, in order to round off this point, I am going to put to you that you started the cover up on your arrival at Pretoria before Mr Goosen told you to lie for your country.

MR SIEBERT: No, that is not how it happened.

MR BIZOS: Well, ... (intervention).

MR SIEBERT: I want to qualify that by saying that if I was really satisfied or convinced that or that that was Mr Biko's real condition, I was aware of the, of how his condition was I would not have even thought of transporting him to Pretoria. As I said there were four doctors who had examined him and who had expressed an opinion before we left. I asked Dr Tucker, what is wrong with this man, and he said that he did not know. So, I believe that if he had shown signs at that stage that he was about to die or that he was critically, then I think the doctor would have said this man is dying, you cannot transport him. So, I did not start the cover up there.

MR BIZOS: Mr Siebert, it was not only that part of the cover up. You knew that you and your colleagues had smashed up Mr Biko in, what you call, an incident. You had punched him, he had been beaten with a hose-pipe and you say that he had knocked his head against a wall. Why did you not tell the prison people that is what happened and why did you invent yoga, medical knowledge, the hunger strike? Is that not part of the cover up that you helped start?

MR SIEBERT: No, I did not mention a hunger strike, I said that the information which Colonel Goosen gave me to convey was that he was not eating his food. The medical aspect and also the yoga and feigning illness, that came from communications which had been made as a result of previous detentions of Mr Biko, that he, apparently, had used those tactics earlier on during detention and I just, I believed that and I conveyed it in that spirit. That was not the essence of the matter.

MR BIZOS: Why was it not of the essence of the matter? Why was it not of the essence of the matter that you knew that you had punched him, that one of your colleagues had beaten him with a hose-pipe and that, according to you, he had knocked his head against a wall? Why did you keep that information away from the prison authorities when it was before the instruction by Colonel Goosen to lie?

MR SIEBERT: As I answered the same question earlier on, I assumed and accepted that that or the incident in which he sustained injuries was already common knowledge at that stage and that in the discussion with the prison authorities to admit Mr Biko for medical treatment or observation, that that would already have been communicated to them. So, it was not a matter of conscience, consciously omitting certain facts on my part.

CHAIRPERSON: Mr Bizos, we might ... (intervention).

MR BIZOS: (...Indistinct) was there this common knowledge? How did, who knew about the assaults and the knocking of the head against a wall? The Minister himself, upon his death, announced that he had died because of a hunger strike and he was congratulated for giving detainees the democratic right to starve to death, the day after his death. You started this statement that he died as a result of hunger, of a hunger strike.

MR SIEBERT: No, Mr Bizos, I did not start that.

MR BIZOS: Well, the prison officials say that you did, as far as they were concerned.

MR BOOYENS OBJECTS

MR BOOYENS: Well, surely that does not indicate that he started it. He also said that he was told, given that facts. So it is unfair to make the statement that he started it. He conveyed it.

MR BIZOS: Well, conveyed it a day before his death. (...Indistinct).

CHAIRPERSON: We will take an adjournment at this stage, Mr Bizos. We will resume in 15 minutes.

HEARING ADJOURNS

DANIEL PETRUS SIEBERT: (Still under oath).

ADV POTGIETER: Mr Siebert, we are reminding you that you are still under oath. Thank you.

CROSS-EXAMINATION BY MR BIZOS: (cont)

I want to ask you whether you told Mr Johannes Petrus Botha at the Pretoria Prison, who is also a Colonel or was a Colonel, that the prisoner, since his arrest on the 18th of August 1977, had not eaten? Did you say that to the Colonel?

MR SIEBERT: I cannot recall that I gave a date, but I did say, as I also said just now, that he was not eating his food and based on the explanation which I gave.

MR BIZOS: But did you say that he had not eaten at all since the 18th of August?

MR SIEBERT: No.

MR BIZOS: Did you or do you agree with the Colonel's assessment in his affidavit,

"The prisoner's mouth was open and he was gasping for breath."

Do you agree with that?

MR SIEBERT: It would be difficult for me to agree with that, because I do not know what particular time that took place. It was true that he was breathing very deeply.

MR BIZOS: Well, let me give you, it was the 12th of September 1977 at approximately 09H30 at the time that he received you.

MR SIEBERT: If that is the way he saw it, then that is the way he saw it.

MR BIZOS: Yes. I will ask for leave to hand in the affidavit of Colonel, then Colonel Botha as the next EXHIBIT which will be L, Mr Chairman.

Now, you told us about information that you had received about his condition at Port Elizabeth. Did you receive any information emanating from Francis Phillipus Coetzee to the following effect, I will read it,

"Friday morning, nine September 1977, at about between three and four o' clock in the morning, I visited the division and heard that water was being run into the bath. I fetched a key in my office and unlocked the cell to find out what was going on. I found prisoner Biko wearing his pants and he was in a virtually full bath of water whilst water was still running into the bath."

Did anybody report to you about this bizarre behaviour by Mr Biko?

MR SIEBERT: If I remember correctly, Colonel Goosen did mention this. I cannot remember exactly at what stage I was told this, but I was not told it by Mr Coetzee

MR BIZOS: It was, was it told to you before your trip to Pretoria?

MR SIEBERT: I cannot remember.

MR BIZOS: I ask for leave to hand in this affidavit, Mr Chairman, as EXHIBIT M.

Now, did you get a report emanating from Adam Johannes Schoon that on the ninth of September, I will read it,

"Prisoner Biko then told me that he was thirsty whereupon I gave him some water. He drank a whole mug-ful of water. I held the mug for him whilst he was drinking, because he was not able or did not want to hold it. I then came to the conclusion that he did not want to hold the cup, because as long as he was lying or sitting, his hands were open, but that as soon as he had to hold something, his hands were covered up and that he could not take the mug although he moved his fingers."

Did that come to your attention?

MR SIEBERT: The report was not brought to my attention.

MR BIZOS: I ask for leave to hand this in, Mr Chairman, as EXHIBIT N.

Now, did a report came to your notice that he suffered, what the doctors called, echolalia? Do you know what that is?

MR SIEBERT: No.

MR BIZOS: The response of an 18 month old baby who merely repeats the question when you ask him a question. You ask him what is his your name and his answer is what is your name. That is echolalia. Did anybody report to you that Mr Biko was suffering from echolalia?

MR SIEBERT: No.

MR BIZOS: Did ... (intervention).

CHAIRPERSON: At what stage, Mr Bizos?

MR BIZOS: (...Indistinct).

CHAIRPERSON: At what stage was Mr Biko suffering from that complaint?

MR BIZOS: Whilst he was at Port Elizabeth at the (...indistinct).

CHAIRPERSON: North End Prison?

MR BIZOS: At the prison, at the prison.

MR SIEBERT: At the North End jail.

MR BIZOS: North End Jail.

Now, did you try to speak to him?

MR SIEBERT: No.

MR BIZOS: Why not?

MR SIEBERT: When?

MR BIZOS: At the time that you took charge of him and started your long ride to Pretoria.

MR SIEBERT: I did not speak to him, because he was in the back of the vehicle and he was lying down and he was covered with blankets and we were driving.

MR BIZOS: Did you not, did he not ask you where am I going?

MR SIEBERT: No, he asked no questions.

MR BIZOS: Did you not think you might have told him that he was now going elsewhere?

MR SIEBERT: I would have told him that, but it seemed to me as if he was asleep for most of the way. It was dark in the vehicle as well and I sat right at the front.

MR BIZOS: No, I am talking about the time that you were leading him to the vehicle, taking him out of the cell. Why did you not speak to him?

MR SIEBERT: I was not there at that stage when he was being led from the cells to the vehicle.

MR BIZOS: When he came to the vehicle you must have been there and you must have helped to put him in.

MR SIEBERT: I was not present and I said so just now. I was busy doing other things, arranging other things and my colleagues who were with me, I gave them instructions to pick him up at the Walmer Police Station and that I would meet them there and it was only outside Port Elizabeth where we stopped to eat, it was only then that I saw or noticed his condition.

MR BIZOS: Well, what you say his condition was? Was he a fit person?

MR SIEBERT: As I have already said, at no stage was I under the impression that he was dying as a result of Dr Tucker's answer, but I also knew that he was not entirely fit and healthy, that there had to be something wrong with him.

MR BIZOS: What did you think was wrong with him?

MR SIEBERT: I could not say, honestly.

MR BIZOS: Well, tell us what you saw which gave you an indication that all was not well with him?

MR SIEBERT: He was breathing deeply, he was quiet, he did not speak and he was lying down. That was the afternoon when I visited him along with Dr Tucker at Walmer Police Station.

MR BIZOS: Yes, and when you stopped to eat what was wrong with him?

MR SIEBERT: He was still lying in the vehicle. We had food for him. He just remained lying down and he appeared to still be in the same condition, he was still breathing deeply. He did not react to our questions whether he wanted food. It seemed to me as if he was asleep. I did not know whether, perhaps, he was on medication from Dr Tucker or what the case was.

MR BIZOS: What reason did you give to the prison authorities for the transfer of Mr Biko from Port Elizabeth to Pretoria?

MR SIEBERT: For medical observation and examination in their medical department, because there were better medical facilities there, better than in North End.

MR BIZOS: Is that what you told them?

MR SIEBERT: Yes.

MR BIZOS: Is that what you told them?

MR SIEBERT: That is what I was told what the purpose was and that he was to be sent for medical treatment and observation.

MR BIZOS: Did you not tell them that the reason for the transfer to Pretoria was that he should not come into contact with any of his friends if he remained in Port Elizabeth? Did you or did you not say that?

MR SIEBERT: I did not say that.

MR BIZOS: And if there are affidavits to that effect, are those affidavits incorrect?

MR SIEBERT: Then it is not so.

MR BIZOS: Very well, we will let the documents speak for themselves.

Now, if in fact, he was not given proper medical attention from the seventh, when the doctor came, right up to the time he was transported to Pretoria, why should you feel responsible for his death, as you told us when I asked you were applying for amnesty for?

CHAIRPERSON: How is he to know whether there was proper medical care or not, Mr Bizos?

MR BIZOS: Well, let (...indistinct). (...Indistinct). You blame yourself only for giving a false date in order to excuse the lateness of the calling in of the doctors, is that all you feel responsible for?

MR SIEBERT: Please repeat that. Please repeat the question.

MR BIZOS: Is the only reason why you are applying for amnesty, because you were party to the decision that the doctor should not be called in on the sixth and only be called in on the seventh? Is that the only reason that you feel responsible?

MR SIEBERT: No, I said that the fact that I gave the instructions for him to be hand-cuffed. This also boils down to assault.

CHAIRPERSON: All this evidence already, Mr Bizos.

MR BIZOS: Now, I want to refer you to page six of your application and I want you to please tell me who were the persons involved in the second-last paragraph, second sentence,

"After this all three of us grabbed hold of Biko after which we moved with him in the direction of the corner of the room (end of tape 2A) and ran into the wall with him."

Who were the "we"?

MR SIEBERT: It was myself, Sergeant Niewoudt and Warrant Officer Beneke. The phrase can give an incorrect interpretation to what I am saying. It is, it was not a case of, that we had hold of him around the neck and that we had control of him and said now we are going to run to the wall with him. We held him and during the struggle one pulled him to this side and another to another side and in the process we fell over each others feet and the momentum of that resulted in us running into the wall.

MR BIZOS: Where was Marx at this stage?

MR SIEBERT: Please repeat that?

MR BIZOS: Where was Marx at this stage?

MR SIEBERT: I cannot remember. At one stage he was out of the office. I saw that he joined us again later.

MR BIZOS: I want to go back to the period that this occurred in and your claim as to why you were capable of doing these things. You were close to Mr Vorster himself? Is that correct?

MR SIEBERT: That nature of my services I had contact with him on a regular basis.

MR BIZOS: And you also discussed politics with him?

MR SIEBERT: I listened more than the fact that I discussed anything with him.

MR BIZOS: We can understand that, but now did Mr Vorster ever tell you that a policeman in your position was free to depart from the Law?

MR SIEBERT: I never said that, no.

MR BIZOS: Did he ever tell you that you could ignore the standing orders relating to proper conduct by police officers?

MR SIEBERT: No, I never stated it as such.

MR BIZOS: Did he ever tell you that you, as a policeman or any other policeman, had the right to torture people?

MR SIEBERT: No, I never put it as that, no.

MR BIZOS: Did Mr Vorster ever tell you that you could strip people down and put leg-irons and hand-cuffs on them and tie them up on the grilles of doors? Did Mr Vorster ever tell you that?

MR SIEBERT: No, I did not say that.

MR BIZOS: You also had contact with Mr Le Grange, who was Minister of Justice at one stage and also State President? No, I beg your pardon Mr C R Swart?

MR SIEBERT: Yes.

MR BIZOS: Now, did either Minister Swart or President Swart ever tell you that you were, as a policeman, were entitled or expected to behave in that way in the execution of your duties?

MR SIEBERT: No, I never put it as such.

MR BIZOS: And it never happened? Is that correct?

MR SIEBERT: What?

MR BIZOS: That you were never told that you could do all those things?

MR SIEBERT: Yes, that is what I said.

MR BIZOS: Right, you also claim to have been inspired by the National Party. What leader of the National Party ever told you that you were free, for whatever reason, to do any of the things that I have enumerated?

MR SIEBERT: I never said that they had said that.

MR BIZOS: You also say that you were influenced by your church.

MR SIEBERT: I never said that my church said that.

MR BIZOS: So that you were a particularly good church person, because you tell us that you were actually on the "Kerkraad", on the Church Council of your church?

MR SIEBERT: That is correct.

MR BIZOS: Now, did the dominee or any other person in authority of the church tell you that you are, were entitled to disregard the standing orders of the Law or act contrary to ordinary human principles?

MR SIEBERT: Once again, the same reply. I did not say that.

MR BIZOS: Right. Did any officer in the police, any senior officer tell you that you could assault, torture, hand-cuff, leg-iron, ill-treat helpless detainees?

MR SIEBERT: No.

MR BIZOS: You said that you, in your application, that you considered that a war was going on? Is that correct?

MR SIEBERT: Yes.

MR BIZOS: But now do you, did you ever bother to find out as to how prisoners are to be treated even in a state of war?

MR SIEBERT: That is true, the circumstances of that time and all the things that Mr Bizos has asked motivated one to act in the interests of the State dispensation and in the interest of the community of South Africa and not only the White community, but also in the interests of these people who are sitting here today, that is the Black community, because they suffered the most as a result of all the murders, the burning of their vehicles and businesses and houses. It was done in order to protect them. One took a risk of interrogating these people and this was done as a result of the motivation of the organisations that I mentioned, because I believed that the policy of that time, namely apartheid, was an interim measure until it would develop to such an extent or that the politicians of the day come up with better solutions for South Africa.

MR BIZOS: The question, actually, was a simple one. Did you ever bother to find out how in a war situation, combatants are supposed to treat prisoners from the other side?

MR SIEBERT: There is a difference between somebody who is detained during a war situation as result of interrogation to process.

CHAIRPERSON: I think we must just cut this down. Did you every apply your mind at any stage that South Africa was in a war situation and that the people that you were arresting and detaining were to be treated as prisoners of war?

MR SIEBERT: There were diverse principles, we were involved in a total onslaught, the opposition of the day wanted to have themselves qualified as war criminals and the Government of the day did not acknowledge it as such.

MR BIZOS: (...Indistinct) the expression "total onslaught" was not in current usage, was it, in 1977? It was a slogan of a subsequent era, was it not?

MR SIEBERT: No, perhaps, on a political level it was developed as a slogan, but within the intelligence community during conferences, discussions and courses, training, reference was made to a total onslaught, seen in the light of that, the fact that during the 60's the South African Police Force did duty in Rhodesia, guerrilla warfare, and later in '67, '68 in South West, '76 in South West, in '75 there were terrorist attacks in South Africa, the Carleton Centre and at Border Gate.

MR BIZOS: When was the Carleton Centre, Mr Siebert?

MR SIEBERT: November '75.

MR BIZOS: Let us just return to the question that I have asked you. In 1977 was the position of Mr Vorster, the Government, the Commissioner of Police and everyone else in authority that those who alleged that detainees under Section Six were ill-treated were liars and enemies of South Africa, there was no truth in it whatsoever? Was that not the, what the leadership of the State, the governing party, the Commissioner of Police were saying at the time?

MR SIEBERT: I cannot comment on what they said, excuse me, Mr Bizos. The Carleton Centre incident was in '76, November 76.

MR BIZOS: Let us just deal with the question that I asked you thereafter. Thank you for correcting that, but the question is not a matter that you cannot comment on. You were part of the teams or a team of interrogators. Did you not take notice what the Heads of State, the Prime Minister, the Commissioner of Police, the politicians, the parliamentarians were saying, that those who falsely alleged that Section Six detainees are ill-treated are liars and they are lying in a deliberate manner in order to spoil the good name of South Africa? Is that not what we heard day in and day out?

MR SIEBERT: At that stage I was a junior officer and it was not fitting for me to question statements made on a higher level. Secondly, it was true that incidents did take place, but it was not standard practice and, if I may refer to this, I want to bring it to the attention of Mr Bizos that the Wellington Kumede case which I was also involved in and which I investigated, he defended it or prosecuted it, there were six detainees under Section Six Safety Legislation, there were no, they were not assaulted. So, this was not standard practice although one was aware that it did take place.

MR BIZOS: I will come to that, because your memory is failing you badly in relation to the case that you have referred to, but the question that I am asking you is you were not a junior officer, you were a Captain, were you not?

MR SIEBERT: Yes, I was just promoted to Captain and a Captain is a junior officer in the police structure.

MR BIZOS: Yes, but before you did anything with detainees, surely you could not have ignored the public statements at the time that Section Six detainees, that Section Six were not ill-treated and that the police treated them with consideration? Do you, did you never hear those statements?

MR SIEBERT: I said that I was aware that the statements were made, but I had no control over those statements.

MR BIZOS: No, no, not that you had any control, why did you not behave in the manner in which your leaders spoke? That is the question.

MR SIEBERT: There were many other persons that we detained with whom we had no problems.

MR BIZOS: The question is not whether you had problems with other persons, the question is why did you not give heed to what the leaders were saying in 1977? They were saying that South Africa is a civilised country that does not ill-treat people and only communists and their fellow travellers make these false allegations against us. Is that not what they were saying?

MR SIEBERT: I cannot remember the details of those statements, but then we must also look at the time factor in this specific interrogation. As I said, murder was propagated and demanded from the community in New Brighton, KwaZakele, which already suffered under gruesome unrests and extended unrests and the interests of the individual had to be weighed up against the interests of the broader community and that was one of the reasons or why I am applying for amnesty.

MR BIZOS: Well, but, surely, it was not for a Captain to decide what the policy should be?

CHAIRPERSON: Let us move on, please.

MR BIZOS: I want to show you standing Order 316 and 319. Were you aware of them when you were interrogating detainees in 1977? Standing Order 18,

"As a rule there should be no necessity for the use of force and, in any case, only such force as is absolutely necessary to overcome resistance to the arrest shall be used. No justification whatever exists for beating, kicking or otherwise ill-treating a person in custody and there is no excuse whatsoever for a member to act in this manner. Any member found guilty of such conduct must expect to be severely dealt with."

Did you know this order?

MR SIEBERT: I am still busy reading, please.

CHAIRPERSON: Yes, all right. Perhaps, were you aware of any standing orders generally speaking?

MR SIEBERT: Yes.

CHAIRPERSON: You were aware?

MR SIEBERT: Yes.

CHAIRPERSON: All right, I will give you a chance to read through them quickly.

MR SIEBERT: We can continue.

MR BIZOS: Were you aware of that order?

MR SIEBERT: Yes.

MR BIZOS: And were you aware of Order 13A,

"Refractory prisoners may be placed under reasonable restrain whenever it is necessary for the safe custody of themselves or others to prevent damage to property or escape from custody. In all such cases entries are to be made in the Occurrence Book given the reason why a restraint was applied, the means used and such leg-irons, hand-cuffs, the time placed under restraint, by whom and the time the restraint was lifted."

Were you aware of that?

MR SIEBERT: Yes.

MR BIZOS: Did you, did anybody tell you that you had the right to put persons in leg-irons and hand-cuffs for the whole night against the door?

MR SIEBERT: It was common use which was applied, as I initially said in my evidence in-chief, it was inhumane and that is why I am sitting here today.

MR BIZOS: Yes.

CHAIRPERSON: In turn your answer basically is that these Standing Orders were generally disregarded? Is that what you are saying?

MR SIEBERT: Yes.

MR BIZOS: Now, you chose to mention a case in which I defended the accused and you said that there was no violence. Let me remind you that there were eight accused in that case before Magistrate Botha in Port Elizabeth. Is that the case you are referring to?

MR SIEBERT: Yes.

MR BIZOS: You remember that there were eight and you remember that you had extracted eight confessions from them?

MR SIEBERT: Yes.

MR BIZOS: And each one of them into the, went into the witness box and gave a very graphic account of how you had tortured them in order to obtain those confessions.

MR SIEBERT: It was, they were all lies.

MR BIZOS: The onus was on them to prove that that was true, because the Magistrate, the statements were made to a Magistrate.

MR SIEBERT: I would not have mentioned the case had I known that there was any truth in the matter, that is not so.

MR BIZOS: And do you know that the confessions were ruled inadmissible as a result of that evidence of torture and that accused were acquitted?

MR SIEBERT: That is correct.

MR BIZOS: I beg your pardon?

MR SIEBERT: That is correct.

MR BIZOS: Yes. So, in the opinion of the Magistrate you had tortured them and now let me remind you also what one of their complaints was. That your opening remarks were that you had killed Biko and they are not better than Biko and they are going to say what you want them to say.

MR SIEBERT: No.

MR BIZOS: Well, do you remember that that was your evidence, was their evidence?

MR SIEBERT: It could have been their evidence, but that is not what was said.

MR BIZOS: Now, let me tell you also some of the things that I do not forget about you, but you apparently do.

CHAIRPERSON: Mr Bizos, do I, must I burden this record here with what transpired in that matter?

MR BIZOS: The witness ... (intervention).

CHAIRPERSON: I know he might have referred to that case, but I am not concerned with that case.

MR BIZOS: Yes, now, but, Mr Chairman, having raised it, I want to put one more question which really ... (intervention).

CHAIRPERSON: (...Indistinct) just one question please. (...Indistinct).

MR BIZOS: Yes. Accused number eight in that case refused to make a statement to the Magistrate in Port Elizabeth and you were tricky enough to thereafter take him to a Magistrate in Uitenhage to make a statement just before the trial opened, Mr Siebert. I have a very clear recollection of that. Do you recall it?

MR SIEBERT: That can be true.

MR BIZOS: Yes. I do not understand why you raised the case, but, anyway, let us proceed.

And I am going to put to you that, and I must put it to you in view of what you have said, that you were transferred to the Eastern Transvaal and one of the, matters of pride that you had when you interrogated detainees was I killed Biko, you will not get away from me. That was your standard opening remark in relation to detainees, Mr Siebert.

MR SIEBERT: That is a lie.

MR BIZOS: There are records ... (intervention).

MR SIEBERT: It is a total lie and I reject this completely with contempt.

MR BIZOS: There are records which show that, Mr Siebert, but let us proceed.

MR SIEBERT: That is false evidence.

MR BIZOS: Yes. Now, did you interrogate Mr Peter Jones?

MR SIEBERT: Yes.

MR BIZOS: Was he detained at the same time as Mr Biko?

MR SIEBERT: Yes.

MR BIZOS: Mr Jones, who is here today, is going to say that the piece of evidence given in relation to the pamphlet was a figment of your imagination and, yours and your colleagues and that he was interrogated, beaten, starved and kept, and cold in his cell for six days before he put any pen to paper. Do you say the evidence is correct?

MR BOOYENS OBJECTS

MR BOOYENS: Mr Chairman, once again, we have got four or five statements in this question. Could my learned friend please just keep his question, because was he starved, is one question, was he kept naked in his, cell is another question, for six days is another question. Please, the ...

MR BIZOS: Was he kept ... (intervention).

CHAIRPERSON: I think you are just putting to him that this is what Mr Jones is going to say ... (intervention).

MR BIZOS: Exactly.

CHAIRPERSON: ... and your question is have you any comment to make on that?

MR BIZOS: Admit or deny.

CHAIRPERSON: Yes. As a broad statement made, that is going to be made by a witness, you are invited to comment on that. Do you admit or deny that statement generally?

MR SIEBERT: Yes, he was detained naked. It was an instruction from head office and it was applied countrywide to the detainees of that time. Regarding flights of fancy about the pamphlet, it is totally untrue. Mr Jones confirmed this as a result of information we had and information we gained from other persons who were interrogated. As far as assault is concerned, that is not true, that is a lie and the fact that he was starved, that is also a lie.

CHAIRPERSON: Of course, in fairness to your witness, Mr Jones, do I understand that he is going to say that this witness assaulted him and did all the things that you say?

MR BIZOS: He and others acted in consort.

CHAIRPERSON: Anyway, we have got the answer, let us move on, thank you.

MR BIZOS: Have you got the statements made by Mr Jones in which he confirmed things?

MR SIEBERT: Which aspects are you referring to?

MR BIZOS: Any statements made by Mr Jones in which he confirmed this?

MR SIEBERT: Is that the statement that we handed in during my evidence in-chief?

MR BIZOS: Is that the unsigned document?

MR SIEBERT: Yes.

MR BIZOS: Why didn't Mr Jones sign that?

MR SIEBERT: Those were his notes that he was busy making.

MR BIZOS: Why wasn't a statement on oath taken by him before Mr Biko's death?

MR SIEBERT: It would have been taken and I do not have any knowledge in what was investigated afterwards, because I am sure that that information was confirmed in a statement later.

MR BIZOS: Was Mr van Rooyen your counsel at the inquest?

MR SIEBERT: Yes.

MR BIZOS: Did he put in a batch of statements which he alleged were put before Mr Biko before he went berserk?

MR BIZOS: No, we gave it to him himself, the notes of Mr Jones and Mr Titi.

MR BIZOS: Do you recall that the statements alleged to have been shown to Mr Biko on the sixth or seventh were signed after his death? Do you recall that?

MR SIEBERT: They were typed statements which were compiled afterwards. The notes, hand-written notes on the two documents that I handed in on the 25th and the 26th of August were already available then and they were shown to him.

MR BIZOS: Do you recall that Mr van Rooyen tendered typed and signed documents and alleged that those were the very documents that were shown to Mr Biko? Do you recall that?

MR SIEBERT: I know that there was a bit of an argument around, concerning that point with Mr Snyman after the inquest.

MR BIZOS: No, not after the inquest. During the inquest was it part of your case and the case of your colleagues that typed, signed statements under oath were put before Mr Biko before his death and that those statements turned out to have been signed and attested after Mr Biko's death? Not an argument, that is a fact. Do you recall your counsel putting that and it being pointed out that the date was after Mr Biko's death? (end of tape 2B).

MR SIEBERT: I repeat, once again, the facts of the compilation of the pamphlet, it was in the notes of Mr Jones and the hand-written statement of Mr Titi. During the inquest typed statements were given to Mr Snyman which were typed and signed afterwards and a dispute arose that these were the statements which were shown to Mr Biko and it was just not practically possible, because it was the typed rendition which was shown and not the hand-written one.

MR BIZOS: I am going to put to you that there was an attempt to convict Mr Biko after his death by producing statements which were extracted from witnesses by torture... (intervention).

MR SIEBERT: No.

MR BIZOS: ... before and after his death.

MR SIEBERT: No.

MR BIZOS: Mr Jones will tell his, the Committee that that was so in his case, that he did not make any statement freely and voluntarily implicating Mr Biko and Mr Jones will tell the Commission that there was no pamphlet that he knew anything about.

CHAIRPERSON: Mr Bizos, from my understanding of trying to endeavour (...indistinct) it appears that somebody was trying to mislead the tribunal by holding out these statements as having been signed.

MR BIZOS: And (...indistinct) Mr Biko.

CHAIRPERSON: Now, the question is whether signatures on those documents that were signed, were those signatures the signatures of Mr Jones and Mr Titi?

MR BIZOS: Mr Chairman, Mr Jones has no specific recollection of actually signing the statement because of the circumstances under which he was interrogated. I asked my learned friend this morning for the, for those statements and he said he would have a look whether he has them, because we have not got them on the record, but he has not yet responded to me.

CHAIRPERSON: (...Indistinct) of the signatures were genuine or not, is that it?

MR SIEBERT: (...Indistinct) Mr Jones has shown(...indistinct) document (...indistinct) Mr Chairman, that Mr Jones was in custody, in detention after Mr Biko's death... (intervention).

CHAIRPERSON: (...Indistinct).

MR BIZOS: ... and ... (intervention).

CHAIRPERSON: I think there are two points that arise. Either their signatures were forged which in itself is an important point.

MR BIZOS: Yes.

CHAIRPERSON: And the fact that it was done after Mr Biko's death?

MR BIZOS: Yes.

CHAIRPERSON: Now, I was not clear in my mind what was the point you were making that these were, in fact, not signed by these people or if they were signed, they were signed after Mr Biko's death.

MR BIZOS: Yes, no, it is clear, Mr Chairman, that the record shows (...indistinct) reference of the record of the inquest that at the time that they said that those very documents, the typed, signed documents, were shown to Mr Biko and what transpired, Mr Chairman, is that the date, I think it was the 14th, if I remember correctly, was after his death and this is why I put to the witness that, I put to the witness that there was an attempt to mislead the tribunal holding the inquest, Mr Chairman, but once the documents become available, Mr Jones (...indistinct), Mr Chairman.

Now, let us continue ... (intervention).

MR SIEBERT: May I please comment here? It is not clear tome that you understand it in the same way and I am saying that with respect. The two statements which I handed in, now, the procedure with detentions was such that the detainees themselves would write out their statements regarding their participation in certain activities and then at a later stage that would be processed and typed and the oath would be sworn and it, the documents which we handed in had, we already had those on the 25th and the 26th of August and those statements were shown to Mr Biko, not the typed versions. Thank you.

MR BIZOS: The evidence was to the contrary and we will put the, we will put. Now, Mr Jones will tell the Commission that there was no pamphlet and certainly not the one that you produced. What do you say to that?

MR SIEBERT: It is totally untrue.

MR BIZOS: He will also say that Mr Steve Biko and the other national readers of the BCM were capable of writing much better English than what is reflected in the pamphlet, which he will describe, appears to have been written by someone who is not particularly familiar with English and who certainly does not understand the political concepts that are contained in that document that you produced.

MR SIEBERT: That is his opinion. I know what emerged from the investigation. The pamphlet existed, the typewriter existed and it was found in the particular residential area, so where could it have come from other than as is said in the statement? Then I really do not know.

MR BIZOS: Were the police performing dirty tricks as part of the total response to the total onslaught that you speak about? Did you indulge in dirty tricks.

MR SIEBERT: Like what?

MR BIZOS: Like seizing a typewriter from someone and writing a pamphlet on that typewriter and saying that this is what you found?

MR SIEBERT: This borders on absurdity, it did not happen at all.

MR BIZOS: For someone who was capable of behaving towards Mr Biko, why is it so absurd to commit a bit of forgery in order to try and besmirch his name after his death as having drawn up a pamphlet calling for violence?

CHAIRPERSON: You heard his answer that he did not do it and it is absurd.

MR BIZOS: And I am going to put to you that (...indistinct) Jones and Mr Biko were in Cape Town from the 16th to the 18th and were not in King William's Town or PE around the time that the pamphlet you say was being distributed.

MR SIEBERT: I stand by my statement which I handed in and the information contained therein.

MR BIZOS: Yes. Now, you say that the manner in which Mr Biko was treated was in the interests of the National Party and of the State. The purpose of treating him in the manner in which you did, was it for the purposes of getting a confession from him?

MR SIEBERT: No.

MR BIZOS: Or getting a statement in which he admitted his complicity?

MR SIEBERT: No.

CHAIRPERSON: Well, (...indistinct) purpose of the interrogation?

MR SIEBERT: I beg your pardon, I am referring to the incident. The purpose of the interrogation was to determine what his participation was in order to charge him for that and to bring him before court and also, secondly, to take preventative actions on the part of the police.

CHAIRPERSON: How would you have been able to charge him and use the evidence or the statement which he gives you in the conditions in which he was? How was, how were you going to use that as evidence? You had a document, your investigations, as far as you are concerned, and the statements you got revealed that this was done by Mr Biko.

MR SIEBERT: Yes.

CHAIRPERSON: Could you not have charged him on that information and on those documents?

MR SIEBERT: If he remained alive he probably would have been charged.

CHAIRPERSON: So, what was the purpose in having him interrogated about it when you knew that the information he gave you on interrogation could not be used against him?

MR SIEBERT: It could have implicated other people, it could have given us a clearer picture of the full extent of this, of the situation and it could have revealed other evidence.

CHAIRPERSON: The only information, I understand, was the fact that this document was regarded as particularly dangerous?

MR SIEBERT: Yes.

CHAIRPERSON: And everything revolved around the preparing and the issuing of that document?

MR SIEBERT: And also the riots which existed in, at the time in this area, because wherever he went riots were sure to follow.

CHAIRPERSON: So, now, if he admitted riots and said certain things you think that could be used in evidence against him?

MR SIEBERT: Well, we would have had to then obtain statements to use it in, as evidence in court against him and also to convey the information which we so obtained to headquarters and that would then have been further conveyed to the politicians so that they could discuss or plan preventative measures.

CHAIRPERSON: Sorry, Mr Bizos, do carry on.

MR BIZOS: Now, didn't you or your superiors know that the obtaining of statements after keeping people naked, keeping them hand-cuffed against a grille door overnight, keeping them standing, didn't you and your superiors know that information obtained under these circumstances is most

unreliable?

MR SIEBERT: Yes, it was a confession, it would have been tainted by this kind of thing, but the point of departure was that we should not only try and take a person to court based on this confession. We also tried to get other evidence, exhibits, affidavits, etcetera. Such as, for instance, the typewriter and the pamphlets themselves. That was all corroborating evidence.

MR BIZOS: Did it occur to you or your superiors that obtaining statements under this basis might lead people to make statements against people innocent of the things that you wanted them to say?

MR SIEBERT: The possibility existed, but as I have said, there was always other corroborating evidence. We did not only rely on one person's word.

MR BIZOS: Did it occur to you that if you treated people in a manner in which you treated Mr Biko, far from advancing the interests of the National Party and the State, you could actually do it tremendous harm?

MR SIEBERT: The demands made of us, that the riots should be brought under control and should be ended, that meant that we were prepared to take the risk to interrogate in this manner. As I have already said that in these areas murder and mayhem and burning down of houses, that was the order of the day and ones whole mindset, at that stage, made one more willing or prepared to exceed the bounds of decency or that one would be prepared to breach those bounds in order to serve the interests of the State and the community.

MR BIZOS: On balance, do you think that you served the interests of South Africa what you did to Mr Biko?

CHAIRPERSON: At that time or now?

MR BIZOS: At that time, as soon as the death of Mr Biko became headline news not only in South Africa or throughout the world.

MR SIEBERT: No, it was a severely negative point.

MR BIZOS: Well then, you have told us that you never had orders from anyone to did what you do, to do what you did and it turned out to be a disaster for the country, how is it that you did not foresee the possibility of Mr Biko's death and the disastrous consequences of the country, for the country?

MR SIEBERT: This whole thing was really an unfortunate incident and if anybody could have foreseen that, then it would not have happened.

MR BIZOS: Why did you not foresee it?

MR SIEBERT: When?

MR BIZOS: Before you did it?

MR SIEBERT: Did what?

CHAIRPERSON: Really, Mr Bizos, was it before he commenced or he and his colleagues commenced the interrogation, the assault or at the time that he was conveying him to Pretoria? At what stage?

MR BIZOS: Before the ill-treatment was started, why didn't you and your colleagues foresee ... (intervention).

INTERPRETER: The speaker's microphone is not on, the interpreters cannot interpret.

MR BIZOS: Sorry. Why didn't you and your colleagues foresee these disastrous consequences before you started dealing with Mr Biko in the manner in which you did?

MR SIEBERT: The intention was never, as I said earlier in my evidence in-chief, it was never to cause Mr Biko's death, definitely not. The intention was, as I said just now, to investigate the matter and to process the information to bring him before a court so that he could be charged and appear before a court. The incident took place so quickly that to have foreseen the consequences was virtually impossible.

MR BIZOS: You said in your application that the status quo had to be maintained at all costs. Who made that decision that the status quo had to be maintained at all costs, as far as you were concerned, in 1977, before you started ill-treating Mr Biko?

MR SIEBERT: This was said from all political platforms at the time. At that stage the feeling was that the existing constitutional dispensation should be maintained, the State should be protected, because there was a major onslaught against the State and the people in the Black townships took part in this onslaught, it took place during conferences and the information was also obtained from circulars from head office, etcetera.

MR BIZOS: What did you understand by the expression "at all costs"?

MR SIEBERT: Well, within the bounds of the Law and legislation which was at our disposal.

MR BIZOS: Well, that did not include contravention of the statutes, it did not include contravention of the standing orders, it did not include assault, it did not include crimina injuria, insulting people's humanity. None of those things were included if that is what you understood "at all costs"?

CHAIRPERSON: My question to you is, "at all costs", who does that refer to, at all costs to who? All costs to the State or all costs to the victims?

MR SIEBERT: It would have cut both ways. The interests of the State, for the State, not to harm the detainees. All costs, "at all costs", well, the threat posed by the riots had to be answered and reacted to by policing and everything that went along with that. It was all part of policing.

ADV POTGIETER: In other words, lawful behaviour and conduct?

MR SIEBERT: Yes.

ADV POTGIETER: In other words, not to commit crimes?

MR SIEBERT: Yes, but as I have said, in this process ones mindset was such that you worked day and night and the extent of the riots was such that this changed ones way of thinking. The riots were very serious and very gruesome and in the process, because you were also being pressurised from head office and from the politicians for results and also you had to still be able to face this community, your own resistance, as a human being, also crumbled. You could take only such much and no more.

ADV POTGIETER: In fact, to bolster and support the State institutions that was actually part of your duty as a police officer, as part of your job?

MR SIEBERT: Yes.

ADV POTGIETER: So, there is nothing extraordinary about that.

MR SIEBERT: No, but there is something extraordinary, with all respect, if we go and look at those times that we are talking about. In Soweto the riots started and fizzled out within a week. In this case it started in 1976 and continued for quite some time until 1978. Riots, strikes, murder, killing, it was really bad.

ADV POTGIETER: Yes, but the point is that when you say your objective was simply to maintain the State, then that has absolutely nothing to do with politics. It was, in any event, your duty, your job as a policeman.

MR SIEBERT: Yes, it could be like that.

ADV POTGIETER: Absolutely, so there was nothing political in that. Your duty was apolitical. That is a policeman's duty?

MR SIEBERT: Yes, but the political motivation arose from the information, the speeches made by politicians of the day. You were part of that whole scenario, you could not separate yourself so easily. That is, it is a myth, it is a utopian myth that you can actually do your policing duty without any political contamination. It simply did not work that way at that stage. You were part and parcel of the political scenario.

ADV POTGIETER: Or is this now a little tail piece that was added later on?

MR SIEBERT: No, not at all.

ADV POTGIETER: Thank you

ADV SANDI: Sorry, Mr Bizos. Mr Siebert, can I just ask you one question which is very much related to the one my brother here has asked you. Just to get more clarity on this "at all costs". How far were you prepared to go in the direction of "at all costs"?

MR SIEBERT: In this particular case I was prepared to keep him hand-cuffed and to keep him awake at night, but if you refer to anything else, no. If you, perhaps, can be more specific as to what you are referring to. Like, for instance, would it include killing somebody, no.

ADV SANDI: Okay.

CHAIRPERSON: Mr Bizos.

MR BIZOS: Did you know that all section heads after the Timol Inquest were informed of the detainees rights that detainees were entitled to daily exercise, an opportunity to have proper rest, to shower? Did that ever come to your notice as a direction from the Commissioner of Police in order to avoid the deaths of detention, in detention that had been reported before Mr Biko's death?

MR SIEBERT: Yes.

MR BIZOS: Now, if you knew of that specific direction from the Commissioner of Police, why did you deliberately ignore it in the case of Mr Biko?

MR SIEBERT: We only him there that morning and it was not, these things were not per se kept from him. He had been detained at the police station and they had control and custody of him. I gave no instructions that he should be or that certain privileges should be withheld from him.

MR BIZOS: When ... (intervention).

CHAIRPERSON: Sorry, I understood your evidence, maybe I am wrong, but I understood your evidence to mean that the directives that came to section heads plus these documents about standing orders and so on were known to section heads, but as a general rule, were disregarded.

MR SIEBERT: Yes.

CHAIRPERSON: That is what I understood your evidence to be.

MR SIEBERT: Yes.

CHAIRPERSON: The question is asked after Timor's death you were told what rights of detainees were. The answer is, yes, you knew, but as a general rule all that was just disregarded.

MR SIEBERT: During the interrogation?

CHAIRPERSON: Yes.

MR SIEBERT: When you are physically busy with a person the idea was also to finalise his interrogation and this meant that it also related to the duration of the interrogation, but before and after they were under control and custody of the station commander and the exercise facilities and so forth, that was all at the disposal of the police and the station commander.

CHAIRPERSON: Mr Bizos.

MR BIZOS: Was Mr Niewoudt your senior or your junior whilst this activity was going on in relation to Mr Biko on the sixth and the seventh?

MR SIEBERT: He was my junior.

MR BIZOS: Did you see him beating Mr Biko with a hose-pipe?

MR SIEBERT: During the incident I became aware that he made use of a hose-pipe.

MR BIZOS: Did you try to stop him?

MR SIEBERT: Before that could happen we fell against the wall and the scuffle was at an end.

MR BIZOS: Did Mr Niewoudt bring the hose-pipe in specially or was it a permanent fixture of this room in which the security police in Port Elizabeth did most of their interrogation?

MR SIEBERT: No, I do not know where the hose-pipe came from at that stage. He must answer that.

MR BIZOS: I know that he must answer that, I am asking you when did the hose-pipe first appear?

MR SIEBERT: We were already busy scuffling and struggling with each other and that is when I realised that he was hitting out with this piece of hose-pipe.

MR BIZOS: How long after your Mr Niewoudt's arrival at this interrogation in this room did the scuffle start?

MR SIEBERT: You mean when the incident ended, how long after the incident, before the incident ended?

MR BIZOS: For how long were you and Mr Niewoudt in the presence of Mr Biko when the scuffle begun?

MR SIEBERT: It could have been 20 minutes to half an hour.

MR BIZOS: Was the hose-pipe there during this period?

MR SIEBERT: I did not see it then.

MR BIZOS: Mr Jones will say that you are not inexperienced in using the hose-pipe yourself?

MR SIEBERT: That is a lie.

MR BIZOS: Well, for a person who has admitted that he committed deliberate perjury so often, it is ...(intervention).

CHAIRPERSON: Now, Mr Bizos, I do not think that that is a question, please. (end of tape 3A).

MR BIZOS: When did your (...indistinct) find out about Mr Biko's yoga and medical studies?

MR SIEBERT: Colonel Goosen informed us about this.

MR BIZOS: When did he do that?

MR SIEBERT: I cannot remember the exact day, but it was after this incident, one or other day.

MR BIZOS: And why did he tell you such things?

MR SIEBERT: I do not know.

MR BIZOS: Did you not ask him?

MR SIEBERT: No.

MR BIZOS: Why not?

CHAIRPERSON: Because it did not occur to him, Mr Bizos, please.

MR BIZOS: Was it not for the purposes, were these things not invented for the purposes of covering up?

MR SIEBERT: No.

MR BIZOS: Was there any information given to you that Mr Biko had feigned illness on previous occasions?

MR SIEBERT: By Colonel Goosen.

MR BIZOS: When did he say that to you?

MR SIEBERT: After the incident.

MR BIZOS: Was that also part of the rationale or the reason for the covering up process?

MR SIEBERT: No.

MR BIZOS: How many chairs were there in the room?

MR SIEBERT: Two or, perhaps, there was a third chair, I cannot remember exactly.

MR BIZOS: Was a chair offered to Mr Biko to sit on?

MR SIEBERT: No.

MR BIZOS: If anyone says that he, that there was actually a chair for him to sit on and he was invited to sit, will that be false?

MR SIEBERT: Yes.

MR BIZOS: For how long had he sat on the chair, if at all?

MR SIEBERT: No, he just sat and I told him to stand up again and he stood up.

MR BIZOS: Immediately?

MR SIEBERT: Yes.

MR BIZOS: So, he hardly ever sat on the chair? The moment he sat you told him to stand up say we are in charge and you must stand?

MR SIEBERT: Yes, he just made himself comfortable and I told him to stand up.

MR BIZOS: At the inquest you described how Mr Biko had sat down and how comfortable he was and how he crossed and uncrossed his legs. Was that evidence false?

MR SIEBERT: Where did that take place, what you are talking about now?

MR BIZOS: I am putting to you that this is what you said at the inquest. Do you deny that you said it?

MR SIEBERT: I do not have the outcome of the inquest in front of me. I cannot remember what I said.

MR BIZOS: But you do not recall him crossing and uncrossing his legs?

MR SIEBERT: I cannot remember.

MR BIZOS: It may be a convenient stage, Mr Chairman.

CHAIRPERSON: We will now adjourn and resume at two o'clock.

HEARING ADJOURNS

CHAIRPERSON: Before we proceed any further with the hearing of evidence in this matter we would like to refer to the application made by Mr Booyens on behalf of his client, Mr Niewoudt. Mr Niewoudt's application amounts to a request that his application be separated from the applications made by his colleagues and the reasons advanced for that by Mr Booyens have been considered by us. We are satisfied that there must not be the slightest suspicion of bias, not only in the mind of Mr Niewoudt himself, but in the mind of any member of the community who is reasonably acquainted with these proceedings and although we may give an assurance to Mr Niewoudt that we ourselves may endeavour and do our best in being entirely unbiased when we consider his application, in the interests of overall justice we have come to the conclusion that Mr Niewoudt's application should be separated from the application of his other colleagues and that it should be considered by a panel constituted differently from the present panel.

We rule accordingly that these applications must now proceed only insofar as they concern Mr Niewoudt's colleague and that Mr Niewoudt may be excused from further attendance and his application will be heard at some date in the future after consultation with counsel involved and due notice of hat will be given to Mr Niewoudt and to all interested parties.that will be given to Mr Niewoudt and to all interested parties.

MR BOOYENS: As the Commission pleases, Mr Chairman. I should, perhaps, just mention one aspect, although he has been excused I think I better advise my client that it may be in his interest, nevertheless, to remain in attendance, because, obviously, there is going to be referred reference to him in evidence which might still be adduced, but I will acquaint him with his rights in this regard. It is not necessary that he be specifically warned that he might be mentioned. I know that has been a procedure as well.

CHAIRPERSON: Yes, as long as it clear that he is not here at the request of the Amnesty Committee.

MR BOOYENS: Yes, that is correct, Mr Chairman.

CHAIRPERSON: You are still under your formal oath, you realise that?

MR SIEBERT: Yes.

CHAIRPERSON: You may proceed Mr Bizos.

DANIEL PETRUS SIEBERT: (Still under oath).

CROSS-EXAMINATION BY MR BIZOS: (cont)

MR BIZOS: Thank you, Mr Chairman.

For how long, according to you, did Mr Biko sit on the chair before you ordered him to come off?

MR SIEBERT: He went to sit and made himself comfortable and then I told him to stand up. If it was five seconds, it was a long time.

MR BIZOS: So, he only sat for about five seconds?

MR SIEBERT: Five to ten seconds, I did not keep time.

MR BIZOS: Now, that is hardly consistent with what you said at page 266 of the inquest record. I will read the whole paragraph out.

"Later the pamphlet, can you just tell his Honour how things culminated and how his state of mind was at that stage? With, we confronted him with the facts by means of the pamphlet. He had to realise that a man of his intelligence, that he was in a corner and there was no way out for him and this was very clear that he was uncomfortable. He was squirming on the chair, crossed and uncrossed his legs and we could see that the veins in his neck were abnormal. His breathing was abnormal and he was very unhappy about the fact and he was concerned, because later that afternoon we told him that a few surprises would await him."

MR BOOYENS: Sorry to interrupt my learned friend. My learned friend read something about some process, I just could not catch that word. Please, through you, Mr Chairman.

MR BIZOS: "Asemshalings proses".

MR BOOYENS: I am indebted to my learned friend.

MR BIZOS: Now, this in the context makes it clear that he was sitting down during the process of interrogation on the pamphlet and he felt uncomfortable and he crossed his legs over and you watched his, the veins on his neck, all this whilst he was sitting down. That is not consistent with it having happened in five to ten seconds, is it?

MR SIEBERT: That part of the evidence during the inquest is that which was adjusted, it was not completely true.

MR BIZOS: Yes, well, that brings us to an interesting situation. You told certain lies in order to cover up. Why would you have lied then about his sitting down and crossing his legs? What did you have to gain by that lie at that time?

MR SIEBERT: As I said, that part of the evidence was adjusted and what the true rationale was, to buy time, I cannot remember.

MR BIZOS: But you see, if, in fact, he was ordered to stand up within five seconds, what did you have to gain at the inquest by lying about it in the way in which you did?

CHAIRPERSON: I think he says he cannot remember why.

MR BIZOS: Cannot remember. Well, is it that you cannot remember or is it because you were making up a tale at the inquest and you are making up a tale now as to how the scuffle or assault began?

MR SIEBERT: With the inquest it was adjusted and I will definitely not go through the traumatic experience of this application to hide things even further.

MR BIZOS: Yes. Well, there is one other aspect. Were there any lies told at the inquest about Mr Beneke and his participation?

MR SIEBERT: He was made part of the questioning team or interrogation team, which was not the case.

MR BIZOS: Why was he made part of the interrogation team at the inquest when, in fact, your evidence, and in your application, he was not a member of the interrogation team? Why was that lie made up?

MR SIEBERT: It was after discussions with Colonel Goosen, because he assisted during the scuffle and the incident which took place.

MR BIZOS: But who had anything to gain or anything to lose and what was it that you were afraid about telling the truth about the participation or non-participation of Mr Beneke at the inquest?

MR SIEBERT: That is true. I cannot, if I think of it now it was one of the irresponsible things that we did as with the adjusted evidence as well.

MR BIZOS: Well, was the lie about Mr Beneke as a result of what Colonel Goosen said on the day after Mr Biko's death?

MR SIEBERT: I do not know what you are referring to, the, what Colonel Goosen said the next day.

MR BIZOS: Was the lie about Mr Beneke made up as a result of the suggestion of Colonel Goosen at the meeting on the day after Mr Biko's death?

MR SIEBERT: The Saturday that we met?

MR BIZOS: Yes.

MR SIEBERT: Yes.

MR BIZOS: That was not a lie made up before?

MR SIEBERT: No.

MR BIZOS: How does that explain that in the occurrences book made on the seventh or the day thereafter by Major Snyman, that Mr Beneke is mentioned as one of the interrogation team?

MR SIEBERT: I was not present when the incidents were noted and, by Colonel Snyman, and the full context of that, I only heard this at a later stage.

MR BIZOS: It would appear, if, in fact, it is a lie, that at least Mr Snyman invented the lie a number of dies before the Colonel's suggestion?

MR SIEBERT: I do not know what took place between him and Colonel Goosen. When they discussed the matter I was not there.

MR BIZOS: Weren't the reasons and how they would serve the cause of the security police debated on the Saturday morning. There was not a debate, but if we tell this lie, there may be advantages or disadvantages, was it not debated, wasn't the story made up as a result of a, of debate amongst yourselves?

MR SIEBERT: It boiled down to the fact that everyone was interviewed and the statements were adjusted accordingly.

MR BIZOS: A General was appointed, was he not, what was his name, in order to conduct a full and fair investigation for the purposes of the inquest, General Kleynhans?

MR SIEBERT: Yes.

MR BIZOS: Did he interrogate you?

MR SIEBERT: Yes.

MR BIZOS: What questions did he ask you and how long did the interrogation last?

MR SIEBERT: I cannot remember all the questions. The supplementary part to our existing statement, it formed a supplementary part to our existing statement.

MR BIZOS: Do you know what a "sweeper" is in the context of the police investigation?

MR SIEBERT: I would like you to explain.

MR BIZOS: Well, have you not heard that whenever the police committed any wrong, there was an assurance that a top ranking independent officer would be appointed, but instead of going in to the matter, he would really see to it that no adverse information came out?

MR SIEBERT: I am not aware of that.

MR BIZOS: Yes. The supplementary statement is to be found as A118 and seems to be a standard cyclo-styled statement applicable to all. You know the sort of standard cyclo-styled statement for all purposes and all suspects. Do you see it? A "kits" statement of sorts.

MR SIEBERT: That was done by him, I cannot comment on that.

MR BIZOS: Well, if, well, do you agree with my description of it?

MR SIEBERT: The statements of all the other people, if they say that, then I accept it as such.

MR BIZOS: But you can see that the whole thing is typed except that your name and ... (intervention).

MR SIEBERT: Yes, okay.

MR BIZOS: Your name is fitted in and the name of Mr Goosen is fitted in, that you have already made a statement and you have really nothing more important to say. Is this not a sort of "kits" statement for everybody involved?

MR SIEBERT: It was the method that he used. I cannot comment on that.

MR BIZOS: What do you say, as an investigator of wrongdoing about this General's work?

MR SIEBERT: I cannot comment on his investigation.

MR BIZOS: Would you not agree that the supposed investigation by General Kleynhans was a farce?

MR SIEBERT: You are entitled to your opinion, I cannot comment.

MR BIZOS: What is your opinion?

MR SIEBERT: I cannot comment on that.

MR BIZOS: You are still loyal to General Kleynhans and you are not prepared to express an opinion about taking cyclo-style, pre-prepared statements in an important, in a matter of this nature?

MR SIEBERT: I cannot comment on that. I cannot comment on his, the methods that he used.

MR BIZOS: Yes. Now, you said things about the Black Power Movement. Is the Black Power Movement the security police's way of speaking of the Black people's convention, the BPC and the Black Consciousness Movement, BCM?

MR SIEBERT: Yes.

MR BIZOS: Now, I want you to please name for me one leader of the BPC or the BCM that was charged with, never mind convicted, charged with an act of violence or incitement of violence before Mr Biko's death?

MR SIEBERT: I cannot reply to this. I only, did not have all the information of the investigations done countrywide and, therefore, I cannot reply to this. These things all happened too long ago.

MR BIZOS: Mr Peter Jones will tell the Committee that no such charge was ever made against any leader of these organisations before Mr Biko's death. Will you be able to deny that?

MR SIEBERT: As I said, I do not have all the information of the and the official documents to determine whether this is the case or not.

MR BIZOS: Also, ... (intervention).

CHAIRPERSON: I think you are not in a position to contradict it at this stage, is that what you are saying?

MR SIEBERT: Yes, that is what it boils down to.

MR BIZOS: This business of Black power which is, which equated the Black consciousness organisations with the uprising, particularly young people, are you, in the absence of such a charge, in the absence of any objective facts that any leader of these organisations was involved in this uprising, will you be able to deny Mr Peter Jones' statements and others, if need be, that in so far as there were acts of violence, they were as a result of the spontaneous uprising of particularly young Black people against very deeply felt grievances and particularly against Bantu Education, will you be able to deny that?

MR SIEBERT: That is a statement which will have to be tested elsewhere. I believe that we would have had sufficient evidence to prove that of the leaders were busy with incitement and then resulting action was the unrest and everyone knows what the condition of Bantu Education was and what they were unhappy about, but the incitement did take place.

MR BIZOS: Well, you cannot point us to one single charge of incitement being filed by any leader, but let us proceed.

Did you bother to find out what Mr Biko stood for when you treated him in the inhumane manner that you did, by looking at what he had written?

MR SIEBERT: At that stage I did not read a great deal about what he stood for. My interest was his participation in the compilation of that pamphlet and the unrest in the area and his visit to the Cape. That was what I was interested in. Sergeant Niewoudt, who dealt with the Black Desk, were more up to date with the politics of the Black force movements than I was.

MR BIZOS: Well, did you not ask your colleague, Mr Niewoudt, who had become part of this investigation team, what did he know about Mr Biko? For instance, did he know that before you treated him the manner which you did, he was one of the main witnesses for the defence at the Sasol Trial before Mr Justice Boshoff in Pretoria, did you know that?

MR SIEBERT: No, I did not.

MR BIZOS: You did not even know that he had given evidence?

MR SIEBERT: No, I did not know it at that stage.

MR BIZOS: And if you had exercised a minimum amount of care before you formed a view of this man by looking at what he had written and by hearing what he had said at the trial, you might have had an idea which would not have persuaded you that he was the man of violence that you believed him to be as a result of your own propaganda against the so-called Black Power Movement?

MR SIEBERT: We must remember that the books which were compiled took place in a more uneasy or moderate time. Our interrogation took place in a totally different spirit or period of time. There were unrests, there was murder and mayhem and the pamphlet which he was (end of tape 3B) responsible for propagated this further, for further unrest and murder and mayhem and there could have been a difference, state of mind as far as this is concerned.

MR BIZOS: You say that you had information of this illegal and violent activity on the part of Mr Biko. Why did you not just charge him?

MR SIEBERT: I said this before, it would have, we would have got to that point had this incident not taken place.

MR BIZOS: Well, one of the great conspirators on these actions, on the planning of these acts of violence for which Mr Biko lost his life, was Mr Peter Jones. Why was he not charged?

MR SIEBERT: I do not know. I did not have any say in that matter. It was a decision to be taken at a higher level.

MR BIZOS: But high level would have relied on you, one of the investigating officers, to present the evidence against Mr Peter Jones. Evidence against Mr Biko would have been evidence against Mr Jones. Mr Jones was detained for an extra few months, kept naked, he will tell the court, and under terrible conditions, but ... (intervention).

CHAIRPERSON: He says he does not know why Peter Jones was not charged.

MR BIZOS: Yes.

CHAIRPERSON: So, ... (intervention).

MR BIZOS: Well, what ... (intervention).

CHAIRPERSON: you cannot take it very much further.

MR BIZOS: ... information did you place on higher authority which constituted cogent evidence for the charge of Mr Peter Jones. What evidence did you place before the higher authorities?

MR SIEBERT: From the questioning it appeared that Mr Jones had nothing to do with the compilation of the pamphlet and the distribution or the producing of the document.

MR BIZOS: Was he not a co-conspirator, on your version of the facts, with Mr Biko?

MR SIEBERT: No.

MR BIZOS: Then why was he detained?

MR SIEBERT: I do not know. Many people were detained in those days and several organisations were banned and their leaders were restricted or banned and detained. It was a political decision and this applied throughout the country, not only locally.

MR BIZOS: Did you recommend either the continued detention of Mr Jones or his release at any time?

MR SIEBERT: No.

MR BIZOS: Did you have information or did you believe that Mr Biko was proud of being Black?

CHAIRPERSON: Black in a political sense?

MR BIZOS: In a, well, both in colour and in a political sense?

MR SIEBERT: I did not think that he was embarrassed by it or ashamed of it.

MR BIZOS: I would have thought exactly the opposite would have been obvious to you. If you had kept your eyes and ears open, that he was very proud of the fact and that his whole philosophy was that Black people must lose a feeling of subservience that apartheid inculcated in them. Did you not know that?

MR SIEBERT: It is the opposite. Yes, he was not embarrassed about the fact that he was a Black man. So, what does that say?

MR BIZOS: And he was proud of it?

MR SIEBERT: Yes.

MR BIZOS: And how did you feel having in your absolute power a man so opposed to apartheid that he would actually claim the right to sit if he wanted to, even though the powerful White man, like yourself, ordered him to stand? How did you feel about that?

MR SIEBERT: It was not about racial differences or colour of skin. As I said earlier, what it was about was the relationship between the interrogator and the detainee and, obviously, to this day, the person who is doing the interrogating must be in a controlling position.

MR BIZOS: And I am going to put to you that Mr Biko's death was as a direct result of your attitude to him as a Black person, as a person who stood up for his rights, that you, believing that you were a superior White being, were not prepared to respect him at all, which, and that you assaulted him, injured his head and his brain, which led to his death.

MR SIEBERT: Mr Bizos is entitled to his opinion and he is entitled to express his opinion, but I do not think he has the ability to see inside my mind and to interpret what is in my head. So, I never said that, anywhere, that I, as a White person, was a Black persons's superior and I would like to know where he gets that from, where I said that. That is a lie.

MR BIZOS: I do not have to look into your head, Sir, your actions speak for themselves.

Thank you, Mr Chairman, I have no further questions.

NO FURTHER QUESTIONS BY MR BIZOS

CHAIRPERSON: Are there any questions you wish to put to this witness?

MR MPSHE: Yes, Mr Chairman, if I can be afforded just a moment.

CROSS-EXAMINATION BY MR MPSHE

MR MPSHE: Mr Siebert, I want you to have a look at your application, page 13F, paginated pages, 13F of the application, paginated pages.

MR BOOYENS: We have not got one of those indexed ones, what page ... (intervention).

MR MPSHE: It will be six, six.

CHAIRPERSON: Typed page six.

MR MPSHE: The third paragraph. You have not referred to it by my learned friend, Mr Bizos. In your evidence, viva voce, you stated the following when you were explaining "vars hardloop het".

MR SIEBERT: Ja.

MR MPSHE: Do you still recall that, it was the last time?

MR SIEBERT: Yes, Sir.

MR MPSHE: And you said,

"'Vars hardloop het' that means that the momentum caused all of us to land up against the wall and Biko fell and knocked his head against the wall."

Do you recall that? Have a look at that paragraph I just referred you to in your application where you say, in particular,

"After this we all grabbed Biko, after which we ran in the direction of the corner of this vehicle or the room, rather, we moved in the direction of the corner of this room."

MR SIEBERT: Yes.

MR MPSHE: "And we ran into the wall with him."

Do you not think that there is a difference between what you said here and your viva voce explanation?

MR SIEBERT: As it reads there and as I explained it, it could look as if there is a difference, but I think it was simply not spelt out as I said it. We did not grab him and say, look, let us run into the corner. As I explained it, it was the result of a process. We were actually, we were falling about and we fell in the direction of the wall and it was in the direction of the corner.

MR MPSHE: Would it then be correct to say that what you have stated in your application was not specifically correct as to what really happened there?

MR SIEBERT: Perhaps it was not made so very clear. It is correct, but not entirely clear.

MR MPSHE: You made a statement on the 17th of September 1977. Sorry. Now, I am going to refer you specifically to paragraph nine of that statement. It is still in relation to what is in your application and to your viva voce evidence. It is actually the underlined portion, I do not know who underlined that, but I will read it for convenience sake. I have the statement with me, Mr Chairman.

CHAIRPERSON: Where is it to be found amongst our papers, Mr ... (intervention).

MR MPSHE: It is not in the papers, Mr Chairman.

CHAIRPERSON: Oh.

MR MPSHE: It is a statement that I obtained when perusing the inquest record, but I will read it for the Committee to follow. It read as follows.

"During the scuffle we banged against the tables and the chairs and we fell against the floor."

Would you agree that what is said there and what is said in your application and what is said in viva voce, these things do not marry?

MR SIEBERT: I see what you mean. We, obviously, must have bumped against the tables and the chairs in the process of this scuffle, because it was a small room and we moved around. So, it had to happen like that.

MR MPSHE: So, would you agree that what appears in the application or what it says there is not entirely what actually happened?

MR SIEBERT: It is not complete?

MR MPSHE: So, it is not the complete picture of what happened?

MR SIEBERT: It is not complete.

MR MPSHE: Right.

At the time when you were making this, filling up this application, were you being questioned about the availability of other types of vehicles in transporting Biko to Pretoria?

MR SIEBERT: Was it during that time?

MR MPSHE: No, no, when you were filling up this application?

MR SIEBERT: With this application?

CHAIRPERSON: I do not understand the question, Mr Mpshe. At the time of making, filling up the application form?

MR SIEBERT: Yes, Mr Chairman.

CHAIRPERSON: Yes.

MR MPSHE: Was he, were you being questioned either by your lawyer or by any other person in as far as the availability of suitable transport is concerned.

MR SIEBERT: Yes.

MR MPSHE: Did you say no?

MR SIEBERT: I am saying yes.

CHAIRPERSON: Yes.

MR MPSHE: Ja. Who questioned you about the availability of other vehicles?

MR SIEBERT: Mr van der Merwe, the lawyer. This was the only vehicle available.

MR MPSHE: I see.

MR SIEBERT: And that was the case at that time.

MR MPSHE: What had prompted him to ask you about other vehicles?

MR SIEBERT: I think, I do not know. I do not know, I did not ask him why.

MR MPSHE: You see, why I am asking you this is because if you look back at your application again on page seven, page seven the typed page, sorry. The last paragraph, I think it is the last sentence, I will read for convenience, Mr Chairman.

"This vehicle was the only suitable vehicle in which he could be transported at this stage."

It gives one an impression that some means were made to get other, any other available vehicle.

MR SIEBERT: Yes.

MR MPSHE: Is that correct? Now, what means did you take then?

MR SIEBERT: To find another vehicle? Colonel Goosen first tried to arrange for an ambulance or a plane and his instruction was that those two were not available and that we should find a suitable vehicle within our own fleet of vehicles to actually transport him and that was the only suitable vehicle for that purpose at that stage.

MR MPSHE: Are we to believe that there was not even a single ambulance in your region, at that time, that could convey this man?

MR SIEBERT: I did not enquire about that, Colonel Goosen made the enquiries, he made the necessary arrangements or negotiations and that was the instruction.

MR MPSHE: Page eight of your application, once more. The very first paragraph, if it is a paragraph.

"It was clear that he was aware that the instruction had been given to transport Biko to Pretoria for purposes of further medical observation and treatment."

Colonel, are we to believe, really, that in the whole of Port Elizabeth, Uitenhage and the neighbouring areas there was no hospital that could house this man and give him medical care?

MR SIEBERT: I cannot comment on that, because it concerns negotiations between Colonel Goosen and the doctors and head office and I had no say in those.

MR MPSHE: Colonel, are you saying to this Committee that you were just acting as a robot, even if you were told that, take this man, fly him to the moon, you would go to the moon without questioning?

MR SIEBERT: No.

MR MPSHE: Were you not concerned by the state, the condition of the man at that time?

MR SIEBERT: I was, because I asked Dr Tucker, as I said earlier, what is wrong with this man, because I was worried. From the Wednesday that he was admitted to North End Prison, to the medical section, the four doctors who treated him and examined him, it was a worrying aspect that those four doctors could not come to any acceptable conclusion or solution as to his condition. As I said, I am not a medical expert. At that stage I was satisfied that the man would not die. Had I known, then I would not have come anywhere near him, to put it that way.

MR MPSHE: Yes, but, Colonel, you do not have to be a doctor to know that this person is not well. You testified when Adv Bizos was putting ... (intervention).

MR SIEBERT: Ja.

MR MPSHE: ... questions to you that the man could hardly walk?

MR SIEBERT: Yes, but, as I said, I did not know or anticipate that he would die.

MR MPSHE: And when you realised this man can not even walk, it meant that this man was not well, he needed immediate medical attention?

MR SIEBERT: As I said, Dr Tucker was there and I asked him and he said he did not know what was wrong with the man.

CHAIRPERSON: This answer has been given so often that I think we must just proceed with something else.

MR MPSHE: Thank you, Mr Chairman.

You testified in the last time that on your way you stopped somewhere outside Port Elizabeth where at you were, you got food to eat and then you noted that or you observed that he was not being clad, but you did not do anything to his being none, not, to him not being clad. Do you remember that?

MR SIEBERT: Yes.

MR MPSHE: Good. Now, at the time when you had stopped, bought food to eat, did you make any attempts to give him food as well?

MR SIEBERT: Whilst the other members were busy discharging him from the detention in Walmer and putting him into the vehicle, I first went home to pack clothes for myself and between that point and Walmer I bought food for him as well and when we eventually drove off and stopped just outside Port Elizabeth at Blue Water Bay it was already dusk and we quickly ate. Food was offered to him, but he did not want any. There was food for him.

MR MPSHE: I will not pursue that.

Today in your testimony you said the purpose, I know you have been asked this question time and again by both my learned friend as well as the Chairperson, but allow me to ask it once, to repeat that question once more. You were asked for the purpose of questioning and you said the purpose of questioning was to find out more about his activities pertaining to pamphlets and to protect the political dispensation of the day. Do you remember that?

MR SIEBERT: Yes.

MR MPSHE: Now, what was this dispensation which you were protecting at the time?

MR SIEBERT: The structures of the State. As Mr Bizos referred to earlier, the dissatisfaction regarding education, the own management of affairs, management of own affairs, as it was called. There were lots of things which caused dissatisfaction at the time and which gave rise to unrest, to strikes, to boycotts and stay-away actions and the like and the continuing violence and strikes had a negative influence on foreign investments.

MR MPSHE: Mr Chairman, can I just be afforded one, just one second to check on something in his application?

CHAIRPERSON: (...Indistinct).

MR MPSHE: Thank you, Mr Chairman. On page ten, I will just read what you said there, it is quite short, paragraph 1.2.

"By the above-mentioned objectives to ensure the existence of a normal western democracy as I knew it, to maintain the above and to ensure its survival."

Was there any democracy in the country at that stage, Colonel?

MR SIEBERT: With all due respect, Chairperson, it could be a difference of opinion and maybe I should make, so bold as to ask what the position is today from the perspective of a White person. So, I do not really want to comment on that. According to my opinion there was democracy at the time in the country. Admittedly, Black people were, to some extent, excluded.

CHAIRPERSON: I think ... (intervention).

MR MPSHE: So, when ... (intervention).

CHAIRPERSON: I do not think there will be, this Committee needs much persuasion as to whether the previous regime was a democracy or not.

MR MPSHE: Mr Chairman, I am not quite clear as to, with respect, to the Chairman's remark on, in this regard.

CHAIRPERSON: You ask him whether the, at that time, whether he considered South Africa was a democratic state.

MR MPSHE: Indeed.

CHAIRPERSON: And he is expressing his opinion. I am just telling you, you do not have to persuade this Committee on whether South Africa was a democracy or not at that time.

MR MPSHE: I am persuaded, Mr Chairman, thank you. No further questions. Thank you, Mr Chairman.

NO FURTHER QUESTIONS BY MR MPSHE

CHAIRPERSON: Mr Erasmus?

MR ERASMUS: I have got no further questions, thank you.

CHAIRPERSON: Thank you. Mr Booyens, any re-examination?

MR BOOYENS: No thank you, Mr Chairman.

ADV POTGIETER: Mr Siebert, I would like to just clarify one aspect with you. Typed page six of the documents, 13F of the paginated documents to which Mr Mpshe referred. Do you have that portion, second paragraph,

"Biko hereafter, once again took up a chair ...".

MR SIEBERT: Yes, I have it.

ADV POTGIETER: Your, you explain the situation which obtained at the time and you also referred to the chair and you say a couple of lines further down into the paragraph,

"I had to bend forwards to stop this chair after which Biko made a sudden sweeping motion in my direction. It seemed as if he wanted to strike me."

ADV POTGIETER: Is that correct?

MR SIEBERT: Yes.

ADV POTGIETER: So, he made some movement, but you are not entirely sure what it was?

MR SIEBERT: Yes, yes.

ADV POTGIETER: All right. Then you say he did not actually strike you?

MR SIEBERT: Yes.

ADV POTGIETER: You then pushed him in front of his chest and then you say,

"Whilst I wanted to speak to him ...".

In other words, after this little scuffle or incident with the chair and a movement which he made, you then wanted to talk to him? So, there was not a fight between the two of you?

MR SIEBERT: No. A lot of things have been mentioned here, a lot of sentences have been referred to, but it is difficult to explain what happened in a fraction of a second. All these things happened virtually simultaneously.

ADV POTGIETER: I accept that. I will accept that, but I am just simply looking at the incident as you have described it here. So, you wanted to talk to him? You were not fighting at that stage and then suddenly Warrant Officer Beneke entered or came from the direction of the door. So, Beneke was not on the scene, he suddenly appeared from the direction of the door. Is that correct?

MR SIEBERT: Yes.

ADV POTGIETER: And he pushed Mr Biko or he butted him in the stomach using his shoulder?

MR SIEBERT: Yes.

ADV POTGIETER: You did not call Beneke?

MR SIEBERT: No.

ADV POTGIETER: Nobody called him?

MR SIEBERT: These things happened simultaneously. I am sorry to say, it is not really they way, as you put it, it sounds as if there were intervals and that is not the way it happened.

ADV POTGIETER: I am simply asking you, Mr Siebert, on the document as you have explained it, whether that is correct and you are telling us that after the incident with the chair you then wanted to talk to Mr Biko and then Mr Beneke suddenly appeared from the direction of the door without anybody calling him.

MR SIEBERT: These things happened simultaneously, the chair was thrown and I averted it and then there was this sudden swinging movement from his side and me pushing him away and Mr Beneke coming between the two of us. So, there was no time for the two of us to talk to each other. There was no opportunity to talk to him, because I thought that I should talk to him, but before I could do so Beneke arrived.

ADV POTGIETER: So, you wanted to talk, you did not want to fight, you did not want to fight with Mr Biko, you wanted to talk to him and suddenly Beneke arrives on the scene and he actually pushes Biko and you then say,

"Biko then reacted violently."

So, after Mr Beneke arrives out of the blue and whilst you were still wanting to talk to Mr Biko, Beneke arrives and pushes Biko in the stomach and that is what led to the fighting?

MR SIEBERT: Yes, well, all these things, obviously, would have enraged him, as it also made us angry.

ADV POTGIETER: Exactly, so, Mr Siebert, if Mr Beneke had not stormed into the room and shoved Mr Biko in the stomach you would have spoken to him and there would not have been this fight?

MR SIEBERT: That is possible. Perhaps, if he had not hurled the chair and if he had not made that swinging movement then, perhaps, things would have turned out differently.

ADV POTGIETER: So, if, do you agree with me that if Beneke had not acted the way in which he had, there would not have been this fight? Is that correct?

MR SIEBERT: It is possible.

ADV POTGIETER: Thank you.

CHAIRPERSON: Yes, thanks very much.

WITNESS EXCUSED