In re: The Joint Inquest Concerning the Death of PHENDUKANI ZONDI and Eighteen others
FINDINGS AND REASONS
The Inquests Act 58 of 1959 requires an inquest to be held whenever it appears that a person has died of unnatural causes and there has been no prosecution. The purpose which is served by an inquest was described by the Appellate Division in Marais N.O. v Tiley 1990 (2) SA 899 (A) at 901 F-G as follows:
"The underlying purpose of an inquest is to promote public confidence and satisfaction; to reassure the public that all deaths from unnatural causes will receive proper attention and investigation so that, where necessary, appropriate measures can be taken to prevent similar occurrences, and so that persons responsible for such deaths may, as far as possible, be brought to justice".
Approximately fifty people lost their lives violently in and around central Johannesburg on 28 March 1994. The present inquest is directly concerned with only nineteen of them. Some of the other deaths which occurred on that day were also connected with the events with which we are concerned but they have been the subject of other inquests. They have some relevance though to the evaluation of the evidence which is before us.
In terms of section 16(2) of the Act an inquest court is required to record findings on four specific issues listed in subsections (a) to (d), if it is able to do so. It is required to record findings as to: (a) the identity of the deceased; (b) the cause or likely cause of death; (c) the date upon which he died; and (d) "whether the death was brought about by any act or omission prima facie involving or amounting to an offence on the part of any person."
With regard to the last of these findings it must be borne in mind that an inquest is not a substitute for criminal proceedings. Clearly the purpose of requiring this finding to be made is to determine whether the prosecution of any person for having brought about the death of the deceased is called for, and the function of an inquest is to consider and make an assessment of the available evidence for that purpose. Its findings in that regard have no final or binding effect, and it remains within the discretion of the Attorney-General to decide whether or not there should be a prosecution, irrespective of the findings of an inquest, or to cause further investigations to be made where this is appropriate. Needless to say the findings of an inquest have no relevance at all in the deliberations of any court which may subsequently be seised of the matter.
In construing what is required by section 16(2)(d) of the Act it is important to bear in mind then that an inquest is of an essentially preliminary nature and does not itself purport to determine criminal liability. Nevertheless that does not mean that a positive finding is to be recorded in terms of s.16(2)(d) merely because the evidence shows that it is possible, or even probable, that an offence was committed. As pointed out by Stegmann J in the Inquest into the death of Dr David Webster (unreported), the idea of attributing criminal responsibility upon evidence which carries only that level of persuasion is entirely foreign to our legal system, and I do not think that the legislature intended to introduce some novel form of doing so. I have already pointed out that the purpose which is served by s.16(2)(d) is to determine whether there should be a prosecution. No good purpose would be served by requiring a positive finding to be recorded in terms of s.16(2)(d) if on the evidence which is available a prosecution would be bound to fail, notwithstanding that it may be possible, or even probable, that an offence was committed.
In interpreting what is meant by s.16(2)(d) in my view it is essential to bear in mind, as pointed out by Zietsman JP in Re Goniwe & Others 1994 (2) SACR 425 (SECLD), that an inquest court does not always have all of the available evidence at its disposal. In an inquest there is no accusation; interested parties do not have the right to place evidence before the court, nor to cross examine witnesses; and indeed they may not even be aware of the proceedings. An inquest differs so fundamentally from criminal proceedings in this regard that it can seldom be said in an inquest that facts have been established beyond reasonable doubt. The most that could generally be said by an inquest court is that the evidence which is before it allows for no other conclusion but that an offence has been committed, but that this may not be all the evidence which there is on the matter. Moreover, the assessment of evidence is not a precise science, and there may often be some scope for another court to reach a different conclusion with regard to the credibility of witnesses and the overall probabilities. It seems to me to have been these reservations which Zietsman JP had in mind in Goniwe's case, in which the test to be applied for a positive finding to be recorded in terms of s.16(2)(d) was formulated as follows:
"In my opinion the test envisaged by the Inquest Act is whether the judicial officer holding the inquest is of the opinion that there is evidence available which may at a subsequent criminal trial be held to be credible and acceptable and which, if accepted, could prove that the death of the deceased was brought about by an act or omission which involves or amounts to the commission of a criminal offence on the part of some person or persons."
Referring to the first part of that test in the Inquest into the Death of A.T.E.A. Lubowski (unreported Namibia High Court) Levy J said that it is for the inquest court itself to decide whether or not a witness is "credible and acceptable", and if he is not, to reject his evidence when reaching its conclusions, and this approach was approved in Padi & Another v Botha N.O. & Others 1995 (2) SACR 663(W), in which Schabort J said the following:
"Die regterlike beampte moet sy bevindinge op sy eie indrukke en insigte vestig en sy bevindinge is op volvoering van sy eie taak gerig. Hy is nie geroepe om hom in die skoene van die Prokureur-generaal of die strafhof in te beeld nie."
While it is true that it is for the inquest court to make its own assessment of the evidence, it must do so on the basis that it is called upon to reach only a prima facie finding, which will take account of the matters which I have dealt with above.
The further observations made in Padi's case at page 627i concerning the approach to be taken when there is evidence which purports to justify the killing were obiter and are not binding upon me, and I do not think they are correct. An inquest court must reach its conclusion upon all the evidence and I do not think it can exclude from its mind evidence which might show that the death was caused lawfully.
Insofar as the second part of the test which was formulated in Goniwe's case might suggest that the mere possibility of a conviction is sufficient for a positive finding to be recorded in terms of s.16(2)(d), I have some difficulty seeing how this could be applied in practice, and I doubt that this is what the learned judge could have intended. In my view what is required for a positive finding to be recorded in terms of s.16(2)(d) is that the inquest court should be of the opinion that a prosecution based on the evidence which it has could reasonably be expected to succeed.
Most of the evidence, and the argument which we have heard, has been directed primarily towards the question of whether the evidence establishes, prima facie, that an offence was committed. While this is important, it ought not to be thought that the determination of that issue is the sole purpose of an inquest. Marais v Tiley makes it clear that an inquest serves as much to ensure that an enquiry takes place, if only to promote confidence and to enable measures to be taken to prevent similar occurrences in the future. From the evidence which we have heard over some six months in my view the importance of that purpose is not to be underestimated. A large number of lives were lost on 28 March 1994 in circumstances which ought not to have occurred. If this inquest has served to throw some light on those circumstances so as to assist in avoiding their recurrence, it will have served a good purpose.
This has been a joint inquest into the deaths of those concerned, which is permitted by the Act where the deaths are connected, whether or not they occurred in the same incident. Although there may be said to be some connection between all the deaths in the present case, they really arose in the course of eight separate incidents, in respect of each of which the evidence is quite distinct and in some cases of considerable complexity. Furthermore the quantity of evidence which is before us is enormous.
At the commencement of the inquest close to a thousand sworn statements and other documents were placed before me in terms of s.5 of the Act. By far the majority of those statements have turned out to have been inaccurate and unreliable in varying degrees, and even where this was not intended their effect was often to be misleading. What they presented seemed initially to be little more than a web of contradictory and unrelated facts. In addition to those statements we now have before us the oral evidence of some eighty witnesses, in a record of nearly 8000 pages; considerable further documentary evidence; and some forty hours of videotape footage which is not in any sequential order.
The quantity of evidence which we have before us though is in inverse proportion to its quality. Apart from its sheer volume, the assessment of the evidence has presented particular difficulties in the present case. In our view what has been central to the difficulties which have been posed in this regard has been the manner and the extent to which the deaths which occurred on 28 March 1994 were initially investigated.
Neither the police nor the ANC nor the IFP are free from blame for the inadequacies of the investigation insofar as it related to the responsibility of the personnel or members of each of them for the deaths which occurred on that day. There was no meaningful investigation at all by the police into the role of its own members in relation to the deaths which occurred in the vicinity of Library Gardens. The investigation into the conduct of ANC personnel was frustrated by the withholding of information.
The IFP seems simply to have washed its hands of any responsibility for the conduct of its members. Each of the protagonists has sought to cast the blame on the others for the course which the investigation, or lack of it, took, but on the face of it none of them are free from blame themselves. However, I do not intend to dwell on this topic, because to do so would divert the true focus of this inquest. I have raised the matter only because of the material bearing which all this has had on the quality of the evidence which we have heard.
By the time the matter was placed in the hands of the Attorney-General in about September 1995 only a fraction of the statements which are now before us had been taken. Some had been taken at the instance of one or other interested party for the purpose of placing before the Goldstone Commission which enquired into the events shortly after they occurred, and were not always concerned with a careful presentation of the facts. By far the majority of the statements which were eventually placed before us were taken well after the events had occurred, and in many cases this was eighteen months and more. The passage of time by itself creates considerable scope for even an honest witness to forget, to err, and to reconstruct. The result was that not only were the initial statements of many witnesses suspect in the first place, but further detail which emerged when the evidence was probed in the witness box more than three years after the event often only added to the difficulty.
Moreover, many of the statements which were made, and much of the evidence we have heard, have also been untruthful, or selective in what has been revealed. When it has come to the conduct of those amongst their own, many of the police witnesses, and those from the ANC, and those from amongst the demonstrators, have been neither truthful nor frank. We have heard the evidence of many policemen in relation to the events which occurred at Library Gardens, but in our view none of them can be regarded as reliable and many have been untruthful.
A number of ANC guards have now come forward and admitted to having shot at Shell House, but this has not been in order to provide a truthful and frank account of what occurred, and we think that the roles which were played by each of them and by others have not been fully disclosed. There has been no proper account at all for what occurred at Lancet Hall. As for the demonstrators, any attempt to obtain explanations from them for the role which they played in the various events has been met either by obfuscation or a stony silence. The scale of the dissemblance in the present case has been quite extraordinary.
What has hampered this inquest further is the apparent indifference to what we would have thought to have been standard police practices. A police officer is not expected to have an infallible memory, but what can be expected is that he will make a contemporaneous and accurate record of his observations for use in any later proceedings, but there was little evidence of this having been done in the present case. Moreover, no proper record was always kept of exhibits which were found, or what then became of them; reports were not made of shooting incidents in which policemen were involved although standard police practice requires this; statements were often taken from witnesses, and made by policemen, with little care for their accuracy; affidavits were deposed to with little regard for the legal formalities; and entries in official records as well as affidavits dealing with what ought to have been formal matters often proved to be unreliable. Without care being taken at that level of an enquiry the proper administration of justice is placed at considerable risk.
Although there is an enormous amount of evidence before us, very little of it can in our view be regarded as reliable for one or more of the reasons which I have mentioned, and we have been left with a morass of evidence but little in the way of established facts. Many questions have arisen in the course of this inquest which are not capable of being adequately answered for no reason other than that the evidence dealing with the issue is so diffuse, distorted or unreliable that it would be misleading to attempt to draw any conclusions therefrom.
With regard to those issues which are more material to our findings I do not intend setting out or analysing in detail all the evidence relating thereto, and as far as possible I have confined myself to setting out where in our opinion the weight of the evidence lies. For convenience I have referred to the various witnesses where appropriate by the designations they held at the time, although in many cases these have since changed.
There is one further matter which I should deal with. I pointed out in an earlier ruling that it was clear from the outset of this inquest that it would not be practicable to hear orally all the evidence which might be relevant to our findings, nor in my view are we bound to do so since the amendment to s.16(2)(d) which was effected in 1991. There is considerable further evidence though which is in documentary form, and which is less directly relevant. Throughout this inquest we have been urged by certain of the interested parties to confine our enquiries only to the immediate circumstances surrounding each of the deaths and to disregard the remaining evidence. I do not think we should adopt that approach. We could not properly assess the evidence in this matter by divorcing it from its context, and furthermore in my view this inquest would fail in its broader purpose if we were to do so.
Documentary evidence is admissible in proof of its contents in terms of s.13 of the Act, and in my view it is implicit that it may be admitted too for the lesser purpose of informing the court what further evidence is available on the various issues. A positive finding in terms of s.16(2)(d) is essentially preliminary in nature, and in considering whether such a finding should be made our function is primarily to assess what evidence is available rather than to reach any final conclusion as to its effect. I have placed all the available evidence before this court to serve that purpose but we have borne in mind that evidence which has not been tested must be weighed accordingly. Furthermore I have not intended thereby to introduce evidence which would for other reasons be inadmissible in a criminal court, and such evidence has been left out of account in reaching our conclusions.
I need only add that the conclusions of law set out herein are my own but the remaining conclusions represent the unanimous opinion of this court.
The deceased all died in circumstances connected with a political demonstration which took place in central Johannesburg on 28 March 1994. Ten of the deceased died in incidents which occurred in and around the Library Gardens. The other nine died in two incidents which occurred in the vicinity of the ANC's regional and national headquarters at Lancet Hall and Shell House respectively. I will deal separately in due course with each of these incidents. However, before doing I intend dealing with certain matters which arise more generally from the evidence, and thereafter with the sequence in which events occurred, so as to provide the background against which the various incidents are to be viewed.
The Political Context
The events of 28th March 1994 are intimately connected with their political context. It is notorious that there had been a long history of at times violent conflict between some of the supporters of the Inkatha Freedom Party (IFP) and others who supported the African National Congress (ANC), and political rivalry was intense at the time with which we are concerned. It was then a little less than a month before the country's first democratic election, and a time of great turbulence, with considerable potential for conflict, violence, suspicion, and fear that the transition to democracy could be derailed.
In about February 1994 the IFP declared its opposition to the holding of the election. Seen against the background of what was then occurring there was the very real prospect that its opposition might result in disruption of the election which could spill over into violence. Moreover the homeland authority of Bophuthatswana had also taken a stance against the election and had subsequently been ousted from office on about 12 March 1994 by the Government of South Africa acting in concert with the Transitional Executive Council, amidst reports of rioting and loss of life. Leading figures in the ANC were reported in the media to have threatened from time to time that the same fate could await the authority in Ulundi. Ten days later the ruler of the Ciskei succumbed to pressure to resign, amidst reports of an impending revolt of the police and armed forces. Mass demonstrations were also the order of the day, which at times were accompanied by violence.
It is against that background that the demonstration with which we are concerned took place, in which many thousands of people, armed in the main with spears, sticks and an assortment of other potentially lethal weapons, but also with a significant number of firearms, converged upon the city centre of Johannesburg to gather at the Library Gardens.
The Arrangement and Nature of the Gathering
Who was responsible for arranging the gathering and the purpose it was intended to serve was sought to be obfuscated in much of the evidence which we heard. What has emerged though is that it was preceded by three meetings which were held at the offices of the IFP in Johannesburg. The first meeting was held on the evening of 13 March 1994. There is evidence that it was attended by Mr V. Mvelase, who was the Chairman of the Executive Committee of the IFP in the Transvaal; Mr Humphrey Ndlovu, who was the Chairman of its West Rand branch; and Mr Themba Khoza, who was described as a "political director" of the IFP. Both Mr Ndlovu and Mr Khoza said that it was also attended by a large number of Zulu indunas, but there is nothing to support this and the evidence of witnesses from the traditional hierarchy all suggests the contrary.
According to Mr Ndlovu a decision was taken on the 13th that a further meeting should take place three days later. Apart from Mr Ndlovu and Mr Khoza others who attended this subsequent meeting were Prince Joseph Zulu, apparently the most senior person in the Zulu traditional hierarchy in this region, and some twenty or more senior indunas. Prince Zulu suggested in his evidence that this meeting was called on his initiative but in view of Mr Ndlovu's evidence that it had already been decided upon on the 13th this is unlikely. It was at this meeting that it was agreed that a gathering should take place at the Library Gardens, and according to Prince Zulu that message was sent out to the hostels.
On 23 March a written application for permission to hold what was described as a "gathering" at the Library Gardens was delivered under cover of a letter to the magistrate at Johannesburg and, it seems, to the City Council. The application form reflected that the applicant was the IFP and that the person responsible for organising the event was Mr Ndlovu, and it was signed by Mr P. Magwaza who was at the time Chairman of the IFP's Dobsonville Branch. The covering letter was on the letterhead of the IFP and was signed by Mr Ndlovu in his capacity as Chairman of the West Rand branch of the party. In both these documents the gathering was said to be for the purpose of launching the IFP's "anti-election campaign". That evening a further meeting was held, attended this time by many indunas extending lower down in the hierarchy.
The magistrate to whom the application was made was apparently of the view that his permission was not required for a "gathering", and Mr Ndlovu was informed accordingly. Permission was required from the City Council in terms of its By-Laws, and was granted on behalf of the Town Clerk on 25 March 1994 subject to various conditions. Amongst other things the applicant was required to indemnify the Council against any damages, costs or claims which might arise, and a written indemnity was issued on the same day by Mr Magwaza in the name of the IFP.
We have heard it said many times in the course of this inquest that the event arose spontaneously at the will of the people who participated in it, but we think that is entirely unconvincing. From the facts which I have outlined above it is evident that Mr Ndlovu and Mr Khoza, who were leading figures in the IFP, were instrumental in the conception of the event, before any of the traditional hierarchy became involved. It was organised at the offices of the IFP, and in its name, and the IFP provided an indemnity for any damage which was caused. We think the inference is inescapable that the gathering took place at its instance.
In the application for permission to hold the gathering it was said to have been for the purpose of launching a campaign by the IFP against the holding of the election and we see no reason to doubt this. The suggestion that it was restricted to expressing support for the demands of the Zulu monarch, while not inconsistent with this, in our view has simply been contrived to avoid responsibility falling at the door of the IFP. The events which had occurred in Bophutatswana and the related threats which had been made by ANC leaders probably also played some role in the decision to hold the gathering. Indeed Mr Khoza said that the purpose of the gathering was to "show disapproval of those kind of things", and there is support for this too in the terms of an inflammatory speech which was made by Mr Ndlovu on the day. The suggestions in the evidence that the gathering was unrelated to the ANC is in our view disingenuous.
The organisers made no attempt to coordinate with the peace structures, or with the police, or to organise the event in a manner which would minimise disruption. Thousands of people converged on the city from all directions, on foot, in vehicles and by train, and the progress of many of them was accompanied by widespread intimidation and vandalism. It is difficult to avoid the conclusion that this is what the organisers expected would happen. That is supported by remarks made by Mr Khoza early that morning, when he was telephoned by Captain Wilken, who was in charge of community liaison, in response to reports which had been received that commuters were being intimidated in Alexandra, and that stones were being thrown. A transcript of that conversation records him saying to Mr Khoza that "your people are breaking down the place," to which there is the extraordinary reply that he "must expect that". When Captain Wilken told him that people were "throwing stones etc etc" Mr Khoza replied that "things have changed now," and "it look like Inkatha is not going to be the same all the way now. So it's a question of expect that". Captain Wilken told him that he had been in touch with the Internal Stability Unit, who wanted to block the people from coming into town, to which Mr Khoza replied that they "should not try that".
There was considerable violence during the preceding night, particularly in the area of certain of the hostels, and according to the records of various inquests which have been held a number of people were killed by some of the demonstrators in the course of their progress into the city. It is also clear that a substantial number of those who came to the city were armed with firearms. Relying largely on these facts it was submitted in argument that the intention was to bring what was described as "war" to the centre of Johannesburg, but we think that overstates the position. The many instances of serious violence committed by some of the demonstrators during the course of the day appear to us to have been sporadic, rather than part of an orchestrated campaign. Furthermore, there are many hours of videotape which show large numbers of people proceeding to the city in a manner which was relatively peaceful and disciplined, and the demonstrators were by no means all bent upon lawlessness.
Different aspects of the evidence when viewed in isolation point to various possible inferences as to what purpose was intended to be served by the holding of the gathering. Viewing the various events which occurred during the course of the day from a broad perspective, and against the background of the political circumstances which then prevailed, we think it would be true to say that its purpose went beyond the mere holding of a meeting at Library Gardens to voice grievances, but on the other hand we do not think that the evidence shows that its purpose was to unleash an orchestrated campaign of violence and destruction. In our view the evidence overall is indicative rather of an intention to display to the country at large, and to the ANC and the government in particular, the strength which the IFP could muster and the capacity which this had to create turmoil if their interests were placed under threat. The conduct which accompanied the event; the intelligence which was received by the police; the remarks made by Mr Khoza; the speech which was made by Mr Ndlovu; and the political context within which it occurred, all seem to us to provide support for this inference at least, but we do not think that the evidence which we have heard goes beyond that.
The organisers of the gathering made no formal approach to the police to alert them to what had been arranged. The police first heard of the gathering through their intelligence sources, and later they received from the magistrate a copy of the application which had been made for permission to hold the gathering.
Colonel Pieter Calitz was at that time the operational officer at district headquarters in Johannesburg. Upon being informed of the gathering which was to take place he summoned a meeting of the operations committee to plan the policing of the event. That meeting took place on Friday 25th, and was attended by senior police officers and representatives of the traffic department and the army.
It will be readily apparent that the policing of the gathering presented considerable difficulty. No specific route had been chosen for those attending the gathering to follow to their destination, and what could be expected was that thousands of people armed with spears, sticks, and assorted weapons, and some with concealed firearms, would converge upon the city centre from all directions, on foot, in vehicles, and by train, and that is what in fact occurred.
Approximately 740 police officers and army personnel were to be on duty on 28th March. According to the police evidence they anticipated that there would be some intimidation, pillaging, and vandalism, and the planning was directed towards monitoring the demonstrators as they approached the city in order to guard against this occurring to the extent that this was possible. We think the evidence as a whole shows that they were conscious of the inherent possibility that demonstrators might turn their attention in some way to strategic buildings in the city which bore some relationship to the forthcoming elections, and more particularly the premises of the Independent Electoral Commission and of the ANC, but there was no specific information available to them to indicate that this might indeed occur. They were aware that the ANC had their own security staff and were well equipped with firearms, and considered that the risk of this occurring at the premises of the ANC was minimal. We think it is evident from the evidence of Major Peche in particular, who attended the meeting, that they considered that it would have been foolhardy in those circumstances for any attempt to have been made to invade or occupy the ANC's premises, and on the information available to them we do not think that view was unrealistic.
There has been criticism of the police in the course of this inquest for their failure to have prevented the various acts of violence which occurred on 28th March, and various submissions have been made as to the steps which might have been taken to avoid it, but much of this criticism seems to us to rely upon the benefit of hindsight. We do not think the police could be expected to have prevented all violence from taking place. Thousands of people converged on the city from all directions and violence or other acts of lawlessness could have broken out at any time and place.
It has been submitted that the police should have disarmed the demonstrators before they arrived in the city, but that is entirely unrealistic. We heard the evidence of General de la Rosa of the Internal Stability Unit, who said that that would have been an almost impossible task, and to have attempted to do so would have resulted in even more bloodshed, and we have no reason to doubt his evidence in this regard. It must be borne in mind too that the law at that time was somewhat ambivalent with regard to the carrying of dangerous weapons. Even if the police had had unambiguous legal powers there was little that they could realistically have done to disarm all the demonstrators.
On the afternoon of Sunday 27th March Mr Mandela, the President of the ANC, telephoned the State President, Mr de Klerk, and he later telephoned General van der Merwe, the Commissioner of Police, but the information which was conveyed to them was at best unspecific. According to Mr Mandela's statement, he informed them that the ANC had information that there would be unspecific "attacks the next day against the public and more particularly the ANC", but according to the affidavits of Mr de Klerk and General van der Merwe he referred to conflict which could be expected that night at the hostels on the East Rand and in Soweto. We do not think that conflict in the evidence is material to any of the findings we are called upon to make. The operational officers were not informed of anything other than that conflict was expected at the hostels, and they took steps to deal with this. Even if they had been informed of unspecific attacks which were expected the next day it is difficult to see what they could be expected to have done to prevent this, other than to monitor events and react where necessary, as they had planned to do and indeed did. There is substantial evidence that as a result of these calls patrols were stepped up around the more volatile hostels, and some roadblocks were erected in those areas. The evidence shows too that there was indeed considerable violence in those areas in the course of that night.
Mr Joseph Nhlanhla was head of the ANC's Department of Intelligence and Security. He was telephoned at his home by a member of the ANC in Soweto early on the morning of the 28th and informed that violence was occurring in Soweto and that there was general fear amongst commuters who were preparing to go to work. He telephoned Brigadier Beukes, who was in the Division of Community Relations in Pretoria, and informed him of this at 06h00 or 06h30 that morning. What is important though is that even Mr Nhlanhla did not expect any undue problems to occur during the course of the day. He said that when he arrived at work he did not initially expect that anything would occur which could not be managed. However it is apparent from the evidence as a whole that as the day unfolded concern amongst both the ANC and the police increased.
The major criticism of the police though has been that they failed to respond fully to appeals made by the ANC to provide greater protection in the vicinity of the ANC's premises. A number of telephone calls were made to various police officers by ANC officials in the course of the morning, which reflect a growing concern with what was seen to be occurring, and there were repeated requests to the police to provide greater protection to the ANC. What is important to bear in mind though is that there was a clear divergence between the ANC and the police as to what measures each considered appropriate for the police to take in the circumstances.
It is apparent from some of the telephone conversations to which I will refer more fully below, and from other evidence which we heard, that what was of concern to the ANC was the mere presence of demonstrators near to their premises, because of the inherent risk which this created that trouble of some kind could occur. Quite evidently the safest course to avoid any trouble would have been to ensure that the demonstrators were kept away from the ANC's premises entirely and went about their ostensible purpose of attending the gathering at Library Gardens, and that is what the ANC was expecting the police to ensure. Whether this was to be by providing policemen in sufficient numbers to keep demonstrators away, or by using some physical means such as razor wire in order to do so, is not really important. In either event what the ANC wanted is that the demonstrators should not be in the vicinity of their premises at all.
The fact that the ANC wanted the demonstrators to be kept away from their premises entirely is apparent from a telephone conversation between Mr Nhlanhla and Captain Wilken shortly after 08h00 that morning, and it is apparent also from two conversations which took place between the head of security, Mr Leonard Radu (now deceased) and the police at 09h00 and 10h00. We think this is implicit too in the evidence relating to other conversations which took place between members of the ANC and the police during the course of the morning but I do not intend traversing them all specifically.
That expectation on the part of the ANC was not in fact met by the police, and has been the source of much of the criticism levelled against them. However it would not be correct to say that the police simply ignored the requests to provide police assistance. It appears from the police evidence, and from what occurred, that the police considered that it was appropriate merely to place observers in the vicinity of Shell House, whose function was not to keep the demonstrators away from the precincts entirely, but rather to monitor them when they were there and to call for assistance if anything untoward happened which made it necessary to do so. From earlier that morning a group of about ten army personnel in an armoured personnel carrier had been stationed alongside Shell House in Klein Street for just that purpose. There were also a police major and two policemen patrolling in a vehicle in the vicinity of Shell House from early that morning and they were later joined by four more policemen. Quite obviously this was not a sufficient force to keep demonstrators from approaching near to Shell House, or to deal with any major confrontation which occurred, but that was not the function which they were placed there to fulfil. There is also evidence to which I will refer more fully when dealing with the sequence in which events occurred, that shortly before the shooting took place at Shell House steps were being taken to close off the area in front of the building to traffic and pedestrians but this had not yet been done when the shooting occurred. It was submitted that this was all too little and too late, and in one sense it was, but one must bear in mind that the police did not expect any major confrontation to occur there.
We have heard evidence that there were sufficient police and army personnel in reserve to have kept the demonstrators away from the ANC's premises if this had been considered necessary, and the police could similarly have placed a physical barrier around the premises. Quite evidently if the police had taken such steps, demonstrators would not have been in the vicinity of Shell House and Lancet Hall in the first place, and the shooting which later took place there would not have occurred. While it may well have been prudent for the police to have done so, the question we are required to consider is whether their failure to do so can be said to have been negligent.
As I will indicate more fully below, the question which arises in that regard is not what duty the police owed to the ANC, but rather what duty they owed to the deceased, and this depends upon what harm they ought to have foreseen might occur to the deceased. I do not intend in the circumstances to deal with all the submissions which we heard in relation to the manner in which the police are said generally to have failed in their duties, but later in these reasons I will deal with that question insofar as it is material to the findings which we are called upon to make. At this stage it is sufficient to say only that the failure of the police to provide the protection which the ANC considered was appropriate is likely to have exacerbated the anxiety of the ANC personnel and to have contributed to how they acted.
The Alleged Conspiracy
There was some suggestion in the evidence with which we were initially presented that a conspiracy existed pursuant to which people attending the gathering would launch an attack upon the ANC's headquarters at Shell House for the purpose of gaining entry to the premises and killing leading members of the organisation, and that the gathering was no more than a smokescreen to facilitate this. The only admissible evidence purporting to establish the existence of such a plan was the evidence contained in an affidavit deposed to by a certain Mr van Heerden long after the event.
Upon examination his evidence fell far short of establishing the conspiracy which his affidavit suggested. What his evidence amounted to was no more than that a year or more before the event he had been a party to informal discussions at times between one or other senior members of the IFP and one or other member of the police Vlakplaas unit, at which possible strategies to do damage to the ANC, including the possibility of such an invasion of Shell House, were mooted. On 28 March 1994 and for some time thereafter Mr van Heerden was in Denmark, where the events which had occurred in central Johannesburg on that day were reported on television news.
Upon seeing news reports of what had occurred he drew the inference from what had been said over a year earlier, taken together with certain equivocal remarks which he alleged were made to him by Mr Khoza and Mr Ndlovu a week or so before the event, that what had been discussed had now been brought to fruition. In our view his evidence, even if it is true, is quite insufficient to warrant the inference that there was such a conspiracy, and it is not necessary for that reason to deal with the conflicts between his evidence and that of Mr Khoza.
The Alleged Information of a Plan to Attack Shell House
There has also been considerable evidence relating to what the ANC and its personnel are alleged to have expected to occur on Monday 28th. It is an issue which has permeated much of what we have heard in the course of this inquest and in our view much of the evidence we heard has been distorted to accommodate it.
Some of that evidence has purported to establish that the ANC or its personnel had received specific information that an attack upon Shell House had been planned to take place during the course of the day, with the intention of causing damage to the premises and serious injury or death to the leaders of the ANC.
There was some suggestion of this in an affidavit deposed to by Mr Mathews Phosa, who was the secretary of the ANC's Department of Intelligence and Security, and in the evidence which he gave, but upon examination his evidence came down to no more than that he received information from an undisclosed informant that there would be "trouble" at Shell House on the following day, and he merely inferred that there would be such an attack.
There is also evidence on affidavit by Mr Tokyo Sexwale that on Sunday 27th he was informed by Mr Obed Bapela that the ANC's regional office and Shell House would come under attack, and he said he conveyed this to General Calitz in the course of a telephone conversation that afternoon. Although it was not denied that a telephone conversation took place, General Calitz denied that such information was conveyed to him.
We have considerable difficulty with this evidence, which on the face of it does not correlate with much of the other evidence. What is perhaps more important though is the lack of credible evidence that information of the existence of such a plan came to the notice of the ANC security hierarchy responsible for the security of Shell House. There is some evidence that information relating to an attack upon Shell House came to the attention of Mr Leonard Radu, who was the head of security, and Mr Kruser, who was his deputy, but in our view that evidence is vague, unsatisfactory and unconvincing.
Mr Radu is now deceased, but he deposed to an affidavit in which he made no mention at all of having been told that there was a plan afoot to attack Shell House, which is in conflict with Mr Kruser's evidence on the issue. I have already indicated too that Mr Nhlanhla said that when he arrived at work that morning he did not expect anything to happen which could not be managed, which is quite inconsistent with any knowledge of a plan to attack Shell House. There was also evidence from some of the security guards that they had received information of such a plan during the days which preceded the gathering. The source of the information which they claimed to have received varied but is traceable only to vague sources or to Mr Kruser.
If there had been information of such a plan it is inconceivable that it would not have been communicated to the police in plain and unambiguous terms. It is inconceivable too that it would not have come to the attention of many others amongst the ANC leadership who, judging by their affidavits, had no knowledge thereof. Knowledge of the existence of such a plan is also inconsistent with many of the conversations which took place with the police, and with the actions of members of the security department on the day of the event, more particularly Mr Nhlanhla, Mr Radu and Mr Kruser.
I do not intend dealing in detail with all the evidence on this issue. In our view the suggestion that by the morning of Monday the 28th the ANC or its personnel were in possession of information specifically of a plan to attack Shell House is wholly inconsistent with the weight of the evidence. Prima facie in our view the evidence to that effect has been no more than a makeweight which was fabricated after the event so as to bolster the explanations which have been put forward for the shooting which occurred at Lancet Hall and Shell House.
It is quite likely though that there were rumours of varying reliability over the course of the days which immediately preceded the gathering relating to what could be expected to take place on Monday 28th, some of which may have been extravagant. There is substantial evidence that the personnel and the leadership of the ANC were indeed apprehensive as to what would occur, and that this apprehension increased during the course of the day. The political circumstances which then prevailed; the lack of organisation which accompanied the gathering; the failure to make proper arrangements with the police; and the failure to notify and involve the various peace structures which then existed, would all have provided good grounds for apprehension.
Moreover what would have been seen during the course of the morning was not an orderly march to a rally which was to take place at the Library Gardens, but armed groups converging from all directions amidst considerable intimidation, vandalism, and sporadic acts of violence, and some groups walking through the streets of the city not apparently intent upon proceeding directly to the Library Gardens. It would be quite natural for this to have increased any initial apprehension, and in our view there is substantial evidence that it indeed did so. However that is a far cry from knowing that a plan existed for an attack to be launched against Shell House.
The Sequence of Events
The most reliable overall account of the sequence in which events occurred during the course of the morning is to be found in the record of the radio communications between various police officers. Although this constitutes hearsay, the messages which were recorded were contemporaneous, spontaneous, and most often reflected what the policeman concerned was himself observing.
By early that morning people were gathering in large numbers at various places on the outskirts of the city, and smaller groups were coming together in the city itself and in Hillbrow.
It appears from the evidence that ANC officials, and particularly the security staff, were also by then arriving at work. The person in charge of the security of Shell House was Mr Andrew Sithlabane. It was his practice to conduct a briefing session of his senior personnel each morning to allocate duties to the staff under his control. There are various versions of what he said during the briefing session which took place that morning, and we think that much of this evidence has been tainted by the ex post facto attempt to show that there was information available of a plan to attack Shell House and we do not think that it can be relied upon at face value.
Mr Sithlabane himself said no more than that he alerted his staff to the "general talk" and "rumours" that there might be some unspecified attack directed towards Shell House. Four members of the night staff were requested to remain on duty with the normal complement of day staff. All had pistols, but no other abnormal precautions appear to have been taken at that stage, although they were instructed to be particularly alert. According to Mr Singaram, whose normal task was an office function, when he passed through the foyer that morning he was told by Mr Sithlabane no more than that he was "expecting problems" and he might be called in to assist. Mr Nhlanhla said that when he arrived at Shell House the mood was "tense" but that initially at least he did not expect a major problem which could not be managed.
At about this time small groups of Zulus were wandering around the city and others were reported to be approaching from Hillbrow. At what must have been about 08h00 a small group of not more than fifteen Zulus, and perhaps a lot less, carrying amongst them sticks, shields and spears, was moving east along the northern pavement of Jeppe Street. The regional offices of the ANC were at that time situated in Lancet Hall, on the corner of Jeppe and von Wielligh Streets, and a number of ANC security guards were standing in and around the entrance on the northern side of Jeppe Street.
As the group came alongside the entrance there was an altercation of some kind, the precise nature of which we have not been able to establish. What is clear though is that the Zulus had already passed the entrance of Lancet Hall and were running along the pavement towards Delvers Street when shots were fired at them by certain of the ANC guards, who then retreated into the entrance of Lancet Hall and pulled the roller gate shut behind them. Two men who had been in the group of Zulus were each struck by a bullet in the back of the leg. A pedestrian who happened to be at the corner of Delvers and Jeppe Streets was also struck by a bullet in the leg, and vehicles which were stationary at the intersection were struck by bullets.
The incident brought a number of policeman to the scene from the nearby Smal Street satellite station. At first they were refused entry by the ANC security guards, and Constable Potgieter, whom we see no reason to doubt on this, ran around the side of the building to the vehicle entrance in Von Wielligh Street where he forced his way through the hydraulically controlled gates, damaging them in the process. He and a colleague proceeded to the first floor of Lancet Hall, where they were met by other police officers who had by then gained entry, but after a short while they all left the premises.
Various ANC officials telephoned the police after this incident, apparently in response to it. At about 08h15 Mr Nhlanhla telephoned Captain Wilken. It is apparent from the transcript of that conversation, part of which was recorded, that the incident had been reported to Mr Nhlanhla but that Captain Wilken was not yet aware of it. The recording commenced only some way into the conversation, and reflects complaints by Mr Nhlanhla that groups of Zulus were "running around the city with nobody stopping them".
There are many suggestions by Mr Nhlanhla that unless the police took action the ANC might have to intervene itself. Amongst other things he said that they were "not going to allow our offices to be surrounded, you know, and our people intimidated;" he asked for the flying squad to "remove these people before there is an incident;" and said "we don't want Inkatha next to our office". Captain Wilken attempted to placate him, saying that people were being sent to patrol the area.
There is some dispute as to what was said in the earlier unrecorded part of this conversation. Mr Nhlanhla said that he told Captain Wilken that the police should cordon off Shell House and the ANC's regional office, and that Captain Wilken promised that this would be done. This is denied by Captain Wilken. We do not think it is really material whether a police cordon specifically was asked for. What is clear enough is that the ANC wanted the demonstrators kept away from their premises.
The incident which occurred outside Lancet Hall may also have played some role in increasing apprehension amongst the ANC personnel, though the extent to which it might have done so is not clear. The incident was itself a comparatively minor one, in which only a small group of men who cannot have posed any real threat to them were shot at from behind by ANC security guards. In our view the evidence indicates that the shooting was preceded by little more than a verbal interchange in which insults, and perhaps even threats, were uttered, and at most one of them may have lunged at one of the guards with his spear as they passed.
The head of security at the regional office, Mr "Afrika" Khumalo, was present at the time and had seen what had occurred, but we do not think that any reliance can be placed on his evidence. He was responsible for providing the information upon which the ANC submissions to the Goldstone Commission on this incident were based. In that document it was alleged that about a hundred demonstrators armed with spears and assegais, had gathered outside the entrance and shouted insults at the guards, and that after one of the men "lunged forward with his spear" those behind him "ran forward obviously with the intention of overpowering the guards and entering the building". This is an extravagant account which bears little relation to the facts. His evidence before us as to what occurred was also quite clearly untrue. Other security guards who were present when this incident occurred also gave evidence but have also not provided a truthful account of it.
Mr Gary Kruser, who was the deputy head of security, went to Lancet Hall to investigate the incident where he met with Mr Khumalo. After some discussion concerning the security arrangements at Lancet Hall, he returned to Shell House where he had a meeting with his immediate senior, Mr Radu, and he then took direct control of the security at Shell House. This discussion with Mr Radu must have taken place at about 09h00 or perhaps a little later.
In an affidavit deposed to by Mr Radu he said that after meeting with Mr Kruser it "became clear to him that Shell House could come under attack at any time" but he gave no explanation of what led him to that conclusion. What is clear though is that he telephoned a senior police officer at about this time to ask for adequate police protection, and informed him that in the meantime armed ANC security guards were being deployed to protect Shell House. That is confirmed by what he said in a telephone conversation with Brigadier Gous an hour later.
There is nothing in that later conversation to indicate though that he had expressed any specific fear of an attack on Shell House, but it is possible that an attack of some kind was amongst the potential risks which were present to his mind. By then it was apparent that demonstrators were not simply converging on Library Gardens in an orderly manner, and there was also no sign that the police were providing protection at Shell House of the nature which the ANC wanted. Major Els was apparently patrolling in the general area in a vehicle. An army personnel carrier and crew had been stationed there from early that morning, but they were in Klein Street towards the back of Shell House.
Mr Kruser called in the assistance of other personnel who would not normally have performed security duties, and firearms were issued to them. The firearm register reflects that twenty-one pistols were issued at that time. According to the evidence two AK47s were produced by Mr Radu and five shotguns were also brought into use. Mr Kruser then held a briefing with the senior personnel, and it seems that they were each told to take some of the personnel under their direction and were allocated various functions. Their evidence is to the effect that in the course of this briefing Mr Kruser told them that an attack upon Shell House could occur and that they were deployed accordingly.
One of the senior security personnel at Shell House was Mr Chris Lushaba, who is now deceased. He was allocated the responsibility of placing personnel on the first- floor balcony of Shell House to monitor events from there. He instructed Mr "Jaguar" Molefe to fetch an AK47 from Mr Radu and to proceed to the balcony, and also sent Mr Stephen Moolman and Mr Veli Llale there, each of whom had a shotgun. Their instructions were to patrol in order to monitor events. Mr Sithlabane was required to remain in the foyer. He was given an AK47 by Mr Radu, and he also had three shotguns, which he was told to issue if it became necessary.
A number of the personnel seem to have remained in the foyer, and some monitored events from various points in front of Shell House. Some also went out into the city from time to time to evaluate what was happening. It has not been possible to establish from the evidence how many people assisted with security functions on that day or who they were, and nor to establish where they all were at various times. I have concentrated in these reasons only on those who have admitted to having played a role in the subsequent shooting.
The Regional Commissioner of Police, General Calitz, had held a routine meeting with his senior officers from about 08h15. Brigadier Nortje of the Internal Stability Unit was at that meeting, but left it at about 08h30 in order to monitor events on the police radio, and from time to time he reported thereon to the general.
People had been gathering at various places and were by now converging on the city. I do not intend traversing all the events which occurred. Certainly from amongst some of the groups at least there was serious intimidation, vandalism, and at times worse. A large crowd from Denver hostel converged on the station where shooting occurred and at least one person was killed. Many proceeded along Jules Street, attacking bystanders as they went. One amongst them was shot dead by a shop owner.
A man driving a truck became engulfed by this crowd and was killed. Another large group of demonstrators approaching through Fordsburg were said to be smashing cars as they went. A man who drove his car amongst them was killed and his car was smashed. Another bystander was shot in the leg by someone amongst this group with an AK47 which was subsequently recovered by the police at the Library Gardens. Many other acts of theft, assault and vandalism were reported. Nevertheless while this was widespread it was not universal. There are many hours of videotape which also show substantial groups moving to and within the city in a manner which was relatively disciplined and peaceful.
A number of groups passed by Shell House in the course of the morning, at times for no apparent reason other than that they should be seen to be there. There is substantial evidence that some of these groups were provocative, taunting the security guards and launching mock attacks at them. Generally the groups were being monitored by policemen. On one occasion the police were approached by a senior ANC official who remonstrated with them for pointing their firearms at the security guards. On another occasion the police asked the security guards to withdraw into the building so that the presence of their firearms did not provoke a confrontation.
About 300 demonstrators had in the meantime arrived at Library Gardens. Shortly after 09h00, for no apparent reason, they left as a group and moved east along President Street and then north into Rissik Street. Another group of about 100 had gathered outside the IFP offices and appears to have joined up with them. The senior person amongst them was Mr. Gcinokwakhe Zungu. Meanwhile another group of about 200, under the leadership of Mr Mkhuzeni Mkhize, had come down Klein Street and was proceeding west along Jeppe Street. These three groups combined and then proceeded in the direction of Hillbrow. The police were unaware of where they were going. According to a radio report, one of the indunas had said they were going to the station. According to the evidence of Mr Zungu and Mr Mkhize, they were in fact going to meet up with another group which had gathered in Leyds Street, under the leadership of Mr Mfaniseni Shelembe.
At about this time Colonel Calitz requested a senior officer to ensure that a police vehicle was stationed permanently at Shell House, and he was told that Major Els had already been posted there. Major Els was in a police vehicle, together with Sergeant van Greunen and Constable Skippers.
The group which had left the city centre joined up with others in Leyds Street, and the combined group, now comprising about 500 people, moved back towards the city along King George Street. Near the south-western corner of Joubert Park a road branches off King George Street to the south-east and becomes Klein Street, which then runs parallel to King George Street, one block to the east of it. The group followed this branch to the left, and entered Klein Street. Why they took this route is not really clear but we think it may well have been to display their presence to the ANC.
Klein Street runs along the eastern side of Shell House, which occupies the block which is bounded by Klein Street on the east, Plein Street on the south, King George Street on the west, and de Villiers Street on the north. Travelling further south after its intersection with Plein Street, Klein Street is intersected by Bree Street. The blocks to the south of Bree Street are slightly offset from those to the north. Accordingly as one crosses Bree Street one will turn slightly to the right, before again travelling south in what then becomes von Wielligh Street. On the north-eastern corner of the intersection of Jeppe and von Wielligh streets is Lancet Hall, which was the regional office of the ANC.
A person walking south along Klein Street will thus pass Shell House on the right, and after crossing Bree Street further south will be in von Wielligh Street, and will pass Lancet Hall on the left immediately before reaching Jeppe Street.
The group to which I have referred moved down Klein Street, passing Shell House on the right. There is considerable videotape footage showing at least the centre of the group as it moved down Klein Street. They are seen to stop every so often to be led in chants which, as far as we are able to discern, were directed towards insulting the ANC. At the time they passed Shell House the ANC security guards on the balcony, carrying firearms, were visible to the police and the demonstrators.
The group passed by Shell House without incident. Their progress was being monitored by a number of police officers, most of whom appear to have been situated alongside the group but towards the middle and the rear, and there is some evidence that a police vehicle was in front. There is videotape footage taken in Klein Street which shows this group shortly after the vanguard had crossed Bree Street and was out of sight in von Wielligh Street. Shortly after the vanguard had crossed Bree Street into Von Wielligh Street gunfire broke out and the crowd is seen retreating in disarray along Klein Street and taking shelter alongside cars and in doorways. One man is seen in the intersection firing a revolver wildly into the air in the direction from which he had come.
We think it is quite clear that some of the shooting emanated from one or other of the upper floors of Lancet Hall. Apart from substantial evidence to that effect from observers, spent AK47 cartridges were found lying on an open area at the foot of the tower block of Lancet Hall, on what was referred to in the evidence as the balcony, for which there is no other credible explanation but that they had fallen from one of the upper floors.
There is credible evidence that the cartridge cases were removed by one of a group of ANC security personnel who confronted two police officers who had been instructed to guard them until the detectives arrived. There was also shooting from other buildings in the vicinity, which were identified in the evidence as a building opposite Lancet Hall in von Wielligh Street; a block of flats on the corner of Bree and Klein Streets facing directly up Klein Street, and the Diplomat Hotel in Klein Street, though there may have been others. We have heard no credible explanation at all for why this shooting occurred, and the evidence discloses no justification for it at all.
One person was killed in the course of this incident and others were injured. It occurred at about 09h43. This inquest is concerned with the circumstances in which this person died (DECEASED 1), and I will return to deal with this incident more fully.
The incident caused considerable confusion, much of which is documented on videotape. Policemen went to the scene, as did ambulances and traffic officers. There is evidence that the police were again obstructed by ANC personnel from entering Lancet Hall. Some police officers managed to gain entry with the assistance of the owner's building manager who took them through a back entrance.
Colonel Nel was at that time the commanding officer of the Crime Prevention Unit in Johannesburg. He was in a motor vehicle at the rear of this group, and was at about the intersection of Klein and Plein Streets when the shooting occurred. After the shooting he and other policemen diverted the demonstrators away from the vicinity of Lancet Hall, and they proceeded to Library Gardens. It is apparent from the radio record that this incident was still occupying the attention of the police until well after 10h30 that morning.
At 10h00 Mr Radu telephoned Brigadier Gous. He told him of his earlier telephone call and appealed again for policemen to be sent to curb what he said was intimidation and vandalism which was taking place, saying that if "our people" could see that there was police protection they could feel assured that they need not take the responsibility for this protection upon themselves. Brigadier Gous assured him that arrangements were being made for police to be deployed there, adding that it was obvious in the political climate of the time that "it is possible that your office may be a target of attack...", but also appealed to him to ensure that the ANC's security guards remained inside the premises. Sometime thereafter four more policemen were sent to join Major Els who was then stationed at the corner of Klein and Plein Streets, but it is not clear at whose instance this took place.
Shortly after 10h00 a police officer reported that a security company had telephoned to say that certain premises in First Street, Wynberg were being attacked by what were referred to as "Inkatha" people who were said to be armed with firearms and to be holding the occupants captive. Brigadier Nortje immediately intervened to enquire what building this was and was told that it was a building occupied by the ANC. It appears that the building was in Alexandra rather than in Wynberg. We think it is quite clear from the responses which this incident evoked that the police themselves were alive to the possibility that the demonstrators could in some way focus their attention on buildings occupied by the ANC and the Independent Electoral Commision.
The mere mention of the fact that a building had been attacked by armed men immediately drew the attention of Brigadier Nortje. He gave instructions that policemen should be sent there and that every effort should be made to arrest the culprits immediately. Brigadier Kukard of the Internal Stability Unit was at that time monitoring events from a police helicopter, and Brigadier Nortje asked him to go to the area to see what was happening. At the same time he asked for stationary vehicles to be placed at "al daardie geboue," by which he said in his evidence that he meant the premises of the Independent Electoral Commission and of the ANC in the city. An instruction was passed on to Colonel Nel to ensure that a police vehicle was stationed at Shell House.
When the police helicopter arrived over Alexandra, Brigadier Kukard reported that people were running away from the building carrying bags. Two minutes later Brigadier Nortje contacted Colonel Calitz and told him that he was to ensure that policemen were stationed at buildings which were again not expressly identified, but which he identified in his evidence as the premises of the Independent Electoral Commission and of the ANC. Colonel Calitz was at that time at the Joint Operations Centre which had been established on the corner of Market and Fraser Streets. He replied that policemen had already been placed at the offices of the Independent Electoral Commission and at Shell House but that he would go to Shell House himself to check the position.
At 10h27 a policeman at Johannesburg station requested assistance because four trains had just arrived. He was interrupted by a call from a clearly agitated policeman who said that at Westgate station people were being shot at. There were subsequent reports to the effect that the police were being fired upon with AK47s from the nearby Selby hostel, which according to the evidence was occupied by residents sympathetic to the ANC, and which is near to Westgate station..
In the meantime Brigadier Nortje had reported to General Calitz the incident which had occurred at Alexandra. In response to this he was told to instruct Colonel Calitz to get the traffic department to close off the front of Shell House, and to remove people who were milling about in that area. The instruction was conveyed to Colonel Calitz, who was still at the Joint Operations Centre, at 10h30, and he left for Shell House soon thereafter.
Reports continued to be received concerning the events which were taking place in the vicinity of Selby hostel for the next half-hour, where three people, including a policeman, were killed, and two AK47s and a pistol were seized. Firearms were also seized at George Goch hostel.
At about 10h30 Major Els reported that there were a few hundred people in Plein Street carrying traditional weapons who were moving towards Shell House, and he thought there might be a problem. It seems however that this group passed by Shell House without incident.
It was undoubtedly all these events which prompted further telephone calls to the police. At 10h30 Mr Nhlanhla telephoned Brigadier Gous, and it seems that he again asked for police to be sent to Shell House, and he was told that there were policemen in the vicinity of "both offices". Mrs Mandela telephoned General Calitz at about 10h35. She deposed to an affidavit in which she alleged that she phoned him more than once at about this time, but whether this is so is not material. She alleges that she told him that there were hundreds of people moving around the building, chanting and being provocative, and she asked him to come to see for himself. Whether that was precisely what was said is not really material, but there were certainly grounds for having said this.
It is not disputed that General Calitz received at least one such call, and that he did indeed agree to visit Shell House himself. He said that this was in response to the call from Mrs Mandela, but whether this is so is not entirely clear. According to General van der Merwe's affidavit he had also requested General Calitz to go to Shell House. He said that he had received a telephone call from Mr Nhlanhla that morning, who told him that they felt threatened in Shell House as a result of the presence of demonstrators outside the building and that he (Mr Nhlanhla) was of the opinion that they could possibly be attacked. General van der Merwe said that he immediately telephoned General Calitz who undertook to go to Shell House personally.
Whatever the reason was for doing so, sometime after 10h35 General Calitz went to Shell House in order to assess the situation for himself, accompanied by Brigadier Gous and a driver. When he arrived at Shell House, which must have been at around 11h00, the area was clear of demonstrators. A number of armed ANC security personnel were at the front of the building in Plein Street. General Calitz was met by Mr Penuell Maduna, and was taken to an office on the 17th or 18th floor where he met with Mr Nhlanhla and other senior members of the ANC.
By 10h47 Colonel Calitz had also arrived at Shell House. The record of his radio communications reflects that he was attempting to make contact with an official of the traffic department in order to arrange for the front of Shell House to be closed off to traffic. At 10h59 Brigadier Nortje asked him whether the building had been "cleaned up", to which he replied that there was nobody around the building itself, and that he had just then arranged with the traffic department to close off an area around the building. In evidence he said that what he was referring to was the area of Plein Street in front of the building.
In the meantime at 10h43 an observer at the Library Gardens had reported that aperson amongst the crowd had been shot and that people were milling around him.
It is likely that this refers to the death of a man who was found lying on the pavement of President Street outside the premises of the Standard Bank by members of Unit 23 of the Internal Stability Unit at about this time (DECEASED 2). I will return to the circumstances in which this death occurred.
The radio communications in Johannesburg were being monitored at police headquarters in Pretoria. At 10h53 Brigadier Nortje told Brigadier Kukard that he had just received a telephone call from Lt General de la Rosa, who had told him that according to Pretoria there was "total chaos" in the streets of Johannesburg. At 11h08 there was a report that what was said to be "50 to 60 minibus taxis" were in Heidelberg Road in the vicinity of the produce market. They were said to be filled with people who were heavily armed, and shots were being fired. A man who was walking to work along Heidelberg Road at about this time was shot dead by an AK47 fired from a passing vehicle and his companion was wounded. There is other evidence of shots being fired at and from taxis in this area.
By this time it seems that a large crowd had already gathered at Library Gardens, but many more were still arriving. Before dealing with the events which occurred there, I will revert to what had been happening in the vicinity of Shell House.
I have already indicated that shortly before 10h30 four trains were reported to have arrived at Johannesburg Station. Hundreds of people began streaming out of the station into Noord Street. Shortly after 11h00 a policeman reported that there were about 400 people moving out of the station and that shots were being fired. Minutes later a policeman at the corner of Noord and Hoek streets reported that there were about 1000 people in the area and that they were firing off shots.
There is clear evidence that a large number of those who had emerged from the station proceeded east along Noord Street and turned right into King George Street. Others went down Wanderers Street and turned left into de Villiers Street. The two groups, comprising several hundred, many of whom were residents of Nancefield hostel, amongst whom were at least one AK47 and some handguns, converged at the intersection of de Villiers and King George Streets, which is the north west corner of Shell House.
Why they did so when their professed destination lay in the other direction is a matter which is left to inference, because there has been no credible evidence to explain it. There are a number of affidavits deposed to by people who were amongst this crowd, and a few of them were called to give evidence. The remaining affidavits added no more, and inspired no confidence that it would have been fruitful to call the witnesses concerned and I did not do so.
It is unfortunate that the three senior indunas who were present have all since died. It seemed to me that a certain Mr Themba Ndlovu, who was at that time the chairperson of the Soweto Sub-Region of the IFP, and who claimed in an affidavit to be a spokesman for the residents of Nancefield hostel, might have assisted. According to his affidavit he spent the previous night at the hostel. I was informed though that he is a fugitive from justice, and the investigating officer in this matter was unable to locate him notwithstanding attempts to do so. I was informed that another witness who might have been helpful in this regard departed for Natal shortly before he was required to give evidence and was also not located.
It was suggested in certain of the affidavits that the police at the station diverted the demonstrators along this route. These affidavits were met in turn by affidavits by policemen at the station in which they denied this. In our view it is so unlikely that this large and aggressive crowd would have meekly obeyed the instructions of a few junior policemen that we declined to hear what would have been no more than unspecific oral evidence on this issue. Furthermore it would offer no explanation for why the group which proceeded down Wanderers Street then turned east into de Villiers Street, when it is clear that there were no policemen there to direct them. In our view the inference from all the evidence is overwhelming that the two groups to which I have referred went in the direction in which they did because that is where Shell House was, as others had done before them. What is more controversial is what they intended to do.
By the time the demonstrators converged in the intersection of de Villiers and King George Streets a number of armed ANC security guards had hurried from the foyer of Shell House to the south west corner in Plein Street. There were also four guards on the balcony of Shell House, who had been there from earlier that morning. After converging in the intersection the group of Zulus continued up King George Street alongside Shell House. When the vanguard was perhaps as much as a third of the distance up that block, gunfire erupted and with it pandemonium. At 11h13 Major Els reported on the radio that there was a "war" at Shell House.
The shooting seems to have lasted for only a very brief time, perhaps about ten seconds according to one witness, and when it had abated eight people lay dead or dying on the pavement and the street opposite Shell House in the vicinity of the north-western corner of the intersection of de Villiers and King George Streets, and many others were injured. There was confusion for a considerable time as ambulances and police vehicles, including a platoon of the Internal Stability Unit, came to the scene. About an hour later all the available razor wire carriers were brought in and the whole block was surrounded with razor wire. The deaths which occurred in this incident are also the subject of this inquest and I will later deal with this incident in more detail (DECEASED 3 TO 10).
At about the time this was occurring a police officer asked the control room to warn policemen that people who had gathered at Library Gardens were being shot at from surrounding buildings. We have found no evidence of substance that this was indeed occurring. There is considerable evidence that from time to time shots were fired into the air from amongst the crowd which was gathering at Library Gardens, and it is possible that these shots may have been mistaken for shots from surrounding buildings.
It seems that speeches were then being made from time to time at the Library Gardens to those who had already assembled there, by various leaders amongst them. An inflammatory speech made by Mr Humphrey Ndlovu, part of which was recorded, had more to do with threatening the Government and the ANC with the violence of the spear than with articulating the constitutional position of an ancient kingdom.
At about 11h20 shooting broke out at Johannesburg Station, and the small group of policemen who were there called for assistance. A number of people appear to have been injured in this incident. Precisely why it occurred falls outside the scope of this enquiry.
There are affidavits by a number of policemen who allege that at about 12h20 minibus taxis were seen to be travelling north along Sauer Street and that pedestrians were scattering as shots were being fired. We also heard evidence from Sergeant Rossouw that at about this time (he gave the time as 11h15 but it is clear that this was an error) he saw shots being fired from two minibus taxis which were then involved in a minor collision. There is also evidence on affidavit that three police officers in a police car were injured by bullets fired from behind them, apparently from a vehicle, with an AK47.
At about this time there is a radio report that a policeman had been seriously injured near the corner of Market and Fraser Streets, which seems to be a reference to the same incident. A minute later calls were made on the radio to stop a red taxi from which it was said that the shots had been fired which had injured the policeman. The taxi was stopped minutes later and the seventeen occupants were arrested. The police seized four handguns, an AK47, and ammunition. Five of those arrested were in due course found guilty of unlawful possession of firearms and ammunition. According to statements made by the other occupants, they had come from Vosloorus hostel to attend the gathering. At about this time two AK47s were also seized by the police from another taxi which was parked in Sauer Street.
It was at about this time too that generalised shooting erupted at the Library Gardens. Precisely what gave rise to it is difficult to determine. Some attributed it to shots from the taxis, or in Simmonds Street, which might have been the same thing. However, gunshots had been fired from various directions at this time, and from the evidence we heard in this regard it seems that what was thought to be the source of the outbreak was in each case attributable more to the vantage point of the witness concerned than to what he actually observed.
There was one incident though which is quite likely to have been instrumental in setting off a chain of events. It occurred alongside the steps of the City Hall in Harrison Street, and was captured on videotape by a reporter and cameraman who were stationed in a building overlooking the Library Gardens. What is significant is that immediately before the incident occurred the camera was filming the gathering crowd, which was exhibiting no sign that anything untoward had yet happened. The reporter and cameraman too were talking idly at the time. The reporter then drew the cameraman's attention to something which was occurring on the City Hall steps.
The camera turned to the steps of the City Hall, where three members of the Firearm Unit in plain clothes are seen on videotape to be engaged in a scuffle amongst a densely packed crowd, assisted by some uniformed policemen, one of whom was carrying an R5 rifle. According to the evidence they were attempting to arrest a man whom they had seen with a concealed AK47. What is clear is that in the course of this scuffle at least two shots were fired, at least one of which was fired accidentally from the R5 rifle, and the crowd scattered in all directions, including in the direction of Library Gardens. At the end of this incident a man lay dead opposite the City Hall steps. His death is one of those we are required to enquire into (DECEASED 11). An AK47 was retrieved on the scene, which has been shown to have been fired at Shell House earlier that morning.
To an observer at the Library Gardens who heard shots being fired and saw people running from that direction it could well have appeared, mistakenly, that shots were being fired at the crowd from the City Hall. Indeed, one of the witnesses whom we heard, who was on the steps of the Library, attributed the shooting which then erupted at Library Gardens to the fact that the crowd was fired at from the City Hall. From what we have heard in the course of this inquest we would not be at all surprised if that belief caused some amongst the crowd to shoot back in that direction even if they were not aware of what they were shooting at.
There is substantial evidence that people amongst the crowd did take out firearms and begin shooting at about this time. Some of those amongst the crowd also told policemen on the scene that shots were being fired from surrounding buildings. While we have not discounted entirely that possibility, we have found no evidence of substance that this was so, and it is quite possible that a mistaken belief to that effect was induced by a number of coinciding circumstances.
I have already indicated that shots were fired from amongst the crowd, the sound of which would have echoed from the surrounding buildings. At the time there were a number of uniformed men, and perhaps some cameramen, on top of certain of the buildings overlooking Library Gardens. Three officers of Unit 6 of the Internal Stability Unit had taken up a position on the roof of Customs House in Market Street, in the company of an employee of the Department of Customs. There were personnel of Volkskas Bank on the roof of its premises alongside.
Three members of the Internal Stability Unit were on the roof of Mutual & Federal Centre in President Street; and three members of the Internal Stability Unit and an employee of Sage Life were on the roof of Sage Life Building which is also in that street. The police officers had taken up these positions to observe events taking place below. Some of them at least were in possession of either R4 or R5 rifles, and were dressed in camouflage. Their presence, together with echoes from shots fired from amongst the crowd, could easily have given the impression to observers that they were firing at the crowd.
There is also substantial evidence that members of the crowd, and police officers too, fired back in the direction of some of these buildings, though precisely what they thought they were firing at is difficult to discern. Spurts of dust and debris from these shots striking the buildings would only have fuelled the mistaken belief that shots were being fired from the buildings, and led to more shooting in return, and in our view to a large extent that is what occurred.
It seems to have been within minutes of the incident at the City Hall, and after some shooting had occurred at the Library Gardens, that an incident occurred in the Library Gardens in which a policeman, apparently attempting to arrest a person who was in possession of a firearm, was mortally wounded, and which led to four other people being killed (DECEASED 12 TO 16). This too is an incident to which I will return.
All this seems to have inspired general shooting in and around the Library Gardens. At 12h28 a policeman reported on the radio that "everyone is shooting at everyone."
In the course of this a policeman shot a man whom he alleged was firing an AK47 (DECEASED 17). A man who was in an office in Volkskas Building was struck by a bullet which entered the window and he later died (DECEASED 18). The time at which this occurred is alleged to have been 12h15. The shot which struck him may have been a random shot before the generalised shooting erupted, or otherwise the time which was given may be incorrect. By the time the shooting abated after no more than a few minutes, another man lay dead in Simmonds Street near the corner of Market Street (DECEASED 19).
The police then prevailed upon the organisers to call off the gathering and people started leaving the City. It must by now have been shortly after 12h30, and people started leaving the city amidst some further reports of vandalism, and more shots were reported to have been fired from Lancet Hall.
There were a number of other deaths that day, some of which appear from the inquest records to have been related to the gathering, though others may not have been. Most occurred in the vicinity of railway stations and none of the assailants has been identified.
That then is the context in which the events which are more directly material to this inquest should be viewed. I intend dealing first with the events which occurred in the vicinity of Library Gardens, and then with the events which occurred alongside Lancet Hall and Shell House respectively.
PRESIDENT STREET OUTSIDE STANDARD BANK : (Deceased 2)
At about 10h47 the body of a man was seen lying on the pavement in front of the Standard Bank in President Street, just off Fraser Street, by members of Unit 23 of the Internal Stability Unit. They stopped at the body to keep bystanders away, and were then called to assist nearby where a crowd had gathered around an ambulance and paramedical personnel. Sergeant Potgieter deposed to an affidavit in which he said that he was then told that a member of the Robbery Reaction Unit had fired his pistol when a group of men had attempted to rob a pedestrian, and that two of the alleged robbers had been injured. He was told that the policeman had also been injured and had already been taken to hospital, and that the person he had seen lying outside the Standard Bank was one of the alleged robbers. He reported the incident on the radio. The transcript of the radio communications at 11h04 reflects a request from a member of that unit for a mortuary vehicle to be sent to the back of the Library, where it was said that a man had been "noodlottig gewond deur ‘n polisielid".
There is other evidence that there was indeed an incident involving two policemen at about this time. According to affidavits deposed to by Sergeant Emile van Wyk and Constable Thompson of the Sandton Robbery Reaction Unit in July 1997, they had seen a group of men with spears and sticks assaulting and robbing a person in Pritchard Street at the corner of Fraser Street. When they stopped the group fled towards President Street. Sergeant van Wyk followed them, directing his attention to a man dressed in red overalls.
The suspect ignored his call to stop and he fired at him with his 9mm pistol, seeming to strike him in the buttock. Sergeant van Wyk caught up with him in the Library Gardens and attempted to arrest him. Photographs taken by a press photographer show him being confronted by a man wielding a shield and sticks, whom he then shot in the foot, and immediately thereafter the policeman was clubbed on the head from behind with a knobkerrie by another man, causing him to release the suspect.
He said that he ran back in the direction of Pritchard Street, pursued by members of the crowd who hurled knobkerries at him, and at some stage he collapsed to the ground where he was attended to by paramedical personnel and then taken to hospital.
The body in President Street lay there for some time before it was transported to the mortuary. The deceased was SIZI CELE. A post-mortem examination showed that he had been shot once in the back of the head, and he probably died instantly. Metal fragments were found in the skull.
There is no indication that he was shot by a policeman other than the radio report which was made at 11h04. According to Sergeant Potgieter's evidence to which I have already referred that report was based on hearsay from an unknown source. Furthermore there has been expert evidence that the metal fragments in the skull of the deceased were probably fragments of a bullet from a .38 handgun, which is not a weapon normally used by the police. Sergeant van Wyk clearly had a 9mm pistol and there is nothing to link him or his colleague to the death of the deceased, although it is possible that the deceased was struck by a bullet fired by someone else during the course of the incident in which they were involved. We are unable to establish who was responsible for this death, but on the face of it the act which brought it about constituted an offence.
(a) Sizi Cele
(b) Cerebral injuries caused by a gunshot.
(c) 28 March 1994
(d) The death was brought about by an act prima facie amounting to an offence on the part of a person whom we have been unable to identify.
THE CITY HALL STEPS: (Deceased 11)
At or about 12h15 an incident occurred at the foot of the steps of the City Hall in Harrison Street, which involved three members of the Firearm Unit and certain other policemen. The three members of the Firearm Unit were Sergeant Anton Rautenbach, Constable Jurie Geldenhuys, and Constable Ian Smit. They said that they had observed a man amongst the crowd in Harrison Street carrying an AK47 firearm concealed under a blue denim jacket, and that they had sought assistance to arrest him.
At the time a Nongwai armoured personnel carrier was stationary at the corner of President and Harrison Street, manned by policemen from the Booysens police station in uniform. The driver of the vehicle was Constable van Staden, and the personnel included Constable Johan Henning and other policemen. There was also a Nyala of the Internal Stability Unit in the vicinity. The members of the Firearm Unit approached the crews of these vehicles to assist them to effect the arrest.
We have heard the oral evidence of all the policemen who were directly involved in this incident. In our view their evidence cannot be regarded as reliable on material issues relating to this incident. However, the scene was captured on videotape by a news cameraman who was positioned in a building in Harrison Street.
There was a large crowd in Harrison Street at the time, in front of the City Hall steps. Members of the Firearm Unit and at least one policeman in blue uniform are seen to approach a man amongst the crowd near the foot of the City Hall steps, and a scuffle ensues. Sergeant Geldenhuys caught hold of the man from the front and pulled him by his clothing into a bending position, in what seems to have been an attempt to pull him forward towards the street in which the two personnel carriers were waiting a little distance away. The uniformed policeman and Sergeant Rautenbach approached the man from the opposite side. As they took hold of him a puff of gunsmoke is seen at the site of the scuffle as a shot went off.
Sergeants Geldenhuys and Rautenbach leapt into the air and ran into Harrison Street in the direction of the vehicles and the crowd scattered. The uniformed policeman swung off to one side, his left arm apparently limp and his R5 rifle in the other. As he swung away at least one shot was fired from the R5 which was then pointing obliquely towards the ground but in the general direction of Harrison Street.
When the scene clears Constable van Staden is seen lying in the middle of Harrison Street, approximately in the line of fire of the R5. A few seconds later, as the camera moves a man is seen lying on the western verge of Harrison Street. He appears on the videotape to be further north of the point where Constable van Staden lay but it is difficult to judge their relative positions with any precision.
Sergeant Rautenbach said that when he reached the safety of one of the personnel carriers he saw Constable van Staden lying in the road and went to assist him, in the course of doing which he retrieved an AK47 which was lying in the road. He said that it had no magazine, but had one live round in the chamber and was cocked. It was this AK47 which had earlier been fired at Shell House.
Constable van Staden was taken to hospital. He had been shot through the leg but survived. It is likely that his injury was caused by the shot from the R5. Constable Henning was also taken to hospital where he was treated for fractures of the bones in his left hand and extensive soft tissue injury of the left forearm. It is likely that he was the uniformed policeman who was at the scene of the scuffle, and who fired the R5, and that his injury was caused by the first shot which was fired.
The doctor who treated him recorded that he had been "shot in left arm with AK47". Where this information came from has not been established. We have not been able to determine what the source of this first shot was. It is possible that the AK47, or a handgun being held by one of the policemen, was fired, notwithstanding that the evidence of the policemen excludes these possibilities.
The man who was lying on the verge of Harrison Street was dead. It is apparent from scenes of his body on videotape that he had a massive injury on the face. He may have had other injuries on his head which are not visible on videotape. Shortly after the event he was seen lying there by his brother, who could contribute little to the circumstances in which he had died, but I will return to his evidence. The deceased was SIHLANGU MBULA NDLOVU.
There is certain irreconcilable evidence relating to the body of the deceased. Detective Sergeant Diedericks said that the body of the deceased was one of a number of bodies which he transported together to the mortuary during the course of that afternoon, and that the body was allotted the reference number 840/94. A post-mortem examination of a body bearing this number was conducted by Dr. R. Johnson on 5 April 1994. According to his report, which he confirmed in evidence before us, he could not ascertain the cause of death. What is more disturbing is that he observed only a 4cm lacerated wound over the left side of the scalp, and that the body was grossly decomposed.
Dr Johnson confirmed that the body of the deceased ought not to have been in a state of advanced decomposition, and furthermore that the observations which he recorded are irreconcilable with the wound which is plainly to be seen on the body of the deceased on videotape. We think it is quite evident then that the body he examined was not that of Mr Ndlovu.
Although it is normal practice at the mortuary to photograph bodies upon which post- mortem examinations are conducted, no such photograph was available in this case. The relevant medico-legal assistant at the mortuary deposed to an affidavit on 4 March 1996 in which he said that he had indeed photographed a body with this reference number on 31 March 1994 but that the camera had been faulty and the film was spoilt. Upon examination it emerged that he had no proper grounds for that evidence, and was unable to account for a roll of film containing photographs which may possibly have included a photograph of this body. I might add that it turned out in the course of enquiring into this issue that a number of affidavits made by another medico-legal assistant were untrue.
The investigating officer has perused all the records of the mortuary at about this time, but has been unable to find any further evidence that two bodies may have been switched, whether in error or otherwise, and we have been unable to resolve the conflicting evidence.
We have heard evidence from a family member who told us that the body of Mr Ndlovu was retrieved from the mortuary on 5 March 1994 and was in due course buried. I was asked in the course of the inquest to order the exhumation of this body. After considerable reflection I declined to do so. On the evidence before us in my view there is no reasonable prospect that further evidence material to the findings we are called upon to make might be discovered. I will set out briefly the reasons for this conclusion.
On the evidence which we have there is no certainty that the injury which killed the deceased was caused by a bullet, though it seems likely that it was.. His brother told us however that when he saw the deceased on the scene, he had a further wound at the back of his head, which appeared to him to have been caused by a sharp instrument like a spear. This evidence differs from the evidence in an affidavit which he deposed to, in which he described the wound as a bullet wound. He told us that this was erroneous. His evidence before us may be unreliable, but it does raise the possibility that the deceased was not killed by a bullet at all. Needless to say, if he was killed by a sharp instrument there is no possibility of his assailant being identified.
If on the other hand he was killed by a bullet, which seems more likely, the existence of two wounds indicates strongly that no projectile will be found. At best there is the possibility that the calibre of the bullet may be ascertained, though even that is not certain. Even if the calibre of the bullet were to be established it would not alter our finding. I might add that it is not even certain that the body which has been buried is indeed that of Mr Ndlovu.
I return then to the other evidence concerning the circumstances of the death of the deceased. I have already indicated that in our view the evidence of the policemen who were involved in this incident cannot be regarded as reliable. We are left only with what is to be seen on the videotape. The coincidence of the shots which are distinctly audible on the videotape, and the fact that the deceased's body was seen immediately thereafter, does suggest that the two are related, but in the context in which all this occurred we do not think that is the only reasonable inference. Although no further shots are distinctly audible on the videotape, given the circumstances which prevailed we do not think we can assume that one or more shots were not fired from elsewhere.
In our view to draw inferences as to who caused the death of the deceased only on the basis of what is to be seen on the videotape would amount to no more than speculation. We are unable to establish who brought about the death of the deceased but on the face of it the act which did so constituted an offence.
(a) SIHLANGU MBULA NDLOVU
(b) Head injuries of unknown origin.
(c) 28 March 1994
(d) The death was brought about by an act prima facie amounting to an offence on the part of a person whom we have been unable to identify
THE PASCOE INCIDENT: (Deceased 12 TO 16)
There is evidence that immediately after the incident at the City Hall had occurred, shots were fired from amongst the crowd at Library Gardens, and it is quite possible that the previous incident provoked this response. Other videotape footage shows many amongst the crowd in Library Gardens then fleeing from there into Market Street. There are suggestions that shots were being fired from buildings on the northern side of President Street but we have found nothing to substantiate this.
Seconds later, however, another incident occurred which claimed the lives of five people. The incident occurred on the northern side of Library Gardens.
We heard the oral evidence of a number of policemen in relation to this incident. In our view none of that evidence is reliable and to attach any weight to it in the absence of acceptable corroboration could be misleading. Various aspects of the incident were recorded though by three video cameramen. On material issues the videotape from these cameras does not provide the detail which would be necessary to determine precisely what occurred.
Two of the policemen who were present when this incident occurred deposed to affidavits within hours thereof. The affidavits differ materially from one another, and both these witnesses have, in subsequent statements and in their oral evidence before us, departed materially from what they first said.
Certain material facts can be said with some confidence though to have emerged from the evidence as a whole. Along the northern perimeter of the Library Gardens is a two-storey structure. It seems that certain policemen, and more particularly Sergeant Lombard and Constable CRAIG PASCOE of the Brixton Radio Unit, were on the first floor of that structure when they saw a person lying on the ground near the north-east corner of the Library Gardens firing a 9mm pistol.
Sergeant Lombard and Constable Pascoe left the structure down a flight of steps in order to apprehend the man. Constable Hendrik de Klerk of the Hillbrow police station seems also to have been with them and he appears to have been the first to reach the suspect. According to the first statement made by Sergeant Lombard, Constable de Klerk approached the man from behind and placed his foot on the firearm. That evidence is consistent with what is seen to be occurring on the videotape.
It is clear from the videotape that many members of the crowd then surged threateningly towards Constable de Klerk and he was soon being surrounded. Sergeant Lombard pulled him back from the crowd, and members of the crowd in turn pulled a man back from the police into their midst. Constable de Klerk said that he was struck on his bullet-proof jacket by a spear, and it appears from the videotape that a policeman fired off a stun grenade to disperse the throng.
Constable Pascoe must in the meantime have separated from the other policemen and was engaged in a scuffle of some kind with another person some twenty or thirty metres to the west of where Constable de Klerk and Sergeant Lombard were engaged.
In his first statement Sergeant Lombard said that he saw Constable Pascoe struggling with a man dressed in what he described as a "groen oorpak", who pulled himself free from Constable Pascoe and then shot him from a standing position. On the videotape, but from a considerable distance, Constable Pascoe is seen falling backward from a crouching position. His assailant cannot be clearly identified on the videotape. Constable Pascoe fell onto his back with his pistol in one hand, then lifted his head and fired off about nine shots in rapid succession. He fell about three or four metres south of the facade of the structure I have described. Against the facade of the structure at that point is a small metal stairway.
Other policemen, and more particularly Sergeant Lombard, Constable de Klerk and a certain Sergeant Bouwer, ran towards Constable Pascoe. As he ran Constable de Klerk had his R5 rifle pointing in the general direction of the stairway near to which Constable Pascoe was lying, and his pistol in his left hand which was simultaneously supporting the barrel of the rifle. We think it is clear from the videotape that at least two shots were fired by Constable de Klerk from his R5 as he ran.
As they approached the scene Constable de Klerk's attention was directed primarily to the area around the stairway, which he approached while pointing his rifle in that direction. When he reached that point he turned his attention away and towards Constable Pascoe who was lying a few metres away. Sergeant Bouwer's attention on the other hand had from the start been directed towards Constable Pascoe. As he got to him he crouched down, and after appearing to clear a blockage on his R1 rifle he looked around, evidently to see whether any threat was being posed by members of the crowd.
The videotape shows that at about the time Constable de Klerk arrived at the stairway and then turned his attention away, a man wearing a blue jacket rose from the area of the stairway and started running west along the facade of the building in a crouching position. This was a certain BEKHANI SIMPHIWE SIQUBU.
By now Sergeant Lombard, who was armed with a shotgun, had come up behind Sergeant Bouwer and Constable de Klerk. It is apparent from the videotape that he observed Mr Siqubu fleeing the scene, and said something to Sergeant Bouwer, who was still crouching and had not observed this. According to Sergeant Bouwer's evidence, Sergeant Lombard told him that "die ou met die blou baadjie het Pascoe geskiet". It is quite likely that Sergeant Lombard did say something about a man with a blue jacket, but whether he expressly identified him as the person who had shot Constable Pascoe is doubtful. In the statement which he made that afternoon Sergeant Lombard said that the man whom he had seen shoot Constable Pascoe was dressed in a "groen oorpak" and he made no mention at all of a man dressed in a blue jacket. It seems unlikely in those circumstances that he would have used the words attributed to him by Sergeant Bouwer, though it is quite likely that Sergeant Bouwer understood him to mean this.
Immediately upon hearing the remark by Sergeant Lombard, Sergeant Bouwer rose from his crouching position and started firing his R1 rifle in the general direction in which Mr Siqubu had fled. He fired what appears to have been two shots, hesitated for a moment, and then fired a series of shots in quick succession. Constable de Klerk was standing alongside him, and joined in the firing with his R5 rifle in what appears on videotape to be the same direction.
Precisely how many shots in all were fired by the two policemen is difficult to determine. Three steel girders which were in the line of fire were struck by twelve bullets. Four of these were fired by Constable de Klerk. Eight were fired by Sergeant Bouwer and struck the girders at a vertical distance apart of as much as a metre. Seen from the position in which the two policemen were, the girders were approximately in line with where Mr Siqubu was in due course found.
We think it is clear that at the time this shooting commenced Mr Siqubu must have been running west along the facade of the structure to which I have referred. The furthest point he reached was around a corner of the structure about fifteen metres from where the policemen were, where he was found with a shot in his buttock which had fractured the femur. It is well established that he would have been immobilised by the injury.
After the shooting the body of another man was also lying about fifteen or so metres west of where the policemen were, but a bit further south of where Mr Siqubu was found. He too was dressed in a blue jacket.
Immediately after having shot, Sergeant Bouwer turned his attention to ensuring that the crowd was not coming nearer. Constable de Klerk on the other hand called the attention of a member of the Internal Stability Unit, pointed in the direction in which he and Sergeant Bouwer had been shooting, and the two of them set off in that direction. Two further stun grenades were thrown which scattered the crowd.
By now cameramen had arrived closer to the scene. Later videotape shows the member of the Internal Stability Unit, carrying a .303 rifle in one hand, dragging Mr Siqubu along the ground towards a Casspir which had arrived on the scene. Constable de Klerk can be seen in the background in conversation with Brigadier Meintjies. Shortly thereafter Constable de Klerk is seen standing against the facade of the structure with an AK47 in one hand half enclosed in a green bag.
Mr Siqubu was then manhandled into the vehicle. At the same time what appears on the videotape to be a handgun, wrapped in a handkerchief, was handed by Brigadier Meintjies to a policeman, who in turn handed it to the crew of the vehicle with instructions that this was the weapon which had been used to shoot Constable Pascoe and it was to be taken to John Vorster Square. A little later Brigadier Meintjies turned to Constable de Klerk and took the AK47 which he was holding, displayed it to the media, and then handed it to the crew of the vehicle.
Brigadier Meintjies instructed Constable de Klerk to take Mr Siqubu to the police station. He was taken to Hillbrow police station where he was placed in the cells. At the police station Constable de Klerk opened a docket relating to charges of unlawful possession of firearms, referring to the AK47 and the .303 rifle which I have mentioned, and a .45 revolver. He also prepared a written statement which he placed in the docket at about 15h00. His statement purports to have been attested to at John Vorster Square at 22h00 that evening but he said he was never at John Vorster Square that evening.
Constable Pascoe had in the meantime been placed in a vehicle, quite apparently close to death, and taken to the Johannesburg Hospital. A medical officer at the hospital certified that he was dead at 15h00 that afternoon.
After the shooting two more people lay dead on the scene. Their bodies were sprawled close to one another in the immediate vicinity of the stairway which I have described, and three or four metres from where Constable Pascoe fell to the ground.
There is much controversy concerning the death of each of the people who were shot during this incident, and I will deal with each of them in turn.
The Two Ndlovus
The deceased who were lying close to each other at the stairway were ZOLO NDLOVU and DUMISANI DOCTOR NDLOVU.
A post-mortem examination revealed that Mr Zolo Ndlovu was struck by five bullets. One bullet struck him on the left chest; one on the right front shoulder; one glanced along the side of his back; and two struck him in the face just below the lip. It is likely that he survived for a short period and died of hypovolaemic shock. Four of the bullets exited his body. In one of the head wounds the jacket and a fragment of a 9mm bullet were found.
Mr. Dumisani Ndlovu was struck by two bullets. One struck him just below the right hip and exited from the buttock. The other struck him above the right eye, and a 9mm bullet was found lodged in the cranial cavity. He is likely to have died almost immediately.
According to the expert evidence all the wounds in both cases were consistent with those caused by 9mm bullets, and inconsistent with those from high-velocity rifles.
An examination of the scene which was conducted by a police ballistics expert during the course of this inquest found evidence that six bullets had struck the wall in the immediate vicinity of this stairway. The damage is consistent with that caused by 9mm bullets. Taking into account the two bullets which lodged in the bodies of the two Ndlovus, it is evident that at least eight bullets must have been fired in their general direction.
In the statement which he made at 15h00 that day Constable de Klerk claimed to have shot both these men, and said that he had done so because they were shooting at him, which was clearly untrue. He deposed to a further statement on 8 April 1994, in which he suggested that the two men had been shot by Constable Pascoe. I think it is clear that this statement was not based upon what he had observed on the day, but on knowledge which he had subsequently acquired. A similar version appears in one form or another in much of the police evidence. It was in due course submitted to us by counsel for the police, and the attorney acting for the deceased's family, that Mr Zola Ndlovu had been shot by Constable Pascoe.
That Constable Pascoe did fire his pistol about nine times and in that general direction is corroborated by the videotape. There is evidence that at least eight bullets struck in the vicinity of the Ndlovus, but possibly as many as thirteen. Prima facie it would seem that most of these emanated from Constable Pascoe, but at least one did not. The bullet found in the head of Mr Dumisani Ndlovu was compared with Constable Pascoe's pistol and found not to have been fired from it. The evidence does not establish the source of this bullet. Numerous policemen had 9mm pistols, but it is clear that there were some too amongst the crowd. Nevertheless there is evidence only of Constable Pascoe firing multiple shots in that direction, and prima facie it was his shots which struck Mr Zolo Ndlovu. Whether he had the requisite state of mind at the time for his act to have constituted an offence is not possible for us to determine.
(a) Zolo Ndlovu
(b) Hypovolaemic shock as a result of multiple gunshot wounds.
(c) 28 March 1994
(d) The death of the deceased was brought about prima facie by the act of Constable Craig Pascoe, but we are unable to determine whether his act amounted to an offence.
(a) Dumisani Doctor Ndlovu
(b) Cerebral injuries caused by a gunshot wound.
(c) 28 March 1994
(d) The death of the deceased was brought about by an act prima facie amounting to an offence on the part of a person whom we have been unable to identify.
It is quite likely that Constable Pascoe died within minutes of having been shot, though he was only certified dead at 15h00 that day. A post-mortem examination revealed that he was shot in the left of the chest. The bullet passed downwards and to the right, through the xiphisternum and the left lower pulmonary lobe, the right ventricle, the right lung, the right hemidiaphragm and the liver, which was extensively fragmented. There were two exit wounds over the right posterolateral abdominal wall.
It was submitted that the person who shot Constable Pascoe was Mr Siqubu. In our view there is no reliable evidence to support that submission, and the videotape suggests the contrary.
In the statement he made that afternoon Constable de Klerk said that he had seen Mr Siqubu shoot Constable Pascoe in the chest. The contents of that statement in other respects were quite clearly untrue, and it was made merely to cover up what he thought had occurred. No reliance can be placed on his further allegation therein that it was Mr Siqubu who had shot Constable Pascoe.
That evidence is also in conflict with what was recorded by Sergeant Lombard on the same day, who said that the policeman had been shot by a man in a "groen oorpak". That he was not referring to Mr Siqubu is clear from the fact that he added that Constable Pascoe fired two shots at his "aanvaller en op die persoon langs hom" who both died on the scene. In subsequent affidavits and in evidence before us Sergeant Lombard has sought to suggest that it was Mr Siqubu who had shot Constable Pascoe but no reliance can be placed on that evidence.
Brigadier Meintjies, who said that at the time he was in the vicinity of the Library steps, also claims to have seen Mr Siqubu shoot Constable Pascoe. We think his evidence is entirely unreliable. Amongst other things, we can find no way to reconcile what is seen on the videotape with his evidence as to where he was at the time he is alleged to have observed this. Even without this we would not place any weight on his evidence.
It was alleged too that at the time he was apprehended Mr Siqubu had a .45 revolver in his possession which was alleged to have killed Constable Pascoe. The only evidence which purports to establish that he did have a revolver at the time he was apprehended is the evidence of Brigadier Meintjies and Constable de Klerk.
Apart from the fact that we would place no reliance on the evidence of either of them, on this particular issue their evidence conflicts materially. What appears to be a handgun, wrapped in a handkerchief, was indeed handed by Brigadier Meintjies to a policeman who was manhandling Mr Siqubu into a Casspir in front of the cameras, but there is no reliable evidence to establish where it had come from. What is extraordinary is that although it was carefully wrapped in a handkerchief, what is alleged to have been the revolver which had killed a policeman was never examined for fingerprints.
Constable de Klerk recorded in the docket that afternoon that a .45 revolver had been seized which contained two live rounds of ammunition. The firearm concerned was subsequently examined and tested by two experts. There was much debate before us as to whether that firearm could have caused the wound sustained by Constable Pascoe. We do not think this evidence is of material assistance. It is sufficient to say that none of the experts could absolutely exclude it, though their opinions as to whether it could have done so varied from highly improbable to a more neutral approach. What is perhaps more important is that the revolver which is alleged to have been taken from Mr Siqubu's possession had two live rounds in the cylinder, but no spent cartridge. While explanations for the absence of a spent cartridge case can be, and were indeed, thought of, they are entirely speculative and in our view all most improbable.
After we had heard the evidence of the various policemen on this issue, which was a web of untruth, we were given access to an enlarged version of a section of the videotape which shows Constable Pascoe falling after he had been shot and then firing his pistol. The picture does not clearly show his assailant but there is no indication that he was wearing a blue jacket. On the contrary, although indistinct, the picture shows Mr Siqubu crouching against the wall at the time this is occurring.
(a) Craig Pascoe
(b) Cardiac injuries caused by a gunshot wound.
(c) 28 March 1994
(d) The death was brought about by an act prima facie amounting to an offence on the part of a person whom we have been unable to identify.
The fourth person who died on the scene, close to where Mr Siqubu was apprehended, was MHLAKAYIFANI NENE. According to a post-mortem report he was struck by a single bullet. It lacerated the spinal cord and perforated one lung and kidney. The deceased would have been immediately immobilised, though he might have survived for some time before succumbing.
According to the expert evidence the injury was inconsistent with that which would have been caused by a ricochet, but consistent with that which would have been caused by an R1 or R5 rifle, or even by a 9mm, but was most likely to have been caused by an R5. In criminal proceedings this evidence would leave open the possibility that any of these firearms might have caused his death in the absence of anything further.
I have already indicated that Sergeant Bouwer started shooting in a westerly direction after having been alerted to the fact that, on his evidence, "die ou met die blou baadjie het Pascoe geskiet," and Constable de Klerk soon joined in. That description could have fitted Mr Nene as much as it did Mr Siqubu. The two men must by then have been not far apart when seen from the perspective of the two policemen and it would have required only a small variation in aim on the part of either of them in order to strike either of the victims. Prima facie the only reasonable inference which presents itself on the evidence is that Mr Nene was shot by one or other of them. There is no evidence at all to suggest that this might have been justified.
In the statement which he made that afternoon Constable de Klerk claimed to have shot this man. Generally one would not expect a person lightly to admit to having killed someone, but even an admission is not to be taken as conclusive. It should be borne in mind that he admitted to having killed two others when the evidence indicates that he did not do so.
I might add that Constable de Klerk did not strike us as particularly astute, and we think that the web of contradictions in which his evidence is entangled may not all be of his own doing. It is clear that the statement which he made that day was riddled with fabrication and error, and we think that even his admissions must be treated with considerable caution. That he is likely to have erred in relation to the death of Mr Nene is less obvious, but on careful consideration of the evidence we do not think that the possibility that he erred in this respect too can be excluded.
Taking into account the circumstances outlined above we do not think that even the admission made by Constable de Klerk can be regarded as reliable. In our view there is no reliable evidence which goes beyond showing, prima facie at least, that it was one or other of the two policemen who shot Mr Nene.
The expert evidence does not assist in determining which of them it was for the purpose of establishing criminal liability, unless it excludes one of them, which it does not. Furthermore, we do not think that the evidence establishes the existence of a common purpose between the two policemen which extended to the shooting of Mr Nene. It follows that in our view a prosecution of either of them based on this evidence cannot reasonably be expected to succeed. I do not think that s16(1)(d) of the Act contemplates the suspected offender being identified in the alternative, and for that reason our finding must be left open.
(a) Mhlakayifani Nene
(b) Hypovolaemic shock caused by a gunshot wound.
(c) 28 March 1994
(d) The death was caused by an act prima facie amounting to an offence on the part of a person whom we have been unable to identify.
Bhekani Simphiwe Siqubu
In his evidence before us Sergeant Bouwer said that his shots had not been fired at Mr Siqubu but at the steel girders which he struck, but in our view that explanation is absurd. Prima facie from what is seen on the videotape, taken together with the evidence relating to the context within which this occurred, the inference is inescapable that both Sergeant Bouwer and Constable de Klerk fired at Mr Siqubu as he was fleeing, at least with foresight of the possibility that he would be killed and reckless as to whether this ensued .
We do not think it is material which of the two struck him. What is seen on the videotape in our view warrants the prima facie conclusion that Sergeant Bouwer initiated the shooting and that Constable de Klerk then joined in, and that from then on they made common cause with one another to shoot Mr Siqubu before he had in fact been shot. In those circumstances both would be responsible for the consequences of the act of either of them in having shot Mr Siqubu ( S v Mgedezi 1989 (1) 687 (A)).
Prima facie we think that both the policemen shot at Mr Siqubu because they thought that he had shot Constable Pascoe, but that by itself would not be sufficient to have justified them in doing so. Section 40(1) of the Criminal Procedure Act entitled them to arrest him if they "reasonably suspected" him of having committed that offence. In terms of s.49(1) if they attempted to do so and he "(fled) when it (was) clear that an attempt to arrest him (was) being made" they were entitled to use such force as might in the circumstances have been reasonably necessary to prevent him from doing so.
Sergeant Bouwer has not claimed to have acted with justification when he shot at Mr Siqubu. On the contrary, he claimed not to have shot at him at all, and expressly disavowed that he had reasonable grounds for suspecting that Mr Siqubu had shot Constable Pascoe, which would have been a necessary prerequisite to any claim to have acted lawfully in accordance with s.49(1). Constable de Klerk's evidence suggests, and I put it no higher, that he had shot at Mr Siqubu in order to effect his arrest, but I have already indicated that his evidence is fraught with difficulty.
Irrespective of whether reasonable grounds existed for attempting to arrest Mr Siqubu, there is nothing on the videotape or in the evidence of the two policemen to suggest that Mr Siqubu was aware that an attempt was being made to arrest him at the time he was shot. If it was indeed not he who had shot Constable Pascoe, and prima facie in our view it was not, there would have been no reason for him to have thought that attempts were being made to arrest him, and there is nothing in the evidence to suggest that anything was done before the shooting to alert Mr Siqubu to the fact that any such attempts were being made.
Prima facie the evidence does not disclose as a reasonable possibility that the act of either of the two policemen was justified, and their conduct amounted to at least attempted murder. Whether the evidence establishes that they brought about Mr Siqubu's death, however, is more questionable. To appreciate this it is necessary to know what happened to Mr Siqubu after his arrest.
The time at which he was shot must have been in the vicinity of 12h30. He was taken to the Hillbrow police station where he was placed in the cells. A considerable time later he was taken to the Garden City Clinic, where he arrived at about 16h15, and for the first time he received medical attention. In the meantime he had been bleeding internally and his blood pressure was critically low. The casualty officer, Dr Saffy, immediately set about stabilising his condition by infusing him with fluids, unaware that it was already nearly four hours since he had been shot.
When his condition was sufficiently stable he was operated on by two surgeons at about 18h45. One attended to the femur, and Dr Greyling investigated the abdomen. He found no active bleeding. Most of the blood which was found in the abdomen was believed to have emanated from the leg and from minor blood vessels that had since sealed themselves, and no repairs were considered to be necessary. After the operation the deceased was sent to a general ward in an apparently stable condition. Later that night the nursing staff observed that he was struggling to breathe, and exuding fluid from the mouth and nose, and shortly thereafter at 23h45 he died. A post-mortem examination revealed that his lungs were grossly congested and oedematous.
Prima facie the deceased's lungs were congested by the fluids which were administered upon admission and in the course of the operations. The fluids were administered to maintain his blood pressure and prevent him dying of shock. According to the evidence the body is normally able to cope with excess fluid which might be infused by secreting it through the kidneys. In the present case, prima facie the loss of blood caused damage to or partial failure of the kidneys and other organs, thus reducing their ability to cope adequately with the fluids which were being infused and resulting in the lungs becoming congested. The immediate cause of his death was pulmonary oedema, probably accompanied by shock.
For any prosecution for murder or culpable homicide to succeed the evidence must establish not only that there was wrongful conduct but also that it caused the death of the deceased. When considering the question of causation in law, there are two distinct questions which arise. The first is whether the conduct which is in issue was a factual cause of the death, and that is generally tested by asking whether it was a sine qua non. If it was, the second question which arises is whether the act was linked sufficiently closely or directly to the death to be regarded in law as a cause thereof (S v Mokgethi & Others 1990 (1) SA 32 (A) at 39D). As pointed out in that case, there is no universal test for determining whether the causative link is sufficient for legal purposes, and much will depend on the circumstances of the particular case. The question which is most often asked is whether a new cause intervened between the initial conduct and the subsequent death sufficient to break the chain of causation for legal purposes (SA Criminal Law & Procedure 3rd ed by Milton Vol 2 p 331). Whether a new intervening cause will operate to break the chain of causation will depend on the particular circumstances, but factors which will play an important role include the seriousness of the initial injury, and the extent to which the intervening cause can be said to have been unusual or abnormal.
Whether any particular act or omission can be said prima facie to have caused the death of Mr Siqubu in the present case will be dealt with separately in relation to each of the three events which played some role in relation thereto.
The shooting of the deceased was certainly a factual cause of the death, in the sense that but for it having occurred he would not have died. The question which arises relates rather to the second issue, which is whether it was sufficiently linked to the death which ensued to constitute a legal cause thereof.
All the expert evidence was to the effect that the injury which was sustained by Mr Siqubu, although serious, would not have been fatal if he had received prompt medical attention of ordinary efficiency. No vital organs were struck by the bullet and the immediate risk which arose was only that Mr Siqubu might die of shock brought upon him by the gradual loss of blood. Quite clearly he ought to have received prompt medical treatment, and there is no reason on the evidence to think he would have died had he received it.
Prima facie the failure to afford him prompt medical treatment involved so great a departure by the police officers from what could reasonably be expected to have happened after Mr Siqubu had been shot, and played so great a role in bringing about his death, that it broke the chain of causation for legal purposes, as will appear more fully below when I deal with that aspect of the matter. We do not think in the circumstances that in law his death can be said prima facie to have been brought about by the shooting.
The Delay in Affording Medical Treatment
In Minister of Police v Skosana 1977 (1) SA 31 (A) the relevant principles are set out which are equally applicable in the present case, though in criminal proceedings the onus of proof will differ. Prima facie both Brigadier Meintjies and Constable de Klerk must have been aware that Mr Siqubu had been shot. Furthermore, according to the evidence it would have been obvious to any observer at the scene where he was shot that Mr Siqubu was unable to walk as a result of the shooting, which had fractured his femur. The fact that he was dragged some fifteen to twenty metres to the waiting Casspir by itself indicates that those on the scene were well aware that he was unable to walk. Although the wound seems not to have been bleeding externally, prima facie in our view a reasonable police officer on the scene would have realised that Mr Siqubu was in need of medical attention, and would have foreseen that a delay in providing such medical attention might itself prove to be fatal. Because he had been shot by a policeman, and was thereafter in police custody, it was the clear legal duty of those who had taken him into custody to take reasonable steps to ensure that he received medical attention without delay.
Brigadier Meintjies was the senior police officer on the scene and he bore the principal responsibility for taking whatever steps were appropriate. Prima facie in our view a reasonable policeman would have ensured that Mr Siqubu either received treatment on the scene or was taken immediately to hospital, but instead he instructed Constable de Klerk to take him to the police station. In our view his failure to take steps to ensure that Mr Siqubu received medical treatment was grossly negligent. Even if Constable de Klerk considered himself bound to comply with that instruction, he ought reasonably to have seen to it upon arrival at the police station that the deceased was then immediately taken to hospital, but took no such steps, and prima facie his omission to do so was also negligent.
There is a further part of the enquiry, however, which is whether this negligence prima facie caused the death of the deceased for it is only causal negligence which can give rise to legal responsibility for the death. I have already indicated that there are two distinct aspects of the enquiry insofar as it relates to causation. The first is whether, but for the negligent omission, the death would not have occurred. As pointed out in Skosana's case, this necessarily involves a hypothetical enquiry into what would have happened had the delay not occurred, by notionally eliminating the negligent delay and advancing in time the subsequent acts or omissions which occurred (see p 35F and 44F). Although the evidence does not deal with this expressly, it is no great distance from the city to the Garden City Clinic, and prima facie it should have required no more than an hour from the time he was shot until he received medical attention even allowing for a diversion to the Hillbrow police station. Mr Siqubu was not bleeding profusely.
Dr Greyling's experience was that there should not in the normal course, by which he meant if the deceased was in the trauma unit within an hour, have been any complications for a person of the deceased's age and in the physical condition which he was. In his opinion if Mr Siqubu had been at the hospital within an hour he would not have died. The opinions of the forensic pathologists who gave evidence were more guarded. It is inherently difficult of course to say with certainty what might have happened in hypothetical circumstances, but we can see nothing in the evidence which provides any factual basis for doubt to be cast upon the opinion of Dr Greyling. When the evidence as to the nature and effect of the injury, and the manner in which such injuries are normally treated, is looked at as a whole, prima facie in our view Mr Siqubu would not have died but for the negligence to which I have referred.
It was submitted, however, that there were further intervening acts or omissions on the part of the medical personnel who attended to the deceased which again interrupted the chain of causation. There was some debate in the evidence as to whether the medical personnel had been negligent and the extent to which this might have contributed to the deceased's death. I do not intend traversing all that evidence. The deceased was in a critical condition when he arrived at the hospital, and although the casualty officer might have been remiss in not obtaining a proper history before treating him, there is no substantial evidence that his life might have been saved by other means than those which were adopted. In R v Mabole 1968 (4) SA 811 (R) at 816D Young J said the following:
"In this case the reasonably predictable consequences of the accused's attack on the deceased were that he would require medical attention; and in the state of present knowledge mistakes in diagnosis and treatment are a commonplace. Provided, then, that medical attention is given with goodwill and reasonable efficiency, in my view the accused cannot complain of mistakes in diagnosis and treatment."
In our view that is equally applicable in the present case. The treatment the deceased received was standard treatment for his apparent condition, and we do not think that any error there may have been in this regard is sufficient to have broken the chain of causation. Prima facie in our view his death was brought about by the negligent omissions to which I have referred.
The Medical Treatment
I have already indicated that in our view there is no substantial evidence that anything further that might be required to have been done by the medical personnel would have prevented the deceased from dying. In those circumstances there is no prima facie evidence that his death was brought about by an act or omission amounting to an offence on the part of any of them.
(a) Bhekani Simphiwe Siqubu
(b) Complications following a gunshot wound.
(c) 28 March 1994
(d) The death was brought about by omissions prima facie amounting to offences on the part of Brigadier Meintjies and Constable de Klerk.
THE INCIDENT AT THE LIBRARY STEPS: (Deceased 17)
This incident appears to have occurred within minutes of the previous incident. At that time a Casspir personnel carrier of Unit 25 of the Internal Stability Unit was stationary in Market Street alongside the front of the Library. Certain members of Unit 6 of the Internal Stability Unit were also at that time in the immediate vicinity. They had arrived in an ordinary police vehicle and included Lieutenant Gerber, Warrant Officer Nel, Warrant Officer Johnson, Sergeant Petrus Rossouw and Sergeant Johannes Engelbrecht.
On each side of the steps of the Library there is a small garden enclosed by a low wall, in which shrubs and several small trees grow. We are concerned in this case with the garden which is on the southern side of the Library steps, immediately adjacent to the pavement of Market Street. The garden is separated from the front facade of the Library by a narrow gully which is about 1,5 metres deep.
Sergeant Petrus Rossouw and Sergeant Johannes Engelbrecht were in Market Street alongside the Library. In affidavits which they deposed to they said the events which I will describe occurred at about 11h30 but this is clearly not so. Both policemen say that the events occurred shortly after stun grenades had exploded in the Library Gardens, and it is clear from the videotape that this occurred in the course of the previous incident.
The evidence of all the policemen who gave evidence on this issue is again in our view unreliable, and it could be misleading to attach any weight thereto in the absence of acceptable corroboration. What is clear though is that Sergeant Engelbrecht shot dead with his R5 rifle a person who was amongst the crowd. He said that Sergeant Rossouw told him to do so, and this was confirmed by Sergeant Rossouw.
The person whom he shot was RICHMAN LINDA, whose body was identified on the scene by his brother, and filmed on videotape, shortly after he had been shot. He is seen on videotape to be lying outstretched on his back, on the concrete paving alongside the northern edge of the garden which I have described. He is dressed in long trousers and his upper torso is naked.
According to the evidence of Sergeant Rossouw and Sergeant Engelbrecht, when general shooting started occurring at Library Gardens they climbed into the Casspir belonging to Unit 25 for protection, together with members of that unit. They were then standing in an elevated position facing the Library Gardens. They said that two men came running in their direction, each carrying an AK47. They said that one jumped into the gully alongside the front facade of the Library; and the other lay prone under a tree in the garden which I have described and began firing bursts of automatic fire in the direction of the Volkskas Building in Market Street.
Sergeant Rossouw said that he had his attention on both the man who had leapt into the gully and the man who was lying under the tree in the garden firing bursts from his AK47. His evidence thereafter is somewhat confusing, but in essence he said that he had his R5 rifle pointed at the man in the gully and shouted at both men to drop their weapons. The man under the tree ignored him and continued firing until his magazine was empty, and then changed magazines and cocked the rifle to continue firing.
Sergeant Rossouw said that he could not fire at the man because Sergeant Engelbrecht was standing on his right and their rifles would have crossed, so he told Sergeant Engelbrecht to shoot him. Sergeant Engelbrecht said that he then shot the man twice with his R5 rifle, aiming at his head, and he died immediately. Sergeant Engelbrecht's evidence was largely the same as that of Sergeant Rossouw. He said that unbeknown to him at the time, his rifle was set on automatic and two shots went off in quick succession. The other policemen who were in the Casspir either saw nothing at all, or described the incident in not quite the same terms.
According to Sergeant Rossouw the man in the gully had in the meantime passed his AK47 to other people who were taking shelter there, and he said that members of Unit 25 were sent to retrieve it. It is clear beyond doubt that this AK47, which had the serial number B7099 and had a magazine attached to it, was retrieved from the gully by Constable Ntsondo accompanied by another member of Unit 25.
The question which arises though is what happened to the AK47 which was alleged to have been in the possession of the other man at the time he was shot. There is credible evidence that later that day Sergeants Rossouw and Engelbrecht handed two AK47s to Constable Botha at John Vorster police station. One was the firearm which had been retrieved from the gully by Constable Ntsonda. The other was an AK47 which had no butt and no magazine. The two policemen said that this was the firearm which had been in the deceased's possession. They said that it had been retrieved from the body of the deceased, also by members of Unit 25.
The alleged retrieval of this firearm from alongside the body of the deceased was dealt with in a number of affidavits deposed to by members of Unit 25, and we heard the evidence of some of them. It is not necessary to say more than that their evidence is an irreconcilable tangle of contradictions.
There are a number of improbabilities in the evidence of Sergeants Engelbrecht and Rossouw It seems unlikely that a man dressed only in trousers would be wandering around the Library Gardens with an AK47 without anywhere to conceal it. It is also most unlikely that a man who was aware that he was being observed by policemen with rifles trained on him would simply carry on firing an AK47, and even pause to change the magazine.
It will be evident too that bursts of automatic fire could not have come from a rifle which did not have a magazine attached to it. An explanation was offered for the disappearance of the magazine which was alleged to have been attached to the firearm, which is in our view unconvincing, but no explanation at all was tendered for the disappearance of the empty magazine. Furthermore no spent AK47 cartridges were recovered from the scene. Lieutenant Gerber deposed to an affidavit in which he said that there were indeed AK47 and 9mm cartridge cases on the scene which he pointed out to the investigating officer who arrived on the scene.
However, no cartridge cases are shown on the photographs taken by the police photographer, nor have any such exhibits been produced. Detective Sergeant Diedericks, who attended at the scene and transported the body to the mortuary, said that he found only one 9mm cartridge case at the scene. There are other questions too which arise in relation to the evidence of the two sergeants, but it is not necessary to deal with them all.
There are two other items of evidence which in our view are more decisive. Some time after the incident it was reported on the radio to the control room at Diepkloof by a member of Unit 6 that Sergeant Engelbrecht had shot dead an "Inkatha lid ... met ‘n AK47". When asked for further details, a person who appears to have been Sergeant Engelbrecht himself, said that he had fired three shots.
When asked for the number of the weapon he gave the number B7099, which was the number of the AK47 which had been found in the gully. It is possible that when making the report he mixed up the two firearms, because he added that the firearm did not have a magazine, but we find it difficult to envisage how he would have mixed up the numbers.
It will also be recalled that the two firearms were handed in at John Vorster Square later that day. In the course of argument I asked for the docket which was opened in connection with these firearms to be produced. The investigation diary in the docket records that the investigating officer approached Sergeant Engelbrecht on 6 May 1994, evidently to find out where the two AK47s had come from.
The investigating officer recorded that he was told by Sergeant Engelbrecht that one had been retrieved from a man whom he had shot, but more important, that the other had been given to him by a brigadier at the scene. I might add that the evidence shows that Brigadier Meintjies was indeed on the scene at some stage, and it is quite likely that the reference was to him. I have already indicated that it is clear beyond doubt that one of the AK47s was retrieved from the gully by Constable Ntsonda. It is only the source of the AK47 alleged to have been in the possession of the deceased which is in any doubt. If it came from the brigadier, quite evidently it had not been in the possession of the deceased.
There may of course be explanations for these two items of evidence, which the two policemen may yet have. However, their admissions, taken together with this evidence, which is inconsistent with their explanation, in our view prima facie discloses that the act of each of them constituted an offence. I may add that even on their own versions in our view the shooting of the deceased would not have been justified, as less drastic means could have been taken to stop the deceased from shooting than immediately shooting him in the head.
The body of the deceased was transported to the mortuary by Detective Sergeant Diedericks. A post-mortem examination showed that he had been shot twice. One shot entered behind his right shoulder and exited on his left side. The other struck him on the front of his head, and bullet fragments were found in the brain. The injuries were consistent with bullet wounds from an R5 rifle.
(a) Richman Linda
(b) Cerebral injuries from a gunshot wound.
(c) 28 March 1994
(d) The death was brought about by acts prima facie amounting to offences on the part of Sergeant Johannes Engelbrecht and Sergeant Petrus Rossouw.
THE VOLKSKAS BUILDING: (Deceased 18)
An affidavit has been deposed to by Mrs Anna van der Walt, describing the circumstances in which her son, ALWYN VAN DER WALT, was shot. We have no reason to doubt the correctness of her evidence in any material respect and she was not called to testify orally.
Mrs van der Walt and her son Alwyn were both apparently employed at Volkskas Bank. Mr Alwyn van der Walt occupied an office which overlooked Library Gardens, and more particularly a brick and steel structure which is situated along the Market Street side of the gardens. Videotape of the gathering shows that the structure was used by many of those in attendance as a vantage point from which to observe the proceedings.
Mrs van der Walt entered her son's office, to find him lying on the floor with his head near the window. He had a bullet wound in the head, and there was a single bullet hole in one of the glass panes of the window. She described this as having occurred at about 12h15.
A military ambulance in due course arrived and transported him to Milpark Hospital where he was admitted to Casualty at 13h45 bleeding profusely. Attempts to resuscitate him failed and he died at 15h45.
A post-mortem examination showed that a bullet entered his head over the outer end of the left eyebrow, travelled backwards into the cranial cavity through the left cerebral hemisphere, and emerged from the skull but lodged under the scalp. He would have been incapacitated immediately.
The bullet which was recovered was from a .38 Special handgun. I have already indicated that firearms of this calibre are not issued to the police, but it is quite likely that there were a number of such weapons amongst those who attended the gathering. It is quite likely that Mr van der Walt was observing events in the Library Gardens through the window when the bullet struck him. The opinion of a police ballistics expert was that the shot is most likely to have emanated from a person on the steel structure to which I have referred.
There is no prospect on the information which is available to us of identifying who was responsible for his death.
(a) Alwyn van der Walt
(b) Cerebral injuries caused by a gunshot wound.
(c) 28 March 1994
(d) The death was brought about by an act prima facie amounting to an offence on the part of a person whom we have been unable to identify.
MARKET AND SIMMONDS STREETS : (Deceased 19)
In an affidavit which was deposed to in October 1995 a certain Constable Tommy Bekker said that he was on the corner of Market and Simmonds Streets at the time that shooting was taking place generally in the area. He had arrived there in the company of a certain Sergeant Koen. He said that he had shot his 9mm pistol at a man in Simmonds Street who was firing a handgun at the police helicopter, and that the man fell to the ground with the handgun alongside him. He said that a second man picked up the handgun and he shot at him too and this man also fell to the ground with the handgun alongside him. A third man then picked up the handgun and he shot at him too. He said that he then ran from the scene because he had exhausted his ammunition. What became of the three men was not dealt with in his affidavit.
There is also evidence before us that when the shooting at the Library Gardens abated the body of a man was found in the roadway of Simmonds Street, near to its intersection with Market Street. It came to the attention of an induna, who went to investigate. The body was at that time lying in the roadway, and was then moved from the road and placed on the pavement alongside the entrance to the municipal parking garage at the corner of Market and Simmonds Streets. The induna informed a certain Mr Manqele, who then telephoned the father of the deceased, who arrived at the scene shortly thereafter and identified the body as that of his son PHENDUKANI ZONDI.
During the course of the afternoon the body of the deceased was transported to the mortuary by Detective Sergeant Diedericks. A post-mortem examination showed that the deceased was killed by a single bullet which passed through his body, entering the chest and exiting at the right loin. The bullet passed through the right cardiac ventricle. According to expert evidence which we heard the deceased would probably have been immobilised by the shot and would probably have died almost immediately. The trajectory of the bullet through the body was such that the deceased would have been crouching forward at the time he was struck if he had been shot by a person standing on the same level, and must have been shot from above if he had been standing upright at the time he was struck. The wound was consistent with that which would be caused by a 9mm pistol.
The coincidence of Constable Bekker having fired at three men, and the discovery of the body of a man who had been shot in the same general area raises the very real possibility that Mr Zondi was one of those who was shot by Constable Bekker. Both he and Sergeant Koen gave evidence before us.
Apart from admitting that he was on that corner at the relevant time on the day in question, Constable Bekker declined to answer all relevant questions, as he was entitled to do, on the grounds that the answers might tend to incriminate him. Sergeant Koen also declined to answer many questions on the same grounds. In response to questions concerning the acts of Constable Bekker, which he was obliged to answer, in our view his answers were simply untruthful and designed to avoid incriminating Constable Bekker.
It was submitted by his counsel that the evidence would not be admissible because he had not been warned before making his statement that he was not obliged to say anything which might incriminate him and was entitled to take legal advice before making a statement. In my view the authorities go no further than to allow a court a discretion to exclude the evidence on those grounds, and it is not ipso facto inadmissible. It is legally competent evidence, and it would not be for me to pre-empt the manner in which another court might exercise the discretion which it would have to admit or reject the evidence. It is for us to determine only what prima facie conclusion can be drawn therefrom.
The admissions made by Constable Bekker in his affidavit could be proved against him. Even if they were to be accepted at face value, the explanations put forward in that statement do not on the face of it justify his conduct, which prima facie amounted at least to attempted murder. The question though is whether the coincidence of the shooting by Constable Bekker, and the discovery of the deceased's body in the same general area, without more, is sufficient to justify the inference that the deceased was one of those who were shot by Constable Bekker.
The inference that the deceased was shot by Constable Bekker is on the face of it consistent with all the facts which we think are established by the evidence. What will remain in any prosecution is whether it is the only reasonable inference to be drawn from the facts. Counsel has reminded us that at the time these events were occurring there was substantial gunfire occurring, both from members of the crowd and from other policemen in the vicinity.
Certainly the police were generally armed with 9mm pistols, and it is quite likely that there were a number of such firearms amongst the crowd. In our view this must inevitably raise as a reasonable possibility that the deceased was struck by a bullet fired in the course of this general gunfire, whether accidentally or otherwise, and will preclude a court from drawing the inference that he was killed by one of the shots fired by Constable Bekker. In our view a prosecution based on this evidence alone could not reasonably be expected to succeed.
(a) Phendukani Zondi
(b) Gunshot wound of the heart, right lung and liver.
(c) 28 March 1994
LANCET HALL (Deceased 1)
I have earlier referred to the group which had gathered at Leyds Street and proceeded down Klein Street. Amongst them was Mr Shelembe and Mr Mkhize who appear to have been the two most senior indunas. They passed Shell House and continued south along Klein Street. It was by now shortly before 09h43.
The group was accompanied by a number of policemen, all of whom appear to have been alongside the group but towards the middle and the rear. There is some evidence that there was a police vehicle ahead of the group but this evidence is somewhat confused and contradictory.
Amongst the policemen was Major Peche, who had been walking with the group since the first of them had abruptly left the Library Gardens earlier that morning. Lieutenant Colonel Nel was travelling in a vehicle at the rear. Major Els, Sergeant van Greunen and Constable Skippers were in a vehicle at the corner of Plein and Klein Streets when the group came by and Sergeant van Greunen said that they too started to follow.
The group was large and spread for a considerable distance down the road. Estimates given were that there were about 500 amongst them. There is videotape showing a segment of this group in Klein Street between Plein and Bree Streets, and there is nothing untoward in their behaviour. The vanguard, which was by then some distance up von Wielligh street, is not visible on the videotape.
The vanguard had not yet reached Jeppe Street, when the shooting occurred, which was identified in the evidence as having emanated from at least four buildings. At the time it occurred Major Peche was on the northern side of Bree Street. He heard shots, which he said came from ahead of him, and the front of the crowd immediately "disintegrated" as people ran for cover. He said that the shots sounded to him like automatic fire from an AK47. Members of the crowd told him the shooting had come from the upper floors of Lancet Hall and that was consistent with what he had heard and seen. Mr Mkhize was crossing the intersection at its western end when the shooting started. He said that after the first shots were fired he saw people shooting from one or other of the upper floors of Lancet Hall, and that a woman alongside him was struck by a bullet. There is other evidence too, and more particularly that relating to the cartridge cases, which supports these observations.
Sergeant van Greunen had by this time left the vehicle he was in to take shelter, and said that he saw more than one person at the window of a flat in Bree Street, which faced north along Klein Street, firing at the crowd. He entered the block of flats after the firing had abated and saw spent handgun cartridges on the floor of one of the flats on the third or fourth floor. He encountered a woman in the passage who said that the people who had been there had already left. There is evidence too that shots were fired from opposite Lancet Hall, and from the Diplomat Hotel.
The ANC has denied that there was shooting from Lancet Hall but in our view the evidence that there was is overwhelming. There has been no credible explanation for why the shooting occurred, and we can see nothing which could have justified it. A number of people in the crowd were injured in the course thereof. One person lay dead on the pavement in von Wielligh Street, about two or three metres from the entrance to the parking basement of Lancet Hall. He was NORMAN MAJUBADLANI CHONCO. A post-mortem examination showed that he was struck by one bullet. The wound was consistent with that which would be caused by a bullet from an AK47. The bullet perforated the aorta and other blood vessels, causing death from hypovolaemic shock. The opinion of one expert was that he could have been capable of moving over a considerable distance after being shot, and that of another was that he is likely to have fallen after no more than a few steps. The bullet entered at his right lumbar region and travelled forward and upward, exiting in the epigastric region 20 mm to the right of the umbilicus.
One witness said that he had seen a man emerge from the parking basement of Lancet Hall, fire, and then retreat into the basement. We do not think that evidence is credible and it is also improbable. The evidence indicates that the entrance gate to the basement was closed at the time, and the trajectory of the bullet is also inconsistent with this account. Mr Mkhize claimed to have seen the deceased being shot but we think that too is unlikely. He was crossing Bree Street on the far side from Lancet Hall when the first shots were fired and it is more likely that he observed the deceased only after he had fallen.
A certain Mr Simelane was in the basement of Lancet Hall at the time the shooting occurred and said that he fired a shotgun. He gave an explanation therefor which we do not consider to be credible, though there is objective evidence that a shotgun had indeed been fired from the basement. He said too that only a certain Mr Vilakazi, now deceased, was with him, and that he had a pistol but he could not say whether he had fired it.
It was submitted that the deceased was shot from the basement of Lancet Hall, by someone as yet unidentified. The position in which the deceased was found, and the trajectory of the bullet, provide support for this, but the inferences to be drawn from those two facts are dependent upon assumptions being made in relation to each of them, which the evidence does not establish. It is possible that the deceased was shot from the basement, and it is also reasonably possible that he was shot from elsewhere and that it is coincidental that he collapsed where he did. In either event we are not able to establish who was responsible for his death, but prima facie the act which killed him constituted an offence.
(a) Norman Majubadlani Chonco
(b) Hypovolaemic shock consequent upon a gunshot wound.
(c) 28 March 1994
(d) The death of the deceased was brought about by an act prima facie amounting to an offence on the part of a person whom we have been unable to identify
SHELL HOUSE (Deceased 3 to 10)
Before turning to the evidence it is appropriate to deal briefly with the law on certain issues to assist in determining the focus of the enquiry.
One of the elements which it would be necessary for the prosecution to establish in a criminal trial is that the act or omission which brought about the death was unlawful. In practice that means that where a defence which seeks to justify the act or omission is raised, or is suggested by the evidence, it is for the prosecution to exclude this as a possible reason for the killing in order to establish that the act or omission was unlawful. If the evidence discloses a reasonable possibility that the act was justified then a prosecution will not succeed (S v Ntuli 1975 (1) SA 429 (A)).
There are circumstances in which intentional killing will be justified if it is to repel an unlawful invasion of person or property. Although they most often arise in relation to self-defence, the principles are equally applicable to an act committed in defence of another and sometimes even to the defence of property. Dealing with the applicable principles in the context of self-defence, Watermeyer CJ said in R v Attwood 1946 AD 331 at 340 that a person accused of murder would be entitled to be acquitted on the grounds that he was acting in self-defence:
"...(if) it appeared as a reasonable possibility on the evidence that accused had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury, that the means of self-defence which he used were not excessive in relation to the danger and that the means he used were the only or least dangerous means whereby he could have avoided the danger."
Furthermore, even it be proved that an accused acted unlawfully, he will still not be liable to conviction for a crime requiring mens rea in the form of intention if it appears as a reasonable possibility on the evidence that through mistake he genuinely believed that he was acting in legitimate defence and thus lawfully. The same result will follow in the case of a crime requiring mens rea merely in the form of negligence if in addition the mistake was reasonable (S v Ntuli, supra; S v Ngomane 1979 (3) SA 859 (A) esp at 863A).
Accordingly a person who intentionally kills another is not guilty of murder if he genuinely believed at the time that the various elements referred to in Attwood's case existed, even though he was in fact mistaken. His state of mind at the relevant time is a question of fact. If in addition his belief was reasonable he will also not be guilty of culpable homicide.
Eleven ANC security guards, two of whom are now deceased, who on their versions had amongst them two AK47s, two shotguns, and a variety of 9mm pistols, have admitted that they fired shots in the course of this incident but have alleged that they were justified in doing so. All but one admitted to having fired at the crowd in King George Street. Mr Molefe alleges that he fired a burst of automatic fire from his AK47 into the air. Mr Kruser was amongst one group of them at the time and although he did not shoot he alleges that he instructed those who were with him to do so.
Those admissions are capable of being admitted in evidence against their makers in subsequent proceedings, though they will not be looked at in isolation. However a court is not bound to simply accept at face value the explanations which accompany them, and they fall to be "accepted or rejected according to the Court's view of their cogency" ( R v Valachia 1945 AD 826 at 837).
It cannot be assumed that each of the deceased must necessarily have been killed by one of those who have been identified as having fired, or conversely that each of those who have been so identified must necessarily have killed one of the deceased, and to reason in either way would be fundamentally fallacious. Many shots were fired which struck none of the deceased. Furthermore it cannot be assumed that those identified as having fired were the only persons who fired shots in the course of the incident. It is apparent from the evidence that shots were also fired by others whom it has not been possible to identify in this inquest. Nevertheless the persons to whom I have referred are the only persons who can be identified as having shot in the course of the incident, and for that reason much of the evidence in this matter has centred upon their conduct.
It is not necessary to consider in detail whether any of them acted in legitimate self-defence, although this was suggested by some of them, but only faintly. From where each of them was positioned there was no necessity for them to have shot in order to protect their own lives and none of them could in our view have thought otherwise. They could quite easily have withdrawn if their own safety was considered to be at risk. What does require serious consideration though is the threat which they say they believed was being posed to Shell House itself and the people within it.
I have already indicated that at about 10h30 trains arrived at Johannesburg station bringing to the city many hundreds of people armed with spears, sticks, and other weapons, and there were certainly some firearms amongst them. At that time there was a small police presence in the vicinity of Noord and Hoek Streets, which is where people emerged from the station. As people started streaming out of the station a policeman at Hoek Street asked for assistance to be sent, but it seems that his call may have been lost in the concern with the confrontation which occurred just then at and around the Selby hostel, because there is no indication that assistance was indeed sent.
Certain of the ANC witnesses said that the situation around the exit of the station was chaotic and that shots were being fired. There is evidence to corroborate this, both from reports made on the radio shortly after 11h00, and from the evidence of an independent witness.
It must have been shortly before 11h00 that a certain Mr von Egidy arrived in town and parked his car in Wanderers Street, between Noord and de Villiers Streets. He was a most unusual witness, who ascribed his presence, and his actions moments before the shooting occurred, to his role as a missionary for peace. While some of his observations may be inaccurate in their detail, and others may be coloured by interpretation, in our view he was honest and meticulous in relaying to us what he believed he had observed. Where I relate his observations I will do so as far as possible in his own words.
Upon leaving his car he found himself amongst what he described as a mass of people moving in a generally southerly direction, with individuals joining in from side streets. He described the crowd as chaotic, and said that they were running, knocking over bins, smashing cars, shouting, screaming and gesturing. However, they presented no threat to him personally, and he was in the midst of this crowd as it moved south along Wanderers Street and then turned east into de Villiers Street in the direction of Shell House.
The group was a cohesive one and they would run a short distance, then hesitate for a while, then run, and then hesitate, and so on, as they made their way along the street, chanting or singing as they did so. When Mr von Egidy was about halfway along the block in de Villiers Street he heard at least three shots being fired from ahead of him, and at the same time he saw a person amongst the group take out a pistol which he cocked and thereafter carried in his hand. He had a vague recollection of seeing the butt of a rifle and other firearms but could not be sure of this.
Because he continued walking each time the group hesitated, he made more rapid progress and duly emerged from the front of the group shortly before he reached the intersection with King George Street. Another group had in the meantime been moving from the station east along Noord Street, and then south into King George Street, and he became aware of this group for the first time as he reached the intersection. In due course these two groups, comprising five hundred people or more, were to converge in the intersection of King George and de Villiers Streets, and continue south in King George Street along the western side of Shell House.
At the time the group was approaching the intersection there were four ANC security guards on the first-floor balcony of Shell House, armed amongst them with an AK47, two shotguns, and a pistol. Other security guards were in and around the foyer of Shell House, armed with pistols, and an AK47 and some shotguns were readily available.
To turn for a moment though to what the policemen in the area were doing. Major Els, Sergeant van Greunen and Constable Skippers had been in a vehicle in the vicinity of Shell House from earlier that morning, and had subsequently been joined by four others, viz Sergeant van Reenen, Sergeant Golach, Constable Potgieter and Sergeant Scheepers.. They were together opposite the front of Shell House on the corner of Plein and Klein Streets. At what must have been shortly after 11h00 shots were heard which appeared to have come from further west along Plein Street in the vicinity of Wanderers Street. Five of the policemen ran west down Plein Street to investigate.
There is some dispute as to whether they did so on their own initiative, or whether they were asked to do so by ANC security personnel, but this is not material. After they crossed King George Street they took shelter while they tried to establish where the shots had come from, and upon seeing nothing they started walking back to where they had come from. There is some evidence that one of the guards on the balcony might have fired a shot from his shotgun in their direction, but the evidence on this is contradictory and the issue is not really material.
It was while they were crossing back over King George Street to return to their vehicle that the policemen became aware of two events occurring almost simultaneously. They became aware of the presence of a large group moving south along King George Street towards the intersection with de Villiers Street, and at almost the same time they became aware of ANC guards with firearms hurrying from the foyer to the south-western corner of Shell House.
Sergeant van Reenen said that when he became aware of the two events happening he immediately realised the potential which existed for a confrontation to occur if the crowd came closer. He called to Sergeant van Greunen to accompany him and they both ran down King George Street with the intention of attempting to divert the approaching group from crossing de Villiers Street and approaching further south along King George Street. The two policemen said that as they came close to the crowd they held out their arms to attempt to divert the crowd along de Villiers Street, but they were pushed roughly aside and each of them gave way, one to the left and the other to the right.
To return though to Mr Von Egidy's account of what occurred. He was ahead of the group which was moving along de Villiers Street by the time he reached the intersection, and then became aware of the other group which was moving towards him down King George Street. A scattering of people were also approaching from the east along de Villiers Street. He appears to have become bewildered at the realisation that he was being approached from three sides, coupled with the impression which he formed that to the south King George Street was blocked both physically and by people carrying firearms, and he said that he started circling the intersection. I should mention that King George Street comes to an end at its intersection with Plein Street.
Furthermore at both ends of that section of King George Street there were at the time a number of concrete blocks in the roadway, apparently to inhibit vehicles from using it. Mr von Egidy became aware that there were armed people in King George Street, mainly concentrated at the southern end, where he said that he saw what he described as a group of "more than eight but less than twenty". His impression was that the majority were in uniform and carrying rifles. What he must have seen was the small group of policemen and the ANC guards who were by then gathering in the vicinity of that corner, although of these only the policemen were in uniform. He was also aware of a person in uniform carrying a rifle in de Villiers Street. He described this person as a woman but we think he was mistaken and what he must have seen was one of the army personnel.
His impression then, which was substantially accurate, was of armed people in King George Street but concentrated at the southern end, and large numbers of Zulus armed with a variety of weapons approaching from other directions. I have already indicated that he saw his role and purpose there as an ambassador for peace. He stretched out his arms and shouted at everyone around him to stop because what they were doing was an affront to the Almighty, turning round and round as he did so.
He said that everyone around him seemed quite taken aback by his presence. The group which had been advancing down King George Street had by then entered the intersection and he was facing those in the front of this group. He said that they stood back for a moment but could not contain those who were pushing from behind, who broke through after a short lull and surged forward. He said that he attempted to hold his ground but was soon staggering backwards. He was jabbed in the side with a pole, and struck a few times with sticks as the crowd came "running past and on top of me".
He soon stumbled and fell to his knees as the crowd engulfed him. He described the crowd at that time as being "on full charge". After a few moments and while he was on his knees he heard an intense eruption of gunfire, including automatic fire, which seemed to go on for what he said was about ten seconds. His impression was that it was coming from the direction of what he described as the "defensive positions", by which he meant the armed people he had seen south of him in King George Street. Immediately the shooting started he became aware of the people around him turning tail and running back in the direction from which they had come, and of bodies and weaponry falling down around him.
The shooting soon abated and gave way to what he described as an eerie silence. He found himself amongst dead and wounded people, and a carpet of discarded weaponry. He got up and seems then to have wandered away as ambulances, police and media cameramen descended on the scene.
Mr Stephens was the manager of a fast-food outlet which was situated in Plein Street, facing north along King George Street. His attention had been drawn to the crowd as it was gathering in Noord Street, and he saw them moving down King George Street towards de Villiers Street. It seems likely that he took little notice of what was occurring until he heard shooting, and his attention then fell upon a man at the south-western corner of Shell House who was firing an AK47 with a policeman standing near to him.
Mr da Silva Dias was assisting his parents at their fish shop which was situated in King George Street, opposite Shell House, and one shop away from the corner of de Villiers Street on which there was a pharmacy. Shortly before the crowd converged in the intersection he had been standing in the doorway of the shop and he heard the sound of the crowd approaching along de Villiers Street. When they came into view he stepped back into the shop and pulled the glass door closed but remained standing there.
Shortly after they had started moving past the shop he heard an outbreak of gunfire, and he said that there was immediate pandemonium as people were running back and falling to the ground. He fell to his haunches and then turned away to attend to some children who were in the shop. As he did so his attention was drawn back to the street by the sound of gunshots right outside the shop. He glanced back and saw a man in the street dressed in blue denim holding an AK47 in one hand which was being fired more or less straight up into the air while his face was turned towards the ground. Mr Dias sought shelter behind the counters and did not see the man again.
These observations of the behaviour of the crowd are largely in line with the evidence of the two policemen who had remained at the south-western corner, though they described the manner in which the crowd was moving along King George Street as "toy-toying" or "drafstap". What is common to all this evidence though is that immediately the sound of gunfire was heard the crowd disintegrated in disorder and began retreating or seeking shelter. The observations of the army personnel, most of whom were in the vicinity of their vehicle, are not really helpful but are not inconsistent with this. There was another witness who saw the events from the top of a nearby building whose evidence may have been partial, and there are further affidavits of other witnesses on other buildings who were not called. All that evidence is also consistent with the essential facts which I have described.
The weight of the evidence shows that the gunfire came very largely from the direction of Shell House and more particularly the south-western corner and the balcony. At the south-western corner at ground level Mr Eddie Khumalo had an AK47 which he fired in the direction of the advancing crowd though many of his shots may have passed above head height. A burst of about ten or twelve shots struck the underside of the balcony just above and ahead of him. Mr Singaram, Mr Zuma, Mr Beea, Mr VJ Rama (now deceased) and Mr Mangena all said that they fired shots from their pistols.
Mr Kruser, who was amongst them, said that he had instructed them to do so. On the balcony, Mr Molefe said that he fired a burst of automatic fire from his AK47 but that this was fired into the air. Mr Llale said that he fired two shots from his shotgun. Mr Moolman said that he fired one shot from his shotgun. Mr Neo Potsane said that he had just then joined the others on the balcony and that he took the shotgun from Mr Moolman who seemed afraid to fire again and he fired one shot himself. In his affidavit Mr Lushaba said that he fired at the crowd with his pistol. I will return to deal more fully with their explanations for why they did so.
By the time the shooting was over eight people lay dead or dying at or near the corner where the pharmacy was situated. Some were in King George Street and others were in de Villiers Street. Many others were injured.
Although there are unsatisfactory aspects of the evidence relating to who the dead were, in our view the evidence which we have establishes with the requisite degree of certainty necessary for our findings that they were SIPHIWE QONDOKWAKHE VILAKAZI; MFANIZAKHE MAJOZI; SIBUKU PETROS LANGA; ZANTONTO JOHANNES KHUMALO; BANDA WELLINGTON SITHOLE; RAPHAEL VELI NTOMBELA; MZIWAKHE JEREMIAH KHANYILE; and CONRAD NCOBELA KOHLA.
Post-mortem examinations were conducted on the bodies of the deceased, and we heard the evidence of the doctors concerned, as well as further expert evidence. The evidence establishes that four were struck from behind by shotgun pellets fired from a distance of between 10 to 20 metres; three were killed by bullets from respectively an AK47, a Makarov pistol, and probably a 9mm pistol; and one died of stabbing.
The evidence in relation to each of the deceased establishes the following:
1. Mr Vilakazi died of a wound probably inflicted by a sharp instrument such as a spear. He had a penetrating wound over the left back which passed upward, anteriorly and medially to enter the left chest, terminating against the cervical spine. Considerable force would have been required to inflict the injury. He died of hypovolaemic shock.
2. Mr. Majozi was struck by a bullet in the lateral aspect of the left shoulder. The bullet travelled downwards, passing through the left lower pulmonary lobe, the spinal column and terminated in the lower lobe of the right lung where a spent bullet from a Makarov pistol was found. He would have been immediately paralysed, and died of hypovolaemic shock.
3. Mr Langa was struck by SSG-type shotgun pellets in the back, and one pellet struck him in the back of the head. He was probably incapacitated immediately, and died of hypovolaemic shock.
4. Mr Khumalo was struck by SSG-type shotgun pellets on the right posterior shoulder and upper back, and one pellet struck him over the right antero-lateral chest wall. He too died of hypovolaemic shock.
5. Mr Sithole was struck in the back by a bullet, probably fired from a 9mm pistol, which penetrated various organs and left the body through the right anterior chest. He died of hypovolaemic shock.
6. Mr Ntombela was struck in the right side of the chest by a bullet fired from an AK47 which passed upward and backwards and lodged in the left mandibular angle. Another bullet, probably also from an AK47, passed through his thigh from back to front. He died of hypovolaemic shock.
7. Mr Khanyile was struck in the back by-SSG type shotgun pellets which penetrated various organs. He would have been incapacitated immediately, and he probably died within a few minutes. He died of injuries to the thoracic and abdominal organs.
8. Mr Kohla was struck in the back of the head, just above the neck, by three shotgun pellets probably of SSG-type. One lodged in the brain. He died of cerebral injuries.
On the following day a police ballistics expert visited the scene and observed bullet damage to various premises and objects in the area, which he recorded. He did not feel free to undertake extensive observations in the area at that time. During the course of this inquest three other experts appointed by the various parties conducted a further joint investigation with the police expert. To the extent that the damage which had been observed by the police expert the day afer the event was still capable of being observed, they confirmed the observations which he had made on that day.
We have no reason to doubt the accuracy or interpretation of the remaining observations which he made the day after the event but which could no longer be confirmed. In addition the four experts noted further bullet damage to buildings which had not been observed by the police expert on the day after the event. It is possible that at least some of this may have been caused in subsequent events, and it is also possible that it was caused in the course of the incident which I have discussed.
I do not intend setting out their conclusions in anything but broad terms. What they indicate is that at least thirty-six and possibly as many as fifty-six shots struck buildings from the direction of Shell House. There was no indication that any were fired from the tower block of Shell House. Of the fifty-six marks which were observed in the most recent investigation, thirty-five were consistent with shots from an AK47 fired from the direction of Shell House, and in a direction generally diagonally across and along King George Street. Twenty-seven of these shots were fired upwards.
Of these fifteen struck buildings above first floor level and a burst of ten shots struck the underside of the balcony immediately ahead of where Mr Khumalo was at the time he fired. There were two further marks close by from shots which had been fired straight up into the underside of the balcony, which could have been fired from a 9mm handgun. A bullet struck a glass panel above head height in the vicinity of where the security personnel had gathered. The shot which caused that damage did not emanate from the crowd, and is likely to have been caused by a ricochet from one of the bullets from the AK47 fired by Mr Khumalo.
On the day after the incident three bullet marks were observed in the parapet of the balcony of Shell House at its north-western corner, behind which Mr Molefe was standing before the shooting occurred. They were caused by shots fired from de Villiers Street slightly west of the intersection and must have been fired by one or more members of the crowd. One was from a handgun, one was from a high-velocity rifle such as an AK47, and the remaining one could have been from either.
A fourth mark which could have been caused by a handgun fired from the same general area was observed in the later investigation. Eight other marks from bullets fired generally in the direction of Shell House were observed in the recent investigation. Two high-velocity rifle bullets had been fired into the underside of the balcony of a building diagonally opposite and to the north-west of Shell House. Pellets from a shotgun had been fired from de Villiers Street west of the intersection into the underside of the balcony of a building opposite Shell House. Two bullets fired from de Villiers Street near the intersection struck the north side of the building.
On the day after the event three bullet holes from an AK47-calibre firearm were found at about waist height in the facade of the pharmacy on the corner of de Villiers and King George Streets. One of the bullets struck a marble column, and there were indications from the damage that it could have come from the north-western corner of the balcony of Shell House but there were also indications that it could have been fired from street level. The trajectories of the other two shots were both upwards in the direction of the balcony of Shell House. Other than to say that the trajectories were consistent with shots fired from the northern section of the western balcony, but not necessarily from one place, the expert was unable to place the position from which they were fired with any more precision.
About two hundred firearms licensed in the name of the ANC were handed to the police for ballistic testing, made up of about 120 shotguns and 80 handguns. They included eighteen of the handguns which were issued on that day, and there are explanations for the absence of the other three. The relevant personal handguns of the security guards who admit to having fired on that day (other than that of Mr Rama who is deceased) have also been handed to the police. In addition the two AK47s alleged to have been used were handed to the police for testing. There is independent evidence that one of those was the AK47 used by Mr Molefe.
Both immediately after the shooting and on the following day a number of spent cartridge cases were found on the scene. Apart from sixteen AK47 cartridge cases which were found in de Villiers Street, it has not been possible to determine precisely where the remainder were found. It seems too that at least one handgun was recovered from amongst the deceased.
Nine of the AK47 cases had been fired from an AK47 which was recovered by the police later that day. We see no reason to doubt that it was the AK47 which Sergeant Rautenbach said he recovered from the scene of the later incident which occurred near the steps of the City Hall. It is possible that this was the same AK47 which had been observed by Mr Dias. Six of the cartridge cases were fired from the AK47 which Mr Molefe had. The source of the remaining cartridge case could not be determined with certainty. There were indications that it too had been fired from this weapon, but the possibility of another weapon cannot be excluded. I have indicated that an AK47 bullet was found in the body of one of the deceased. Another AK47 bullet was also found somewhere on the scene. Neither of these bullets had been fired from the AK47s which were tested by the police.
If the second AK47 handed in by the ANC was indeed the weapon which was used by Mr Khumalo, then the evidence shows that, including the weapon seen by Mr Dias, at least four AK47s were fired in the course of the incident. The other cartridge cases show that at least two and possibly more Makarovs were fired; as well as a variety of handguns and some shotguns. One cartridge case was linked to a pistol which was seized by the police from amongst the demonstrators later that day. At least one shot was fired from an R4 or R5 rifle, which may be accounted for by the fact that one of the army personnel has admitted to having fired a shot with his R4 rifle. In our view that shot has no material bearing on our findings.
There are two questions which have been central to much of the evidence we have heard in the course of this inquest, both of which turn upon the state of mind of the people concerned. One concerns the purpose for which the Zulus were in King George Street in the first place, and the other is why they were shot at, and these issues are interrelated. I will turn to the evidence we have heard in relation to the second of these issues.
Mr Eddie Khumalo said that he had heard shots being fired from the direction of the taxi ranks, which are situated in Noord Street, and that he and Mr Mondli Zuma went to investigate. They were at the intersection of King George and de Villiers Streets, on the corner diagonally opposite Shell House, when the group of Zulus emerged from Wanderers Street into de Villiers Street. He said that a person moving just ahead of the group fired two or three shots at them with a handgun, and that he fired his pistol in return and he and Mr Zuma then ran to the foyer of Shell House where they reported what was occurring. Mr Mangena had been outside Shell House in the meantime and he took up a position behind a pillar in King George Street. When Mr Khumalo reported what was occurring he was handed the AK47 which had been kept in the foyer, and he and the others hurried to the corner as the two groups of demonstrators converged in the far intersection
Security guards were indeed seen hurrying to the corner by the policemen who were at the south-western corner of Shell House. When the two sergeants went running down the street to attempt to head off the crowd it seems that at least Sergeant Golach and Constable Potgieter remained behind in the vicinity of the south-western corner. Constable Skippers said that he was there too but his evidence is not satisfactory and it is open to question how much he observed. There were also material discrepancies between the evidence of Sergeant Golach and the contents of a statement which he made some four months after the event, and we think that his evidence too must be approached with some caution.
Sergeant Golach and Constable Potgieter said that the ANC guards were highly agitated and that the atmosphere was heavy with tension. Constable Potgieter said that as the two sergeants ran in the direction of de Villiers Street he went and stood in front of the ANC guards but that one of them prodded him in the chest with his pistol and threatened to shoot him if he did not move out of the way, which he then did. Sergeant Golach said that the ANC guards kept saying that they were going to shoot, and that he kept cautioning them not to do so. He said that after the shooting broke out he shouted at them to stop shooting. We would hesitate to accept all his evidence at face value.
I have already referred to the fact that there are material contradictions between his evidence and the statement which he made. What is significant too is that Constable Skippers in his statement purported to corroborate the evidence of Sergeant Golach when it is clear that if he was there at all he was some distance away and was unable to hear what was alleged to have passed between him and the ANC guards. Sergeant van Greunen said that when the ANC guards assembled on the corner one of them said: "Let us kill some Zulus, they are going to attack Shell House". In a statement which was taken from him three months after the event there is no mention of anything having been said by any of the ANC guards. When examined on this issue his answers were most curious.
He said that if the other policemen had not mentioned this in their statements, then he was not sure whether it had been said. In his evidence Constable Potgieter also said that the ANC guards were saying that they were going to shoot and that he told them not to do so. This is in conflict with what he said in his statement three days after the event. In that statement he said no more than that one of the guards said that he was going to shoot, which he immediately did, and this was followed by shooting from the others.
It is quite possible that there was some remonstration between the policemen and the guards, but we do not think the evidence of the three policemen as to what was alleged to have been said can be taken at face value. It seems to us that much of this evidence, including in particular the evidence that the ANC guards repeatedly said that they were going to shoot, is likely to have been the product of reconstruction a considerable time later.
It is clear that, after hesitating in the intersection for a while, the crowd started moving south along King George Street. From that point on the various versions of the ANC guards as to what occurred are not reconcilable inter se, nor with other acceptable evidence, and are in many respects highly improbable.
I do not think it is desirable or helpful to deal in detail with the evidence of each of the guards. It is sufficient to say that in various forms they all said that they believed that what they were witnessing was the commencement of an attack which was aimed at causing damage to Shell House and serious injury and death to its occupants, and that they fired in order to repel it. They said that the crowd came charging up King George Street brandishing their weapons as if bent on attack, and at the same time firing at them with a variety of firearms including automatic weapons.
The ANC guards who were on the ground at the south-western corner said that warning shots were first fired to dissuade the crowd from advancing further, but this only spurred them on, and that they then fired into the crowd to repel the attack. Mr Kruser said that he gave an instruction to fire, but the evidence in this regard is contradictory and there is good reason to think that he may not have. Those who were on the balcony also said that gunfire was coming from the crowd and that some of the shots struck the building. Mr Molefe said that he fired his AK47 in the air, hoping to frighten them. The others said they fired at the crowd.
There are three principal features of the evidence which we heard from all the ANC guards insofar as it relates to the conduct of the crowd as it moved towards them along King George Street, and their interpretation of the intentions of the crowd, and I will deal with each of them separately.
What is perhaps the most significant feature of the evidence of all of them is that they allege that they were being fired at from amongst the crowd as it was advancing towards them in King George Street. In our view the weight of the evidence is wholly against this. The evidence of both Mr Von Egidy and Mr Dias was that at the first sound of gunfire the crowd immediately disintegrated and fled. We have no reason to doubt this evidence, and it is quite inconsistent with the version that firing was coming from the crowd before the security guards fired. Mr Von Egidy had heard about three shots being fired earlier, but that was before the groups had yet even converged in the intersection.
He also identified the main gunfire which he heard as having come from what he described as the "defensive positions", by which he meant the armed people he had seen south of him in King George Street. The evidence of the other witnesses is all consistent with the evidence of those two witnesses on this issue and inconsistent with the evidence of the ANC guards. Mr Stephens may not have been observing events as they were occurring, but it is most unlikely that his attention would not have been drawn to the situation if there had been gunfire coming from the crowd. His shop was full of customers at the time and the first shooting of which he became aware was that which came from the AK47 on the south-western corner of Shell House which clearly took him by surprise.
Nothing in the evidence of the two sergeants who ran towards the crowd suggests that gunfire had come from amongst the crowd at that stage or thereafter. There is also the evidence of the two policemen who had remained behind at that corner, one of whom was observed by Mr Stephens. The mere presence of the policeman suggests that no gunfire had come in his direction from the advancing crowd. Moreover both policemen said that it was the ANC guards who initiated the shooting. There were other witnesses who were not called whose evidence was also consistent with this account, and none who supported the version of the ANC guards.
Apart from the evidence of those who observed events on that day, there was also the evidence of what was found thereafter. There was no evidence that shots from the direction of the crowd struck buildings or objects in the vicinity of the south- western corner of Shell House. It is clear that shots were fired from amongst the crowd in the course of the shooting, but there is nothing other than the evidence of the ANC guards to indicate that this occurred before the pandemonium broke out.
There is the evidence of Mr Dias that an AK47 was fired from the street in front of his shop, but that was seen only during the course of the pandemonium. There were also four shots which struck the parapet at the north-western corner. These were fired from de Villiers Street, and might well have been interspersed with the shots which were fired from the balcony, but there is nothing other than the evidence of the security guards to indicate that they were fired before the shooting which came from the south-western corner.
The evidence of the security guards that they were being shot at from the crowd as it advanced up King George Street stands quite alone. Apart from this the versions of these witnesses in relation to the gunfire which was alleged to have come from the crowd were in various respects improbable, and irreconcilable inter se or with other acceptable evidence. Prima facie their evidence on this issue was not truthful, which inevitably casts doubt upon the remainder of their evidence as to how and why the shooting took place. The overall weight of the evidence points prima facie to the conclusion that the shooting was initiated by heavy firing by the ANC guards at the south-western corner of Shell House.
The second principal feature of their evidence is that they said that the crowd was charging up King George Street, brandishing their spears and other weapons as if to attack with them. I have already indicated that they cannot be regarded as credible witnesses, but support for their evidence on this issue was sought in the evidence of Mr Von Egidy, who described the crowd as being on "full charge," and on his interpretation that they were "on the attack".
Due weight must of course be given to the impressions formed by a witness who was on the scene, which are not always capable of being adequately conveyed in the witness box, but at the same time a court must not abrogate its function of assessing the reliability of these impressions, no matter how honest the witness may be. What must be borne in mind in evaluating this evidence is that what he had become embroiled in was quite foreign to this witness, who had never before seen Zulus moving in force, let alone been caught up amongst them.
Moreover once he reached the intersection Mr Von Egidy found himself in an unexpected situation, with people advancing in great numbers from one side and their way blocked by armed people on the other. It was only moments later that he was overrun by the crowd and fell to his knees, having been prodded and struck with sticks. Given the circumstances in which he found himself, and the limited opportunity he had to interpret them, it is not unlikely that he would have interpreted events in the way he did. However we do not think we should simply adopt without question the inferences which he drew.
There is substantial evidence against his interpretation of events. There was nothing unusual in the way the crowd was moving to attract the attention of Mr Stephens or the staff and customers who were with him. The fact that the crowd was fired at quite clearly took him by surprise. Mr Dias too saw nothing unusual in the group as it came into view and passed in front of him. The two police sergeants ran in the direction of the crowd as it was converging in the intersection with no apparent apprehension for their safety, except for that which would naturally arise from the realisation that the group was moving in the direction of ANC guards who were agitated and armed, and that a confrontation of some kind could occur.
The policemen who had stayed behind did not react at all to the advancing crowd, and reacted only when the ANC security personnel started firing. They described the way they were moving as "toy-toying" or as "drafstap" and saw nothing untoward in this. There are other witnesses too who were observing events from surrounding buildings, none of whom provide any support for the view that they were doing more than that. Prima facie the evidence of the ANC guards on this issue too cannot be regarded as credible. It is in our view also most improbable that people armed mainly with spears and sticks would have set about charging at people armed with firearms in order to attack them. The very fact that the crowd immediately disintegrated and fled when shots were first fired supports this.
The third feature of their evidence was that in varying forms and on various grounds they said that they believed that an attack upon Shell House would take place on that day aimed at killing the leadership of the ANC and causing serious damage to its property, and that this played a material role, if not a decisive one, in the interpretation which they placed upon the events which they saw occurring. Early on in these reasons I dealt with the evidence in relation to this issue. In our view the weight of the evidence is wholly against there having been any specific information of a plan to attack Shell House. It is quite possible that the risk of an unspecific attack of sorts was present to their minds, but we do not accept that they had any specific information to that effect.
I have already indicated that the political circumstances which then prevailed provided grounds for believing that the demonstrators might in some way turn their attention to the premises of the ANC, and senior police officers were themselves conscious of this inherent possibility. There is much evidence too that senior members of the ANC and the security personnel themselves were apprehensive and expected that there might be trouble of some kind in the proximity of their premises, but we do not think the evidence shows that this ever crystallized into anything more specific. We think the evidence of the security guards on this issue is contrived, and little weight can be attached to it.
Prima facie in our view there is no reasonable possibility that the evidence of the security guards as to what occurred immediately prior to the shooting is true, and it would be fruitless to debate whether what they are alleged to have seen occurring provided grounds of justification for the shooting. What must be asked is whether the circumstances which in fact presented themselves might reasonably have justified their acts.
The test to be applied is an objective one, and is to be applied in the context of the particular circumstances of the person concerned. There are many decisions too which have cautioned against taking an armchair approach. In Ntanjana v Vorster & Minister of Justice 1950 (4) SA 398 (C) at 406C-D Van Winsen AJ said the following:
"The very objectivity of the test, however, demands that when the Court comes to decide whether there was a necessity to act in self-defence it must place itself in the position of the person claiming to have acted in self-defence and consider all the surrounding factors operating on his mind at the time he acted. The Court must be careful to avoid the role of the armchair critic wise after the event, weighing the matter in the secluded security of the courtroom .... (Furthermore) the self-defender is ... entitled to have extended to him that degree of indulgence usually accorded by the law when judging the conduct of a person acting in a situation of imminent peril. ‘Men faced in moments of crisis with a choice of alternatives are not to be judged as if they had both time and opportunity to weigh the pros and cons': per Innes JA in Union Government v Buur (1914 AD 273 at 286)".
We have not heard a credible explanation from any witnesses who were amongst this crowd for why they were there alongside Shell House in the first place, and for what purpose they were there, and any conclusion in this regard would depend upon inference alone. Earlier in these reasons I indicated that in our view the intention behind the holding of the gathering was a least to demonstrate, inter alia to the ANC, the strength which could be mustered to further the IFP's cause, and in our view it is probable that this group quite deliberately chose a route alongside Shell House at least for that purpose.
We have borne in mind that the crowd was by no means docile, and we have also cast our enquiry wide to see whether the context within which all this occurred provides support for the inference that they intended an attack. Those events show that there was much intimidation and vandalism, and sporadic acts of what was prima facie murder. All this warrants the inference that the presence of the crowd in King George Street was intended to be provocative and even intimidating, but in our view the evidence provides no basis for concluding that they were bent upon an attack of Shell House.
There are various factors too which make it improbable that this was their intention. The presence of armed men in strategic positions, including policemen armed with rifles, would have been readily apparent. Although there were firearms amongst the group the evidence suggests that their firepower was minimal compared to what faced them. Moreover to invade Shell House would have been foolhardy. Apart from the physical barriers which inhibited this, they would have been well aware that they would have met resistance from armed men.
We have taken into account that the security guards were apprehensive, and even mindful of the possibility of some form of attack. We have also borne in mind that the police were not present in sufficient numbers to provide effective protection against any such attack, and that the security guards were in an invidious position which was not of their choosing as a result, but none of this would have allowed them to act beyond what is permitted by law.
Looked at in its broadest context, and with these considerations in mind, prima facie the evidence does not show that Shell House and its occupants were about to come under attack, and nor could it reasonably have been believed at the time that it was about to come under attack. Prima facie there was no justification for shooting at the crowd at all. Moreover the barrage of fire was in any event grossly excessive. We do not accept that any warning was given. Constable Potgieter said that one of the security personnel fired and this was followed immediately by shooting from others, which is consistent with all the other acceptable evidence which we have heard. It is clear too that when the shooting started the crowd immediately disintegrated and fled. To have continued firing at them went far beyond what would be permitted in legitimate defence.
The further question though is whether the security guards could have believed that they were acting in legitimate defence. Mr Dorfling, speaking on behalf of the IFP and the next of kin of the deceased on this issue, submitted that the ANC guards did not purport to act in defence at all. In his heads of argument he submitted that "something more" was intended than merely the protection of Shell House, and that their conduct was consistent with "a pre-planned ambush having been set for the Zulu marchers." Support for this inference was sought from some of the evidence relating to the manner in which those on the balcony were expected to act so as to provide support for the security personnel who were situated below. That evidence is also consistent though with an essentially defensive state of mind. In our view the weight of the evidence is entirely against the conclusion that an ambush of some type had been set.
It is abundantly clear that the ANC had not wanted the demonstrators anywhere near the building, and had appealed to the police to take steps to keep them away, which is quite inconsistent with this. Moreover, it was no secret that armed personnel had been deployed at Shell House. Mr Radu told the police of this at about 09h00, and he repeated it to Brigadier Gous an hour later when he appealed to the police to relieve them of the responsibility for providing for their own protection.
The evidence of Mr Von Egidy was that the presence of armed men at the southern end of King George Street was quite plain to be seen by the approaching Zulus. According to Mr Dias four armed men on the balcony of Shell House were also plainly to be seen from the street at the time the group moved into King George Street. All this is inconsistent with some form of pre-planned ambush, and prima facie that is not what occurred.
However the fact that the ANC guards acted in a frame of mind which was essentially defensive is not sufficient by itself to relieve them even partially of criminal liability. What would be required for this is a reasonable possibility on the evidence that they mistakenly believed that they were acting lawfully. Whether that state of mind existed is a question of fact. Prima facie their own evidence simply leaves no room for the possibility that they mistakenly believed that they were acting lawfully. Furthermore the explanations which they have given for acting as they did, as well as the explanations which were put forward after the event, all lend weight to the conclusion that they well knew that they were not.
Ten of the ANC security guards whose evidence is before us, two of whom are now deceased, have admitted to having fired at the crowd. Mr Molefe said that he only fired into the air. According to the evidence he was the only person on the balcony with an AK47, and in view of the expert evidence that at least two AK47 shots fired from the balcony struck the facade of the pharmacy, prima facie he must also have fired in the direction of the crowd below him.
Mr Kruser did not shoot at all and there is good reason to think that he did not give an express instruction to the others to do so. Nevertheless he was in command of the guards at the south-western corner and one would have expected him to have stopped them from doing so if it did not carry his approval. Prima facie in our view the fact that he did not was tantamount to authorising them to continue doing so and renders him liable for having done so (R v Shikuri 1939 AD 225).
Prima facie the shots were fired into the crowd by the security guards if not with the intention to kill then at least with foresight that they might do so and reckless as to whether this ensued. Prima facie the conduct of all of them, and of Mr Kruser in impliedly authorising this, amounted at least to attempted murder. The only question which remains is whether the evidence shows prima facie that any one or more of them were responsible for bringing about the death of any one or more of the deceased.
One of the deceased was not killed by gunfire at all, but died of stabbing. The circumstances point strongly to the inference that this injury was caused accidentally in the pandemonium which followed the shooting. However there was expert evidence that considerable force was required to inflict the injury, and on the basis of this the opinion was expressed that it must have been inflicted deliberately. In view of this evidence this possibility cannot be excluded. Prima facie though the deceased was killed unlawfully, whether by those who were responsible for creating the pandemonium or by the person who stabbed him.
As for the remaining deceased, three were killed by bullets. One of the deceased was killed by a bullet from an AK47. There is independent evidence that the AK47 which was fired by Mr Molefe was tested by the police, and it was established that the bullet did not emanate from that firearm. It also did not emanate from the AK47 which was later found by the police near the City Hall steps, which was fired at least nine times during the course of the incident at Shell House. The bullet was also not fired from the AK47 which was alleged to have been fired by Mr Khumalo.
If the AK47 which was fired by him was indeed handed to the police for testing, the deceased must have been killed by some other person whom we are not able to identify. One of the deceased was killed by a bullet from a Makarov pistol. According to the evidence of the ANC guards whom we have heard, none of them fired a handgun of that type, and the evidence does not establish the identity of the person who fired that bullet. Cartridge cases found in the street after the event showed that at least two and perhaps more Makarov pistols were fired in the course of the shooting, but the evidence does not establish where these cartridge cases were found.
One of the deceased was killed by a bullet which is likely to have been fired from a 9mm pistol. Many such pistols were fired in the course of the shooting, and it is not possible to determine who fired this shot. Four of the deceased were killed by shotgun pellets. Prima facie they were killed by one or more of the three ANC guards who said they fired a total of four shots from such weapons from the balcony. Just as any one of these shots might have killed more than one of the deceased, it must also be possible that one or more of these shots did not kill anyone. Consequently, it cannot be said of any one of these three guards that he must have killed one or other of the four deceased.
In the result it cannot be said of anyone who shot that his shooting must have killed somebody. It follows a fortiori that the evidence does not identify any particular person as having been responsible for the death of any particular deceased. In respect of each of the deceased in our view the evidence is clearly insufficient to warrant a prima facie finding as to the identity of the person who brought about his death.
What remains to consider is whether all the security guards may be liable for the death of any one or more of the deceased who was killed by any one or other of the security guards, even though the particular guard cannot be identified, upon the basis of the doctrine of common purpose.
The essence of the doctrine of common purpose is that, where two or more people associate in a joint unlawful enterprise, each will be responsible for any acts of his fellows which fall within their common design or objective (SA Criminal Law and Procedure: 3rd ed by Burchell Vol 1 p 307). The fact that two or more people act with the same objective is not sufficient by itself to render one of them responsible for the acts of any of the others if they each acted independently to bring it about (S v Mgedezi 1989 (1) SA 687 (A) at 712B). There are two distinct bases upon which the courts have attributed one person's act to another in terms of the doctrine of common purpose, and I will deal with each of these in turn in relation to the present matter.
One form in which the doctrine manifests itself is that of active association. What is required is inter alia that the person to whom the act is to be attributed must have intended to make common cause with the perpetrator of the act, and must have manifested this intention by himself performing some act of association with the perpetrator (S v Mgedezi & Others, supra, at 705I-706B). Prima facie the various ANC guards to whom I have referred at least "joined in" once the shooting had started and thereby associated themselves therewith. What precludes the application of that form of the doctrine of common purpose in a case like the present one is the decision of the Appellate Division in S v Motaung & Others 1990 (4) SA 485 (A).
In that case it was held that where there is a reasonable possibility that the particular accused acceded to the common purpose only after all the injuries which contributed to the particular victim's death had already been inflicted, he cannot be held responsible for the acts by which the death was caused, and therefore cannot be convicted of murder. In the present case it is not possible to establish even prima facie at what stage any particular guard can be said to have joined in the shooting by himself firing one or more shots, nor is it possible to establish at what stage any particular deceased sustained the injuries which caused his death. Consequently no prima facie finding could be made that any particular guard joined in the shooting before any particular deceased had already sustained the injuries which caused his death, and prima facie none of the guards could be held liable for murder on the basis of this form of the doctrine of common purpose.
The other form in which the doctrine manifests itself is where there is an express or implied agreement between the parties to commit the act or acts in question. There is no direct evidence of an express agreement between the ANC security guards that they would shoot when they did, and any finding that there was such an agreement, or an implied agreement to the same effect, would be dependent upon inference alone. Any such inference depends largely upon why they acted as they did, which prima facie has been left unexplained and is itself left to inference. It is trite that an inference cannot be drawn in criminal proceedings unless it is not only consistent with all the established facts, but is also the only reasonable inference which presents itself on the evidence (R v Blom 1939 AD 288).
I have dealt earlier with the submission that what occurred was the product of some form of pre-arranged ambush, and have indicated that in our view the evidence is inconsistent with this. In our view the evidence is insufficient to arrive at any prima facie conclusion as to why the ANC guards fired when they did. It is possible that there was an arrangement of some kind between them to shoot simply to prevent the demonstrators from coming too close to the ANC's premises, which would not have been lawful. There is some support for this in the telephone calls by Mr Nhlanhla and Mr Radu to the police, in which there are suggestions that if the police did not keep the demonstrators away from the premises they might take it upon themselves to do so.
There is also some support for this in the evidence that they are alleged to have expressed an intention to shoot before they in fact did so, but I have already indicated that in our view the evidence in that regard is not reliable. It is also possible that there was no arrangement or understanding between them as to how they would react to the crowd once they became aware that it was approaching, and that what occurred was no more than a chain reaction with each participant being prompted to join in by a combination of circumstances which differed from person to person. According to the policemen who saw them, the ANC guards were tense and the atmosphere was highly charged. The morning had also been marked by provocation, and it is likely that the guards were apprehensive of at least some form of confrontation .
It could have required just a shot from one of them to set off a response by others, in the form in which Constable Potgieter described events as having occurred. Shots must also have been fired from amongst the crowd, and at some stage shots were fired at the guards on the balcony, which could have drawn a further response. Some of the evidence indicates that what occurred was indeed chaotic rather than calculated. Most of the shots from the AK47 on the south-western corner appear to have struck high up on the far side building, and at least ten were fired into the underside of the balcony. Mr Molefe seems to have lost his footing and most of his shots are likely to have been fired into the air. Mr Moolman was overcome by panic. Mr Singaram hardly fired before he scurried way.
There may be other possibilities too, but all this is little more than speculation. In our view the evidence does not establish prima facie that there was an agreement or understanding amongst the security guards to shoot when they did, and in our view a prosecution which is dependent upon the doctrine of common purpose cannot reasonably be expected to succeed.
Liability of the ANC as a Corporate Body
It was submitted that as a corporate body the ANC is itself criminally liable for the death of any one or more of the deceased who was killed by any one or other of the security guards, even though the guard cannot himself be identified, upon an application of the terms of s.332 of the Criminal Procedure Act, and we were asked to make a finding accordingly.
Section 332(1) of the Act provides, inter alia, that "for the purpose of imposing upon a corporate body criminal liability for any offence", any act or omission of a servant of the corporate body in the performance of his duties or in furthering or endeavouring to further the interests of the corporate body, together with any intent with which it took place, are deemed to be those of the corporate body.
I think one must be careful not to read into the provisions of this section more than is properly warranted. Although the section is capable of being interpreted as imposing criminal liability upon a corporation for every offence which is committed by its servants in the course of their duties or in furthering or attempting to further the interests of the corporation, I do not think that is the only construction of which it is capable.
It was enacted to remove what would otherwise be an inherent obstacle in the way of fixing criminal liability on an artificial person, by attributing to a corporation the conduct and mental state of its servants, but I do not think the section was necessarily intended to mean that this will apply in the case of every offence committed by such servant. The section operates "for the purpose of" imposing liability on a corporation for any offence, and does not in terms impose such liability, and it seems to me to beg the real question, which is in what circumstances the law recognises that there is such liability.
A statute is not enacted in a vacuum, and must also be seen in its context. It was enacted at a time when recognition of the criminal liability of corporations was taking place gradually (see the analysis of the English law on this issue in Welsh: ‘The Criminal Liability of Corporations' (1946) 62 LQR 345-65; for the position as it was in this country see Gardiner & Lansdown Vol 1 4th ed p 61), and it would be most surprising if the legislature intended to deal with the issue at that time by simply imposing liability on a corporation for all the crimes of its servants. To interpret the section in that way seems to me to have the potential for absurdity. The startling consequences of doing so were recognised in R v Bennett & Co (Pty) Ltd & Another 1941 TPD 194 by Murray J, who said however that in the absence of ambiguity a court may not "refrain from giving effect to the plain and obvious meaning of a statute, even though the consequence may be such as to justify the surmise that Parliament did not appreciate the actual effect of its pronouncement."
I am not at all sure that a court is called upon to give effect to what it is satisfied was not intended by the legislature. On the contrary it is well established that a statute should be interpreted to avoid that result, and I do not think the terms of the section are necessarily plain and obvious.
Some academic writers have expressed the opinion that in theory a corporation is capable of being convicted of murder, but this is based only on the fact that the words used in the section are capable of that construction (see for example de Wet & Swanepoel: Strafreg 4th ed pp 58-59; Snyman: Strafreg 3rd ed p 66 fn 9). Professor Ellison Kahn is clearly more sceptical (Businessman's Law (1990) Vol 19 pp 145 and 175). They all seem to recognise however that the section does not extend to all offences, and once some such qualification is recognised the question turns to what the extent of that qualification is. In England it seems hardly to have been questioned that a corporation cannot be guilty of murder (Welsh, op cit, p 363; Smith & Hogan: Criminal Law 7th ed p 183). The remarks on the subject in Bennett's case were all obiter. Furthermore, although the section has been on the statute book for almost sixty years, there is no judicial precedent in this country which has held that a corporation may be guilty of murder. If it is a crime which a corporation is capable of committing, the further question is whether the corporation is guilty thereof in every case in which the offence is committed by a servant in the course of his duties. Where corporations have been convicted of offences, the act or omission has borne a close relationship to the very nature of the corporation's business, and thus capable of being readily conceived of as the conduct of the corporation itself.
It must be borne in mind that this is an inquest in which we are called upon to apply established law. In the sixty years that the section has been on the statute book it has not been established by any judicial precedent that a corporate body is capable of committing murder, and I am by no means convinced that that is the effect of the section. I can see no grounds then for a prima facie finding to be made to that effect. In view of this it is not necessary to consider the further question whether the ANC would prima facie be guilty thereof in the circumstances of the present case.
Various Police Officers
On behalf of the ANC it was submitted that various senior police officers are criminally liable for the deaths which occurred. In its simplest terms the contention was that the police could and should have taken effective steps to ensure that the demonstrators posed no threat in the vicinity of the ANC's premises, and that were it not for their failure to do so the deceased would not have been there and would not have been killed.
It is clear that appeals were made to the police on numerous occasions to keep the demonstrators under control and more particularly to keep them away from the ANC's premises in order to avoid the potential for any conflict to occur. We think it is clear too that the police had equipment and personnel available to them in reserve which could have been used for that purpose if it was required. The police were not obliged though to comply with those requests merely because they had been made.
It was for them to exercise their own judgment as to what was required in order to carry out their function of maintaining law and order and preventing breaches of the law as far as it was practicable for them to do so. In exercising that judgment there were many considerations to bear in mind, including the overall situation with which they were confronted; the disruption to other members of the public which would result from taking the steps which were asked of them; and the nature and extent of the risk which could reasonably be foreseen. Quite evidently had they done so the shooting would not have occurred, but that does not provide an answer to the question which is before us.
We are not called upon to enquire generally into what is proper and adequate policing in any particular circumstances, but only into whether the conduct of any of the police officers prima facie constituted an offence. The question in that regard is not whether they breached any duty which they may have owed to the ANC, but whether there was a breach of a duty owed to the deceased. More particularly the question is whether the police officers concerned ought reasonably to have foreseen that the deceased might be killed if they were alongside Shell House, and guarded against this by preventing them from being there.
We do not think that any of the police officers concerned should reasonably have foreseen that if a group went down King George Street in the manner that this group did that it would be shot at. They might be expected to have foreseen that this would occur if the deceased or others in their position had set about attacking the ANC offices or its personnel in a manner which justified them being shot in legitimate defence, but I have already indicated that prima facie that is not what happened.
Although the evidence indicates that the police were alive to what was no more than the inherent possibility of some form of attack against the ANC's premises, in our view they cannot be faulted for having regarded the prospect of this occurring as remote in the circumstances. Even if there had been an attack, it is difficult to see how the police could be held criminally liable for any lawful consequences which might then have ensued from repelling it. We can see no grounds for attributing the death of the deceased to an offence on the part of the police officers concerned.
If there was fault for the deceased having been alongside Shell House in the first place, it perhaps lies closer to the door of those who brought this whole event to the central city in the first place than to the police. In our view the organisers must have been well aware that it would be accompanied by disruption, intimidation and provocation, and it is difficult to avoid the conclusion that it was intended to have just that effect. If the prospect of violence occurring was not actually foreseen then it ought to have been. Nonetheless the question of criminal culpability is again not to be tested in the air, but by reference to those who were affected.
Those of the deceased who chose to participate in the gathering which took place on that day could not have been less aware than the organisers of the nature of the event in which they were to participate, and could just as well have stayed at home if they chose to do so. We do not see that the organisers breached any duty to them by not ensuring that they did so. In our view the prospect of criminal negligence on the part of the organisers of the event can only seriously arise in relation to the death of Mr van der Walt and Constable Pascoe, who were unwilling actors in the tragedy which played itself out on that day.
In our view the organisers ought reasonably to have anticipated that the nature of the gathering and the lack of control which accompanied it could result in death occurring. However for criminal liability to arise there are also other considerations which arise in relation to causation.
The question is not whether the deaths would have occurred had the event not taken place at all, but whether any reasonable steps which ought to have been taken by the organisers to avoid deaths occurring would have prevented them. As I indicated earlier when dealing with the death of Mr Siqubu, a court would then have to ask hypothetically what would have happened had such steps been taken. In our view the answer would be no more than speculation and a court would be unable to determine this. The hurdles which would lie in the path of a prosecution on these grounds should be self-evident and I do not intend traversing them further. It is sufficient to say that in our view a prosecution on these grounds could not reasonably be expected to succeed.
(a) (i) SIPHIWE QONDOKWAKHE VILAKAZI
(ii) MFANIZAKHE MAJOZI
(iii) SIBUKU PETROS LANGA
(iv) ZANTONTO JOHANNES KHUMALO
(v) BANDA WELLINGTON SITHOLE
(vi) RAPHAEL VELI NTOMBELA
(vii) MZIWAKHE JEREMIAH KHANYILE
(viii) CONRAD NCOBELA KOHLA
(b) (i) Hypovolaemic shock consequent upon a penetrating wound caused by a sharp instrument.
(ii)-(vi) Hypovolaemic shock consequent upon a gunshot wound.
(vii) Injuries to the thoracic and abdominal organs from a gunshot wound.
(viii) Cerebral injuries consequent upon a gunshot wound.
(c) 28 March 1994
(d) In each case the death of the deceased was brought about by an act prima facie amounting to an offence on the part of a person or persons whom we have been unable to identify.
JUDGE OF THE HIGH COURT
PROF. R.C. WHITING
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