Boeremag trio not POWs - judge

2010-08-26 21:45

Pretoria - The judge in the so-called Boeremag treason trial on Thursday dismissed an application by three of the accused to be declared prisoners of war.

Brothers Johan, Willem and Kobus Pretorius asked the North Gauteng High Court in Pretoria to afford them protection under the Geneva Conventions.

The order would have meant the three would be handed over to the SA National Defence Force.

The brothers insisted they should not be treated as ordinary criminals who committed crimes for gain, but as "soldiers" embroiled in an armed struggle for the self-determination of the "Boerevolk".

The three conceded their involvement in activities such as manufacturing home-made bombs, knowing these bombs were to be placed at strategic points. They however said they had regarded themselves as soldiers of the South African Boere Republic engaged in a war.

The trial began more than seven years ago. The State closed its case in June 2007 after calling 158 witnesses.

High treason

Most of the 21 accused have already testified in their defence. Johan Pretorius was in the process of being cross-examined when he refused to answer further questions about the so-called armed struggle. He claimed protection under the Geneva Convention's protocol on the treatment of prisoners of war.

The accused face 42 charges ranging from high treason and terrorism to murder. The charges flow from an alleged right-wing plot to violently overthrow the ANC government.

A woman was killed and her husband and children injured when a home-made bomb exploded on a railway line near Soweto in 2002.

Two workers were injured when the Buddhist temple at Bronkhorstspruit was bombed. Property was damaged in explosions at Grand Central Airport and a bridge near Port Edward.

Dismissing the application, Judge Eben Jordaan said there was no evidence civilians had been warned that bombs would explode near them.

"The core (of the protocol) remains that only the targeting of military targets is permissible. The targeting of civilian targets is in conflict with the provisions of Protocol I," he said.

The judge said there was no internal disciplinary system to enforce the rules of international law with regard to the armed conflict amongst the accused.

"I am of the view that what the applicants did according to their own admissions, does not justify the term legitimate combatants.

Command structure

"Their modus operandi was to blow up civilian targets in the night. An organised military force surely supposes more than that."

Jordaan said argument that the accused had been under a command structure was not supported by evidence. Their military commander, Tom Vorster, had apparently been abandoned because of a lack of trust before the bombs were planted.

The Protocol's stipulation of a command structure was apparently to ensure that disorganised gangs did not enjoy the protection of prisoner of war status.

Jordaan also rejected the brothers' claim that they had acted in a disciplined, organised manner.

"I don't know on what evidence this submission is based. Blowing up civilian targets in the night is in my view not an indication of disciplined conduct," he said.