http://www.polity.org.za/govdocs/commissions/1998/
Tebbutt Commission Report - 25 March 1998

PART ONE

A. INTRODUCTION

During the television news services on the evening of Friday, 11 March 1994, viewers not only in South Africa but all over the world watched in horror a scene in which a black man in the uniform of the former Bophuthatswana Police, armed with an R4 rifle, shot dead three white men, who were part of a group of members of the Afrikaner Weerstandsbeweging which had that day invaded the Mmabatho/Mafikeng area, as they lay wounded next to the vehicle in which they had been travelling.

The man who had allegedly done the shooting of the three Afrikaner Weerstandsbeweging men was subsequently identified by a fellow Bophuthatswana policeman as one Sergeant Phillemon Nare. He was indicted during November 1994 by the Attorney-General of Mmabatho on three counts of murder.

On the previous day i.e. Thursday, 10 March 1994 and on Friday, 11 March 1994 there was widespread unrest in the Mmabatho-Mafikeng area. Shops were looted and properties damaged and set on fire. During that period a large number of people lost their lives, many of them having been allegedly killed by members of the Afrikaner Weerstandsbeweging invasion group. No member of the Afrikaner Weerstandsbeweging group allegedly involved in these killings was charged in regard to them.

It must be recorded at this stage that Bophuthatswana, a former independent homeland and republic, ceased to exist, and was re-incorporated into the Republic of South Africa, on 27 April 1994. On 3 May 1995 a member of the South African Parliament, Mr A J Leon, asked the Minister of Justice in Parliament about the prosecution of Nare, whether there was a delay in it and if so, the reasons for such delay. The Minister, Mr A M Omar, replied as follows:

"In view of the fact that the Government is considering the establishment of a Commission of Inquiry with regard to all the deaths that took place when the AWB allegedly entered the former Bophuthatswana before the general elections on 27 April 1994, the Attorney-General concerned has informed me that he had decided to withhold the execution of his decision (i.e. to prosecute Nare) pending the finding of the aforementioned Commission of Inquiry."

The Commission of Inquiry mentioned was not appointed during 1995 and on 20 March 1996 another member of Parliament, Mr J Chiole, asked the Minister three questions viz., in summary, (i) what the reasons were for deciding to recommend a Commission of Inquiry, (ii) whether the Commission's investigation would lead to the postponement or delay of the police investigation or possible disciplinary measures against Nare, and (iii) whether he or the police intended to take steps to ensure that the Attorney-General would be able to proceed with his intended action against Nare. The Minister's replies to those questions read as follows:

"(1) On or about 11 March 1994 a large number of well armed AWB men invaded the territory of Bophuthatswana. A large number (over 60) of innocent people were killed during the violence occasioned by the AWB invasion and subsequent retreat. It appears that the 60 odd persons were killed by the AWB invasion group. Three of the invading group were also killed.

Since it appeared that no charges were preferred against any of the AWB invading group for the killings in which they were involved, and that the only charge preferred was against one PHILEMON NARE in the Supreme Court of the former Bophuthatswana on three counts of murder of three AWB members, the Premier of North West Province requested that the whole matter be investigated. A perception which can take hold if all the killings are not thoroughly investigated, is that selective justice is being applied, that is, the deaths of 3 whites are investigated and prosecuted, but the deaths of 60 blacks do not matter.

In consultation with the said Premier therefore it was decided that a Commission of Inquiry be set up to investigate all the killings, the underlying factors that led to the violence in the former Bophuthatswana on 11 March 1994, the role played by various parties involved in the incidents and to determine whether any offences were committed and, if so, whether any person would be held liable for those offences..

(2) Police investigation resulted in only the person allegedly responsible for the killing of the three AWB men being arraigned in the Supreme Court of the former Bophuthatswana despite the 60 odd other deaths.

It appears that the police investigation into the three deaths was finalised and that the Attorney-General during November 1994 decided to arraign the said Phillemon Nare on three counts of murder. In the light of the decision to appoint a Commission of Inquiry to investigate all the deaths, the Attorney-General decided to postpone the prosecution.

(3) On finalisation of the inquiry, the Commission's report will be studied and also submitted to the relevant Attorney-General. It will be for the Attorney-General to decide on prosecutions, if any.

Whether any disciplinary action is to be instituted against the said member of the South African Police Service or not is not a matter which is within the knowledge of the Department of Justice."

On 7 June 1996 the Minister issued a media release in which he announced that a Commission of Inquiry had been appointed by the State President to inquire "into the incidents that led to the violence in the former Bophuthatswana on 11 March 1994 and the deaths that occurred as a result thereof"'. He added

"I trust that this Commission will throw light on all the deaths which occurred on 11 March 1994 and that justice will prevail."

The Commission's appointment was promulgated in Government Notice 680 of 1996 in the Government Gazette No 17230 of 7 June 1996 in the following terms:

"It is hereby notified for general information that the President has been pleased to appoint the Honourable Mr. Justice P H Tebbutt as Chairman and Advocate JJ Chulu and Mr T K Gura as members of the Commission of Inquiry into the violence in the former Bophuthatswana on 11 March 1994, and the deaths that occurred as a result thereof."

Advocate JJ Chulu was a member of the Bar in Mmabatho and Mr Gura practices as an Attorney there.

B. THE COMMISSION

1. The Terms of Reference of the Commission were promulgated in Regulation Gazette No 5712 as contained in Government Gazette No 17233, also of 7 June 1996, as follows:

1. To inquire into and report upon the incidents that led to violence in the former Bophuthatswana on 11 March 1994, and the deaths that occurred as a result thereof, with more specific reference to -

(a) the identity of He deceased in each instance;
(b) the circumstances of each death;
(c) the cause or likely cause of each death; and
(d)whether or not in respect of each death, the death was brought about by any act or omission prima facie involving or amounting to an offence on the part of any person (or persons) and, if so, what the identity of such a person (or persons) is.
2.If the Commission is unable to record any such finding, it shall record that fact.
3.The Commission is further enjoined, in the exercise of its discretion, to prepare and submit interim reports from time to time.

In the same Gazette the provisions of the Commissions Act (Act No 8 of 1947) were made applicable to the Commission and a Schedule of Regulations were made by the President with reference to the Commission.

2. Three officials were appointed to assist the Commission. Mr T B van Rensburg, a retired former Deputy Attorney-General of Kimberley, was appointed to aid in the investigations of the Commission and to lead the evidence before it and Mr John Bacon was appointed as Secretary to the Commission. Ms Dinah Maponya was appointed Typist to the Commission and as Secretary to the Chairman and the other Commissioners. She was, however, transferred away from the Commission as she resigned from the Department of Justice after the Commission ceased its hearings in Mmabatho in May 1997. She was replaced by Ms Adele Botha, also of the Department of Justice.

3. A team of investigators drawn from members of the South African Police Services was fanned to conduct the investigations and to collect and collate the relevant evidence, originally under the leadership of Captain O A Kgoro. The team was in August 1996 reconstructed and from there onwards consisted of Captain M van Gent as leader and of Inspectors O J Rakhudu and A A Gopane,Sergeants M W Ferreira and J R Moatshe, and Constable Z J Prinsloo. During the Commission's activities, Inspector Rakhudu was promoted to the rank of Captain and Constable Prinsloo to the rank of Sergeant.

4. Messrs Van Rensburg and Bacon, and the Investigating Team, as they will be referred to herein, began immediately to collect evidence. All parties interested in submitting affidavits to the Commission or giving evidence before it were asked to contact the Commission by 26 August 1996.

5. The majority of deponents to affidavits and potential witnesses referred to events that had occurred in the Mmabatho/Mafikeng area of the former Bophuthatswana but a number referred to incidents of violence in other magisterial areas of Bophuthatswana (which had during its existence consisted of seven separate areas incorporating twelve districts) such as Bafokeng, Ganyesa, Itsoseng, Kudumane, Lehurutshe, Madikwe, Mankwe, Moretele, Odi, Taung and Thaba Nchu. Many people also came forward who were wounded during the period in question (the Commission was informed that between 200 and 250 people had suffered wounds) wanting to testify before the Commission with the manifest intention of seeking compensation for their wounds.

6. Some doubt arose as to whether the words in the Commission's Terms of Reference "in the former Bophuthatswana "should be interpreted so as to include in the Commission's activities and inquiry the other areas or whether they should be confined to the events in the Mmabatho/Mafikeng area and whether the Commission's investigations should be extended to those who were wounded or be confined only to the deaths that had occurred. The Minister of Justice was consulted on 14 August 1996 and it was then agreed that, having regard to the intention underlying the establishment of the Commission and to its Terms of Reference,

(a) the ambit of the Commission's inquiry be confined to the events in the Mmabatho/Mafikeng area;

(b) save where such testimony may bear upon the events in the Mmabatho/Mafikeng area and the deaths that occurred as a result thereof, the Commission should not hear the testimony of witnesses who sought to testify solely as to the wounds they had sustained.

7. The Commission commenced its public hearings on 19 November 1996 and sat until 6 December 1996, when it adjourned for the Christmas break. During this session a number of witnesses came forward often as a result of media publicity of the activities of the Commission and other potential witnesses were mentioned by those who testified, of whose existence the Commission had not previously known and a variety of issues arose requiring further investigation. To enable the Investigating Team to identify and consult with those witnesses and to investigate the issues raised, the Commission adjourned until 19 February 1997.

8. Up to 1 February 1997 Advocate JJ Chulu took his part in the Commission's activities. He was, however, appointed a Judge in Mmabatho as from that date and could, as a result, not continue to act as a Commissioner. It was accordingly agreed with the Minister of Justice that the Commission would continue to carry out its tasks as set out in the Terms of Reference, with only two Commissioners viz. Mr Justice Tebbutt as Chairman and Mr T K Gura.

9. Upon resumption on 19 February 1997, the Commission continued to hold

public hearings and save for a break over the Easter period, did so until 8 May 1997. Up to that time, the Commission had, since the start of the public hearings, heard the testimony of 209 witnesses and several hundred documents and statements had been put before it.

10. As set out above, it had been initially agreed that although the Commission's Terms of Reference enjoined it to investigate and report on the incidents that led to the violence on 11 March 1994 "in the former Bophuthatswana", the ambit of the Commission's inquiry should be confined to the events in the Mmabatho/Mafikeng area. However, on the completion of the hearings on 8 May 1997, by which time the events in the Mmabatho/Mafikeng area had been investigated and the Commission was ready to report thereon, it was decide that in response to the urging of certain interested parties, the Commission should also investigate and report on those deaths in other parts of the former Bophuthatswana that were the result of the violence that had occurred around 11 March 1994.

11. To enable this to take place the Commission adjourned its public hearings until 7 October 1997. This was (a) to enable members of the Commission and particularly the Investigating Team, who had not been able to do so for over a year, to attend to their duties in their offices as well as to take leave and (b) thereafter, to enable the Investigating Team to investigate the deaths that had occurred in other parts of the former Bophuthatswana. These included the magisterial areas known as Bafokeng, Ganyesa, Itsoseng, Kudumane, Lehurutshe, Madikwe, Mankwe, Moretele, Odi, Taung and Thaba Nchu.

Some 92 people had been killed during March 1994 in those areas and although, in respect of a few of the deaths, inquests had been held by magistrates into them, it was necessary for the Investigating Team to conduct a full investigation once more into each and every one of the deaths. Those investigations revealed that 43 of them did not fall within the Commission's Terms of Reference. The names of the deceased and the reasons why they did not fall within the Terms of Reference are set out in Annexure "A" hereto. In respect of the other deaths the Commission investigated all of them in detail, hearing testimony in regard to each one of them. Its findings in regard to the deaths are set out in Part Six hereof.

12. Some 98 witnesses gave viva voce evidence before the Commission arid again a large number of written statements were laid before the Commission. The Commission completed its hearing of the evidence on 12 November 1997. Submissions from the legal representatives of various interested parties were heard on 10 to 12 November 1997.

13. In addition to the aforegoing the Commission was referred to a large number of papers, pamphlets, theses and over documents. These are set out in Annexure D hereto.

14. It is recorded that the following legal representatives appeared at various times before the Commission.

14.1 Adv. Graham Bester, instructed by Mr J Muller of Messrs Wagener, Muller & Du Plessis, appeared throughout the Commission's hearing, representing the South African Defence Force and the former Bophuthatswana Defence Force.

14.2 Mr S C Le Roux of Messrs Meltz, Le Roux and Motshekga represented the South African and Bophuthatswana Police Forces. Mr J Bekker of that firm appeared for the latter on some of the days of the hearing. Mr J Meltz of the same firm appeared on behalf of certain police officers.

14.3 Mr M P Panchia of Messrs M P Panchia Attorneys represented the African National Congress. Adv. Mogoeng wa Mogoeng instructed by Mr M P Panchia appeared at part of the inquiry for the African National Congress. Adv. Mogoeng wa Mogoeng was, however, appointed as a judge in March 1997 and did not appear thereafter.

14.4 Mr L Dekker of Messrs Alex Bosman Attorneys represented the previous South African Government.

14.5 Adv T Bokaba, instructed by Mr T R H Ramphele of the Lawyers for Human Rights, appeared on behalf of Constable Menyatsoe. Mr Ramphele furthermore represented various members of the Police and Defence Force.

14.6 Adv. E Wessels instructed by Mr R G Nesbitt of Routledges Incorporated represented former President L M Mangope.

15. It is necessary at this stage to make a preliminary observation in respect of certain difficulties with which the Commission was faced in its investigations into the individual deaths both in the Mmabatho/Mafikeng area as well as in the other areas of the former Bophuthatswana.

It is this. In the days and weeks following the traumatic events of 10 and 11 March 1994 it was well-known to the police that there had been literally scores of deaths throughout Bophuthatswana yet few of these were investigated by the police at the time. Following the appointment of this Commission and the setting up of the police Investigating Team under Captain Van Gent, that Team had in every instance to start the investigations into each death from scratch due to the fact that either no investigations at all had taken place or that such investigations as there were, had been hopelessly inadequately carried out. Because of this and because the events that the Commission was investigating had occurred two-and-a-half years beforehand with a consequent impossibility to trace witnesses and the frequent unreliability and fading of the memories of those that could be traced, the Investigating Team found great difficulty in securing accurate evidence to present before the Commission which, in turn, was often frustrated in the carrying out of its functions.

That the Investigating Team was in the circumstances able to obtain the amount of evidence and information that it did, as will appear from the detailed discussion of the individual deaths in Parts Four, Five and Six hereof, speaks volumes for the hard work, efficiency, devotion to their task and the intelligence and skills of the Investigating Team.

Those who were in charge of the investigations immediately after the events on 10 and 11 March 1994 were Director M J Sedumedi, who in 1994 was head of the detective services of the Bophuthatswana Police Force and, in the Ga-Rankuwa area, Captain Prince Kubu. The deficiencies in the investigations, according to Director Sedumedi, were because of the lack of co-operation of the various persons responsible for the investigations in the various cases. Due to the uncertainty as to their futures, the investigations were not properly carried out - as he said they were "not 100% perfect". Moreover, those policemen carrying out the investigations could not get members of the public to make statements or supply information because, he said, of the "rejection of the community for the police ... they were still regarding the whole Bophuthatswana Police as, I would say, puppets". The public did not trust the police and were afraid of being intimidated.

When the Commission was appointed people realised that they could come forward and supply information to the Investigating Team. One of the areas in which, as Director Sedumedi conceded, the investigations were not properly carried out was that falling under Captain Kubu. The latter could provided no satisfactory explanation to the Commission to account for the inadequacies and it is clear to the Commission that the reluctance to carry out proper investigations may, in some measure, have been due to the fact that members of the Bophuthatswana Police Force were possibly involved in the deaths but it was certainly due to an apathy to have to do the vast amount of work connected with the investigating of some 80 deaths. Whatever the reason the failure to carry out those investigations immediately or soon after the deaths occurred has led to an inability on the part of the Commission at this stage, in the vast majority of cases to identify positively those on whom responsibility for the deaths must lie.

The shining example of inadequate police investigations is that of Sergeant Phillemon Nare. As has been set out above Nare was arrested and arraigned on three charges of murder, it being alleged that he had shot dead the three members of the Afrikaner Weerstandsbeweging, as was shown on television. The investigation was carried out under the direction of Colonel Christiaan du Toit who said that it was probably the most difficult investigation he had ever handled due to a lack of co-operation by potential witnesses amounting in some instances to a thwarting of his investigations. He had even had threats on his life. Only one witness had been found who alleged that he could identify Nare as the killer of the three men. As in the case of all the deaths the Investigating Team conducted anew a hill investigation into these deaths as well, much of this occurring during the Commission's sittings in Mmabatho. During those sittings it became abundantly clear that the witness who alleged that he could identify Nare was thoroughly unreliable and as a result of further investigations by the Investigation Team it was discovered that it was not Sergeant Nare at all who had shot the three men but another member of the Bophuthatswana Police Force, Constable Ontlametse Bernstein Menyatsoe who in a sworn statement to the Commission confessed that it was he who had killed them. The Commission's appointment can almost be justified on this score alone.

C. THE LEGAL PRINCIPLES

While it has been said that a Commission of Inquiry is no more than an advisory body which advises the executive (see Bell v Van Rensburg No 1971(3) SA 693 (C) at 706 G; S v Naude 1975 (1) SA 681 (A) at 697) and is neither a quasijudicial body nor a court of law (see Law of South Africa Vol. 2 par 468) but is normally empowered merely to investigate a matter of public concern, to report thereon arid whatever recommendations it sees fit (see S v Naude supra), the Terms of Reference of this Commission enjoined the Commission to make findings based of the facts determined by it. Those Terms of Reference, as set out above, require the Commission to make specific findings in respect of the deaths investigated by it, as to:

(a) the identity of the deceased; (b) the circumstances of the death of such deceased; (c) the cause of such death; (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.

Those requirements are practically identical with what is required of a judicial officer holding an inquest in terms of the Inquest Act, No 58 of 1959 as amended. The judicial officer, must record a finding, in terms of Section 16(2) of the Act:

(a) as to the identity of the deceased;

(b) as to the cause or likely cause of death;

(c) as to the date of death;

(d) as to 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.

The coincidence of these requirements is in this instance a happy one. In Marais NO v Tiley 1990 (2) SA 899 (A) at 901 F-G, Smalberger J A described the purpose of an inquest 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."

In Timol and Another v Magistrate, Johannesburg, and Another 1972 (2) SA 281 (T), Cillie J P stated as follows (at 287H-288A):

"For the administration of justice to be complete and to instil confidence, it is necessary that, amongst other things, there should be an official investigation in every case where a person has died of unnatural causes, and the result of such investigation should be made known".

At 292 A - B he added:

"the inquest must be so thorough that the public and the interested parties are satisfied that there has been a full and fair investigation into the circumstances of the death."

Having regard to the reasons for the setting up of this Commission and the in. depth investigation of each death undertaken by the Commission those purpose. were, it is felt, fulfilled.

In making its findings, particularly as far as requirement (d) of its Terms Reference are concerned, Me Commission applied the standard of proof suggested by Zietsman J P in Re Goniwe and Others (1) 1994 (2) SACR 425 (EC) at 427 as being the correct one in respect of findings in an inquest. It was held by Stegmann J in the unreported case of Inquest into the death of Dr David Joseph Webster (WLD 23 January 1993) that the standard of proof in relation to Section 16 (2)(d) of the Inquest Act was the same as that in a criminal trial viz. proof beyond reasonable doubt. Section 16(2)(d) was amended into its present form by Act 45 of 1991.

In the Goniwe case Zietsman J P said:

"With due respect I am unable to agree with the conclusion reached by Stegmann J. When the amendment to the section was introduced it was known and accepted that inquest findings did not finally determine the rights and obligations of parties. This acceptance did not require any further clarification and no amendment to the section was necessary for this purpose. What was not clear, as can be seen from Claassen's case quoted above, was the test to be applied by the magistrate or judge presiding at the inquest in order to arrive at his findings, and it was to clarify this uncertainty, in my opinion, that the amendment was introduced. The section, as I read it, now provides that the presiding officer must record a finding in terms of section 16(2)(d) if in his opinion the evidence establishes prima facie that an offence causing the death of the deceased has been committed by any person. This conclusion is, in my view, supported by the fact that section 16(1 ) of the Act specifically requires proof beyond a reasonable doubt for a positive finding that a death has occurred in a case where no body is found. When section 16(2)(d) was amended the legislature' in my opinion, provided for a different standard of proof. This conclusion still does not determine what exactly is meant by the word: prima facie. It has been suggested that the test is to be the test applied al the end of the state case in a criminal trial where an application is made for the discharge of the accused, or the test applied at the end of the plaintiff case in a civil trial where absolution from the instance is sought. The problem is that we are dealing here with an inquisitorial and not a, adversarial proceeding and it is difficult in the former type of proceeding to apply the test that is used in the latter type of proceeding.

The officer presiding at an inquest does not always have all of the available evidence at his disposal. He submits his report to the attorney-general who then has to decide whether or not a prosecution should follow. If prosecution does follow it will be for the trial court to decide whether the case against the accused has been proved beyond a reasonable doubt. The presiding officer at the inquest need go no further than to ask himself whether a prima facie case has been established against any particular person

In deciding whether a prima facie case has been established some regal must, in my opinion, be had to the reliability and credibility of witnesses they have given evidence at the inquest. The fact that evidence has bet produced which, if accepted, would prove that some person has committed an offence which brought about the deceased's death will, in my opinion not be sufficient to justify a positive finding if it is obvious to the officer presiding at the inquest that there is no prospect of such evidence beige believed at a subsequent criminal trial.

Bearing in mind the object of an inquest it is my opinion that the test to be applied is not the "beyond reasonable doubt" test but something less stringent. In my opinion the test envisaged by the Inquest Act is whether the judicial officer 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".

These views have been approved by Schabort J in Padi en 'n Ander v Botha N O en Andere 1995 (2) SACR 663 (W) at 671(h - i). The Commission too considers them to be correct.

In view of the difficulty experienced by witnesses in identifying individual assailants as appears from the detailed discussion of the individual cases, the Commission considered the question of the responsibility of others who may have either ordered the killing or incited it or may, having knowledge that killings were likely to occur, have responsibility on the basis of common purpose. It was also contended that such responsibility may be based on conspiracy. The Commission considered, however, that this was not an appropriate basis for responsibility in the circumstances pertaining. In considering the question of common purpose the Commission applied the principle that responsibility of others can be held to exist if it is established that they agreed to commit a crime or actively associated themselves with the commission of the crime, i.e. the killings in this instance, by one of their number with the requisite fault element (mens rea). If this is established then the conduct of the participant who actually commits the crime is imputed or attributed to the other participants on the basis that they had a common purpose (see Burchell and Hunt: South African Criminal Law and Procedure 3rd Edition p 307; S v Nzo 1990 (3) SA 1 (A)). In considering responsibility on the basis of incitement the Commission bore in mind both the common law principle that it is a crime to incite another to commit a crime, (see Burchell and Hunt op cit. p 358; R v Ndlovo 1921 AD 48S; S v Nkosiyana 1966 (4) SA 655 (A)) and the statutory provision contained in Section 18 (2) (b) of He Riotous Assemblies Act, No 17 of 1956 which states that

        "any person who ... incites, instigates, commands, or procures any other person to commit any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable".

As will further appear from the detailed discussion of He individual cases, various victims were shot by persons who were either acting in self-defence or in seeking to protect property from looters. In considering the responsibility of those who shot such victims the Commission bore in mind the principle that the use of force which would ordinarily be criminal is justified if it is necessary to repel an

unlawful invasion of person or property and that this also extends to the protection of a third party (see Burchell and Hunt op cit. p 72). It is well-established that this principle applies to defence of life and personal injury (see Burchell and Hunt op cit. p 75 notes 25 and 26 and cases there cited) and to the protection of property from then and damage (see Burchell and Hunt op cit p 75 notes 27 and 28 and especially Ex Parte Minister of Justice: In re S. v Van Wyk 1967 (1) SA 488 (A)).

Although recognising that the test in such cases is an objective one (see Burchell and Hunt op cit. p 79 note 65 and cases there cited) the Commission bore in mind that in considering the attack and the defence it should be careful to avoid the role of an armchair critic wise after the event, but should put itself in the position of the defender at the time of the attack.
