Amnesty Hearings — Cape Town — 1998-01-14

JUDGE WILSON: Might it not been for exactly the opposite reason, to show that he had not fired a firearm?

NORMAN ARENDSE: That may be so Judge, I just wanted to mention that in a discussion with the officer concerned, he did say that it is routine for these specimens to be taken from deceased persons.  I just want to then mention - and if you could just insert this in the Heads, the further point that in the letter which du Plessis - who took these specimens, in the letter which is dated the 11th of January 1994, which he wrote when he sent the specimens to Pretoria, he says in the first paragraph that - in Afrikaans: " That it had been alleged that the deceased had fired a firearm".
	Now, that is very interesting and very revealing - that is as early as a couple of days after this incident.  This Committee has heard and we've have heard for the first time someone claiming responsibility for killing Mr Cerqueira for amongst other things - for the reason that he fired a firearm.  So, for the first time Mr Gqomfa - in his application in March 1997 and then subsequently here in October 1997, makes this allegation - it's unanswered, where does the allegation come from that he had a gun?

JUDGE WILSON: ...[inaudible]

NORMAN ARENDSE: The date of the letter would be in this - I think it's H or G in the bundle, it's a letter written by Mr du Plessis to someone in Pretoria.

JUDGE WILSON: ...[inaudible]

NORMAN ARENDSE: Yes, the date is the 11th.

JUDGE WILSON: Two of the persons involved had been arrested the week before?

NORMAN ARENDSE: That is correct but not Gqomfa, Gqomfa was arrested in July and even if one has regard - and I did, to the so-called confessions that were extracted from both Mabala and Madasi, no mention was made of Cerqueira or him having a gun.
	Mr Chairman, if I may proceed?  Another question that arises:
"Why was an analysis not done of the specimen taken from the hands of the deceased after it was sent for analysis in January 1994"?
	These tests were only done on the 18th of November 1997.  Now again, I had made a written request to an expert in this field to assist me and obviously that's not evidence before this Committee but I think it's just common sense, he say amongst other things that: "Yes, it is possible that you could store the specimen for as long as it has been stored and still get an accurate analysis done", so I don't have a problem with that.  	
	He said the big problem is that period between 11H30 to 4H30 the following morning, during this time the deceased could have been moved and the residue from his hands could have been removed in that fashion.  He says: "It is also possible that if one has regard to the photographs - if one looks at the way Mr Cerqueira was lying, he appears to have both his hands beneath his body and when he was removed there's a large pool of blood at the scene - at the drain where he was lying", so there's a number of questions which then arises from that.  
	So yes, the specimen that was sent does not reflect that he used a gun but it's possible that the gun residue could have been removed by him having been touched - we know that Mr Brode for example and his broth Mr Francesco Cerqueira claimed to have gone to him and they lifted him and during the course of that they could have touched his hands and in that fashion the gun residue could have been removed.

JUDGE WILSON: When did he die?

NORMAN ARENDSE: Mr Cerqueira died at 11H30 on the Thursday night, that's also apparent from Annexure G, the very first page comes out of the docket.  There's also the possibility Mr Chairman, that the specimen could have degraded over this period of four years or so but my point is - which I would like to make here, that it doesn't require this Committee to make a finding, it's not particularly material.  The reason for that is Gqomfa - he's accepted responsibility, he's said: "I shot the man and I killed him"

ADV SANDI: I'm sorry, Mr Arendse, whilst you are there, can I interpose for a moment?  Have you thought about addressing us on the question of the political objective when deceased Mr Cerqueira was killed, doesn't that appear as an act committed in self defence?

NORMAN ARENDSE: Well, my - not that I didn't, I thought it very important enough to raise this as an issue because clearly it could be argued that the killing of Cerqueira is then simply a gratuitous act of violence.  Yes, one can perhaps accept that he went to the Heidelberg Tavern, security forces are supposed to be there and now you did your mission.  Now you've finished at the Heidelberg Tavern, for what reason do you then kill almost - if you can call it, innocent bystander - surely the act is not covered.
	My answer to that is that this all happened very quickly, they were in the process of getting away and in that sense that act is associated with what they did - which is the main act, by going into the Heidelberg Tavern.  Yes, according to Gqomfa, it was possibly a case of self-preservation that Cerqueira shot at him or that he was under the impression that he was being shot at.  
	Because at that stage we must also remember and I think the same thing applies to Madasi, I think we must remember that the applicants are at that stage under the impression mistakenly - we now know, that this place is teeming with soldiers and policemen although they may obviously be out of uniform, there are people in this place that are armed with guns.   
	You're talking about a matter of split seconds, a shot is fired or someone is under the impression that a shot is being fired and you respond immediately and you shoot.

CHAIRPERSON: What is the explanation for the shots were found to have been fired at the building?

NORMAN ARENDSE: Sorry Mr Chairman?

CHAIRPERSON: Outside the tavern.

NORMAN ARENDSE: What is the?

CHAIRPERSON: The building across the road.

NORMAN ARENDSE: Sorry?

CHAIRPERSON: How did that come about?

NORMAN ARENDSE: Well, the applicants themselves can't give an answer and haven't given an answer and haven't attempted to give an answer.  I have attempted in trying to complete the picture, I've said - and I think one can infer this safely from the facts, that Sebeko - the other chap that was on the other side of the car, that he was the person that must have sprayed some bullets across the road.
	There is also evidence from John Jacobs - the Council chap, that he saw shots being fired on that side of the street - against the building on the other side of the road and we also know from Brode that those shots were fired.  Now, unless we want to question the credibility of any of the three applicants, they claim that each one did what he was supposed to do and they didn't - I think Mabala was questioned quite extensively on this point, that he said: "Look, I was focusing on what I was supposed to do, I was a lookout, I had to see that my comrades were not being attacked, I don't know what anyone else did".

CHAIRPERSON: But none of them said anything at all about firing shots across the road?

NORMAN ARENDSE: That's correct.

CHAIRPERSON: What do you make of that failure on their part to disclose that?

NORMAN ARENDSE: Well, quite simply because they were not the ones who did it, it's not material or relevant to this enquiry.

JUDGE WILSON: ...[inaudible]

NORMAN ARENDSE: Perhaps I'm putting it too strongly ...[intervention]

CHAIRPERSON: They were together as a team.