Amnesty Hearings — Durban — 1999-06-24

MR SARDIWALLA: Yes, I've had sight of the post mortem and I'm glad, Chairperson, that you've raised that.  What appears to be the position as far as those reports are concerned is that there was continuous firing and the evidence is clear from my client that there was firing also on the canopy side of the vehicle.  I mean, he was standing on the side, they were firing all around, there were four of them.  We are looking at high calibre arms at a distance of approximately 20 paces.  We are also looking at people sitting on benches in a vehicle and you must remember that there are some people that would have had their backs facing, at the back of the vehicle, their backs facing the area from which the firing would have taken place.
	So you may well have had, and there's no clear unequivocal evidence as to how those shots were fired, but it could well be and that is from the evidence of my client, it's my understanding of my client, that in that process they may have been shot from the canopy into their backs, resulting in rear penetration as was shown in the post mortem report.  I can't take that any further, I must concede that, I can't take that any further.  My client doesn't say -the one thing he's clear about and remember it took - his evidence which is uncontested, it took a minute or two, this was a spontaneous quick attack, in and out and that's how these attacks normally take place, with three automatic weapons firing at the same time, four automatic weapons. There's a hang of a noise, firstly, there's metal being hit continuously,  it happens for a minute of two and people are gone.  
	Now there is some - I believe that my client's version is probable in the sense that he didn't wait to see what happened.  One doesn't normally wait.   You know that the opposite party is normally armed, that you can expect anything to happen, be it from the vehicle or from the area, if you stand there and wait for a response.  They did what they had to, they believed they had in fact completed their task, and he said so in his evidence, which is uncontested, that they thought they actually hit Makeke, they didn't see him come off the vehicle.  That was never really taken any further, that he came off prior to them escaping or running away but it seems in his mind or their minds, particularly in my client's mind, they'd hit the target and they ran off.  They heard screams, but obviously they were running for their lives as well.  	So I believe that the version that has been put by my client, taking, and one must look at the circumstances objectively here, is a probable version, without doubt.  The question one must ask, and I think Chairperson, Members of the Committee must ask, would a person who is sitting safely in a comfort zone without any indications of coercion, come up here and give a version that is totally bizarre or absurd or not in line with the truth?  
	Now I'm just saying, there may be situations, you have more experience of them, but I am saying that I believe my client has played open cards and there may be factual discrepancies, I can concede that, there may be factual discrepancies, but if one looks at the evidence overall, the factual evidence overall both in the criminal trial and the evidence in the manner it was led, one must accept that his version is probable even having taken the evidence of the victims into account.  I think it does not necessarily attack or in any way undermine the evidence led by my client.

CHAIRPERSON: On that point, what possible motive would Mr Kuala have in implicating the applicant's brother of such an atrocity, when he was not present during the commission of this crime?  That is what is presently in my mind.

MR SARDIWALLA: Yes.  One can speculate on various aspects but one of the speculations that was presented to me was that the identity of all of them was not known because our version was that their faces were all covered at the time.

CHAIRPERSON: No, you didn't give a version, that's where we have a problem with that.  We actually, on this point, obviously should blame our evidence leader as well, because when your client was giving evidence it was never put to him as it should have been done by our evidence leader that she will lead evidence to the effect that at the time when the people were attacked, some were wearing balaclavas and that there was one particular person who participated in the attack, whose face was uncovered.  So we have not been able to ventilate this issue because of lack of proper procedures having been followed in the leading of evidence, but you yourself did not lead this kind of evidence, so we have not been able to take the matter any further.

MR SARDIWALLA: Chairperson, you know there was absolutely no need to lead that evidence in the way the cross-examination went.  It wasn't an issue at all and had I known that it was an issue, I would have certainly led that evidence because if one looks there are lots of other issues that were raised, but were not an issue at this particular hearing.

ADV DE JAGER: Even on the issue where children were shot in the road, you never cross-examined on that.  So that stands uncontested.

MR SARDIWALLA: Are you referring to Kuala's evidence now?  Yes, but I said to you that my view is that, if one looks at the probabilities of the evidence that was led by him, particularly as far as ...(intervention)

ADV DE JAGER: But surely, even if the probability on one aspect of his evidence may be so, you can't say he's telling an untruth about everything.  You can't say because he may be wrong about the balaclava, that he's also wrong about the wounds he received.

MR SARDIWALLA: Chairperson, the position, and Members of the Committee, is that as far as the evidence of the shooting of the children is concerned, my client's version is very clear on that.  My client has made it very clear that at no stage did he see or shoot at any children and that he has made very clear and Kuala did not at any stage suggest that my client in fact specifically shot at the children.

CHAIRPERSON: We are quite aware of that and our concern is that the implication of his evidence would go to the non full disclosure of your client in so far as the attack is concerned.  Your client says he and the persons that he has identified participated in the attack and the evidence of Mr Kuala seems to suggest otherwise.  The evidence of Mr Kuala is pointedly to the fact that Qeda, who is the applicant's brother, is the one who actually shot him.  He fired four shots at him.  Now that evidence was not disputed by you.  I mean that version was not controverted.

MR SARDIWALLA: Yes.  Can I just respond to that?  Our version throughout, and clearly there is a factual dispute as far as identity of the perpetrators is concerned, there are two sets of facts as far as identity of the perpetrators is concerned.  What is presented by the evidence is one and what my client has submitted seems to be at total variance.  What is also clear is that our client indicated in his evidence that Qeda was not there, nor was Sibusisu there.  He indicated that in his evidence and that was not really contested.  That was not contested.  The strength of my view or my submission as far as Kuala's evidence is that the probabilities relating to identity are based on whether Qeda was actually wearing a balaclava or not.  My submission is that his version is so improbable, that it must be disbelieved on that aspect.  That he could not,  whatever motive he may have had, it's highly unlikely and improbable that a person would come and divulge his identity after perpetrating a crime of this kind, to a person that is known to him and particularly in a case where all the rest of them still had their faces covered.  So, my submission is, on that aspect, Kuala's evidence must be rejected in total, it's so improbable.