Amnesty Hearings — Durban — 1999-06-24

MS THABETHE: Yes, that's my point.  Thank you, thank you Honourable Member of the Committee.
	The second point on disclosure is based on the fact that the applicant says when they fired shots at the vehicle they did not know that it was children that they were firing shots at.  I would argue that I find that improbable because when they fired shots, there must have been screams from the car indicating that it's children screaming.  Further, from the evidence of Mr Kuala, he even said that he himself tried to run away and some kids were shot outside the vehicle.  So I find it very improbable that the applicant did not know that it was school kids that they had fired shots at.  Also, because he seems to suggest that they knew Makeke very well to be driving a white bakkie and they have observed him quite a number of times, I find it very strange that in their observation of Mr Makeke, they wouldn't have known of a regular trip that always occurred in that route every morning, of a cream-white bakkie that used to take school kids from their homes to work.  I find that very hard to comprehend and I would argue that if they had time to observe Makeke, observe his ins and outs with the cream-white van, they should have known that it also, more especially because he indicates it was not Makeke's car, it did not belong to him.   He must have known that it's also used, if at all it was the same car, it's also used to carry or transport school kids to school.
	Further, I think - I argue that the applicant should have or would have foreseen that if it's not Makeke's car, or if the car doesn't belong to Makeke, when they attacked they could have been attacking the owner of the car and not Makeke, or somebody else for that matter, as it occurred in this instance and therefore caution could have been - they should have foreseen, I think they would have known, they should have known that it could carry anybody, I mean somebody else, not necessarily Makeke.
	Also I would like to address the Committee on the identity problem that my learned friend has argued on, the fact that it's so improbable that Mr Kuala could have seen Qeda Zulu.  I would argue that I don't find it improbable because if we could for a moment imagine what was happening there, there were shots fired, according to Mr Kuala, and then it became quiet.  So probably that's when the balaclava was taken off.   Because it was quiet, he might have thought that everybody that they have shot at has been killed and that's when maybe he decided to take off his balaclava.  I mean, we can never know what the reasons are, but I don't think it's improbable that that could have happened, considering that after they fired shots, it was quiet thereafter.  They might have assumed that everybody else was shot or was dead and it was safe to take the balaclava off.
	If you could bear with me please.  On the issue of political motive, I would argue that, in the light of the fact that they could have foreseen that not only Makeke was driving the white bakkie but maybe the owner as well could drive the bakkie, they could have exercised more caution.  The applicant has stated clearly that he had no intention to kill the school children.  He also indicated that had he known that it was school children, he would not have fired those shots.  So basically this offence - he also admitted that the killing of school children was not associated with a political objective even though there might have been attacks that were made by the ANC before that.  This specific one was not associated with a political objective at all. 
	That is my argument Madam Chair, unless you want me to address you on a specific issue.

CHAIRPERSON: Mr Sardiwalla, do you have any reply?

MR SARDIWALLA IN REPLY: There is just one aspect I wish
to canvass Madam Chair and Members of the Committee.  Kuala gave no evidence that the children screamed.  There's no evidence to indicate that children were screaming and the applicant would have heard the children screaming.  In fact applicant said that as he was running he heard screams but he can't say who it was, so if one tries to weigh probabilities one must look at the type of evidence that has been led and had that evidence been led one would have then looked around it and investigated, but I believe that one can't use that as being a method of attacking my client's version.

CHAIRPERSON: Bearing in mind that, if we accept your client's version, he was 20 paces away and all of them were using automatic weaponry and the noise must have been quite deafening.

MR SARDIWALLA: Yes, absolutely, absolutely and I accept that as well.  Madam Chair, that's the only real aspect I wish to raise.

CHAIRPERSON: What do you say to the point that Ms Thabethe has raised with regard to the attack on the vehicle which was known not to have belonged to Makeke, was known to have been driven occasionally by Makeke, that more caution should have been exercised to ascertain that it was Makeke who was driving the vehicle on the occasion, on the incident in question, during the incident in question, because it might have been the owner who could have driven the car?

MR SARDIWALLA: Chairperson, I think one must be very careful as far as this aspect is concerned, namely that my client has conceded that there has been an error as far as the target and what eventually happened, but one must look at it from what he perceived to be what he had to do and what he had in fact done.  Based on the information that the group of 20 had the night before, based on the information that everyone felt this cream-white vehicle was the vehicle that Makeke was seen driving in the area and the fact that he's transporting IFP people, based on an informed decision that they had taken, there was no talk that the owner was seen driving this vehicle, there was talk, and where this really came from one doesn't know because there was discussion around it before that decision was taken, that Makeke was the one that drives this cream-white vehicle.  They, on occasions, - but he was seen - the important thing is on one of the attacks he was seen driving that particular vehicle with members in it and it was seen in his mind and in the minds of that group as being the vehicle that Makeke normally drove and that was the vehicle that they had to ambush.  So he went with this particular picture in mind and armed with this information that, in his mind, and be it wrong, be it wrong, I'm not saying that it may be the correct impression,  be it wrong, but the impression in his mind clearly was that Makeke was the one that would be driving this cream-white vehicle and if we ambush it we're going to get Makeke, but it all went wrong completely.  It wasn't even Makeke.  It wasn't even IFP supporters that were sitting at the back, it was children.  But - in hindsight it was wrong, but if one looks at a situation and the subjective mind that was there in the applicant's,  in those circumstances, he was satisfied that he was now going to destroy Makeke.  In fact he said in his evidence that he believed that he now had shot and Makeke was there, nobody else, and that he had destroyed him and ran off.  That was what his evidence was and which is uncontested really as far as his version is concerned.

MR MALAN: But that's not correct, he also alluded to the fact that they saw other people and shot at them too.

MR SARDIWALLA: Yes, there were other people, he didn't know who they were.  He accepted that, but the target was Makeke and he had shot Makeke as far as he was concerned and he went off.  So yes, in hindsight one can say there were many things wrong with the planning and how it ought to be done and the precautions that ought to be taken, but once again I wish to urge Madam Chair and the Commission to remember that we are not dealing with a sophisticated American-style warfare plan.