Amnesty Hearings — Johannesburg — UNKNOWN

MR DORFLING: Indeed I did misread it, but it actually goes back to the previous point I made with the plural of AK47s, there's only one recorded shot that can be linked to the day with reference to AK473.

MR BERGER: Chairperson, if my learned friend will just allow me to develop the memorandum and he can talk to it afterwards.

CHAIRPERSON: ...(inaudible)

MR BERGER: Thank you, Chairperson.  Chairperson, what I was saying was, Superintendent Du Plessis as is shown in sketch plan no 1 had a very limited investigation.  When the experts went back subsequently they found many more holes and they were able to reconstruct a far more detailed scene.  But for the bullet holes which I've referred to which were positively excluded on the basis that they didn't appear in the photographs taken by Superintendent Du Plessis on the day, none of the other shots could be excluded.  So, for example, to take Mr Dorfling's suggestion that the shotgun pellets which I've shown - which I've referred to as "BN3" on sketch plan 4, to say that there is no proof that those shots were fired on the day, well, one might equally say if one turns to sketch plan 3 that the AK47 shots "P1" - "P9", as well as "B1" - "B6", that those too were not fired on the day.  You see, one can say that as well, because they were not seen or noted by Superintendent Du Plessis when he did his investigation on the 29th of March 1994.

JUDGE NGCOBO: Are you saying that the appearance of the bullet marks on the photograph taken by Du Plessis was not necessarily determinative of when those shots were fired?  There were those which were not in the photograph, but were never the less linked to the shooting.

CHAIRPERSON: The limited number of findings that were made by Du Plessis as shown in sketch plan 1 seemed to have been fired at the time of the occurrence, but a number of shots that were subsequently presented in the joint report, there's a possibility that some of those may not have been related to the shooting of that day.  Is that what you're really saying?

MR BERGER: That is correct, Chairperson.

CHAIRPERSON: There's a probability that they were - I can't imagine people going around scattering bullet marks in that area, you know, as an exercise of some kind.

MR BERGER: The probability is that all the shots that the experts discovered in their joint investigation, the probability is that those were fired ...(intervention)

CHAIRPERSON: Yes.

MR BERGER: ... on the day of the incident.  The only ones which can be excluded are those shots which don't appear in the photographs taken by Du Plessis on the day, but the point is that du Plessis didn't take photographs of the entire area, he only took photographs of the area around the corner of Jabu's Bakery and the other parts that are shown in sketch plan 1, for example, Du Plessis did not take photographs of the flats that are shown in sketch plan 3, "P1" - "P9" and "B1" - "B6", he didn't take photographs.  Now, subsequently when the experts found bullet holes there, they couldn't say that those bullet holes weren't there on the day of the shooting because they were no photographs to say yey or nay.  Everyone accepts on the probability that "P1" - "P9" and "B1" - "B6" were shot on the day of the shooting, we have no reason to say otherwise.  Similarly the shotgun pellets fired in "BN3", there's not reason to say that those weren't fired on the day of the shooting.

JUDGE NGCOBO: I suppose the reason why I appear to be somewhat confused is that I have thought that what happened was that Du Plessis took photographs of the bullet marks, and that subsequent to that there was this joint exercise by the experts which was much more extensive that they one carried out earlier on by Du Plessis which discovered more marks than had been - than is depicted in the photographs.  Is the basis for excluding the other marks simply that they didn't appear in the photograph?

MR BERGER: Yes, that's correct.

CHAIRPERSON: ...(inaudible)

MR BERGER: No, there's no other basis.

CHAIRPERSON: You definitely talk about it ...(inaudible)

MR BERGER: Yes, that's correct.

CHAIRPERSON: ...(inaudible), that's no reason for excluding them, just because there were no photographs taken of those.

MR BERGER: No, Chairperson, things are getting a bit confusing now.  Superintendent - his photographs are available in exhibit "Y2", and perhaps it would be a good idea to put - to show those to the Committee.  He took photographs of certain areas, in particular he photographed if one looks at sketch plan no 1, he photographed "D", that area marked "D", he photographed "A", he photographed "B" and he photographed "SW1, 2, 3, 4 and 6", that's what he photographed.  He never photographed looking at sketch plan 3, he never photographed "P1" - "P9" or "B1" - "B6", he never photographed those flats at all, he never photographed "BN3" on sketch plan 4 or if one looks a bit further on sketch plan 4, he never photographed 16, 17, 18, he never photographed "SN1", "SN2" or anything on the eastern side of Shell House.  Now, because he'd photographed the area very close to the corner of De Villiers and King George where Jabu's Bakery is situated, he could say that for example, I'm not sure that this is the right bullet hole, but I'm just using it as an example, that bullet hole no 12 which we now see on the corner, he can say, but look at my photograph of that particular spot and you can see that that bullet hole is not there.  And on that basis he says bullet hole no 12, for example, was not there on the day of the incident.

CHAIRPERSON: Yes.

MR BERGER: So there's no basis on which one can say that the shotgun pellets which I've indicated - which are indicated on "BN3", there no basis for saying, and this was agreed, that those did not - were not fired on the day of the incident, and the probabilities are that they were fired on the day of the incident because of the evidence which you've already heard.

CHAIRPERSON: Yes.

MR BERGER: As far as the AK47 shots on sketch plan 4 are concerned, 17 and 18, the evidence was that those could have been the tail-end of a burst of AK47 fire and Du Plessis said, well, you know, in fact then they might have hit one of the marchers, the other shots which are not appearing there, and that's the point, that they were fired in the direction of Shell House, that is the direction and the possibility is that the other shots which are not seen because they didn't hit any particular building might have landed up in the backs of one or other of the marchers.  Even the ricochets which are indicated on 17 and 18, one can see the ricochet being indicated there.

MR LAX: Mr Berger, is the assumption that those shots may have been fired by other marchers?

MR BERGER: Yes, that is it.  And so what we say the reports indicate is that there was general firing in both directions, both from Shell House towards the marchers and both from the marchers in the direction of Shell House, some of them even hitting Shell House, and those have been indicated.

MR LAX: I want to ask you one other thing, you say that Du Plessis conceded the possibility that those were the tail-end of a salvo of shots, is that based on the specific dynamics of how an AK47 tends to go up when you're firing on automatic, is that right?

MR BERGER: That is correct, yes.  And that's why one says that the shots towards the marchers were handguns and AK47s and we know, although that's not depicted on the sketch plans, we know shotguns as well because we know that the people on the parapet fired shots, and from the other side the shots fired towards Shell House included handguns, at least one shotgun and AK47s in the plural, the one AK47 at least being fired from the direction of De Villiers Street toward Shell House and the other AK47 being fired from the direction of King George Street near Noord toward Shell House.