Amnesty Hearings — Durban — 2000-01-17

MR WEBSTER: I'm not suggesting that they are now lying, but how much weight can you attach to that?  To my mind the courts have always had very little faith in the evidence of a witness who has listened to the evidence of other witnesses who have testified in the same matter, in the same case.  They have never placed much weight on that evidence.  Now we have applications on oath, which are tantamount to that, we have evidence presented before you or to you, which are based on that and again I say the probabilities are not in favour of accepting such evidence as being reliable evidence upon which one can say there has been full disclosure and discharge of the onus.
	My learned friend has spoken of a document which I believe  are Heads of Argument.  Unfortunately, I'm one of those who has not been favoured with that document and therefore I am unable to actually respond to the arguments that he raised and I do not believe that I would be able to do justice to that, but then Mr Chairman, probably now just to get to, quickly, to each applicant.  	Some attempt was made to play around with the injuries of people who were injured on the left side of their bodies, of their faces.  Mr Chairman, if you - not if you, my apologies, I cannot say if you, having read the evidence and if you look at it again, you will find that Maj Botha's evidence was that he shot at the rear wheel of this Cressida with the intention of bringing it to a stop and he also stated that there is a possibility that one or some of the shots, let's put it that way, may have gone higher than the wheel that he was shooting at, but when the injuries of the people that were injured there, I'm talking now of the injuries which according to the post mortems were the injuries which caused the demise of the persons, he was quite clear that those injuries could not have been caused by him.

CHAIRPERSON: ...(indistinct - microphone not on) or even if he did succeed in shooting anybody.

MR WEBSTER: Mr Chairman, that is quite so.  I agree with you, Mr Chairman, if we are talking about a people who say to you:  "We went to kill those people.  We set about on the unlawful - with an unlawful intention of killing those people."  Now if that were the case of the applicants, it makes no difference at all.  It doesn't make any difference at all in those circumstances, but to a person who disavows the killing of those people, because this is what Botha is basically saying, that he didn't shoot at anybody and this is why I even put it to him that having not caused the death of any of those people, on what basis in law would he apply for amnesty.
	Given enough time, Mr Chairman, I would probably lead you to the passage in the evidence of Maj Botha where he concedes this, because we are not, as I said, dealing with unlawful conduct, as at that stage it's clear that it is lawful conduct and he says so, it's put to him that he acted lawfully.  He says yes.  Now the unlawfulness is not very clear and so far as Maj Botha is concerned, to my mind, if he as he has testified here, set about shooting at a vehicle and even if one were to concede that one or more of those shots may have killed somebody, but his express intention to my mind was a lawful one and he has to stand or fall by what he presents to you,  lawful conduct.

CHAIRPERSON: Well now, if ...(indistinct - mike not on)

MR WEBSTER: Absolutely.

CHAIRPERSON: But if that's the result of...(indistinct - mike not on)

MR WEBSTER: Well I would agree in the affirmative to that supposition, but of course the thrust of my argument being that he is not saying so in presenting his case to you.  If he had been saying so, one could concede that.  In so far as the Major is concerned, I will concede that in so far as the perjury, possible perjury charge is concerned, I think he should be entitled to amnesty in that regard.  In so far as planting the guns and the effect of that, defeating the ends of justice, I would say he's entitled to that but on the murder of the four people or the killing of the four people, there is no reasonable justification, none at all.

CHAIRPERSON: This exercise...(indistinct - mike not on) that what the applicants had in mind was really to eliminate these people and not to merely arrest them?

MR WEBSTER: Mr Chairman, I do not believe that there can be any doubt about that, that in fact the absence of any form of weapon, this must have been one of the greatest shocks that these gentlemen ever had and will ever have in their lives.  I'm sure even if they'd been caught red-handed shooting and killing somebody, it wouldn't have been as much a shock as the got when they didn't find a single weapon, probably not even a pellet, I mean not even one of the pellets for an air rifle, you know those little airguns that kids used to play with until the laws were tightened.

CHAIRPERSON: Would you say the applicants, in their minds, when they were chasing this vehicle, the applicants in their minds believed that these chaps in the vehicle were armed in one way or another?

MR WEBSTER: I cannot answer categorically to that question, Mr Chairman, but I do believe that if at all they thought of arms, the arms might have been present, possibly in the boot of the vehicle, but not that the people themselves were armed, because for them to have, if they at all had entertained that belief, I do not think that there could have been - well, let me not criticise them, but I do not believe that they could have then started, at least Maj Botha could have then started shooting at the tyre of the vehicle knowing that he is exposing himself to being fired upon, shot and killed, because he was driving that vehicle whilst he was shooting.   So to that extent, Mr Chairman, I would answer that if at all they thought there were guns, guns could not have been in their possession and I would believe and I think this is a reasonable conclusion that one can come to, that when the information came to them that the people were leaving the house, the question must have been, were they carrying arms, and the answer must have been no, hence the shooting by Maj Botha at the rear tyre because he knew it was relatively safe.

ADV BOSMAN: Mr Webster, what is worrying me, if your submission is correct that they intended to kill, why then did they decide to do the killing there on a public road where there were so many people around?  How does one explain that?