Amnesty Hearings — Durban — 1999-08-18

CHAIRPERSON: Alright, do carry on.

MR LAX: That will be Chair, Exhibit E.

CHAIRPERSON: Very well.

MR WEBSTER: Could we then take - we should have actually started with 2019 but we'll make 2019 Exhibit F, that relates to Mabaso.

CHAIRPERSON: Yes?

MR WEBSTER: 2020

MR LAX: That's Brian Thabani Mamela?

CHAIRPERSON: Exhibit G

CHAIRPERSON: What is the number.

MR WEBSTER: Sorry, 2022 Chairperson.

CHAIRPERSON: Yes.

MR WEBSTER: If we've also numbered them unfortunately it's not going to be very scientific.

CHAIRPERSON: But we'll do the best we can.

MR WEBSTER: We'll do the best we can.  There is an annexure to paragraph 4 which is labelled DR31/86, it's a typed list of various injuries that were found on the body of the deceased.

CHAIRPERSON: Is it an annexure to paragraph 4 of what document?

MR WEBSTER: Of Exhibit E.

CHAIRPERSON: Yes.  Yes, do you want to give us a number as well?

MR WEBSTER: May we say it's E13.  We have not numbered the ...(intervention)

MR LAX: Sorry Chair, should we not just paginate this bundle E and then we'll get the page reference E - whatever it is?

MR WEBSTER: It will then be page 14, A 14, the first one being the cover.

CHAIRPERSON: Yes.

MR WEBSTER: Mr Botha, we see according to E14 that the deceased had at least ten injuries, do you agree with me?

MATTHYS CORNELIUS BOTHA: Chairperson, may I just have regard to the document?

MR VISSER: It's actually page 15.

MR WEBSTER: It would be 15?  I'm sorry, I'm indebted to my learned friend.

CHAIRPERSON: Alright.

MR WEBSTER: E15 and E16 is the list of the injuries that were found on the deceased's body, do you agree?  I want us to go to E17.  I take it that injuries marked 1, 2 and 3 on the figure on the top left corner of E17, the arrows depicting a downward direction would seem to indicate that the shots or the injuries must have been caused by bullets coming from above and from the right side of the body of the deceased in that case, do you agree?

MATTHYS CORNELIUS BOTHA: It's possible, Chairperson.

MR WEBSTER: That there can be no other explanation?
Do you agree?

CHAIRPERSON: He said it is possible.

MR WEBSTER: Bearing in mind that those - sorry, I'll rephrase the question Chairperson.  Those injuries could not have been caused by shooting from you, do you agree with me?

MATTHYS CORNELIUS BOTHA: That is correct, Chairperson, I don't believe that it was my shots that I had fired.

MR WEBSTER: And similarly with injuries depicted as 8 and 5, on that figure on E15?

MATTHYS CORNELIUS BOTHA: 8 and 5?

MR WEBSTER: 8 is on the right hand thumb of the figure and 5 is from the right knee of that figure.

MATTHYS CORNELIUS BOTHA: Chairperson, may I just ask, this person where was he seated?

MR WEBSTER: E3, that is left front.

MATTHYS CORNELIUS BOTHA: Left front?  It is difficult to distinguish, Chairperson, if we look at 8, point 8 on page 17, then one could assume or I suppose that this person's hand was low or it could have been high.  It's difficult to say whether these were my shots because I crouched low in the vehicle but it is impossible for me to say whether it was my shots or not.

CHAIRPERSON: Yes, let's proceed.

MR WEBSTER: But from what you've told us, you didn't - you couldn't have held your firearm at such a height that would have hit a hand when you were aiming at the wheel.  It reversed to that ground yesterday?

MATTHYS CORNELIUS BOTHA: What I had said was that I shot at the left rear wheel of the vehicle but it may be possible that some of my rounds may have been fired off higher than just the wheel.

ADV BOSMAN: Mr Botha, may I just have clarity?  I'm sorry to interrupt, Mr Webster.
	What type of firearm did you have?

MATTHYS CORNELIUS BOTHA: It was a 9 mm pistol.

ADV BOSMAN: So it was not an automatic firearm?

MATTHYS CORNELIUS BOTHA: No.

ADV BOSMAN: Thank you.  You may proceed, Mr Webster.

MR WEBSTER: Thank you.
	You see, I'm suggesting to you, Mr Botha, that none of these could have been caused by you, do you agree?

MATTHYS CORNELIUS BOTHA: I don't know, Chairperson.

MR WEBSTER: And if one then bears in mind what the doctor has said regarding the cause of death, namely as being injuries 1, 2 and 3, then you could not have been responsible for the death of that person, do you agree?

MATTHYS CORNELIUS BOTHA: As I have said, Chairperson, I don't know.

MR WEBSTER: Come on, Mr Botha, what can you speculate?  That your bullets could have come from the right hand side bullets causing injuries 1, 2 and 3?

MATTHYS CORNELIUS BOTHA: No, Chairperson.

MR VISSER: Chairperson, my learned friend is being unfair to the witness.  Does he have evidence in what direction this deceased was looking at the time he was shot?  He might have been looking backwards for all we know.  We're on such highly speculative ground, Chairperson.  If my learned friend wants a concession from us, that the probabilities are that these bullet wounds were no caused by this witness, I will gladly concede it and we can get on with the matter.  But surely, Chairperson, speculating with the witness, none of the two of them being an expert, none of the two of them having been on the scene to say what really happened.  It takes us nowhere, with respect, Chairperson.

MR WEBSTER: With respect, no, not the two of us were not on the scene, Mr Botha was on the scene.

CHAIRPERSON: We are dealing with a fast moving incident where there is firing from all sides.

MR WEBSTER: That is quite so, I understand Chairperson, but ...(intervention)

CHAIRPERSON: You haven't got a situation that is frozen and you are now examining it.  This is an event that is developing fast and shooting.  The injuries to the right hand side of the body, the head and so on, on your version it would be improbable for those injuries to have been caused by this man if he says he aimed at lower left rear of the car.

MR WEBSTER: Yes, that's all I wanted from the witness.

CHAIRPERSON: All he says, he aimed at the left rear of the car, some of his shots may not have gone to the level of the wheel, they may have gone higher up, that's as far as he goes.

MR WEBSTER: But insofar as the injuries and looking at them, Chairperson, with the greatest of respect, I do not think that sitting here as you are sitting, Chairperson, that one could even - if I were to argue that those were caused by the shots fired by this witness, aiming at the wheel even though they may have gone a little higher, that injuries 1, 2 and 3 could conceivably have been caused by him.

CHAIRPERSON: Unless the man was crouching at the time.

MR WEBSTER: Unless he was crouching with his head in such a direction in which case, bearing in mind that the left front seat and not even the back, the probability recedes even further.

CHAIRPERSON: Just let's talk about the probabilities, but you can't pin things down and come to definite final conclusions beyond a man saying "I fired at this vehicle, I don't think that I shot anybody, I don't think I shot anybody" and that's as far as he goes?

MR WEBSTER: Mr Botha, is it your evidence as the Chairperson has summarised it that insofar as you believed you did not shoot anybody?

MATTHYS CORNELIUS BOTHA: Chairperson, I have a possibility that some of my shots may have hit the people, I fired at the left rear of the vehicle but it is possible that some of them - I do not know but it may be.

MR WEBSTER: Chairperson, I have to put the next question ...(intervention).

CHAIRPERSON: You see there are people in the back seat, there are four passengers, some in the back, two in the front.  We're dealing with the injury to the man in the front and these are all probabilities.  You are firing from behind and it is being put that the injury to the chap on the front left hand side could not have been caused by you?

MATTHYS CORNELIUS BOTHA: It's possible Chairperson.

CHAIRPERSON: Is that as far as we can go?