Amnesty Hearings — Johannesburg — 1998-05-19

CHAIRPERSON: Let's just be clear. It is quite clear that in this commotion that is taking place, people moving around and you see a man with a pistol in his hand. You are asking him; did you see him fire. In other words was his attention focused on that gun to see whether it is fired or whether is the conclusion he draws is as a result of hearing firing. You are drawing a distinction between him actually seeing firing and whether he heard the firing. I think that this is going to lead us nowhere really because if he says he heard the firing that might be more correct. But if he says I saw the firing then I am not too sure whether it is possible to say that he actually saw the firing. Seeing the firing means you were looking at the gun and you see a bullet leaving the gun. Isn't that what seeing the firing means?

MR DORFLING: With the greatest respect these questions were specifically asked to the witness at the time of the inquest to distinguish between him seeing it or just having perceived that there were certain shots firing from the guards. I am saying he contradicted himself Mr Chair.

CHAIRPERSON: At the same time I don't think that a great deal is achieved by splitting the fact as to whether a man sees or whether he hears. The picture you get and the picture we get is that there was a commotion, there were people with arms. And he heard gun fire from downstairs. Downstairs would probably mean the guards of the ANC. He heard a lot of gun fire. He says he saw people firing those that had pistols. He says he heard them firing. And whether there is a contradiction, material contradiction on whether he saw them actually or whether he heard them firing. That might be a contradiction but as far as I am concerned at present as things stand I do not think that, that is such a material contradiction.

MR TIPP: Chairperson I am sorry but just on a point of accuracy chairperson. My learned friend said that when the witness was asked today; did you see any shots being fired and he said no and he didn't content himself with any explanation. That is not correct. The witness then went on to say that I said certain things in my statement where I said I saw them firing. Judge Ngcobo then asked the witness what statement are you referring to and the witness then said I am referring to the evidence that I gave before Judge Nugent. So in answer to the question did you see firing he said no but then he did give an explanation as to what was said at the inquest.

MR DORFLING: My learned friend is indeed correct Mr Chair. I specifically asked the witness did you see as opposed to just hearing. Mr Chair you actually remarked whether you want us to have a specific answer as to whether he saw it. And I got a specific answer to that being in the negative. "No I did not see." And that is the line of questioning I am pursuing. The witness had the opportunity today to give an explanation as to perceptions but he chose to say: "I did not see anybody firing."

JUDGE NGCOBO: Is the point that you making this; what the witness has stated as the fact that he saw the marchers firing as opposed to saying there was fire coming from the direction of the marchers and therefore I get the impression that the fire is coming from the marchers? You want to make that distinction?

MR DORFLING: Yes Mr Chair with respect I think it goes even further than that. It is a positive answer yes I did see as opposed to a negative answer no I did not see.

JUDGE NGCOBO: Yes I understand that but the witness as I understand his evidence it is to the effect that he testified that he saw the people described by him shooting. There was confusion.

MR DORFLING: No I think the witness responded by saying he did not see them shooting. That is the contradiction I am trying to point out. I say the witness today said I did not see as opposed to the inquest where he said I did see.

CHAIRPERSON: I even think where he says I see a pistol, I  heard a noise and I concluded that there was firing. Now you have got all that. My suggestion is to you that you can make whatever you wish to make in the address but I do not think that a useful purpose is served in going too much further into this kind of cross-examination on a detail of this kind. You have got the versions, you put them before him and you have got his answers.

MR PRETORIUS: Mr Chairman if you could just allow me to interpose at this stage because I am going to raise an argument about this very same line of questioning that Mr Dorfling now takes which I think is very important. And that is that this witness saw the firing at the guards below. In other words at the corner of King George and Plein Street. And the Committee will recall that I and others repeatedly referred to the fact that the ballistics indicate that no indication could be found that any marchers fired any shots at the guards on that particular corner. So that is also a very important part in this particular section that my learned friend raised.

CHAIRPERSON: We got that cross-examination that you put to him and we got his answers to that.

MR PRETORIUS: No I haven't cross-examined this witness.

CHAIRPERSON: (...indistinct) to another witness I am sorry. I understand. Well you will put your questions to him then.

JUDGE NGCOBO: Yes because we understand and the record in this regard does speak for itself and that is that he made the statements that appeared on a record of the inquest. He has made a statement in his evidence. Those statements are there. And the question is the inference to be drawn from the making of those statements and unless there is a point that you wanted to make beyond that it would seem to me that it may be a matter for the argument. Because I think the gist of the answer is that he was confused and I think he has referred us to the passage.

MR DORFLING: Yes Mr Chair I am trying to convey to this witness that the reason for this discrepancies is not because of his confusion. The reason for these discrepancies is simply the exact point Mr Pretorius has raised. It has now been found out ex pose factor, after the facts that this on the ballistic and objective evidence did not happen and the witness is fabricating to fit in with the objective ballistic evidence. And that is why I am putting the contradictions to him to give him a proper opportunity to respond because that will be my argument at the conclusion of these proceedings.

MR LAX: Sorry Mr Dorfling I am just not understood you correctly now. How could you be fabricating in line with objective ballistic evidence when you are saying there is no objective evidence to support his fabrication?

MR DORFLING: Maybe I am not expressing myself well. What I am trying to convey is the version put forward at the time of the inquest that there were shots fired at the security guards downstairs which was the gist of this witness' evidence. He perceived there to be or not perceived, he saw shots being fired at the guards downstairs. And that was one of the reasons why he retaliated. The objective evidence has now shown that there is no proof of that fact being in existence on the day of any such shots having been fired at the direction of the marchers. The witness now gives an explanation. He says there was a lot of firing. There was firing emanating from the crowd and I perceived that, that might have been the position. In other words he is now backing down on the very strong position he put forward at the inquest court because he can't find any support for that proposition in the ballistic evidence. That is the proposition I am putting forward.

MR LAX: Sure as Judge Ngcobo said that is something you can address us on later in argument. It really does not serve any purpose to keep pushing it down this witness' throat. I mean you are doing that but in that sense. Because we are not going to get any more out of him at this stage it doesn't appear to me.