Amnesty Hearings — Durban — 1999-06-24

MR SARDIWALLA: But outside the knowledge of my client.  If he had known that, and I think he was repeatedly asked about this, he did not know that there were children also transported in a similar looking bakkie, had he known that and despite that knowledge went ahead, then we would have had serious problems, I concede, but he's never had this knowledge.  One must remember that these are people that lived in and out in hiding, not in homes, up in mountains, were there to protect themselves and attack at the appropriate time.  This was the modus operandi of both organisations.

MR MALAN: Did you say that he was under the impression - was his evidence not that it was indeed the same bakkie and not a similarly looking bakkie?

MR SARDIWALLA: He is unequivocal that it was the same bakkie and he even believes that, there's no doubt about that.

CHAIRPERSON: He knew the bakkie.

MR SARDIWALLA: And there has been an error, he's conceded that.  I mean he said "had I known that there was another bakkie carrying children, I would never have killed, particularly my own step-nephew".

CHAIRPERSON: Yes, but Mr Sardiwalla, his evidence is not that there was another bakkie, his evidence is that it was the same cream-white bakkie that was known to be driven by Makeke, even though it belonged to somebody else.

MR SARDIWALLA: And what is important was that this was a decision that was made jointly, he didn't singly decide that I must do this, so it must have been thought out, it must have been - it's well and good saying in hindsight that they should have done x or y, but at the time the circumstances and the general consensus that appears amongst everyone, was that the white bakkie which Makeke drives, is the one that needs to be ambushed in this.

MR MALAN: The cream-white bakkie which he on occasions drives.

MR SARDIWALLA: Yes, which he was seen driving, on the applicant's evidence, at the time when one of the incidents occurred recently, where he was transporting people, members of the IFP.

MR MALAN: But let's just - are we agreed also that on the applicant's evidence he knew that it was not Makeke's bakkie?

MR SARDIWALLA: Yes, he said that, he said that.  He did not attempt to be untruthful to the Commission in saying that  well he knew it was Makeke's bakkie and whatever, he said it was not but he knew that Makeke regularly drove that bakkie.

CHAIRPERSON: He wasn't just seen driving, it was known to him that Makeke used to drive the car occasionally and that it belonged to a person who had recently moved into the area and this information was confirmed by one Tola Cele that Makeke had been seen driving the car on the 26th February when an incident occurred on the ANC members allegedly by the IFP members.

MR SARDIWALLA: What is also significant, is that Kuala confirms that it was a cream-white bakkie that they were in, so if there were any doubts about the colour of the bakkie, there were some suggestions in cross-examination that it may have been the white bakkie and not the cream-white, but I think Kuala, who was in that vehicle, confirmed that it was actually a cream-white bakkie.

CHAIRPERSON: I think the mistake was from your side, your affidavit, yes.  You may proceed.

MR SARDIWALLA: Thank you.  So it is my submission therefore that the target was clearly a political target.  It clearly involved an organisation or organisations that were both active, Makeke being active in the IFP and that was clear from the evidence of Mkhize, that he was an active member of the IFP.  So it wasn't as though he was an individual of his own standing and so was the applicant, he was an active member of the ANC, trained in the handling of ammunition and firearms.  So I therefore submit that ...(intervention)

MR MALAN: Sorry, did we have evidence that Makeke was trained in the handling of firearms?

MR SARDIWALLA: No, no, I said the applicant.  It is therefore my submission that despite the fact that everything went wrong, one must look at the mind of the applicant prior to and at the time that he committed this act and there seems to be very little doubt that his mind indicated that he was actually executing the decision that was taken by the organisation, in conjunction with his comrades.

ADV DE JAGER: There's one other thing, if children were shot outside the bakkie as was - that evidence wasn't disputed - how could we then believe that in fact they only wanted to kill Makeke?

MR SARDIWALLA: I assume that you are now referring to Kuala's evidence?  I have some concerns about Kuala's evidence.  I have concerns about Kuala's evidence specifically as far as the aspect of identity.  To say the least, and particularly in the way it was described by Kuala, an assailant who commits a deed, an atrocity, who has the means of concealing his identity, actually displays his identity to a known person whilst the other perpetrators conceal their identity.  Now this I find highly improbable.

CHAIRPERSON: Whilst you are dealing with that aspect which seems to be giving us a little problem, because we don't know what weight now to attach to the evidence of Mr Kuala, taken in conjunction with the post mortem report, which undoubtedly you must have had sight of, in relation to the injuries sustained by the victims, the nature of the penetration of the bullets on their bodies, which would seem to indicate that some were shot quite at close range.  I don't know whether you have had sight of the post mortem.