Amnesty Hearings — Durban — 2000-07-26

SEGARAN RAMALU NAIDOO: So, and another thing is the bony ...(indistinct) or the dental ...(indistinct) that have occurred, that was present at the time of death, will persist because biological processes have ceased.   So even if you are examining this remains ten years later,  and you are doing it twice, doing it at the time of death and doing it ten years later, the dental, the tooth will still show the same age.
	I have clarified, that is living age.

MR VISSER: Yes, I understand.

SEGARAN RAMALU NAIDOO: The other thing we talked about is post-mortem interval, that is how long has the bones been laying there.

MR VISSER: Yes.

SEGARAN RAMALU NAIDOO: Since death.

MR VISSER: Yes.  I have just noticed here, yes, I don't believe too much turns on that, I am going to step off that for the moment.
	Sorry, are you busy reading something?

SEGARAN RAMALU NAIDOO: Sorry, I just want to refer to page 27.

MR VISSER: Yes.

SEGARAN RAMALU NAIDOO: On the file, and that is period of interment, it is actually intermen, not interment.  "Soft tissue in absence ...(indistinct) suggest a passage of several years."  That is the other age I am talking about.

MR VISSER: Yes.  Obviously that is more difficult to establish with accuracy than the age at death?

SEGARAN RAMALU NAIDOO: Yes,  very much more, yes.

MR VISSER: Because in cases such as this, if there was a foolproof method of establishing age since death, it could have been conclusive one way or the other, not so?

SEGARAN RAMALU NAIDOO: Well, that is assuming that there were no other bodies that were found at the same time.

MR VISSER: Well, you only have to assume that this body is five years old and it could never have been Kubheka, because we know she died ten years ago.

SEGARAN RAMALU NAIDOO: On, you mean in that conclusion?

MR VISSER: Yes, in that sense?

SEGARAN RAMALU NAIDOO: Yes.

MR VISSER: Chairperson, I am just going through my notes and it seems that I have covered almost most of them.  Now, coming to the question of stature again, if you assume that the body of PM580 in the form of its skeletal remains, in fact belonged to a person that was 1.6 metre tall.

SEGARAN RAMALU NAIDOO: Sorry, can you repeat that question?

MR VISSER: If one assumes that it is a fact that the body to which the skeleton remains in PM580, Chetty's body, was in fact 1.6 metre tall, and we know what you found, wouldn't that be a rule out factor, that the two bodies are the same?

SEGARAN RAMALU NAIDOO: Not really.  Well, shall we say this is the reason why I say I won't rule it out completely, simply because I believe that the measurement that he had taken, for several reasons that I mentioned earlier, I believe that is incorrect.

MR VISSER: All right, let me put it to you this way, forget about Dr Chetty, if there is evidence say of the family, that Ms Kubheka was in fact 1.6 metre tall in her life, are you still saying that ...

SEGARAN RAMALU NAIDOO: Oh, in that case, then I would say that the variation, the difference between my calculated age and the set age would be quite significant.

MR VISSER: Too great, not so?

SEGARAN RAMALU NAIDOO: Then it will introduce a measure of doubt.

MR VISSER: Yes, wouldn't it just be too great?

SEGARAN RAMALU NAIDOO: It would be.

MR VISSER: Yes.

CHAIRPERSON: Just one thing Mr Visser.  For me to ask you a question, you talked about those four categories, rule out, indeterminable, possible and positive.  Those are academic categories, is that so?

MR VISSER: Of identification.

CHAIRPERSON: Okay, so they are not just words that you have made up?

MR VISSER: No, no.

CHAIRPERSON: No, why I am asking is, possible would then include as us lawyers, we distinguish between possible and probable, so possible would include probable?

MR VISSER: Well ...

CHAIRPERSON: This is why I am asking, if there are four categories, then surely there should be five if it doesn't include probable?

MR VISSER: Yes.  Chairperson, yes ...

CHAIRPERSON: I am just worried about the use of the word possible and ...

MR VISSER: I may respond as far as I thought that we established with Dr Vanezis that probable is in the category of positive, not possible.

CHAIRPERSON: Yes, that is what I understood.

MR VISSER: Probable is in positive, not ...

CHAIRPERSON: No, no, my understanding was highly likely.

MR VISSER: That is how I understand ...

CHAIRPERSON: My understanding was highly likely was possible.

MR VISSER: Yes.

MS THABETHE: Yes.

CHAIRPERSON: And highly likely is probable?

MR VISSER: No, no.

CHAIRPERSON: Or is an excellent match, highly likely?

MR VISSER: Yes.  Chairperson, you will recall ...

CHAIRPERSON: But there isn't a probable category, that is what I am asking?

MR VISSER: No, no.

CHAIRPERSON: This is just an academic categorisation done by forensic anthropologists and we as lawyers must possible to include anything up to and including probable?

MR VISSER: Yes, yes, and when they come to court Chairperson, then of course, when they are confronted with the legal terms, then they've got to explain that.
	But you will recall that it was made quite clear by Prof Vanezis that his highly likely did not include probable.

MR LAX: It didn't include positive, not probable.

CHAIRPERSON: Positive.  We didn't use the word probable.

MR VISSER: It was in fact, but we can look at the record.

MS THABETHE: No, I disagree.

MR LAX: While we've got Dr Naidoo, I wanted to ask this question earlier, but I thought I was interfering too much in your cross-examination, but we are here now.  What does positive mean, does it mean 100%?

SEGARAN RAMALU NAIDOO: Yes.  It means conclusively, 100% certainty.

MR LAX: And so that anything short of positive is then probable or possible or any, in that whole spectrum of possibility and probability?

SEGARAN RAMALU NAIDOO: Yes, that is right.  Yes.

MR LAX: That is what I understood by positive.

CHAIRPERSON: Yes.

SEGARAN RAMALU NAIDOO: That is correct.

MR LAX: So that probable and positive are not compatible with each other, because if it is positive, then it is not a question of probability?

SEGARAN RAMALU NAIDOO: Yes, it is 100%, yes.

MR LAX: It is certain?  That was my understanding of the term, and that is why I disagreed with Mr Visser now.

MR VISSER: All right.  I don't know whether I should go through this evidence again, but according to, perhaps I am putting it incorrectly to you, but I thought that the evidence of Dr Vanezis was that even if there is a strong probability, it does not make it possible and in medical terms I thought what he was saying is he would then not be able to say, I am sorry, did I say possible again, I mean positive, I mean positive, so he as an expert in that field, would not say "this belongs to that person" in that sense, that is how I understood it?  Not so?

SEGARAN RAMALU NAIDOO: Yes.  Well, I am going to answer by rephrasing what you say.  Even if Prof Vanezis say it was very highly likely or using another word, very probable, it doesn't equate to a positive.

MR VISSER: Yes.

SEGARAN RAMALU NAIDOO: Yes.

MR VISSER: I accept that, but now working from the other side in order to attempt to answer Mr Lax's question, working from the issue of positive, from a medical point of view, forget about lawyers, even if it is very highly probable, when you say it is not positive, what you are saying is "I don't, I think it is very highly likely or very highly probable even, but I cannot say that that body relates to that person"?

SEGARAN RAMALU NAIDOO: That is correct, simply because we don't have the last diagnostic or ultimate test.

MR VISSER: Yes, I am sorry if I phrased it incorrectly, but that is the context in which I ...
	The question of the stature, have you heard of the Trotter formula?

SEGARAN RAMALU NAIDOO: Trotter formula?  I think I have, but I am not too sure.

MR VISSER: It is very much the same as the other formula which you spoke about.