Amnesty Hearings — Cape Town — 1998-01-14

CHAIRPERSON: Yes, it turned out that they were civilians belonging to a different political ...[indistinct]

MR PRIOR: Well, my only argument is that, in the case ...[intervention]

CHAIRPERSON: You're saying however, that when victims are civilians, it is a factor when you take into account when you look at the question of the proportionality of the offence?

MR PRIOR: Yes, that it was not directed at any recognisable governmental structure.  For example, earlier in the week or earlier in the month or earlier on, they had attacked the Nyanga Police Base - sorry, the Army Base, they'd attacked the Guguletu Police Station - clearly, one cannot even being to argue on the same basis of Heidelberg.
	Those were obviously targets - military targets within the perception and within the range of the applicants - cadres, soldiers of APLA but where we were dealing with Heidelberg - a restaurant in a built up area, the applicants explanation is that they were simply carrying out orders blindly.  That seemed to fly in the face of the surveillance done the day before or some days before by one of the applicants - I think it was Mr Gqomfa. 
	...[inaudible] the situation, maybe a distinction may be drawn then between the Mitchell case and - because I don't know the facts of the Mitchell case, whether any surveillance or reconnoitring had been done before the attack.  My argument is simply that if one had taken the Heidelberg Tavern as a military target and it had been reconnoitred - as we heard from the applicants, then my argument is simply that that seems to improbable. 
	That they would have been convinced that it was a military installation, that the people there would have been all armed to the teeth, as suggested by my learned friend, that they were expecting a possible resistance - testified to by Mr Mabala and/or Mr Madasi, I submit that that is improbable on the evidence as we know it.
	We also have the added feature that there were people partying or having a party opposite the Heidelberg Tavern and those people who were shot at or shots were directed in their direction, that is unexplained.  We also have - and I was going to then lead on with Mr Cerqueira's shooting but my argument without fully being aware of all the facts of Mitchell, I would say there is possibly a distinction - on that basis only.
	Mr Chairman, if one possibly accepts - for the purpose of the argument, that Heidelberg was a military target within the understanding of the applicants and they each simply carried out what they been instructed to do, then one has difficulty in understanding why Mr Cerqueira was gunned down because geographically he was not part of the Heidelberg situation, he was clearly at a position removed from Heidelberg.  
	I submit that Mr Gqomfa has not adequately explained - has not made an adequate disclosure as to why he gunned down or shot at Mr Cerqueira.  I submit - to make his version sound somewhat more palatable, Mr Cerqueira is firing shots at him - he raises a type of self-defence although that would not avail him in these proceedings but it certainly - if one seeks some moral justification for shooting at Mr Cerqueira, then that would be it - that the man was firing at us.
	However, I would submit that on the evidence before the Committee, we have the evidence of Mr Cerqueira's brother - or be it emotional, I submit there was nothing to suggest he was an untruthful witness, in fact he withstood cross-examination very well.  I submit at the end of the day he's unshaken when he says he would have known if his brother had shot.
	The criticisms made by my learned friend are valid to a certain extent, Mr Brode who was a very emotional witness and who displayed that emotion in these hearings, was unable to satisfactorily explain why he would have handed the firearm - Mr Cerqueira's firearm to the police, but the fact that that was done was never challenged.	
	What the Committee has to decide then and which I submit is an important decision to make, is whether in fact Mr Cerqueira was armed or not because if he was not ...[intervention]

CHAIRPERSON: Mr Arendse didn't argue - didn't advance any argument as to why we should reject Francesco Cerqueira's evidence.

MR PRIOR: No, not at all.

CHAIRPERSON: He didn't say that he was an unsatisfactory witness for any reason whatsoever.

MR PRIOR: No, just that he was emotional and he had come forward because he had heard that people or the press reports were saying that Mr Cerqueira had been shooting at the applicants and he felt strongly about that and he came to set the record straight.
	Whatever criticism one has against the powder residue, I submit it goes some way to support Mr Cerqueira.  There's no evidence before the Committee to indicate that the length of the time or the ...[indistinct] of time would destroy or hamper in anyway the test.  It would seem from Stoltz's affidavit that she - and from du Plessis affidavit, that the samples were taken, they were properly sealed and they were properly despatched and the were properly analysed.  
	The relevance of the criticism may be a good one except that in the criminal trial this was also not challenged to - Cerqueira's death was never challenged, so one doesn't really know why the State never led that evidence - maybe it was irrelevant. There's also a consideration with respect, is that if Cerqueira had been armed and he had seen the applicants coming away from Heidelberg Tavern where there had been an unlawful act, then he would have been entitled - possibly, to apprehend the applicants.
	We also had evidence from Brode which was corroborated to a large extent by Mr Cerqueira as well, that shots entered the Machado Restaurant and if they were being shot at then naturally they would have been justified in defending themselves.  So, on whatever basis Mr Cerqueira - maybe the first proposal that I made was to a larger extent than the last proposal that ii doesn't avail the applicants to rely heavily on the fact of his being armed.
	Because that brings into call Advocate Sandi's question: "Because the applicants have not properly canvassed, what political motivation or objective did they have in killing Mr Cerqueira"?

ADV SANDI: Sorry, Mr Prior, what about the possibility that the firing may not have come from Mr Cerqueira but from someone behind him in the tavern?

MR PRIOR: Yes, as Judge Wilson had indicated, that is also a possibility, then we have a situation where Mr Gqomfa was completely mistaken then and if that is the case then one could safely reject his evidence by saying that - if I recall correctly, Mr Cerqueira either raised his hand or shot in his direction, then that could not have been the case.  One has to then ask oneself: "Well why does he then say what he says"?, if at all to possibly exonerate - to whatever extent, himself from that situation.
	My submission in respect of Mr Cerqueira's death is that the applicants have difficulty - severe difficulty, in that they have not firstly given a full disclosure of the facts surrounding that shooting and secondly their political objective in respect of that death has not been satisfactorily presented or explained to this Committee.

ADV SANDI: Mr Gqomfa may have not seen the person firing from the tavern and I thought in his evidence in chief he said he shot Mr Cerqueira - the late Mr Cerqueira because he thought he was firing at them, he didn't say he saw any other person besides Mr Cerqueira ...[indistinct]