Amnesty Hearings — Durban — 2000-01-17

CHAIRPERSON: I can't hear what you're saying.

MR VISSER: Very briefly.  5 minutes.  Mr Webster didn't tell us whether he won that case or not, so I was quite interested to know.

MR WEBSTER: I did.

MR VISSER IN REPLY: Chairperson, there is no onus of proof before you or any other Commission of Inquiry, we dealt with that issue.  I'm not going to go through it in detail, just to refer you to it, you will find it in the written Heads at page 47 and onwards where it was quite explicitly stated by the Appellate Division, there is no onus of proof where a Commission has to be satisfied.  It's a question of being satisfied on probabilities, it's not for the applicant to provide probabilities.  Of course we have to give you evidence which will make you satisfied, but that doesn't mean an onus of proof.  Chairperson, I'm not going to deal with all the issues.  The question of the injuries to which Botha would have conceded only related to one injury,
Chairperson.  You'll find that at page 581.  He didn't make a blank concession.  As far as the offence is concerned, Chairperson, on your questioning and again at page 592, he associated himself with what had happened there.  The moment he associated himself with planting those weapons, he associated himself with killing those people, whether he struck any of them or not and we know we've got in our law an offence such as culpable homicide.  I'd hate to have to defend Botha on a plea of not guilty on the charge of culpable homicide in this case on these facts, Chairperson, because he'll be convicted and dolus eventualis as you put to my learned friend Mr Webster during the hearing, what about dolus eventualis?  And then page 573, Chairperson, on a question of Mr Webster in the middle of the page:
"Mr Botha is it your evidence, as the Chairperson has summarised ..."
Perhaps I should just refer you to what the Chairperson said, it's just the previous paragraph.
"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 it goes.  
"

MR WEBSTER: Mr Botha, is it your evidence as the Chairperson has summarised it, that in so far as you believed you did not shoot anybody?
		MR 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."
It goes a bit further than that Chairperson and with respect Chairperson, I don't believe there's really anything except for one interesting scenario which you put to my learned friend.  What do we make of the fact that Wasserman had to be sent back to go and fetch weapons to plant?  We say that's clear evidence that they didn't intend to get into a gunfight with these people, because they believed, they told you so, they believed that they were armed, Chairperson.  Now on this hypothesis that the weapons in fact the fetching of the weapons and planting them, showed that they intended from the word go to eliminate them, doesn't make sense, because Chairperson we know the Security Branch had Russian weapons at their disposal, we've heard this in many cases, in many amnesty applications.  It's common cause in fact.  If they wanted to go and eliminate those people Chairperson, they would have taken Russian weapons to plant on them, just in case they were not armed and that is my submission, so in fact the fact that they were compelled to send Wasserman back shows quite clearly in my respectful submission, that there was never an intention to get involved in a fight or to kill these people outright and not to arrest them.
	Well, Chairperson, we haven't been told why there wasn't, according to Mr Webster, a full disclosure.  We don't, we're not told why it is stated that Wasserman's evidence is diametrically opposed to Steyn and Botha, we say it's the same, in fact and what is really of importance is that now at last we hear that nothing can be made of the issue of the helicopter.  So we q.e.d. Chairperson and we rest our case, thank you.

CHAIRPERSON: The Committee will in due course consider the evidence and make known its decision to counsel and trust that counsel will then convey the decision, you Mr Webster, particularly to the people whom you represent.  Mr Webster, will you also assist Ms Thabethe here, to ascertain whether there were any dependants, who are minors still, who might require any reparation as a result of the killing of their father or a relative of theirs?  You have access to your clients.  It doesn't have to be done just now but at any stage, to be able to place information before the Amnesty Committee to find out if there were any people ...

MR LAX: He has done it.

CHAIRPERSON: You've done it already?  Oh I'm sorry.  Thank you very much.  Alright, we will now adjourn.  Thank you.
HEARING ADJOURNS