Amnesty Hearings — Durban — 1999-06-24

ADV DE JAGER: The trouble is they've killed 6 other people but they didn't kill the target, the target being the driver and they don't know what happened to the driver.  He got out of the vehicle, ran away and they're not aware of it.

MR SARDIWALLA: Chairperson, yes, but the point here is that when he shot and they stopped at the point when they were satisfied that the driver was in fact killed and not only the driver, but Makeke was killed.  That was his evidence.  He said that he was satisfied and that's when they ran off.  They had done their job.  One can argue now, having the benefit of hindsight, that surely you should have gone and opened the door and checked whether Makeke was there, or shone a torch before, come closer to check whether it was Makeke or somebody else, but that has all other ramifications in that situation, in a war situation literally between parties.  One must put yourself in the shoes of the applicant at the time.

MR MALAN: May I just ask one last question?  I can understand that one needs to look at the different perspectives.  Are you suggesting we should totally disregard all evidence by Kuala?  The question was put to you in the beginning, what might a possible motive be?   You simply said speculation.  But we have that evidence too before us at the moment and that's basically not contested by the applicant, except it's traversed by his own version in a sense.  But all the evidence is before us, if we are to disregard the inconsistencies there, what do we make of the other evidence which still stands?

MR SARDIWALLA: When one looks at the court record and the Judge's views on the evidence, we must remember that Kuala at the particular time was, we said, 14 years of age...(intervention)

ADV DE JAGER: But we can't look at the Judgment because, according to your client, it's totally wrong.

MR SARDIWALLA: Yes, well, wrong as far as the identities of the person are concerned, but if one looks at the evidence led on the other aspects, and I've alluded to that, if one looks at the factual evidence of how the incident, what happened prior and the locality of the incident, it all seems to tie in, if one looks at that aspect.  But let's deal with the aspect of Kuala's evidence per se.  That's the question I am told that I must deal with.
	The crucial aspect of Kuala's evidence that has been led today deals with identity in my mind.

MR MALAN: No, that's not my problem.  I told you earlier identity is not my problem.

MR SARDIWALLA: I'm not finished with that.

MR MALAN: Sorry.

MR SARDIWALLA: One aspect is identity.  The crucial aspect is identity and the second is the fact that the children were shot at close to the bakkie, whilst they were running.  Now I've responded to those Chairperson and Members of the Committee, I've responded to those.  I said that as far as the identity aspect is concerned, I believe one cannot accept his evidence.  As far as the question of the kids being shot is concerned, what is clear is that my client didn't do it, the applicant didn't do it.  What is possible, and I'm repeating what I said before, that it may be that whilst he was running off, and we don't have that evidence, that one of the others may have gone through to the vehicle and shot them.  Now I mean, we can speculate a dozen things, but in my client's mind, he went off and that evidence is not even challenged.

MR MALAN: May I just ask this last question then I'll leave you be on this?  Was your client's evidence not that they all shot for about 1 to 2 minutes and that they all retreated and fled then?  He did not say that some stayed behind and he fled of his own.

MR SARDIWALLA: Yes, in his mind, that was his evidence, that's correct.  In his mind they all ran off, but I'm saying the probabilities are that one of them could have, may well have for a moment or two, gone to the vehicle.

CHAIRPERSON: Why should we rely on probabilities when we have got direct evidence on that issue?  I mean we have the evidence of Mr Zulu in this regard.  The firing took place simultaneously which lasted for a minute or two and immediately thereafter they all fled.  Why should we go elsewhere other than from the direct evidence that's presented before us on that aspect?  We can't go outside, if we have direct evidence from the applicant.

MR SARDIWALLA: No, I accept that, I accept that.  Maybe I must, I concede that that is the view that the Chairperson must take as far as that is concerned.  That's the direct view of the applicant and it's really for the Committee to decide to what extent it's going to rely on Kuala's evidence and the probabilities, given the circumstances at the time.

CHAIRPERSON: And given the direct evidence given by your client, which seems to be presenting you with a slight difficulty.

MR SARDIWALLA: I accept that, I accept that.

CHAIRPERSON: Thank you very much, Mr Sardiwalla, for the assistance, the invaluable assistance, may I qualify, that you've rendered to this Committee.  We sincerely thank you.

CHAIRPERSON: Ms Thabethe.

MR SARDIWALLA: Chairperson, it's been really a privilege to appear before yourself and the Commission.  I wish you all the luck in the future in so far as your matters are concerned.

CHAIRPERSON: Thank you.  Ms Thabethe.

MS THABETHE: Thank you Madam Chair.  That concludes this matter.
	I would request the Committee Members, due to time, to strike some few matters off the roll because the way we are running, I foresee that if we start a matter, a fresh matter tomorrow, we might not finish it and it will be a part-heard.  I would therefore request that the matter of Vincent Nene be struck off.  It was supposed to be heard on Tuesday.  The matters of Magwaza ...(intervention)

CHAIRPERSON: Can you give the applicant's name as well as the application number?

MS THABETHE: Certainly, Madam Chair.  Mcebo Vincent Nene, reference number 5629/97, he's not in prison.  The second one is Humphrey Phakade Magwaza, reference number 6613/97, he's also not in prison.  Also the matters of Tobias Ronnie Mbanjwa, reference number 5967/97, he's also not in prison.  The last one of Sakhamuzi Harale Elvis Ndaba, reference number 6387/97, he is also not in jail.  Thank you Madam Chair.

CHAIRPERSON: Thank you Ms Thabethe.  The matters called out by Ms Thabethe are accordingly struck off the roll.  This brings us to the end of our proceedings here in Durban.  We wish to extend our warmest gratitude to all the people who made it possible for us to hold this hearing.  Our logistic officer Joe Japhta, the media people, the public, the members of the public, the legal representatives who assisted this Committee representing different applicants in different applications, the interpreters who are always faced with the difficult task of trying to interpret at ground breaking speed and our technician.  I see that we no longer have our cameraman.  Our gratitude to you all.
	We also have to record Ms Thabethe that the matter of Mr Ngomezulu and Mr Ngcobo have been postponed sine die.  This brings us to the close of these proceedings.  Goodbye to you all.

MS THABETHE: As the Committee pleases.
HEARING ADJOURNS