Amnesty Hearings — Durban — 2000-01-17

UNKNOWN: (Cont)
	Mr Chairman at the adjournment we were just discussing the issue of the cross-examination of Mr Webster in regard to the wounds and we made some references to the record and the point about all of this, Mr Chairman, was that it was asked of Mr Botha, in an attempt to show that he did not make himself guilty of any offence and in that process, Mr Chairman, the question of a helicopter came up.  Now that we knew beforehand, before the trial started, there was some suggestion and I just want to give you the references to the record.  First in his evidence-in-chief, at page 489 at line 17, Botha dealt with the helicopter, denying that there was a helicopter and then, Mr Chairman, at page 569 in the cross-examination of Mr Webster, dealing exactly with the wounds 1, 2 and 3 on Exhibit E15 and 16, as depicted on E17, which I referred you to earlier and then Mr Chairman, the other references are page 574 of Botha's evidence, in the middle of the page from line 10 to 14,  again at page 587, Mr Chairman, where it was put that the helicopter was there and shots at the occupants of the car were fired from the helicopter.  Again at page 624, that's in the evidence of Steyn, in his evidence-in-chief and cross-examination of - I'm sorry Mr Chairman, I must point out to you that Mr Steyn in fact told you that when he heard about the allegations of a helicopter being there, that he made inquiries and he was told that there wasn't a helicopter available in Durban at the time.  Chairperson, then in Wasserman's evidence, you will find the references at page 685, at the top in his evidence-in-chief and again 686 where he talks about Breytenbach and then lastly, Chairperson, at page 745 where Mr Webster asked for a postponement on the last occasion, it was in order for him to call Breytenbach in order to show that there was a helicopter.  Now you've got Exhibit J in front of you, that is the statement, affidavit made by Breytenbach and in paragraph 14, the very last paragraph of that statement, Chairperson, he says:
"Ek is nie bewus van enige helikopter wat tydens die insident by die toneel verteenwoordig was nie."
So in point of fact, not only did Breytenbach not only appear before you to contradict the applicants, but he in fact supports them, that there was no helicopter.  
	Now Chairperson, to summarise thus far:  two propositions were put to Botha.  One, that he must have shot and hit some of the occupants, on the wounds that my learned friend Mr Webster suggested and " ... contraire", that he couldn't have hit any of the occupants because the wounds indicated that the entry wounds did not come from the left.  With respect, Mr Chairman, as you yourself put it to Mr Webster, we're in the realms of speculation, unless we have expert evidence to tell us exactly how and unless we knew exactly what the position of the bodies were when the shots struck the bodies, nothing further can be made of it.  You will recall that you put to Mr Webster the situation was not frozen, it was a situation that was changing, shots were fired and it's quite acceptable to assume that the bodies of those occupants of the car would not have remained stagnant.
	Now Chairperson, with great respect, on both counts, on whether Botha and the rest of the applicants made a full disclosure and on the question of whether an offence was committed or not, we submit that you will be satisfied that the applicants complied with the provisions of the Act and that you will be satisfied that they in fact did present evidence to you of a full and a frank nature and did make a full disclosure.  
	Mr Chairman, just on this point of shots coming from a helicopter, you will also recall that during the hearing on the last occasion, Mr Webster made a point of telling you that he's also attempting to trace the owner of the car, the Cressida, in order to discover what had happened to the car and to see whether there were shots through the roof of the car that could have come only from a helicopter and we've heard nothing further of that until this morning when Mrs Mbasa gave evidence to say that she actually, or her sister probably knows, as I understand her evidence, who this person was and again we ask you to assume then and accept that there can be no such evidence presented to you that shots came through the roof of the car.
	Chairperson, my learned friend then suggested to Botha, and it would equally apply to Wasserman, we submit, that they obeyed unlawful orders and that there was no excuse in obeying an unlawful order.  Well, Chairperson, we hope that you will agree with us that the whole amnesty process deals with unlawful conduct and in fact Chairperson, we have dealt with that some time ago and again in the written argument in the Cele matter under the heading - let me just see whether we did deal with it - Execution of illegal orders at page 37, Chairperson.

CHAIRPERSON: This is Exhibit A?

MR VISSER: No, it's not an exhibit, it's the written Heads which we handed up to you.

CHAIRPERSON: Oh, I beg your pardon.

MR VISSER: Yes.  At page 37, where we deal with Rapolo's case, the Judgment of Justice van Dijkhorst, where he stated that in the case of the Indemnity Act that - well perhaps I should just read an extract to you from page 37 of our Heads, at page 686 and 687 of the Judgment by Justice van Dijkhorst
"The situation whether the acts were committed in execution of an order or with the approval of the ANC, was answered by the Committee with reference to authority, that a private soldier is protected from liability for acts done in obedience to the orders of a superior officer"
and we emphasise, 
"If the orders are not so manifestly illegal that the soldier must or ought to have known them to be so and if the soldier honestly believes that he is doing his duty in obeying them,"
then says Justice van Dijkhorst, 
"This reasoning in my respectful view misses the point.  Guideline 7 cannot be read as if it referred to lawful orders only."
And we say, Chairperson, it's exactly the same because this also dealt with the conflict of the past, only from the point of view of the ANC, but we say in the amnesty process we are dealing here with not a question of obeying lawful orders, but unlawful conduct per se.
	Chairperson, that deals, in our submission, with that aspect ...(end of tape) ... which is to be inferred from similarities in Exhibits B, C and D and Chairperson in that regard, we only wish to refer to the argument which we also previously presented and which is also in the Heads at page 61, which deals with the application and when the relevant time is when it is expected of an applicant to make his full disclosure and at page 62 to the Judgment of Justice Price in M G HOLMES vs NATIONAL TRANSPORT COMMISSION, where he makes it quite clear Chairperson that the time when the applicant moves his application in court or before the Commission, is the time when he must make a full disclosure of his evidence and Chairperson, I daresay that argument has been followed, has been accepted by the Committee and followed.
	 In fact Chairperson, one would be surprised if there weren't similarities because they're talking about the same incident and one would expect similarities.

CHAIRPERSON: They would each be liable for offences committed by their colleagues because it's quite clearly an incident where each of the applicants was not out to do something on his own, he was making common cause with his colleagues and even with those who were in the vehicles that followed behind them.

MR VISSER: Yes.

CHAIRPERSON: So if the people in the car died as a result of bullets emanating from those other cars and not from the applicants, that doesn't free the applicants of liability.