Amnesty Hearings — Cape Town — 1999-10-26

MR JAMIE: Now in paragraph 7 of your statement you say that
"I looked behind me and saw the car.  I pointed my gun at the window on the driver's side, I cannot remember whether the driver had rolled down his window or not.  I also did not notice what the driver was doing inside the car.  I saw that there were two people in the front of the car but I did not see whether there were people in the back of the car.  I opened fire and shot the driver."
So it seems from the statement, sir, that there was some delay between you observing the vehicle and opening fire.  Now is that correct or is it as you've testified here today that you turned and fired?

XOLA TEMBINKOSI YEKWANI: What I'm saying is that this R4 rifle had a belt that I used to hang it over my shoulder and when I turned I was looking at the car and at the same time I was lifting up the firearm.  I did all those things at the same time, I did it simultaneously, pointing the firearm at the car and looking at the car at the same time, lifting the firearm, it all happened at once.

MR JAMIE: Isn't it correct that when the driver pulled out to where you were standing he rolled down the window?  Isn't that correct?

XOLA TEMBINKOSI YEKWANI: He did not roll down the window at the time.

MR JAMIE: Are you sure of that?

XOLA TEMBINKOSI YEKWANI: I don't what is it that he was doing in the car because I couldn't see clearly because the light of the vehicle was bright.

MR JAMIE: But now why do you say that he didn't roll down the window at that time when in your statement you said you can't remember whether he'd rolled down the window?  Did you notice anything about the window at all, before you shot?

XOLA TEMBINKOSI YEKWANI: I cannot say that he was not rolling down the window or he was doing just that, but what I'm saying is that I noticed that there were people inside the car but I did not take note of what people were doing inside the car.

MR JAMIE: Were they posing any threat whatsoever to you, the persons inside the vehicle when you opened fire?  Was there any sign that they were threatening you, sir?

XOLA TEMBINKOSI YEKWANI: My assumption when I was told that there was a car behind me, I thought that the people are coming to arrest me or shoot me.

MR JAMIE: Was there any signs, I'll ask the question again, that the people inside were posing a threat to you, inside the vehicle?

XOLA TEMBINKOSI YEKWANI: No, I did not wait for them to move but I just decided to shoot first so that I could get time to take cover and leave the scene, I couldn't wait for them to do anything.

MR JAMIE: When you opened fire they were posing no threat to you, is that correct?

XOLA TEMBINKOSI YEKWANI: Yes they were still inside the car, there was no threat but they were still inside the car.  I don't know what was happening in the car.

MR JAMIE: Now why, sir, were you determined to kill the driver specifically, that's what you say in your statement?  You say in paragraph 8
"I wanted to make sure the driver was killed."
Why did you want to kill the driver?

XOLA TEMBINKOSI YEKWANI: What was on my mind was about the distance from where we were and getting to the squatter camp for cover and I thought if the driver could escape without dying and drive the car and chase us we might be in danger therefore I decided to shoot the driver so that the car could be out of motion.

MR JAMIE: Now just let's test that, sir, you thought, you told us, that that was a car full of policemen, is that correct?  Coming to arrest you or shoot you, is that correct?

XOLA TEMBINKOSI YEKWANI: The car was not full of policemen but I saw only two people occupying the very first seats of the car but I did not check if there was anyone at the back seat of the car.

MR JAMIE: You didn't know how many people were in the car, is that correct?

XOLA TEMBINKOSI YEKWANI: I just saw the two people who were in front.

MR JAMIE: Answer my question, you don't know and didn't know at the time how many people were in the car?

XOLA TEMBINKOSI YEKWANI: Yes I did not know how many people were in the car at the time, the only people that I saw clearly, I saw the driver and the passenger.  I did not know whether there were other people at the back of the car.

MR JAMIE: According to you those could have been policemen in the car and there could have been more than two, is that correct?  Is that correct?

XOLA TEMBINKOSI YEKWANI: Yes I thought that even the police, the driver himself was a policeman and any other person who would be inside, in that car would be a policeman.

MR JAMIE: And there could be more than two, correct?

XOLA TEMBINKOSI YEKWANI: Yes because I did not see at the back.

MR JAMIE: Now if there were policemen in the car and they were coming to arrest you or shoot you they'd all have guns, not so?

XOLA TEMBINKOSI YEKWANI: Yes that is correct.

MR JAMIE: And they'd all be able to shoot you, is that correct?   Is that correct?

XOLA TEMBINKOSI YEKWANI: Yes if they get the opportunity they could have done that.

MR JAMIE: If they are not killed or disabled they'd all be able to shoot at you, correct?

XOLA TEMBINKOSI YEKWANI: Yes that is correct because they would be protecting themselves.

MR JAMIE: Now why under those circumstances was it only your intention to kill the driver, why did you not also make sure that you killed or disable the other passenger that you could see and why did you not make sure that any people in the back were also dead or disabled?

XOLA TEMBINKOSI YEKWANI: I thought I was right because I did not only point at the driver, I tried to shoot at the passenger seat to the person who was occupying that seat.

MR JAMIE: You say you tried to shoot at the person in the passenger seat, how did you do that?  Did you move over to his side of the vehicle?

XOLA TEMBINKOSI YEKWANI: No, I did not move, I only moved the firearm because I started shooting through the driver's window and the windscreen.

MR JAMIE: You started shooting through the driver's window and the windscreen but you didn't move to the passenger side?

XOLA TEMBINKOSI YEKWANI: No I did not get there I was just controlling the firearm to point at that direction.

MR JAMIE: The evidence of Andile Jack who was in the vehicle with Pro Jack will be that when the firing started Pro pushed him under the dash board and covered him with his body?

XOLA TEMBINKOSI YEKWANI: Who pushed him?

MR JAMIE: Pro pushed the passenger, Andile, under the dashboard and covered his body with his own body, with Pro's body?

XOLA TEMBINKOSI YEKWANI: I did not see that happening because I was busy shooting, that's what I was doing.

MR JAMIE: And the boy only suffered superficial wounds, he was grazed by bullets?

XOLA TEMBINKOSI YEKWANI: I cannot say anything about that.

MR JAMIE: Did you not see Pro pushing any other person down?

XOLA TEMBINKOSI YEKWANI: No, when I was shooting I did not see that happening because even the windscreen there would be some flames or sparks rather, sparks on the window when I was shooting therefore I decided to shoot around the car so as to prevent them from getting out of the vehicle.

MR JAMIE: Now let's just understand what your evidence is, were you shooting to kill them or were you shooting to prevent them getting out of the vehicle?

XOLA TEMBINKOSI YEKWANI: I was shooting to kill them and even those who tried to escape they would be hit and be killed because I was sure that if I do not shoot them we would be targets because we were in an open space.

MR JAMIE: Well then you must have been particularly inept because you didn't manage to hit the passenger at all if that was your intention?

XOLA TEMBINKOSI YEKWANI: I can say that was a positive thing to have happened in that scene because it was not my intention to shoot those people as I did not know that they were comrades, I thought they were policemen.  My aim when I was shooting on everyone in that car I was sure that I was shooting at the police.