Amnesty Hearings — Cape Town — 1999-10-27

MR JAMIE: On the evidence that he did give and the contents of his statement, that is what he is saying.  The only people, because if I can just read to you what he is saying in his statement, he said in paragraphs 7 and 8
"At the stop street I heard someone calling out Pro's name.  They called him Mzwonke.  Pro wound down his window and reversed the car towards two men who were standing under the trees on the Lansdowne Road side of First Avenue, approximately 10 metres from the stop street."
Now one of the reasons, Mr Chairperson, that I requested yesterday an opportunity to perhaps conduct an inspection in loco is that the area that we are talking about where this incident occurred, is not very large.  The area between First Avenue where they were driving and Lansdowne Road, and certainly the area between the trees where these people were standing and the stop street is not very long at all, there's not a great distance and it is our submission that clearly what this statement intends saying although it's not spelled out perhaps because it is indeed implicit, is that the people who called him were his killers.  Now that was also the basis whereupon certainly we proceeded in this matter and it, with respect, is also the basis the applicant proceeded on, because the applicant never suggested it was someone else, nor did the applicant's representative in argument attempt to suggest that till, with respect, the Members of the Committee put it to him that this was a possible ...(indistinct) in the case, but at the end of the day, Mr Chairperson, perhaps if this was a civil trial and there were issues of onus and if the Jack Family in this matter bore some sort of onus, there might be perhaps some room, but as a fundamental proposition, the difficulty we've got is that it was simply never put to Andile and therefore he's never had an opportunity to deal with it.

CHAIRPERSON: Yes and the question is, I mean if he had testified as a matter of fact that the attackers called out, then one assumes that there would have been some joining of issue on that particular aspect of his evidence, but there certainly doesn't seem to have been that sort of evidence on his part and perhaps it's understandable, you know when you drive between 9 and 10 o'clock at night in a misty situation, your windows are closed and you hear people calling, you can't be certain about that.

MR JAMIE: Mr Chairperson, with great respect, if I can just respond to that.  The evidence is clearly, he did not say in terms and perhaps he is to be commended more than faulted for this, that he didn't say in terms the attackers called out, because that would perhaps have been a deduction and an inference, but my submission is that even though he did not say that, that is clearly the purport of his evidence, it's clearly the intention and it is clearly his understanding.  In the dark at a distance of 10 metres, you may well not be able to see the mouth of the person moving who is calling but you can certainly get an idea of the direction from which the calling is coming.  That was never suggested, that when they drove toward the killers, either Pro or Andile thought:  "Well, we're not driving toward the people who called."  Obviously and I say this as a matter not of evidence, but as a matter of logic again, the persons who called, the voices came from the side of the car in which they drove, so in other words it came from the right.  It couldn't have come from the left.  It would then be totally illogical that they reverse and drive to the right to go and respond to the call.  So the voices must have come, or the voice from the right.  Now if you accept that, Mr Chairperson, which in my submission it must be accepted, then it begs the question, if this was some other people unconnected with the killers, where were they?  Were they beyond the killers, in which event why would they have called and why would they have not gotten involved, or not seen what happened?  They obviously would have known Pro Jack, if they were calling him by name.  But all I'm saying, Mr Chairperson, is we're totally in the realm of speculation and there is simply no evidence and the crucial aspect upon which that entire conjecture falls down is that there are no other people.  It's not suggested by the applicant, or his attorney, or anyone else, who gave evidence in this matter, it certainly was not stated by Andile that there was anyone else on the scene.  Now if there was no-one else on the scene, the possibility that it could be someone else can't be excluded, you're quite correct, but that is not the test, Mr Chairperson, the test in this matter is whether you are satisfied and the correct standard of proof, in our submission, is a balance of probabilities and that is a balance that will be considered and the decision will be made on the evidence, not on speculation and although, if this was a criminal case and I was a prosecutor, it may be said that I have not proved my case beyond reasonable doubt, I would submit, Mr Chairperson, that if this was a civil trial and I was the plaintiff's attorney or advocate, I would have gone a long way to proving my case on a balance of probabilities because there is no contrary suggestion and there never was, but I think I've said what I can say on that topic unless there's something that you need to ask me.

CHAIRPERSON: Yes and we've noted your submission in that regard.  In fact the point, as I understand it, that turns on this question is whether or not this is an assassination?

MR JAMIE: That's correct.

CHAIRPERSON: This was a hit and that's where all of the other considerations that my colleague had alluded to, come into play and of course one has to assess this particular issue in the light of all that, because ...(intervention)

MR JAMIE: You do.  You have to, Mr Chairman.

CHAIRPERSON: Because if indeed it was the assassins that, as part of their plan, called out Mr Jack's name, then of course it tends to support a conclusion that this was in fact a hit, it's a pre-planned attack on Mr Jack and not an accidental sort of a killing.