CHAIRPERSON: You are reminded that you are still under your
formal oath.
FRANCISCO CERQUEIRA: (s.u.o)
CHAIRPERSON: Mr Arendse?
CROSS-EXAMINATION BY ADV ARENDSE: (cont)
Thank you Mr Chairman. Good Morning Mr Cerqueira.
MR CERQUEIRA: Good morning Sir.
ADV ARENDSE: Mr Cerqueira, yesterday at the outset I said to
you and I just want to repeat that today, that what happened that
evening, cannot be defended, it is indefensible, the killings of
everybody in that Tavern and the killing of your brother, constitutes
a gross human rights violation, there is no argument about that, so I
don't have any fight with you about that.
So, just in terms of the necessary sensitivity which this matter
and which this process warrants, I just want to assure you of that.
MR CERQUEIRA: I appreciate that.
ADV ARENDSE: But you will also appreciate that we need to get
as full a picture as possible of what happened there and at times,
you know, I am going to put things to you which you know, which
obviously you may not agree with and which you may not like, but
like with everyone else, I've got a job to do.
MR CERQUEIRA: Okay.
ADV ARENDSE: Now one of the things I put to you yesterday,
which may have caused some consternation or which may have upset
you, is the suggestion that you may not have been there.
Now, none of us and I am sure Mr Prior will also tell you
that, we as lawyers we cannot make suggestions to you if we don't
have some basis for making them. If they are purely speculative or
unfounded, then we are out of order and I am sure that the Chairman
will come to your assistance or will rebuke me if I do that.
So yesterday's suggestion from me comes out of the summary
of the evidence that the Judge made in the criminal trial. And that
comes from Mr Brode's evidence. Mr Brode, I read back to you that
he said he was there, Mr Cerqueira's wife was there I think and some
other waiter, he never mentioned your name. That is where it comes
from.
MR CERQUEIRA: Did he mention Mr Cerqueira's wife was there?
ADV ARENDSE: Sorry, let me just get it. It is on page 46. He
said and you understand Afrikaans - from line 22 Mr Chairman - he,
with Jose Cerqueira and his wife as well as another waiter stayed
behind after all the guests left the restaurant at about quarter past
eleven.
MR CERQUEIRA: Well, Sir, there seems to be a little bit of a
misunderstanding. Whoever gave you that statement, my brother's
wife was not in the restaurant at the time of the shooting.
ADV ARENDSE: Okay, so Mr Brode made a mistake, it is not
Jose's wife, it was you?
MR CERQUEIRA: I don't know how he made that mistake, but I
don't want to sound funny, but I don't look like a woman for
starters, and she is definitely very much a woman. She was
definitely not there, Sir.
ADV ARENDSE: So, you know, as far as we are concerned, we
accept that you were there, we don't have a problem with that.
MR CERQUEIRA: Thank you.
MR PRIOR: Mr Chairman, may I be of some assistance. I don't
want to interject unnecessary, but the statement of Brode or
submissions of Brode on page 73 of the witness' bundle, which was
supplied to the legal representative where he describes the incident
in that statement, maybe that may assist my learned friend.
The middle paragraph, under the heading "The incident".
ADV ARENDSE: Thank you. I have just indicated that it was not
in issue that Mr Cerqueira was at the scene. Mr Cerqueira, just
going back to what you said then yesterday, all this happened very
quickly?
MR CERQUEIRA: Yes.
ADV ARENDSE: We are talking about the matter of a couple of
minutes at most?
MR CERQUEIRA: The time seemed like an hour to me, but it was
very quick.
ADV ARENDSE: Yes, yes. When you came out of the restaurant
the first time, did you observe anyone else or anything else in the
vicinity of the corner there where you were at, at the corner of
Lower Main Road and Station Road or in Station Road itself?
MR CERQUEIRA: No, when I came out, Mr Brode was standing
on the corner in front of me and then the other waiter that worked
for us, came and stood with us. That is the first observation of any
person around me, if you are talking about people.
ADV ARENDSE: And the second time you came out, did you
observe anything or anyone?
MR CERQUEIRA: There was no second time. It was the first time
I came out before the shots had been fired at us. I came out onto
the pavement.
ADV ARENDSE: Yes.
MR CERQUEIRA: The two gentlemen I mentioned was standing
there, we looked up and the car was coming down.
ADV ARENDSE: But didn't you say you went back in after that?
MR CERQUEIRA: When they started shooting at us, yes, I ran
back in, I dragged Mr Brode in. We struggled through the door and
then I came out. After - like I mentioned to you yesterday - after
going over the counter, looking for the gun, shouting for my
brother, then I came out and he was lying on the pavement.
ADV ARENDSE: Okay, that is the second time?
MR CERQUEIRA: That is the second time.
ADV ARENDSE: Okay, now the first time, apart from seeing Mr
Brode and the other waiter there on the pavement, and you dragging
Mr Brode in, you didn't see anything else or anyone else?
MR CERQUEIRA: I am not sure what you are asking me.
ADV ARENDSE: No, I mean did you see another vehicle?
MR CERQUEIRA: Are you talking about when I was inside the
restaurant or outside or ... (intervention)
ADV ARENDSE: No, when you came out?
MR CERQUEIRA: When I came out?
ADV ARENDSE: Yes, you came out now twice, okay, we know
that.
MR CERQUEIRA: I came out once first, I saw the two gentlemen
standing there. I looked up and I saw one vehicle coming down. I
didn't notice any other vehicle. And when the shots were being fired
at me, believe you me, I didn't notice anything else, I just noticed
to get out of there.
ADV ARENDSE: I understood you to say yesterday, that you came
out a first time and you saw what you called a heavy laden vehicle.
MR CERQUEIRA: No Sir.
ADV ARENDSE: Move up against the one way?
MR CERQUEIRA: Mr Arendse, I think you are a little bit mistaken
there. What I said yesterday was that when I was inside the
restaurant, the car - I noticed the car, if I turned to the door, I
noticed a car driving, slow down. While I was sitting in the
restaurant.
ADV ARENDSE: Okay, okay, that is fine. Then I was mistaken.
MR CERQUEIRA: Okay, Sir.
ADV ARENDSE: But you then only came out twice? Once ...
MR CERQUEIRA: Once to find out what the popping sounds were
about and then when I ran in, then I came out - looking for my
brother.
ADV ARENDSE: And then when you observed this vehicle again,
it was now coming in your direction?
MR CERQUEIRA: Correct.
ADV ARENDSE: Whereas when you were sitting ...
MR CERQUEIRA: In the opposite direction.
ADV ARENDSE: Yes, when you were sitting in the restaurant, you
saw it going that way?
MR CERQUEIRA: Going up.
ADV ARENDSE: And that was a matter of minutes?
MR CERQUEIRA: Yes, Sir.
ADV ARENDSE: The interim?
MR CERQUEIRA: Yes, Sir.
ADV ARENDSE: Now, when you came out the second time, did
you observe any other vehicle or any other persons in the street?
MR CERQUEIRA: No, Sir. At the time there was so much fear
and so much confusion, I was only concerned for my brother and I
went straight onto the pavement where my brother was.
ADV ARENDSE: Okay.
MR CERQUEIRA: He was actually in the gutter, not on the
pavement. That is the second time when I came out.
ADV ARENDSE: Okay. Now, the first time you went out and you
pulled Mr Brode in, what did you see?
MR CERQUEIRA: The first time when I went out and pulled Mr
Brode in?
ADV ARENDSE: When you went out and pulled Brode in, yes?
MR CERQUEIRA: I went out, I saw Mr Brode standing there with
the waiter and then the gunshots were being fired at us. I looked
up, it was the same vehicle. It looked to me like the same vehicle,
the same dark vehicle, I can't put a colour to it, it was coming down
in the opposite direction.
The same type of vehicle, the nose was up in the air, like this
and the people were firing at us. That is the second time I went out.
I dragged Mr Brode in because he froze in the doorway, he had
been shot in the leg and against the wall, the first shots hit the wall.
That's when I dragged him in with fear, I went through.
ADV ARENDSE: Did you see anyone in front of the Tavern?
MR CERQUEIRA: In front of my Tavern?
ADV ARENDSE: No, in front of the Heidelberg Tavern when you
... (intervention)
MR CERQUEIRA: Did I see anybody?
ADV ARENDSE: Yes?
MR CERQUEIRA: I can't say I did. I can't say I did.
ADV ARENDSE: You were looking at the car because shots were
coming from the car?
MR CERQUEIRA: Correct Sir.
ADV ARENDSE: You were focused on the car?
MR CERQUEIRA: I was focused on the car.
ADV ARENDSE: Okay.
MR CERQUEIRA: Mr Arendse, in circumstances like that when
you are being shot at, there is not many things that you can observe,
other than look out for your safety. And I was looking out for Mr
Brode's safety as well.
ADV ARENDSE: Yes. No, I understand. Now, so at which point
then did you, you said yesterday that you saw someone at - it
sounded to me that someone sitting at the back, firing at that side of
the road, or firing towards the opposite side of the Heidelberg
Tavern and Machados?
MR CERQUEIRA: When I came out and stood with Mr Brode
before they started shooting at us, the shots of gun and I saw the
one barrel being stuck out, sort of out of the roof like this, and the
person's head from the back.
And then another guy on the right hand side of the car, sorry
the left hand side of the car, shooting towards us. They weren't
shooting direct at us at first, they were shooting like sort of at an
angle straight at the wall. And then the guy turned the gun on us
and started shooting, that is when I grabbed and ran inside.
ADV ARENDSE: Yes.
MR CERQUEIRA: The car was travelling very, very slowly.
ADV ARENDSE: Yes. Maybe I can tell you that there was
someone on the corner of Lower Main Road and Station Road. It
seems that more or less the same time that you observed what
happened.
I will read to you from page 45 of the record and page 46 Mr
Chairman, from lines 22 onwards. An employee of the Cape Town
City Council, John Jacobs, was on duty that Thursday evening of the
30th of December 1993. He was patrolling the streets to see
whether all the street lights were burning. He and a colleague were
driving alone Lower Main Road in Observatory from north to south.
As they arrived at the corner of Lower Main Road and Station
Road, they heard sounds like gun fire or fire crackers and saw three
men emerge. Since they wanted to turn into Station Road, they saw
three men in a car, against the one way, in Station Road, driving in
their direction. They were then forced to wait for this motor
vehicle. Mr Jacobs heard gun shots at the very moment when
someone emerged from the door of the facility on the corner of
Station Road and Lower Main Road. He saw the end of a rifle
sticking slightly out of the back passenger window of the vehicle. It
was clear to him that someone was firing from the motor vehicle at
this person. He had fallen flat in his motor vehicle and then when he
lifted his head again, he saw the person who had emerged from the
door of the corner facility lying in the storm water drain in Station
Road.
Now, that version doesn't exactly correspond with what you
observed, do you agree with that?
MR PRIOR: With respect, that is not so and I must object. In the
summary given by the learned Judge it is connected by the witness
Jacobs to the firearm he sees protruding, or the barrel he sees
protruding out of the vehicle. He links that firing with that firearm.
He doesn't say that the man who was shot at, was in fact firing.
CHAIRPERSON: Is that so, Mr Arendse?
ADV ARENDSE: Mr Chairman, can the witness just comment. It
is not a trick question. I have just read to him what Mr Jacobs said
and I am asking him whether that corresponds with what he has told
us. That is all, I have made no suggestions or allegations that shots
may have been fired from the person on the corner, and this would
have been your brother Mr Cerqueira. I made no suggestions. I am
just asking for your comment.
CHAIRPERSON: I want you to know that what Counsel has read
out to you, is the Judge's summary of the evidence that was led
before him on this aspect of the matter. Do you understand?
MR CERQUEIRA: Sure.
CHAIRPERSON: And you are invited to comment on that passage
that has been read to you.
MR CERQUEIRA: I have got no comment Sir.
ADV ARENDSE: Thank you. Now, just on the issue of the gun,
your brother's gun in this case. Is it correct, you can't tell us apart
from saying to us that the Police, or a policeman looked at the gun
and said that no shots were fired out of the gun, you cannot say
under oath whether or not your brother fired a shot or shots at any
of the Heidelberg attackers?
JUDGE WILSON: He has said under oath that his brother didn't
have a gun. That he went to where his brother's body was, and he
didn't have a gun. Hasn't he, isn't that the evidence he gave
yesterday?
ADV ARENDSE: No, I didn't understand it to be that clear Judge,
with respect. What we heard yesterday and Mr Cerqueira is here to
correct me, is that some time afterwards, it may have been five to
ten minutes after the late Mr Cerqueira was picked up from the
pavement, Mr Brode produced the gun to the Police.
MR CERQUEIRA: No Sir.
ADV ARENDSE: His evidence was that he picked up this bag on
the pavement.
JUDGE WILSON: His evidence was he went to his brother how
was shot under the left arm. He had no firearm, he had a bag in his
hand. Wasn't that your evidence yesterday?
MR CERQUEIRA: That is correct.
ADV ARENDSE: Mr Cerqueira, did you see a gun? Did you see
your brother's gun?
MR CERQUEIRA: Mr Arendse, like I've just told you, like the
Judge has told you, I didn't see no gun. When I got to my brother's
body, he was lying there, he was choking in his blood. I found the
pouch that I produced yesterday next to his body and there was no
gun there. The gun was later given to me by Mr Brode, to my hand.
I held it in my hand. The Police arrived, asked me if there was
shots being fired by the same gun, I said no, please check it.
The Policeman checked it, took it, gave it to another
Policeman, he made a statement which I didn't. I didn't make any
statement, he made some sort of statement. He wrote on the thing
and they took the gun. I don't know what happened to the gun
afterwards to be quite honest with you.
ADV ARENDSE: Yesterday I read Mr Brode's, the summary of his
evidence to you. Do you remember that?
MR CERQUEIRA: I do remember Sir.
ADV ARENDSE: And he mentioned nothing about the pouch or
the bag which you produced here?
MR CERQUEIRA: Or the gun?
ADV ARENDSE: Well, he spoke about the gun and I recall saying
it is unfortunate that it is just left at where he said and I quote on
page 47 on the top. "He called to Cerqueira to take his firearm in
hand which he kept behind the bar counter. He then realised that
Cerqueira was not in the restaurant.
That is all he says about the gun.
MR CERQUEIRA: He is quite correct, that is what he did. He
went in shouting with me, we were both shouting for the gun. I
shouted at Mr Brode, get Joe, get my brother and he was shouting
for my brother as well. That is quite correct.
ADV ARENDSE: So is it unreasonable to infer from what one
reads there, that your brother may have left with the gun or that
when he looked under the counter, there was no gun, you brother
wasn't there and he had run out with the gun?
MR CERQUEIRA: Mr Arendse, isn't it also reasonable to believe if
one had a gun in his hand and he is being shot and he is dying on the
pavement, that the gun would be lying next to him? I found no gun
next to him.
ADV ARENDSE: Someone else may have picked up the gun? Mr
Brode may have picked up the gun. How do you know that he didn't
pick up the gun?
MR CERQUEIRA: Mr Brode got to the body after me, I was there
first. I got to the body, my brother was lying there, choking in his
blood. Mr Brode came up to me and asked me is he gone? What's
wrong and he sat on the pavement, put his head in his hands and he
started crying.
ADV ARENDSE: Now, unfortunately Mr Brode had already made a
mistake by mentioning Mr Jose Cerqueira's wife, but is he also
making a mistake by not - if obviously assuming the Judge's
summary is correct - is he making another mistake by not mentioning
that you were there first - by not mentioning you at all?
One gets the impression from reading this that he was the only
one who got to your brother, picked him up, held his head in his
arms. He doesn't mention you at all?
MR CERQUEIRA: Sir, with due respect to the statement you've
got there. That you will have to ask Mr Brode. Like I mentioned to
you, I was there first and Mr Brode came afterwards.
ADV ARENDSE: Yes.
MR CERQUEIRA: And my sister in law was definitely not in the
restaurant at any time during the shooting, or before the shooting.
ADV ARENDSE: Yes. You see, I am referring to page 73 Mr
Chairman, of the second bundle where we have Mr Brode's
statement. I am not sure what day it was made, but it seems to be
the 22nd of October 1997. And I will just read to you again what he
says.
I am reading from paragraph three, the sub-heading "the
incident". I had been on duty at Machados restaurant on the night
of 30 December 1993, when the incident in question took place.
The restaurant had been quite full that evening, being the festive
season and everyone was in a jolly mood.
After the restaurant had closed, the owner Joe Cerqueira, his
brother and another colleague whose name I can't remember, had
been clearing the restaurant and set about preparing the restaurant
for the next day's business when we heard what we assumed was a
car backfiring in the road outside. This sound continued and we
thought it may also be the sound of fireworks thrown by some
partygoers outside.
I was the first to walk out of the restaurant to investigate and
was followed by my colleagues. I saw individuals coming out of the
Heidelberg Tavern, which is located next to Machados restaurant.
They were making their way to a dark coloured car. I saw what I
again thought was flares or fireworks and then noticed these
individuals were firing automatic machine gun fire in all directions.
Once they spotted me and my colleagues, they fired in our
direction. In the resulting confusion, we pushed our way back into
the restaurant and took cover as best we could. I remember lying
flat on the floor of the restaurant.
On page 74 at the top - once the firing had stopped, I ran out
of the restaurant, it was at this stage that I saw the deceased, Joe
Cerqueira lying, dying in the gutter. He had been shot in the chest.
The result was complete mayhem as people ran around in shock,
shouting for help. It was only at this stage, when I knelt down next
to the deceased, that I realised that I had been shot in the leg.
My thoughts at that stage were about Joe Cerqueira and I
remember thinking Joe, you can't die now. The exact details of what
happened after that, are not clear to me.
So, in that statement too, he doesn't mention you specifically,
although he may have meant when he said once they, that is now the
... (intervention)
JUDGE WILSON: What about his brother? Is that not this
witness?
ADV ARENDSE: If you can't just give me a chance to finish, I am
just going to clear that up now?
JUDGE WILSON: You started by saying he does not mention you
specifically.
ADV ARENDSE: That is right.
JUDGE WILSON: You don't think that is correct?
ADV ARENDSE: That is right, he doesn't mention him specifically
and I am trying to clear that up by saying that he must mean that his
colleagues, he was clearly referring to the people who were with him
- his brother and another colleague.
So he must have meant that you were in that same group when
he says the firing was at you and his colleagues?
MR CERQUEIRA: Well, he mentions brother, so I am his brother
and colleagues. There were other colleagues, which was Michael,
which was the waiter that I mentioned before. Yes, I would say so.
ADV ARENDSE: Well, it is just that from what you are saying,
you appear to play a leading role, you went outside, you pulled Mr
Brode in.
MR CERQUEIRA: I did.
ADV ARENDSE: You went back outside, you went to your brother
first?
MR CERQUEIRA: Yes.
ADV ARENDSE: Now, I am just asking, one would have thought
that Brode would mention these things.
MR CERQUEIRA: I don't know Sir, you would have to ask Mr
Brode. I am telling you like it is, you are asking me the questions, I
am giving it to you.
ADV ARENDSE: Fine.
MR CERQUEIRA: And if Mr Brode's statement seems wrong to
you, you would have to ask Mr Brode.
ADV ARENDSE: Yes, now do you respect what I am just putting
to you, it is not what I am saying because clearly I wasn't there. I
am just reading to you what is in the documents before us?
MR CERQUEIRA: Sure, I do that, but you seem to be battering me
all the time about Mr Brode's statement. I am not here about Mr
Brode, I am here about my brother and I am giving you, like you've
asked the truth, I am telling you how I saw it. I am telling you that
is the story.
If Mr Brode has got something different in that statement, I
am sorry Sir, but you would have to ask Mr Brode. I wasn't there
when Mr Brode gave the statement, I am telling you like it is when I
was there, and I was definitely there. Because as you've mentioned
in your statement, I am glad you brought it up about the brother and
colleagues, because I am very much his brother.
MR PRIOR: Mr Chairman, with respect, it is difficult - the way in
which my learned friend asks the questions, he wants the witness to
answer a question how another witness or why another witness said
certain things in his statement and that is within the peculiar
knowledge of that other witness.
Mr Brode will be called and he obviously will answer
questions on the differences between the evidence.
CHAIRPERSON: Unless Mr Arendse is going to suggest that this
witness was not there, you see.
MR PRIOR: Yes, Mr Chairman and or fabricating his evidence I
don't know.
CHAIRPERSON: Well, fabricating or not but unless Mr Arendse is
going to suggest to him, look you were not there.
MR PRIOR: Well, then that is a valid question.
ADV ARENDSE: Well, it must also surely be valid if there are two
people who said they were at a particular scene, that you can put the
one person's version to a witness. I mean, am I not doing that?
CHAIRPERSON: You can put that to him, but you can't ask him
why did the other chap not mention your name, that is going too far.
ADV ARENDSE: Mr Cerqueira, you were not here from the
beginning of these proceedings and you were not here when Mr
Gqomfa, that is the applicant on your far right, was giving his
evidence?
MR CERQUEIRA: No, I was not here.
ADV ARENDSE: Okay. Now, I am not sure whether Mr Brode
was here all the time. But Mr Gqomfa said that after he got into the
vehicle, he was one of the attackers, he heard shots fired in his
direction and he responded by shooting in the direction where the
shots came from and at no stage was he challenged on that
statement.
MR PRIOR: With respect, Mr Chairman, I have a recollection that
it was put to the applicant that he wasn't fired at. And I speak
under correction.
ADV ARENDSE: I think we need to find that, it was never put to
Mr Gqomfa that ... (intervention)
CHAIRPERSON: You can find that, but put your question
nevertheless.
ADV ARENDSE: I am just putting it, I think it is important then to
clear this up because Mr Brode, I am just putting it to you Mr
Cerqueira, Mr Brode, if he was here, and if he was with you and saw
more or less given detail here and there, that he saw more or less
what you saw and heard what you heard, it was never as far as Mr
Gqomfa's statement is concerned, as far as his evidence is
concerned, it was never put to him that shots were not fired and that
he is either mistaken or that he is lying.
MR CERQUEIRA: Sir, like you say I wasn't here so I don't know.
I don't know, but I would also like to at some stage to ask Mr
Gqomfa, is it, is that the gentleman's name, is it Mr Gqomfa?
ADV ARENDSE: Yes.
MR CERQUEIRA: Mr Gqomfa, if the three of us, which one of us
was shooting at him, because we were being shot at. I had nothing
in my hand, Mr Brode had nothing in his hand, why was he shooting
at Mr Brode and myself?
There were four of us standing there?
ADV ARENDSE: But we know from your evidence ...
(intervention)
MR CERQUEIRA: If he says that my brother was shooting at him,
how come did he shoot at us in the first place? Does he also say
that I had something in my hand or that Mr Brode or that Mr
Michael had something in his hand?
ADV ARENDSE: Mr Cerqueira, we also know from your evidence
and from what Mr Brode said that your brother had run out, even
before the two of you got to him.
MR CERQUEIRA: Sorry, could you repeat that?
JUDGE WILSON: That was after the three of them had been out,
they had been shot at, they have gone back into the restaurant. It
was then that they started looking for the brother, they had not seen
the brother outside when the three of them were outside. Is that not
quite clear from his evidence?
ADV ARENDSE: I am not sure whether that is so clear Judge.
JUDGE WILSON: Well, that is what he said and up to now, you
haven't challenged it Mr Arendse. He said Brode went out first, he
came out and the other colleague came out. They then started
shooting at them, and he pulled Brode back into the restaurant. You
put that to him a moment ago that he pulled Brode back.
ADV ARENDSE: I also put it to him that Brode said he ran inside,
looked for his brother, this is on page 47 he called at Cerqueira to
take his firearm held behind the bar counter into his hand.
JUDGE WILSON: That's after he had been shot at, start at the
bottom of page 46 "as fire was aimed at him, he realised that they
were shooting at him from the motor vehicle, he swung around to
run inside."
ADV ARENDSE: Then he runs inside and he realises that
Cerqueira is not inside.
JUDGE WILSON: He has spoken throughout and this witness has,
of being shot at while the three of them were outside. They were
not shooting at that stage. You can't ignore that Mr Arendse.
CHAIRPERSON: Mr Arendse, I think in fairness to you, you are
putting to this witness what Gqomfa said. Gqomfa said that he saw
somebody or he heard somebody firing at him, whereupon he fired at
that person, he shot at that person. You are putting that question to
this witness.
ADV ARENDSE: That is correct Mr Chairman, there is no basis
for Judge Wilson intervening in this matter.
CHAIRPERSON: No, no.
JUDGE WILSON: What I am suggesting Mr Arendse, you were
putting it on the basis that that is why Gqomfa began shooting,
because somebody was shooting at him.
But there is the evidence of this witness that Gqomfa had
already shot at them even if the brother went out afterwards with a
gun.
ADV ARENDSE: I don't propose taking this point any further.
CHAIRPERSON: Mr Cerqueira, in fairness to the applicants,
Counsel says that this is what the applicant said. Now, I don't want
you to argue back, you are given a chance to admit or deny whether
that is what happened and that he, Mr Gqomfa, fired only after
somebody else had fired at him. That somebody else was your
brother, that is what he is putting to you because that is what Mr
Gqomfa had said.
Now, from the answer you had given, it seems that you
disagree with that?
MR CERQUEIRA: I do Sir.
CHAIRPERSON: Well, just say that you disagree with that.
MR CERQUEIRA: I disagree.
CHAIRPERSON: Carry on, Mr Arendse.
ADV ARENDSE: Did you say yesterday Mr Cerqueira, that you
made a statement to the Police or that you don't understand why
they didn't take a statement from you at all?
MR CERQUEIRA: No, I said they took a statement from me the
following day and the gentleman wrote it down. It was Mr Lennon
Knipe was there and some other Police Officer was there in civilian
clothes and he took me to the counter and I said what I saw, and he
wrote it down.
ADV ARENDSE: And you made that statement, you know they
usually ask you to take the oath and so on, and you signed the
statement?
MR CERQUEIRA: If you are asking me if I took the oath, I can't
remember, but he did definitely take the statement.
ADV ARENDSE: Can you remember signing the statement?
MR CERQUEIRA: I think so. I could be under correction, but I
think so.
ADV ARENDSE: Let me just read to you what Mr Gqomfa said in
his written statement. Unfortunately we don't have a transcript
available of what he said when he was giving evidence.
He says the attack lasted for about two to three minutes. I
then withdrew last. The others were already in the car which was
idling and was moving very, very slowly in the direction of the robot
against the one way.
After I got into the car, when we approached the robot, some
shots were fired in my direction. I rolled down the window and
opened fire. I now know that the fire which I had returned, had hit
one Jose Cerqueira and had fatally wounded him. That is what he
said. Do you want to comment on that?
CHAIRPERSON: You have already put that to him.
MR CERQUEIRA: Mr Arendse, Mr Gqomfa can say what he likes.
There was no shots fired at him, certainly not from myself or Mr
Brode or Mike or for that matter, from my point of view, from my
brother, because if he had fired shots with a gun, the gun would
have been lying next to his body. And when I came out, the only
thing that was lying next to his body was the pouch, a whole lot of
blood and nothing else. So I don't see how he could have shot with
a pouch.
So I think Mr Gqomfa is not telling the truth.
ADV ARENDSE: Is it possible that the gun could have been in the
pouch?
MR CERQUEIRA: No, I don't think so because if we take a similar
gun and try and fit it in that pouch, I don't think it could fit in there.
ADV ARENDSE: Tell, us then, what gun are we talking about
here?
MR CERQUEIRA: We are talking about a long barrel 45.
ADV ARENDSE: Yes, we are talking about a pistol?
MR CERQUEIRA: Correct.
ADV ARENDSE: Yes.
MR CERQUEIRA: Semi automatic pistol.
ADV ARENDSE: And my instructions are that the shots that came
from the direction of where Machados is, came from a pistol.
MR CERQUEIRA: I don't know Sir, that is what you are telling
me, I don't know.
ADV ARENDSE: Yes, now you told us earlier, and I understand
and I agree with you, everything happened very quickly.
MR CERQUEIRA: Yes.
ADV ARENDSE: When you came out and you saw your brother
lying there, surely your focus was on your brother, trying to retrieve
his body, trying to see whether he was alive?
MR CERQUEIRA: Yes, the focus was on my brother, yes.
ADV ARENDSE: You weren't looking out for a gun or for any
other item for that matter.
MR CERQUEIRA: You are quite correct, I wasn't looking for any
other item. It just so happened, that when I lifted my brother's
head, the pouch was lying next to his head and I noticed the pouch
lying next to his head.
ADV ARENDSE: And the gun might have been lying somewhere in
the gutter? Is that not possible? Is it not possible that it could have
been lying somewhere?
MR CERQUEIRA: I did not see any gun.
ADV ARENDSE: No, I accept that you did not see any gun. I
accept that, okay.
MR CERQUEIRA: Mr Arendse, many things can be possible.
ADV ARENDSE: Yes, that is all I want to know.
MR CERQUEIRA: I did not see a gun, I picked up my brother's
head, the pouch was lying there next to his head. Mr Brode came,
surely he would have noticed the gun as well. And after a couple of
minutes, after five minutes or ten minutes after, I don't know, then
he handed me the gun. You would have to ask Mr Brode where he
got the gun.
ADV ARENDSE: Because you see it is, why, for what reason
would Mr Brode just hand, we are going to ask that, I just want
your comments. For what reason would Mr Brode hand a gun to the
Police when a gun didn't figure at all in this situation?
JUDGE WILSON: Did Mr Brode hand a gun to the Police?
ADV ARENDSE: That is what the witness said, Judge.
MR CERQUEIRA: No Sir, I didn't say that.
JUDGE WILSON: He said Mr Brode handed the gun to him and he
handed it to the Police.
ADV ARENDSE: Oh, it is the same thing.
MR CERQUEIRA: It is not the same thing, it is two different
things. Mr Brode gave me the gun and I gave it to the Police.
ADV ARENDSE: That is better then. I am glad that's been cleared
up, that is better then. Why did he hand the gun to you if the gun
didn't feature at all in this situation?
MR CERQUEIRA: I've got no idea, you will have to ask Mr Brode.
ADV ARENDSE: I mean if the gun was just lying where it usually
lay under the counter, or in a desk drawer or whatever, there is no
reason that one can think of why the gun should just be produced
and given to you?
JUDGE WILSON: Mr Arendse, are you suggesting when gunshots
had been fired all over the street, when a man was lying dead in the
gutter, you think of logical reasons? Surely any person there who
knew there was a weapon available, would want to have it in his
possession? Wouldn't you ... (intervention)
ADV ARENDSE: No Judge.
JUDGE WILSON: If they came back, so you would be in a position
to do something?
ADV ARENDSE: No, no. I wouldn't.
MR CERQUEIRA: Mr Arendse, at the time I didn't have a gun with
me, but I was hoping that I had a gun with me. I was hoping that I
had a gun with me, and that is why I went into the restaurant,
shouting for the gun to protect myself because when somebody is
firing shots at you, surely Mr Arendse, even in your case, you would
have also hoped for something to defend yourself with? Isn't that
so?
ADV ARENDSE: Well, exactly.
MR CERQUEIRA: Thank you very much.
ADV ARENDSE: I want to suggest to you then, that your brother
did want to defend himself and that is why he ran out with a gun.
And that is why he aimed shots, you agree he was a brave man in the
ordinary course? He stood up for himself, he stood up for his
rights? He worked hard?
MR CERQUEIRA: My brother was a very soft man, in fact if I was
the one that got shot I would have said more that I am the
aggressive man.
ADV ARENDSE: Well, I mean let's not get into the semantics.
CHAIRPERSON: Mr Arendse, I think yes please, just move on ...
(intervention)
ADV ARENDSE: Yes, he ran out with, I want to suggest to you
Mr Cerqueira, he went when he heard the popping sound, the
cracking sound, he ran outside, he took his gun and he aimed shots
at the attackers, as they got into the car. And those are the shots
that Mr Gqomfa says was fired in his direction.
MR CERQUEIRA: Mr Arendse ... (intervention)
JUDGE WILSON: Are you now saying he shot up the road as they
got into the car outside the Tavern, is that what you are now
putting? Is that your version on behalf of your clients?
ADV ARENDSE: Well, if could hardly be anything else. What can
it be, I mean Mr Gqomfa ... (intervention)
JUDGE WILSON: I want to know, I am asking you Mr Arendse, is
that the version you are putting that as they got into the car in front
of the Tavern the deceased shot at them?
ADV ARENDSE: Let me not put words into Mr Gqomfa's, this is
what is in his statement. He says, he withdrew last, the others were
already in the car which was idling and was moving very slowly.
After I got into the car and we approached the robot, some shots
were fired in my direction.
JUDGE WILSON: After I got into the car and when we approached
the robot? What you put to the witness a moment ago was as they
were getting into the car, that is what I queried Mr Arendse.
There is no suggestion at any shots were fired at them while
they were getting into the car.
ADV ARENDSE: When he was in the car, the shots were fired Mr
Cerqueira. I am suggesting to you that it was your brother who
fired those shots. And he is the only one who could have fired those
shots and that explains why Mr Brode produced the gun, handed it
to you and you handed it to the Police. There is no other reason
why that gun would have been produced to the Police.
MR CERQUEIRA: Mr Arendse, like I said earlier on, there was no
way in my view, like you've got your view that you've just given me,
there is no way in my view that my brother could have shot at the
car when they were getting into the car out of the Heidelberg Tavern
because myself, Mr Brode and Michael was standing in front where
we were taking the shots, so if my brother had to shoot, this is just
an assumption that I am making like you are Sir, he would have had
to shoot us first before he shot at anybody else.
And I would have heard the shots from behind me.
CHAIRPERSON: Mr Arendse, I think you've got an answer. He
does not agree with the way, he does not agree with the evidence
that you are putting to him, that is Mr Gqomfa's evidence and he has
denied that, now can we move on from there?
ADV SANDI: Mr Cerqueira, did Mr Brode say anything to you as
he was giving you the gun?
MR CERQUEIRA: Not that I can recall Sir, no.
ADV SANDI: He just gave you the gun?
MR CERQUEIRA: He just gave me the gun. He said he is Joe's
gun, I think that is what he said, something to that effect.
CHAIRPERSON: Carry on please.
ADV ARENDSE: Mr Cerqueira, I also want to just put something
for the record. I find it very odd Mr Brode gave a statement, he
gave evidence in court and he gave a statement to the Investigators
of this Committee. Mr Gqomfa gave his evidence as I have read it
out to you.
And he wasn't challenged on that at all. Now, this is a critical
aspect, you agree with that, it is a critical aspect?
MR CERQUEIRA: I agree, it is a very critical aspect, especially
when somebody get shot at.
ADV ARENDSE: Yes, for no reason apparently?
MR CERQUEIRA: For no reason.
ADV ARENDSE: Yes, for just standing on the corner?
MR CERQUEIRA: Correct.
ADV ARENDSE: Yes.
MR CERQUEIRA: Very critical.
ADV ARENDSE: Now, you know, have you got any explanation
why it wasn't raised?
MR CERQUEIRA: Sorry?
ADV ARENDSE: You didn't want to be part of this process?
MR CERQUEIRA: No Sir, like I mentioned yesterday. I didn't
want to be part of this process because they had already been
sentenced, and I was quite prepared to forgive the whole thing, not
forget, I still haven't forgotten. I still haven't forgotten, to forgive
until these allegations came up that my brother was shooting at
them.
ADV ARENDSE: Yes.
MR CERQUEIRA: Surely, you know, then I battled with my mind.
That if my brother was shooting at them, then surely when they
were shooting at us, we must have been shooting at them as well.
Were we shooting at them or not?
CHAIRPERSON: All this is a repetition of a great deal of evidence
we have already heard. Can we move on.
ADV ARENDSE: Were you approached at all by the TRC
Investigators to make a statement?
MR CERQUEIRA: They contacted my sister-in-law and I told my
sister-in-law that I didn't really want anything to do with that, and
so did she. I think they did contact her. I was told by the family
and I said the people had been sentenced, and I don't want anything
to do with it. Quite happy with that. Quite happy to forgive, but
not forget. I haven't forgotten, it might take me another year or
two, I don't know.
ADV ARENDSE: You are very angry, is that right, about what
happened to your brother?
MR CERQUEIRA: Sir, must I be quite honest with you?
ADV ARENDSE: Yes. We want nothing else here in this court.
MR CERQUEIRA: I can't find, this is the Truth and Reconciliation
Committee, I can't find anger in my gut when I look at that man, but
today I must be, with due respect to you, I am very angry at you the
way you handled things yesterday, I was very angry.
ADV ARENDSE: Yes.
MR CERQUEIRA: I was very, very angry Sir. Like you
mentioned, when you stated that I wasn't on the scene. And yet
today you read to me another statement where it actually mentions
that the brother was in the restaurant and colleagues.
ADV ARENDSE: Yes.
MR CERQUEIRA: How come you overlooked something like that?
ADV ARENDSE: Because Mr Cerqueira, must I give you an
answer?
MR CERQUEIRA: Yes, please.
ADV ARENDSE: On the first part of being angry with me, I feel
sorry for you, okay and I forgive you. Are you a Christian?
MR CERQUEIRA: I am.
ADV ARENDSE: Aren't you taught to forgive?
MR CERQUEIRA: Sir, what I am taught and what I am not taught,
has got nothing to do with you.
ADV ARENDSE: How long have you been in this country?
MR CERQUEIRA: Are you a Christian Sir?
ADV ARENDSE: Yes.
CHAIRPERSON: I want to put a stop to this kind of questions.
ADV ARENDSE: Mr Cerqueira, I put to you what the Judge had
summarised and what was said in a court of law under oath. This
statement in here means absolutely nothing. This is not under oath
and it is not signed by Mr Brode.
Are you still saying that I was unfair not to put that to you?
MR CERQUEIRA: Sir, when you ask me questions about Mr
Brode, I think you are very unfair.
CHAIRPERSON: Mr Arendse, what a witness' opinion is of
Counsel, is a matter of no concern to the Committee.
MR CERQUEIRA: Mr Harmse, I am not interested in Mr Brode's
... (intervention)
ADV ARENDSE: It is Arendse, okay, Arendse, not Harmse.
MR CERQUEIRA: Mr Arendse, I am not interested in Mr Brode's
statements. I came here ...
MR PRIOR: Mr Chairman, I must object at this line of ...
(intervention)
CHAIRPERSON: I am going to stop these proceedings for a while
Mr Arendse, if it is necessary. I've told you once before please get
on with the facts and not your personal differences or his differences
towards you.
You've got to take whatever he says. If he is unhappy with the way
you've questioned him, please you are doing your duty as Counsel,
but don't involve in argument about that. Carry on with your
questions Mr Arendse.
ADV ARENDSE: Mr Cerqueira, I want to suggest to you, I want
to put it to you that because you are angry, angry at me, angry at
the applicants, angry ... (intervention)
MR CERQUEIRA: I am not angry at the applicants Mr Arendse, I
am angry at you.
ADV ARENDSE: Well, now that you are angry at me, I want to
suggest to you and put it to you that because of your anger, you
don't like to hear that there is a possibility that your brother may
have had a firearm and may have shot at the applicants, at one of the
applicants as he says he did.
MR CERQUEIRA: Mr Arendse, I am not saying there isn't a
possibility, there is always a possibility of 1001 things that could
have happened. What I said to you is that when I got to the body,
there was no gun. I didn't see the gun. Mr Brode came and sat
next to us on the pavement, he didn't see any gun and a little while
later, he only produced the gun. Therefore Sir, with due respect, I
think ask Mr Brode where he got the gun. I don't know where he
got the gun. He might have got it in the restaurant at a later stage,
I don't know. But yes, there is a possibility, there is 1001
possibilities.
ADV ARENDSE: Can I just ask you again. It seems odd to us
that, is me and my colleague, that after the attackers are gone, a gun
is produced. For what reason can that possibly be?
MR PRIOR: Mr Chairman, with respect, this question has been
asked again and again in several ways. Answers have been given and
the Committee has already given a ruling for Mr Arendse to move
off onto something fresh. I must now object and ask for a final
ruling on this particular aspect.
ADV ARENDSE: I will leave it there.
CHAIRPERSON: Proceed with the next question Mr Arendse.
ADV ARENDSE: Mr Cerqueira, when you came out ...
(intervention)
MR CERQUEIRA: Sorry, it is Mr Cerqueira.
MR ARENDSE: Cerqueira right. When you moved back in, you
pulled Mr Brode in, the other waiter came in with you, your brother
didn't come in with you?
MR CERQUEIRA: No, Sir. I didn't see my brother, that is the
reason why I came inside the restaurant, shouting for my brother.
ADV ARENDSE: Now, yes, because when you came out, your
brother was already outside, he must have been outside?
MR CERQUEIRA: No, he was not outside. There were only three
of us standing outside, Mr Arendse.
ADV ARENDSE: But I thought you said you came outside to look
for your brother?
MR CERQUEIRA: No Sir, I said I came inside again looking for
my brother.
JUDGE WILSON: He did not say that Mr Arendse. He said they
came outside to look at the noise, the source of the noise.
ADV ARENDSE: I said I thought he said that. Can the witness
correct me Judge, instead of you please.
CHAIRPERSON: No, I think ... (intervention)
JUDGE WILSON: No, Mr Arendse, as Counsel you must put things
accurately.
ADV ARENDSE: I put it accurately, I said I thought, now if I
thought wrongly, then he must tell me that.
JUDGE WILSON: I am telling you you thought wrongly and you
will accept that ruling and you will stop carrying on as you are Mr
Arendse. My brother the Chairman, has already offered to adjourn
the matter so that you can quieten down.
MR CERQUEIRA: Do you want an answer from that Sir?
ADV ARENDSE: Yes.
MR CERQUEIRA: The only time that I went outside, looking for
my brother, was after the shots had been fired. After we had been in
the restaurant, looking for him and then we ran outside, and then I
found him outside. Not before the shots had been fired.
Before the shots had been fired, I went into the restaurant,
not outside, into the restaurant, looking for my brother.
ADV ARENDSE: So at which point could he have been shot? Was
it before or after you came out?
MR CERQUEIRA: I've got no idea. I've got no idea.
JUDGE WILSON: If he had been shot before, when you went out
of the restaurant for the first time and looked up the road, would
you have seen his body?
MR CERQUEIRA: Yes. He was definitely not on the pavement
when I went outside for the first time, when the shots were being
fired at us.
ADV ARENDSE: So he must have then, did he run passed you at
any stage?
MR CERQUEIRA: I didn't see him run passed me.
ADV ARENDSE: So is it your evidence that when you came
outside with Brode and with the other waiter, your brother was not
there?
MR CERQUEIRA: What I think from my view Sir, is that when the
three of us were standing on the pavement looking up, he must have
come and stood behind us, therefore I did not see him. Otherwise,
believe you me, if he was there, I would have dragged him inside as
well.
ADV ARENDSE: So there is the possibility then that he actually
came out with you but behind you and you didn't see him?
MR CERQUEIRA: There is a possibility Sir.
ADV ARENDSE: And when you turned to go back in and pulled
Brode in and the other waiter ran in with you, your brother either
didn't turn back or he turned back, but was shot as he also wanted to
go in?
MR CERQUEIRA: Correct, there is a possibility. Like I say when
we first came out, the shots were being fired at us, there is
definitely no way that he was shooting at them if he was shooting
behind us.
ADV ARENDSE: I put it to you that that version of the way you
are putting it, is not what happened Mr Cerqueira. I am putting it to
you that your brother had gone out first, armed with his gun, had
fired shots in the direction of this car which was coming in his
direction, in the direction of the robot.
At that point, or immediately afterwards, you came out and
that is when you retreated, but by then your brother had already
been shot. That is what happened Mr Cerqueira.
MR CERQUEIRA: No, that is not what happened, Mr Arendse.
ADV ARENDSE: Is it not possible that it could have happened?
MR CERQUEIRA: No, it is not possible.
ADV ARENDSE: Everything happened quickly?
MR CERQUEIRA: Mr Arendse - because when I came outside, the
only people that were standing in front of me was the two waiters.
The waiters were standing in front of me. There was no way that my
brother could have been standing, firing in front of me and me not
seeing.
The first shots that were shot at us, was aimed at myself and
Mr Brode. Mr Brode got hit on the leg and the shots were on the
wall, next to Mr Brode's leg. Surely if my brother was firing and he
was standing there, I would have seen it. And surely under those
conditions, if he was firing at somebody, I wouldn't have even come
onto the pavement because I would have realised something was
wrong.
ADV SANDI: Mr Cerqueira, is there a building opposite the
Heidelberg Tavern?
MR CERQUEIRA: Between our restaurant and the Heidelberg,
opposite, yes, there is.
ADV SANDI: Was that building shot at by the attackers at the
Tavern?
MR CERQUEIRA: Yes, it was.
ADV SANDI: Whose building is that, what sort of building is that?
MR CERQUEIRA: Opposite the road from us, directly, is a
hardware store and they've got storage upstairs and there is a coffee
shop directly outside the Tavern and there is a restaurant, called the
Planet, that is downstairs and upstairs.
ADV SANDI: Were there any people at that particular building at
the time the shooting was taking place?
MR CERQUEIRA: Yes, there were because the restaurant called
the Planet is - most of its busy period is in the evening at round
about that time when the incident happened.
ADV SANDI: Was anyone of them actually hurt or injured?
MR CERQUEIRA: Not to my knowledge, Sir.
ADV SANDI: Thank you.
ADV ARENDSE: Mr Cerqueira, can I put another scenario to you
as a possibility? Your brother goes outside before you, with his
gun, you don't see him, you don't see him, he fires at the attackers
coming in your direction.
You don't hear that, because now you are running out and you
are coming onto the street, onto the pavement, you don't hear that
and the attackers shoot at him. And when you come out onto the
pavement, that is when these shots are fired in your direction, is that
not a possibility?
MR CERQUEIRA: No Sir. Can I just go through what I said
yesterday.
CHAIRPERSON: You don't have to go through what you've
already said, you can just say yes or no to that proposition.
MR CERQUEIRA: Sir, in this case, can I just say something? Mr
Arendse, when we heard the popping sounds like I told you
yesterday my brother was standing behind the counter, on the inside
of the counter like I mentioned in my statement yesterday.
I was standing on that side of the counter, when the shots
were being heard, the waiter walked to the door slowly, I walked to
the door afterwards, my brother was standing behind that counter.
When we went onto the pavement, surely if my brother had
gone first, I would have seen him in front of me?
ADV ARENDSE: I am sorry, but I mean if you've said that
yesterday, you said it, but this is the first time that you have put it
like that according to my recollection. I am sorry Mr Cerqueira, I
don't think that is what you've said yesterday or up to now,
explaining why your brother, according to you, must have come only
after you, that you saw him standing behind the counter, you were in
front of the counter and you went out.
I mean you said, didn't you, you must correct me if I am not
correct, you said you went to look for him.
MR PRIOR: With respect, that was after the shots. Mr Chairman,
may the appropriate place of the record be found, otherwise we are
going to have a lot of cross-examination on whether it was said or
not? It is certainly my recollection and I led him on that and he told
the Committee with respect where the positions of the people were
before the popping sounds were heard.
CHAIRPERSON: Do you want the transcript to be played back, is
that what you are suggesting?
MR PRIOR: Mr Chairman, I suggest that in order to avoid the type
of confusion that seems to be prevalent.
CHAIRPERSON: Mr Arendse, do you want the transcript to be
played back of all the cross-examination?
ADV ARENDSE: Mr Chairman, does Mr Prior agree or doesn't he
agree that that is the first time certainly, that I hear that Mr
Cerqueira is saying that his brother stood behind the counter, he
stood in front of the counter, he ran out first? I mean, you know, if
the Committee and Mr Prior tells me that he has said that before
already, then I will leave it there. But it is the first time I hear it.
ADV SANDI: Speaking for myself, I cannot locate this particular
aspect of his evidence in my notes. But I do have a - I do remember
him saying that yesterday. We think that is what he said yesterday.
ADV ARENDSE: Leave it there.
CHAIRPERSON: Yes, proceed please.
ADV ARENDSE: I have no further questions, thank you.
NO FURTHER QUESTIONS BY ADV ARENDSE.
CHAIRPERSON: Have you got any re-examination of this witness?
RE-EXAMINATION BY MR PRIOR: Just one, just one aspect. The
widow of your brother, Mrs Cathy Cerqueira indicated that she
didn't want to attend these proceedings, is that correct?
MR CERQUEIRA: Yes.
MR PRIOR: And are you aware whether she made a statement?
MR CERQUEIRA: I am not aware.
MR PRIOR: Thank you. I have no further questions in re-
examination, thank you.
NO FURTHER QUESTIONS BY MR PRIOR
JUDGE WILSON: Will you please look at photograph number 22.
Is that a picture of your restaurant?
MR CERQUEIRA: That is correct.
JUDGE WILSON: Now, there are three, well I can see but there
are apparently three lines marked "n", do you see those?
MR CERQUEIRA: Yes, Sir.
JUDGE WILSON: And from what I can see in the photograph, two
of them are bullet marks, well the marks made by bullets on the
wall?
MR CERQUEIRA: That is correct.
JUDGE WILSON: One is on the corner of the building, right on
the corner itself it would seem, and one is on the wall leading to the
door?
MR CERQUEIRA: Correct.
JUDGE WILSON: You said something about I thought, think you
said something about bullet marks showing the injury to Brode's leg?
MR CERQUEIRA: Correct.
JUDGE WILSON: Was that one of those bullet marks do you
think?
MR CERQUEIRA: The lower one on the corner of the wall Sir.
JUDGE WILSON: So that bullet mark was caused at the time that
they shot at you and Brode?
MR CERQUEIRA: That is correct, Sir.
JUDGE WILSON: Now, at that stage, looking at the picture, it
must mean that the car had already passed your restaurant because
otherwise they couldn't shoot a bullet into that entrance passage
way, could they? That couldn't have been shot from further up the
road?
MR CERQUEIRA: Are you talking about the second shot Sir?
JUDGE WILSON: Yes, the one lower down that you have pointed
out?
MR CERQUEIRA: Correct, the shots were still being fired after we
had gone into the restaurant.
JUDGE WILSON: They were still firing shots as they were passing
the restaurant? By that time they were passed the restaurant?
MR CERQUEIRA: Correct.
JUDGE WILSON: And they were firing shots?
MR CERQUEIRA: There were some shots that went into the
restaurant, that hit a table and hit the glass on the top. As you can
see, there is another mark there, and there is one lower down on the
door that the Police didn't really find.
JUDGE WILSON: But your brother's body was further up the
road?
MR CERQUEIRA: My brother's body was ... (intervention)
JUDGE WILSON: Where the drainage is shown?
MR CERQUEIRA: (a).
JUDGE WILSON: On the other side of the traffic light?
MR CERQUEIRA: On this side, yes.
JUDGE WILSON: Just above the traffic light, isn't it?
MR CERQUEIRA: That is correct.
JUDGE WILSON: Yes.
MR CERQUEIRA: It is about 500 feet.
JUDGE WILSON: 500 metres. Because what causes me some
confusion is that that would indicate that your brother was probably
shot before the car passed the restaurant, wouldn't it?
MR CERQUEIRA: Correct, correct.
JUDGE WILSON: So that would be before the shots were fired at
you, your brother had been shot further up the road?
MR CERQUEIRA: Sorry Sir, I didn't hear that?
JUDGE WILSON: If your brother was shot further up the road,
that was before the shots were fired at you and Mr Brode?
MR CERQUEIRA: If he was shot further up the road?
JUDGE WILSON: Yes.
MR CERQUEIRA: Correct.
FURTHER CROSS-EXAMINATION ADV ARENDSE: Mr
Chairman, just leading on from Judge Wilson's questions. Doesn't
that then make it now more than a possibility that your brother ran
out first, he was shot. He shot at the attackers, he was then shot
and as they continued coming down, by the time you came out, you
were now - the car was now either at the robot or just passed the
robot and this volley of fire may have continued and that is why you
see these marks?
MR CERQUEIRA: Sorry, I didn't understand that. When the car
came passed the restaurant?
ADV ARENDSE: Your brother was already shot?
MR CERQUEIRA: No.
ADV ARENDSE: But your brother was shot further up Mr
Cerqueira? Your brother was lying at the drain.
MR CERQUEIRA: No, my brother was shot between the drain and
that set of robots. You can see for yourself it is not very far from
the restaurant.
ADV ARENDSE: Yes.
MR CERQUEIRA: It is not very far from the robot.
ADV ARENDSE: But it is further up?
MR CERQUEIRA: Further up from where?
ADV ARENDSE: Further up from the, it is further up from the
door, not by much.
MR CERQUEIRA: Sir, it is about the distance from here to there.
ADV ARENDSE: Yes, now that is why I am asking you isn't ...
(intervention)
CHAIRPERSON: Just hold it. The witness indicate the distance
between the front door, the front entrance to where your brother
was, is that what you are saying?
MR CERQUEIRA: Yes, Sir.
CHAIRPERSON: And you point it out as how much?
MR CERQUEIRA: It is about that distance.
CHAIRPERSON: About a meter, Mr Arendse? Mr Prior?
MR PRIOR: I understand it to be about a meter, Mr Chairman.
CHAIRPERSON: Is that the end of it?
ADV ARENDSE: No, I just want to put it to Mr Cerqueira, that
that Mr Cerqueira, strengthens, okay firstly I want to ask you why,
or unless you tell me it was not particularly relevant or you weren't
asked, why are you now mentioning about the, after you saw
photograph number 22, are you mentioning the shots that were fired
through the door and that a glass inside the restaurant was hit?
CHAIRPERSON: If those are in fact the facts, does it really
matter?
JUDGE WILSON: Nobody bothered to ask him, did they Mr
Arendse?
CHAIRPERSON: Carry on.
JUDGE WILSON: And doesn't the, if you are looking at
photograph 22, it appears to indicate as far as I can see, that that
third line is going to a bullet line through the door, isn't it?
ADV ARENDSE: I am not going to pursue this because this is a
different process, otherwise I would have with respect. I think a
witness is here to tell us what happened, exactly what happened, and
he just didn't mention that.
I think it perhaps effects the other evidence, but that is for
argument, so just leave it.
I just want to put it to you Mr Cerqueira, that it strengthens
the possibility that your brother must have run out before you, in
front of you, that he was shot in front of Machados, outside of
Machados.
MR CERQUEIRA: Machados.
ADV ARENDSE: Machados, yes, and can you explain then how
come you never saw him?
MR CERQUEIRA: Because simply Mr Arendse, he was not in front
of me.
ADV ARENDSE: Okay. I have disputed that already, I have got
no further questions.
NO FURTHER QUESTIONS BY ADV ARENDSE
CHAIRPERSON: Mr Cerqueira, you are excused from further
attendance, thank you.
MR CERQUEIRA: Thank you, Sir.
WITNESS EXCUSED
MR PRIOR: Mr Chairman, I have a statement of Cathy Cerqueira,
who is not attending the proceedings. Would it be appropriate at
this stage to read it onto the record?
CHAIRPERSON: Is it under oath?
MR PRIOR: No, it is not on oath.
CHAIRPERSON: Well, leave it out then, Mr Prior.
MR PRIOR: I will see that she makes the oath.
CHAIRPERSON: If it is relevant.
MR PRIOR: It was her submission as a victim, I thought it may be
appropriate to deal with it, but I will leave it till later.
Mr Chairman, I indicated in Chambers that the victims had
drafted a letter and wished to place it on record. May this be an
appropriate stage Mr Chairman.
CHAIRPERSON: Can it be done during the evidence that they are
going to give? Aren't you going to call any witnesses?
MR PRIOR: Yes, I intend calling Mrs Langford first. She comes
from Port Elizabeth.
CHAIRPERSON: Well, call her.
MR PRIOR: And maybe she can read the statement.
CHAIRPERSON: Whoever they decide can read it.
MR PRIOR: As the Chairman pleases. I call Mrs Langford.
ANDREA JEANNETTE LANGFORD: (sworn states)
EXAMINATION BY MR PRIOR: Mrs Langford, as one of the
next of kin, a letter was drafted or prepared by the victims as a
group, is that correct?
MRS LANGFORD: That is correct, yes.
MR PRIOR: Will you please read it onto the record?
MRS LANGFORD: I will.
"The Heidelberg Tavern attack, amnesty applications.
We understand the need for unity and reconciliation in our
new nation and that the conflicts and divisions of the past
must at some stage be put behind us in order to achieve the
aim of the amnesty process.
We also understand that in order to attempt this difficult
journey, the Amnesty Committee ought to have as complete a
picture as possible of the causes, nature and extent of the
gross violations of human rights, which in our case relates to
the senseless killings of, and injuries to our sons and
daughters.
We have heard that full disclosure of all relevant facts relating
to the Heidelberg attack is one of the requirements for
amnesty. This necessarily implies that the truth be told. We,
as the survivors of this gross violation of human rights, are
deeply concerned by the nature and conduct of these
proceedings thus far.
Whilst not understanding the finer points of the law, it seems
unfair to us that the Chairman is in open hearing remarked as
follows:-
Sibaya's evidence was irrelevant to these amnesty
applications. The kombi must also have been drunk. He,
Sibaya, probably also knew the name of the name of the sheep,
when he was attempting to answer questions about how he
could remember certain details.
The reaction of laughter at Sibaya's expense that these
remarks evolved from the legal representatives of the
applicants, Dumisa Ntsebeza, and the supporters, we feel
detracts from the serious nature of the amnesty process and
makes light of evidence which we believe is important in
searching for the truth.
Such remarks also fail to take into account our pain and our
grief. It is out of place to listen to these remarks in the same
process as the evidence of the killings of our loved ones.
We are under the impression from the proceedings thus far,
that the legal representatives are constrained to represent the
minimum facts required to satisfy those requirements for
amnesty.
We are all of the view that the proper and full disclosure of
the facts, has not been made.
We are also concerned about the manner in which Mr
Cerqueira was cross-examined, which was in our minds, unfair
and insensitive to his grief and loss.
We as survivors demand the right to be treated with dignity
and sensitivity if these proceedings are to mean anything at
all.
Finally, we are present disillusioned about the process we
have seen thus far, and must ask the question whether the
amnesty process is simply part of the political solution
whereby perpetrators of gross violations of human rights will
be granted amnesty as a reward for their loyalty to their
masters.
We invite the Committee to address our fears and concerns in
this matter".
And we have all signed this.
MR PRIOR: Thank you Mrs Langford. Mrs Langford, you've also
made submissions in respect of the death of your daughter,
Bernadette, is that correct?
MRS LANGFORD: That is correct, yes.
MR PRIOR: Mr Chairman, may I refer the Committee to item 5 on
the submissions by victims, the Bundle that was prepared and handed
to you, which appears on page 61 to 67.
Your daughter, Bernadette, she was at the time of her death,
was she still a student at the University?
MRS LANGFORD: No, she had just received her degree three
weeks before her death.
MR PRIOR: Had she gained employment or had she taken up
employment at that stage?
MRS LANGFORD: She was busy with a temporary job at Edgars,
Adderley Street, while waiting for replies for her application for a
teaching post.
MR PRIOR: Was she in any way connected with the military or the
Security Forces at the time?
MRS LANGFORD: No, no.
MR PRIOR: Mrs Langford, you have prepared a submission, have
you not?
MRS LANGFORD: That is correct.
MR PRIOR: And do you wish those submissions, which are
unsigned, to form part of your evidence?
MRS LANGFORD: That is right.
MR PRIOR: Could you please look at page 62 and could you tell
the Committee, what kind of person Bernadette was.
MRS LANGFORD: Page 62?
MR PRIOR: I beg your pardon, I am referring to our Bundle. You
have your single copy in front of you.
MRS LANGFORD: Yes. Shall I begin at "Who Bernadette
Langford was"?
MR PRIOR: Yes, please proceed.
MRS LANGFORD: Right, thank you.
"Who was Bernadette Langford before? A talented young
lady on the brink of her career. The eldest daughter of
Andrea Langford, sister to three sisters and a brother, loved
by her family, friends and all who were privileged to know
her.
On the 9th of December 1993, she had received her higher
diploma in Education post graduate for secondary education.
She completed the prescribed course in the following teaching
subjects: Art, school counselling and guidance. She could
also teach through the medium of Afrikaans higher and
English higher.
Since the very young age of seven, she was capable of
attaining the goals she reached for, such as ballet with
honours and scripture exams with distinction. Besides her
school studies, which later included drama, this pattern was
pursued while at University. Her first three years were at
Rhodes University where she received her BA degree in fine
art and psychology.
And at the same time, she was a keen sportswoman. That was
in volley ball. She also completed an advance course in
deportment, beauty rooting, fashion and photographic
modelling. She had also done a St John's ambulance course.
Bernadette had one desire, and that was to enrich our society
with her abilities.
She had a great love for children and a compassion for the
misunderstood. She was working on a casual basis at Edgars,
Adderley Street, while waiting for a reply from her
applications for a teaching post.
She undertook to care for the family and had plans to support
her brother's education. She had hopes of raising a family of
her own one day.
The incident. On the 30th of December 1993, Bernadette's
friends decided to stop at the Heidelberg Tavern in
Observatory for eats and while there, she was gunned down
with automatic gun fire, according to reports.
Extent of injuries. During the early hours of the 31st of
December 1993, Bernadette had lost her life. She, who
showed mercy to others, was not given that chance. An
innocent human being".
I approve of the statements made and the copies, I can give to you.
MR PRIOR: Yes, that is not necessary at this stage, they will be
handed in Mrs Langford. Please continue. Are you able to continue
at this stage?
MRS LANGFORD: Yes, I can, thank you.
MR PRIOR: Thank you.
MRS LANGFORD: Who is Bernadette Langford now?
"Bernadette has gone to be with The Father. She lives
on in our memories. Though the last memory of her causes us
to sorrow, not as the world, but with the hope of everlasting
life. I know if she was here, she would want us to hold onto
the truth.
The loss to the family came at a time when funds were
exhausted. I, her mother, had to come up to Cape Town and
identify her and do the necessary arrangements for her burial
in Port Elizabeth. This was very difficult at the time as I was
unemployed, due to the fact that I had given up my work the
previous year, to sort out our family matters after her father's
sudden death due to respiratory failure.
His small business had to be shut down and I had not
recovered from these losses, when this tragedy struck the
family. Family and friends rallied around at the time, I thank
God for them. I was told that a fund had been established to
assist the families, but this came to nought - up to this very
hour, I have never been assisted in any way.
I feel I have the right to ask what is the right of human life, is
it not to be given a free chance to live? This is what I would
say if I were given the opportunity to make the statement.
The past four years have been exceptionally difficult since
Bernadette's death. As a result, we had to deal with many
frustrations such as continually being asked about our feelings
and our view concerning the way in which she died because
the community where I live, could not accept the way in which
she died.
My relatives all suffered emotionally because of the trauma
and they knew that because of our culture in which we care
for the one who cares for you, this was not going to happen.
I asked God for inner strength and the courage to forgive
which I did.
I had to remember to lead by example, which the rest of the
family would follow. The hardships have not ended because
life has become more expensive. I have a casual job since last
year, which is a blessing in a small way.
The men who shot Bernadette, have to understand that we
forgave them as a family, but this shouldn't prevent justice
from taking place. I wish to say to the Truth and
Reconciliation Commission and all who are assembled here for
the Heidelberg Tavern hearing, man can do what is humanly
possible, but God can do the impossible to reconcile man to
God. To the ones who sent you, you planted the seed and
watered it, you saw it grow, so you are very much part of the
end result, but I tell you too, there is a way to find peace of
mind - may God grant you the wisdom to understand.
MR PRIOR: Mrs Langford, do you confirm the statement that you
have read out?
MRS LANGFORD: I do.
MR PRIOR: And you adhere to its contents?
MRS LANGFORD: I do.
MR PRIOR: Is there anything in addition thereto, that you wish to
say regarding the amnesty application? Do you oppose it or do you
agree with it?
MRS LANGFORD: Before I answer you on whether I oppose it or
agree with it, I want to add to a note that I have just written out as
I was listening if I may.
MR PRIOR: Please continue Mrs Langford.
MRS LANGFORD: Mr Chairman, these are the perpetrators of
gross human violations. They say as you have heard, that they were
acting under orders. Just a question I would like to ask is why
haven't their instructors not been brought before this Commission, if
I may ask and if we as the victims, have to reconcile, then the truth
of the matter is we will never know who was behind the hideous
atrocity and we will leave this place with a half truth. I speak for
myself, but this is the feeling shared by the victims of the Heidelberg
Tavern.
I will explain why I say that justice in case I am questioned on
that, why justice having to be carried out. I have forgiven them so I
will explain that line.
I will just go on from here. I feel that justice is that all
aspects concerning this case, to me, that is not only the applicants,
but the ones who gave the orders, they have the full knowledge of
why this really happened. If they can be brought here or at a
separate hearing, we will be satisfied as I said.
And as I will say to the applicants, as I heard all the time,
they acted under orders which I understand. I too, act under orders
as I sit here now, just speaking directly to you because I firmly
would like to believe that we all do believe there is a God above our
heads.
If I can be allowed to say this, and because I believe that God
is God and I act under His orders and for me, His orders are to say
to you and to all here, yes, I have forgiven you. I will not oppose
your amnesty because who am I, I am not your judge. I can never
judge you, but there is a way to find the freedom more than amnesty
can free you from. And that is if you give your hearts to Him. And
you truly believe that He did send his Son for all of us here present,
not only for a sinner, but for all and you give your hearts to Him,
you will find the peace that I have found, with which I can say to
you I have forgiven you and I will not oppose your amnesty. Then
you will know what I know regardless of how I feel, regardless of
the three years and ten months that I thought I put behind my back
and that I thought I had dealt with quite well, but that was brought
back to me because of your application for amnesty. It just
brought back everything, it put me right back to where I had thought
I had gone past, but my heart will feel satisfied to know if you can
receive that. And I think that is all I would like to say here. Thank
you. I would like to thank Mr Chairman, for giving me that
opportunity.
MR PRIOR: Mrs Langford, you've indicated the financial hardship
that the family suffered?
MRS LANGFORD: That is so, yes.
MR PRIOR: As a result of Bernadette's passing?
MRS LANGFORD: That is so, yes.
MR PRIOR: If I could just be permitted on one aspect, her
education was paid for by whom?
MRS LANGFORD: I paid for her education.
MR PRIOR: And what was the understanding with Bernadette once
she had obtained employment?
MRS LANGFORD: Because I had to go to various lengths to be
able to ascertain Bernadette's qualifying, this is very personal, go
into my personal life. I had to give her things like my policies to
ensure that Bernadette could get through, it was very difficulty, as I
have explained earlier.
And Bernadette gave me the assurance that on so doing, that
she would look after me, and not only that, she would educate her
little brother who was seven when his dad died and then he was
eight when Bernadette died. I can't imagine what, I try to think
what he must be thinking and feeling, but I don't think I can actually
imagine what he must be going through.
MR PRIOR: You indicated that since the loss of Bernadette, you
received no financial support from the State whatsoever?
MRS LANGFORD: None, whatsoever.
MR PRIOR: You indicated to me before you were called to testify,
that was some days ago, that you would like the matter, your
particular case to be referred to the Reparations Committee?
MRS LANGFORD: That is so.
MR PRIOR: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR PRIOR
CHAIRPERSON: Are there any questions, Mr Arendse?
ADV ARENDSE: None, Mr Chairman.
NO CROSS-EXAMINATION BY ADV ARENDSE
CHAIRPERSON: I have read the statement that you and other
victims and relatives have signed. Without any reservation, I want
to say that I am sorry if my remarks have caused you any hurt, they
weren't intended to hurt you.
MRS LANGFORD: Thank you.
CHAIRPERSON: They certainly were not intended in any way to
hurt you. I want to assure you that I am sensitive to the feelings of
people who have been injured in the tragedy that has taken place in
our country.
I have been entrusted like the other members of the Amnesty
Committee, to hear applications, we have been doing that for more
than a year now, nearly two years. We had been hearing harrowing
accounts of terrible deeds committed by applicants in Cape Town
and in other parts of the work, we have listened as patiently as we
can to these details.
We have afforded the applicants every opportunity to put
forward their case, because the law requires that they should be
given a hearing. We have never held back requests by victims and
dependants to express their feelings in the matters that we had to
deal with. And if my remarks, have conveyed to you and the other
parents and victims, that I am not sensitive to your hurt and your
feelings, I am sorry for that. I want to assure you that that was
furthest from my mind.
Such remarks as I may have made, at the time, about the
evidence that was given by Mr Sibaya, were as a result of a lengthy
hearing on evidence in a matter which was only tangentially related
to the issues before this Committee.
I haven't made up my mind, we haven't considered the
evidence and we haven't rejected the evidence of any witness who
has given evidence before us. We will only be considering the
evidence and evaluating the evidence and coming to a final
conclusion after all the evidence have been led and counsel on both
sides have had an opportunity of addressing us.
Finally, to you and your colleagues, once more, I say that if
my remarks may have seemed injudicious to you, I am sorry for that.
MRS LANGFORD: I thank you for your explanation and I fully
accept what you have just told me, Judge Mall, thank you.
CHAIRPERSON: You are excused from further attendance.
MRS LANGFORD: Thank you very much.
WITNESS EXCUSED
MR PRIOR: Mr Chairman, will this be an opportune stage to take a
short adjournment. I have my next witness, Mr Cornelius.
CHAIRPERSON: Yes, we will take a short adjournment.
COMMISSION ADJOURNS
ON RESUMPTION
MR PRIOR: Mr Chairman, I call Mrs Fourie. Mr Chairman, Mrs
Fourie had requested to sit a little closer to the applicants, and I
understand there is no objection to that, if that pleases the
Committee.
JEANETTE ANNE FOURIE: (sworn states)
MR PRIOR: Mr Chairman, the witness has not made submissions,
her husband in fact, made written submissions, but she requested an
opportunity to address the Committee.
CHAIRPERSON: Yes, Mr Prior.
EXAMINATION BY MR PRIOR: Mrs Fourie, is it correct that
your daughter was killed in the Heidelberg Tavern attack on the
30th of December 1993?
MRS FOURIE: That is correct, Lindi Anne was killed.
MR PRIOR: Would you please continue, or proceed with what you
want to address the Committee on?
MRS FOURIE: I would like to address the Committee, Mr
Chairman, but a bit more personally, I would like to address the
gentlemen before us and if you don't mind being onlookers whilst I
do that.
CHAIRPERSON: Please proceed.
MRS FOURIE: Molweni amadoda.
APPLICANTS: Good morning Mama.
MRS FOURIE: I am very sorry, that I can't express my thoughts
and feelings in Xhosa. I think you remember me. At the criminal
trial, I asked the translator to tell you that I had forgiven you. Do
you remember that?
APPLICANTS: Yes, we remember.
MRS FOURIE: And I shook your hand. Mr Gqomfa, was
unwilling and he looked the other way, but I certainly shook Mr
Mabala and Mr Madasi's hands. Nothing has changed, I still feel
exactly the same way and I do forgive you because my High
Command, demonstrated to me how to do that by forgiving his
killers.
I want to tell you who Lindi was. She was known as Lindiwe
by her Xhosa friends. Lindi was a true child of Africa. She was
happiest hiking in the mountains, riding a horse with her dog out in
the countryside. She was just finishing a Bachelor of Science in
Civil Engineering and had spent a lot of time designing and thinking
about how it would be possible to improve the infrastructure in
places like Khayelitsha, so that running water and waterborne
sewerage would be available, to people who have been oppressed
and discriminated against.
She had spent her vacations with one of the big engineering
companies in the Western Cape, and during lunch time the black men
would come and tell her about their lives. She would come home in
the evenings, and tell me the tragic stories of hopelessness and the
despair that they felt in never being able to get further than being
labourers.
She understood that. She wept to know that that was
happening in her country. She helped me to understand how subtle
my prejudice and bias and racial discrimination was. But it was
nothing blatant, it was in the very, very subtle fibres of my being.
She helped me to understand that.
She was totally willing to treat everyone as an equal and she
did that openly and freely. Her black friends were as important to
her as her white friends. Lindiwe could have been your friend.
You did your own cause immeasurable harm by killing her. She was
totally opposed to violence. She was a gentle person who cared for
not only the people, not only the little people, but the animals and
the flowers, the ecology of our country and the world.
As a medical person, I had to go straight back into the wards
of Groote Schuur and treat your colleagues who had been shot and I
needed to do that without showing any bitterness or resentment.
God gave me that grace. I think the reason that I am here,
have been here through this week and particularly today which is
very important to me, is to tell you that on that day you ripped my
heart out. Lindi was one of the most precious people and I am
biased because she was my daughter, that this country could have
produced.
I resent being called a victim, I have a choice in the matter. I
am a survivor. Lindi was a victim, she had no choice. I have just
had major surgery, which I trace as a direct result to the stress and
trauma that resulted out of the Heidelberg incident. It has been
demonstrated that cancer of the colon is something that results from
tremendous stress. So first my heart was ripped out, and now half
of my gut.
I am happy that you are well, I hope that emotionally and
psychologically you can be well because my greatest concern is that
you have been programmed killers, you repeatedly said that you
were acting under orders from your high command.
You could not tell us how you felt which indicates to me that
possibly you have been trained not to feel and I can see that that
would be important in a killing machine, to be unable to feel, but
just to carry out orders indiscriminately. And that is my greatest
fear.
I have no objection to amnesty for you, but we know there are
enough indiscriminate killers on our streets and my fear is that we
have three more who are capable, because of their programming to
do exactly the same thing once you are released.
I wished that it could be otherwise and perhaps with time and
counselling things can be otherwise, and I would wish that that is
possible and that it is made available to you as it has been made
available to us, to have counselling for the tremendous trauma that
we have been through and I am sure you have been through trauma
as well. Both through the incident and through your own
experiences, which Lindiwe would have been delighted to hear and I
would be also interested in hearing how you experienced oppression
personally. I have experienced oppression as a white woman and I
am sure the oppression that you have experienced, may be much
worse. But I would like to know the details because that is what
Lindi would have wanted to know too.
We came here hoping to hear the truth about who the people
in high command were who organised this whole dastedly affair. I
am not convinced that that truth has come out and until it is, and
does come out, I am not happy that you could just disappear into the
woodwork.
I know that it must be terribly frightening to reveal who the
high command is because your own lives are in jeopardy if you do
get amnesty, and I appreciate that it must be very, very frightening.
I thank you for being able to look me in the eye and for
having to hear my story. Thank you Mr Chairman.
MR PRIOR: There is nothing further Mr Chairman, from this
witness.
NO FURTHER QUESTIONS BY MR PRIOR
CHAIRPERSON: Mr Arendse, are there any questions you wish to
put to this witness?
ADV ARENDSE: No, Mr Chairman, there are just two things I
would like to mention maybe for the record. The first one is that in
terms of Mrs Fourie saying that she hasn't had everything, we've
only got three applicants here before us and they have said what
they did, including killing her daughter.
The other thing is it is a matter of record, certainly it is in the
bundle that is before the Committee, that the APLA high command
and this is what I am not sure about, the APLA high command is on
record when they made submissions to the TRC Committee, I think,
on the 7th of October, as having accepted responsibility for what
happened and there is also a statement that we put to the applicants
which had been handed up on behalf of Mr Xuma where he says as a
member of the APLA high command they accept responsibility and it
is also clear that they were the ones, including Mr Xuma, who had in
fact organised this attack. So that is a matter of record.
I am not sure whether Mrs Fourie is aware of that.
CHAIRPERSON: They are accepting responsibility for what has
happened, appears from the papers, but we have to decide whether
we would like to call the person who gave the orders to appear
before us for having given the orders and to explain why he gave
such orders. We haven't decided that, we may very well decide that
we would like to hear that evidence, if not now, but at some stage.
ADV ARENDSE: Well, the evidence thus far, which is
unchallenged, is that Mr Gqomfa got his orders directly from Mr
Nonxuba who unfortunately is deceased and the other applicants
Mabala and Madasi have said that they received their orders from Mr
Gqomfa.
CHAIRPERSON: We will deal with that during your address.
ADV ARENDSE: As you please Mr Chairman.
CHAIRPERSON: Yes.
JUDGE WILSON: The statement by Xuma which you referred to,
which is being handed in, is not an affidavit. It is merely a
statement prepared by him and signed.
CHAIRPERSON: Anyway that is a matter we will deal with at a
later stage. If there are no further points you would like to put to
Mrs Fourie, then I would like to excuse her.
ADV ARENDSE: No, Mr Chairman.
CHAIRPERSON: Mrs Fourie, thank you very much.
MRS FOURIE: Mr Chairman, may I respond to Mr Arendse's
comment.
CHAIRPERSON: Yes.
MRS FOURIE: Yes, I do understand that the PAC as a group, have
taken responsibility, but have the people who were directly involved
with planning this whole thing, and getting these gentlemen to
execute the orders, they are the people that we want to know about
and have they applied for amnesty?
CHAIRPERSON: These are factors which we will be considering.
MRS FOURIE: We appreciate that Mr Chairman, thank you.
CHAIRPERSON: Thank you.
WITNESS EXCUSED
MR PRIOR: Thank you Mr Chairman, I call the next witness, Mr
Quentin Cornelius. Mr Cornelius is in a wheelchair, and I think it
may be convenient, Mr Chairman, for him to sit where Mrs Fourie
sat.
He appears at item 2 of the submissions by victims Mr
Chairman, thank you.
QUENTIN CORNELIUS: (sworn states)
EXAMINATION BY MR PRIOR: Mr Cornelius, thank you for
appearing. Is it correct that you have prepared your own
submissions which form part of the Bundle of documents that was
handed up to the Committee?
MR CORNELIUS: That is correct.
MR PRIOR: Do you have a copy of the submissions that you intend
to present in your evidence?
MR CORNELIUS: I do.
MR PRIOR: And you wish those submissions to be incorporated as
part of your evidence?
MR CORNELIUS: That is correct.
MR PRIOR: Just for the record, how old are you now?
MR CORNELIUS: I am 24 years.
MR PRIOR: Are you married?
MR CORNELIUS: No, I am not married.
MR PRIOR: And where do you reside at present?
MR CORNELIUS: I live in Randburg, Johannesburg.
MR PRIOR: Thank you. Will you please proceed with presenting
your submissions to the Committee.
MR CORNELIUS: Mr Chairman, I just want to go through the
piece of my position and feelings regarding this amnesty application.
From the 30th of December 1993, my life has never been the
same for obvious reasons, being in a wheelchair, having lost the use
of my legs due to the fact that I was shot in cold blood, at point
blank range by the three applicants. There is a lot a person can deal
with and I thank God for the courage given to me and that got me
where I am now.
If it was not for that courage and strength and my optimism, I
would not have been here today. It is however, made very difficult
when you have root nerve pain and various other forms of pain on a
daily basis, pains that you can hardly explain to somebody, that I
would never have had if this did not happen.
I have lost a kidney and various parts of my intestines as well,
as a result of the shooting. This has been the reason and the cause
why I initially ended up in hospital for several months and have
subsequently been in hospital again a couple of times, because of
various complications.
Nobody will ever know what it is like, what suffering a person
has to go through until it has happened to you. I would like to have
each of the perpetrators look me in the eye and choose whether they
would not mind having a rifle stuck in their spines and the trigger
being pulled on them in cold blood, to leave them emotionally and
physically scarred and disabled as I have been or would they rather
stay in jail and serve their sentences for the crimes that they
committed?
There was a freedom fight in this country for many years
before, our current President, Nelson Mandela was set free in the
early 1990's, in fact I think it was 1991. He became President of
this country due to the democratic elections that was held in April of
1994, only four months after this horrific attack was launched on us.
All political parties had by that time, come to agreement
already that they are on the road to democracy in this country,
including the perpetrators' party, including the PAC that had part in
the interim constitution that was accepted on the 3rd of December
1993, almost or just less than a month before this attack was still
launched.
Why was this attack executed, given all these things? The
time period and the fact that we already embarked on a road to
democracy? It was years after everybody had already accepted,
several years after it was accepted and realised that the freedom
struggle was over and in my opinion, and I believe that this is the
common belief under South Africans, this attack was launched in a
period when the struggle was over, there was no reason for any
group or fraction to prove a point, by launching such attacks.
This was completely out of and after the supposed accepted
time frame when such terrorist attacks was executed to prove a
point as part of the struggle, but the struggle was already over.
This point was proved, and I can't understand why this attack
was still sent through. For this very reason, I am not prepared and I
cannot find it in my heart, to forgive them at this point in time. I
therefore oppose this application for amnesty. I do not believe that
any murderers or criminals should be granted amnesty. The
murderers and criminals have been tried, convicted and sentenced by
a Supreme Court in this country. It proves to the ordinary person
on the street and every other criminal, that it is just another one set
free, or another three will be set free on our streets to roam as many
other criminals in my belief, are still free on the streets.
The fact that the command was given by your higher
authorities, still does not give any, and I repeat I want to stress that
it does not give any person the right to go out and shoot young,
innocent people that sat in a Tavern that night, that had no
connection whatsoever with the Security Forces in this country. I
had no political affiliation to anybody, I was merely visiting a very
good lady friend of mine that has been killed in this attack, Lindi
Anne Fourie, and I cannot see in my heart, ever, that any person has
got that right to walk in and take another person's life in cold blood
when you don't even know who you are shooting at.
Lives have been taken and lives have been maimed because of
these orders handed down. There is in my opinion no reason
whatsoever, to be such cowards, as to attack a pub full of cheerful
young students in the middle of the most cosmopolitan area,
Observatory, in Cape Town, on the eve of new year, whilst they are
enjoying their youth together with youths of all other races, colours
and creeds and all this whilst we were on our way to the first
democratic elections in this country.
I request of the perpetrators and their leaders, and I would
like to echo what Mrs Fourie said, that was the higher command, the
higher parts in the PAC and I believe, I heard what you said Mr
Chairman, that it will be looked at further, and I do hope that it will
be looked at further, but I request of them all, to explain to us why
this was done, and if they have any logical reasoning for such a
senseless attack at that time.
Mr Chairman, I oppose this request for amnesty.
In conclusion, I just want to mention for the record, that I am
not going into any detail whatsoever, as to my emotional suffering,
physical pain, absolute distress and anger, fear I went through
during those couple of months in hospital and the following years up
to now, the absolute indescribable sacrifices and pain that my
parents, my brother and my sister went through, pain and anger and
fear that my family and friends experienced. The humiliation of
trying to adjust back into a very unforgiving society as an invalid,
dependant on people for almost everything that you have to do,
having to cope with the very unfriendly environment every day of
your life.
Needless to say I could write, mention of write another 200
pages just on those few points, Mr Chairman, however, I have been
able to cope in many respects and I will continue in my positive way
as I believe I have been.
In conclusion to all of this, I am just interested in one thing,
Mr Chairman, I want to see justice served. That's all, thank you.
MR PRIOR: Do you confirm the statement and the information you
have conveyed to the Committee, as part of your evidence?
MR CORNELIUS: I do.
MR PRIOR: Now, you have been in attendance throughout the
proceedings from Monday, the 27th have you not?
MR CORNELIUS: That is correct.
MR PRIOR: And you've listened to the evidence of the applicants,
as to how the attack occurred?
MR CORNELIUS: That is correct.
MR PRIOR: I don't propose Mr Chairman, leading the witness
through his summary on page 28, but are there any comments you
would like to make about the incident, that differ materially from
what you have heard presented thus far at the hearing?
MR CORNELIUS: Mr Chairman, there is one point I would like - I
have raised before and I would like to raise it again. I think it was
proved through the Police video and other evidence, that there must
have been at least two shooters inside the Tavern and we have not
been told for definite, if the second one was inside. They have not
disclosed that evidence and I believe and I would like to challenge
them and say that there was two people inside.
When I posed the question to Mabala I think, I asked him, or I
think it was Madasi, I asked him where was Sibeko, the sixth
person, he said he had forgotten. In my opinion, he was inside and I
would like them to comment on that again.
MR PRIOR: Just another aspect, I think you mention it in the
question that you had when you asked the applicants questions. The
sounding of the shots, or how the shots sounded whilst you were in
the Tavern. Are you able to describe that for us?
MR CORNELIUS: Mr Chairman, the shots were fired in lots of
two, one and two and maybe three shots at a time, as if it was
directed at people specifically at the time, the way a rifleman would
be taught to shoot - in spurs of two shots at a time, and it was not
automatic, random fire.
MR PRIOR: Is that your recollection?
MR CORNELIUS: That is my recollection.
MR PRIOR: Have you been able to compute or calculate the extent
of your damages thus far?
MR CORNELIUS: I have made a submission of a claim to the
Truth and Reconciliation Commission in May of 1996, at the TRC
offices in Johannesburg and at that time, it was in the region of and
I stand corrected, but if I remember correctly the amount was in the
region of R1,2 million in terms of physical, actual things that you
could count up and see and that obviously excludes any emotional
pain and suffering, loss of income and things like that. That was
purely on medical expenses and future medical expenses etc.
MR PRIOR: Since the incident in 1993, have you received any
assistance from the State in re-establishing or rehabilitating
yourself?
MR CORNELIUS: Up to this point, I have not received a cent from
anybody.
MR PRIOR: You indicated to me before you gave evidence, that
was some days ago, when we consulted, that you would request this
Committee to refer your matter, your case to the Reparations
Committee, is that correct?
MR CORNELIUS: That is correct.
MR PRIOR: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR PRIOR
CHAIRPERSON: Mr Arendse?
CROSS-EXAMINATION BY ADV ARENDSE: Mr Cornelius, you
attended the hearings at court, the criminal court in 1994 which led
to the conviction and sentence of the three applicants?
MR CORNELIUS: That is correct.
ADV ARENDSE: And you gave evidence in that court?
MR CORNELIUS: I did.
ADV ARENDSE: From the evidence and I am sure that on your
own view, no one saw their faces so no one could identify these
applicants?
MR CORNELIUS: That is correct.
ADV ARENDSE: Was there - and you know and it is also on
record, that they were convicted on if I am wrong, the Committee or
Mr Prior will correct me, there was a lot of technical evidence about
their hair samples, the ballistics, the cap and things like that, in
other words it was circumstantial as they call it, but technical
evidence, nevertheless?
When you left that court after they were found guilty and
sentenced, how did you feel about that? How did you feel about
them?
MR CORNELIUS: I felt in the first place that due to the evidence
that was there and they were convicted on that evidence, that it was
the right thing to have happened, for them to be jailed or sentenced
for crimes committed, so I felt that that was correct.
I also felt that it was - justice had been served, but I hadn't
heard the entire truth. I hadn't heard everything behind it, so I did
have a feeling of emptiness and I must admit that through these
proceedings, it has been a lot more evident to me and a lot more has
come up, come out than what we knew after that court case and for
that I am grateful.
I did feel, however, quite empty after that court case, as I
haven't got out of it what I did now, after the court case.
ADV ARENDSE: No, that is exactly, I think you have made the
point. You feel a lot better, that emptiness that you felt after the
criminal trial, somehow whatever hole there was, has been filled
through these proceedings, do you agree with that?
MR CORNELIUS: I would agree with that, but I would still want
to see justice served.
ADV ARENDSE: Now, you know these proceedings are held in
terms of a law of Parliament and that law allows for amnesty to be
granted even to these applicants, who committed the most heinous
crime as long as they meet the requirements of the law, you accept
that?
MR CORNELIUS: I accept that that is what is stated in the law at
the moment, however, I don't believe that they have met the
requirements. And if they haven't met the requirements, I still see
that they should not be granted amnesty and should serve their
sentence.
ADV ARENDSE: I am just wanting to understand your opposition,
or the basis of your opposition, that is why I am asking this
question. Justice was served and in fact, it has been confirmed, that
they are the ones who participated and who committed this crime.
Now, we come to the amnesty process, which you will accept
is different from that court process. Now, is your opposition then
not based on the fact that justice must be served, but that they didn't
make, they haven't told us everything? Is that why you are opposing
this?
MR CORNELIUS: I would, Mr Chairman, through you, there is
two reasons why I oppose this, and the one is purely an emotional
reason and it is probably not grounds, it is my personal reason, but I
oppose this because I don't believe that they have told us everything.
I don't believe that full disclosure have been given.
ADV ARENDSE: No, the first ground, I mean it is perfectly
understandable, and I will be the first to say I am sure that if I were
in your position, I would oppose it on that basis, too.
But let's deal with the disclosure aspect. You have mentioned
today that and this you say have been proved by the video evidence,
that least two of the attackers were inside the Tavern.
That video was shown at the criminal trial.
MR CORNELIUS: Correct.
ADV ARENDSE: So you saw that?
MR CORNELIUS: I was not allowed to see it. As a witness and a
victim in that court case, we were not allowed to actually be inside
the court room before we had given our evidence.
ADV ARENDSE: Okay, fine. So you also now saw the video for
the first time.
MR CORNELIUS: I only saw it for the first time now.
ADV ARENDSE: Now, you gave evidence nevertheless.
MR CORNELIUS: Correct.
ADV ARENDSE: And you also made a statement to the Police,
now in your summary of your evidence which one finds on page 44
from line 21 onwards, and I will just read it to you Mr Cornelius,
line 19. Two of the women, Bernadette Langford and Lindi Anne
Fourie were flat mates of David Deglon. They were with him and a
friend Quentin Cornelius, a friend from Johannesburg. They sat at
one of the tables at a raised platform area in the Tavern.
This table, probably because it was diagonally across from the
opening of the door and fairly visible, suffered the worst under the
attack. Not only the deceased Bernadette Langford and Lindi Anne
Fourie were killed here, but David Deglon and Quentin Cornelius
were also seriously injured.
Roland Palm were also sitting at one of the tables on the
platform when the attack started. Is that summary reasonably
accurate?
MR CORNELIUS: That is accurate.
ADV ARENDSE: Now, I am actually just looking for the part
where, sorry on page 47 Mr Chairman, at line 20, because you will
recall that the applicants were also charged with attempting to kill
you, attempting to murder you?
Quentin Cornelius, as we have already seen, was a visitor to
Cape Town. He was in the company of Lindi Anne Fourie,
Bernadette Langford and David Deglon. He sat at the same table on
the platform. He suddenly heard a pop sound and immediately knew
that this was rifle fire although he did not see anyone firing. He
dived towards the left, but while diving, he was hit by one of the
projectiles which flung him two metres further onto the ground. He
realised that his lower body was lame and pulled himself by his arms,
under one of the tables to hide. There was pandemonium in the
Tavern.
My question to you Mr Cornelius is, why are you only saying
that there were two of these killers inside the Tavern because you
saw the video evidence? Is that the only reason why you are now
saying - because may I just add before you answer, that in your
statement to the Police which I had Mr Chairman, but somehow I
can't get hold of it, I don't know if Mr Prior's got a copy, you don't
say there either that anyone was inside the Tavern?
Why are you now insisting that there were two people inside
the Tavern and also before you answer, in your own prepared
statement which is in front of us, on page 28, you also say that you
believe that there were five gunmen firing automatic rifles at random
at the patrons inside the Pub.
I've got the statement now in front of me, Mr Chairman,
maybe I should just read this bit. It is paragraph 3 and it is in
Afrikaans. Roughly at midnight I heard shots, I jumped up. My
back was turned towards the attackers and at that moment, I was
injured in the back.
"There were numerous shots fired, but these were single shots
and not automatic fire".
That is what you said in your statement. The date is unclear because
of the photocopy.
MR PRIOR: Mr Chairman, the original is available, it is dated the
5th of January 1994.
JUDGE WILSON: Shouldn't you read the next paragraph as well?
ADV ARENDSE: The next paragraph says I subsequently fell to
the floor and dragged myself away underneath one of the tables. I
did not see the attackers and do not know how many attackers there
might have been.
MR CORNELIUS: My response to that is I did not know how many
people there were exactly. As I said in this statement as well, there
was a lot of shots fired, but I can distinctly remember and I never
lost consciousness throughout this, I do remember single shots as if
one and two at a time, and not automatic fire.
The reason why I say there were two gunmen inside is I heard
and it was at a very, very close range, when you have a gunshot on
this side and a gunshot on this side, from behind you, you can
distinctly understand or remember that it is two separate rifles and
although I didn't see them, it is my belief that there were two
gunmen inside.
And because of other evidence after the time as well, like the
amount of spent cartridges found inside the Pub, is it to me obvious
that there must have been two. I distinctly remember the gunfire of
two separate rifles from inside the Tavern. I also heard gunfire
outside, but you could hear the difference between inside and
outside.
ADV ARENDSE: Mr Cornelius, unfortunately I've got to take
issue with you on that. Firstly, I can understand why you said in
your statement and at court, why firstly you never saw any of the
attackers and also why you couldn't say how many of them were
inside or anywhere at the Tavern.
And I also want to suggest to you, and I think you've partially
answered that question, that whatever view or suspicion you might
have had as some are being influenced by what you saw on the video
camera, when you saw the video here. Would it be fair to say that?
MR CORNELIUS: It could be fair to say that, I was obviously
influenced by that, but I would like to say again that and I am
tempted to use this as the applicants did as well, I was there and I
really did hear gunfire from separate rifles inside the Tavern and
they were single shots fired and not automatic fire at that time. I
might have been influenced later on by the video as well as by the
Police records and evidence and the amount of cartridges found
inside, but it just confirmed my suspicions and my belief.
ADV ARENDSE: Now, Mr Cornelius, on my reading of the
summary that is contained in the Judge's judgement, apart from a
Ciska du Plessis, who also happens to be a Captain in the South
African Police, apart from her alleging that she saw two men come
through the front door, no one else had mentioned anything about
any gunmen, any of the attackers being inside the Tavern. Do you
remember that? You were there during the whole of the trial?
MR CORNELIUS: Yes. I was however, not inside. What I hear
from you now, is from the records, because we were only allowed
into the court when I gave my evidence.
ADV ARENDSE: Yes, of course.
MR CORNELIUS: So I wasn't actually in the trial.
ADV ARENDSE: Okay, I am sorry then. Yes, that would be right.
Whoever then came after you, I don't know in which order
witnesses came.
It also seems to me from reading of the evidence, and I just
want to put this to you, I don't want to have a fight with you, that
there were what is referred to in Afrikaans as two volleys and I am
reading from the evidence or the summary of Mr Gary Donovan
Atkinson who was the owner of the Tavern at the time, and it is on
page 43 from lines 8 onwards, Mr Chairman. He says, he is the
owner, and then he goes on to say that at about ten to twelve that
evening, I heard a loud popping noise, followed by gunfire which he
thought was rapid fire.
MR CORNELIUS: Sorry, was that ten to eleven or ten to twelve?
ADV ARENDSE: Sorry, did I say ten to eleven, it is ten to twelve,
sorry. Followed by gunfire which he thought was rapid fire. He
took cover and shouted at the other persons in the Tavern to fall
down. This firing continued for a brief while and it was then paused
as though the attackers had departed.
He stood up to approach the telephone and at that moment,
the fire resumed. He again shouted at the roughly 50 patrons,
mostly in the central part of the bar, to fall down. This second
series of firing lasted longer than the first.
So it seems to me, what is the English word, I forget now ...
(intervention)
MR CORNELIUS: Two sessions?
CHAIRPERSON: Two bouts of firing, two separate occasions?
ADV ARENDSE: Yes, bursts. I think bursts is probably the better
word. There were two bursts of gunfire, it seems to suggest that, I
don't know.
MR CORNELIUS: I would agree with that.
CHAIRPERSON: I think Mr Arendse, the only real difference is
that he is drawing an inference, he doesn't say he saw two people, he
is drawing an inference from the fact that he heard firing from two
sides and that evidence was not given and was not asked in the
court, at the trial. Can you take it any further?
ADV ARENDSE: Okay, thanks. No, in fact Mr Cornelius, the
evidence here of the applicants is in fact that Mr Madasi who is
sitting nearest to you with the white top, came inside the Tavern
through the side door and sort of partially hiding behind the wall
there, was firing at you and I think that is what the Judge meant that
you, on the raised platform were immediately closest to him and
visible, and he fired and at the same time, the evidence of the
applicants is that Gqomfa was on the far right, and Mabala in the
middle, sorry not Mabala, someone else who is now not here,
Jantjie, were firing from outside the Tavern through the double
doors and through the windows.
Would that correspond with what you felt was happening that
night?
MR CORNELIUS: I can't say that that is any different from what
might have happened, it sounds correct to me. There were gunfire
through the windows as well, and outside in the street, but I heard
gunfire inside the Tavern.
ADV ARENDSE: Now, we've also heard from Mr Cerqueira, I
think I've got his pronunciation right, Mr Cerqueira who appeared to
know a bit about guns. He also, when I asked him what he heard, he
spoke about I think, I speak under correction, rapid gunfire which I
asked him like automatic fire? Would you not disagree with that?
MR CORNELIUS: I can't say if others were on automatic fire
outside or wherever they were, if there is five or six or four rifles
for that matter, firing at the same time, two shots at a time, it will
most certainly sound like automatic gunfire. But I for definite heard
single shots fired at the time, and not on automatic fire.
ADV ARENDSE: Well, just for the record, we put that in issue Mr
Cornelius, because that is my concern as the representative for the
applicants. You must correct me if I am wrong, but the impression
that you want to create is that they, two of them came inside the
Tavern, and not only randomly and indiscriminately, they actually
aimed at you and they aimed at some of the deceased. Is that the
impression that you are creating?
MR CORNELIUS: That is the impression not that I want to create,
that is the impression that I have.
ADV ARENDSE: I want to put it to you that that impression is a
wrong impression, it is not supported by the facts.
MR CORNELIUS: I don't agree.
MR PRIOR: I think that is incorrect, with respect, and I must
object. Exhibit A has gone in, there has been evidence about Exhibit
A, and if we look at the photograph at page 2(b), the cartridge that
is against the wall, between the two deceased on the raised platform,
has never been explained and certainly would seem to suggest on the
inferences, that that was ejected from a rifle very close to that
position. Certainly not anywhere near the door.
So, my objection is simply that to say that it is not being
substantiated by anything, is misleading.
JUDGE WILSON: There may be some merits in your objection if
we had any evidence about it. Don't you think we should have some
evidence Mr Prior, from someone who is an expert in R4 rifles to
tell us where the cartridges are discharged, how far away they can
be thrown.
It may well be that the evidence will be that they are
discharged to the right, so someone standing where this young
gentleman said he was standing at the gap in the wall, cartridges
from his rifle could never have gone anywhere near the raised
platform. But we haven't got that evidence before us at the moment.
This question about where cartridges go to, is we all have to
rely back to the time we last used a rifle and try to remember. And I
think it would help because, can I while we are on this, and I am
interrupting you Mr Arendse, I don't want you to look at the
photographs - I think that they are, I would rather you don't look at
the moment, but can you look at that plan, it is Exhibit B.
Can you indicate to us approximately where it was that you
were sitting?
MR CORNELIUS: The closest I can explain, if you can see the "d".
JUDGE WILSON: "d"?
MR CORNELIUS: The "d" is pointing to a raised platform and
there, what seems to be tables.
JUDGE WILSON: In fact, Exhibit D is where one of the bodies
was found.
CHAIRPERSON: Okay, because it was on that platform, the
second table into the shop. There was one other table that was
slightly below us and right behind us, and that was the table that Mr
Palm and his daughter sat at.
JUDGE WILSON: And you were the second table on that raised
platform?
MR CORNELIUS: We were the second, on that raised platform.
JUDGE WILSON: I think we all know what you mean by the raised
platform, that is on the right of the plan, marked off by a double
line.
MR CORNELIUS: Correct.
JUDGE WILSON: And you were approximately somewhere near
where the "d" would have been?
MR CORNELIUS: More or less there, yes.
JUDGE WILSON: Where the, sorry not where the "d" is, but where
the line from the "d" ends, thank you.
ADV ARENDSE: Just on the other aspect, with respect, Judge
Wilson is correct is that all we have up to now before and which is
not in dispute and then Mr Prior is correct, is that these cartridges
were found close to or next to, on top of the deceased bodies.
There is no evidence, the only evidence is that from the applicant's
side is Madasi was standing, sorry maybe I could just deal with this
Mr Cornelius, you were at the end of that line which comes from
"d", is that right, more or less there?
MR CORNELIUS: Where I was lying after the attack or before?
ADV ARENDSE: No, where you were sitting and chatting and
having a drink?
MR CORNELIUS: I was sitting, correct.
ADV ARENDSE: Yes, now how far is that from the corner of that
wall? Or rather, let me put it this way, you see "h" there, "h" is an
entrance.
MR CORNELIUS: Yes.
ADV ARENDSE: Okay, now if Madasi says that he went down that
entrance and there is a wall there on his right as you go down, is
that right?
MR CORNELIUS: Yes.
JUDGE WILSON: What we've got at the moment is a little bit of a
wall and a wide open space and then another little bit of wall, should
that all be wall on the right? That is to about the level of "b", that
is all wall and then there is an opening, and that is what we see in
the photographs.
ADV ARENDSE: Thank you Judge. Is that opening directly
opposite where you were sitting?
MR CORNELIUS: I would say it was diagonally opposite.
ADV ARENDSE: Diagonally, okay. And how far would that
opening be from you, four, five metres?
MR CORNELIUS: At least, at least five metres.
ADV ARENDSE: Okay, because I want to put it to you or just for
your comment, my information is, and maybe we will test this with
whoever is going to be called to give us maybe some expert evidence
on where, how these cartridges land up there, is that when you are a
position of four to five, or even six metres away and you are firing
like Mr Madasi was firing with an R4 rifle, then it is quite possible,
and in fact it would happen that these cartridges could land some
four to six metres away from where you fire.
MR CORNELIUS: I do not believe that that is possible.
ADV ARENDSE: Okay, fine.
MR CORNELIUS: I do not believe that you can stand behind a
wall, as he says, and supposedly as we all know, cartridges shoot
out to the right if we want to use that, if he is behind a wall,
shooting at people in that direction where the wall that he took as
cover here, his cartridges should land against the wall, towards, and
not four or five or six metres, between the heads of two people lying
on the raised platform. I do not believe that it could go that
distance.
ADV ARENDSE: There is just something which momentously
slipped me Mr Chairman, I am just trying to think what it was. It is
this Mr Cornelius, and perhaps this is for the record Mr Chairman,
but obviously Mr Cornelius can comment.
Before a criminal trail starts Mr Cornelius, the State
Prosecutor, the State Advocate would give a summary of the
evidence that he intends to lead at a criminal trial. He gives it to
the other Advocates. Now I have that summary in front of me and I
want to read it to you.
I can obviously make it available if it needs to be.
CHAIRPERSON: What purpose does that serve, the summary?
ADV ARENDSE: The only purpose it serves is that it doesn't
mention anything, Mr Cornelius, about these gunmen, these
attackers having gone inside the Tavern.
CHAIRPERSON: That is not evidence in any case.
ADV ARENDSE: No, no, but we've had, Mr Chairman, with
respect, we've had statements which is not evidence, photographs
which is also not evidence being put to witnesses. I am putting it to
him for his comment, to be fair, he can tell me whether he agrees
with it or not.
ADV SANDI: Sorry, Mr Arendse, is it not because that is just a
summary of facts as the basis on which the State will found its case
and doesn't necessarily have to state everything?
ADV ARENDSE: Well exactly, the point is one would have
thought that the summariser will presumably ...
CHAIRPERSON: (Indistinct)
ADV ARENDSE: I don't want to take that any further. The point
is just, and it is maybe something more appropriately raised in
argument.
JUDGE WILSON: We know there were 48 cartridge cases
scattered around inside the Tavern. There must have been people
inside there, mustn't there?
ADV ARENDSE: Well, the applicant, one of the applicants
Madasi, says he was inside there.
JUDGE WILSON: Yes.
ADV ARENDSE: Yes.
JUDGE WILSON: Well, the fact that it is not in some summary
shows that the Prosecutor forgot to say it.
ADV ARENDSE: Well, he also then forgot to say that there were
two or five or two or more attackers inside the Tavern.
CHAIRPERSON: Yes, I don't think we can take that matter further
as to what the Prosecutor said in his statement.
Mr Cornelius, lastly, I want to ask you these applicants have
come before the Committee, you've heard them, you've been sitting
here all the time, you've heard them say that they are responsible for
what happened. They attacked the Tavern on orders, they killed the
deceased, they injured you. Is there any reason that you can think
of why they wouldn't want to say or except for the applicant Madasi,
is there any reason that you can think of why Mabala and Gqomfa
would deny or wouldn't say that they were inside the Tavern?
They have been found guilty, they have been sentenced, you
know that. They are in jail for 27 years, they are here at the
amnesty, this is the only, it is not the last opportunity, it is their
only opportunity to get out of jail. Is there any reason that you can
think of why they wouldn't want to make full disclosure including
saying but we were inside the Tavern, we shot and killed these
people?
MR CORNELIUS: I do not see any reason why Gqomfa or Mabala
should hide it, but why don't they tell us where the sixth person
was?
ADV ARENDSE: Thank you Mr Cornelius, I've got no further
questions.
NO FURTHER QUESTIONS BY ADV ARENDSE
CHAIRPERSON: Any re-examination Mr Prior?
RE-EXAMINATION BY MR PRIOR: Thank you. You indicated
where you were seated and where some of the deceased were seated,
your companions. And you were asked a short while ago can you
think of any reason why they wouldn't make full disclosure.
There has been evidence led and it has been suggested that
this was a Bar or a Tavern frequented by military personnel. As far
as you were aware on that evening, were there anyone that
resembled military personnel in uniforms or the like?
MR CORNELIUS: As far as I can remember, not one.
MR PRIOR: How were the people dressed on that occasion?
MR CORNELIUS: It was as if we were holiday makers, which I
was at the time, dressed in shorts, T-shirts, sandals, caps on, leisure
wear.
MR PRIOR: And if someone, we heard from I think Mr Madasi,
who indicated that the lighting, there was sufficient lighting to see
people?
MR CORNELIUS: There was.
MR PRIOR: A person could see clearly who was enjoying
themselves in the Tavern?
MR CORNELIUS: Correct.
MR PRIOR: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR PRIOR
JUDGE WILSON: Had you been there before?
MR CORNELIUS: No, Judge. That was the first time I had been
there.
JUDGE WILSON: And what door did you use to get in?
MR CORNELIUS: On the sketch it is marked by "h".
JUDGE WILSON: Now, the door that is marked "g" on this sketch,
I don't know if you remember it, it is a double door with glass, was
that door open?
MR CORNELIUS: No. It was locked and bolted from the inside.
And I specifically remember even looking at it, it seemed to be just a
feature, it hadn't been opened for years. That is certainly the
impression I had when I arrived because it is the first time I had
been there, and I looked at the place.
It was as if that was an old door, never used, and locked just
as a feature, it was completely painted closed.
ADV SANDI: Mr Cornelius, you say there was or there were no
members of the Security Forces in that Tavern, did I heard you
correctly?
MR CORNELIUS: To my knowledge, I couldn't identify anybody
by their dress, as military people or Security Forces, for that matter.
ADV SANDI: Save for uniform, is there any other way in which
one could have identified any such members at the Tavern?
MR CORNELIUS: Mr Chairman, the only way I think you could
maybe have identified them is if they openly wore weapons on them,
and I certainly and I was never in that frame of mind, to even look
at things like that.
FURTHER CROSS-EXAMINATION BY ADV ARENDSE: Mr
Chairman, just one question. Were you going to ask a question?
CHAIRPERSON: No.
ADV ARENDSE: Just arising from Adv Sandi's question. We
know now that Ciska du Plessis was in the Tavern and she I think
still is a member of the South African Police. So there was one
member of the Security Forces in the Tavern.
MR CORNELIUS: I believe there was, and I believe she is a PRO,
working in the Police Force. I don't believe that she is an
operational person, but she works in the Police Force and she is a
Public Relations Officer.
ADV ARENDSE: Then also following on that, at that time of the
night, would one expect members of the Security Forces to be in
uniform unless it is at the army barracks or at a military base which
clearly this wasn't?
MR CORNELIUS: Security Forces in my opinion include
Policemen and if we are led to believe that this venue was chosen
because it was frequented by Security Personnel, on that basis, I
would certainly expect that it would at least be at least maybe 30 or
40 percent of the people inside would be Policemen, whether they
were off duty or not, whether they were clothed in Police clothes or
not, I believe there was only one person in there, amongst a packed
place full of students.
ADV ARENDSE: No further questions, thank you.
NO FURTHER QUESTIONS BY ADV ARENDSE
CHAIRPERSON: Thank you. You are excused from further
attendance.
MR CORNELIUS: Thank you Mr Chairman.
WITNESS EXCUSED.
MR PRIOR: Mr Chairman, I call Michael January. The witness'
submissions are made at item 1 on the submissions by victims, pages
1 to 25. Thank you Mr Chairman.
MICHAEL JANUARY: (sworn states)
EXAMINATION BY MR PRIOR: Mr January, how old are you
at present?
MR JANUARY: At present I am 30 years old.
MR PRIOR: Are you married?
MR JANUARY: No, I am not married.
MR PRIOR: Is it correct that you were injured at the Heidelberg
Tavern during the attack by the applicants, on the night of the 30th
of December 1993?
MR JANUARY: I was injured in the Heidelberg Tavern on the
night of the 30th of December 1993.
MR PRIOR: Is it correct that you have compiled your own
submissions together with certain annexures supporting your claim
for compensation?
MR JANUARY: That is correct.
MR PRIOR: And it has been explained to you that we will not deal
in any detail with the claim for compensation but this will on your
request, be referred to the Reparations Committee?
MR JANUARY: That is what I understand, yes.
MR PRIOR: You indicated to me as well, that you wanted to read
out onto the record, to the Committee your submissions as you had
prepared them, is that correct?
MR JANUARY: Yes, that is correct.
MR PRIOR: Would you please proceed?
MR JANUARY: Thank you Mr Prior. Before the attack on the, Mr
Chairman, I will just be paraphrasing my submissions, because they
are quite extensive, I will just paraphrase them.
Before the attack on the Heidelberg Tavern, I was a
businessman. I was the sole proprietor of a business which
supported myself and also in a large measure, supported my parents
who at the time were on pension. The business I owned where I also
employed specifically my younger brother and it was his sole source
of income at that time.
MR PRIOR: What kind of business was it?
MR JANUARY: The work was computer related. We did a full
range of services from desk top publishing through to installations
of computers.
On the night of the incident, the 30th of December 1993,
myself and my cousin, Grant January stopped at the Heidelberg
Tavern in Observatory. Within minutes of entering the Tavern, we
had barely sat down, there were loud popping noises which I
immediately identified as gunfire.
I wasn't at that point sure whether the gunfire was inside or
outside the Tavern, but judged it safe to or the safest course being
to take cover under the table at which I was sitting.
Early in the shooting, I was hit in the back of my left leg
which caused extensive injuries to my leg and pelvis. I will briefly
outline the nature of those injuries. The bullet resulted in a
shattered thigh bone and I got a 40 cm steel pin which runs from my
knee to my hip joint. I have also since about a year after the
incident, on the 8th of November 1994, I had a nerve graph to try
and repair extensive nerve damage within my left leg, but this has
not had much effect. With the result that my left leg is still pretty
useless today and I walk with a limp.
I have been recommended by a family Doctor to walk at least
with a stick. For the first year I used crutches exclusively, but since
1995 I have been able to walk without the use of crutches and
although on recommendation I should be using a stick, I find this
impractical for the type of work I do at the moment.
While I was in hospital and on crutches and in the first few
months after I was shot, the nature of my injuries was such that I
was unable to continue with my business. It resulted in the loss of
that business. My brother was without work and my parents were
without the support I had provided them. In fact the situation had
been reversed, it was now my parents who supported me and my
brother was left to find employment elsewhere, which he eventually
did.
Needless to say, being a cripple today as it were, I have
suffered extensively in terms of pain, discomfort, I've had a
complete change of lifestyle, the loss of my business, the loss of
income and the work I do today, in no way can be compared to what
I used to do before I was so injured.
In this last four years, I have also lost many friends and
alienated family members as a result of behaviour and personality
changes due to depression, frustration and bitterness. Many days I
was unable to get myself out of bed in the morning, because I felt
not only had I lost the use of my leg, I had also lost my business, my
income, my whole future as it were. Often I felt that there was no
reason to go on, or to do anything.
Even today I suffer from continuous discomfort and after a
long day of work, I often have to ask a family member for a massage
to ease back pain and pain in my hip. The loss of sensation which I
have suffered in my left leg, is extremely dangerous as well, as I
often step in things or bang my leg or foot against obstructions
without realising that I have done so.
If I am lucky this only results in a fall which is not too bad,
and I have learnt to cope with it, but sometimes I have hurt myself
more than I realised.
Regarding my position on amnesty I would also like to say the
following. It has been an exceptionally difficult four years since my
disability. I have suffered from a great many things. I have
undergone various operations.
I lost my business, etc. I have continually prayed to God to
give me strength to face these hardships and the courage to forgive
the men who inflicted this disaster on my family. This forgiveness
did not come easily and for many years I dreamt of vengeance as it
were, of somehow getting my own back, but I can now say that the
Lord God, my Saviour, has given me the strength to unconditionally
forgive these men regardless of whether they are asking for
forgiveness or not. I unconditionally forgive them for what they
have done to me personally, however, I obviously cannot - it is not
my place to forgive them for what they have done to the other
people who have suffered as a result of their actions. Or as it were
for what this country has had to go through as a result of the
actions.
I cannot say with any truth that I have forgiven the people
who sent them. Neither can I say with any truth that I have forgiven
the system that left my family and me to suffer for the last four
years. We did not receive so much as a phone call to provide us
with relief in the last four years, not from any person in Government
or any Commission set up by the Government.
This is the bitterness that drives me to thinking of the Truth
and Reconciliation Commission as no more than a mechanism of the
system to forgive itself and whitewash the suffering that myself, my
family and the people of this country, have endured.
Despite having forgiven the men who shot me, I still wish to
hear the truth. Why were we victimised, what did they hope to
achieve by what they did to us? I can't honestly think that they
believed that what they did to us, has achieved anything.
I hope that these men will not receive amnesty unless they
come forward with the whole truth and expose all the (indistinct)
behind this event. I don't know if the Truth Commission will follow
up all the people responsible, or even if all of them have applied for
amnesty.
As a result of attending, further to the submissions that I have
made and which I have summarised, I also wish to say that as a
result of attending these hearings now and listen to the applications
and read in fact some of the applications that has been made, I find
it most disconcerting that the applications these men have made, are
very vague.
In fairness to them, I would say that regarding the position
they were in, they were probably not given enough time to make a
full application, but the impression certainly as in this hearing is that
the full disclosure has not been made.
More facts are continually being extracted in these hearings
and added and amended to the applicants' statements but which for
some reason, was not part of the original statement, that these
applicants have made. For their sake, I hope that this is not
construed as deliberate attempts to be vague, but for example Mr
Madasi's admission that he was inside the Tavern, was a crucial
piece of information which should have been in his original
statement.
I hope that this does not negatively impact on Mr Madasi's
application.
I do also feel that I know something of where these men come
from emotionally and politically as I myself have experienced
oppression in the schools and in the townships in which I was raised.
And yet for all that our family have experienced, I can say that my
family has experienced a lot under Apartheid and under the racist
regime of the National Party, yet, we never turned to the course
they took.
It has often been said by various people in Government, that
the actions of freedom fighters should be considered in the light that
they were fighting a just cause, a just and noble cause, being the
freedom and justice for all the people of this country. However, in
the light of that cause shouldn't the actions they take to further that
cause, reflect the nobility and the justice of the cause for which they
are fighting?
I don't think indiscriminate murder can properly be considered
in the light of a just war. Many freedom fighters, many soldiers for
the cause of liberation, have done sometimes many brave things and
very courageous things and all of this, in a very noble course and I
think that many of them, would not want to be considered as
indiscriminate murderers.
My differences are not with these individuals though, but with
the mentality of an organisation which led to its soldiers and allowed
those soldiers to attack its own Government. We all know that the
peace negotiations were well on the way by the time this attack took
place. In fact the National Party, the racist regime, had already
transferred power to the Transitional Executive Council and the
elections was almost inevitable, but this organisation had the gall to
allow these men to be tried and sentenced while its leaders embraced
the gravy train as it has been called.
Where are these leaders today? They are hiding behind these
men who are being duped into losing their chance at amnesty while
the leaders continue on that gravy train. I am opposed to amnesty,
not on the grounds of truth or the disclosure of these men, but that
amnesty cannot be given to us the survivors.
Mr Prior has attempted on various occasions to explain to me
the nature of these proceedings and amnesty, and he explained to me
that the word amnesty as derived from the Greek word amnesia,
which means to forget. Well, we cannot forget.
A just war is understandable, but granting amnesty to people
who killed indiscriminately will be condoning the actions of every
single individual worldwide, who has ever planted a bomb on an
airplane, machine gunned a restaurant or killed innocent people in
the name of political idealism.
I don't think that is the message South Africa wants to send
out to the world that killing innocent people is justifiable,
politically. If you are going to be fighting a just war, then you must
consider your actions in the light of the cause for which you are
fighting.
I would almost go so far as to say that the actions, not
necessarily by the three gentlemen I have in front of me, but the
actions of their leaders by sending them on such an attack, I would
almost go so far as to say that the actions are treasonous in that
their attempt was to derail the peace process and to derail the
elections and would have resulted in great bloodshed for this
country.
So their actions are treasonous to the people of this country
and I don't believe that the attack on the Heidelberg has in any way,
furthered their cause. In fact, I believe that it was a set back to
their cause and in that light, their actions are treasonous to the
cause for which they fought, or claim to have fought.
That is all I have to say at this point, Mr Chairman, thank
you.
MR PRIOR: There is no further questions, thank you.
NO FURTHER QUESTIONS BY MR PRIOR
CHAIRPERSON: Mr Arendse, are there any questions?
CROSS-EXAMINATION BY ADV ARENDSE: Thank you Mr
Chairman. Mr January, you gave evidence at court.
MR JANUARY: Yes.
ADV ARENDSE: And your summary is on page 51 of the record.
MR JANUARY: Okay.
ADV ARENDSE: And then you also prepared your own statement
which is on page 2 of the second bundle. And just your comment
from reading both, it doesn't seem to me that you are saying that the
attackers were inside the Tavern. Maybe I should read it to you.
On page 51, the second line Mr Chairman.
Michael January and his cousin Grant, were also sitting on the
platform. Like other persons, he first heard a loud pop sound which
he could not identify and then from close by a series of hard sounds,
very loud sounds, which made it impossible for him to think of
anything else. All that he could do was to lie down flat on the little
seat.
After a two or three second pause, the shooting started again.
He wanted to hide under the seat when he felt that he was wounded
in the leg. He attempted to close the wound, the opening of which
was larger than the palm of his hand, while he could see the bullets
hitting all around him.
For a frightening while he lay down very quietly. Grant them
asked him whether he had been wounded and fetched assistance.
Then in your prepared statement on page 2, under the sub-
heading the incident you say in the second line of that paragraph
within minutes the shooting started, I didn't see much since the
shooters were in a dark entrance way and shooting through
windows. I hid under a table but was hit anyway in the back of my
upper left leg thigh. Just your comment.
MR JANUARY: Yes, I don't know, I am sure that it must have
been taken down in a statement at the time. I spoke to many
Policemen while I was in hospital. My feeling has always been,
although I never specifically saw the attackers, from the position I
was at, I didn't have a clear view towards the entrance way, but I
was aware that there was shots coming from the direction of the
entrance way. I was also aware of shots being fired through the
window as from the position at which I was lying, I could clearly see
the windows and the double doors.
And I could actually see holes appearing in those double
doors and in those windows where the shots were being fired into
the building from outside. But I was also aware of people shooting
from the direction of the entrance way.
ADV ARENDSE: Can I just pass you the photographs, photograph
11 through to 16. One can see from those photographs Mr
Chairman, that shots were fired there through broken windows,
through the door.
JUDGE WILSON: As I see it, there were four shots fired through
the double door. Do you agree Mr Arendse? Two through the glass
and two higher up?
ADV ARENDSE: Then there is a broken window.
JUDGE WILSON: There is a broken window to the right, facing ...
ADV ARENDSE: Yes.
JUDGE WILSON: ... where other shots were fired through the
stained glass?
ADV ARENDSE: That is correct.
CHAIRPERSON: What is the question you want to put to this
witness, Mr Arendse?
ADV ARENDSE: Is that what you were describing, that when you
say you heard or saw shooting through windows, it must have been
that then?
MR JANUARY: Yes, I was sitting on a raised platform. At least,
at that time I had thrown myself down, but I was on the raised
platform, and I had a direct line of sight to the double door and
those windows and that was definitely one of the directions from
which shots were being fired.
ADV ARENDSE: Okay, now how far is the raised platform from
the double doors and maybe you could just mark again, if someone
could just hand Mr January the sketch plan which is Exhibit B, from
the point - you've got the sketch plan there?
MR JANUARY: Yes, I've got the sketch plan.
ADV ARENDSE: You see "g" and "f", those are the double doors?
MR JANUARY: Yes.
ADV ARENDSE: From the furthest point in, because we can also
see from the photographs, the double doors are now sort of in, they
are not like that any more today, but they were in then, from the
furthest point in to the raised platform, what is that distance?
MR JANUARY: The entire area of that front room from about the
staircase to the double doors, the dimensions of that room is about 5
metres in width to about 10 metres in length. I was sitting right at
the back of the raised platform where there is a pillar indicated in
line with the staircase, that is above the point "d" that is indicated
on the sketch, there is a pillar above that point, and I was sitting
close to that pillar. So that would have put me about eight, nine,
maybe ten metres away from the double doors.
ADV ARENDSE: And you heard the evidence of Mr Cornelius,
how far would you have been from the opening in the wall?
MR JANUARY: As you can see the opening in the wall is rather
closer to the double doors, but diagonally across from myself, from
where I was sitting in the Tavern, to where that opening is, the
distance would have been about five to seven metres maybe.
ADV ARENDSE: Thank you Mr Chairman, I've got no further
questions.
NO FURTHER QUESTIONS BY ADV ARENDSE
CHAIRPERSON: Any re-examination Mr Prior?
RE-EXAMINATION BY MR PRIOR: I have no re-examination Mr
Chairman. Is there anything else that Mr January would like to add?
MR JANUARY: There is one thing that I would like to add. The
only reason I would like to add this, is that I feel that this hearing is
the only place where such things should be voiced and in terms of
reconciliation it is things that I would like to get off my chest.
But in some measure, I have a very negative opinion towards
what the Truth Commission is intending to or proposing to do. I
see, I often see the Truth Commission as merely a mechanism for
politicians to give their soldiers amnesty, while those same
politicians are never going to be implicated in the actions which
resulted from decisions they made.
I believe that amnesty is the reward for the soldiers taking the
fall for decisions which the politicians were responsible for. Thank
you.
JUDGE WILSON: Can I ask you something completely different.
You have been sitting in all this morning, haven't you?
MR JANUARY: Yes, Judge Wilson.
JUDGE WILSON: Are you in a position to tell us whether the
shots you heard were single, double, treble shots or whether they
were automatic fire?
MR JANUARY: Well, during the shooting I wasn't paying much
attention to how the shots were being fired, there were lots of shots
being fired, but I seem to recall in the hearing from Mr Madasi's
statements that he perceived movement and that he directed his fire
towards that movement.
I would infer from that that Mr Madasi implied that he was
directing his fire at movements he could perceive.
JUDGE WILSON: Thank you.
MR JANUARY: Thank you, Judge Wilson.
CHAIRPERSON: You are excused from further attendance Mr
January.
MR JANUARY: Thank you Mr Chairman.
WITNESS EXCUSED
MR PRIOR: Mr Chairman, I still have three witnesses to go and
there are one or two other aspects. One of them that Judge Wilson
raised and it was in my mind all along and we have discussed that
with the Investigators to obtain better evidence regarding, if such
evidence is available, to assist the Committee.
I see it is one o'clock, I don't know what the ruling would be
regarding the adjournment.
CHAIRPERSON: We will take the long adjournment now, but can
we resume at a quarter to two Mr Arendse?
ADV ARENDSE: Yes, Mr Chairman.
CHAIRPERSON: Will you arrange to see that your clients are
brought in in time?
ADV ARENDSE: Yes. It would of course help Mr Chairman, if
any of the other witnesses, if their statements are not already with
me, if it could perhaps be provided during the break so that we can
just, whatever delay there might be, so that we could just avoid that.
CHAIRPERSON: What is the position Mr Prior, is there a
likelihood that we would finish with the oral evidence this
afternoon?
MR PRIOR: Of all the victims?
CHAIRPERSON: Yes.
MR PRIOR: There seems a possibility at the rate that we have been
able to get through the evidence, but I don't have the other
evidence, the technical evidence regarding cartridges and I may also
indicate to the Commission that I am investigating whether a residue
test was done on the body of Mr Cerqueira, particularly on his hand
to indicate possibly whether he fired or not. I am trying to locate
that information.
CHAIRPERSON: Well, then we are bound to - we are faced with
the situation that at some stage or the other, we are going to
adjourn, leaving this matter incomplete.
MR PRIOR: That is so Mr Chairman. But certainly I would be able
depending on my learned friend, but we seem to have got through at
least more than half of the witnesses this morning, to maybe even
complete the submissions of the victims.
CHAIRPERSON: Are there any victims who come from outside of
Cape Town who might be inconvenienced if we didn't hear their
evidence this afternoon?
MR PRIOR: The remaining victims are from the Cape Town
surrounding area, except that at least two of the persons work is
being effected. I have been informed by their employers that they
loath to extend any further time from work, however a letter from
the Commission will suffice, but they have indicated they have
already given a week to these people.
CHAIRPERSON: We will resume, we will adjourn now, and resume
at quarter to two.
COMMISSION ADJOURNS
ON RESUMPTION
MR PRIOR: Thank you Mr Chairman, I call as my next witness Mr
Roland Lewis Palm. His submissions appear at page 34 of the
bundle. Mr Palm has requested that I assist him in reading out the
statement to the Commission. Is there any difficulty with that Mr
Chairman?
CHAIRPERSON: No difficulty at all.
ROLAND LEWIS PALM: (sworn states)
CHAIRPERSON: Thank you, do sit down Mr Palm.
EXAMINATION BY MR PRIOR: Mr Palm is it correct that you
are the father of one of the deceased in the Heidelberg Tavern
attack, Rolanda Palm?
MR PALM: That is correct.
MR PRIOR: Is it also correct that you were present during the
attack at the Heidelberg Tavern on the 30th of December 1993?
MR PALM: That is also correct.
MR PRIOR: Mr Palm is it correct that you pursuant to appearing
before the Committee, have consulted with me on a number of
occasions?
MR PALM: That is also correct.
MR PRIOR: That you supplied me with documentation and a
statement relating to submissions that you wish to make to this
Committee?
MR PALM: That is right.
MR PRIOR: Is it also correct that you requested me to assist you
drafting the submissions you wanted to make to the Committee?
MR PALM: That is true.
MR PRIOR: And is it also correct that you have indicated to me
that you wish me to read out on your behalf, the submissions that
you have made?
MR PALM: That I have done, because the reason being I don't
want to go through that emotions again.
MR PRIOR: I just want for the record, are you on any medication
at the moment?
MR PALM: Well, I am taking depressive tablets. Well, I have been
on it for quite a while, that is all.
MR PRIOR: All right. Please listen, and we will go through the
statement. During October of 1992 my son, Brandon Clinton Palm
was convicted of attempted murder and robbery and sentenced to 12
years imprisonment.
Brandon had always maintained his innocence and after five
years of incarceration, still maintains that he was falsely implicated
in these crimes by members of the Murder and Robbery Unit, Cape
Town.
By all accounts the crimes lacked motive and seemed
improbable as the victim worked in the same building where my son
was employed as a security guard where the alleged attack took
place.
Since 1992, my wife and I have pursued an arduous course of
leave to appeal for retrial, review, Ministries of Law and Order,
Justice, Correctional Services under the old and new Governments.
The office of the Public Protector, Human Rights Commission,
office of Mandela and lastly the Truth and Reconciliation
Commission all to no avail.
As a result of this situation, my daughter Rolanda Lucille
Palm came to live in Cape Town in order to assist her brother and
family in pursuing justice. On the evening of the 30th of December
1993, Rolanda and I were discussing the information she had
obtained concerning the complainant in my son's case.
We were sitting in the Heidelberg Tavern in Observatory,
enjoying a drink. She had agreed to accompany me to the Tavern in
order to get out of the house for a short while. We left home at
about 10h35 pm and walked to the Heidelberg as it was five minutes
away from my residence.
On arriving, I ushered my daughter into the restaurant area of
the Heidelberg, because I wanted to have a private discussion away
from the noise of the music they were playing there. On sitting her
down at the dining area, I walked to the bar, ordered a beer for
myself and a cooldrink for her.
Upon sitting down at the table, I referred to my watch. The
reason I looked at my watch is that my daughter had just arrived
from an afternoon shift at work and she was quite tired. My
intention was not to keep her out late.
We sat down, had a discussion which on estimate could have
lasted for about 20 minutes. While we were talking, I heard a
spattered noise which was very strange. I glanced up, over her
shoulder to where the sound was coming from. I noticed sparks,
smoke, glasses breaking. I realised this was because someone was
shooting into the Tavern.
I did not see who was doing the shooting as my vision was
blocked by a column in the Tavern. On realising it was gunfire, I
immediately stretched over the table, pulled my daughter and said
get down. In that motion, I fell onto the bench and rolled onto the
floor. My daughter dropped with her head to the table, and her back
was exposed.
A hail of bullets was directed at us and a bottle and other
things on the table, fell onto the floor. As I tried to look up from
under the table to see who was shooting, I noticed my daughter
reaching the floor slowly. In the same instance I noticed two other
girls to my right, fly out of their seats.
Unfortunately all I could see was a cloud of smoke and the
shadow withdrawing. The next instant I saw this torch light object
which knocked the side panel in the passage and rolled over to
where we were. I screamed it is a grenade, stay down, not realising
she was already hit.
I still pressed her to the ground, under the table and counted
to ten, waiting for this explosion. When I realised nothing had
happened, I glanced over to where the object had fallen.
Immediately I noticed a trickle of blood on her shoulder as she was
lying face down. I immediately jumped from out of where I was
lying to where she was, I turned her over and she just slumped in my
arms.
I realised when looking at her, she was dead and I jumped out
and ran to the door, to look for those responsible for the attack. As
I got to the door, I looked to my right and my left and immediately
saw a yellow van parked on the corner of Observatory and Lower
Main Road, outside the chemist, facing Mowbray.
My immediate reaction was, oh, the Police are here already
and I went back into the Tavern to double check on my daughter.
My thoughts were that if the Police were there so soon, they had
obviously caught the perpetrators. I lifted my daughter up, felt for
her pulse, but my hand just sunk into her neck.
I laid her down on her back, tried to close her eyes, but they
would not close. This is when the realisation got to me she was
dead. I immediately made my way home to tell my wife. I was
blinded by the shock and the tears. I passed this van on the corner.
When I passed, I noticed one figure there who had on a white
garment.
When I got to the next corner to turn on my way home, I
looked back, still noticing the van standing on the corner. Thinking
it was very strange that for a person who had just come out of a
place that had been attacked, that nobody stopped me. Well, I
managed to get home all hysterical and my wife could not
understand me as I was hysterical and incoherent.
My wife went to the Tavern to find out what was going on. A
few days later Des Segal, the Investigating Officer came to my house
to take a statement. In the course of my making a statement to him,
he said that I must have been drunk as there was no such thing as a
Police van standing there. I insisted he take it down in his statement
and he did.
He said to me that if there was a Police van there, it must
have been a Police van which had been patrolling the area and had
been radioed to the scene. It must have been told not to go into the
Tavern as there was a bomb in there.
I immediately became suspicious as I could not understand
how those Policemen could have been radioed and told about a bomb
that was in the Tavern. I asked him that if they were radioed and
knew about the attack, why they did not stop me after I had come
out of the Tavern. He could not answer my question and told my
wife that I must have been drunk.
At the time of the court case, I was never used as a witness.
Des Segal told my wife that he could not use me as I would let the
suspects walk and they are APLA and they are the perpetrators and
they are used to killing people.
He went on to say that if they did not nail them for
Heidelberg, he would not nail them for St James. Am I going too
quickly?
MR PALM: Sorry, he didn't say that. He said if he didn't nail them
for the Heidelberg, he will nail them for the St James.
MR PRIOR: I beg your pardon, can we correct that Mr Chairman.
Just delete the not. I would like now to describe what kind of
person Rolanda was.
She was a kind, caring and warm hearted young woman. She
was 22 years old and was a qualified primary school teacher. She
had shown great tenacity and character in pursuing her studies and
ultimately qualifying. She was determined and succeeded in making
something out of her short life refusing to conform as so many
young people did to the anti-social drug culture or aimless lifestyle
so many have adopted.
Rolanda was a devout Christian and Roman Catholic. She
believed in the equality of man and was as a teacher dedicated to the
upliftment of her fellow man, particularly children and the aged.
She did not support any political party. She appalled
violence, particularly as a means to settle differences. She believed
in God and that all men were created equal, irrespective of race,
colour or creed.
The irony of her death is that she was not a white person who
according to APLA were the legitimate targets of the death squads.
Neither was Bernadette Langford and Michael January. I cannot
begin to describe the rage I feel and have felt for the past four years
at her senseless killing.
Rolanda had a tremendous zest for life. She loved sport,
swimming and athletics were her passion in which she excelled.
I say to the PAC and APLA and to the applicants you killed
the wrong person. Rolanda was also joined in the struggle against
the injustice of the Apartheid system, particularly in Education.
You simply ended her life as if she was a worthless piece of
rubbish. You say you did so to liberate AZANIA. I say you did so
for your own selfish and criminal purposes.
You prevented Rolanda from helping rebuild our broken
nation, which if you had simply waited another few months, in fact
came to pass when we had free elections.
There is a reference to Brigadier Nene, it is actually Brigadier
Phitla. The spelling in the submissions of the PAC is Phitla, but it
could also be spelt Fitla. Your Commander, Brigadier Phitla stated
that it was difficult to control the forces on the ground due to lack
of proper communication and proper political training.
These are simply empty excuses that in fact exposed APLA for
what it was, an unguided missile out of the control of the PAC at
loggerheads with each other and unable to accept the political
decisions of their political masters.
The Brigadier also stated that the cadres as in the case of the
applicants, were simply carrying out orders of their Commanders.
Well, if that is so, why haven't the Commanders Letlapa Maphalela
or Andile Mayo Sciceka applied for amnesty? What are they afraid
of?
APLA have stated that they were at war with the white
supremist settler regime and that in terms of that were their soldiers
or cadres tasked with destroying the enemy targets, ie the white man
wherever they found them, particularly in order to obtain firearms.
White households and farmers were regarded as military
targets. What APLA has not explained is how the Heidelberg
Tavern was selected as a military target. If proper planning and
surveillance had been done, APLA would have discovered the
following. (1) the Tavern catered for the multi-racial clientele, (2)
the predominant patrons were young students from the University of
Cape Town, (3) the Tavern did not cater exclusively for military
personnel, not could be described by any intelligent person as a
military target where arms could be obtained, (4) its resident
musician was one Josh Sithole, a black man who was loved and
respected throughout the country by multi-racial audiences
countrywide and who was entertaining the patrons at the time of the
attack, (5) a better military target and that put in (indistinct), which
fulfilled their criteria, was the Woodstock Police Station, a short
distance away.
APLA as well as the applicants cannot be truthful when they
state that by murdering patrons at the Heidelberg Tavern, this was a
bona fide act associated with the political objective. What these
amnesty applicants seek to do is to clothe criminal acts which have
already been adjudicated upon by the High Court, in the mantle of
political type conduct.
It was amazing to hear from APLA military intelligence,
Brigadier Phitla that he have never heard of the protocols of the
Geneva Convention governing the waging of a war of liberation and
that he had only heard of such rules and regulations when he
recently joined the SANDF.
It would therefore seem that ignorance of the protection given
to innocent civilians, unconnected to the offensive regime or its
administration in times of conflict, by the Geneva Convention is now
raised as an excuse to justify the very inhumanity witnessed at the
Heidelberg Tavern.
I maintain that the perpetrators of the killings, when they
entered the Tavern, could have as trained soldiers so we are told,
assessed the situation and seen first hand that the people they were
going to kill, in fact were not the targets they were ordered to kill
and could have turned back, but they did not.
The systematic shooting of the patrons as they did, three
females deceased, together with the attempt to explode the nail
studded rifle grenade was not to further any political objective.
What does APLA command mean when it says that it assumes
complete responsibility for the Heidelberg Tavern attack?
Does APLA command realise that with responsibility comes
accountability? I repeat my question, if APLA is genuine about
taking responsibility, why have none of the Commanders applied for
amnesty?
However, APLA tells the world that for what they did at the
Heidelberg Tavern and to my daughter, they will never apologise.
The killings at Heidelberg Tavern and the attempted justification
thereof by the APLA command, must be viewed soberly against the
background of the political reality as of 30th December 1993.
(1) The peace process had progressed towards democracy and
the first ever democratic elections were only months away, in fact in
April 1994, (2) the PAC which must have informed its military wing,
APLA, had committed to the peace process and was a willing and
vociferous participant, (3) the PAC had in November of 1992
pledged a cessation of violent struggle and imposed a moratorium of
violence. It was reported in the Rapport newspaper on the 2nd of
January 1994, (4) the Apartheid Government had handed control to
the politically negotiated TEC until the elections only a short time
away.
History indicates that a politically negotiated settlement had
in fact won the day. The liberation struggle had delivered the
goods. The was was over and that majority ruled. It seems from
the submissions made by APLA on the 7th of October 1997, before
the TRC, that APLA had on its own decided the war was not over
and in order to keep its support from its followers, it had to be seen
to be retaliating against white people because black people were still
being killed.
If this was the rational behind the attacks, then in this context
the Heidelberg attack was nothing more than a reprisal or revenge
attack. If this is so, political objective cannot be argued. What the
act of terror did achieve, was the broad condemnation by all
political groups as well as international rebuke.
Both Zimbabwe and Tanzania are reported to have severely
rebuked APLA, reported in Argus newspaper, 12 January 1994. The
ANC condemned the killing as being acts of (indistinct) aimed at
derailing the peace process and preventing free and fair elections,
reported in the Rapport, 2nd of January 1994.
Despite the numerous TRC hearings, amnesty applications and
Police investigations involving hundreds of personnel, thousands of
man hours and possibly millions of rands, we are still no nearer the
complete truth not only in the Heidelberg Tavern matter, but in all
others where gross violations of human rights occurred.
I firmly believe that a wider conspiracy exists which is yet to
be uncovered. I shall not rest until it has been and only then
perhaps, shall I be satisfied that justice has been seen to be done and
only then, if those faceless and gutless politicians, military and
Security Force personnel are exposed and prosecuted to the full
extent of the law.
My unease in this regard is as a result of the following
circumstances. (1) although I witnessed the attack, saw a Police van
on the scene, I was bullied by Des Segal, the Investigator, to forget
that fact. When I refused, he tried to discredit me by saying that I
was probably drunk at the time and if I did say what I had seen, at
the trial, it would upset the Prosecution. As a result I was kept out
of the witness box. If Segal had simply explained why a van could
have been there, I would possibly have accepted it and called it a
day.
(2) What was the Police doing there in the first place, where
were the occupants and what were they doing?
(3) The Police investigation had within a very short space of
time, three or four days, solved the case despite six persons arrested
and charged, only three perpetrators stood trial. The charges were
withdrawn against the rest. If the evidence was strong enough to
arrest and charge them, why were they not prosecuted? Was the
conspiracy only limited to these six? These persons were Theo
Mabusela, Michael Siyolo and Richard Dala.
(4) The person who supplied the weapons and ammunition to
the perpetrators were known to the Police. Were they arrested and
later released or are they still at large?
(5) Letlapa Maphalela, the Director of Military Operations of
APLA is implicated in Heidelberg Tavern, yet is allowed to go free.
He is not applying for amnesty for the Heidelberg Tavern, nor has
he been arrested.
(6) Other implicated persons are Basie Mcombusi and
Theofolus Sibeko. Why are they still at large? There whereabouts
are known to the authorities?
(7) Denzil Potgieter who defended the killers of my daughter,
now is a Commissioner of the very Committee called upon to grant
them amnesty.
(8) Dumisa Ntsebeza, a Commissioner with the TRC, has been
mentioned in connection with the Heidelberg Tavern attack in that it
is alleged that his vehicle was used in some way or the other.
(9) Des Segal died in a car crash early this year. In the
wreckage an R4 rifle, an RPG rocket launcher was found. The press
report talked about a possible link with the notorious Vlakplaas. I
realise some two years have elapsed between these two events, but
somehow I can only attack some sinister meaning to this. The public
have heard no more about Segal's R4 rifle, strangely it is the same
type of weapon used in the Heidelberg Tavern incident. My
question is whether this weapon has been tested or checked to see
whether it was the same one used at the Heidelberg Tavern. I
appeal to the Amnesty Committee to urgently order an inquiry into
the Des Segal affair.
(10) As at the 30th December 1993, the murders at Heidelberg
Tavern fell outside the time frame set for amnesty applications, yet
it was decided to extend this cut off date. My question is why?
I have a perception that the real perpetrators of the most evil
acts, are not going to be exposed and that the wrap will fall on the
few hirelings who did their bidding. People who by their own
admission have committed gross violations of human rights and who
are required simply to tell the truth, are assisted by high powered
legal representatives in order to do so.
In the majority of these cases, other than Heidelberg, the
funding of these lawyers is paid for by the very victims against who
they apply for amnesty from criminal prosecution or civil liability.
I have lost two children to the system, my son to the
Apartheid system of justice and my daughter at the hands of killers
that the system seems to protect.
In an attempt to find out who politically was also guilty of the
acts of murder at Heidelberg Tavern, I approached members of the
PAC namely Ms De Lille, Barny Desai and Richard Zinani. Ms De
Lille told me that she had personally spoken to the applicants in this
amnesty application and that they had steadfastly denied involvement
in the killing. I have noticed that the applications for amnesty of the
applicants say very little about the actual attack.
Gqomfa suggests that the attack was launched from outside
the Tavern. He does not suggest that anyone entered the premises
and shot whilst inside. Madasi and Mabala had given no details
whatsoever. I am forced to wonder why not.
Is this a tactic? Have they not yet decided what to say and
who to implicate or will those details only be filled in after
consultation with the hierarchy of the PAC or APLA?
I also wonder whose interest ought to safeguarded here. I
urge this Committee that common sense and justice prevail in your
assessment of the evidence and refuse amnesty. I do not wish to
dwell on my personal circumstances, however, I have been advised
that such information is important to reveal to you.
The pain of losing my son was compounded a million times by
the death of my daughter. I felt responsible and guilty for both of
them. I have lived with that for the past four years.
My personality has changed. I have not been able, despite
extensive therapy and counselling at Valkenberg Hospital, to shed
the anger, rage, guilt, feelings of revenge and helpless desperation at
the system that allows murderers to escape punishment.
Suffice to say my marriage has suffered irreparable harm. My
wife suffers from extreme anxiety and nervous tension. We are both
on constant medication. I am not being able to forgive the killer of
my daughter Rolanda, and cannot be a hypocrite and say so when my
heart has feelings of murderous rage towards them and their
masters.
Finally, I challenge the leader of the PAC, Bishop Magoba,
not to justify atrocities like Heidelberg Tavern with reference to
similar atrocities perpetrated by the Apartheid regime, but to
acknowledge it as a gross violation of the human rights of all those
young people who were killed and maimed and to name all those
who were involved in the authorization, planning and execution of
the attack so that the truth will be known.
This was dated at Cape Town on the 27th of October, that
was Monday, 1997. Mr Palm, you heard the statement read out on
your behalf?
MR PALM: That is correct.
MR PRIOR: Do you confirm that statement?
MR PALM: That is correct.
MR PRIOR: Do you adhere to the contents of that statement?
MR PALM: That is correct.
MR PRIOR: Mr Chairman, I was also requested by Mr Palm there
was a letter addressed to the TRC Committee by Mrs Palm and I
have not opened it. Her wish was to hand it to the Chairman, may I
do so?
CHAIRPERSON: I understand this is to the TRC Committee, not
the Amnesty Committee?
MR PRIOR: I think in error she said the TRC Committee, I
understand from Mr Palm ... (intervention)
MR PALM: She wanted the Chairman to read it out.
MR PRIOR: Maybe you could elaborate, could you explain?
MR PALM: No, she said I must give it to the members of the
Committee and them to have it read out publicly.
CHAIRPERSON: It is addressed to whom it may concern. It is my
understanding that during the struggle the main aim and objective
was to free Mr Mandela and lead our people out of bondage to
ensure a brighter future for all.
On the 30th of December 1993, the struggle was supposedly
over as Mr Mandela was free. For my family and I, it brought
nothing but sorrow and pain. Bitterness and hatred eats away the
soul, but our soul was destroyed the day APLA brutally murdered
my daughter.
I have nothing but contempt for these (indistinct) who now
are enjoying the new South Africa, while others weep and mourn
their loved ones. These demons are now being integrated into our
already corrupt Police Force. What was wrong with Mr Mandela to
allow these monsters to take over?
Surely they will kill their colleagues who are now forced to
work with them, these power hungry, evil (indistinct), sworn by
Satan himself, seek only to overthrow the Government as they claim.
They are the Government in waiting.
I hope the Commission keeps this in mind when granting
amnesty to these wicket lost souls. APLA's main goal in life is to
seize power for themselves, they have shown the world that they
have no regrets for their crimes and evil deeds.
They will kill again, that I can assure you. The word APLA
spells fear in the people's hearts and the leaders embrace this
knowledge, that is why they say and do as they deem fit. As for
amnesty, whether I oppose it or not, they will definitely be freed to
continue their devious work by repossession or whatever they can
lay their filthy paws on, even if it does not belong to them.
APLA have taken from us one of the most precious gifts the
Lord can ever give us, my daughter was everything a mother, a
father and brothers and sisters could ever want. And the void her
death has left us all, an and will never be filled again.
I will never in all the time left to me, forgive anyone that had
a hand in her death. I ask God every day to understand and forgive
me for feeling all this hatred and contempt that I have for her
murderers. My daughter was the type of person that would have
wanted me to forgive these killers, as she believed in our Creator.
I would just like to thank the Commission for taking the time
to read my letter and I will also like to ask the Commission if they
could read this letter to the amnesty applicants because I would like
them to know exactly how we feel. Thanking you in anticipation,
Mrs M.E. Palm.
MR PRIOR: Thank you Mr Chairman. Mr Palm, is there anything
that you wish to add to your submissions? Is there any further
evidence you would like to give, or any statement you would like to
make?
MR PALM: I think I have covered most of what I want to say. But
as everybody is talking about reparations, I would like to ask the
Commission for reparations. I am not looking for any monetary
assistance, I would like, I appeal to the amnesty board to please
look into my son's case and try and take these obstacles that is
holding us back, to get at that truth first.
MR PRIOR: Is that all?
MR PALM: Thank you.
MR PRIOR: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR PRIOR
CHAIRPERSON: Mr Arendse?
ADV ARENDSE: No questions, Mr Chairman.
NO CROSS-EXAMINATION BY ADV ARENDSE
JUDGE WILSON: Have you seen a plan of the Tavern?
MR PALM: I know if off by heart Your Honour.
JUDGE WILSON: Could you indicate on that plan where you were
seated?
MR PALM: The arrow shows at point "b", but I was sitting more
against the wall, just below the raised platform. It is the very first
table below that.
JUDGE WILSON: Was that the restaurant section?
MR PALM: That was the dining area, yes, which is directly
virtually opposite the opening where the shooting came in.
JUDGE WILSON: But you didn't see anybody?
MR PALM: No, as I explained to the Investigating Officers, there
is a column and whoever did the shooting, was behind that column
so I didn't see a figure. All, when I realised that the shooting was
going on, it was just the sound, splinters, things breaking and the
smoke rising and that is the time I tried to get my daughter out of
the way and pulled her down to the floor.
JUDGE WILSON: Thank you.
CHAIRPERSON: Mr Palm, thank you very much.
CROSS-EXAMINATION BY ADV ARENDSE: Sorry Mr
Chairman, just one question. Mr Palm, you said on page 35 of your
statement that Mr Prior read, the second paragraph, while you were
sitting and talking, I glanced up over her shoulder to where the
sound was coming from, I noticed sparks, smoke, glasses breaking
and I realised this was because someone was shooting into the
Tavern.
MR PALM: That is correct.
ADV ARENDSE: Now, where you were sitting at - you referred to
the end of that line there that shows "b".
MR PALM: Yes, it was the first table below the raised platform.
The very first table, I had my back towards the wall facing the
opening and her back was towards that opening.
ADV ARENDSE: Now, when you say the shooting was into the
Tavern, was that shooting coming through the windows, through the
door?
MR PALM: Well, I can't say I note the shooting through the
windows, but that shooting sort of seemed to be directed down the
passage way into the bar, because as I said it narrows there by the
step, the stairway and there is a bar area beyond that, it was sort of
directed into that direction which gave me the edge to get out of the
way in time.
ADV ARENDSE: You seem from the marking that I have made and
I could be wrong, you seem to be sitting closer to the double doors
than to the stairway?
MR PALM: That is correct, the stairway is actually beyond the
point. I wouldn't be able to see the stairway from where I was
sitting, because there is also another column just in front and there
is a telephone on that corner.
ADV ARENDSE: So how far, can you remember how far you were
sitting from the double doors?
MR PALM: Which double door are you talking about, the one on
the road side or are you talking about the entrance?
ADV ARENDSE: Yes, from the road side, maybe the best thing is
if you look at where "g" and "f" is.
MR PALM: Yes, I was sitting quite close to that. Well, it was
quite near.
ADV ARENDSE: When you say near, can you maybe just indicate
or can you say two metres, three metres, four metres, five metres?
MR PALM: I would estimate about four metres.
ADV ARENDSE: Four metres? Thank you Mr Palm.
NO FURTHER QUESTIONS BY ADV ARENDSE.
CHAIRPERSON: Yes, Mr Palm, thank you. You are excused from
further attendance Mr Palm.
MR PALM: Thank you, Your Honour.
WITNESS EXCUSED.
MR PRIOR: Thank you Mr Chairman, I call Mr Brode. His name
appears on item 7 on the submissions by victims.
BENJAMIN BRODE: (sworn states)
EXAMINATION BY MR PRIOR: Thank you Mr Chairman. Mr
Brode, you have also prepared submissions in this matter and you
have handed them to me, is that correct?
MR BRODE: That is correct, yes.
MR PRIOR: Would you like me to read that out for you to confirm
or would you like to read it out yourself?
MR BRODE: I would like you to read it out Mr Prior and there is
another submission.
MR PRIOR: Yes. Mr Chairman, I am going to skip all the other
detail and just read from paragraph 3 onwards. His personal details
and employment history is clear. Thank you Mr Chairman.
Regarding the incident, paragraph 3 at page 73 of the bundle
of submissions, you said as follows: I had been on duty at
Machados restaurant on the night of the 30th of December 1993
when the incident in question took place.
The restaurant had been quite full that evening, being the
festive season and everyone was in a jolly mood. After the
restaurant had closed, the owner Joe Cerqueira, his brother and
another colleague whose name I can't remember, had been clearing
the restaurant and set about preparing the restaurant for the next
day's business.
When we heard what we assumed was a car backfiring in the
road outside, the sound continued and we thought that it may also
be the sound of fireworks thrown by some partygoers outside. I was
the first to walk out of the restaurant to investigate and was
followed by my colleagues.
I saw individuals coming out of the Heidelberg Tavern, which
is located next to Machados restaurant. They were making their way
to a dark coloured car. I saw what again I thought was flares or
fireworks and then noticed these individuals were firing automatic
machine gun fire in all directions.
Once they spotted me and my colleagues, they fired in our
direction. In the resulting confusion, we pushed our way back into
the restaurant and took cover as best we could. I remember lying
flat on the floor of the restaurant.
Once the firing had stopped, I ran out of the restaurant. It
was at this stage I saw the deceased, Joe Cerqueira lying, dying in
the gutter, he had been shot in the chest. The result was complete
mayhem as people ran around in shock, shouting for help. It was
only at this stage, when I knelt down next to the deceased that I
realised that I had been shot in the leg.
My thoughts at that stage were about Joe Cerqueira and I
remember thinking Joe, you can't die now. The exact details of what
happened after that are not clear to me.
4. The effect of the incident. A month after the shooting, my
life had fallen to pieces. I withdrew totally from the day to day
activities of life. Interests that I once had such as mountain
climbing were now of no importance to me.
I withdrew from all sporting activities that I had been
involved in. I began drinking alcohol heavily, suffered insomnia and
a lack of concentration of things going on around me. The most
traumatic effect that this had on me, has been the loss of contact
with those closest to me, my family.
I was referred to professional help to the psychology
department of Groote Schuur Hospital. I also saw a psychiatrist at
the hospital, who diagnosed me as suffering from post traumatic
stress and was placed on medication for one year.
After the incident I applied for a job at the Crab Shack
restaurant in Milnerton. During my first shift deliveries were being
made to the restaurant via the back entrance. I was unaware of the
delivery and when I saw the black gentleman walking into the back
entrance, I thought this could also be an attack on the restaurant. I
broke in a sweat and had a panic attack.
Resulting in the fact that I broke down and was unable to
continue working at the restaurant. I never returned to this
restaurant, the realisation as how quickly one's life can be taken
became a nightmare for me. Joe's death had effected me adversely
and as I feel I have become a total nervous wreck.
I was once again referred to the out-patient department of
Groote Schuur Hospital and also to the welfare department, who
after consulting with me, applied for disability family grant. It was
also recommended that I attend Valkenberg Hospital for further
observation.
Because of the connectation attached to Valkenberg Hospital,
I refused and stayed away. I feel as if I have become a monster. I
feel distanced from my family and unable to guide them as leader of
the household. My life seems to be a constant see saw in that I feel
up one day, and down the next.
I feel as if my manhood has been taken away from me. I
seldom feel as if I would be able to be a normal person again.
My view regarding the amnesty application. If this had been
an accident, I could find it in my heart to forgive the applicants.
This was purely a terrorist attack for which the applicants had
willingly trained and executed their orders. And they too, like those
of us who have suffered the trauma because of this incident, should
pay the price.
I am sure they were reimbursed by their employers, something
that we have not been. I therefore oppose the application for
amnesty for these individuals.
How I see the future. The future seems bleak for me and my
family as I have been unable to hold down a permanent job. The
inability to be the leader of my family, has been debilitating to say
the least and I really fear for the future of my children.
Reparation and compensation. I feel that what has been taken
away from me and my family, should be compensated for and I
would appreciate the Reparation Committee to look into this.
Signed at Cape Town, the 22nd of October 1997.
Do you confirm that statement?
MR BRODE: Yes.
MR PRIOR: Do you adhere to its contents?
MR BRODE: I do.
MR PRIOR: I want to ask you a few questions regarding the
incident. You were present at the hearing when Mr Cerqueira, Mr
Francisco Cerqueira gave evidence regarding the incident, is that
correct?
MR BRODE: Yes.
MR PRIOR: He mentioned in his evidence that you at some stage,
after the shooting, brought the firearm, a firearm which had
belonged to Mr Cerqueira the deceased, to him. Did you hear that
evidence?
MR BRODE: Yes.
MR PRIOR: Could you explain to the Committee the circumstances
surrounding that?
CHAIRPERSON: Where did you find the firearm?
MR BRODE: I can't remember.
MR PRIOR: What do you remember of the incident? You
mentioned about the shooting and that you ran inside the restaurant?
MR BRODE: Yes, that is correct yes.
MR PRIOR: Where was Mr Cerqueira deceased, Joe Cerqueira, at
the time when you ran back, moved back into the restaurant?
MR BRODE: When I went back into the restaurant, and I shouted
for Joe ...
MR PRIOR: Did you know where he was, did you see him?
MR BRODE: No, the last that I can remember is that he was at the
back of the restaurant.
MR PRIOR: Can you remember what you did after the shots were
fired? The initial shots, when you were out on the street?
MR BRODE: I was out on the street.
MR PRIOR: When you were on the pavement and you said they
were shooting at you, you then turned and moved back into the
restaurant, you ran in?
MR BRODE: Yes, that is correct yes.
MR PRIOR: What did you then do?
MR BRODE: I ran into the restaurant, you know it was a complete
confusion at the door. I know that Frans went into the restaurant
and there was three of us. We went back into the restaurant, I
didn't see Joe anywhere.
MR PRIOR: When was the first time to see him after the shooting?
MR BRODE: After the shooting, the first time I saw him was when
we came out and he was lying outside.
MR PRIOR: Did you see a firearm next to the body?
MR BRODE: No, I didn't.
MR PRIOR: Can you remember, and you indicated to the
Committee you don't remember where you picked the firearm up
from?
MR BRODE: I've got no recollection of that.
MR PRIOR: Did you receive any medical treatment at the scene?
MR BRODE: Yes, they said they were going to take me up to the
hospital.
MR PRIOR: Did you receive no injections or medication? Can you
remember?
MR BRODE: I think, yes they led me to an ambulance and they
gave me an injection. They gave me something to calm me, I think,
yes.
MR PRIOR: Do you have any difficulty recalling the events of that
evening? You seem to have ...
MR BRODE: Yes, there are things that I can remember, but just
after the shooting, there is big gaps, you know, I can't remember.
MR PRIOR: Is there anything else you wish to tell the Committee
regarding the application for amnesty? You said you had some
statement or further points?
MR BRODE: Yes, well this is just something that I would like Mr
Prior to read for me.
MR PRIOR: Is that possible Mr Chairman.
CHAIRPERSON: Yes, assist him. Is this something which you
have written out yourself?
MR BRODE: This is something that someone had written out for
me, that I have expressed over to him and he has put it in writing for
me.
MR PRIOR: Mr Chairman, to balance properly the interest of
society with those of the applicants, and to reflect such balance in a
verdict that is both just to society and just to the applicants so often
calls for deep insight and for the wisdom of a Solomon - qualities
with which we are blessed in some small measure.
One must look carefully at the offender and try to understand
his background and what moved him to act as he did in the
particular situation in which he found himself.
Then the demands of society have to be considered. This
includes the need to express appropriate disapproval of what was
done as well as the need to deter both the offender and others from
committing crime.
The rehabilitation of the offender is also in a suitable case, a
fact to be weighed. The crime in this case is particularly horrifying.
And it is difficult to think of a more terrible crime than of innocent
young people being killed in such an attack.
The way in which these young people were done to death, was
heartless and cruel. The cover up operation which followed, was
cunning and evidence of coldness and deliberateness about the whole
operation which I found disturbing when such relatively young
people.
The crime is heinous. It is clear from the evidence that all the
accused were very much under the influence of the military high
command under which they trained. Yet having said all that, it is
nevertheless clear that they embarked on this evil course of their
own free choice.
We have not been told the full truth of the applicants, it
remains difficult for me to find reconciliation in my heart.
Is that what you wanted me to read out?
MR BRODE: Thank you, yes.
MR PRIOR: It is available Mr Chairman. Is there anything else
that you wish to bring to the attention of the Committee? Is there
anything else in this matter?
MR BRODE: No.
MR PRIOR: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR PRIOR
CHAIRPERSON: Mr Arendse?
CROSS-EXAMINATION BY ADV ARENDSE: Thank you. Mr
Brode, let me tell you that on, I speak for myself and my colleagues
here, that we feel for you and for the other victims about what
happened.
Indeed, there is none of us sitting at this table, who haven't
experienced the kind of experiences that you are going through,
personal and friends and relatives, tortured, maimed, killed, by the
State, so it is not that we don't appreciate your suffering at this
moment. But I've got to ask you a few questions, you appreciate
that?
MR BRODE: Not really, but go ahead.
ADV ARENDSE: Not really?
MR BRODE: No.
ADV ARENDSE: Okay, is it important for you that we must get as
complete or as full a picture as possible about what happened there
that night?
MR BRODE: Yes.
ADV ARENDSE: Are you prepared to help me to establish that
picture, knowing that I have mentioned you have been here this
whole week, that I am not here to defend the indefensible, that I
agree with you that it was a heinous crime?
MR BRODE: Yes.
ADV ARENDSE: I just want to actually deal with one aspect
which is an important aspect. And that aspect relates to whether or
not you know or whether you can't tell us with any certainty,
whether or not Mr Jose Cerqueira used a firearm that evening?
MR BRODE: Just repeat the question please?
ADV ARENDSE: Can you just tell us whether you can remember
whether or not Mr Cerqueira used a firearm that evening?
MR BRODE: Not to my knowledge.
ADV ARENDSE: Can't you say or are you certain that he did not?
Let me put it another way, is it possible that he may have used a
firearm without you knowing?
MR BRODE: No.
ADV ARENDSE: Why are you so certain?
MR BRODE: Because when I went out of the restaurant, I didn't
see Joe outside the restaurant.
ADV ARENDSE: Isn't the reason why when you went outside, he
had already gone outside and had gone just a little way to the right
of the door where you had come out with Frans and with the other
waiter, isn't that the reason why you never saw him?
MR BRODE: No.
ADV ARENDSE: How can you be so certain?
MR BRODE: Because when we heard shots, I was the first one to
leave the restaurant.
ADV ARENDSE: Were you the first one, was Frans not the first
one?
MR BRODE: No.
ADV ARENDSE: Okay, let me ask you why - you say you can't
remember where you found the firearm?
MR BRODE: No.
ADV ARENDSE: Why is the firearm in issue?
MR BRODE: It wasn't an issue to me. As you can see from my
first and my second statement, I didn't mention that.
ADV ARENDSE: You gave evidence in court?
MR BRODE: Yes.
ADV ARENDSE: And you mentioned the firearm in court. Can
you remember mentioning the firearm in court?
MR BRODE: No.
ADV ARENDSE: Okay. You appear to have mentioned it in court.
The Judge, on page 47 of the record, mentions that you in
Afrikaans you called at Cerqueira for his firearm, which he kept
behind the counter. Can you recall saying something like that?
MR BRODE: Yes, that I do recall.
ADV ARENDSE: So you did mention a firearm?
MR BRODE: Yes.
ADV ARENDSE: Why did you call to Mr Cerqueira for his
firearm?
MR BRODE: I called to Mr Cerqueira to get his firearm, because
we were attacked and that is you know, while I was running back
into the restaurant.
ADV ARENDSE: Isn't it possible then that he heard the cracking
sound or the sounds emanating from the Tavern, that he took his
firearm and ran outside before you even got outside. Isn't that
possible?
MR BRODE: No.
ADV ARENDSE: Now if the, you are certain about that, or you
appear to be certain.
MR BRODE: Yes.
ADV ARENDSE: Why did the firearm feature? Why did you - did
you hand the firearm to Frans or did you hand it to the Police?
MR BRODE: I can't remember that.
ADV ARENDSE: Mr Frans Cerqueira says that you handed him the
firearm and he handed it in turn to the Police.
MR BRODE: That could have been a possibility.
ADV ARENDSE: So why did you hand him the firearm?
MR BRODE: I can't answer that.
ADV ARENDSE: Because at that point, and Mr Frans Cerqueira
says it was about ten minutes or so, I speak under correction, it was
about ten minutes or so after he had picked up his brother, after he
had been shot. So, and you were in quite a state, so was Mr Frans
Cerqueira, is that not right?
MR BRODE: That is right.
ADV ARENDSE: So, we are trying to establish here for what
reason would you give a firearm to him, to give to the Police?
MR BRODE: There is the possibility that when I went back into
the restaurant, during the shooting, calling out for Joe, calling out
for the gun, that after everything had you know, when we went out
the second time and - well, I will start again. There is the
possibility that when I went out, when I came back into the
restaurant the first time and called out for Joe and the gun, that
when this was all over and after seeing Joe lying there, getting up,
going inside, I know that I did contact my parents, there is the
possibility that the gun could have been underneath the counter.
CHAIRPERSON: You don't have a definite recollection of that, is
that so?
MR BRODE: Under oath ...
CHAIRPERSON: You don't have a definite recollection of that, do
you?
MR BRODE: I have no definite recollection of how I got the gun
in my hand to give it to Frans Cerqueira.
ADV ARENDSE: I want to suggest to you another possibility Mr
Brode, and that is the possibility that Mr Cerqueira could have taken
the gun, he reacted, he took his gun, he ran outside. If you look at
photograph 22, he had run outside, turned right, was in the vicinity
of the drain you see there and fired a shot or shots with his gun at
the attackers as they were approaching. At that same moment or
more or less at the same moment, you and Frans and the other
waiter, came out of the Machados, the shots were then also coming
in your direction, the car was by that stage already passed the door
of Machados and hence you see those marks on the inside of the
entrance to Machados, and that is when you took cover and ran back
inside.
MR BRODE: And that is your suggestion?
ADV ARENDSE: That is what I am suggesting.
MR BRODE: That is your suggestion, could I make a suggestion?
ADV ARENDSE: Yes.
MR BRODE: Okay, my suggestion is okay the facts are that I left
the restaurant first, followed by my colleagues. And you kept
stressing the point that I didn't mention anything about Frans and
one thing and another, I want to try and control myself.
My suggestion is we heard the shots, Joe was not in the front
of the restaurant, I am talking about the front area of the restaurant,
not near the front, just the front area of the restaurant, he was not
there, he was not there, he was at the back.
He was at the far end of the restaurant, not in the front end of
the restaurant. We heard the shots, I went out. Right, when I went
out, I saw guys coming out of the Tavern next door and as they
were coming out, getting into their cars, they were shooting, but to
me it was like as if they were just ushered out, you know because
they were causing disturbance there and they were just told to leave,
that is the way I saw it.
Right, they got into the car, the car was moving towards us,
the lights were still off. Still shooting, still firing away, blindly,
then suddenly they fired at us. I felt a push from the back, you
know, that is when I turned to run in. And at no stage, at no stage,
I will stress at no stage, was Joe Cerqueira outside there with us.
He was not lying in that gutter, there at that yellow pole in front of
us.
My suggestion is there is a possibility that when we turned to
run back inside, in the confusion there at the door, we running
inside, no one verbally said Joe, duck, someone is shooting, no one
said nothing, I can't remember seeing Joe or anything. In that
confusion as we were running for our lives, Joe could have come
through. That is my opinion. And to answer, you know, about the
gun, as I said I don't, I have got no recollection. I have taken an
oath and I can't recall giving the gun to Frans. There is the
possibility, after what happened I was a total wreck.
ADV ARENDSE: Mr Brode, did you say you ran inside?
MR BRODE: I said I ran inside.
ADV ARENDSE: Were you not dragged inside by Frans?
MR BRODE: There is the possibility of that. I will tell you why,
because when I - well I did as Frans said, you know, froze because I
did not realise that they were actually, physically shooting at us.
And then at that stage I heard, I felt someone sort of nudge me from
the back, that could have been you know, when he grabbed me to
pull me inside.
But I felt that I made headway inside. We were all sort of, it
was almost like in a scrum.
ADV ARENDSE: I also want to suggest to you Mr Brode, that
you, when you saw the attackers, they were inside the car and the
car was coming in your direction.
MR BRODE: The first time I saw what I saw, was the car standing
there and guys, gentlemen, well not gentlemen - there were people
standing outside, to me it looked as if they were throwing flares.
ADV ARENDSE: How far outside Machados did you go? Did you
go into the road, onto the pavement, near to the drain, where did
you go?
MR BRODE: Yes, I would say I was standing between, well at an
angle of between the yellow pole and - well, on that corner there.
You know, when you come out, to the right of the photo, off the
step there where that white marks are. I would say just before that.
ADV ARENDSE: Tell me, why would you be calling for the late
Mr Cerqueira's gun when you initially or sorry, let me be fair, so
that initially you thought that this was a bunch of guys I think you
called them partygoers or something throwing crackers or
something? That is the first time?
MR BRODE: That is correct, that is when I was standing out there.
ADV ARENDSE: So, it was only the second time ... (intervention)
MR BRODE: No, no, no, can I interrupt you?
ADV ARENDSE: Yes.
MR BRODE: I did say while I was looking at them, I was under
the impression they were throwing firecrackers. When they were on
top of me and they shot in our direction, and there was smoke and
you know, parts of the wall here and you know, you are getting all
this into your eyes, what is it when a bullet sort of splinters up, the
shrapnel of the bullets, you know, when that was all, they were
virtually on top of me when I realised wow, you know, here my life
is in danger.
ADV ARENDSE: So the first time you saw them was they were
standing immediately in front of the Tavern, shooting inside?
MR BRODE: That was what I thought.
ADV ARENDSE: Shooting inside the Tavern?
MR BRODE: Well, shooting all around you know, it was all
around.
ADV ARENDSE: Yes.
MR BRODE: It was all around, to me it looked like just you know,
it is the festive season. We had a nice busy evening and you know, I
took it they were partygoers just told you know, okay back off now.
ADV ARENDSE: And the next time they were inside the car when
you saw them when you came out?
MR BRODE: No. No, you are not hearing me.
CHAIRPERSON: When you say the next time Mr Arendse, what do
you mean by the next time? It was still while he was still there on
the pavement.
MR BRODE: Yes.
JUDGE WILSON: He's explained he stood there, he saw them, the
car then came towards him. There was no next time.
ADV ARENDSE: So you were only outside once?
MR BRODE: That is correct. Wait, okay, what is it that you want
to know? You are talking about how many times I went outside
during, after or before the shooting or what? What is it?
ADV ARENDSE: I want to know you saw them the first time, they
were shooting as you say all over the place?
MR BRODE: That is right, that is what brought to my attention.
The reason why I went outside is because I heard shots, but it
sounded like a car backfiring or the throwing of crackers.
And I went outside and I went through the whole scenario
while I was outside.
ADV ARENDSE: Because Mr Brode your evidence is summarised
as follows by the Judge in the criminal case at page 46. And I will
read it to you in Afrikaans. Have you got the translation? They
were busy clearing up when he heard something that sounded like a
car backfiring. He ran outside and saw three men who looked as if
they were throwing fire crackers and they got into a car.
I just want to pause there. So at that point, according to you
- the Judge's summary, unless you must tell us that that summary
was wrong or incorrect, at that point you see them get into the
vehicle.
MR BRODE: At that point yes, but go back two lines or two
sentences.
ADV ARENDSE: Well, I will read to you from the beginning.
MR BRODE: No, no, I've picked up from the beginning you know,
going outside, now we are outside.
ADV ARENDSE: Go back or forward two sentences?
MR BRODE: I said back.
ADV ARENDSE: When I go back two sentences, then it is the
beginning of the summary of your sentence.
MR BRODE: Okay, I apologise.
ADV ARENDSE: Now, where do you want, must I just read the
whole thing?
MR BRODE: No, no, go back.
CHAIRPERSON: I think, Mr Arendse, you shouldn't ask him where
you should read. You've got a question to put to him, read the
portion that you think is relevant for the purposes of your question.
ADV ARENDSE: Well, he asked me to read it Mr Chairman.
Benjamin Brode, like Jose Cerqueira the deceased of whom mention
has just been made, were working at the restaurant Machados. He
along with Jose Cerqueira, his wife as well as another waiter stayed
behind while all the guests have left the restaurant at quarter past
eleven.
They were clearing up when they heard something like a
motor vehicle backfiring, he ran outside and saw three men who
appeared to be throwing fire crackers and they were getting into a
car.
As he stepped down from the step of the restaurant onto the
pavement, he saw a large, dark motor vehicle parked against the one
way. He had not at that point realised that something was going
wrong. The motor vehicle then slowly moved in his direction.
Now my question was, I am sorry if it wasn't clear to you, my
question was are you seeing all this as you come out of Machados?
Are you seeing these men who are looking like they are throwing
these crackers, getting into the car and the very next moment, they
are coming towards you in the car?
MR BRODE: That is correct.
ADV ARENDSE: And when they come towards you while they are
inside the car, they are firing in your direction?
MR BRODE: They turned their fire on us.
ADV ARENDSE: While they were in the car?
MR BRODE: Yes.
ADV ARENDSE: So they never fired at you while they were
standing outside or whatever they were doing, where they were
standing outside the Heidelberg Tavern?
MR BRODE: Well, no bullet came passed my head, no.
ADV ARENDSE: Okay. So would it be correct to say that they
fired only at you once they had been in the car, once they got into
the car?
MR BRODE: Yes, well, I don't think - they didn't fire at me before
they got into the car. Before they were on top of us.
ADV ARENDSE: The firing came while the car was moving
towards you and these three people they had by now gotten into the
car?
MR BRODE: They got in the car firing yes, but they were firing at
the Heidelberg Tavern and they were firing you know, just all
around, but nothing came towards us. To me I have seen flares to
both sides of the street, but not down the street.
ADV ARENDSE: Now, at that point, you are now observing this
and you don't see the late Mr Cerqueira in the vicinity?
MR BRODE: Not at all.
ADV ARENDSE: Isn't it then possible that he comes out somehow
passes you and had on his own, shot at the attackers, inviting them
or maybe that word is entirely inappropriate, but then resulting in
shots being fired also in your direction?
MR BRODE: I didn't see that.
ADV ARENDSE: Because your focus must have been on this car
and this car coming at you? Surely that must have been your focus?
You must have been terrified?
MR BRODE: Yes, that was our focus.
CHAIRPERSON: Carry on please.
ADV ARENDSE: Did you pick up anything, did you pick up
anything Mr Brode at the scene or from the deceased?
MR BRODE: I can't remember much. It was difficult you know.
ADV ARENDSE: Could you remember whether Frans picked up
anything?
MR BRODE: I can't remember.
ADV ARENDSE: And I mean it is because you can't remember that
is why you didn't mention the pouch at court or in any of your
statements?
MR BRODE: I am trying my utmost to assist where I can. I can't
remember.
CHAIRPERSON: Yes, Mr Arendse, are there any other questions?
ADV ARENDSE: Thank you.
NO FURTHER QUESTIONS BY ADV ARENDSE
MR PRIOR: No re-examination Mr Chairman.
NO RE-EXAMINATION BY MR PRIOR
ADV SANDI: Mr Brode, when you keep on saying I cannot
remember, is that because of the manner in which your health has
been effected by all this?
MR BRODE: Yes.
ADV SANDI: Thank you.
CHAIRPERSON: Mr Brode, thank you very much, you are excused
from further attendance.
MR BRODE: Thank you very much.
WITNESS EXCUSED.
MR PRIOR: Mr Chairman, I call the last witness, that is available,
have we got enough time? It is Mr Fourie?
CHAIRPERSON: I understand the interpreters have to leave at
quarter to four.
MR PRIOR: Can we fit him in, I don't want to curtail his
submission.
CHAIRPERSON: I don't know how long you will be, so I can't tell
you whether you should call him or not.
MR PRIOR: I understand my learned friend will be
accommodating, he is not a witness to the events, he simply wants to
make a submission, so if my learned friend can maybe give the
Commission an indication, then we can fit Mr Fourie in.
CHAIRPERSON: Is he going to give evidence or make a
statement?
MR PRIOR: He is going to give evidence, simply refer the
Committee to the statement and confirm the statement.
MR FOURIE: (sworn states)
EXAMINATION BY MR PRIOR: Mr Fourie, is it correct that
Lindi Anne Fourie was your daughter and she died in the attack at
Heidelberg?
MR FOURIE: That is right.
MR PRIOR: You have prepared a submission for the Committee?
MR FOURIE: That is right.
MR PRIOR: Would you read those submissions out?
MR FOURIE: I do believe you have a copy of what I have typed
here?
MR PRIOR: Yes, and so does the Committee. If it is at all
possible, we don't want to curtail you, but where you can
summarise, would you be willing to do that or would you want to
read it all out?
MR FOURIE: Would you rather I give it to you on Monday in a
typed out form, so that you can then consider it at your own time?
MR PRIOR: Well, we have the submissions that you have prepared,
that bundle.
CHAIRPERSON: They are on oath, are they?
MR PRIOR: They are not on oath, but I will ask him to confirm
them.
MR FOURIE: I have signed a document here, you can have it if
you wish Mr Chairman. But there are other observations that I wish
to make based on what I have seen and heard here this passed week.
Mr Fourie, if you could make your submissions.
MR FOURIE: Reads:-
"Chicken, please be careful when you and your friends
visit in and around Mowbray and Observatory areas.
Why Pops? My girl, there is some strange people in
this world and strange things happen in some of these
parts of town. Ag pappie, moenie worry nie, we will be
all right."
Isn't it ironic that these would be the last words that my
daughter and I would exchange on that evening, her last words in
her life.
Mr Chairman, panel members and others, my wife and I am
here to honour and defend the memory of our only daughter, Lindi
Anne, we also speak for our son who is in England and the rest of
Lindi's family and her many friends who are may add are of many
persuasions and some of whom are, if you will pardon the term, not
white.
As Lindi's father, responsible for her existence, I accepted the
responsibility of raising and caring for her to the best of my ability,
together with the help and input of my wife and our son Anthony as
well as those around us. Those have made up Lindi's family, her
school teachers, her fellow church members and her many other
friends, to these I say thank you for returning the love that Lindi
gave of so freely.
Now that Lindi's mother has stated her position and feelings
on the death of our only daughter, I thank her publicly for being a
wonderful mother to Lindi. Her example and encouragement will
long be remembered by the rest of her family, especially by Anthony
and myself.
I will then now continue and leave out the rest of my written
submission, my typed submission and I will make some
observations, based on what I have seen and heard here Mr
Chairman.
MR PRIOR: Mr Fourie, do you adhere to the contents of those
submissions contained in that statement and which is before the
Committee and which will be considered by the Committee in its
totality? Do you adhere to those?
MR FOURIE: Mr Prior, yes, I do and I will refer you to the bottom
of page 7 where I said to Mr Chairman, I mean every word I have
said, especially in regard to bringing all the perpetrators and
accomplices to court, and charging them.
MR PRIOR: Thank you, would you like to make your additional
submissions.
MR FOURIE: I would like to do that if I may. I will keep it as
brief as possible. I am looking at you right now, what is this, tell
me, I am listening, what is this? Is this a man or not?
Right, you are men, I am a man, I will talk straight to you and
to the Chairman. How do you know that you fatally wounded Mr
Jose Cerqueira, are you a seasoned or regular killer?
You pleaded not guilty at the trial, yet you say here that you
intended killing and wounding as many people as possible and now
say you want amnesty. How do I understand you?
Mr Chairman, I do find it very difficult to accept that the
statements given by these people are genuine, genuinely from them
and perhaps not some concocted story to save their necks. I am
being blunt Sir, and I apologise if I do that, and I offend anybody,
but I am also not apologising.
Accepting that I was not at the scene of the crime, I still
believe I may ask why must I believe you when you say you did not
enter the Tavern, when you say anything for that matter because
bearing in mind what you have admitted to, that is the killing of
innocent people.
I cannot believe anything you say because I cannot trust
murderers. Why must I believe your statement about why you think
you should be absolved of this crime, the murder of my daughter and
others?
The post mortem should reveal quite accurately how close the
killers were to the victims when they were shot. I refer to page 12
in the court proceedings, three young women were shot that evening
in the Heidelberg Tavern. It is on page 44 of the bundle.
Bernadette Langford's heart was torn apart by the impact of the
bullet, Lindi Anne Fourie was shot in the right hand side of the
neck. The bullet dragged all of the main blood veins off, and
crushed her neck bones. Rolanda Palm was also shot in the heart.
If we were firing wildly, how coincidental is it Mr Chairman,
that three of the victims were shot in positions which would
certainly have meant virtually instant death? I also was trained in
the use of firearms. It is a frightening reality that lives with me
every day of my wife, I regret having been trained to aim at another
human being and shoot. I hope to God I never will have to do it.
That is sincere and from my heart.
The apparent attitude of the applicants and particularly the
so-called Commander of these men, tells me that their bona fides
could be suspect and essentially destroys their possible chances of
being given amnesty.
Excusme me Mr Chairman, I highlighted what I wanted to
refer to from the notes.
CHAIRPERSON: Carry on.
MR FOURIE: Surely as a soldier you were trained to have no
regrets, so why do you now say you regret your actions, those of
killing innocent people? Because one of your so-called leaders,
speaking for all of you supposedly, on page 21 of their statement
said the following and he was here on the 7th of October. Page 24,
this is a Brigadier Mofokeng.
"We do not therefore regret that such operations took place
and there is therefore nothing to apologise, because we
believe of the justness of our war and the correctness of our
struggle."
I find that statement contrary and contradictory to what the
objective is here today in these hearings. I am greatly disturbed by
that Sir and it would appear that this has been carried over to these
people.
Mr Madasi, your impatience was very evident whilst you were
being asked questions by Adv Prior. Why do you get impatient and
bear your teeth, you are asking and if you want to receive, surely
you need to ask in a reasonably humble and if not civilised manner
and tone of voice.
I would like to caution the applicants that perhaps they are
better off in jail, than out on the street and I will just give you one
reason. I arrived home two days ago only to read in a newspaper
five armed robberies in 48 hours in the little dorp where I live.
You've got competition and I am not being flippant here.
Beware of your attitude Mr Mabala, you are asking for
something, something bigger than you care to think about whilst you
were busy with your dirty work. So it is not in your best interest to
appear cheeky or impatient, even when your own Defence Counsel
asks you questions, questions that you are required to answer before
your request can even be considered.
Now, I will say something which you might find strange, but I
am still a person, okay, despite my anger and my hurt. Have you
seen an elderly person crying, look at me today, just look at this.
To the three and all of you related to this matter, I would not like to
be in your shoes. I also feel very, very sorry for your parents and
others who are interested in you because they've got to bear it with
you and with us. That is very difficult.
Mr Chairman, I wrote to a few people asking them to tell us
who Lindi Anne was because I thought perhaps the Committee here
would like to get a different perspective onto the type of person, as
to the type of person that Lindi Anne was. Some of them sent you
some of these, do you have them Mr Chairman?
MR PRIOR: Mr Chairman, they are annexed to his statement 56 to
61.
CHAIRPERSON: They are.
MR FOURIE: I won't read them, except Sir, if I may with your
permission, read just one of them.
It is written by a man I have known for many years and for
whom I have the greatest respect and he is one of the persons after
whom I named my son, Anthony Johan Fourie. He addressed it to
the Chairman, it is from a Mr A.W. Hall.
He said:
"re the Heidelberg Tavern murder. I have known the
Fourie family for many years and can remember Lindi
Anne virtually from birth. I carried her on my
shoulders when she was a child and I remember her as a
young girl who was mad about horses and loved
animals.
I remember her as a shy and conscientious schoolgirl
and I remember her showing off the magnificent matric
dance dress that she had made herself. Lindi Anne had
a strong character and an enquiring mind and was not in
the least bit surprised when I learnt that she had chosen
civil engineering as a career.
In fact being a civil engineer myself, I was proud of her.
The one thing that never failed to impress me about
Lindi Anne was her pleasant and gentle nature. She
gave the impression that she didn't have an enemy in the
world.
Lindi Anne was not class or race conscious and
accepted people as they were. She always looked for
the good in people. She had grown into a charming and
talented young lady who would, I am sure, have become
a valuable citizen and would have contributed positively
to the future of this country had she not been murdered
in her prime a few short months before graduating as a
civil engineer.
I cannot express the anger I felt when I learnt of the
senseless murder at the Heidelberg Tavern, quite apart
from the obvious anguish and irreplaceable loss suffered
by her family and friends, our nation has been deprived
of a really good above-average person, that had so
much to offer society, murdered by a bunch of morally
bankrupt nobodies, who have nothing to offer anyone. I
will be extremely disappointed if those responsible for
Lindi Anne's death, are granted amnesty.
At the time of the attack, the political climate in south
Africa was already changing dramatically and I cannot
see that the perpetrators of the attack, can justify their
actions on political grounds in any way whatsoever.
My feelings are not biased on racism. Civilisation is
not man's natural state, it is an ideal that requires
constant and diligent effort. We all harbour violent
thoughts from time to time, but the difference between
a civilised person and a barbarian, like the Worcester
bombers and the Heidelberg murderers, is that the latter
have no moral integrity to guide their actions.
Such people are a menace to any community and should
be removed from society permanently".
Mr Chairman, I will close with the statement that I have, one
paragraph Sir.
You see Mr Chairman, for too long now, I want the people
here to hear this, a few people in this country of ours, have had any
respect for each other, the people, the courts, not anything that
resembles a normal society. Do wish to see this type of thinking
continue?
Nobody in their right mind would wish it to continue,
therefore I have empathy for you, the Police, the Justice system and
all others who are trying to bring about a change of attitude and
hopefully a change in behaviour of all people, so as to ensure a
return to a normal and safe society.
May you be granted all the courage and strength necessary to
carry out the task that you face. Thank you Mr Chairman.
CHAIRPERSON: Mr Arendse, are there any questions you wish to
put to this witness?
ADV ARENDSE: No, Mr Chairman, except to say that Mr Fourie
made a number of controversial statements which if I do engage him
on it, it is not going to take us any further.
CHAIRPERSON: You will address us if you think it is relevant at
that time?
ADV ARENDSE: Yes, Mr Chairman.
NO CROSS-EXAMINATION BY ADV ARENDSE
CHAIRPERSON: Thank you Mr Fourie.
MR FOURIE: Thank you.
MR PRIOR: Thank you Mr Chairman, I have, due to the lateness of
the hour and there are several other matters which will be decided
upon in due course, Mr Chairman.
CHAIRPERSON: Will the date for the resumed hearing be finalised
between you and Mr Arendse?
MR PRIOR: Yes, Mr Chairman.
JUDGE WILSON: Can I request, as I have already requested, that
the evidence be obtained as to how cartridges are expelled from
firearms, request that you get someone to go through that video and
insofar as possible, indicate on the sketch plan, or a larger sketch
plan, where the cartridge cases as are shown on the video, are in
fact. This could perhaps be done by agreement, that that correctly
reflects what is shown in the video.
So if we want to see where they are in the building, we don't
have to go through the whole video again, we can just put it onto a
sketch plan.
MR PRIOR: Thank you, Mr Chairman, we will comply with that
request.
ADV ARENDSE: Mr Chairman, will we also have a transcript
available? A transcript of the proceedings, a typed transcript?
CHAIRPERSON: You can raise that with the administration.
ADV ARENDSE: Thank you.
CHAIRPERSON: Thank you very much, the meeting will now
adjourn.
JUDGE WILSON: I am told Mr Arendse, that the practice is to
prepare transcripts in all hearings.
COMMISSION ADJOURNS UNTIL A DATE TO BE DECIDED
UPON
MR ARENDSE 501 F CERQUEIRA
CAPE TOWN HEARING AMNESTY/WESTERN CAPE
COMMITTEE 544 F CERQUEIRA
ADV ARENDSE 547 F CERQUEIRA
MR PRIOR 558 A J LANGFORD
CHAIRPERSON 560 ADDRESSES
JA FOURIE
CAPE TOWN HEARING AMNESTY/WESTERN CAPE
MR PRIOR 564 J A FOURIE
MR PRIOR 567 J A FOURIE
Q CORNELIUS
CAPE TOWN HEARING AMNESTY/WESTERN CAPE
MR PRIOR 571 Q CORNELIUS
CAPE TOWN HEARING AMNESTY/WESTERN CAPE
ADV ARENDSE 591 Q CORNELIUS
MR PRIOR 592 Q CORNELIUS
COMMITTEE 593 Q CORNELIUS
ADV ARENDSE 595 Q CORNELIUS
MR PRIOR 603 M JANUARY
ADV ARENDSE 608 M JANUARY
610
MR PRIOR 602 R L PALM
CAPE TOWN HEARING AMNESTY/WESTERN CAPE
MR PRIOR 630 R L PALM
ADV ARENDSE 632 R L PALM
B BRODE
CAPE TOWN HEARING AMNESTY/WESTERN CAPE
MR PRIOR 640 B BRODE
ADV ARENDSE 654 B BRODE
COMMITTEE 655 B BRODE
MR FOURIE
CAPE TOWN HEARING AMNESTY/WESTERN CAPE
MR PRIOR 656 MR FOURIE
674
