ON RESUMPTION
CHAIRPERSON: It's never possible to do things the way one would like them to do with all these difficulties that conspire against you. However, Mr Webster is here and may we proceed with the matter in which Mr Webster is involved, as counsel.
You were being questioned at the end of yesterday by Mr Webster, you're reminded that you're still under oath, do you understand?
MATTHYS CORNELIUS BOTHA: (s.u.o.)
CHAIRPERSON: Thank you very much.
CROSS-EXAMINATION BY MR WEBSTER: Thank you, Chairperson.
We broke off yesterday when I had asked you about the radios and being in radio communication, do you recall?
MR BOTHA: That is correct, Chairperson
MR WEBSTER: Were you in fact in radio communication?
MR BOTHA: Yes.
MR WEBSTER: With all the participating people?
MR BOTHA: I'm not sure whether we had radio contact with all the vehicles but we were in contact with some people.
MR WEBSTER: One would have expected every vehicle to have had a radio, do you agree with me?
MR BOTHA: That is possible.
MR WEBSTER: I just want us to back up a bit and get back to the police station at kwaMashu. Obviously somebody was in charge of the operation, do you remember saying that is so?
MR BOTHA: Yes.
MR WEBSTER: And was that Breytenbach?
MR BOTHA: Lt Breytenbach was in charge of the reaction unit.
MR WEBSTER: I'll go back, Mr Botha. Somebody was in charge of the entire operation, is that not so?
MR BOTHA: The senior man in the entire operation was General Steyn.
MR WEBSTER: Was he in charge of the entire operation?
MR BOTHA: Globally yes.
MR WEBSTER: I'm not talking of seniority, I want the person who was the man who was in charge to whom communications had to be made who was going to give orders and all that. Was that the general?
MR BOTHA: As the senior man at the police station yes, that's correct.
MR WEBSTER: Please Mr Botha, I'm having difficulty.
CHAIRPERSON: Put it to him if you think it was somebody else.
MR WEBSTER: Was it not Breytenbach who was in charge of the entire operation?
MR BOTHA: Lt Breytenbach was in charge of the reaction unit.
MR WEBSTER: And you said he was the person because of the training, of the specialist training, who were going to take charge about stopping the vehicle?
MR BOTHA: Yes.
MR WEBSTER: So insofar as stopping and arresting those people who was concerned, that was a responsibility and it fell under direct command of Breytenbach?
MR BOTHA: Yes.
MR WEBSTER: So he was in charge?
MR WEBSTER: Yes.
CHAIRPERSON: No, I thought you said who was in charge at the kwaMashu Police Station?
MR WEBSTER: Sorry, that is where it was determined that this is a person who is in charge before they go out, in other words from the moment that you then left the police station it was known that the officer in charge was Breytenbach?
MR BOTHA: Chairperson, let me put it this way, a person in charge as far as the arrest and the entire operation, that was Lt Breytenbach of the reaction unit.
CHAIRPERSON: Let's progress.
MR WEBSTER: Thank you Chairperson.
In other words from the moment that you saw the vehicle you were supposed to report to Breytenbach?
MR BOTHA: Yes, I think that was the case.
MR WEBSTER: And then Breytenbach was the person who would give instructions as what was to be done?
MR BOTHA: In respect of his people in the reaction unit, yes.
MR WEBSTER: Not the entire operation, about the apprehension of those people?
MR BOTHA: Perhaps I should just explain that Lt Breytenbach was the person in charge of the reaction unit but as regards what happened at kwaMashu Police Station there were more senior people than Breytenbach, but to answer your question as regards the action regarding the arrest of the people, that was the responsibility and task of Lt Breytenbach.
MR WEBSTER: So despite the fact that you were aware that the stopping of that vehicle, the arrest of those people was the responsibility of the specialised unit, you decided to usurp their authority and proceed to try and stop the vehicle untrained and inadequately trained as you were?
MR BOTHA: The other members who were present were there in support of the reaction unit.
MR WEBSTER: Yes but you didn't have that experience don't you agree?
CHAIRPERSON: They worked as a team.
MR WEBSTER: I understand Chairperson, what I'm saying is ...(intervention)
CHAIRPERSON: Does it matter very much?
MR WEBSTER: Chairperson, insofar as the full disclosure, this is our point.
CHAIRPERSON: No you see full disclosure must be on something really substantial. You know, there might be minor differences of who did what and who did when.
MR WEBSTER: That is quite so, Chairperson, I agree completely with you.
CHAIRPERSON: But I think if it was something substantial then you must make that point.
MR WEBSTER: The point that I wish to make here Chairperson is and probably with a little digging we might have gotten a little further but the point that I want to make to Mr Botha is this
That it had never been your intention to apprehend those people, that in fact it had been decided that those people would be just butchered and killed and that is why, knowing that Breytenbach was the person responsible for the operation, that is namely the arrest of those people, you went above orders contrary to the arrangements and decided to shoot at the occupants of that vehicle?
MR BOTHA: Chairperson, the purpose was not or there was no prior decision taken beforehand that the people had to be killed.
MR WEBSTER: I want to take to the scene now of the shooting as you were then travelling on the road. You told us that you were in the left lane, the vehicle was in the centre lane, remember?
MR BOTHA: Yes.
MR WEBSTER: And before it stopped you slackened a bit so it was slightly ahead of you?
MR BOTHA: Yes.
MR WEBSTER: You then say that the kombi overtook the vehicle, drove in front of the vehicle, stopped so that the vehicle collided into the rear of the kombi, remember?
MR BOTHA: That is correct.
MR WEBSTER: Is that when the firing then started?
MR BOTHA: The shooting had already started before that, before the vehicle collided for the second time the shooting had already taken place.
MR WEBSTER: You didn't know where it came from?
MR BOTHA: I shot, I fired shots.
MR WEBSTER: We've heard that you shot at the wheels?
MR BOTHA: That is correct.
MR WEBSTER: Now you don't know where that shooting came from?
MR BOTHA: As far as the other shots are concerned, it came from the right hand side of that vehicle, that's where it originated from.
MR WEBSTER: Now it could not then have come from the kombi because the kombi was already ahead of that vehicle?
MR BOTHA: No but the kombi was in front of the vehicle after the shooting had already taken place. The shooting took place whilst the kombi was on the right hand side of this suspect vehicle.
MR WEBSTER: Now we have an application from Wasserman and from that application it appears that the shots which he fired or that could have been fired into the vehicle could not have been a fuselage or a number of shots but a couple of shots?
MR VISSER: Chairperson, I would like to hear from my learned friend where he finds that in Wasserman's affidavit?
MR WEBSTER: Sorry, we'll get the evidence from the applicant himself when he testifies.
But are you saying that there was heavy firing from the kombi before the kombi drove ahead of this vehicle and stopped?
MR BOTHA: Shots were fired from the direction of the kombi.
MR WEBSTER: Now this is what I want to establish from you, was it just a couple of shots or was it heavy firing?
MR BOTHA: There was fairly heavy shooting. From the moment I started shooting there was a massive attack of shots being fired from various directions.
MR WEBSTER: We know that you were firing?
MR BOTHA: That is correct.
MR WEBSTER: We know the kombi was firing. Where else was the shooting coming from?
MR BOTHA: From the right hand rear side of my vehicle.
MR WEBSTER: The vehicles then all came to a stop at some stage or another?
MR BOTHA: That is correct.
MR WEBSTER: Can you then tell us which vehicles were at which position after they came to a stop?
MR BOTHA: My vehicle, the one that I drove, was on the left hand side at the rear, in relation to the suspect vehicle the kombi was in front of the vehicle and then there were other vehicles behind us, I can't remember the exact positions and who drove them etcetera.
MR WEBSTER: Because it was at three main carriageway, would you say that those vehicles that were behind were in the lane in which the vehicle was?
MR BOTHA: I can't recall but there were vehicles behind my vehicle, possibly spread over the three lanes or two lanes, but there were vehicles, I can't remember exactly where each of them was.
MR WEBSTER: Okay, the fast lane, was that open to traffic when your vehicles all came to a stop?
MR BOTHA: I'm not sure, it might have been the case, I can't recall.
MR WEBSTER: As best as you can recall Mr Botha, was there a vehicle on the fast lane, a vehicle from the reaction unit, whatever with any of the police officers?
MR BOTHA: There were vehicles behind my vehicle so the possibility existed there could have been such a vehicle.
MR WEBSTER: No, I understand, you've already told me about the vehicles behind yours, I'm talking about vehicles on the fast lane. Were there such vehicles?
MR BOTHA: What I can recall is as I've described that my vehicle was on the left hand side of the suspect vehicle, the vehicle itself and then to the right in front of the suspect vehicle or kombi.
MR WEBSTER: You cannot then recall any other vehicles on this - whether behind you or behind the suspect vehicle or in the fast lane?
MR BOTHA: There were vehicles behind mine that I can recall but I can't recall exactly. Well, it was a long time ago, I can't remember exactly where they were but there were vehicles behind mine.
MR WEBSTER: Was at any stage that any other vehicle could have shot from the left of the vehicle in which the four occupants were besides your vehicle?
MR BOTHA: I suppose it's possible because when the shooting starting there was heavy shooting so it's possible.
MR WEBSTER: What is possible?
MR BOTHA: Chair, let me explain that during this shooting it wasn't only police vehicles that were present, there were also vehicles belonging to members of the public. We tried to put these vehicles between ourselves and the suspect vehicle so there weren't only police vehicles on the road but also many other vehicles driven by members of the public.
MR WEBSTER: Don't be evasive Mr Botha, my question to you is very simple insofar as shots being fired from the left side of that vehicle, was there any other vehicle from which shots could have come besides your vehicle?
MR BOTHA: It's possible.
MR WEBSTER: Which vehicle would that have been?
MR BOTHA: I can't remember but it's possible.
MR WEBSTER: This is strange, Mr Botha, you're in radio communication, from what you have told us, your vehicle was the only vehicle as far as I can understand that was to the left of the vehicle in which the occupants were and there's possibility there was another vehicle on the left hand side that you cannot even remember or can tell us about? Is that the position?
MR BOTHA: Chairperson, as I've already testified there were several vehicles, not only police vehicles but vehicles belonging to members of the public, the road was very busy when it took place.
MR WEBSTER: I'm not talking of ...(intervention)
MR VISSER: No, Mr Chairperson ...(intervention)
CHAIRPERSON: I think if that you would be doing yourself a favour, the questions are really being directed at the police vehicles. Admittedly there were other vehicles that were using the road and so on but I think that we are concentrating on the police vehicles, the vehicles of the reaction unit and so on, that's what he is talking about. That's what you're interested in?
MR WEBSTER: Chairperson, thank you for that.
CHAIRPERSON: Yes.
MR VISSER: But Chairperson, this witness has said time and again "I didn't look back, I don't know where those vehicles were". He keeps on saying that and it's the only answer he gives.
CHAIRPERSON: No, we're asking him about whether there was firing from those vehicles.
MR VISSER: Yes well he says he doesn't know where the vehicles were.
CHAIRPERSON: That there was heavy firing the question seems to be - you see the way, the picture we've got is here is a suspect vehicle, this vehicle is behind that, the kombi was alongside and at some stage got in front. He talks about heavy firing and I don't have a picture in my mind as to where that heavy firing came from apart from his attempt at shooting behind and the kombi. Now, were there other vehicles that were firing?
MR VISSER: Yes he gave that answer, he said from behind him and to his right there was also firing but he didn't observe the motor vehicles, Chairperson.
MR WEBSTER: Yes, so there was firing from other police vehicles, plain and simple isn't it?
MR BOTHA: That is correct Chairperson.
MR WEBSTER: Chairperson, my interest at the moment is vehicles to the left of the vehicle of that Cressida. Not interested in all the other, behind the vehicle, to the right of the vehicle, we're talking about the left of that vehicle.
MR BOTHA: It is possible but if I may just explain, in a situation like this where shots are fired so quickly, your attention is focused on the vehicle in front of you and the danger and the problem, I was nearly knocked off the road twice, so there's not a lot of time to then make observations around me. Your focus is on the present situation.
MR WEBSTER: Surely you would have known or been aware of the presence of another vehicle in front of you, police vehicle in front of you which could have fired at that Cressida because I take it that that vehicle, once the Cressida had come to a stop would have also stopped there, not just driven away that you could never have seen it, do you agree with me?
MR BOTHA: Sorry, could you just repeat the question?
CHAIRPERSON: Is it possible that apart from the kombi where you say at one stage was on the right hand side of the suspect vehicle and then came in front of the suspect vehicle, there was a collision between the suspect vehicle and the rear of the kombi, was there a possibility that there was another police vehicle?
MR WEBSTER: On the left hand side of the Cressida.
CHAIRPERSON: On the left hand side in front of the Cressida.
MR WEBSTER: In front of Mr Botha's vehicle.
CHAIRPERSON: In front of your vehicle on the left hand side. Could there have been a vehicle on the left hand side of the suspect vehicle?
MR BOTHA: As I said, it's possible but I can't remember it.
CHAIRPERSON: You can't remember.
MR WEBSTER: All things consider, Mr Botha, that vehicle would not have driven away after the Cressida was stopped, do you agree?
MR BOTHA: Which vehicle?
MR WEBSTER: If the vehicle, another vehicle had been present in front of your vehicle?
CHAIRPERSON: Police vehicle?
MR WEBSTER: Police vehicle from which shots could have been fired?
CHAIRPERSON: Yes, did any of the police vehicles drive away immediately after the suspect vehicle had come to a stop?
MR BOTHA: It's very possible, it's possible but I can't remember.
MR WEBSTER: Mr Botha, very possible is so wide that as a former senior officer I would have thought that you talk about probabilities. I want to put it to you that it's inherently improbable that such a vehicle would have existed that it would have driven away and that you would just be saying it's possible. There was no such a vehicle, do you agree?
MR BOTHA: I said that I can't remember, I conceded that the possibility existed but I can't remember.
MR WEBSTER: I want to suggest some reason for this amnesia in this regard Mr Botha.
MR VISSER: But just before my learned friend - Chairperson, may I come in here?
CHAIRPERSON: You'll re-examine, you'll re-examine.
MR VISSER: But Chairperson, with respect, if my learned friend is going to cross-examine a witness, at least he should put to him is it his case that there was in fact a police vehicle before this witness? It's quite simple to put that to the witness and we'll all know what this is about. We are now on a speculation and we're going on to a second speculation upon a first speculation that there might have been a vehicle. We still don't know. This witness says he was behind that car, he didn't see another police vehicle, now couldn't my learned friend just tell all of us whether he is putting to the witness that there was such a vehicle then we can speculate from a fact, Chairperson, at least.
CHAIRPERSON: Alright, I think I would myself require that to be clarified. It's your contention that to the left of the suspect vehicle and in front of his vehicle there was another vehicle, another police vehicle?
MR WEBSTER: Chairperson, unfortunately when you're dealing with cases of this nature where the families do not have access, we don't even have dockets of mysteriously ...(intervention)
CHAIRPERSON: Well there are no eyewitnesses accounted for.
MR WEBSTER: I have Chairperson, the only thing as my weapon at the moment are post-mortems and I will deal with why I make or question the witness ...(intervention)
CHAIRPERSON: Well now you see that is what is important you see, to ask questions for the sake of asking questions gets us nowhere, I also don't want to - I also would like to know the direction in which we are moving when you ask these questions.
MR WEBSTER: Chairperson, the direction is towards the end these post-mortems.
CHAIRPERSON: Well get to them.
MR WEBSTER: Chairperson, I don't know whether jumping into the post-mortems is really going to get us, without laying the basis ...(intervention)
CHAIRPERSON: No, I'm not saying you must jump into the post-mortems. You know, I don't have a clear picture, I got the impression you were going to put to this witness that there was in fact another vehicle to the left of the suspect vehicle, that's the point of your questioning?
MR WEBSTER: Chairperson, what I'm going to say to him is that some of the occupants had injuries on their bodies which were on the left sides of the bodies.
CHAIRPERSON: Put that to him.
MR WEBSTER: Chairperson, with all of the respect may I be allowed to lay the basis for getting to that?
CHAIRPERSON: Yes.
MR WEBSTER: Because otherwise I know the answer is going to be "it's possible" or "it's not possible" and we are not getting to probabilities and I think you are interested in probabilities Chairperson.
CHAIRPERSON: Yes we are, we're interested in arriving at as much of the truth as possible.
MR WEBSTER: Thank you Chairperson.
Before we get to the post-mortems, we're getting closer to the post-mortems, Mr Botha. Can you tell us about the positions of the occupants?
CHAIRPERSON: You mean how many sat in the front, how many at the back or who sat where, is that it?
MR WEBSTER: Chairperson could we just ...(intervention)
(Disturbance from members of the public)
CHAIRPERSON: I will ask you to leave this hall if you interrupt these proceedings. You will have a chance to talk. Please don't interrupt these proceedings. Yes do carry on.
MR WEBSTER: The various, there were four people in that vehicle and I would just like to have some idea about who was sitting where?
MR BOTHA: Chairperson, there were four people in the vehicle, I can't - but I didn't know the people, so I can't tell you which person, which individual sat where, but there were four people in the vehicle.
MR WEBSTER: Who is Capt or who was Capt L Botha?
MR BOTHA: Capt L Botha was a colleague of mine who was later transferred to I think it was Port Elizabeth or East London.
MR WEBSTER: He was in the special branch?
MR BOTHA: That is correct.
MR WEBSTER: Was he present on that day?
MR BOTHA: I'm not sure.
MR WEBSTER: You see, one of the strange things is that Capt Botha was able to state on affidavit where each of the persons were seated, do you find that strange?
MR BOTHA: I suppose it's possible.
MR WEBSTER: Possible? Probability?
MR BOTHA: As I said it's a possibility.
CHAIRPERSON: He doesn't even remember whether he was there?
MR BOTHA: That is correct, Chairperson.
MR WEBSTER: Were the occupants, that is now after they had been shot at, were they in seated positions?
MR BOTHA: They were still in the particular vehicle in a semi-seated position, some of them.
MR WEBSTER: Let's talk about the left front passenger, what position was he in?
MR BOTHA: Chairperson, it is not easy for me to describe thirteen years afterwards as to what the attitude and the position and lying and the seating of each individual in that vehicle.
MR WEBSTER: At best could you recall whether he was in a seated position?
MR BOTHA: It is possible.
MR WEBSTER: And the one who was in the left back, left rear passenger, was he also in a seated position?
MR BOTHA: Chairperson, the persons who were killed, so if we speak of a seating position then we do not speak of a upright seating position but we would say a seating/lying position if I recall correctly.
MR WEBSTER: You see because according to my instructions after rigor mortis the people were still in seated positions, that's according to the families. You wouldn't dispute that?
MR BOTHA: Chairperson, it is not logical that a person who had already been killed would remain in a seated position, in an upright seated position.
MR WEBSTER: But in a seated position.
CHAIRPERSON: They may have been reclining but still seated.
MR WEBSTER: That is the point I'm making, not necessarily straight up but generally in a seated position, that's all I want to know.
CHAIRPERSON: Quite right, in other words they were not standing and they were not sleeping, they were not lying down.
MR BOTHA: That is correct, Chairperson.
MR WEBSTER: Okay let's take the first one and that would be the person who was seated in the left front. According to the post-mortem and according to the affidavit of Capt L Botha, that person was Mbongeni Henry Zondi. You ...(intervention)
MR VISSER: Chairperson, can we now hand them in as exhibits so that we know where we are, Chairperson?
MR WEBSTER: That would be post-mortem number 2021/86, Chairperson.
CHAIRPERSON: Hold it. 2021?
MR WEBSTER: 2021.
CHAIRPERSON: Yes?
MR WEBSTER: According to Capt L Botha he was seated on the left front passenger side or seat of the vehicle. You would not dispute that?
MR BOTHA: One moment please, Chairperson?
MR LAX: It's on the third page of that set of documents.
Sorry Mr Webster, is this going to be the first one you're going to refer to?
MR WEBSTER: This is the first one I'm referring to.
CHAIRPERSON: Alright, do carry on.
MR LAX: That will be Chair, Exhibit E.
CHAIRPERSON: Very well.
MR WEBSTER: Could we then take - we should have actually started with 2019 but we'll make 2019 Exhibit F, that relates to Mabaso.
CHAIRPERSON: Yes?
MR WEBSTER: 2020
MR LAX: That's Brian Thabani Mamela?
CHAIRPERSON: Exhibit G
CHAIRPERSON: What is the number.
MR WEBSTER: Sorry, 2022 Chairperson.
CHAIRPERSON: Yes.
MR WEBSTER: If we've also numbered them unfortunately it's not going to be very scientific.
CHAIRPERSON: But we'll do the best we can.
MR WEBSTER: We'll do the best we can. There is an annexure to paragraph 4 which is labelled DR31/86, it's a typed list of various injuries that were found on the body of the deceased.
CHAIRPERSON: Is it an annexure to paragraph 4 of what document?
MR WEBSTER: Of Exhibit E.
CHAIRPERSON: Yes. Yes, do you want to give us a number as well?
MR WEBSTER: May we say it's E13. We have not numbered the ...(intervention)
MR LAX: Sorry Chair, should we not just paginate this bundle E and then we'll get the page reference E - whatever it is?
MR WEBSTER: It will then be page 14, A 14, the first one being the cover.
CHAIRPERSON: Yes.
MR WEBSTER: Mr Botha, we see according to E14 that the deceased had at least ten injuries, do you agree with me?
MR BOTHA: Chairperson, may I just have regard to the document?
MR VISSER: It's actually page 15.
MR WEBSTER: It would be 15? I'm sorry, I'm indebted to my learned friend.
CHAIRPERSON: Alright.
MR WEBSTER: E15 and E16 is the list of the injuries that were found on the deceased's body, do you agree? I want us to go to E17. I take it that injuries marked 1, 2 and 3 on the figure on the top left corner of E17, the arrows depicting a downward direction would seem to indicate that the shots or the injuries must have been caused by bullets coming from above and from the right side of the body of the deceased in that case, do you agree?
MR BOTHA: It's possible, Chairperson.
MR WEBSTER: That there can be no other explanation?
Do you agree?
CHAIRPERSON: He said it is possible.
MR WEBSTER: Bearing in mind that those - sorry, I'll rephrase the question Chairperson. Those injuries could not have been caused by shooting from you, do you agree with me?
MR BOTHA: That is correct, Chairperson, I don't believe that it was my shots that I had fired.
MR WEBSTER: And similarly with injuries depicted as 8 and 5, on that figure on E15?
MR BOTHA: 8 and 5?
MR WEBSTER: 8 is on the right hand thumb of the figure and 5 is from the right knee of that figure.
MR BOTHA: Chairperson, may I just ask, this person where was he seated?
MR WEBSTER: E3, that is left front.
MR BOTHA: Left front? It is difficult to distinguish, Chairperson, if we look at 8, point 8 on page 17, then one could assume or I suppose that this person's hand was low or it could have been high. It's difficult to say whether these were my shots because I crouched low in the vehicle but it is impossible for me to say whether it was my shots or not.
CHAIRPERSON: Yes, let's proceed.
MR WEBSTER: But from what you've told us, you didn't - you couldn't have held your firearm at such a height that would have hit a hand when you were aiming at the wheel. It reversed to that ground yesterday?
MR BOTHA: What I had said was that I shot at the left rear wheel of the vehicle but it may be possible that some of my rounds may have been fired off higher than just the wheel.
ADV BOSMAN: Mr Botha, may I just have clarity? I'm sorry to interrupt, Mr Webster.
What type of firearm did you have?
MR BOTHA: It was a 9 mm pistol.
ADV BOSMAN: So it was not an automatic firearm?
MR BOTHA: No.
ADV BOSMAN: Thank you. You may proceed, Mr Webster.
MR WEBSTER: Thank you.
You see, I'm suggesting to you, Mr Botha, that none of these could have been caused by you, do you agree?
MR BOTHA: I don't know, Chairperson.
MR WEBSTER: And if one then bears in mind what the doctor has said regarding the cause of death, namely as being injuries 1, 2 and 3, then you could not have been responsible for the death of that person, do you agree?
MR BOTHA: As I have said, Chairperson, I don't know.
MR WEBSTER: Come on, Mr Botha, what can you speculate? That your bullets could have come from the right hand side bullets causing injuries 1, 2 and 3?
MR BOTHA: No, Chairperson.
MR VISSER: Chairperson, my learned friend is being unfair to the witness. Does he have evidence in what direction this deceased was looking at the time he was shot? He might have been looking backwards for all we know. We're on such highly speculative ground, Chairperson. If my learned friend wants a concession from us, that the probabilities are that these bullet wounds were no caused by this witness, I will gladly concede it and we can get on with the matter. But surely, Chairperson, speculating with the witness, none of the two of them being an expert, none of the two of them having been on the scene to say what really happened. It takes us nowhere, with respect, Chairperson.
MR WEBSTER: With respect, no, not the two of us were not on the scene, Mr Botha was on the scene.
CHAIRPERSON: We are dealing with a fast moving incident where there is firing from all sides.
MR WEBSTER: That is quite so, I understand Chairperson, but ...(intervention)
CHAIRPERSON: You haven't got a situation that is frozen and you are now examining it. This is an event that is developing fast and shooting. The injuries to the right hand side of the body, the head and so on, on your version it would be improbable for those injuries to have been caused by this man if he says he aimed at lower left rear of the car.
MR WEBSTER: Yes, that's all I wanted from the witness.
CHAIRPERSON: All he says, he aimed at the left rear of the car, some of his shots may not have gone to the level of the wheel, they may have gone higher up, that's as far as he goes.
MR WEBSTER: But insofar as the injuries and looking at them, Chairperson, with the greatest of respect, I do not think that sitting here as you are sitting, Chairperson, that one could even - if I were to argue that those were caused by the shots fired by this witness, aiming at the wheel even though they may have gone a little higher, that injuries 1, 2 and 3 could conceivably have been caused by him.
CHAIRPERSON: Unless the man was crouching at the time.
MR WEBSTER: Unless he was crouching with his head in such a direction in which case, bearing in mind that the left front seat and not even the back, the probability recedes even further.
CHAIRPERSON: Just let's talk about the probabilities, but you can't pin things down and come to definite final conclusions beyond a man saying "I fired at this vehicle, I don't think that I shot anybody, I don't think I shot anybody" and that's as far as he goes?
MR WEBSTER: Mr Botha, is it your evidence as the Chairperson has summarised it that insofar as you believed you did not shoot anybody?
MR BOTHA: Chairperson, I have a possibility that some of my shots may have hit the people, I fired at the left rear of the vehicle but it is possible that some of them - I do not know but it may be.
MR WEBSTER: Chairperson, I have to put the next question ...(intervention).
CHAIRPERSON: You see there are people in the back seat, there are four passengers, some in the back, two in the front. We're dealing with the injury to the man in the front and these are all probabilities. You are firing from behind and it is being put that the injury to the chap on the front left hand side could not have been caused by you?
MR BOTHA: It's possible Chairperson.
CHAIRPERSON: Is that as far as we can go?
MR WEBSTER: Chairperson, I am grateful.
And again the next question that I put is also merely on probability and subject to confirmation of instructions that as I indicated yesterday and even when it suggests further that injuries 1, 2 and 3 - Chairperson, this is speculative, it's the best I can do with the information available to me, please pardon me?
CHAIRPERSON: Yes do carry on.
MR WEBSTER: That injuries 1, 2 and 3 again on probability would be very consistent with firing from above the vehicle and hence the direction of the injuries of the bullets through the deceased's head.
CHAIRPERSON: Well now that doesn't convey a clear picture to me when you say from above the vehicle and then through the roof of the car?
MR WEBSTER: Through the roof of the car.
CHAIRPERSON: That's what you say could have happened?
MR WEBSTER: That could have happened, as I say unfortunately because of the inability to secure the necessary evidence may I ...(intervention)
CHAIRPERSON: Well there was no ballistic evidence at all, was there?
MR WEBSTER: At the moment nothing is available, Chairperson.
CHAIRPERSON: Yes, right.
MR WEBSTER: So as I say I'll ask for your indulgence in putting that question.
CHAIRPERSON: It's being suggested that the injuries to the top of the head might have been caused from shots fired from above the car. Have you any comment to make?
MR BOTHA: Chairperson, I think it is highly improbable.
CHAIRPERSON: Yes, let's move on, it's improbable as far as he is concerned.
MR WEBSTER: We go on to Exhibit F, dealing with Blessing Mabaso. According to Capt Botha he was the driver of the vehicle and whilst we just look at the first page of Exhibit F you will notice there that there's a note: "The deceased was the driver of a vehicle which was conveying suspected terrorists and was killed in the shoot-out with the police, do you see that?
MR BOTHA: I see that Chairperson.
MR WEBSTER: That note must have been disinformation given to Capt Botha about the shoot-out, you admit that I'm sure?
MR BOTHA: Chairperson, I cannot comment to that.
CHAIRPERSON: Yes. You don't know what was said to Lt Botha?
MR BOTHA: I don't know.
MR WEBSTER: But it would have been consistent with your actions afterwards in planting guns?
CHAIRPERSON: They could have easily denied that they planted the guns, they could have said that the guns were in the car.
MR WEBSTER: Pardon Sir?
CHAIRPERSON: They could have easily said that the guns were in the car.
MR WEBSTER: I agree Sir, but what I'm saying is what the witness has now admitted that this would be consistent with the planting of the guns in other words the shoot-out.
CHAIRPERSON: That's a matter for argument and a guess.
MR WEBSTER: We'll leave it at that, thank you Sir.
CHAIRPERSON: Yes. Yes.
MR WEBSTER: Let's go again to the ...(intervention)
CHAIRPERSON: Mabaso.
MR WEBSTER: We are dealing with Mabaso, the annexure again, of F, I think it's page 11 and probably whilst we are still here, it's quite in order, according to this exhibit the deceased had minimum of 11 injuries on his body, do you agree?
MR BOTHA: I see that it is so, Chairperson.
CHAIRPERSON: And if we look at 11 and 12, if we look at F13 and look on the figure on the right, unfortunately Chairperson my numbers are not very legible but when you look at the figurine on the right, top right corner, you see a great number of injuries?
MR BOTHA: That is correct, Chairperson.
CHAIRPERSON: Again, if you look at the injury on the left, the top left, on the right shoulder and then look at the figurine bottom left on the neck, it would appear that and considering what appears on descriptions on page 11 and 12, that none of those injuries could have come from the left or been fired from the left.
MR VISSER: Chairperson, with great respect, I hate to interrupt. My learned friend is putting points to the witness and he is misleading the Committee. I'm not saying he is doing so on purpose. Will you look at page 12 injury number 6 as an example. What does the doctor say about this, he says
"The sixth wound is the penetrating wound which has the appearance of an entrance wound with a laceration of" such and such " that brings the body cavity to the left which was shot through posteriorally and the sixth rib stage through and the left lung in the vicinity of the leerus, it enters the lung itself"
Clearly on the left and that Chairperson, according to his finding is a fatal shot. Then Chairperson, he says at the bottom of that page the last sentence:
"The wounds which caused the death of this deceased is the shooting wounds number 3 which went through the chest and number 6 which also went through the chest."
My learned friend is not putting accurately to the witness what the report appears to state, we having heard the doctor, we haven't heard any evidence but on the face value, Chairperson, there are four wounds that clearly according to the doctors and we will draw your attention to it later. According to the medical legal report, it clearly penetrated at least on the left side of the body if not from the left side of the body.
CHAIRPERSON: Yes.
MR WEBSTER: Chairperson, we'll deal with that counsel was getting ...(indistinct) we'll deal with the wounds. Let's deal with wound number 6. Look at the right, page 14, right bottom figure, look at the direction of the arrow, Mr Botha. Project your mind at seated passenger and the possibility of you on the left rear firing and hitting the person at the spot where it is indicated on the body, the exit wound being on the left side of the neck and tell me that that wound could have in any way have been caused by your firing from the left side of that vehicle bearing in mind that this person was the driver. Is there any probability that that could be so?
MR BOTHA: Chairperson, it is difficult for me to speculate here, a person or I cannot say in which position every individual body was during the shooting incident. According to my judgement they would have looked around to the left or to the right and that would certainly have influenced the exit and entry wounds so it is difficult to comment.
MR WEBSTER: You see unfortunately we just talk on probabilities since we don't have evidence, Mr Botha, I understand that.
CHAIRPERSON: Yes, but I think that you can't pin things down with any level of certainty.
MR WEBSTER: That is agreed, Chairperson.
CHAIRPERSON: And I'm afraid that is what you are trying to do.
MR WEBSTER: No, no, all I'm saying is on looking at this, looking at this injury, the probabilities.
CHAIRPERSON: That is the level that you can put it.
MR WEBSTER: That is the level at which I'm putting it, Chairperson and not as a fact, I couldn't ever do that but on the level of probability, wound number 6 could never have been caused from you firing from the left hand side.
MR BOTHA: Chairperson, it is difficult to speculate. If we look at this page 13 to which you refer, and that was the driver, it is difficult to speculate but I don't know.
MR WEBSTER: We'll leave it at that, we'll get the doctor to tell us. Let's do Exhibit H quickly, sorry G, I'm sorry it is Exhibit G. It is Mamela, G17, 18, 19 and 20. Would you agree with me that according to the doctor the injuries indicates that caused the death were 2, 4 and 7? 2, 4 and 7, it's at the bottom, it appears on bottom of page 17, last sentence. Chairperson, I wonder if you would have the original with you, at least the original photocopy because the others are copies from copies.
MR LAX: Sorry, the summary appears on page 18 not 17, you said 17.
MR WEBSTER: My apologies, I noticed that pages are missing from some of the exhibits and I'm talking of the page with the four figures of the body, the figurines here, that's the page at which I'm at and which the numbers of the wounds are set out. Unfortunately I've got a very poor copy but we then will revert to the description. Wound number two reads
"The second shooting wound is to the neck on the right hand side."
MR LAX: Mr Webster, that wound is - if you look on page 19, it's the lower right hand figure, the injury to the neck there is visible only as a 2, although it's a bit light you can see it quite clearly.
MR WEBSTER: I was going to so speculate, thank you Sir, but that is the wound on Mr Mamela, wound number two and we know from page G3 that Mr Mamela was the right rear passenger.
You could not have caused that wound?
MR BOTHA: I don't believe that I could have caused it Chairperson because this person, according to the document was seated on the right hand side in the back seat so this was in line with the shots which I fired which were aimed at the left rear tyre.
MR WEBSTER: I need some assistance in this regard Chairperson, wound number 4, it appears to be looking at the top left figure, to be on the left front side of the chest/
MR LAX: That is correct.
CHAIRPERSON: Yes.
MR WEBSTER: You see that on the figure?
MR WEBSTER: Yes page 9, Chairperson. That is correct.
MR LAX: Just below the sternum. Round about the side of the sternum.
MR WEBSTER: The top section of the sternum, yes, or probably just above, I think whilst looking at it but looking at that you couldn't have caused that wound either?
MR BOTHA: Yes, I doubt it.
CHAIRPERSON: You see Chairperson, that's the danger of this cross-examination.
CHAIRPERSON: Just let him get done please, Mr Visser, so he can get done and you can make all the points that you wish about how valuable this is or not otherwise we are going to carry on. Please get done.
MR WEBSTER: And the same with wound number seven, do you agree?
MR BOTHA: Chairperson, my documents are very illegible.
CHAIRPERSON: Just help him point out wound seven precisely so that he can follow it on his diagram?
MR WEBSTER: In the description it says
"Seventh wound is wound on the area of the pectoral Maj"
MR BOTHA: Which page Chairperson?
MR WEBSTER: 17, the second page of the list of the injuries, the very top one.
MR LAX: Just for the record that's page 18, you're obviously missing a page.
CHAIRPERSON: Yes, what is the description.
MR WEBSTER
"The seventh wound is a shooting wound in the area of the pectorals Major, right of the excelsior fold"
CHAIRPERSON: Now you will tell me what that means?
MR WEBSTER: I seem to understand it to be on the right shoulder, where the shoulder, the bottom shoulder - was it on the front side? I'm not really sure here, Chairperson, but as best I can, but towards on the right side of the body.
MR LAX: Mr Webster, if you look on page 20 which is the second page of diagrams, 7 is marked there with a line coming down.
MR WEBSTER: Would that be on the right side?
MR LAX: The figure on ...(intervention)
MR WEBSTER: Top left?
MR LAX: Correct.
MR WEBSTER: Again we agree that not likely?
MR BOTHA: That is correct, yes.
CHAIRPERSON: Not impossible, but not likely?
MR WEBSTER: Thank you Sir.
MR BOTHA: That is correct.
MR WEBSTER: That's the highest that one can pitch it.
CHAIRPERSON: Yes.
MR WEBSTER: Mr Botha and again, Chairperson, I will ask you to bear with me, there are some newspaper cuttings which we've managed to circulate. I don't know if you've had a chance to just look at them, Mr Botha?
MR BOTHA: I haven't seen it, Chairperson.
MR WEBSTER: I'm not going to suggest that those are the facts that what's there is true and correct, they are after all newspaper reports but they do seem to suggest that the police had great difficulty in issuing statements regarding this incidents, do you agree with me? And when I say statements ...(intervention)
CHAIRPERSON: You are asking him whether he agrees that that is what he has reported?
MR WEBSTER: That they had difficulties in the police issuing statements with the facts relating to the death of the four people.
CHAIRPERSON: Do you know anything at all about that?
MR BOTHA: No, Chairperson, I did not come to hear of that.
MR WEBSTER: And it appears when one looks at this and again, Chairperson, with your indulgence, looking at the third page of these cuttings, the head note reads
"Four shot dead, police silent."
And the bottom right:
"Police remain silent over Natal shooting."
CHAIRPERSON: What is your question?
MR WEBSTER: I'm just going to suggest that indeed there was difficulty in the police issuing statements to explain this killing. Chairperson, I'm not putting it as a fact, I'm putting it as I indicated to you, as suggestion.
CHAIRPERSON: Well what question do you want to put to this witness?
MR WEBSTER: Would he agree with that suggestion?
MR BOTHA: Chairperson, I was not responsible, there was a officer appointed who would handle press releases at that stage so I would not know.
MR WEBSTER: This penultimate point that I wish to take, Mr Botha, after the killings from what I understand your evidence, it was either you or the general who came up with the suggestion of getting arms and planting them on the deceased?
MR BOTHA: Chairperson, Gen Steyn and I collectively decided at the scene that the weapons were to be fetched and I planted the arms in the vehicle.
MR WEBSTER: What I want to know, Mr Botha, and this is the question I'm going to ask you, the thought could not have emanated from the two of you simultaneously, not the agreement, the thought, whose idea was it?
MR BOTHA: Chairperson, it's difficult to say now, it could have been either mine or either General Steyn's but it was definitely one of the two of us who decided or came forward with the idea.
MR WEBSTER: Mr Botha, if you look to your right you will see members of the families of those four young people that you murdered. I take it that you are aware that their presence here is because they want to know who killed their children? Is that not so?
MR BOTHA: It's probably so, Chairperson.
MR WEBSTER: And from your evidence they can never ever know who killed their children, is that not so?
MR BOTHA: Chairperson, I have sketched it to the Committee that I fired shots and other members of the South African Police fired shots and what else can I say?
MR WEBSTER: Do you agree with me, Chairperson, that in their minds they will be justified in going away with that uncertainty and lack of knowledge about the identities of the killers, they will not even know who to forgive and who to pardon and who to reconcile with regarding the death of their children because we only have possibilities, we don't even know who killed their children?
MR BOTHA: Chairperson, I cannot state here what their thoughts are at the moment, the family members who are here, I don't know what they are thinking.
CHAIRPERSON: You can never know what ...(intervention)
Sorry, Mr Botha, please finish?
MR BOTHA: It's difficult to comment as to how the families feel.
MR WEBSTER: You cannot dispute that that is how they feel, the way I've described for you is the way that they feel, you cannot dispute that?
MR BOTHA: You represent them so I would assume that it is so.
MR WEBSTER: Mr Botha, I didn't hear you at any stage, I know it's not one of the requirements for amnesty, I didn't hear any indication of any remorse from your side, am I correct?
MR BOTHA: Up to this stage not yet Chairperson.
MR WEBSTER: Chairperson, may I stop there and ask your indulgence that some concrete evidence come up and only on those aspects, namely that is the helicopter and the shots being fired from above the vehicle and in no other respect, Chairperson.
CHAIRPERSON: Yes I understand except that you would have realised that this Amnesty Committee doesn't have an indefinite lifespan?
MR WEBSTER: That is quite so, Chairperson, I am asking that indulgence with that pertinently in mind, thank you Chairperson.
CHAIRPERSON: Right you are, thank you.
NO FURTHER QUESTIONS BY MR WEBSTER
CHAIRPERSON: Have you any questions to put to this witness, Ms Thabethe?
MS THABETHE: No questions, Chairperson.
CHAIRPERSON: Mr Visser, re-examination?
RE-EXAMINATION BY MR VISSER: Thank you Chairperson.
Mr Botha, I will not enter into argument with you but let us just set the record straight? I would request you to once again page to Exhibit G, this incident deals with a person who sat on the back seat on the right hand side. You have conceded according to the questions which my learned friend put to you that wound number 4 could not have been caused by you, do you recall that?
MR BOTHA: Exhibit G?
MR VISSER: Exhibit G page 17 deals with the person who was on the back seat on the right hand side. You have conceded in cross-examination of Mr Webster that if you fired shots at the vehicle that those shots could have caused wound number 4?
MR BOTHA: That is correct.
MR VISSER: Well let us have a look at page 19? Before we arrive at the description, I will read the description and it would seem that on the right hand side figure on page 19 the topmost wound, although we cannot read it clearly, would be the entrance wound of wound number 4?
MR BOTHA: It would seem so.
MR VISSER: And on the left figure at the number 4 is the exit wound?
MR BOTHA: That is correct, Chairperson.
MR VISSER: Well let us see what the doctor has to say about that. On page 17, Chairperson and that was the fatal shot, Chairperson, one of the shots which could have caused the death. The fourth wound is a wound anterior to the chest, that's in front and exists of a round wound, this enters the chest cavity and goes through the anterior edge of the left lung and whatever else that means. The rest I can't quite understand, Chairperson. "Enters the heart sac and so forth and so forth."
From this cryptic description of this wound which speaks of whatever the round hit would be directly behind which you see on the left hand figure and if the suspicion is correct that it entered from behind and exited in front, do you still say that you could not have possibly caused that wound?
MR BOTHA: That is correct.
MR VISSER: So you say so? Very well.
Commissioner Bosman asked you with which weapon you fired and you said with a pistol?
MR BOTHA: That is correct, Chairperson.
MR VISSER: And then she asked you if it was an automatic weapon and you said no.
MR BOTHA: It was a 9 mm parabellum firearm Chairperson.
MR VISSER: The question is was it an automatic weapon?
MR BOTHA: It was not a machine gun as such.
MR VISSER: But that's not what I'm asking you, is it not an automatic weapon?
MR BOTHA: It can fire more than one shot.
MR WEBSTER: I'm sorry Chairperson, I don't know whether that is re-examination, it seems to be bordering on cross-examination?
CHAIRPERSON: I think that this is not a trial, this is a Committee of Enquiry, it will help us.
MR WEBSTER: Thank you Chairperson.
CHAIRPERSON: If that question was not asked we might have asked some of it ourselves. I want to know how many rounds that 9 mm pistol would carry?
MR VISSER: To satisfy Commissioner Bosman's question, this pistol has a magazine, is that correct?
MR BOTHA: That is correct.
MR VISSER: Which holds a certain amount of rounds. With which weapon did you fire?
MR BOTHA: A 9mm parabellum.
MR VISSER: CZ75? What type of weapon.
MR BOTHA: A 9mm parabellum.
MR VISSER: And how many rounds did the magazine hold?
MR BOTHA: I'm not certain but I think nine.
MR VISSER: And to answer the question further, the moment when you fired a shot by pulling the trigger of the firearm, what do you have to do to fire the next shot?
MR BOTHA: You once again pull the trigger.
MR VISSER: So all you do is you pull the trigger, is that what you did?
MR BOTHA: Yes Chairperson.
MR VISSER: So it is not a machine gun where you just once pull the trigger, the difference is it's an automatic weapon but you have to pull the trigger all the time but it loads itself?
MR BOTHA: That is correct, Chairperson.
CHAIRPERSON: In other words each time you pull the trigger it only fires one bullet?
MR BOTHA: That is correct, Chairperson.
CHAIRPERSON: And you've told us it carries, the magazine carries 9 bullets?
MR BOTHA: I think so, I might be wrong but I think it's 9 Chairperson.
CHAIRPERSON: Alright. Have you any recollection as to whether you used more than one magazine that day?
MR BOTHA: No definitely not, not more than one magazine, Chairperson.
MR VISSER: And the magazine which you used was it full before you started firing? Would you have ascertained that your magazine is full?
MR BOTHA: I am not certain whether it was full but I would believe that there were enough rounds in the vehicle.
MR VISSER: And did you empty the magazine or what is the position?
MR BOTHA: I am not certain but I believe that some of the rounds remained in the magazine.
MR VISSER: After or when the shooting commenced did you then foresee the danger that persons could be killed?
MR BOTHA: That is correct, Chairperson.
MR VISSER: And you say you heard many shots?
MR BOTHA: Reasonably many.
MR VISSER: And by your action you associated yourself with the order?
MR BOTHA: That is correct, Chairperson.
MR VISSER: When afterwards you investigated and you saw that four persons were killed in the vehicle, did you then associate yourself with this action?
MR BOTHA: That is correct, Chairperson.
MR VISSER: And you have testified that you went further, you tried to better the police's side by testifying falsely?
MR BOTHA: That is correct, Chairperson.
MR VISSER: And while we are at that point, Mr Webster asked you are you a person who had lied much in the past and had compromised your position as a senior officer, can you recall that?
MR BOTHA: That is correct, Chairperson.
MR VISSER: And you gave two answers, the one was you said yes and afterwards you said when this matter was taken further that in this matter you had lied. What did you mean when you said yes to the first question that you had often told lies?
MR BOTHA: Chairperson, I was honest in the sense that during my work in the recent years it happened that one handled informers who when questions were put to them you could not give them honest answers and you would tell them lies with good intentions and it was also about the hiring of safe houses where you would not convey honesty to persons hiring the house out, because of circumstances one could not do so and the truth was contorted a little bit to protect informers.
MR VISSER: Was it also the fact that police stories concocted legends and cover stories?
MR BOTHA: You speak of cover stories?
MR VISSER: If you want to call it a cover story?
MR BOTHA: That is correct, Chairperson.
MR VISSER: This cover story, what was it all about?
MR BOTHA: The cover story would be if one approached someone with a false name or false request in order to obtain information from people, it was part of my work.
MR VISSER: And also if one wanted to discredit somebody by distributing false information about the person?
MR BOTHA: That is correct.
MR VISSER: In other words you now are referring to so called lies which you have told or your dishonesties outside the courts?
MR BOTHA: That is correct.
MR VISSER: But now in the legal system, in court, did you often tell lies there during evidence?
MR BOTHA: No Chairperson.
MR VISSER: Can you tell the Committee how many times you've done so?
MR BOTHA: Chairperson, with the post-mortem of Brian Mamela I did indeed do so.
MR VISSER: And in this matter?
MR BOTHA: This is this matter.
MR VISSER: Oh, Mamela, I thought he said Mamela, I'm sorry I misunderstood him.
MR VISSER: You were also questioned about the fact that you knew that this action was illegal, that is so, is it not so?
MR BOTHA: That is correct, Chairperson.
MR VISSER: And that is why you request amnesty?
MR BOTHA: That is correct, Chairperson.
MR VISSER: And it should it be that you have acted under a direct order which was illegal would you in the spirit of those circumstances had not obeyed such an instruction?
MR BOTHA: No Chairperson.
MR VISSER: Nothing further thank you Chairperson.
NO FURTHER QUESTIONS BY MR VISSER
CHAIRPERSON: Thank you.
Mr Botha, how many people were in your car at the time when you were chasing this car?
MR BOTHA: It was only myself and Gen Steyn, Chairperson.
CHAIRPERSON: Did he sit alongside you in the front side?
MR BOTHA: That is correct, he was passenger on the left hand side of my vehicle.
CHAIRPERSON: Did he have a gun?
MR BOTHA: I don't think he had a weapon.
CHAIRPERSON: And you don't know whether he fired at this car as well?
MR BOTHA: No, he definitely didn't fire.
CHAIRPERSON: Have you any questions to put to this witness?
MS THABETHE: No Chairperson.
MR LAX: Thank you Chairperson.
Mr Botha, you spoke - let me just get this right, you were the first person to start shooting in this incident?
MR BOTHA: That is correct.
MR LAX: You didn't hear any shots before you started firing at the back left tyre?
MR BOTHA: When I started shooting there had already been a shooting, a fraction of a second.
MR LAX: Sorry, say that again please?
MR BOTHA: From the moment that I started shooting there was just a very, very short moment afterwards when I heard the next shots being fired.
MR LAX: The way I heard it translated was as if you shot immediately after, a fraction after, but in fact it was the other way around?
MR BOTHA: That is correct.
MR LAX: And you distinctly, the impression I gain from your evidence was that you distinctly saw the flashes of firearms on the right hand side?
MR BOTHA: That is correct.
MR LAX: And that's how you thought you were being fired at?
MR BOTHA: That is correct.
MR LAX: Now did you see any flashes on your left hand side?
MR BOTHA: No.
CHAIRPERSON: They may have been there but you paid no attention?
MR BOTHA: That is correct, my attention was focused on the vehicle.
MR LAX: The thrust of my question is this, is that if there had been shots on your left hand side, you were behind the vehicle at this stage, the kombi and the suspect vehicle were ahead of you?
MR BOTHA: That is correct.
MR LAX: If there had been any shots from your left hand side ahead of you, you would have seen those flashes, you would have noticed them, it was dark after all?
MR BOTHA: Yes it was dark and as I said there were also members of the public amongst us so it was a very difficult situation and after the first shots were fired you were then quite tense and things happened very quickly.
MR LAX: Yes, I'm talking about the likelihood of you seeing shots ahead of you on the left hand side?
ADV BOSMAN: I can't recall that I saw flashes.
MR LAX: You certainly didn't hear shots coming from that direction?
MR BOTHA: There were many shots being fired and it's not possible, not easy to determine whether a shot which was quite close to you comes from a particular direction.
MR LAX: Okay. Now just one other small aspect that Mr Visser dealt with in re-examination, he said to you that you associated yourself with the order. What order was that?
MR VISSER: Chairperson, if I may, please forgive me but I said even if there was an order which we don't say because there wasn't an order in fact given to shoot but it was suggested, Chairperson, that there was an illegal order given and I put it to him on the basis that even if there was such an order would you disobeyed such an illegal order, that's what I intended to state.
MR LAX: I was just puzzled because his direct evidence was that there was no decision taken at any stage that he was aware of to kill these people?
MR VISSER: That's precisely correct, that's our evidence but that is what was put by my learned friend to the witness.
MR LAX: Until the point that the vehicle came to a stop, you had no idea that anybody had died yet?
MR BOTHA: Due to the number of shots that I heard I thought that somebody might be seriously injured or killed.
MR LAX: If we just add up the number of shots found on the bodies and that obviously doesn't include shots that missed those bodies and the shots that missed the vehicle altogether, we're talking about - if you'll just bear with me a moment, I didn't do it earlier, 19, 29, 40 ...(intervention)
MR VISSER: My attorney added it, Chairperson, it's 10, 11 and 19 which add up to 50. 40?
CHAIRPERSON: 31 and 19 is 50.
MR VISSER: 50. Except that it's not clear whether all of them are actually bullet wounds, there may be other wounds that one can distinguish as ...(intervention)
CHAIRPERSON: Entry wounds and exit wounds.
MR VISSER: Well also there was bumping of the cars, Chairperson, there may have been injuries, we don't really know because we haven't heard the doctor but it apparently seems as if there might have been 15 bullet wounds.
MR LAX: Just from my reading of those post-mortems and again obviously subject to that, the doctor does distinguish between lacerations and gunshot wounds in that and shrapnel wounds and so on so let's at least we can say with a degree of certainty that at least 15 odd shots were fired?
CHAIRPERSON: What is the question?
MR BOTHA: It's possible.
MR LAX: And you say you heard - you're not sure how many shots you heard. Would that accord with what you heard, with your recollection of what you heard?
MR BOTHA: Yes there was quite an intense gun battle going on so I'm going along with that number of shots, yes it was an intense exchange of fire.
MR LAX: Thank you Chairperson.
CHAIRPERSON: Just help me, one tries to get as clear a picture as one can. You talked about intense shooting and I can't in my mind yet form a picture as to where the shooting came from apart from your car and the kombi. Now there were other police vehicles, they were behind you, they shot at this car from behind your car?
MR BOTHA: That is correct.
CHAIRPERSON: And they never came alongside your car, those other police vehicles, while they were shooting at this car in front? Is that the picture or is it not a clear picture?
MR BOTHA: Chairperson, as I testified I shot from the left rear of the vehicle of the kombi, who moved past us on the right and there were shots fired and then there were also shots from the rear of our vehicle to the right hand side, shots came from that direction as well, that's what I can recall.
CHAIRPERSON: How many people were in that kombi, do you know?
MR BOTHA: It was three people.
CHAIRPERSON: How many of them were armed, do you know?
MR BOTHA: I'm assuming that they were all armed.
CHAIRPERSON: And I take it you don't know who was in the vehicle immediately behind your vehicle?
MR BOTHA: If I was to speculate I think it would have been the reaction unit's vehicle who were shooting from behind.
CHAIRPERSON: And they were all armed?
MR BOTHA: Yes that is correct.
CHAIRPERSON: One final question just to clear my mind, are you certain that there was never a decision that these people should be shot and killed beforehand?
MR BOTHA: Most definitely, there was no such a decision taken beforehand.
ADV BOSMAN: Mr Botha, when you were at kwaMashu Police Station, I seem to recall that you said that the purpose was that you planned preventative action?
MR BOTHA: Yes that is correct.
ADV BOSMAN: But what would the content of these plans be? What did the preventative action include?
MR BOTHA: It included to in respect of people whom we thought were on their way to attack certain targets, to arrest these people, to try and thereby prevent serious damage to property or loss of life.
ADV BOSMAN: Did you not discuss ways and means as to how you would prevent this and how you would stop these people. Surely you would have expected these people to be in possession of arms? Did you discuss the extent of the operation and how far you would have to go?
MR BOTHA: It's a very difficult situation, the problem was that if we could get the opportunity to arrest the people properly, but the problem was we didn't actually know which targets they had targeted so we didn't know where to arrest the people and we always had the fear that we would reveal the identity of our informers so what we did was to try and intercept people on the road when they left their homes.
ADV BOSMAN: Or is this said or implicitly or expressly that when this happened that shots had to be fired?
MR BOTHA: Yes, I mentioned in my statement, if I can perhaps just find the place, we discussed this amongst ourselves that if shots were fired at us we would have no choice but to fire back, we didn't realise that these were dangerous people and that we would have to deal with the situation as we found it.
ADV BOSMAN: On the evidence here it would seem to me as if it was an exercise "horribly gone wrong" that's the impression that I'm getting, am I right or wrong?
MR BOTHA: That is correct.
ADV BOSMAN: Now if one looks at it ex post facto, what would do you think what went wrong, what caused this operation to go so awry because now we know that the people were not in possession of weapons?
MR BOTHA: After I tried to stop the vehicle by shouting, "police, police" people tried to force me off the road twice and then there was a collision with the front kombi in an attempt to flee and thereafter I decided to halt the vehicle by shooting at the tyres and thereafter the spontaneous exchange of fire took place.
ADV BOSMAN: Perhaps it's not a fair question but what triggered the shooting in your opinion? You were there.
MR BOTHA: It was try and bring the vehicle to a halt so that we could arrest the people.
ADV BOSMAN: I'm assuming that a docket was opened in respect of this case?
MR BOTHA: There was an inquest docket, yes.
ADV BOSMAN: Do you know what happened to the vehicle in which these people were passengers?
MR BOTHA: I'm assuming that the vehicle was seized and what happened afterwards I'm not sure.
ADV BOSMAN: Did you ever read the docket, the inquest docket, do you have any knowledge of those proceedings?
MR BOTHA: Yes, I testified in the inquest.
ADV BOSMAN: Can you recall whether the vehicle had been inspected in respect of the number of gunshot wounds, had that been noted anywhere?
MR BOTHA: I can't recall.
ADV BOSMAN: I'm not a police officer but as a former State Prosecutor, public prosecutor, I would expect that there would have to be a definite record as to how the vehicle looked after the incident where all the bullet holes were on the sides or wherever.
MR BOTHA: Yes, I'm sure that or I believe that that would have been in the inquest docket.
ADV BOSMAN: You can't recall however that that was ever an issue?
MR BOTHA: In what respect?
ADV BOSMAN: The question as to whether the bullet holes or the bullets had entered from the top, the roof or from the sides or from the windows or wherever?
MR BOTHA: Yes, unfortunately I didn't have a look at this docket, I'm not familiar with it.
ADV BOSMAN: So you can't help us to determine from which directions these shots could have been fired. Then a last aspect, last question Mr Botha, Mr Webster put it to you and we all know that a feeling of remorse or regret whatever is not essential in an amnesty application. However, I do feel that you can appreciate the emotional quality of the amnesty application?
MR BOTHA: That is correct.
ADV BOSMAN: And I'm asking you is there nothing which you would like to say outside of the strict legal confines of the case? I see that you're looking at your legal representative, Mr Botha, it's not my intention to corner you, to make life difficult for you, I'm simply asking you whether there isn't perhaps a need on your part to say something to the family?
MR BOTHA: No Chairperson.
ADV BOSMAN: Thank you Mr Botha.
CHAIRPERSON: Did you ever find out who the occupants were, whether they were in fact members of the ANC or any organisation of that kind? Did you have any information at all about these people?
MR BOTHA: Chairperson yes, one person Brian Mamela according to Col Andy Taylor, he'd been a trained terrorist, MK terrorist.
CHAIRPERSON: That's all?
MR BOTHA: That is correct.
CHAIRPERSON: Nothing about the others?
MR BOTHA: That is correct.
CHAIRPERSON: Yes thank you.
MR BOTHA: Thank you.
WITNESS EXCUSED
