MR PRIOR: May I call Mr Cerqueira?
CHAIRPERSON: Yes.
MR PRIOR: Mr Chairman, there’s no statement of Mr Cerqueira.
CHAIRPERSON: It doesn’t matter, you lead him.
MR PRIOR: He is the brother of the deceased Mr Jose Cerqueira who was present at the Machados Restaurant on the night of the slaying. Mr Chairman, may I move my position, I can’t see the witness?
Mr Cerqueira, could you come up to where the previous witness was?
CHAIRPERSON: What are the witnesses full names Mr Prior?
MR PRIOR: His first name is Francisco.
CHAIRPERSON: What are your full names please and could you just spell your surname?
MR CERQUEIRA: Do you want me to spell my surname?
CHAIRPERSON: Yes, please.
MR CERQUEIRA: C-e-r-q-u-e-i-r-a.
CHAIRPERSON: Thank you. Are you prepared to take the oath?
MR CERQUEIRA: Yes, I am.
CHAIRPERSON: Will you please stand and raise your right hand.
FRANCISCO CERQUEIRA: (sworn states)
CHAIRPERSON: Thank you, you may be seated.
EXAMINATION BY MR PRIOR: Mr Cerqueira, is it correct that on the evening of the 30th of December 1993, you were at the Machados Restaurant in Observatory?
MR CERQUEIRA: Yes, I was, I was the whole day until a quarter to twelve that evening.
MR PRIOR: Who was the owner of the restaurant?
MR CERQUEIRA: My brother, my brother Jose.
MR PRIOR: Could you tell the Commission or the Committee what occurred at between approximately 11H30 and midnight on that evening?
MR CERQUEIRA: Yes. We were about to leave, my brother was standing behind the bar counter and I was standing on the opposite side towards the door when he asked me to take the key and open up the next morning. I know the doors were open and the restaurant was empty, there were no patrons in the restaurant. For some reason or other I turned back and I saw this vehicle drive past slowly past the restaurant - look inside, the car was heavy laden.
MR PRIOR: Just stop there. You say a vehicle drove past the restaurant?
MR CERQUEIRA: Yes, it actually slowed down to the door where the door was.
MR PRIOR: Now, the Machados Restaurant is situated where in Observatory?
MR CERQUEIRA: It’s situated two doors from the Heidelberg Tavern.
MR PRIOR: And how far from the corner of Station Road and Main Road?
MR CERQUEIRA: We’re on the corner Sir.
MR PRIOR: Is that at the robots?
MR CERQUEIRA: At the robots. The car slowed down, I noticed there was a driver wearing - I think wearing glasses, squared faced - drove up to the top and with about three minutes from noticing that we got talking and we heard what sounded to us or to myself as firecrackers.
MR PRIOR: At that stage, were you still inside the Machados Restaurant?
MR CERQUEIRA: We were still inside. The one waiter had started walking towards the door and told me - his name was Benny, he told me that it sounded like crackers. I followed the waiter to the door, another waiter followed.
MR PRIOR: Did you go outside onto the pavement?
MR CERQUEIRA: I went onto the pavement, Benny the waiter was standing in front of me looking towards the Heidelberg Tavern, in other words right of the restaurant. There was another waiter in front of me and I was the third person on the pavement.
MR PRIOR: Mr Chairman, could the translator just give me an indication when to proceed, I don’t know when the translation ends.
Please continue.
MR CERQUEIRA: What sounded like crackers seemed to be more sort of repetitive - I actually thought it was a car’s exhaust being dragged going gr, gr, like that ...[indistinct] When I looked up there was that same car which was a dark car, it was coming in the opposite direction - that being a one-way going up.
MR PRIOR: Was this vehicle - this dark coloured vehicle travelling towards you at that stage?
MR CERQUEIRA: Towards us which is in the opposite direction of a one-way - it seemed very strange to me.
MR PRIOR: Sorry, is Station Road a one-way going up towards ...[intervention]
MR CERQUEIRA: Going up.
MR PRIOR: Sorry, from Main Road?
MR CERQUEIRA: No, it’s going up from the stadium up towards the hospital, it’s a one-way going up.
MR PRIOR: And this vehicle was travelling against the one-way?
MR CERQUEIRA: Against the one-way.
MR PRIOR: Yes, what did you observe?
MR CERQUEIRA: I observed the guy in the back seat of the car - there was what I believe was a R4 or an R1, I don’t know what you call these things now, or an AK47 through the window ...[intervention]
MR PRIOR: What did you see? Could you identify anything at that stage?
MR CERQUEIRA: They were shooting - there was a guy shooting towards the right of the car and another guy shooting sort of in the air towards the restaurant above at random, they were just shooting. Then they turned the gun - they guy on the left turned the gun towards where we were standing, fired a couple of shots, hit the wall next to where the waiter was standing, the waiter froze, I dragged the waiter inside.
MR PRIOR: Who was that?
MR CERQUEIRA: Benny.
MR PRIOR: Are you able to tell the Committee, how far was this vehicle from you when the shots or shots were directed at you?
MR CERQUEIRA: About as far as what you are from me now.
CHAIRPERSON: ...[inaudible]
MR PRIOR: About ten to twelve paces Mr Chairman, thank you.
You say you dragged Benny inside?
MR CERQUEIRA: Yes, I caught a hell of a fright obviously, people were shooting at us. I dragged Benny inside, there was another waiter - the three of us went through the door and I went inside shouting for my brother, shouting for him: "Where are you, where’s the gun, where’s your gun"? I dived over the counter looking for the gun, I didn’t see my brother, went into the kitchen asking for the staff "Where’s my brother"?
MR PRIOR: Yes?
MR CERQUEIRA: Benny as well went in screaming for my brother, asking for my brother.
MR PRIOR: Penny?
MR CERQUEIRA: Benny.
MR PRIOR: Oh, Benny.
MR CERQUEIRA: The waiter.
MR PRIOR: Yes, then what happened?
MR CERQUEIRA: Then I got a funny gut feeling for not finding my brother. I walked towards the door again and when I got outside he was shot.
MR PRIOR: Are you okay to continue?
MR CERQUEIRA: Yes, I’m fine.
MR PRIOR: Yes, what was the next thing?
MR CERQUEIRA: When I got to him he was laying there, I was hoping that his legs were shot but he had been shot underneath his left arm.
MR PRIOR: Did you see whether he had a firearm in his possession?
MR CERQUEIRA: No, Sir. This is what he had in his hand, this is what he had in his hand.
CHAIRPERSON: What is that?
MR CERQUEIRA: It is a pouch Sir, where he kept all his documents and where he kept the store keys in there.
MR PRIOR: Did you stay with your brother the deceased, until the police arrived?
MR CERQUEIRA: Yes, I did. I stayed with my brother and I took his gold chain off him and then Benny took his watch off him until the police arrived. And then Benny brought me my brother’s gun which he evidently found afterwards - I don’t know where. The police asked me if the gun had been shot, I said: "No, test it for yourself". They took the gun and they tested it ...[intervention]
MR PRIOR: Sorry, just stop there. What type of firearm was it?
MR CERQUEIRA: It’s a .45, a .45 Parabellum or Star, I’m not sure.
MR PRIOR: A semi-automatic?
MR CERQUEIRA: Yes.
MR PRIOR: Can you tell the Committee, as far as you know - you were there on the pavement at a certain stage, whether your brother the deceased fired at this vehicle?
MR CERQUEIRA: No Sir, not to my knowledge.
MR PRIOR: The exhibit that you’ve tendered, the leather pouch - you say he kept his documents in there and the shop keys?
MR CERQUEIRA: Shop keys, documents.
MR PRIOR: Did he normally take it home with him?
MR CERQUEIRA: Yes. And the gun he carried underneath - he kept underneath the till point at all times.
MR PRIOR: I just want to clear up one aspect, when you noticed this vehicle coming towards you, you say there was shooting from both sides - sorry, let me correct that, you saw shooting towards the opposite side of Heidelberg Tavern?
MR CERQUEIRA: Yes.
MR PRIOR: And you say that was random?
MR CERQUEIRA: Yes.
MR PRIOR: And the side of the vehicle that shot at - sorry, the person that shot at you where you were standing, where did that shooting come from, from ...[intervention]
MR CERQUEIRA: From the back of the vehicle on the left-hand side.
MR PRIOR: You said earlier something: "It was R1’s or R4’s or AK47’s, are you able to describe with any precision what the firearms were that were being used on that evening?
MR CERQUEIRA: Not with any precision.
MR PRIOR: But were they small short weapons or were they long?
MR CERQUEIRA: They had longer barrels than my usual gun that I use, I’d say they were rifles.
MR PRIOR: Rifles? Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR PRIOR
CHAIRPERSON: Mr Arendse?
ADV ARENDSE: Thank you Mr Chairman. Mr Cerqueira, as the legal representatives of the applicants and for the applicants, we are sorry to know that your brother was killed in the incident.
MR CERQUEIRA: Sorry, could you speak up, I can’t hear you.
ADV ARENDSE: Yes, we are sorry - the legal representatives and the applicants and it’s really tragic and as legal representatives we are not here to defend or to justify what happened that evening, do you understand that?
MR CERQUEIRA: I understand that.
ADV ARENDSE: Has it been explained to you by Mr Prior or anyone else what this process is about - this amnesty?
MR CERQUEIRA: I’ve been following it quite closely on TV.
ADV ARENDSE: But do you know ...[intervention]
MR CERQUEIRA: I’ve been reading the newspaper and I know what this is all about.
ADV ARENDSE: Okay. Are you opposed to these three applicants being granted amnesty?
MR CERQUEIRA: Very much so, I am.
ADV ARENDSE: Now if you are opposed, on what basis are you opposing the applications?
MR CERQUEIRA: Because up until this stage I didn’t want - all I wanted to do and my family wanted to was to forget the whole thing, until I heard what these gentlemen were coming up with - about the shooting at them.
ADV ARENDSE: Okay.
MR CERQUEIRA: That my brother was shooting at them or to that effect that my brother carried a weapon and pointed at them or whatever they’re saying, then I decided I’ll get involved now. Up until that point I was quite prepared to forget the whole thing.
ADV ARENDSE: But you were also prepared to forget it because they had been tried and convicted and sentenced, so they’d been stuck away for - in their case, 27 years so on that basis you were prepared to forget about it, is that right?
MR CERQUEIRA: Not on those basis’, I was prepared to forget so that my whole family could put everything behind it - this sentence to me means nothing.
ADV ARENDSE: But you must have then been satisfied that the perpetrators or at least some of them had been apprehended and had gone to court and they’d been found guilty and sentenced?
MR CERQUEIRA: If you call somebody that takes another person’s life and sits for 20 years and then can come out and - I don’t want to sound as if I’m accusing anybody but if you call that justice, to me it’s not justice.
ADV ARENDSE: Sorry.
MR PRIOR: Mr Chairman, I requested the policemen’s - I wanted to examine the bag just to - while I have an opportunity.
ADV ARENDSE: May I continue Mr Chairman? Would it be correct to say that what want is justice?
MR CERQUEIRA: That’s quite correct.
ADV ARENDSE: And justice for you would have been - you would have preferred them to get the death penalty, would that have been justice for you?
MR CERQUEIRA: At that time when I saw my brother lying there obviously one expects the same from whoever does that, takes a loved one away from you and up until about a year ago sure, I wanted the death sentence.
ADV ARENDSE: Now, that’s why I asked you whether this process has been explained to you. Do you know what the difference is between this amnesty hearing - this process and the criminal process?
MR CERQUEIRA: Yes. They’ve been charged, they’ve been found guilty and they’ve got 20 odd years what you mentioned, I understand that.
ADV ARENDSE: And that ...[intervention]
MR CERQUEIRA: This is now - they want amnesty so they can walk in the streets again, is that correct?
ADV ARENDSE: No, it’s not correct.
MR CERQUEIRA: Okay, would you explain to me then please?
ADV ARENDSE: Now, let’s examine that. The criminal court is about justice okay, where people are found - they’re brought before the court, they’re tried, evidence is let and on that evidence you are found guilty or not guilty. In their case they were found guilty and they were sentenced, now that is justice.
MR CERQUEIRA: Okay I understand, please carry on.
ADV ARENDSE: Now do you understand this process that it’s not the same as the criminal process?
MR CERQUEIRA: Could you please elaborate?
CHAIRPERSON: I think he said that he knows now they’re applying for amnesty and if they get it they’ll be free - he said that.
ADV ARENDSE: Well, I’m not sure whether the answer came out that way.
I still want you to understand because it is of concern to us as legal representatives that as a victim it doesn’t appear from what you say that it has been explained to you what this process is all about.
MR CERQUEIRA: Well, it seems to me that I don’t really understand, so will you please explain it to me?
ADV ARENDSE: You seem to be very cynical that where someone applies for amnesty and is granted amnesty that they can as you put it, go and walk the streets.
MR CERQUEIRA: What is this all about then?
ADV ARENDSE: Well, maybe you tell me. You are now giving evidence here today, you’ve been asked to give evidence as a witness.
CHAIRPERSON: He’s given you what his understanding ...[intervention]
ADV ARENDSE: And you’re opposing this ...[intervention]
CHAIRPERSON: He’s given you what his understanding is Mr Arendse, if you think he ought to have a better understanding, put it to him.
ADV ARENDSE: I want to put it to you and the other victims who intend testifying, if they can also hear what I’m saying, that this process is not about justice.
MR CERQUEIRA: What is it about Sir?
ADV ARENDSE: This is about this Committee hearing the truth of what happened that night and it’s about reconciliation, do you believe in reconciliation?
MR CERQUEIRA: I believe in reconciliation and I believe in the truth and therefore I’ve just given the statement that I did and that is the truth, that is the truth.
ADV ARENDSE: What do you mean by you believe in reconciliation?
MR CERQUEIRA: I want to hear - that’s the reason why I came here today, I want to hear what the gentleman sitting who - one of these gentlemen sitting here that shot my brother has got to say to me.
ADV ARENDSE: And if - I don’t think - I haven’t seen you here before today.
MR CERQUEIRA: No, Sir.
ADV ARENDSE: Now they’ve had an opportunity and they’ve already said what happened that night and Mr Gqomfa who’s sitting on your far right there, he has said that he shot your brother. Is there anything more that you wanted to hear?
MR CERQUEIRA: I want to know what he felt like shooting my brother and why is he saying or whoever is saying it - maybe the three I don’t know I haven’t heard, why my brother shot back at them - that’s what I want to hear, that’s why I’m here today. Up until that time that I heard these statements I wasn’t interested in coming here because like you say justice had been done, this is not a court hearing. I wasn’t interested in coming here until I heard these lies.
ADV ARENDSE: Are you saying he’s lying?
MR CERQUEIRA: Yes, I’m saying he’s lying?
ADV ARENDSE: Now you tell me, why would he be lying if he’s admitted shooting your brother? What has he got to gain by lying?
MR CERQUEIRA: He’s admitted, he hasn’t lied about shooting my brother, he’s lying about my brother shooting at him or having a weapon or pointing it at him.
ADV ARENDSE: We’ll deal with that but in that situation your brother had something in his hand - you’ve showed it to us, he may have been under the impression that your brother was shooting at him.
MR CERQUEIRA: So, if somebody’s holding a bag you normally shoot at him?
ADV ARENDSE: Yes?
MR CERQUEIRA: I’m just asking the question.
ADV ARENDSE: I’m saying he may have been under that impression, do you agree with that - in that situation that he was in?
MR CERQUEIRA: I don’t know, I’m still dumbfounded why he shot at my brother. In fact at why he shot at all of us, I could have taken the bullet, Benny my waiter could have taken, Michael the other waiter could have taken the bullet and I could have taken the bullet but it so happens that my brother took the bullet.
ADV ARENDSE: Yes. Now just to get back to an understanding of what this process is about, are you also saying that if you come here and you hear why they shot your brother - what motivated them to shoot your brother, that you would then be satisfied?
MR CERQUEIRA: Sorry, could you repeat that please?
ADV ARENDSE: Would you be satisfied if you came here and heard from them directly who shot your brother, why they shot your brother and so on, that you would then be satisfied?
MR CERQUEIRA: I’m satisfied with who shot my brother because the courts have found him guilty, what I’m not satisfied with Sir is that why he’s saying that my brother was shooting back at him.
ADV ARENDSE: Yes.
MR CERQUEIRA: That’s what I’m not satisfied about.
ADV ARENDSE: So if you get a plausible explanation about why he thinks your brother shot back at him, would you then be satisfied with that explanation?
MR CERQUEIRA: I might change my mind.
ADV ARENDSE: You might change your mind?
MR CERQUEIRA: If it’s explained to me, yes I might Sir.
ADV ARENDSE: Now tell me, would you change your mind about your opposition to this amnesty application?
MR CERQUEIRA: I beg your pardon?
ADV ARENDSE: Are you saying that you would consider then changing your mind whether they should be granted amnesty or not?
MR CERQUEIRA: I’d consider but it ...[indistinct] hearing what they have to say.
ADV ARENDSE: Now, just to get back to this process, you know that this process results from an Act of Parliament, our new Parliament?
MR CERQUEIRA: Yes, Sir.
ADV ARENDSE: And you are a law abiding citizen?
MR CERQUEIRA: I am, I’d like to think so, I might have skipped a couple of robots or not stopped at a stop street but other than that ...[intervention]
ADV ARENDSE: Yes. Now, you know there are certain requirements for the applicants to meet and to satisfy before they are granted amnesty?
MR CERQUEIRA: Sure.
ADV ARENDSE: Do you know what they are?
MR CERQUEIRA: I don’t know.
ADV ARENDSE: You don’t know?
MR CERQUEIRA: No.
ADV ARENDSE: Now, if I tell you that not one of those requirements has got anything to do with justice, would you be surprised to hear that?
MR CERQUEIRA: I probably would be, yes.
ADV ARENDSE: Now I’m telling you that it’s got nothing to do with justice as you understand it.
MR CERQUEIRA: Okay.
ADV ARENDSE: Now, if there’s such a law which allows for the applicants to be granted amnesty which has got nothing to do or very little to do with justice, would you be prepared to live by a decision of this Committee which says: "Okay, you can now - as you put it, go and walk the streets"?
MR CERQUEIRA: I’d have to live by it Sir, I’d have to live by that and I’ll probably change my mind once I’ve heard what is to be said.
ADV ARENDSE: Yes.
MR CERQUEIRA: That’s why I’m here today, I’m here to hear the reason why he says and why is the perception like you said, of why - because he had something in his hand, why he got shot at? Why does the man think because he had something in his hand he was shooting at him - if he was shooting at him?
ADV ARENDSE: Is there any reason why you weren’t here from the beginning?
MR CERQUEIRA: Yes, because I wanted to get it over and done with, I didn’t want to - it disrupted my whole life completely, my family life.
ADV ARENDSE: Because it’s a ...[intervention]
MR CERQUEIRA: My parents’ lives and all our lives, his wife, his children - the business went to pieces because of this, we wanted to forget it. Once we heard that they had been charged the family was quite happy, up until now when I heard about what was being said and I decided how can this be?
ADV ARENDSE: Would you accept that lots and lots of people, tens of thousands if not millions of people in this country have been shot and killed and tortured ...[intervention]
MR CERQUEIRA: Sir, I understand that, we’re dealing with my brother at the moment.
ADV ARENDSE: No, no, can we finish?
MR CERQUEIRA: I’m dealing with my brother.
ADV ARENDSE: Yes, we’re going to deal with your brother. Do you accept that lots of people, many thousands of people have been shot and killed and maimed and tortured and raped - Black people in this country, do you accept that as a fact?
MR CERQUEIRA: I accept that, I accept that White people, Coloured people, Indian people have been shot and raped and maimed and bombs have been planted - not only Black people, White people, Black people. That’s besides the point, my whole thing is that I came here today is to hear why these gentlemen are saying that my brother shot at them. I’m not interested who’s got shot and who that, I fell sorry for them and I understand that a lot of people did and a lot of bad things were done but this is not what the whole point is about - why I came here, why I came here today.
ADV ARENDSE: But unfortunately Mr Cerqueira, what I want you to agree with me or you can disagree, is that the amnesty process is about healing all that, it’s not just about your brother, I can’t agree with you that this process is just about your brother. It’s - we all obviously know that other people had been killed in this incident, other people had been injured in this incident, Mr Cornelius, Mr January and other people had been killed.
It’s not just about your brother, it’s about trying to get to grips with understanding why all these people including your brother and other hundreds and thousands of people have been killed, injured, maimed. Isn’t that what this is about?
MR CERQUEIRA: Sir, this is what this is about but isn’t it also true that some people heal a lot quicker than others, a lot of people forgive and others don’t and other people forget and others don’t because we are human. It might take me a lot longer than some people and I respect that, if other people heal quicker than what I do, then I appreciate that. I tried to forget it up until two days ago and then yesterday I heard it again. I wasn’t going to come here but then when I heard what was being said I thought I better come here and tell the truth, basically how it happened - that’s basically it.
ADV ARENDSE: Now, do you also accept that there have been other people who have appeared before this Committee who have committed similar or even worse atrocities and they have been granted amnesty?
MR CERQUEIRA: I understand that.
MR PRIOR: Mr Chairman with respect, is this a fair question to the witness?
CHAIRPERSON: It hasn’t got anything to do with it - as to what the Committee has decided or not Mr Arendse.
ADV ARENDSE: Mr Chairman with due respect, this is of critical importance here to understand ...[intervention]
CHAIRPERSON: No, it isn’t of critical importance.
ADV ARENDSE: To understand - we haven’t led any evidence, I can’t say it because I’m not a witness, I need to get a response from a witness and it’s clear that Mr Prior has not - as the leader of evidence he has not discussed with Mr Cerqueira and therefore I’ll be surprised if he discussed it with any of the other victims, what the amnesty process is all about.
JUDGE WILSON: Do we need to be told that by witnesses? Don’t we know what it’s about, don’t you know what it’s about and aren’t you going to tell us that in your closing address?
ADV ARENDSE: It’s also important Mr Chairman with due respect, for victims to understand what this process is about before because they are opposing the application for amnesty. Now, you support something or you oppose something because you understand it or because someone has told you to oppose or to support - that is what I want to know, his view of why he’s opposing it.
CHAIRPERSON: Mr Arendse, as I understand his view is that he wasn’t interested in coming here until recently when he heard it being said that his brother was killed because his brother was alleged to have shot at them and that is why he was killed. Now him his mind he knows that his brother did not shoot and he’s come to the conclusion that they are not telling the truth, that is why he is here - I think you understand that.
ADV ARENDSE: I hear yes, yes, yes, behind me Mr Chairman, I asked you yesterday that people behind me must refrain from passing comments when I’m busy.
CHAIRPERSON: ...[inaudible]
ADV ARENDSE: M Chairman, that may be one of the purposes why he’s here but there is a perception and that perception comes from people like Mr Cerqueira and victims who are concerned with the amnesty process, creating perception in the minds of the public about the amnesty process and in my view it is a misconception.
There is no understanding of what this is about and I can’t cross-examine members of the public willingly, I can only do so when I ask questions of people like Mr Cerqueira. And it’s very important for us in this country to understand what this is about. There is a perception that people like the applicants especially APLA cadres should not be granted amnesty, they must get their just deserts. Now I’m putting that in context, there’s been a lot of killing and the Black people of this country has borne the brunt of that.
CHAIRPERSON: We’ve heard that Mr Arendse, I’m just saying to you that this witness was prepared to overlook and come to terms with the reality as I understand his evidence and the only reason why he’s here is because he read it being said that his brother was killed because his brother fired at them and they shot back. Now he says that he knows his brother did not shoot, he thinks that the truth is not being spoken - that the applicants have not told the truth, that is why he’s here.
ADV ARENDSE: He’s also here Mr Chairman, because he said he wanted justice, now that is fundamental, it’s a fundamental misunderstanding.
CHAIRPERSON: I don’t think you should worry about that because this Committee is not swayed by that consideration.
ADV ARENDSE: I’m glad to hear that Mr Chairman.
Mr Cerqueira, did you give a statement to the police?
MR CERQUEIRA: Yes, I did.
ADV ARENDSE: But you were not called upon to testify in court, is that right?
MR CERQUEIRA: I wasn’t called no, I don’t know why.
ADV ARENDSE: Were you on the list of witnesses that they - I can perhaps understand why you were not called but were you on the list of witnesses at all, did they tell you you may be called?
MR CERQUEIRA: They said I may be called. On the 31st, the following day when I got to the restaurant there was a Mr Knight that was in the restaurant, a very arrogant person who I thought at the time I’m sorry to say, he asked somebody else to take the statement and that was it.
ADV ARENDSE: And your statement corresponds with what you’re saying today?
MR CERQUEIRA: Yes, I think so.
ADV ARENDSE: Mr Chairman, can I just ask Mr Prior if that statement - if it is available and if so, can it be made available to us?
MR PRIOR: Mr Chairman, it’s not available, I don’t have it, I’ve searched for it, it’s not in the docket, it’s on any document that was handed to me when I joined on the 1st of October - we’ve made enquiries about not only Mr Cerqueira’s statement but other statements that we just don’t have. What I can do is possibly investigate the matter further but I’ve searched diligently in this building for a statement and I haven’t found one.
ADV ARENDSE: Mr Cerqueira?
MR CERQUEIRA: Sir?
ADV ARENDSE: The Benny - the waiter by the name of Benny you’re referring to, that’s Mr Benjamin Browdie is it - or Brodie?
MR CERQUEIRA: That’s him yes.
ADV ARENDSE: I think he’s here is he or he’s been here.
MR CERQUEIRA: I’ve seen him today, yes I’ve seen him.
ADV ARENDSE: Now, would you say that on what you’re telling us here today that he would have seen exactly or that he must have seen exactly what you’re telling us you saw?
MR CERQUEIRA: I think so. Given the circumstances, he might not have seen all of it because we were all in fear when all this started happening but I think up until the point that we walked up to the door and the gentleman started firing at us and we ran in, I’m sure he remembers all that.
ADV ARENDSE: And one would have expected him to say that you were there - he was with you?
MR CERQUEIRA: Yes, I dragged him inside because he was actually - he was lucky to get away with it because the bullet hole was in his trousers, it didn’t manage to hit his leg.
ADV ARENDSE: I also heard you saying and you must correct me if I’m wrong, you were there until 10 to 12?
MR CERQUEIRA: I was there until about - no, no, I was there till way after, I was there till probably after the shooting and probably about 2 in the morning.
ADV ARENDSE: Okay. Now, in his evidence at court - where you at court when Mr Brodie gave evidence?
MR CERQUEIRA: No, Sir. Through all this what happened, I was not at all in court, I didn’t go to court, I didn’t want to go to court, I didn’t want to go and listen to witnesses and I wanted to forget the whole thing. Not at any stage did I go into court and sit and listen to proceedings or anything like that at any stage up until today, this is the first time that I’m facing people with regards to what’s happened.
ADV ARENDSE: Now in his evidence at court - the way it was summarised by the Judge, he never mentions your name at all.
MR CERQUEIRA: Sir?
ADV ARENDSE: I’m referring Mr Chairman, to pages 46 and 47 of the record.
MR CERQUEIRA: That I wouldn’t be able to tell you because I don’t know, I wasn’t there Sir - I don’t know why.
ADV ARENDSE: You weren’t at court or you weren’t at the restaurant at all?
MR CERQUEIRA: Why I wasn’t in court.
ADV ARENDSE: But you’re sure you were there.
MR CERQUEIRA: I’m 100% sure I was there.
ADV ARENDSE: And you are the person that picked up your brother after he was - immediately after he had been shot?
MR CERQUEIRA: I didn’t pick him up, I stayed with him while he was in the gutter.
ADV ARENDSE: Were you the first one to get to him?
MR CERQUEIRA: Yes.
ADV ARENDSE: And not Mr Brodie?
MR CERQUEIRA: No.
ADV ARENDSE: So when he said that - when he says and I want to read to you in Afrikaans - page 47 Mr Chairman, line 6 onwards
"He returned to the front door and saw him lying in the gutter, he went to sit with him and took his head in his arms, the body was still warm. Initially he did not realise that he himself had been wounded in the back of the leg. He was taken to hospital where this light wound was cleansed. He did not see the deceased Cerqueira briefly before the shooting incident"
Now, in that bit that I read, your name doesn’t feature at all.
MR CERQUEIRA: I don’t know, I was there and then Benny came and sat on the pavement and quite correctly put his hands on his face and he asked me: "Is he gone, is he gone"? - those are the words he used.
ADV ARENDSE: You never used those words when Mr Prior asked you to relate to us what happened that night?
MR CERQUEIRA: No.
ADV ARENDSE: Now, about the firearm - your brother did have a firearm, we know that.
MR CERQUEIRA: Yes, he did.
ADV ARENDSE: Was it your evidence that the police tested the firearm and the test established that he never used the firearm?
MR CERQUEIRA: The police asked me if the gun was fired - Mr Brodie had brought the gun to me after I was outside with my brother he brought the gun to me. There was a couple of policemen there ...[intervention]
INTERPRETER: Could the witness please repeat the answer.
CHAIRPERSON: Just talk a little loudly please.
MR CERQUEIRA: One of the policeman checked the gun and the gun hadn’t been fired and he said to the other guy: "The gun hasn’t been fired", all the bullets were in there according to the policeman - I didn’t check the gun myself.
ADV ARENDSE: Do you know where Mr Brodie got the gun from?
MR CERQUEIRA: No.
ADV ARENDSE: Is it possible that Mr Brodie could have picked up the gun on the pavement - on the side of the pavement where your brother was laying?
MR CERQUEIRA: It might have been possible but I don’t know.
ADV ARENDSE: It might then also be ...[intervention]
MR CERQUEIRA: When I got to the body - I got to my brother’s body first, my pouch that I gave to Mr Prior over there was laying next to him - that’s what was laying there, nothing else - I didn’t see no gun, nothing. Mr Brodie brought me the gun, it was a couple of minutes in fact five to ten minutes after I was outside with my brother.
ADV ARENDSE: Is it possible then that your brother may have had a gun as he went out?
MR CERQUEIRA: To my mind it’s impossible, I didn’t see the gun - I didn’t see any gun, I saw the pouch there and that’s it.
ADV ARENDSE: Unfortunately Mr Brodie - maybe he will come and tell us what happened to this gun because his evidence is simply that - on page 46 and 47 Mr Chairman
"The vehicle moved slowly in his direction"
That’s line 31 on page 46, that’s now presumably in the direction where you were standing.
"When there was being fired on him he realised that this was being done from the motor vehicle, he swung around to run back in and dived behind the bar counter. He called at Cerqueira to take the firearm held behind the bar counter in hand"
And then unfortunately he doesn’t tell us anything further about the weapon, whether he in fact saw it there or not.
"Then he realised"
This from the summary:
"Then he realised that Cerqueira was not in the restaurant"
And then he went outside to the front door and saw that your brother was laying ...[intervention]
MR CERQUEIRA: That’s correct. Like I said earlier on I dragged Mr Brodie in because basically he froze obviously from shock or being scared and he went over the counter, I went over the counter shouting for my brother and after going over the counter he went into the kitchen shouting for my brother, I was shouting for my brother - I was in fact looking for the gun because I was afraid that these people would come into our restaurant and shoot us as well. I couldn’t find my brother, asked the staff, the staff was in a panic, we came outside, I went there and my brother was laying there.
ADV ARENDSE: So when you looked for the gun you couldn’t find the gun?
MR CERQUEIRA: I couldn’t find the gun.
ADV ARENDSE: And you know that the gun was hid under the bar counter.
MR CERQUEIRA: He normally used to hide the gun - I wasn’t aware where he had it, he used to keep it for himself.
ADV ARENDSE: And you looked under the bar counter and you couldn’t didn’t find it?
MR CERQUEIRA: I didn’t look underneath the bar counter, I looked at normally on the table where he keeps other stuff and I looked at a box that sometime - what he does is or what he used to do, he moved the gun around because of staff and things like that and he would cover it with something, so I didn’t know where the gun was that’s why I was shouting for him to - I was basically shouting for him: "Jose, give me the gun or Joe, that’s what we used to call him - "just give me the gun, give me the gun".
ADV ARENDSE: Is there any reason that you can think of why the police asked to have a look at the gun and to test the gun?
MR CERQUEIRA: The police actually asked me if there was a gun, I said: "Yes, my brother’s got a gun", I went in looking for it and: "This is the gun" and the one policeman took the gun, checked it - there was quite a few, I think four or five at the time, one in civilian clothes took the gun, checked it and the guy said the gun hasn’t been fired.
ADV ARENDSE: And was that the gun that was brought to you or to the police by Brodie?
MR CERQUEIRA: It was brought to my by Brodie and then I gave it to the police.
ADV ARENDSE: Was it your evidence that you first heard something like a firecracker before you went outside?
MR CERQUEIRA: Yes, there was first two pop sounds - pop, pop, like that.
ADV ARENDSE: Yes.
MR CERQUEIRA: The first, and then Benny walked out and I walked behind him and I still remember - recall saying to him: "It sounds like crackers" and he said: "Yes", and we went out.
ADV ARENDSE: And just tell us again, what did you see?
MR CERQUEIRA: Well I heard - after those first two sounds, I heard more repetition, it sounded like somebody scraping an exhaust of a motorcar or something and when I came out, the car that I had seen going up was coming down ...[intervention]
ADV ARENDSE: So you - just stop there, so you had initially seen a car going up?
MR CERQUEIRA: Yes. I saw a car, the car slowed down at our door and go up and a couple of minutes after that, that’s when we heard the popping sounds and we went out.
ADV ARENDSE: Is it the same car that you saw again later on coming back against the one-way?
MR CERQUEIRA: Yes, it looked like the same car.
ADV ARENDSE: Looked like?
MR CERQUEIRA: Yes, it was a dark car and looked the same as the - and it was heavy laden, the car at the nose was quite - like this.
ADV ARENDSE: And by then you had already heard this crackling sound?
MR CERQUEIRA: Excuse me?
ADV ARENDSE: When you saw the car going up - which is the right way up Station Road towards Groote Schuur, the car was heavy laden and you had already heard the crackling sound?
MR CERQUEIRA: Not going up no, there was no sounds at all when the car was going up. The car was going up, nothing happened, they slowed down at our door, the car went up, after the car disappeared - you must regard a very small door, so we can’t really see all the way up to Heidelberg Tavern. The car went past our door and a couple of minutes after that, that’s when I heard the first two popping sounds.
ADV ARENDSE: Now just tell why again, why would you have seen this car - I mean there are many cars going up the one-way I would have thought.
MR CERQUEIRA: Because the car slowed down in front of our door and pulled off.
ADV ARENDSE: So it’s purely by chance that you saw this car?
MR CERQUEIRA: By chance when I was inside the restaurant - before I heard that popping sound.
ADV ARENDSE: So if it’s the same car that you saw, then we must assume then that that car turned around at some point? It first went up against the - with the one-way as it should and then must have come back.
MR CERQUEIRA: Well, I don’t know what the car did but it was definitely coming - when it was shooting at us, it was coming in the opposite direction, in other words against the one-way.
ADV ARENDSE: So it must have turned around then if it’s the same car that you saw?
MR CERQUEIRA: It must have turned.
ADV ARENDSE: Or aren’t you sure that it’s the same car that you saw?
MR CERQUEIRA: To me it was the same car, it seems like the same car to me - it was a dark car, it was the same heavy laden car - it seems like the same car to me.
CHAIRPERSON: Why do you say it was heavy laden, what do you mean by that?
MR CERQUEIRA: Well you know, when you load a boot of a car and the car sort of sags and the nose is kind of up in the air, I noticed that the car was - the front of the car was like slightly up in the air like this.
ADV ARENDSE: So the first time you saw the car there was - apart from the fact that it was heavy laden and appeared to be loaded if that’s what the word means, there was nothing particularly significant about you seeing the car?
MR CERQUEIRA: No, no, not at all.
ADV ARENDSE: So you went on with your business and then you heard - you’re saying you heard this crackling sound?
MR CERQUEIRA: Then we heard the popping sounds, first it was like pop, pop like that and then it got like somebody was scratching an exhaust system of the car.
ADV ARENDSE: You heard rapid fire?
MR CERQUEIRA: Or rapid fire.
ADV ARENDSE: Are you a gun enthusiast, do you own a gun?
MR CERQUEIRA: No not really, I keep one for my protection because of the nature of business that I’m in or in fact the nature of business I’ve been all my life.
ADV ARENDSE: The sound that you heard, would it sound like automatic gunfire?
MR CERQUEIRA: I’d say, I’d say.
ADV ARENDSE: And after you’d seen this car, how soon after that did you have to come - did you come out after you heard the popping sound? Was it minutes after that, seconds?
MR CERQUEIRA: At most a minute.
ADV ARENDSE: Okay. What did you then observe?
MR CERQUEIRA: When I came outside Benjamin Brodie was standing already outside and I followed him and another waiter Mike came and stood next to me and when I looked up like this the guys were shooting - both sides there were shots being fired, they were shooting still into sort of the direction of the Heidelberg, in other words the car was like ...[intervention]
ADV ARENDSE: Now this is - now as you come out of - is it Makados?
MR CERQUEIRA: Machados.
ADV ARENDSE: As you come out of Machados the tavern is like a few metres to your right, you’re talking about - is the shop three to four or five metres?
MR CERQUEIRA: No, there’s a ...[intervention]
CHAIRPERSON: If you look at the photograph you will see it, it’s quite a long way.
Machados is on the corner isn’t it?
MR CERQUEIRA: That’s correct, and there’s another shop between us and then the Heidelberg Tavern.
CHAIRPERSON: If you look at the photograph of the bundle at number 20 ...[indistinct] - the sign’s sticking out.
ADV ARENDSE: Thank you Mr Chairman, it sounds like you went to the Heidelberg.
Okay, so the Heidelberg - it’s not far from you?
MR CERQUEIRA: No, it’s not far.
ADV ARENDSE: It’s not far. Was it 10, 15, 20 metres?
MR CERQUEIRA: I don’t know, I can’t ...[intervention]
ADV ARENDSE: Did you see these gunmen when you now turned to your right?
MR CERQUEIRA: The guy sitting in the back I saw but it wasn’t - I can’t say it’s that person or that person or that person ...[intervention]
ADV ARENDSE: No, no, I understand.
MR CERQUEIRA: I know there was something on his head rolled down to here which I assumed was a balaclava at the time, that’s all I recall.
ADV ARENDSE: And where was the car then when you observed?
MR CERQUEIRA: It’s about where Mr Prior is standing - where Mr Prior’s sitting there.
ADV ARENDSE: Was it not standing right outside the Heidelberg?
MR CERQUEIRA: It was already starting to move, it was moving very slowly.
ADV ARENDSE: So the car was not right outside the Heidelberg when you saw the gunmen shoot?
MR CERQUEIRA: When they were shooting at me?
ADV ARENDSE: No, when they were shooting at the Heidelberg - when you came out ...[intervention]
MR CERQUEIRA: You see the Heidelberg sorry, is about from that corner to that corner, maybe a little bit longer and the car was still in the direction of the Heidelberg yes, because if it was any closer ...[intervention]
ADV ARENDSE: Now facing the wrong way?
MR CERQUEIRA: Sorry?
ADV ARENDSE: Now facing the wrong way?
MR CERQUEIRA: Facing the wrong way.
ADV ARENDSE: Yes, yes.
MR CERQUEIRA: Coming down.
ADV ARENDSE: Can you remember how many gunmen you saw?
MR CERQUEIRA: I remember the driver, it I can remember correctly he had glasses on, some sort of glasses on and I remember the guys sitting in the back and I remember a guy sticking - if you look at a motorcar going in this direction, if somebody would stick his head out of the window like this ...[inaudible] the guy with the gun, that’s what I remember - not the face.
ADV ARENDSE: Now, was that guy sticking his neck out of the window - the back window, was he shooting?
MR CERQUEIRA: Yes, he was shooting.
ADV ARENDSE: And was he shooting on that side - the car is now ...[intervention]
MR CERQUEIRA: He was shooting on the opposite side coming down ...[intervention]
ADV ARENDSE: Yes, was he now ...[intervention]
MR CERQUEIRA: He was the opposite side of the guy that was shooting to me - towards us like this. In fact when the car was coming down they were shooting straight at the Heidelberg Tavern and then when we appeared on the corner, the gun came towards us - they were then a lot closer to us, that’s when the shots were fired that came through our door and hit the wall and hit Benny.
ADV ARENDSE: But the guy whose neck was out of the window, that was behind the driver was it - on that side?
MR CERQUEIRA: On the opposite side.
ADV ARENDSE: And was he shooting at the opposite building?
MR CERQUEIRA: At the opposite building.
ADV ARENDSE: Does that explain or does that help - I’m not sure if it does, but does that help to explain the - I’m just referring to photograph number 23 and 24 of the bundle of photographs Mr Chairman, that that Dulux and those buildings opposite you and Heidelberg?
MR CERQUEIRA: Correct.
ADV ARENDSE: Would that explain some way the marks getting onto those buildings? The gunman who was sitting in the car at the back ...[intervention]
MR CERQUEIRA: Were there markings on the building?
ADV ARENDSE: Yes, you can see them there.
MR CERQUEIRA: Is this where they’re marked?
ADV ARENDSE: They’re gun marks.
MR CERQUEIRA: It would explain it yes.
JUDGE WILSON: ...[inaudible]
ADV ARENDSE: If you look at 19 - thank you Mr Chairman.
JUDGE WILSON: ...[inaudible]
INTERPRETER: The speaker’s mike is not activated.
JUDGE WILSON: 17, 18 and 19 show the building immediately opposite the Heidelberg had been shot at doesn’t it?
MR CERQUEIRA: Yes, it could explain it. Sorry, could I have some water please?
CHAIRPERSON: Are you going to be long with this witness?
ADV ARENDSE: I think I’ve quite a few more questions Mr Chairman, maybe it would be appropriate to - with your leave, to adjourn for the day.
CHAIRPERSON: Can you arrange for the witness to be here tomorrow?
MR PRIOR: Yes, Mr Chairman. Mr Chairman, may I indicate we’ve got several more witnesses. Is it possible - sorry, I don’t even want to make the suggestion but to utilise as much of the time tomorrow as possible?
CHAIRPERSON: We can start at 9 o’clock tomorrow morning.
MR PRIOR: Yes, Mr Chairman, if that’s convenient to ...[intervention]
ADV ARENDSE: It’s no problem.
CHAIRPERSON: Yes, this Committee will now adjourn until 9 o’clock tomorrow morning.
WITNESS EXCUSED
