amntrans AMNESTY HEARINGS CAPE TOWN https://sabctrc.saha.org.za/hearing.php?id=54664&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/capetown/capetown_6heidel.htm MR PRIOR May I call Mr Cerqueira? CHAIRPERSON Yes. MR PRIOR CHAIRPERSON MR PRIOR 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 MR PRIOR And how far from the corner of Station Road and Main Road? MR CERQUEIRA 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 Please continue. MR CERQUEIRA 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 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 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 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 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 MR PRIOR Sorry, just stop there. What type of firearm was it? MR CERQUEIRA 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 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 MR CERQUEIRA Not with any precision. MR PRIOR But were they small short weapons or were they long? MR CERQUEIRA 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 ADV ARENDSE 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 ADV ARENDSE But do you know ...[intervention] MR CERQUEIRA 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 ADV ARENDSE Okay. MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE Sorry. MR PRIOR ADV ARENDSE May I continue Mr Chairman? Would it be correct to say that what want is justice? MR CERQUEIRA 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 MR CERQUEIRA 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 MR CERQUEIRA Okay, would you explain to me then please? ADV ARENDSE MR CERQUEIRA Okay I understand, please carry on. ADV ARENDSE MR CERQUEIRA Could you please elaborate? CHAIRPERSON ADV ARENDSE MR CERQUEIRA 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 CHAIRPERSON ADV ARENDSE CHAIRPERSON ADV ARENDSE MR CERQUEIRA What is it about Sir? ADV ARENDSE MR CERQUEIRA ADV ARENDSE What do you mean by you believe in reconciliation? MR CERQUEIRA ADV ARENDSE MR CERQUEIRA No, Sir. ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE Yes? MR CERQUEIRA ADV ARENDSE MR CERQUEIRA 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 ADV ARENDSE Yes. MR CERQUEIRA 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 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 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 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 ADV ARENDSE 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 MR CERQUEIRA Okay. ADV ARENDSE MR CERQUEIRA ADV ARENDSE Yes. MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA 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 ADV ARENDSE No, no, can we finish? MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA 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 ADV ARENDSE Mr Chairman with due respect, this is of critical importance here to understand ...[intervention] CHAIRPERSON ADV ARENDSE JUDGE WILSON ADV ARENDSE CHAIRPERSON ADV ARENDSE CHAIRPERSON ...[inaudible] ADV ARENDSE CHAIRPERSON ADV ARENDSE CHAIRPERSON ADV ARENDSE 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 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 ADV ARENDSE 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 ADV ARENDSE Mr Cerqueira? MR CERQUEIRA Sir? ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE And one would have expected him to say that you were there - he was with you? MR CERQUEIRA ADV ARENDSE 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 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 MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE And you are the person that picked up your brother after he was - immediately after he had been shot? MR CERQUEIRA 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" MR CERQUEIRA 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 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 ADV ARENDSE It might then also be ...[intervention] MR CERQUEIRA ADV ARENDSE Is it possible then that your brother may have had a gun as he went out? MR CERQUEIRA 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" "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" "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 ADV ARENDSE MR CERQUEIRA ADV ARENDSE And you know that the gun was hid under the bar counter. MR CERQUEIRA ADV ARENDSE MR CERQUEIRA 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 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 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 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 MR CERQUEIRA By chance when I was inside the restaurant - before I heard that popping sound. ADV ARENDSE MR CERQUEIRA ADV ARENDSE MR CERQUEIRA It must have turned. ADV ARENDSE 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 MR CERQUEIRA No, no, not at all. ADV ARENDSE 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 ADV ARENDSE The sound that you heard, would it sound like automatic gunfire? MR CERQUEIRA ADV ARENDSE 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 MR CERQUEIRA CHAIRPERSON MR CERQUEIRA CHAIRPERSON ADV ARENDSE Thank you Mr Chairman, it sounds like you went to the Heidelberg. MR CERQUEIRA ADV ARENDSE MR CERQUEIRA ADV ARENDSE Did you see these gunmen when you now turned to your right? MR CERQUEIRA ADV ARENDSE No, no, I understand. MR CERQUEIRA ADV ARENDSE And where was the car then when you observed? MR CERQUEIRA 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 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 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 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 ADV ARENDSE 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 JUDGE WILSON 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 CHAIRPERSON Can you arrange for the witness to be here tomorrow? MR PRIOR CHAIRPERSON MR PRIOR ADV ARENDSE CHAIRPERSON WITNESS EXCUSED