Amnesty Hearings — Boksburg — 1999-02-24

AZHAR CACHALIA: And the judge found in that case that not only is there no evidence, I'm referring to page 217 sir, line 16
"...not only is there no evidence to support this submission, it is all inherently improbable for had the ANC possessed any firearms one would have expected some casualties amongst the IFP group and none were reported."

CHAIRPERSON: What do you say about that finding of the Court, which was arrived at after hearing extensive evidence on this, relating to this whole incident?

ELIAS MBATHA: Well I don't disagree with him there.

AZHAR CACHALIA: You don't disagree with the Judge well alright we'll leave it on that particular basis.  Mr Mbatha, I just want to be quite clear in my mind as to what happened.  I just to very short summarise your evidence.  You were in your shack and you went from there with your gun to Mr Magwaza's place.

ELIAS MBATHA: Yes.

AZHAR CACHALIA: And from Mr Magwaza's place you proceeded to the sports field?

ELIAS MBATHA: Yes.

AZHAR CACHALIA: The shooting took place there and after the shooting, after you had pursued them, you came back to Mr Magwaza's shop?

ELIAS MBATHA: Yes.

AZHAR CACHALIA: And from Mr Magwaza's shop you went back to the sport field?

ELIAS MBATHA: Yes.

AZHAR CACHALIA: That's when the police arrived and you ran away?

ELIAS MBATHA: The police arrived after I finding out that there were killings there.

AZHAR CACHALIA: Yes no I, I don't dispute that but I'm saying but after the police arrived you ran away is that right?  Is that correct?

ELIAS MBATHA: Yes.

AZHAR CACHALIA: Your reason for going back to the sports field was that it was not safe for you to be in your own homes and you had to group yourselves in case you were attacked by members of the ANC.  Is that the reason you gave to us?

ELIAS MBATHA: Yes, that's true.

AZHAR CACHALIA: And in fact before the police arrived no members of the ANC came back to attack you?

ELIAS MBATHA: No, they did not arrive.

AZHAR CACHALIA: I just want to finally put to you that, Mr Magwaza, sorry Mr Mbatha, I want to put to you that in fact shooting was commenced by members of the IFP group and then there was the reaction of the stone throwing towards the group that was stoning them, that was shooting at them.  And there was no necessity to defend yourselves because there was no attack on you.

ELIAS MBATHA: I refute that.  I know ANC started first.

MR LAX: Sorry Mr Cachalia.

CHAIRPERSON: Sorry Mr Lax, Mr Claassen.

MR CLAASSEN: Sorry, I just, I think Mr Lax we might have the same question.  I believe Mr Cachalia put it to them that they shot in retaliation to stone throwing.

CHAIRPERSON: What my, correct me if I'm wrong Mr Cachalia, my understand was that it was put to the applicant that the IFP started the shooting and that in response to the shooting there was some stoning by the ANC, but the ANC did not attack the IFP.  Is that correct?

AZHAR CACHALIA: That is correct sir.

CHAIRPERSON: That there was in response to the shooting some stoning by, from the ANC.

AZHAR CACHALIA: As the Chairperson pleases.

CHAIRPERSON: I think he's put his version.  He doesn't have to.

AZHAR CACHALIA: I just needed to put the version, sir, that's all.  I have no further questions.
NO FURTHER QUESTIONS BY MR CACHALIA

CHAIRPERSON: Thank you Mr Cachalia.  Do you have any questions?

MS LOCKHAT: No questions Chair.
NO QUESTIONS BY MS LOCKHAT

CHAIRPERSON: Do you have any re-examination Mr Draht.

MR DRAHT: No re-examination.
NO RE-EXAMINATION BY M R DRAHT

CHAIRPERSON: Advocate Sigodi do you have any questions to ask?

ADV SIGODI: No questions Chairperson.

CHAIRPERSON: Mr Lax?  Well then I'll ask one in the meantime.  Mr Mbatha, how many shots did you, would you say that you yourself personally fired?

ELIAS MBATHA: I shot several times.

CHAIRPERSON: Can you give an indication?  You said you had six rounds in your pockets when you left, and you don't know how many rounds were in the actual firearm itself.  Did you  have to load the firearm, did you have to resort to those six bullets that were in your pocket?

ELIAS MBATHA: Yes.

CHAIRPERSON: When that firearm is full with rounds, how many does it take?

ELIAS MBATHA: I think about seven or eight if my memory serve me right.

CHAIRPERSON: Did you use all the six rounds that were in your pocket?

ELIAS MBATHA: I used the other six and the other six remained.

CHAIRPERSON: So you shot at least six shots?

ELIAS MBATHA: I think it was six or more than six, because I shot several times.

CHAIRPERSON: And each time you shot did you point the firearm towards the ANC group before you fired?  You aimed towards them and fired?

ELIAS MBATHA: Yes.

CHAIRPERSON: Yes, thank you Mr Lax.

MR LAX: Thank you Chairperson, Mr Mbatha, I just wanted to understand what happened when you got to Magwaza's shop.  Were other people grouping there?

ELIAS MBATHA: I would like for you to explain Mr Chair, you mean before or after the fight?

MR LAX: You left from your shack, before the fight, took your firearm and you went to Magwaza's place.  Maybe let's start this.  Why did you go to Magwaza's place?

ELIAS MBATHA: Because I'd already heard that the IFP is down there at Magwaza's.

MR LAX: What position did Magwaza hold?

ELIAS MBATHA: He was the chairperson.

MR LAX: So was his shop a rallying place for everybody?

ELIAS MBATHA: They will go, people will go there, even those who like to drink liquor they will go there, and those who like to do some shopping or buy something they will go there.

MR LAX: But at a time like this when there's a time of potential crisis would people gather at his place?

ELIAS MBATHA: No, the store was closed by then.

MR LAX: Okay, so you just heard that people were gathering there and you went there?

ELIAS MBATHA: Yes.

MR LAX: What happened there?  Were there discussions?  Did you speak to anyone else there?

ELIAS MBATHA: When I got there I found the IFP group gathered, and they were asking one another as to what was happening, and they noted that the ANC is attacking, and there were no answers as such, because the ANC was approaching.

MR LAX: Was anyone in charge?

ELIAS MBATHA: Sithole and Magwaza as well were those, those were the in charge ones.

MR LAX: Well what were they saying that gave you the impression they were in charge?

ELIAS MBATHA: I will not be able to explain any sense, because I was seeing the ANC approaching and I was gearing towards this ANC approaching.

MR LAX: You see, the impression I get from listening to the evidence so far is that you all responded at the same time.  As if some instruction was given.  And in fact one of your colleagues said that an order was given for everybody to lie down.  So everyone did lie down when the shooting started.

ELIAS MBATHA: Yes, that word was uttered, I heard that also.

MR LAX: Well then how is it that you all got up at the same time and then proceeded to open fire?  Surely somebody must have given and order about doing that, or said something, that you all responded at the same time?

ELIAS MBATHA: I did not hear well from my side.  I used my discretion that now it's time for me to fire.

MR LAX: And everybody else just used the same discretion at the same time?

ELIAS MBATHA: Well they shot as well.

MR LAX: And you all ran after them at the same time.  Is that not correct?

ELIAS MBATHA: You see when we ran after them, as soon as they shot at us we shot back at them and they fled, and we ran after them.

MR LAX: The point I'm trying to make is that you all pursued them at the same time.  So somebody must have said something like after them, or chase them, or look they're running away follow them, or something like that, that you all suddenly started chasing.