Amnesty Hearings — Boksburg — 1999-02-25

INTERPRETER: The speaker's mike.

AZHAR CACHALIA: I think that particular matter just to, to round off that particular matter, Advocate Sigodi had asked how they identified what member he was and so on, it was dealt with in some detail.
	I think that insofar as Mr Mbatha's case was concerned.  Sorry.  Not only Mr Mbatha's case, the cases of the other parties, I have put it on more than one occasion and I have not been given an answer, when they say that they attempted to avoid the conflict and ran away towards the river, those that said so, inevitably all came back and formed part of the group that were found guilty.  When it was put to them that they had other options and alternatives available, not one has given a satisfactory answer.  What I am saying is that they have not been honest to the Committee in making the allegation ...(intervention)

CHAIRPERSON: If there was this overwhelming, if they had an overwhelming desire to flee, they could have run away.

AZHAR CACHALIA: That's precisely what I'm saying.  If the applicants had come here and said that, you know, we sat down, which are the probabilities, we sat down and we thought that this ANC is becoming too prescriptive and deciding all things and they don't want this Committee to act, and we decided we're going to teach them a lesson, we have a meeting with them, we're going to today put them in their place, arm yourselves and we'll confront them in a violent manner.  Which is probably what in fact happened.  That they had come prepared and it is quite clear from everything that we have heard here that they've, they have armed themselves, they have borne arms, they prepared themselves on that particular day, they came to the ground, they were armed, and they shot at the people and killed the ANC people and injured them.  It was a preconceived idea and the probabilities are that they made that particular decision.
	And if they were honest to this Committee and they came with that particular approach that this is what we have decided, and we carried out, and we regret what we did, it was wrong to do, having regard to sir I am saying that I would have had no case to oppose their application.  They in fact even today are trying to mislead and pull the wool over the eyes of the Committee in regard to what happened and they have not, they have not complied with the position of full and honest disclosures.  I am saying the probabilities are very clear, I don't need to go into the details of he discrepancies and the probability, I'm saying that this is, sorry my apologies. Thank you sir.  
	I am saying finally that in relation to the accused, sorry the applicants, the questions put at the end of both the evidence of the last two applicants by both, by Advocate Sigodi and Mr Lax, in fact brought out the improbabilities of their case and I don't wish to just repeat it you are have it on record, I am saying that in fact the improbabilities are so severe that there is in fact no full disclosure.  What I am saying ...(intervention)

ADV SIGODI: Mr Cachalia, sorry.  Just on that point, if you are saying that the IFP had preconceived this idea that they are going to attack, or if they were to say that, you know that would be backed by what Mr Dastile said, that they had heard them having a meeting saying that they were going to get rid of the Xhosas, Pondos and Batas, but then the problem that I'm having with that is that you never put it to any of the applicants, that there was this prior meeting where the IFP was shouting slogans and saying that they're going to get rid of the Xhosas.  That's the problem that I'm having because you never put it to the applicants.

AZHAR CACHALIA: What I am saying, Advocate, is that, and I was pleased to hear that Mr Claassen elevated you to the bench, but be that as it may, what I am saying Advocate Sigodi is that that particular meeting was not considered to be sufficiently important by the late Mr Dastile, the chairperson, he says they normally do that.  It is not something that we need to concern ourselves with.  So I'm not relying on that.
	What I am relying on, what I'm saying is not that particular meeting was the, I am saying that if, it was for them to say, without me putting it to them, to say that at the particular meeting in the morning or five days previously or when we bought the guns, at some point in time, we, and the probabilities are that that is in fact the position, that some point in time, because they started buying guns, at some point in time they had decided that they must at best for the ANC teach them a lesson, at worst for them, kill them off to make an absolute state, but I'm saying that's the kind of thing that one would have anticipated that they would come with here and say, you know, we sat down, because everything in the evidence indicates that they had prepared themselves to come and shoot as the Chairperson has said.  They would not have armed themselves if they did not intend to use it.  They came there, they intended to use it, but they have never said when they used the arms, for Mr ...(intervention)

MR LAX: Mr Cachalia, sorry.  You're saying the same thing over and over again.  The point that Advocate Sigodi is putting to you, and it's a point I made to you at the end of your first bit of cross-examination.  This is a material probability that you're putting to us in argument.  You didn't put it to a single witness.  That's what she's saying to you, and I alerted you to this problem that if you don't put a version you're going to have problems later.  I don't know what problems you may or may not have had in how you conducted your case, that's none of my business, all I'm saying is we're now left with a story where a material probability you're seeking to rely on, which you're asking us to draw a conclusion about, or an inference at best, was not put to the applicants.  How can we then draw such an inference other than on a purely speculative basis?

AZHAR CACHALIA: The material probability that I am relying on is not dependent on the singing of slogans and chanting the ...(indistinct) that's the first point.  The second point that I am making is it is not encumbent on the victims and the opposition to the applicants who represent them to put to them, it is for them to say that we had made the decision.  It's not for me to say we are going to say, and then they think that that's a good idea and say yes.  It's not for me to make a case for them.

ADV SIGODI: The thing is, if you had put it to them, they would have been given an opportunity either to admit or deny that allegation.  Now they have not been given that opportunity so we cannot use that material probability, or we are in a difficult position to back that up.

CHAIRPERSON: But this question of who, who was the attacker, who, does that have any impact on whether or not the acts were done in furtherance of a political objective?  Let's just suppose, just for purposes of argument, no other reason, that the ANC group were the aggressors, the attackers, and you ended up with the same result.  Would it make any difference to whether or not there was a political objective?  Could we then say, no, there wasn't a political objective, or yes, there was a political objective because they were defending an attack.  If it is found that the IFP were in fact the aggressors and started the shooting, can we then say, no, it wasn't a political objective?  Does it make, is it relevant to political objective or is it only relevant to full disclosure?