Amnesty Hearings — Boksburg — 1999-02-25

CHAIRPERSON: Chairperson I must admit that it is a double-edged sword when I say that there was no political objective, and if I make the argument that the probabilities are what I've just argued, then it cannot then be said that there was no political objective.  I concede that readily.  But I must respectfully say, Chairperson, that I, the submission that I make, that having regard to the fact of the evidence that we have, having regard to the fact, it is not my function sitting here to make a case for the applicant.

CHAIRPERSON: Certainly not.

AZHAR CACHALIA: And Chair, if I put a probability to them which I was going to argue to you might give them the opening which they have not put to the, it's not for me to make the case and I'm not saying because I did not put the probability to them that you as the Committee cannot find that, I am saying that irrespective of whether I was here or not here, if you only heard the applicants and that was the end of the story, if no probability of the nature that I'm arguing now was put to them you would quite be entitled to say that in all probability there was a conscious decision by a political organisation to further its objective by killing the other side or by injuring them or creating the violent situation.
	I am saying the probability exists irrespective of whether I put it.  My putting it or not putting it and I could see it readily that Mr Lax had alerted me to that particular matter at the end of Mr Sithole's evidence, and I had not put it, and I had consciously not put it, it is not my, and I'm saying it is not my duty, it is not my duty to make an opening for, sir in cross-examination I don't put a question where I'm going to get an answer which is probably antagonistic to my case, it's not my duty, and I'm saying that ethically I am entitled to do that, and if I have done that I am saying that it cannot impinge or adversely affect your decision.  It was not for me to put and that's all that I wish to say in that particular regard.
	I am saying that, I am saying finally, Chair, that, Chairperson that I believe that a roman two of paragraph 3 talks about where offence committed by any person referred to cannot be given amnesty when it's out of personal malice ill will or spite, is the other probability in the matter, that it was, if it was not a political objective, it was ill will or spite.  Both cannot subsist contiguously, if I'm saying that if you find that the probability is that they ...(intervention)

CHAIRPERSON: I think you know it's a lot easier to find ill will or spite in respect to the acts of an individual than in respect of the acts of a group of a hundred people.  You know for a hundred people to act out of ill will or spite, one person quite easily, because there's normally a relationship and the person's doing it to, for personal reasons, but when you have a group, can a group act out spite or ill will?  I suppose so, but normally, you know, if it's a political group and they decide to do something, then it's a political thing, really than just straight personal spite or malice.

MR LAX: Wouldn't a concession, that this matter was a stand off between two predominantly political groupings, cancel that issue completely?  There was nothing personal here.  It wasn't as if this was in response to a lover's tiff between the two different leaders for example, where, for example, or a family problem.  Let's assume there were families involved and a husband was mistreating a wife, and they came from different political groupings which were associated with different families, and now the two families brought along their henchmen.  There's no suggestion that there's any of that kind of thing inherent here.

CHAIRPERSON: And in any event on Sithole's own evidence, he didn't want this to happen.  I mean, he only became a party at the last minute, and I think that's also on Mr Dastile's evidence.  Sithole was going, it was just immediately prior that he was given that, up until then his intention was to peacefully settle it, and I think we can accept that.  I don't think you can argue against that.  So, you know, for him suddenly to act out of ill will was very difficult to find.

AZHAR CACHALIA: The other side of the coin, Chairperson, if I might again humbly say sir.  Sithole is a person who want to sort out this particular issue.  He goes there, I say the probabilities of Magwaza not knowing he could use a firearm which he used on animals 25 years ago is a different matter, but gives him the AK-47, the probability but I'm saying that ...(intervention)

CHAIRPERSON: I think that's because he's the induna, maybe.

AZHAR CACHALIA: Magwaza couldn't make a conclusion that all indunas know how to use an AK-47, be that as it may sir, what I'm saying is that he is a person on our evidence who is trying to make peace and who has always been known to make peace, and he says, I will make peace and that is what he goes there for, and an AK-47 is thrust to him, let's believe that is what happens.  What political objective is he now going to raise?  Was there ...(intervention)

CHAIRPERSON: But he's now acting under an order.

AZHAR CACHALIA: Excepting that I put the question about whether he gives orders to the mem, chairman or the chairman gives orders to him.  I'm not aware of ...(intervention)

CHAIRPERSON: But I think we can assure you we'll find that the leader of the party can order his underlings.  I mean he was the chairman and Sithole was the induna, and Sithole said that Magwaza was above him in the hierarchy.  He, and Sithole did say he gives orders and takes orders.  But he gives orders, he's the second in charge there.  But we're not going to find that Magwaza could not give Sithole an order.

MR LAX: But let me just add one thing, and this is a matter  of common knowledge.  We've heard it in countless other applications.  Induna fulfil a different function, which is a cultural function, which is not strictly speaking a political IFP function.  It's more a Zulu traditional function.  Particularly there is induna weSiswe who are charged with the job of bringing together amabuto.  It's a very different function.  That he may have been, held some other portfolio as well, is a different thing.  That's why I specifically asked him that question.

AZHAR CACHALIA: I remember you asking the question and I asked a question what amabuto meant and so on because I still don't understand, but I will concede that you know, your experience might be correct in the matter, but I put the question to Mr Sithole whether he took and order, but be that as he may whether he took an order or not, a firearm is put into, what if he wanted to settle, was it not simply ill will or malice that made him act in the manner thereof?  Did he not ...(intervention)

CHAIRPERSON: How can you say that Mr Cachalia?  He goes there, on his own evidence, which is accepted, I'm going there to cause peace, and he said he was upset when Magwaza, he said Magwaza wouldn't listen to him.  Magwaza thrusts a thing and says, the time is for action, I'm the boss, forget talking it's action, here's a gun, go use it.  Now, he's either, if he doesn't use it, it's treason, he's acting, he's committing an act of treason in his little community.  He faithfully follows the order.  Now how can one say he's acting out of spite?  We've got no evidence that he said, well, oh I'm so glad that now I'm relieved from my peace mission I can go and kill people instead.  We can't find that.  It's a question of Mr Sithole's mind.

AZHAR CACHALIA: I've no doubt that that is the position, what I am saying is that, and Chairperson you're putting a different perspective to it by saying that he's obliged to, I was going to suggest that he was not going, obliged to accept the order, but you have made the point and I will leave it.