Amnesty Hearings — Boksburg — 1999-02-25

CHAIRPERSON: Mr Cachalia it's fairly common for people to supplement.  Sometimes the form, Section 19 of the Act specifically provides for it, and sometimes the form is just not, there's not enough space to put what you want to say, or the person who filled it in didn't really know what he was doing, etc.  So it's common for it to be supplemented.
	However, if a persons ...(inaudible) I deny that I did it, and then comes and say, well, I did it, then we've got a situation where one's got to take a look at the credibility of the applicant, which we've been discussing with Mr Claassen and Mr Draht in this regard.  You're going a little bit further.  We'll have to think about what you submit, saying that that in itself is such a material non-disclosure that it's fatal, to their application.

AZHAR CACHALIA: What I am saying in addition sir, is that it is a non-disclosure that is fatal to the application because it is not envisaged in terms of the objectives or the Promotion of National Unit and Reconciliation, the Act itself, it is not anticipated that people will be given an opportunity ad infinitum and I am saying that in fact what they said is, we were there but we deny guilt, we were defending ourselves  from an attack by the ANC.  And let's assume for the purpose that the ANC were in fact attacking, then they're not admitting guilt for which they want an amnesty, they should in fact be therefore that particular basis should have been denied originally having not been denied originally in terms of Section 19, having come here, they are now saying that we want to put a third particular position to you, and I'm saying that that fatal commission by them should be construed as sufficient to deny them.  I just make that for whatever it is.
	Insofar as the probabilities are concerned, just very simply sketch and I don't intend to go into the details of the inconsistencies ...(intervention)

CHAIRPERSON: Just, sorry, before you get onto that, on the probabilities with regard to your client's evidence, do you think it would be correct for us to find that not one person in that group of 400, 200, whatever, was armed?  Merely because somebody said, leave your arms behind, you know, we don't want to cause trouble.  So 400 people dutifully lay down their arms and go with nothing at all, when in fact the crowd were in fact asked, please you stay behind and let the leaders just go and they say, no, we're coming.  We're coming.  We want to see that you discuss this matter.  I'm not necessarily talking about firearms here, but I'm talking about kerries and sticks and spears and machetes and axes, whatever, you know.

MR LAX: They went one step further.  They said, we want to make sure nothing happens to you.  How would they do that without arms?

AZHAR CACHALIA: Chairperson, I must say that I was taken aback substantially when my witness said that he had guns, because it's clearly contrary to my instructions.  Fortunately, fortunately it was clarified when Advocate Sigodi brought that particular matter on.  But to, I would readily concede, and that is what I am saying, I would readily concede that there would be people there with the kind of arms that we're talking about.  The knopkierries and the sticks and whatever ...(intervention)

CHAIRPERSON: But I think that was what the Court found as well.  He said that, basically the Court found that the two groups were armed.  The one had heavy fire power, the other one didn't.  Hence the smaller group with the heavy fire power caused all the casualties.  But the Court didn't find there weren't any sticks or kerries or spears on the other side.

AZHAR CACHALIA: I would readily concede that that's the probability.  What I am saying is that the relevance of those arms are not that important and if there were people, the suggestion is that we shot back in defence, when they shot we shot back.  Now, and the gun fire, the fire came from that end, and there was not a question of one shot only, there was a question of a number of shots, and what I am saying is that the improbability of that version, the Court found, and I'm saying that that's what we should find also, the improbability that there was gunfire from the ANC side on that particular day.  And I'm saying that, I had put it, I had put it to the witnesses, the applicant, one of the applicants' witnesses and they conceded that what, that was a correct approach by the Judge in the High Court.

CHAIRPERSON: But, you know, let's just suppose.  There's no firearms at all in the ANC side.  You've got a large group, let's just go on the figures, 400 that was what was said in the Court, based on one of the ANC members own estimations, Mr Dieko I think, 400.  And a smaller group, let's say 100 of the IFP, facing each other.  The ANC people are armed, no firearms but they've got sticks and spear and machetes and stuff.  IFP have got firearms.  Now, the one groups advancing to the other, or they're both advancing towards each other.  One would in any circumstance, expect that the people with the firearms would shoot.  Wouldn't you?  You know, so, it's not necessarily the gunshots that triggered off the IFP shooting, the gunshots that they say they heard, that triggered it off.  I mean they would have shot in any event.  Otherwise why have a gun?  Why wait until it's hand to hand combat, before you shoot?  You're shooting because you've got your gun, not because you hear another gunshot, because you've got two armies facing each other.

AZHAR CACHALIA: Quite clearly that is the position, and I'm saying that when the applicants say that, we only responded to gunfire, I'm saying that that is an improbability because they had come armed to be ready to shoot and they didn't need to wait.  But the more important thing is a peripheral matter.  The, Mr Sithole's sitting on the rooftop, the Mr Sithole shooting from the rooftop in a kneeling position, and the Mr Sithole shooting from behind the shack through this particular window, and the Mr Sithole falling to the ground and shooting from the ground.  I am saying that there is in fact no reason for Mr Dastile, or for one of the other applicants to say where Sithole shot from different from him.  I am saying that Mr Sithole in that matter clearly has not made full disclosure as to where he was in the matter.  If you believe his co-applicant or if you believe Mr Dastile, and I say that Mr Dastile is a credible witness, then one cannot believe Mr Sithole and if he's cannot believe what he is saying on that particular position, just on one issue, I, we could go on ad infinitum discussing the probabilities.
	But Chairperson the issue that I also want to raise is the issue of what Mr Draht had brought about the Skosana shebeen.  I think it needs to be clarified, notwithstanding what the judgment has said.  The evidence that is clear before us is that here were two groups confronting one another, there was a shooting, running away up the hill is not running away towards Skosana's shebeen, which is in a completely different direction.  And irrespective of what it says here the evidence before you and I think it is much more clearer and we don't know what was the evidence before the Court when that particular sentence was written, but it is capable of more than one interpretation.  I'm not saying that it is wrong but in what context it was said and in what kind of evidence is not what we.  
	What I am saying is quite clearly the person that was killed at Skosana's shebeen, the man with the briefcase, cannot by any stretch of imagination be said to be one of the persons that was fleeing or was part of the group who was running away and they were pursuing these people.

CHAIRPERSON: I think from the evidence before us it would be wrong for us to find that, because first of all he came out of the shebeen, which means he must have been in it.  He had a briefcase, and he was a stranger.  He was unknown.