Amnesty Hearings — Boksburg — 1999-02-25

AZHAR CACHALIA: May I then start ...(indistinct).  Chairperson, I want to say that, at the outset, that I would be naive to believe that you have not dealt with this Act very extensively, and that ...(intervention)

CHAIRPERSON: We've actually lived with it for a long time now.

AZHAR CACHALIA: What I'm saying is that if in the process I am mentioning matters which you are quite aware of, please stop me.  It's my first application that I'm opposing.  Be that as it may, sir, as I understand it, and I may be skating on thin ice in this regard, as, the section that I read which requires that the offence to be commit, to which the application is an act associated with a political objective in terms of Section 20 of the Act, then goes on to extensively define what an act associated with a political objective means.
	And I want to make the submission, Chairperson, that it is quite clear from all the applicants, to the extent that the, to the extent that Mr Ndlovu for example, said that there is no explanation, there is no objective that we wished to attain in this particular matter, we can't explain it, that is the end of his evidence.  And I think that is the gist of the matter.  What we are saying is that if it was covertly or overtly or even covertly an objective of the ANC to overwhelm, sorry, of the IFP to overwhelm the ANC by killing off its members then one could understand, even if it was covert.  If it was an, there is in my very humble submission sir, no facts before this particular Committee which can be said to be, which can be said to be, the act was being associated with a political objective.  At best for the applicants, para sub paragraph 2(a) might be apt of application and perhaps paragraph 2(d) could be of application, but I am saying that the evidence of the applicants themselves negates the possibility that any particular ...(intervention)

CHAIRPERSON: You see I think on this one, you get the situation, this acts done in the furtherance of a political party or liberation movement, etc., etc.  Not every act omission or offence committed has to be done in the furtherance of the objective of a political body in order to qualify.  For instance, many cases, like the matter we heard previously, although we haven't made any finding on it because we didn't actually, we only heard the sort of finished matter on it.  But if you get a situation where you've got a political funeral let's say.  There's somebody being buried.  And trouble flares up at the funeral between another political party.   Now one can't say there that whoever committed an act or an offence at that funeral was acting in the furtherance of the objectives of his political movement.  It was a political situation, and I think that's covered by section 23, 20 subsection 3(b).
	Now one might say, well, the gathering of the two sides at the sports field that night, even if it happened, just happened, that the two sides got together, that was an event as anticipated in section 20 3(b), and then trouble starts, etc.  So it doesn't necessarily have to be in furtherance, like we're going to blow up this railway bridge to further our objectives in stopping the military communications of the other side.  That sort of thing.  It doesn't have to be that.

MR LAX: Just to quote you the precise words.  You have it in front of you?

AZHAR CACHALIA: In fact underlined Mr Lax.  I was going to deal with that next, and I was saying that if we take a strict approach to this Mr Chairperson, paragraph, subparagraph (b) of paragraph 3 of section 20, then I am saying that it was not in the course of or as part of a political uprising, disturbance or event.  There wasn't a political uprising, there wasn't a political disturbance, there wasn't a political event, or in reaction thereto, but that would be a very strict application of the particular Act, sir.

CHAIRPERSON: And one doesn't, I think the interpretation of the Act, it's been fairly liberal from the start.  But also one must bear in mind that those points up to (g) whatever it is in subsection 20.3, they're just criteria that we have to look at.

AZHAR CACHALIA: Thank you, I ...(intervention

CHAIRPERSON: They don't all have to be filled etc.  It's sort of guidelines.

MR LAX: And we may actually take account of a more general understanding of political.  This just some guidelines for us.  I mean, can I ask you this, are the objective seriously saying this wasn't in the broadest sense of the word some sort of a political occurrence, in the sense that you had a predominantly ANC supporting group of residents, and a predominantly IFP supporting group of residents, facing one another.  I put it no stronger than that at this stage.  But they're faced off against one another.  Even on Mr Dastile's evidence that's apparent, is it not?

AZHAR CACHALIA: Absolutely clear Mr Lax.  I haven't the slightest hesitation in acknowledging that there was this two political groups, that faced one another.  I am saying to you that, I'm making the humble submission, and I say that, commenced with saying that I might be on thin ice on this one, but I'm saying that I started the submission notwithstanding the kind of what we have read generally about what the Amnesty Committee's attitude in this matter has been that one must take a strict interpretation.  But I leave it at that.  I don't wish to take it any further and I'm saying that that is on the basis that I have made.
	What I am saying in addition, sir is, I think the issues that I intended raising about full disclosure has been, to a very large extent, discussed in this particular matter, already in the submissions to the application, and the discussion that took place with the Committee in this regard.  In my view, and my humble submission, there is quite clearly not full disclosure.  The question that I raise is the following.  We have members of the legal fraternity, and I associate myself with the Committees' views in this particular matter, that no aspersions are being cast either on Mr Claassen, Colleen Henchie, or Anina van der Merwe, who are referred to in these particular proceedings, but I am saying that it is inconceivable that they did not deliberately mislead the Committee.  They misled the Court, they admit that particular, it is a matter that we can understand and take it further from there. ...(intervention)

CHAIRPERSON: That's very common in these sort of hearings that the applicants come and they admit frankly to lying in Court, to avoid conviction.

AZHAR CACHALIA: What I am saying is that Mr Magwaza's matter, which we dealt with first, actually the TRC the Amnesty Committee should have, because the first two applicants, sorry Mr the applicants, I just referred to them, not Mr Sithole, but the other two ...(intervention)

CHAIRPERSON: Ndlovu and Mbatha.

AZHAR CACHALIA: The other two applicants in fact, when they submitted their original applications, had, as was stated in the letter to Mr Magwaza, denied guilt, and therefore at that stage already there should have been a decision.  The question is that the decision wasn't taken and the Committee is now seized with the particular application, and having been seized with the particular application that we are now, I am saying, let's assume for the purposes of argument that this Committee makes a decision that the applicants are not granted the amnesty.  Are they entitled to make a fourth set of affidavits?  Where does it end?  And I'm saying that at the particular stage when they completed the application forms in May of 1997 when they denied guilt and when they lied, that in itself is a non-disclosure material, which should in itself bind the Committee in refusing the application.  Because I am saying that if we accept that they are entitled to make ...(intervention)