Amnesty Hearings — Boksburg — 1999-02-23

AZHAR CACHALIA: Are you saying to this Committee, Mr Sithole, that a person, a lady by the name of Colleen Henchie, arrived there and told you to make an application, told you to tell a lie, but you didn't know that this person was ...(intervention)

CHAIRPERSON: I don't think he said she told him to tell a lie.  He said he told a lie but she didn't, I don't think his evidence said she told him.

MR LAX: Mr Cachalia what he's saying in essence, and it's not being one hundred percent translated, is that he didn't know this person, and he didn't know that that person was his lawyer.  Now that means he'd never met her before.  If you want to follow that aspect up and clear it up before you then put it to him, that's fine, but it's, I think you have to narrow the issues before you nail the witness down, if that's how you want to do it.

AZHAR CACHALIA: Thank you.  Having regard to the recent happenings in Nail, I don't wish to nail anybody down.  Be that as it may, my apologies sir.  Mr Sithole, what I'm saying, a lady arrived at you, at the prison, was it at your request or did she arrive there on her own?

MR SITHOLE: She arrived there on her own.

AZHAR CACHALIA: What was the purpose of her visit to you?

MR SITHOLE: She said to me that she was going to help me fill in this application form to send to the Commission.

AZHAR CACHALIA: And you had no problems with that particular approach.  Is that so?

MR SITHOLE: I had a problem because I did not know her.  I didn't know how she was related to me, whether she was my legal representative and how she was appointed.  I didn't know.

AZHAR CACHALIA: Did you make enquiries as to how she was appointed, who appointed her, why she had been there?  Did you make enquiries from her, sorry?

MR SITHOLE: No, I did not.

AZHAR CACHALIA: Now, not having known her, why did you then make an application in which you didn't make a full disclosure, when the amnesty, the Act requires you to make full disclosure and honest and truthful disclosure?

MR SITHOLE: It is because I did not trust her.  I did not trust that she was my lawyer or whatever motive she could have had.

AZHAR CACHALIA: If you did not trust her, why did you not tell her that you do not wish her to represent her and that you do not wish to make the application through her?

MR SITHOLE: It is because I was waiting for my appeal results, and I decided to say whatever I could say because I was waiting for my appeal anyway.

AZHAR CACHALIA: Mr Sithole, this will be the last question on this particular aspect.  What I am saying to you is that the lady arrives, says that she is there to assist you in making the application, you did not trust her.  Was the better option at that stage not to say, I do not wish to make the application with your assistance?

MR SITHOLE: I could not have told her at the time because I was waiting for the appeal.  I didn't know whether she was honest or not.  I had to know that.

AZHAR CACHALIA: Alright.  On the last paragraph of your affidavit on page 46, Mr Sithole, you say that you were later informed by your attorney of record, Anina van der Westhuizen
"...that my application could later be rectified or supplemented."
Is that correct?

MR SITHOLE: That is correct.

AZHAR CACHALIA: Why did she tell you that?

MR SITHOLE: She came to me and said that my application does not divulge the truth, and I said, yes I have the truth, I know the truth, and I indicated that I did not trust the legal counsel that was assisting me, and this one person said I should trust him or her, I should tell the truth.

AZHAR CACHALIA: Mr Sithole you say that Anina van der Westhuizen told you that what you had said was not the truth.  How did she know that?

MR SITHOLE: I don't know how she got to know that.

AZHAR CACHALIA: Okay we'll leave it at that particular point.  Mr Sithole you, when you were charged in Court, did you admit to having had an AK-47, and having used that in the incident on that particular night?

MR SITHOLE: No, I did not.

AZHAR CACHALIA: Now, when you made your first application for amnesty, you had informed the Amnesty Committee that
"...I feared for my life and grabbed my AK-47, which I had always had yet never used before."
On page 10 of the record, sir.  Is that correct?

MR SITHOLE: I do not understand when you say I always had this AK-47, I don't know anything about that.

CHAIRPERSON: Sorry Mr Sithole, what Mr Cachalia is saying is, you have just said that when you were in Court during your trial you did not admit to having had or used an AK-47.  Is that correct?  In your Court case.

MR SITHOLE: Yes, that's what I said.

CHAIRPERSON: Then all he's doing is he's referring to what you said in your first application.  This is the application that was filled in by this Ms Colleen Henchie, and she's reading from page 10 of the papers.  It appears in paragraph 9(a)(iv), and I'll read the exact words contained in your own application.  They read as follows
"...I feared for my life.  I grabbed my AK-47 which I had always had yet never used before.  I made for the direction of the river, as I knew that should I be able to cross I would be safe."
And then you carry on and tell the story.  Now, Mr Cachalia is saying, in Court you denied having had or used an AK-47, yet in your first application, which is also not, on your own admission, a truthful version, you admit to having had an AK-47, and then later you admit to using it, because later on in that same paragraph you say:
"...I feared for my life and then shot at them with my AK."
Now what Mr Cachalia is asking you, is why put that admission into your first application, if it's not the truth?

MR SITHOLE: It is because some of the contents are true, and some are not true.  Because I did not trust the legal counsel.

AZHAR CACHALIA: Mr Sithole, is it true what the Chairperson has just read for you now?  Is it true when you said
"...I feared for my life."

MR SITHOLE: Yes, it is true that I was fearing for my life.

AZHAR CACHALIA: Then you say
"...I grabbed my AK-47"
Is that true?

MR SITHOLE: That is not correct, that I took my, or grabbed my AK-47.

AZHAR CACHALIA: Then it says
"...which I always had, yet never used before"
Is that true or not?

MR SITHOLE: That is not correct.

AZHAR CACHALIA: Now I want to put to you, and the Chairperson has already put this question to you but I just want absolute clarity and then we'll leave it at that, what we are saying to you Mr Sithole is the following.  If you did not trust the person that was there, and you were intending not to disclose the truth, and if that was because of the other reason that there was an appeal pending, why did you then acknowledge a question of an AK-47 which is very fundamental to your guilt or innocence in the case?

MR SITHOLE: It is as I have stated that some parts of the evidence were true and some were false, reason being that I did not trust the legal counsel.

MR LAX: But I think what Mr Cachalia is getting at is, normally if you don't trust somebody and you don't want to tell the truth, you will say something to protect your innocence, rather than making an admission to admit something that you're guilty of, when in fact you're not guilty of.  Here you say to her, I had an AK-47, my own, very own AK-47 which I've always had.  Meanwhile, according to you, what you're saying now is that is a lie, you never had an AK-47.  The AK-47 that you got was from Magwaza.  So if you mistrusted her, this is what I think Mr Cachalia is saying to you, is if you mistrusted her why admit something that you're guilty of  when in fact you're not guilty of what you're admitting to?  You would rather play down your guilt than admitting to something, to being guilty of something which you are not.