Amnesty Hearings — Boksburg — 1999-02-25

CHAIRPERSON: No look, not obliged in the legal sense to accept the order.  I mean, he wasn't in the army or anything like that, but just in his little political pool there he followed an order.  He wouldn't have been acting illegally if he, he acted illegally by following it.
MACHINE SWITCHED OFF

AZHAR CACHALIA: I'm making the submission, that finally the credibility of this witnesses is so adversely affected they cannot be believed.
	The second submission that I am making is that there has not been full disclosure, and notwithstanding the reservations in this matter I am submitting that the Committee is entitled to find what the probabilities of what had happened in that matter irrespective as to whether the applicants were given an opportunity, and finally I am saying that when they made their first application they had misled the Amnesty Committee, there is no reason why you could now find that on their third attempt they are telling the truth, and I am saying that for that particular reason the amnesty applications by all the applicants should be refused as it should have been done originally in my submission when they were made in May of 1997 and earlier.

CHAIRPERSON: Thank you Mr Cachalia.  Ms Lockhat, do you have any submissions?

MS LOCKHAT: Chairperson it's my submission that the amnesty applications of Alfred Ndlovu, John Sithole, Elias Mbatha and Mr Mpongosi be refused amnesty on the basis that they failed to make full disclosure to the Commission.
	The fact that they submitted amnesty applications in 97 and failed to give full account of their actions and their involvement in the incident, from the fact that, taken from Mr Sithole's evidence, the fact that he said that the AK-47 was his, and then later in the evidence he said that Mr Magwaza had handed it down to him and was due to their leave, application for leave to appeal to the High Court, it seems improbably that this was indeed the position and that he's lying today still.  Or today he's telling the truth and previously he was lying.  And that he also covered up for Magwaza, and that on that basis the fact that at the High Court he said he denied committing the offence, and then making the submission that he had the firearm, and that it was his, actually was prejudicial as well to his High Court application and his leave to appeal. 
	And then I can go on further to Ndlovu's application where he doesn't give full disclosure from the outset, Chairperson.  The fact that he failed to include the Skosana's shebeen incident in his first application, was a huge mistake on his part, and he made that at his own peril, and the consequences of that is also not full disclosure.
	The same would go for Elias Mbatha and Mpongosi.  The only statement they made was that they were acting in self-defence and not accounting that they both had firearms, and that they actually went out on that specific day and shot, and that is real material, a material omission on their part, to take the Commission into their confidence.
	And on that basis Chairperson, it is my submission that these amnesty applications should be dismissed and refused amnesty.

MR CACHALIA IN FURTHER ARGUMENT: May I just interject, I have left out one particular point before the applicants' attorneys are given an opportunity to respond I thought it was appropriate.  Just a last submission that I had intended making.  On the assumption that they had made full disclosure, on the assumption that they were entitled to amnesty on that particular basis, that there was a political objective that had to be attained, I am saying that the other matter which the Committee needs to concern, to concern itself is with the seriousness of the offence in relation to the incident that was ...(intervention)

CHAIRPERSON: Proportionality aspect.

AZHAR CACHALIA: ...(inaudible)

CHAIRPERSON: Yes.

AZHAR CACHALIA: I hadn't made it in my submission is that clearly even if they succeed on all other matters in the question of you know using the AK-47 and handguns and the fact of the matter was how many got killed and how many got injured on the one side, and the proportionality was a matter that you need to consider.

ADV SIGODI: But on that aspect of proportionality what do you say about the numbers of people involved in this?  Wouldn't you think that it would be reasonable for people to arm themselves with firearms if there are about 200 people coming to attack, if it is on the applicants' version.  Would you really expect people not to use their firearms if they've got them, and if there are about 200 people attacking?

AZHAR CACHALIA: Advocate, my attitude to that particular approach is a very simple on and I will think that you will find that the A, the IFP was about half the group of the ANC because there is quite a discrepancy between 400 and 20 people. ...(intervention)

CHAIRPERSON: Sorry to interject but, I think the only possibility, and I'm not saying that proportionality applies,  but probably the only possibility that it may apply would be in respect of once the ANC group started to run and there was firing, and you're shooting at fleeing people, then maybe the question of proportionality comes.  But I think I agree with Advocate Sigodi that, you know, if you've got a firearm and there's a huge group of people coming towards you, you know with sticks and machetes, etc., and you start shooting them and just because they haven't got firearms and you kill some of them, they don't kill any of you, probably stretching proportionality a bit far.  But maybe once the retreat was on and then you still carry on shooting and massacring people, then.

AZHAR CACHALIA: Thank you Chair, I think the second point that you make is quite a valid one and I was going to deal with it but thanks for dealing with that.  But I'm saying in the first particular position is there is no evidence of this menacing advanced group.  There were two confronting on another.  There was ...(intervention)

CHAIRPERSON: It's just numbers.  But you've made your point. I think we'll look at it.

AZHAR CACHALIA: Just please.  I'm saying that if they, they're saying they didn't shoot because of this huge menacing group  advancing on them, they shot because they heard a shot on the other said, which I say is I say the probabilities are against that, but I have made my point thank you.

CHAIRPERSON: Mr Claassen any reply?

MR CLAASSEN: No, I've got nothing thank you Mr Chair.
NO REPLY BY MR CLAASSEN

CHAIRPERSON: Mr Draht?

MR DRAHT: No reply Chairperson.
NO REPLY BY MR DRAHT