---------------------------------------------------------------------------CHAIRPERSON:   Morning everybody. We’re continuing with the so-called Zevenfontein hearing. At the end of yesterday’s proceedings, Mr Dastile had just completed his evidence-in-chief, and now for cross-examination or questioning by Mr Claassen. Mr Claassen do you have any questions to ask the witness? Mr Dastile before we proceed I just remind you that you’re still under your former oath.

SINDISILE WILFORD DASTILE: (s.u.o.)

CROSS-EXAMINATION BY MR CLAASSEN:   Thank you Mr Chair, I do have some questions.

Mr Dastile, just to start out, there’s something I would like you to clarify, I think it was a question that was asked yesterday. Your late brother, was he also known as Justin?

MR DASTILE:   His surname was Dastile, but people referred to him as Justin because maybe they had a problem pronouncing Dastile.

MR CLAASSEN:   Mr Dastile you testified yesterday that upon your return from your holiday in February 1994 there had already been a problem concerning the removal or the moving of some of the people in Zevenfontein. Could you just briefly explain, I’m just not quite sure, at that stage, was there a civic organisation or a community forum as such, that represented the community in large?

MR DASTILE:   We had our leaders who were representatives of the community acting as a civic.

MR CLAASSEN:   This was not the ANC, nor was it the IFP, it was a predominantly apolitical organisation purely for the benefit of the Zevenfontein community?

MR DASTILE:   There were members of the ANC, but they went under the name civic, which was not partisan.

CHAIRPERSON:   Sorry Mr Dastile, just, I’d just like to know about this other committee. So there was a committee known as the civic?

MR DASTILE:   Yes, that is correct.

CHAIRPERSON:   And on that committee you say there were the leaders of the community, the local community?

MR DASTILE:   That is correct.

CHAIRPERSON:   Did that include people such as Mr Magwaza, for instance? He was a leader of the IFP portion, was he on that committee?

MR DASTILE:   No.

CHAIRPERSON:   Was it an elected committee? Did the people in the community vote for the people who sat on that committee, that civic committee?

MR DASTILE:   Yes, it was elected by the community.

CHAIRPERSON:   So it wasn’t ANC or IFP? It was just a civic committee?

MR DASTILE:   Yes.

CHAIRPERSON:   Thank you.

MR CLAASSEN:   Thank you Mr Chairman. Mr Dastile, Mr Sithole, was he also part of this civic committee?

MR DASTILE:   No, he was not part of it.

CHAIRPERSON:   This committee, was it a type of a Sanco, was it affiliated to Sanco?

MR DASTILE:   It was not under Sanco, it was a committee to which we referred as a civic because it did not have to be partisan, but then it did not have an umbrella.

MR CLAASSEN:   Thank you Mr Chair? Mr Dastile, just on that specific point, you said it had not to be partisan. Would you describe this organisation as totally apolitical?

MR DASTILE:   No, they were not partisan. They were just concerned about the welfare of the community.

MR CLAASSEN:   And this would include the welfare of say, IFP elements within the community as well?

MR DASTILE:   Everybody who was resident in that area.

MR CLAASSEN:   Mr Dastile, when this problem arose with the moving of some of the houses, which community liaised with the TPA in Randburg. Was it this organisation, this civic that you’ve just referred to?

MR DASTILE:   Would you please explain what problem you are talking about.

CHAIRPERSON:   I think what Mr Claassen is getting at, correct me if I’m wrong Mr Claassen, is, we’ve heard evidence that there were some shacks that were in a dangerous situation. They were under the wires, or they were too close to the river, and there was then dealings with the Randburg Municipality or Randburg authorities, which ultimately resulted in new land being designated for the relocation of those dangerous shacks, if I could call them that, to be replaced elsewhere.

Now, the negotiations that took place between the Zevenfontein community and those Randburg authorities relating to that new piece of land, was, the question asked by Mr Claassen, was that, were those negotiations carried out by this civic that, this non-partisan civic association or organisation?

MR DASTILE:   Yes, it was this committee that negotiated with the TPA.

MR CLAASSEN:   Mr Dastile were you yourself a member of this committee?

MR DASTILE:   No.

MR CLAASSEN:   And if a decision had, for instance, been taken by this committee, the community would abide by such decision?

MR DASTILE:   They did not take decisions on their own without consulting with the community.

MR CLAASSEN:   Thank you Mr Dastile. Mr Dastile in your evidence yesterday you said that this, it was said that some people had to be moved, that was during December and I think you said you went on holiday, and you returned on the 10th of February. Is that correct?

CHAIRPERSON:   I think he said after his return, on the 10th of February. I don’t think it’s really important the exact date he returned, but they went away for, some people went away for the Christmas period, then came back.

MR CLAASSEN:  Thank you Mr Chair. I’ll leave it at that. Mr Dastile, you also testified yesterday that on the 10th of February, specifically on that date, and I think your words was that "...we were allocating land to people."  Was this land that was now designated by the TPA?

MR DASTILE:   It is just further up, that designated area. This was a continuation of the development.

MR CLAASSEN:   Was this, was this approved by the TPA?

MR DASTILE:   Yes.

MR CLAASSEN:   Mr Dastile, what exactly was your role in this allocation? You said, and I think specifically to a question of the Chairman, you went further and said that, they asked you who the we were that you were speaking about, and you said leaders of the ANC. Could you just explain that please.

INTERPRETER:   May the speaker please repeat the question.

MR CLAASSEN:   Mr Dastile you said yesterday, "...We were allocating land to people." And you also went on to say the, we was the leaders of the ANC.

MR DASTILE:   That is correct.

MR CLAASSEN:   Mr Dastile could you just explain what authority did the leaders of the ANC have to allocate land to specific people?

MR DASTILE:   We already had the powers to do that.

MR CLAASSEN:   Who vested, who vested that power in you?

MR DASTILE:   I’d like to go back a bit. In the beginning when one person put up say three shacks in an area, there were three families occupying those shacks. And later on there were a growth in number in these families. So that the TPA came and demolished two of the shacks, saying that it was an illegal occupation of land. After the demolishing of these shacks, we as leaders of the ANC took it upon ourselves to negotiate with TPA seeing that the civic was casting them to the side, not assisting in any way, considering that they had suffered a loss of property when these shacks were demolished. That is when we were able, as a committee of the ANC, to say to the TPA that there are many other people who are in danger, they had to be removed from that area. That is when we started having this authority to develop the area further. Thank you.

MR CLAASSEN:   Mr Dastile so you wanted the previous forum, the civic, disbanded?

CHAIRPERSON:   When you say you, you’re talking about the ANC.

MR CLAASSEN:   The ANC that is correct.

CHAIRPERSON:   In Zevenfontein.

MR CLAASSEN:   That is correct.

MR LAX:   It is not probably more accurate to say they usurped that committee’s functions?

MR CLAASSEN:   I will rest it at that, thank you Mr Lax.

CHAIRPERSON:   Well what do you say to that Mr Dastile? Did the ANC leadership in Zevenfontein take over the functions of the civic, usurp the functions of the civic committee?

MR DASTILE:   Chairperson, when the shacks were demolished and the civic did not react, we took it upon ourselves to try and assist this people and negotiate with the TPA.

ADV SIGODI:   Just to clarify something. The members of the civic committee, were they mostly members of the ANC, or were they mixed with the other political groups, in the civic committee?

MR DASTILE:   They were members of the ANC.

ADV SIGODI:   All of them?

MR DASTILE:   Yes. Those were part of the civic, they were members of the ANC, because there were two committees. There’s one other committee that was one other committee that was called a parents’ committee, which was assisting. This committee, one other member was Binkie Moloi and Danisile.

ADV SIGODI:   Who were the members of the civic committee, can you remember that?

MR DASTILE:   Dan Sindani, Binkie Moloi, she was in that civic, and Simon Skosana, and he was part of the parents’ committee, working hand in hand with the civic. And one other person whose surname I have forgotten, his name is Michael.

ADV SIGODI:   And were any of these members of the civic committee also members of the ANC committee, or was, did the ANC committee consist of different people?

MR DASTILE:   That committee had different people. Those were just ordinary members from the ANC.

CHAIRPERSON:   Thanks, Mr Claassen.

MR CLAASSEN:   Thank you Mr Chair. Mr Dastile, you said that you now took over, usurped the function of the civic. Did you now serve expressly the interests of ANC members?

MR DASTILE:   No.

MR CLAASSEN:   Could you explain then, you testified yesterday that a lady, if I understood your testimony correctly, which was initially ANC came to you while you were allocating this land, and there a problem arose there, and your brother requested her to go to Mr Sithole and Zwane with the instruction that they give her land. Could you just explain that please?

MR LAX:   Sorry, the evidence wasn’t that at all Mr Claassen. His evidence was that this woman should go to Zwane and Sithole to ensure that they were satisfied that she could live there, and if that was so they would allocate her a site. That was how it was expressed.

MR CLAASSEN:   Pardon me Mr Lax, if I could just put the question then.

Mr Dastile, could you just explain quickly why did your brother send this woman, or why was she not accommodated initially by you?

MR DASTILE:   I would just like to rectify the point that she came to me. She went to my brother who was chairperson, and that’s where she was referred to Zwane and Sithole, the reason being that it was an agreement. There was an existing agreement between the IFP and ANC that anything that involved an IFP or ANC member had to be known to the leaders of the two parties. Thank you.

MR CLAASSEN:   Mr Dastile these people that you’ve now referred to, that you helped now reallocate land to, were they predominantly ANC?

MR DASTILE:   Not so much that they were members of the ANC.

MR CLAASSEN:   Mr Dastile I put it to you that at that stage there was already a known animosity between the ANC and the IFP regarding this allocation of land, and the fact that this, that the ANC decided to usurp the function of the civic organisation.

MR DASTILE:   No, that’s news to me.

MR CLAASSEN:   Was there no ill feeling whatsoever at that stage?

MR DASTILE:   No, there was no animosity at that point in time.

MR CLAASSEN:   Mr Dastile why did you then find it necessary to, yourself and your deceased brother, according to your testimony it was decided during that day that there should be a meeting discussing some problems.

MR DASTILE:   It is because this female went to Sithole and said something that was not correct, so that Sithole had to come and enquire himself. That is why the meeting was necessary.

MR CLAASSEN:   Yes Mr Dastile, but why? You say she said something that was not correct. What was supposed to be discussed at this meeting? What was this meeting for?

MR DASTILE:   I had indicated to you that it was said to the female that she should go to Sithole and Zwane so that she could later be allocated land. And she said Dastile said the IFP’s not wanted in the area, because it was an ANC area, and this had to be rectified. That is why there had to be a meeting.

MR CLAASSEN:   And when was this meeting supposed to happen?

MR DASTILE:   We held the meeting on a Thursday, around six.

MR CLAASSEN:   And this is where this particular problem was addressed?

MR DASTILE:   That is correct. That is where we even agreed that we were going to meet on Saturday to finalise this, the conclusion or the resolution of the problem.

MR CLAASSEN:   The agenda for this Saturday meeting that you’re referring to, what did that consist of?

MR DASTILE:   The agenda of the Saturday meeting was that we would have to make a decision as to how we were going to, jointly with Inkatha, address the allocation of land.

MR CLAASSEN:   Mr Dastile, and this meeting was also supposed to address the problem regarding the civic organisation and the representation at that stage within the ANC?

MR DASTILE:   Yes, we could have discussed that as well, but at this point in time this is the only thing that we discussed.

MR CLAASSEN:   But there seemed to be a bit of a problem concerning the representation?

MR DASTILE:   The one problem that we had at the time is the one problem that I had already pointed out, that. The problem was that there were people whose shacks had been demolished and they could not be represented.

MR CLAASSEN:   Thank you Mr Chair. Mr Dastile, I’d just like to continue to that, particular the next day, the Friday, and the incident regarding the tearing down of ANC election posters. The perception from your point of Mr Sithole within the community as an induna, was he a person of seniority?

MR DASTILE:   He is the one who knows how far his position went, but we knew him as a person in charge of the IFP in case there was a problem.

MR CLAASSEN:   So negotiations would always include Mr Sithole as far as you were concerned?

MR DASTILE:   Most of the time.

MR CLAASSEN:   And Mr Dastile, up to that stage, was Mr Sithole known as a person that peacefully tried to resolve the problems that had occurred?

MR DASTILE:   Very much so.

MR CLAASSEN:   Mr Dastile and if I’m not mistaken, with specific regard to that incident with the posters, Mr Sithole also stepped in and assured you that he would resolve the problem and take care of it?

MR DASTILE:   Yes, he did mention that.

MR CLAASSEN:   Did you, did you see this first hand?

MR DASTILE:   No, I did not see him when he solved the problem. He discussed it with me and promised that he was going to address it.

MR CLAASSEN:   Mr Dastile, just going to the Saturday of this particular incident. You testified that you were at your house about ten o’clock and you heard Zulu political songs on the soccer field. Have you got any idea as to why this was happening?

MR DASTILE:   This was common, themselves as members or members of a political party, they would chant their song wherever they came from wherever.

MR CLAASSEN:   Did you pay any heed to what was going on there?

MR DASTILE:   I started noticing this when they started uttering words when they arrived at the sports field.

MR CLAASSEN:   Mr Dastile, and those words were, I believe yesterday it was interpreted, that was with reference to certain members within the community, they weren’t welcome or they were going to be chased out?

MR DASTILE:   Yes, exactly.

MR CLAASSEN:   Could you just, what exactly was said?

MR DASTILE:   They were saying, Umkhoza Imbata and Impondo should leave Zevenfontein because that was an IFP area.

CHAIRPERSON:   Sorry, and is it correct Mr Dastile, by the reference to the Xhosa, the Bata and the Pondo, it wasn’t, they were alluding to ANC, or was it an ethnic thing?

MR DASTILE:   I am quite certain that they directed this towards the ANC because they were discussing or mentioning this known that these people belongs to the ANC.

MR CLAASSEN:   Mr Dastile could you perhaps indicate why this happened, in view of the fact that there had not been any obvious previous animosity between the two parties.

MR DASTILE:   I think it is also a surprise to me to this day. I still want to know what reason there was for this to happen. I thought I would come across the reason here, at the Truth and Reconciliation Commission.

MR CLAASSEN:   Mr Dastile, upon hearing this, you testified that you went to your brother and indicated that they were going to beat you up. Did you, you did not, I presume the, perceive this as a hollow threat?

MR DASTILE:   I do not quite understand.

MR CLAASSEN:   Did you take these people serious?

MR DASTILE:   Yes, in the manner in which they were talking I took them seriously because it was for the first time I heard them talking that way.

MR CLAASSEN:   You testified you went to your brother and told him what had happened. What was his response to this?

MR DASTILE:   He said, "...These people will never do that, they are used to saying such things, but they will never do that."

MR CLAASSEN:   Mr Dastile you also further testified, if I understood you correctly, that you did not go back to your own shack but you hanged around with your brother.

MR DASTILE:   Yes, I hanged around at that time, right up to the end of their meeting.

MR CLAASSEN:   What meeting is that that you refer to now?

MR DASTILE:   I’m talking about the Inkatha meeting, the one that was at their office.

MR CLAASSEN:   When was the end of this meeting?

MR DASTILE:   It would have been around twelve, to half past twelve, because they had left the sports field by one o’clock.

MR CLAASSEN:   And what did you do then?

MR DASTILE:   That is when I saw an opportunity to go back home to prepare lunch.

MR CLAASSEN:   Mr Dastile and you said about three o’clock Sister and Bonisana came to your house and reported this alleged incident at Moloesi’s shebeen to you.

MR DASTILE:   That is correct.

MR CLAASSEN:   Mr Dastile could you indicate why would they go to you?

MR DASTILE:   It is because I was one of their leaders, and they knew that I was available to assist them.

MR CLAASSEN:   Mr Dastile was your brother involved in this, in the resolving of this incident?

MR DASTILE:   Yes.

MR CLAASSEN:   When, when did you inform him, and what did he do?

MR DASTILE:   He had already been informed. I did not inform him myself. I’m saying he was with me when we went to resolve the problem.

MR CLAASSEN:   Mr Dastile, you also testified yesterday you saw people going down the street, Maxwell April, William and Caswell. You all went to Moloesi’s shebeen. Why did all these people go down to Moloesi’s?

MR DASTILE:   They went there as leaders to monitor the situation at Moloesi’s place. He wanted to have the problem solved.

MR CLAASSEN:   Did you perceive what had happened as a political incident?

MR DASTILE:   No, that is not how we perceived it.

MR CLAASSEN:   Then why, Mr Dastile, did all the people who you’ve indicated were all leading figures within the ANC, go to monitor the situation?

MR DASTILE:   It is because we were leaders of these people. These people had come to us on experiencing a problem, and it therefore was our responsibility. There was this problem about the IFP, and we had an agreement, an existing agreement, to solve whatever problems that may have cropped up between the IFP and the ANC.

MR CLAASSEN:   Mr Dastile, upon arriving at Moloesi’s shebeen, you said that, on the report that Sister gave you, that Mr Mpongosi and Sithole had already left and you found a lot of people there. Is that correct?

MR DASTILE:   That is correct.

MR CLAASSEN:   What was the mood like there? What were these people doing?

MR DASTILE:   It was tense. People were very angry. It was a lot of noise.

MR CLAASSEN:   If you say it was tense and they were very angry, with whom were they angry?

MR DASTILE:   These people who had witnessed the incident, these are the residents of the area.

MR LAX:   No the question was with who were they angry? We know that they had witnessed something, but who were they angry with?

MR DASTILE:   They were angry at Sithole and Mpongosi, the ones who are responsible for the incident at Moloesi’s place.

MR CLAASSEN:   Mr Dastile, weren’t they angry towards the IFP, or perceived this as a violation from the side of the IFP?

MR DASTILE:   They were noisy because of what Sithole and Mpongosi did, not the IFP.

MR CLAASSEN:   Mr Dastile, and at that stage did you have any fear that any incident might occur, or any reprisal might take place?

MR DASTILE:   You mean an action or a reaction by these people?

MR CLAASSEN:   That is correct.

MR DASTILE:   Yes. Yes we saw a possibility of such a thing happening.

MR CLAASSEN:   What do you mean when you say, such a thing.

CHAIRPERSON:   The reprisal.

MR CLAASSEN:   Thank you Mr Chair.

CHAIRPERSON:   Possibility of a reprisal or a reaction to, these people reacting to the problem.

MR CLAASSEN:   Thank you Mr Chair. Mr Dastile, you said you found a lot of people milling around there. How many people would you estimate were at Moloesi’s at that stage?

MR DASTILE:   I did not count them.

CHAIRPERSON:   Was it five, three, 50, 100?

MR DASTILE:   It was a group that could have been far much more than ten.

MR LAX:   That’s why we’re asking you to give us an estimate.

CHAIRPERSON:   Were there 100, or?

MR DASTILE:   No, there were far much less than 100. They could have been, maybe ten if not more than ten.

CHAIRPERSON:   Ten to 20 people?

MR DASTILE:   No, they could not be 20. It was quite a smaller group. Smaller than 20.

MR CLAASSEN:   Mr Dastile, and you also went on to say, "... people heard and were coming." Is that correct?

MR DASTILE:   Yes, we received information that Mpongosi and others were coming to shoot.

MR CLAASSEN:   I don’t think I understood you correctly. If I understood your evidence correctly you meant that more people heard about the incident and were coming to, to join the people at the shebeen.

MR DASTILE:   I did not get you quite well now. I don’t know whether that’s how I put it.

MR CLAASSEN:   Mr Chair if I may.

CHAIRPERSON:   If think what, sorry. I think what Mr Claassen is saying to you, is when you were giving your evidence-in-chief, you mentioned that while you were there at the shebeen people came in, they came from around and they gathered gradually, people who had heard about the incident. They came to see what was happening, and that crowd that was in the shebeen, the less than 20 crowd, more and more people with time came.

MR DASTILE:   Yes, yes, that is correct.

MR CLAASSEN:   Thank you Mr Chair. Mr Dastile and this group that you just explained grew considerably?

MR DASTILE:   These were residents. I therefore cannot mention names.

MR LAX:   You’re not being asked to mention names. Listen carefully to the questions. Just listen very carefully. He’s saying the group got bigger by quite a lot, considerably. You can either say yes, or no. No-one’s asking you tell all their names.

MR DASTILE:   Yes, the group grew. Yes, the group grew as people were coming to join it.

MR CLAASSEN:   Thank you Mr Chair. Mr Dastile, and you then testified that you went to firstly Mr Magwaza’s house and he was not at home, and you then decided to go to Mr Sithole’s house. Was this this whole group that you’re referring to?

MR DASTILE:   No, it was not a group, only leaders, the leaders. There were seven of us.

MR CLAASSEN:   Mr Dastile, just to get to another point now. At that stage was the meeting still arranged for that afternoon?

MR DASTILE:   We had not yet met to discuss the meeting, but everybody knew there had to be a meeting in the evening.

CHAIRPERSON:   Sorry, before you just get onto the next phase Mr Claassen, just while we’re still dealing with this shebeen episode. Was there a problem at that shebeen, Moloesi’s shebeen on the Friday, but a week before. On Friday the 4th of February?

MR DASTILE:   No, there was no problem before the 4th.

CHAIRPERSON:   This problem took place, according to what you say, on the Saturday morning, the 12th. Mr Mpongosi when he gave evidence said that there was no problem on the 12th at that shebeen, but there was in fact a dispute at the shebeen on Friday a week before, the 4th, on Friday the 4th of February. What do you say to that?

MR DASTILE:   That is not correct. He is wrong. That is not the truth. We experienced this problem on the 12th, it was on a Saturday.

CHAIRPERSON:   Mr Claassen.

MR CLAASSEN:   Thank you Mr Chair. May we just, on this point again, Mr Dastile, was it never before, or hasn’t it happened before, that Mr Moloesi refused to serve a certain person, and because of that there had been a problem? I realised that the question is vague, I just, with specific reference to Mr Mbatha. That he had been refused previously by Mr Moloesi and the problem arose because of this.

MR DASTILE:   Before Mpongosi arrived on the 12th?

CHAIRPERSON:   Mr Claassen is trying to ask you this. He’s saying before the 12th of February, had there been problems with other people at that shebeen? And he’s referring to a person called Mbatha.

MR DASTILE:   Not before the 12th. I’ve never heard of any problem before the 12th.

MR LAX:   No problem whatsoever at that shebeen?

MR DASTILE:   No, there was no problem. The IFP and the ANC were mixing and drinking together at the shebeen. There was no such a problem.

MR LAX:   So no problem had been brought to your attention as an ANC committee member?

MR DASTILE:   No we did not receive any such a problem.

MR CLAASSEN:   Thank you Mr Lax, if I may just, rephrase the, out of the judgment, page 103, Mr Dastile, I would just like to put this to you, that Mr Moloesi testified during the trial that on that previous day, or if I might just quote this, he testified that:

CHAIRPERSON:   What page is that Mr Claassen?

MR CLAASSEN:   Mr Chair that’s on page 103 of the bundle, it’s right the top paragraph there.

MR LAX:   And just so you know who accused number two is, that’s Mpongosi.

MR DASTILE:   That is correct.

MR LAX:   So do you understand what’s being put to you?

MR DASTILE:   Yes, I understand quite well.

MR LAX:   That’s what Moloesi said at the time.

MR DASTILE:   If that is the case, that means he did not report it before, because I was hearing that for the first time.

MR CLAASSEN:   Thank you Mr Chairperson, pardon me, I’ll leave it at that. Mr Dastile, then, quickly again on, you said that you went to Mr Sithole’s house, and you met Sithole, Zwane, Mpongosi plus two boys, that came towards you. And your brother then spoke to him and said that this problem had to be resolved, there was going to be, he made mention of the general state of violence that occurred in the country at that stage, and he said that, "...we should stop it because if this happens it will never stop." Is that correct?

MR DASTILE:   That is correct.

MR CLAASSEN:   Where were this, you made mention of this group of people from the tavern. Where were they at that stage?

MR DASTILE:   At this very same moment as we were talking to Sithole these people went down towards the ANC office.

MR CLAASSEN:   Mr Dastile, there’s just on further thing. You said that you discussed this problem with Mr Sithole and urged him to go and relay, discuss it with the IFP and your brother said that he would discuss it with the ANC. What, what was decided there and then, in that little mini meeting that you had, if I might call it that? What was resolved and what was decided will happen from then on?

MR DASTILE:   The decision that came up was that we said, Sithole said actually to Dastile, that Dastile should go and discuss this with the ANC and he, Sithole, would go and discuss this with the IFP people, to try and stop or resolve this problem. And after consulting with the respective groups we would come and meet at the grounds, and discuss this. We would all meet at the grounds.

MR CLAASSEN:   That was decided then?

MR DASTILE:   Yes, on that very same spot.

MR CLAASSEN:   Right Mr Dastile you said you went back to the ANC offices. What did you find when you got there?

MR DASTILE:   We went there to the ANC people and we found people waiting outside the office. And we reported to them that we met with Sithole and discussed and agreed that he should go and discuss this with the IFP people, and this will never happen again. And they should relax because we were going to meet Sithole again on leaving the office, to make sure that this is resolved.

MR CLAASSEN:   Mr Dastile you made mention of the fact that the people should relax. What was the mood at that stage?

MR DASTILE:   Yes, people were still not sure. They were not really relaxed, because it was for the first time that we left Sithole after we had met the people were angered by this incident.

MR CLAASSEN:   Mr Dastile, were they very upset and angry?

MR DASTILE:   I did mention earlier on, people were very noisy at the time.

MR CLAASSEN:   I’ll leave it at that. Mr Dastile you went further, just to get back, when the people gathered at the shebeen did you notice of any of them were armed at that stage?

MR DASTILE:    Yes, there were armed people.

MR CLAASSEN:   With what sort of weaponry were they armed?

MR DASTILE:   Some were armed with sticks, knopkierries, spears and firearms.

MR CLAASSEN:   Mr Dastile, just so you’re not confused, I’m talking about the people that gathered, and I presume they are predominantly ANC supporters, is that the people you’re now referring to, that came to the shebeen when they heard about the incident?

MR DASTILE:   As I have indicated, people who received these news came on their own armed with whatever was available at their disposal.

MR CLAASSEN:   Thank you Mr Chair. And Mr Dastile, you now talk about a stage where you were at the ANC offices. Were mostly the same crowd there still armed with the same weaponry?

MR DASTILE:   Yes, they came still armed with the very same assortment of weapons.

MR CLAASSEN:   Mr Dastile, getting back to your evidence yesterday. You said that they seemed to be upset and they also said when your brother tried to calm them down, they said that these are not empty threats, and I think your specific words were it was at that stage that your brother said to them that Sithole would not let this happen.

MR DASTILE:   Yes, he did say that. We went to report to the people at the office after having met Sithole.

MR CLAASSEN:   Mr Dastile, and you also went on to say that at that stage ...(intervention)

CHAIRPERSON:   You don’t have to repeat his whole evidence Mr Claassen. We’ve heard it.

MR CLAASSEN:   Thank you. I don’t want to be tedious. I’ll leave it at that. Mr Dastile, you went back to the field and you said that you were at that stage joined by this crowd of people. Is this still the same armed bunch of people that you had just told us about?

MR DASTILE:   Wait sir, I think you will create a confusion. At the time when we left the office for the grounds, people with whom we were at the offices, did say it is okay even if you are going, we are not remaining behind, we are coming along with you because we want to satisfy ourselves that you are indeed discussing this with these people.

MR CLAASSEN:   And this mob halted at Brown’s place and your brother went on, on his, ahead on his own. Mr Dastile getting to the point where you said that the ANC approached from the side of this, I believe it was a huge dustbin, at the rubbish bin, and you said that the people were walking swiftly and you heard a gunshot. Is that correct?

MR CACHALIA:   Chair I think, just excuse me Chair.

CHAIRPERSON:   Mr Cachalia? Sorry, sorry Mr Dastile, Mr Cachalia wants to say something.

MR CACHALIA:   I think Mr Claassen is not correct when he says the ANC people appeared from the side of the dustbin. He was referring to the IFP.

MR CLAASSEN:   Alright, I’m sorry Mr Cachalia, that’s indeed what I wanted to say, that the IFP people came up, as I understand it, from the side of the dustbin.

CHAIRPERSON:   Thank you Mr Cachalia.

MR CLAASSEN:   Thank you Mr Chair, just to here, and my, if my notes is correct I think you said the people were walking swiftly, and when they were closer we heard a gunshot.

MR DASTILE:   That is correct.

MR CLAASSEN:   Did you only hear a gunshot? You didn’t see anything happen, you didn’t know where it came from?

MR DASTILE:   I could see the people who were shooting.

MR CLAASSEN:   Did you, you also indicated that you retreated at that stage towards Mr Brown’s shack as you put it.

MR DASTILE:   That is correct.

CHAIRPERSON:   Mr Claassen we don’t have to have him confirm his evidence-in-chief. You don’t have to read it all back to him, because it’s going to double up the length of the cross-examination.

MR CLAASSEN:   Thank you Mr Chair.

MR LAX:   Why don’t you rather, if you’ll allow me. If there are things that you dispute, put it to him, that’s the purpose of cross-examination. He’s not here to testify twice about the same thing. If there are things your client disputes about what he’s said in his evidence, put it to him. Just simple. That’s what cross-examination’s there for.

MR CLAASSEN:   Thank you Mr Lax. I’ll do it like that. Mr Dastile, you indicated yesterday and I’d just like to put this to you, that the size of the IFP’s were, according to your estimation, plus minus 100 people. I would put it to you that they were indeed less than that.

MR DASTILE:   No, that was not a mistake. I was not giving you a wrong information.

MR CLAASSEN:   But that is an estimate?

MR LAX:   Mr Claassen, why don’t you ...(intervention)

CHAIRPERSON:   I think obviously, he didn’t count, let them stand in a row and count them. I mean I think all these 400's, 200's, 100's they’re all estimates. We know they didn’t have a head count or roll call.

MR LAX:   Furthermore Mr Claassen, your client’s own co-applicants put it at that figure themselves, some of them.

MR CLAASSEN:   I’ll leave it at that Mr Lax. Mr Dastile, you also testified yesterday and this will of course, is denied by my, by the applicant Mr Sithole that, he at, while the ANC people were fleeing, he got on top of this shack and shot at the fleeing people from there.

MR DASTILE:   Yes, he is trying to protect himself. I am saying what I saw.

CHAIRPERSON:   Mr Dastile, what sort of firearm did you see in the possession of Mr Sithole?

MR DASTILE:   An AK-47.

CHAIRPERSON:   Was he the only person on the roof, or were there a whole group of them on the roof?

MR DASTILE:   He was the only person that I saw on top of the roof.

MR CLAASSEN:   Mr Dastile, at that stage ...(intervention)

ADV SIGODI:   I just want to establish from the witness, what was the weather like on that day?

MR DASTILE:   It was raining.

ADV SIGODI:   At the time of the shooting was it pouring with rain, or was it just drizzling?

MR DASTILE:   It was raining, not heavily, but it was raining.

CHAIRPERSON:   Mr Claassen.

MR CLAASSEN:   Thank you Mr Chair. Mr Dastile, how well could you see at that stage of the evening?

MR DASTILE:   Yes, the vision was clear.

MR CLAASSEN:   Mr Dastile, I put it that, I put it to you that the vision was not clear, and specifically because of this rain that you are testifying to.

MR LAX:   Sorry Mr Claassen, how can you put it to him on that basis when your client testified that the visibility was clear? You’re going against your client’s instructions.

MR CLAASSEN:   Mr Lax I can’t, if I’m not mistaken, I think he said, I think he said he could see fairly clearly to where the group was, on his own testimony approaching, maybe here ...

MR LAX:   See my point? If he could see them very clearly it’s no good putting to this witness that

MR CLAASSEN:   I see your point, obviously they could also be seen.

CHAIRPERSON:   Mr Dastile if I could just ask you one question? Do you know at approximately what time of the day the shooting took place?

MR DASTILE:   It was around five to six o’clock in the evening.

CHAIRPERSON:   Between five and six o’clock.

MR DASTILE:   Yes, from half past five to six.

CHAIRPERSON:   Half past five to six, yes, and we know that’s on the 12th of February, well we’re in February now, the sun in this part of the world goes down around about sevenish, it starts getting dark. But of course it was overcast, there was cloud.

MR CLAASSEN:   Thank you Mr Chair, just, maybe just one further point. Mr Dastile, just getting around to if I may refer the Committee to page 103 of the judgment. Mr Dastile and I would like to quote, this is starting from line 12. This is now the Judge relating to the attitude of the people, this is now the ANC group, and:

Would you agree with that?

MR DASTILE:   I did mention earlier on that when we met for the first time at Moloesi’s they already had these weapons. We went to the office and informed the people that we had spoken to Sithole, they should leave their weapons there. That’s what they did.

MR CLAASSEN:   Sorry Mr Dastile you say they should leave their weapons there. Was this now at Moloesi’s shebeen.

MR LAX:   This was when they moved from the office, that was his testimony yesterday, that they tried to get people to leave their weapons behind. He said so yesterday in his evidence-in-chief.

MR CLAASSEN:   Thank you Mr Lax.

ADV SIGODI:   Sorry Mr Dastile, were any ANC people armed with guns, or firearms?

MR DASTILE:   No. Not a single one. Not even at Moloesi’s place.

MR LAX:   Sorry, earlier in your evidence, under cross-examination was, you were asked were these people armed, you said some of them were armed, they were sticks, knopkierries, spears and firearms. I heard you say in Zulu umbaso as well but that wasn’t translated.

ADV SIGODI:   Umbaso is an axe.

MR LAX:   Yes I know that, I’m just saying I didn’t hear that translated. I did note that you said that. But the translation was sticks, knopkierries, spears and firearms. Whether that was a mistake or not I don’t know.

MR DASTILE:   No, I didn’t say that.

CHAIRPERSON:   ...(inaudible) say that I also, my note also says, firearms. But are you saying now that you didn’t mention firearms this morning when you were giving testimony that the group of ANC people were armed with firearms.

MR DASTILE:   No, I did not. I did not mention firearms.

MR LAX:   Sorry, just while we’re dealing with this question of firearms. We heard evidence that from the IFP section of the community donations were being called for, for them to by firearms. Did the ANC section of the community, or the ANC leadership arrange for members, or for themselves to be armed, to get firearms?

MR DASTILE:   No.

CHAIRPERSON:   But one would imagine, correct me if I’m wrong, that in a community such as Zevenfontein, which was a fairly large community, many, many people probably owned firearms. Well not even owned, possessed them, let me put it that way.

MR DASTILE:   I don’t know about that, but I did not see firearms, especially among the ANC. To this day I have not seen an ANC member with a firearm.

CHAIRPERSON:   Thank you. Mr Claassen.

MR CLAASSEN:   Thank you Mr Chair. If I could just again refer the Committee to page 149 of the bundle. I might just start on page 130 and this where the Judge regards the evidence of Mr Sandisile Dastile, the evidence before this Commission, and on the value thereof, and it’s starts at line 15. I think it said:

MR LAX:   Sorry, you’re reading at page 130?

CHAIRPERSON:   One four nine.

MR LAX:   Sorry you said you were going to start at 130, that’s why I was a bit puzzled.

CHAIRPERSON:   Page 149, it’s approximately, it’s line 15, "of importance..."

MR CLAASSEN:   That is correct Mr Chair.

CHAIRPERSON:   To the end of that paragraph, line 23.

MR CLAASSEN:   Mr Dastile is that indeed, was that the situation at that stage?

MR DASTILE:   Would you please repeat as you were reading.

CHAIRPERSON:   I’ll read it for you. This is, what I’m reading now is what the Judge at the trial of the applicants said in his judgment, and I read

That’s you, he’s referring to your evidence.

That’s what the Judge said in his judgment. Now Mr Claassen is asking you do you agree with that assessment of your evidence?

MR DASTILE:   Yes I agree with that. It is similar to the testimony that I have just rendered.

MR CLAASSEN:   Thank you Mr Chair, and maybe just in conclusion, Mr Dastile, we’ve heard now what you’ve testified about the meeting and going back to the ANC offices. If might just, on page 108 of the judgment Mr Chair, and without wanting to take up too much time, starting from page, the top of page 108, it is described how this meeting has, according to the applicant’s evidence, was held between Mr Dastile and Mr Zwane and Sithole to try and pacify the situation. Of importance maybe is just that, and this is according to Mr Dastile’s own version, he says, I think this is, I’m starting on line number eight:

Mr Chair I believe in all fairness this should not be read in isolation, but it goes on to say:

And then just 18, 19 and 20 it says:

And it goes on to say that Mr Moloetsi does not agree with this. Mr Chair if I could just be given the opportunity to put this to the applicant, to the witness.

Mr Dastile, I believe it was interpreted to you. What have you got to say to what you yourself testified in the trial?

MR DASTILE:   I believe that I mentioned even in Court that this was not put as I explained. I was supposed to say we were shot. I think if you were to rewind the cassette and listen to the evidence, it was clear on, should I say, rewinding the cassette and listening to the evidence to what exactly I meant to say.

CHAIRPERSON:   But I think, I don’t know what Mr Claassen’s referring to, but he’s also referring, included in that extract of the judgment is this section, where the Judge says:

Is that correct?

MR DASTILE:   No, we did go to the ANC offices after having left Sithole’s place. From Sithole’s place we went to Magwaza and from, or should I say after speaking to Sithole, after having met him at the grounds, we went straight to the offices because Sithole said we should go and discuss this with the ANC people whilst he is discussing this with the IFP people.

MR CLAASSEN:   Thank you Mr Chair, I’ve got no further questions for this witness.

CHAIRPERSON:   Thank you Mr Claassen. Mr Draht, do you have any questions to ask the witness?

CROSS-EXAMINATION BY MR DRAHT:   Yes, Chairperson. Mr Dastile, you referred earlier in cross-examination that you were at a certain stage with Binkie Moloi, Simon Skosana, Michael and another person. The shebeen that is referred to as Skosana’s shebeen, does that belong to this Mr Skosana?

MR DASTILE:   Yes.

MR DRAHT:   So am I correct if I say that Skosana’s shebeen was owned by an ANC member, or an ANC leader?

MR DASTILE:   No, he was not a leader, he was a member, maybe a follower.

CHAIRPERSON:   Sorry, just before you proceed Mr Draht. Mr Dastile, the four deceaseds, the four people who were killed in this incident, were they all ANC members or supporters?

MR DASTILE:   All of them were members of the ANC, except for the one John Mohale whom we did not know, who died near Skosana’s shebeen. We did not know him.

CHAIRPERSON:   And the seven injured people?

MR DASTILE:   All of them were members of the ANC.

CHAIRPERSON:   So they all, except for John Mohale the person who wasn’t a resident of Zevenfontein, he was killed at or near Skosana’s shebeen, or his body was found there, you don’t know his political affiliation.

MR DASTILE:   I did not know him.

MR DRAHT:   Thank you Chairperson. Mr Dastile you and your brother requested people at the ANC offices to stay behind. Is that correct?

MR DASTILE:   Yes, he did mention that.

MR DRAHT:   But they didn’t stay behind, they followed you.

MR DASTILE:   Yes, that is correct.

MR DRAHT:   And you also requested them to put down their arms. Is that right?

MR DASTILE:   That is correct.

MR DRAHT:   I put it to you that they also didn’t put down their arms, they followed you armed with their weapons.

MR DASTILE:   I did not see anyone armed.

MR DRAHT:   Mr Dastile, who lived next to the river? Was it predominantly IFP members?

MR DASTILE:   It was all sorts of people, not necessarily the IFP. We did have ANC members residing along the river as well.

MR DRAHT:   Do you know why the IFP youth removed the ANC posters, election posters?

MR DASTILE:   No.

MR DRAHT:   And did this removal of posters made the ANC supporters angry?

MR DASTILE:   Yes.

MR DRAHT:   After you heard the slogans, and you reported it, Mr Mzilele said "...they always say so." What did you mean by this?

CHAIRPERSON:   Mr Dastile’s brother said that, yes.

MR LAX:   Well which word don’t you understand?

CHAIRPERSON:   I think what’s being asked Mr Dastile, you said when you went to tell your brother about the words that you heard being uttered by the IFP members on the field about the amabatha, inkhosa, impondo, you went to your brother and told him and he said, look don’t worry, it’s all, this sort of thing’s common, it’s always happened, they’re always saying this sort of thing but will never do anything. The question is, what did you understand your brother to mean by saying that?

MR DASTILE:   I understood him quite well that this will not necessarily lead to a fight, because this is what they usually keep saying but nothing happens.

MR DRAHT:   So if we accept that the IFP usually said slogans like this, or uttered slogans like this, can we accept that there previously was tension between the IFP and the ANC?

MR DASTILE:   I don’t understand, would you please repeat that question.

CHAIRPERSON:   The question was, what he’s getting at Mr Dastile is, because of your brother’s reaction, you go and tell him, you go to your brother and say, look, these IFP members are making threatening remarks about throwing out the Xhosa, Pondo and Bata, the ANC people, and your brother says, this is usual, it’s common, don’t worry about it. He’s saying to you, he’s putting it to you, that your brother’s attitude indicates that there may have been tensions, or there were tensions between the IFP and ANC before, because of that attitude, they must have previously insulted the ANC members. It’s indicative of a previous tension between the IFP and ANC. What do you say to that?

MR DASTILE:   I think that because of he tearing of the posters, this became something of concern to me, because, or should I say but I had to agree with my brother when he told me not to worry. I trusted that he was sure of what he was saying.

MR LAX:   Mr Dastile the issue is, had there been tension before, in the light of the fact that your brother said, from the way your brother spoke, he’s implying these sorts of threats had happened in the past and he had ignored them. He said this is usual. What Mr Draht is asking you is, was there tension before as a result of such threats, or not. That’s really what he’s asking you?

MR DASTILE:   There was no tension before this day. We used to differ, but there was no tension. We used to resolve problems as a committee, except that we started experiencing a problem on that particular day.

MR DRAHT:   So previously when the IFP would uttered slogans like we are going ...(intervention)

CHAIRPERSON:   This witness said it was, that it was common for them to gather and sing their songs, their IFP songs, but he said what concerned him was, it was the first time he had heard these words being uttered about expelling the Xhosa, Pondo, Bata, that’s why he went to his brother, and because of the context, because there was this problem relating to the removal of the tensions, of the political posters, but he specifically said it was the first time he had heard this direct threat about expelling the ANC people.

MR LAX:   It was in fact his brother who had heard it many times, not him. That’s how he’s put it.

MR DRAHT:   Thank you Chairperson. Mr Dastile, why would Mr Sithole threaten to shoot any ANC member, if there was no tension between the parties?

CHAIRPERSON:   You mean, why would he shoot them?

MR DASTILE:   Chairperson, why would he threaten to shoot them?

CHAIRPERSON:   Our Mr Sithole or the other Mr Sithole?

MR DRAHT:   Mr Sithole the applicant. According to - Mr Dastile yesterday testified that when they went down to the soccer field Mr Sithole said they, or Mr Dastile said, "...they threatened to shoot any ANC member. Sithole said go talk to the ANC, I will go and speak to the IFP."

CHAIRPERSON:   Mr Sithole. Do you say Mr Dastile said that Mr Sithole threatened to shoot ANC people?

MR DRAHT:   That’s correct.

MR CACHALIA:   At that time that he went, after being to Mr Magwaza’s house?

MR DRAHT:   When they met Mr Sithole at the soccer field. He testified that "...they threatened to shoot any ANC member and Sithole said go talk to the ANC, I will speak to the IFP."

MS LOCKHAT:   Chairperson I’ve also got that in my notes.

CHAIRPERSON:   Let’s hear what you say to that Mr Dastile?

MR CACHALIA:   Before the question is put Chairperson, I want to say that the notes read correctly, but it is not as in Mr Sithole said. He said they went to Sithole’s place, there were other people there, and the notes are incorrect. It’s not Mr Sithole making the threat to shoot the people, as I understood it that was clearly not the position sir.

MR DRAHT:   Chairperson I shall rephrase the question. Mr Dastile why would the IFP members threaten to shoot any ANC member if there was no tension?

CHAIRPERSON:   There was this huge tension about the problem at the shebeen. He said the people were very angry and were shouting and making noises.

MR DRAHT:   Chairperson it’s my submission that the ANC or the people at the shebeen was angry, but the IFP people ...(intervention)

CHAIRPERSON:   You mean why the I ...(inaudible)

MR LAX:   Do you understand the question that’s being put to you?

MR DASTILE:   Yes I do understand the question. I believe that I cannot speak on behalf of the IFP people as to whether they made that decision. They are the ones who are better placed, who can explain pertaining to that decision. What I know is that there were signs that indicated that there was a tension, like the ...(indistinct) approached us, for example, and it is the IFP itself that can explain why there was this tension.

CHAIRPERSON:   Please continue Mr Draht.

MR DRAHT:   Thank you Mr Chairperson. Mr Dastile, you also gave evidence that your brother said, "... we will not allow this." What did you mean by that?

MR DASTILE:   I am saying that he was trying to say to Sithole that it should be allowed that the people should fight, because of what happened at Moloetsi’s place. This should be stopped and we should not have a recurrence of what happened, of what Mpongosi did, because that will lead to fighting between the two groups.

MR DRAHT:   Mr Dastile, I put it to you that the ANC was actually charging and attacking the IFP members.

MR DASTILE:   ANC was not attacking the IFP.

MR DRAHT:   And I also put it to you that some IFP members tried to cross the river, but it was flooded.

MR DASTILE:   That is surprising. Because what I heard when they will say that, I didn’t know why they were crossing the river. Because what I know is that they kept to the ground, coming to where we were, where they killed our people. I don’t know about crossing the river.

MR DRAHT:   I also put it to you that the first stones was threwed by the ANC group.

MR DASTILE:   We would not do that by throwing the stones first. We threw stones because they started shooting. We were trying to disturb them.

MR DRAHT:   And that first gunshot also came from the ANC group.

MR DASTILE:   I begin to hear this for the first time.

MR DRAHT:   I also put it to you that the ...(intervention)

ADV SIGODI:   He heard that for the first time here.

MR DASTILE:   That is correct.

MR DRAHT:   I also put it to you that it was the ANC people that shouted slogans at the ...(indistinct)

MR DASTILE:   We were not singing slogans on that day.

MR DRAHT:   Mr Dastile, do I understand correctly that Skosana’s shebeen is in the same direction as which some of the ANC group ran away?

MR DASTILE:   Skosana’s shebeen is down to where we were fighting. It is not the direction from Mr Brown’s place to Skosana’s place because the IFP were on that direction, and then our people went to TPA offices.

MR DRAHT:   Mr Mpongosi denies that he ever assaulted any women at the shebeen.

MR DASTILE:   I had word he was saying that. He was trying to protect himself.

MR DRAHT:   Last Mr Dastile I put it to you that these two groups, or the members of the community, knew very well who was members of the ANC and who was members of the IFP. Is that correct?

MR DASTILE:   That is correct.

MR DRAHT:   No further questions Mr Chairperson.

CHAIRPERSON:   Thank you Mr Draht. Do you have any questions Ms Lockhat?

MS LOCKHAT:   No questions Chairperson.

CHAIRPERSON:   Do you have any re-examination Mr Cachalia?

RE-EXAMINATION BY MR CACHALIA:   Mr Dastile, they read to you page 100, sorry page 149 of the record. Were you in Court when they read page, sorry, on page 148 it was said that,

Were you in Court at that time?

CHAIRPERSON:   Is this a re-examination or are you just trying to ...?

MR CACHALIA:   ...(inaudible)

CHAIRPERSON:   Yes, alright.

MR CACHALIA:   Were you there when that was said?

MR DASTILE:   Yes, I was present.

MR CACHALIA:   Just one issue that I am not very sure what you said. In relation to page 108 certain matters were read out to you. When you reached Moloetsi’s shebeen, from Moloetsi’s shebeen you and the other ANC leaders where did you people go to? Did you go to the ANC office or did you go to Sithole?

MR DASTILE:   We went to speak to Magwaza or Sithole so as to report what has happened by, what has been done by their members.

MR CACHALIA:   So on page 108 of the bundle when it says:

Does it mean that you first went to other places? Is that what is indicated there, sir?

CHAIRPERSON:   I think you can use that in argument. What you’re saying is that this is not, this might be ambiguous. It might mean that he did not go directly to the ANC offices.

MR CACHALIA:   That’s what I will argue sir, thank you. One final matter. I’m not very clear about it. There was the question put to you, did the ANC leadership take over or usurp the function of the civic, did you want it to be disbanded? Please, what was your attitude in respect of the civic? Did you want it to be disbanded, did you want the parents committee and the civic or whatever it was and did you want to take over and usurp that function, or what was your position? I wasn’t very clear as to what your answer was. Please, I think you should be given another opportunity to just make your position clear.

MR DASTILE:   We haven’t yet reached the discussions together with them. So that they would relinquish their positions. What we did at that time we were trying to help people who were having problems when their shacks were destroyed. Secondly it is because all people who were next to the river or under the pylons had problems. We tried that all people should be removed to that designated place. That is how it happened.

MR CACHALIA:   Did I understand your evidence correctly, please correct me if I’m wrong, did you say that the first three shacks that were removed became five shacks in the designated area? Is that what happened? And the additional shacks were destroyed by TPA?

MR DASTILE:   Yes, there were three shacks which were removed and because in one shack had three families inside. And then when they arrived at the new designated place they were divided into various families and then from one shacks we became five shacks and the TPA denied that problem and then destroyed the other shacks.

MR CACHALIA:   Thank you, sir, that’s all.

CHAIRPERSON:   Do you have any questions Advocate Sigodi?

ADV SIGODI:   No thank you Chairperson.

CHAIRPERSON:   Mr Lax?

Thank you very much Mr Dastile, that concludes your testimony, you may step down.

CHAIRPERSON:   We’ll have the tea adjournment now, I see that it’s eleven o’clock. And for about twenty minutes.

CHAIRPERSON:   Yes, thank you.

MR CACHALIA:   Thank you Chairperson, I call my next witness, Sipho Tshizana.

CHAIRPERSON:   What are you full names please? Sipho?

MR TSHIZANA:   Sipho Tshizana.

CHAIRPERSON:   How do you spell Tshizana?

MR TSHIZANA:   T S H I Z A N A.

CHAIRPERSON:   Thank you. Mr Tshizana, do you have any objection to taking the oath?

SIPHO TSHIZANA:   (sworn, states)

CHAIRPERSON:   Thank you. Mr Cachalia?

EXAMINATION BY MR CACHALIA:   Thank you Chair. Before I ...(intervention)

CHAIRPERSON:   Are you going to be interpreting, testifying in Zulu or Xhosa.

MR TSHIZANA:   In Xhosa.

MR CACHALIA:   Thank you Chairperson. I just wish to indicate before I put questions to this particular witness, that the witness is being called in order to, as a representative of those victims that have suffered, to afford them an opportunity relate the violations that they suffered, not particularly on the facts. I am aware that they are, the ...(intervention)

CHAIRPERSON:   He wishes to make a statement on behalf of the victims? Yes, thank you.

MR CACHALIA:   Mr Tshizana you remember the 12th of February 1994 when four people were shot dead and at least seven were injured. Is that correct?

MR CACHALIA:   Were you one of the person that were injured?

MR TSHIZANA:   Yes.

MR CACHALIA:   How were you injured, and where were you injured?

MR TSHIZANA:   I was hit on the leg, on the foot.

CHAIRPERSON:   By what Mr Tshizana? You say you were injured on the foot. What caused your injury?

MR TSHIZANA:   A firearm.

MR CACHALIA:   In other words you were shot on your leg, is that correct?

MR TSHIZANA:   Yes.

MR CACHALIA:   Were you at that time working at the time when you were injured? Were you employed?

MR TSHIZANA:   Yes.

MR CACHALIA:   And you had to, as a result of the injury you were not able to continue your work for some time?

MR TSHIZANA:   That is correct.

MR CACHALIA:   How long did you stay away from your employment Mr Tshizana?

MR TSHIZANA:   A month, a month and two weeks.

MR CACHALIA:   Now, as a result of you having stayed away did it have any kind of effect on your record at the, at your employment?

MR TSHIZANA:   That is correct.

MR CACHALIA:   What, well let me just, perhaps if my friend, my learned friends have no objections, it had an ...(intervention)

CHAIRPERSON:   Thank you but if it’s not related to the merits of the matter we’re not going to be too harsh on leading questions Mr Cachalia.

MR CACHALIA:   It had an adverse effect on your, in your, on your employment. Is that what you intend saying?

MR TSHIZANA:   Yes.

MR CACHALIA:   Now, Mr Tshizana, after this particular incident, and after the arrest, the applicants were released on bail. Is that correct?

MR TSHIZANA:   Yes, they were released on bail.

MR CACHALIA:   And in September of 1994 you made an attempt to create peace amongst what has, became, what then afterwards became warring factions as a result of the death. You tried to make peace. There was a meeting to make peace. Is that correct?

MR TSHIZANA:   That is correct.

MR CACHALIA:   In your opinion, and I don’t wish to lead you in this particular matter, in your opinion, was peace established as a result of that amongst the IFP and the ANC?

MR TSHIZANA:   People who were encouraging peace wanted to see peace, but it transpired that when we finished the meeting that we had trying to get opinions of the leaders, the leader of the IFP announced that if their brothers can be pressed down during the Court trial there will be no peace in Zevenfontein.

MR CACHALIA:   What do you mean by pressed down, please, Mr Tshizana? What do you mean when you say the brothers could be pressed down in the Court?

MR TSHIZANA:   I think they wanted the situation where no witnesses would come forward.

MR CACHALIA:    Mr Tshizana, you had a relationship, and I think it is somewhat common cause, before that day of the incident matters that were creating problems in your community were able to be resolved peacefully. After the incident was that process carried on, or were you, was the relationship in the community so affected that it could not carry on?

MR TSHIZANA:   It was clear that we had lost negotiations between ourselves and the IFP with whom we lived together in the area from around 1992 right up to 1994 before the incident.

MR CACHALIA:   What is the relationship between the IFP and the ANC today in Zevenfontein? Perhaps I should ask you are the IFP, are there still IFP members in Zevenfontein?

MR TSHIZANA:   No.

MR CACHALIA:   Where are they now?

MR TSHIZANA:   They are in Diepsloot.

MR CACHALIA:   Diepsloot was an area demarcated to move people from Zevenfontein to Diepsloot. Did members of the ANC move to Diepsloot, or only IFP people moved?

MR TSHIZANA:   Yes there are some ANC members who went to join the IFP in Diepsloot?

MR CACHALIA:   But all the IFP people have moved?

MR TSHIZANA:   Yes.

MR CACHALIA:   Has your relationship, even ‘though they are in Diepsloot, which for the purposes of the committee which is the informal settlement which is closest to the, where they’re developing and area closest to Zevenfontein, has the relationship between IFP and ANC been ?

MR TSHIZANA:   There has not been any negotiations or discussion among the groups in Zevenfontein and Diepsloot.

MR CACHALIA:   Insofar as the people who were killed and injured, let’s just take the late Mr Dastile, is his wife still living in Zevenfontein?

MR TSHIZANA:   No, she went to the rural areas.

MR CACHALIA:   For what reason? Because there was nobody to support her here.

MR TSHIZANA:   Yes, for that reason and also the fact that her husband had died.

MR CACHALIA:   That’s what I mean, alright. Insofar as the people that were injured, I just used that as an example, I’m saying in so, the other two people that were members of the ANC we have today two ladies who are here who lived as common law wives or with the deceased. We have Susan Mapuna and Cynthia, have they got any support systems that support them for a living?

MR TSHIZANA:   The same applies to them as is the case with Dastile’s wife.

MR CACHALIA:   Except that they’re still living in Zevenfontein?

MR TSHIZANA:   Yes.

MR CACHALIA:   How do you feel about what happened Mr Tshizana? What happened to you and to your colleagues in the ANC, the injuries, what has it caused you sir?

MR TSHIZANA:    On our side as the injured among the ANC this created quite a lot of suffering, and that we no longer have people that we can discuss things with, especially the IFP, and it made it difficult for us to support our families, because we were not able to work during the time when we were recuperating. And some of our properties in our shacks were taken by the IFP.

MR CACHALIA:   That is the physical aspect of it mister. How, you were traumatised obviously when you were, you get shot, whether in the leg or any other part of the body, it causes some trauma. Have you been, in your mind, may I put it this way, in your mind have you been able to get rid of it and get along with your life?

MR TSHIZANA:   It is very difficult for me to rid my mind of this, because I was shot by people whom I trusted. My hope is that there will ultimately be discussions and we will relate well finally.

MR CACHALIA:   Thank you Mr Tshizana I have no further questions.

CHAIRPERSON:   Thank you. Do you have any questions Mr Claassen?

CROSS-EXAMINATION BY MR CLAASSEN:   Thank you Mr Chairman, maybe just a single question.

Mr Tshizana you’ve now concluded by saying you hope that ultimately there will be discussions and that the thing will resolve itself. Would you not, do you not feel that in what had happened there have been a lot of casualties, if I may use the word, not injuries as such, but people whose lives suffered because of what had, what had happened there. Not only on the ANC side but also on the side of the IFP?

MR TSHIZANA:   I would not say I dispute that, because I don’t know how other people feel as individuals about what happened that day.

MR CLAASSEN:    Mr Tshizana just in conclusion, this was a very unhappy time for all the people in Zevenfontein. It was, there was political unrest, there was political uncertainty and there were victims on both sides.

MR TSHIZANA:   I don’t know how to put this on behalf of the injured, but yes, I was concerned and worried. I cannot speak on their behalf ‘though.

MR CLAASSEN:   Thank you Mr Chairman.

CHAIRPERSON:   Thank you Mr Claassen. Mr Draht do you have any questions?

CROSS-EXAMINATION BY MR DRAHT:   Only one thing Chairperson. Mr Tshizana the applicants now stated that they’re sorry about their part of the incident. What do you have to say about that?

MR TSHIZANA:   I would like to say that, yes, it is true that when they say they want amnesty it is necessary that this Truth and Reconciliation Commission should know the truth.

MR DRAHT:   That will be all Chairperson.

NO FURTHER QUESTIONS BY MR DRAHT

CHAIRPERSON:   Thank you. Ms Lockhat do you have any?

MS LOCKHAT:   No questions Chairperson.

CHAIRPERSON:   I take it there’s no re-examination. Advocate Sigodi?

ADV SIGODI:   ...(inaudible)

CHAIRPERSON:   Thank you very much Mr Tshizana for letting us know your feelings and for talking on behalf of the other victims, we appreciate that. Thank you.

CHAIRPERSON:   Mr Cachalia would you provide Ms Lockhat with a list of the victims and the immediate next of kin, you know the dependents.

MR CACHALIA:   I will do that. I have in fact provided Ms Lockhat with, I was supposed to put it on record, I don’t know whether you ...(intervention)

CHAIRPERSON:   As long as we’ve got it. Maybe at the end if we’ve got time, but it’s not absolutely necessary, but as long as we’ve got a list.

MS LOCKHAT:   We do have a list Chairperson, so that’s in order.

CHAIRPERSON:   Because it may be that this will be referred to the Reparations Committee.

MR CACHALIA:   That is all the witnesses that I wish to call.

CHAIRPERSON:   Thank you Mr Cachalia. Mr Claassen, are you in a position to argue?

MR CLAASSEN IN ARGUMENT:   Mr Chair I believe I am in a position to argue.

Thank you Mr Chair. Mr Chairman, this Committee has now for the past three days listened to the applications of the four applicants before this Committee. Mr Chair I would just like to start out by saying it is, it is true that in the applications a lot of issues were covered and they were extensively cross-examination and led, as to what exactly occurred on that particular day. Mr Chairman and I would just like also to say that I believe as in any criminal matter of this nature, or trial of this nature, where there’s several applicants and there’s several witnesses as well, two witnesses as well, it is my respectful submission that it is to be expected that there are going to be certain inconsequences between the, inconsistencies ...(intervention)

CHAIRPERSON:   Yes I think one can always expect inconsistencies, as you say, when there’s a number of witnesses, and also when one takes into account the time span, it’s been five years now, and also obviously one can’t overlook the trauma that was taking place at the time that the incident took place. That also affects one’s recollection to a lesser or greater degree. And we’re not going to go with a fine toothcomb through the evidence and pick out little inconsequential inconsistencies and add them all up and have a score sheet at the end of the day. But when it gets to material matters of course, then it’s a different question.

MR CLAASSEN:   Thank you Mr Chair, that was exactly what I was getting at. Obviously the question still stands is, and I mean that is the base criteria for granting of amnesty, was there full disclosure, and was the applicants indeed truthful with this Commission and what they alleged occurred on this particular day. Mr Chair in as far as the applicant Mr Sithole is concerned, I think it’s common cause that he was a member in the community, he was a respected member, if one looks at ...(intervention)

CHAIRPERSON:   I think that’s quite clear from the evidence, even from Mr Dastile’s evidence, that prior to this incident Mr Sithole was a leader, was in the IFP group and was respected, because he always tried to find the peaceful route to settle a problem. I think that was quite clear from both sides.

MR CLAASSEN:   Thank you Mr Chair.

Mr Chair and without further ado I would just like to point out, I mean I think it’s, it needs to be looked at, and this is some inconsistencies, it is true that there were certain inconsistencies in the application of Mr Sithole, Mr Chairman. And I’d just specifically like to refer to an incident, it was alleged by Mr Cachalia that as far as the applicant Mr Sithole was concerned he allegedly fired his weapon from the roof of a shack. This was denied.

There was a further issue it think it was that the accused, that the applicant said in his testimony in chief that he fell down to the ground and shot from the ground and was later then by some of the other applicants alleged that he had shot from a shack, from behind shelter. Mr Chairman as far as that specifically is concerned it’s my submission that in the situation as it was, I believe there was a lot of confusion, there was according to the applicant shooting to and fro, they were under attack, and as you said it was a long time ago. I believe these inconsistencies will creep in. ...(intervention)

CHAIRPERSON:   Except you know, it might be argued there that, you know, I dropped to the ground and fired. Why did you drop to the ground? To avoid being hit by firing from the other side, hence put myself on the ground. If you jump up on the roof in the face of fire it would be an unlikely sort of thing to do, so you know, it’s quite an important difference in that evidence.

MR CLAASSEN:   Mr Chair that is exactly what I would like to get at. I think it was in, by the witness for Mr Cachalia, Mr Dastile, and I think it was also noted by the Committee, upon asking him what had proceeded and with specific reference to this group of ANC people referred to, and I think it was also clear from the judgment and the pieces stated out of that, that there was an angry ANC crowd who, by his own submission, said that they might disobey ANC orders not to attack IFP people and he, at that stage, in his own submission, feared a revenge attack. Mr Chairman it is true that as far as the incident in Mr Moloetsi’s tavern is concerned it is disputed and Mr Mpongosi’s version is that there was an incident earlier, the 4th, a week earlier than what the witness for Mr Cachalia alleges. Mr Chair what I would like to get to is, I think from all the versions given by the applicants it is quite clear that there was a threatening situation in Zevenfontein at that stage. As to what exactly led to this, is still open to questioning. If I may I think Mr Sithole indicated that there had been a problem with the civic organisation. There had been a problem with this usurping of the powers by the ANC. The IFP people were unhappy with what was going on.

So I think it is quite clear that there had been a bit of animosity there and there was quite a feeling between the two parties.

CHAIRPERSON:   I think there must have been, looking at it from any angle, there must have been some tension because it’s common cause that at that particular time you had two large groups, factions, of the community, politically orientated, facing each other. I mean that didn’t just happen because they wanted to have fun. So there was obviously a problem. It wasn’t a bed of roses at Zevenfontein otherwise you wouldn’t have had that confrontation.

MR CLAASSEN:   Thank you Mr Chair.

ADV SIGODI:   Sorry, and I think for me bordering on full disclosure is whether or not there was an attack by the IFP on the ANC or there was an attack by the ANC on the IFP. I think that is the crucial question that borders on full disclosure. If you can explain why none of the ANC people, who none of the IFP people were injured, and so many ANC people were injured. If you can just address us on that aspect.

MR CLAASSEN:   Thank you madam. It is absolutely true that from the evidence led it is, even ‘though I think it Mr Ndlovu that said he saw some ANC members injured, I think it’s common cause that none of the ANC members or very few, not to an obvious extent ...(intervention)

CHAIRPERSON:   We’ve got the evidence of Mr Dastile that stones were thrown. And we’ve got the evidence that some, I think Mr Ndlovu said, some of the people were injured from stones, but when we mean injured we mean seriously injured, yes.

MR CLAASSEN:   Thank you Mr Chair. Mr Chair, I think from what was just said, it is as far as a political motive is concerned that is, I think that that stands clear that obviously it was politicised.

As far as the question of full disclosure is concerned, Mr Chair it is my honest submission that, also looking at the events leading to what occurred on that specific day, the question remains who actually attacked who. I think it was said by Mr Mbatha who said the IFP acted proactively because they knew that they were going to attack and they wanted to defend themselves because, I think it was Mr Mpongosi said, there was women and children and they knew that the ANC were coming from them.

Mr Chair it’s my submission that this version of events, or what preceded the actual incident, is to a great extent supported by the witness Mr Dastile, in stating the frame of mind of this ANC group of people before this actual shooting occurred. Mr Chair if I may I’d just like to refer back to Mr Sithole’s application. He does not deny that he was armed with an AK-47 and he shot at people, and he believes he also shot Mr Dastile, but I think his evidence was, as far as the incident itself is concerned, he said that it was confusing, it was hostile, a shot rang out and he believed that shot to come from the ANC side, and once again referring back to Mr Dastile’s evidence that people were armed with machetes and assegaais and kerries, and he specifically mentioned firearms. Now whether that was a mistake is to be argued. But I believe it was quite clear that he did mention firearms in that specific group. Which obviously leaves the question, is it not possible, or indeed the version of the applicants, or Mr Sithole specifically, had said a shot rang out. I don’t think he even goes as far as saying, he presumed the shot came from ANC side and upon that he started firing.

Mr Chairman it’s my submission that looking at all the surrounding circumstances I think it’s, it wouldn’t be accurate to say the IFP as such attacked the ANC. I think if I might refer to a specific choice of words or the way it was translated by the interpreters, to a question put to Mr Dastile himself, I think he said in discussion between his brother late Mr Dastile and Mr Sithole, Mr Dastile said to him we must not allow the people to fight. Mr Chair it’s my submission that it was ...(intervention)

CHAIRPERSON:   It’s clear from Mr Sithole’s evidence that that was his attitude, and when he went to Magwaza he went to Magwaza to talk peace, but when he got there he had an AK-47 thrust in his hand and was told by his leader, the time is too short, it is now time for action. So Sithole right until the last minute tried to get peace, but he wasn’t given that opportunity when he went to his people, instead he was given a deadly weapon and told to go and use it, and he basically obeyed, on his version, he basically obeyed an instruction from a leader, which the Zulu thing to do without questioning.

MR CLAASSEN:   Thank you Mr Chair, and just in taking where you left off, that is exactly the structure in this community, I think it was unthinkable that within the Zulu community, the IFP as such, members would not partake in what was obviously going to happen. Mr Chair and I believe that all preceding incidents taken into account, there was, as Mr Sithole said, he was left with no choice. They were under the firm impression that they were under attack, there was going to be bloodshed, and the only thing that they were left to do was, according to him, to defend themselves, which was in the end what they, which is my submission, what they did in the end.

CHAIRPERSON:   What would you say, and I’m just raising it, we know from the evidence that the IFP supporters in that community were preparing for trouble. They had sent around collection, they had in fact acquired communal firearms. We hear from Mr Mpongosi that you know, the first thing he did was he ran and got his own firearm, as did Zwane and others. Then they had the communal ones, and these were given out. Does that, it’s also, does that give an indication that they, or a confirmation of the fact that they may have been the aggressors? They were preparing for this sort of thing and they were more or less ready.

MR CLAASSEN:   Thank you Mr Chair. I think it was upon a question to Mr Mpongosi, why did he buy this arm, I think he testified it was even before he want away in December and ...(intervention)

CHAIRPERSON:   He said he got it in November for defence, and because he’d heard about all the troubles elsewhere in the country.

MR LAX:   I might just add, initially he said he bought it a few days before this incident, but when he was pressed on the issue it became clear that he bought it some months before the incident. But one of the other applicants also spoke about how he went down to the river with somebody, and then finding the river full they decided to join the group that were heading up. And there was an interesting use of language there where he said, "...We were going to go and join the others in the fight, in the attack." That’s how he put it. I can’t remember the precise thing, I can pick it up later. There was a choice of word which is implicit of wanting to attack, of being involved in an attack, because you will recall I questioned that person to say, well, why didn’t you just flee, how come this exact opposite kind of intention.

MR CLAASSEN:   Thank you Mr Lax. I think just to start at the end of what you said, I think it was also mentioned by several people that the river were in flood and some of them contemplated the option of fleeing but apparently it was not a viable option.

And just getting maybe back to Mr Chair’s question about the question of firearms, I think Mr Mpongosi also said that the reason for acquiring these firearms were because they were anticipating trouble. Now be it as it may, I think it might be speculative to say that anticipating trouble necessarily implies that they wanted to attack anyone at any stage. And if I’m not mistaken Mr Chair I, you made mention of the communal firearms, I think Mr Sithole or one of those applicants specifically mentioned that those were Mr Magwaza’s he had extra firearms.

I think that also on the question to Mpongosi after he said he donated twenty rand to buy these firearms, I don’t think, if I followed correctly, that the firearms which they intended buying were already bought at that stage. I stand to be corrected but I think it was ...(intervention)

CHAIRPERSON:   I’ll check that up on the record.

MR LAX:   I can help you there. It was the group, they went to the group which he called Sanibonani, Shangaans, and they bought the weapons from those young people. That was quite clear that the money raised was used to buy those weapons from those people. Because we asked where were the weapons from, hang on, I’m confusing something, yes. I beg your pardon, I am confusing something.

MR CLAASSEN:   Thank you Mr Lax, I believe he said that’s on the question from Judge Sigodi I think that’s where he said he got his weapon from. I stand to be corrected, I think at that stage, maybe there’s no evidence that the communal cache as such were already bought by them.

CHAIRPERSON:   Sorry, who had his uncle’s weapon?

MR LAX:   That was Mpongosi.

CHAIRPERSON:   He got it from his uncle.

MR LAX:   Mpongosi got his from his uncle. One of the other bought his weapon from the Shangaan people.

MR CLAASSEN:   Thank you Mr Chair. Chair just getting back to what Mr Lax said and the specific choice of words that was I believe indeed interpreted that they wanted to join the fight or the attack as such. Mr Chair I think it is obvious that there was a looming threat from the side of the IFP, in that there was a group gathering. It was a far superior group in numbers. I think it was by several applicants stated that they did see arms, albeit that they did not see firearms as such, but the ANC group were armed, and Mr Chair it’s just my submission, in those circumstances, obviously inferences can be drawn from why they decided to do what they did in the end, but I think it was, and I think specifically Mr Mpongosi, I think maybe said what was not said by anyone else, in saying that they knew what was going to happen. And also the allegation that they were stoned first. I think it’s very difficult to conclusively say one attacked the other, and I mean that is as Advocate Sigodi mentioned, that is the basis of full disclosure and in being truthful and honest and taking this Committee into their ...(intervention)

CHAIRPERSON:   On this question of full disclosure, I just want to hear your views, and I’ll be asking the same of Mr Draht when he’s arguing. We had the situation, okay I don’t have the problem with this first part of it, we know that the version that the applicants gave at their trial was something different, but the reason was they didn’t want to get convicted, and okay they admit that they lied, but they did it for a specific reason to avoid gaol. But then they fill in their applications forms, and if we take your client, Mr Sithole. He puts in a first application form and he says;

... and he tells what he did. At that time Magwaza fills in an application form, says look I know nothing, I wasn’t there. Right? So in other words, then later Sithole changes his application and says yes I got the firearm from Magwaza, and then Magwaza also changes his application form and says yes I was there and explains what he did.

Now first of all doesn’t that inevitably lead to the conclusion that they conspired with each other to lie to this Committee. You know, Magwaza said, don’t implicate me, in the first one, he’s not implicated. Magwaza steps aside, takes himself away from the scene, then they both change to this version, right. Then you get the other applicants, Ndlovu, Mpongosi, and Mbatha, they all say they fired weapons and stuff. But if you look at their applications they don’t make any mention of that. They say we were there, but I didn’t take my gun, I didn’t fire. They don’t mention that. Okay they explain it by saying well we didn’t know the lawyers who took it, etc, that sort of explanation, but they must have conspired as to what, at least Sithole and Magwaza, as to what they should say, certainly in the first application. How does that deviousness, if I can put it that way, affect their credibility now to such an extent that we can feel secure in saying they’ve made a full disclosure?

MR CLAASSEN:   Thank you Mr Chair. I think that the word deviousness is a ...(intervention)

CHAIRPERSON:   I use the word deviousness because they conspired. It’s quite clear, because it would be too much of a coincidence for Magwaza to say he wasn’t there, and Sithole to say I had my own gun, and stress it, you know, I’ve always had the gun, and then the next they both change to, conspiracy is ...(intervention)

MR LAX:   Can I just add one thing to what the Chair has been saying? We have that aspect, and then how do we then deal with their explanations, all the applicants, given to us, which skirts this issue, which is implicit in the way their versions are framed, and which tends to show other things. So, the explanation wasn’t well, I was worried about this or I was worried about, it’s all about lawyers, interpreters, things not being read back to them, which, procedural things, which in the light of these, what the Chair refers to as deviousness, is a different thread.

MR CLAASSEN:   Thank you Mr Chair, I have to agree one would be naive to say that, if I may start with Mr Magwaza and Sithole, that their initial applications had been thought up or was taken and without them ever being aware of what the other was saying. Mr Chair you know I think what Mr Lax said in conclusion is, obviously the question remains, is if they had initially not taken the Committee into their trust and disclosed what had actually happened, why should they be believed today. Mr Chair, it is true, that those are sworn affidavits so it is supposed to be the truth, it is supposed to be done under oath. Mr Chair and it is difficult to offer an explanation as to why ...(intervention)

CHAIRPERSON:   That then brings in a third version, as well, under oath.

MR CLAASSEN:   That is indeed true Mr Chair and I mean, and my submission is that the last question which obviously stands to be answered is, are they to be believed in what they, in their viva voce evidence before this Commission. Mr Chair it is true that the impression might be created that because of these, on several occasions all the questions specifically directed to why were these initial applications not done correctly and why does it differ from the later applications. And as the evidence is clear before Court, I must say I myself was involved in taking some of these applications, and I cannot distantiate myself, I was never, I never testified under oath about this but the fact that we, I don’t speak Zulu, I was given a version which I had written down, believing it to be the truth, that is what I have been told. Obviously ...(intervention)

CHAIRPERSON:   We’re certainly not casting any aspersions towards you Mr Claassen I can assure you.

MR CLAASSEN:   Thank you Mr Chair, I can believe that, it’s just, I know this might sound, might sound like a little, like too little too late, but it did, it really happened and it was a genuine recurrence I think that, as far as I’m concerned with the latter three applicants’ applications, and I was never involved in taking the applications for Mr Mbatha and Sithole, that be it the reason that they explained, they had an application for appeal pending and that might have influenced, which is once again a technicality which still doesn’t answer the question why ...(intervention)

CHAIRPERSON:   That’s a double-edged sword, because then they said okay let’s lie because we might save our skins, because we don’t want to upset our appeal. Okay now that’s their last chance they’ve had to save their skins in the judicial process, now they’ve got another chance to save their skins, why not give it a full go again? That sort of thing. It’s a double-edged sword that we lied because we didn’t want to affect the prospects of success of our appeal, or leave to appeal.

MR CLAASSEN:   I think that absolutely summarises what I intended. I mean, when the judicial system failed them or could not accommodate them further, then decided that now let’s tell all and hopefully we’ll have mor success with the Amnesty Committee.

Mr Chair, and it would be, it would be my submission that be that as it may, and I mean it’s not to be contested that they did lie, they did conspire, I believe they, and I think it was viva voce evidence on questions, the answer to several questions, they said that, we did lie, we had not been truthful, but today, today we are truthful and what we telling today are in fact the truth.

Mr Chair I can do no more than ask of this Committee to accept the position that they were in, insofar as their explanation for the technical shortcomings may be, there was no explanation offered for the fact that they admitted to lying and then saying that they, that they told the truth today. But it would be my humble submission that what they came and testified before this Commission was indeed the truth of what actually occurred this day.

CHAIRPERSON:   Just on a different aspect, Mr Claassen, quite clearly all the applicants were convicted of all the counts on the basis of common purpose. Now, we know that their, the factions that opposed each other were political, they were split on political lines, and that the whole incident was, in that sense, had an underlying political basis. But what about the death of that unknown person next to Skosana’s shebeen? Now we heard on the evidence of the applicants that they said, okay let’s go to see who’s at Skosana’s shebeen, you know, so they go there, it’s not at the scene of the battlefield, out comes a fellow carrying a briefcase, and they don’t know him, they set upon him and kill him. It turns out that no-one knows what his political affiliation is, he certainly wasn’t there fighting for the ANC. In that particular case is there going to be said that there was a political objective, as required by the Act in terms of Section 20 sub section 3?

MR CLAASSEN:   Thank you Mr Chair for pointing that out, and I mean it was quite clear from the evidence by Mr Ndlovu and also on the question, he was not sure who this person were, whether he had any political affiliation. He went further and said that they were angry and they set upon him and assaulted him, and he died as a result of that.

Mr Chair if I might just, I’ve got the note here, it says, I think it was by question from Advocate Sigodi, Mr Ndlovu said it was Zwane, himself, Noymiya and Kitchamane, which is none of the other applicants but once again the doctrine of common purpose applies. Mr Chair it’s my humble submission that the question remains, where did the common purpose start and where did it end? I think Mr Ndlovu also said that, after the initial attack had been repelled him and, himself and the other fellows mentioned, started running back towards the shebeen. ...(intervention)

CHAIRPERSON:   There was a call to retreat, I mean to come back, I think.

MR CLAASSEN:   That is correct. I think they said a voice said not to pursue them any further. But I think as far as this going to the shebeen and attacking this person that came out the shebeen, it would be my submission that I don’t think that at that stage, seeing that they had been recalled, I think, and by his own account, not all of them fell back to the shebeen, I think there was, I think that the evidence of some of the others is that they waited, because they feared they might come back. It is my submission, and I’m, that was at that stage not ...(intervention)

CHAIRPERSON:   But if it wasn’t part of the common purpose, and therefore your client’s been incorrectly convicted, then he can’t get amnesty on it, because he’s got nothing, it’s only through common purpose that he has a link to that death. You take away that common purpose and say no he’s got nothing to do with it, then he can’t get amnesty for something he didn’t do, therefore he must go through the

ADV SIGODI:   He must go through the High Court, and appeal.

CHAIRPERSON:   Which he can’t because the appeals process is finished.

MR CLAASSEN:   Mr Chair I stand to be corrected but I think it was the State v Safatsa where this issue was dealt with and in very much the same circumstances, and it is true that they were all convicted on the basis of a common purpose and as such the application was drawn through on that basis. It obviously, I think on Mr Ndlovu’s own account, it can’t be reasoned past the point that he said he did not know who this man was, he was angry, he was confused, it was in this very vicious frame of mind that they attacked this person.

CHAIRPERSON:   What you’re saying is that that particular deceased person was just an unfortunate innocent victim caught up in this battle, or this prevailing frenzy?

MR CLAASSEN:   Mr Chair I can’t think of explaining it in any other way, other than the whole atmosphere was so politicised, and I think he was just a very unfortunate victim of that political turmoil and the incident which had happened as a result.

CHAIRPERSON:   Caught in the crossfire I think it’s been referred to. Although he was specifically targeted.

MR CLAASSEN:   That is true, Mr Chairman, but Mr Chairman ...(intervention)

ADV SIGODI:   And can you also agree with me that they had absolutely no reason to link him with the other ANC people? They could see that he was coming out of the shebeen.

MR CLAASSEN:   Mr Chair, if I’m not mistaken, I think, and I stand to be corrected, the version was he was coming out of Skosana’s shebeen, and I think on a question by Mr Draht just recently I think he specifically put it to Mr Dastile whether Skosana was, I think Mike was the first name, ...(intervention)

CHAIRPERSON:   He was an ANC member. We know that from Mr Dastile’s evidence. He said he wasn’t a leader, but he was a member of the ANC. But we also know that the ANC and IFP also drank together, wasn’t split.

MR LAX:   It’s certainly not your client’s case that there were segregated pubs or taverns or shebeens. You see the other issue is that Skosana’s is away from where the battle was taking place. Quite some distance away apparently, so it wasn’t on their direct route chasing anybody or following anybody, or even retreating back. And that’s what concerns me.

MR CLAASSEN:   Thank you Mr Lax. That is very true. I wouldn’t want to speculate as to why this decision was made. I think the question was put directly to Mr Ndlovu and he just said it was in that frame of mind. Obviously now later it transpired that Mr Ndlovu had been an ANC but it was never offered as a reason why this person was attacked, and on the basis of the logistics, and how things was explained, I believe Mr Skosana’s wasn’t on the route, the general attack route, if one ...(intervention)

CHAIRPERSON:   It’s quite clear from the evidence that he was attacked basically in a frenzy. He said maybe the reason why he was attacked was because he tried to run. That’s hardly a reason to attack somebody. If he had stood still maybe it would have turned out different he said.

MR CACHALIA:   May I interrupt and interject at this stage Chairperson? I’m sorry but I interject at this stage. I’m asking that in order not to create any further problems may we have three minutes only convenience break. It is very essential that I have a break.

CHAIRPERSON:   We’ve had a request for an absolutely essential three minutes adjournment which I shall grant. We’ll just take a short adjournment

MR CLAASSEN IN ARGUMENT:   (Cont)

Just resuming at the question being put about the common purpose of the perpetrators, and having a quick look they were indeed convicted on the basis of a common purpose, but, and one can’t get past the fact that the amnesty as such is also linked to their conviction on these mentioned crimes.

It would be my submission though that looking at their behaviour on that specific day, and especially Mr Ndlovu’s, the fact that he acted with other people, with people other than the applicants, it was decided by the Supreme Court that that still constituted the common purpose in killing this alleged innocent bystander, which complicates matters for some of the other applicants.

But Mr Chair it would be my submission that, all taken into account, with the problems as mentioned by the Committee regarding these initial applications, and the fact that there seems to be a bit of a problem surrounding that, it would be my submission that the evidence given before this Commission should be accepted as truthful. There were obvious inconsistencies, there were, I think on both sides, but I believe that these applicants are bona fide applicants and that the incident as such was a direct consequence of political instability at the time.

And just getting to the question of full disclosure, I believe that they were truthful in what they said before this Commission, they were thoroughly tested by Mr Cachalia on their versions, and surely it is to be expected, where an incident of this huge scale occurred, that they will not corroborate each other word for word and sentence for sentence.

But I think as Advocate Sigodi mentioned the crux of the issue comes down to who actually attacked who and who retaliated as such, and it’s my submission that on the basis of the applicants it was, it was obvious that the fight was unavoidable, there was going to be a fight. And what resulted was, I think, to blame on both sides. The evidence is that several attempts were made to try and resolve this issue. There were tempers, there were a bit of a preceding history between the two parties, and this, all of this led to what eventually occurred.

And Mr Chair if I may just, in conclusion, it is my submission that on their applications, to which they testified, the applicants does qualify, or they do qualify, for amnesty as set down should they be found to have fully disclosed all that happened, and as such being my submission that they did, be granted amnesty.

If there’s anything else that the Commission would like to hear now?

CHAIRPERSON:   Thank you, thank you Mr Claassen. Mr Draht.

MR DRAHT IN ARGUMENT:   Chairperson, I would like to deal with the applicants’ applications under two headings, namely political objective, and B, full disclosure.

Political objective firstly. Mr Dastile during his evidence himself conceded to the following. That a large armed group of ANC members gathered at the ANC offices. Secondly, the incident where IFP people shouted derogative slogans and sang ANC unfriendly songs. The main incident then where two armed large groups of opposing political parties, clashed.

The applicants who I represent gave the following evidence before this Committee in regard to the political objective.

Mr Alfred Ndlovu. It is clear from his evidence that he associated himself with each and every objective of the IFP group. He believed that there was war between the two groups, and seeing that both groups were armed, and that, on that day, he decided that he will defend his fellow IFP members. From the judgment on page 103 of the bundle, it also transpires that Skosana’s shebeen is one of the places where the ANC members gathered on that day. Mr Dastile also gave evidence that the shebeen belonged to an ANC member. The IFP group ...(intervention)

CHAIRPERSON:   No it’s Skosana’s. He’s referring to page, you say it’s page 103?

MR DRAHT:   That’s correct.

CHAIRPERSON:   Moloetsi’s or Skosana’s, which?

MR DRAHT:   Chairperson I’m referring to Skosana’s ...(intervention)

CHAIRPERSON:   Oh that’s at the bottom, very last line?

MR DRAHT:   That’s right.

CHAIRPERSON:   

MR LAX:   Sorry Mr Draht, I agree with the Brown’s house story. But we understood from the evidence before us from some of the applicants, that Skosana’s shebeen is further away than that. But, you know, this is what was said in Court. I’m just saying what’s been said before us. The two weren’t linked in the same way as it appears here. Certainly in my recollection of evidence testified to so far. I don’t think a great deal turns on it personally, but I’m happy for you to carry on, I just thought ...

MR DRAHT:   Thank you Mr Chairperson. A part of the IFP group then returned to the shebeen. It’s clearly that they wanted to look for ANC members, otherwise they wouldn’t have returned. They saw two people. The one person was then beaten to death. It’s my submission that it is clear that although Mr Ndlovu only followed this group, he also were under the impression that it is an ANC member. He didn’t testify that in his evidence, that he knew it was an ANC members, but in following, still following that IFP group, it must have been. Well Mr Ndlovu was found guilty on the ground of common purpose, and the IFP group had a common purpose to kill this person. Mr Ndlovu associated himself with their objectives.

CHAIRPERSON:   No, I think he did a little bit more. He certainly did, because he also participated actually in the assault on the deceased person, so he was really a co-perpetrator there. No, more than just a person who associated himself with that particular killing. Because he was part of the group. Although he might have, if the first person in that group started attacking somebody else, probably the chap with the briefcase wouldn’t have been attacked. So in a sense he followed the group, but he was certainly a co-perpetrator in the death of that deceased. On his own admission.

MR DRAHT:   Yes, Mr Chairperson, he did took part in the actual assaulting of the person, but it’s my submission that that was still while associating himself with that group.

CHAIRPERSON:   Yes, he did it as being part of the group.

MR DRAHT:   That’s right. In respect of Mr Elias Mbatha. Mr Elias Mbatha also associated himself with the IFP group and the objective, and he was also found guilty on the basis of common purpose. It’s my submission that the same applies to him.

About Mr Mpongosi, save to what I already mentioned in respect of Mr Ndlovu and Mr Mbatha, in Mr Mpongosi’s case I can also add that he was clearly not a pacifist when it came to living out his political ideologies. There was tension that day and every one of them knew that there is going to be a fight. It can further also be stated that the individuals couldn’t clearly have acted in their own interest.

CHAIRPERSON:   Yes I don’t think there’s any suggestion from any side that there’s, that the applicants participated in the attack for person gain or interest, etc. It was part of a group, I mean, that’s quite clear. They all acted as part of the IFP group.

MR DRAHT:   Thank you Chairperson. The heading full disclosure then. It is clear that the level of education of the applicants are not very high, that they are not sophisticated people.

CHAIRPERSON:   Yes but sometimes the lack of education does not in any way affect the lack of intelligence. A person might be uneducated by highly intelligent. I think there’s many many people who are uneducated that are more intelligent than any of us in this room here, they just haven’t been given the opportunity. But I take your point. We understand that they’re uneducated in the sense that they might not be able to read or write, they’re not literate, but it doesn’t affect their intelligence at all, they might be highly intelligent.

MR DRAHT:   That’s correct Chairperson indeed. Statements were not completed by the applicants themselves, but by their legal representative. Statements were also not always read back carefully. The writer of the statements couldn’t speak Zulu and the words used is almost the same in each statement. It’s clear that the statements were taken in haste and that there was no due consideration to the persons, by the persons taking the statements, to the specific wording used. These persons can hardly write their own names, and it’s my submission that it would be extremely unfair to judge the acceptability of their application on the basis of the specific use of words being used or not used.

CHAIRPERSON:   What about the? I hear what you say on that point, and also, they did describe to us the circumstances in which the statements were taken. They were taken more than one at a time, in the prison, there was a bit of a rush going on, etc. But what about the omission of certain facts that one would think should not have been omitted. Like I had a firearm. Not only did I have a firearm I shot it. Not only did I shoot with my firearm, I pointed it at the opposing side and shot at them. None of that comes in. Why would that sort of thing be left out by accident? I mean even if you were in a hurry and writing, it would be quite an important feature of the narration, unless, particularly to get amnesty with regard to making a full disclosure. Unless the view of the person giving the version is that, I’ll play my role down as little as, as much as possible. I don’t want to stick my neck out and admit in public that I shot, at that stage. Then you change your mind later when it gets closer to the day and they have further consultations, etc.

MR LAX:   Especially where they’ve been, some of them, directly implicated in shooting.

CHAIRPERSON:   It was only Mr Sithole who admitted on the application forms that he actually shot. The others didn’t even make reference to having a firearm.

MR DRAHT:   Sorry Mr Chairperson. The feeling I get is when the statements were completed by the legal representative, it was only completed to submit the statement to the Amnesty Commission, and I don’t think it’s that the applicants would have left so much detail out. I think that the legal representative taking those statements didn’t enquire as to the full detail, and there wasn’t any evidence led to that, but that is my submission and the feeling that I’ve got from going through the statements. There’s a lot of other detail also omitted. The statements weren't, in fact, written in much detail.

MR LAX:   That’s precisely the point though. The point is, the evidence of some of them was that it was explained to them they had to tell the truth. It was explained to them that this was their opportunity to apply for amnesty. There was even a senior IFP person there in the form of Msizi. And yet there is such a clear reticence to say anything about the facts of, around the matters which they were convicted for. It seems almost like they’re just deliberately avoiding saying anything about it.

MR DRAHT:   Chairperson I can also maybe mention that it seems as if the legal representatives came upon them, it wasn’t that they wanted, they had this knowledge of applying for amnesty and filling in in detail, the legal representatives, it seems as if they went to them and they were only asked to fill in forms. I don’t think that at that stage they fully understood that they must, in detail, tell the whole truth in the statements. And maybe they did tell the truth but it wasn’t written properly in the statements.

MR LAX:   You know we can speculate here until the cows come home. What we have is their evidence on this point, and the fact that the probabilities of that create a problem. Why would lawyers not tell their clients their rights?

MR DRAHT:   Chairperson I don’t say lawyers will not tell clients their rights.

MR LAX:   Or the requirements of the Act. Here they are, coming to fill out application forms for amnesty, with their clients. Doesn’t it strike you as odd that a lawyer wouldn’t tell his client what the purpose of this thing is, and what’s required in terms of the Act? You know if they were unassisted by lawyers, as many, many other were, and as in fact they probably were in relation to their first application forms which for some reason have gone astray, one would understand that. But these were people who were assisted by lawyers and political party representative. If you see my point.

CHAIRPERSON:   And then Sithole, for instance, gives quite a full version, although the first one he changed, but he gave a full story about taking his gun and trying to get down to the river and coming back and having to shoot, etc. etc. Same lawyer is involved.

MR DRAHT:   Chairperson I don’t think that the lawyers didn’t explain to them. Maybe they just, well, didn’t, as you say we can speculate on that. But none of them, in full detail, completed it, and maybe that can also be an indication that, it isn’t that they didn’t tell the truth, it’s just that they didn’t tell it in detail.

CHAIRPERSON:   It’s quite common that we get, what we hear, in this sort of situation is, oh well, I left it to do later because I knew I was going to come and give evidence and that is when I would tell my full story.

MR DRAHT:   Thank you, Chairperson.

It’s my submission that the applicants who are serving quite a long period in gaol would not lie just for the cause of it. It became clear throughout their evidence that there is no names or acts that they could have hidden, or that there was any reason for them to hide any instructions given to them from any higher political figure. They would have gained nothing in telling lies to this Committee.

One must bear in mind that the incident took place more than five years ago, and people’s perceptions of a traumatic incident that happened to them are not the same. It’s therefore obvious that discrepancies in the way of experience in the incidents relating to this day may differ from one another. Even the statements, this is during the evidence in trial, differed from each other, even ‘though the Court case took place barely two years after the incident. The applicants’ knowledge that they have lied here in the trial, the applicants acknowledge that they have lied during their trial, and that at this hearing they gave explicit evidence of their acts in this regard.

It’s also clear from Mr Dastile’s evidence that the ANC group has been armed, and that they were a much bigger group than the IFP supporters. I submit that there would be no reason for the Committee not to find that the applicants didn’t or did disclose the full facts.

I hereby request the Amnesty Committee to grant the applicants amnesty in the light that they meet all the requirements of the Act.

CHAIRPERSON:   Thank you Mr Draht. Is that it, you’re finished?

MR DRAHT:   Thank you.

CHAIRPERSON:   Mr Cachalia?

MR CACHALIA:   Chairperson I thought Ms Lockhat wanted to address you firstly.

CHAIRPERSON:   Alright, Ms Lockhat, do you have any submissions.

MS LOCKHAT:   Just give me one second Chair.

MR CACHALIA IN ARGUMENT:   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.

MR 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?

MR 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.

MR 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?

MR 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.

MR 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.

MR 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)

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.

MR 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?

MR 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.

MR 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.

MR 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.

INTERPRETER:   The speaker’s mike.

MR CACHALIA:   I think that particular matter just to, to round off that particular matter, Advocate Sigodi had asked how they identified what member he was and so on, it was dealt with in some detail.

I think that insofar as Mr Mbatha’s case was concerned. Sorry. Not only Mr Mbatha’s case, the cases of the other parties, I have put it on more than one occasion and I have not been given an answer, when they say that they attempted to avoid the conflict and ran away towards the river, those that said so, inevitably all came back and formed part of the group that were found guilty. When it was put to them that they had other options and alternatives available, not one has given a satisfactory answer. What I am saying is that they have not been honest to the Committee in making the allegation ...(intervention)

CHAIRPERSON:   If there was this overwhelming, if they had an overwhelming desire to flee, they could have run away.

MR CACHALIA:   That’s precisely what I’m saying. If the applicants had come here and said that, you know, we sat down, which are the probabilities, we sat down and we thought that this ANC is becoming too prescriptive and deciding all things and they don’t want this Committee to act, and we decided we’re going to teach them a lesson, we have a meeting with them, we’re going to today put them in their place, arm yourselves and we’ll confront them in a violent manner. Which is probably what in fact happened. That they had come prepared and it is quite clear from everything that we have heard here that they’ve, they have armed themselves, they have borne arms, they prepared themselves on that particular day, they came to the ground, they were armed, and they shot at the people and killed the ANC people and injured them. It was a preconceived idea and the probabilities are that they made that particular decision.

And if they were honest to this Committee and they came with that particular approach that this is what we have decided, and we carried out, and we regret what we did, it was wrong to do, having regard to sir I am saying that I would have had no case to oppose their application. They in fact even today are trying to mislead and pull the wool over the eyes of the Committee in regard to what happened and they have not, they have not complied with the position of full and honest disclosures. I am saying the probabilities are very clear, I don’t need to go into the details of he discrepancies and the probability, I’m saying that this is, sorry my apologies. Thank you sir.

I am saying finally that in relation to the accused, sorry the applicants, the questions put at the end of both the evidence of the last two applicants by both, by Advocate Sigodi and Mr Lax, in fact brought out the improbabilities of their case and I don’t wish to just repeat it you are have it on record, I am saying that in fact the improbabilities are so severe that there is in fact no full disclosure. What I am saying ...(intervention)

ADV SIGODI:   Mr Cachalia, sorry. Just on that point, if you are saying that the IFP had preconceived this idea that they are going to attack, or if they were to say that, you know that would be backed by what Mr Dastile said, that they had heard them having a meeting saying that they were going to get rid of the Xhosas, Pondos and Batas, but then the problem that I’m having with that is that you never put it to any of the applicants, that there was this prior meeting where the IFP was shouting slogans and saying that they’re going to get rid of the Xhosas. That’s the problem that I’m having because you never put it to the applicants.

MR CACHALIA:   What I am saying, Advocate, is that, and I was pleased to hear that Mr Claassen elevated you to the bench, but be that as it may, what I am saying Advocate Sigodi is that that particular meeting was not considered to be sufficiently important by the late Mr Dastile, the chairperson, he says they normally do that. It is not something that we need to concern ourselves with. So I’m not relying on that.

What I am relying on, what I’m saying is not that particular meeting was the, I am saying that if, it was for them to say, without me putting it to them, to say that at the particular meeting in the morning or five days previously or when we bought the guns, at some point in time, we, and the probabilities are that that is in fact the position, that some point in time, because they started buying guns, at some point in time they had decided that they must at best for the ANC teach them a lesson, at worst for them, kill them off to make an absolute state, but I’m saying that’s the kind of thing that one would have anticipated that they would come with here and say, you know, we sat down, because everything in the evidence indicates that they had prepared themselves to come and shoot as the Chairperson has said. They would not have armed themselves if they did not intend to use it. They came there, they intended to use it, but they have never said when they used the arms, for Mr ...(intervention)

MR LAX:   Mr Cachalia, sorry. You’re saying the same thing over and over again. The point that Advocate Sigodi is putting to you, and it’s a point I made to you at the end of your first bit of cross-examination. This is a material probability that you’re putting to us in argument. You didn’t put it to a single witness. That’s what she’s saying to you, and I alerted you to this problem that if you don’t put a version you’re going to have problems later. I don’t know what problems you may or may not have had in how you conducted your case, that’s none of my business, all I’m saying is we’re now left with a story where a material probability you’re seeking to rely on, which you’re asking us to draw a conclusion about, or an inference at best, was not put to the applicants. How can we then draw such an inference other than on a purely speculative basis?

MR CACHALIA:   The material probability that I am relying on is not dependent on the singing of slogans and chanting the ...(indistinct) that’s the first point. The second point that I am making is it is not encumbent on the victims and the opposition to the applicants who represent them to put to them, it is for them to say that we had made the decision. It’s not for me to say we are going to say, and then they think that that’s a good idea and say yes. It’s not for me to make a case for them.

ADV SIGODI:   The thing is, if you had put it to them, they would have been given an opportunity either to admit or deny that allegation. Now they have not been given that opportunity so we cannot use that material probability, or we are in a difficult position to back that up.

CHAIRPERSON:   But this question of who, who was the attacker, who, does that have any impact on whether or not the acts were done in furtherance of a political objective? Let’s just suppose, just for purposes of argument, no other reason, that the ANC group were the aggressors, the attackers, and you ended up with the same result. Would it make any difference to whether or not there was a political objective? Could we then say, no, there wasn’t a political objective, or yes, there was a political objective because they were defending an attack. If it is found that the IFP were in fact the aggressors and started the shooting, can we then say, no, it wasn’t a political objective? Does it make, is it relevant to political objective or is it only relevant to full disclosure?

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.

MR 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.

MR 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.

MR 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.

MR 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.

MR 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.

MR 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.

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.

MR 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 IN ARGUMENT:   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.

MR CACHALIA:   ...(inaudible)

CHAIRPERSON:   Yes.

MR 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?

MR 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.

MR 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.

MR 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.

CHAIRPERSON:   Mr Draht?

MR DRAHT:   No reply Chairperson.

CHAIRPERSON:   Thank you.

That then brings this hearing to a conclusion, and also it brings our roll to an end. We have no further hearings here. We will reserve our decision in this matter and will endeavour to get out a decision as soon as possible. We’ll have to go and consider the evidence and the arguments that we’ve heard, and after our deliberations we’ll make a decision which will be published in the usual way.

Before adjourning I’d just like to thank everybody for making this hearing possible. I’d like to thank the Municipality for making this very convenient and nice venue available to us for this hearing. The sound technicians who provide us with the sound system which is critical to the success of these hearings. The interpreters who all day long try to keep up with the fast talking that’s going on, thank you very much indeed. To Ashley, the logistics officer, for setting it all up and ensuring the smooth running of these hearings which have gone very well. Our secretary Sonya. Sound technicians. The catering people who fed us teas and lunches. Correctional Services for bringing the applicants. We believe the first day there was a bit of a problem because they were on some sort of task team on a manoeuvre or whatever, but for coming timeously thank you very much. And for the members of the police service for providing us with security here, thank you very much. And if I’ve omitted - and I include thanking the legal representatives for their assistance, everybody, thank you very much. If I’ve omitted anybody, I haven’t done so on purpose. Thank you, and it’s been very nice to be here in Boksburg. Thank you.