--------------------------------------------------------------------------CHAIRPERSON:   Good morning everybody. Today we’ll be commencing the hearing relating to the so called Zevenfontein incident. Before we start I’d just like to introduce the panel to those of you who were not here yesterday.

On my right is Advocate Sibongile Sigodi, she is a member of the Amnesty Committee and she comes from Port Elizabeth. On my left is Mr Ilan Lax, he is an attorney, also a member of the Amnesty Committee, and he comes from Pietermaritzburg. And I am Selwyn Miller, I am a Judge of the High Court in the Eastern Cape, particularly from Umtata.

The proceedings will be simultaneously translated into English, Zulu and Sotho. In order to benefit from the translation you must be in possession of one of these devices. If you haven’t got one and you want to use the interpretation, I suggest that you ask the sound technician up front, and you can get one of these from him. If you want to hear English then you turn to channel number 2, it’s on here, you can see the number. If you want Zulu, channel number 3, and if you want Sotho, channel number 4.

I’d just like to ask the legal representatives please to place themselves on record.

MR DRAHT:   Morning Mr Chairperson, I’m Heiko Draht from Nel Kotze and van Dyk, attorneys in Pretoria, assisted by Mr Chris van der Heyde from JH van der Merwe attorneys.

CHAIRPERSON:   Thank you Mr Draht. Mr Claassen.

MR CLAASSEN:   Thank you Mr Chairman. My name is Dawie Claassen. I’ll be representing Mr Magwaza and Sithole and today’s applications.

CHAIRPERSON:   Thank you. Mr Cachalia.

MR CACHALIA:   My name is Cachalia, spelt C A C H A L I A, initials MSH, of the firm NG Patel, Cachalia and Loonat of Johannesburg, on behalf of all the victims that have been notified of this particular application.

CHAIRPERSON:   Thank you Mr Cachalia.

MS LOCKHAT:   My name is Ms Lynn Lockhat, I appear on behalf of the Commission.

CHAIRPERSON:   Thank you Ms Lockhat. Mr Claassen, you have some submissions to make?

MR CLAASSEN ADDRESSES COMMITTEE:   Thank you Mr Chairman, I do indeed. I think today is to a great extent a repetition of the situation we had yesterday with Mr Mbatha. There is, however, in my opinion a few differences in who this application came to be forwarded, came to be before this Committee. Mr Chair if I could just ask the Committee to indulge me for a few minutes, I don’t want to seem to be flogging a dead horse, but I’m sure that the situation is slightly different to the one we had yesterday.

CHAIRPERSON:   Yes, certainly Mr Claassen.

MR CLAASSEN:   Thank you Mr Chair. If I might, I’ve prepared some photocopies of correspondence we had with the TRC preceding today’s application, if I could just. I’ve already supplied Ms Lockhat and Mr Cachalia with a copy, if I could just bring this to the attention of the Committee.

CHAIRPERSON:   Yes, sorry, just before we proceed. I believe it’s going to get quite warm today. If you wish to remove jackets, please feel free to do so.

MR CLAASSEN:   Thank you Mr Chairman. It’s not been paginated, I hope, but it’s only a few pages, I’m sure it’s.

CHAIRPERSON:   I think Mr Claassen, just for record purposes, we’ll receive this bundle as EXHIBIT A, and then the letter dated the 17th of September 1997 that’ll be A1 and the next document, this fax, will be A2 fax from Hoskin, and then the letter, well we’ll, the front page of the application, we’ll call A3, the next letter dated the 2nd of November will be A4, and then the last letter, that is the letter of the 16th November 98, will be A5.

MR CLAASSEN:   Thank you. Mr Chairman if I might just start referring to the bundle, and specifically Mr Magwaza’s application. I think in the bundle, specifically on page 49, it is shown that Mr Magwaza on the 7th of May 1997 submitted an application to the TRC which was received and then given a submission number 6447/97. Mr Chair I would also refer to this then as the application, the applicant’s first application. And if one notes the contents of the application, to a great extent the applicant denies any guilt or involvement in the incident for which the applicants are before this Committee today. Mr Chair, based on this particular application, he was also then ...(intervention)

CHAIRPERSON:   It was received on the 7th of May 97.

MR CLAASSEN:   Mr Chairman and if I may refer the Committee to page 47 of the bundle, the 8th of September 1997 he was, a decision was made based on this particular application, in which amnesty was denied on the basis that guilt in the application was denied by the applicant.

Mr Chair if I might then refer to the exhibit handed out, and specifically the letter from the law firm of van der Westhuizen and Associates, dated the 17th of September 1997, which specifically refers to this decision made by, or taken by the Amnesty Committee. Mr Chair I don’t know if you would just like me to read it out? Alright. There’s just certain, there’s just specific, I’m sure the Committee will follow from the, what’s said in here it’s basically brought to the Committee’s attention that the first application appears to be not the true facts and the applicant would like to submit a further application.

Specifically referring to point 5, it appears that it was arranged that due to the facts set out there, that further particulars or further submission would be made to the Amnesty Committee, which would then be done, and specifically point 7, paragraph 7 in this letter, which it says that the Amnesty Committee is requested to hold the matters over until the, it could be classified as hearable. If I may refer to EXHIBIT A2, which is then a return from Advocate van der Merwe, sorry, it appears from the amnesty application I see it’s signed by Ms Hoskins, or Martin Coetzee, and which, it refers to the previous letter sent to them, and also just giving the reason why it was decided not to grant the applicant amnesty, and the first page of the applicant’s first application. Mr Chair I’d specifically like to refer to the last paragraph, and if I may, where it is requested

And the new fax number is given. Mr Chair if I may continue, based on this, if I go to A4 of the bundle, and it is said here that apparently Ms van der Westhuizen’s firm has been informed that the matter was classified as hearable, and just that they have not received any further correspondence and would like the matter to be taken further.

Mr Chair, A5 of the bundle I think that is basically on which this whole, my whole argument, ...(intervention)

CHAIRPERSON:   Sorry Mr Claassen, Advocate van der Merwe, where does he fit into the picture? I see this A2 it’s addressed to Advocate van der Merwe with a copy to Colleen Henchie. I see from the correspondence Colleen Henchie is, she’s attached to the firm of attorneys who had dealings with your client.

MR CLAASSEN:   That is correct Mr Chair.

CHAIRPERSON:   Was advocate van der Merwe, was he involved in the trial, or where does he fit into the picture?

MR CLAASSEN:   Mr Chair, to be quite honest, I’m not really sure how he fits in. I was under the impression, and I’ve got no specific instructions concerning this, that he was just a member of the TRC dealing with the applications. Now I see from what is said in this letter, obviously it appears that he has got some prior knowledge of what has been going on. But as far as I know he’s employed by the TRC.

CHAIRPERSON:   Mr Claassen this fax is addressed to van der Merwe, from the Amnesty Committee. If you can see its to van der Merwe from Martin Coetzee, whose the executive secretary of the Amnesty Committee. Clearly van der Merwe had some dealings with the matter, either via Colleen Henchie, of some description, or ...(intervention)

MR LAX:   Sorry, Miss Lockhat, is there an advocate van der Merwe employed by the TRC? I am unaware of it, but I don’t know everybody.

MS LOCKHAT:   No, definitely not Chairperson.

MR CLAASSEN:   I’m sorry Mr Chair, it appears to be my mistake, indeed as Mr Lax pointed out it appears that it was sent to Mr van der Merwe by Mr Coetzee from the TRC. Now what preceded this, or what led to this fax being sent, unfortunately this is as far as my, from the file, I can ascertain ...(intervention)

CHAIRPERSON:   It would seem that the designation advocate might be a mistake, because the fax starts,

Which is this letter from van der Westhuizen. Is there, well there’s no van der Merwe in van der Westhuizen and Associates, is there?

MR CLAASSEN:   Not that I’m aware of.

CHAIRPERSON:   Well in any event ...(indistinct)

MR CLAASSEN:   Thank you Mr Chair. So it appears that there have been some dealings trying to get past this problem, or the fact that the first application, as I referred to, have been turned down.

Mr Chair if I might just get to page or A5 of the bundle, this is now sent from, I see it’s signed by Ms Hoskins of the, and its from the TRC to Ms van der Westhuizen’s firm. I think from the first paragraph it’s very clear, I think we, this is what the, the conclusion the Committee also came to yesterday. But there is an interesting, just maybe to be noted, that the amnesty application referred to is the one, the 6447/97 which, in the bundle, is indeed the applicant’s first application. And this application is deemed functus officio and as the Committee rightly pointed out yesterday in Mr Mbatha’s instance, it could be taken on review. The letter continues saying that, however, another application was submitted on the 30th of September 1997, and was registered under the registration umber 6003/97. And if may, Mr Chair, at page 58 of the bundle, this appears to be the second application of the applicant. And if I might, just the next sentence, it is stated here that this file is regarded as hearable and should be supplemented before the hearing. It follows, saying that the matter has not been scheduled for hearing, and we have no trace, have to trace all co-perpetrators before setting this matter down in addition to conducting a proper investigation into this matter. And it just says if you are available, able to assist us they would like to be informed.

Mr Chair, what I’d like to get at, especially in view of the question that they conclude this letter with, that further investigations need to be done, and all co-perpetrators need to be found. I think the fact that this matter is in the bundle which is before this Committee today, it is my humble submission that this per se is maybe sufficient proof that the matter has, on the face value, has been investigated, and it appears that, from the second application, it translates or relates directly to the incident the other applicants are before this Committee today. Mr Chair I believe this obviously leaves us with the question, the Committee with the question still, that it appears that a decision had been taken on a certain application, and a second application had been submitted. Mr Chair one can’t get past, as you clearly pointed out yesterday, the provisions of Section 5(e) of this particular Act, but if I may, in the Act, refer to Section 19 and the powers of the Committee. Mr Chair I think specifically my line of reasoning would be provided this second application is considered to be further particulars or an application supplementing the first one, that the Committee shall investigate, and specifically point 2 of section 19, Section 2,

Mr Chair I think that that might just be the situation that we are sitting with today. Surely there might be a dilemma in the question was a decision taken and why was the second affidavit or the second application allowed to be entertained. Mr Chair if I might just conclude by saying that it is my submission that, in view of the fact that the Amnesty Committee has, or the TRC has, up to this stage, indicated that apparently the second one is a hearable matter, and deemed it to be, I presume, different enough from the first one, that I would respectfully request this Committee to hear this matter and at least give Mr Magwaza the benefit of the doubt, and in that this matter might be entertained. Thank you Mr Chair.

CHAIRPERSON:   Mr Draht do you have any submissions?

MR DRAHT:   No Mr Chairperson.

CHAIRPERSON:   Mr Cachalia do you have any submissions?

MR CACHALIA:   Chair no thank you, except to just state that I think the matter is a simple matter of being functus officio as you had decided yesterday. I say that is the only remedy that he has in the circumstances, rightly or wrongly, it appears that the second application was received after the decision was made on the 4th of September and therefore at that time it would be, the Committee was already functus officio. Thank you, sir.

CHAIRPERSON:   Ms Lockhat?

MS LOCKHAT ADDRESSES COMMITTEE:   Chairperson I agree with my learned colleague Mr Cachalia. That is indeed the position of the Commission. We are functus officio. The proviso to Section 5(e) of the Act bars the TRC from reviewing a decision of the Committee, and the facts are that the application was before the Amnesty Committee, the first application, and it was,

the decision was valid and in good faith, and the applicant has a recourse to take the matter on review and use the annexures submitted today as evidence in his review application. As far as the Commission is concerned we are functus officio.

CHAIRPERSON:   Mr Claassen any reply?

MR CLAASSEN:   Thank you Mr Chair. Maybe just a single remark to what Ms Lockhat submitted. Specifically relating to the fact that it obviously cannot be denied that an application had been, was dealt with, and then only the second application was sent to the TRC. Mr Chair, just once again based on the correspondence, I think maybe, I wouldn’t say the impression was created, but I think the application sent to the TRC was quite clear that something further, a further application, might follow, and which might have prompted the TRC to say, or come to the conclusion that further evidence should be heard, or further affidavits might be accepted, and perhaps broadening this initial application, but that would be it from me. Thank you Mr Chair.

CHAIRPERSON:   Thank you. Mr Claassen has made submissions relating to a decision which was taken by the Amnesty Committee on the 4th of September 1997, in terms of which the application of Mr Patumusi Joseph Magwaza, that is the third applicant, was refused. His application for amnesty was refused. That decision was based on an application which was submitted by Mr Magwaza dated the 2nd of May 1997, which was received by the Amnesty Committee on the 7th of May 1997. In terms of that application, Mr Magwaza denied all guilt relating to this so called Zevenfontein incident. It would therefore appear that the decision taken at that stage was justified.

Thereafter in later September, the latter part of that September 1997, correspondence was entered into between the attorneys representing Mr Magwaza and the Amnesty Committee, which led to the subsequent filing of another application by the said applicant, Mr Magwaza, which was filed at the end of September 1997, in terms of which Mr Magwaza admitted taking part in the so called Zevenfontein incident. And that second application was assigned a new registered number different from the first application. That application was then investigated and persisted with until now when it has been set down for hearing.

Mr Claassen has submitted that because of those subsequent events that have taken place and the stance taken by the Amnesty Committee, that second application should be regard as being supplementary to the first application, and that the hearing should be proceeded with.

The fact remains that a decision was made on the 4th of September 1997 in terms of which Mr Magwaza’s application was rejected. Section 5(e) of Act No. 34 of 1995, that is the Promotion of National Unity and Reconciliation Act, specifically provides that the Commission shall not have the authority, or power, or jurisdiction, to review decisions of the Amnesty Committee. We had a similar application at yesterday’s hearing, when I stated as well that in our view that lack of authority to review decisions of the Amnesty Committee also applies to the Amnesty Committee itself. So with regard to the decision that has already been made, the Amnesty Committee in our view if functus officio. We cannot just ignore that decision as if it didn’t exist, or if we set it aside we would be acting ultra vires. If we were to proceed with this matter, and a different conclusion was to be arrived at at the end of the hearing, we would be left the absurd situation of having two conflicting decisions relating to that particular applicant.

It would seem that the only recourse available to that applicant would be to make application to the High Court, which court would have, or does have, the jurisdiction to review decisions of the Amnesty Committee. If such a review were to take place, and if the applicant were successful in that application in that application, and I’m not suggesting that he would be or wouldn’t be, but if he were, then he would be entitled to a hearing of his application, on his second application form.

We are therefore of the view that we just do not have the authority to disregard or set aside that previous decision and that we are functus officio and we will, we are, in the circumstances, unable to proceed with the application of Mr Magwaza today, in the light of the fact that his application has already been refused.

His application, the second one, is therefore removed from the roll of this hearing, and may be set down again should there be any development relating to the, well, should the decision to refuse his earlier application be set aside.

MR CLAASSEN:   As the Commission pleases.

MS LOCKHAT:   Thank you Chairperson. Just a slight amendment to the roll. We will now commence with John Sithole, amnesty application number 5971/97.

CHAIRPERSON:   Mr Sithole’s application appears on page 8 of the bundle ...(indistinct) page 8 of my bundle. Mr Claassen.

MR CLAASSEN:   Thank you Mr Chair, I call Mr John Sithole.

CHAIRPERSON:   Mr Sithole, do you have any objection to taking the oath? You don’t have any objection?

JOHN SITHOLE:   (sworn, states).

CHAIRPERSON:   Thank you. Mr Claassen.

EXAMINATION BY MR CLAASSEN:   Thank you Mr Chair.

Mr Sithole you are today the applicant in an amnesty application before this Committee relating to an incident that occurred on the 12th of February 1994. Mr Sithole, at the time of this particular incident, were you a member, or affiliated to any political party?

MR SITHOLE:   Yes, I was a member.

MR CLAASSEN:   In what capacity?

MR SITHOLE:   I was an induna.

CHAIRPERSON:   What were you a member of?

MR SITHOLE:   I was an IFP member, Inkatha that is.

MR CLAASSEN:   Mr Sithole, you, together with your application, submitted a supplementary affidavit stating, and also in very broadly preceding incidents relating to this situation in Zevenfontein prior to what happened there, could you just, in your own words, elaborate a bit on the background in Zevenfontein. What had happened. What Zevenfontein was like before this incident occurred, and what gave rise to the conflict which was apparent in Zevenfontein at that stage.

MR SITHOLE:   We had a meeting at Zevenfontein, that we shall go and request a land, or some land, to build on, because there were people who had built towards the river, Jukskei River that is, and that was put next to the electricity or electricity wires, so to speak, and that was interfering with the settlers there. And we decided we should march, and head to Randburg, and we all agreed on this, and indeed we marched.

CHAIRPERSON:   Sorry Mr Sithole, when you say we had a meeting, and we agreed to march, are you talking about the community of Zevenfontein, all the people there, or is it just the IFP portion of that community?

MR SITHOLE:   The whole entire community.

MR CLAASSEN:   Mr Sithole could you just explain to the Committee, what was the political situation at that stage? Was it already politicised? What was the political atmosphere like in Zevenfontein at that stage?

MR SITHOLE:   We were living so well in the area.

CHAIRPERSON:   Sorry Mr Claassen to keep interrupting, but Mr Sithole, just to give us some idea, we know that the incident took place you say on the 12th of February 97. When was this meeting in relation to that date? Was it a year before, or many months before, or days, weeks before?

MR SITHOLE:   Prior to the incident. You see, I’m and illiterate man here, I wouldn’t know the particulars in relation to the dates and the information you are looking for.

CHAIRPERSON:   Yes, proceed please.

MR SITHOLE:   We all agreed that we will march to Randburg to request a piece of land. At night, prior to the day when we will march, I think it was about 3 a.m. before that particular march, we heard some noise around the squatter camps. People seemed to be marching around. As early as five I woke up, I took a shower, and at six I went to work, at TPA. I boarded a truck, I went to work. We have agreed that we won’t have any flags, or demonstration, or any attire of political organisation, but we’ll wear our ordinary clothes.

MR CLAASSEN:   Mr Sithole could you just explain to the Committee, you keep talking of we, was this a community forum of some sort? And what was your role in this forum?

MR SITHOLE:   The entire community. I am referring to the entire community when I keep saying we.

MR CLAASSEN:   And what was your role, did you, were you bearer of any specific office in this community?

MR SITHOLE:   I was an ordinary person at the time.

MR CLAASSEN:   Please continue.

MR SITHOLE:   I went to work, as I already said. As I was passing the TPA, heading towards the tar road, I saw the ANC youth wearing the ANC attire, clothing, and they greeted us, together with my colleague. We went to fetch some water and we came back with water, and I poured some water right around the squatter camp. Just before I got off from work, people who had gone to Randburg were also back, and it was after work and we had another meeting. Then the people from Randburg were giving report, and they told us that we have been promised a piece of land and they will be coming to sit with us.

And I had complaints that I wanted to air to the ANC people, with regard to the demonstration they carried on that morning, because we agreed as a group that we will not wear any political clothes, and they did exactly that themselves in the morning. And they said anyone is entitled to do what they want to do. So that was so obvious to me that they were now bringing up some division in the community, so it meant we could affiliate with our group and they could affiliate with theirs, and act according to our groups.

And we went to find out as to who was the leader of the group. We tried and located the leaders of IFP. We got hold of Khoza and Humphrey Ndlovu as well. They agreed that they would be meeting with us shortly. Indeed they came, and they came to launch, and they said we are now officially a launched IFP group, and IFP is not a group that will charge forward and fight against other people or against other groups. We shall be peacefully maintaining stability as an IFP group in the area.

MR CLAASSEN:   Mr Sithole you indicated that it was difficult for you to estimate how long before this incident this IFP, or this IFP branch, was established. Could you, more or less in terms of months or years, how long before this 12th of February 1994 was the IFP in Zevenfontein established?

MR SITHOLE:   It’s a bit difficult for me to furnish you with that kind of explanation or information, as I’m not educated. I don’t know what year, I don’t know what month, not to mention the dates.

MR CLAASSEN:   Thank you Mr Sithole, please continue.

MR SITHOLE:   Now they said that we shall not go and attack people and start on people in any way. If they do that to us, myself as induna, official induna, I should take it upon myself to go to the opposing group and sit down and discuss what had happened, and we should be always be protecting the group and defending the group, so to speak, and time went on.

MR CLAASSEN:   Mr Sithole what was your role in that IFP that’s just been established at that stage? What were your office in the IFP?

MR SITHOLE:   I was induna.

CHAIRPERSON:   Sorry to interrupt Mr Claassen. What sort of induna were you? Were you induna weSiswe, what kind of induna were you?

MR SITHOLE:   I was an induna of the IFP group that was established in the area.

CHAIRPERSON:   Were you responsible for calling the young men together? Putting together amabuto if necessary?

MR SITHOLE:   I would call amabuto.

CHAIRPERSON:   Thank you.

MR CLAASSEN:   Mr Sithole could you please continue, and just explain when this conflict started, and how it escalated to the point that this incident occurred.

MR SITHOLE:   And after we were launched and the IFP and the conflict started between ourselves and the ANC. There were now people, people were walking up from the mountains every morning and they would go to their homes. So that I also went to their chairperson to ask as to what was happening, and when I met the chairperson asking as to why they were sleeping in the mountains, and he said there is one IFP member who had come to inform them that the IFP was going to attack them. And I said, but you know that when there is something happening, or if something is said by the IFP, I usually tell you, listen something is going to happen but I’m going to stop it. I wanted to know who among the IFP wanted to attack the ANC, and I requested that they go back to their homes and stop sleeping in the mountains, and said to him if there is something that is about to happen I will come and inform you personally. Indeed, they went back to their houses.

And Randburg came to point out a place that was to be designated for the people in the area. I think five shacks were removed, and on daybreak there were many shacks on the other side that was designated by the police.

MR CLAASSEN:   Mr Sithole could you just explain this question of the shacks. Where were they to be moved from, and where to, and how was this decided?

MR SITHOLE:   It was Randburg that made the decision, saying that these people are around the river and they are not safe during floods. And they also were living under these electric pylons or poles, which were not safe.

And they were then moved and taken to a place near the grounds, and they were told to build up to that point and not cross the river. And these shacks that were removed by TPA were removed and placed at the designated spot, and they never built across the designated spot. But the following day I woke up to find that there were shacks on the area where shacks were not supposed to be built, and there was no-one from whom I could ask as to what was happening. And these IFP people also joined in building their shacks there, and they found Majola there, who said we don’t want an IFP person here.

MR CLAASSEN:   Mr Sithole, so if I understand you correctly, the people were now squatting where they were not supposed to squat, and this Mr Majola you referred to, who was he at that stage?

MR SITHOLE:   I don’t know what position he had within the ANC but he was an ANC member. And I then said to these IFP members, if they had told you not to build shacks there, do not build shacks there, and they then came back.

And after a few days the TPA police came and instructed the ANC members to move from that area and go back to the designated spot. I don’t know what happened at the time because a fight broke out. And the following day the TPA members came in the company of police and soldiers, and instructed these ANC people to go back to the designated spot and move away from the place across the river. And this fighting broke out. The soldiers demolished the shacks. And after the demolishing, the shacks were put up again at night. And the following day I was informed about a meeting that was to be convened, which meeting was convened by the ANC. Yes indeed we met. It was in the early evening after work, and when we met them they informed us that the old committee that was appointed by the community was no longer wanted. And I then asked them as to why they did not want this committee, and wanted to know who was going to represent us at the office, and they said that they were going to represent us. And I said to them, we are the IFP, who are going to represent us? And they said okay, we give you this committee, and I said to them no, you cannot just push a committee to us just like that. It is not the IFP that represented or appointed this committee. Bring the community together and explain to them that you don’t want this committee, you are now handing over this committee to the IFP. And they said it’s okay.

And we had to meet with the community again, and I suggested we would meet on a Friday, and they said they will not be available on Friday. And I said to them, if you will not be available on Friday, then you should come up with a date and convene such a meeting.

MR CLAASSEN:   Mr Sithole, if you could, could you more or less indicate was this incidents that were happening now, was this a long time before the day of the shooting, or was this now being in the close vicinity approximately of this?

MR SITHOLE:   It was before the shooting. It was long before the shooting.

MR CLAASSEN:   What happened then?

MR SITHOLE:   They then suggested that the meeting be held on Saturday, and we agreed on that day. And it so happened that on Friday, just before it was Saturday, it was on Friday around dawn, I was using this truck, filling in water in the tanks, and there came the ANC youth, who said to me that I was being called. I went to the youth and when I got there I met with a group of people who were armed with all assortment of weapons, axe, knobkerries, etc. And they ...(intervention)

MR LAX:   Sorry, sorry to interrupt. You said something that I couldn’t hear the translation of. Before knobkerries you mentioned something that I couldn’t understand what it was. What else was that? What was this group armed with?

MR SITHOLE:   They had spears, axe,

MR LAX:   What is akes, oh axe. Okay. Please continue, sorry to interrupt.

MR SITHOLE:  They then said, would you please call the IFP youth to order. Then I wanted to know what they had done, and they said these people are tearing apart our postcards, or our posters. I wanted to know where they were, and they pointed them out. I saw three boys. I then called these boys and asked them why they were tearing apart these ANC posters and they said they have never done that. And I warned them to the effect that I will call the police should I ever again hear of them as having done that. And the ANC thanked me and they then rose with their axe and spears and they started running around putting up these posters. And then I went back to work. And when I knocked off I went home to sleep.

And it so happened that at night there was a knock at the door. On waking up to ask who it was, and I recognised the voices of the IFP youth outside. There were four of them. And when I enquired as to what was happening they told me that they were being attacked by the ANC. And I then said to them, don’t go back to the houses, instead you should go down the shacks, my brother’s shack actually. And they went down there and I went back to sleep.

And there was another knock at the door and the people identified themselves as Zwane and Gcubu. And I went to the door, and enquired to Zwane as to what was happening, and they told me they could not sleep because the ANC was attacking them. And I told them, listen, I cannot wake up now from my sleep and go down to look for these ANC people, I might easily get injured. And I told them, listen, I’ve just ordered a group of youth to this shack, join them. Join them at the shack. Indeed they left.

CHAIRPERSON:   Mr Claassen I see it’s eleven o’clock. Would this be a convenient time to take a short tea adjournment?

MR CLAASSEN:   This would be convenient.

CHAIRPERSON:   Then we’ll take a short tea adjournment for approximately twenty minutes.

MR CACHALIA:   May I ask your indulgence and ask one of the victims to sit next to me so that I could discuss issues.

CHAIRPERSON:   Certainly Mr Cachalia.

MR CACHALIA:   And in addition I had indicated earlier that I appear on behalf of the victims, and I hadn’t given their names. At some stage before I cross-examine I will just put the names on record for the sake of completeness. Thank you very much.

CHAIRPERSON:   Thank you Mr Cachalia.

CHAIRPERSON:   Mr Claassen, just before the tea interval, according to my notes, when this Zwane and Gcubu came to his place during the night, he, after talking to them, referred them also to his brother’s place down the way.

MR CLAASSEN:   Thank you Mr Chair, that is as I had it. COMMITTEE ADJOURNS

JOHN M SITHOLE: (s.u.o.)

EXAMINATION BY MR CLAASSEN:   (Cont)

Mr Sithole, I would just like to ask, this evening that you’ve just described to the Committee, what happened. When was this in relation to the shooting incident.

CHAIRPERSON:   Sorry, just before you proceed with that. Mr Sithole I just remind you that you’re under your oath still.

MR SITHOLE:   Yes. It was before the incident of the shooting.

MR CLAASSEN:   Mr Sithole was it the night before?

MR SITHOLE:   Yes, the night before.

MR CLAASSEN:   Could you please continue. What happened then, after that?

MR SITHOLE:   At about 3 a.m. after they had followed the first group to the shack where I directed them to, I heard this toyi toyi outside, up until around five in the morning, since three in the morning. At six I woke up, as I was waking up, it was just before Magwaza appeared and this toyi toyi was rife at the ground, and Magwaza got to me and said, Sithole, I am going to town. I’m going to see if I can secure some busses that we will use to go to the meeting, because there was to be a meeting in KwaZulu Natal, or in Durban, where we would be meeting with chief, with the chief Mangosuthu. And I said to him, there’s something that we need to discuss here which was brought to my attention by the ANC people the previous day, and he said no, we’ll attend to that after I come back because I have to secure some busses to transport us to Durban. And indeed he left. And we continued with the meeting, and we collected some money. At about one, I suppose, it rained. It was pouring, very heavy, and we had to disperse. We went to our respective shacks. I went to my shack, and the roof of my shack was destroyed as a result of the storm.

I think it was towards, it was in the afternoon or at dusk, Zwane and Mpongosi came and approached me and said, the ANC has, is attacking us once again. I asked him, or them rather, as to where they were, and they showed me that they are towards or by the shop somewhere. I told them to go down and I’ll be following them subsequently. And I went back into the house to change the jacket since it was wet, and I was trying to clear the water from my shack since the water got in as a result of the roof being destroyed by the storm. And after changing into another dry jacket.

ADV SIGODI:   Mr Claassen could you ask him to speak a bit slowly because the simultaneous interpretation, we’re not getting everything. Thanks. Sorry, you mentioned that you took off, or you went back into the house and you were preparing yourself to go and join the others. What did you do when you got into the house? Into your shack.

MR SITHOLE:     I changed, and I put on a dry jacket. And I heard a gunshot, twice in fact. As I was going out of the shack, I saw the ANC people running towards me, and I closed the door. I closed the door, I was inside quickly because I saw the ANC people approaching. When they got to my shack they looked through the windows and they could not see a things because it was dark, and they passed. And I got out immediately and wanted to rush to my brother’s house where the other groups were, and they saw me. In fact they emerged immediately because they were around the shack. They came to me, they had in their possession spears and axe, and I tried to retreat, and I asked as to why they were killing me and I wanted to establish exactly the facts, and they did not listen or respond to what I was saying to them.

MR CLAASSEN:   Mr Sithole you just now said that you wanted to enquire why they were killing you. What exactly did they do? What happened then?

MR SITHOLE:   They came forward, they came to me, and again I shouted to say to them, wait until you tell me as to what is happening. And one of them, Justin, said, wait, let’s wait gentlemen, and let’s hear what he has to say. The stopped, and I utilised that moment to establish from them as to what was the point, and why they were behind me, and they said they don’t know. Then they said they did not know, these things happened. These are shebeen matters. ...(intervention)

MR LAX:   Sorry, sorry to interrupt you. You’re going on to some things you haven’t told us about, so we don’t understand how it fits in, about shebeens and things. Could you maybe just explain your conversation with this man, and what it had to do with shebeens and so on, so that we can understand your evidence in its proper context.

MR SITHOLE:   The word that they uttered to me in their response was that these are shebeen matters. And I wanted to enquire further as to what happened at the shebeen. They said they had no knowledge. And I said to them, please go back to the office and enquire further as to what had happened. If it, the blame, was with the IFP people, then I would collect them.

CHAIRPERSON:   Mr Sithole could you just explain. You said, they said that this was shebeen matters. Was this the reason that they gave why they attacked you?

MR SITHOLE:   Yes, that was the reason, although they later on refuted that and denied, and said in fact they did not know.

MR CLAASSEN:   You also mentioned they should go back to the office to get the proper facts. What office are you referring to?

MR SITHOLE:   I was referring to their office.

MR CLAASSEN:   Which office is this?

MR SITHOLE:   That is an ANC office.

MR CLAASSEN:   What happened then?

MR SITHOLE:   Justin said yes, what Sithole is saying is a fact. In fact we shall go and enquire from the office, and indeed they went. As they had left, I went back to change again now, the second time, and I went down to Magwaza to report to them that his had happened to me. As I was changing in the house into dry clothes, I heard some noise at the ground. And I heard another gunshot, and I fled, and I got to Magwaza’s house.

I found IFP group there, and Magwaza approached and said, Sithole here is a firearm. And I said to him Magwaza I still want us to talk. And Magwaza said, no there is no time to talk here, here the ANC is attacking. It’s time for us to put up an act here. I took the firearm. And I was adamant about the fact that we still have to talk to the ANC people before any action. I still want us to talk to the ANC people and establish as to what was the problem, and I left them immediately, and after a few steps I saw them approaching very close, and I asked them, I raised up my right arm and said, are you still on the issue, the previous issue. And they said to me, are you still saying a thing? Then I heard this gunshot. I was shot at and they stoned me at the same time.

CHAIRPERSON:   Who stoned you?

MR SITHOLE:   The ANC people.

CHAIRPERSON:   And where did the gunshot come from?

MR SITHOLE:   From the ANC group.

MR CLAASSEN:   Mr Sithole could you just carefully explain. You indicated that you wanted to talk. This was still, I believe, in Mr Magwaza’s house, where you were with some other people. Who left the house then, and what were you going to do?

MR SITHOLE:   Please repeat the last part of your question.

MR CLAASSEN:   With whom did you leave Mr Magwaza’s house and what was your intention then?

MR SITHOLE:   My intention was to go and find out from the ANC people if they were still on the previous matter what we were about before that time. And I wanted also to establish further as to why we were being attacked by them and assaulted by them.

MR CLAASSEN:   Where did you proceed to then, and at what stage did you see this ANC mob that you referred to?

MR SITHOLE:   At that point, as soon as I took the firearm from Magwaza I saw them approaching very closer now. And I met with them right on that spot and the IFP people were behind, following me. And I asked them if they were still on that matter, that issue and they started right at that moment to shoot and stone me and I also took out my firearm and I shot back.

Now there was this fight that erupted.

CHAIRPERSON:   Sorry, before you proceed Mr Sithole, what sort of firearm was it, do you know?

MR SITHOLE:   I had an AK.

CHAIRPERSON:   And can you say how many times you shot, how many rounds did you shoot?

MR SITHOLE:   No I don’t remember as to how many times I shot.

CHAIRPERSON:   Did you shoot many rounds, or just one?

MR SITHOLE:   No I did not shoot once, I think it was several times. And I fled. The person who fell on the ground then was one of them.

CHAIRPERSON:   Sorry Mr Sithole. Just before you move on Mr Claassen. You say you were handed this AK-47 by Mr Magwaza and you shot. Had you ever shot with an AK-47 before?

MR SITHOLE:   Yes, I once shot with an AK, at home, shooting at the animals.

MR CLAASSEN:   Thank you Mr Chair. Mr Sithole, just getting back here. You said you were still in Mr Magwaza’s house, just when you’d been given this weapon. Can you approximate how far this group of approaching ANC members were from Mr Magwaza’s house at that stage?

CHAIRPERSON:   If you can indicate the distance in this room, or if you need more space than that you could indicate it outside.

MR SITHOLE:   I think the distance would have been from that side, the other side of the road.

CHAIRPERSON:   The other side of the road that’s in front of the town hall. I don’t know what the legal representatives would agree at, but from where we are sitting to the door of the town hall would probably be about 25 paces, and then there’s a parking lot and another little road. Do you mean the main road, or where the cars are parking outside here?

MR SITHOLE:   Right next to the doors. The road right next to the doors. Not the main road.

CHAIRPERSON:   I don’t know, perhaps the best thing would be if the legal representatives and the witness can just pop outside quickly and get that distance. It might be important. Do you mind? Then you can agree between yourselves and estimated distance and I’m sure that we will rely on your estimation.

MS LOCKHAT:   We’ve agreed that it’s 35 paces.

MR CACHALIA:   May I just indicate Chair that what we have agreed is that from where you are to the entrance of this particular hall is approximately 35 paces. That’s where he indicates the distance the was. That from the entrance to the hall, to the end of the parking lot and the street is about 80 paces, and to the other side of the street is 100 paces.

MR CLAASSEN:   That was indeed agreed.

CHAIRPERSON:   So is he saying now that the distance that the nearest portion of this group of ANC people were to Magwaza’s house was approximately 35 paces?

MR CLAASSEN:   I believe that is what he indicated. Mr Sithole could you just explain. You state you saw these people. Where were they headed?

MR SITHOLE:   They had spears and running after the IFP people.

MR CLAASSEN:   What exactly do you mean by, they were running after the IFP people?

MR SITHOLE:   What I mean is, they were attacking the IFP people, because the IFP people were running away towards the river, running away from this group.

CHAIRPERSON:   Did you see any of them armed with firearms? You mentioned that you hear gunshots, but did you actually see any firearms.

MR SITHOLE:   No I did not see that much, but they were shooting and I knew that the fire was from the them. They were the ones who were shooting. Especially it was at night I could not see exactly if they had firearms, or see their firearms with them.

CHAIRPERSON:   Sorry, could you give an estimation as to the size of this group. You know, approximately how many people would you say were in the group? This is the ANC group.

MR SITHOLE:   I think there were about 400.

MR CLAASSEN:   Thank you Mr Chair. Mr Sithole, you indicated that you then fired several shots. What happened right after that?

MR SITHOLE:   They fled, as I said or indicated, after I started shooting. I saw one of them falling on the ground, and I saw them running away with him. We remained there, around Magwaza’s house, and the police came.

CHAIRPERSON:   Sorry Mr Sithole. You mentioned that Mr Magwaza handed you this AK-47. Did you see any of your comrades, your compatriots, your IFP people having firearms?

MR SITHOLE:   Yes, the one who was right next to me had a firearm, Mpongosi that is. And Zwane.

CHAIRPERSON:   Do you know whether they shot?

MR SITHOLE:   That much I don’t know, if they shot or not, because I just heard the sound of gunshots through and through.

MR LAX:   Through you Chair. What firearms did they have?

CHAIRPERSON:   Were they AK-47's or handguns, or rifles? Can you just give a description of the firearms that Zwane and this other person had, that you saw.

MR SITHOLE:   They had small ones. I did not see as to what sort of firearms they were.

CHAIRPERSON:   Handguns? Pistols or revolvers?

INTERPRETER:   The sizes the applicant is demonstrating.

CHAIRPERSON:   He indicates about 15, 20 centimetre size firearm, so obviously a handgun.

MR CLAASSEN:   Mr Sithole, you made mention now, that because it was dark you could see, I presume when you talk about fire. What was the visibility like?

MR SITHOLE:   Please repeat that question.

CHAIRPERSON:   The question was what was the visibility like at the time that this shooting took place?

MR SITHOLE:   I saw fire.

CHAIRPERSON:   The question, Mr Sithole, was. You said that it was dark. How far could you see? What was the visibility like? Were there electric lights around, or any other artificial lighting, was the full moon in the sky, or bright stars, or could you see far? Just describe what the visibility was like at that time.

MR SITHOLE:   It was not entirely dark as such. It was dusk. You could be able to see people that were near by or not too far away from you.

CHAIRPERSON:   So that distance that you mentioned, that approximately 35 paces, you could still see the people quite easily?

MR SITHOLE:   Yes.

CHAIRPERSON:   And when you actually shot, you yourself shot at this group, was it still that same distance away or were you then closer to them or they closer to you? When you actually pulled the trigger of your firearm.

MR SITHOLE:   They were now in close proximity.

CHAIRPERSON:   How far away? Can you indicate in this room approximately how far away they were from you when you shot at them? When you actually shot.

MR SITHOLE:   I think they would have been the distance from the door or the passage, the hallway.

CHAIRPERSON:   This door here that we can see?

MR SITHOLE:   No, I mean the outside one. Between the hallway and the outside doors.

CHAIRPERSON:   So that’s still that approximately 35 paces.

MR CLAASSEN:   I think it might be a bit closers. He says between the doors and the hallway. Maybe 32.

CHAIRPERSON:   Yes, say approximately 30 paces but still not right next to each other.

MR CLAASSEN:   Mr Sithole you made mention that you saw the ANC people chasing IFP supporters with spears. Could you see any other visible armament?

MR SITHOLE:   No, I could not see other weapons, except for the spears. The one thing that I heard were gunshots.

CHAIRPERSON:   Sorry, I keep coming in, but, sorry Mr Claassen. You’ve estimated the group, the ANC group, to be plus minus 400 people. The group of IFP members, including yourself, that were at Magwaza’s house, approximately how many people were in the IFP group?

MR SITHOLE:   It could have been 20.

MR CLAASSEN:   Mr Sithole you indicated that you fired shots and you saw a person falling, and they carried him away. After the shooting incident, what happened then?

MR SITHOLE:   They then ran away, and we remained behind and we got into a shack where we waited until the police came. And people were arrested and I ran away. People were arrested.

CHAIRPERSON:   Mr Sithole, I notice from the indictment in the trial that followed this incident in the Court, that four people were killed and a further seven people were injured at the incident that took place at Zevenfontein on that date, that’s the night of the 12th of February 94. You’ve mentioned one person that you saw falling. What do you say about the fact that four people died and a further seven were injured?

MR SITHOLE:   I cannot dispute that, that I shot them, but I could not tell whether the people that I shot died or not. One person that I witnessed falling is the one person that was picked up by the ANC group and fled. I do not dispute the fact that I could be the one who shot these people.

MR CLAASSEN:   Thank you Mr Chairman. Mr Sithole you were subsequently tried for these crimes, and also found guilty and sentenced on several of the charges. Is that correct?

MR SITHOLE:   Yes, that is correct.

MR CLAASSEN:   Mr Sithole in, after being sentenced and serving, you are currently serving a gaol sentence for your conviction on these crimes, you decided to bring an amnesty application. Is that correct?

MR SITHOLE:   That is correct.

MR CLAASSEN:   Mr Magwaza do you recollect that, Mr Chair if I might refer the Commission, on page 8 of the bundle, you initially submitted an application, form one amnesty application, which differs from the evidence that you gave before the Commission today. Is that correct?

MR SITHOLE:   Yes, that is correct.

MR CLAASSEN:   Mr Sithole can you explain to this Committee what had happened and why did you do that?

MR SITHOLE:   I heard the person saying he cannot write to the Commission because he had already made an appeal, so that if he is now writing to the Commission there would be a conflict. So that it would be better to wait for the appeal results, after which this can be directed to the Commission.

CHAIRPERSON:   Do I understand what you’re saying is that when you were in Court, during your trial, your evidence was similar to what was contained in your first application, and you didn’t want to move away from that in order to confuse, to compromise your appeal. Is that what you say?

MR SITHOLE:   There is something that I don’t understand. I think we were talking about Magwaza.

CHAIRPERSON:   Oh sorry.

MR LAX:   Mr Claassen you may have confused him. You did refer to him as Mr Magwaza.

MR CLAASSEN:   I wasn’t aware.

MR LAX:   I wasn’t quite sure what you were, whether, what you were trying to do, but I remember distinctly. You may have confused him then.

MR CLAASSEN:   I was actually referring to him. Maybe I could just ...(intervention)

CHAIRPERSON:   I think if you just repeat your question again and we’ll disregard what has been said since then.

MR CLAASSEN:   Thank you Mr Chair.

Mr Sithole, I’m sorry I referred to you as Mr Magwaza there. The question was actually directed at you. You indicated that you had made a previous, made a first application form one, which differs from your testimony before this Commission today. Could you just explain why this had happened?

MR SITHOLE:   I was not telling the truth in Court.

CHAIRPERSON:   No, the question is, in your first application form that you filled in, you have said, you’ve put out a version that is not the same as what you’ve told us here today. In the application to the Amnesty Committee. Now what Mr Claassen wants to know is why did you say something different then?

MR SITHOLE:   The reason is because I had lodged an appeal, and the legal representative who came to take this amnesty statement was such that I did not trust him.

CHAIRPERSON:   Is what’s contained in the first application similar to what you told the Court?

MR SITHOLE:   Some things yes, are similar, and some no.

MR CLAASSEN:   Mr Sithole that information contained in that first application, is that the correct version of events?

MR SITHOLE:   It is the second evidence that is correct.

MR CLAASSEN:   That is the version that you gave before this Commission today?

MR SITHOLE:   That is correct.

MR CLAASSEN:   Mr Chair if I may just, I would just like to maybe clarify this issue. Mr Sithole you were sentenced on the 16th of October 1996. Is that correct?

MR SITHOLE:   That is correct.

MR CLAASSEN:   And you submitted your first application the 2nd of May 1997. Is that correct?

MR SITHOLE:   That is correct.

MR CLAASSEN:   At that stage you were still awaiting a decision as to leave to appeal to your sentence. Is that correct?

MR SITHOLE:   That is correct.

MR CLAASSEN:   And during June 1997 you received, you were told that you were not granted leave to appeal against your sentence.

MR SITHOLE:   That is correct.

MR CLAASSEN:   Why did you, what prompted you then to submit a further application?

MR SITHOLE:   I had already heard that I was not granted leave to appeal. My only appeal therefore became the Commission.

MR CLAASSEN:   Mr Sithole you very elaborately explained to this Committee all the incidents preceding this 12th of February when this actual incident occurred. Could you just, and now you’ve also indicated that it’s been difficult for you to estimate time, how long, if you could, before this incident, did you become a member of the IFP?

MR SITHOLE:   I think it was a year, if I’m not mistaken. And then this incident happened.

MR CLAASSEN:   Mr Sithole, was this incident which you refer to, was this the result of any instruction given by anyone? Was it a result of any planned act?

MR SITHOLE:   Yes, this happened after an instruction.

MR CLAASSEN:   Could you just clarify that?

MR SITHOLE:   It was an instruction that was directed to me from the IFP. An instruction to the effect that we should not go out and start attacking people.

MR CLAASSEN:   Yes Mr Sithole, I’m not talking about that ‘though. I’m talking about the incident where the shooting occurred. That occurred spontaneously, or was that orchestrated?

MR SITHOLE:   No, there was no instruction that we should shoot people.

MR CLAASSEN:   Mr Sithole could you have done anything else?

MR SITHOLE:   There was nothing else I could have done, because even ‘though I was thinking of fleeing, the river was overflowing and therefore it became necessary for me to protect myself.

CHAIRPERSON:   Mr Sithole you said that you joined the IFP, you think about a year before the incident. But if you take a look at page 23 of the bundle, that’s your affidavit, paragraph 1.1, and I quote from it, you say:

Now what is the position? What is the correct position?

MR SITHOLE:   Yes, that is correct. I joined the IFP long ago, but here it is also true that I joined it a year prior to the incident.

CHAIRPERSON:   Are you trying to say that you joined this new branch that was opened by Themba Khoza and Humphrey Ndlovu that you described in your evidence? What that about a year before the incident?

MR SITHOLE:   Yes, that’s what I’m saying.

MR CLAASSEN:   Thank you Mr Chair. Mr Sithole, your personal capacity did you stand to gain anything from what occurred there?

MR SITHOLE:   No, there would be no personal gain, except to say that I am asking amnesty here following what I did. It was not my intention to do that.

MR CLAASSEN:   Mr Sithole and how do you feel today about what had happened then?

MR SITHOLE:   I feel very bad. It was not my intention to fight the ANC. We were oftentimes engaged in dialogues to sort out whatever problems there could have been.

MR CLAASSEN:   Thank you Mr Chair, I have no further questions for the applicant.

CHAIRPERSON: Thank you Mr Claassen.

Mr Draht do you have any questions to ask this witness?

MR DRAHT:   No questions Mr Chairman.

CHAIRPERSON:   Mr Cachalia do you have any questions to ask the witness?

CROSS EXAMINATION BY MR CACHALIA:   Mr Sithole, the march to the Randburg council offices to demand more land for the people staying in Zevenfontein, was approximately one year, in about March of 1993, before the incident. Is that correct?

MR SITHOLE:   Even ‘though I do not know quite well, I think it must have been 1994.

CHAIRPERSON:   What’s being put to you Mr Sithole, is this incident, the shooting took place on the 12th of February 1994, that’s six weeks after the start of 1994. What Mr Cachalia is suggesting to you, or putting to you, is that that march that took place to Randburg by the community in order to procure more land, took place during or about March 1993, about eleven months before the shooting. Would you dispute that?

MR SITHOLE:   No, I would not dispute that. I’m not educated.

MR CACHALIA:   Mr Sithole, the fact that you’re educated or not cannot matter. The question is, it took place a long time before the incident on the 12th of February 1994. Is that correct?

MR SITHOLE:   No, it was not a very long time.

MR CACHALIA:   We’ll leave it at that.

CHAIRPERSON:   Mr Cachalia is it a fact that that march took place in March? They marched in March?

MR CACHALIA:   Apologies, my instructions, yes. May I proceed, sir? Thank you. That march was in fact led by the now premier of the Gauteng province, premier Matole Matsega. Do you remember that?

MR SITHOLE:   I do not know, because I did not go there personally. I remained behind because I had to go to work.

MR CACHALIA:   I want to suggest to you without wasting too much of the Committee’s time, that this incident had in fact nothing to do, the incident of the 12th of February had nothing to do with that march, or the committee, or its membership, or any of that.

MR SITHOLE:   I am saying it was connected. We met and we discussed that we should go to Randburg and ask for more land. We, that’s the whole community.

MR CACHALIA:   Did you have a member by the name of Pinky Maloi and Mr Dan Sindani on that particular committee that decided on the march?

MR SITHOLE:   Yes, they were present because they are the ones with whom we were planning the Randburg march.

MR CACHALIA:   And do you know that at that time when the march was planned that these were members of the existing ANC committee that existed at that time?

MR SITHOLE:   I didn’t know that.

MR CACHALIA:   Alright. Mr Sithole, you were an induna of the IFP according to your evidence. Is that correct?

MR SITHOLE:   That is correct.

MR CACHALIA:   Do you, as a result of that particular position that you hold, take any instructions from any member of the IFP in the area, or do you, are you the person who makes the decisions in the matter?

MR SITHOLE:   I am the one who was making, taking decisions.

MR CACHALIA:   And the decision in your capacity as induna, if you took a decision in you capacity as an induna, the members of the IFP are required to follow your decisions and your instructions in the matter. Is that correct?

MR SITHOLE:   That is correct.

MR CACHALIA:   Now when Mr Magwaza, according to you, gave you an AK-47 and said there was no time to talk, and when you disagreed with him, why then did you take the AK-47 and move out of the house that, where he gave you the AK-47?

MR SITHOLE:   I had realised that I was dying now, the people were here, and I realised that if I take this AK-47 I can be in a position to protect myself.

MR CACHALIA:   How would Mr Magwaza who gave you the firearm protect himself, if you needed it to protect yourself?

MR SITHOLE:   He had two firearms in his possession. He also had another firearm, a smaller one.

MR CACHALIA:   Am I to understand Mr Sithole, that after you had this, after you had indicated and instructed that the matter be discussed, that you changed your mind because you suddenly realised that you were dying?

MR SITHOLE:   Yes, I changed my mind.

CHAIRPERSON:   Sorry Mr Cachalia. What position did Mr Magwaza hold, if any, in the IFP in Zevenfontein?

MR SITHOLE:   He was chairperson.

CHAIRPERSON:   And what position did you hold in the IFP at Zevenfontein.

MR SITHOLE:   I was an induna.

CHAIRPERSON:   So whose more senior, you or Magwaza?

MR SITHOLE:   Magwaza.

MR CACHALIA:   Obviously Mr Sithole you had just forgotten that you have told us that if you made an instruction it was binding on all members of the IFP.

MR SITHOLE:   No, I haven’t forgotten that.

MR CACHALIA:   Then please repeat for us what the position is. If you made a decision, you have told us that it is binding on members of the IFP in Zevenfontein where you were induna. Do you wish to change that now, sir?

MR SITHOLE:   I am not changing anything. I indicated that I reported to Magwaza, that I wanted to discuss something that I received from the ANC, and he said he was rushing to town. I did this because of his seniority in relation to myself.

MR CACHALIA:   We will leave that there for the committee to make a decision upon, Mr Sithole. You, according to the evidence that you have given, made an application for, your first application was made in this matter on the 2nd of May 1997. Is that correct?

MR SITHOLE:   That is correct.

MR CACHALIA:   And at the time when you made that particular application Mr Sithole, you say that there was a person whom you did not trust. Was this a lady or a man? Male or female?

MR SITHOLE:   A female.

MR CACHALIA:   Is this the lady by the name of Colleen Henchie?

MR SITHOLE:   That is correct.

MR CACHALIA:   Are you saying that she came to you and said you must make this application but you cannot say the truth because that would be in conflict with what was said by you in Court?

MR CLAASSEN:   Mr Chair, if I may, I think that might be a bit misleading now. Maybe if the question could just be asked to indicate whether he was told anything by her, rather than saying she told him to, or prescribed to him what he should write down.

CHAIRPERSON:   Yes I know that you can lead under cross-examination, but usually if you’re leading, do you know what occurred, why she, what she may have said to him?

MR CACHALIA:   I have not consulted with Ms Henchie, but I am saying that the credibility of this witness needs to be tested, whether he has made full disclosure, and I’m saying that that is portion of the matter that I’m dealing with, sir.

CHAIRPERSON:   Well perhaps if you, why did you mistrust the attorney Ms, is it Ms Henchie? Why did you mistrust her? Wasn’t she your lawyers?

MR SITHOLE:   I had not heard yet that she was going to be my legal representative, and at the time I had sent through an appeal.

MR CACHALIA:   Sorry, may I proceed sir. Mr Sithole, you had already at that stage completed your matter in the Courts. You were sentenced already in 1996. Is that correct?

MR SITHOLE:   That is correct.

MR CACHALIA:   In 1997 on the 2nd of May 1997, whilst you were at the Johannesburg Medium Prison you made this particular application for amnesty.

MR SITHOLE:   That is correct.

MR CACHALIA:   In that application, according to you, you told some lies and some truths. Is that right?

MR SITHOLE:   That is correct.

MR CACHALIA:   You did that because you did not trust the person that made the application for you. Is that right?

CHAIRPERSON:   No he said that was partially right, because he said also because his appeal was pending.

MR CACHALIA:   One of the reason why you did not tell the truth at that stage is because your appeal was pending and you did not trust the person. Is that correct?

MR SITHOLE:   That is correct.

MR CACHALIA:   What was the reason for you not trusting this particular person that was there?

MR SITHOLE:   I did not know whether that person was my attorney or legal representative, or not.

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

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

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

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

MR SITHOLE:   She arrived there on her own.

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

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

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

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

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

MR SITHOLE:   No, I did not.

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

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

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

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

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

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

MR CACHALIA:   Alright. On the last paragraph of your affidavit on page 46, Mr Sithole, you say that you were later informed by your attorney of record, Anina van der Westhuizen

Is that correct?

MR SITHOLE:   That is correct.

MR CACHALIA:   Why did she tell you that?

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

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

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

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

MR SITHOLE:   No, I did not.

MR CACHALIA:   Now, when you made your first application for amnesty, you had informed the Amnesty Committee that:

On page 10 of the record, sir. Is that correct?

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

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

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

CHAIRPERSON:   Then all he’s doing is he’s referring to what you said in your first application. This is the application that was filled in by this Ms Colleen Henchie, and she’s reading from page 10 of the papers. It appears in paragraph 9(a)(iv), and I’ll read the exact words contained in your own application. They read as follows:

And then you carry on and tell the story. Now, Mr Cachalia is saying, in Court you denied having had or used an AK-47, yet in your first application, which is also not, on your own admission, a truthful version, you admit to having had an AK-47, and then later you admit to using it, because later on in that same paragraph you say:

Now what Mr Cachalia is asking you, is why put that admission into your first application, if it’s not the truth?

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

MR CACHALIA:   Mr Sithole, is it true what the Chairperson has just read for you now? Is it true when you said:

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

MR CACHALIA:   Then you say:

Is that true?

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

MR CACHALIA:   Then it says:

Is that true or not?

MR SITHOLE:   That is not correct.

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

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

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

MR SITHOLE:   I said the AK-47 is mine because Magwaza had not admitted at the time that I took it from him, and he said I should own it up and I decided to say the AK-47 was mine, and I indicated that Magwaza was not coming up with the truth, I would still have to appeal to him. I did not want us to fight over this. I indicated that I was going to tell them that he is the one who gave me the AK-47.

ADV SIGODI:   Sorry, were you and Mr Magwaza in the same prison?

MR SITHOLE:   Yes.

CHAIRPERSON:   Just before you go on Mr Cachalia, I’m just. There’s something that’s been left undone and I just want to clarify it. And it’s the issue of the relevance of the appeal, and what the implication of that was. Mr Sithole, what did the appeal have to do with what you may or may not have said. How was it relevant to what you were saying?

MR SITHOLE:   The importance would have to lower or decrease the sentence.

CHAIRPERSON:   Yes I understand that’s the effect of an appeal, but how did what you said in the application to the Amnesty Committee, how was that going to be affected, or how would that affect your appeal or not affect your appeal. Because you have told us that one of the reasons why you told some lies, was because of the appeal. Now what we’re trying to understand is, what did you mean by because of the appeal? Do you understand my question?

MR SITHOLE:   Yes.

CHAIRPERSON:   Please explain.

MR SITHOLE:   As I said I was awaiting the appeal. I was waiting for the appeal to decrease or lower the sentence. Now I had to write to the Commission because then that will be comparing the two because one side I was lying, the other I was telling the truth.

CHAIRPERSON:   Which side were you lying and which side were you telling the truth?

MR SITHOLE:   This appeal, this side.

CHAIRPERSON:   What about it, was that a lie?

MR SITHOLE:   I was lying because I said exactly what I had tendered at the Court of law.

CHAIRPERSON:   And to the Commission you were telling the truth. Do I understand you correctly?

MR SITHOLE:   Yes.

MR LAX:   You’ve told us that that was partly the truth, it wasn’t the whole truth.

MR SITHOLE:   No, that is on the first statement.

MR LAX:   Correct. Now what we want to understand from you is, why in relation to the appeal did you not tell the truth in your amnesty form, the first one?

INTERPRETER:   Please repeat your question Mr Lax.

MR LAX:   What was it that you wrote, what was it about the lies you wrote in your amnesty form?

MR SITHOLE:   In the appeal I had said exactly what I said in Court.

MR LAX:   So did you not want that to be affected by what would go in the amnesty application? The comparison of the two, is that what you’re saying?

MR SITHOLE:   Yes.

MR LAX:   Now to get back to Mr Cachalia’s question to you. Why admit the gun, if you were worried about the comparison? Because by admitting the gun, the comparison would reveal that your previous denial was wrong. Do you understand what I’m saying to you?

MR SITHOLE:   No, I didn’t quite understand.

MR LAX:   Let me put it to you another way then. If you were worried about the comparison, why then would you admit the gun in your amnesty form, when in fact you had denied it in Court?

MR SITHOLE:   It is because I wanted to tell the truth.

MR LAX:   But it wasn’t the truth.

MR SITHOLE:   Partly was true, and part of that was lie.

MR LAX:   Everything about the gun in this form is not the truth. Everything about the gun is not the truth, in the first form.

MR SITHOLE:   Yes.

MR LAX:   So how would that help you? That’s what I don’t understand.

MR SITHOLE:   It will help in such a way that that attorney, I did not trust that attorney and I was still awaiting appeal.

ADV SIGODI:   Sorry, just to. When this attorney came to you, was the process of amnesty explained to you? What was required from you in order to get amnesty.

MR SITHOLE:   It was explained by Anina afterwards.

ADV SIGODI:   In other words the first attorney never explained to you what the whole process of amnesty was all about?

MR SITHOLE:   The attorney did not explain the whole thing, but explained or told me that I should admit as to what I had in my possession and my role thereof.

MR CACHALIA:   Mr Sithole, just let me put this question again to you. Why didn’t you tell this attorney, lady I will not make the application now, I will wait for my appeal and then make the application?

MR SITHOLE:   I feared that she would disappear once I said that, and yet I had not divulged the whole truth at that point in time.

MR CACHALIA:   Perhaps we’re flogging a dead horse. We’ll carry on Mr Sithole. The position on, was that you were, you were at that stage incarcerated at the Medium Prison in Johannesburg when you made the first application. Is that right?

MR SITHOLE:   Yes.

MR CACHALIA:   And your colleague from the IFP and your co-accused, Mr Magwaza, was also there with you at that time?

MR SITHOLE:   Yes.

MR CACHALIA:   And you and him both made the application at that same time?

MR SITHOLE:   Yes.

MR CACHALIA:   Did you and Mr Magwaza and Ms Colleen Henchie sit down and discuss the matter together? Was there anybody else? Please tell us the circumstances under which you made this application. Who was there? Tell us.

MR SITHOLE:   I don’t remember as to who else was present. I recall Magwaza and this one.

MR CACHALIA:   Sorry, by this one you mean Ms Colleen Henchie, the lady attorney.

MR SITHOLE:   Yes, Colleen

MR CACHALIA:   Now, did they deal with your matter first, or did they deal with Mr Magwaza’s matter first? Did the lady deal with you first or with Mr Magwaza?

MR SITHOLE:   I don’t remember.

MR CACHALIA:   You see Mr Sithole, Mr Magwaza denied, he just repeated what he had said in Court. He denied any involvement, any guilt in this particular matter. You’re aware of that, are you?

MR SITHOLE:   I heard that, yes. He never said that to me.

MR CACHALIA:   Sorry, you were together when this application was made. I’m asking you who was there and you and Mr Magwaza and Colleen Henchie, at least those three persons were in the particular, presumably consulting room in the prison at that time together. Is that correct?

MR SITHOLE:   Yes.

MR CACHALIA:   Now, when the, when Ms Henchie discussed this matter with you people, the same person that filled in the form for you has also apparently filled in the form for Mr Magwaza.

MR CLAASSEN:   Mr Chair if I may, once again I don’t know if this is reasonable questions. Maybe the question should be put to the applicant not ...

CHAIRPERSON:   Perhaps I could put it. Mr Magwaza, you say that the three of you were together in a room when you filled in these application forms. Is that correct?

MR SITHOLE:   Yes.

CHAIRPERSON:   Mr Magwaza in his form, the version he put in his first form that’s dated that same day, says that he wasn’t even at Zevenfontein when this trouble occurred. He was away. He wasn’t involved in it at all. Did you know about that at the time that you filled in your form?

MR SITHOLE:   I heard that when he said that when he was talking and also denying the fact that he had a firearm.

MR CACHALIA:   Why didn’t you do the same Mr Sithole?

MR CLAASSEN:   Mr Chair, I’m sorry for ...(intervention)

CHAIRPERSON:   I think he’s already answered that one. He said he was protecting Mr Magwaza. He said Mr Magwaza said that he must stick up for him and take the blame for the gun. Were you protecting Mr Magwaza when you admitted that you were having the gun? When you lied to the effect that you had the gun?

MR SITHOLE:   What led me to say that, it was because Magwaza had not admitted that I had taken the gun from him. Now I was pleading with him that, you see I’m divulging every truth here and I also made mention of the fact that I got the gun from you, and he did not, he disagreed with me on that point.

CHAIRPERSON:   Yes Mr Cachalia.

MR CACHALIA:   As the Court pleases. Sorry, as the Committee pleases. Mr Sithole, I’m quite aware of that particular position. I am saying that Mr Magwaza was consistent with his version in Court, denied all involvement. Is that correct? Is that correct Mr Sithole?

MR SITHOLE:   The last I heard him denying or disputing that, it was during the time when Colleen was consulting with us. And when I then arrived he admitted then and said, you now can say and be free that I gave you the firearm, because I have no any other alternative but to tell the truth.

MR CACHALIA:   Mr Magwaza, sorry Mr Sithole, all I am saying to you is that Mr Magwaza had made a statement consistent with what he had said in Court. Why did you not take that option?

MR SITHOLE:   I came here then to tell the truth. I parted with it, completely divorced myself from what I had said at the Court of law, or in Court.

MR CACHALIA:   But Mr Sithole what you are just saying is incorrect. You did not ...(intervention)

CHAIRPERSON:   I think we’re beginning to flog a dead horse now. I don’t know if you’ll ever get to it. Raise it in argument I think Mr Cachalia.

MR CACHALIA:   As the Court pleases, thank you sir.

MR CACHALIA:   Mr Sithole, there was a meeting held between yourself and other members of your IFP, I think it was Mr Zwane. I speak subject to correct, I’ll correct it if necessary. With members of the ANC on the Wednesday when a meeting was arranged for the Saturday the 12th of February 1994. Is that correct?

MR SITHOLE:   Yes, we had a meeting together with the ANC but I don’t know as to what date it was.

MR CACHALIA:   I’m suggesting to you that the meeting was on Wednesday Mr Sithole. It is possibly correct. Is that what you’re saying? Sorry the Wednesday before Saturday the 12th of February 1994.

MR SITHOLE:   Yes.

MR CACHALIA:   Now, one of your members came and made a report to you about her discussion about the availability of shacks, the availability of place to put on her shacks, her shack, on the designated land, as you call it.

MR SITHOLE:   I don’t understand.

MR CACHALIA:   I’m saying one of your members came to you and said that, you know I went to the ANC and this what they have told me, and as a result of that you went to the ANC.

MR SITHOLE:   Yes.

MR CACHALIA:   And there you met Mr Sandisile Dastile, the late Mr Dastile, and others. Is that correct?

MR SITHOLE:   Yes.

MR CACHALIA:   And they disabused you of what was told to you by the lady that made the report to you. Let me put it more simply. They said to you, what the lady told you is not correct, we have no problems with the ANC, sorry with the IFP member putting a shack in the area.

MR SITHOLE:   I don’t quite follow you.

MR CACHALIA:   Anyhow, as a result of that particular. It’s not very important what I’m saying but I just thought I’d lead you through it so that we have the sequence properly, but, as a result of that you agreed to meet on Saturday, the two committees, the civic committee and whoever else was necessary at the sports ground on Saturday at five o’clock in the afternoon on the Saturday the 12th of February 1994. Is that correct?

MR SITHOLE:   What’s confusing is what you said earlier on that my members came and told me that we’re having a meeting with the ANC. They were talking about or referring to the land. That’s what’s confusing to me.

CHAIRPERSON:   Yes, no I think okay, we, Mr Cachalia said he was just leading up to the events just to get it in context, but the question he’s putting to you now Mr Sithole, is, at that meeting on the Wednesday, or on that Wednesday, it was ultimately agreed, it was ultimately agreed that there would be a further meeting at the sports ground on the following Saturday, which was the 12 of February 1994, at five p.m. in the afternoon. Is that correct? That’s what he’s asking you.

MR SITHOLE:   Yes, it is so, to discuss about the committee. This committee that was allocated to us.

MR CACHALIA:   Let me proceed Mr Sithole.

MR LAX:   Just before you do, what his, his answer is not in agreement with what you put to him. You suggested to him the meeting was about the allocation of land. He’s saying no, the meeting was about which committee would represent the people. I just want to make that clear because we may go on to another issue and leave this unsaid, and then confusion could result. Is that right?

CHAIRPERSON:   Perhaps we could just sort out this issue and then it will be a convenient time to take the lunch adjournment, I see it’s past one. About the issue about what was the main purpose for that meeting on the Saturday.

MR CACHALIA:   Thank you.

Mr Sithole is what I am saying to you is that you decided to meet on Saturday at five o’clock in order to discuss the allocation of land for putting up shacks and who was entitled to them, and those type of issues. Is that correct, or not correct?

MR SITHOLE:   No, that is not correct.

MR CACHALIA:   Tell me what were you going to meet for?

MR SITHOLE:   We were meeting there about the committee issue, because the ANC had said they are giving us this committee, and we said no, you cannot give us any committee. It’s best for you to call the entire community, and then allocate us a committee from there, and they decided that I give a specific date for us to convene another meeting. And I decided Friday, and they said no they cannot, and I gave them that leave to give us the date for the meeting and they had said on Saturday. The issue was about the committee.

MR CACHALIA:   Mr Sithole I just want to finish off by saying that there is a difference in approach but that’s not very fundamental to your application, so what I wanted to just correct before we adjourn for lunch, Mr Sithole, is that I have been told that that meeting was not on the Wednesday but it was on the Thursday, that would be the 10th of February 1994. I just thought I should put it to you if you wish to make any comment about that.

MR SITHOLE:   What I know is that that meeting was based on the issue of a committee. This land you re bringing to my attention, I bear no knowledge of.

CHAIRPERSON:   Would this be a convenient time then Mr Cachalia? We’ll take the lunch adjournment until twenty to two, quarter to two.

CHAIRPERSON:   I remind you that you’re still under your former oath.

JOHN M SITHOLE: (s.u.o.)

CHAIRPERSON: Mr Cachalia.

CROSS-EXAMINATOIN BY MR CACHALIA:   (Cont)

Mr Sithole, is it correct that you have responded to the Chairperson of the Committee when dealing with your evidence, that you have said that you had learned to fire the AK-47 while you were still in KwaZulu Natal at your home? Is that correct?

MR SITHOLE:   Yes, it is correct.

MR CACHALIA:   Was that an AK-47?

MR SITHOLE:   It was something similar to what I had used on that day in question.

MR CACHALIA:   Was it not an AK-47?

MR SITHOLE:   It was AK in fact.

MR CACHALIA:   Whose AK was it?

MR SITHOLE:   It belonged to one of the guys there at home.

MR CACHALIA:   Yes, the name?

MR SITHOLE:   I don’t remember the name.

MR CACHALIA:   Why did he give you the gun?

MR SITHOLE:   It is because I borrowed it from him for the purpose of shooting the animals.

MR CACHALIA:   What animals were you shooting sir?

MR SITHOLE:   Those will be bucks.

MR CACHALIA:   Now, you are saying to us Mr Sithole, and please you must understand that you are required to make full disclosure and you’re not supposed to hide anything. You are saying you went and borrowed an AK-47 for the purposes of hunting back, from a person that you do not know. Is that what you expecting this ...(intervention)

CHAIRPERSON:   No, from a person that he can’t remember his name.

MR CACHALIA:   From a person whose name you do not remember. Is that what you’re expecting us to believe sir?

MR SITHOLE:   Yes.

MR CACHALIA:   How long ago did that happen?

MR SITHOLE:   It’s quite a long time ago.

MR CACHALIA:   Years, months, days. Tell us what you mean by long time ago, sir.

MR SITHOLE:   It will be years, number of years.

MR CACHALIA:   And you are not able to recollect the name of the person. Is that right?

MR SITHOLE:   No, I don’t remember.

MR CACHALIA:   Now, who. Sorry, my colleague and myself here are both a little naive about these matters. Is an AK-47 also an automatic machine gun? Because that was referred to in your trial.

MR SITHOLE:   Yes, that’s what they said in Court, that it’s an automatic.

MR CACHALIA:   Sorry, the question that we really don’t know the answer to, is an AK-47 an automatic gun?

MR SITHOLE:   I don’t know automatic. I only know that this is a firearm.

MR CACHALIA:   Thank you. Somebody else might be able to assist us. Be that as it may, Mr Sithole, what I want to put to you is that you, in order to shoot buck, you had asked this person whose name you do not know, to lend you his automatic, sorry his AK-47.

CHAIRPERSON:   I think we’ve got that answer.

MR CACHALIA:   And having got that, who told you how to use it?

MR SITHOLE:   He showed me himself.

MR CACHALIA:   Did he teach you how you operate that gun?

MR SITHOLE:   Yes, he did show me as to how to use this particular firearm.

MR CACHALIA:   How many lessons did he have to give you?

MR SITHOLE:   He taught me how to pull the trigger and how, what to do in order for the gun to discharge the bullet.

MR CACHALIA:   Are you suggesting that it was all in one lesson?

MR SITHOLE:   Yes.

MR CACHALIA:   Then after having shot buck on that one day many years ago, the first time you used an AK-47 after that was on the 12th of February 1994?

MR SITHOLE:   No, I’d never used the gun between that period.

MR CACHALIA:   That’s what I’m saying yes. Alright, be that as it may. Did Mr Magwaza know that you had shot buck with an automatic AK-47 before?

MR SITHOLE:   No, he did not know.

MR CACHALIA:   Why did he then give you the gun to use, if he didn’t know if you were able to use it in the first place or not?

MR SITHOLE:   He had two firearms, and he gave me one.

MR CACHALIA:   Sorry, that’s not the question. The question is, if Mr Magwaza didn’t know how you, whether you could or could not use the gun, why did he give it to you?

MR SITHOLE:   Magwaza had two guns, and he said, Sithole here is another one.

MR CACHALIA:   Final attempt Mr Sithole. I am saying to you, Mr Magwaza didn’t know whether you could or could not use an automatic AK-47. Is that correct?

MR SITHOLE:   He did not know. Magwaza did not know that I could use this AK because I never made mention of the fact to him that I once used it previously.

MR CACHALIA:   Now the question that I am asking you is if he didn’t know, why did he entrust you with the most lethal weapon that was in existence on that day? Why did he entrust it to you?

MR SITHOLE:   I don’t know to him, that is really up to him why he did what he did.

MR CACHALIA:   Mr Sithole I want to remind you once more that when you are giving evidence to this particular Committee one of the pre-conditions is that you must make full, honest, disclosure. Your evidence must be acceptable as a full disclosure of what you are telling us. Do you still wish to stay by with what you just have told us?

MR SITHOLE:   The truth that I’ve disclosed to this Commission is exactly what I’ve said and I stand by it.

MR CACHALIA:   Mr Sithole, you had before we went for lunch we had discussed the question of the arrangement of the meeting at five o’clock on the Saturday the 12th of February between the ANC and yourselves. Is that correct?

MR SITHOLE:   Yes, I do remember that we were discussing about that fact.

MR CACHALIA:   And you had agreed that there was a meeting that was arranged for five o’clock on Saturday. Is that right?

MR SITHOLE:   Yes, I did agree.

MR CACHALIA:   And you also agreed that that was a meeting between the ANC and the IFP and any other committees that might have an interest in the matter, in the community.

MR SITHOLE:   Yes.

MR CACHALIA:   And this meeting was to take place at the soccer ground.

MR SITHOLE:   Yes.

MR CACHALIA:   And the soccer ground is between Mr Magwaza’s house and Mr Brown’s house, on the one end.

CHAIRPERSON:   What’s the second name Mr Cachalia?

MR CACHALIA:   Brown, my apologies Mr Brown, Brown.

MR SITHOLE:   Yes, that is true.

MR CACHALIA:   Now you’ve given us a long version of what in fact transpired that day, that it was raining, that you had changed your clothes, that the people were attacking, that, what happened at that meeting that was supposed to be held?

MR SITHOLE:   We did not have that meeting ultimately because it was raining, pouring, very heavy. So there was no meeting.

MR CACHALIA:   It was raining on your own version at one o’clock. Is that correct?

MR SITHOLE:   From one.

MR CACHALIA:   Until?

MR SITHOLE:   Until late in the afternoon.

CHAIRPERSON:   Sorry Mr Cachalia. Was the meeting, are you saying the meeting just didn’t occur because of the rain, or did people get together say let’s postpone this meeting to some other day? Was any arrangement made or did it just not happen?

MR SITHOLE:   The meeting did not take place as a result of this rain, because it was raining heavily, so we did not have the meeting.

MR CACHALIA:   What time did you say the rain stopped?

MR SITHOLE:   It rained continuously until late at night.

MR CACHALIA:   Oh, I thought you had just told us that it rained until late in the afternoon, and now you’re saying it rained the whole afternoon until that night.

MR SITHOLE:   It rained the whole night.

MR CACHALIA:   What you are saying is you’re retracting your evidence that it rained until late in the afternoon.

MR SITHOLE:   I don’t think I meant to say the rain stopped. I meant to say, or I was saying, it was raining continuously, until dusk, until I went to bed as well.

MR CACHALIA:   Let me just remind you of what else you have said. You had told us that at some time in the day, during that particular day, because of the very heavy rains your shack was flooded, you had to clean that up, then you had to change your clothing, and before you went to Magwaza’s house you had in fact changed your clothing. Is that right?

MR SITHOLE:   Yes.

MR CACHALIA:   Had the rain stopped for you to allow you to change your clothing and to get into dry clothes?

CHAIRPERSON:   He said, Mr Cachalia, that in fact he changed his clothing twice. He changed it once then he met some people then he had to go back and change it again. So he changed twice.

MR CACHALIA:   Is that correct Mr Sithole?

MR SITHOLE:   Yes.

MR CACHALIA:   Did the rain stop to allow you to change your clothes or you just decided you’re going to change your clothes because you were too wet?

MR SITHOLE:   The rain did not stop. I changed still, and after this fight erupted I never went back to change, I continued in this whole thing without changing and also I feared to go home to change into other clothes.

MR CACHALIA:   Mr Sithole, you have told us, and I think my clients agree, that they got on, that the IFP and the ANC until that particular day had got on very well, until that day the previous day had got on very well and that if there were any problems they would approach you and you would sort them out. Is that correct?

MR CLAASSEN:   Mr Chair if I may, I don’t think they got on very well with the, I think there was evidence led that they had some altercations. I don’t think got on very well is an exact situation at that stage.

CHAIRPERSON:   I think perhaps technically you may be correct. But up until that stage Mr Sithole, is it correct that there was no real violence between the ANC and IFP at Zevenfontein and in fact most of the disputes that may have arisen between the two groups were sorted out by means of dialogue and agreement?

MR SITHOLE:   Yes, we will solve any problems that transpired with no violence at all.

MR CACHALIA:   Thank you Chair for clarifying that. Mr Sithole what I’m saying is that the position was that when there were problems you were able to approach one another, you were able to sit down together and resolve the issue by discussing the matter. Is that correct?

MR SITHOLE:   Yes.

MR CACHALIA:   Now the person that you will normally discuss it with is the late Mr ...(intervention)

INTERPRETER:   May the speaker be please audible.

MR CACHALIA:   My apologies. The persons that would normally meet in this matter would be at that time the chairperson of the ANC, Mr, the late Mr Dastile, his brother Sandisile who is sitting next to me, and other members of the ANC together with you on the other side and Mr Magwaza. Is that correct?

MR SITHOLE:   I didn’t hear that quite clear.

MR CACHALIA:   Well perhaps, do you want me to repeat the question sir?

MR SITHOLE:   Yes, I did not hear.

MR CACHALIA:   I am saying that when you had a problem in Zevenfontein before this week in February, the matter would be resolved by you and Magwaza and Sandisile Dastile and the late Mr Dastile meeting and discussing issues and the matters would be resolved. You would arrange to meet and sort out the problems that you had. Is that correct?

MR SITHOLE:   Yes, it’s correct.

MR CACHALIA:   I am saying on this, that was the purpose for meeting on Friday at, sorry on Saturday at five o’clock in the evening. Is that correct?

CHAIRPERSON:   I’m getting a bit lost now Mr Cachalia. I thought that meeting, oh so that meeting for Saturday was just a meeting of the four, it wasn’t a community meeting, as mass meeting as such?

MR CACHALIA:   Not according to my instructions, sir.

CHAIRPERSON:   Yes, thank you.

CHAIRPERSON:   And it was to take place on the soccer field, just the four of them?

MR CACHALIA:   Sorry my apologies sir, may I put the question to him? Who was supposed to meet on the soccer field at five o’clock on Saturday?

MR SITHOLE:   All the people.

MR CACHALIA:   May I just put it to you so that we have this in perspective, the IFP’s offices was an enclosed area of the soccer field. A little area that was just partitioned off from the rest of the soccer field. Is that correct?

MR SITHOLE:   Yes, it was right close.

MR CACHALIA:   In fact it was, it didn’t even have a roof over it. It was just an enclosure that was just partitioned off without even a roof. Is that right?

MR SITHOLE:   Yes, that is right.

MR CACHALIA:   Now is that where you were supposed to meet?

MR SITHOLE:   We were going to meet at the soccer field.

MR CACHALIA:   If the committee will bear with me for a moment. Thank you. Mr Sithole, sorry, in your application form you say that the meeting was to take place at 14h00. That obviously is incorrect. At two o’clock.

CHAIRPERSON:   Just refer us to the page and the paragraph number just for easy reference please.

MR CLAASSEN:   I think it’s page 27 Mr Chair.

MR CACHALIA:   On page 27, paragraph 3,7 sir.

MR SITHOLE:   No I dispute the fact that the meeting would have taken place at two. I don’t think I said that. What page is it?

MR LAX:   Page 27. Paragraph 3.7. It does in fact say that Mr Sithole, in your affidavit. I’ll read you this passage just so you can be clear:

That’s two o’clock.

MR SITHOLE:   Maybe I don’t remember the time, whether I said that or not. I don’t quite remember.

MR CACHALIA:   What I am putting to you Mr Sithole, is that although you have said so in your affidavit, and you have signed it, that is obviously incorrect. Isn’t that so?

MR CLAASSEN:   Mr Chair if I may I think he just answered that. He said it might be, he’s just not sure, he can’t remember.

CHAIRPERSON:   What can’t you remember Mr Sithole? That you said that it was 14h00 or that the meeting was meant to be at five o’clock.

MR SITHOLE:   Maybe as a result of this prolonged evidence I’ve tendered here maybe I tend to have forgotten what I said earlier.

MR LAX:   What is your position now, do you accept, can you remember, was the meeting meant to be at five o’clock on Saturday or at two o’clock?

MR SITHOLE:   I think have forgotten. I do not know as to what time this meeting was supposed to have taken place.

MR CACHALIA:   I put it to you Mr Sithole that it was fact arranged that you would meet at five o’clock at the sports field.

MR SITHOLE:   I don’t refute that.

MR CACHALIA:   That’s how I understood the position to be, but it is quite coincidental that on page 72, paragraph 9.1 Mr Magwaza makes the same mistake. H