Amnesty Hearings — East London — 1998-10-05

MR SMUTS: I want to deal with the concluding paragraph in Mr Mandela's statement Mr Chairman, but I don't want to disadvantage the witness by not allowing him to read the report.

MLULAMISI MAXHAYI: Can you repeat the question please.

MR SMUTS: Do you see the final paragraph which says that Mr Mandela appealed to South Africans not to be provoked into any acts of violence, even if this violence was motivated by a desire to avenge Mr Hani's death?

MLULAMISI MAXHAYI: Yes, I see it.

MR SMUTS: Is that consistent with the policy of your organisation throughout the period from the Pretoria Accord up to and after the death of Mr Hani?

MLULAMISI MAXHAYI: Yes, there was no stage that the ANC called for ...(indistinct)

MR SMUTS: Did you see in the newspapers that report or any other, in which leadership of the ANC called for calm?

MLULAMISI MAXHAYI: I am not certain whether I saw this, but even if I saw it, I did not see it on that day because we heard about the essence of this article after we have carried out this operation.  I am not sure whether it was on the 13th or maybe on the day of the funeral.

MR SMUTS: Are you certain of that Mr Maxhayi, that you only heard of this call for calm, after you had committed this offence?

MLULAMISI MAXHAYI: Yes, we were in the process to pursue many offences.  So the fact that we decided not to carry on, is due to that report of President Mandela.

MR SMUTS: In the judgement on sentence in your criminal trial, and again we don't have the record of the evidence that was tendered, so we are constraint to rely on the judgement, but on page 127 of the typed judgement dealing with sentence ...

MLULAMISI MAXHAYI: We don't have that page here.

MR SMUTS: Mr Chairman, it is a bundle headed Judgement and Sentence, Volume 1.  Page 127.  Do you have that?

MLULAMISI MAXHAYI: Yes, page 127.  I do have it.

MR SMUTS: This is an aspect of the judgement in which the learned Judge is dealing with the question of mitigation.
	Reading from line 6, he says the following and it is unfortunately very badly transcribed, but one can try and make sense of it.  I think it should read on the evidence led at the trial, I am satisfied that accused 1 and accused 2 and that if I understand correctly, is a reference to yourself and Mr Hermans, were indeed most adoring admirers, it should be, of Mr Hani and did indeed regard him as a hero and a great leader.
	It is to my mind probable that they were overwhelmed by the emotions and did not appreciate fully the enormity of the conduct on which they had decided to embark.  And then the following statement, their emotional state, it seems to me, led them to ignore the call for restraint made by the leaders of the ANC and its allies following Mr Hani's assassination.
	That suggests, does it not, Mr Maxhayi, that the Court found that you ignored calls by ANC leadership for restraint?

MLULAMISI MAXHAYI: No, the Court was not fair here because firstly I disputed that we only acted simply because it was comrade Chris Hani.  There are many leaders in the movement.  To mention for instance, even if it was President Madiba, we would have the same response, or comrade Winnie Mandela, or Peter Makaba or whosoever who is a rolemodel, who is regarded to us as a revolutionary, so take that initiative.
	The fact that we ignore the call after that, it is not true because I am certain that I only came with that information after, that was the reason we did not continue killing the white people, or the enemies who were white.

MR SMUTS: Is it your evidence then that this aspect which the Court seems to have taken into consideration in your favour in mitigation of sentence, was improperly taken into account?  There was in fact no factual basis at the trial, for what is set out here?

MLULAMISI MAXHAYI: This is their finding as the Court, but the truth is what I am saying.

MR SMUTS: Mr Maxhayi, document P in that bundle is an address to the nation by Mr Mandela, delivered on the day of the killing.

ADV DE JAGER: Not the day of the killing of Mr Hani?

MR SMUTS: No Mr Chairman, the day of the killing of the Weakley brothers and the attempted murder of the others.

CHAIRPERSON: Mr Smuts, I don't want to give the impression that I know the answer, but what time of the day was this presented?

MR SMUTS: Mr Chairman, I am not certain.  I don't want to suggest to the witness that it was presented before the act.  It is a different leg that I seek to ...

CHAIRPERSON: Okay.

ADV SANDI: I think it says there Mr Smuts, tonight.  That was clearly in the evening, and I thought the witness said the operation was carried out at about half past five.

MR SMUTS: Yes, it was at sunset in any event Mr Chairman.

CHAIRPERSON: Why don't you put the question, then he doesn't have to spend time reading the whole thing.

MR SMUTS: Thank you Mr Chairman.  What I want to take you to Mr Maxhayi, is the extract which is on the front document, P, but it is marked with two lines on the original document marked P1 and P2, on the right hand side, do you have that?  The paragraph beginning, we must not let the men worship war?

MLULAMISI MAXHAYI: We must not let the men worship war and who lust after blood, precipitate action that will plunge our country into another Angola.  Chris Hani was a soldier, he believed in iron discipline, carried out instruction to the letter.  He practised what he preached.
	Any lack of discipline is trampling on the values that Chris Hani stood for.  Those who commit such acts, serve only interest of assassins and desecrate his memory.

MR SMUTS: Do you agree with that assessment of the position by Mr Mandela?

MLULAMISI MAXHAYI: Do I agree?

MR SMUTS: Yes?

MLULAMISI MAXHAYI: Can you repeat your question, do I agree with what?

MR SMUTS: Do you agree with that assessment of the position as expressed by Mr Mandela?

MLULAMISI MAXHAYI: Yes, ANC is only preaching for peace.

MR SMUTS: And is that then what you did when you decided to take the lives of white people whose political affiliations and whose identities you had not bothered to established?  Did you serve the interests of the assassins and desecrate the memory of Mr Hani?

MLULAMISI MAXHAYI: No.  According to us as the rank and file, we were carrying out the acts which we thought were relevant at the time, but as the President of the movement, he is there not to condone such things.
	He is stating that in the capacity as the President, as he, as President Mandela was keen for the liberation of this country, I think he knew that to facilitate or not to disrupt the process of negotiation, there was a need for him to compile such a statement.

MR SMUTS: Thank you Mr Chairman, I don't have further questions.
NO FURTHER QUESTIONS BY MR SMUTS

MR MAPOMA: Chairperson, I have no questions, thank you.
NO CROSS-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Any re-examination?

MR ZILWA: Just very few, Mr Chairman.  Mr Maxhayi, if I understood you correctly, you have stated that despite your knowledge of the fact that the policy of the ANC at the time was non-violence, the ...(indistinct) of the situation was such that you thought your action was justified and it would be in accordance with the ANC policy.  Did I understand you correctly?

MLULAMISI MAXHAYI: Yes.

MR ZILWA: If you had known before committing the deed that the ANC would be against any retaliatory acts, such as the one that you committed, would you have committed your action?

MLULAMISI MAXHAYI: No.

MR ZILWA: No further questions Mr Chairman, thank you.

MR ZILWA: .

ADV SANDI: Just one question from me Mr Maxhayi, is it correct, do you agree with the view by the Judge where you were convicted and sentenced, that you gentlemen were just emotional, you acted out of emotions?  Do you agree with that?

MLULAMISI MAXHAYI: Yes, I do agree with him.

ADV SANDI: Thank you.