Amnesty Hearings — Cape Town — 1997-07-07

MR SWART: Thank you Judge.  Can you perhaps explain to the Commission then what was to be gained by hiding this truth in the past, because there is nothing political about when you shot her or how many times you shot her or when she was called for water.

PHILEMON KABILA MAXAM: As I said, and I repeat, the fear at the time to reveal the truth as is today, the police that were investigating the matter were trained by the very same regime that was oppressive to us.  I do not appreciate your saying that what you are talking about or referring to is mere facts and has nothing to do with politics.  The situation at the time, it is the army that arrested me.  I was expecting anything, that even in the middle of the night I would be killed with nobody knowing what is happening to me.  As you know according to the South African history if things were still the same I would not have the opportunity to be here and speak the truth as is.  I agree with him when he says I was deceptive at the Magistrate's Court.  I did lie.  If I had spoken as I am speaking today I would have certainly been killed by the police.

MR SWART: But, Mr Maxam, really, if you were to have said at your trial or in your statement, as you said this morning, that you shot the worker, the domestic worker, when you got to the house and you shot her again after she was leaving, I really cannot see what benefit or what, why you would then have been tortured and killed if you had said that rather than the way you said it here.  These are facts.  They have got nothing to do with politics.  I ...

ADV LOURENS: Mr Chairman, I wonder if I might be allowed to address an objection about this line of questioning.  The, what we have here is a record of the Appellate Division hearing the appeal.  This is a summary by the Appeal Court Judge of the evidence contained in a written confession taken by a Magistrate which this court does, which this Committee has not before it.  It may be that this is a summary of the actual words contained or the meanings contained in the confession and it is not immediately apparent that the, for example,
"She slumped to the floor and he shot her again",
are the exact words as contained in the confession.  It may be a summary of the events that took place.  One is not sure of that.  We do not have a record of the trial proceedings.  I would submit that the applicant has given an explanation.  If there are discrepancies why there should be or why there are those discrepancies, but I am in the hands of the Committee. I just thought I would bring it to you, your attention.

CHAIRPERSON: Well, it is a factor which you will bear in mind when you have a judgement, a report, evidence usually it is in summarised form, but I think that you should make the point that you wish to make.  In other words, you are trying to suggest to him that the difference between what he is saying now and what he said in earlier proceedings cannot be explained away purely because he did not want to disclose his political leanings at the time.  Impliciting what you are saying is that politics had nothing to do with it.  He is, in fact, lying.  That is what you are trying to say is it?

MR SWART: That is correct Judge.

CHAIRPERSON: Yes.

MR SWART: Is that, perhaps I should put it very directly to you.  My, what I want to put to you is that the facts of what had happened, regardless of politics, you have couched your evidence so today as to suit your application and that differs widely from what you said initially.

ADV LOURENS: Mr Chairman I must object again, because we do not know exactly what the applicant said initially.

INTERPRETER: The interpreter is not getting enough time to interpret to the applicant.

CHAIRPERSON: I think the applicant should know what is being argued between the two of you.  So, when you are making your point give the interpreter time please.

ADV LOURENS: Yes, Mr Chairman.  Perhaps, if I would repeat my objection, Mr Chairman.  It is being put to the applicant what he said at the relevant time, be it at the confession or even in the trial.  In fact, this Committee does not know what was contained in the concession, confession or what was said at the trial which occurred almost eight, nine years ago.

JUDGE WILSON: Let us ask about the next two lines and see if whether you suggest ...

INTERPRETER: The speaker's mike is not on.

JUDGE WILSON: ... and see if whether you suggest that the Judge in the Appellate Division might have got these two sentences wrong.
"Applicant went in only as far as the kitchen.  When he saw his accomplices carrying articles out of the house he went out with them".
Now it does not appear to me that the Judge reading the confession could have misunderstood the meaning there, does it?

ADV LOURENS: Mr Chairman, I voice my objection purely on the grounds that this, the confession and the record is not before this Committee.  I accept that this is a summary of how the Judge, how he found the evidence to be.

CHAIRPERSON: Yes, he made his finding on the evidence that was before him.

ADV LOURENS: That is so Mr Chairman.

CHAIRPERSON: Maybe in summarised form.

ADV LOURENS: That is so, in summarised form.

CHAIRPERSON: (Indistinct) you can carry on with your questions.

MR SWART: Thank you Judge.

CHAIRPERSON: You must bear in mind the kind of objection ...

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: Bear in mind the essence of the objection that is being raised.  Alright.

MR SWART: Thank you Judge.  Perhaps we could ask the applicant to comment on the last lines which were read which says that he only went as far as the kitchen and then he saw people coming out with articles which they had taken.

PHILEMON KABILA MAXAM: There is no such.  I went even into the bedrooms, I searched the house, I searched under the beds and kists and cupboards.  I wanted weapons.  I did not only end up in the kitchen and that I saw them carrying articles, I am not going to come here and lie as I lied before in court, because there was no hope for me.  I have come here to speak the truth I have sworn for.  I went into the bedrooms, I searched, I did not only end up in the kitchen.  How could I have gotten the box that I am talking about if I had only gotten as far as the kitchen.  My statement with the Magistrate and perhaps how the court handled everything, even if I go back to jail I will be satisfied with this Committee, because I have revealed everything and I know that they have my best interests at heart rather than the previous court under the previous regime.

MR SWART: Let me ask you very simply.  Why did you tell the Magistrate or the court that you saw your accomplices coming out with articles?  What, why did you say that?

PHILEMON KABILA MAXAM: First reason, it was to protect myself in getting even more deeply involved as I was involved in the direct shooting.

MR SWART: It goes on further to say,
"He noticed the gardener who had been tied up with wire and heard someone shout that the gardener should also be shot otherwise he would implicate them.  The appellant thereupon shot him and the gang made its getaway".

PHILEMON KABILA MAXAM: That somebody shouted and said I must shoot, because we are going to be identified by the gardener, that is not true.  Crosby Ndinisa said I must not shoot.  Nobody said I must shoot.  It was just a way to protect myself from the court itself.  Nobody said I must shoot.  I thought that I must shoot myself so that nobody could identify me.  That is the truth.

MR SWART: Was the gardener tied up with wire?

PHILEMON KABILA MAXAM: Not as I saw him as he was lying there.

MR SWART: How did you protect yourself by telling the court or making a statement to say that he was tied up when you shot him?