Amnesty Hearings — East London — 1999-03-26

XHOLILE TJABANE: According to what I heard, the intelligence found out that ...  My intelligence tried to find out what was happening, tried to investigate who were the people who attacked and then he said that Ncamazana was involved in those attacks.

MR LAX: Now having heard that and in the light of your earlier discussion with him and Mbambo, telling them that they should not do this again, what did you then try and do about the matter?

XHOLILE TJABANE: I tried a way that could take back Ncamazana to Butterworth and I tried to address the fact that the armed struggle was suspended, they must not continue attacking.

MR LAX: And what happened about your attempts?

XHOLILE TJABANE: Unfortunately that was the last operation, the Dam incident was the last operation where TNT passed away.  After that on the 28th we were then arrested.  I was not able then to address that with  him.

MR LAX: So that was the 28th of March, was it?

XHOLILE TJABANE: Yes.

MR LAX: And when were you released?

XHOLILE TJABANE: I'm not sure, I think it was the end of April or the first week of May, but round about there.

MR LAX: And then were you arrested again after that for the Willowvale attack?

XHOLILE TJABANE: I was arrested for that Willowvale attack because they said that I gave them instructions to go and attack.  The people who were involved said that I gave them instructions to attack.

MR LAX: So when you were arrested on the 28th of March, the Willowvale attack had already happened?

XHOLILE TJABANE: Yes, it happened on the 27th of March.

MR LAX: Thank you.  Just bear with me one second, Chairperson.

ADV SANDI: Sorry, Mr Tjabane, can I just ask you one thing that has just occurred to me.  In your understanding of the policy of APLA, if there was a plan to attack white children travelling in a kombi, would that have been in line with the policy of APLA, as you understand it?

XHOLILE TJABANE: Where were those children that were attacked?

ADV SANDI: Okay you can just leave it, Mr Tjabane.

MR LAX: Thank you, Chairperson.  Mr Tjabane, I want to show you a letter which was written by your attorney to the Attorney-General's office.  My colleagues are just looking at that letter, I will show it to you in a minute.  I'll just read the letter to you and then you can confirm that it is in fact from your lawyers
"Kindly be advised that we have consulted with Mr Xholile Tjabane together with the senior counsel who is representing APLA High Command in the Truth Commission, and it transpired that Mr Tjabane
		(a) has applied for amnesty as a member of the High Command of APLA, together with other members of the High Command and that it would be prejudicial to him and other members of High Command if he gives testimony before they appear in the Amnesty Committee.  
		(b)  that even if he were to give testimony, his testimony would not support or advance the State case, instead it would be detrimental to the State case and destroys it.
		Kindly indicate whether you still need him in the light of this, or in light of the above."
It's signed - it's not clear, but I see the reference is Mr Mbandazayo.  Could you just have a look at it please.

XHOLILE TJABANE: Yes, I can see it.

MR LAX: Did you ever instruct your lawyers to send such a letter on your behalf?

XHOLILE TJABANE: Yes.

MR LAX: Did you tell them that the evidence you would give would be detrimental to the State case against the two applicants?

XHOLILE TJABANE: Yes.

MR LAX: In the light of the evidence you have given today why did you tell them that?

INTERPRETER: Can you  please repeat that question, Sir?

MR LAX: In the light of the evidence you have given today - and if I might add, that evidence would have been very helpful to the State case, why did you instruct your lawyers to tell the State that?

XHOLILE TJABANE: I wouldn't be able to give evidence there.  I'm not giving testimony here, I'm telling the truth.

MR LAX: You haven't understood the question, or if you have you are not answering it.  Let me try and explain it to you again.
	Mr Ntonga, do you want to say something?
	The evidence that you have given today, and it is testimony here that you've given, if you had given this evidence in Court it would have been beneficial to the State case in some respects, and it is clear that what is being told to the Attorney-General's office is that your evidence would not be beneficial, in fact it would destroy the State's case.  Now we would like an explanation from you why you instructed your lawyers to do that.

MR NTONGA: Sorry, Mr Chairperson, isn't that being asked by the Honourable Member a privileged instruction between the attorney and client?  What he said to his attorney in consultation in preparation for anything is privileged.

ADV PRIOR: Mr Chairman, we've reached now the crucial stage where I submit and inquiry is going to have to be called into this.  Mr Mbandazayo alluded earlier that this letter was part of a technical or a strategic ploy to avoid calling Mr Tjabane.  And he also alluded to the fact that the applicant's counsel also had some knowledge or some participation in the drafting of the letter.  This matter I'm going to submit, needs to be properly investigated and if necessary, Mr Mbandazayo needs to be called to give a full account of how it came about that this letter was drafted and why it was presented in order to avoid Mr Tjabane testifying against the two applicants.

CHAIRPERSON: Is it of any great relevance to us, Mr Prior?

ADV PRIOR: It is.  If it serves at this stage if there's going to be the impression that this witness gave incorrect instructions to his attorneys.

CHAIRPERSON: Nobody said anything about incorrect.

ADV PRIOR: Well untruthful instructions.

CHAIRPERSON: He said he gave those instructions.  He has told us that he gave those instructions, right.

ADV PRIOR: Mr Chairman with respect, ...(intervention)

CHAIRPERSON: It is for us then to decide how that affects the evidence he's given here today.  He says he told his attorney the evidence he would give would be detrimental to the State case.  We can deduce what we want to from that.

ADV PRIOR: Well I'm going to indicate at this stage that I'm going to, I would like Mr Mbandazayo to be called to explain this aspect.

ADV SANDI: Yes, but my difficulty, Mr Prior, is that this witness is not even an applicant in this matter anyway.

ADV PRIOR: The impact of his evidence, it's the first occasion that we have a senior member of the APLA command giving evidence which flies in the face of what the applicants have told the Committee.  This letter if one understands the reason for which he's being cross-examined, is obviously to credit.  The inference will be argued that at a stage where he indicated to the Attorney-General that his evidence would destroy the State, will militate against his credibility in this hearing.
	I am not satisfied from what I have been informed by Mr Mbandazayo, and I communicated that to Mr Lax at the tea or just before the tea adjournment, that that serves the interests of justice in this matter.  There may well be, and I believe unless this matter is properly investigated there are underlying and further reasons why this letter was drafted and why this witness confirmed these instructions to his attorney.  
	Mr Mbandazayo indicated this morning when he came and gave an explanation, he said the letter that was submitted to the Attorney-General, it was given for ...(intervention)

CHAIRPERSON: What sort of discussion were you having with Mr Mbandazayo, Mr Prior, that you are now disclosing it to us?  Is it proper to do so if you are discussing legal matters with a colleague of yours?

ADV PRIOR: They were certainly not without prejudice and if necessary I will refer, I will mention them to the Committee in chambers.

CHAIRPERSON: I am not prepare to hear matters in chambers of that nature.