Amnesty Hearings — East London — 1999-03-26

ADV PRIOR: I can only argue on what the evidence is.  Mr Tjabane hasn't come and said that.  It's a difficult question to answer.  Advocate Collett has advanced that, that he was the man who gave the ... I'm saying the evidence on the probabilities overwhelming, on the probabilities and the direct evidence militate against that conclusion.  So Mr Sandi with respect, I have difficulty answering that question from where I'm sitting.
	Obviously if this Committee finds that Tjabane's a liar and he gave the instructions, well then obviously the findings may be somewhat different.  The Committee will still be seized with the facts that the armed struggle had been suspended and then maybe the conclusion is that Tjabane was acting for reasons of his own, for personal reasons.  But what we're saying is that we've got evidence from Palapala who says at the base he heard about this, they discussed it, they listened to the radio.  That supports what Tjabane has said.
	So it would seem unlikely that Tjabane in the light of his evidence and supporting testimony, would have in those circumstances still continued to give orders to carry out the attacks when he was reporting back and in liaison with the High Command.  And as he has said unchallenged, his evidence, that he was also preparing for the elections.  It was never suggested to him that he had another agenda.  So this would be speculation, with respect.
	Mr Chairman, the remaining matters would also fall into the same category.  Obviously they are of a less severe nature in the sense that although the attacks were on people, no-one died in those incidents and I would ask the Committee to also view those incidents on the same basis as the Bahai Faith Church.  Thank you, those are my submissions.

CHAIRPERSON: Ms Collett?

UNKNOWN: Just one or two things, Mr Chairman.
	My learned friend can't have his cake and eat it.  The learned judge in the judgment of the Bahai Faith Church specifically said that Mandla Palapala was an unsatisfactory witness and the only evidence that he was prepared to rely on was to do with the robbery of the motor vehicle and things that flowed from that.  If that is the evidence that was accepted by the judge in that Court, part of that evidence was the fact that they went to Jimmy Jones alias Xholile Tjabane after the incident had taken place.  And that flies in the face of what that witness has testified here before the Commission.
	The other thing is, with respect, Mpahlele's evidence isn't just in broad terms, he specifically stated that this mission was reported to him, he specifically stated that these people regarded the instructions that they had given as lawful.  And in that regard I refer you to page 25 at the bottom of Exhibit J.  And in addition to that, most of the testimony of Mpahlele is in direct conflict to that which Tjabane has come and brought before this Commission.
	Now Mpahlele was free and was in fact subpoenaed to come and testify.  If he wanted to say anything different to what was in this record, well then he should have come and said it and he hasn't.  In those circumstances we have his sworn testimony before the High Court, and the learned judge in that Court did not reject that testimony.  The finding that he made at the end of the day was based on legal principles.  He said he basically accepted that there was an order that was given, but he said that on the legal, based on law the accused should have regarded that instruction as being manifestly unlawful, not that they did, that they should have.  And it is for that reason that they were found guilty.
	At the end of the day, Mr Chairman, the fact of the matter is that they carried out instructions in line with APLA's policy, that those instructions were communicated to the Chief of Operations, that the Chief of Operations knew that they  did not know that the armed struggle was suspended, and that the Chief of Operations said he found nothing unlawful or out of line with APLA's policy in what they had done.  In other words, they had furthered the aims of APLA.  And those are my submissions.

UNKNOWN: Mr Chairman, just two remarks if I may.
	Well we know the attitude of Mr Mpahlele, he said he wouldn't participate in the TRC Amnesty process, he regarded it as a circus.  So this process he treats with contempt.  
	The other aspect is that I wonder if the judge's view would have been the same if Mr Tjabane was allowed to testify as he was subpoenaed to do.

MS COLLETT: Mr Chairperson, he was never subpoenaed by the way.

CHAIRPERSON: We will take time to consider our decision in this, but before we do, the usual question.  Are there any victims in this case, Mr Prior?

ADV PRIOR: Mr Chairman, yes, there are a number of victims.  In respect of the bundles of each incident victim lists were put up.  In the Bahai Church we have two widows that are present, and in the Da Gama matter there's the list of victims.  Unfortunately I don't have that at my fingertips.

CHAIRPERSON: I think in the light of the fact that this involves four different incidents, we will include in our decision the list of victims.  It's safe to say that we are satisfied from what we have heard, that the widows of the Bahai Church incident  are clearly victims.

ADV PRIOR: Thank you, Mr Chairman.  I think it would be useful to the Rehabilitation and Reparation Committee that those lists be annexed to the decision that's handed down.  Thank you, Mr Chairman.

CHAIRPERSON: Does that conclude our hearing here?

ADV PRIOR: Mr Chairman yes, I'm happy to report that that is all the business for today.

CHAIRPERSON: I would like to thank everybody here who have been responsible for organising the hall, organising the interpretation, the recording and looking after us generally.  We have as always on our visits here been very well treated and we would thank all of you who have participated in that, and we would thank certain members of the South African Police Force who have been extremely helpful.

ADV PRIOR: Mr Chairman, may I also ask leave for the Chair to commend the members of the public, supporters of the applicants as well as the victims for their impeccable behaviour and their conduct in the proceedings throughout the week.  Thank you, Mr Chairman.

CHAIRPERSON: I would agree that it has been an example to others, the way they have all behaved and also the patience they have shown having to wait for hearings, having to wait for adjournments.  We are grateful to all of you for your assistance in that way.  And finally, to the legal people who have participated in the hearing, thank you all.

ADV PRIOR: Please all stand for the Committee.
HEARING ADJOURNS