Amnesty Hearings — Cape Town — 1997-07-07

MR SWART: Perhaps you could have bought more that way.

PHILEMON KABILA MAXAM: If it was very, if it was possible for us to get weapons that way we would, but it was very difficult for us.

MR SWART: I put it to you that it was unnecessary to kill these two people.

PHILEMON KABILA MAXAM: Sir, that is your opinion, but truly the situation at the time seemed to be necessary.  If you were there you would see what was happening and, Sir, you must remember that I was never arrested before, I was never before the Magistrate and at the time I had to do such incidents, because of the situation in Mbekweni.  There was war in Mbekweni.  A lot of things happened that led to such events.  It was not our aim to shoot people, but we were forced by circumstances.

CHAIRPERSON: No, we have heard enough from you about the war in Mbekweni.  We have heard enough about that. It is being put to you that you went there and you decided that you were going to look for guns and if it meant killing the people to get the guns you would have killed and it was just totally irrelevant, as far as you are concerned, whether the people were to identify you or not.  If you found guns you would have taken the guns and you would nevertheless have killed them, because they would have identified you.

PHILEMON KABILA MAXAM: Is that a question Sir?

INTERPRETER: The speaker's mike is not on.

PHILEMON KABILA MAXAM: Okay.  Truly, we went there to look for weapons and if we found anyone else in that place we would have killed them, whether we found weapons or not.  Even if it was not the two people who were there.

SISI KHAMPEPE: That is precisely what is being put to you Mr Maxam.

CHAIRPERSON: Yes.

SISI KHAMPEPE: That you intended to kill at all costs in order to obtain the weapons that you were looking for.

PHILEMON KABILA MAXAM: Please repeat your question Mam.

JUDGE WILSON: I think what he said is they would have killed at any cost to obtain the chance to look.  It would not matter whether they found weapons or not.  They went there to look for weapons and if they found anyone there they would have killed them.  That is what you said, was it not?

PHILEMON KABILA MAXAM: It would have depended on the situation in that area at the time, because you can kill a person if that person can identify you whether you found the weapons or not.  That would depend on the situation at the time.

CHAIRPERSON: So when your friend held this lady by the arms through the window, at that stage before you broke into the house, at that very stage you decided to shoot her.

PHILEMON KABILA MAXAM: Yes, I shot at the time when my colleague grabbed her.

CHAIRPERSON: Are there any other questions?

MR SWART: Just one Judge.  It appears from his amnesty application that the co-applicant, Mr Ndinisa, seems to think that it was unnecessary for you to have killed these people.  Have you got any comment on that?

PHILEMON KABILA MAXAM: In what way Sir, because it was our aim not to shoot anyone.  Mr Ndinisa did not want anyone, anybody to be shot, because he tried to stop.  If we aimed at shooting a person we would have killed Mr Noble on our way there.  Why did we not shoot at him if we aimed at killing anyone, because Mr Noble gave evidence in court that there were weapons in his house, but he took them out, he left them at work before we got there.  If we were just shooting at people we would have shot him, because, but it was not our aim to do this, to do that, but the situation at the time forced me to shoot, because I was the only person with a gun.

MR SWART: I do not think you followed the question I put to you.  You say it was justified in shooting the people.  One of your co-applicants says it was not justified in his application.  How do you explain that?

PHILEMON KABILA MAXAM: Not according to my knowledge.  All of us, according to my knowledge he did not say that it was not necessary, but he was trying to stop us, because he did not want anybody to be shot.  We, I just shoot at these people because of the circumstances.

CHAIRPERSON: I think you have, you can miss that issue.  I do not think you can take it any further.
NO FURTHER QUESTIONS BY MR SWART

MR SWART: Thank you Judge.  Mr Brink, are there questions you wish to put.

MR BRINK: Yes.  I shall not be very long, but I see it is four minutes past one.  I do not know whether you wish to take the adjournment at this stage.  I am happy to proceed.

CHAIRPERSON: We will take the adjournment now and resume at two o' clock.

MR BRINK: Yes, could you ask the prison authorities, Mr Chairman, just to ensure that these three applicants are here just before two.

CHAIRPERSON: Will the prison authorities please identify themselves.  Gentlemen, I hope you appreciate by now that this is a matter of some importance and that you will ensure that the applicants are here in time for us to commence proceeding at two o' clock.  Thank you.  We will adjourn until two o' clock.
COMMITTEE ADJOURNS
ON RESUMPTION

PHILEMON KABILA MAXAM: (Still under oath).

CHAIRPERSON: Mr Brink.
CROSS-EXAMINATION BY MR BRINK

MR BRINK: Thank you Mr Chairman.  Mr Maxam, when you went to the farm you and your two co-applicants together with other people, four or five in all, arrived and saw the farm owner.  Is that the position?

PHILEMON KABILA MAXAM: Yes, that is the position.

MR BRINK: And had you got to the farm from G7 or G Block, rather, by foot?

PHILEMON KABILA MAXAM: Yes.

MR BRINK: And when you arrived at the farm you saw the owner, was he at the gate?

PHILEMON KABILA MAXAM: Yes.

MR BRINK: And from the gate you spoke to him, then did you walk up the farm road to the house?

PHILEMON KABILA MAXAM: We walked to the house from the gate.

MR BRINK: Yes, but was that along the road, some sort of driveway, from the gate to the farm house?

PHILEMON KABILA MAXAM: We were in his yard.

MR BRINK: I do not think you quite understand.  How far is the, how far is the gate from the house approximately?  You can indicate in this hall.

PHILEMON KABILA MAXAM: 20 to 30 metres.

MR BRINK: Right.  Now to get from the gate, where you spoke to the farm owner, to the farm house I presume you walked along some sort of driveway or farm road for that 20, 30 metres.  Would that be correct?

PHILEMON KABILA MAXAM: I cannot remember, but we used just a straight route from the gate to the house.

MR BRINK: Would that have been along some sort of gravel road or gravel path or a path used by motor cars or trucks or bakkies?

PHILEMON KABILA MAXAM: A gravel road.

MR BRINK: Gravel road.  That was the easiest way to get from the gate to the house?

PHILEMON KABILA MAXAM: I would say so.

MR BRINK: Can you remember what was on the side of the road, that is the road leading from the gate to the house, what was on each side of that road?  Was there a bush or what or vineyards or what?

PHILEMON KABILA MAXAM: I cannot remember, because there was green grass as well.

MR BRINK: Yes, well, when you left the farm house I take it you went the same route back to that gate.

PHILEMON KABILA MAXAM: No, I used another route.

MR BRINK: Did you and not the, all the other people not use the same road, farm road, back to the gate to get out?

PHILEMON KABILA MAXAM: I do not know, we spread and ran away.

MR BRINK: I see and is that why you say you did not observe any of your accomplices with things such as tape, video recorders, other property?

PHILEMON KABILA MAXAM: Yes.

MR BRINK: Very well.  Now the Committee has heard evidence about your confession which was handed in at your trial and that confession you have told us was a false confession.

PHILEMON KABILA MAXAM: Yes.

MR BRINK: And at that stage when you made the confession you had not had the benefit of legal advice?

PHILEMON KABILA MAXAM: Yes, that is so.

MR BRINK: How long before your trial did you receive legal advice?

PHILEMON KABILA MAXAM: I think it took from two to three weeks.