Amnesty Hearings — Cape Town — 1997-07-07

JUDGE WILSON: That is what I find difficult to understand.  You yourself called this woman to the window so she would be close to you and have a very good view of your face, did you not?

PHILEMON KABILA MAXAM: I did not call her so that I can see her face.  I called her to the window so that she can open the door for us in ...

JUDGE WILSON: She ...

PHILEMON KABILA MAXAM: ... order for us to search the house.

JUDGE WILSON: You asked for a glass of water so that she opened the window and she handed out the water to you.  Is that not so?

PHILEMON KABILA MAXAM: Yes, that is so.

JUDGE WILSON: So she was an arms length away from you and would have a very good view of you.  If you were so frightened of being arrested why did you not hold back, why did you not let someone else do this, because now you had to kill her?

PHILEMON KABILA MAXAM: Can you please repeat your question.

JUDGE WILSON: You have told us that you killed her, because you did not want her to identify you.  Yet you were the person who called her to come and hand a glass of water to you, giving her the best possible opportunity to identify you.  Why, if you were frightened of being identified, did you not hold back and let one of the other people go and get the glass of water?

PHILEMON KABILA MAXAM: To answer the question, I was the person who asked for water and we were there with the intention to look for weapons, all of us.  I had to be the one to ask her to open the door for us so that we can search the house.  That is why I was the one asking for water, but there was a cupboard next to the window and we were outside at that time.  At least was not, she was not in my arms length.

CHAIRPERSON: I want you to understand and think carefully.  You knew that she would have a good view of your face when you went there and stood at the window and asked her for water.  You knew that, that she would have a good look at your face.

PHILEMON KABILA MAXAM: Yes, that is correct, she could see me.

CHAIRPERSON: My brother here wants to know, you killed her because you were afraid she was going to identify you.  That is also correct?

PHILEMON KABILA MAXAM: Yes, that is correct.  She was going to identify us to the police.

CHAIRPERSON: The question was instead of you going there and exposing your face to her, why did you not ask one of your colleagues to go there and ask her for water?

PHILEMON KABILA MAXAM: When we got there some of my colleagues, they went to the kitchen door.  Some of them went in the back of the house.  I was together with Madoda.  I am not sure who the third person was.  We were next to the window.  Madoda could not ask for water, because he grabbed the lady.  He would have to release her if he would ask for water.

CHAIRPERSON: I do not get the picture of how Madoda would grab this woman when she is in the house and he is outside the house.  How could he have grabbed her?

PHILEMON KABILA MAXAM: In the window, as the window was opened Madoda was next to the window.  When this lady gave me the water Madoda then grabbed the lady while she was giving me the glass of water.

JUDGE WILSON: And if she had been giving him the glass of water, she could have grabbed, grabbed him.

CHAIRPERSON: Was it at that stage that you decided to shoot her?

PHILEMON KABILA MAXAM: Yes, it was at that stage when the lady was screaming.  She was arguing with Madoda.  That is when I shot her.

CHAIRPERSON: Yes.  Do carry on.

ADV LOURENS: Mr Maxam, you were, were you quite, shall we say, an important part of the struggle in Mbekweni at that, in 1985?

PHILEMON KABILA MAXAM: Yes.

ADV LOURENS: If you had been arrested what would the consequences have been for the struggle?

PHILEMON KABILA MAXAM: Other people would have been involved and they would have been arrested in the community.  We ...

JUDGE WILSON: But what ...

PHILEMON KABILA MAXAM: .. were the youth at the time and we were working together.  When the police would arrest me it was easy for them to kill me as they threatened to do so.

JUDGE WILSON: But you have told us that in fact the result of this was that you ran away from there and had very little to do with the community thereafter.  You came back for five to ten minutes.  Is that not so?

PHILEMON KABILA MAXAM: Yes, that is so, but I arrest does not mean that, while I was running away it does not mean that I was not involved in the community activities, because I would go to the township and meet with the people.  I would be there during midnight and I would leave Mbekweni in the morning.  I would come now and then in Mbekweni.

JUDGE WILSON: Well, did you ask, when you came back for these secretive meetings, any of the people who had been with you whether they had found firearms or bullets on this day?  You have now told us that you came back and had meetings with people.  Did you ask any of these people whether they had got any firearms or bullets?

PHILEMON KABILA MAXAM: Sir, what I am saying is I would not meet with the people I was with in this incident, but I would be amongst the youth.  I would not see these people.  I last saw them on this particular day and I would not ask people around where they were.  I would not come to Mbekweni to meet with them, but to be amongst the youth.

JUDGE WILSON: But were they not the youth?  I understood these were members of the youth who went with you.  Have I misunderstood your evidence?

PHILEMON KABILA MAXAM: When I am saying the youth I do not mean the people who were with me during this incident.  I mean the youth in general especially those who were supporting or who were members of PAYCO in the community.  I am not saying that I met with the people I was with them in the incident.  When I am referring to the youth I am referring to those who were the youth in general in community.

CHAIRPERSON: Yes, carry on.

ADV LOURENS: Mr Maxam, do you take responsibility for the shooting?

PHILEMON KABILA MAXAM: Yes, I do take responsibility for the shooting.

ADV LOURENS: Now, at the trial of this matter it was found that the motive for the attack on the farmhouse was one of robbery, because of the other items that were stolen and, if I am correct, the learned Judge in your trial found that to find guns would have been an added bonus, I think in his words.  If that could just be interpreted before I proceed.  Why was the political nature of the raid on the farmhouse not emphasised at the trial?

PHILEMON KABILA MAXAM: On the day of my arrest one of the police who were amongst those who were arresting me said that, Makina, I know you and we were playing together while we were still young.  He told me not to say anything concerning politics, because these people would torture me and they would kill me.  I then met this police in prison again.  He said that, he confirmed this.  He said that if I mentioned anything about politics these police would have killed me.  It was very difficult for me to talk about politics in the trial.  Secondly, at the time of the trial there was no hope as I have, I was, I had no hope as I have hope to this Commission.  Thirdly, if you would be arrested concerning a political activity you would not get a parole in prison.  It was very difficult to get a pay, a bail.  There were no indemnity for political reasons in those years.  If you would be involved in politics at the time, if you were arrested you would be arrested for a long time and they would torture you.  Those are some of the reasons why I did not mention directly my involvement in politics.

JUDGE WILSON: Let me read from the judgement for a bit.
"Appellant testified in his defence and alleged that what the group actually went to the farm for was in response to a widely disseminated instruction by the President of the then banned African National Congress to look for firearms for use in confrontation with the police".
That is fairly strong politics, is it not?

CHAIRPERSON: What page is that?