Amnesty Hearings — Cape Town — 1997-07-07

MR BRINK: And was that, you first saw your advocate two to three weeks before the trial.  Is that your answer?

PHILEMON KABILA MAXAM: Yes, that is so.

MR BRINK: And I take it you had a number of consultations with her?

PHILEMON KABILA MAXAM: There is something I do not understand.  Excuse me Sir.  My trial, are you talking about my trial at the Supreme Court?

MR BRINK: Yes, yes.  The one where you, when you were convicted and sentenced to death.

PHILEMON KABILA MAXAM: I thought you were referring to the other trial.

MR BRINK: Did you have a number of consultations with your advocate before the trial commenced?  That is the trial for the murder of these two people with which we are concerned today.

PHILEMON KABILA MAXAM: Yes.

MR BRINK: And did you tell her about your political activities?

PHILEMON KABILA MAXAM: Yes, I did tell her.

MR BRINK: And did you tell her that you went to this farm house to commit burglary with a view to obtaining weapons?

PHILEMON KABILA MAXAM: Please repeat the question.

MR BRINK: During the course of the consultations which you had with your advocate before the trial, with which we are concerned now, relating to the death of these two people, did you tell her that you had gone to the farm house with a view to stealing weapons?

PHILEMON KABILA MAXAM: Yes.

MR BRINK: Which weapons you needed to use because of all the trouble in your township?

PHILEMON KABILA MAXAM: Yes, it is so.

MR BRINK: So she was fully aware that your crime, in so far as it related to the breaking into this house, at very least, was politically motivated?

PHILEMON KABILA MAXAM: Yes, she knew because I informed her.

MR BRINK: So she was fully prepared to defend you on the basis that this breaking into the house was politically motivated?

PHILEMON KABILA MAXAM: Yes, it is so.

MR BRINK: Because it seems that in your defence, bear with me Mr Chairman, in your defence, I am referring to page 33 of the bundle and which is page 674 of the judgement, just below paragraph A on the left.  You gave evidence on your own behalf and you told the court that you had gone to the farm, because there had been an instruction by the President of the ANC to look for firearms for use in confrontation with the police.

PHILEMON KABILA MAXAM: That is so.

MR BRINK: And I take it your counsel asked you questions to suggest to you the answer which you might give to the court indicating that that was the truth?

PHILEMON KABILA MAXAM: I did not understand you well.

MR BRINK: When you gave evidence in your defence you told the court, as you have admitted, that what you did was on an instruction by the President of the African National Congress to look for firearms to use to fight the police.

PHILEMON KABILA MAXAM: Yes.

MR BRINK: You had told your advocate that?

PHILEMON KABILA MAXAM: Yes.

MR BRINK: And after you were convicted you then went back and gave further evidence did you not?

INTERPRETER: The interpreter did not hear.

CHAIRPERSON: Mr Brink I do not think they can appreciate the fact and that you are now request your, your questions are now ...

MR BRINK: Sorry, I cannot hear you Judge.

CHAIRPERSON: Your questions seem to be directed at a stage when he gave evidence in extenuation or mitigation.

MR BRINK: Yes, I have difficulty in hearing you Judge, your microphone is not on.

CHAIRPERSON: I am sorry.  I thought.  You should frame your question in such a way that he understands that he gave evidence a second time, ...

MR BRINK: Yes.

CHAIRPERSON: ... but that was in relation to the procedure after he had been found guilty.

MR BRINK: Yes, I thought I had done that, but I will put it again.

CHAIRPERSON: For the purposes of mitigation.

MR BRINK: Yes.  After you had been found guilty did you go back into the witness box?  Do you remember, because you were in serious trouble and you had to say something to try and persuade the Judge not to sentence you to death?

PHILEMON KABILA MAXAM: The evidence I gave was the same as the one I gave to the attorney, my legal representative.

MR BRINK: Yes, no, I do not think you quite understand me.  You first gave evidence before you were convicted, you gave evidence in your defence where you told the Judge, and presumably the assessors, that the reason you broke into the house was to obtain guns for political purposes.

PHILEMON KABILA MAXAM: Are you talking about during the trial now?

MR BRINK: Yes Mr Maxam, obviously.  Do you want me to put it again?

PHILEMON KABILA MAXAM: Please repeat the question.

CHAIRPERSON: Mr Brink, would it not be better if you put to him what his evidence was on that occasion and ask him did he say this to the court?

JUDGE WILSON: It is not here.

MR BRINK: I would rather develop it, Mr Chairman.

CHAIRPERSON: I see.

MR BRINK: With respect.

CHAIRPERSON: Yes, do carry on.

MR BRINK: Yes.  Alright.  You gave evidence in your own defence before you were convicted while the trial was still going on.  Correct?

PHILEMON KABILA MAXAM: Yes.

MR BRINK: Then the Judge found you guilty of murder and other offenses.

PHILEMON KABILA MAXAM: Yes.

MR BRINK: And after he found you guilty your advocate put you back in the witness box to give evidence to try and get a lighter sentence than that of death.

PHILEMON KABILA MAXAM: Yes.

MR BRINK: Yes.  Now when you gave evidence on that second occasion, when you were trying to avoid the death sentence, you went on about, more and more, about the reason why you did these things, was because it was political.  Is that not so?

PHILEMON KABILA MAXAM: Yes.

MR BRINK: But your advocate who was appearing for you at the trial said, I will read the words.  I do not know whether the interpreter can interpret this.
"Mrs Jones ..."
that is your advocate
"who appeared for you at the appeal and also at the trial disavowed any intention to submit that the crimes were politically inspired".

PHILEMON KABILA MAXAM: Having worked together with her, that is not what I found.  It is Mrs Jones after I was sentenced who tried to write to the Reparation, Repatriation Department of the ANC, National Indemnity Council making applications for me on political grounds.  I do not understand when you are saying that she did not use political motive for my defence.

MR BRINK: Well that appears from the Appeal Court judgement that at the trial she told the Judge that your crimes could not be said to have been political.

JUDGE WILSON: Did she do that Mr Brink.  This passage has caused me great difficulty.

INTERPRETER: I did not interpret Mr Brink's question to the applicant yet.

CHAIRPERSON: Leave it be.

MR BRINK: Just leave it for the moment.  Leave the question for the moment.  I will just deal with Judge Wilson's query.

JUDGE WILSON: He states in his judgement, Judge Howie does, that she appeared in both, at on appeal and also at the trial.

MR BRINK: Yes.

JUDGE WILSON: And he then goes and says she
"disavowed any intention to submit that the crimes were politically inspired".
Is he not talking about the hearing at the Appellate Division, because he then goes and talks about other statements.  Not that anything that happened at the trial.

MR BRINK: As I read it, Judge, Mrs Jones who appeared for him on appeal and also at the trial.  It could be either.  It could be either, but what ...

CHAIRPERSON: In any case Mr Brink, counsels submissions made to a court are influenced by what counsel thinks might be to the advantage of their client.

MR BRINK: Yes, with respect, I am aware of that, but what I wanted to find out was whether any instructions were given by the applicant to his counsel in that regard, because if, this might be a matter for me to address on you later, because if...

CHAIRPERSON: Yes, I think that these are fine points which ...

MR BRINK: Could ...

CHAIRPERSON: ... a lay client may not be able to appreciate.

MR BRINK: It may well be.  I do not want to be unfair to the applicant.