Amnesty Hearings — East London — 1999-03-26

CHAIRPERSON: Mr Prior, whether a witness is evasive or not is relevant.

ADV PRIOR: Well with submission, if one really analyses the situation that Tjabane was in, if you look at his evidence shortly before what the Committee put to him, I submit he wasn't evasive.  The answer that the Committee sought flowed from his earlier answer.  The Committee sought to get an opinion from him regarding Mpahlele's contradiction of his evidence, in other words his statement that they did not know about the cessation of hostilities.  It was implicit in his answer - that's my point with respect, it was implicit in his earlier answer that Mpahlele must have been mistaken and was mistaken or was not telling the truth.
	My submission is that in general terms and in the material respects of this application, one can place reliance on Mr Tjabane's evidence.  It certainly seems to be supported by Palapala's evidence at the trial, or his statement at the trial.
	We come down now to the ...(intervention)

CHAIRPERSON: Didn't Palapala say that Jimmy Jones told him to do things?

ADV PRIOR: Well he says he - yes, maybe I can address, I haven't fully prepared on that aspect.  I'm simply saying I'm not submitting that what Palapala said is correct in each and every respect.  Even the judge came to that conclusion, that in certain respects regarding the robbery of the car he accepts that evidence.  We have the direct evidence of Tjabane who said he never received vehicle.  Palapala says in his evidence in Court that the vehicle was taken to Jimmy Jones.  This Committee must then decide whether that can be accepted in the light of denial under oath by Mr Tjabane.  But where he says that he heard of the cessation of the armed struggle, that supports Mr Tjabane.  And I'm using those aspects to support or to indicate to the Committee that Tjabane can be relied on on those aspects.
	We turn to the question of what happened at Bahai.  My submission is that if one looks at all the information before the Committee, the underlying motive was robbery and nothing more.  We also heard from Tjabane that a lot of the people were angered at this indication by the hierarchy to cease the armed struggle.  And he also indicated that possibly there, people or groups splintered away from the acceptance of that instruction and carried out deeds on their own.
	I think the question of anger also was mentioned in the public submissions by the PAC, that the members were angry - I wasn't going to particularly refer to that, maybe I can come back to that briefly.

MR LAX: Mr Prior, you can take it as trite that there were elements of APLA who were angry, who didn't like the idea that the armed struggle was being stopped and coming to an end.  We've heard evidence of that in other places.

ADV PRIOR: ... to refer to page 94 of the PAC submissions where Brigadier Fitla who was the overall military commander of APLA was talking about political benefits to be obtained by the campaign and he also linked the political benefit up with proportionality.  And he was quoted as saying
"When we talk about proportionality we could have easily have gone for easier targets than the adults, we could have gone for creches, we could have gone for institutions for the disabled, but we had to look at proportionality, some of the things that we could also politically justify and defend.  If we had gone for example children in a nursery school, we could not be in a position to stand on this platform today and proudly speak about those activities."
	I submit that the circumstances of Bahai can be distinguished from other matters in which APLA were involved.  Unlike St James there was not removal of property, unlike St James there was no inquiry - sorry, there was an inquiry from the congregation at Bahai.  And despite being informed by the people at Bahai that the deceased were not boers, they were not settlers, they were not the enemy, they were not even white people, but were Persians from Iran, that did not dissuade them.
	And we've heard from Mr Tjabane that well-trained APLA combatants did have a discretion, could have turned away, could have retreated, could have altered the plan, if the circumstances permitted that.  I submit that the evidence ...(intervention)

CHAIRPERSON: So you're now saying the plan was not to go there to steal a car, it was to go there to kill the people, the whites there, which they couldn't divert from?

ADV PRIOR: No, I'm not saying that, with respect.  I'm saying that if we look at their version - I've made a submission that on the evidence it is certainly clear in my mind that the motive was robbery, but now we're looking at the applicants' version that they went there to kill white people, and I want the Committee to look at that in the light of the submissions that I make, that it was unlike the incidents, for example St James Church where there was an attack and a withdrawal.  There was an interplay between the people there.  And Mr Manensa who I submit was a very good witness and a reliable witness gave compelling evidence about the plea, she begged for their lives and she made it abundantly clear who these people were.  Despite that they went ahead and killed them.
	And another feature which is also compelling is the judgment of Mr Justice Dlodlo where he says in his view they must have known their actions were unlawful because they commanded the African people, the black people there to turn away so as they would not be able to identify them.

ADV SANDI: Sorry, Mr Prior, can I interpose for a moment there.  Page 5 of the judgment by Judge Dlodlo, the second paragraph from the bottom where it says
"Doctor Dominique John who carried out post-mortems on the bodies of the three deceased said the three deceased appeared white in complexion."
What do you make of that?

ADV PRIOR: Yes, well we saw photographs.  I tendered photographs to the Committee showing what the deceased looked like, certainly they were fair in complexion.  Yes, I can't argue that they were fair in complexion, but we had the congregation informing them of the true position.  I mean where we're dealing with automatons here, these programmed robots, were they just programmed killing machines?  With submission they were not, they had a discretion.  On their version they were APLA combatants.  We've heard the evidence of their commander that they had a discretion, they could taylor the operation depending on the circumstances on the ground.

ADV SANDI: Let us look at this matter from another angle.  Assuming that Mr Tjabane had given the alleged orders and instructions to the applicants but the armed struggle had been suspended by the PAC, what would be your argument on that?  Let us suppose Mr Tjabane came here to say that he had in fact given those orders in spite of the fact that the armed struggle had been suspended.