Amnesty Hearings — East London — 1998-10-05

MR SMUTS: Mr Chairman, the application that we have before us, has a reference number AM7207/97.  This document has a reference number 5206/97.  If one looks at the Hermans application reference number that is 5206/97, which is one before in serial, the document which has now been placed before the Committee, so there may have been documents submitted at that stage, but somehow there is another application, which is the one we were advised is before this Committee, and in that phraseology and averments, are different.

CHAIRPERSON: Yes, but it is obvious from the contents, that it refers to the same incidents?

MR SMUTS: That is so Mr Chairman, yes.

CHAIRPERSON: We have to decide which is the applicable one.  What would you say if one has regard only for the law?

MR SMUTS: Mr Chairman, there seems to be one application which in form thus far, complies and that is the original, the early one, the 5206 one.  It, with respect, it even applies in respect of additional charges.

CHAIRPERSON: What is your attitude Mr Mapoma?

MR MAPOMA: Mr Chairman, I would follow the same attitude that the only application which is properly now before the Committee, strictly speaking is the one with reference number 5206/97.  It is a pity that this one was erroneously inserted in the bundle of documents as against the 5206 one.
	My view is that the most reliable one is this 5206.

CHAIRPERSON: Mr Maxhayi, why was it necessary for the second application, second form to be completed?

MLULAMISI MAXHAYI: That one, we were approached by the ANC in Umtata Transkei region, to compile another form for their own reference.
	Now, we don't know how it was submitted before this one, because they came there after we had already completed this one.

CHAIRPERSON: So you didn't even know that the first one was submitted to the TRC?

MLULAMISI MAXHAYI: We were sure, because the one we did it together with ...

CHAIRPERSON: Is this 5206?

MLULAMISI MAXHAYI: Yes, this one.

CHAIRPERSON: And you had no intention of that other one, 7207, that that would be submitted to the TRC?

MLULAMISI MAXHAYI: Yes, as I have said that the ANC according to our own analysis, it was for its own reference, but we don't know how it was submitted to the TRC.

ADV DE JAGER: Whose handwriting is on the two applications?

MLULAMISI MAXHAYI: That handwriting is mine.

ADV DE JAGER: Which one?

MLULAMISI MAXHAYI: This AM7207/97, this one is my writing.

ADV DE JAGER: And the previous one?

MLULAMISI MAXHAYI: No, it is my lawyer's writing, this one.

ADV DE JAGER: Oh.   We have just quickly discussed the issue and we prefer to regard the document marked 5206, as the official application form, and the one marked 7207, will be disregarded from the application.

MR SMUTS: Mr Chairman, does that ruling exclude my canvassing the averments which the witness has now said, are in his own handwriting with the witness?

CHAIRPERSON: Are you referring to the one that is included in the bundle?

MR SMUTS: Yes Mr Chairman.

CHAIRPERSON: I would think so because Mr Smuts it is not a completed application in terms of the requirements of the Act, when in fact we do have one.

ADV DE JAGER: Mr Smuts, I don't think that you, it would disallow you if there are material differences, because even if I've got two statements of a witness, and the one is signed and the other one is not signed, and it is in his handwriting, I am entitled to say why did you say this, it materially differs from the other one.
	But, on the other hand, if it is not material differences, you will realise that it wouldn't be of much weight for us if it is not material.

CHAIRPERSON: In addition to that Mr Smuts, is that he clearly says that the one application form marked 7207, was not for the purposes of such application, it was not for the purposes of the TRC, but rather a request from a Branch of the African National Congress that it be filled in.  I am not too sure on what basis it was filled in.

MR SMUTS: Mr Chairman, it is suggested to me by my Instructing Attorney, that it may have been forwarded by the political party to meet the cut off date, there is a 10th of May 1997 stamp on the front of it.

ADV DE JAGER: The one seems to be stamped on the 10th of April and the other one on the 10th of May.

CHAIRPERSON: That also explains why it was not attested to, it was for the purposes of perhaps administrative purposes.  I am not too sure what the purpose of it is.

MR SMUTS: Mr Chairman ...

CHAIRPERSON: Maybe I must entitle you to, or allow you to cross-examine and deal with it question by question, and allow it and disallow it as the case may be.

MR SMUTS: I am indebted to you Mr Chairman.   Thank you Mr Chairman.  Mr Maxhayi, in respect of the document which has been before the Committee until this new document arrived now after lunch, is there anything in that original document which is not accurate or which does not properly reflect your position?

ADV DE JAGER: Mr Smuts, I think if you could perhaps refer to the numbers, because I don't know ...

MR SMUTS: I apologise, the document which is commenced AM7207/97 which has been part of the application documents, until lunch time today, is there anything which you found in that document in your preparation for your evidence today, which does not accurately reflect your position and your motivation for acting as you did?

MLULAMISI MAXHAYI: No, nothing, because both of them were completed in my presence, so they reflect what I said.

MR SMUTS: Can I take you to page 18 of the papers which are before the Committee, subparagraph 9(a)(4) where you are required to set out the nature and particulars of the act or offence.  Do you have that?

MLULAMISI MAXHAYI: Yes, yes, I do.

MR SMUTS: This is filled in in your own handwriting, is that correct?

MLULAMISI MAXHAYI: Yes.

MR SMUTS: There you say that as members of the SDU's in the Lusikisiki sub-region, we decided to kill the white people because they were a symbol of apartheid and that is due to retaliation as a result of the assassination of comrade Chris Hani.  He was our hero and rolemodel towards liberation of South Africa.  Do you stand by that explanation as to the nature and particulars of your act?

MLULAMISI MAXHAYI: Yes, I do.

MR SMUTS: May I take you then to page 20 and subparagraph 10(b) where you are required to set out your justification.  Do you have that?

MLULAMISI MAXHAYI: Yes.

MR SMUTS: You state there hence whites were the symbol of apartheid, we decided to kill the victims due to hatred as a result of the assassination of comrade Chris Hani, who was our leader and rolemodel towards the liberation of South Africa.  Do you stand by that averment?

MLULAMISI MAXHAYI: Yes.

MR SMUTS: At whom was your hatred directed?

MLULAMISI MAXHAYI: The hatred was directed to the white people who were counter-revolutionaries.

MR SMUTS: May I take you back then to your evidence regarding where it was that you procured your arms and ask you to confirm that Max Taho to whom you referred as the source of your arms, testified in the trial in which you were convicted.

MLULAMISI MAXHAYI: Yes, he did.

MR SMUTS: His evidence is recorded as the evidence of Mr S.C. Ntekiso, is that correct?

MLULAMISI MAXHAYI: Correct.

MR SMUTS: In his evidence in that trial at page 49 and we don't have the record unfortunately, we have not been permitted that, but in the judgement at page 49 of the typed judgement, his evidence is summarised from line 15 on page 49 as follows:  Accused 2 and accused 3 knew each other and he sometimes met them together.
	His attention was then directed to Easter 1993 and he said that in February of that year, after his return from holiday at his home, this was apparently at Burgersdorp, he was supposed to attend and did attend a Warrant Officer's course at the Transkei School of Infantry at Ncise outside Umtata.  Do you recall that evidence given in your trial?

MLULAMISI MAXHAYI: Yes, I do.