Amnesty Hearings — Cape Town — UNKNOWN

JIMMY MBANE: Your Honour, these people took me to Johannesburg and I spent a day with them writing the statement and taking down.  And we had a dispute about the statement and I came down to Cape Town and made another statement under oath.
	I am surprised now when I am being presented with this statement that I gave in Johannesburg, because the statement that I made under oath was on the 17th September here in Cape Town and I have it here with me in my possession.  I don't know exactly what happened.

CHAIRPERSON: So you have it with you?

JIMMY MBANE: Yes I have it with me.

MR BOOYENS: That's news to me, my Lord.  We have been specifically told that this is the only statement that's available, and I would certainly like to see that statement.  I want to know who it was made to, I want to know why it was deliberately kept from us, because if it was made by the Truth Commission, I would like to have somebody explain to the Commission why it was then deliberately kept away from us.  Because there can be no other explanation.

SISI KHAMPEPE: Mr Mbane is that a statement that was made by one of the statement takers in Johannesburg?

JIMMY MBANE: The person who signed this statement...the Commissioner of Oaths is Jasmine America and it was taken by Mr Zenzile Khoisan.  Thus I am surprised why this statement was not given in because I made it here in Cape Town and I still have it in my possession, the copy thereof.

SISI KHAMPEPE: When was that statement taken from you?

JIMMY MBANE: It was on the 17th November 1997.

SISI KHAMPEPE: Here in Cape Town?

JIMMY MBANE: Yes that's correct.

SISI KHAMPEPE: It was after you had attested to the document we are using?

JIMMY MBANE: That's correct.

MR BOOYENS: With respect, Ms Khampepe, I think he said that statement was made on 17 September, I think there may be a misunderstanding.  The statement to Mr Khoisan was apparently made on the 17th September, so that statement was made even before he testified and...

JUDGE MILLER: Perhaps if we could get clarification on this.  Mr Mbane, you say that you made a statement to Mr Khoisan.  Is that correct?

JIMMY MBANE: That's correct.

JUDGE MILLER: When did you make that statement?

JIMMY MBANE: I made it on the 17th November 1997 when I realised that there were some irregularities and mistakes on the previous statement.

JUDGE MILLER: Was that statement that you made on 17th November reduced to writing and was it made in the form of an affidavit or not?

JIMMY MBANE: That's correct, it was reduced to writing.

JUDGE MILLER: Was it sworn to as an affidavit or not?

JIMMY MBANE: It was under oath.

ADV J MOSES: My Lord, members of the Committee, I must apologise.  I have not received proper instructions with regard to this.  I have been confronted while my client was already under oath with a statement which purported to be another, with a heading of Affidavit of Xola Frank Mbane.  Now there seemed to be initials on the pages.  There is no signature above the name on the last page thereof, there is no signature above the name of Xola Frank Mbane, and my problem was that I, since my client was already under oath and examination in chief had already, was already finished, I could not take any proper instructions because I was not aware whether this in fact, whether it amounts to an affidavit, what the statement is and where did it come from.
	I was just briefly informed while he was still under oath that it has been received by Mr Zenzile Khoisan.  I am in the precarious situation now that I haven't received full instructions and my client is under cross examination and it would be difficult to have a consultation with him at this point in time, but I am also at pains to concede that that might facilitate, if a consultation would be allowed, it might facilitate the whole process of clearing up the existence and the status of the statement which has now surfaced.

CHAIRPERSON: I just want to be quite clear about this.  You consulted with your client about statements he had made.  There were two, and are you telling us that he did not once mention to you that he had in his possession a statement that he had made on 17th November of last year, that he never told you about that?

ADV J MOSES: My Lord, the only statements which I knew about was the incompleted statement.  I was not aware of this.

CHAIRPERSON: And he's just produced it this morning.

ADV J MOSES: He has produced it since he has received it from Mr Zenzile.

CHAIRPERSON: Does he say that he received this morning?

ADV J MOSES: That's right.

CHAIRPERSON: He got it from who?

SISI KHAMPEPE: Ms Patel, were you aware that Mr Mbane had made a statement to one of the investigating officers as late as November last year?

UNKNOWN: If I may place on record, I know that before I had consulted with Mr Mbane, he had spoken to Mr Khoisan before then.  But regarding the statement, I have no knowledge.

CHAIRPERSON: Did Mr Khoisan never tell you he had taken this statement, and that he had a copy of it?

UNKNOWN: At some stage, he had said that there was a copy of a statement.  I requested that and unfortunately it was never handed to me.

CHAIRPERSON: But it was handed to the witness?  Well, some time after yesterday.

UNKNOWN: So it appears.  I haven't seen it.

JUDGE MILLER: Would there be any objections from any of you if Mr Moses were given an opportunity to take instructions from his client on this aspect alone?  On the aspect of this statement of the 17th at this stage.  I know Mr Moses' problem is that his client is under cross examination and it is not normally practice to communicate with your client when he is being cross examined, but this is a new issue that has risen and it doesn't in any way affect the actual merits of the incident.  Would you have any objection?

MR BOOYENS: Yes, my Lord, and with that I want to make it clear:  no reflection on my learned friend whatsoever.  But it frequently happens during cross examination that new issues arise that people haven't mentioned in statements.  That is not a proper case to make an exception to the Bar rule that you are not supposed to consult with your client.
	I would most certainly have an objection.  Once again I want to place it on record that I am not suggesting my learned friend would do anything improper, or that my learned friend was involved in anything improper, but there is no personal reflection on him, but I think it will be improper for him at this stage to consult, and I would certainly have an objection.

CHAIRPERSON: Mr Moses have you any objection to that statement being returned to Mr Khoisan and copies being made available for everybody?

ADV J MOSES: My Lord, I can have no objection.  My only problem and I must concede to the point made by my colleague on behalf of the first applicant.
	The only problem with this, it is a statement, the status whereof is obviously questionable.  It isn't signed, and I have not had the opportunity to peruse it.

CHAIRPERSON: I understood your client to have said he swore to it.

ADV J MOSES: That is my predicament, my Lord, because I can tell you nothing.

CHAIRPERSON: But do you have any objection to it being returned and copies made for everyone?

ADV J MOSES: It has now come to the fore, my Lord.  It will have to be produced.

CHAIRPERSON: Right, we will adjourn to get the statement made available.  I don't think there's any point in continuing to cross examine on a statement made a year earlier, if there is a later statement, and I think enquiries should be made as to just what happened here.

MR BOOYENS: May we see your Lordship in chambers then as soon as we...

CHAIRPERSON: Yes.
HEARING ADJOURNS
ON RESUMPTION

CHAIRPERSON: Gentlemen, have you all now been given copies of this affidavit?