Amnesty Hearings — East London — 1999-03-26

ADV PRIOR: Well then do you want me to dispose ...(intervention)

CHAIRPERSON: Do you want to give evidence?

ADV PRIOR: I want Mr Mbandazayo to give evidence.

CHAIRPERSON: The purpose of the inquiry was as to why he told his lawyers that, not what they did, why he told them.  He says he told them that.  The question is why did he tell them that.  That has nothing to do with his attorney, does it?

MR LAX: Chair, perhaps we can short-circuit this whole issue if I just rephrase my question and simply ask what I'm trying to ask.  And that is, why did you tell your lawyer this?  That's not a privileged matter, it's ...  you've confirmed you've told your lawyer that.  Why did you tell your lawyer what in the light of your evidence today is untruth?

MR NTONGA: Mr Chairperson, it's the same question asked the other way around.  It's - what he wants to know is what discussion took place between him and his lawyer.

MR LAX: No, it's not that with the greatest of respect, I want to know why he told his lawyer an untruth when we are dealing with his credibility here ...(intervention)

CHAIRPERSON: Well I don't know that we can assume it is an untruth.

MR LAX: Well let's not call it an untruth, let's say it's at variance with the evidence before us.

CHAIRPERSON: For the sake of the record we should perhaps at this stage indicate that the letter referred to was handed in at the previous hearing as Exhibit F.  Perhaps it would be convenient to take the adjournment now.
COMMITTEE ADJOURNS
ON RESUMPTION

XHOLILE TJABANE: (s.u.o.)

ADV PRIOR: Mr Chairman, in respect of the matter which was being discussed before the adjournment, I've listened to the tape recording and just wish to highlight what Mr Mbandazayo said to the Committee.  He explained Exhibit F, the circumstances under which it was made.  And although he refers to
"It was written and produced to the State for technical reasons"
I think what he meant to say was for tactical purposes, because what he goes on to say, he says:
"It was in that manner that we avoided calling Mr Tjabane as a State witness."
And it seems clear that he was called to the hearing, Tjabane was already under subpoena and then in consultation with the hierarchy of the PAC and their senior counsel, it was decided to produce the letter which he wrote.  Obviously he must have checked it with this witness.  But the impression that is created is that the State was led to believe that Mr Tjabane was not going to be a good witness for the State and in addition thereto he had applied for amnesty.  Although it was very widely couched, it didn't say for what he'd applied for amnesty.  I don't intend at this stage to place anymore detail before this Committee and I leave the matter there.

CHAIRPERSON: I think another one of the problems of a different nature is - I have another letter somewhere written by his attorneys, he'd applied for amnesty and he'd submitted his application a year before, but he hadn't as yet received any confirmation from the TRC.  So this may have been causing him certain distress because I think we all know, Mr Prior, what it was like in 1996.

ADV PRIOR: Yes, you are correct, Mr Chairman.

CHAIRPERSON: I think that's very sensible because there are numerous ways in which the witness could have been a dangerous witness for the State, which did not in any way evolve his credibility or the applicants.  It could be the conduct of the investigation as such that if he were to disclose pressures that had been put on him it might have caused a ...

ADV PRIOR: ... Mr Chairman, that I'd rather let sleeping dogs lie and not go into the matter any further, thank you.

CHAIRPERSON: Any other questions?  Okay.

ADV PRIOR: May Mr Tjabane be excused?
WITNESS EXCUSED

ADV PRIOR: Thank you.  That is all the evidence from the Evidence Leader's side.

MR NTONGA: That is my case.
MACHINE SWITCHED OFF

CHAIRPERSON: Have you now come to argue?

MS COLLETT: Am I to argue first?

CHAIRPERSON: You're the applicant.

UNKNOWN: Thank you.
	Before the Committee are the applications of two young men who claim ...(intervention)

CHAIRPERSON: Sorry, I'm being lazy now.  Have you got written argument in front of you?

MS COLLETT: No, I don't.  It's actually the Heads of Argument that I used in the trial.

CHAIRPERSON: Oh, I better keep a copy of it.

MS COLLETT: Before the Committee are two young men who allege that they were members of APLA and that they were given certain instructions by commanders at APLA to carry out certain attacks.  What appears to be a bit of a thorn in the flesh is that the armed struggle had been suspended at that time and their actions are thus being questioned on that basis.
	The applicants' case is essentially that these orders were given to them by Jimmy Jones.  On a somewhat smaller scale at the trial Court, Mr Mpahlele who is presently a Director who was the Chief of Operations at the time testified in the High Court and stated:
(1)	that such an attack as the Bahai Faith Church
... and I would ask the Committee to read into that the Highgate Hotel, the Da Gama incident and the Nahoon Dam incident - would have been in line with APLA policy.   He also stated that although the armed struggle had been suspended he was aware that the unit to which these two applicants belonged had not received such notification.  And in that regard I've made reference to page 14 and 15 of the transcripts, Exhibit J that was handed in to the Committee, of Mpahlele's evidence.
	It's my submission that they did make full disclosure as required by the Act.  They gave great detail as to what happened, how it happened, why it happened, and specifically stated that although the armed struggle may have been suspended, they still received these orders and they acted upon them.
	We now have the testimony of Mr Tjabane, which is in direct conflict to that of the applicants, but in addition thereto it is also in conflict with the evidence tendered by Mpahlele at the High Court in Bisho. 
	One matter that I would highlight is the fact that Mpahlele said that as Director of Operations he was briefed about the mission that had happened at the Bahai Church and there was no doubt in his mind that the accused in that case, the applicants here, had acted in terms of lawful instructions and that he could not find anything unlawful about what they had done.  And that the Committee will find ...(intervention)

CHAIRPERSON: Unlawful in the sense of APLA unlawful?