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Type AMNESTY HEARING
Starting Date 26 March 1999
Location CATHOLIC CENTRE, EAST LONDON
Names XHOLILE TJABANE (JIMMY JONES) - WITNESS, DA GAMA BUS ATTACK & HIGHGATE HOTEL
Matter BAHAI FAITH MISSION - NAHOON DAM -
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Mr Chairman before that is done, may I bring the following matters to your attention. Mr Chairman, you and your Committee will no doubt be aware of the ongoing communication and discussion regarding the availability of Mr Happy Mpahlele to give evidence in this matter, that although placed under notice to be he refused to accept the notice and there were also certain indications by his attorney, Mr Mbandazayo, in an attempt to try and secure his attendance, culminating in a meeting with this or with certain Committee Members in, I think was it Pinetown? Mr Mpahlele has not made himself available and I understand is not prepared to give evidence. He indicated that there were certain preconditions that would have to be met before he gave his evidence, and those preconditions have not been met. They relate to certain lists of APLA cadres in the possession of the police and the police aren't willing to release those. So by and all it's a situation where Mr Mpahlele is not making himself available.
Now on the 1st of June - and as a result of an approach made to the PAC by the Commission, I think it was Doctor Alex Boraine that had spoken to Mr Mondane and the President of the PAC, the PAC submitted to the TRC certain submissions which is dated the 27th of May. Those were circulated to all interested parties by letter, or by fax letter on the 1st of June 1998, in particular the applicants' counsel was faxed a copy of those submissions on the 1st of June 1998. May I enquire whether the Committee is in possession of those submissions? Mr Chairman, if I may just show you it, it's on a PAC letterhead, signed by Patricia de Lille on behalf of Mr Mike Mondane.
I would also like to tender at this stage, or possibly no, I'll hold that over. The issue regarding Mr Mpahlele will probably be raised at the end or at some other time this morning. - no, possibly I can raise it now because I think Miss, I think Advocate Collett before Mr Jimmy Jones' call, I think is going to address the Committee. I want to tender a letter directed to Mr Theo Mabusela, the PAC Constituency Office in Cape Town, of 19 March 1998, which basically led to the submissions being sent to the TRC, where the Amnesty Committee raised certain concerns with the PAC regarding Mr Letklapa Mpahlele. May I hand that up?
And then finally, we are in possession of the judgment in the High Court, Bisho, under case CC01/97. It was a judgment handed down by His Lordship, Mr Justice Dlodlo in Bisho, and that's dated the 15th of March '99. In the judgment it is clear that the two applicants were convicted of the three murders, or the murders of Mr Buck Shindege(?), Mr Anvari and Mr Rasavi, as well as a count of robbery. I ask that these documents - if the Committee deems it necessary to mark them, be handed up.
MS COLLETT ADDRESSES COMMITTEE: Mr Chairman, there are certain things that I would like to place on record before Mr Jones gives his proposed evidence. The first is that on behalf of the applicants. I was only informed last Wednesday of these sittings before the Amnesty Committee this week, by Ms Ntanga.
The second thing is, I received no correspondence whatsoever that Letklapa had not received his subpoena, had said that he was not going to testify, and at all stages I was under the impression that he was under subpoena and would be here today to testify.
As I understood it, last time we were at the hearing, Mr Chairman, it was the Committee's desire that Mr Letklapa should come and testify in view of the fact that I handed in certain testimony that he had given in the Bisho High Court. I didn't understand that Mr Jones' evidence was as important to the Committee as that of Mr Letklapa.
I believe that in view of the fact that Mr Letklapa's not here, and I was not privy to any of the discussions that took place in Pinetown, neither was I informed thereof until today when my learned friend has just addressed the Committee, I believe that my clients stand to be prejudiced if Mr Letklapa is not here to give evidence in view of the fact that I have seen Mr Jones' affidavit and seen the nature of the evidence that he is to give. I would ask for some form of a ruling on that in the interests of my clients.
"The State intended to call Xholile Tjabane to testify. Through his lawyers Mr Tjabane said that he and other members of the APLA High Command had applied for amnesty and their applications are pending before the Amnesty Committee of the Truth and Reconciliation Commission. He said that if he testified before this Court, his application would be prejudiced. He said that in any event his evidence would not favour the State."
CHAIRPERSON: Yes, but if his evidence does not favour the State, do you want Mr Mpahlele? It may be he says the same thing, we don't know yet. That is the point I'm making. All we do know is that at a trial in the High Court he said that, his lawyers said that.
CHAIRPERSON: No, it was Mr Jimmy Jones, the witness we are to hear today. And if his evidence does not favour the State it would favour, I read it as meaning it would favour the accused, your clients. So shouldn't we hear his evidence and we can then decide the question of Mpahlele?
ADV PRIOR: Mr Chairman, the situation as I understand it is that this was an address or a remark made by Mr Mbandazayo, information that he had given the Court at the time when the State wished to subpoena or call Mr Jimmy Jones, that was placed on record, that he had made an amnesty application, that application would be prejudiced and in any event his evidence would not assist the State, and that is why they left him alone. I don't think the inference from that remark is that in fact his evidence would assist applicants. I think it was stated in order to avoid him giving evidence at that stage.
ADV PRIOR: Mr Chairman, my attitude, on behalf of the, as Evidence Leader, is to press ahead and obviously to hear the evidence that is available. At the end of that we may come to a different conclusion regarding whether Mpahlele is necessary or not.
MR MBANDAZAYO ADDRESSES COMMITTEE: Thank you, Chairperson and Honourable Members of the Committee. I want to say something with respect to the question of Letklapa Mpahlele, about him coming to testify.
Chairperson and Honourable Members of the Committee, I have spoken to him. He just phoned my just now, now, now, when I was coming in here. I left a message for him. And he reiterated his position, that he will not appear before the Committee, irrespective of what. He is prepared to go to jail. So if one wants his evidence it's as good as if it's not there because he says he is prepared to go to jail because he cannot testify before the this Committee.
CHAIRPERSON: Yes, he has made a general stand and says in no cases will he appear, whether they have any relationship to this list of names or not. And in that case, if he is a necessary witness and if it is in the interests of justice that he be heard, he will be subpoenaed and he will go to jail.
MR MBANDAZAYO: Chairperson, also then going to the question of Jimmy Jones in Court. Chairperson, I wouldn't like this time, because the reason for him not testifying was in a way not necessary that he did not, he himself did not want to testify, but for ... I consulted with him and I consulted with the members of the High Command. Then for technical reasons then that's the reason that the letter was, I wrote the letter. I went to High Court and put that position that he will not be in a position to testify. In a way we were avoiding the State calling him as a witness in the case at that stage.
CHAIRPERSON: So what you told the Court, is that not correct? That the judgment says he said that if he testified before this Court his application would be prejudiced. He said that in any event his evidence would not favour the State. As I read it that is what you as his legal advisor told the Court because they say
MR MBANDAZAYO: Chairperson, I want to say that in Court, I still maintain it, that the reason for him not testifying, he was already in Court when I was called to come and he said he wanted to see his lawyer. He was already subpoenaed.
MR MBANDAZAYO: Yes, Chairperson. Chairperson, also that the reason why I, this matter, this one of not testifying in Court, I think the problem why I'm uneasy to talk here is that also I think he has knowledge of this, the counsel for the applicants knows the reason why the letter was written in the High Court and to ...(indistinct) as both parties were involved in that matter.
CHAIRPERSON: You will come and tell me these things, but we are here to hear evidence. We have been asked to hear the evidence of Mr Jimmy Jones, we've been shown the statement which is a summary of his evidence, which is relevant to the inquiry before us. There is evidence given by Mr Mpahlele at the trial of Ncamazana, which would appear to conflict directly with Mr Jimmy Jones' evidence. It is important for us if we are to hear the truth, to hear this evidence and to decide on it, not to avoid the issue completely to the prejudice of the applicants.
MR MBANDAZAYO: Chairperson, I have no problem with that. Even Letklapa Mpahlele, I am the person who called him to go and testify in Court. I brought him to Bisho and also I took him back to Bloemfontein after testifying.
MR TJABANE: I called all the structures at the time. I instructed the structures to further instruct the ground forces to cease the armed struggle because we were preparing ourselves towards the negotiation process.
MR TJABANE: I was working from the regional commanders. I had nothing to do with the foot-soldiers, I was working with regional commanders, camp commanders. Those were the people that I used to communicate with whenever we were discussing anything. I had nothing to do with the foot-soldiers. That was the procedure at the time.
MR TJABANE: They were just foot-soldiers, they were not commanders. The field commanders had fallen. Those who are still alive, that is Dumisane Ncamazana, that is the person I used to know at the time. He was a foot-soldier, he was not a commander.
MR NTONGA: The evidence that they have led in their application is to the effect that after the armed struggle had been suspended in '94, they still received instructions to carry out certain operations and they claim that they received those instructions from you. What do you say to that?
MR TJABANE: I think that was a failure on the side of the commanders, it was not their fault. I never instructed them to carry on. I told them in January, I told the commanders to stop fighting. I think that was a failure on the side of the commanders of the time.
MR LAX: Sorry. You misunderstood the question for the second time. If we can go back one question which you haven't really answered. The two applicants said, and this was the question you were asked - it may not have been interpreted properly because from the nature of your answer it sounded like you didn't really understand it, you were asked: "they say you were their commander of their unit", were you the unit commander?
MR TJABANE: I'm saying, from the beginning I never gave them any instructions, there were other structures that I used to give them a command, the Regional Command and the camp Commanders. I was never responsible for them. They used to get their instructions from the other structures, not myself.
MR TJABANE: I never gave any direct command to them. I used to give commands to the structures like regional commanders down, not directly to them as foot-soldiers because they were at the lowest level of the hierarchy. There were other people who were responsible to give them instructions, the field commanders who were working with them during the war.
MR TJABANE: After the President had said that it was time to stop the fighting, I called the structures, the regional structures and I told them that it was time to stop the armed struggle, they had to go and inform the other forces that we had stopped fighting. That was the end.
MR TJABANE: When I saw them for the first time, I saw Mbambo for the first time after the Bahai attack and I asked where he was coming from and where he was going and how was he recruited, and they told me that he was found in Mdantsane. I asked as to what his position was in the fight and I asked them where did they get this person. They said he is the person who took care of them at Mdantsane. I saw Mbambo for the first time on that particular day.
MR NTONGA: If the Committee would bear with me. The incidents in which the two members, applicants, and the other two who are late are applying for, occurred after the 1994 suspension of the armed struggle. Is your evidence to this Committee the fact that after that declaration you never gave anybody any further instructions to go into any operations? Is that your evidence to this Committee?
Now Mr Tjabane, in the High Court in Bisho, Director Letklapa gave evidence and one of the things that he said - and I refer to page 15 and 16 of the typed record of the proceedings, was that despite the fact that the armed struggle had been suspended, it took quite a period of time to actually be conveyed to certain of the, for want of a better word, units in South Africa and specifically he said that at the time that the Bahai Faith Mission attack took place, he knew that the Transkei had not received that information. Would you like to comment on that?
MR TJABANE: I think that was a failure from the higher structures that were my subordinates, but I had already told them that it was time to cease the armed struggle. I was not residing with them, I was staying somewhere else. I wouldn't call the forces whenever I was about to issue an instruction, I used to call those who were close to me, that is my subordinates.
Mr Tjabane, I don't think you've actually answered my question. What I put to you is that Director Letklapa said that he knew for a fact that the bases in Transkei had not been given the instruction to cease in terms of the armed struggle, at the time that the Bahai Faith Mission attack took place. What do you say to that?
MR TJABANE: I cannot remember the date, but if you were listening, after it was mentioned that it was time to disband, I called all my structures, the higher structures in APLA, and I told them that the President had said people should stop fighting and prepare for the negotiations. So they had to go to prepare themselves to go and approach the structures down the hierarchy to stop fighting, to tell them to stop fighting and prepare themselves for the negotiations.
ADV GCABASHE: We've heard that evidence, I'm simply trying to ascertain when you had this meeting with your subordinates. Sometime before March and after January, have you any idea when between January and March you had this meeting? That's what the question was.
MR NTONGA: Mr Chairman with due respect, Mr Letklapa is talking about a unit, the lowest, and my client is talking about the upper structures which were given instructions and he will know when each unit received those instructions.
MS COLLETT: Is it correct that you would have been the person who would have had to give the instructions that the armed struggle had been suspended, so that they could be given to the units under your command?
MS COLLETT: If you will just answer the question, Mr Tjabane. Is it correct that you would have been the person who would have given the instruction that the armed struggle had been suspended, to all the units or to the commanders of all the units?
MS COLLETT: I'm going to ask you again. You as the commander of the Transkei area, was it your responsibility to make sure that the commanders of all the units that you've referred to were given this information that the armed struggle had been suspended?
MR LAX: Just let me finish, don't interrupt me. I'm busy speaking to you, have that patience just to listen. He's said emphatically that he instructed all his commanders to cease the armed struggle, he said emphatically that he was responsible for all the units underneath him. How do you want him to say it another way?
ADV SANDI: Yes but I thought, Mr Collett, are you not saying, in that situation we are talking about, that he would have been the person to call these people and tell them that look, the armed struggle has now been suspended? That is your question as I understand it.
MR LAX: Because I'm not, I understand him to have said he called all his regional commanders together at the end of January and he instructed them to inform the people underneath him that the armed struggle had finished. That's how he put it. I don't which commanders she's talking about now.
MR TJABANE: The camp commander was a person who was in the camp taking full responsibility, maintaining order and report if there was any infiltration. He was the most important person because he was the person who was in charge of the soldiers and monitored their behaviour.
MR TJABANE: Yes, he is the one, the camp commander is the one who was taking charge of the camp. Whenever there was a meeting he would be called as a person who had a huge responsibility of monitoring the forces in the camp.
MR TJABANE: Yes, in the camp you do have intelligence so that things don't just go about. You have to make sure that you get a report from the intelligence that is there to monitor every movement in the camp and in the structures.
MR TJABANE: What used to happen was this, if I had instructed the regional commander, the instruction would go down to the forces and I would be told that a meeting was held and the people were instructed as I had told the regional commanders.
MR TJABANE: If you instruct the camp you tell the forces what to do and it ends there and you will even get that from other structures, that a meeting was held and the forces were told that the armed struggle is ceased. It just ends there. It cannot happen otherwise. You normally hear that the forces are told. I cannot answer as to certainty about that.
MR TJABANE: I wonder what response are you looking for because I am telling you that things were done and people wouldn't do otherwise, they would do what was discussed. Because what is important is that if you had that type of a meeting people will normally come to you, people close to you, people like the intelligence, they would come and tell you that things happened as you had instructed them as a leader. They will further tell you that the forces had got the message. I don't know how can I put this because I've been trying to explain it.
MR TJABANE: Your intelligence or someone else. You have just given us a long answer about how people would come and tell you that there had been a meeting and they'd got instructions. I'm asking you did this happen in this case, were you told that the forces had been told the armed struggle was over?
MR LAX: Let me explain something to you. The way you answer gives us the impression that you're talking in a vague general way, you're saying it should have happened like that. Now it just might be the turn of phrase that you're using. We're asking you questions that require a simple yes or a no, and you're giving us a long story and that is confusing everybody. So what the judge is asking you is this, he's saying; did you in fact receive a report, not yes, you should have received a report, did you actually receive a report, yes or no? It's quite plain and simple. If you didn't then you didn't, if you did, you did.
MR TJABANE: I am saying, after the meeting was held my intelligence came and informed me that there was a meeting, people were told that I had said that the armed struggle should be ceased. I did get the report because the intelligence came to me to inform me about the meeting.
MR LAX: Okay, now the next important issue is; that report you received, did it relate to the unit that these two applicants would have been part of, or the camp where they would have been based that their unit would have been part of?
CHAIRPERSON: Well you've heard the evidence ...(indistinct). He did say originally didn't he, that these people had not been told and that's why they continued to act? And then he said ...(intervention)
MR TJABANE: I think I've repeated that more than once. I've been repeating this. After the President had issued the instruction, I told them that the armed struggle was ceased. I don't know where that is coming from, what you are saying, but what is important is that I told them that the armed, it was time to cease the armed struggle, it was time to prepare for the elections.
After you had apparently informed the units that the armed struggle had been suspended and your intelligence had given you the reports that everybody knew and that meetings had been held, did you convey that to the Chief of Operations, Mr Letklapa?
MR TJABANE: I cannot say all the units because in my area and the camp that I was in is the one that I told. Transkei was so big I couldn't go to all of them. There were other camp commanders or members of the High Command who were based on other stations. I think they heard the message.
MS COLLETT: Do you not know where Letklapa got the information which he testified about at Court, that he knew that the unit involved in the Bahai Faith attack did not or had not received the information about the armed struggle being suspended?
ADV SANDI: I just want to know, what do you think of what Mr Letklapa said in Court, do you think he was making a mistake, he was lying to say that APLA forces had not been told that the armed struggle had been suspended?
CHAIRPERSON: You are not responding for him, you are responding for yourself. If you know the unit had been informed that the struggle was over, then what he said in Court was not correct. And as I understand your evidence you have told us that the, specifically, that Dumisane was in camp when the meeting was held and he was told that the armed struggle was over. Do you remember telling us that?
MR TJABANE: You must know that we were oppressed for more than 300 years by the whites, it might happen that they were very angry and they decided to continue the armed struggle. But I had given them the message that the armed struggle was ceased. I respond for them, but I don't know what made them to continue. I am just - I think that since they were oppressed for more that 300 years, they decided otherwise with their field commanders.
MR TJABANE: I think I have simply answered the question, that I had addressed the matter with the regional commanders and their structures that the armed struggle was suspended. I was not present when they were telling them. And the information that I got from the intelligence was that all the forces were told. I do not know that at that particular time as they were addressed maybe someone had gone to the toilet or somewhere when that was mentioned, but I knew that all of them were there at the camp, all the forces were there at the camp.
Mr Tjabane, you're being asked a simple question. Your evidence has been that these people all were told and you had reports that that camp was told and that you say that Dumisane Ncamazana was there, that you seem to know, and therefore he must have known, do you understand that?
MR LAX: Just keep your answers to a simple yes or no. You go on a long story and it doesn't help anybody. Now you're also been confronted with the evidence of Letklapa, which is that as far as he knew they hadn't been informed. Do you understand that?
MR LAX: Just listen to the question before you go on a long story again. I'm trying to help you answer this question. Don't worry about, I'm not here to trick you, just listen to the questions. You've heard what Letklapa said at Court, yes or no?
MR TJABANE: I cannot answer for Letklapa because it looks like the people who were involved in this I had already responded for them but I cannot respond for what Letklapa said, to what Letklapa said. All I know is that Dumisane was at that particular meeting.
MR LAX: Sorry, you're missing the point again. What Advocate Collett is asking you is - forget about the cessation of the armed struggle, forget about that part of it, if this had happened before the cessation of the armed struggle, would it have been in line with PAC or APLA policy? That is what she is asking you.
MS COLLETT: Now evidence was tendered in the High Court case, and it has been the evidence of the two applicants before this Committee that after this mission had taken place, particularly at the Bahai Faith Church, they went back to you and reported the success of this mission and handed a car over to you, is that correct?
MR TJABANE: No, that is correct. I called them after this, after hearing about this operation and I asked them how this happened because they heard that the armed struggle was suspended. They didn't hand over any car or anything. I just called them because I heard about this incident.
MS COLLETT: You see the evidence of Mandla Palapala at the trial, and I'm referring to page 45 of the bound volumes of the Court record, it's volume 1, he said that after they had left the Bahai Church it was dark and they arrived in Butterworth
"We went to a township in Butterworth called Coloured. That was where our commander resided, Jimmy Jones, as he was known."
And it appears that after that incident, if one reads further, that report was made to you or be it not by Palapala, and that the vehicle that was taken from the Bahai Church was left with you. Is that true or not?
MR TJABANE: That is why I asked because there was no need to recruit a person at that time, what was important was to campaign to the vote. We were trying to organise people to vote for the PAC, not to recruit for the armed struggle. That is why I asked them.
MS COLLETT: You see, Mpahlele's evidence at the High Court was also that whilst the PAC was campaigning for the elections it was quite correct despite the fact that it was denied, that there were attacks and things taking place in the name of APLA. What do you say to that?
MR TJABANE: Some other camps and other structures there was a misunderstanding at the time. I think they were still angry or they got a message after some time, but everybody had received the message.
MS COLLETT: When you called these people, on your version, to speak to them about the attacks that had taken place did you find out from them whether there had been a misunderstanding on their part about the fact that attacks should have been ceased?
MS COLLETT: And I want to put it to you that the reason why you are distancing yourself from this is because you have not applied for amnesty for these offences and that you could well face prosecution in these matters.
MS COLLETT: And I want to put it to you that according to Letklapa Mpahlele, this unit to which these two applicants belonged did not know about the suspension of the armed struggle at the time that these attacks took place.
MS COLLETT: And I want to put it to you that the attacks that took place according to Director Mpahlele were in line with APLA policy and would have been attacks that APLA soldiers would have been expected to carry out.
ADV PRIOR: And how many - if you can give us an estimation at that time, that was January/February/March of '94, how many cadres were, or how many inmates were at that camp at that time? - a rough estimate if you can.
ADV PRIOR: Mr Mbambo I understand is on a different footing, on his own version it seems, well it's unclear why he went along specifically on these operations, but did you know him before learning about the Bahai Faith Church attack?
ADV PRIOR: Now I think the sequence in this amnesty application is the following, that on the 24th of March 1994 the Bahai Church was attack, they then returned to Butterworth, on their version they reported to you, handed you the vehicle, they then thereafter returned to the East London area to carry out attacks at Nahoon Dam, Highgate Hotel and the Da Gama Textile Factory, and that was from the 25th to the 28th of March 1994. Now you've already told this Committee that that is not correct, you did not give them any instructions to carry out further attacks, is that so?
ADV PRIOR: If I make this comment are you able to give us your view; was it important, as you understood it from the hierarchy with the PAC, that the PAC should participate in the election in April '94?
ADV PRIOR: As a military commander, a man who was involved in many operations I understand, could you see any political benefit to be gained by APLA attacking such targets shortly before the elections, that is a few weeks before the elections?
ADV PRIOR: It was interesting to note your comment that despite the instruction or the information that was passed down by you to your regional commanders and to the camp, that there was - correct me if I'm mistaken, there was a mixed reaction to that within the ranks of the cadres. It would seem to my mind that some accepted that but others also did not accept that news, is that correct?
ADV PRIOR: Are you able to say within your camp, within your grouping there in Butterworth, was there an identifiable faction with any person being a leader of that group, who showed dissatisfaction and was angry with the news that now they had to stop fighting, stop the killing and go to the ballot box? Are you able to assist us?
ADV PRIOR: Are you aware whether any operation such as the repossession units had carried out in the past, whether money or property was still taken by force in order to fund the return to home by some of the cadres? Are you aware of that?
ADV PRIOR: Yes, but Mr Ncamazana and his comrades on their own version, took the vehicle belonging to the deceased at the Bahai Church - you deny having received it, but they took the vehicle ostensibly for APLA. And in the judgment at page 5, that is Mr Justice Dlodlo, his summary of the evidence was that Palapala said on arriving at Butterworth
"A report was made to their commander, Xholile Tjabane and the Jetta car and "buti" were shown to the commander, who congratulated them on their successful operation."
ADV PRIOR: Well when you learnt of the attack at Bahai Church and given the fact that you had told your camp that the armed struggle was over, did you take any steps against these people? What did you say to them, did you remonstrate with them, did you try and discipline them in any way? Was it possible to do that? Explain that to us please.
MR TJABANE: What I did I talked to them about what they did and I told them that that was not a correct thing to do so they must not do such a thing again. I told them that we are preparing for people to go back to their homes, we're organising funds for them to go back to their homes.
ADV PRIOR: Well did they agree after reporting to you after Bahai, and as you say you remonstrated or you indicated to them that that was not necessary that behaviour, not required of them? Did they acknowledge what you were saying to them or did they indicate to you that they were going to continue nevertheless?
MR TJABANE: I think the people who were leading the operation - there were no members of the camp that were involved in that operation, it was just people that I trained and after I told them that the armed struggle was disbanded they did that on their own.
ADV PRIOR: Can you maybe just explain for us - I may have the wrong impression in my mind about this camp, possibly from my experience, could you describe it to the Committee, how was it constructed? Was it a camp as we know it if we see a film about the army, does it have a fence around it, does it have a parade ground? And I'm talking about a camp in the conventional sense. Could you possibly just help me.
ADV PRIOR: And after the news that the armed struggle had been suspended, that was in January, was this house still used by people who had belonged to that unit? Were they allowed to come and go, or were they disciplined, they had to check in with anyone or not?
ADV PRIOR: The point is, were they free to come and go as they chose? For example, Mr Mbambo could have gone back to his home in Mdantsane and if he chose to go back to Butterworth he could have done that, nothing was stopping him.
ADV PRIOR: No, that's not my question. Were they able to go backwards and forwards or were they restricted to that house in Butterworth? And I'm talking specifically during the period March that was just before the election.
MR TJABANE: I don't know how that happened because there were camp commanders that were looking after the forces. I don't know how he got back to the camp. That is why when they came back from the Bahai operation I told them that people must stay in the camp until we find funds and then someone who had already left must not come back to the camp.
ADV PRIOR: You see I'm referring to page 5 of the judgment again, that is in the Bisho High Court, where he had informed the Court that he had gone to this base - and I understand it's the Butterworth base, for the sole purpose of hiding from the police who were looking for him in respect of certain criminal offences. Are you aware of that?
ADV PRIOR: Well I want to just lead on from that. I don't know, certainly it appears to my mind that if Mr Palapala who was a member of APLA and was familiar with that place or that camp, it seems to me that after the announcement that the armed struggle was over this base in Butterworth was used as a refuge, to escape the attentions of the police. Would you go along with that?
ADV PRIOR: Yes. You see the judgment goes on to say that in fact according to Palapala they had gone to East London to steal a car for the specific purpose of obtaining a car. They had failed to obtain a car in Least London and during that time it was then said that there was a church in Mdantsane which was attended by white people and there a vehicle was obtained, after killing the three deceased. Are you aware of that? What I'm suggesting is that it seems from the judgment, that the intention of this group going to East London was to obtain a vehicle.
ADV PRIOR: Can I ask you this question. Although you've answered that an attack on a church of this nature was in line with APLA policy, in fact the target of these attacks were basically white people, is that correct? - who represented the oppressor in the view of APLA, is that correct?
ADV PRIOR: Now my understanding is that Mr Ncamazana in particular as well as the others, TNT, and I think there was another one, Andile George alias Kid, had received substantial training as APLA combatants, is that right?
ADV PRIOR: Did a soldier, an APLA soldier have for example any discretion to assess on the ground the situation? For example the order - let's use this as a hypothetical situation, the order was given to attack for example a place where the information is that white people will be there and they would be all adults for example, when they got there and they saw for example, it wasn't adults it was children, would they be able to, did they have a discretion for example, not to attack but to pull off or pull away from the attack?
ADV PRIOR: You see in the Bahai Faith Church matter we have direct evidence that members of the congregation, in particular Mrs Manensa explained to the perpetrators, including Mr Ncamazana and Mr Mbambo, that the deceased were not boers, they were not white people, they were not settlers but they were Persians from Iran, they were people that were helping the community in Mdantsane. In other words, that in my view or to my mind makes a great difference because now there's information from the community that these aren't the targets of your attack, legitimate targets. How would you respond to that?
MR TJABANE: I don't know whether they believed what this person was saying, but what I'm saying is the commander had a right to retreat if he received any information. I think if they got that information from that particular person they were supposed to retreat and not continue with the operation.
ADV PRIOR: Thank you. Was that also part of the training, that they would be allowed, there was room for them to assess the situation and if it differed from what their planned mission was they could retreat, have I understood you correctly?
ADV PRIOR: Now before you addressed your camp and your regional commander and your camp commander about the cessation of the armed struggle, am I correct in understanding that, did you get this information from Mr Letklapa Mpahlele or had you had discussions with him after receiving that information from your higher command? Or did the information come from him?
ADV PRIOR: My understanding is that the units in the field could communicate with you for example, as the high commander, via Mtura, is that correct? They could contact their commanders through the intervention of Mtura. They could phone the restaurant and he would be able to pass on information or give them information, is that correct?
ADV PRIOR: Sorry, I'm just trying to understand for example, if the unit was in East London and there was a problem, how would they communicate, how were the lines, what were the lines of communication, what were the instructions, how would they be able to communicate with Butterworth? - yourself or the regional commander if there was a problem for example.
MR TJABANE: If they had a problem sometimes they would call there at that place. They would call Mtura and Mtura would report to me that certain people are experiencing a problem and then the regional commander or the member of the security would then communicate back to them about that problem.
Do you know in fact the very first incident that Mr Ncamazana mentioned when he started giving evidence was one relating to John Knox Bokwe teachers. They were instructed by you to shoot a kombi carrying teachers who were going to the college, John Knox Bokwe College, do you know anything at all about that?
ADV GCABASHE: Then after the Bahai incident the applicants have told us that they were further instructed by you at Mama's to go back for the other missions, that is Nahoon, Da Gama, Highgate. Again you have just said you know nothing, you did not meet with them at Mama's, you did not instruct them to go back?
ADV GCABASHE: The motor vehicle that was taken at the Bahai Church, who would that have been given to? Properly speaking in terms of the structures and the way the units worked, who were they supposed to give that motor vehicle to, and anything they collected at the church?
ADV GCABASHE: I'm now trying to put into context the Nahoon, Da Gama, Highgate incidents because it would appear to me that these incidents occurred after Willowvale, would you agree with me? - just from what we have before us.
ADV PRIOR: Mr Chairman, sorry. I seem to recall that list of incidents was compiled and it was handed up at the last hearing in April or May, may I just confirm that? I'm unsure of the exhibit number or whether an exhibit number was given to that list. It was a chronological list of all the attacks purported to have been carried out by APLA in the East London area during the, I think it was during that period 1992/1993/1994.
ADV PRIOR: Mr Chairman, to the extent that it may well be relevant and important to the Committee to have a sense of when the Willowvale Police Station attack occurred, may I be permitted to possibly just make a very quick enquiry to that end. I don't think it would take very long to get that information. And to that end, if no-one has any further questions ...(intervention)
"I know him from a long time back. He used to take soldiers to my place who came to undertake operations beside."
MR TJABANE: No, I didn't meet him in Mdantsane. I knew him after the Bahai incident. That was the first time I saw him, I didn't know him before. Even though I was in Mdantsane I didn't meet him there.
MR TJABANE: I gave instructions and there was a meeting and they were told in that meeting that the armed struggle has been suspended and the member of intelligence and reported back to me that they had told the forces that the armed struggle had been suspended because we were preparing for the elections.
MR TJABANE: In the members of the High Command of APLA, I tried to tell them that there was an attack in Bahai and I had told the forces that we were preparing for elections so such things were not allowed.
MR LAX: Now if my recollection serves me well, one of the applicants said that you were seen driving round Butterworth in this Jetta after it was handed to you, on many, many occasions. What do you comment about that?
MR TJABANE: Yes, the intelligence told me that they heard from, they read from the newspapers that certain areas were attack and there were people who were not at the camps at the time, there were people that were not seen at the camps.
MR TJABANE: According to what I heard, the intelligence found out that ... My intelligence tried to find out what was happening, tried to investigate who were the people who attacked and then he said that Ncamazana was involved in those attacks.
MR TJABANE: Unfortunately that was the last operation, the Dam incident was the last operation where TNT passed away. After that on the 28th we were then arrested. I was not able then to address that with him.
ADV SANDI: Sorry, Mr Tjabane, can I just ask you one thing that has just occurred to me. In your understanding of the policy of APLA, if there was a plan to attack white children travelling in a kombi, would that have been in line with the policy of APLA, as you understand it?
MR LAX: Thank you, Chairperson. Mr Tjabane, I want to show you a letter which was written by your attorney to the Attorney-General's office. My colleagues are just looking at that letter, I will show it to you in a minute. I'll just read the letter to you and then you can confirm that it is in fact from your lawyers
"Kindly be advised that we have consulted with Mr Xholile Tjabane together with the senior counsel who is representing APLA High Command in the Truth Commission, and it transpired that Mr Tjabane
(a) has applied for amnesty as a member of the High Command of APLA, together with other members of the High Command and that it would be prejudicial to him and other members of High Command if he gives testimony before they appear in the Amnesty Committee.
The evidence that you have given today, and it is testimony here that you've given, if you had given this evidence in Court it would have been beneficial to the State case in some respects, and it is clear that what is being told to the Attorney-General's office is that your evidence would not be beneficial, in fact it would destroy the State's case. Now we would like an explanation from you why you instructed your lawyers to do that.
MR NTONGA: Sorry, Mr Chairperson, isn't that being asked by the Honourable Member a privileged instruction between the attorney and client? What he said to his attorney in consultation in preparation for anything is privileged.
ADV PRIOR: Mr Chairman, we've reached now the crucial stage where I submit and inquiry is going to have to be called into this. Mr Mbandazayo alluded earlier that this letter was part of a technical or a strategic ploy to avoid calling Mr Tjabane. And he also alluded to the fact that the applicant's counsel also had some knowledge or some participation in the drafting of the letter. This matter I'm going to submit, needs to be properly investigated and if necessary, Mr Mbandazayo needs to be called to give a full account of how it came about that this letter was drafted and why it was presented in order to avoid Mr Tjabane testifying against the two applicants.
CHAIRPERSON: It is for us then to decide how that affects the evidence he's given here today. He says he told his attorney the evidence he would give would be detrimental to the State case. We can deduce what we want to from that.
ADV PRIOR: The impact of his evidence, it's the first occasion that we have a senior member of the APLA command giving evidence which flies in the face of what the applicants have told the Committee. This letter if one understands the reason for which he's being cross-examined, is obviously to credit. The inference will be argued that at a stage where he indicated to the Attorney-General that his evidence would destroy the State, will militate against his credibility in this hearing.
I am not satisfied from what I have been informed by Mr Mbandazayo, and I communicated that to Mr Lax at the tea or just before the tea adjournment, that that serves the interests of justice in this matter. There may well be, and I believe unless this matter is properly investigated there are underlying and further reasons why this letter was drafted and why this witness confirmed these instructions to his attorney.
CHAIRPERSON: What sort of discussion were you having with Mr Mbandazayo, Mr Prior, that you are now disclosing it to us? Is it proper to do so if you are discussing legal matters with a colleague of yours?
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?
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.
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
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.
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 ...
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:
... 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)
MS COLLETT: I meant to clarify that. Unlawful as far as APLA was concerned. In other words what he basically said was there was an instruction, there was an instruction. And that will be found at the bottom of page 17 of Exhibit J.
Now this flies in the fact of what Mr Tjabane has just told this Committee because he says that he told Letklapa Mpahlele that this had taken place and it was unlawful because he had communicated that the armed struggle had been suspended etc., etc. Now both parties acted, I mean testified under oath, one in the High Court and one here. And I submit that if one has regard to the evidence of Mandla Palapala as well in the High Court, who had nothing to gain, he's neither an applicant before this Commission, neither was he an accused before Court. He testified that after the alleged incident, the Bahai Faith Church, they went back to the Coloured township and the matter was reported to Jimmy Jones alias Xholile Tjabane who is before the Committee today.
I would ask the Committee to find that orders were in fact given by APLA. At worst on the evidence before the Committee, if Tjabane did not give the orders, somebody did. And I'd hang my hat on what Tjabane said in his evidence early on when he said basically that they might not have heard of the suspension and they acted like they did. In other words he insinuated that commands might have come from somebody other than him.
The difficult situation is, Mr Chairman, that most of the persons that are involved, and I refer to TNT who is dead, he would have been the field commander, he would have been the person who could have come here and told us that this or this happened. Essentially Tjabane is here as a single witness, his testimony conflicts with Mandla Palapala, his testimony with Mpahlele, his testimony conflicts with both the applicants before you Commissioners. And consequently it is my submission that the likelihood is that taking all the circumstances into consideration, that these people did act, these applicants did act on instructions from a commander of APLA.
They in their own way attempted to bring about some form of reconciliation between themselves and the victims, they apologised to the victims, they attempted to answer all questions as well as they could in the circumstances. And it's my submission, Mr Chairman, that their acts were political, they were performed to obtain a political objective, the political objective was the furtherance of the policies of APLA. Despite the fact that the armed struggle might have been suspended, I submit that it was a neutral factor at that stage because on Mpahlele's evidence given at the High Court, this had not been communicated to their base, so they were still under the guise of committing whatever they did in the name of the policy of APLA which was the armed wing of the PAC at the time.
In the circumstances, Mr Chairman, Commissioners, I would ask that you find that the applicants before you have made full disclosure and that they qualify for amnesty in terms of the Act. Those are my submissions.
ADV PRIOR IN ARGUMENT: Thank you, Mr Chairman. On behalf of the victims in the four incidents under the scrutiny of this Committee for amnesty. Mr Chairman, some remarks regarding random issues that cropped up. We have a situation where I submit the proximity to the general elections in April 1994 is a very strong feature or factor which must militate strongly against the credibility of both applicants when they say or they want you to believe that they had no idea that the armed struggle had been suspended. We have the direct evidence of the camp commander, Mr Tjabane. He certainly was not severely or to any extent in my mind, materially discredited on this particular aspect. I think it is common cause and well-known that during March, especially around the latter part of March, the entire nation was galvanised into preparations for the elections.
Now I would gladly concede that if we were dealing with a terrain for example, like Burma or the Koreas where we know from World War II, 30 or 40 years later people emerged from the jungle not knowing that the war had ended, one would say well, one can understand, there was no communication.
We have the evidence that the applicants moved freely between Butterworth, the Transkei and the Eastern Cape, they had contact points, Mr Mtura, Mama's Restaurant, they were able to use a telephone, they were able to listen to the radio and they were able to watch the television. So we don't have a situation that these were combatants cut off from any form of communication with their hierarchy.
We also have the evidence of Mr Palapala at page 138 of the bundle, which is a portion or an extract of his evidence in the High Court at Bisho. He was asked from line 10 onwards, whether he came to know about the armed struggle which was suspended or not and he was being asked that at the time when he was being questioned why he went to East London and Mdantsane for purposes of obtaining a vehicle, and he said at the bottom of the page from line 20:
That with submission, corroborates what Mr Tjabane has told this Committee, that the message had been delivered. And it would seem from Mr Palapala who was a colleague of Mr Ncamazana and Mbambo at that specific stage, that this certainly was a topic of discussion at that time.
The other aspect which is indeed troublesome is the motive. Now the applicants have given the sort of general political motive as wanting to liberate the country from the white oppressor. At that stage the country was virtually in the hands of the majority. One by no stretch of the imagination accepted that the ANC would return a resounding majority. So political motive I submit, doesn't appear to feature very strongly in my respectful submission.
If one looks at Palapala's evidence from page 139 of the bundle where he is questioned about the reasons for him going to East London. He teamed up with accused number 1, who was I think Mr Ncamazana, who accompanied him for purposes of stealing a motor vehicle. They then join up, with respect, with the others and they go to Cambridge that is in this area, Mr Chairman, where we are sitting at present, and they that they couldn't get hold of a vehicle because the security was tight, there were too many policemen in the area. They then retired to Mdantsane and there it was said there is a church or a place where white people are and there would be vehicles there. Then on the Sunday they moved towards the Bahai Church. Now on the way they first go to a place where they obtained drugs, or frequent a place where drugs are sold, and I think they spend about R20 on obtaining drugs. We don't specifically know what the drugs are, but Mr Palapala alluded to that in his evidence.
They then get to the Bahai Church and they see a Sierra motor vehicle, grey in colour, but they don't steal that one because it's an oldish model. Someone says no, there'll be a newish model or they must wait a while. They then retire and from the place where they were waiting saw the Jetta motor vehicle being driven towards the church, and that is when they struck.
My submission is with respect, that this was a robbery pure and simple disguised in order to evade justice by the applicants. It was convenient for them to say well, we did this on behalf of APLA, we did this on behalf of the PAC, yet the PAC was saying the armed struggle has ended. And my submission is that Ncamazana at least knew that the armed struggle had ended and that was the instruction given by the High Command.
The fact that Mr Letklapa Mpahlele gave evidence in the High Court, if one really looks at his evidence what does he say, he gives evidence in general terms. He as Operational Director takes responsibility, the Bahai Church was in line with APLA policy, it was the type of target that they would have attacked and so on. He knows that this unit did not get knowledge or have knowledge of the cessation of the armed struggle. But on what does he base that? There are no surrounding facts which he gives the Court to bolster or corroborate that. Here we have the commander himself who has testified that that was not the case. in fact Ncamazana was in the base camp when in fact that instruction went out.
So generally we have a - certainly the impression I get is that Mr Letklapa Mpahlele is trying to assist the applicants to either be acquitted or to receive a lesser sentence, in my respectful submission. Because there is nothing really in his evidence, apart from his speculation that there was difficulty in the word getting down to grassroots level, which one I think has certain difficulties accepting in the light of these particular circumstances of the evidence of this case. It's unlikely and improbable that Mr Ncamazana and Mr Mbambo did not know about the cessation of the armed struggle.
And if one argues that away, what is left for them? Then one must question their evidence, have they then made full disclosure, have they not attempted to mislead this Committee by packing the blame on Mr Tjabane? It's convenient to say we acted on his instructions in order to avoid the consequences of their terrible deeds.
Mr Tjabane made application for amnesty, he could have spelt out what he did, he didn't. The suggestion by counsel that the reason now that he denies it is to avoid prosecution, he may well be prosecuted, he may be investigated, he has not guarantees in that regard. What I'm simply suggesting is that it seems unlikely from the fact that he applied for amnesty, even in general terms, that he was trying to protect himself.
The other aspect relating to Mr Tjabane is the question of the letter Exhibit F. In the light of what was stated by Mr Mbandazayo it is clear that if Mr Tjabane had given evidence as he testified today, it would have severely impacted not only upon the trial of the two applicants, but also possibly on the hierarchy of the PAC. And it would seem that that letter was drafted for a specific purpose, was to avoid having Mr Tjabane testify.
Now there may be certain sequelae or consequences flowing from that and it may not be the task of this Committee to pronounce upon that, but Mr Mbandazayo was clearly at unease when he said the way in which it was drafted it was clearly for tactical purposes and to keep him out. We don't know whey the State advocate did not pursue it and ask for more particularity, but the nett result was that Mr Tjabane never testified and the prejudicial information did not land before the Court. However, this is not a trial, this is an inquiry, it is an inquiry after the truth and to obtain the fullest picture possible of the gross violations of human rights which occurred.
My submission is that although in strict legal terms a letter written on behalf of someone must be attributed to that particular person. However, in these circumstances it is clear from the tone of the letter that Mr Mbandazayo drafted that letter in legalese after consulting with the PAC's senior counsel and upper structures in order to politically make the best statement possible at the time and to avoid the political consequences, or possible fallout resulting from the testimony of Mr Tjabane in that trial.
Mr Tjabane has come today without fear, without any reservation, he's exposed himself to all sorts of questions. And my submission is that whatever criticisms one has of the way in which he answered certain questions, whether he properly understood the gist and soforth. One aspect was where he didn't reply to Mr Chairman's question of:
"In the light of what you say, is it not then correct that Mpahlele must have been mistaken or not telling the truth."
Yes, he did not reply directly, but it would flow from the evidence that he gave it was implicit that Mpahlele was not correct or not telling the truth. With submission it's a conclusion that the Committee must come to, it wasn't the fact that he would answer aye or nay. His opinion with respect is irrelevant to these, to the weight to be attached to the evidence, whether he believes ...(intervention)
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.
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)
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.
"Doctor Dominique John who carried out post-mortems on the bodies of the three deceased said the three deceased appeared white in complexion."
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.
ADV PRIOR: I can only argue on what the evidence is. Mr Tjabane hasn't come and said that. It's a difficult question to answer. Advocate Collett has advanced that, that he was the man who gave the ... I'm saying the evidence on the probabilities overwhelming, on the probabilities and the direct evidence militate against that conclusion. So Mr Sandi with respect, I have difficulty answering that question from where I'm sitting.
Obviously if this Committee finds that Tjabane's a liar and he gave the instructions, well then obviously the findings may be somewhat different. The Committee will still be seized with the facts that the armed struggle had been suspended and then maybe the conclusion is that Tjabane was acting for reasons of his own, for personal reasons. But what we're saying is that we've got evidence from Palapala who says at the base he heard about this, they discussed it, they listened to the radio. That supports what Tjabane has said.
So it would seem unlikely that Tjabane in the light of his evidence and supporting testimony, would have in those circumstances still continued to give orders to carry out the attacks when he was reporting back and in liaison with the High Command. And as he has said unchallenged, his evidence, that he was also preparing for the elections. It was never suggested to him that he had another agenda. So this would be speculation, with respect.
Mr Chairman, the remaining matters would also fall into the same category. Obviously they are of a less severe nature in the sense that although the attacks were on people, no-one died in those incidents and I would ask the Committee to also view those incidents on the same basis as the Bahai Faith Church. Thank you, those are my submissions.
My learned friend can't have his cake and eat it. The learned judge in the judgment of the Bahai Faith Church specifically said that Mandla Palapala was an unsatisfactory witness and the only evidence that he was prepared to rely on was to do with the robbery of the motor vehicle and things that flowed from that. If that is the evidence that was accepted by the judge in that Court, part of that evidence was the fact that they went to Jimmy Jones alias Xholile Tjabane after the incident had taken place. And that flies in the face of what that witness has testified here before the Commission.
The other thing is, with respect, Mpahlele's evidence isn't just in broad terms, he specifically stated that this mission was reported to him, he specifically stated that these people regarded the instructions that they had given as lawful. And in that regard I refer you to page 25 at the bottom of Exhibit J. And in addition to that, most of the testimony of Mpahlele is in direct conflict to that which Tjabane has come and brought before this Commission.
Now Mpahlele was free and was in fact subpoenaed to come and testify. If he wanted to say anything different to what was in this record, well then he should have come and said it and he hasn't. In those circumstances we have his sworn testimony before the High Court, and the learned judge in that Court did not reject that testimony. The finding that he made at the end of the day was based on legal principles. He said he basically accepted that there was an order that was given, but he said that on the legal, based on law the accused should have regarded that instruction as being manifestly unlawful, not that they did, that they should have. And it is for that reason that they were found guilty.
At the end of the day, Mr Chairman, the fact of the matter is that they carried out instructions in line with APLA's policy, that those instructions were communicated to the Chief of Operations, that the Chief of Operations knew that they did not know that the armed struggle was suspended, and that the Chief of Operations said he found nothing unlawful or out of line with APLA's policy in what they had done. In other words, they had furthered the aims of APLA. And those are my submissions.
ADV PRIOR: Mr Chairman, yes, there are a number of victims. In respect of the bundles of each incident victim lists were put up. In the Bahai Church we have two widows that are present, and in the Da Gama matter there's the list of victims. Unfortunately I don't have that at my fingertips.
CHAIRPERSON: I think in the light of the fact that this involves four different incidents, we will include in our decision the list of victims. It's safe to say that we are satisfied from what we have heard, that the widows of the Bahai Church incident are clearly victims.
CHAIRPERSON: I would like to thank everybody here who have been responsible for organising the hall, organising the interpretation, the recording and looking after us generally. We have as always on our visits here been very well treated and we would thank all of you who have participated in that, and we would thank certain members of the South African Police Force who have been extremely helpful.
ADV PRIOR: Mr Chairman, may I also ask leave for the Chair to commend the members of the public, supporters of the applicants as well as the victims for their impeccable behaviour and their conduct in the proceedings throughout the week. Thank you, Mr Chairman.
CHAIRPERSON: I would agree that it has been an example to others, the way they have all behaved and also the patience they have shown having to wait for hearings, having to wait for adjournments. We are grateful to all of you for your assistance in that way. And finally, to the legal people who have participated in the hearing, thank you all.