&#9;TRUTH AND RECONCILIATION COMMISSION 

&#9;AMNESTY HEARINGS

DATE:&#9;07 JULY 1997

HELD AT:&#9;CAPE TOWN

NAME:&#9;PHILEMON KABILA MAXAM

DAY:&#9;&#9;1

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CHAIRPERSON: Mr Brink, are we ready to proceed.

MR BRINK: Yes, Mr Chairman. 

CHAIRPERSON: This is a sitting of the Amnesty comprising of myself as Chairman, Judge Wilson on my right and Ms Khampepe. 

MR BRINK: You are not coming through on the microphone.

CHAIRPERSON: Hello. 

MR BRINK: That is much better.

CHAIRPERSON: This is a sitting of the Amnesty Committee comprising of myself, Judge Wilson on my right and Ms Khampepe on my left and we are ready to commence proceedings this morning in connection with the applications of Mr Maxam, Mr Ndinisa and Mr Tisana. Please come forward and place themselves on record. 

MR BRINK: I appear as evidence leader for the Committee.

ADV LOURENS: I appear for the applicants, Advocate ...

JUDGE WILSON: Could you please give your names.

MR BRINK: Brink. 

ADV LOURENS: John Lourens for the applicants. 

MR SWART: Swart for the victims your Worship.

CHAIRPERSON: Yes, are the victims represented?

JUDGE WILSON: Swart is representing.

CHAIRPERSON: Mr Swart. 

MR ROTHFUCHS: Rothfuchs assisting Mr Lourens.

JUDGE WILSON: Pardon, I cannot hear you.

MR ROTHFUCHS: Sorry, Rothfuchs assisting Mr Lourens.

CHAIRPERSON: Did you hear that?

JUDGE WILSON: Yes, he is assisting Lourens.

CHAIRPERSON: Yes. What about the victims? But I thought he is assisting Lourens. Yes, Mr Brink. 

MR BRINK: Mr Chair, strictly speaking, Mr Swart appears not for the victim, but for the next of kin. 

CHAIRPERSON: Yes. Swart appearing for the next of kin.

MR SWART: That is correct Judge.

CHAIRPERSON: Yes. Thank you. Very well. Mr Lourens, you may proceed. 

ADV LOURENS: Mr Chairman, my understanding is that the applicants will be sworn in before I proceed. Is that correct?

CHAIRPERSON: Yes. I thought maybe you wanted to make a preliminary statement before you call the witnesses.

JUDGE WILSON: The applicant is sworn in when he elects to give evidence.

CHAIRPERSON: Yes.

JUDGE WILSON: As witnesses in normal proceedings. All three are not sworn in now. 

CHAIRPERSON: Yes.

ADV LOURENS: Mr Chairman, I do not wish to make any preliminary address. I call the first applicant then, Mr Philemon Maxam.

CHAIRPERSON: Mr Maxam. Are we pronouncing your name correctly?

MR MAXAM: Yes. 

CHAIRPERSON: Is it Mr Maxam?

MR MAXAM: Yes, you are pronouncing it correctly. 

CHAIRPERSON: Swear him in Sisi.

MS KHAMPEPE: Mr Maxam, are you going to be sworn in?

MR MAXAM: Yes, I am.

MS KHAMPEPE: You may stand up.

PHILEMON KABILA MAXAM: (Duly sworn in, states).

MS KHAMPEPE: You may sit down, you have been properly sworn in.

EXAMINATION BY ADVOCATE LOURENS: 

ADV LOURENS: Mr Maxam, could you please for the record, state your age. 

MR MAXAM: 36 Years of age.

ADV LOURENS: Where were you born?

INTERPRETER: The interpreter cannot hear the applicant. 

MR MAXAM: I was born in Paarl.

ADV LOURENS: I understand that you have lived your whole life in Paarl. Is that correct?

MR MAXAM: Yes, that is so. 

ADV LOURENS: Did you attend school?

MR MAXAM: (Not interpreted).

ADV LOURENS: Till what standard did you attend school?

MR MAXAM: Up to standard eight.

ADV LOURENS: Now, is it correct that you lived in a township near Paarl called Mbekweni?

MR MAXAM: Yes, I grew up in Mbekweni.

ADV LOURENS: Is it correct that at present you are serving a 25 year term of imprisonment at Allandale Prison? I do not think he is hearing.

CHAIRPERSON: I do not think he can hear.

MR MAXAM: Yes, it is so.

ADV LOURENS: And is it correct that your term of imprisonment that you are serving now arises out of an incident that occurred on 15 April 1986?

MR MAXAM: Yes, it is so.

ADV LOURENS: We shall return to you, that incident shortly. I would like you to describe to the Committee what it was like living in Mbekweni prior to 1986.

MR MAXAM: There was war there.

ADV LOURENS: Could you explain to the Committee what you mean when you say there was war there.

MR MAXAM: Between 1985 and 1987 there was a group of people, the AZAPO, at Mbekweni. I was a member of UDF. What would happen is that within the AZAPO there would also be police. Therefore there was no order at Mbekweni, because we would fight a lot with the police, AZAPO fighting against the police. 

JUDGE WILSON: AZAPO fighting against the police.

INTERPRETER: The speaker's mike is not on.

JUDGE WILSON: AZAPO fighting against the police, is that what you said?

MS KHAMPEPE: I think that is, the translation is incorrect. 

ADV LOURENS: Is incorrect.

MR MAXAM: That is not what I mean. What happened is that the AZAPO would sometimes work together with the police to fight the UDF. 

ADV LOURENS: When did, were you involved in these fights between the UDF, on the one side, and AZAPO and the police on the other?

MR MAXAM: Yes, I was involved.

ADV LOURENS: Could you explain to the Committee what your involvement was?

MR MAXAM: My involvement with the UDF fighting the AZAPO, I was also a member of PAYCO. This organisation was quite big. This organisation had the same visions as the ANC. As there was conflict between us and the AZAPO what eventually happened is that people would get injured and some even would lose their lives. Most of the people who died were members of PAYCO. Therefore, that was the kind of battle that we were in. The police, it was evident that the police were involved as well. 

ADV LOURENS: Before we proceed with, more specifically with the aims of PAYCO could you explain or tell the Committee when you first became politically involved?

MR MAXAM: From 1985. If I am to be brief, I was one of the people who found Imbako and then later became a member of PAYCO. I was always around within that community. I would be a marshall even in the meetings. Therefore, I would be directly involved sometimes in the violence that would occur at Mbekweni. Sometimes I would lose my job ...

ADV LOURENS: Could you just stop there for a moment? Did you, in fact, lose your job as a result of your political involvement? 

MR MAXAM: I did not hear the question. My mike is problematic, I am struggling. I cannot hear the interpreter well. 

CHAIRPERSON: Can that not be put right without any further delay please. Is there nobody here that can put this right? Mr Brink would you just make it. 

MR BRINK: It looks as if something is being done in the. 

MR MAXAM: Interpreting, I do not hear the interpreting. It is, it scratches as if. How about this one? 

ADV LOURENS: My question was did you, in fact, lose your job as a result of your political involvement?

MR MAXAM: Yes, that is so Sir.

ADV LOURENS: And where was that?

MR MAXAM: I was working at the Stellenbosch Farmers Winery in Paarl. 

ADV LOURENS: Were any of your family members involved in the political aims of the UDF and its related organisations?

MR MAXAM: Yes, my entire family was involved. 

ADV LOURENS: And is it correct that your brother had been detained at that stage?

MR MAXAM: Yes, my father too.

ADV LOURENS: Now, could you explain to the Committee what the aims of PAYCO were?

MS KHAMPEPE: Sorry, Mr Lourens, what stage are you referring us to? I mean, you are ...

ADV LOURENS: The ...

MS KHAMPEPE: ... are you talking ...

ADV LOURENS: I am referring to ...

MS KHAMPEPE: ... of 1985?

ADV LOURENS: In the eighties. In 19 ...

MS KHAMPEPE: In particular 1985?

ADV LOURENS: In particular 1985. Could you explain to the Committee what the aims of PAYCO were?

MR MAXAM: Paarl Youth Congress, this was to unite the youth, especially in Paarl. It did not matter whether they were black or white or coloured. The aims was to unite the youth in trying to remove the youth from the streets, including the youth in community decisions and also to educate the youth about the African National Congress. The slogan was youth towards liberation. We were looking closely at how the previous regime was affecting the youth as we were totally against it. 

ADV LOURENS: Now, could you be more specific when you say that you were against the Government. What, in respect of being against the Government, what were the aims of your movement?

CHAIRPERSON: As distinct from the aims of PAYCO?

ADV LOURENS: Yes, I am referring to PAYCO. The, in respect of being against the Government, Mr Chairman. 

CHAIRPERSON: Yes. 

MR MAXAM: Can you clearly ask the question again?

ADV LOURENS: Now, PAYCO was against the Government, is that correct? The Government of the day in 1985.

MR MAXAM: Yes, it is so. It is so.

ADV LOURENS: Were there any specific, was there any specific plan to bring down that Government or act against the Government? 

MR MAXAM: PAYCO was a youth organisation. As PAYCO was under the African National Congress we agreed a lot with them, the African National Congress that is. We endeavoured as the youth that whatever the ANC said we would listen carefully and we would take their advice as sometimes it would come out that we should educate the youth in the community to fight against the Government and educate about the Government. We tried to do this at work, at school. This encouraged us to, this encouraged us to endeavour to make this country ungovernable under the previous regime.

ADV LOURENS: Now, how would you make the country ungovernable? What was the plan to make the country ungovernable?

MR MAXAM: As I said previously, there were police, soldiers everywhere. We looked at them as the enemy, especially at Mbekweni. We saw them as working with a particular group. We wanted to disarm them or fight against them. We would throw petrol bombs and stone them. That we hoped would contribute to the country being ungovernable. We tried to start consumer boycotts to fight business people, especially the white businessman. We supported black businessmen more than anything. These are some of our weapons, these were some of our weapons. Those are the strategies we used to make the Government, this country ungovernable. Sometimes the police would come to our township. Our township would be at peace and they would just teargas canisters at us. In fighting such things if we were approached in a violent manner we would retaliate in a violent manner. We lived under a State of Emergency at the time. 

ADV LOURENS: Now, you were involved with an incident in a beer hall. Is that correct?

MR MAXAM: Yes. 

ADV LOURENS: Could you briefly explain to the Committee what happened in that incident.

MR MAXAM: Should I at this stage talk about both the incidents where I was involved at the hall at Mbekweni or are you talking about any one particular incident?

MR MAXAM: I am speaking about the incident where a bomb was planted, but it did not go off, because there was a warning. 

MR MAXAM: The beer hall at the time was under the Administration Board. That Adminstration Board was under the previous regime that we were against. As the youth, it was after lunch on a Friday. I went with members of the youth to plant a bomb at the hall. When I was in the process of doing that I realised that there were a lot of people that were still in the hall buying. We thought that we should wait until the people had left the hall so that people do not die, but it was significant, it was important for us that we destroy that hall. As South Africans I am sure we are aware that alcohol is one of the major things that causes people to be, to land up in jail. 

&#9;Alcohol was sold very cheaply there and people were getting drunk and the community was being destroyed. My brother was working at the Municipality at the time. He did not know what was happening, but because he knew that I was politically active he came and told me at home that there were bombs at the hall. I did not divulge to him, however, that I was one of the people who planted the bomb. We wanted to destroy this building, because it belonged to the Government of the day and also the, our people were being destroyed through this alcohol. 

ADV LOURENS: Now, is it correct that nothing, in fact, came of this incident? No one was hurt and, in that incident and the bomb, in fact, did not go off. Is that correct?

MR MAXAM: Yes, that is correct.

ADV LOURENS: Now, ...

JUDGE WILSON: He is not asking amnesty for his having planted a bomb.

ADV LOURENS: No, no. Now, Mr Maxam, you spoke about the fight against the Government and that violence had to be met with violence. If you could interpret that please. And that violence had to be met with violence.

MR MAXAM: I did not hear. Please repeat the question.

ADV LOURENS: You spoke about the fight against the Government and that violence had to be met with violence. 

MR MAXAM: I would like to give an example. There were, there was a lot of chaos at Mbekweni as ...

CHAIRPERSON: I think you better just go slowly to allow the interpreter time to interpret what you are saying. Alright?

MR MAXAM: Okay. What I was trying to say is it happened a lot of times that we would, as the police were violent against us we also fought and retaliated in a violent way. Like being teargassed with no reason at all. Sometimes a place would be on fire and we try to put out the fire and the police would attack us, especially with teargas or they would just cause absolute chaos. We did try to make the troops work together with the community, but that did not succeed. Therefore, we concluded that if they were going to throw teargas at us all the time we would retaliate. 

ADV LOURENS: Did you have the means to retaliate?

MR MAXAM: We did not have weapons. We would throw stones at them if we could and petrol bombs. 

ADV LOURENS: Now, if you could cast your mind back to 15 April 1986, could you describe to the Committee what was going in Mbekweni the days before 15 April 1986. Just before 15 April 1986.

CHAIRPERSON: What has been, all that he has been telling us now was that not what happened before?

MR MAXAM: Mr Chairman, I, from the evidence that is the general picture of conditions in Mbekweni ...

CHAIRPERSON: Yes.

ADV LOURENS: ... before then.

CHAIRPERSON: I see.

ADV LOURENS: I am specifically referring just to just prior to ...

CHAIRPERSON: Immediately prior to?

ADV LOURENS: Yes, that is so, Mr Chairman. 

MR MAXAM: Before that day, if we can remember well according to the history of South Africa, Mbekweni was one of the places where violence against AZAPO that was helped by the police was very high. You could not, as a youth at home and not a member of AZAPO, hearing stories at home and seeing violence at school, you could not, just not do anything. If they wanted to stab you they would stab you. The police would be there and they would do nothing about that. Even before this day of the 15th of April Mbekweni was in chaos. There were a lot of stones, because the roads were being fixed at the time. There was a war there, it was terrible. Nobody could just sit back. If you just sit back you just be arrested in any case or AZAPO would give you a weapon to fight against the people. I got involved a lot in direct clashes against AZAPO. 

&#9;A group of them came to my house prior to this day that we are talking about. They said that they had finished Abraham Rasta. I was the only one that was left, they were going to come and finish me off as well. I asked why. They said I had burnt down a house and killed a child. I asked them if they were the police.

ADV LOURENS: Mr Maxam, Mr Maxam, could you just go a bit slower please. I am sorry. You can proceed. 

MR MAXAM: A lot of things happened especially December, late 85. We would be burying people all the time. Things that happened left a lot of pain. I was accused of having burnt down a house. Members of AZAPO came to my house on a Sunday to accuse me of this. They told me that they had killed Abraham Gwena. We called him Rasta and they said that they would come and finish me off as well. The time that they were standing at my house some members of my family were in the house and others outside. There were police vans patrolling the place. They did not do anything about this. These AZAPO people left freely. The situation at Mbekweni was terrible. 

&#9;Even the people who were delivering furniture at Mbekweni could not go in. You had to personally hire a van to go and get your own furniture. Day and night it was the same. AZAPO people did a lot of things. Some of them I would witness myself. Then there came the day when we decided, as the youth, to retaliate, because we could see clearly that the police was working together with these people. Our people were being destroyed. We decided that we needed weapons. I said that in Radio Freedom if you were listening properly to Chris Hani and you looked at the Tambo text, you will realise, I said, that the ANC was saying that it supported us buying our own weapons to protect our own communities against the enemy or we could get arms from farms, white people's farms, because they kept a lot of weapons or disarm the police and the soldiers. We endeavoured all this. I decided to buy myself a weapon as well. I bought myself a gun. The same gun that I used on the 15th of April. The situation was terrible. 

ADV LOURENS: So, do I understand you correctly that at this stage when the situation, as you described, was terrible, there seemed to be civil war in Mbekweni, you decided that it was time to retaliate and do something about it? Is that correct?

MR MAXAM: Yes, that is so.

ADV LOURENS: And you purchased a firearm?

MR MAXAM: Yes, I bought myself a gun.

ADV LOURENS: Could you explain to the Committee where you obtained the firearm?

MR MAXAM: I bought this gun, this firearm from a coloured area Newtown. I was going to the shops and I came across a coloured man. He said to me, why is it that at Mbekweni there is always police and there is always chaos. He said I must just give him R80,00 and he will give me a firearm. I gave him R50,00. I bought this firearm from that coloured man. 

ADV LOURENS: Now, before we proceed with the events on the 15th of April I would like you to explain to the Committee about your involvement in a necklace incident just preceding these events. 

MR MAXAM: Killing a person with a tyre, I was one of the people who were totally against. Thembikile Kasune was accused by the youth of always being in the area where the AZAPO people lived. They came to ask me if I knew Thembikile, whether he was a member of AZAPO or UDF. They had already put a tyre on him. I got there, took the tyre, put it off him. I told them that we do not support this. I asked them to at least detain this man. Thembikile was going to be killed. He did not belong to any organisation. He just worked at the shop that were against. I intervened and his life was saved. 

ADV LOURENS: Now, you gave evidence about the Tambo text and listening to Radio Freedom. 

MR MAXAM: Yes, I did.

ADV LOURENS: Now, on the 15th of April 1986 you and the other two applicants as well as approximately five other people went to a farm nearby Paarl. Is that correct?

MR MAXAM: Yes, it is so.

ADV LOURENS: Could you explain to the Committee how it came about that you went to that farm?

MR MAXAM: As I said, the situation at Mbekweni especially at that time was terrible. Before that day, the 15th of April, on the 14th there was teargas, as usual, at Mbekweni. People were being stoned, rubber bullets, birdshot, everything. When there were such incidents, especially when they happened in an area when I would not be, when I was there at the time I would go and investigate so as to give a report to our leadership. I would investigate if there anybody who had been arrested or somebody who was injured in such incidents. Therefore, I went on this 15th to Silvertown where this occurred. 

&#9;I came across a youth group around a corner as I was going there. I asked them that as there were people that were going to Newtown, going onto trains they were being robbed, some injured. I asked if there were any people who had been detained or arrested. They called me Dakinas. 

CHAIRPERSON: I do not understand this evidence. I must say that.

JUDGE WILSON: Nor do I. 

CHAIRPERSON: It is either not in sequence or maybe there is some other explanation. Are we talking about what happened on the 14th or are we talking about the 15th. I thought that on the 14th things were terrible, there had been teargas, rubber bullets were fired. He went to enquire whether there were people hurt and so on. Now, we come to the 15th, as I understand, and he says he come across a group of youth. Now then, is he now talking about what happened on the 15th at that stage?

ADV LOURENS: As I understand it Mr Chairman, that is so. He is speaking about how, the question that was put to him was how it was that they came to go to the farm on the 15th.

CHAIRPERSON: I want to hear his evidence.

ADV LOURENS: If I might just clarify it with the applicant. 

CHAIRPERSON: Yes.

ADV LOURENS: Mr Maxam ...

JUDGE WILSON: I think it would be better if you did not clarify. You tried to clarify for the 13th and he ignored your clarification entirely. He made no mention of going, doing anything on the 13th which you asked him, did he? He went straight on to the 14th. 

ADV LOURENS: Mr Chairman, I do not recollect specifically asking about the 13th as a day.

JUDGE WILSON: Did you not ask him if he and the other two applicants and five others went to a farm on the 13th?

CHAIRPERSON: 15th. 

ADV LOURENS: The 15th ...

JUDGE WILSON: 15th.

ADV LOURENS: ... Mr Chairman.

JUDGE WILSON: And he went back to the 14th. Are we coming back to the 15th now?

ADV LOURENS: I, if I might just ...

CHAIRPERSON: Clear that up.

ADV LOURENS: ... clear that up.

CHAIRPERSON: Please.

ADV LOURENS: Mr Maxam, on the 15th you went to a farm. Is that correct?

MR MAXAM: Yes, it is so.

ADV LOURENS: The other two applicants went with you to the farm?

MR MAXAM: Yes, it is so.

ADV LOURENS: Now, on what day did you meet them to go to the farm?

MR MAXAM: On the same day, but earlier on.

ADV LOURENS: And are those the, the events that you were giving evidence about just now, was that leading up to meeting with the other two applicants on the 15th?

MR MAXAM: I cannot hear properly. 

MS KHAMPEPE: Mr Lourens, was your witness not trying to explain how he met the applicants?

ADV LOURENS: That is how I understood his ...

MS KHAMPEPE: And the ...

ADV LOURENS: ... evidence Mr Chairman.

MS KHAMPEPE: Well, probably you have got to lead him, because he does not seem to be getting us into the actual incident.

ADV LOURENS: As I understood his evidence he was leading up to how he met with the other two.

MS KHAMPEPE: I am simply presuming that the two applicants were part of the group of youth that he referred to in his evidence.

ADV LOURENS: It will become ...

MS KHAMPEPE: I am not sure.

ADV LOURENS: ... apparent in, perhaps if we could. Mr Maxam, on the 15th, explain to the Committee how it is that you met with the other two applicants.

MR MAXAM: I was disturbed just when I was about to say that. I asked them, as I met this group, whether anybody had been arrested or injured. They said, no, but it was important that we get weapons to fight the enemy. I asked how we were going to get the weapons. 

CHAIRPERSON: Let us just get this ...

ADV LOURENS: Sir.

CHAIRPERSON: ... please. Where did you meet the other two applicants?

MR MAXAM: Between Block D and C at the halls. 

MS KHAMPEPE: Mr Maxam, ...

CHAIRPERSON: Just a ...

MS KHAMPEPE: ... is this in Silverton, in Silverton?

CHAIRPERSON: Apart from the other two were there others with them?

MR MAXAM: Yes, they were a group at the corner of Hostel D. CHAIRPERSON: Did you come upon them accidentally or was it planned?

MR MAXAM: No, it was not planned, it was incidental. 

ADV LOURENS: Sir ...

CHAIRPERSON: Now, you met them there, now tell us step by step what happened. Give us the account of the events rather than all the conversations.

MR MAXAM: From Block D I went home. We were going to meet after a period of time. However, we were not going to meet at Block D anymore, but at Block G. I went to the G Block at Madoda's place. They said to me ...

ADV LOURENS: Could you just stop there please. Who is Madoda?

MR MAXAM: Madoda Tisana is one of the applicants. Madoda Tisana is one of the applicants sitting next to me. He said to me there were farms, we could go get weapons. I said to them that that was a good idea. However, we must not act anyhow, we must try to act as responsibly as we could. We went to one of the last houses. We came across the owner of the house at the gate.

ADV LOURENS: Could I just stop you there Mr Maxam. The house that you are talking about, do you mean the farm?

MR MAXAM: Yes, it was a farm.

ADV LOURENS: Yes, and am I correct in saying that the farm's name was Vlakkeland?

MR MAXAM: Yes, it is so.

ADV LOURENS: Now, before you proceed with the events at Vlakkeland, who told you that there would be firearms there or to go and look at that particular farm?

MR MAXAM: Madoda Tisana told me. 

ADV LOURENS: Right, please proceed.

MR MAXAM: We went to the farm believing that we would get weapons. When you were at Mbekweni you could see, you can see the farm and I would see police and caspirs around that area, around the farm, that particular farm. We met the owner at the gate. I stopped him. I said Mr Noble, we are looking for a job, do you have work for us? He said he did not. He walked on. After he left as we knew that we were not looking for a job, we were looking for weapons. We went to the house.

MS KHAMPEPE: May I interpose, Mr Lourens, do we have the correct translation when the witness says,

&#9;&#9;"I said Mr Noble, we are looking for a job?".

ADV LOURENS: That is so. That is the name of the farmer who they met at the gate to the farm as he ...

MS KHAMPEPE: So he actually addressed him as Mr Noble?

ADV LOURENS: That is so. May I just put, Mr Maxam before you go on. Mr Noble, was he known to you at that stage? On the 15th of April did you know what his name was?

MR MAXAM: I did not know him. He had a bakery and he would sell bread at the township. I did not know where he stayed, but I knew that he had a bakery. I did not know specifically that he was Mr Noble. Can I carry on?

ADV LOURENS: Yes.

MR MAXAM: When we got to the house we did not go to the door. I saw someone within the house. The rest of the youth went around to the door. I asked for water from the lady that I saw from inside so that she could open her window. I was then going to request for her to open the door after she had opened the window. We had not gone to fight any particular person in the house. All we wanted was weapons. This lady refused. 

CHAIRPERSON: She refused what?

MR MAXAM: She refused to open the door for us to go inside the house. 

MS KHAMPEPE: When did you ask her to open the door? Was that before you asked for a glass of water or after you had asked for a glass of water? At what stage did you ask her to open the door?

MR MAXAM: As she was giving us the water and I had the glass in my hand, then I asked her to open the door. I could talk to her face to face as she had opened the window. There were others standing around me as well. I said to her we were armed, but even though I am armed I have not come to shoot anybody, but to defend myself, because what we wanted were weapons. During that exchange of words I think Madoda Tisana grabbed the lady. He grabbed the lady because she was refusing to open the door. This lady screamed. As I was just next to Madoda I took out my gun as she was screaming and I shot inside. As I was shooting I was pointing towards her even though I did not realise that when Madoda let go of her, I thought that she had fallen down. The others had broken the kitchen door down. 

&#9;Crosby then said I must not shoot this person. I could not hear well though, but I went inside the house. This lady was lying down next to the cupboard. We went inside into the bedrooms. I went into the bedroom actually where we searched cupboards, kists, under mattresses, under beds and anything that was a container, because we wanted these weapons. One of the drawers in the dressing table, I got a red box. I realised that there was something inside. I opened this box, there were bullets inside. I put them inside my overall. I heard someone saying that we must beware. When they screamed out we got out running. I had not realised that I had shot this lady already. I shot at her again, because I did not want her to be able to identify us if the police came or the neighbours. The gardener was outside. 

JUDGE WILSON: How many of you were there then?

MR MAXAM: We were six or seven if I remember well. In running I turned and shot the gardener, at the gardener. Apparently, I, the bullet got him. There was a field that I had run across. I hid the bullets and my gun under a root of a tree that was exposed. After two or three months I heard that the police were looking for me, that the other youth members that were there with me had been already arrested. I would go to Nyanga bush, Crossroads running away from the police. I stayed with Mr Yameli who was a leader at the time and supported the African National Congress. That is what happened on that day. 

ADV LOURENS: Mr Maxam, the lady that you referred to that was shot, was she the domestic worker?

MR MAXAM: Yes, she was the domestic worker. Well, it seemed so. 

ADV LOURENS: Now could you please make it clear to the Committee why it is that you shot at her and shot at the gardener?

MR MAXAM: It is very painful, because these were the people who were working for their liberation. However, we, I shot at them so that they would not be able to identify me should the police be investigating the matter and I did not want them to be able to tell to the police the direction we would run too until we were safe. This is why I shot at them. 

ADV LOURENS: When you ...

JUDGE WILSON: You must have been aware of the fact that the police would have been investigating the matter, were you not?

MR MAXAM: Certainly. 

ADV LOURENS: When you had planned now to go to the farm house, to Vlakkeland, did you, was it part of your plan that you would kill people who were possibly standing in your way of obtaining firearms?

MR MAXAM: It was not part of our plans to shoot anybody unless somebody would fight us or somebody who is armed, therefore in defence we would, we knew that we would shoot, but it was not part of our plans to shoot at anybody.

ADV LOURENS: Now, you personally, as I understand your evidence, took ammunition from the house, bullets. Did you take anything else?

MR MAXAM: I only took the bullets. These other bullets I hid together with my gun under the tree.

JUDGE WILSON: What about all the other things that were taken from the house? You told us you were the one who went into the house and searched. What about all the things that were taken from that house? 

ADV LOURENS: Mr Chairman, the question that I put to the applicant was that he personally took ammunition ...

JUDGE WILSON: Yes.

ADV LOURENS: ... the other things will be covered by the other applicants.

JUDGE WILSON: I am asking this applicant what he knows about them. What about the other things that were taken when you were searching the house?

MR MAXAM: Truly, I did not take anything else personally. I would remember if I had taken anything else. I did not take anything else. 

ADV LOURENS: Mr ...

MR MAXAM: It was not even my intention to take anything else except arms. 

JUDGE WILSON: I ask you again, what happened to the other things that were taken out of the house by these young people who had gone there with you whom you had planned to go to this house with? What happened to the things they took?

MR MAXAM: This is a good question. They will know. The people who took them will know what they did with them.

JUDGE WILSON: Were you never told, because you see the evidence led at your trial, which is referred to in the judgement of the Appeal Court, is that things that were stolen included a video recorder, jewellery of considerable value, a large quantity of clothing and R2 220,00 in cash. Do you say you were not aware of any of these, that any of these things had been stolen, that you were not told they had been stolen from the house?

MR MAXAM: Sir, please do not make appear like a liar. This happened very fast and we had to escape. We all just ran in different directions. If anybody stole anything from there, they must answer for themselves. Personally, I did not take anything else except the red box of the bullets that I got from the drawer. I am sure of this and it is as I say. 

JUDGE WILSON: So you are asking us to accept the fact that when you went and searched the house, as you told us in some detail a short time ago, that you led the others in to search the bedrooms and the other cupboards, you did not notice that they were taking things like video recordings, large quantities of clothing, jewellery, money? You are asking us to believe that are you?

MR MAXAM: I want the Committee to know that I, as Philemon Kabila Maxam, I did not take anything else except what I am talking about. I will not come here and swear and deceive the Committee. Each person went and searched different rooms. I did not look and see who took what. Everything happened very quickly and we all ran towards different directions. I even had to leave the box of bullets behind under the tree and I ran. 

MS KHAMPEPE: Mr Maxam, did you after this operation have an opportunity as a group of people who had gone into the house to rob, obviously, with a view of getting the necessary ammunition, did you have an opportunity to discuss amongst yourselves with regard to what each of you had managed to find in the house? Did you have that opportunity?

MR MAXAM: Truly, I last saw my co-accused on the day of the incident. I met them again at the trial. We were not able to meet again, because I ran and hid at Nyanga Bush, hiding myself even from them, my co-accused, because those years, it was even difficult to trust your co-accused or the people you worked with. It, because people would, some people would divulge all when they are in detention, I kept myself from them as well. 

MS KHAMPEPE: So, in short, your response is that you never had an opportunity to discuss amongst yourselves what had been stolen in the house in question? You never had that opportunity? I just need a short response to that question.

MR MAXAM: I did not have this opportunity.

MS KHAMPEPE: And my other question is were you in charge of this operation? Were you, in fact, commanding the operation or directing it? Were you the person who everybody looked up to with regard to the planning and the execution of the whole operation?

MR MAXAM: Please repeat your question.

MR MAXAM: Were you in charge of the operation which involved the intention of stealing arms from the house in question?

MR MAXAM: Yes, that is so.

MS KHAMPEPE: And you did not after this incident have any interest in making enquiries from the people who you went with to steal the arms, to find out whether the mission had been successful or not, to find out what kind of ammunition or weaponry had been found in the house? You did not convene a meeting or try and speak to the other people to find out what had, in fact, been stolen?

MR MAXAM: I did not try to call a meeting, I just tried to find out from the places I was at, even from the community. I did not think that they would keep this kind of information from me, because the youth was working together. 

MS KHAMPEPE: But if they had that kind of information how would they be able to convey it to you? How would you know whether the mission was successful or not?

MR MAXAM: They would use their own means of letting me know, because there was no one particular strategy or that arrangements for a meeting or a place of meeting, for that matter. I would, I was working around Mbekweni as a whole. After this incident, and I had also lost my job, I went to Nyanga Bush, KTC. I would go home to Mbekweni for ten or five minutes. Sometimes three months would elapse and I would not have gone home. 

MS KHAMPEPE: Thank you Mr Lourens, you may proceed.

CHAIRPERSON: It may be a convenient stage to take a short adjournment.

ADV LOURENS: As the Committee pleases. 

CHAIRPERSON: We will resume after 15 minutes. 

COMMITTEE ADJOURNS:

ON RESUMPTION: 

PHILEMON KABILA MAXAM: (Still under oath).

CHAIRPERSON: Yes, you may proceed.

EXAMINATION BY ADVOCATE LOURENS: (cont)

&#9;Thank you Mr Chairman. Mr Maxam, before we move on I just want you to, perhaps, explain to the Committee more why you feared being implicated by the two victims in this matter. 

MR MAXAM: As I have already said before the situation we were under and that I was arrested by the police before and they said that they were going to shoot me. Those threats made me not to go to the police so that I can be arrested and the situation we were under at the time and the way this incident happened. These people were shot in this incident. 

JUDGE WILSON: That is what I find difficult to understand. You yourself called this woman to the window so she would be close to you and have a very good view of your face, did you not?

MR MAXAM: I did not call her so that I can see her face. I called her to the window so that she can open the door for us in ... 

JUDGE WILSON: She ...

MR MAXAM: ... order for us to search the house.

JUDGE WILSON: You asked for a glass of water so that she opened the window and she handed out the water to you. Is that not so?

MR MAXAM: Yes, that is so.

JUDGE WILSON: So she was an arms length away from you and would have a very good view of you. If you were so frightened of being arrested why did you not hold back, why did you not let someone else do this, because now you had to kill her? 

MR MAXAM: Can you please repeat your question.

JUDGE WILSON: You have told us that you killed her, because you did not want her to identify you. Yet you were the person who called her to come and hand a glass of water to you, giving her the best possible opportunity to identify you. Why, if you were frightened of being identified, did you not hold back and let one of the other people go and get the glass of water?

MR MAXAM: To answer the question, I was the person who asked for water and we were there with the intention to look for weapons, all of us. I had to be the one to ask her to open the door for us so that we can search the house. That is why I was the one asking for water, but there was a cupboard next to the window and we were outside at that time. At least was not, she was not in my arms length. 

CHAIRPERSON: I want you to understand and think carefully. You knew that she would have a good view of your face when you went there and stood at the window and asked her for water. You knew that, that she would have a good look at your face.

MR MAXAM: Yes, that is correct, she could see me.

CHAIRPERSON: My brother here wants to know, you killed her because you were afraid she was going to identify you. That is also correct?

MR MAXAM: Yes, that is correct. She was going to identify us to the police. 

CHAIRPERSON: The question was instead of you going there and exposing your face to her, why did you not ask one of your colleagues to go there and ask her for water?

MR MAXAM: When we got there some of my colleagues, they went to the kitchen door. Some of them went in the back of the house. I was together with Madoda. I am not sure who the third person was. We were next to the window. Madoda could not ask for water, because he grabbed the lady. He would have to release her if he would ask for water. 

CHAIRPERSON: I do not get the picture of how Madoda would grab this woman when she is in the house and he is outside the house. How could he have grabbed her?

MR MAXAM: In the window, as the window was opened Madoda was next to the window. When this lady gave me the water Madoda then grabbed the lady while she was giving me the glass of water. 

JUDGE WILSON: And if she had been giving him the glass of water, she could have grabbed, grabbed him. 

CHAIRPERSON: Was it at that stage that you decided to shoot her?

MR MAXAM: Yes, it was at that stage when the lady was screaming. She was arguing with Madoda. That is when I shot her. 

CHAIRPERSON: Yes. Do carry on. 

ADV LOURENS: Mr Maxam, you were, were you quite, shall we say, an important part of the struggle in Mbekweni at that, in 1985?

MR MAXAM: Yes. 

ADV LOURENS: If you had been arrested what would the consequences have been for the struggle?

MR MAXAM: Other people would have been involved and they would have been arrested in the community. We ...

JUDGE WILSON: But what ...

MR MAXAM: .. were the youth at the time and we were working together. When the police would arrest me it was easy for them to kill me as they threatened to do so.

JUDGE WILSON: But you have told us that in fact the result of this was that you ran away from there and had very little to do with the community thereafter. You came back for five to ten minutes. Is that not so?

MR MAXAM: Yes, that is so, but I arrest does not mean that, while I was running away it does not mean that I was not involved in the community activities, because I would go to the township and meet with the people. I would be there during midnight and I would leave Mbekweni in the morning. I would come now and then in Mbekweni. 

JUDGE WILSON: Well, did you ask, when you came back for these secretive meetings, any of the people who had been with you whether they had found firearms or bullets on this day? You have now told us that you came back and had meetings with people. Did you ask any of these people whether they had got any firearms or bullets?

MR MAXAM: Sir, what I am saying is I would not meet with the people I was with in this incident, but I would be amongst the youth. I would not see these people. I last saw them on this particular day and I would not ask people around where they were. I would not come to Mbekweni to meet with them, but to be amongst the youth. 

JUDGE WILSON: But were they not the youth? I understood these were members of the youth who went with you. Have I misunderstood your evidence?

MR MAXAM: When I am saying the youth I do not mean the people who were with me during this incident. I mean the youth in general especially those who were supporting or who were members of PAYCO in the community. I am not saying that I met with the people I was with them in the incident. When I am referring to the youth I am referring to those who were the youth in general in community. 

CHAIRPERSON: Yes, carry on.

ADV LOURENS: Mr Maxam, do you take responsibility for the shooting?

MR MAXAM: Yes, I do take responsibility for the shooting.

ADV LOURENS: Now, at the trial of this matter it was found that the motive for the attack on the farmhouse was one of robbery, because of the other items that were stolen and, if I am correct, the learned Judge in your trial found that to find guns would have been an added bonus, I think in his words. If that could just be interpreted before I proceed. Why was the political nature of the raid on the farmhouse not emphasised at the trial?

MR MAXAM: On the day of my arrest one of the police who were amongst those who were arresting me said that, Makina, I know you and we were playing together while we were still young. He told me not to say anything concerning politics, because these people would torture me and they would kill me. I then met this police in prison again. He said that, he confirmed this. He said that if I mentioned anything about politics these police would have killed me. It was very difficult for me to talk about politics in the trial. Secondly, at the time of the trial there was no hope as I have, I was, I had no hope as I have hope to this Commission. Thirdly, if you would be arrested concerning a political activity you would not get a parole in prison. It was very difficult to get a pay, a bail. There were no indemnity for political reasons in those years. If you would be involved in politics at the time, if you were arrested you would be arrested for a long time and they would torture you. Those are some of the reasons why I did not mention directly my involvement in politics. 

JUDGE WILSON: Let me read from the judgement for a bit.

&#9;&#9;"Appellant testified in his defence and alleged that what the group actually went to the farm for was in response to a widely disseminated instruction by the President of the then banned African National Congress to look for firearms for use in confrontation with the police".

That is fairly strong politics, is it not? 

CHAIRPERSON: What page is that?

JUDGE WILSON: 33.

MR MAXAM: Yes, that is correct.

JUDGE WILSON: And the judgement goes on to say,

&#9;&#9;"After judgement on conviction had been pronounced the case was adjourned. On resumption of the hearing appellant gave evidence in mitigation of sentence in which he developed the alleged political component of his story still further".

So it would appear from the judgement that you said, told the court quite a lot about politics and that this was a political purpose. 

ADV LOURENS: Mr Maxam, if I might just ask you when, that the stage that you did not emphasise the political nature of it, was that at the time of your arrest?

JUDGE WILSON: He said at the trial policemen spoke to him. 

ADV LOURENS: Mr Chairman, if I might just clarify. I believe, I understood the evidence myself to be that at the time of the arrest of the applicant.

JUDGE WILSON: But you asked him about the trial.

ADV LOURENS: I ...

CHAIRPERSON: You may clarify.

ADV LOURENS: If I might clarify.

CHAIRPERSON: Yes, clarify if you wish.

ADV LOURENS: If I address my question by referring to...

INTERPRETER: The speaker's mike is not on.

ADV LOURENS: ... to the actual trial. Mr Maxam, at the time of your arrest you did testify that you were arrested by a certain policeman. Can you remember his name?

MR MAXAM: Mongezi Morris Moss was the police who arrested me.

ADV LOURENS: Now is it correct that at that stage he said to you do not emphasise the political nature of this matter?

MR MAXAM: Yes, that is correct.

ADV LOURENS: Mr Chairman, perhaps if I could clarify. I had intended to, I was just waiting for this section to finish. I do have a statement from Sergeant Moss, a short statement that was obtained shortly after the last time we appeared here which I beg leave to hand to the Committee if that is acceptable. 

CHAIRPERSON: Yes, you may hand it.

ADV LOURENS: Thank you. 

CHAIRPERSON: This should go in as EXHIBIT A. 

EXHIBIT A HANDED IN

CHAIRPERSON: Have you finished with this witness?

ADV LOURENS: I just have one, I have one further aspect that I wish to put to him. Mr Maxam, you have previously given evidence at a Truth and Reconciliation Commission, is that correct?

MR MAXAM: Yes, that is correct.

ADV LOURENS: What was the nature of your evidence there?

MR MAXAM: It was concerning the amnesty. What I can say is that the reason why I appeared before the Truth and Reconciliation Commission was to ask for forgiveness, especially to John Geyser's family and Rooyen and Foster's family and to the people, the community in Mbekweni and to, about the incidents in which they were involved concerning the violation of human rights. 

ADV LOURENS: And is it correct that in 1995, a petition was circulated in Mbekweni asking for your release?

MR MAXAM: Yes, that was a second petition, the one of 1995.

ADV LOURENS: If I might refer the Committee to page 37 of the record. The petition is contained there. Thank you, then I have no further questions for this applicant. 

NO FURTHER QUESTIONS BY ADVOCATE LOURENS: 

CHAIRPERSON: Mr Brink.

MR BRINK: Mr Chairman, I wonder whether Mr Swart should not be afforded an opportunity as representative of the next of kin.

CHAIRPERSON: Mr Swart are there any questions you wish to put ...

MR SWART: Yes, thank you Judge.

CHAIRPERSON: ... to the applicant?

CROSS-EXAMINATION BY MR SWART: Mr Maxam, did you know the other members of this group who went with you to the farm?

MR MAXAM: Yes, I knew them.

MR SWART: Were they members of PAYCO?

MR MAXAM: Yes, that is correct.

MR SWART: Did you know all their names?

MR MAXAM: A few of them, I know their names. I think two or three I am not aware of their names. 

MR SWART: Were you one of the founder members of PAYCO?

MR MAXAM: Yes, that is correct.

MR SWART: How many members were there in this organisation?

MR MAXAM: When we started or when?

MR SWART: In 1985.

MR MAXAM: I am not sure in 1985, but the majority of the people in Mbekweni were members of PAYCO. We had more than 500 members at the time. 

MR SWART: So, if you did not know all the peoples' names, how could it be that you knew they were members of PAYCO or did you not know all the members of PAYCO?

MR MAXAM: I knew them, because I got the information from the Secretary of the organisation at the time when we would meet in the meetings. People would attend the meeting, sometimes we would have rallies in our stadiums and I could see that they, we had support for the organisation.

MR SWART: Perhaps I should ask you this way. How did you know that these specific members who were with you or these people who were with you on that day were all members of PAYCO?

MR MAXAM: I am not certain that some of them were members of PAYCO, but I knew Madoda as the member of the organisation, because at the time his brother, Siphiwo, was a Chairman of the youth in Mbekweni, but most of them I knew them as Comrades, not that they were registered members of PAYCO.

MR SWART: Besides Madoda were any of the others members of PAYCO?

MR MAXAM: In this group?

MR SWART: In this group.

MR MAXAM: I do not want to lie. I do not have an idea.

JUDGE WILSON: Did you not at the commencement of the question say I knew the other members of the group, they were members of PAYCO, other members of this group? 

MR MAXAM: When I answered that way the question was that I, the question was whether I knew their names. I said yes, most of them, I knew their names, but two or three of them, I am not aware of their names, but if, whether they were members of PAYCO I am not sure. I knew them as Comrades. 

JUDGE WILSON: That was not the question. Mr Maxam, the question was not if you knew their names, the question was ...

INTERPRETER: The speaker's mike is not on.

JUDGE WILSON: The question Mr Swart put to you was did you know they were members of PAYCO. 

MR MAXAM: I did not know whether they were members of PAYCO.

MR SWART: From where did you know these other people who were not members of PAYCO whose names you did not know?

MR MAXAM: Please repeat your question.

MR SWART: The members of the group who were not members of PAYCO and whose names you did not know, from where did you know them, how did you know them?

JUDGE WILSON: Sorry, can I interfere again. I do not think he said he knew they were not members of PAYCO. What he has now said he does not know if they were members. 

MR SWART: Thank you Sir. Could you just explain how you knew the other people. Had you only seen them before or had you had meetings with them or how did you know them?

MR MAXAM: Some of them I would see them in meetings, in youth meetings. Sometimes when we were throwing stones I would see them in such actions, but I just took them as Comrades. I then accepted them as Comrades. 

MR SWART: So, is it not possible that some of these people were members of AZAPO, your enemies?

MR MAXAM: I doubt that Sir. I do not think they were members of AZAPO, because I know the situation in Mbekweni at the time. 

MR SWART: You said in your evidence that you did not really trust these people. That was one of the reasons why you did not see them afterwards. Is that so?

MR MAXAM: What I said is that at the time of the struggle you could not trust a person. Not that you believe he would tell the police, but if a person would be arrested he would not be sure what he would divulge to the police, because some of them, some of us were Comrades, but they would not attend political meetings or workshops where we were trained how to answer police questions. That is what I mean. 

MR SWART: I put it to you that you went on this raid with people in your group who you did not know what their affiliations were. 

MR MAXAM: Yes, that is correct.

MR SWART: And I put it to you that it is then difficult to say that you were going with a specific political purpose if you did not know who your accomplices were. MR MAXAM: As we were Comrades at the time you would not ask a person whether he was belonging to your organisation or not. We would go as Comrades and we would not ask whether a person is a UDF, PAC, Inkatha or National Party, but we would be together, because these people would attend meetings and our gatherings.

MR SWART: So you took a tremendous risk, these people could have identified you afterwards?

MR MAXAM: Life is a risk itself. 

MR SWART: And yet you did not shoot any of them. 

MR MAXAM: The ones I was with?

MR SWART: Yes. They could also have identified you. You did not know where they stood.

MR MAXAM: This is a different case, because we were together with these people from the township and we went together to the farm. It is difficult just to shoot at them, because we went together. As we were running it would be difficult to think that this person would tell the police or would identify me. We were just running. What I would like to explain is that at the time when you went to the police and identify a person, in the township you would be labelled as an informer. The community would label this person as an informer. 

MR SWART: Now, by the same token, the domestic worker and the gardener were surely part of the oppressed rather than of the regime. They were not your political opponents and yet you killed them. 

MR MAXAM: Yes, that was my statement. It was very difficult for us to do this, because these people were also oppressed. We wanted them to be liberated also, but this incident happened to them. That is why I made amnesty to the Commission and I asked for forgiveness to the members of the family and Mr Siebrits's son and Mrs N Foster's son responded and he said that he accepted this. He forgave me and the community in Mbekweni also forgave me. Those were people we wanted them also to be liberated in this country, but it happened that they were shot and killed. I was also sentenced. I am not here to the Commission to ask for forgiveness, because I feel guilty. 

MR SWART: On your evidence I fail to see why you make a distinction between the two people who you killed and the people who were with you who you did not know, because they could all identify you equally and that is the reason you gave for killing two, the two who happened to be at the house. 

MR MAXAM: Yes, they would also identify me, but the situation we were in at the time and the day of the incident, it did not allow me to shoot at my co-workers, because I thought that they would sell me out. There is a difference. We got there, we found people. There was no resistance from my, the people that I was with. Everything happened very quickly. This is why I get confused as to what happened at the end, because we all ended up running away. If these people were going to implicate me to the police, the people that I had gone with, and the community would find out that one of them had sold me out to the police, at the time informers were burnt to death or necklaced. It was not up to me to shoot these people that I was with. 

MR SWART: And likewise, I am sure, likewise the two deceased would have suffered the same fate if they had informed on you?

MR MAXAM: They did not stay at Mbekweni. I do not know the political situation in their own community. 

MR SWART: Did either of the deceased know you?

MR MAXAM: No, we did not know each other.

MR SWART: After the alarm was raised did you seen anybody approaching?

MR MAXAM: I cannot remember whether there was an alarm in that house. I cannot remember, but when we ran away I saw a combi, a white one, as we were running away just on the road. I do not know what happened to that combi, but I was just running away to get to Mbekweni. I just wanted to disappear from the scene. 

CHAIRPERSON: I think the alarm you are talking about was somebody who had shouted, beware, or words to that effect, is that not what?

MR SWART: That is correct Judge. I simply meant once you had been told that there was trouble. 

MR MAXAM: It is the lady that screamed. However, I think that everybody else came later. This was, the way the events took place was not planned. Things just happened very quickly.

MR SWART: The evidence you give today differs in material respects from the evidence at your trial and, with leave of the Chairman, I would like to read you from the court passage the description of what, at the trial, was found to be what happened at the scene. 

CHAIRPERSON: Which page you are.

MR SWART: I am on page 673 at G and H, Judge.

&#9;&#9;"One or more of the group went to the kitchen window and asked their domestic servant for water".

JUDGE WILSON: I think you should make it clear that this is not was said at the trial as I understand it. The court here is quoting from a statement he made to a Magistrate which was admissible in evidence.

MR SWART: Yes, thank you Judge. Yes, this is a statement you made which the court found to be what your, what had actually happened. It says that,

&#9;&#9;"One or more of the group went to the kitchen window and asked their domestic servant for water. She was in the act of handing a container through the window when, with some of the gang holding her, appellant shot her. She slumped to the floor and he shot her again. Other members of the group had in the meantime broken into the house".

CHAIRPERSON: Just afford him an opportunity to comment if you want him. 

MR SWART: Now, Mr Maxam, this differs from what you said this morning. You said she was shot when she started screaming. Is that not correct?

MR MAXAM: I am glad that you have asked me this question, because this Truth and Reconciliation Commission that I am standing before, at court I was deceptive, because I was protecting myself from the system, from the police themselves. To the Magistrate I was advised, by the same police that had arrested me, that I must not talk about politics at all in my defence, I must just say that I wanted money. At the time I had no legal representation. At the time I thought that I would even be taken from my cell and be killed by the police. When I got the opportunity to come before this Commission last year and today and reveal the whole truth, because I believe that this Commission was not formed under segregation and oppression. This is why you will find a discrepancy between my evidence to the Magistrate at the time and today. You will even find that my statement changed from the trial with the Magistrate to the Supreme Court, because at the Supreme Court I had legal representation. MR SWART: Now, Mr Maxam, I fail to see, these are basic facts I am putting to you. It has got nothing to do with politics and I would like to establish which are the facts which this Commission should believe. For example, here you say further then,

&#9;&#9;"She slumped to the floor".

That is after she was shot and you shot her again. This morning your evidence was that you shot her, you entered the house, you did the search, then you came out and you shot her again. What must the Commission believe?

CHAIRPERSON: I think his last answer seems to ...

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: I think he would like us to believe that what he is saying now is what, is the truth.

MR SWART: Thank you Judge. Can you perhaps explain to the Commission then what was to be gained by hiding this truth in the past, because there is nothing political about when you shot her or how many times you shot her or when she was called for water. 

MR MAXAM: As I said, and I repeat, the fear at the time to reveal the truth as is today, the police that were investigating the matter were trained by the very same regime that was oppressive to us. I do not appreciate your saying that what you are talking about or referring to is mere facts and has nothing to do with politics. The situation at the time, it is the army that arrested me. I was expecting anything, that even in the middle of the night I would be killed with nobody knowing what is happening to me. As you know according to the South African history if things were still the same I would not have the opportunity to be here and speak the truth as is. I agree with him when he says I was deceptive at the Magistrate's Court. I did lie. If I had spoken as I am speaking today I would have certainly been killed by the police. 

MR SWART: But, Mr Maxam, really, if you were to have said at your trial or in your statement, as you said this morning, that you shot the worker, the domestic worker, when you got to the house and you shot her again after she was leaving, I really cannot see what benefit or what, why you would then have been tortured and killed if you had said that rather than the way you said it here. These are facts. They have got nothing to do with politics. I ... 

ADVOCATE LOURENS OBJECTS: Mr Chairman, I wonder if I might be allowed to address an objection about this line of questioning. The, what we have here is a record of the Appellate Division hearing the appeal. This is a summary by the Appeal Court Judge of the evidence contained in a written confession taken by a Magistrate which this court does, which this Committee has not before it. It may be that this is a summary of the actual words contained or the meanings contained in the confession and it is not immediately apparent that the, for example,

&#9;&#9;"She slumped to the floor and he shot her again", 

are the exact words as contained in the confession. It may be a summary of the events that took place. One is not sure of that. We do not have a record of the trial proceedings. I would submit that the applicant has given an explanation. If there are discrepancies why there should be or why there are those discrepancies, but I am in the hands of the Committee. I just thought I would bring it to you, your attention.

CHAIRPERSON: Well, it is a factor which you will bear in mind when you have a judgement, a report, evidence usually it is in summarised form, but I think that you should make the point that you wish to make. In other words, you are trying to suggest to him that the difference between what he is saying now and what he said in earlier proceedings cannot be explained away purely because he did not want to disclose his political leanings at the time. Impliciting what you are saying is that politics had nothing to do with it. He is, in fact, lying. That is what you are trying to say is it?

MR SWART: That is correct Judge.

CHAIRPERSON: Yes. 

MR SWART: Is that, perhaps I should put it very directly to you. My, what I want to put to you is that the facts of what had happened, regardless of politics, you have couched your evidence so today as to suit your application and that differs widely from what you said initially. 

ADVOCATE LOURENS OBJECTS: Mr Chairman I must object again, because we do not know exactly what the applicant said initially.

INTERPRETER: The interpreter is not getting enough time to interpret to the applicant. 

CHAIRPERSON: I think the applicant should know what is being argued between the two of you. So, when you are making your point give the interpreter time please.

ADV LOURENS: Yes, Mr Chairman. Perhaps, if I would repeat my objection, Mr Chairman. It is being put to the applicant what he said at the relevant time, be it at the confession or even in the trial. In fact, this Committee does not know what was contained in the concession, confession or what was said at the trial which occurred almost eight, nine years ago.

JUDGE WILSON: Let us ask about the next two lines and see if whether you suggest ...

INTERPRETER: The speaker's mike is not on.

JUDGE WILSON: ... and see if whether you suggest that the Judge in the Appellate Division might have got these two sentences wrong.

&#9;&#9;"Applicant went in only as far as the kitchen. When he saw his accomplices carrying articles out of the house he went out with them".

Now it does not appear to me that the Judge reading the confession could have misunderstood the meaning there, does it? 

ADV LOURENS: Mr Chairman, I voice my objection purely on the grounds that this, the confession and the record is not before this Committee. I accept that this is a summary of how the Judge, how he found the evidence to be.

CHAIRPERSON: Yes, he made his finding on the evidence that was before him. 

ADV LOURENS: That is so Mr Chairman. 

CHAIRPERSON: Maybe in summarised form.

ADV LOURENS: That is so, in summarised form. 

CHAIRPERSON: (Indistinct) you can carry on with your questions. 

MR SWART: Thank you Judge.

CHAIRPERSON: You must bear in mind the kind of objection ...

INTERPRETER: The speaker's mike is not on.

CHAIRPERSON: Bear in mind the essence of the objection that is being raised. Alright.

MR SWART: Thank you Judge. Perhaps we could ask the applicant to comment on the last lines which were read which says that he only went as far as the kitchen and then he saw people coming out with articles which they had taken. 

MR MAXAM: There is no such. I went even into the bedrooms, I searched the house, I searched under the beds and kists and cupboards. I wanted weapons. I did not only end up in the kitchen and that I saw them carrying articles, I am not going to come here and lie as I lied before in court, because there was no hope for me. I have come here to speak the truth I have sworn for. I went into the bedrooms, I searched, I did not only end up in the kitchen. How could I have gotten the box that I am talking about if I had only gotten as far as the kitchen. My statement with the Magistrate and perhaps how the court handled everything, even if I go back to jail I will be satisfied with this Committee, because I have revealed everything and I know that they have my best interests at heart rather than the previous court under the previous regime. 

MR SWART: Let me ask you very simply. Why did you tell the Magistrate or the court that you saw your accomplices coming out with articles? What, why did you say that?

MR MAXAM: First reason, it was to protect myself in getting even more deeply involved as I was involved in the direct shooting. 

MR SWART: It goes on further to say,

&#9;&#9;"He noticed the gardener who had been tied up with wire and heard someone shout that the gardener should also be shot otherwise he would implicate them. The appellant thereupon shot him and the gang made its getaway".

MR MAXAM: That somebody shouted and said I must shoot, because we are going to be identified by the gardener, that is not true. Crosby Ndinisa said I must not shoot. Nobody said I must shoot. It was just a way to protect myself from the court itself. Nobody said I must shoot. I thought that I must shoot myself so that nobody could identify me. That is the truth.

MR SWART: Was the gardener tied up with wire?

MR MAXAM: Not as I saw him as he was lying there.

MR SWART: How did you protect yourself by telling the court or making a statement to say that he was tied up when you shot him?

MR MAXAM: At the time I heard, even from the police, that he had been tied up with the wire. I thought I should take it as the police heard it. I am personally not certain whether he was tied up with wire. Nobody said I must shoot either. I just shoot, I was given no such order. 

MR SWART: It is also so that you said in your evidence today that you only took your firearm in case of resistance and why did you then use your firearm at all? 

MR MAXAM: I will repeat this again, because there was conflict I shot. At that time when Madoda and Ndinisa was holding this lady I shot again, as I was running I shot the lady again and I shot the gardener as I was running so that they were not able to identify us to the police or which direction which we had run to or what we were wearing. I did it so that we could have enough time to run away, because there was an open field.

MR SWART: Was this the policy of your organisation, to shoot in this way?

MR MAXAM: Yes, yes. Sometimes I would get a command that I must plant a bomb. If there is a security police I would have to do something to remove them from planting that bomb. Even if it meant killing them. I am here to tell the truth, to ask for forgiveness. The people that were shot there. Those people were shot so that they would not be able to identify us. This would happen a lot at the time, even within the organisation. 

MR SWART: Was it not the policy of your organisation only to shoot people in self-defence? 

MR MAXAM: It is self-defence, it is protection, you are protecting yourself when you are shooting somebody so that they are not able to identify you. 

JUDGE WILSON: What organisation do you mean when you say we were, you were asked in (indistinct) the policy of the organisation, what organisation was it ...

INTERPRETER: The speaker's mike is not on.

JUDGE WILSON: ... that it happened a lot that people were shot to ...

INTERPRETER: The speaker's mike was not on.

JUDGE WILSON: What organisation is it that you are referring to as your organisation now, the organisation that it happened a lot that people were shot to prevent them identifying? 

MR MAXAM: I did not say that when people were being shot a lot, I said that you would shoot at somebody if you were protecting yourself. 

JUDGE WILSON: You said it happens a lot in our organisation. I am asking you what is the organisation. 

MR MAXAM: I am talking about the African National Congress.

MS KHAMPEPE: Are you not referring to PAYCO, Mr Maxam? Are you not referring to PAYCO when you refer to an organisation?

MR MAXAM: Maybe you are not hearing me well. PAYCO was affiliated to the African National Congress. It was a small local organisation at the time affiliated to the African National Congress. The UDF was the umbrella body in the African National Congress. 

MS KHAMPEPE: But the UDF then existed as a legitimate organisation whereas the African National Congress was a banned organisation.

MR MAXAM: The UDF was also banned, but they worked very hard as a vehicle of all organisation that was affiliated or aligned to the African National Congress. 

MR SWART: Mr Maxam, must we accept that you would have shot any person you found on the premises, because they could have identified you?

MR MAXAM: That is so.

MR SWART: So, it was just unfortunate that those people were there that day. If there had been more people or other people you would have also shot them?

MR MAXAM: Yes, as things were that particular day, I would have shot at them.

MR SWART: You did not think before the time of going to the house at a time when there would not be people there, like at night?

ADVOCATE LOURENS OBJECTS: Mr Chairman, I object to that question on the basis that it is unfair, it is not to say that at night time there would not be people at the house, that it is something that can be taken for granted that there would not be people at the house at night.

CHAIRPERSON: Apart from that to ask questions on speculating what might or might not have happened does not take the matter very much further. 

MR SWART: Thank you Judge. Perhaps I could just rephrase it in a different way. Knowing that whoever you found on any premises would be shot, did you not make any attempt to find places which were unoccupied before going there?

MR MAXAM: We would not know whether in a certain place there would be people or not, but we just went there looking for weapons. Even if I found the owner of the house, the owner would, if the owner shot me at home they would accept that I went to other persons premises and that that person shot me. 

JUDGE WILSON: In most houses the domestic workers stop working over the midday break, do they not? 

MR MAXAM: In most houses, please repeat your question.

JUDGE WILSON: In most houses domestic workers stop working over the midday break, do they not? Either between 12 and one or one and two. They leave the house.

MR MAXAM: Yes, that happens in certain houses.

MS KHAMPEPE: Mr Maxam, this house was identified to you by Mr Ndinisa. That is your evidence. Am I correct in stating that way? That is how I have understood your evidence. Mr Ndinisa identified this house in Vlakkeland to you. 

MR MAXAM: Maybe I said that in court. Mr Tisana told me about this. 

MS KHAMPEPE: I think it is my mistake, my apologies. That is your evidence, Tisana. I had the wrong surname. Mr Tisana, in fact, identified the house in question to you. 

MR MAXAM: Yes, that is correct.

MS KHAMPEPE: And did he advise you at the time of identification of that house that there would be a possibility of a domestic worker and/or a gardener being present at the time that you intended to break into that house? 

MR MAXAM: No, he did not advise us of that.

MS KHAMPEPE: And did you not expect to find a domestic worker or a gardener at the time that you intended to break into the house?

MR MAXAM: I will not say that we did not expect this, because surely in white peoples' houses there are domestic workers, but we were not there with the aim to shoot them. We were aware that there were domestic workers in these houses.

MS KHAMPEPE: And how did you intend to deal with the presence of a domestic worker or a gardener? Was that, did you have any planning in that regard? 

MR MAXAM: We did not plan of what we would do. That is why I asked her to open the door, because we told her that we just wanted to search the house, she must just open the door for us.

MS KHAMPEPE: Thank you. 

CHAIRPERSON: Is the position that had she opened the door you would have gone in, took whatever you wanted to and then nevertheless shot her, because she would have been able to identify you? 

MR MAXAM: According to what you are saying, Mr Chairperson, we would have planned something so that she cannot identify us. Maybe we would have blindfolded her so that she cannot see us clearly. If she opened the door for us I hope that we would have just took her and closed her eyes so that she cannot see us. We did not plan to shoot a person in that house. We would try other means. 

MR SWART: You see, Mr Maxam, I put it to you that your choice came, your decision came at the moment you decided to enter the house, because had you accepted the water, even though she had seen you, you could have turned around and left. It would have been unnecessary to shoot, to kill two people. 

MR MAXAM: What we wanted there were weapons, we were looking for weapons so we had to get them. We would have asked water in the township. We just asked for water, because we wanted her to open the door for us.

MR SWART: You bought a weapon ...

MR MAXAM: Yes, that is correct. 

MR SWART: Perhaps you could have bought more that way.

MR MAXAM: If it was very, if it was possible for us to get weapons that way we would, but it was very difficult for us. 

MR SWART: I put it to you that it was unnecessary to kill these two people.

MR MAXAM: Sir, that is your opinion, but truly the situation at the time seemed to be necessary. If you were there you would see what was happening and, Sir, you must remember that I was never arrested before, I was never before the Magistrate and at the time I had to do such incidents, because of the situation in Mbekweni. There was war in Mbekweni. A lot of things happened that led to such events. It was not our aim to shoot people, but we were forced by circumstances.

CHAIRPERSON: No, we have heard enough from you about the war in Mbekweni. We have heard enough about that. It is being put to you that you went there and you decided that you were going to look for guns and if it meant killing the people to get the guns you would have killed and it was just totally irrelevant, as far as you are concerned, whether the people were to identify you or not. If you found guns you would have taken the guns and you would nevertheless have killed them, because they would have identified you. 

MR MAXAM: Is that a question Sir?

INTERPRETER: The speaker's mike is not on. 

MR MAXAM: Okay. Truly, we went there to look for weapons and if we found anyone else in that place we would have killed them, whether we found weapons or not. Even if it was not the two people who were there.

MS KHAMPEPE: That is precisely what is being put to you Mr Maxam.

CHAIRPERSON: Yes.

MS KHAMPEPE: That you intended to kill at all costs in order to obtain the weapons that you were looking for. 

MR MAXAM: Please repeat your question Mam.

JUDGE WILSON: I think what he said is they would have killed at any cost to obtain the chance to look. It would not matter whether they found weapons or not. They went there to look for weapons and if they found anyone there they would have killed them. That is what you said, was it not?

MR MAXAM: It would have depended on the situation in that area at the time, because you can kill a person if that person can identify you whether you found the weapons or not. That would depend on the situation at the time.

CHAIRPERSON: So when your friend held this lady by the arms through the window, at that stage before you broke into the house, at that very stage you decided to shoot her. 

MR MAXAM: Yes, I shot at the time when my colleague grabbed her.

CHAIRPERSON: Are there any other questions?

MR SWART: Just one Judge. It appears from his amnesty application that the co-applicant, Mr Ndinisa, seems to think that it was unnecessary for you to have killed these people. Have you got any comment on that?

MR MAXAM: In what way Sir, because it was our aim not to shoot anyone. Mr Ndinisa did not want anyone, anybody to be shot, because he tried to stop. If we aimed at shooting a person we would have killed Mr Noble on our way there. Why did we not shoot at him if we aimed at killing anyone, because Mr Noble gave evidence in court that there were weapons in his house, but he took them out, he left them at work before we got there. If we were just shooting at people we would have shot him, because, but it was not our aim to do this, to do that, but the situation at the time forced me to shoot, because I was the only person with a gun. 

MR SWART: I do not think you followed the question I put to you. You say it was justified in shooting the people. One of your co-applicants says it was not justified in his application. How do you explain that? 

MR MAXAM: Not according to my knowledge. All of us, according to my knowledge he did not say that it was not necessary, but he was trying to stop us, because he did not want anybody to be shot. We, I just shoot at these people because of the circumstances. 

CHAIRPERSON: I think you have, you can miss that issue. I do not think you can take it any further. 

NO FURTHER QUESTIONS BY MR SWART: 

MR SWART: Thank you Judge. Mr Brink, are there questions you wish to put.

MR BRINK: Yes. I shall not be very long, but I see it is four minutes past one. I do not know whether you wish to take the adjournment at this stage. I am happy to proceed. 

CHAIRPERSON: We will take the adjournment now and resume at two o' clock. 

MR BRINK: Yes, could you ask the prison authorities, Mr Chairman, just to ensure that these three applicants are here just before two.

CHAIRPERSON: Will the prison authorities please identify themselves. Gentlemen, I hope you appreciate by now that this is a matter of some importance and that you will ensure that the applicants are here in time for us to commence proceeding at two o' clock. Thank you. We will adjourn until two o' clock.

COMMITTEE ADJOURNS:

ON RESUMPTION: 

PHILEMON KABILA MAXAM: (Still under oath).

CHAIRPERSON: Mr Brink.

CROSS-EXAMINATION BY MR BRINK: 

MR BRINK: Thank you Mr Chairman. Mr Maxam, when you went to the farm you and your two co-applicants together with other people, four or five in all, arrived and saw the farm owner. Is that the position?

MR MAXAM: Yes, that is the position.

MR BRINK: And had you got to the farm from G7 or G Block, rather, by foot? 

MR MAXAM: Yes.

MR BRINK: And when you arrived at the farm you saw the owner, was he at the gate?

MR MAXAM: Yes.

MR BRINK: And from the gate you spoke to him, then did you walk up the farm road to the house?

MR MAXAM: We walked to the house from the gate.

MR BRINK: Yes, but was that along the road, some sort of driveway, from the gate to the farm house?

MR MAXAM: We were in his yard.

MR BRINK: I do not think you quite understand. How far is the, how far is the gate from the house approximately? You can indicate in this hall.

MR MAXAM: 20 to 30 metres.

MR BRINK: Right. Now to get from the gate, where you spoke to the farm owner, to the farm house I presume you walked along some sort of driveway or farm road for that 20, 30 metres. Would that be correct?

MR MAXAM: I cannot remember, but we used just a straight route from the gate to the house. 

MR BRINK: Would that have been along some sort of gravel road or gravel path or a path used by motor cars or trucks or bakkies?

MR MAXAM: A gravel road.

MR BRINK: Gravel road. That was the easiest way to get from the gate to the house?

MR MAXAM: I would say so.

MR BRINK: Can you remember what was on the side of the road, that is the road leading from the gate to the house, what was on each side of that road? Was there a bush or what or vineyards or what?

MR MAXAM: I cannot remember, because there was green grass as well. 

MR BRINK: Yes, well, when you left the farm house I take it you went the same route back to that gate.

MR MAXAM: No, I used another route. 

MR BRINK: Did you and not the, all the other people not use the same road, farm road, back to the gate to get out?

MR MAXAM: I do not know, we spread and ran away.

MR BRINK: I see and is that why you say you did not observe any of your accomplices with things such as tape, video recorders, other property?

MR MAXAM: Yes.

MR BRINK: Very well. Now the Committee has heard evidence about your confession which was handed in at your trial and that confession you have told us was a false confession. 

MR MAXAM: Yes.

MR BRINK: And at that stage when you made the confession you had not had the benefit of legal advice?

MR MAXAM: Yes, that is so.

MR BRINK: How long before your trial did you receive legal advice? 

MR MAXAM: I think it took from two to three weeks.

MR BRINK: And was that, you first saw your advocate two to three weeks before the trial. Is that your answer?

MR MAXAM: Yes, that is so.

MR BRINK: And I take it you had a number of consultations with her?

MR MAXAM: There is something I do not understand. Excuse me Sir. My trial, are you talking about my trial at the Supreme Court?

MR BRINK: Yes, yes. The one where you, when you were convicted and sentenced to death. 

MR MAXAM: I thought you were referring to the other trial. 

MR BRINK: Did you have a number of consultations with your advocate before the trial commenced? That is the trial for the murder of these two people with which we are concerned today.

MR MAXAM: Yes.

MR BRINK: And did you tell her about your political activities?

MR MAXAM: Yes, I did tell her.

MR BRINK: And did you tell her that you went to this farm house to commit burglary with a view to obtaining weapons?

MR MAXAM: Please repeat the question.

MR BRINK: During the course of the consultations which you had with your advocate before the trial, with which we are concerned now, relating to the death of these two people, did you tell her that you had gone to the farm house with a view to stealing weapons?

MR MAXAM: Yes.

MR BRINK: Which weapons you needed to use because of all the trouble in your township?

MR MAXAM: Yes, it is so.

MR BRINK: So she was fully aware that your crime, in so far as it related to the breaking into this house, at very least, was politically motivated?

MR MAXAM: Yes, she knew because I informed her. 

MR BRINK: So she was fully prepared to defend you on the basis that this breaking into the house was politically motivated?

MR MAXAM: Yes, it is so. 

MR BRINK: Because it seems that in your defence, bear with me Mr Chairman, in your defence, I am referring to page 33 of the bundle and which is page 674 of the judgement, just below paragraph A on the left. You gave evidence on your own behalf and you told the court that you had gone to the farm, because there had been an instruction by the President of the ANC to look for firearms for use in confrontation with the police. 

MR MAXAM: That is so. 

MR BRINK: And I take it your counsel asked you questions to suggest to you the answer which you might give to the court indicating that that was the truth?

MR MAXAM: I did not understand you well.

MR BRINK: When you gave evidence in your defence you told the court, as you have admitted, that what you did was on an instruction by the President of the African National Congress to look for firearms to use to fight the police.

MR MAXAM: Yes.

MR BRINK: You had told your advocate that?

MR MAXAM: Yes.

MR BRINK: And after you were convicted you then went back and gave further evidence did you not?

INTERPRETER: The interpreter did not hear.

CHAIRPERSON: Mr Brink I do not think they can appreciate the fact and that you are now request your, your questions are now ...

MR BRINK: Sorry, I cannot hear you Judge.

CHAIRPERSON: Your questions seem to be directed at a stage when he gave evidence in extenuation or mitigation.

MR BRINK: Yes, I have difficulty in hearing you Judge, your microphone is not on.

CHAIRPERSON: I am sorry. I thought. You should frame your question in such a way that he understands that he gave evidence a second time, ...

MR BRINK: Yes.

CHAIRPERSON: ... but that was in relation to the procedure after he had been found guilty.

MR BRINK: Yes, I thought I had done that, but I will put it again.

CHAIRPERSON: For the purposes of mitigation.

MR BRINK: Yes. After you had been found guilty did you go back into the witness box? Do you remember, because you were in serious trouble and you had to say something to try and persuade the Judge not to sentence you to death?

MR MAXAM: The evidence I gave was the same as the one I gave to the attorney, my legal representative. 

MR BRINK: Yes, no, I do not think you quite understand me. You first gave evidence before you were convicted, you gave evidence in your defence where you told the Judge, and presumably the assessors, that the reason you broke into the house was to obtain guns for political purposes. 

MR MAXAM: Are you talking about during the trial now?

MR BRINK: Yes Mr Maxam, obviously. Do you want me to put it again? 

MR MAXAM: Please repeat the question.

CHAIRPERSON: Mr Brink, would it not be better if you put to him what his evidence was on that occasion and ask him did he say this to the court?

JUDGE WILSON: It is not here.

MR BRINK: I would rather develop it, Mr Chairman.

CHAIRPERSON: I see. 

MR BRINK: With respect.

CHAIRPERSON: Yes, do carry on.

MR BRINK: Yes. Alright. You gave evidence in your own defence before you were convicted while the trial was still going on. Correct?

MR MAXAM: Yes.

MR BRINK: Then the Judge found you guilty of murder and other offenses. 

MR MAXAM: Yes.

MR BRINK: And after he found you guilty your advocate put you back in the witness box to give evidence to try and get a lighter sentence than that of death.

MR MAXAM: Yes.

MR BRINK: Yes. Now when you gave evidence on that second occasion, when you were trying to avoid the death sentence, you went on about, more and more, about the reason why you did these things, was because it was political. Is that not so?

MR MAXAM: Yes.

MR BRINK: But your advocate who was appearing for you at the trial said, I will read the words. I do not know whether the interpreter can interpret this. 

&#9;&#9;"Mrs Jones ..."

that is your advocate

&#9;&#9;"who appeared for you at the appeal and also at the trial disavowed any intention to submit that the crimes were politically inspired". 

MR MAXAM: Having worked together with her, that is not what I found. It is Mrs Jones after I was sentenced who tried to write to the Reparation, Repatriation Department of the ANC, National Indemnity Council making applications for me on political grounds. I do not understand when you are saying that she did not use political motive for my defence.

MR BRINK: Well that appears from the Appeal Court judgement that at the trial she told the Judge that your crimes could not be said to have been political. 

JUDGE WILSON: Did she do that Mr Brink. This passage has caused me great difficulty.

INTERPRETER: I did not interpret Mr Brink's question to the applicant yet.

CHAIRPERSON: Leave it be.

MR BRINK: Just leave it for the moment. Leave the question for the moment. I will just deal with Judge Wilson's query. 

JUDGE WILSON: He states in his judgement, Judge Howie does, that she appeared in both, at on appeal and also at the trial.

MR BRINK: Yes.

JUDGE WILSON: And he then goes and says she 

&#9;&#9;"disavowed any intention to submit that the crimes were politically inspired".

Is he not talking about the hearing at the Appellate Division, because he then goes and talks about other statements. Not that anything that happened at the trial. 

MR BRINK: As I read it, Judge, Mrs Jones who appeared for him on appeal and also at the trial. It could be either. It could be either, but what ...

CHAIRPERSON: In any case Mr Brink, counsels submissions made to a court are influenced by what counsel thinks might be to the advantage of their client. 

MR BRINK: Yes, with respect, I am aware of that, but what I wanted to find out was whether any instructions were given by the applicant to his counsel in that regard, because if, this might be a matter for me to address on you later, because if...

CHAIRPERSON: Yes, I think that these are fine points which ...

MR BRINK: Could ...

CHAIRPERSON: ... a lay client may not be able to appreciate.

MR BRINK: It may well be. I do not want to be unfair to the applicant.

JUDGE WILSON: And the court finishes saying that Mrs Jones exercised a wise discretion which would appear to be that they thought it was counsels decision not the clients. 

MR BRINK: Yes, that could be. Other matters which I intended canvassing have really been dealt with very fully by members of the Committee, with respect, and by my colleagues so I have no further questions.

NO FURTHER QUESTIONS BY MR BRINK: 

CHAIRPERSON: Are there any questions you wish to put in re-examination.

RE-EXAMINATION BY ADVOCATE LOURENS: Mr Chairman, I just wish to address one aspect to Mr Maxam. Sir, to be a member of PAYCO, is it correct that you could be a registered member of PAYCO?

MR MAXAM: Yes.

ADV LOURENS: Would you, yourself, have been aware of everybody who was an actual registered member of PAYCO?

MR MAXAM: Well, it was quite a biggish organisation. President Mandela does not know the members of the ANC either. 

ADV LOURENS: So, is it correct to say or is it possible then that there were people who supported PAYCO and its ideals, but who may not have actually been registered members as such?

MR MAXAM: Yes.

CHAIRPERSON: They all fall in the category of what one understands to be the term Comrade?

ADV LOURENS: Comrades.

CHAIRPERSON: In other words, anybody involved in what is called the struggle? Whether you belong to one organisation ...

ADV LOURENS: Yes.

CHAIRPERSON: ... or the other.

ADV LOURENS: Thank you Mr Chairman. It was an aspect I just wish to clarify. Then I have no further questions for the applicant.

NO FURTHER QUESTIONS BY ADVOCATE LOURENS: 

MS KHAMPEPE: Mr Maxam, what was an A-team? In some of your documents you have referred us to a unit called the A-team.

MR MAXAM: It is just a name for a certain structure, people you worked with. Sometimes we would work at night amongst enemies. You would run away being chased. Most of the time you were disguised, both you and the enemy. To identify yourself with your co-worker you would call, you would say you are an A-team or MK. 

MS KHAMPEPE: Thank you. 

CHAIRPERSON: Can you explain to me what the difference was, the political difference between PAYCO and AZAPO.

MR MAXAM: PAYCO was an organisation that was affiliated with the African National Congress. To my knowledge AZAPO was affiliated to the PAC. 

CHAIRPERSON: The question was what is the difference politically between the two.

MR MAXAM: It is the way and the strategy used to fight the same battle. 

MS KHAMPEPE: In fact, Mr Maxam, AZAPO was not affiliated to the PAC. The PAC also existed as its own organisation, independent from AZAPO. Was it not the situation in 1986, that there were three organisations predominantly and AZAPO was one of those organisations?

MR MAXAM: Well, you could say so. AZAPO was not directly from the PAC, but they were totally against PAYCO and ANC. That is what I was trying to say. 

JUDGE WILSON: It appears in one of the statements or applications that when you arrived on this, the house you asked the gardener for some water. One of you asked the gardener for some water.

CHAIRPERSON: Page 60.

JUDGE WILSON: And 15.

MR MAXAM: I never asked water from the gardener.

JUDGE WILSON: And that it was the gardener who directed you to the maid. 

CHAIRPERSON: This is the statement made by Mr Ndinisa in his application. 

MR MAXAM: I do not remember asking water to the gardener. I saw the gardener while we were running away.

JUDGE WILSON: And an attempt was being made to tie the gardener up at that stage was it not?

MR MAXAM: I do not know, because I just saw the gardener while we were running away.

JUDGE WILSON: Wasn't Crosby and Ndinisa trying to tie him up?

MR MAXAM: I am not sure, because I was not there at the time. 

JUDGE WILSON: Well, did he not argue with you about you wanting to shoot the gardener?

MR MAXAM: Crosby stopped me while we were trying to get inside the house, because the gardener, according to Crosby, asked not to be shot. Not that I was in front of the gardener, because when we left the window after I drank the water the door was already broken. I went inside. Crosby then called me. I do not know whether he tied the gardener or not.

JUDGE WILSON: Did you drink the water after you shot the woman who gave it to you?

MR MAXAM: I drank the water before I shot the woman.

JUDGE WILSON: Because you just said after I drank the water I went inside, they had already broken the door.

MR MAXAM: I shot this lady after this. 

JUDGE WILSON: After the door had been broken?

MR MAXAM: Yes, after the door had been broken. 

JUDGE WILSON: And you ...

MR MAXAM: We then went inside.

JUDGE WILSON: And you say it is then that Crosby Ndinisa told you that the gardener did not want to be shot?

MR MAXAM: Yes, it was at that time when we were going inside the house, that I must not shoot at the gardener. We then went inside the house. We left the gardener outside. 

JUDGE WILSON: You just left the gardener outside?

MR MAXAM: Yes, we left him outside.

JUDGE WILSON: So he could run away and raise the alarm? Do you mean that, that we left the gardener outside?

MR MAXAM: Yes, we left him outside. He could have ran.

JUDGE WILSON: You were in charge of this operation you have told us. You had just shot one person, the woman who worked in the house, you knew there was a gardener outside who was very nervous and did not want to be shot and you just left him there. Is that what you are telling us?

MR MAXAM: Yes, that is what I am telling you.

JUDGE WILSON: And you went and searched all through the house, as you have told us?

MR MAXAM: Yes, we searched the house.

JUDGE WILSON: And then somebody raised an alarm and you ran out of the house and shot the gardener?

MR MAXAM: Yes, I shot at the gardener while we were running away.

JUDGE WILSON: Why?

MR MAXAM: Because we did not want him to identify us or to tell the police in which direction we ran into.

JUDGE WILSON: But you had left him outside the house, you had done nothing to him. You just left him when he could have run away, as you have told us. What made you change your mind and decide you had to kill the man?

MR MAXAM: The reason was that we did not want him to identify the direction we went into.

JUDGE WILSON: You keep saying we, but Crosby Ndinisa tried to stop you killing him, did he not? He argued with you.

MR MAXAM: We did not argue with Crosby. While we were running away, it was after a long time that Crosby tried to stop me. It was not at the same time when we were running. 

JUDGE WILSON: Where was it that Crosby tried to stop you after a long time?

MR MAXAM: Crosby stopped me while we were going inside the house. We then searched the house and while we were running away nobody stopped me. It is when I shot at the gardener.

JUDGE WILSON: You see Crosby, in his application says,

&#9;&#9;"After arguing with Philemon Maxam against shooting the gardener, Mr Maxam, who had also shot the maid, shot the gardener anyway".

MR MAXAM: That is how he put it, but it is not what happened.

JUDGE WILSON: Well, he put, I should have read a bit earlier. He said,

&#9;&#9;"I ran into the garden and was about to tie up the gardener, but after arguing with Philemon Maxam against shooting the gardener, Mr Maxam shot the gardener anyway".

He says it is while he was trying to tie him up.

MR MAXAM: When we were running inside the house to search for the house we did not shoot at the gardener at that time. I just shot at him while we were running away from the house.

JUDGE WILSON: Thank you.

WITNESS EXCUSED

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