Amnesty Hearings

CHAIRPERSON: Good morning, for the record, I am Judge Pillay. I am going ask my colleagues here to put their names on record, for purposes of typing of the record.

ADV DE JAGER: Adv Chris de Jager.

ADV SANDI: I am Ntsiki Sandi.

CHAIRPERSON: For similar reasons, will the representatives do the same?

MR SMUTS: Mr Chairman, Adv Izak Smuts on behalf of the victims.

MR ZILWA: Mr Chairman, Adv Phillip Zilwa on behalf of all the applicants, thank you.

MR MAPOMA: Mr Chairman, I am Zuko Mapoma, the Evidence Leader.

CHAIRPERSON: Mr Smuts, before we start hearing evidence, I assume that you are in possession of the applications?

MR SMUTS: I beg your pardon Mr Chairman?

CHAIRPERSON: The applications itself, and the contents, you have acquainted yourself with it?

MR SMUTS: We have been placed in possession of all the applications Mr Chairman.

CHAIRPERSON: In order to curtail the proceedings, the panel would like to hear on what basis, factual basis, you or the families, oppose the application.

MR SMUTS: Thank you Mr Chairman. Possibly to commence with for the record, we act on behalf of the following victims, Ms Chloë O'Keeffe, the partner of the late Mr Alistair Weakley, Mr Thomas O'Keeffe, who is a survivor of the attack, Mr Keith Rumble and his son, Brett Rumble, who are also survivors of the attack and Ms Debbie Barber and Mr Trevor Weakley, the offspring of the late Mr Glen Weakley.

Mr Chairman, the opposition to the application is not based on an opposition to the process in respect of which this Committee sits. There is general and full support for the Truth and Reconciliation process from all those whom we represent.

The opposition to this application, is advanced on the basis firstly that it is not evident from the applications which have been made available, that there has been a full disclosure of all the relevant facts and secondly, and perhaps more importantly, it is opposed on the basis that these applications do not relate to offences relating to an act associated with a political objective as envisaged by the Act.

It is on that basis that this application is opposed.

CHAIRPERSON: Mr Smuts, when you say or refer to political objective, which is the wording of the Act, do you exclude motive?

MR SMUTS: Mr Chairman, no. Again on the applications as presently based, the motive revealed is not a model of clarity.

CHAIRPERSON: Is there any concrete allegation or bits of evidence, that would amount to disputing anything that the applicants may disclose, as their fully disclosed version?

MR SMUTS: Mr Chairman, one would hope that the proceedings would not be delayed by the failure or refusal to make available the record of the criminal trial.

We by force of circumstance, because of that failure or refusal, whichever it may be, have had to rely on the facts as are recorded in the judgement both in respect of conviction and sentence, and to a lesser extent the judgement in respect of the admissibility of the confessions of the applicants, well, three of the applicants in the criminal trial.

So, there are suggestions in the judgement that some of the matter which is recorded in the applications, may not accord with what could have been led as evidence in the criminal trial.

But at this stage, it is not possible because we don't know what the full version is, to be definitive about that.

CHAIRPERSON: Mr Zilwa, can you then proceed?

MR ZILWA: Thank you Mr Chairman. Mr Chairman, I don't deem it essential to set out the, in summary form, the basis of the application, because ...

CHAIRPERSON: No.

MR SMUTS: Thank you, thank you Mr Chairman. Mr Chairman, on that basis I would proceed to lead the applicant straight away. It will be seen that in the affidavits, we started with Pumelele Hermans. He is depicted as the first applicant, but upon further consultation with the applicants, since as it is clear from the affidavits, the planning, the plannery stage of the incident and everything else, first took place in Flagstaff, we have decided that in order to put the version in a chronological order, we should first commence with one of the applicants from Flagstaff, so I will commence with leading Mlulamisi Maxhayi. So he is the one who will be testifying first.

ADV DE JAGER: Page number?

MR ZILWA: Page 24 sir. Page 24. He is depicted as the second applicant, it is headed Second applicant's affidavit.

CHAIRPERSON: His application starts on page 11?

MR ZILWA: Yes, in fact Mr Chairman, the application itself starts at page 17, and before I actually lead him, I just wanted to bring one thing to the attention of the Committee.

It will be noticed that the application form, that is form 1 as it appears in the papers, at page 23, is actually, has actually not been attested.

CHAIRPERSON: What is the position about it?

MR ZILWA: The position about this Mr Chairman, it appears that the applicant actually filled more than one application. Now apparently this one for some reason, was not commissioned, but I do know for a fact that there is one that has been commissioned, but in order to save time, seeing that this is the one that is before this Committee, we have arranged that it be commissioned and as it currently stands, it has been commissioned.

I am informed that the matter has been taken up with the other side, that is the side of the defence and there has been no objection. I would request this Committee to condone the fact that this particular application that was actually put with this papers, has not been commissioned.

I would request such condemnation to state that in fact, it does comply with the requirements.

ADV DE JAGER: Where in the Act are we authorised to condone?

MR ZILWA: I must say, I haven't taken a look at the Act with particular relation to that, but as I have pointed out, there is in fact an application of this nature, which was duly attested. It is just that I am not sure why it is not the one that was included in this papers, but I would submit that it is inherent within the powers of the Committee, to do that.

ADV DE JAGER: We have got no inherent powers, we are a creature of Statutes.

MR ZILWA: That is quite correct Mr Chairman, but I would submit that even though that is the position, there is nothing in the Act which says that you may not, if you, in appropriate circumstances, you may not decorum that.

ADV DE JAGER: I think, if there is a proper application, let's have the proper application and I think, as far as I am concerned, I am prepared to let us proceed with the evidence, try and find the proper application, if it is gone missing in the TRC's offices, that is another thing, then we will have to look at it again, but I am, I wouldn't like to off-hand condone it unless you could give me the, somewhere in the Act, the authority that we are entitled to condone.

MR ZILWA: I could do that, but I should also point out that these applications, the one that I am talking about that I am aware has been attested, they were done actually at the office of the Head of Prisons in Umtata and if it should so happen that maybe the one that was dispatched to the Commission, went astray somewhere, arrangements could be made to actually obtain a copy from the Head of Prison in Umtata.

CHAIRPERSON: Mr Zilwa, the affidavit headed Second applicant's affidavit, when was that signed?

MR ZILWA: Mr Chairman, the stamp unfortunately it is a bit on the, it is a bit not very clear, but there is a date stamp impression, 1 April 1997 actually. It is just that the date stamp is not very clear, but you can see the 1 April, but again, if needs be, the original of this affidavit, will clearly reflect the correct date.

CHAIRPERSON: But was that affidavit submitted with the Annexure Form 1?

MR ZILWA: No Mr Chairman, in fact Annexure Form 1 was dispatched well before the affidavit. The affidavit was submitted in preparation for the hearing itself.

ADV DE JAGER: Wasn't it then in 1998, wasn't it April 1998 before this matter was put down for hearing on the 20th of April?

MR ZILWA: I am sorry, could you repeat that?

ADV DE JAGER: Was this affidavit signed on the 1 April 1998, for the hearing which was due to start on the 20 April 1998?

MR ZILWA: In fact that is quite correct. As you will see in the portion dealing, in the attestation portion, it says and signed before me at Umtata this - day of - 1998, it was in fact as I say in the date stamp impression, all that appears is the 1 April, but then the year is not very clear on the papers which we have before us. This affidavit which was made only in preparation for this hearing, was in fact in April 1998. As it appears in the attestation portion of the document.

CHAIRPERSON: Mr Smuts, have you got any objections to ...

MR SMUTS:: No Mr Chairman, the objection of the victims to the application is not based on any technicalities.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Mr Chairman, I have no objection.

CHAIRPERSON: Let's start with the evidence and see how far we get with the technicalities then.

MR ZILWA: Thank you Mr Chairman. Mr Chairman, could I request that the second applicant, Mlulamisi Maxhayi, I don't know if it is practice that he should first be sworn in?

CHAIRPERSON: Yes. Are you ready to start?

MR ZILWA: I am in fact ready to start.

CHAIRPERSON: Mr Maxhayi, what language would you prefer to use?

MR MAXHAYI: Oh, I prefer to use English.

CHAIRPERSON: Are you comfortable with English?

MR MAXHAYI: Yes.

MLULAMISI MAXHAYI: (sworn states)

CHAIRPERSON: Please be seated.

EXAMINATION BY MR ZILWA: Thank you Mr Chairman. Mr Maxhayi, is it correct that you are the applicant in this application for amnesty, relating to the murders of the victims Alistair and Glen Weakley and the other victims of the incident of Port St Johns in respect of which you are asking for amnesty?

MR MAXHAYI: That is correct.

MR ZILWA: Now, is it correct that you are a teacher by profession?

MR MAXHAYI: Yes.

MR ZILWA: And where is your home?

MR MAXHAYI: My home is at Flagstaff.

MR ZILWA: Are you a member of any political organisation?

MR MAXHAYI: Yes.

MR ZILWA: Which organisation is that?

MR MAXHAYI: I am a member of the ANC, ANC Youth League, Communist Party of South Africa.

MR ZILWA: Yes. When did you commence your membership of such organisations which you have just mentioned?

MR MAXHAYI: I started to be a full member of the ANC in 1990.

MR ZILWA: In the organisation that you have just mentioned, do you hold any particular position of authority or of leadership?

MR MAXHAYI: Yes, at the time I was not yet convicted, I was serving in the organisation at some portfolios.

MR ZILWA: In the ANC for instance, which portfolio were you holding?

MR MAXHAYI: In the ANC, I was the Secretary of my Branch in 1990.

MR ZILWA: Yes, in fact in paragraph 3 of your affidavit in support of your application, you mention that from 1990 you were serving on the Executive Committee of the ANC Youth League at Flagstaff, is that correct?

MR MAXHAYI: Yes, it is correct.

MR ZILWA: Now, in the Communist Party, did you hold any position of leadership?

MR MAXHAYI: No, I was just a mere member in the Communist Party.

MR ZILWA: I see. And I also see at paragraph 4, of your affidavit, you mention that you were later elected as the Chairperson of the ANC Youth League sub-regional Executive which composed of four districts which you have mentioned in your affidavit, is that correct?

MR MAXHAYI: Yes, that is correct.

MR ZILWA: Right. Now, relating to the events that relate to the incident in question, could you in your own words give this Honourable Committee a background of the events that preceded the commission of the offences in respect of which you are asking for amnesty?

MR MAXHAYI: Yes, I can.

MR ZILWA: Yes, can you please do so.

MR MAXHAYI: The matter started on the day when comrade Chris Hani was assassinated, that is on the 10th of April 1993.

On the 11th, I met with my co-comrades, whom were serving as Self Defence Units at Flagstaff. The name of the comrade was Vuyani Nyalukana. We discussed the issue of the assassination of comrade Chris Hani together.

And then we resolved that we should take the retaliation, we should avenge for comrade Chris. It is then that we came up with a conclusion that we should go to Port St Johns where we had had an information that there was infiltration there by the counter-revolutionary forces.

We decided to reinforce us with another comrade, Lungile Mazwi, who is also an applicant.

MR ZILWA: Sorry, Mr Maxhayi, let me disturb you just for a moment. You mentioned that it had been brought to your attention that at Port St Johns there were some counter-revolutionary forces, can you expand a bit on that?

MR MAXHAYI: Okay. At the time I was serving as the ANC Youth League sub-regional Chairperson, which was composed of Lusikisiki, Flagstaff, Bizana and Port St Johns. We had an agreement as the comrades who were forming up that sub-region, that in our respective Branches, we should organise ourselves into Self Defence Units, because during those days, it was the time when one was hearing about the Third Force, it was the time when one was aware that the government of the time, was not willing to free this country.

There were delays during the negotiations, people were dying, so there was a need therefore for us in our respective areas, to organise ourselves, because we knew that there was a counter-revolutionary element in South Africa. So as member of a revolutionary force, the ANC Youth League, we decided then to organise ourselves in Self Defence Units.

The comrades from Port St Johns, reported the issue to the sub-regional Executive, which was composed of the Self Defence Units, that there at Port St Johns, they are operating under a threat, they are suspecting that whites there, had infiltrated their area. Then they wanted us to be aware of that as the Self Defence Unit at sub-regional level.

Now, we told them to go and investigate the thing so that they can come up with a concrete information, so that we can transmit or convey it to the upper bodies of the ANC or the ANC, or the MK Commanders who were deployed in our areas, whom we were working hand in hand.

So it was during the time that we were waiting for them to come up with the concrete evidence as to what is really happening there, so that we can submit a concrete information to the upper brass, to the top brass of the ANC.

It was during that time that comrade Chris Hani was assassinated. Then at Flagstaff then, as we had heard that information, we decided to take Port St Johns as our first area of operation. That is the reason we went to Port St Johns.

MR ZILWA: In other words, if I understand you correctly, Port St Johns was an area which, according to the information you had received, had these counter-revolutionary elements as you put it, and you decided that in retaliation for the assassination of Chris Hani, it was an appropriate place?

CHAIRPERSON: Mr Zilwa, maybe we must establish first whether these actions amounted to retaliation or revenge.

MR ZILWA: I assume you have understood that Mr Maxhayi, could you respond to that?

MR MAXHAYI: We wanted to retaliate.

MR ZILWA: Thank you Mr Chairman. What was the real reason for your retaliation, were you aiming to achieve anything by such retaliation or what were your objectives really in such retaliation?

MR MAXHAYI: Yes, we aimed at achieving one thing. We wanted to make the then illegitimate government, to be aware that the continued killing of our heroes and our role-models in the political sphere like Chris Hani, would really cause a mess in this country because as the rank and file of the ANC or MK, we would not allow that type of a situation. Therefore we wanted to make the government aware of that and secondly, to make the people of this country aware that the killing of the leaders, was unbearable to us.

The government was aware that there was no other way to heal the wound, rather than to free the people of this country. That was the aim we wanted to achieve, that we are retaliating, we retaliated so as to show the government that the killing of our heroes, was unbearable to us as rank and file and also, the government should be compelled therefore, to free the people of this country, who were of the same aspirations as comrade Chris Hani.

MR ZILWA: Now you have also mentioned the fact that the retaliation, you aimed retaliation really at the counter-revolutionary forces, which according to your information, were based mostly at Port St Johns. Did you learn about the identity of the killer of Chris Hani, and did that have anything to do with your decision to actually hit Port St Johns?

MR MAXHAYI: Yes, we heard that comrade Chris was killed by a white man and that alone really caused us to link the whole thing with the real enemy of comrade Chris Hani, that is the government, the then government, with its allies.

MR ZILWA: Right, can you then go on with what happened after you had taken this resolution.

MR MAXHAYI: Then on taking the resolution that we should really go and retaliate for Chris, we went to Port St Johns on the basis that we wanted to consult the comrades there, that is Pumelele Hermans and Fundisile Guleni, who were serving, who were also serving in the sub-region, who really put the information to us at the sub-regional level.

So we were to go to them as to ask them as to where are these targets, whom they were really suspecting that they were there, to destabilise the movement. So, from Flagstaff we pulled on the 11th, it was - no, we met at Flagstaff on the 11th and then on the 12th, we moved to Port St Johns.

MR ZILWA: Let me disturb you once again Mr Maxhayi. Sorry about that, but we have to establish everything at this stage.

MR MAXHAYI: Okay.

MR ZILWA: Now, you say you took this decision as a Self Defence Unit. How many people did this Self Defence Unit comprise?

MR MAXHAYI: At my Branch, we were more than 15 who were the Self Defence Unit there.

CHAIRPERSON: It that at Flagstaff?

MR MAXHAYI: At Flagstaff, yes.

MR ZILWA: And when you met to discuss the incident, how many were you?

MR MAXHAYI: We met on the 11th, myself and Vuyani Nyalukana. We initiated this thing at the time and then we decided to reinforce us with Lungile Mazwi on the way to Port St Johns.

MR ZILWA: Now with relation to the way this Self Defence Units operate, do they operate autonomously or do they have to, if any resolutions are taken by them, do they first, before they are implemented, do such resolutions first have to be taken up with the higher echelons of the organisation, or how really did this Self Defence Unit work?

MR MAXHAYI: The Self Defence Unit has an autonomous status. What happened was that the ANC deployed well trained MK members in our respective areas. Those people trained us as Self Defence Units and then at times, they left the area. Then the people who were trained, had a right to take the decision on their own.

That is the Self Defence Unit. They were autonomous in terms of defending, in terms of operation on the absence of the Commanders or the well trained MK cadres who were deployed in our areas.

ADV SANDI: I am sorry Mr Zilwa, if I can just ask you a question about this for clarity. Are you saying that you also received military training?

MR MAXHAYI: Yes, I got training from the comrades who were deployed in our areas. A Self Defence Unit need to be trained, though it is not a full time training. A paramilitary training is needed.

ADV SANDI: How long did that training take?

MR MAXHAYI: No, it was not a full time training at the time, because we used any chance, we were not full time.

ADV SANDI: What was the focus of that training, what was the training on?

MR MAXHAYI: The focus was to make the people aware of - as the youth, as I said earlier on that there was a need for the security of the organisation, so most of the time, the security of the organisation, depends on us. That is why we took that decision.

Then theirs, that is the MK cadres, was to facilitate that by orientating let me put it that way, those comrades, nominated comrades, they were nominated in their merits, comrades were selected on merits in terms of are they vigilant and so on, in terms of looking for the enemy or the safeguard of the organisation. So it happened that those comrades be taken maybe to a shooting range and then be orientated with maybe a rifle or a pistol and then be taken at times to another terrain for maybe a physical training and so on.

So that was the training which was happening. It was not a formal training.

ADV SANDI: Okay, Mr Maxhayi, you sort of answered me. I don't want to interrupt you Mr Zilwa, but just one question on this. How long before the assassination of Mr Hani, did this training of yours take place?

MR MAXHAYI: Myself, I started in 1991. 1991 I started to get involved in the training.

ADV SANDI: Thank you Mr Zilwa, sorry for that.

MR ZILWA: Thank you sir. Okay, now you have mentioned that you received this training from some MK cadres who would be deployed in the various districts. With relation to Flagstaff, the district in which you were operating, who was the MK cadre who gave you this paramilitary training you have mentioned?

MR MAXHAYI: One, the most prominent one is Max, Max Taho, but at times there were Commanders who would come from Umtata to assist at that particular time, who were not really full time, you see, but the most prominent one who was really concerned with the area was Max Taho.

MR ZILWA: Right, now this Max Taho, did he give you any weaponry with which to defend the organisation or were you armed, let's put it that way, were you armed in any way by the MK cadres who were deployed to give you this paramilitary training you have mentioned?

MR MAXHAYI: Now, at a certain time Max was compelled to go to a certain training, Warrant Officer's course at Umtata School of Infantry. It is then that now he left his rifle with me and told me to look after the situation in my area there.

MR ZILWA: In other words if I understand you correctly, Max left you with his rifle which I assume was then the issue of his organisation, and he left this rifle with you with specific instructions to look after the interest of the organisation?

MR MAXHAYI: That is correct.

MR ZILWA: Right, now please carry on. You were still saying that after you had taken the decision to go to Port St Johns, you embarked on a journey to Port St Johns on a particular day. Can you take it from there and proceed?

MR MAXHAYI: Yes. Now on that 12th, it was on Monday, then we went to Port St Johns, three of us. We had a rifle, we had a pistol and two handgrenades.

MR ZILWA: I think we should get the specifics at this point of time. When you say there were three of you, could you mention who you were and how each of you were armed?

MR MAXHAYI: It was myself armed with a rifle, Vuyani Nyalukana was not armed with anything, because he was concentrating on driving, Lungile Mazwi was the one who was carrying a 9 mm pistol and then in the vehicle there were two handgrenades there in case of an attack.

MR ZILWA: Now you say you were armed with a rifle. Would it be correct to assume that the rifle you were armed with, is the one that was left with you by Max Ntekiso, the MK cadre who was deployed in your area?

MR MAXHAYI: That is correct.

MR ZILWA: Now, the two handgrenades you have mentioned, who had supplied those?

MR MAXHAYI: A Self Defence Unit, we decided, in fact we were resolved that we should organise firearms for ourselves. Now, I cannot be specific as to where did we get the grenades, but it happened that Vuyani had a good contact with somebody who really brought those two handgrenades in our Unit.

MR ZILWA: So in short, you say the handgrenades were actually furnished by Vuyani, and just to get it straight, it is correct that Vuyani Nyalukana is the man with whom you appeared in your trial, and who was later killed when the trail was still proceeding?

MR MAXHAYI: That is correct.

MR ZILWA: And he was also the owner of the bakkie which conveyed you people of Flagstaff to Port St Johns?

MR MAXHAYI: That is correct.

MR ZILWA: Right, so that accounts for the two handgrenades. The other pistol that was in the possession of Lungile Mazwi, where did it come from?

MR MAXHAYI: Another pistol, I can also not going to be exact where did it come from. I think since we had that resolution that we should buy the arms or we should really make sure that we had arms, then it happened that a comrade bought the arm and submitted it to the Unit.

Even there I cannot really be exact as to who really brought the pistol, but we had an access of these arms because any comrade who was within the Unit, who happened to have an arm, would submit and register it so that we can be in a position to use it, whatever it deemed necessary.

MR ZILWA: In other words, of your own knowledge you are not in a position to say where this pistol actually came from, all that you can say is that it must have come from one of the members of the Self Defence Unit?

MR MAXHAYI: Yes, I cannot be exact.

MR ZILWA: Right.

ADV SANDI: Sorry, that sounds very vague to me. Did you not say Lungile Mazwi had the pistol?

MR MAXHAYI: Yes, Lungile had the pistol, but it didn't belong to him. It was not his own pistol, it was the pistol of the Unit you see.

ADV SANDI: You don't know where he got it from?

MR MAXHAYI: It happened that some of the arms would be in the possession, would be in the safeguard of comrade Vuyani Nyalukana because he was the one who was living in a bit free style as I was, because he was living alone, but I still got the families and so on, so there was no need that we should have many firearms at our possession because of the families.

Now, Vuyani Nyalukana was serving as our, maybe our arsenal because he was the one who was having these arms. Now at the time Lungile Mazwi was given that firearm.

CHAIRPERSON: In any case, you say you don't know where he got it from and if he should give evidence, he can tell us?

MR MAXHAYI: Yes, he can tell us, I don't know.

MR ZILWA: All right, please carry on Mr Maxhayi.

MR MAXHAYI: Now, on our arrival now at Port St Johns, we met with the two comrades, Fundisile Guleni and Pumelele Hermans.

We asked them as to where are these people whom they were really suspecting them as if they were there to destabilise. They did not show us, but instead, they came up with another thing, with another advice, because according to our information in the sub-region, these people were at town, they were living right at Port St Johns town, you see, according to the data they had provided to us.

Now, instead of now showing us this people there in town, because even themselves they were living at Port St Johns at town, so they told us that no, it would not be wise enough to launch an attack there at town, because that would really raise an alarm to the local police there and the Transkei TTF which had a base at Port St Johns.

So now, they come up with another advice that for this operation to be carried out smoothly, these people are also using a certain coast referred to as Gomolo, as their place where they are planning their things and so on in an effort to destabilise the movement in the area.

So, we agreed then that we should attack in that area, to avoid an unexpected response from the police and the TTF there.

MR ZILWA: Let me get the facts straight. From Flagstaff there were three of you and you were moving in the late Vuyani Nyalukana's motor vehicle.

MR MAXHAYI: Correct.

MR ZILWA: It was yourself, Lungile Mazwi and Vuyani Nyalukana himself and on your arrival at Port St Johns, you met Pumelele Hermans and Fundisile Guleni, your co-applicants and they are the ones you spoke to?

MR MAXHAYI: Yes.

MR ZILWA: Right. Now, if I understood you correctly, you were armed with the rifle, Mazwi was armed with a pistol and Vuyani himself was not particularly armed with anything. Now these handgrenades that you have mentioned, where were they?

MR MAXHAYI: They were in the vehicle. They were in the motor vehicle.

MR ZILWA: Now, with regard to the weapons that you were going to use in the operation, did you have any need for any further weapons or were you satisfied with what you had?

MR MAXHAYI: We were satisfied, I would say. That is myself, the three of us from Flagstaff were satisfied.

MR ZILWA: Right. So, this advice came from these members from Port St Johns that it would not really be safe for you to attack the target in town, and as such since they were planning their operations in this coastal resort, you should rather attack near the Gomolo resort as you have stated. Please carry on.

MR MAXHAYI: Yes, I think that I would like the Commission to take a look at that. On our arrival there, the comrades there, that is the two comrades of Port St Johns, they were also for the retaliation. They were also interested in that.

MR ZILWA: In other words they wanted to join the operation of carrying out the retaliation you have spoken about?

MR MAXHAYI: That is correct.

MR ZILWA: Please carry on.

MR MAXHAYI: Yes, we agreed on that. It was on the 11th, it was on the 12th, Monday, we agreed on that, but the only problem that the comrades of Port St Johns had, was that at their possession, they were having no arms because they were not sure of the manpower which, they were not sure of the manpower which would be needed at the operation.

Now, their feeling was that it would be better for them to also have arms. They asked us to help them, taking them to another comrade at a certain administrative area, Majola, where they could be in a position to get the arms for themselves.

We agreed upon that. We went to Majola, they met the comrade. Unfortunately ...

MR ZILWA: Sorry, you just mentioned a comrade in Majola. Who was this comrade?

MR MAXHAYI: This comrade was Zongizela Mxhiza.

MR ZILWA: That would be your co-accused in the criminal trial, that you faced before the High Court, the Supreme Court of Transkei?

MR MAXHAYI: Yes.

MR ZILWA: Okay, so on your arrival at Majola, you came, you met Zongizela Mxhiza, please carry on.

MR MAXHAYI: We met Zongizela Mxhiza, to us from Flagstaff, we are not familiar with the guy because he was not a member of the sub-region.

He was only familiar to the two comrades. Now according to the report that he gave them, was that he had no firearm at the moment even himself, but he could assist them getting the two arms from another two comrades in that area, Majola.

So, they went to the two comrades, but unfortunately I cannot remember their names now, but one of them was referred to as Timan, I don't know his full names. The other one, I really don't know him at all with any name.

MR ZILWA: So you took as I understand you, you took the comrades from Port St Johns to these two men. I suppose you were in the company of Mxhiza when you proceeded with these men, because he was the one who knew him?

MR MAXHAYI: Yes.

MR ZILWA: Alright. Please carry on.

MR MAXHAYI: On the arrival to the man, of course they had the two 9 mm pistol, but the two comrades did not want to give the arms to comrade Hermans and Guleni. Instead, they also wanted to join us for the operation.

MR ZILWA: Now, here to my understanding there were about five or six of you. Let's clarify the position of Mxhiza. Was he also going to join the operation or all that he was about to do was to show you these comrades who actually had the firearms, or was he also participating in the operation, that is Mxhiza?

MR MAXHAYI: To me, initially it was interpreted as if Mr Mxhiza would show the two people. According to my own memory, I don't remember a stage where Mxhiza was claiming to go there before meeting the two comrades, but at the time now when the comrades were saying no, they wanted to join us, they cannot give the arms, it is then that I really come to an understanding that even Mxhiza was interested to go there, to join us.

MR ZILWA: So in all you ended up being about eight people?

MR MAXHAYI: yes.

MR ZILWA: Namely the three of you from Flagstaff, Hermans, Guleni, Mxhiza and now these two others that were joining you?

MR MAXHAYI: Yes, we were eight.

MR ZILWA: You were eight. All right, please carry on.

MR MAXHAYI: We decided not to waste the time, but that was really uncomfortable to us from Flagstaff, but we decided not to waste the time because we wanted to pull this operation within that atmosphere. I mean before the memorial service, within that stage where the whole people of South Africa were really angry, so that it could be understandable that it is aiming at retaliation.

So, we wanted not to waste time, but we went for the operation.

MR ZILWA: Right, please give us in detail. Now you are in Majola, you have met these two comrades from whom you wanted to borrow the arms, they have refused to give you their arms, they want to go and participate themselves.

Now, take it from there and tell us in detail what happened.

CHAIRPERSON: In other words describe the operation, how did you get there, what happened.

MR MAXHAYI: Okay. As we have already agreed that we should go, eight of us, we went there. On the way we really ...

CHAIRPERSON: You went where?

MR MAXHAYI: We went to the Gomolo Coast. Gomolo is the coast where the two comrades told us that these people who were infiltrating Port St Johns were using that coast to plan their operation. We were on the way now to that Gomolo place.

MR ZILWA: Could you give us some time frames, approximately what time of the day was this when you proceeded and what mode of transport did you use?

MR MAXHAYI: We used the bakkie which belonged to Vuyani. The time, it was about eleven. It was not in the afternoon, ten or eleven, but before midday.

We went there. On the way we came up with a decision that we should do sort of a planning in terms of our modus operandi, but unfortunately we were unable, because most of us were not familiar with the terrain. Now we really decided to proceed and then surveil the area at the time and then plan how to attack it.

So, we went there, we stopped at a certain area which was almost hidden to the people. We told some of our comrades to go and surveil the area, but myself, I was not the one who went for the surveillance.

I think it was Pumelele Hermans, Fundisile Guleni and Vuyani Nyalukana who went and surveilled the area. They came up with an information that there were no whites there, but they had an information which they got from the people who were doing some job there, that at a certain bungalow or a cottage, the occupants of the cottage have gone to another coast, they would be back on that afternoon.

MR ZILWA: Let me see if I understand you correctly, so what you did before actually arriving at the settlement or at the bungalows, you stopped out of sight and you sent these comrades you have mentioned, to case the joint, so to speak, and they went there to find out what the position was, and they returned to you with a report that you have mentioned?

MR MAXHAYI: Yes.

MR ZILWA: Okay, please carry on.

MR MAXHAYI: We agreed to wait for those whites.

CHAIRPERSON: Tell me, your plan of retaliation, was that by plan that it would be directed at people of white skin?

MR MAXHAYI: Yes, basically our plan was going to be directed at the people of white skin, because according to our own analysis, that would make no sense to the government if we would target the black enemies.

We agreed that, also the black enemies who were really against the revolution, but at that time, we were according to our plan, we were forced now to hit on white colour, because we wanted to convey the message to the government.

CHAIRPERSON: Do I understand you correctly then that by targeting the black enemy, it would not have the desired effect on the government?

MR MAXHAYI: Yes.

CHAIRPERSON: Proceed.

MR ZILWA: Did that choice have anything with the colour of skin of the person who had assassinated the leader, comrade Chris Hani?

MR MAXHAYI: Can you repeat the question please?

MR ZILWA: Did your choice of retaliating against people of the white skin, did that have anything to do with the fact that Chris Hani had reportedly been assassinated by a white man?

MR MAXHAYI: Yes, that was the reason why we really targeted the white people.

MR ZILWA: Okay, now you have told us that you have decided to, after receiving the Intelligence that the occupants of the bungalows had gone fishing, you decided to wait for them. By then, had you formulated a plan as to how you were to carry out the attack?

MR MAXHAYI: Yes, we were already now. At the time we get the report?

MR ZILWA: Yes, at the time you waited, waited for the targets, had you formulated a plan as to how you were going to hit the targets?

MR MAXHAYI: Our plan firstly would be based on the information, on the surveillance. Now, immediately we got the report, it is then that we really planned and then we agreed to wait first for this people to come and then at the time that they were within our sight, it is then that now we were going to deploy, because that terrain was - the sight of the car would be seen at a long distance. We were able to see the car at a very long distance.

We waited to see the car, because it was a remote area, not many cars would go there, so we were sure that any car to come there, would be the one that we were really waiting for. Now, we saw a vehicle at a distance, but a far distance.

Now, we agreed that I, myself, Guleni and the one Timan should go for an ambush. We left the comrades in the car, the others, just at the side of the car. Then we moved for a certain distance, where we took our position.

MR ZILWA: Yes, let's get this clear. So the three of you went for ambush positions, that is yourself, Guleni and this other man you mentioned, Timan yes.

Now, Guleni, how was he armed and where had he obtained his firearm if he was armed?

MR MAXHAYI: Oh yes, it happened that Guleni took the firearm off another comrade, the one that I cannot remember his name. The one which we met there at Majola. That comrade gave Guleni his arm, so it was the firearm that belonged to that comrade, the one which was used by Guleni.

MR ZILWA: I see, so the three of you went to take ambush positions, while the other five remained in or next to the motor vehicle?

MR MAXHAYI: Yes.

MR ZILWA: Okay, please carry on.

MR MAXHAYI: Now, I told Vuyani to indicate with a car hoot, if it is really the whites, to confirm that because we were not absolutely sure that the car was theirs, because we didn't, we didn't know their car.

So Vuyani confirmed really with a car hoot, so I myself, I also confirmed. I was laying in a hidden post, there was a vegetation there. Vuyani, Guleni, that area is in the hill, it is moving up that ...(indistinct) graph, Guleni and Timan were just below myself. I was in the vegetation there, in a hidden post, because it was a bend.

Vuyani indicated that this is the right car. I heard a shot, I cannot be certain whether it was Guleni or Timan who shot, but before I pulled the trigger, two shots have already fired at the time. The car approached the area where I was. The car approached my position, then I pulled the trigger myself. The rifle was on the automatic option, because my aim was to overturn the car.

I concentrated on the front seat occupants with my aiming, because I wanted the car to capsize. I shoot the whole magazine, which carried about 35 rounds, right on the car, aiming on the first occupants.

At that time, it was a Twincab, this was a 4 x 4 Twincab, there were also some of the people who were on the back seat. I realised that the car now was jerking and it failed to pull off and then it, at the time the car was on the side of the road. The area, the road, the road is on the hill and that side is a steep, it is a ...

CHAIRPERSON: Cliff?

MR MAXHAYI: Sorry?

CHAIRPERSON: Is it a cliff you are talking about?

MR MAXHAYI: Yes, it is a cliff that side, but not that much cliff which is, it is a cliff because the road is on the hill.

MR ZILWA: In other words the road is carved out of the hill, there is a sheer drop to one side, at an angle though?

MR MAXHAYI: That is correct. Now at the time when the car was starting to jerk, it was right at the edge of the road, that side of the hill. Then it failed, then reversed a small distance, and then it capsized.

MR ZILWA: It other words it went off the road to the side where the drop is?

MR MAXHAYI: Yes.

MR ZILWA: Please carry on.

MR MAXHAYI: Some of the comrades were interested in going, on making a follow up, but I stopped them and instructed the comrades to go to the car and then we pulled off to Majola, where we dropped the comrades that we got there, and then we proceeded to the town. We dropped Fundisile Guleni and Pumelele ...

MR ZILWA: Sorry, let's get that aspect which you have just mentioned, let's get that straight. You say some of the comrades wanted to follow up and show that, when you say that they wanted to follow up, what was that meant to establish?

MR MAXHAYI: What happened was that after the car had capsized, the comrades moved from the car, joined the two comrades, Fundisile Guleni and Timan, because they are not in the hiding point, in the hiding position.

At the time the car was overthrown, the comrades were going up from the car. Some of them, one that I can remember is Lungile Mazwi, were interested for instance, on going to the car to make sure that we have done our job, we have killed those people, there are no people who would really survive, but I decided to call them. I instructed them to go back to their car and we pulled off. That is what happened.

MR ZILWA: The reason for that really, were you reasonably certain that you had hit the occupants that you were aiming at, at least the front occupants?

MR MAXHAYI: The reason was that we had done the job, because ours was to show that really, it is wrong that leaders like Chris Hani, could be killed. We were not there to really kill, even if the message has gone to where we were aiming at.

CHAIRPERSON: Do I understand you correctly, you just wanted to do enough to get the message across?

MR MAXHAYI: Yes. According to my own analysis, it was enough at that time, that the car had capsized and as I said earlier on, I aimed at the first occupants. I was certain that there would be people who cannot survive there. I was certain of that. Especially those who were in the front seat.

Because I couldn't aim thoroughly to those who were at the back seat because some were going down there and so they were not really in my own sight at the time.

MR ZILWA: Let me see if I understand you correctly, in other words, you were certain that the message had gone across because you were reasonably certain that you had hit at least the front occupants of the car, and it was not really your objective to kill each and every person in that car. You were certain that the message had been sent across?

MR MAXHAYI: That is correct.

MR ZILWA: Please carry on.

MR MAXHAYI: Fortunately they agreed with me and we went back to the car. Then, we aboard the car. We went to Majola to bring those who belonged there and then back to Port St Johns. We left Pumelele Hermans and Guleni and then we went back to Flagstaff, the three of us.

CHAIRPERSON: That same day?

MR MAXHAYI: The same day.

MR ZILWA: Now, approximately at the time of the actual operation, the actual firing at the car, approximately what time would it have been?

MR MAXHAYI: Approximately it was maybe half past - five to half past five. I am not certain.

MR ZILWA: Okay, please carry on. For instance you have stated that after the operation, you boarded the vehicle and those people from Majola were delivered to Majola. Can I assume that those you had picked up in town, ie Hermans and Guleni were also delivered to town, and then you of Flagstaff drove back to Flagstaff, would that be correct?

MR MAXHAYI: Yes, that is correct.

MR ZILWA: Anything else you haven't told us with regard to the operation itself?

MR MAXHAYI: After we had carried out the operation at Port St Johns, I reported it to Max who later told me that he had gone to report the operation in turn to one comrade Prince Madikizela, an Attorney in Bizana who was at the time, serving as the Chairman of the ANC sub-region F.

MR ZILWA: What was the reason for you to report the operation to Max? Is it because it was done under the auspices of the organisation, let's get it from you. What was the reason for you to report this to Max?

MR MAXHAYI: The reason is that we carried the operation within our political scope, within our programme as the SDU's and ANC Youth League, let me say so, that is the political programme.

We carried that to ensure that the government of the day, which was not really legitimate, to respond so as to liberate the people of this country.

MR ZILWA: If a view could be expressed that that was during the time that the transitional process had at least been commenced, and it was not really necessary for you to do that, what would be your response?

MR MAXHAYI: I agreed that the time of the negotiations, but at that time, I can say the government of Mr De Klerk was really playing hide and seek there, because at that time, there was a delay in terms of setting the date of the elections.

If one could remember, the ANC there at ...(indistinct), had certain conditions for the then government, but those conditions were not taking place. For instance many people were dying, especially in Gauteng, and there was an element that a Third Force was there, which was really associated with that government.

So, in those grounds, I think we did the right thing to show the government, which was not yet, which was not honest to the ANC at the negotiations there. Because one would remember that for instance the question of hostel dwellers, the ANC had demands there that each hostel should be proved in certain ways, but the government was not cooperating.

So, that is the reason.

MR ZILWA: I see, so after you reported the matter to Max Taho and who in turn reported to Prince Madikizela, was there any official response from the organisation, say Prince Madikizela, the Chairman of that sub-region? Was there any response from him?

MR MAXHAYI: Just before I answer. Another thing that I would like to put to the attention of the Committee is that comrade Chris Hani at that time was talking about peace. That was another thing which really caused us to be angry in the literal sense of the word, because these people failed to kill Chris Hani at the time when he was aware, so that was another thing because according to my own analysis, the government was not cooperating.

Because the government had all the assets, so he had a better chance to make this country good for the process of negotiations. But comrade Chris Hani died at the time when there were negotiations, so that really caused us to really become very much angry.

To come to your question, and Max therefore, also reported the operation to comrade Prince Madikizela. Comrade Prince Madikizela was the Chairman of the ANC sub-region at the time.

Indeed thereafter, comrade Prince Madikizela came to me and consulted me about the details of the whole operation. I narrated everything to him, since the operation was carried out in our capacity as members of the ANC.

MR ZILWA: I see. Is it also correct that some time thereafter, apparently the news leaked and your involvement in the operation also leaked and you were eventually apprehended by the police and charged with the murders and attempted murders?

MR MAXHAYI: Yes, eventually we were charged.

MR ZILWA: Is it also correct that in the course of that trial, you denied any involvement in these killings and in fact, you proceeded on the basis that you were not there at all, you never participated in any way in that killing, you in fact you pleaded an alibi, you claimed to be somewhere else at the time of that killing, is that correct?

MR MAXHAYI: Yes, it is correct that all that I told the Court, was not true, because I did the thing. So, this is the truth, which could be - this is the truth.

MR ZILWA: Now, have you told this, you have already admitted that you did not tell the Court the truth. Have you told this Committee the whole truth and nothing else but the truth as you have sworn?

MR MAXHAYI: Yes, I have told the Committee the whole truth.

MR ZILWA: Now, with regard to the victims or the families or friends of the victims, do you have anything to say to them? How do you feel about what you did?

MR MAXHAYI: To the families, I apologise for what happened to their beloved ones and for the trauma and the pain that they suffered at the time.

But I appeal to them to understand it in the sense that that happened only due to the then political dispensation. Now that we are on the new political dispensation, may they please forgive us for what we did and reconcile with us. I am saying that from the bottom of my heart.

MR ZILWA: Is it also correct that during consultation, you requested me to arrange with the legal representatives for the other side, to be given a chance to actually talk to them personally, namely to the families of the victims or to the victims who are present, to really convey your apology to them?

MR MAXHAYI: That is correct.

MR ZILWA: Is there anything else that you can recall which you have not told this Committee?

MR MAXHAYI: Yes, there is. I want also to put to the attention of the Commission that our plan was not a one day plan. We decided to carry out the operation up to a stage where really, we would say it is enough, but because of the call from President Madiba that people should remain calm, now we decided to put down arms and then comply with what the President was saying.

CHAIRPERSON: When did you hear that call?

MR MAXHAYI: I cannot be exact, whether it was on the memorial service or at the funeral of comrade Chris Hani, I cannot be exact, but we heard that call after we had carried out this operation.

MR ZILWA: And after hearing the call, you decided to heed it and to abandon all your other plans to carry out similar operations elsewhere?

MR MAXHAYI: That is correct.

MR ZILWA: Now, is there anything at all that you can think of which is opposite to this matter which you have not disclosed to this Committee?

MR MAXHAYI: In the premises of what I said, I humbly plead that it may - may the Committee view our action in a proper context and to acknowledge that we were motivated by political objectives, and beliefs and therefore please grant us the amnesty.

MR ZILWA: If it were to be suggested that your actions were not really politically motivated, but it was just shear racial prejudice on your part without any political motivation, how would you respond to that affirmant?

MR MAXHAYI: I cannot agree with that because what I am saying is that we went to Port St Johns on the information that there were counter-revolutionary forces there, who were of course white skinned.

The fact that we really targeted the white enemy, is the fact that comrade Chris Hani was assassinated by a white person. Now, that would really convey the message to the government according to our own belief.

MR ZILWA: Now, there is a lot of places where there are white people, particularly like I think you are in Flagstaff, so you would be near to the Wild Coast, where most white people frequent, and there are other areas. The fact that you targeted Port St Johns, are you saying it is because of what you had heard about the counter-revolutionary forces there in Port St Johns?

MR MAXHAYI: That is correct.

MR ZILWA: Anything else you would like to tell this Committee which I haven't led you about?

MR MAXHAYI: No.

MR ZILWA: Thank you Mr Chairman, that is the witness' evidence. Thank you.

NO FURTHER QUESTIONS BY MR ZILWA

CHAIRPERSON: You know, I believe that today most people of this country have come to terms with the changes, but yet there are in certain quarters, people both black and white, who still believe in separatism.

Given your attitude then when the attack was directed at people with white skins, can you fit in today into today's society?

MR MAXHAYI: Yes. Yes, I just want to make you aware that as the Self Defence Unit, we were not there to initiate any attack to the whites, but this killing of comrade Chris Hani caused us to do that.

Self Defence Units were there to defend, not to initiate any attack. So to answer the question, I can fit because I am for the reconciliation with the people whom initially, we referred to them as our enemies.

CHAIRPERSON: On a non-racial basis?

MR MAXHAYI: Yes, on a non-racial basis.

ADV DE JAGER: Did you ever claim responsibility for these murders?

MR MAXHAYI: When?

ADV DE JAGER: After you had done the killing, did you tell the people of South Africa, listen I had done this, or the government, or the newspapers?

MR MAXHAYI: No.

ADV DE JAGER: Now, could you then please explain to me how would you convey a message that you had done this, because you are retaliating the death of Chris Hani if you don't tell the government listen, we had done this because Hani had been killed?

MR MAXHAYI: No, it was for the government to see that, because we did that within that atmosphere, at the time when the whole South African people were showing out the anger. One would remember that even at the day of the funeral, I think it is four days after we had carried out this thing, people were still angry, so the speculation of the newspaper to quote one at ...(indistinct) was all right, there was no need for us to go and announce to the country.

ADV DE JAGER: But even today, they are killing people every day.

MR MAXHAYI: The fact that it happened at the day when Chris Hani, at the time of Chris Hani, that really was a sort of a hint to the government that that is the reason why Mr Glen and Alistair died at the time.

ADV DE JAGER: It happened three days after his killing?

MR MAXHAYI: I agree with you, but at that time there was still that anger all around the country, that was shown in the memorial services, that was shown in the funeral.

ADV DE JAGER: All right, only one other thing. You went there because you heard or got information that there were people at Port St Johns who were counter-revolutionaries, is that correct?

MR MAXHAYI: Yes, that is correct.

ADV DE JAGER: Did you want to kill the counter-revolutionaries?

MR MAXHAYI: No, as a Self Defence Unit, I repeat it, we had no reason to initiate any attack. Ours was to take that concrete data which we assigned to the comrades who were stationed at Port St Johns, that they should go and investigate so that they can come with a concrete evidence.

That evidence as the sub-regional Self Defence Unit, we were going to convey it to our Commanders, comrades were there, or maybe to the upper structure of the ANC. Now right to the top brass of the ANC and also to the Military Head Quarters of MK if it was necessary.

ADV DE JAGER: So, that wasn't the reason for going to Port St Johns, because you had this information that there were counter-revolutionaries there?

MR MAXHAYI: The reason that we took Port St Johns as the first target, is that we had heard already that information. That is why now we decided to go to Port St Johns and hit there first.

ADV DE JAGER: Yes. But then if I understand you correctly, because you have heard of the counter-revolutionaries there at Port St Johns, that is the reason why you went there?

MR MAXHAYI: Yes.

ADV DE JAGER: And chose them as a first target?

MR MAXHAYI: Yes.

ADV SANDI: Sorry Mr Maxhayi, just one thing here. In the course of your conversation with Mr Prince Madikizela, did he have anything to say about this operation, did he make any comment about it?

MR MAXHAYI: No. No, he didn't, he wanted me to relay, to tell him the whole thing. After that he had nothing to say to me and then we parted.

ADV SANDI: He did not express any attitude as to whether you had done a good thing or a bad thing? What was his attitude?

MR MAXHAYI: No, he didn't show to me any attitude. He was normal as any other day. He was normal as any other day, he came to me, he wanted me to give him the information. I gave him the information and then we parted.

ADV SANDI: Thank you.

CROSS-EXAMINATION BY MR SMUTS: Thank you Mr Chairman. Mr Maxhayi, do I understand correctly that your office which you held in the ANC was one to which you were elected?

MR MAXHAYI: Can you repeat the question please?

MR SMUTS: The office that you held within the ANC, the position that you held within the ANC, was one to which you had been elected?

MR MAXHAYI: Yes.

MR SMUTS: But your position in the Self Defence Unit, was one that you acquired on a voluntary basis?

MR MAXHAYI: That is correct.

MR SMUTS: Within the Self Defence Unit, were there any policy guidelines as to a decision making process and the extent to which the operations of a Self Defence Unit, had to comply with the policies of the African National Congress?

MR MAXHAYI: Yes. Self Defence Units were based on the policies of MK, which is the wing of ANC, which is the military wing of the ANC. So, those policies were guiding us.

CHAIRPERSON: Do I understand you correctly, do you include an operation such as that that you had described, as falling within the official policy of the African National Congress?

MR MAXHAYI: An operation?

CHAIRPERSON: The operation?

MR MAXHAYI: The operation?

CHAIRPERSON: Yes of killing these white people to send a message to the then government in that ambush, would that fall within the ambit of that policy of the African National Congress at that time, officially?

MR MAXHAYI: We didn't get an authority from the ANC that we should go there. As I have said that we were autonomous at the Self Defence Unit.

MR SMUTS: I understand your contention that you were autonomous, but is it your evidence that that autonomy extended so far that you were entitled to take decisions to involve yourselves in operations which fell outside the policy of the ANC?

MR MAXHAYI: According to us as the rank and file of the ANC, there was an absolute need for a retaliation at that time of comrade Chris Hani, because it came as a shock to us. That one was tantamount to a declaration of war to us as the rank and file, as Self Defence Unit.

And also as I put it earlier on that we wanted to carry on this operation within that atmosphere, when the people of South Africa were still showing that anger. There was no need for formal meetings with other people.

MR SMUTS: Can I put the question to you again, is it your evidence that the autonomy in decision making which was extended to the Self Defence Units, entitled you to decide upon operations which fell outside the policy of the ANC?

MR MAXHAYI: As the people who were autonomous, we had to take the decision which would suit the condition of the time.

MR SMUTS: And did that entitle you to act in direct conflict with instructions or requests from the leadership of the African National Congress?

MR MAXHAYI: I cannot say it was in conflict, because we didn't go to the ANC for them to give us authority or whatsoever.

Now, I cannot say it was in conflict with them. I don't know whether they were going to give us that right if the time was there to go to them and explain to them, because I think to the ANC, it was not nice to lose comrade Chris Hani. So I am not sure at that time, the ANC or my Branch, what they would say if we went there to ask for this retaliation.

MR SMUTS: The question I was posing to you, I was posing in general. I will get to the specifics. But what I am trying to establish from you is, when you say that the Self Defence Units had autonomous decision making power, did that autonomy extend so far that they could make decisions to become involved in operations which were in conflict with the express policy, requests and instructions of the ANC leadership?

MR MAXHAYI: No. We would avoid anything which would be in conflict with the policies of the ANC. We would avoid it.

MR SMUTS: It is also clear that you did not seek before embarking on this operation, any guidance or instruction from ANC leadership, is that correct?

MR MAXHAYI: That is correct.

MR SMUTS: Why was that?

MR MAXHAYI: We had an autonomous status as the SDU's, and also the way it happened, as I said earlier on that it came to us as a shock that at the time comrade Chris Hani was talking about peace, it is the time when the people now are planning for his death.

Now, we had no time to go to the ANC and ask for authority to go and retaliate to the enemies of the revolution.

CHAIRPERSON: Let's put it this way. You testify and you say that the Self Defence Unit was structured for defence purposes, not to attack?

MR MAXHAYI: Yes, I agree with that.

CHAIRPERSON: What you described and how these unfortunate people met their death, was not the result of a defensive operation, but really an attack, am ambush, is that not so?

MR MAXHAYI: Yes, that is so.

CHAIRPERSON: So, what you described to us in that attack, could not very well fall within the policy of the African National Congress at that time, not so?

MR MAXHAYI: Yes.

MR SMUTS: Isn't that why Mr Maxhayi, isn't that why you didn't seek instruction or advice from the African National Congress, because you knew that you would never get approval for such an operation?

MR MAXHAYI: No, that is not the reason. That would cause us a delay. We were also involved on ANC Youth League structures, things of organising those memorial service for Chris, things of providing transport to the funeral, it needed us, so we were not scared of the ANC, that it is going to condemn our plan.

It is because the time was not there to go to the ANC, and we wanted to show this.

MR SMUTS: The decision as I understand it, was taken by the Self Defence Unit at Flagstaff, is that correct?

MR MAXHAYI: That is correct.

MR SMUTS: What was the precise decision taken by that Self Defence Unit?

MR MAXHAYI: The exact decision was that we should launch a campaign where we could be in a position to show the government that really, we hate what happened. That is the killing of comrade Chris Hani.

CHAIRPERSON: At what stage was the decision made to attack white skinned people?

MR MAXHAYI: Can you repeat please?

CHAIRPERSON: When was the decision made to attack white skinned people?

MR MAXHAYI: We decided on the 11th, yes, on the 11th of April, at the time when I meet Vuyani Nyalukana, we agreed upon that.

ADV DE JAGER: Sorry, did you and Vuyani agree on that?

MR MAXHAYI: Yes, we agreed on that.

ADV DE JAGER: Who else was part of that agreement?

MR MAXHAYI: Lungile Mazwi came to us, we were reinforced with him, that is another comrade. At the time when we had already agreed with Nyalukana.

ADV DE JAGER: So it was only the two of you who decided?

MR MAXHAYI: Yes, we initiated it, the two of us.

ADV DE JAGER: So the other 13 members of the SDU didn't form part of this decision?

MR MAXHAYI: No. They didn't, other members didn't take part in that. We initiated, myself and Vuyani Nyalukana, because we were the most prominent people there. We were in a way, controlling the whole Unit. The two of us.

ADV DE JAGER: So you didn't ask the other people, the other 13 or what the number might have been, the other members of the SDU whether they agree with you or not?

MR MAXHAYI: No, there was no time to consult other people because it was the festive season, others were - you see they were in their respective areas, because they were not having something which would convince us, so that is the reason why we took that decision.

ADV DE JAGER: You never consulted with the others?

MR MAXHAYI: With other SDU's?

ADV DE JAGER: Yes?

MR MAXHAYI: No. But I also want the Commission to take this into consideration, Vuyani, myself and Lungile were the members of the sub-region. And then in our respective areas, there were the SDU's with the other members, which I assume is maybe about 15, who are not part of the sub-region and who cannot be in a position now to access the information from the people who are composing the sub-region, that maybe at Port St Johns there is this thing.

CHAIRPERSON: Did you and the other two carry the respect of leadership within the SDU?

MR MAXHAYI: Yes.

MR SMUTS: Can I just clarify it then? The Self Defence Unit took a decision to launch a campaign which would convey dissatisfaction to the government? Is that right?

MR MAXHAYI: Yes.

MR SMUTS: You and Vuyani and later with your fellow applicant, Lungile Mazwi, decided to translate that campaign into an attack on white skinned people? Is that correct?

MR MAXHAYI: Yes.

MR SMUTS: When you took the decision to attack white skinned people, were you at all concerned about particular white skinned people or were you prepared to sacrifice any white skinned people for this campaign?

MR MAXHAYI: No, not anyone. Not any white people. For that matter on the way to Port St Johns, since it was a festive season, we crossed many whites from Durban, going to their areas, we didn't attack those whites. It is not that we were scared of them, but because we were carrying out an operation within our political scope. We wanted to hit the white targets.

CHAIRPERSON: Being what? Which white targets?

MR MAXHAYI: The one at the sub-region, that we had a report that they were infiltrating the area.

MR SMUTS: So by the time that you got to Port St Johns to consult with those who were to join your operation there, your decision was that there should be an attack on white skinned people, who were part of this rightwing infiltration, was that your decision?

MR MAXHAYI: Yes.

MR SMUTS: Right.

CHAIRPERSON: Did he say rightwing? I don't know.

MR MAXHAYI: No, I didn't say rightwing.

MR SMUTS: Can I rephrase that, counter-revolutionary element?

MR MAXHAYI: Yes.

MR SMUTS: Yes. Up to that point, all you had heard regarding this counter-revolutionary infiltration was reports which were not confirmed and did not consist of established data which were emerging from the Port St Johns area, is that correct?

MR MAXHAYI: At the time the comrade had not yet come to us with that concrete evidence. We went there merely on the information that they put to us.

MR SMUTS: As I understand your evidence, you had not even decided to advance this information as far as the upper echelons of MK or the ANC because it hadn't yet been confirmed?

MR MAXHAYI: Yes.

MR SMUTS: When you got to Port St Johns, was there any further confirmation of this information?

MR MAXHAYI: Nothing was confirmed, but that does not mean at the time this comrade had not yet carried out their investigation.

MR SMUTS: Are you saying that you simply don't know whether they carried out the investigation or not?

MR MAXHAYI: Yes, I don't know. But we went there with that hope that at that time, they had already have that concrete evidence.

MR SMUTS: Did you ask them?

MR MAXHAYI: Yes, we asked them about these targets.

MR SMUTS: But to this very day, you can't say that they had confirmed it?

MR MAXHAYI: Come again?

MR SMUTS: I asked you a minute ago, whether you know whether they had confirmed this information and you said that you don't.

MR MAXHAYI: I also want to make this clear, what we wanted from this comrade, was to go and investigate the way this is planned, everything related to this counter-revolution, everything, you see.

So, we went there after that time, with the hope that maybe some of the facts, they have already gathered at the time we went there.

MR SMUTS: Mr Maxhayi, it will go a lot more quickly, if you answer the questions. You said to me in answer to a question, that you do not know whether the people at Port St Johns had confirmed the information regarding a counter-revolutionary infiltration?

MR MAXHAYI: Yes.

MR SMUTS: So, when you asked them upon your arrival at Port St Johns as to whether they had discovered any information, they obviously didn't confirm that they had confirmed information?

MR MAXHAYI: No, let me correct you a bit. We went there to them, we wanted them to show the targets. We were not there for information whether there was, we were not there to collect that information. We went there to ask them to show us these targets. I mean these people who were involved in the revolution.

We didn't dispute them, even initially that something of that nature was not taking place at Port St Johns, we didn't dispute them. You see.

CHAIRPERSON: Do I understand you correctly, you went there just to get identification information, as to who these infiltrators are?

MR MAXHAYI: Yes. Yes.

CHAIRPERSON: Well, before Mr Smuts carries on, when the operation was put into effect, when the killing occurred, was your target still the infiltrators?

MR MAXHAYI: Yes, I think so, because according to the information that we got through the comrades was that they, the people who are using that Gomolo coast, were the people who are involved in that plan. You see. Now, the fact that these people were camping in the coast in question, to us from Flagstaff, we saw them as targets.

It is unfortunate that they were not.

CHAIRPERSON: Do you accept, today do you accept that they were not?

MR MAXHAYI: Yes, I accept that.

MR SMUTS: When you arrived at Port St Johns and met up with your comrades there, you sought identification from them, of these rightwing whites, these counter-revolutionary whites, is that correct?

MR MAXHAYI: Yes.

MR SMUTS: Did they give you confirmation?

MR MAXHAYI: Yes, they told us right in town, there are targets there, but it is unfortunate that we cannot allow, in fact they advised us not to carry out there in town, because of the reason that I have mentioned before. That is the reason that we went to that coast.

MR SMUTS: And the reason why you couldn't pursue the identified targets in town, was because of a security risk to yourselves?

MR MAXHAYI: Yes, I can say so. Another thing is that we wanted not to confuse our programme with anything.

MR SMUTS: What do you mean by that?

MR MAXHAYI: An interference of policemen or TTF members, that would now change the trend of our aim of going there.

MR SMUTS: Were there holiday makers in Port St Johns itself, in the town, who were not counter-revolutionaries, but were white?

MR MAXHAYI: In the town? The tourists?

MR SMUTS: Were there holiday makers? You said you passed people, white people on the way there. I am asking you because it was the Easter season, were there holiday makers in Port St Johns who were white, but who were not part of the counter-revolutionary element?

MR MAXHAYI: I don't know whether there were, because I am not the bona fide of that area. I cannot know whether this one is there for holiday, this one is a resident. I can't explain that.

ADV SANDI: Sorry Mr Smuts, maybe one can ask the question in a slightly different way. Those white people you met on the way, on the National road which you say proceeds to Durban, why did you not attack them?

MR MAXHAYI: We didn't attack them because they were not our targets. As I have said earlier on, we went to Port St Johns, specifically to Port St Johns because of the information that we had heard before.

Now the people who were carrying out their boats from their holiday to their respective areas, were not the part of our programme.

ADV SANDI: Would you say they were also counter-revolutionaries, as you call them?

MR MAXHAYI: No, I cannot say that. I cannot say that because those people were moving. We knew that they were not of that area, of that eastern ...(indistinct) area.

ADV DE JAGER: But these people staying in a bungalow there, weren't they holiday makers?

MR MAXHAYI: I don't know where they stayed. The point that I want to prove, is that on the way to Port St Johns, on the way to comrade Pumelele and Fundisile, we met with many white people who were from the holiday.

ADV DE JAGER: Yes, but you have told us in evidence that these people were staying in a bungalow and they went out for the day and they would return the afternoon.

MR MAXHAYI: According to the information that I got from the people who surveilled the area, that there was a certain cottage or a bungalow where the occupants have gone for fishing somewhere.

ADV DE JAGER: So they have gone for fishing.

MR MAXHAYI: In fact, it was not specific that they had gone for fishing, to me it came as if they had gone to another area, another beach around there, not specially for fishing.

ADV DE JAGER: And did you ask these informers, the informant whether they were holiday makers or whether they were staying permanently there?

MR MAXHAYI: No. I didn't. Since I had that information that they were using that area, that coast as their maybe springboard, as their place where they are planning their operation, you see, I took it as if white people who are there, are the ones that we needed.

CHAIRPERSON: Were your informants there when you went to look at this bungalow?

MR MAXHAYI: Come again.

CHAIRPERSON: The people who were supposed to give you this information, as to who the infiltrators are, the same people who told you they used this coast line as their springboard?

MR MAXHAYI: Yes, that is correct.

CHAIRPERSON: Were they there at the time when you went to look at this bungalow?

MR MAXHAYI: Yes, both of them if my memory serves me well. Pumelele and Guleni, and the third one was Vuyani, they went for the surveilling.

CHAIRPERSON: Okay. Is it them that told you that the occupants of this bungalow which had been referred to, had gone to another area?

MR MAXHAYI: They came up with the information that they have heard there from the people who are maybe doing their job there, that the occupants of a certain bungalow have gone to another area. They will be back.

MR SMUTS: So it was your intention, was it, until the operation was complete, it was constantly and throughout your intention to target counter-revolutionary whites?

MR MAXHAYI: Our intention was to target the counter-revolutionary whites, yes.

MR SMUTS: In Port St Johns itself, although as I understand you, your informers, your comrades from Port St Johns, were able to identify such people, correct me if I am wrong, were they able to identify such people?

MR MAXHAYI: Yes, they identified some of the people.

MR SMUTS: But you decided not to attack those who had been specifically identified as falling within your target category?

MR MAXHAYI: The reason that the advice of - the police, the local police and the TTF members there, caused us to agree with their advice that we should hit on another area, which is of course similar to the one in the sense that even there the same people were using that coast as, to carry out the same aspirations of counter-revolution.

MR SMUTS: But, can I just get confirmation, although specific people who fell within your category, were identified within Port St Johns, you decided for your own reasons, not to attack those people who had been identified as falling within your target?

MR MAXHAYI: Yes. They mentioned one person, they did mention one. They did identify one.

CHAIRPERSON: Tell me, the occupants who were absent from that bungalow, were they also identified as infiltrators?

MR MAXHAYI: At the time, to me? To me, they were the people who have infiltrated, according to the information that that area, that coast is used by the people of ...

CHAIRPERSON: Let's talk about that specific bungalow. Why was that specific bungalow singled out?

MR MAXHAYI: The problem was that white people were scarce there, I understand according to their own information, that some of the bungalows were not occupied. I think this is, that was the one, that was the first and the last bungalow that was occupied by the white people at the time, if my analysis is good because they told me that they have moved all around, they didn't see any white people there, it is only the bungalow that they had that information that the occupants have gone to that, to another area.

MR SMUTS: In the confession which was tendered in the criminal trial, a confession of Lungile Mazwi, he reports on this reconnoitring, Mr Chairman, in the bundled index, it appears in the typed page 81 of the judgement, he reports on this reconnoitring exercise and he says from line 16 on page 81, some of us about four, went to the flats to check whether the whites were there. They came back and reported that they had found an old lady and a girl, whites. A young herdboy appeared and said some white men had travelled to the sea in a 4 x 4 van, to catch fish. We waited for them in the vehicle until sunset. At dusk the 4 x 4 van appeared. Four of us hid in the bushes behind our vehicle and then he proceeds to describe the attack. What is your comment on that evidence as contained in the confession of Lungile Mazwi?

MR MAXHAYI: Firstly, as I have said that what I told in court, what was said in court, was not true and what I said in court, so I think maybe Lungile Mazwi had told things which were not even true, just like myself.

CHAIRPERSON: That is besides the point, let Mazwi come and say that for himself. The issues are, did Mazwi tell you that he had met a young girl and an old white lady somewhere during his reconnaissance trip?

MR MAXHAYI: According to my own memory, it was Vuyani, Pumelele and Guleni who went to surveil that terrain. I don't remember Mazwi going, that is why ...

CHAIRPERSON: Listen to my question. Did he or did he not tell you that he had met or seen a young white girl and an old white lady somewhere during his reconnaissance effort?

MR MAXHAYI: No, he didn't tell me that.

CHAIRPERSON: Did he or did he not, indicate to you that a herdsman I think it was, had indicated to him that the occupants of a certain bungalow, had gone on a fishing trip?

MR MAXHAYI: No, I didn't hear that.

MR SMUTS: Thank you Mr Chairman. Mr Maxhayi, you are correct. The confession of Mr Mazwi suggests not that he was part of the reconnoitring trip, but that the evidence was that those who had been on the trip, came back and reported that there had been an old lady and a girl found, who were white, is that not correct?

MR MAXHAYI: As I said, according to my own memory, I don't remember Mazwi going for any surveillance.

MR SMUTS: Yes, that is precisely what I have put to you Mr Maxhayi. His evidence in his confession was that those others who had gone to reconnoitre, came and reported back seeing an old woman and a girl? Is that not what the reconnoitring group reported?

MR MAXHAYI: Can you rephrase the question?

CHAIRPERSON: Let's put it this way, those who went on a reconnaissance trip, did anyone of them come tell you or did you hear anyone of them say that during that trip, they had seen an old white lady and a young white girl somewhere and that a particular herdsman had indicated to them, that the occupants of a particular bungalow had gone on a fishing trip? Did you hear any of those people who went on this reconnaissance trip, say so or did anyone specifically report to you that that was the position?

MR MAXHAYI: No, I came up with the information of that sort at the time we were still in court, you see. Nobody at the time of the attack, came to me and tell me that.

MR SMUTS: My recollection is that while your evidence was being led by your Counsel today, he dealt with the fact that you were aware that these people had gone on a fishing trip.

My Instructing Attorney's note is that your Counsel in leading your evidence, put to you the fact that the occupants of the bungalow had gone fishing. Is that correct or not?

MR MAXHAYI: What I heard was that the occupants of a certain bungalow had gone somewhere to another beach or coast. Now I cannot be certain whether I really heard that they were there for fishing. I cannot confirm that really I was told about that, that they went there for fishing.

MR SMUTS: Would it have made any difference to you whatsoever if you had been told that they had gone on a fishing trip?

MR MAXHAYI: No.

CHAIRPERSON: Why not?

MR MAXHAYI: We went to Gomolo with the information that that coast is used by the people who were suspected as the people who were infiltrating the area, as their place of operation. They were planning their, they were using that as their springboard, let me put it that way.

So, even if I had heard that they went for fishing, that would make no difference, because that does not mean if you in a certain place for a certain mission, you cannot do other things. Maybe it can fall within their scope that they should maybe carry out their mission using the same thing of fishing, according to my own analysis.

Nothing I would change, even if I had heard that.

CHAIRPERSON: They were infiltrating the fishing industry, Mr Smuts.

MR SMUTS: Thank you Mr Chairman.

ADV DE JAGER: You have told us you had this information. Who gave you this information, what is his name?

MR MAXHAYI: The information was put on the SDU meeting at sub-regional level.

ADV DE JAGER: Who?

MR MAXHAYI: The information was put at the SDU meeting at sub-regional level by the comrades from Port St Johns, that is Guleni and Pumelele.

ADV DE JAGER: Guleni and Pumelele?

MR MAXHAYI: Yes, they came up with that information that there was infiltration there at Port St Johns.

ADV DE JAGER: No, not at Port St Johns, at this beach.

We know that at Port St Johns there were infiltration. Who gave you the information that the people at that beach, was infiltrators?

CHAIRPERSON: Better put, the people who were infiltrating were using the coast as a springboard to plan their operations, who gave you that information?

ADV DE JAGER: The two comrades from Port St Johns.

CHAIRPERSON: Applicants number 1 and 4? Hermans and Guleni?

MR MAXHAYI: Yes.

MR SMUTS: Mr Maxhayi, this might be an appropriate moment then to deal with this information. These operations for which the coastline was being used as a springboard, what sort of operations? What was the information?

MR MAXHAYI: According to the information that we got from the two comrades, was that these people were locating firearms, were having some meetings in these bungalows. That was the information that we got.

MR SMUTS: They were locating firearms and were having meetings? That was the extent of the information you had?

MR MAXHAYI: No. I think the people who were involved, can be in a position to explain as to why, what details.

CHAIRPERSON: I think you must explain to us why these infiltrators needed to be attacked. What were they doing that was counter-revolutionary?

MR MAXHAYI: The reports, they reported this to us telling us that they cannot operate freely in that area. Now, we should really try to help them, you see.

CHAIRPERSON: That doesn't help me. It doesn't help us. For somebody to be targeted probably for assassination, there must be some positive thing that that person is doing which you describe as counter-revolutionary.

I want to know what was seen as counter-revolutionary? What damage did these infiltrators do to your struggle?

MR MAXHAYI: According to the information that they put to us, they had quarrelled with certain people in the town, whom they referred to as members of the AWB.

The same people, are the people who are locating these arms from the sea and who were having these meetings with certain white people, whom they were not aware of. So, according to them, the same thing was happening at that Gomolo, the same people there at the town would link, would go to further their plans, that is meeting there at that sea, at that coast.

And also there was a certain report that there was a meeting which was destabilised by the white people there, there was a launch of the Communist Party just before the end of 1992, where white people came there and caused a ruckus there, they destabilised everything there.

So, they were operating under threat, that is the reason they reported that to the sub-region. Now as sub-regional SDU's now, we told them to go and investigate that, so that they may come with a concrete evidence around that, but it was at the time, it was during that assignment that comrade Chris Hani was assassinated. And then we decided to go to Port St Johns on those basis, that - on that information.

MR SMUTS: Do I understand correctly that your answer to the Chairman's question about how these counter-revolutionaries interfered with your struggle, consists of a report that there had been a quarrel with some of these people at Port St Johns and that in 1992, during the launch of the Communist Party in the area, a meeting had been disrupted. Is that your evidence?

MR MAXHAYI: Yes, that quarrel was - they intervened as the ANC Youth League on the basis that those people were at loggerheads with the workers, because some of them are the businessmen there at Port St Johns, those white people.

So, that quarrel emanated from that question of addressing the question of workers who were, who felt that they were exploited by those people. And then when they intervened as ANC because the workers would appeal to them, when they intervened there as the ANC, they would quarrel with the owners and at that time, they had also heard the information that that person was an AWB member.

So, that threatened the comrades, that is the reason that the comrades decided to report this to the ANC Youth League sub-region, because they were there to operate freely. Now these threats now would cause them to feel threatened.

MR SMUTS: But do you confirm that to the extent that there was a disruption of your struggle, it was because of this quarrel regarding employment practices on the one hand, and the 1992 disruption of the launch of the Communist Party? Is that your evidence?

MR MAXHAYI: Yes.

CHAIRPERSON: How often was the interference with the Unionism?

MR MAXHAYI: I am not sure, but to me it seems as if it was not, maybe twice. Whenever there is a problem there, they would intervene.

I am not sure as to how many times.

CHAIRPERSON: You see, what gives me a problem and I must offer you the opportunity to deal with it, is that you are not giving us evidence such that we gain the impression that these infiltrators were doing certain things to such a level and so frequently, that it required the attention of the SDU's in whatever form.

MR MAXHAYI: Yes.

CHAIRPERSON: I need to hear from you whether I am correct or not.

MR MAXHAYI: Yes, you are correct. That is the reason they reported this to the sub-region, because they wanted us to do something. Not merely to kill them, but as I have said earlier on, the way SDU's operated, was to transform, merely to transmit the detrimental information to the upper structures of the ANC and MK.

CHAIRPERSON: And then, did your action, your plan action, that these drastic form as a result of Mr Hani's assassination?

MR MAXHAYI: Yes, the fact that Chris Hani was killed by a white person, that really caused us to go and pursue such an act.

CHAIRPERSON: And the infiltrators or those who were perceived to be the infiltrators, conveniently became the targets?

MR MAXHAYI: That is correct.

CHAIRPERSON: Why?

MR MAXHAYI: Because I think the people who, a person who is judged as a person who is infiltrating or who is a counter-revolutionary, would in other way round link with any conspiracy which could lead to the killing of a person like comrade Chris Hani who is a revolutionary.

MR SMUTS: Let's accept your earlier evidence that to this very day, you do not know whether the evidence of rightwing or the information regarding a counter-revolutionary infiltration, has been confirmed. That is your position, is it not?

MR MAXHAYI: Can you please repeat the question?

MR SMUTS: Your evidence earlier was that ...

CHAIRPERSON: He has given that evidence.

MR SMUTS: What efforts were made, if any, to identify who it was that had gone from the bungalow in question on the trip, be it a fishing trip or otherwise, before you decided to launch the ambush?

MR MAXHAYI: Who?

MR SMUTS: The identity, what efforts did you make to establish the identity of the people who would be travelling in the vehicle along the road, before you decided to ambush them?

MR MAXHAYI: Okay. As I have said earlier on that to us that area was perceived as the area which was used as the springboard. Now any white person who would be around that area, at that time, would be a target and secondly, that is a remote area. There is no up and down of cars there as I initially thought.

That made us to be sure that any car that could come that direction, would be the one that we were waiting for. And secondly, that is the reason that we said to Nyalukana, he should indicate, he should confirm with a car hoot, that this is the car with these white occupants and I, myself, also confirmed because I saw these people, these white people before I pulled the trigger.

MR SMUTS: You saw that they were white people?

MR MAXHAYI: Yes.

ADV DE JAGER: What did he have to confirm, that the faces are white or - so that you wouldn't accidentally shoot black people, or did he know the people travelling in the car?

MR MAXHAYI: No. I did not know.

ADV DE JAGER: And he who had to confirm, did he only have to confirm that listen, there are whites coming, it is not black people coming?

MR MAXHAYI: That was what he was going to confirm.

CHAIRPERSON: Did you find it necessary to verify before you put this plan into effect, the accuracy of your information?

MR MAXHAYI: Can you repeat the question?

CHAIRPERSON: Did you not find it necessary before you proceeded with your operation, to verify the accuracy of this information that you had about these people who had gone on this trip?

MR MAXHAYI: Because of the time, and because we wanted to carry out this operation at that time, to us that would seem as if it was a sort of a delay. So, to us it was not that much necessary to really pursue with the investigation and come up with the concrete information.

We relied on the information that we got from the local comrades of that area. We trusted them.

ADV SANDI: Yes, but that information Mr Maxhayi, was unconfirmed?

MR MAXHAYI: Yes, I agree but that does not necessarily mean that we denied what they were saying. We didn't prove them as liars, but what we wanted for them is to go and come up with a concrete evidence, which we would as the organisation sub-region, be in a position to submit to our upper echelons.

ADV SANDI: Did you think about, sorry Mr Smuts, did you think about reporting the presence of these strange and some sort of unwelcome people in the area, to report their presence to the government that was in charge of the Transkei at the time?

MR MAXHAYI: No, I don't know whether they reported this to the government.

ADV SANDI: Did you as the leader of this group, think it was necessary to do so?

MR MAXHAYI: No, to us it was not necessary to report our mission to the government, because the ANC was capable of handling everything that would be detrimental to its rank and file, so we trusted our top brass.

ADV SANDI: No, I am talking about reporting that there were these strange people in this area, reporting that to the authorities in the Transkei. That did not cross your mind?

MR MAXHAYI: No, I didn't. I only thought of my Commanders, MK Commanders. I only thought of the upper structures of the ANC.

ADV SANDI: You did not think it was necessary for those who were in charge of the Transkei at the time, to know if there were such people in the area?

MR MAXHAYI: No, I do not think, I didn't think so because I thought it would be the duty of the ANC top official to go to the government, not us as the rank and file, because any information would need a thorough analysis of the top brass of the ANC.

Now, it would be improper for us as SDU's or members of the Executive of the ANC Youth League sub-region to go to the government in that capacity and report such a delicate issue.

ADV SANDI: If information had subsequently been relayed to you that these people were not really infiltrators as they were suspected to be, what would have happened? Would you have continued with the operation?

MR MAXHAYI: No, definitely not.

ADV SANDI: Thank you.

MR MAXHAYI: If that Gomolo, if there would be a proof that that Gomolo was not used as an area where these people were using it as their springboard, therefore we would change our minds.

ADV SANDI: Then, in that event, how would you have ensured retaliation for the assassination of Mr Chris Hani?

MR MAXHAYI: As I have said in my affidavit, that for instance we could have gone to either Kokstad or the Wild Coast where there are many whites, but in view of the fact that we had already learnt that there were anti-liberation whites, who had infiltrated Port St Johns and who were using Port St Johns as a base for launching their opposition to the democratic process and our organisation, we decided we should carry out the revenge attack on those whites at Port St Johns.

ADV SANDI: You see Mr Maxhayi, speaking for myself, at this stage I find the reason for the killing of these people quite confusing. Maybe you will clarify it.

Were these people killed because it was believed that they were infiltrators, or were they killed because of the assassination of Mr Hani?

MR MAXHAYI: We killed them because we had information that they have infiltrated Port St Johns, I mean whites had infiltrated Port St Johns. That is why we went to Port St Johns and killed those people in that area, which is suspected by the comrades of that area, that it is their springboard.

ADV SANDI: If Mr Hani had not been assassinated, I take it that you would still have gone on, you would still have proceeded to kill these suspected infiltrators, am I correct?

MR MAXHAYI: No, we would go and ask for the data from the comrades and transmit it in the way we were doing our things, in the proper channelling of our problems.

CHAIRPERSON: Then you must clear up some confusion in my mind then. I understood you to have told us that when Mr Hani was assassinated, there was a decision rightly or wrongly, to send a clear message to the government of the time that the assassination of the leadership is not going to be tolerated.

And hence a decision was taken to retaliate and kill a white skinned person or persons, correct?

MR MAXHAYI: Yes.

CHAIRPERSON: In identifying that specific white person or persons, you found it convenient to target those people who you believed, based on the information, who had infiltrated and was using that coastline near Port St Johns as a springboard for their activities?

MR MAXHAYI: That is correct.

CHAIRPERSON: To me then, this is two separate reasons. The one flows into the other, not so?

MR MAXHAYI: Let me rephrase it this way. The information that we got, caused us to take Port St Johns as the first area of operation, according to our campaign that we launched, that we should retaliate for comrade Chris.

As I have said earlier on that we should have gone to other areas, where we should show that anger. Maybe Wild Coast, maybe Kokstad, to the maybe police station there, Security Forces over there and so whatever enemy of the revolutionaries in those areas, but the fact that we went to Port St Johns, is only due to the information that we had had before.

MR SMUTS: If I can follow up then, is it your evidence that the correct procedure would have been once you heard of this counter-revolutionary infiltration, to allow for an investigation to establish whether or not that information was correct and if you did establish that it was correct, to feed that information through the proper channels to the upper echelons of MK and the African National Congress?

MR MAXHAYI: Sorry, it is not the question of only proving it to be correct, but to come up with all the relevant details, not framework information. We wanted them to come up with a thorough investigation of the whole setup, you see.

That wouldn't necessary mean that it would prove them to be liars. We wanted them to come up with a concrete information around that.

MR SMUTS: Before you were prepared to report this information to the higher echelons of the African National Congress and MK, you wanted a full report with as much detail as you could supply to your superiors, is that correct?

MR MAXHAYI: At the time, before Chris Hani was assassinated, yes.

MR SMUTS: Once Mr Hani was assassinated, those channels were no longer the channels that you were interested in working through?

MR MAXHAYI: They were, they were.

MR SMUTS: Rather than establish a full report with full information that could be fed through to your superiors, you decided without instruction and without authorization from either MK or the African National Congress, to launch your own campaign to kill white people?

MR MAXHAYI: Yes, as I have said earlier on, as a Self Defence Unit we had an autonomous status.

MR SMUTS: And you sought to target people in this campaign on the basis of information which was not of such a nature that you were prepared to pass it on to your superiors?

MR MAXHAYI: Yes, even if they would come up saying that the information that we gave you before, is the same, we don't have another information, we would proceed, we would take it to the upper structures. Ours was to allow the time for them to come up with new developments, not that we were not trusting them, but they were saying these are our comrades, now we had all the rights to trust them.

MR SMUTS: Even when they identified a target, you decided not to go for that for personal security reasons?

MR MAXHAYI: Yes, as I have said, that would change now the trend because that would cause a counter between us and the police or between us or either the police or the Transkei Defence Force members, now that would now change the whole thing.

MR SMUTS: And when you finally decided on a target, it was because the people were white skinned and happened to be in this specific geographic area?

MR MAXHAYI: Yes, the area which was really our target.

MR SMUTS: Even though you sent people to reconnoitre the area and to find information, you did not establish the identity of your victims before you fired upon them?

MR MAXHAYI: To me, as I have said earlier on, that area, that terrain was regarded as the area where these people are using it as a springboard. Now, any white person around that area, to me, was the part and parcel of that operation.

MR SMUTS: What stopped you from asking the other people in the area who these white people were and what they were doing there?

MR MAXHAYI: We didn't want to involve another person who is not part of the SDU's or let me say the ANC.

CHAIRPERSON: Let me ask you this. Even if you had established who these people were, would matters have changed? Would you then change your plans, and not shoot them?

MR MAXHAYI: If there was information that Gomolo was no longer an area ...

CHAIRPERSON: No, no, I am not talking about - Mr so and so and Mr so and so.

MR MAXHAYI: Who was at that area that time?

CHAIRPERSON: Yes?

MR MAXHAYI: No, it would not change it because we would not see whether it is their way of operating because these people were doing this on an underground basis. They can go for fishing, they can do anything which can, it was not necessary that the infiltrators would carry out handgrenades, would carry out firearms, you see. They would operate underground.

It would not be proper for us to leave it that way, with the information that the area is used as a springboard and now we see a person who is fishing there, and we say that is enough.

ADV DE JAGER: So you would have killed any white who entered that area?

MR MAXHAYI: That area at that time.

ADV DE JAGER: Even if it was Beyers Naude?

MR MAXHAYI: Come again?

ADV DE JAGER: Even if it was Beyers Naude or Slovo?

MR MAXHAYI: Can you repeat what you are saying?

ADV DE JAGER: You would have killed any white person who entered that area, is that correct?

MR MAXHAYI: Yes.

ADV DE JAGER: Because the colour of his skin is white?

MR MAXHAYI: Yes.

ADV DE JAGER: So if it was Mr Slovo who entered the area?

MR MAXHAYI: Joe Slovo?

ADV DE JAGER: Yes?

MR MAXHAYI: I don't think in that area there would be any member of the ANC, any top brass member of the ANC at the time when Chris Hani was assassinated. We didn't expect person was there for fishing and yet he is claiming that he is a member of the ANC or maybe Communist Party at that time.

ADV DE JAGER: So isn't the bottom line that you went there in order to retaliate on the death of Mr Hani?

MR MAXHAYI: Yes.

ADV DE JAGER: And on seeing a white person there, in your preset mind to retaliate the death of Mr Hani, you would have killed him?

MR MAXHAYI: Yes. Yes.

MR SMUTS: Why do you say today that these people were not the target that you were looking for?

MR MAXHAYI: I am taking that from a mere information that one of them was an Attorney somewhere and from the newspaper, let me say so. There is nothing to prove at the moment to me, that they were, that is the reason.

CHAIRPERSON: They were what?

MR MAXHAYI: They were the people who were really infiltrating or the people who were there for countering the revolution.

ADV SANDI: Yes, but you didn't go there to kill infiltrators, not so? You went there to kill any white person?

MR MAXHAYI: No, I am referring specifically to the people, the deceased.

ADV SANDI: Yes, they were killed because they were white, not so?

MR MAXHAYI: Yes, and they were in that area which was our area of operation, according to the information that we had.

ADV SANDI: If you found white women and white children there, would you have shot at them?

MR MAXHAYI: If the shooting of that white child or woman would really cause or bring a message to the government, we would have done that.

ADV SANDI: You wouldn't care about his or her political affiliation, the political beliefs of such a person, you would just shoot him?

MR MAXHAYI: As I said earlier on, there was no time for us to go to the specificality or the accuracy of the whole thing. We trusted the comrades that that area was for the target because the time was not there. There was no time for us to go and ask whether he belonged to maybe ANC or to the, another political organisation.

MR SMUTS: Was it more important to you Mr Maxhayi, to kill white people in a hurry than to determine whether they were the counter-revolutionary infiltrators that you had heard of?

MR MAXHAYI: Our aim of killing the people there, was to convey the message to the government and that was due only to the killing of Chris Hani, that was due only because of the killing of comrade Chris Hani.

CHAIRPERSON: Mr Smuts, when you get to a convenient time.

MR SMUTS: This would be a convenient time Mr Chairman.

CHAIRPERSON: We will break for one hour.

COMMITTEE ADJOURNS

MR ZILWA: Excuse me Mr Chairman. Chairperson, for the record, at this stage I would like to bring to the attention of the Committee that we do have another amnesty application by this particular witness. I would like to hand in copies to the Committee, the signed and attested to copies.

It would, it appears in the original application which I do have, that it was attested to on the 3rd of April 1997. It is pity Chairperson, the copies do not reflect this date stamp. I can hand the original of the date stamp for the inspection of the Committee. Thank you sir.

MLULAMISI MAXHAYI: (still under oath)

CROSS-EXAMINATION BY MR SMUTS: (continued) Thank you Mr Chairman. Unfortunately, for the record, the document now placed before the Committee is not identical in its averments to the document which is filed on page 17 and following. It is however, identical to the application of the applicant Mazwi, but because there are differences in the averments, it would be necessary for me to canvass the document which is filed and signed by the applicant, to establish whether he stands by those averments as the motivation for his actions.

CHAIRPERSON: Is this not the application form we are going to deal with now, or what is the position? The one being signed and attested to?

MR SMUTS: It is signed and attested Mr Chairman, but there is another form which is filled in and signed and must have been submitted to become part of the papers, and the averments.

CHAIRPERSON: The fact that it is part of the papers, is neither here nor there Mr Smuts. The point my colleague was making, initially was that the Act compels us to have an application that is signed and attested to and hence, there was a search for it and we have it.

My problem, and I haven't got an answer as yet, is which of the two is now the official application with which, to which we will be bound? It is something that I would have to discuss with my colleagues and perhaps even a comment or two from all the representatives.

Maybe we better deal with it right now, then we know where we stand. Mr Zilwa, which of the two is now the official one?

MR ZILWA: Mr Chairperson, in view of the requirements in the Act as you have just pointed out, that the Act requires that it be a signed and attested document, now it appears that the only signed and attested document that we have, is the one that has just been handed up. So it would appear then that the one that forms part of the record, and which is not in fact signed and attested, it doesn't seem that it would be complying with the Act, and as such it doesn't seem that we would have recourse to it.

So in view of the fact that the one that has just been handed up, is the one that is signed and attested, I would submit that it should be the one to which we should have recourse. Those would be my submissions Mr Chairman.

CHAIRPERSON: What would be your view Mr Smuts?

MR SMUTS: Mr Chairman, we don't know whether this is the only one that is signed and attested. It has a difference reference number.

CHAIRPERSON: I accept that, we don't know. But that is all we have.

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

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

MR SMUTS: That is so Mr Chairman, yes.

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

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

CHAIRPERSON: What is your attitude Mr Mapoma?

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

My view is that the most reliable one is this 5206.

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

MR MAXHAYI: That one, we were approached by the ANC in Umtata Transkei region, to compile another form for their own reference.

Now, we don't know how it was submitted before this one, because they came there after we had already completed this one.

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

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

CHAIRPERSON: Is this 5206?

MR MAXHAYI: Yes, this one.

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

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

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

MR MAXHAYI: That handwriting is mine.

ADV DE JAGER: Which one?

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

ADV DE JAGER: And the previous one?

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

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

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

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

MR SMUTS: Yes Mr Chairman.

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

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

But, on the other hand, if it is not material differences, you will realise that it wouldn't be of much weight for us if it is not material.

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

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

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

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

MR SMUTS: Mr Chairman ...

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

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

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

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

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

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

MR MAXHAYI: Yes, yes, I do.

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

MR MAXHAYI: Yes.

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

MR MAXHAYI: Yes, I do.

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

MR MAXHAYI: Yes.

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

MR MAXHAYI: Yes.

MR SMUTS: At whom was your hatred directed?

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

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

MR MAXHAYI: Yes, he did.

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

MR MAXHAYI: Correct.

MR SMUTS: In his evidence in that trial at page 49 and we don't have the record unfortunately, we have not been permitted that, but in the judgement at page 49 of the typed judgement, his evidence is summarised from line 15 on page 49 as follows: Accused 2 and accused 3 knew each other and he sometimes met them together.

His attention was then directed to Easter 1993 and he said that in February of that year, after his return from holiday at his home, this was apparently at Burgersdorp, he was supposed to attend and did attend a Warrant Officer's course at the Transkei School of Infantry at Ncise outside Umtata. Do you recall that evidence given in your trial?

MR MAXHAYI: Yes, I do.

MR SMUTS: The course lasted into April. Before proceeding on the course, he handed his R4 rifle to accused 2 for safekeeping because the trainees were not allowed to enter Ncise with their own firearms, do you remember that evidence?

MR MAXHAYI: Yes, I do.

MR SMUTS: He elected to give his rifle for safekeeping to accused 2, because he was a comrade and he was friendly with him and he discovered him to be a reliable person in the society as a teacher and as an office bearer in two organisations.

Do you remember that evidence?

MR MAXHAYI: Yes, I do.

MR SMUTS: Was that correct?

MR MAXHAYI: No, this is not correct.

MR SMUTS: Why do you say that?

MR MAXHAYI: The firearm was left to me for the purposes of carrying out the missions of the ANC, not only for the safekeeping, that is not correct.

Max knew that in his absence, I would be the one who is available to other comrades, in the cases of anything which would need his assistance as a well trained, or yes, as a well trained MK man, who was deployed there at Flagstaff.

MR SMUTS: Do you confirm however that that was not the evidence of Mr Ntekiso at your trial?

MR MAXHAYI: Can you repeat your question please?

MR SMUTS: Do you confirm that Mr Ntekiso's evidence at your trial was that the weapon was left with you for safekeeping, and not for the other purposes which you have just described?

MR MAXHAYI: Yes, I confirm that.

MR SMUTS: Can I take you then to page 57 of the typed judgement, dealing further with the evidence of Mr Ntekiso and there on the left hand side there is a paragraph 5 which commences at line 19, do you have that?

MR MAXHAYI: Paragraph 5?

MR SMUTS: Yes, it is in brackets, 5 on the left?

MR MAXHAYI: Oh yes, yes.

MR SMUTS: That paragraph reads as follows: he said that he had reported to the Regional Command of MK that accused had told him that the R4 which had been given to him by the Regional Command had been used in the attack on the Weakley's and that the Regional Command had distanced itself from the incident, because the offences were not committed by a member of MK. Was that the evidence of Mr Ntekiso?

MR MAXHAYI: Yes, it was.

MR SMUTS: What do you say in respect of that evidence? Is it correct that the Regional Command of MK distanced itself from your actions?

MR MAXHAYI: No, I don't know that because I was not now, I cannot confirm whether Max was talking the, was telling the Court the truth or not. I cannot - I am not certain.

MR SMUTS: You have no evidence to counter that suggestion?

MR MAXHAYI: This thing, no, I cannot confirm.

MR SMUTS: When you say that you acted as you did in the interests of your organisation, which organisation do you identify as the organisation in whose interests you were acting?

MR MAXHAYI: African National Congress and its allies, Communist Party, COSATU.

MR SMUTS: And is it your case that you acted to further a political struggle of the African National Congress and its allies?

MR MAXHAYI: Yes.

MR SMUTS: Against whom?

MR MAXHAYI: Against the counter-revolutionaries, against the enemy.

MR SMUTS: And are you prepared to identify the enemy or the counter-revolutionaries any more closely than under those banners?

MR MAXHAYI: No.

MR SMUTS: As an office bearer of the African National Congress, and one whose task amongst other things was to recruit members for the African National Congress, did you seek to stay abreast of policy statements of your organisation?

MR MAXHAYI: In an effort to recruit the members?

MR SMUTS: Yes, and then performing your functions as an office bearer of the African National Congress?

MR MAXHAYI: Yes, we put forward the policies of the ANC.

MR SMUTS: And how did you determine what those policies were?

MR MAXHAYI: ANC is based on making the country democratically, in fact the most primary aim was to free the people of this country. In that way, the ANC was to force an elected democratic government in this country, which would be based on non-racial principles, non-sexist principles.

MR SMUTS: Did you, during your membership and your position as an officer, an elected office bearer of the African National Congress, have regard to policy statements that were issued by the leadership and the statements issued by the ANC Department of Information and Publicity as to the position of the ANC in various spheres?

MR MAXHAYI: Question please, sorry?

MR SMUTS: Did you while operating as an office bearer of the African National Congress, have regard to policy statements that were issued by the leaders of the ANC and to statements issued by the ANC's Department of Information and Publicity regarding the position of the ANC?

MR MAXHAYI: This operation?

CHAIRPERSON: In general?

MR MAXHAYI: In general? Yes.

MR SMUTS: Mr Chairman, we have prepared a bundle of documents which deals with the African National Congress' position on violence and if those could be distributed at this stage, it may be useful to canvass certain aspects with the witness. May I ask that they be distributed at this stage?

CHAIRPERSON: Are they African National Congress documentation?

MR SMUTS: Mr Chairman, what we have done is we have done a summary, extracting specific statements and we have at the back, appended the document from which they are drawn. Some of them are broader than African National Congress, like the National Peace Accord.

The Pretoria Minute which involved the government at the time, the DF Malan Accord and so on. But the rest are drawn from the Department of Information and Publicity statements which were drawn off the Internet.

CHAIRPERSON: You say the Department of Information?

MR SMUTS: The ANC Department of Information and Publicity.

CHAIRPERSON: Oh.

MR SMUTS: No, not the notorious government one, Mr Chairman.

CHAIRPERSON: Why I asked the question is that we are quite aware of the goings on and the tactics of certain policemen of those days.

MR SMUTS: Yes, Mr Chairman, these documents were drawn from the Internet at the Website of the African National Congress.

Do you have a copy of the document Mr Maxhayi?

MR MAXHAYI: Yes, I do.

CHAIRPERSON: Let us make that Exhibit B.

MR MAXHAYI: Which copy? This one?

CHAIRPERSON: Exhibit A will be the new application form 5206.

MR ZILWA: Mr Chairman, for the record, I am not sure that it will be proper or that we should agree to the handing in of this document and the cross-examination of the witness on it, without us having proper sight of it.

I would have thought that if my learned friend for the other side, wanted to use this document, he would have given us an opportunity to go through it because the witness has to identify it. Now all of a sudden he has to reply to questions based on this document, he has hardly seen anything about the document. He may very well commit himself to something which is not accurate because he hasn't had time to go through it.

Now, I suppose everybody knew that the case would be proceeding today and just like we did on our side, submitting everything we wanted to use, timeously, I would have thought the other side would have done it as well, so that nobody is caught by surprise, because right now the witness may give an answer which may very well turn out not to be accurate, because he has hardly had a chance to look at the document.

If my learned friend proposes to base questions on this document, which have just been handed in and the witness has not had a look at it at all, it might well turn out to be quite prejudicial and indeed unfair to him.

CHAIRPERSON: Mr Smuts, how many questions do you propose to, how many issues do you propose to use out of this?

MR SMUTS: Mr Chairman, the point is simply, there is a consistent theme that runs through the public approach and policy of the African National Congress, expressing opposition to violence even in the face of provocation and that is essentially what we wish to canvass out of this document.

They are public statements, issued over an extended period of time which were a matter of public record predominantly, but they are statements of the organisation of which the applicant is an office bearer.

CHAIRPERSON: That might be so, but Mr Smuts, all I am asking is how many specific items in this document, do you intend to refer to?

MR SMUTS: Mr Chairman, that is hard to determine depending on the response of the witness. If the witness is prepared to confirm that the unwavering position of his organisation throughout was an opposition to violence and to taking the law into one's own hands, we don't need to go into the specifics of the various documents at all.

Mr Chairman, as I say these are matters of public record. If it is going to assist in shortening the process, then it can't take the witness more than 10 minutes, quarter of an hour at the outside, to reflect on whether these documents are what they purport to be.

CHAIRPERSON: If you are going to put your proposition as broadly as you put it to me first, and see what happens, then I can determine whether or what the next step would be.

MR SMUTS: Thank you Mr Chairman. Mr Maxhayi, from document A which is the Pretoria Minute on the 6th of August through to document L, that is the 6th of August 1990, the Pretoria Minute through to document L, which is on page, commences on page 6 of this extract. The extract is at the bottom of page 6, moving on to page 7. There is a persistent theme running through both the Accords and Agreements to which the African National Congress was a party and in the statements issued on behalf of the organisation, calling for peace, asking members of the African National Congress in particular and people in general, not to allow themselves to be provoked into violence and committing your organisation to a peaceful process.

Was that the position at all times, of your organisation?

MR MAXHAYI: Yes.

MR SMUTS: Was there any, to your knowledge, before the campaign or the operation as you style it in which you involved yourselves on the 13th of April 1993, was there any change in the position of your organisation regarding the use of violence?

MR MAXHAYI: Yes, ANC is always calling for non-violent activities. Even comrade Chris Hani, he died preaching us, preaching the people of South Africa, the youth, not to involve in any violent activity.

As I have said earlier on, that was another thing that really aggravated our anger, because at that time, according to our own analysis, the government made a fool because on the other hand, we were preaching as an organisation, but it happened that such a prominent figure like comrade Chris Hani is killed cold bloodedly.

MR SMUTS: Even after the death of Mr Hani, was there any change in the policy of your organisation prior to your taking the lives of the Weakley brothers and attempting to kill those who were with them?

MR MAXHAYI: There was no change. It is the anger which prompted us to do that.

MR SMUTS: Would you concede then that - Mr Chairman, has rain stopped play? Has the rain stopped play?

CHAIRPERSON: Can you hear?

MR SMUTS: I am not sure whether anything is going to be recorded.

CHAIRPERSON: Carry on.

MR SMUTS: Thank you Mr Chairman. Would you agree then Mr Maxhayi, that the decision that you took to kill people and particularly to target white people as your victims, was not in accordance with the publicly stated policy of your organisation?

MR MAXHAYI: I stated clearly before that we didn't get any authority from the African National Congress.

MR SMUTS: That doesn't answer the question Mr Maxhayi. Do you admit that the decision that you took to kill white people, was not in accordance with the publicly stated policy of your organisation?

MR MAXHAYI: I just want you to be clear that this happened within a short period of time. There was no time for the ANC to review its policy. The ANC was not pleased that Chris Hani was killed.

Definitely the ANC had to say something about that, because all the policies were made on the basis that everybody was gearing for election, so there was no expected violence from the government, and the ANC, according to the ANC.

MR SMUTS: Could I ask you again, do you admit that the decision that you took, was not in accordance with the publicly stated policy of your organisation?

MR MAXHAYI: Yes, as I have said earlier on, that we didn't get any authorization from the ANC.

MR SMUTS: Your decision was in fact in conflict with the publicly stated policy of your organisation?

MR MAXHAYI: I cannot say it was in conflict because the politics first of all, they are controlled by the pending circumstances, that must be understood.

So the fact that Chris Hani was assassinated, and Chris Hani was the man of the calibre that we know, now I think ANC expected such things, that is the reason why comrade President Madiba, made that call that we should be calm. It is because the ANC knew that as the rank and file, we would regard that as a challenge, as a declaration of war, the killing of comrade Chris Hani.

MR SMUTS: May I ask you Mr Maxhayi, how did you come to hear of the assassination of Mr Hani?

MR MAXHAYI: Can you repeat your question please?

MR SMUTS: How did you find out, how did you hear about the assassination of Mr Hani?

MR MAXHAYI: I heard it on the news on the TV news, on the 10th of April, in the evening of that day, I heard it.

MR SMUTS: Did you thereafter attempt to stay abreast of the news as to what the response of your organisation was, what investigations were being conducted in respect of the death and the like?

MR MAXHAYI: I left the TV at the time, I didn't hear anything. It was enough for me that comrade Chris Hani was killed.

MR SMUTS: Did you make no effort between that date and the 13th of April, to determine what the response of your organisation was to the killing of Mr Hani?

MR MAXHAYI: No, because the following day I met with the comrade, Nyalukana, who was my colleague at the SDU's. So, we launched that campaign, we agreed to retaliate, so there was no need to go to the ANC.

It was only that statement of President that really caused us to revisit our decision.

MR SMUTS: Did you not follow either on the television or on the radio or in the newspapers, the events that unfolded after the killing of Mr Hani?

MR MAXHAYI: No, I didn't that day.

MR SMUTS: When you say that day, are you talking about the 10th of April?

MR MAXHAYI: The 10th of April, the 11th of April, I was not in a place where I could have an access to a TV. The 12th, I think if my memory serves me well, I only came to an access of the media on the 13th, but I am not certain.

So I just want to confirm that I didn't hear the responses of other people around that, but what I knew was that there was an anger.

MR SMUTS: Are you saying that between the 10th and the 13th of April, you never looked at a newspaper, you never listened to the radio and you never watched the television news?

MR MAXHAYI: I am not sure about the newspaper and the radio, specifically the TV. I didn't watch.

MR SMUTS: Can I take you to document M in the bundle, that is a newspaper report which deals with an interview conducted with Mr Mandela and which appeared in the Daily Despatch on the 12th of April 1993.

Do you see that report?

MR MAXHAYI: Yes.

MR SMUTS: The newspaper clipping is in the bundle, at the back, do you have it with the photograph of Mr Mandela?

CHAIRPERSON: What is the question you want to ask about it Mr Smuts?

MR SMUTS: I want to deal with the concluding paragraph in Mr Mandela's statement Mr Chairman, but I don't want to disadvantage the witness by not allowing him to read the report.

MR MAXHAYI: Can you repeat the question please.

MR SMUTS: Do you see the final paragraph which says that Mr Mandela appealed to South Africans not to be provoked into any acts of violence, even if this violence was motivated by a desire to avenge Mr Hani's death?

MR MAXHAYI: Yes, I see it.

MR SMUTS: Is that consistent with the policy of your organisation throughout the period from the Pretoria Accord up to and after the death of Mr Hani?

MR MAXHAYI: Yes, there was no stage that the ANC called for ...(indistinct)

MR SMUTS: Did you see in the newspapers that report or any other, in which leadership of the ANC called for calm?

MR MAXHAYI: I am not certain whether I saw this, but even if I saw it, I did not see it on that day because we heard about the essence of this article after we have carried out this operation. I am not sure whether it was on the 13th or maybe on the day of the funeral.

MR SMUTS: Are you certain of that Mr Maxhayi, that you only heard of this call for calm, after you had committed this offence?

MR MAXHAYI: Yes, we were in the process to pursue many offences. So the fact that we decided not to carry on, is due to that report of President Mandela.

MR SMUTS: In the judgement on sentence in your criminal trial, and again we don't have the record of the evidence that was tendered, so we are constraint to rely on the judgement, but on page 127 of the typed judgement dealing with sentence ...

MR MAXHAYI: We don't have that page here.

MR SMUTS: Mr Chairman, it is a bundle headed Judgement and Sentence, Volume 1. Page 127. Do you have that?

MR MAXHAYI: Yes, page 127. I do have it.

MR SMUTS: This is an aspect of the judgement in which the learned Judge is dealing with the question of mitigation.

Reading from line 6, he says the following and it is unfortunately very badly transcribed, but one can try and make sense of it. I think it should read on the evidence led at the trial, I am satisfied that accused 1 and accused 2 and that if I understand correctly, is a reference to yourself and Mr Hermans, were indeed most adoring admirers, it should be, of Mr Hani and did indeed regard him as a hero and a great leader.

It is to my mind probable that they were overwhelmed by the emotions and did not appreciate fully the enormity of the conduct on which they had decided to embark. And then the following statement, their emotional state, it seems to me, led them to ignore the call for restraint made by the leaders of the ANC and its allies following Mr Hani's assassination.

That suggests, does it not, Mr Maxhayi, that the Court found that you ignored calls by ANC leadership for restraint?

MR MAXHAYI: No, the Court was not fair here because firstly I disputed that we only acted simply because it was comrade Chris Hani. There are many leaders in the movement. To mention for instance, even if it was President Madiba, we would have the same response, or comrade Winnie Mandela, or Peter Makaba or whosoever who is a rolemodel, who is regarded to us as a revolutionary, so take that initiative.

The fact that we ignore the call after that, it is not true because I am certain that I only came with that information after, that was the reason we did not continue killing the white people, or the enemies who were white.

MR SMUTS: Is it your evidence then that this aspect which the Court seems to have taken into consideration in your favour in mitigation of sentence, was improperly taken into account? There was in fact no factual basis at the trial, for what is set out here?

MR MAXHAYI: This is their finding as the Court, but the truth is what I am saying.

MR SMUTS: Mr Maxhayi, document P in that bundle is an address to the nation by Mr Mandela, delivered on the day of the killing.

ADV DE JAGER: Not the day of the killing of Mr Hani?

MR SMUTS: No Mr Chairman, the day of the killing of the Weakley brothers and the attempted murder of the others.

CHAIRPERSON: Mr Smuts, I don't want to give the impression that I know the answer, but what time of the day was this presented?

MR SMUTS: Mr Chairman, I am not certain. I don't want to suggest to the witness that it was presented before the act. It is a different leg that I seek to ...

CHAIRPERSON: Okay.

ADV SANDI: I think it says there Mr Smuts, tonight. That was clearly in the evening, and I thought the witness said the operation was carried out at about half past five.

MR SMUTS: Yes, it was at sunset in any event Mr Chairman.

CHAIRPERSON: Why don't you put the question, then he doesn't have to spend time reading the whole thing.

MR SMUTS: Thank you Mr Chairman. What I want to take you to Mr Maxhayi, is the extract which is on the front document, P, but it is marked with two lines on the original document marked P1 and P2, on the right hand side, do you have that? The paragraph beginning, we must not let the men worship war?

MR MAXHAYI: We must not let the men worship war and who lust after blood, precipitate action that will plunge our country into another Angola. Chris Hani was a soldier, he believed in iron discipline, carried out instruction to the letter. He practised what he preached.

Any lack of discipline is trampling on the values that Chris Hani stood for. Those who commit such acts, serve only interest of assassins and desecrate his memory.

MR SMUTS: Do you agree with that assessment of the position by Mr Mandela?

MR MAXHAYI: Do I agree?

MR SMUTS: Yes?

MR MAXHAYI: Can you repeat your question, do I agree with what?

MR SMUTS: Do you agree with that assessment of the position as expressed by Mr Mandela?

MR MAXHAYI: Yes, ANC is only preaching for peace.

MR SMUTS: And is that then what you did when you decided to take the lives of white people whose political affiliations and whose identities you had not bothered to established? Did you serve the interests of the assassins and desecrate the memory of Mr Hani?

MR MAXHAYI: No. According to us as the rank and file, we were carrying out the acts which we thought were relevant at the time, but as the President of the movement, he is there not to condone such things.

He is stating that in the capacity as the President, as he, as President Mandela was keen for the liberation of this country, I think he knew that to facilitate or not to disrupt the process of negotiation, there was a need for him to compile such a statement.

MR SMUTS: Thank you Mr Chairman, I don't have further questions.

NO FURTHER QUESTIONS BY MR SMUTS

MR MAPOMA: Chairperson, I have no questions, thank you.

NO CROSS-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Any re-examination?

RE-EXAMINATION BY MR ZILWA: Just very few, Mr Chairman. Mr Maxhayi, if I understood you correctly, you have stated that despite your knowledge of the fact that the policy of the ANC at the time was non-violence, the ...(indistinct) of the situation was such that you thought your action was justified and it would be in accordance with the ANC policy. Did I understand you correctly?

MR MAXHAYI: Yes.

MR ZILWA: If you had known before committing the deed that the ANC would be against any retaliatory acts, such as the one that you committed, would you have committed your action?

MR MAXHAYI: No.

MR ZILWA: No further questions Mr Chairman, thank you.

NO FURTHER QUESTIONS BY MR ZILWA: .

ADV SANDI: Just one question from me Mr Maxhayi, is it correct, do you agree with the view by the Judge where you were convicted and sentenced, that you gentlemen were just emotional, you acted out of emotions? Do you agree with that?

MR MAXHAYI: Yes, I do agree with him.

ADV SANDI: Thank you.

CHAIRPERSON: The beginning of your evidence, you indicated that you needed to send a message to the regime of the time, that attacks on especially the leadership of the ANC would not be tolerated. Did I understand you correctly?

MR MAXHAYI: Yes.

CHAIRPERSON: And hence these actions occurred? The message was sent through by way of this ambush?

MR MAXHAYI: Yes.

CHAIRPERSON: What did you hope to gain by that? What purpose would this message want to be given to Mr De Klerk and whoever else needed to know?

MR MAXHAYI: Mr De Klerk knew that there was no other alternative in an effort to heal that wound, but to free the people of this country in terms of fixing the date for the national democratic election, so the challenges that we put to the National Party by the ANC at the negotiation centre, so Mr De Klerk was complying with those demands in an effort to heal the wound.

CHAIRPERSON: What did that have to do with the assassination of the leadership then?

MR MAXHAYI: Can you rephrase your question?

CHAIRPERSON: You say you wanted to send a message to De Klerk, that he must stop delaying matters and get on with cooperation and cooperating in establishing a date for the first democratic elections in this country.

MR MAXHAYI: Yes.

CHAIRPERSON: So what did this killing, the ambush, what did that have to do with the assassination of the leadership then?

MR MAXHAYI: I think the government would see that if it does not, it did not take the responsibility of making sure that such acts are not continuing in this country, then people who were for the ANC and its leaders, would kill the white element. So, the only way to avoid that was to free the country.

CHAIRPERSON: Are you married?

MR MAXHAYI: No, I am not.

CHAIRPERSON: Do you have children?

MR MAXHAYI: Yes, I do.

CHAIRPERSON: How many?

MR MAXHAYI: Three.

CHAIRPERSON: Are they going to school?

MR MAXHAYI: They are still young. He is attending pre-school, the old one.

CHAIRPERSON: Do you hope that they could live in this country as you would have wished to?

MR MAXHAYI: I think so because now we are in a new dispensation. This is their country.

CHAIRPERSON: Yes, thank you.

ADV DE JAGER: The problem that I've got is that if one wishes to send a message, then I would expect you to the next day say, I accept the responsibility for this. I want to send this message.

But if you don't accept the responsibility at any stage after the killing, how would you convey the message that you did this because there was the killing of the leader?

MR MAXHAYI: The fact that we carried out the operation within the time frame, at the moment when everybody who has to do with the African National Congress, is expressing its anger, there was no need now to go to the government.

I think it was theirs to speculate that the aim was to retaliate for comrade Chris. I am saying that because of the conditions at the time, there was no need to claim the operation.

ADV DE JAGER: Yes, but you didn't carry out the operation that same day, the 10th of April, the evening you heard the news. You didn't do it on the 11th, you didn't do it on the 12th.

MR MAXHAYI: I said earlier on, even on the day of the funeral, Saturday, seven days after comrade Chris Hani was killed, people were still showing their anger and the top brass of the ANC was appealing to the people even at that time, you see, that that is why we saw no need for us to go and claim the operation.

ADV DE JAGER: Well, even after that, you didn't admit that you had done the killing in order to send the operation, even at your trial you didn't admit it?

MR MAXHAYI: No, on the trial we were sure that we were going to be prosecuted there, so that was the reason why we didn't want to come up with the information, because firstly that trial, we regarded it as if it in a way was, won't be fair with us, won't understand, won't justify our killing if we claim that, that is why we decided not to speak the truth there.

But we knew that at the end of the day, we were going to tell the people why we killed Mr Glen and Alistair. This is the opportunity that we are in now.

CHAIRPERSON: Thank you.

MR MAXHAYI: Thank you.

WITNESS EXCUSED