This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
05 Jul 2004: Yacoob, Zak
POM. Hello, Justice Yacoob? This is Patrick O'Malley.
ZY. Hello Mr O'Malley, how are you?
POM. I'm still struggling away with Mac.
ZY. Yes I am sure, I am sure.
POM. He's a tough one to struggle with. But I had a couple of questions for you that you could maybe enlighten me on something, that is the occasion in Vula when you were first of all representing Gebhuza at his bail application hearing in August 1990 and he applied for bail. My questions revolve around when he applied for bail did he have to go into the witness box? First of all, when did you first meet him as far as you can best recall before that hearing?
ZY. You mean after his detention?
ZY. I met him there and then. I met him an hour before the hearing or something like that.
POM. How much information was he able to convey to you or you to him regarding what had been going on on the outside, how he had been treated by the Security Police?
ZY. It's difficult to say. I mean there was some information conveyed of how he had been treated I think. My recollection is that he didn't complain of bad treatment to a considerable degree but said that they knew everything, if I remember correctly. It's a long time ago.
POM. So when he said they knew everything, did that mean to you that they knew everything about Operation Vula?
ZY. Yes, that's right.
POM. Does a bail applicant have to go into the box when he applies for bail or is that up to himself?
ZY. No, he has to provide evidence. He can do that either by making an application for bail on paper or he can go into the witness box. He has those two choices.
POM. So it was his choice to go into the witness box?
POM. Now would he have been aware when he was doing that that he was putting himself into a situation where he might be opening Pandora's Box?
ZY. He would have been aware I think, yes.
POM. So that anything the police knew, which was everything about Vula, might be used against him when he in fact went into the box?
ZY. Oh yes the risk was high and he would have known that but not necessarily everything. There would have been an element of protection. The limit wouldn't have been as clear as it is today because of the nature of the judicial process and so on at the time but he would have been aware that there was some risk.
POM. He would have been aware at the time that people like Mac and others were also in detention?
ZY. Yes he would.
POM. So was it your advice to him or did he make the decision on his own to go into the witness box, given the risk involved that this might result in?
ZY. I can't remember now but what I would have done was set out the pros and the cons to him of each side and asked him to decide.
POM. So once they began to go into Vula and present him with information on the multiple number of passports, the general activities, the range of activities of Vula, there was really nothing you could do, was there?
ZY. No there was something. It depends on how far they went. If they asked him for information about the number of passports he had, that was clearly relevant to the bail application because whether a person stands trial or not depends on the number of passports he had. On the other hand if questions related to precisely what he did or didn't do in Vula, which had nothing to do with bail, there would have been some protection possible for him. But all questions which tended to demonstrate whether he would stand trial or not he would have had to answer.
ZY. There was a measure of protection. He wasn't completely protected but the problem of course is that, how can I put it? The protection would have been, let me put it this way, he would have been advised that the protection could have been more limited than otherwise because of the gender attitude to that sort of political offence among certain people at the time. There could have been less protection available to him than would have been available against a person who had committed an offence without a political ramification, I suppose.
POM. Because the whole question of Tongaat and Red Joe and all of that had been much in the news.
ZY. That's right.
POM. I suppose what I want to get at is that I've talked with Peter Blomkamp, the prosecutor, and he said they had prepared all this information on charges of what Vula was all about and then they got the word from the top that they were only to charge him with possession of firearms and they were more than disappointed and thought the Security Police saw this as absolutely stunning but that once he went into the witness box it provided them with an opportunity to put all this in evidence, so in fact it opened Pandora's Box. Can an attorney interrupt and advise his client if in the course of those hearings he said, 'I refuse to answer that question. I won't answer that question'?
ZY. Yes, but he could have said, 'I want advice before I can answer that question', and he would have been told that he can ask for advice.
POM. He would, and he chose not to do that because he answered.
ZY. You see it's a very difficult thing because ordinarily you get the advice and then when you go into the witness box you get caught up in the thing. The questions come at you, you want to answer them, you don't want to be seen going for advice and things get so hot sometimes that you forget what your lawyer told you. It's quite a complex thing to give evidence. I've never done so.
POM. You just fire the questions.
ZY. Yes that's right. It's actually quite difficult. I mean I have not – I probably in all my career have had one client who has in the middle of something said, "I want to get advice on that issue."
POM. That's when the client refused to answer the question?
ZY. Yes, and said, "I want advice first." Of course the problem is I told him to answer the question. But that's another issue. But clients don't, you know people in the witness box get caught up in the process of being there, if you know what I mean.
POM. Were you surprised by how much they actually knew?
ZY. No because he had told me that they knew it all.
POM. And what did that imply to you? Did you wonder how they knew it all?
ZY. Well I actually – my sense was that a lot of it was on documentation, computer printouts and all sorts of things like that and I would imagine that they probably got hold of much of that stuff and when they put it to him he probably didn't see a way around it or something like that.
POM. Well, you know what? You have probably answered all my questions in that short five minutes of time. Now you also represented the nine when they went to trial?
POM. Now at that time they had upped the charges to Section 54, to the terrorism. Was there some mix up in their money arriving for bail, that they were waiting for the money to arrive and time was running out?
ZY. Not that I recall. I don't think there was a money issue. As I recall it all that happened was that the bail application was never properly finalised because what happened was that we took the approach that the Minister of Justice must be called to give evidence in the bail application because in the way in which things were developing at the time they would never be charged with something and the Minister of Justice didn't come to give evidence and it was while that process of pursuing the Minister of Justice, getting him to give evidence in the bail application, that the charges were suddenly withdrawn or something. That's how I remember it.
POM. But they were released on bail. But that's OK if you don't remember. It's not exactly pertinent. Listen, that answers all my questions.
ZY. All right.
POM. And thank you ever so much and I hope to see you again.
. Sorry, Judge Yacoob for bothering you again. I just have a very quick question. I came across a reply in the transcript of Mr Nyanda where he said he had information that indemnity is being sought on his behalf and, "I have also instructed my attorneys to pursue the matter of obtaining indemnity for me." Had he instructed you?
ZY. No, no, I was not the attorney. But it is true that at that time, and that was the main basis for the bail application. The main basis for the bail application was that he was going to be applying for indemnity. That he did what he did on behalf of the ANC qualified him for indemnity. He thought he was going to get indemnity and there's no point in keeping him in jail.
POM. I suppose, maybe it's the way, again, being on the stand when he says, "I have instructed my attorneys to pursue the matter."
ZY. Remember, he may have instructed his attorney who was Mr Yunus Mahomed.
POM. But if he had been in custody for ninety days, if he had been in solitary confinement and had seen nobody until he was charged.
ZY. No, you see this was 1990. He was arrested in 1991, is that right?
POM. No he was arrested in July 1990.
ZY. July 1990. The ANC was unbanned in February of that year. Indemnity talks began to happen by that time.
POM. But he would have been – OK, got you. He wasn't arrested until after the first wave of indemnities had in fact been given.
ZY. His would have talked to his attorney in relation to the application for indemnity before he was actually detained.
POM. That's right. Thank you.