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BLACK CATS [TRC]
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 ON RESUMPTION: 23RD JULY 1998 - DAY 4

MR HATTINGH IN ARGUMENT: Mr Chairman, thank you for the opportunity of getting some time to investigate this matter.

&#9;With regard to the various questions posed by your Committee yesterday, I would endeavour to respond to that as best as possible.

&#9;The first question was whether there's any provision in this particular Act, Promotion of National Unity and Reconciliation Act, for the admission of documents similar to the Criminal Procedure Act? The short answer to this is there is no provision similar to the Criminal Procedure Act. One can have regard to various sections of the Act to assist us, but there is no similar provision. 

&#9;However, that brings us immediately to the next question then is, is the Criminal Procedure Act in any way applicable here, and my submission would be no, the Criminal Procedure Act is only applicable to a criminal trial.

&#9;Now if we then would like to get an answer to the next question, what law would be appropriate or applicable on the admissibility of documents at this hearing, my suggestion would be that one would need to have regard to the Act, Promotion of National Unity and Reconciliation Act itself, and look whether any provisions are made in this regard. Should we fail to find any provisions, and I'm just giving this as a background, then we have to realise that this hearing is not a criminal hearing, it's not a civil trial, it is something, to be generous, it's something different, it's more an administrative kind of tribunal.

&#9;Now, then one would obviously have to look at the rules of natural justice and see to what extent the general rules can be applied for the admission, admissibility of documents.

CHAIRPERSON: Well in addition to that, Mr Hattingh, would you agree then that the trend, in Afrikaans the word would be "trant" of the Act must also be considered at the same time? What I mean by that is, isn't it so that the Act suggests a flyway..., to allow a fluidity in favour of an applicant rather than anybody else? I don't know what your views are on it, I'm just raising it.

MR HATTINGH: Yes, my submission would be that that perhaps may be the position, but one should not forget the other indications that we do receive from the heading of the Act and the background to the Act, as to what the purpose of the Act is.

CHAIRPERSON: Ja, you're quite correct, but if we must compare two rights, I would suggest, I'm really putting my head on a block, that the better right would lie, as implied by the Act, as I read it, with the applicant rather than an interested party.

MR HATTINGH: Mr Chairman, I cannot make any admission in this regard, I think it is open for argument. There is no clear indication, but I cannot take it any further than to say I cannot make any admission. But if we look at the Act itself and try to find out how this particular problem is to be attended to, one first look at the Act and find out whether any provision was made in the Act and if any provision was made in the regulations that are mentioned in Section 40 of the Act. I am not aware of any regulations prescribing anything in the application of this Act which can assist us here.

CHAIRPERSON: Well let me ask you this first, Mr Hattingh, before we go further, if I were to allow you to quote from that document and make propositions to the witness, would you be happy with what his answer is, and if his answer is yes, that it was his utterances and pointings out, etcetera, and it was made freely and voluntarily, then we go further. If, on the other hand, he indicates to us and he answers, "Look, that's not my pointing out or my utterances and/or I didn't make it freely and voluntarily", you'd be stuck with that and that would be the end of the matter. What would your attitude be to that proposition?

MR HATTINGH: In that situation, the position is almost too ghastly to contemplate, because I believe I was advised by the investigating officer at the time of the criminal trial, that the trial within a trial took up almost three to four weeks, so that only goes to show that if the pointing out and the admission documents are not accepted by the applicant as free and voluntary, then we are stuck with a situation where we either have to accept it, to get on with the matter, or, if we would still like to rely on it, we need to prove it, and the extent to which we ...(intervention).

CHAIRPERSON: We go on to the law as it presently stands. Now would, I have had a look at that document, the preamble, etcetera, where was I, I've had a look at the prelims, and from the face of it, the law, as it presently stands, and the requirements which favour the deponent of such documents, have not been complied with. It may have been complied with in terms of the laws that stood then, but not today. If that be the case, would there be any purpose in pursuing this line of argument?

MR HATTINGH: Mr Chairman, I believe yes. The fact that this document, on the face of it, does not comply to the requirements of existing or present laws or case law on admissions or pointings out, I would submit it does not make a difference, because I think the crux of the matter is, we're not dealing with the admissibility of a document at this hearing or the admissibility, on the one hand, and yet ...(intervention).

CHAIRPERSON: I must say, I must say, I'm sorry to interrupt, I followed your views or your submission that if he says that it wasn't freely and voluntarily made, your prospects of four weeks of a trial within a trial was very much an issue, in which case, as I understood your submission, we'd have to go through a full-blown trial within a trial, and hence I raised the issue of the law as it presently stands. If that is so, I'm not for one minute suggesting that you are entitled to go through a trial within a trial, but if that is so, then I would have to have regard for the law as it presently stands in respect of admissibility, in which case I would suggest that this documents fails those tests.

MR HATTINGH: I appreciate the reasoning thereof, but my submission would be that we're not dealing with admissibility of a document.

CHAIRPERSON: So what would be the position if the witness says, "Look, I didn't make it freely and voluntarily"? Is that the end of the matter?

MR HATTINGH: His submission that he's not admitting that it was freely and voluntarily made is only part of the evidence placed before this Committee.

CHAIRPERSON: The issue here is whether you can cross-examine on that document. In order to do so, that must be a clean document, is that not so? The minute he contests the voluntariness thereof, it places the cleanliness of that document in issue. Then what?

MR HATTINGH: I believe if we have regard to the Act, and perhaps we should first have a look at the Act and then decide whether admissibility is an issue at all and whether the attitude of the applicant is relevant at all. If one has regard to, to start out with, Section 19.4(b), Section 19.4(b) of the Act states, it starts out at:-

&#9;&#9;"If an application has not been dealt with in terms of sub-Section 3, the Committee shall conduct a hearing as contemplated in Chapter 6 and shall, subject to the provisions of Section 33..."

and then we go to sub-Section (b):-

&#9;&#9;"...inform the persons referred to in paragraph (a) of their right to be present at the hearing and to testify, adduce evidence and submit any article to be taken into consideration."

&#9;Now if we go back to Section 1 of this Act and we look at the definitions of certain words, then "article" is the very first word which is defined, and it is defined as being, it includes:-

&#9;&#9;"any evidence, book, document, file, object, writing, recording or transcribed computer printout produced by any mechanical or electronic device by any means of which information is recorded, stored or transcribed."

&#9;Now I would suggest, from the outset, that this document that we are dealing with at the moment is such an article, which a person opposing the application is entitled to place before this Committee.

CHAIRPERSON: Even if it was come by by unlawful means? Surely that particular document, strictly speaking, would fall under category of evidence, not article? To be more specific, I would imagine that any law, any legislation, would imply, if it's not expressly stated, that such evidence must be evidence that was lawfully acquired. It can't be any other way.

MR HATTINGH: No, I appreciate that in fact those documents would be evidence in that sense. However, this evidence is already before this Committee, and we can, I would proceed in that regard referring to the particular sections.

ADV BOSMAN: Mr Hatting, in the event of accepting that the document can be placed before the Committee and I may incline towards that we are not binding ourselves, what evidential value would that document have in the light of your submission that it does not comply with the law as it stands now, in view of the Constitution?

MR HATTINGH: I would submit that once the document is placed, well it is before the Committee, it was placed before the Committee, in the end, not at this stage, once we've been allowed to cross-examine on that document, once the applicant has given his views on that document, in the end it is for the Committee to decide what value is to be given to that document, but not at this stage, but at the very end, and whatever value the Committee would like to place on that document, that would be the value of that document.

ADV BOSMAN: But once the document is placed before the Committee, shouldn't the Committee then make a decision as to whether that document is a lawful document or not, should it wait until the very end and allow time to be wasted perhaps on unnecessary cross-examination?

MR HATTINGH: I believe that there is reported case law to the effect that you're allowed to cross-examine on a confession and subject to later proof of that confession.

CHAIRPERSON: That is so, but deal with the question that Mrs Bosman has raised.

MR HATTINGH: Perhaps I could just be refreshed on this?

CHAIRPERSON: What is the value of (tape goes dead)?

MR HATTINGH: The value will be the value that this Committee place on the contents of that document at the end of this hearing, once the Committee has had the opportunity of comparing and having regard to the full picture of information available.

CHAIRPERSON: Aren't you putting the cart before the horse here, "dis 'n bietjie deurmekaar"? You are wishing to place that document before us, shouldn't you answer the question, instead of saying that the value, "I'm not able to tell exactly what the value is now, that will depend on your findings". It just doesn't make sense.

MR HATTINGH: Mr Chairman, I think in fact I'm not trying to place the document before the Commission. In a strict sense, if one has regard to Section 19 of the Act:-

&#9;&#9;"The Committee shall make the necessary inquiries, investigations and obtain documentation."

&#9;Now, the Committee which is now sitting as a public hearing is not any different to the Committee, the Amnesty Committee, which is to investigate the matter, although in terms of the, prior to the public hearing, it was a confidential investigation, it was an amnesty hearing, or an Amnesty Committee, which now decided, or is now set down for a public hearing, to consider it in public. So this document I did not produce, this document I got from the Amnesty Committee, it's already before the Amnesty Committee, I did not produce it. That's the first, and if that is not acceptable, I think we should go into that issue, but the fact remains, the evidence leader is an instrument of the Amnesty Committee, he's in possession ...(intervention).

CHAIRPERSON: Who said that? The Amnesty Committee sits as a committee here, those mechanisms, whatever they call it, who are involved administratively in the preparation for hearings, are not regarded, they cannot be regarded as party to the committee. The committee is made up of the people who have to make the final decision. People such as evidence leaders don't form part of that, and may I add also that none of the Committee members, we have, I think, 17 or 19 of us, we play no part in the preparation of documents, we get the documents as you get them, and I think that it ought to be like that. So that the preparatory section of a hearing, sure, maybe there's a practical problem that they decide or whoever is preparing a particular hearing decides what is relevant and not, maybe that's a problem, but the fact of the matter is that this document was not produced by this Committee or any other Committee of the Amnesty Committee.

MR HATTINGH: Mr Chairman, in this regard I did not suggest that the evidence leader was part of the Amnesty Committee, I said he was an instrument, I may be wrong, I accept that. &#9;In any event, Section 19 of the Act makes, that particular section in fact makes provision for this ...(intervention).

CHAIRPERSON: (Inaudible).

MR HATTINGH: Say again?

CHAIRPERSON: Which sub-Section are you talking about?

MR HATTINGH: Sub-section 1, as well as sub-Section 2. From the Act, it would appear that, from the outset, the Amnesty Committee is involved with an amnesty application. On receipt of, the very first day when the application received, from that they are, the Amnesty Committee is involved, and that's why I made the suggestion that perhaps the, that the evidence leader or any investigating team would be instruments of the Amnesty Committee in obtaining information to place them in as best a position to have regard to the full picture. Now if the existing arrangement is ...(intervention).

CHAIRPERSON: If the full picture includes a document that was unlawfully acquired, can we have cognisance of it, of the contents of that document?

MR HATTINGH: Firstly, my submission would be that there can, I have no indication that this document was unlawfully obtained at the time, on the fact of it there's no indication.

CHAIRPERSON: This where it hasn't been acquired through the full requirements of the law as it stands today.

MR HATTINGH: That's why I say at the time, it was a lawful document properly obtained at the time. I cannot, at this stage, say exactly when the further requirements came into being.

CHAIRPERSON: It came into being with Act 200 of 1993, the interim constitution.

MR HATTINGH: Mr Chairman, my view and my submission would remain that we are dealing here with a document which, at the time when it came into being, constituted a proper and acceptable document, and if we now say, at this stage, this document does not comply to the requirements of the present day law, then we have to look at the present day law and see for what purpose those provisions are, and my submission would be that in terms of the constitution, you have to make sure that a pointing out or a confession complies with the present day requirements, but for a particular purpose, to institute criminal proceedings against a person in a criminal court, but those requirements are not applicable at this forum, because it's not a criminal trial, number one ...(intervention).

CHAIRPERSON: Assuming you're right, how do you deal with the right to legal representation from the time you arrest him? That is a right in terms of the constitution.

MR HATTINGH: I accept that this document ...(intervention).

CHAIRPERSON: I don't know when I delivered that judgment, but the purpose of that law, as I interpreted it, was to protect the arrestee and to protect a prospective accused of his rights, isn't it, and to curtail or to stop any risk that he may be put through in incriminating himself or to provide self-incriminating evidence.

MR HATTINGH: Mr Chairman, I agree with you, a prospective accused should be safeguarded against incriminating himself in respect of prosecution. That's not what we have here today. We have a person, an applicant, who's already been convicted on these charges, and he in fact comes to this hearing, in essence he tells us, "Yes, although I did perhaps pleaded not guilty at the time" and I, for reasons which was peculiar to him at the time of the trial, decided not to tell the truth, but in any event today he accepts responsibility for those actions. So there's no further possibility or danger of criminal trials and further disadvantages for this particular applicant.

CHAIRPERSON: Isn't that putting it too simplistically, Mr Hattingh? Here we have a sentenced person, who, fortunately for him, has now been given an opportunity to relieve himself of the burdens of that sentence. You wish to use a document to threaten and risk those opportunities, which you're entitled to do. The manner in which the attempt is made is by means of a possibly defective document, which is the subject matter of this argument. Now it's all very well to say he's not standing here as an accused, but we cannot forget he sits here as a sentenced person, who's taking advantage of an opportunity and a right to relieve himself of those burdens, and consequently it's my view that any document that puts those rights at risk, he's virtually in the same position as if he were an accused, not so?

MR HATTINGH: Mr Chairman, I'm not only disagreeing with you for the sake of it, but my submission would be that, number one, this is not a defective document on the face of it, and number two is, to grant this applicant the opportunity and certain rights, meaning "I'm entitled not to give full disclosure, I'm entitled not to tell the full truth" ...(intervention).

CHAIRPERSON: Presuming what is contained in that document is the truth. Is it?

MR HATTINGH: Perhaps I should just get the question again?

CHAIRPERSON: Your submission presumes that what is contained in that document is the truth.

MR HATTINGH: With regard to his motives at the time, yes.

CHAIRPERSON: Isn't that a fallacy? Can we, any one of us, say what is contained in that document is the truth, merely because it has been found to be the truth by some other forum?

MR HATTINGH: We cannot say, but the applicant can, and for that very reason, I believe ...(intervention).

CHAIRPERSON: What if the applicant says, "Well the truth of it is irrelevant, I was forced to make it", and what if he does say it's not the truth, where do we stand then?

MR HATTINGH: Firstly, if the applicant says that it is not the truth, then I believe that, on behalf of respondents or people opposing his application, we should be allowed to cross-examine him on the document to test whether his present attitude that it is not the truth is in fact correct. That's the first thing. Secondly, we're still not dealing here with the admissibility of a document. The document, on my reading of the Act, should be before the Committee and should be considered by the Committee, and this applicant cannot keep this document from finding its way to the Committee. If anything, there was an obligation on this applicant and his legal representative to divulge this information to this Committee, if ever they wanted to put full disclosure before this Committee, they were under the obligation to make this available to the Committee, not me or anyone else.

CHAIRPERSON: Just tell me, I just need to get clarity, I just checked with Mrs Bosman, I just want to check with Mr Sandi, well as far as the Committee's concerned, this document was never submitted to us before yesterday, it wasn't a document that was produced to us. In fact I asked for a copy just to look at the contents in order to prepare myself for this morning's argument, that's all, this document has never been part of our papers.

MR HATTINGH: Mr Chairman, I cannot give an excuse, say that I'm not well versed in the workings of this Amnesty Committee, but on my reading of the Act, it was a mistake for this documentation, all the other documentation which was held by the evidence leader or the investigating team or the TRC or the Amnesty Committee, any arm or instrument of it, not to place that information before this Committee. It's not for any other part of the whole TRC set-up to decide what the relevance of a particular document is. Whatever is collected should be placed before this Committee and this public hearing. That's in terms of the Act, and I do not see any section in the Act which tells us differently. The Act tells us specifically that this Amnesty Committee should be provided with all documentation, all articles, and articles are described ...(intervention).

CHAIRPERSON: Now whose onus is that?

MR HATTINGH: I believe, on my reading of the Act, the onus is on the Amnesty Committee, and obviously with the assistance ...(intervention).

CHAIRPERSON: Provided they are aware and have knowledge of the existence of such documents, isn't it?

MR HATTINGH: Mr Chairman, the Amnesty Committee, consisting of the three Committee members today, may perhaps have not been aware of the existence of this documentation, but no doubt the Amnesty Committee, in the greater or the bigger picture, or the greater sense and the whole Commission as constituted by the Act, they were aware of these documents and they were supposed to put it, placed before this Committee, and if they failed to do so previously, prior to this hearing, or at the first day, there's no reason for keeping them from now providing this Committee with the full picture and all the documentation, as per the Act, where they are supposed to do that.

&#9;I've already indicated, as per Section 19.4(b), that this Committee should accept any article and that is explained in the Section 1, the definitions of words. 

&#9;One can also just have regard to the, what's called in Afrikaans, the "aanhef" to the Act, where it is stated, and I'll just go briefly through it, that we're looking at a complete picture as possible, a complete picture as possible, of incidents. That I believe is some indication as to what this Committee should accept.

CHAIRPERSON: Now the contents of that document, is that the truth?

MR HATTINGH: Mr Chairman, my submission is that at this moment we shouldn't ask ourselves the question whether it is the truth, it is like ...(intervention).

CHAIRPERSON: You're seeking to use it, you want us to have the most complete picture as is possible, not so? Well that's what you said. Presumably that full picture must consist of the truth, not so? Well the contents of that document, is that the truth?

MR HATTINGH: Mr Chairman, I cannot, from my side, vouch for the truth thereof, it remains for the applicant to explain it, but my main ...(intervention).

CHAIRPERSON: Why put the onus on the applicant, you want to use it?

MR HATTINGH: I want to use it because it is supposed to be before this Committee per se and not, the responsibility should not be ...(intervention).

CHAIRPERSON: Precisely, and if he says to us that contents of that document was acquired unlawfully, where does that put you then?

MR HATTINGH: It's supposed to put me in the position, if I have proper regard to the Act, that the document should still be placed before the Committee, I should still be given the opportunity of cross-examining the applicant, but in the end the Committee will be entitled to say, "Having regard to all the information, whatever the applicant said about the way this confession was obtained, we decide that we believe that the circumstances under which the confession was obtained indicate that we can discard it as of very little value or of no value".

CHAIRPERSON: Now look at the following scenario: you want to use a document, the truth of which you are not quite certain of, from what I understand you're not too certain what the attitude of the witness is, you're not certain of what answers you're going to get, if that be the case, what is the purpose of the - or what is the importance of that document?

MR HATTINGH: Mr Chairman, once again ...(intervention).

CHAIRPERSON: Perhaps to catch trout?

MR HATTINGH: Mr Chairman, my, perhaps I'm wrong, but my submission ...(intervention).

CHAIRPERSON: It seems so, isn't it?

MR HATTINGH: Unlikely. My submission is you cannot decide on the importance of a document or the contents thereof or the truth thereof unless you apply your mind to it and unless you test it, so you cannot, at this stage, say, "I heard about a document, it is going to be irrelevant because I think it's not going to be of any assistance", you have to apply your mind to it. I may just give you another example ...(intervention).

CHAIRPERSON: I'm going to ask you the question again, why do you think it's relevant, given the fact that you're even uncertain as to the truth of the contents?

MR HATTINGH: The relevance thereof is that the motives of this applicant, which places him within the parameters of the Act and an application for amnesty, requires him to say that, "I did it, my motive was, it was a political aim", but ...(intervention).

CHAIRPERSON: Hasn't he done that?

MR HATTINGH: He's done that, but I say that this, what he's telling us now, is a fabrication, just, it is something he's now ...(intervention).

CHAIRPERSON: Why is that a fabrication and not what is in that document? Why do you decide, on what basis does anybody decide which of the two versions is the truth?

MR HATTINGH: If my response to that, and I'll try to give another example, if I'm going to call a witness and I put to this applicant, "I've consulted with this and this client or this witness and this witness is going to tell this tribunal or this Committee the following", and if this applicant responds to that and says, "No, that is absolutely not the truth, it's a lot of rubbish, a pack of lies, what I'm telling this Committee in my application is the truth", I would be surprised if the Committee tells me then, "Well the applicant's already indicated that is, whatever that witness is going to tell this Committee will not be the truth, so we don't want to hear that witness". I will expect this Committee to say, "Well, let's hear that witness and let's test that witness, and let us in the end have the applicant and his version, the opposing party with his version, and if they are irreconcilable we have to make a finding on credibility, and then decide whether this applicant can be believed", and that is in fact the same we would like to do with the ...(intervention).

CHAIRPERSON: No. What are the grounds of those opposing this, what are their grounds for opposing?

MR HATTINGH: To which particular incident are you referring to?

CHAIRPERSON: We have an applicant here, who makes application for amnesty on a number of counts. You have indicated you're sitting here on behalf of certain people who are interested in the matter and who wish to oppose the applications in general. In respect of these applications by this particular applicant, what are the precise grounds for opposing?

MR HATTINGH: The precise grounds are that it is my instructions that this applicant does not comply with the requirements of the Act for getting amnesty, he did not commit these crimes with a political motive, number one, and he did not, he's not making full disclosure, and full disclosure with regard not only to the details of the incidents, of the acts, but full disclosure with regard to his motive at the time. I think full disclosure, you have to look at full disclosure not in a compartment, but look at full disclosure with regard to his motive as well. If he's not making full disclosure with regard to his motives at the time, then he's not supposed to get amnesty, and those are the grounds on which we oppose his application.

CHAIRPERSON: As that as explicit as your instructions are?

MR HATTINGH: Mr Chairman, without going into cross-examination now, if we only look at, just bear with me for one moment, if we look at the incident of the killing of Chris Ngwenya and Lindiwe Nkosi, the one person survived ...(intervention).

CHAIRPERSON: This person says that the contents of that document was not freely and voluntarily acquired. Are you going to seek to go through what is a trial within a trial?

MR HATTINGH: Mr Chairman, if that is the only way to make sure that this document is placed before the Committee, then we have to do it, but if I can convince the Committee that ...(intervention).

CHAIRPERSON: Let's assume I allow you to question on that document and put certain things to the witness, and he says, "Look, what is contained in that document was not acquired voluntarily, therefore you can't ask me those questions, that document was not supposed to exist in the first place", what then, you then go through the procedures akin to a trial within a trial, calling the magistrate and the police and whoever else to prove the acceptability of that document?

MR HATTINGH: I trust that we can avoid that, but I believe that if we follow the Act, then we should allow this document to be placed before the Committee, number one ...(intervention).

CHAIRPERSON: If I allow you to pose questions based on that document, then assume that it's before us. He says the contents was not acquired voluntarily, what are you going to do then?

MR HATTINGH: Then I would submit, when I cross-examine him in this regard, he should be compelled to answer questions in this regard and explain things. He cannot just say the document was obtained under unacceptable circumstances.

CHAIRPERSON: But, Mr Hattingh, then you presume that there's everything wrong with his testimony and there's everything right with the contents of that document. On what basis do you say so? You're putting all your eggs into that basket and saying that what is contained there is rather the truth than anything else. Surely we must be convinced of the truth of that matter so that it can be compared with what he tells us? I can't just assume, and none of the Committee members can just assume what is contained in there is the actual truth and therefore he's not making any, or full disclosure?

MR HATTINGH: Mr Chairman, I do find myself in some difficulty, but the way I believe one should also have regard to this issue is that should there not have been any representation or opposition by a victim to the application and this Committee was sitting here only with the applicant and the applicant's legal representative and the evidence leader, what, in those circumstances, should have happened to this document? Should it have been kept away from the Committee, not to see it, not to become aware of it, and if it was placed in fact, and the Committee was made privy to that document, what would the Committee have done to take the matter further, have a look at the document, applicant says no, it was not obtained in a proper manner, the Committee say, "Well then we discard it"? I do not know the answer, but the responsibility is now placed on me to make the decision if I have to make application for a trial within a trial, which is going to disrupt this whole hearing tremendously.

CHAIRPERSON: If I may say, we're halfway there already. Carry on.

ADV BOSMAN: May I just put this proposition to you, Mr Hattingh, you can tender this document, Mr Hattingh, as a document being conclusive proof of what is contained in the document, and then there would have to be a trial within a trial. If that is not your intention, you can tender the document as proof of the existence of the document. Is this what you are driving at now, to tender the document as proof of the existence of the document? Then perhaps you could cross-examine on those statements in the document which relate to the people that you represent, and certainly not in regard to other incidents. If that be allowed, surely there would be no need for a trial within a trial. If you have rebutting evidence in regard to the particular factual statement in the document and you have someone who is going to testify, either the victim or someone on behalf of the victim, surely it could be dealt with in that manner, without wasting any time with a trial within a trial? That's a proposition I put to you.

MR HATTINGH: Mr Chairman, I'll accept that proposition. We can carry on on that basis.

ADV BOSMAN: I have not made a ruling, I cannot make a ruling, it's a proposition I wanted to test your approach to it, it's of course up to the chairman.

CHAIRPERSON: What are you prepared to do?

MR HATTINGH: To carry on on the basis that the document is before the Committee, that I do not rely on the truth of the contents of the statement, but we carry on on the basis that I'm allowed to cross-examine the applicant on the contents of whatever is said in that document, but I do not ...(intervention).

CHAIRPERSON: And if he says that was acquired unlawfully, then what? Or do you want to give that a miss, just sidestep the unlawful business? How do we deal with that?

MR HATTINGH: Mr Chairman, perhaps we should consider whether the unlawfulness should in any event fall under what is set out in the constitution? Shouldn't we then say that if this - there is no provision made in the Act, this Act, we have to look at general rules, and as long as it was freely and voluntarily made, it doesn't require any warning regarding legal representation whatsoever, the normal way of proving a, what's called a "buite geregtelike erkenning", extrajudicial admission, the normal way of proving that, but I really do not wish to put a spanner in the works. My aim would be as best as possible to put the complete picture before this Committee.

CHAIRPERSON: My problem is, and I'm leaning towards what was suggested to you, however not all the nuts and bolts have been cleared up, the problem I have is that if the witness says that this document was not supposed to exist in the first place, can you then continue on the basis that the contents is the truth and say, "Look here, but this is what happened, you say that's what happened, I'm putting it to you this is what happened", can you, as a member of the bar, then correctly say that what is contained in that document is the truth, are you able to put it as a proposition in that fashion, when you're not even sure if it's the truth, essentially two versions that is ostensibly forthcoming from the same source, I'll appreciate your point, one of it is not correct. Now if that source says that what is in that document was not supposed to be in existence, how do we sidestep that, or how do we overcome that problem? And in no formal court in our legal system would that be allowed, be it civil, labour, criminal, the lot. And if we can overcome that, then possibly that suggestion made to you would be the appropriate one, hence I asked you in the beginning, if I were to allow you to put questions to the witness based on the contents of that document, would you be happy to be saddled with his answer, whatever it may be? The way I understand your argument, you seem to suggest that, despite his answers you want him to go further. Can I allow you to do that?

MR HATTINGH: Yes, what I would like to hear is his explanation for the discrepancies and the differences on ...(intervention).

CHAIRPERSON: Can we get to that step, if his answer is that, "Look, that document was acquired unlawfully"?

MR HATTINGH: Well, the applicant can say that document was acquired unlawfully, on the face of it, it wasn't, and then we're back to, we're going in a circle and it seems that then we say what - then we have to prove it, then we're back to a trial within a trial.

CHAIRPERSON: Precisely. And isn't it correct, isn't the position here that you be allowed to put questions based on the contents of that statement to the witness, but then you're stuck with his answers, and if he says that it was acquired unlawfully or it is untrue, or whatever, then that's the end of that particular aspect. I'm just suggesting to you.

MR HATTINGH: Would that then also be the end of cross-examination on the document altogether?

CHAIRPERSON: I would imagine that there are a number of aspects in the document. I'm dealing with it aspect by aspect. If he agrees to some, then you can go further, if he says it's unlawful in some, I would imagine that's where one has to stop, you're stuck with that answer. Otherwise we would have to go to this drastic situation of having to prove the whole document, or you can apply to do it, let's put it that way.

MR HATTINGH: Mr Chairman, one obviously is not only hesitating, but I don't think anyone would like to go through a trial within a trial. However, at the same time, it is as important not to allow a criminal to be released on society if he is supposed to remain in jail for 55 years, that is as important, if he ...(intervention).

CHAIRPERSON: Mr Hattingh, we're not busy with that. Those who wanted to criticise the process have done so long ago. The fact of the matter is that all and sundry are taking advantage of the situation. It was a political decision to have this mechanism, and if people are getting out of jail because of it, so be it, and that's - take my word for it, it's happening across the political spectrum, even those that criticised the process at the beginning, are now taking advantage of it.

MR HATTINGH: Mr Chairman, I know I accept that people will get out of jail, and I have no objection to that whatsoever, I think, I shouldn't take it any further, but what we shouldn't do is just allow a criminal, if it is proven to be a criminal, a criminal acts with no political motivational aims applicable whatsoever, then we shouldn't just say, "Well, ag, everyone's getting out of jail, we're just continuing..." ...(intervention).

CHAIRPERSON: No, no, nobody's going to do that. We have to be satisfied that a crime was committed for a political reason, in the context of politics, in the context of political struggle. In addition to that, once the applicant has passed that test, then we must investigate as to whether he's told us substantially everything that needs to be known about that offence, and that's the end of the matter. If he complies with those two requirements, he must be granted amnesty. If he doesn't comply with the first requirement, then he doesn't get amnesty.

MR BLACK: Mr Chairman, before we, I'm sorry to interrupt, the nature is starting to take its toll on the applicant, he needs to be excused.

COMMITTEE ADJOURNS

ON RESUMPTION

MR HATTINGH: Mr Chairman, if you would allow me, I have made some further notes about - shall I take you through, perhaps they're not going to assist us at all, perhaps we've already dealt with it, but perhaps there may be some ...(intervention).

CHAIRPERSON: I'll listen to them.

MR HATTINGH: Thank you. One of the sections of the Act that I would like to refer you to is Section 4(c), no, sorry, 4(b), functions of the Commission. Now, although I've been shown that the Commission is not the Committee, the whole of chapter 6 and 7, I believe, where applicable, also applies to a Committee, where it makes reference to a Commission. However, if we can just go back to what is applicable to a Committee, that is Section 19.5(a), it tells us that:-

&#9;&#9;"The Committee shall, for the purpose of considering and deciding upon an application referred to in sub-Section 1, have the same powers as those conferred upon the Commission in Section 5(l) and (m) and chapters 6 and 7."

&#9;Now, at this moment, we're looking at Section 4, and perhaps I should skip that, because that is not part of the powers which is also conferred on the Committee. However, in Section 5(m), 5(m) is specifically one of those powers which the Commission has which is also conferred on the Committee, and Section 5(m) tells us:-

&#9;&#9;"The Committee on its own initiative, or at the request of any interested party, inquire or investigate into any manner in terms of this Act."

Which I would submit tells us that this Committee can take cognisance of whatever information could provide a fuller picture.

&#9;Then I would also like to refer to Section 19.2, where it is stated that:-

&#9;&#9;"The Committee shall investigate the application and make such inquiries as may be necessary."

What I would submit in this regard is that this power of the Committee, as it is stated in Section 19.2, is in sequence at the stage where prior to a public hearing, but this power of the Committee does not stop, it does not cease. So this power to investigate and make inquiries continues and this Committee, to enable it to get your fuller picture, still need to take that action.

&#9;And then again in Section 28, that's in chapter 6, investigations and hearings by the Commission, now this is the chapter which also, the powers in which the Committee present is also entitled to use is Section 28.4(a):-

&#9;&#9;"To investigate any matter falling within the scope of the powers, functions and duties of that Committee."

And I believe that this problem that we're dealing with at the moment is also such.

&#9;And then sub-Section 5 of 28:-

&#9;&#9;"Subject to Section 33, no article or information obtained by the investigating unit shall be made public..."

And it then continues:-

&#9;&#9;"...until the commencement of any hearings in terms of this Act which is not held behind closed doors."

&#9;Again article as described in Section 1, meaning of the word:-

&#9;&#9;"All the information obtained by the investigating unit shall be made public the moment this hearing commences."

&#9;Then Section 29.1(b), it is stated that:-

&#9;&#9;"By notice in writing, the Committee can call on any person who is in possession of or has the custody of or control over any article or other thing which, in the opinion of the Commission, is relevant to the subject matter."

I believe that we have something which is relevant to the subject matter.

&#9;And then in 29.5, the third line:-

&#9;&#9;"The Commission may, having due regard to the principles of openness and transparency, declare that any article produced or information submitted at such investigation shall not be made public until the article is produced at the hearing in terms of this Act."

Once again, it would indicate that anything obtained for the purpose of the principle of openness and transparency, should become public and should be investigated, should be scrutinised.

&#9;Then we may just again refer to Section 31 again, we discussed it, or I made certain submissions with that in regard to Section 31. In fact it would appear that Section 31 is applicable to this Committee, as already indicated in Section 19.5(a), which incorporates chapters 6 and 7, where it is clear that a witness or a person can be compelled to produce any article, once again as set out in Section 1, meaning evidence, documents, whatsoever, and they can be compelled to answer any question put to them.

&#9;And sub-Section 5:-

&#9;&#9;"Any person appearing before the Commission by virtue of the provisions shall be entitled to peruse any article referred to in that sub-Section."

&#9;And then, one last thing is that the Act also makes provision in Section 32 for the Commission, and that would include the Amnesty Committee, to enter upon premises and to search for and seize and to remove articles, and once again article as described in Section 1, and the basis on which that can be done is that:-

&#9;&#9;"upon reasonable grounds suspected to be concerned with any matter which is the subject of any investigation."

Or in sub-Section (b):-

&#9;&#9;"on reasonable grounds suspected to contain information with regard to any such matter."

&#9;Now I believe that had this document been in the custody of someone and we didn't know what the contents were and we wanted to, but we know that it was in existence, then this section could very well have been used to obtain this document, because, on the face of it, reasonable grounds exist to suspect that this document could assist us.

&#9;Mr Chairman, I'm not going to take it any further. There were other issues raised by your Committee yesterday and perhaps if you ask me or indicate to me which of those questions you still would like me to respond to?

CHAIRPERSON: Francis, do you need anything? I've heard what you have got to say, Mr Hattingh. 

ADV SANDI: I think there's still the hurdle of having to inform entrusted parties. I gather that that document you're referring to also refers to some other incidents which are not part of this hearing. Now how does one deal with that, without having notified such parties?

MR HATTINGH: I think the suggestion, or the ruling already made, that we're not allowed to cross-examine or deal with any other incidents which do not form part of this hearing and all the applications would still be in force, and we're not allowed to carry on and deal with any other incidents. So it would be restricted to the incidents, the specific incidents for which amnesty applications are being made.

CHAIRPERSON: Is that all, Mr Hattingh?

MR HATTINGH: That's all, thank you, Mr Chairman. Mr Chairman, may I just, I need to pop out myself actually, but I won't, it will be short?

COMMITTEE ADJOURNS

ON RESUMPTION

MR BLACK: At the outset, I'm also pleased to note that Mr Hattingh has conceded that this isn't a court of law, and in fact it is almost (indistinct) generous and created by statute, in terms of the Promotion of National Unity and Reconciliation Act, and as such, my submission is that one of the principle duties is to promote the principles and objectives set out in the preamble to the Act.

CHAIRPERSON: The primary is reconciliation, isn't it?

MR BLACK: That is so, and Mr Chairman this is one of the, well this is the only Act that I am aware of that incorporates the concept specifically of "ubuntu". 

&#9;Now, moving on from the preamble of the Act, may I deal first with the victims' rights, or as the chairman correctly pointed out, the general flow or general trend of the Act, of what it's trying to achieve, that we know, and how it is about to achieve that, I would respectfully submit is to possibly lean in favour, to a certain extent, on a balanced manner, in favour of the applicants who are, who freely wish to appear before this Committee.

&#9;Just referring to certain aspects of the Act. If one starts off with the preamble, referring specifically to victims, what does it say about victims there? It starts off by saying it wishes to determine or deal with the facts or whereabouts of victims of any of the violations and affording victims an opportunity to relate the violations they suffered.

&#9;Then we move on to Section 11 of the Act, that's 11(d):-

&#9;&#9;"When dealing with the victims, the actions of the Commission..."

and in this, here you can read Committee:-

&#9;&#9;"...shall be guided by the following principles."

It sets out the various principles, and when (d), as far as little (d) is concerned:-

&#9;&#9;"Victims shall be informed, through the press and any other medium, of their rights in seeking redress through the Commission, including information of:-

&#9;&#9;(i)&#9;the role of the Commission and the scope of its activities; and

&#9;&#9;(ii)&#9;the right of victims to have their views and submissions presented and considered at appropriate stages of the inquiry."

&#9;Then, if we move on to Section 30, which forms part of the chapter in terms of where Commission can be read as Committee, 30 dealing with procedure to be followed at investigations and hearings of Commission, Committees and sub-Committees. 

&#9;We then refer specifically to sub-Section 2, that's Section 30.2, it says:-

&#9;&#9;"If, during any investigation or at any hearing before the Commission..."

read Committee, little (a) talk about implicated person, and little (c) deals with victims, it appears that any person may be a victim, it goes on:-

&#9;&#9;"...the Commission..."

Committee:-

&#9;&#9;"...shall, if such person is available, afford him or her an opportunity to submit representations to the Commission within a specified time with regard to the matter under consideration, or to give evidence at the hearing of the Commission."

&#9;Nowhere in this Act are victims afforded a right of cross-examination, but they are required to come before the Committee, make representations, set out the basis upon which they wish to make the representations, should they wish to oppose any application, the clear grounds and basis of their opposition must be placed. This is not a court of law and I am pleased that Mr Hattingh has perceived that.

&#9;If, out of the sub-rules and a sense of fairness, the Committee has afforded victims the right to cross-examine, as opposed to the right of being legally represented and making representations, then I wish to refer the Committee again to the provision of Section 34 of the Act relating to representation, and specifically to Section 34.2, where:-

&#9;&#9;"The Commission..."

where you can read Committee:-

&#9;&#9;"...may, in order to expedite proceedings, place reasonable limitations with regard to the time allowed in respect of cross-examination of witnesses or any address to the Commission."

&#9;This is one of the issues which was raised. The other issues have already been dealt with by Mr Hattingh and conceded to by him, about the applicability of the usual technical, evidential and procedural rules which apply to courts, conceding that they do not directly apply here, but that my submission, as I've already said and don't want to repeat, is to achieve the aims and objectives set out in the preamble of this Act, and I may say it's a pity that it's fairly, it's a shortened version, it was fairly long, but I wish, perhaps I may suggest that at some stage, for the sake of the community, this be read out in full at some stage of these proceedings.

&#9;Now, as far as the victims, before I leave the victims, are concerned, one of the issues raised was whether or not, what's the right of victims simply to come here if, the exact wording was something about the nature and extent of the opposition perhaps, may I put it briefly, of a person who wishes to oppose, to what extent should that be allowed? My submission is that any opposition and any victim has a right to make representations to this Committee and be legally assisted in making such representations. Insofar as the extent and nature of any cross-examination is concerned, that I submit is an indulgence granted by the Committee and in order perhaps as to be seen to be fair.

CHAIRPERSON: How can you say that, sorry for the interruption, Mr Black, how can you make that statement in the light of Section 34.2?

MR BLACK: Section 34.2 deals with legal representation, but does not deal with the rights of any victim. 342, with respect, is, you will note, with due respect, Mr Commissioner, is under investigations, it's preface is:-

&#9;&#9;"any person questioned by an investigation unit, any person who has been subpoenaed or called upon to appear before the Commission, is entitled to appoint a legal representative."

Then it goes in that - it follows then that this legal representative's rights can be limited. Now, no victim has been subpoenaed to testify, they have been notified to appear before the Committee, should they so wish to, no-one is obliged to appear before this Committee or to represent its case and ...(intervention).

CHAIRPERSON: But answer the question, Mr Black, if they do choose to appear in this case? Isn't Mr Sandi's question then appropriate?

MR BLACK: Well, if one reads 34.2:-

&#9;&#9;"The Commission may, in order to expedite proceedings, place reasonable limitations with regard to the time allowed in respect of the cross-examination of witnesses or any address to the Commission."

CHAIRPERSON: Precisely, the right to cross-examination has been protected by the Act, albeit limited.

ADV BOSMAN: Only limited in regard to time, Mr ...(intervention).

MR BLACK: My reading of that sub-Section, and I just don't want to dwell on this, because I've got no objections to any cross-examination, it does not confer a right to cross-examine to any person, it says a right is conferred on the Committee to curtail any cross-examination, should such cross-examination be allowed. So it places a limitation on it, but there's no inherent right, in my submission ...(intervention).

CHAIRPERSON: I know that nothing really turns on this issue, but Mr Black, does the Act say anywhere that the victim has no right to cross-examine applicants?

MR BLACK: No, no, not at all, and it does not confer any such right, and that is why, either, and this why I made it quite clear that it has become a practice and a, possibly a rule of the Committee, I don't know, but certainly I'm just simply making that statement, that this cross-examination certainly can, whichever, opportunity, let's put it that way, is given to somebody, can be controlled and curtailed.

&#9;While we're on the issue of witnesses, and in order to curtail and focus any cross-examination, my submission is that it must be clear for whom the legal, whom the legal representative is representing, and the basis upon which the opposition is being made, should there be any opposition being made. I must confess that to date I have not yet, I am not clear as to, first of all, what basis the opposition is, the victims must clearly make representations to this Committee, the victims, as the preamble says, must be granted an opportunity to relate the violations they suffered, and if their representations to the Committee is one of a form of opposition, then I submit that it must be clear on what basis, on what grounds they are opposing the matter, because this cross-examination and the lengthy delays that can ensue are, it's mind-boggling, it defeats the whole, undermines the whole objective and purpose of these proceedings.

&#9;At present I get the impression, and most of the parties here are represented by legal representatives, but the impression I get is, someone comes along and says "oppose", you get served with a summons, you go to your lawyer and you say "oppose", but on what basis? We must be told, and as applicants we want, we wish to know on what basis this opposition is being made. We on one day hear that it's being opposed because of motives, the other day we hear that it's being - well I don't know on what basis that he's not telling, there's no full disclosure. We can't chop and change. My respectful submission is that a victim cannot simply come and oppose, without making representations and setting out the basis to the applicant.

&#9;Now, from an evidential point of view, with regard to these particular documents, it is clear that insofar as this particular applicant, Mr Gushu, is concerned, he has already stated that he was tortured and acted at all times under duress from the date of his arrest. 

&#9;Now, furthermore, it is perhaps not that clear, but I can inform the Committee, and I'm certain that my learned friend for the victims is aware of the fact that the sole basis upon which the Court, in convicting Mr Gushu, relied upon, the sole evidence was the evidence of a pointing out and a confession, and those confessions, as were obtained under duress, but to assist my learned friend as far as the basis or his argument relating to the fact that on the face of the confession it was lawfully obtained, and his information obtained from the investigating officer corroborates that, I just by way of analogy wish to refer the Committee to one or two cases, which I submit are perhaps in point.

&#9;The first matter is the case of the S v MVELASE 1997(2), the October law reports of the South African criminal law reports, just to, it relates to a confession, about the before and the after effects of coming into effect of the constitution. This was an appeal from a decision in the Natal Provincial Division ...(intervention).

CHAIRPERSON: But my view is that the present law applies.

MR BLACK: Yes, that's precisely that. What exactly happened here ...(intervention).

CHAIRPERSON: Then we agree, we don't need to hear all the facts.

MR BLACK: Well it applies to such an extent, that if a trial starts and the verdict is given after the coming into the constitution based solely on the confession, the whole thing gets thrown out, because the previous statement obtained is regarded as unconstitutional. 

&#9;The same with the pointing out, which I'm sure I can mention, the very, if I don't need to cite all the cases, the case law is precisely that, where a trial is pending and a pointing out takes place prior to the trial and the hearing of the trial takes place after the pointing out and after the constitution, of course, having come into effect, then the constitutional rights of the applicant are protected and the document and recordings of the events, or information obtained by unconstitutional methods, are disregarded.

&#9;So, with respect ...(intervention).

CHAIRPERSON: Mr Black, how does one establish ...(intervention).

MR BLACK: I beg your ...(intervention).

CHAIRPERSON: ...whether that particular document was acquired unlawfully or unconstitutionally or not?

MR BLACK: Well, one can look at the face of the document, the normal questions, and whether or not he was offered legal representation, or whether or not he was in fact legally represented, I think, without going into the contents of the document. So prima facie I would submit one could determine that. And anyone wanting to use that document would then have to show that the constitutional rights were in fact complied with or met, or requirements, not rights, were met.

&#9;So my respectful submission is that this documentation, which I have had sight of, and the confession which was referred to, of which a copy I have now had sight of, prima facie does not comply with the requirements, and without being unduly - I would submit therefore that it should not be allowed and that, with all due respect, a fishing expedition should not be embarked upon in order to try and determine some form or basis of opposition, which we still don't know, which has not been put to the applicant, and my respectful submission is that if any concrete basis exists, apart from saying, "I don't want to see this applicant be granted amnesty", then that must be put and we must know what case do we have to meet, are witnesses going to be called, then - but I don't want to get into an adversarial type of forum, which this is not, and I again refer to the Act and to the nature of the relief which the Act seeks to grant the victims and the hurts and violations which the victims have suffered, which the Act wishes to address and redress and effect some form of reconciliation.

&#9;So my submission is that it would appear that this forum is being treated almost as a court of law.

CHAIRPERSON: Mr Black, we have received a number of applications as this Committee from people who were members of the former Security Police, who have now applied for amnesty, and in these applications they say it was a norm, it was a normal thing to do, to torture and beat up the likes of the applicant, once arrested. Now my question to you is, in your submission, would you go as far as to say that we should take judicial cognisance of such facts?

MR BLACK: I find it a bit difficult to say that.

CHAIRPERSON: (Indistinct).

MR BLACK: Unfortunately, I'm not a - I don't have to take cognisance on it or judicially, but I certainly take cognisance in other ways, and if the applicant does make such submissions, I would submit that the general tenor of the evidence which may have been, which, or has been given by senior members of the security forces at the time, can be taken into account when it comes to giving any credence to the evidence of the applicant, because - so I would respectfully submit that in order to save time, I'd first like to know exactly who the victims are which Mr Hattingh represents ...(intervention).

CHAIRPERSON: Hasn't he given you that?

MR BLACK: This seems to have changed on occasions, and ...(intervention).

CHAIRPERSON: All that has changed is that his mandate to represent the mother of Miss Nkosi has been terminated. He's accepted it, I think. 

MR BLACK: That whole - and it's an issue which we can deal with not necessarily completely, but the most important ground which, not speaking for my learned friend, but I think he has also indicated, Mr Pillay, who acts for the other applicants, we are most anxious to know the grounds upon, and the opposition is, and should there be any documentation which they intend to rely upon, etcetera, in order to curtail proceedings, expedite the hearing, we would request that we be afforded that opportunity, and my submission then is that should this document go in, it would be tantamount to a form of a fishing expedition to find out some grounds and again delay proceedings, and as I've indicated, this Committee certainly has the authority to set certain parameters with regard to cross-examination and in fact with regard to presentation of cases.

&#9;Thank you, I have nothing further.

CHAIRPERSON: Anyone else wants to make submissions on this aspect?

MS VAN DER WALT: Chairperson, I would like to address you, or I'd like to place something on record, I have said to Mr Hattingh that I will do this, regarding the amnesty application of Clive Derby-Lewis and Janus Walusch, a similar aspect arose, this was with regard to the Section 29 of the old Act of Internal Security, which was scrapped. Mr Bizos, on behalf of the Communist Party, presented the statements made under the old Section 29 to the Committee. It was permitted on the basis that Mr Hattingh argued, that ultimately the Committee would be the body which would decide regarding the value of the documents. This was during cross-examination. I would just like to mention this, because we have not heard your judgment regarding this and Judge Moll was the judge during these proceedings, along with four other Committee members.

CHAIRPERSON: Mrs Van der Walt, I have heard of that, but I would like to clear up something of which I am uncertain. It would appear to me that during that hearing the Committee was also of the opinion that it would not be appropriate to move over to a hearing within a hearing?

MS VAN DER WALT: That is correct.

&#9;RULING

&#9;At this stage I am asked to make a ruling on the following aspect, and that is as to whether the applicant can be questioned about the content of a written document purporting to reflect the events relating to pointing out and contemporaneous notes of his pointing out at the time the criminal investigations were being conducted. These criminal investigations relate to his convictions and sentence which are presently under discussion.

&#9;I may mention that it is a pity that I have been called to make the ruling, and the matter not being settled by the representatives.

&#9;Be that as it may, we have been asked to rule on this aspect, especially because it seems the voluntariness of the actions and the statements attached thereto seem to be in dispute. We are further not certain if the actual contents, as it appears in the document, is accurate or not.

&#9;The process clearly does create rights for various persons who at various times will have opposing interests. However, in our view, the Act is couched in terms that suggest the spirit thereof is that of reconciliation, to discourage anger and favour rather the applicants than the rights of others. This does not mean that we ignore the rights of others.

&#9;In this matter, we may mention that the actual grounds for opposition is not at all clear. Indeed we have been informed on numerous occasions that the attempt was to test whether the applicant was making full disclosure, and at best about his political reasons for having committed the crimes.

&#9;The right to cross-examination has specifically been curtailed in the Act, and this is indicative of our view as regards the spirit of the Act. It fortifies the tendency to lean in favour of the applicant. While this is so, it is clear that the right to cross-examination must be protected, albeit in a restricted way. 

&#9;Furthermore, if any dispute as to voluntariness or the truth of the contents of a document arises and which makes the use of such documents doubtful, there is no provision in the Act which allows one to embark on a mechanism to prove the truth of the contents or whether that statement or document had been made voluntarily. The process was intended to be completed as quickly as possible, and not to be converted into a full-blown, long, dragged-out criminal trial.

&#9;As I understand it, Mr Hattingh, fairly I think, has changed slightly his position, and he's not seeking that the document be admitted, but rather that he could use it. 

&#9;I do not plan to go into all the implications thereof. However, our ruling is as follows: that certain propositions which may or may not appear in the document can be put to the applicant. His answers thereto will stand. Should the answer tend to negate the truth of the proposition or dispute the voluntariness thereof, the aspect cannot be taken further in terms of the document.

&#9;That is our ruling.

&#9;Mr Hattingh, were we by you or ...(intervention).

MR HATTINGH: Yes, I believe I need to proceed with the cross-examination.

CHAIRPERSON: You can continue your cross-examination after the tea adjournment.

MR HATTINGH: Thank you.

COMMITTEE ADJOURNS

ON RESUMPTION

MZWANDILE GUSHU: (still under oath)

CROSS-EXAMINATION BY MR HATTINGH: (Continues) Mr Gushu, we have already heard indications what your attitude is with regard to the two documents, a confession as well as a pointing out document, which was made use of at the criminal trial. However, those documents deal with some of the incidents for which you are now applying for amnesty, is that correct?

MR GUSHU: Correct.

MR HATTINGH: Why did you not mention in those statements, or at the time of the pointing out, that you were acting on behalf of the ANC or with a political objective because of your working for the ANC or MK?

MR GUSHU: Mr Hattingh, I would like you to know one thing, at the time I was arrested by the boers, they were working for the National Party. Whatever I did, or whatever I said, I said because I was being beaten up, I was being tortured. There is nothing, not a single thing in that document that has been said voluntarily. That information was forced out of me. I was, I said those things, they were torturing me in all sorts of ways. I don't think that you can take that document and use it as evidence here, because this is not a court of law.

MR HATTINGH: Mr Gushu ...(intervention).

MR BLACK: Mr Chairman, Mr Chairman may I just get clarity on this issue? I understood that the ruling which was made earlier related to the pointing out document. Now Mr Hattingh is referring to the confession and the pointing out document, and he refers to two documents. Now as far as I'm concerned, I understood there's only been a ruling on the pointing out?

CHAIRPERSON: So?

MR BLACK: Well ...(intervention).

CHAIRPERSON: What's the point you want to make?

MR BLACK: I understood that Mr Hattingh was granted an opportunity to put things to this witness which were recorded in the process of pointing out, but that he has not been given permission to put anything to the witness which is contained in the confession.

CHAIRPERSON: Wasn't he given that right in an earlier ruling? MR BLACK: Well, perhaps I missed that, I certainly have no recollection of that.

CHAIRPERSON: Mr Black, you missed the ruling on the confession. Is that what you say?

MR BLACK: Well, perhaps I'm incorrect there, because ...(intervention).

CHAIRPERSON: Carry on, Mr Hattingh.

MR HATTINGH: Mr Gushu, I'm not asking you about what was in fact stated in that confession document or noted during the pointing out, I'm asking you about things that you failed to state, things which you did not say, that you were instructed by the ANC or by some form of ANC command to commit those crimes or those offences.

CHAIRPERSON: I'm sorry, Mr Hattingh, maybe if I draw your attention to page 186, the second paragraph, where it says:-

&#9;&#9;"It was said that the accused is a member of the Communist Party in the ANC and Umkohnto weSizwe, who is the political opponent of Inkatha, and that it is mitigating."

I would presume that this must have been evidence that was part of the evidence that was led by him?

MR HATTINGH: Mr Chairman, I understand it, and in a proper reading of the record it would appear that this was forwarded in argument on behalf of the accused during the sentence stage. We can clear it up with the accused, with the applicant, but as far as I understand, he did not testify, no evidence was led on behalf of the accused at the time.

CHAIRPERSON: Let us ask him then whether he did tell the Court that he was a member of the ANC/SACP and that he had done those things in pursuance of the aims of those organisations.

MR HATTINGH: Mr Gushu, do you remember the time when the criminal trial took place?

MR GUSHU: I do remember.

MR HATTINGH: I was informed by the investigating officer, and please assist this Committee and tell me if I'm correct, that there was a trial within a trial about these documents, the confession and the pointing out notes, is that correct?

MR GUSHU: That is correct. The reason why there was a trial within a trial it's because I was disputing this very same confession that you want to use here, that the judge was exactly the same as you, he wanted to listen only to the police and did not want to listen to us, the judge was very stubborn.

MR HATTINGH: I will appreciate if you don't become personal. Tell me, you say you were forced to say those things that were recorded, correct?

MR GUSHU: That is correct, Mr Chairperson.

MR HATTINGH: What you said in those statements, did that come from yourself or was that you were told to say?

MR GUSHU: I was coerced by the police, Chairperson.

MR HATTINGH: I didn't - just repeat that?

MR GUSHU: I was forced and coerced by the police. Everything that is in that document I said because the police was forcing me to do these things, they forced me to point out certain places, they were threatening that I was going to be killed as I was a member of the ANC.

MR HATTINGH: What is contained in that document, what you told them, I don't know if they recorded it correctly or whatever, that's beside the point, what is written there, is that what came out of your own brain, or was that something that you repeated because you were told what to say?

MR GUSHU: Everything contained in that document was information brought to me by the police. They came to me saying that they have information already of what I had done, therefore I was just following what they said I must do and I was saying what they forced me to say, there is nothing in that document that I said voluntarily.

MR HATTINGH: Did they ever tell you that you should say to the magistrate or to the person who was recording the events of your pointing out, that you should say that you were a member of Umkhontu weSizwe or the ANC or the SACP or whatever?

MR GUSHU: Mr Chairperson, please understand that after I was arrested in the hospital, I had to go in the night to go and point out certain areas with the police, they found my ANC Youth League cards and Communist Party cards, they photocopied these, they wrote this information themselves because they found my membership cards.

CHAIRPERSON: Mr Gushu, listen to me nicely, this Committee is not against you, listen to the question nicely, if you don't understand the question, ask me to repeat it or get it interpreted properly. All I'm trying to establish, what exactly did the police force you to say, that's all, because you are being asked by Mr Hattingh why you never told the policeman that took your particulars about the pointing out, why you never told that policeman you did all this as a member of Umkhonto weSizwe? Do you understand? Now I'm asking you how it came that you were able to tell the police what in fact you did tell them?

MR GUSHU: Chairperson, I would like to tell you, police that I was with to do the pointing out, were the same as the people that had arrested me, anything that they told me to do, I did, because I was protecting my life.

CHAIRPERSON: Now, when they told you what you must say and what you must do, did any one of them say, "Look, you must say that you did this as a member of Umkhonto weSizwe or the Communist Party or the ANC", or didn't they tell you?

MR GUSHU: As I have said, Chairperson, they got to me, they said that they had all the information on my actions, there is, I agreed to everything that they said I did because they were torturing me and they were being oppressive.

CHAIRPERSON: Yes, Mr Hattingh.

MR HATTINGH: Thank you, Mr Chairman. Mr Gushu, just to clarify the issue, at the criminal trial you did testify during the trial within a trial, but on behalf of the defence no-one testified whatsoever, neither you nor anyone else?

MR GUSHU: Please repeat your question?

MR HATTINGH: At the criminal trial, you testified, you gave evidence during the trial within a trial about the confession and the pointing out, but you did not testify subsequently in defence of your case and neither did you call any witnesses, is that correct?

MR GUSHU: Witnesses for what, because I had over 100 witnesses in this case. I am getting confused when you say that there were no witnesses.

MR HATTINGH: There was a time when you disputed that confession and that pointing out document, correct?

MR GUSHU: In the Supreme Court?

MR HATTINGH: Ja.

MR GUSHU: In the supreme court, Chairperson, as you know, the law under apartheid in South Africa, I could not say anything, it was only my representative who spoke. If I wanted to say something, I was not given the right to do so. I was told that I cannot handle myself. There is nothing I could do, if the judge wanted to sentence me, he just sentenced me, and that's exactly what happened.

CHAIRPERSON: Mr Gushu, let us forget about the apartheid era, I'm well aware of what used to occur then. All I'm saying is, during that trial, there came a time when you wanted to tell the judge that, "Look, that confession and the pointing outs should not be used against me, because I was beaten and tortured to do all these things". Do you remember?

MR GUSHU: I do remember.

CHAIRPERSON: And what the advocate is asking you is that when you were disputing that confession and the pointing out document, you did testify on your torture and beating, etcetera, is that correct?

MR GUSHU: Correct.

CHAIRPERSON: But when the State evidence was finished and the time came for the defence people to produce evidence, you did not give evidence that time, is he correct?

MR GUSHU: The question is not clear.

CHAIRPERSON: You see, in a criminal trial, the police and the State witnesses all get a chance to testify.

MR GUSHU: Yes, that's correct.

CHAIRPERSON: And in that State case, the question of confessions and pointing outs are also dealt with, correct, do you understand that?

MR GUSHU: Yes, that is so.

CHAIRPERSON: Now in your trial, during the State's case you did testify about the confession, correct?

MR GUSHU: What I did, Chairperson, is to dispute this confession. Now when I'm disputing this confession, this judge did not want to listen to me, he wanted to listen to the confession that the police had made. This is why I could not continue to talk and speak to someone who did not want to listen to me, was not prepared to listen to me, so I just gave in to his sentence. 

CHAIRPERSON: No, now that has gone by and we're trying to perhaps rectify that now, correct?

MR GUSHU: That is so, Chair.

CHAIRPERSON: The question relates to how many times did you testify in that criminal trial, was it once or twice? How many times did you go to the, how many times did you take the oath?

MR GUSHU: Once, Chairperson.

CHAIRPERSON: And that was when you disputed the confession?

MR GUSHU: Yes, it is that time exactly.

CHAIRPERSON: I think we can reasonably deduct that that is the only time, he didn't testify in the defence.

MR HATTINGH: Thank you, Mr Chairman. Mr Gushu, I put it to you that nowhere in your evidence at the criminal court, in the criminal trial, did you say anything about instructions from MK or Mr Mkhwanazi or Mr Mabena, is that correct?

MR GUSHU: Chair, I would like you to know that the time I was arrested, I was arrested as a criminal, not as a politician. Even if I would have divulged such information, it would not have helped, because I was arrested as a criminal.

MR HATTINGH: Can I then anticipate your answer to my next question, the reason why you didn't tell anything about your instructions from MK command to commit those crimes were because you were considered as a criminal and you didn't think it would change anything, is that the position?

MR GUSHU: If it was so, or if they knew that I was a person, if they knew that I was in politics, they would not have treated me in such a manner.

MR HATTINGH: Then why did you not tell them that you were involved in politics and save yourself a lot of torture?

MR GUSHU: Chair, as I said, the police beat me up and took me to my house, they had evidence that I was in politics, because they saw my membership cards. It's not like here, where I could say everything. They had my ANC and Communist Party membership cards. It was clear that I was a member of the ANC and the Communist Party.

MR HATTINGH: Then I don't understand your previous answer. You said that if you had to inform them that you were involved in politics, you would have been treated better, or you wouldn't have been treated like you were being treated?

MR GUSHU: When I say that, Mr Chair, I mean that if the law ruling the country at that time was like now, I would have been treated better, but because we lived under terrible conditions at that time, my life was in danger and would have been more in danger if I had confessed and divulged more, that I was a member of the ANC. They had my membership cards that I was a member of these particular organisations.

CHAIRPERSON: In the trial, did you have an opportunity to tell the judge yourself that these crimes were committed for political reasons?

MR GUSHU: No, Mr Chair, in the trial we were disputing the confession statement. As I have said, I was sentenced because of this confession statement and because of what the police said, the judge used that as evidence, I was not able to talk and give my own viewpoint in the trial.

CHAIRPERSON: In any case, you pleaded not guilty that time, correct?

MR GUSHU: That is so, Mr Chair.

CHAIRPERSON: Mr Hattingh, he could hardly be expected to then, during the trial, having pleaded not guilty, to say, "Yes, I did it, because of political reasons", could he, given the fact that he pleaded not guilty?

MR HATTINGH: Yes, I accept that. If we can then just go back, why did you not tell the magistrate, at the time of the confession that you acted under instructions on behalf of MK and the ANC to commit those crimes?

MR GUSHU: I don't know how else to answer, Mr Chairperson, I have tried to say that I was taken to a female boer, and there was another black female who was to interpret for me, there was no magistrate with a gown formally so that I could speak. I was denying everything in court.

MR HATTINGH: How did you know what to tell the magistrate?

MR GUSHU: Chair, I was denying everything in court. I was not taken to a magistrate formally, I was just taken to a small room, there was not even a single person to listen where I could say that yes, where I could say, "Yes, I did make this confession and I volunteered to make this confession".

CHAIRPERSON: Yes, now did the magistrate write down what you told her to write?

MR GUSHU: Yes, everything, because ...(intervention).

CHAIRPERSON: Now, why, how did you know what to tell her? Is it what you were told to tell her or what came out of your own head?

MR GUSHU: As I've said, Chair, everything I said, the police said I must say, because they said they already had information. I said everything I said because I was told by the police to say it.

MR HATTINGH: Mr Gushu, Mr Javu Mkhwanazi and Mr Mabena, J J Mabena, did they, they were the people who introduced you and gave you the instructions to commit those incidents?

MR BLACK: That is not the evidence before the Committee, Mr Chairman. The evidence was that there was a Committee of four people in Ermelo, as testified to by Mr Mndebele, one of them communicated the order.

MR HATTINGH: That is correct, and that person is Mr Javu Mkhwanazi. As it pleases the Committee. That would be applicant No 4. Thank you. You were introduced to Mr J J Mabena, you became involved with the actions of MK in this area, and you received your instructions from Mr Javu Mkhwanazi to kill people and commit certain deeds, is that correct?

MR GUSHU: Yes, that is correct.

MR HATTINGH: Did they support you at your criminal trial, did they come forward in your support?

MR BLACK: What is the relevance of this questioning? I object to the fact on the basis of relevance. 

CHAIRPERSON: What's the relevance of how his criminal trial was conducted, Mr Hattingh?

MR HATTINGH: Perhaps I should rephrase the question. Did the two mentioned people at any stage, from the time that you were arrested until the time that you made application for amnesty, assist you in any manner and support you, because they were the person that caused all the problems for you?

MR BLACK: Objection remains on the grounds of relevance, Mr Chair.

MR HATTINGH: What's the purpose, maybe you can explain to us what the purpose is and then we can cope?

MR HATTINGH: Mr Chairman, I think it would be a reasonable deduction to be made that had he in fact received those instructions, if that were in fact the truth, then the people who gave him those instructions would to some extent support him in, when he has got to live with the problems flowing from those instructions that he executed. It goes once again to the question of whether the political motive, instructions, were, if they are fabrications after the event or not.

CHAIRPERSON: Mr Hattingh, Mr Mndebele was one of those people, isn't it, who was in that meeting, correct? Was it put to him that that meeting never ever took place and no such decision was taken, and that's a fabrication? I don't recall it being put to him that that was a fabrication. Maybe I missed it.

MR HATTINGH: No, I believe I did not put it to Mr Mndebele, yes, but if I might just add to that, subsequent to Mr Mndebele's evidence a substantial amount of documentation was made available to us, which placed very many things in a different perspective, documents made available to us by the evidence leader.

CHAIRPERSON: Mr Gushu, if it were put to you that this whole business and whole version of you acting as a soldier under political decisions and instructions is false, and it's a story you made up after you were arrested, what would you say to that?

MR GUSHU: I would dispute that, Mr Chair, because I did not do anything voluntarily, or ...(intervention).

INTERPRETER: The interpreter apologises, the speaker said that he did everything because of his political beliefs and because he was obeying instructions from his commander.

CHAIRPERSON: And who was the person that gave you the actual instruction on behalf of whoever?

MR GUSHU: My commander is Javu Sithole, nobody else gave me orders except for Javu Sithole, the other instructions I got from commanders of the self-defence unit that I had trained from township to township.

CHAIRPERSON: Yes, Mr Hattingh.

MR HATTINGH: Thank you, Mr Chairman, I'm not pursuing this. Mr Mndebele testified that you were in fact ...(intervention).

MR BLACK: Sorry, Mr Chairman, may I just clear up that last answer, who was the commander, you said Javu Sithole?

MR HATTINGH: Mr Chairman, I object, I'm ...(intervention).

CHAIRPERSON: On what basis are you able to question that, Mr Black?

MR BLACK: Well I can, I had it differently, but I can re-examine, I will thank you.

CHAIRPERSON: (Indistinct).

MR HATTINGH: Mr Gushu, you said you received your instructions from Javu Sithole and who else?

MR GUSHU: The people that I had trained, commanders of the self defence unit.

MR HATTINGH: And from no-one else?

MR GUSHU: That is correct, where Ermelo, Piet Retief, I had ways to speak to him, but sometimes he would be out of South Africa.

CHAIRPERSON: The instruction to kill Jwi Zwane, who gave you that instruction?

MR GUSHU: Javu Mkhwanazi.

CHAIRPERSON: And Ngwenya?

MR GUSHU: I had an instruction that was pretty open, it was my job that, as the commander had given me instructions, I had to make sure that there were no Black Cat members that were giving problems to the ANC in Secunda, Piet Retief and Ermelo, it was all part of the same thing.

MR HATTINGH: Just to confirm this, you never got an instruction specifically to kill or eliminate Chris Ngwenya?

MR GUSHU: I did.

MR HATTINGH: Well then I misunderstood your evidence. Who gave you the instruction, the specific instruction to kill Chris Ngwenya?

MR GUSHU: As I've said, Mr Chair, my instruction was pretty open, I had to fight against people who were fighting against the ANC, I could not, I did not see any reason for me to be given an instruction twice, I was following the same instruction.

MR HATTINGH: How did you then kill Ngwenya?

MR GUSHU: He was a leader of the Black Cat and he was killing ANC people, I had to kill him, because the instruction was such that I should sort things out in Ermelo.

CHAIRPERSON: The decision to kill Ngwenya, was that your own?

MR GUSHU: It was not my own decision, Chair. Under the instruction that I was given, that was open, I had to make sure that the African National Congress were able to organise themselves in these particular areas. As the instruction was pretty open, I did not see any reason to go back to the commander that as I had done this, what should I do next?

CHAIRPERSON: On several occasions. All I'm asking you, who took the decision that Ngwenya, as a person, should be killed?

MR GUSHU: Javu Mkhwanazi, Chair.

CHAIRPERSON: Did he say Chris must be killed?

MR GUSHU: As I had to fight against the Black Cats, Chair, Chris was the leader of the Black Cat, how could I leave him out, because the instruction was to sort out the chaos in Ermelo against the Black Cat people. If Chris was not killed, it was clear that the Black Cats would continue with whatever they were doing.

CHAIRPERSON: So you, in pursuance of the order, the broad mandate, you took the decision that Chris should be eliminated, not so? There's nothing wrong with it, I'm just trying to establish if that is the position.

MR GUSHU: I could say so, Chair, this is how I perceived the matter, specifically what was going on in Ermelo and under the command that I had been given, it was all under the same order, I did not do it just because I chose to. If I was just doing it, my commanders would not have agreed with what I was doing even from the beginning.

MR HATTINGH: The order that you are referring to, was that a single order that you received right at the outset, or did you receive several orders on different occasions?

MR GUSHU: I got one instruction, this is the instruction that I was acting under, under the circumstances that we were living under.

MR HATTINGH: And did you also kill Jwi Zwane in terms of that one and only instruction?

MR GUSHU: Correct.

MR HATTINGH: Who gave you that single instruction?

MR GUSHU: I'm going to repeat this answer, Javu Mkhwanazi gave me the one and only instruction.

MR HATTINGH: But a few minutes ago you said you received instructions from a Javu Sithole, if my memory serves me right?

MR GUSHU: There is no such.

MR HATTINGH: You did mention the name Sithole, was it a mistake?

MR GUSHU: I'm sure he heard Mr Black talking about Sithole, all along I've been talking about Mkhwanazi, not Sithole.

CHAIRPERSON: Take my word for it, the word Sithole came out of your mouth, now, about five minutes ago. Was that a mistake or not?

MR GUSHU: It must have been a mistake. I don't remember saying so though.

CHAIRPERSON: Did you ever get any instructions at all from Javu, instructions to do anything?

MR GUSHU: Everything I did, I was doing under Javu Mkhwanazi's instructions.

CHAIRPERSON: You always met with Javu Mkhwanazi and discussed issues about this situation you've been talking about, not so?

MR GUSHU: Correct, sir.

ADV SANDI: I think, Mr Gushu, you need to, want to listen very carefully to questions. The chairman has advised you on quite a number of occasions to listen to questions carefully and only answer what is required of you and not to give long explanations before answering questions. Simply answer the questions.

MR HATTINGH: You received a single open or pretty open, as you stated it, instruction from Mr Javu Mkhwanazi. When did you receive this instruction?

MR GUSHU: After I had been trained in Nelspruit.

MR HATTINGH: In your statement, one cannot really deduct what the date thereof was or the year, in paragraph 18 on page 30, you made mention of Dex was buried in 1989?

MR GUSHU: That is about Cape Town.

MR HATTINGH: How long after he was killed, did you come to Ermelo, or Secunda for that matter?

MR GUSHU: After Dex's funeral, I was arrested in Transkei and I was released on the 26th of June 1989. After I was released from prison, I went home, I found my mother sick, I left for Port Elizabeth. When I came back from Port Elizabeth in 1990, I met with Zwendulene, he is the one who was working at (Indistinct), he's the one that we left home with. We went to the Transvaal because I wanted to be able to skip the country to get training, proper training outside.

MR HATTINGH: Would that have been early 1990?

MR GUSHU: Yes, correct.

MR HATTINGH: How soon after your arrival in the Secunda/ Ermelo area did you meet with Mr Mabena and came in contact with Mr Javu Mkhwanazi?

MR GUSHU: When I arrived here, I didn't spend much time at (Indistinct), because even there I was residing there unlawfully at the hostel, but I realised that if I stayed there at the hostel, I'd be arrested. I decided to leave, so that to get what I wanted I must go and look for the UDF offices or Cosatu offices so that I can meet with people who would help me with what I wanted.

MR HATTINGH: Mr Gushu, I don't want to waste time and I'm really not trying to catch you out on anything, all I want to know is, how soon after your arrival in this area did you meet with the two people, the two mentioned people?

MR GUSHU: I won't be able to say, because at that time I was not actually thinking that one day I'll be arrested so that I can know how soon was it that I met with these two people, therefore it will be difficult for me to speculate about time.

MR HATTINGH: Can you give an indication whether it was still in 1990 when you met with them, later that year, you came to Secunda area early 1990?

MR GUSHU: Yes, it was 1990.

MR HATTINGH: Was it during your first meeting with Mr Javu Mkhwanazi that he gave you your open-ended instruction to stabilise the area?

MR GUSHU: I didn't meet Javu Mkhwanazi at Secunda, I met him in Nelspruit.

MR HATTINGH: Was it when you first met him that he gave you that instruction, or was it only later on?

MR GUSHU: He trained me. After he had trained me, he told me what my job was. That was the first time that I had come across with him.

MR HATTINGH: When he gave you that instruction, was that still in 1990?

MR GUSHU: Yes, it was in 1990.

MR HATTINGH: When Mr Javu Mkhwanazi gave you that instruction, did he tell you in so many words, "Go and kill Jwi Zwane"?

MR GUSHU: He told me about the Black Cats who were intimidating people in Ermelo. It was my job to find out who the leaders of the Black Cats were. The instruction was that the Black Cats were being problematic, especially the leaders. According to my knowledge, Zwane was the leader of the Black Cats.

MR HATTINGH: Mr Javu Mkhwanazi did not mention the name of Jwi Zwane to you as a person to be killed, is that correct?

MR GUSHU: He did.

MR HATTINGH: What did he say to you about Jwi Zwane?

MR GUSHU: He told me that he was the leader of the Black Cats and that he was problematic, together with Chris Ngwenya.

MR HATTINGH: Did Mr Mkhwanazi then tell you, "Go and kill Jwi Zwane"?

MR GUSHU: Yes.

MR HATTINGH: And at the same time did he tell you you could go and kill Chris Ngwenya?

MR GUSHU: Yes.

CHAIRPERSON: Did he mention Chris's name?

MR GUSHU: Chair, if I'm told to fight against the leaders of the Black Cats ...(intervention).

CHAIRPERSON: Would you, I'm asking you a simple question, did he mention Chris's name when he gave you the instruction to kill?

MR GUSHU: No, Chair, but Chris was part of the Black Cats.

CHAIRPERSON: We know that, that's why I'm going to give you another warning, listen to the question nicely, answer the question, because at the end of the day, that advocate is going to argue that you are not telling the truth, because of things like this. Understand? So listen to his questions and answer properly.

MR HATTINGH: Mr Gushu, I would like to clarify it now. Some time during 1990 you received a single open-ended instruction from Mr Javu Mkhwanazi, is that correct?

MR GUSHU: Correct.

MR HATTINGH: When - at the time you received this instruction, did Mr Mkhwanazi tell you to kill people and gave you the names of the people you were to kill?

MR GUSHU: I don't know how to answer this question, because, as I have said, under those circumstances, every member of the Black Cat, or the instruction was open to fight against every member of the Black Cat. I did not see the need to go and get an instruction to kill Chris and then come back, go and get an instruction to kill another person.

CHAIRPERSON: Did he tell you you must kill Zwane?

MR GUSHU: Yes. He said, what he said was that I should sort out the chaos in Ermelo. I had to kill Jwi Zwane, it was obvious that I should kill Ngwenya if I had killed Zwane. It means, the instruction was such that I had to kill members of the Black Cat.

MR HATTINGH: I'm asking what was said to you, was Zwane's name mentioned, yes or no?

MR GUSHU: The name that came through to sort out, or Jwi Zwane's name was mentioned. 

MR HATTINGH: Was there any other name mentioned?

MR GUSHU: No, Chair.

MR HATTINGH: So all the other crimes that you committed was in furtherance of your general mandate, is that correct, to sort out the area?

MR GUSHU: I was following that same command, Chair.

CHAIRPERSON: Just to get further clarity on this. Mr Gushu, what would happen to a member of the Black Cats whose name had not been mentioned to you, according to this conversation you had with Mkhwanazi, what was the position with such people who were members of the Black Cats but their names had not been mentioned to you?

MR GUSHU: Chair, as the instruction that I was given was open, I'm sure that there are people here who are going to testify as applicants that they had been instructed by myself to kill members of Black Cat. The instruction was such that I should sort out the situation in the area as people were dying daily. Anybody who was an obstacle, I had to remove. That is all under the same instruction, I could not separate certain issues like I have to do here now.

CHAIRPERSON: Are you saying that such people would have to be killed as well, yes or no?

MR GUSHU: Yes, all those people who were part in killing the ANC people.

CHAIRPERSON: And those people were Black Cats, according to your evidence?

MR GUSHU: Correct, Chair.

MR HATTINGH: Thank you. Were you aware that during July 1990, that there was a special Committee made up of John Mndebele, Nicolaas Zwane, Javu Mkhwanazi and Psiphoselaas Nkonyane?

MR GUSHU: I don't know about that.

MR HATTINGH: Do you know, or did you know at the time, Psiphoselaas Nkonyane?

MR GUSHU: I knew all those people that you've mentioned, I knew them as comrades.

MR HATTINGH: Did you meet regularly with them?

MR GUSHU: I would meet them in the streets.

MR HATTINGH: Mr John Mndebele?

MR GUSHU: The same.

MR HATTINGH: Did he know you very well?

MR GUSHU: I would not be able to say that he knew me well at that time, but I know now that he knows me.

MR HATTINGH: Just approximately, on how many occasions did you meet with Mr John Mndebele prior to your arrest in July 1992?

MR GUSHU: I don't remember that I met him and we spoke, I would just see him in the streets. Maybe I'd go to his shop and I would meet him.

MR HATTINGH: Did you know where his shop was?

MR GUSHU: Yes, I knew.

MR HATTINGH: Did you on many occasions see him in his shop?

MR GUSHU: I would go to the shop to buy, not to John, to go to John.

MR HATTINGH: Did you see him at the shop?

MR GUSHU: Sometimes I would see him, but not all the time.

MR BLACK: Can I object to this line of questioning on the basis of relevance, Mr Chairman? Mr Mndebele has testified he knew who Mr Gushu was, he never gave Mr Gushu any instructions with regard to any violent activities, and that was never disputed. As it pleases the Chair.

MR HATTINGH: Mr Chairman, Mr Mndebele in fact testified that he once saw or met the applicant in the street, and that's the only contact that he had with this applicant, but you ...(intervention).

CHAIRPERSON: So?

MR HATTINGH: ...but you will remember the circumstances under which the incident of Jwi Zwane took place at the shop of Mr Mndebele and why this applicant actually went for Zwane and killed him, because he believed that the life of Mr Mndebele was at stake. Did he not ...(intervention).

CHAIRPERSON: Where is that point getting?

MR HATTINGH: It's getting us towards the point that once again the allegation that the act was committed with a political motive becomes a bit hazed and that perhaps there was another reason why this applicant on that day suddenly decided well it's time to kill Zwane because he is perhaps a threat to Mr Mndebele.

CHAIRPERSON: I will allow further questioning, but I don't follow the reasoning behind it and I'm going to have to stop you if necessary. Carry on.

MR HATTINGH: Thank you, Mr Chairman. Did you ever speak to Mr Mndebele?

MR GUSHU: No.

MR HATTINGH: Did you ever receive instructions from Mr Mndebele in any way?

MR GUSHU: I don't remember a single time.

CHAIRPERSON: Mr Mndebele never alleged that, did he? Did Mr Mndebele say that he gave him instructions?

MR HATTINGH: No, he didn't.

CHAIRPERSON: Then why the question? Neither this witness, nor Mr Mndebele made that allegation, so what gives rises to the question?

MR HATTINGH: I'll accept it. What instructions, what other instructions did you get from what other people?

MR GUSHU: Instructions I was given by other people was from the self defence unit members that I had trained, because they were the ones who stayed in the townships who knew well what was going on, they then would tell me what was going on in the township, and according to that information, I would act.

MR HATTINGH: In your application at page 25 of the bundle, you say:-

&#9;&#9;"I received my orders through dead letter boxes."

What does that mean, and from whom did you receive instructions in this manner?

MR GUSHU: Except from the firearms that I got from the dead letter boxes, I don't know, it is the instructions concerning the firearms that I would get from dead letter boxes. That I got from Javu Mkhwanazi.

MR HATTINGH: Did you get any instruction to kill a person in this manner?

MR GUSHU: No.

MR HATTINGH: I would wish to put it to you that Mr Elias Zwane, the brother of the deceased, Jwi Zwane, instructed me and he says that as he and his deceased brother were in business in competition with Mr Mndebele, he believes that Mr Mndebele gave the instruction that Jwi Zwane was to be killed?

MR GUSHU: I dispute that. I have never spoken to Joe Mndebele. I would just greet when I see him. It is Javu who I spoke to concerning certain matters. It would be dangerous that such information more than two people knew about, we had to be very careful, such information had to be known just between two people.

MR HATTINGH: Did you see Mr Mndebele at his shop when Jwi Zwane was killed, shortly thereafter?

MR GUSHU: I did say that I went into the shop to see if he was there, and he was not there.

MR HATTINGH: Did you see Mr Mndebele in the area of the shooting shortly after the shooting where Zwane was killed?

MR GUSHU: I did not see him.

MR HATTINGH: If you were afraid that Zwane was about to kill Mr Mndebele and you realised that he was not in the shop, why was it still necessary to kill Zwane?

MR GUSHU: I have said that I was given an instruction.

MR HATTINGH: Did you know Mr Zwane before he was killed?

MR GUSHU: Yes, I did, because I did stay in Ermelo for a while.

MR HATTINGH: You received your instruction to kill Mr Zwane some time during 1990, is that correct?

MR GUSHU: Correct, Chair. As I have said, during those times, those were terrible times in Ermelo in 1990, these people were escorted by the police all the time, it was difficult to find them on their own. It was by luck that I found him standing in front of Joe's shop.

MR HATTINGH: But that was also the time when you injured, shot at and injured three other people?

MR GUSHU: I was shooting (indistinct), I was not shooting those people.

MR HATTINGH: If you could just explain, you received your instruction to kill Jwi Zwane in 1990, you only killed him on the 28th of July 1991, could you explain this long period that ...(intervention).

CHAIRPERSON: I'm sorry, Mr Hattingh, if I may interpose there, in the interests of time, hasn't this witness told us that it was not always easy to have access to Mr Zwane, he was being escorted all the time?

MR HATTINGH: Perhaps I can clear up this problem. Is it correct that for a period of more than seven months, seven, eight months you tried to get hold of Mr Zwane to get him on his own to kill him?

MR GUSHU: I wanted him, even if I had found him with other Black Cat members, it would have been good, but it was difficult to find him, I did not want to kill him whilst he was escorted by the police in whose company he was in most of the time.

MR HATTINGH: You never got any specific order where it was mentioned that you had to kill Chris Ngwenya, is that correct?

CHAIRPERSON: He said so on several occasions already.

MR HATTINGH: What made you kill Chris Ngwenya on the 12th of April 1992, approximately nine months after the death of Jwi Zwane?

MR GUSHU: It was because it was difficult to get hold of him, Chair.

MR HATTINGH: The victim, Thembisile Nkambule, will testify that, different to your testimony that Chris Ngwenya was in the middle of a group of three, that Chris Ngwenya was actually on the side of the group and that Lindiwe Nkosi was walking in the middle, is that correct?

MR GUSHU: I dispute that. I was there on that day, Chris Ngwenya was between the two girls. If Chris was at the side, those girls would not have been shot by mistake.

MR HATTINGH: She will further testify that after Chris Ngwenya had been shot and killed, the shooting continued and she was in fact, someone ran after her and shot at her after Chris Ngwenya had already been killed?

MR GUSHU: I don't know anything about that.

CHAIRPERSON: Was she injured?

MR HATTINGH: She was in fact injured, shot in the leg.

CHAIRPERSON: What part of the leg?

MR HATTINGH: My instructions are high up, on her upper leg.

CHAIRPERSON: On her thigh?

MR HATTINGH: On her thigh.

CHAIRPERSON: Front side or back?

MR HATTINGH: Mr Chairman, at this stage I can't really say, I need the instructions. I believe from the back, but I would rather not take it further at this stage. And the same goes for Lindiwe Nkosi, that she was also shot at and someone ran after her after Chris Ngwenya was already killed?

MR GUSHU: I think that the person who ran off is the one who was saved from the situation. Could the speaker please repeat the answer? According to my knowledge, the person who was saved was the person who ran away. The others did not have a chance to run away, especially the girl what was standing up forward than the others. The one that was close to us, closer to us, is the one who - the one that was closer to us is the one who was saved.

MR HATTINGH: You already testified that none of the two women had, as far as you know, at the time had any connections with any political parties or supporters of any political movement, is that correct?

MR GUSHU: The knowledge I had was such that the one was the girlfriend, Chris's girlfriend, and a member of the Womens League in the IFP, I think it's also in the documents here.

MR HATTINGH: I'll have a look at that and come back later if necessary. It will be the evidence of Thembisile Nkambule that she had no political affiliation or support of any political movement, and in the circumstances there was absolutely no reason for her to be shot by you or your partner?

MR GUSHU: As I have already said, it was not my intention, together with the person I was with, to shoot these girls. These girls got shot because Chris is well trained, it would have been difficult to ask these girls to get away whilst we shoot Chris. We then decided to shoot everything that was in front of us, because we were scared that our lives would be in jeopardy because of Chris.

MR HATTINGH: Did Chris shoot back?

MR GUSHU: We would have never given him that chance, even to take out that weapon if he had it with him.

MR HATTINGH: But having done that, why was it then necessary to continue shooting and shoot at the women as well?

MR GUSHU: I was scared of Chris, according to the knowledge I had, I could never be sure that he had died. Maybe they were using herbs. It is understood that these people were actually using a certain traditional herb called indelezi(?), because even if you tried to shoot at them, you won't be successful sometimes. 

MR HATTINGH: Did you see Chris fall after he was shot?

MR GUSHU: Yes I did, because I was shooting at him.

MR HATTINGH: While you were shooting at Chris, can you just indicate, give some indication as to in what directions the women were running or what happened to the women while you were shooting at Chris?

MR GUSHU: We were fighting, it was difficult to notice such, I had to do and finish what I was there to do, so that I run away so that I don't get arrested.

MR HATTINGH: Did you shoot in the direction of the women?

MR GUSHU: I was shooting at all of them, everybody that was with Chris and Chris. I was not the only one who was shooting, it was two of us. It is difficult to know who was killed by whom. I do, however, admit that I caused these people to be injured and to lose their lives, I do admit that. 

CHAIRPERSON: Sorry, Mr Hattingh. Mr Gushu, I know this did not happen. What would have happened if these women had simply sat down on the ground and not run away, would you still have shot them?

MR GUSHU: I would not have, Chair. Even if they were walking behind Chris, I would have just shot at Chris and not at those girls. I was not fighting with those ladies. I don't remember a single time when it was said that a female is a problem in Ermelo, except for the members of the Black Cats. It is only the members of the Black Cats that were problematic.

MR HATTINGH: Were there any women members of the Black Cats?

MR GUSHU: Because they had followers, I would say that they had female members.

MR HATTINGH: But you did not consider the two women accompanying Chris Ngwenya to be targets for your work?

MR GUSHU: My target was Chris, they were not my targets.

MR HATTINGH: With regard to the arms that they used during all the incidents, were you supplied with an AK-47 and/or any other arms at the time of your training in Nelspruit?

MR GUSHU: As I've said, Chair, I got firearms with information I got from the DLB's, there is no weapon I brought from Nelspruit.

MR HATTINGH: Did you ever receive direct instructions to kill, direct instructions from Javu Mkhwanazi to kill Advice Gwala?

MR GUSHU: I tried to explain, sir, that the instruction that I was given was open, that I should sort out the situation in Secunda, Ermelo, Darville(?) and Piet Retief. To me everything I did, I did under those instructions, I was obeying instructions given to me by my commander.

MR HATTINGH: Mr Gushu, we've heard this answer on many occasions, would you please just answer my question?

MR GUSHU: I would say yes, it was part of the whole thing, even though he did not stipulate that I should go and kill Mr Gwala, but the instruction was so open such that it gave me the right to go and sort things out as I saw accordingly.

MR HATTINGH: Mr Mkhwanazi never mentioned the name Advice Gwala to you?

CHAIRPERSON: That's what he says. We accept it.

MR HATTINGH: If that was the position why in paragraph 29 on page 32 you made a statement which you confirmed to be correct and you said:-

&#9;&#9;"I received instructions from Javu Mkhwanazi to kill Advice Gwala"?

MR GUSHU: It is because the instruction that I was given was open, I did not see, as I already said, that each incident that I was involved in or that I have come here to ask for amnesty, I should go back and ask him.

MR HATTINGH: So what you say is, paragraph 29, where it carries on and says:-

&#9;&#9;"I was also instructed to go to Breyten Mines and to confiscate arms and ammunition",

that is not correct, that's just sort of part of an open-ended instruction that you received two years previously?

CHAIRPERSON: Why is it not correct?

MR HATTINGH: The applicant just told us that he received a single instruction and acted on his own without further specific instructions.

CHAIRPERSON: I think it ought to be obvious now that he's relying on what he says was an open mandate which gave him ultimate discretion to sort out what they perceived as problems in the various districts, and to do it in the way that he deemed fit. Is that not so? He's constantly said that the only name that was mentioned was Zwane, together with a broad instruction that he, as a soldier, must sort out the problems that they were experiencing in the various districts, and he has used his discretion, he says, in doing so.

MR HATTINGH: Thank you, Mr Chairman, I'll proceed. If you'll just bear with me for one moment, I just want to quickly page to where I still need to cross-examine on. With regard to the death of Chris Ngwenya, were you aware of the fact that on the Saturday prior to the killing of Mr Ngwenya on the Sunday, that Mr John Mndebele laid a charge of assault with the police against Chris Ngwenya?

MR GUSHU: I won't be able to answer that, I would not be able to answer it.

CHAIRPERSON: But were you aware of it, did you know that he laid a charge or not?

MR GUSHU: It's difficult for me to answer, Chair, because I did not, I've never spoke to Ngwenya, I would just greet like I would greet anybody I meet in the street, I can't answer that, I had no knowledge as to what was going on at his home or his life.

MR HATTINGH: With regard to the killing of Advice Gwala, the mother of Advice Gwala is present and although you've explained or admitted to killing Advice Gwala, very little of the details of that incident has come to light, and I've received instructions to request, and with the permission of the Committee, that you give us a fuller picture of the incident, what occurred there, because I believe the children, the two children, as well as the wife of Mr Gwala, were involved in this incident?

MR GUSHU: Mr Chair, can I go ahead? I was standing underneath a pole, I was standing to a pole next to a school on the street going up to his house. As I was standing there, I could see that Gwala's car was in the yard. So what happened is that his wife got out of the house to put some things into the car, I'm not sure what things, and then the wife got out with the children to put them in the car. After that, she went back into the house. Then Gwala got out of the house. That is when I went to shoot Gwala.

MR HATTINGH: Did you shoot Mr Gwala in front of his two minor children?

MR GUSHU: Yes, I did shoot in front of the children, everything that happened they saw, even though they were inside the car.

MR HATTINGH: Was Mr Gwala, at that moment when you shot him, busy opening the door of the car?

MR GUSHU: No, he was going towards the car, about to open the door, that's when I shot at him.

MR HATTINGH: Did Mr Gwala ever get into the car?

MR GUSHU: I did not even let him open the door, or even tough the door, he did not get inside the car, it was only the children that were in the car.

MR HATTINGH: But when you shot at Mr Gwala, is it correct that you also hit the car with some of the bullets?

MR GUSHU: I would not know, Mr Chair, even if you said it happened, I wouldn't dispute it.

MR HATTINGH: Do you know whether the children got hurt in the incident?

MR GUSHU: I don't know, because I ran off. I did not stay to see what had happened, but I made sure that what I had gone there to do was accomplished.

MR HATTINGH: Mr Chairman, if you'll just bear with me?

CHAIRPERSON: Are you almost finished?

MR HATTINGH: I'm almost finished, I'm just looking for last issues. Thank you.

CHAIRPERSON: I thought you'd run out of it.

MR HATTINGH: Thank you, Mr Chairman. I've also been instructed, and I've been reminded by my attorney that the mother of Advice Gwala would like to hear the reasons for your killing Advice Gwala from your own mouth, and if you've already told this Committee, I've been asked to ask you again to just repeat it.

MR GUSHU: I said that Gwala, according to the knowledge I had or received, Gwala was a member of Inkatha, also a member of AWUSA, AWUSA that was totally against Cosatu, he was an obstacle in the liberation of the people.

MR HATTINGH: Who pointed Gwala out to you?

MR GUSHU: I had knowledge as there was a self defence unit there, I knew where he stayed, I had to find him at his house, I knew just his house where he stayed, but I did not know him, but I knew of his actions.

MR HATTINGH: As far as Jwi Zwane and Chris Ngwenya is concerned, who pointed them out to you?

MR GUSHU: Bongani Khaba showed me those people, pointed them out.

CHAIRPERSON: When you say, Mr Gushu, you know where Mr Gwala stayed, do you mean to say that you knew his face, did you know how he looked like?

MR GUSHU: I did not know him facially, but I knew the registration number of his car and I knew his house. I also knew that there was no other man who was staying at his house but himself, no relatives were staying at his house.

CHAIRPERSON: What if his car on that day was being driven by his driver or even a friend?

MR GUSHU: Unfortunately, Mr Chair, he was driving the car at that time, on that day.

CHAIRPERSON: The point is, how sure were you you were going to shoot the proper person, that is the issue?

MR GUSHU: Chair, according to my knowledge, nobody else used Gwala's car but himself. I did not think at all that his car would be driven by somebody else. I don't know how the Chair sees that.

CHAIRPERSON: Had you seen him driving that car before?

MR GUSHU: Yes, even though I was not, I did not come close to the car, I just saw him, the car was moving, I have seen him driving that car, even though the car was in motion. I wanted to find him and that car. I had an idea how tall he was and in what manner he dressed, those were the things that were important to me at that time in order to find him.

CHAIRPERSON: So you could see his face? We're not talking about his height and what kind of clothes he was wearing, couldn't you see his face whilst driving his car during those occasions?

MR GUSHU: I saw his face, but it's not the same as I'm sitting here and you're sitting there and I can see your face, Chair.

CHAIRPERSON: Any other questions, Mr Hattingh?

MR HATTINGH: Thank you, Mr Chairman. You never worked during this period, never had an income during this period, 1990 to July 1992, is that correct?

MR GUSHU: Correct.

MR HATTINGH: How did you survive?

MR GUSHU: I was selling dagga.

CHAIRPERSON: I hope you're not going to dispute that.

MR HATTINGH: Thank you, Mr Chairman, no further questions.

NO FURTHER QUESTIONS BY MR HATTINGH

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: Mr Chairman, I have no questions.

NO CROSS-EXAMINATION BY MR MAPOMA

CHAIRPERSON: Mr Black, have you got any questions?

MR BLACK: There are, not so much as questions, there is something which the applicant would like to say, and there are just one or two questions for clarification. So...

CHAIRPERSON: It's issues arising out of cross-examination?

MR BLACK: Yes, issues which I need to clarify have arisen out of, will arise out of cross-examination.

CHAIRPERSON: Proceed then.

MR BLACK: All right.

RE-EXAMINATION BY MR BLACK: I just want you to look at this document, which was handed up to us yesterday, Mr Gushu, and it purports to be the police docket. I just want to look at two pages, or three pages, but look at the document referred to as A44, are those photocopies of your membership cards and ID?

MR GUSHU: Yes.

MR BLACK: Are those the documents which the police confiscated at your home?

MR GUSHU: Correct.

MR BLACK: And that was at the time of your arrest?

MR GUSHU: That is so, Chair.

MR BLACK: So it was well before you had made any confessions and pointings out?

MR GUSHU: Yes, that is so, Chair.

CHAIRPERSON: Is that all?

MR BLACK: No. Mr Chair, may I, what the applicant would also like to, I just want to double-check on my re-examination, could I, I see it's lunchtime now.

CHAIRPERSON: We'll carry on till he's finished.

MR BLACK: Okay.

CHAIRPERSON: I'm not taking any chances.

MR BLACK: All right. Now, if you could, where's this thing now, I made a note of it ...(intervention).

CHAIRPERSON: I hope, Mr Black, you're not going to tell us about him having fully paid the subscriptions for 1992?

MR BLACK: I most certainly will have to take instructions on that one. 

ADV BOSMAN: You did indicate earlier on that you wanted to clear up something around the name of Javu Sithole. Is that not what you're trying to find?

MR BLACK: I think that has been cleared up by the advocate himself, so I don't think that we need dwell on that.

CHAIRPERSON: So is there anything else you want to clear?

MR BLACK: There's not anything I wish to clear up, but I would, with the permission of the Committee, the applicant has requested that he would like to indicate to the Committee, it really relates to the sufferings of him and his family as a result of these activities, and he'd like to say something to the victims. 

CHAIRPERSON: We'll give him that opportunity when necessary.

NO FURTHER QUESTIONS BY MR BLACK

ADV BOSMAN: Mr Gushu, I just want clarity on the question of the weapons with which you armed the SDU's. I'll put it in two questions, to make it easier. From which sources did you obtain weapons to arm the SDU's?

MR GUSHU: Chairperson, as the self defence units are trained with the residents of these areas, they knew who I would get weapons from to buy for them, the members of the self defence units.

ADV BOSMAN: (Indistinct) referring to weapons which were bought. I remember you making mention of weapons you received through dead letter boxes, if I'd heard you correctly. So where generally, if there were weapons that were bought, were there any other sources of obtaining weapons from? I don't mean the particular people, but generally how did you obtain weapons? You bought weapons, and apart from that, were you given weapons by your organisation, or were they only weapons that were bought?

MR GUSHU: As I have already said, Lady Chair, Mkhwanazi is the person who would find firearms for me, like AK-47 and Makarovs. I don't know where he got them from. I would get a report from him, we'd phone each other and he would tell me that there's a dead letter box at a certain place and I must go there, and when I went to the dead letter box, I would find what I was looking for.

ADV BOSMAN: Am I correct in saying that some weapons were obtained through Mr Mkhwanazi and other weapons were bought, those were your two sources of supply, is that correct?

MR GUSHU: You are correct.

ADV BOSMAN: My last question is, approximately, I know that it wouldn't be possible for you to give an exact number, but approximately how many weapons were received through Mr Mkhwanazi and how many weapons were bought?

MR GUSHU: I got one AK-47 from Mkhwanazi and a Makarov. It would be difficult to say how many weapons I bought. We'd buy some and would give them to the Comrades. Sometimes the Comrades would get arrested and the weapons would be confiscated, and we'd buy some more, therefore it's difficult to say exactly how many weapons I bought.

ADV BOSMAN: The AK-47 and the makarov, were those received through dead letter boxes, are those the ones you're referring to?

MR GUSHU: Correct, Chair.

ADV BOSMAN: Thank you, Chairman.

ADV SANDI: Just on this issue of source of weapons, how many times did you have to buy weapons?

MR GUSHU: Most of this time, Chair, as most of our, or some of our weapons were confiscated. It's difficult for me to say how many times, because I would use the money I would get from the dagga I sold sometimes to get weapons.

ADV SANDI: Would one be correct to understand you to say that one of the sources of weapons was Mkhwanazi through the dead letter boxes, and the other source which was, you must correct me if I'm wrong, which was a main source, was through buying those weapons?

MR GUSHU: Yes, sometimes an Inkatha member, whoever it was, who was associated with the National Party, if there was a way for us to get weapons from an Inkatha member who was associated with the NP, we would get those weapons.

ADV SANDI: How? To use force against that Inkatha person, or to persuade him, how would you do that, how would you get weapons from Inkatha people to use force? No other questions, Mr Chairman.

CHAIRPERSON: Mr Gushu, your advocate has indicated that you want to say certain things. I'm going to allow you to do so before I ask you questions. What do you want to tell us?

MR GUSHU: I would like to let this Committee know that, as I have made these applications for amnesty, everything I have applied for amnesty, I did those things as a member of the ANC, I was obeying orders, I was obeying orders of the organisation, this is why we are able to be here today. The ANC has got a lot of supporters today, everything can be done properly now, meaning most of the missions were accomplished. As a person who was a member of the organisation, I was obliged by all means to further the objectives of the organisation. 

&#9;Therefore, I would like the chairperson to know that even in Cape Town, as I was in the struggle, I was shot at and even somewhere else in Breyten(?), I was also shot at, and even in Cape Town. After I was shot at, I was arrested and my brother, Mphimelo Lokwaka, passed away. When I was released from jail, I didn't have a house, the police took my house because they found petrol bombs and some of the things in the house. Therefore, my house was destroyed.

&#9;I want to tell the Chairperson that he must also try and make some means to compensate me, because I also suffered a loss and I got injured. 

&#9;I would end there. 

&#9;And the fact that I apologise to the victims and the people who lost their children because of my actions. All what I did, I was doing that because of the situation that was prevailing at the time because of the apartheid laws. Now that we've got this Democratic Government, I'll never do such things again.

&#9;Thank you.

CHAIRPERSON: Mr Gushu, I appreciate what you say, but there are certain issues that concern me and I want to raise it with you. Many atrocities have been committed in this country because of apartheid, and as you say that we've crossed the breach and we know, or we're not supposed to have apartheid with us anymore. The purpose of this type of hearing is to reconcile and create this one nation that we talk about, both black and white. I detect a bit of bitterness in you. Are you able to cross that bitterness and live in this one nation?

MR GUSHU: Yes, I'll try as much as I can to live with people the right way.

CHAIRPERSON: You see, I want to refer you to one or two examples. There are a few people in this country who prefer to be referred to as boers, but not all, yet you refer to certain people as boers. Are you able to rectify that, or would you carry that bitterness with you?

MR GUSHU: I would like to apologise about that. I didn't know how to address this, but if this Commission didn't like that, I would like to apologise.

CHAIRPERSON: One must also remember that while the apartheid regime was being run by a particular group of people, they were well assisted by other people, and that created a division even within our own black people. It seems to us that those divisions still play itself out today, in particular because of the problems we experienced in these areas in 1992. Are we able to cross that kind of bridge and try to establish this one nation?

MR GUSHU: I'm prepared to try, I'm prepared to try that, I would like us to be one nation.

CHAIRPERSON: Well isn't it a question of not just trying, but making a concerted effort by all?

MR GUSHU: I want to say that I'm going to do that, because now the people have rights, even myself, I do have a right, I do have a right, I don't think I'll ever violate people's rights again, because there's no-one who's doing that now, therefore I would like to be one of those people who are looking forward to united South Africa where there'll be love, love and kindness among all the South Africans.

CHAIRPERSON: Now, the next of kin, or the victims of your actions, have you been able, to date, to speak to them?

MR GUSHU: If the chairperson would grant me the opportunity to do so, I'll be very happy.

CHAIRPERSON: Have you been able to do so up to today?

MR GUSHU: No, Chairperson, my problem is I'm still in prison.

CHAIRPERSON: Are you willing to meet them to make your peace with them and they with you?

MR GUSHU: I am very much prepared, Chairperson.

CHAIRPERSON: You say you were born in the Eastern Cape?

MR GUSHU: Yes, Chairperson.

CHAIRPERSON: When last have you been there?

MR GUSHU: It was in 1990, Chairperson.

CHAIRPERSON: And when you get out of jail, whenever that may be, do you intend to go back there?

MR GUSHU: Yes, I'm prepared to go home, Chairperson, but it's not a good thing for me to go home without money. I do have a proof that this Government of National Unity will try to find me a job, so that even if I go home, I'll be able to do something for my children and do all those things that I couldn't do all these years.

CHAIRPERSON: Well that remains to be seen. And have you come to terms with life?

MR GUSHU: Since this Government of National Unity, I see myself as a changed person healthwise, I am willing to do anything that this present government is expecting from me and obey all the laws.

CHAIRPERSON: About your quest to want to meet victims and next of kin of people who died, we are not in a position to facilitate that, but what can happen is that your representative, or normally what happens, representatives facilitate that kind of meeting, it's happened many times before, and I can only hope that you can do so, so that people in the area can start living like they should. I thank you for your attendance. You're excused.

WITNESS EXCUSED

CHAIRPERSON: We'll adjourn to half past two.

COMMITTEE ADJOURNS

