Amnesty Hearings — Ermelo — 1998-07-22

CHAIRPERSON: The issue of whether the applicant can be questioned on a matter or matters which form the subject matter of another application has arisen.  Section 19.8(b) of the Act states that:
"The confidentiality of information submitted by applicants lapses only when such information is released in respect of the application or when the hearing of that application begins.  From the confidentiality flows the right to privilege in favour of the deponent of such information."
	While we are wary that other interested parties may also have certain rights, from a reading of the Act as a whole, in general, we are of the view that the right to privileged information ranks higher than all other rights which may flow from matters of concern.  In addition, the Act also favours, where necessary, the duty to curtail cross-examination albeit time wise.  But as all of us will understand, unnecessary cross-examination does entail time wasting.  
	Furthermore, in the event of an incident not before us being raised there is the risk of people not represented here today being touched or implicated.  Even those rights require to be protected.  Up to this stage we have not been informed what the actual basis for the opposition will be.  This makes it even more difficult to understand the reasons sought or for seeking to be allowed to cross-examine on issues which are not properly before us.  It has also been argued before us that the first statement forms part of the application and therefore becomes a public document at the time, at the very latest, the first day of hearing and when this document does in fact become open for public scrutiny.  
	The Truth and Reconciliation Commission, as the dominus litis, has chosen to set down for hearing certain incidents that occurred in these parts of the country.  It certainly appears to be categorised by what is commonly or come to be known as the Black Cat cases.  That is neither here nor there.  The applicant is entitled to be protected from being prejudiced in subsequent hearings and therefore we need to take cognisance of the Truth and Reconciliation Commission's decision to split the hearings.  	In order to protect the applicant from being prejudiced, cross-examination relating to those issues that will possibly form the subject matter of future hearings seem to be issues that cannot be allowed.  
	Overall, we are not persuaded that the right to cross-examine the witness on incidents which fall to be the subject of other applications is allowable.  
	We consequently make the following ruling:  
	That the witness cannot be subjected to cross-examination on matters which are still subject to other amnesty applications.

MR SANDI: I agree.

MZWANDILE GUSHU: (s.u.o.)

MR BLACK: (cont)   Thank you, Mr Chairman.  Page thirty five (35) ... (intervention)

CHAIRPERSON: At five past three today you're still leading the witness.

MR BLACK: It's most unfortunate.  Now, I refer to page - I beg your pardon, page thirty two (32).  To speed matters up, may I just confirm again with Mr Gushu.  Mr Gushu, you have signed this document which is placed before you under oath, is that correct?

MZWANDILE GUSHU: That's correct.

MR BLACK: Yes.

MZWANDILE GUSHU: That's correct.

MR BLACK: And in so far as - is this content, to your knowledge, true and correct?

MZWANDILE GUSHU: Everything in this statement was written by me.

MR BLACK: And you confirm this statement?

MZWANDILE GUSHU: Yes, I confirm.  I know everything here.

MR BLACK: Now, we are still dealing a bit with the background, Mr Gushu, to the events leading up to those incidents for which you are seeking amnesty.  If I refer you to page thirty two (32), we had got to the stage of approximately paragraph twenty nine (29) which alleges that Mr Mkhwanazi gave you instructions to kill Advice Gwala, is that correct?

MZWANDILE GUSHU: That's correct.

MR BLACK: He was alleged to be a central member of the IFP?

MZWANDILE GUSHU: According to my knowledge, that is so.

MR BLACK: You also say that you were instructed to go to Bracken Mine and to confiscate arms and ammunition at the Giwi Construction situated near Breyten, is that so?

MZWANDILE GUSHU: That's correct.

MR BLACK: You allege that these weapons which were to be confiscated were actually being used by members of the IFP, Black Cats and Plain Chain gang in order to terrorise the community and to execute members and comrades of the ANC alliance?

MZWANDILE GUSHU: That's correct.

MR BLACK: How did you come to this knowledge?

MZWANDILE GUSHU: I would like to tell you in details about this paragraph twenty nine (29).  As a person who was staying at Mbalendle, Mr Gwala was a member of the IFP.  He was working at Sasol.  There was a problem in Mbalendle caused by the Black Chain gang and they were also supporters of Inkatha.  In 1991 the Black Chain attacked the school children at Mbalendle.  They were given instructions to do so by Mr Gwala.  That's what I heard.
	It was later realised that next to Giwi it's where the training of the Black Chain was taking place and even the arms were kept there.  But my main aim was not to see where they were getting their training, what was more important to me was to get the arms as that was my instructions, because I was instructed to form some defence unit to protect the community.  One of those self-defence units was Mlungisi and Mbokane.  I told them to go and check what was happening there.  
	According to the report that I got from them, I realised that there's some training that is actually taking place there.  But what was more important was to get the arms, the firearms.  The firearms that were to be used when they were attacking the Mandela.  There were two who used to come with firearms.  It was important for us to catch these two boers and get those firearms so that we'd be able to get into that building and get information and be sure at the same time if these people were really training there.  Our aim was to get those firearms.  That's why I had to shoot them.

MR BLACK: Okay, thank you.  Mr Gushu, if I can just clear one matter up.  In your evidence which you've given, you refer to Mr Mbokane as one of the persons who you sent to that area, to that construction site?

MZWANDILE GUSHU: Yes, he's one of the members of the self-defence unit that I trained together with Mlungisi Ngobele.

MR BLACK: Yes.  Now, this Mbokane, he's an applicant and I may refer to him as the third applicant at this hearing, is that so, for amnesty?

MZWANDILE GUSHU: That's correct.  That's correct.

MR BLACK: Now, the incident when you referred to the two boers who were shot, as will appear later on, I put it to you that that is Mr David de Bruyn and Mr Wynand Fourie, is that correct?

MZWANDILE GUSHU: That's correct.

MR BLACK: Was it your intention at all to go there to kill or to shoot anyone?

MZWANDILE GUSHU: That was not my aim.  My aim was to get the firearms in order to arm the self-defence unit when protecting the community, more especially the members of COSATU and ANC.

MR BLACK: But given your military training and your membership and role to be played with the MK, if you were attacked by anyone how would you respond?  When I say attacked, I mean shot at or even physically attacked.

MZWANDILE GUSHU: I defend myself.  I defend myself.  I fight back.

CHAIRPERSON: Mr Gushu, if you say that your prime or your only intention was to obtain arms for whatever reason, how did it come that people were killed?