Amnesty Hearings — Ermelo — 1998-07-22

MR HATTINGH: Mr Chairman, I do not wish to interrupt this proceedings unnecessarily, but I would wish to object to the manner in which the evidence is led and perhaps I can seek assistance from the Chair.  In normal proceedings one would not allow a witness to just follow a prepared witness statement and give his evidence from that statement.  That is in a normal court of law, in normal court proceedings.  I do not know exactly what the status of this particular document is at this stage.  Does it form part of the amnesty application?  It wasn't signed.  It isn't signed as yet.  As we go along it is just read to the witness and he just confirms whatever is said to him.  Until now with the background perhaps it didn't matter that much, but when we're now getting to the gist of the matter and all the incidents, I would appreciate it if we could get some indication or direction from the Chair as to how this witness is to be led, whether he's just going to hear whatever Mr Black is going to read to him from the statement and keep on confirming whatever is said to him.

CHAIRPERSON: Do I understand your query correctly, that you're not exactly sure what status the evidence carries, whether it's sworn evidence or not?

MR HATTINGH: At this stage obviously the witness is sworn in as a witness, but the document that we are dealing with at the moment, the status thereof is not quite clear, whether it forms part of the application, although not signed.  Is it an assistance for the witness to give his evidence today and nothing more than that?  In what manner are we going to deal with all the incidents.  Are we just going to follow this statement being read to this witness and for him to confirm, which is a manner of doing, of giving evidence which I believe is not quite in keeping with normal practice.

CHAIRPERSON: Well, firstly, this is not a normal court.  It's not a court at all.  There's nothing wrong with someone, even in a normal court of law, taking a document in with him, but then there are certain implications.  That document must be disclosed to everybody concerned.  He waives any rights to privilege to that document.  So, as I see things at the moment, this is not a sworn statement, but merely a tool by which the witness is giving his evidence.  It's not a sworn statement.  It's not signed.  That's how far we can take it I suppose.

MR HATTINGH: Thank you.

MR BLACK: I'm still not entirely clear.  I understand that it was also objected to in my sort of reading from the statement and the matter being confirmed under oath, the method of the presentation of the evidence.  I've no difficulty with all due respect, Mr Chairman, about the statement.  The evidence is being given under oath.  Mr Hattingh and to the best of my knowledge, every other interested party here has got copies of these documents.  But I'm not quite sure whether I can just proceed in the same way as I have been.  I'll get to the merits and if necessary, Mr Gushu in his own words can elaborate on the incidents it that's going to make ... (intervention)

CHAIRPERSON: Mr Black, I hope you appreciate the problems that we experience because of the non-signing of that document.  We're virtually in your hands to lead the witness properly.  I hope you do it then and avoid a lot of objections.

MR BLACK: Well, I thought it was agreed to that I could read from this document.  It will be translated for purposes of translation and then put to the witness who will then confirm the translation.  The document can be signed, if necessary.

CHAIRPERSON: Mr Black, we don't have to argue about it.  In your own words, it's subject to any objection.  We've had the objection and therefore you've got to adapt to the objection.  So, you must lead the witness as you think fit within the limits of the objection.  Not so?  Now, let us not argue about the matter.  I'm sure you are able to lead the witness properly.

MR BLACK: Well, I don't propose arguing about the matter, but I thought it was agreed to at the beginning that this is how the evidence can be presented.  I can refer the witness then to a paragraph and ask him to - and I was trying to avoid going paragraph by paragraph.  I don't think there's anything controversial in what I've put.

CHAIRPERSON: Mr Black, you've got my permission to proceed.

MR BLACK: Thank you, Mr Chairman.  Mr Gushu, just refer to page thirty one (31).  Do you see page thirty one (31)?

MZWANDILE GUSHU: Yes.

MR BLACK: Okay.  We got to a situation, if we can go down to paragraph twenty three (23).  You got that?

MZWANDILE GUSHU: Yes.

MR BLACK: Could you just read that paragraph.  Is this the information which you wish to put before the Committee?

MZWANDILE GUSHU: I wrote everything there.  This is what I wrote.

MR BLACK: Okay.  I'll just read it out then.
"In any event, (paragraph twenty three (23)), I wish to state that the said Eric Valla introduced me to Mr J J Mabena.  Mr Mabena was the organiser and chairperson of the ANC in the Secunda area.  At present I understand that Mr Mabena will also be making application for amnesty before this Committee.  The post which he presently holds is the MEC for Environmental and Gaming Affairs in the Province of Mpumalanga.  I indicated to Mr Mabena that I wish to assist in normalising the situation which prevailed in Ermelo, Piet Retief and Secunda area.  At that time the Inkatha Freedom Party, assisted by the South African Police, the gangsters Black Cats and Black Chain were terrorising, killing and harassing members of the community in general and in particular members of the ANC and UDF.  As already stated, my military background and membership of Umkhonto weSizwe had been established and was well-known to the ANC structures."

MZWANDILE GUSHU: That's correct.

MR BLACK: Twenty four (24)
"After I had been introduced to Mr Mabena and after having had my credentials verified, I was taken to Nelspruit by Eric Valla and at Nelspruit I met Jabi Mkhwanazi who then proceeded to put me through a refresher or crash course in the use of certain military weapons.  It soon became apparent to him that I was fully conversant with the weapons and military training so my course only lasted two weeks.  Thereafter I returned to Secunda.  My purpose was to defend members of the community in general, the ANC and UDF/COSATU and SACP comrades."
Is that your evidence?

MZWANDILE GUSHU: That's correct.

MR BLACK: And on page thirty two (32), if you read paragraph twenty five (25) there.  Is this what you were told, that evidence had been put before the Goldstone Commission?

MZWANDILE GUSHU: Yes, that's correct, though I don't have that document at the moment.

MR BLACK: Right.  If we move down to paragraph twenty eight (28).  You say
"After the refresher course in military strategy and use of weapons, I returned to Secunda in order to carry out operations on behalf of the ANC under the direct command and instructions of Jabi Mkhwanazi."

INTERPRETER: Can the speaker please come closer to the mike.

MR BLACK: Right.

MR SANDI: Mr Black, I think there's a problem here.  The interpreters say they cannot hear a thing and I heard one of them saying, "Can the speaker come close to the mike".  I'm not sure which one of you they are referring to.

MR BLACK: Thank you.  I'm sorry, Mr Gushu, for the interruption.

MR HATTINGH: Mr Chairman, from my side, I believe that we are now going to deal with the particular incidents and I would object if this witness is now being led on the basis that he's just following a statement, the status of which is not quite certain at this stage.  My suggestion would be that the witness now starts his own evidence and tell this Committee whatever he wants to in support of his application for amnesty pertaining to those incidents.

CHAIRPERSON: On what basis can't he refer to the document?