Amnesty Hearings — Ermelo — 1998-07-23

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

MZWANDILE 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?

MZWANDILE 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?

MZWANDILE 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?

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

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

MZWANDILE 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?

MZWANDILE 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?

MZWANDILE 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?

MZWANDILE 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?

MZWANDILE 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?

MZWANDILE 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?

MZWANDILE 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?

MZWANDILE GUSHU: In the Supreme Court?

MR HATTINGH: Ja.

MZWANDILE 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?

MZWANDILE 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?

MZWANDILE 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?

MZWANDILE 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.

MZWANDILE 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?

MZWANDILE GUSHU: Yes, that is so.

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

MZWANDILE 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?

MZWANDILE GUSHU: That is so, Chair.