Amnesty Hearings — Ermelo — 1998-07-22

MR HATTINGH: I am suggesting that if the reason, the aim of the armed robberies was in fact what this applicant try us to believe that it was, then one would have expected more armed robberies for that purpose.

CHAIRPERSON: Who is to say there weren't, but he wasn't involved?

MR HATTINGH: We don't know, but my question to this applicant would be in the situation where he was instructed to be involved with the SDU's in the whole area, Piet Retief, Ermelo, wherever Secunda, the picture painted by this applicant is in fact that he was tremendously, to a large extent involved with the SDU's.
	He had sort of an open ended instruction from the ANC in the area to do whatever was necessary.

CHAIRPERSON: I think if there were other robberies to provide assistance and he was involved, one could hardly expect him to apply for those too?  Perhaps there were only two robberies that he was involved in.  One never knows.

MR HATTINGH: Mr Chairman, I respectfully submit that we are now getting back to the question of full disclosure and I - what I would like to do is ask the question and if the applicant is not prepared to give an answer, I will accept that.
	I am not going to ask for any details whatsoever, but what I say is I am asking the question with the aim of full disclosure because this is as stated, this is a Black Cat hearing.

CHAIRPERSON: Let me, Mr Gushu, you remember I gave you a warning just now and explained to you that you are not compelled to answer certain questions, do you remember that?

MZWANDILE GUSHU: Yes, I remember.

CHAIRPERSON: Are you prepared to comment or testify about armed robberies that may have taken place during the period with which you may or may not have been associated?
	They are not robberies that form part of your application.

MZWANDILE GUSHU: Not a bit Mr Chairperson, I am not prepared to.

MR HATTINGH: Thank you Mr Chairperson.  Mr Gushu, you made application for two armed robberies for which you have already been convicted and serving sentences in the region of 55 years jail term, is that correct?

MZWANDILE GUSHU: I was sentenced for everything that I had done.  I have made application for these two robberies.

MR HATTINGH: The two robberies that you have made application for amnesty for, are the two robberies for which you were convicted?  Is that correct?

MZWANDILE GUSHU: Correct.

MR HATTINGH: At the time when the criminal trial was held in connection with the murders and the robberies, where you were convicted, the same firm of Attorneys who represented you then, are also representing you today, is that correct?

MZWANDILE GUSHU: No.  Mr Black is representing me now, not Mohammed.

MR HATTINGH: Do you perhaps know which firm of Attorneys is instructing Mr Black then?

MR BLACK: Just to save time, I have put on record already that I am being instructed by you know, Ntuli, Knobel and Spoor of Nelspruit.

CHAIRPERSON: Mr Hattingh, is it of any relevance whether he knows that or not?

MR HATTINGH: Mr Chairman, I was just going to lay a basis for certain documentation I would like to deal with at this stage.  But I am not going to take it any further.
	Mr Gushu, at the time of the criminal trial, there were certain documentation submitted to the Court, namely a confession as well as a document being called a Document of Pointings Out, is that correct?

MZWANDILE GUSHU: I thought I had already said that everything that happened in court, was not according to my will like here in the Commission, as I am permitted to speak and divulge all.

MR HATTINGH: Mr Gushu, if you could just answer the question, we will deal with the details thereof later on.
	If you can just confirm that at the time both these documents were submitted to the Court and accepted, whether rightfully or not, we will deal with later.

MZWANDILE GUSHU: I can't answer that because I do not work with court documents, I am a prisoner.

CHAIRPERSON: Do you remember whether you were forced to or not, there was a document relating to your pointing out certain things that was used in your trial?

MZWANDILE GUSHU: I remember clearly Mr Chairperson, that everything that happened after I was arrested, I was forced to do.  There was not a single thing that happened according to my will.

CHAIRPERSON: Now one of those things that happened during that period, was a document that was produced at your trial and it reflected or purportedly reflected your pointing out certain things.  Do you recall that?

MZWANDILE GUSHU: I don't remember in court pointing out certain things, however, I do remember that I was forced by the police to go and point out the places where these incidents took place.

MR HATTINGH: Perhaps I can assist you.  I am just going to hand to you the two documents.

CHAIRPERSON: I am not too sure what the answer is, are you entitled to use that document if he says it was not voluntarily?

MR HATTINGH: Mr Chairman, I am asking you for direction.  In a normal court, in a criminal trial obviously the State would say that we would wish to submit certain confessions and or other documentation and there would be a trial within a trial, if it is not admitted.
	Now, here we have the position where we act on behalf of certain of the victims, and I would like to get full disclosure from this applicant.  I have to confront him with certain evidence or certain documentation which does form part of the document, the Amnesty Committee's documentation where we obtained these from, if we need to hold a trial within a trial, then so be it.   While we are only going to bring evidence or submit testimony after the applicant has already testified and been cross-examined, my own opinion and which I would like to submit, in the circumstances where we don't have any specific direction within the Act, that I should at least put to this applicant whatever I am going to prove later on.
	If the applicant now says that he is not admitting it, I don't think that I am not allowed to make use of the documents at all during this hearing, but there should be some way of putting them before this Committee and if a trial within a trial is necessary and if I need from my side, to prove these confessions and the pointing out, then I obviously need to call on those witnesses, but at what stage, I don't know.

CHAIRPERSON: Let me put it this way.  Does  it from the face of that document, indicate that the accused was warned of his rights before he made the pointings out?

MR HATTINGH: Mr Chairman, I may just first say that this occurred during July 1992, that is some indication as to what the situation was at the time of the pointings out and the confessions and the sort of (indistinct) that was used at the time, and I am not quite sure at this moment, whether it is confirmed with whatever changed during that time, but ...

CHAIRPERSON: Well, if you want to use it now, you have to comply with the law as it stands now, not so?  Not as it stood then.

MR HATTINGH: Mr Chairman, I would submit no.  I think it is clear that this document was used at a time where it was admissible.

CHAIRPERSON: To use it now, I am not concerned about what happened at the criminal trial.  If you want to put questions to the witness today, based on a particular document, not so?  Now in order to use that document, you must be satisfied that you are entitled to use that document, that it complies with the law.

MR HATTINGH: Mr Chairman, I am satisfied that it in fact complies with the law.

CHAIRPERSON: Was he warned that he was entitled to an Attorney, the assistance of an Attorney before he did that?

MR HATTINGH: If you would bear with me for just one moment, let me just peruse the document.

CHAIRPERSON: Mr Hattingh, why do you want to produce that document?

MR HATTINGH: Mr Chairman, all along my ...

CHAIRPERSON: Does it have anything to do with the contents?

MR HATTINGH: Absolutely yes.