Amnesty Hearings — East London — 1999-11-03

MR MGXAJI: In so far as the election activities or campaign by the ANC, in your evidence, you have not at any given moment, testified about Mapipa's involvement, right?

FUNDISELE GULENI: That is correct.

MR MGXAJI: Okay.   Mzwandile Jagu, to whom you attribute almost everything in your application for amnesty, was he known to you as in 1994, March?

FUNDISELE GULENI: Yes.

MR MGXAJI: And you make this Committee believe that he was an MK member?

FUNDISELE GULENI: According to him, yes, he was one.

MR MGXAJI: On page 74 of the Bundle of documents, the ANC Branch Port St Johns says about Mzwandile Jagu - I will read for you
"... Mzwandile Jagu availed in ANC office in 1994, there is not that much I know him, except that he introduced that he is an MK member and such he voluntarily assist ANC in his vehicle."
	Right?

FUNDISELE GULENI: Yes.

MR MGXAJI: Are you a trained MK member?  Whether you were trained inside the country as he have so stated?

FUNDISELE GULENI: I have been trained as a Self Defence Unit member.

MR MGXAJI: You certainly knew MK combatants?  Did you know Mzwandile Jagu as a Commander of any Unit?  I will tell you why I put that question.

FUNDISELE GULENI: I do not know whether he was a Commander or not.

MR MGXAJI: Before I proceed, let me tell you this - Mzwandile made a confession on the 20th of April 1995 before a Magistrate at Elliotdale about this Mapipa incident.   Do you have any knowledge about that?

FUNDISELE GULENI: I don't have any knowledge thereof.

MR MGXAJI: You certainly wouldn't dispute that Mzwandile is the State witness in the High Court case in which you and others are the accused, right?

CHAIRPERSON: Is Mzwandile a State witness did you say?

MR MGXAJI: Yes, in the High Court case.  You certainly would not dispute that?  If you dispute, I tell it, it is so.  What is your answer?

FUNDISELE GULENI: I don't have any knowledge thereof.

MR MGXAJI: Mzwandile further made a statement to the Investigating Officer about this Mapipa incident and that statement is available.  Would you also dispute that?

FUNDISELE GULENI: I would not dispute that.

CHAIRPERSON: Mr Mgxaji, do you intend calling Mzwandile to testify?

MR MGXAJI: In fact, I intend applying to this Committee that Mzwandile Jagu being alive and around, further he being the person to whom the applicant in his testimony, he attributes almost everything as the person who commanded him, I would strongly take this earnest view that the Committee in adjudicating on this application, shall subpoena Mzwandile Jagu for its advantage and for doing justice to the application before this Committee.

CHAIRPERSON: We will cross that bridge when you choose to raise it.  I just wanted to know whether you were going to call him as a witness, otherwise you have serious difficulties putting to this witness the contents of those statements.

MR MGXAJI: His Lordship's response, I didn't get it clearly, I am not too sure whether it deals with my intended application or it deals with what it perceives will be the inability on the part of the applicant, not to be able to answer to what I put to him and as having obtained from a statement in the police docket.

CHAIRPERSON: Mr Mgxaji, all I am saying is that it is pointless putting the contents of any statement to a witness unless you are going to call that witness to testify.

MR MGXAJI: Before I proceed My Lord, may I perhaps get an intimation on Mzwandile being subpoenaed by this Committee for purposes of obtaining his testimony about a matter in which he is so implicated and in relation to which he is presently a State witness?  Can I get an indication as to the attitude of the Committee.

CHAIRPERSON: It is not a question of attitude, we have not subpoenaed anybody to come testify in this hearing, we have no intention of doing so, unless otherwise persuaded.

MR MGXAJI: Mr Chairperson, having indicated that given the material nature of Mzwandile's testimony, wouldn't this Committee subpoena him?

CHAIRPERSON: I have just said we have no intention of subpoenaing anybody.  If you want to subpoena him, you can do so at your leisure.

MR MGXAJI: If I put to this witness what I am instructed to put, certainly this witness is in a position to say "I do not know" or tender an explanation.  It is within his powers, would the Chairperson also forbid putting such questions emanating from my instructions?

CHAIRPERSON: No.  You cannot put as a fact the contents of a statement without calling such witness, but you can ask for commentary.  You are of course stuck with the answer.

MR MGXAJI: As His Lordship pleases.   Now, my instructions Mr Guleni, are that Mzwandile Jagu was a shopkeeper at Port St Johns, he coming from Kokstad, in fact, that he is from Kokstad also appears in his statement attached to the Bundle of documents.  Would you dispute that?

FUNDISELE GULENI: At that time, I did not know where was he from.  All I knew is that there was a shop that was in Port St Johns in Ngqeleni.

MR MGXAJI: That is the shop in which you always met him if you wanted him, am I right?

FUNDISELE GULENI: That is not so.   I only went there once when he actually went there to show me the shop, driving in his van.

MR MGXAJI: You have made mention of Ndumiso Sgotyana, I will come back to Mzwandile, is it correct that Ndumiso Sgotyana was killed in the taxi violence in Port St Johns?

FUNDISELE GULENI: That is correct.

MR MGXAJI: Now, was he an MK member?

FUNDISELE GULENI: No, he was not.

MR MGXAJI: Mzwandile, according to you approached you at Port St Johns reporting about a Unit in town that was to attack you?  Do I recall you well?

FUNDISELE GULENI: That is correct.

MR MGXAJI: Where were you when you received this report?

FUNDISELE GULENI: I was in town, Port St Johns town when I got that report.

MR MGXAJI: At what time was it, sir?

FUNDISELE GULENI: It was in the afternoon, I cannot really remember the precise time, but I was in town, it was in the afternoon.

MR MGXAJI: Estimably at what time, I will tell you why I pester you to come out clearly on that issue of time.

FUNDISELE GULENI: I have said that I am not sure exactly, but I heard this during the day and again in the afternoon, late in the afternoon through Ndumiso.

MR MGXAJI: Let's begin with during the day, from whom did you hear it?

CHAIRPERSON: Mr Mgxaji, please you have to help the Panel.  I assume that the families are opposing the granting of amnesty in this respect, is this correct?

MR MGXAJI: That is correct sir.

CHAIRPERSON: Can you tell us on what grounds the opposition is based?

MR MGXAJI: On the basis that one, the applicant murdered Mr Mapipa not for a political objective, secondly that in relation to Mr Mapipa's murder, he did not make a full disclosure.

CHAIRPERSON: What do you say really  happened there?

MR MGXAJI: Am I not perhaps putting the cart before the horse, shouldn't that be what I ask from the witness as emanating...

CHAIRPERSON: No, Mr Mgxaji, I need to know on what basis you are cross-examining.  We are not going on a fishing expedition, that you can be sure of.  We need to follow your ...

MR MGXAJI: On the basis of the statement made by the applicant and that statement appears in printed form, on page 36 of the Bundle of documents.  Is His Lordship satisfied?

CHAIRPERSON: You carry on then, I am trying to work out on what basis, page 36, carry on.

MR MGXAJI: May I express this view or impression which I seem to hold that I do not want to believe that His Lordship will be able to tell me what question to put, if it emanates on what the applicant has said in his statement in the Bundle of documents?

CHAIRPERSON: Mr Mgxaji, all I asked you is on what basis is the opposition.  We haven't got time to busy ourselves with fishing expeditions, if there is a concrete case, then let's get on with it.  That is all I am saying.