Amnesty Hearings — Ermelo — 1998-07-23

MR BLACK: That whole - and it's an issue which we can deal with not necessarily completely, but the most important ground which, not speaking for my learned friend, but I think he has also indicated, Mr Pillay, who acts for the other applicants, we are most anxious to know the grounds upon, and the opposition is, and should there be any documentation which they intend to rely upon, etcetera, in order to curtail proceedings, expedite the hearing, we would request that we be afforded that opportunity, and my submission then is that should this document go in, it would be tantamount to a form of a fishing expedition to find out some grounds and again delay proceedings, and as I've indicated, this Committee certainly has the authority to set certain parameters with regard to cross-examination and in fact with regard to presentation of cases.
	Thank you, I have nothing further.

CHAIRPERSON: Anyone else wants to make submissions on this aspect?

MS VAN DER WALT: Chairperson, I would like to address you, or I'd like to place something on record, I have said to Mr Hattingh that I will do this, regarding the amnesty application of Clive Derby-Lewis and Janus Walusch, a similar aspect arose, this was with regard to the Section 29 of the old Act of Internal Security, which was scrapped.   Mr Bizos, on behalf of the Communist Party, presented the statements made under the old Section 29 to the Committee.  It was permitted on the basis that Mr Hattingh argued, that ultimately the Committee would be the body which would decide regarding the value of the documents.   This was during cross-examination.   I would just like to mention this, because we have not heard your judgment regarding this and Judge Moll was the judge during these proceedings, along with four other Committee members.

CHAIRPERSON: Mrs Van der Walt, I have heard of that, but I would like to clear up something of which I am uncertain.   It would appear to me that during that hearing the Committee was also of the opinion that it would not be appropriate to move over to a hearing within a hearing?

MS VAN DER WALT: That is correct.
RULING
	At this stage I am asked to make a ruling on the following aspect, and that is as to whether the applicant can be questioned about the content of a written document purporting to reflect the events relating to pointing out and contemporaneous notes of his pointing out at the time the criminal investigations were being conducted.   These criminal investigations relate to his convictions and sentence which are presently under discussion.
	I may mention that it is a pity that I have been called to make the ruling, and the matter not being settled by the representatives.
	Be that as it may, we have been asked to rule on this aspect, especially because it seems the voluntariness of the actions and the statements attached thereto seem to be in dispute.   We are further not certain if the actual contents, as it appears in the document, is accurate or not.
	The process clearly does create rights for various persons who at various times will have opposing interests.  However, in our view, the Act is couched in terms that suggest the spirit thereof is that of reconciliation, to discourage anger and favour rather the applicants than the rights of others.   This does not mean that we ignore the rights of others.
	In this matter, we may mention that the actual grounds for opposition is not at all clear.   Indeed we have been informed on numerous occasions that the attempt was to test whether the applicant was making full disclosure, and at best about his political reasons for having committed the crimes.
	The right to cross-examination has specifically been curtailed in the Act, and this is indicative of our view as regards the spirit of the Act.   It fortifies the tendency to lean in favour of the applicant.   While this is so, it is clear that the right to cross-examination must be protected, albeit in a restricted way.   
	Furthermore, if any dispute as to voluntariness or the truth of the contents of a document arises and which makes the use of such documents doubtful, there is no provision in the Act which allows one to embark on a mechanism to prove the truth of the contents or whether that statement or document had been made voluntarily.   The process was intended to be completed as quickly as possible, and not to be converted into a full-blown, long, dragged-out criminal trial.
	As I understand it, Mr Hattingh, fairly I think, has changed slightly his position, and he's not seeking that the document be admitted, but rather that he could use it.  
	I do not plan to go into all the implications thereof.  However, our ruling is as follows:  that certain propositions which may or may not appear in the document can be put to the applicant.   His answers thereto will stand.  Should the answer tend to negate the truth of the proposition or dispute the voluntariness thereof, the aspect cannot be taken further in terms of the document.
	That is our ruling.
	Mr Hattingh, were we by you or ...(intervention).

MR HATTINGH: Yes, I believe I need to proceed with the cross-examination.

CHAIRPERSON: You can continue your cross-examination after the tea adjournment.

MR HATTINGH: Thank you.
COMMITTEE ADJOURNS
ON RESUMPTION

MZWANDILE GUSHU: (still under oath)

MR HATTINGH: (Continues)  Mr Gushu, we have already heard indications what your attitude is with regard to the two documents, a confession as well as a pointing out document, which was made use of at the criminal trial.   However, those documents deal with some of the incidents for which you are now applying for amnesty, is that correct?

MZWANDILE GUSHU: Correct.

MR HATTINGH: Why did you not mention in those statements, or at the time of the pointing out, that you were acting on behalf of the ANC or with a political objective because of your working for the ANC or MK?

MZWANDILE GUSHU: Mr Hattingh, I would like you to know one thing, at the time I was arrested by the boers, they were working for the National Party.   Whatever I did, or whatever I said, I said because I was being beaten up, I was being tortured.   There is nothing, not a single thing in that document that has been said voluntarily.   That information was forced out of me.   I was, I said those things, they were torturing me in all sorts of ways.   I don't think that you can take that document and use it as evidence here, because this is not a court of law.

MR HATTINGH: Mr Gushu ...(intervention).

MR BLACK: Mr Chairman, Mr Chairman may I just get clarity on this issue?   I understood that the ruling which was made earlier related to the pointing out document.  Now Mr Hattingh is referring to the confession and the pointing out document, and he refers to two documents.   Now as far as I'm concerned, I understood there's only been a ruling on the pointing out?

CHAIRPERSON: So?

MR BLACK: Well ...(intervention).

CHAIRPERSON: What's the point you want to make?

MR BLACK: I understood that Mr Hattingh was granted an opportunity to put things to this witness which were recorded in the process of pointing out, but that he has not been given permission to put anything to the witness which is contained in the confession.

CHAIRPERSON: Wasn't he given that right in an earlier ruling?

MR BLACK: Well, perhaps I missed that, I certainly have no recollection of that.

CHAIRPERSON: Mr Black, you missed the ruling on the confession.   Is that what you say?

MR BLACK: Well, perhaps I'm incorrect there, because ...(intervention).

CHAIRPERSON: Carry on, Mr Hattingh.

MR HATTINGH: Mr Gushu, I'm not asking you about what was in fact stated in that confession document or noted during the pointing out, I'm asking you about things that you failed to state, things which you did not say, that you were instructed by the ANC or by some form of ANC command to commit those crimes or those offences.