Amnesty Hearings — Ermelo — 1998-07-28

CHAIRPERSON: Yes, Mr Patel?

MR PATEL: As it pleases you Mr Chairman.  The next applicant is Mr Mkhwanazi.
	Before calling him to the stand, we wish to make an application in terms of Section 33(1)(b), namely that his evidence be heard in camera.  The reason for making the application is as follows:  Mr Chairman, you and your learned Committee Members are aware of the hostilities that are existing between the various parties that are present.  It has been reported to me through the applicants that I represent, that they've received death threats more particularly aimed at the four people who formed the Special Committee.  
	The three applicants, save Mr Mkhwanazi, are resident in Ermelo and are well-known to everybody, hence a similar application will not be brought in respect of them.  Mr Mkhwanazi however to a large extent and because of the manner in which he conducted himself in the Ermelo area is unknown to a lot of people, in fact his role in what took place is to a large extent unknown.  Given the threats that have been made he fears for his life and safety.  
	My submission is that that particular fear is well-founded given the circumstances that are prevailing at this point in time.  My submission is that in view of the threats and the belief that he entertains that his life is in danger, that his request that his evidence be held in camera be entertained.  
	My submission would be to exclude the media and members of the public, but given the antagonism that exists which we don't want to fuel and to avoid any unnecessary prejudice, we would only ask for the exclusion of those two categories.  In other words we would say that the victims or their next-of-kin can be present.  So all we are asking for at the end of the day is two categories to be, or rather all categories to be excluded save for victims and/or their next-of-kin.  As it pleases you Mr Chairman.

CHAIRPERSON: ...[inaudible] co-applicants?

MR PATEL: We don't have a problem with the co-applicants either.

CHAIRPERSON: ...[inaudible] views?

MR KEMP: Mr Chairman, I've got no particular view in this regard.  My clients won't be prejudiced by such an order.

MS VAN DER WALT: With respect Chairperson, I think there has to be more concrete testimony before you for such an application.  The whole amnesty hearing is there to show the people that people are prepared to testify and to tell what they did and also to tell the community how they feel about their deeds.
	I think the community here in Ermelo has great interest here, not only the victims.  It would seem when one listens to Mr Gushu's testimony and the cross-examination by Mr Hattingh, it would seem that the whole community actually suffered because of what happened here.  I act on behalf of Mr Msibi who has an interest in this testimony and I feel that there ...[intervention]

CHAIRPERSON: Miss van der Walt, the application was directed at other people in that category.

MS VAN DER WALT: I realise that and I think that what you have said this morning and when you addressed the community this would cause more problems if the community is excluded.  They have so much interest that it is evident that there, so many people are present here every day and to exclude them under these circumstances I feel the goal of the Act will not be reached.

CHAIRPERSON: What do you say about the threats or the alleged threats?

MS VAN DER WALT: If it is so and the victims are here then it won't make much difference, with respect.  I have nothing further.

MR PRINSLOO: With respect Chairperson, it is for the applicant to verify this, and my colleague has to have made this application behind closed doors but it is now known what the circumstances are.  The facts are already on document, testimonies are already before you, it is already known what he is going to testify about.  	With respect Chairperson, as my colleague indicated it has to be done in such a manner that the applicants, their families and other involved parties have to be aware of it.  What protection is there for him now?  It is known that he is going to testify, he is an applicant, he is not a witness and under these circumstances of the promotion of reconciliation it has to be in an open hearing, thank you.

CHAIRPERSON: Does this touch the people who you represent?

MR PRINSLOO: Not as such but there is testimony that Mkhwanazi already sent Gushu to Piet Retief.  I don't know what else he is going to say.  This does not appear in his application, it's not very complete and in that sense it could have effect.

CHAIRPERSON: And do you think that it won't touch on it?  Do you say that the probability exists?

MR PRINSLOO: At this stage I don't know what he is going to.

CHAIRPERSON: But of the documents we have here, is there not a probability, there is no probability that your client would be affected by this.

MR PRINSLOO: According to the testimony of Gush Honourable Chairperson, he said that he was sent there by Mkhwanazi who was the one who gave the instructions, as I remember the testimony and that is the person who is going to testify now.
	In his application form itself, that is Mkhwanazi, it does not appear in the documentation there and that is why I say it depends on what Mkhwanazi says himself if he is going to stick by Gushu's evidence.  That is my only interest Chairperson.

CHAIRPERSON: You see Mr Prinsloo, I have to take a decision here on the probabilities.

MR PRINSLOO: That is correct Chairperson.

CHAIRPERSON: I cannot look at what might happen and what might not happen but I take your point.

MR PRINSLOO: Thank you Chairperson.

MR HATTINGH: Mr Chairman, in my reading of Section 33, the victims are in any event entitled to remain, they cannot be excluded.

CHAIRPERSON: Well I don't think it touches your, the concession has been made in respect of your clients.

MR HATTINGH: All I'm saying is they are in any event entitled to be here.

CHAIRPERSON: Ja.

MR HATTINGH: Secondly, to exclude other or the members of the public, the people who are not victims, that sense, once again I have received a little scribbled note from my "clients", in which they say they would prefer that the public be present.
	Now for what it is worth, I think it is important to still bear in mind to what extent excluding a part of the public is going, what the result will have on the perceptions of the public as to how open this hearing is.  How is this community going to benefit from excluding certain parts of community in hearing what this person has got to say.  
	This witness has - there are full indications that this witness will provide extensive background as to reasons and instructions for the killing of various of my clients.  My position would be, although we've heard that there were threats made to the life of this witness, no mention has been made of the names of the people who made those threats.  We don't know whether they form part of my client base.

CHAIRPERSON: What about putting the applicant or the witness into comfortable position, because he perceives these events and it creates a bit of an emotional charge in him which effects his ability to testify properly, what about that?

MR HATTINGH: Mr Chairman, do you mean by that that he cannot be seen by the public or ...[intervention]

CHAIRPERSON: No, no.  Look, let's assume we accept that horse is bolted and he doesn't, in his own mind he is being threatened and he sees testifying behind closed doors as a means to protect himself when it in fact need not be the case but it puts him at ease in order to testify, what about that?

MR HATTINGH: Mr Chairman, I don't really think I'm in a position to really respond to that because whether putting someone at ease, whether that is a requirement or not, I think it's more important to find out whether there is a real likelihood that harm may ensue as stated in the Act, to any person as a result of the proceedings being in an open hearing.