Amnesty Hearings — Ermelo — 1998-07-22

MR BLACK: About these specifics, I think I have tried to explain to the Committee that there were different firms of attorneys handling this situation at various stages.  I received instructions finally from my present firm of attorneys.  We were under tremendous - unfortunately I omitted to ask Mr Zoeka to tell me when the previous hearing was heard, but it was about a week or several days or two weeks before the hearing, I was requested to fax whatever statements we can to the TRC.  I dealt directly with Mr Tofile and that's what we did.  They went down unsigned and I did send a covering fax and a covering letter explaining that a copy of which of course I didn't keep, I'm not an attorney, explaining that these were sent down and possibly don't cover every aspect.  That was the situation as far as the time factors are concerned.  I must accept the dates given by the leader of evidence.  Then as far as this incident which is in the process of being investigated is concerned, the misunderstanding, as I gather, which arose is that my attorneys at the time of consulting with Mr Gushu did not have the first statement.  They weren't in possession of that.  So, the investigation, and Mr Gushu was consulted in connection with all those charges for which he had been convicted, and I think it would appear from the statements which are before the Committee now, that he's referring to the charges for which he was convicted.

CHAIRPERSON: Mr Black, if Mr Hattingh refers to the other statement, the one not signed, and he confronts your client with certain discrepancies between these two statements what would your attitude be?

MR BLACK: As far as the incidents in respect of which the Committee is now seized with at this hearing, I have no problems about that.  I'm sure Mr Gushu would also be able to say that he gave his lawyers certain instructions.  But as far as the incident which is not referred to in the second statement, and that's an incident for which he was not convicted and he is not serving a prison sentence for, my concern was that I did not want it to be said that Mr Gushu is not making a full disclosure, because it's quite clearly a serious misunderstanding and I've again had the opportunity to confer with Attorney Mohammed and she again ... (intervention)

CHAIRPERSON: I don't think I want to hear what she said to you.

MR BLACK: Well, the relevance of what I want to put to this Committee is that I gather that the incident which is not referred to is in the process of being investigated and that the applicant will be granted, should it so merit, the merits be of such a nature, be granted the opportunity to apply for amnesty in that incident which does not appear.

CHAIRPERSON: Mr Hattingh, if you're allowed to cross-examine on the incidents pertaining to this hearing will you be satisfied?

MR HATTINGH: Mr Chairman, no.  The problem is that the application, and I would submit that the only real formal, acceptable, proper application submitted by this applicant is the one dated, sorry, I can't see the date, but pages twenty three (23) to twenty five (25) in which he says, where he's asked to furnish sufficient particulars of acts, omissions and/or offences and so forth for which amnesty is sought, then he says six murders.  Now, if we count six murders, he's making application for six murders.  Now, he doesn't state in this application more than just in paragraph 9(c) the names of Zwane, Chris Ngwenya, Gwala, Theluba, two whites and then he mentioned attempted murder.  So, if we calculate that, there are six murders.  So, he makes application for six murders and this is a document before this Committee.  Now, he comes and he elaborates on his application which I would submit is the only real valid document before this Committee at this stage, with various statements all unsigned.  Now, he wants to say that, "I made application but some of it I'm withholding, some of them are still being investigated".  I do not know how he can take part or being part of the investigation of those other matters, but he makes application for six murders and we're here today to hear his application for six murders.  If he now today elects to omit or not tell us about some of the murders, either based on one or other of his statements, some of them were withdrawn, some of them not, I don't think he can have a second bite of the cherry by coming back later and make a new application for further amnesty incidents.  He made application for six murders, we want to hear his evidence on six murders not some statement of which the original is somewhat in dispute and just give us as much as he would like to give us at this stage.  He makes application for six and we would like to deal with six applications.

MR SANDI: Ja but, Mr Hattingh, how would that be a new application when his application concerning that particular incident or incidents is already in the hands of this Committee?  There's no way in which, when the applicant is heard later and not this time, not during this hearing on those incidents.  There's no way that it would be a new application.  The Committee is already in possession of that application in respect of that incident.

MR HATTINGH: Mr Chairman, we're being told that there is another application.  I think in the circumstances I think we have every right to be advised what the application is and perhaps have sight of that application just to confirm the situation there.

CHAIRPERSON: Why do you doubt Mr Mapoma's word?  Has he given you reason to doubt it?  I asked him to investigate it, to phone the head office and this is what he's come to tell us.  Tell me why do you think you're entitled to question him on incidents which do not form part of this application?

MR HATTINGH: We are dealing with six murders.  We know that we're dealing with the truth in this hearing.

CHAIRPERSON: Well, let's define truth.  The truth relating to the particular application.  What would be the position, had he come here this morning and said, "Look, I've made application for six murders.  I'm withdrawing my application in respect of two"?  What would the case be then?

MR HATTINGH: I think it would reflect tremendously poor on his ... (intervention)

CHAIRPERSON: That's a matter for argument, but I'm asking you what would give you the right then to cross-examine him on the two matters that he had withdrawn?

MR HATTINGH: I would submit that to enable me to find the truth and to test his full disclosure, one would be entitled to cross-examine about whatever he alleges to be his full disclosure and not only pertaining and limited to a single incident.

CHAIRPERSON: By the same token, had he said, "I'm applying for five murders", and you knew of a sixth one, you would be entitled to cross-examine him on the sixth one?

MR HATTINGH: Mr Chairman, I believe so.  If you will allow me to just give an explanation.  If he comes to this hearing making application for six armed robberies with the allegation that those armed robberies were committed with a political motive, and he withdraws five of the armed robberies and elects to just carry on with the one armed robbery where the political motive is closer to his own perhaps personal gain he was to get from that incident, I think it would be totally unacceptable to restrict me only to cross-examine him on one incident and not to go into a certain, for lack of words in English, "patroon", a manner of doing or committing armed robberies over a period of time ... (intervention)

CHAIRPERSON: You're looking for the word modus operandi.