Item Belt 49c - MP3 - Bennett Novuyo Mashiyane

Description
Before the first witness, Bennet Mashiyane, was recalled for cross-examination Mr Fischer addressed the court on the issue of the press. It is worth quoting what Mr Fischer said directly:

I’ve shown this to my learned friend, I don’t want to take up the time of the Court, but the defence feels very strongly that it is time, that the newspapers learnt that they cannot make statements of fact, about persons who are either charged or co-conspirators, and here is not one of the cases where Your Lordship mentioned yesterday, where the reporter may make a mistake in Court. Here is a report about someone escaping from custody, and the news item goes on to discuss others who have left the country. They mention Goldreich and Wolpe and then go on and this is, I’m quoting from the Vaderland, “who has already been convicted once in connection with this case of contempt”. This is the Vaderland of the 22nd January….

After quoting an extract from the newspaper article mentioning Jack Hodgson’s involvement with MK and acts of sabotage Mr Fischer concludes by saying “That I submit is clearly contempt and the newspapers simply must learn a lesson and stop doing this sort of thing”. In response to this complaint Judge De Wet responded:

Yes, well, I’ll go into the matter Mr Fischer. Its, its… ah, we have a… I don’t know whether it’s the influence of the American style of reporting, or what it is, but the newspapers don’t seem to realise that, ah, evidence until a case is concluded consists of allegations not facts. And newspapers should understand that clearly and state the distinction between an allegation and a fact.

Thereafter, Bennet Mashiyane from East London was recalled for cross-examination by Mr Fischer. In addition to Bennet Mashiyane, on this day, the defence cross-examined D/Sgt Card and John Shingani. During the cross-examination of D/Sgt Card in particular, we see the defence’s attempt to have evidence by state witnesses excluded from Judge De Wet’s decision making on the basis that it was hearsay. According to Kenneth Broun (REF) “The exclusion of this evidence as hearsay would not be sufficient to acquit Mandela and the other principle defendants, but it may have helped to save their lives”.

Witnesses Called

38th State Witness: Bennet Nbuyo Mashiyane – ANC West Bank Branch, East London. (Recalled).
Cross-examination by Mr Fischer.
Under cross-examination Mr Fischer is able to present the majority of evidence given by Bennet Mashiyane as hearsay. In particular, Mr Fischer began by getting Bennet Mashiyane to concede that he had never attended any meetings of the Regional Command, he had never seen the letters or correspondence sent by the Regional Command to the Branches, nor did he have any personal knowledge of who went to the Regional Committee. Any information pertaining to these abovementioned issues were was second-hand knowledge given to Bennet Mashiyane by Masiza.

Mr Fischer went on to ask Bennet Mashiyane if he was absolutely certain about the date that the meeting he described in his examination-in-chief, during which instructions to get more recruits, took place. Bennet Mashiyane confirmed that he was certain the meeting took place in April, 1962, and that both Vuyilsile Mini and Govan Mbeki had been in attendance. Mr Fischer then said calmly, “You see, Mbeki had been arrested in January 1962, and he stood his trial and was discharged towards the end of May 1962”. Bennet Mashiyane backtracked on his previous answer and suddenly remembering that the meeting took place after Mbeki had been released from jail. Mr Fischer did not peruse the issue and asked Bennet Mashiyane why he was giving evidence against the ANC – and organisation of which he had been a loyal and hardworking member for many years.

Bennet Mashiyane claimed that he had not been arrested but had gone to the police station by choice after hearing that the police were looking for him. He was questioned about his relationship with the ANC and was going to deny all knowledge but Ngabela was called into the room and identified Bennet Mashiyane as “the contact of Westbank” and told Bennet Mashiyane to “speak man, speak”. It was following interaction with Mgabela, and being shown a stack of papers the police claimed were all statements made by others, that Bennet Mashiyane made a statement to the police and managed to avoid being held in detention.

Bennet Mashiyane emphasised that the destruction of government property and acts of sabotage were never discussed in ANC Branch meetings and that the policy of the ANC was “that no blood was to be spilt, even after the banning – that is from my knowledge. That is why I don’t know much about the sabotage side of it.”

Mr Fischer then returned attention to the documents he was shown by the police and what was said to him prior to his making a statement. Bennet Mashiyane said that he did not read the papers, D/Sgt Card simply put them in front of him and said “look, these people have spoken” and they told him that he had been mentioned within these statements.

Re-examination by Dr Yutar.
Dr Yutar clarifies with the witness that Mgabela, the man who told him to “speak man, speak” was also known as Malcolmes Johnson Kondothi (Item 9, East London, Annexure A). He then asks Bennet Mashiyane to tell the court clearly why he decided to give evidence against his organisation and if – as had been put by the defence to Bruno Mtolo – he felt that in giving evidence he was being a traitor. In response Bennet Mashiyane stated:

I’m not being a traitor, because from my knowledge, the ones who could be referred to as traitors, are the persons who were arrested before we were, because they are the ones who have broken the conditions, because they are the ones who informed the Police, and after we were arrested, they would then be called, and say “well, tell this person how we are conducting this”, and then that person would say, well speak, and then you’d speak. I can’t, therefore, see that I’m a traitor.

40th State Witness: Detective Sergeant Donald John Card – East London. (Recalled).
Cross-examination by Mr Fischer and Mr Berrange.
Mr Fischer began his cross-examination of D/Sgt Card by asking him to summarise briefly the content of the pamphlets released by the ANC which he claimed, during his examination-in-chief, to have been either anti-government or targeting individuals who were seen as anti-Congress. D/Sgt Card described these pamphlets and from this Mr Fischer extrapolated a number of important points for the defence. Mr Fischer argued that there was no evidence that these pamphlets were in fact issued by the ANC and that even if there were proof that some had been issued by the AAC this organisation was not shown to have been linked to the ANC or to have been party to the conspiracy in question.

Furthermore, in regard to the one person mentioned within these pamphlets who had been murdered, there was no allegation made in the indictment that the ANC was responsible, nor was there any charge of incitement to murder. The defence would rely heavily on the fact that the pamphlet in question was not produced by D/Sgt Card to the court, the death in question had yet to be proved by proper evidence, and that there was no evidence that these pamphlets were issued in terms of the conspiracy. Similarly, under cross-examination, Mr Fischer got D/Sgt Card to concede that there was no evidence to show that the anti-government and anti-collaborator slogans painted on walls were done by ANC members, or that they were necessarily authorised by the ANC.

Mr Fischer then turns attention to the 52 people that had been arrested in connection with the acts of sabotage and violence D/Sgt Card gave evidence of during his examination-in-chief. Specifically, Mr Fischer questions D/Sgt Card about how it is that he knew each of these people to have been members of the ANC. D/Sgt Card goes through the entire list of 52 people and details exactly how and when he gained knowledge of their political affiliations, with the majority having admitted to being ANC members after they were arrested.

Cross-examination by Mr Berrange.
D/Sgt Card tells Mr Berrange, in response to his questioning, that he had had no dealing with the investigation which resulted in the arrest of Harold Strachan in 1961 and could not give information on the subject.

No re-examination, subject to recalling the witness on circulars.

42nd State Witness: John Tshingane [Shigani, Tshingani] – Taxi Driver, Port Elizabeth. (Recalled).
Cross-examination by Mr Berrange.
The first significant point raised by Mr Berrange in cross-examination was about the confusion John Tshingane had displayed in regard to the dates on which he had transported Nelson Mandela to the sea and, more importantly, when he had spoken of Joseph Jack and said “I am not certain about places” and “Can you fix me up”. Mr Berrange put it to the witness he had said these things because he “had forgotten what [he] had to say”. Mr Berrange explained that this was important because in his evidence-in-chief on Friday he said that the people whom he dropped off at Framesby gone to the left towards where Europeans lived. Despite being questioned at length John Tshingane said nothing on that day of a sub-station in the vicinity. However, when the witness took the stand again on Monday he immediately volunteered the fact that the people had moved towards an electricity sub-station.

John Tshingane denied that anyone had spoken to him about his evidence between the Friday and Monday but the defence argued that it seemed obvious that somebody must have advised the prosecutor on the Monday to re-open the line of questioning which he had previously abandoned on the Friday. After discussing a number of other instances, particularly in regard to date and the identification of certain of the accused, Mr Berrange returns focus to what took place at Framesby and the Labour Bureau and puts it to John Tshingane that his whole story about that night was a complete fabrication.

Mr Berrange tried to make the case that the witness had been induced to make a statement because of the extensive knowledge the police claimed to have had of the events and that, as a 90day detainee, it was very likely that he had been subject to suggestions. When dealing with contradictions that arose in his evidence John Tshingane, on several occasions, blamed the interpreter for having mistranslated his answers. Furthermore, John Tshingane said that because this was his first time in court he did not know the procedures for correcting the interpreter. To this Mr Berrange replied, “That is not true – I know you have been in court before.” John Tshingane tried to persist in his lie by saying he had never been a witness before but Mr Berrange told him that he knew that John Tshingane had given evidence and been cross-examined a month ago during the trial of Dr Pather.

Mr Berrange then asks John Tshingane if he had told the police about the men had had transported to Framesby and the Labour Bureau when he had been taken in for questioning in connection with the Harold Strachan Trial. John Tshingane had not made a statement regarding these events until, two years later, in 1963. Mr Berrange then puts the following to the witness:

Your story that N.7 accompanied you is a tissue of lies; also your two youths story is a tissue of lies. The two youths who gave evidence in Strachan’s case said they left Port Elizabeth before the 16th of December, to go and bomb Engcobo in the Transkei and not in Port Elizabeth…

Also, No.4 will say that you are fabricating your evidence against him. He will say that he was in hiding between the third week of March, 1961, and April, 1961.

In the concluding moments of John Tshingane’s cross-examination Judge De Wet asks him if he had any knowledge of the Mandela badge to which John Tshingane replied that he did not. Judge De Wet then asked him if he was aware of a certain time when acts of sabotages stated all over South Africa to which John Tshingane, yet again, replied that he did not hear about this. Thereafter, a somewhat annoyed Judge De Wet told John Tshingane, “You seem to be particularly ignorant. You can go.”
No re-examination.

Sources
Dictablets: (Vol.50/9A/49c) (Vol.50/9A/50c) (Vol.50/9A/51c) (Vol.50/9A/52c) (Vol.50/9A/53c) (Vol.50/9B/54c) (Vol.50/9B/55c) (Vol.50/9B/56c) (Vol.50/9B/57c) (Vol.50/9B/58c) (Vol.50/9B/59c).
Percy Yutar Papers:
Handwritten notes from the prosecution for 29 January, 1964 (Ms.385/36/7).
Evidence of Bennet Nyuya Mashiyana (Ms.385/4).
Evidence of John Singani (Ms.385/4).
WITS Historical Papers:
G1 – G105: Evidence includes that by police detectives, and other State witnesses (AD1844.A8.1).
Evidence: DJ Card (AD1844.A12.3).
Evidence: J. Singani (AD1844.A13.1).
Evidence: J. Singani (AD1844.A14.4).
Analysis of evidence: Det. Sgt Card (AD1844.A18.3)
Analysis of evidence: John Singani (AD1844.A18.5)
Evidence: BN Mashiyana (AD1844.A12.1).
Analysis of evidence: Bennet Mashiyana (AD1844.A18.1).
Evaluation of evidence: Bennet Mashiyane (AD1844.Ba8).

Key Words
East London, Port Elizabeth, ANC, Sabotage, Police Witnesses, Nelson Mandela, Govan Mbeki, Raymond Mhlaba.