Human Rights Violation Hearings — Kimberley — 1996-06-11

ADV NTSEBEZA: Who is that comrade?

MR MBAQA: He is here he'll will be testifying he said - here he is sitting.

ADV NTSEBEZA: Thembikosi.

MR MBAQA: Yes - you know being  I knew as a comrade and I trusted very much and so on - but he came that day and he was this  State witness, obviously saying something that was not true because at least I had an - I had an idea.  But he was saying something completely wrong and he stood by it.
We tried under all ways to break him, under interrogation, but the guy behaved as if he was trained you know to - in fact he surprised me because he was a chap I knew - you know  - with all respect it's a chap I knew he is you know the feeble type of people I understand him - maybe not a good thing to say, but just a good chap, but that day he was a changed person.  He was virtually a professional of some kind because he was really telling lies and which were not there.
And  I had no doubt in my mind that this chap was saying something he rehearsed for a very long time because he just was not making mistakes.   It is difficult for a young chap of his age to say you know something like that without making mistakes and only makes mistakes when really cornered.

ADV NTSEBEZA: Now when you - I suppose when you said you tried everything to break him with your interrogation you meant  cross-examination.

MR MBAQA: Cross-examination that's what I mean.

ADV NTSEBEZA: Oh!

MR MBAQA: That's exactly what I meant.

ADV NTSEBEZA: All right and this advocate  Potgieter is he the one who is now  Commissioner.

MR MBAQA: Yes - yes that's so -  well, Thembikosi never broke.  He never changed his story - he stood by his story  to the end.

ADV NTSEBEZA: What was his story [indistinct]

MR MBAQA: Okay - that's it - what  Thembikosi  is saying  is on the morning when I arrived there in the Skyline as I said earlier when we met the march along the way.  He says he saw a barge or something in this bag that I was carrying.  He says he was wondering what that was but he didn't take me seriously.
He then says somewhere along the march - along the process of the march - because there is  somewhere we stopped and waited for some other people who came from another direction to join the march.  He says at that stage I apparently left the march and I took the grenade out of my bag and then I placed it inside my pocket .   And then he didn't see me then from there.  Then he only saw me at the Trust Bank again - Trust Bank Building again where the Bop Consulate is housed.
He said he only saw me there because he was standing in front he apparently saw me standing with Nkosinathi at the back and then he apparently saw me giving Nkosinathi a grenade.  But then he was asked how could he have seen - when he was asked how could he have seen me giving Nkosinathi a grenade if we were standing at the back, obviously with a lot of people in front of us,  he then said no he did not see -  he actually did not see me giving Nkosinathi a grenade.  He saw our shoulders moving.
But then he was showed our height that there is no way he could have seen Nkosinathi's shoulder he must have seen my shoulder and probably Nkosinathi's hair because he had an afro then - well, he then said , well, that's what I saw when he was asked, but how could you have seen that, he just said no that's what I saw - that's  what I saw - he said that about several  times - probably ten times.  
We dropped him there and then as it was clear that he was not going to change his story.

YASMINE SOOKA: Order please.

ADV NTSEBEZA: Didn't you at that stage - I don't know perhaps about -  subsequent you might have, didn't you at that stage feel that he must have been acting under pressure?   He was not the person whom you knew - that something must have brought him to that state.

MR MBAQA: I had no doubt about it - no I had no doubt about that, I knew that this man is acting, he is busy with a story which he doesn't know probably.  Unless he can say something different I am convinced he doesn't know a thing about the events of that day.  Unless he knows what I do not know of course - we leave that for him.

ADV NTSEBEZA: Now were you convicted as a consequence of that evidence?

MR MBAQA: No, the whole matter was not so simple - you know this was a very sophisticated case - I was not convicted by his  evidence per se.  He was used to tackle me and partly  to tackle Nkosinathi because the evidence was such that Nkosinathi was arguing and rightfully so, that he was not there.
So what happened after Thembikosi had told the Court this type of things about me,  they then brought in another so-called surprise witness.  This surprise witness then said he actually saw Nkosinathi here in town on the day of that event - on the day this incident happened - so that which the forecast  from there shifted to - to him and then  we were then convicted eventually on the basis of what he said against me and what the other witness said against him.  That's how we were convicted.

ADV NTSEBEZA: Now it  is common cause that you now serve twelve years imprisonment.

MR MBAQA: Yes.

ADV NTSEBEZA: As a consequence thereof - now how much of that time have you served already.

MR MBAQA: I have served probably two - two

ADV NTSEBEZA: Two years.

MR MBAQA: Two and a half - two and a half  years - yes should be.

ADV NTSEBEZA: Ja - now I just want to ask you how - how you feel.

MR MBAQA: Honestly speaking,  I cannot say - I cannot say how I feel.  I don't know, I cannot say how I feel, I know I feel something but I cannot say how I feel, I cannot tell you how I feel.  But maybe I can just say to you I feel bad, but I don't know honestly  is that the way I really feel.  I don't know - I don't have a better word to describe- I can't describe how I feel really, I can't.

ADV NTSEBEZA: Do you have any views about the judicial system.

MR MBAQA: I certainly have.

ADV NTSEBEZA: The legal system especially insofar as you feel, even though you can't describe it, I don't want to put words in your mouth.

MR MBAQA: Yes.

ADV NTSEBEZA: What is your view and attitude of and about the judicial system after what you have gone through.

MR MBAQA: Well you know - well you know and I would probably give a very political response - because I  [intervention]

ADV NTSEBEZA: You can give any response you want to.

MR MBAQA: That's good - you know from the past as I said to you I had been a youth leader for - for many years in - in this area.  But then obviously I had an understanding of the politics in South Africa.  So in some sense you know I had  - like many - probably many of activist of our time we had that - that suspicion of the system.
The system that looked at the police - the judiciary even the parliament and everything, obviously we had that suspicion and that little disrespect for those institutions  you know.  And when this happened, I always knew you know when these things happened for - to other people,  but when the police did this and it really happened - it was happening to me - you know  I could really feel that  well here was -  it was the first time I came close to seeing you know how the police can manipulate the system and so on.
I don't want to make comments on  - on the  Court or - or on the Judges,   I'll refrain from commenting on, that I will say after that  I was completely disillusioned with the system - you know  particularly because the person who had done this - never denied that he did this.  He never denied that - he took him away -  they refused to take him - and all sorts of things.  They pursued - they pursued a story which was not - which was not true.   You know that's - that's the way I [intervention]

ADV NTSEBEZA: Who had refused to accept the evidence - the Attorney General?

MR MBAQA: Pardon?

ADV NTSEBEZA: Was it the Attorney General or the State Prosecutor who had refused to accept the evidence of Smiles - what do you know?