Amnesty Hearings — Kimberley — 1997-10-28

CHAIRPERSON: Professor de Koker, I understand the question is in essence to be saying: "What is the relevance of this", maybe you should tell us in fact.

PROF DE KOKER: Mr Chairman, we now have a crucial statement here, handed to us yesterday in which Mr Smiles accepted responsibility for the hand grenade attack before the two gentlemen who are now in prison were prosecuted for the offence - who were actually tried.
	This is a crucial document, this document it is then said was taken to the police.  On arrival with - and that is what I'm trying to discover, without apparently any other communication the team was simply chased away with the police referring to the affidavit that this team has now come to hand to the police.

CHAIRPERSON: Professor de Koker, it is common cause that Mr Smiles made a certain statement, it is common cause that statement reached the police, it's common cause that it reached the office of the Attorney General and it is common cause that neither the police nor the Attorney General acted on the strength of that statement.  What are you adding?

PROF DE KOKER: That is quite correct ...[intervention]

CHAIRPERSON: It's not disputed that the police did not act on the basis of that statement.  Is it in dispute that the statement was taken to the police, do you dispute that?  Do you dispute the fact that the police did not act on the basis of that statement?

PROF DE KOKER: I am not disputing that Mr Chairman, but what I am enquiring about is the date because according to the evidence that we've received, this statement was drawn the previous day.  The next morning - early in the morning, they went to the police.  By that stage - somehow then this affidavit which they had in their possession was handed to the police, went to the level of Generals in Pretoria who negotiated it and when they came the next morning there was already an answer.  We have no indication that that is on table, that the affidavit ...[intervention]

CHAIRPERSON: How does that help your client's case?  How is that relevant to your client's case?

PROF DE KOKER: It is relevant to my client's case because it deals with full and frank disclosure by the applicant.

CHAIRPERSON: In relation to factors which are common cause?

PROF DE KOKER: The dates on which this particular statement reached the police and when decision were made, are not common cause at this stage Mr Chairman.

CHAIRPERSON: Of what importance is it to us even if it's not common cause, as long the main features of the issue are not - are common cause.  The fact is that the statement was made by Mr Smiles and that is common cause and the police didn't act on the basis thereof.  Whether the statement was taken there on a Tuesday or Thursday or after whatever date, or what importance is it to us?

PROF DE KOKER: It is highly relevant as to Major Mbatha's involvement in that particular statement.  As you will recall ...[intervention]

CHAIRPERSON: Sorry, I'm going to interrupt you and ask you to formulate your argument properly because you are going to make your ruling on it.

ADV DE JAGER: Mr de Koker, you've asked the witness: "You went to the police station and there was no handing over of the document as yet", isn't that the position?  And before there was any evidence that the document was handed to the police, he testified that the police chased him away.
	Now can you put it to the witness whether he - when was the document in fact handed over to the police, was it handed to the man coming to the door there - the security door or to whom was it handed over.

PROF DE KOKER: Would you like me to repeat your question or would you like it to be put to you by the Advocate himself?

ADV DE JAGER: I'll ask the witness.  You went up to the police station with Mr Isaacs and Mr Smiles, is that correct?

LAURENS MBATHA: Yes, Sir.

ADV DE JAGER: And you had the statement with you?

LAURENS MBATHA: Yes.

ADV DE JAGER: When did you hand the statement to the police?

LAURENS MBATHA: When we reached the security door.  The man came out, he did not take it and just said that simply: "We don't need Smiles anymore, the ANC can do what it likes with him, we are proceeding with the case" - he went back.

ADV DE JAGER: That was even before the statement was handed to him?

LAURENS MBATHA: I  think the best person to respond on that is Rodney because I remember we went up to there up to the security door and we came back from there.

SISI KHAMPEPE: Mr Mbatha, can ...[intervention]

ADV DE JAGER: Could I just ask one question?  Did he read any document while standing there, before saying you should leave?

LAURENS MBATHA: You know, the man actually just came out.  When Rodney introduced to him that we have brought Mr Walter Smiles, simply straight forward said to us: "We don't need this man anymore, the ANC can do what it likes, we are proceeding with the case, thank you" - he went back.

SISI KHAMPEPE: Mr Mbatha, are you in a position to tell this Committee whether before going to the police station there had been prior discussions between the attorneys of - that's Mr Isaacs, between Mr Isaacs and/or Mr Denzil Potgieter and the police?  Are you able to give any indication in that regard?

LAURENS MBATHA: At that stage really, no.

PROF DE KOKER: What was the reaction of Mr Isaacs and the team when they heard that?

LAURENS MBATHA: You know only actual reaction and feelings, I could not really exactly say except the words that - I mean everybody, it was unbelievable, that's all because we thought actually the purpose of the case was that justice should be done to it.

PROF DE KOKER: What did you discuss in the car on your way home, what was going to be your next step to remedy this injustice?

LAURENS MBATHA: Like I've said initially, the co-ordination, the agreements regarding what happened on that particular day involved also the Premier of Mpumalanga at that stage, so it was for him because definitely sure Denzil and Rodney were going to communicate the message back because the whole co-ordination and the cycle of the chain was in that direction.

PROF DE KOKER: Did Mr  Isaacs and Advocate Potgieter know at that stage that you gave the command?

LAURENS MBATHA: Like I said to you yesterday - but the fact that I had to be told that I had to come to get hold of Smiles, at that stage the message was already conveyed over and because Rodney and Mr Potgieter were actually on the defence of those who were in and we actually - Smiles had to go over to them to prepare that affidavit, so it was communicated to them but I'm not sure exactly when, hence I said I had a problem with that thing.

PROF DE KOKER: But certainly at that stage when you visited the police, they knew that you gave the instructions?

LAURENS MBATHA: I don't refute exactly that I told them but I said the point exactly because it doesn't - the question that you are raising now with me will end up actually leading into a point that I think, it would be proper that I should go through this thing properly.

ADV DE JAGER: The question is only this, did they know or didn't they know that you issued the command at that stage?  When they went to the police, did they know that you were the commander telling Smiles to throw the hand grenade, yes or no?

LAURENS MBATHA: I would say yes.

SISI KHAMPEPE: Mr Mbatha, you're able to say that - I think the same question was posed to you earlier on by Professor de Koker and your response was that you couldn't recollect exactly when they became aware that you had given a command to Mr Smiles to launch the hand grenade attack.