Amnesty Hearings — Kimberley — 1997-10-28

CHAIRPERSON: October the 28th and we are proceeding with the same applications and Major, you are still under oath.

LAURENS MBATHA: (s.u.o.)

CHAIRPERSON: Professor de Koker?

PROF DE KOKER: Thank you Mr Chairman, I believe we closed yesterday on the 1993 statement and certain questions which were then put by the Committee, would the Committee like to proceed with the questioning or would it like me to proceed with different matters?
	Thank you Mr de Jager - Commissioner de Jager, I realise my headphones were also off.  I started by saying that we closed yesterday with the 1993 statement by Mr Smiles and certain acknowledgements in respect of that.  The Committee members were putting certain questions and perhaps before I start I would like them to have the opportunity to continue that line of questioning.

CHAIRPERSON: No, I think - do proceed because we just intervened at a particular point.

PROF DE KOKER: Thank you very much.  Mr Chairman, then I would like raise two preliminary issues.  I referred yesterday to various statements made by Mr Mbatwa who is one of the gentlemen currently imprisoned.  We were informed by the TRC that only Mr Nkotla applied for amnesty.  It appears from the documentation in front of us on page 58 and 59, that is the thicker bundle, last paragraph before the heading: "Perpetrators", the complainant Sipho Moses Mbatwa has also applied for amnesty on the first of June 1996 but as he states that he's not guilty of the crime, the Amnesty Committee replied in a letter that his case was out of the mandate, that is also repeated on page 59.
	In the light of the importance of Mr Mbatwa statements, we believe that it would be important to have access to this particular document.  Furthermore it transpires from the evidence that Mr Mbatwa admitted to possession of a hand grenade, he was charged for that offence, he was found guilty and he is serving a term of imprisonment for that offence.  That would then seem to be a crime of which he was guilty and for which he might therefore have applied for amnesty.  The question seems to be hanging in the air and I believe the only way to solve it would be for us to have access to that document.

CHAIRPERSON: Initially I got the impression that you were formulating your question to the witness but as it progressed I realised I must obviously be wrong,  you are obviously addressing yourself to us.	You want - which document do you want, Mr Mbatwa's application form?

PROF DE KOKER: Mr Mbatwa's application dated 1st of June 1996 and referred to in the documentation of the Truth and Reconciliation's Investigative Unit on page 58, sorry, January, 1st of January 1996 - that apparently was the date of that application.  We've received applications from Mr Nkotla and from the two present applicants but we've never received a copy of that particular application and it seems to be particularly pertinent also in the light of the information that came to light during the course of yesterday.

CHAIRPERSON: But his application was of course filed - I'm referring to Mr Mbatwa's - Moses Mbatwa's application, was filed separately and dealt with on paper because as the statement says he denied committing the offence.  And he would not have been given a copy thereof because one would not have seen the relevance thereof but if you are interested in it, I suppose you can ask the office in Cape Town and ask them whether they can fax it through to us.

PROF DE KOKER: That would be very kind Chairman, I think it would be relevant again in the light of the contradictions between Mr Mbatwa evidence and the evidence given by Major Mbatha yesterday.  This application may shed further light on the truth.

SISI KHAMPEPE: Are  you saying Professor de Koker that your present are in possession of Mr Nkotla's application to the Amnesty Committee.

PROF DE KOKER: We've been furnished with Mr Nkotla's application in March this year during the first round.

SISI KHAMPEPE: Were you furnished by our office in Cape Town?

PROF DE KOKER: That is correct.

SISI KHAMPEPE: Is that so, Mr Mpshe?

MOKOTEDI MPSHE: That is correct, upon request.

CHAIRPERSON: Very well, maybe we should - Professor de Koker we will ask one of our staff members try to see whether Cape Town cannot trace that application and then fax it through to us.

PROF DE KOKER: Thank you very much Mr Chairman.  A second preliminary issue also addressed to the Committee - yesterday before the start of evidence, reference was made to the fact that neither of the two applicants were called as witnesses for the defence in the prosecution.  Reference was made to the fact that evidence was led to the court about Mr Smiles who accepted responsibility for the incident and that that evidence was then not acted upon.
	Apparently the record of the case is available, we would very much like to have access to that particular page of pages on which this evidence was led to the court.

CHAIRPERSON: I didn't understand anybody to say that evidence was led, what I understood to have happened was that counsel for the accused attempted to have the affidavit admitted and the court did not admit - refused to admit the affidavit, I don't think it was ever mentioned that evidence was led.

PROF DE KOKER: Thank you Mr Chairman.  Can we then perhaps have access to those particular pages where the legal representative attempted to have this very important document admitted to court?

CHAIRPERSON: You will have to get it yourself, we are not going to assist you in that regard.  We don't think that is important or relevant to us so we're not going to help you in that regard, you'll have to go and get it yourself I'm afraid.

PROF DE KOKER: Mr Mpshe apparently has the record available and ...[intervention]

CHAIRPERSON: You can talk to him - sorry Professor de Koker, you can talk to him about that but we don't think that we are going to get ourselves involved in that, this is not relevant or important to us.

MOKOTEDI MPSHE: Mr Chairman, if I may Mr Chairman, if I may?   The relevant documentation referred to by Professor de Koker wherein the statement was been raised, this was couriered to him and I telephoned him on Friday that: "I'm going to courier to you the relevant portion of the court record and he provided me with his home address and this was couriered on Friday, I don't know which one he's looking for now.

PROF DE KOKER: Mr Chairman, I'm very glad to hear that, unfortunately I did not receive any package by courier.  I do not believe there's a dispute, Advocate Mpshe said the documentation is available and would also be available here in Kimberley.

MOKOTEDI MPSHE: It was couriered to you.

PROF DE KOKER: I'm very glad it was couriered to me but unfortunately I did not receive it, thank you very much.  Advocate Mpshe said it was available and I confirm that he said that it will be couriered to me on Friday but as I said, unfortunately I did not receive it and I would therefore just request him perhaps during tea break to have access to the documentation so that we can get hold of those particular pages.  Thank you very much Chairman.

CHAIRPERSON: You can sort that out with Mr Mpshe during tea time.

PROF DE KOKER: Mr Chairman, if you'll permit me then to proceed with the cross examination of Major Mbatha.
	Major Mbatha, yesterday we closed after a discussion of the 1993 statement under oath by Mr Walter Smiles dated the 27th of September 1993.  At that stage we have not had opportunity to look at the document, have you been afforded the opportunity since to study the document?

LAURENS MBATHA: I went through it yesterday.

CHAIRPERSON: Professor de Koker, can I just interrupt you at that point, can I just talk to somebody about the application that you asked to be faxed from Cape Town.

PROF DE KOKER: With pleasure.

CHAIRPERSON: Right, thank you.