Amnesty Hearings — Kimberley — 1997-10-28

PROF DE KOKER: That is correct, the investigator who interviewed Mr Mbatwa, and if there is any concern about the correctness of the statement, we may perhaps call the person Mr Zuku Komagu who compiled this report - if there's uncertainty in the minds of the Committee, that would probably ...[intervention]

CHAIRPERSON: About what?

PROF DE KOKER: About the correctness of the statement which relates a statement made by Mr Mbatwa.

CHAIRPERSON: Are you saying about the truth of the statement?

PROF DE KOKER: About the truth of the statement, correct.

CHAIRPERSON: No, it's not our - we are not going to worry ourselves about the truthfulness of what that investigator is saying.   I mean, do you see the chain - what is in front of us is something which was said by somebody who was supposed to have been told by some other person.

PROF DE KOKER: Quite correct Mr Chairman, but it also shows that Major Mbatha was involved from start till this particular day.

CHAIRPERSON: Why did you accept the truth of this statement?

PROF DE KOKER: Provided the truth of the statement is accepted and ...[intervention]

CHAIRPERSON: And which comes through to us through a long chain.  Mbatwa is reported by the investigating officer to have said that the Major said this and that and that, how can we really accept that?
	Mr Mpshe, I'm surprised that the - I'm just speaking for myself, that there's a tendency to bring into the documents - at times I get the impression that attempts are being made by the leaders of evidence to - and I hope I'm wrong about it, to try and establish the truth of certain facts by putting in reports by investigators, which investigators by the nature of things are never called as witnesses.  
	My impression initially was that the investigators were doing some investigations for the Amnesty Committee and filing reports as an internal memorandum and it would be unfortunate if such reports - attempts were to be made to use those reports to discredit witnesses, either by the leader of evidence or any other person.  And if that - if you people want to do that you'll have to do it properly, you must then make sure that the people who compiled reports attend the hearings so that they can be at the disposal of anybody who wants to call them as witnesses.  
	But I find the whole thing to be quite a suppressing thing and I never thought at the beginning that such reports were meant to be parts of the court documents except that it was to be a report to the Committee to tell us whether they found a witness at home or whether they were not there and the like but it's creating problems when attempts are being made to try and tender them as proof of anything without bringing those people as witnesses.  Shall we adjourn for - until half past three.
COMMITTEE ADJOURNS
ON RESUMPTION

LAURENS MBATHA: (s.u.o.)

CHAIRPERSON: Professor de Koker, you are representing a victim, I think - you were given yesterday afternoon and a good part of this morning as well, we hope that we will now move towards the end of your cross-examination.

PROF DE KOKER: (cont)
	Thank you Mr Chairperson.  Major Mbatha, why did you not give evidence at the HRV hearings held in Kimberley in 1996?

LAURENS MBATHA: The question that I posed to the investigators - I was not confronted, they did not come over to me, hence as a result Smiles came because they went to him and during that time I was still busy in the Province at the command.

PROF DE KOKER: So the Investigative Unit never alerted you as to the investigation and their specific hearings?

SISI KHAMPEPE: Professor de Koker, are you alleging that people who gave evidence before the Human Rights Violations Committee did so because of the investigations which were being conducted by the Investigative Unit of the TRC?

PROF DE KOKER: That is what I deduct from the answer given by Major Mbatha, that that was the reason why he did not testify because he was not approached.

SISI KHAMPEPE: But you are aware that you only go to the Human Rights Violations Committee if you have applied to be declared a victim and that's why you go and appear and give evidence, in order for that Committee to be able to ascertain whether you can be declared a victim or not.  And that's the reason why people who appeared before that Committee went in and gave evidence.

PROF DE KOKER: At that - at the hearings in Kimberley last year, Mr Mbatwa, Mr Nkotla and Mr Smiles testified.  I would then like to clarify the matter, did they testify as victims?

SISI KHAMPEPE: If I read the bundle they testified as victims and as I read Volume 2, Mr Smiles was requested by either Mr Mbatwa or Mr Nkotla to come and testify on their behalf.

PROF DE KOKER: And then none of the three people involved called Major Mbatha to testify on their behalf, is that correct?

SISI KHAMPEPE: I can't make that deduction, all I can say is that he is not amongst the people who testified before the Human Rights Violations Committee.

PROF DE KOKER: Thank you very much and I'm being led by your experience with the workings of the TRC, thank you for the information.
	Major Mbatha, so neither the unit not any of the other people involved - your two comrades in prison and Mr Smiles, asked you to appear together with them at the hearings in Kimberley?

LAURENS MBATHA: No.

PROF DE KOKER: Major Mbatha, after the indication given by the Chairperson, I would like to proceed to the victims of the attack.

ADV DE JAGER: ...[inaudible] ask you one question.  You realise that Mr Smiles was at one stage prepared to meet the family of the deceased?

LAURENS MBATHA: Sir, the arrangement was not actually in that manner and I think it would be proper that Mr Smiles should explain to you what happened that time.

ADV DE JAGER: Okay, and did you in fact pick Mr Smiles up early that morning and told him that he should go later and not at that stage?

LAURENS MBATHA: It's not a question of that he should go later, when I contacted his unit I was told that Smiles was on AWOL, that is Absent Without Official Leave.  I went to his place, when I asked Smiles: "Smiles, what are you doing here, why are you not at work"?, Smiles said that: "I was called by a lady by the name" - I'm not sure is it Lena, "because of there is a gathering".  "Smiles, who is Lena"?  "I don't know who she is"
	And I said to Smiles: "If that person wants you they know where you work because they must go and report because you are working under a person that is very senior, hence now you have been declared a person absent without official leave of which you will be charged" and I took him back to his unit, that is the honest truth.

PROF DE KOKER: Mr Chairman.  Major Mbatha, when you planned the attack, who did you plan to be injured or killed in the attack?

LAURENS MBATHA: I said yesterday, the grenade should be thrown into the building with the intention of killing nobody.

PROF DE KOKER: Major Mbatha, we heard that evidence from you.  You gave that instruction how - to Mr Smiles, what did you do to ensure that your instruction will not lead to injury or loss of life?

LAURENS MBATHA: If it was not because of the security guy who came up - to ensure that part as part of my instruction I gave was: "When the people move away" - that was part of my instruction.

PROF DE KOKER: But what about the people who were standing in the foyer of the building?

LAURENS MBATHA: Normally when the marchers move away, it is at the time that those people have moved.

PROF DE KOKER: Major Mbatha, this attack took place in the middle of the day round about 1 o'clock when everyone in the building were leaving their offices, it was to be expected that there would be people in the office - other people not necessarily connected to the ANC but innocent people leaving their offices.  What did you do to ensure their safety?