Amnesty Hearings — Kimberley — 1997-10-28

LAURENS MBATHA: Hence when I recalled it, I said it started by the time when I reported the matter to the Legal Department, it went through Premier Matthew Phosa who later communicated with the police.  Now the difficulty that I had, I can't say is it a day before that, is it three minutes before but at that time,  that is the part that I'm trying to avoid at this stage, but ...[intervention]

CHAIRPERSON: Now just a minute, you may not remember the date but unless I understand Professor de Koker question, it's in relation to the sequence of events not so much the dates because the impression I get from your evidence is that you must have told Mr Isaacs and Advocate Potgieter about your involvement prior to Mr Smiles making his statement and indeed prior to you taking the statement to the police station.  And following upon that I understand the question to be saying that: well then it would mean that by the time you - or at the time when you handed Mr Smiles' statement or attempted to hand it over to the police, by that time even though you do not remember the exact date on which you would have disclosed your participation to Isaacs and Potgieter, surely they must have known about your personal involvement"?  Do I understand your question correctly?

PROF DE KOKER: Quite correct, Mr Chairman.

CHAIRPERSON: If I understand your evidence correctly, you can't have told them about your personal involvement for the first time only after you had gone to the police station to try and hand over Mr Smiles and/or the statement, surely you must have told them before then?  Well, maybe you didn't tell them, I don't know but I would have thought in terms of your evidence the impression that I get is that you would have told them but if you didn't tell them, say so because there may have to be some important questions flowing from that.

LAURENS MBATHA: Well you see, what I recall is the full disclosure to the Legal Department, that one I recall very strongly.

CHAIRPERSON: Yes, but that's a separate incident, we are not talking about that, we are taking about the making of statement by Mr Smiles in relation to your personal -  to the disclosure of your personal participation, your disclosure to the same people who made or who consulted with Mr Smiles for the purpose of putting up his statement and I think these two issues are different or incidents are different.

LAURENS MBATHA: I would really recall that I should be allowed to go through it.

CHAIRPERSON: To go through - I don't understand when you say ...[intervention]

LAURENS MBATHA: The exactness when actually I did inform Rodney and Mr Potgieter.

SISI KHAMPEPE: Mr Mbatha, are you not able to recall an approximate whether you disclosed to the Legal Team before Mr Smiles' statement was taken down by the attorneys or after the statement was taken down by the attorneys?  Are you not able to approximate when you gave then an indication of your participation - your personal participation in the matter?  Did you speak to them before this statement was taken down by the attorneys or did you only disclose to the attorneys your personal participation in this attack after this statement was taken down?

LAURENS MBATHA: You know I think I will have to really think about it, that is a request I would like make because the atmosphere by then as I've said to you - after the incident there was chaos, there was no disclosure at that time, until when I communicated it up.  Until that we identified that we should go over to - because attempts to get hold of Smiles at that time were very difficult, hence I referred that he actually was not comfortable with my absence.  Hence, the night when I was called over to the building I was with him - I don't deny the fact, I spoke to Smiles ...[intervention]

CHAIRPERSON: I think we are moving away from the main issue.  By saying you want time to think it through, are you really saying that it is possible that at the time when Smiles made his statement to Mr Isaacs and Potgieter, you did not disclose your personal participation to them?  Is there such a possibility - are you saying there is such a possibility?

LAURENS MBATHA: Sir, it can be possible but the best thing I think, you'd have to verify it with Rodney himself.

CHAIRPERSON: Well, disclosure of your personal participation would have been to my mind, something very important and I would have thought that you would be able to remember whether you made such a disclosure before you took Mr Smiles to the police.  Do you appreciate that Mr Smiles could have been locked up by the police?

LAURENS MBATHA: Sir, at that stage it was clear - evident enough, because the idea was to take out those comrades and we were prepared to face the charge.

CHAIRPERSON: But in terms of what you are saying, I'm not so sure whether you are right in saying that - in saying: "We were prepared to take the wrap", it seems to me that - on your evidence now, it seem to me that the only person who was to take the wrap could well have been Mr Smiles only.

LAURENS MBATHA: Sir, in responding to what you are saying - I'm sorry if I can move out, when the TRC approached me - the investigation team, I raised the question to them: "Why not approach me", their response to me was: "The way we work, we wanted him because he was regarded as the person involved in the act, we don't deal with people - the senior people" - that is how they defined me, "we will come back later to you".

CHAIRPERSON: You see Major, what troubles me is that in Mr Smiles' statement no mention of you is being made and in fact there is a misleading - in terms of your evidence this surely must be misleading, a misleading paragraph 7 as to where Mr Smiles would have got the hand grenade from.  One would have expected that in paragraph 7, it would be stated that he got the hand grenade from you.

LAURENS MBATHA: Sir, the best person to respond on that is Smiles.

CHAIRPERSON: That may be so but another possibility is that you did not disclose your personal participation to Mr Isaacs and Advocate Potgieter - if there was any, and also further that in fact there was a deliberate attempt to - not to disclose your personal participation, if there was any.

LAURENS MBATHA: Sir, I actually - I did say I did make a disclosure to them but I'm not sure when.  If you can recall the question came as to was it before we entered the police station, was it before you entered the building, it is where I started saying: "I think I have a problem to say exactly when".

CHAIRPERSON: But irrespective of when you disclosed your personal participation to Mr Isaacs and Advocate Potgieter, why should Mr Smiles' statement says what it says in paragraph 7 with regard to the question as to where he got the hand grenade from?  Does paragraph 7 surprise you - the contents thereof?

LAURENS MBATHA: Sir, I think my reaction also yesterday was evident that regarding the statement, I was really puzzled in front of you.

CHAIRPERSON: Would you have been prepared also to hand yourself up to the police had they decided to take in Mr Smiles?

LAURENS MBATHA: Sir, it was true.

CHAIRPERSON: Sorry?

LAURENS MBATHA: It was true because the presence of Smiles there - he was just instructed and the factor is he was going to reveal that I am the one who instructed him.  Whether he might not have written it there as you are saying now - because I believe the Investigation Unit has to do with a lot of research, has to do with a lot of whatever information that they can collect because if the intention of mine Sir, was not to go there, I think it was to keep Smiles away because I know I instructed him.  That the fear ...[intervention]

CHAIRPERSON: Sorry, sorry to interrupt you, why did you not likewise make a statement like Mr Smiles did?