Amnesty Hearings — Kimberley — 1997-10-28

SISI KHAMPEPE: Professor de Koker, what do you say about what is contained at page 41 - you've just read a portion from page 40 but you didn't proceed with what is also stated by Mr Smiles on page 41
"Sipho also found me there"
That's the first line:
"I couldn't say anything"

PROF DE KOKER: That is correct.  If you noticed, that was at the funeral
"Sipho"
That would have been Sipho Mbatwa.
"also found me there, I couldn't say anything"
If that is Sipho Mbatwa, that would seem to contradict the other statement by Mr Mbatwa and that is something that we'll explore with Mr Smiles.  Certainly it continues:
"I couldn't do anything because the deceased's family were also there and they were also very hurt"
So it seems as if his reticence there was due to the trauma that the family went through and he was unable to tell them at that stage that he was responsible for their hurt.

SISI KHAMPEPE: But then, doesn't it say something about the statement of Mr Sipho Mbatwa - that he had already said something?  You don't know whether he said it before the funeral, is that - that would be your argument?

PROF DE KOKER: It certainly is unclear because Mr Mbatwa clearly states that on that day - and it seems as if that was directly after the incident, that he came to him and
"I saw him the next morning ...[indistinct]
So that would have been on the 26th when he confessed to Mafu Dawids but then at the funeral which was some days later ...[intervention]

SISI KHAMPEPE: Which is a week later, much later.

PROF DE KOKER: ...[inaudible]

SISI KHAMPEPE: Yes.

PROF DE KOKER: Because the family was present.

ADV DE JAGER: Professor, I think you've put across what you intend to argue on this and you've laid the basis for the argument but really what we're busy now, we're arguing the case what would it be, what would the probabilities be and I think you could do that in argument.  You've laid the basis for an argument on that foundation.

PROF DE KOKER: Thank you Mr Chairman, if we could proceed.
	Major Mbatha, so you accompanied Mr Smiles to the offices of Mr Isaacs, what happened on that occasion?

LAURENS MBATHA: Like I actually said, after I'd spoken to him he entered into the other room with Mr Rodney Isaacs and Denzil Potgieter and I was sitting on the other side of the room.

PROF DE KOKER: You testified yesterday that you told Mr Isaacs and Advocate Denzil Potgieter that you gave the command to Mr Smiles to throw the hand grenade, at what stage did you give them this information?

LAURENS MBATHA: I cannot recall exactly - was it exactly on that particular day when I actually came in but I spoke to Mr Rodney Isaacs.

PROF DE KOKER: You testified yesterday that you told Mr Rodney Isaacs and Advocate Denzil Potgieter that you gave the command, when did you speak to Mr Isaacs and when did you speak to Advocate Denzil Potgieter?

LAURENS MBATHA: Unfortunately they were always together.

PROF DE KOKER: So, you informed both of them, please recollect when you made this very important statement to the two legal representatives.

CHAIRPERSON: He said he cannot remember, he can't recollect.  ...[inaudible] sit here and give him time to recollect and think.

PROF DE KOKER: There seems a very important issue for everyone involved and I would have liked not to place him under pressure but to allow him some time just to recollect.
	Would this have been before the statement was made by Mr Smiles?

LAURENS MBATHA: I think it would be proper to allow me to go through it, to re-think it first.

PROF DE KOKER: Excuse me Major Mbatha, I understood you saying that you've read the particular statement and that that was the statement that was made by Mr Smiles on that occasion when you accompanied him to the office of Mr Isaacs.

LAURENS MBATHA: Your are right, I said that I read the statement and I even went back and said to you - if you can recall yesterday, I had a strong feeling of uncertainty hence the argument of the building where I was, was I next to him, did I hear the words.  I was very frank and honest yesterday that I really - I should have even also said yesterday: "I should be allowed to re-think exactly".
	Until when I came - because when I went through those document, it's exactly when I said it was drafted ...[indistinct] the other one because I think yesterday it became very clear that the contents of the document really, they were not to my knowledge but the one that I told you of, was that I know that I instructed him - that was the concluding part of what I said.

PROF DE KOKER: This particular statement was drafted and signed in the offices of Mr Isaacs, what happened then?  When they came out of the room, what happened then?

LAURENS MBATHA: We actually drove to one area popularly - it's actually an entertaining centre and also a motel, that is ...[inaudible]  We went there actually to a very elderly person, he's a professional - I don't know his name right now, it is where actually he made actually Smiles should do it under oath.

PROF DE KOKER: And after that, what happened?

LAURENS MBATHA: I went back, Smiles also went back because now we're preparing for the following day because I had to pick him up whilst in the office, waited until Rodney came and we proceeded over to the police station.

PROF DE KOKER: What happened at the police station?

LAURENS MBATHA: When we actually arrived there - I think it's the 7th floor, there is security door lock, a gentleman came out and told us exactly that they don't need Smiles anymore - the ANC can do what it likes with him, they are proceeding with the case, that's all.

PROF DE KOKER: Wait a bit, at this stage you were still - let's take it step by step.  You were arriving at the 7th floor, what happened then?

LAURENS MBATHA: I said there is a security door lock, a man came out from the room where he was - it's a door that has a fence around it, when I say it's a security door lock it simply means only certain people might have access through it so we were standing outside.  When the man came he actually answered it whilst he was standing on that other side and we were standing on the other side, we did not even went into any offices.

PROF DE KOKER: But at that stage he would not even have known what your business was, you'd just arrived at the offices.  He would not even probably have known why you were there or who Mr Smiles was and you said he then simply chased you away, how is that possible?

LAURENS MBATHA: Sir, I'm sorry to say, this arrangement as I've said, it's an arrangement that is known and it is linked because we cannot just make any contact with Transvaal Road.  I did mention that the whole thing was indicated is with Generals, so they have a way of communicating it down, you can't just go there.
	We went there on the basis that we are bringing Smiles because this was said - the arrangements I've explained it yesterday, so when we arrived there the man came out because I remember Rodney said: "We have brought Smiles now", the man said: "No, we don't need him, the ANC can do what it likes with him", that's all.

PROF DE KOKER: Who made the appointment with the police?

MR TSHOLANKU: Excuse me Mr Chairman, if I may interject.   I'm inclined to believe that Professor de Koker is going to direct his cross-examination to events that will - solicit answers pertaining to the police.  Initially it was indicated in the testimony of Mr Mbatha that nothing whatsoever was mentioned about the police except what is common cause, that Smiles was taken to the police station and he was told they don't need him.
	Now, I foresee a position where Professor de Koker will lead cross-examination that will solicit information pertaining to the police activity which are outside the scope of his testimony and his application.  I'm just raising this point because we have indicated that the police are not implicated by Mr Mbatha's testimony.