Amnesty Hearings — Kimberley — 1997-10-28

PROF DE KOKER: Thank you.   So just to confirm, you had access to the document.  If this is the statement that you referred to that was drawn up after the consultation you and Mr Smiles had with Mr Isaacs and Advocate Denzil Potgieter ...[intervention]

LAURENS MBATHA: With the recollection actually of the events yesterday, I did indicate there was a certain stage where I was a bit uncertain - my presence in the room, when I recollected the events properly on that particular day, I was - I did actually indicate it even yesterday, I was not in the very same room.  And the reason for that as indicated, was basically that I'm not supposed to be interfering what Smiles is saying on the other side.  Yes, it was in the same building but not the same room.

ADV DE JAGER: So, did you make a mistake yesterday when you said it was in the same room?

LAURENS MBATHA: I said actually in the same building but I was uncertain as to whether in the room because I remember the question posed to me: "When you were in the room", it simply means you should have heard what he said.

ADV DE JAGER: ...[inaudible]  got a note about it and I've got a very clear recollection, so I don't want us to make a mistake here.  Your answer: "In the building, in the office, in the room", you actually mentioned the three buildings and I noted especially:  "In the room" and later I commented also to it that you mentioned that you were in the same room, so if it's mistake then I can understand it but I don't know whether other people can bear me out but that's what I've written down that you in fact stated: "In the same room".

LAURENS MBATHA: If this is what I've said, then it was a mistake.

PROF DE KOKER: Could you then describe to us precisely where you were when the statement was taken.

LAURENS MBATHA: The office itself is partitioned actually into three rooms, I was actually in the reception of it and Smiles, Rodney Isaacs and Mr Potgieter were in the other room.

PROF DE KOKER: If our recollection serves us, you mentioned yesterday that you were called into the room at some stage, at what stage were you called into the room?

LAURENS MBATHA: I actually said that I was called to the building, it is at that time that I said: "I actually was" - I said to Smiles because I did indicate yesterday, apparently he felt more comfortable with my presence around the building and it was at that stage when I referred - I understood in the sense that as the person that instructed him, who knew about the event, anybody out of that area he was very uncomfortable to talk in my absence.

PROF DE KOKER: You mentioned that you were the only person that had access to Mr Smiles and you repeat now by saying he was very uncomfortable not speaking to anyone else about this incident, so he spoke only to you about this incident?

LAURENS MBATHA: He actually spoke to me about the incident, it's like the nature of the incident itself.

CHAIRPERSON: Professor, whilst you are doing that, may be this volumes we just from this point onwards refer to the thinner one as Volume 1 and the other one as Volume 2 because we get confused sometimes as to which volume we are referring to.

PROF DE KOKER: Thank you Mr Chairman.  What struck me when Major Mbatha said that Mr Smiles was reticent about speaking about this incident due to it's sensitive nature, was other statements in the document that you refer to and specifically page 18 - if I may refer the Committee members to that in bundle 2, the thicker bundle and that is the evidence under oath by Mr Sipho Moses Mbatwa, page 18 about 60 to 70% into the page
"I was with Mafu Dawids on that morning when Smiles came running up to us and said: "He did it"
	Major Mbatha, does that sound like the statement of someone who is reticent about speaking about the incident?

LAURENS MBATHA: I cannot comment on that one.

PROF DE KOKER: I'm asking you: "Does that sound like the statement of someone - I don't require you to confirm it, does that sound like someone who is not prepared to speak to anyone about the incident?

LAURENS MBATHA: Hence I said as far as my knowledge is concerned, this is how I actually viewed him and this is how I regard him.

PROF DE KOKER: Can I draw the attention of the Committee also to page 40, which is the evidence under oath given by Mr Walter Smiles to the TRC, last paragraph of page 40
" Down - I went to the printer's place and I met him there"
The "down" should probable been a "now" but typed as "down".
"What happened in that I went to the ANC office, I wanted to tell my story and I still felt very, very bad for what had happened, for the death that I had caused"
Again Major Mbatha, I put it to you, does this sound like the statement of someone who is reticent and is only prepared to speak to you about the incident?

CHAIRPERSON: But you are dealing with a different context here, are we not here talking about a statement which was to be made by Mr Smiles for the purpose of going to the police?

PROF DE KOKER: That could be ...[intervention]

CHAIRPERSON: ...[inaudible] talking about somebody who was talking to his comrades.

SISI KHAMPEPE: I have understood you differently, I thought you were trying to question Mr Mbatha why he states that Mr Smiles was reluctant to talk about this incident to anyone other than himself, have I not understood you properly Professor de Koker?

PROF DE KOKER: You are correct, Major Mbatha says that he had to act all the way and support Mr Smiles in everything he did because he was not comfortable about speaking about this incident to anyone and yet we have some indications in our documents that he did speak to other people and that he had the urge to speak about the incident.

CHAIRPERSON: Bearing in mind that we - you are comparing - you are talking about a statement which Mr Smiles had to make for the purpose of eventually being submitted to court and to the police during the consultation.  The consultation at Mr Isaacs office was for the purpose of preparing a statement which was to be submitted to the police and to court.  You compare it with a situation on the other hand of somebody who was talking to or making a statement not for the purpose of submitting to the police.
	If you think that you are really making a strong point out of it then he can proceed but in my mind I clearly distinguish - I clearly understand why a person who is to make a statement for submission to the police, would be reticent about it.  It doesn't surprise me that the same person can have - can adopt two different attitudes under those different situations.

PROF DE KOKER: Mr Chairman, this line of cross-examination also links with the evidence led by Mr or given by Major Mbatha yesterday, that he was requested by the Legal Department of the ANC to prepare Mr Smiles for this testimony and he was requested because he was the only one who had access to him.
	Now again, against the backdrop of the explanations that we've been given, we have to accept that Major Mbatha himself did not report this incident or discuss it with anyone in the Northern Cape but Mr Smiles was going around speaking to Mafu Dawids, accepting responsibility.

CHAIRPERSON: I think Professor, you can proceed.  I've indicated to you, for example page 40, you have the Commissioner saying
"Take you time Mr Smiles"
Clearly putting him at ease and that was a different - he was making his statements in a different context and I distinguished clearly in mind between a situation where he would have been making a statement which he would know that it would take him to prison.    And if a person is a bit hesitant under those circumstances where he was to make a statement which could possibly take him to prison was less hesitant and less willing, I would understand it in my mind but proceed if you really think you're making a good point out of it.