Amnesty Hearings — Kimberley — 1997-10-27

CHAIRPERSON: Let me interrupt you for a minute and ask this gentleman.  Mr Tsholanku, you said something earlier on at the beginning, was it with reference to the same point I am raising, the difficulty I am raising with Mr Visser?

MR TSHOLANKU: Yes, Mr Chairman, that is the difficulty that was perceived and, if I am correct, a dialogue was entered into between the Chairman then in Bloemfontein and Mr Visser where it was pointed out to him that as per the application that is before the Committee, nothing implicating the person or persons he represents appears and that being the case he will have to justify his cross-examination if he is afforded an opportunity to do so and he would only be afforded an opportunity to do so if there is a tinge, even if it is a sentence or a word that purports to implicate his representees.

CHAIRPERSON: Well, Mr Visser is going to address that point then and you may have to be called upon to respond.

MR TSHOLANKU: I will be glad to do so.

CHAIRPERSON: Yes, Mr Visser.

MR VISSER: Thank you Mr Chairman.  Perhaps, I should just refer to the wording of the Act, Section 19, sub-section four, which deals with hearings of this Committee and that section provides,
"... if an application has not been dealt with in terms of sub-section three ...",
which is an informal procedure, as you know, Mr Chairman,
"... the Committee shall conduct a hearing as contemplated in Chapter six and shall, subject to the provisions of Section 33(A), in the prescribed manner notify the applicant and any victim or person implicated or having an interest in the application."
Those are the classes of people, Mr Chairman, who are entitled to receive notification and who are entitled to be before you to have their case put or to put their cases themselves.  As I was saying, Mr Chairman, we know that there is a background here of a police investigation, a prosecution in a court and two people were, in fact, found guilty.  If you will refer, Mr Chairman, to page 57 of your bundle, that is a Truth and Reconciliation Commission investigative report.  It is, well, ours is unsigned.  It says, the investigator is Kamagu and Christianson, but what I which to refer you to, Mr Chairman, is, first of all, at page 57 Mr Sipho Moses Mbakwe and Darlington Nkosinatie Engochla are described as victims, right at the top of the page.
	Can I then go over the page to page 58, at the bottom of that page you will see that van der Kolf, Rossouw, Starke, all Kimberley Police Department, are described as perpetrators.  Now, Mr Chairman, most importantly, may I refer you to page 59, to give you the background of why we are here and what the issues at stake are.  First it talks of corroboration and it says that ... (intervention).

ADV DE JAGER: Where are they described as perpetrators?

MR VISSER: Mr Chairman, it is at page 58, right at the bottom, the second-last paragraph under the heading perpetrators and, perhaps, better, in better words than I can explain why we are here, Mr Chairman, we read at Analysis Conclusion at page 59, the following
"Sipho Moses Mbakwe did know about the hand grenade ..."
That was accused number one who was found guilty,
"... and he also brought it to the march.  It is not likely to believe his explanation that he did not know that it was going to be launched at the venue.  The police would most probably have been of the same opinion and when Nkosinatie ...",
that is Engochla, who was accused number two, Mr Chairman,
"... admitted to having launched the grenade adding the statement of the State witness ...",
that, Mr Chairman, is Mr Ngqele, N G Q E L E, N G Q E L E, Mr de Jager,
"... the conviction seems to be in order."
Then it follows on,
"Now if the statement and sworn testimonies given before the Commission are to be believed, the police fabricated the case and that theory is supported by the remarks that the two inmates refused to apply for amnesty or parole",
and it is said in parenthesis,
"(However, Sipho ...",
that is Mbakwe,
"... did apply for amnesty, but was, but it was clearly a mistake due to lack of information).  Based on the information given, the two inmates ...",
that is Mbakwe and Engochla,
"... must be described as victims of gross human rights violations."
Now, that is the way this whole application fits together, because what we have here is two convicted persons serving a jail sentence and two others coming to the fore to say those people never committed any wrong, we are the ones that did so.  That, Mr Chairman, is, in plain words, not due to a mistake made by the police or by the Attorney-General or by the judicial system, but on purpose.  That is the point that is made.  At the time when these witnesses gave evidence before the Committee for Gross Violations of Human Rights, there was an outcry, because of certain findings that were made at the time and it is in your record.  We might be allowed, later, to refer you to them, which elicited quite a reaction from the Attorney-General of the Northern Cape, Mr du Plessis.  I read one letter to you a little while ago.
	The point here, Mr Chairman, this witness may not, specifically, say anything about the police, but the next witness, Smiles, will definitely have things to say about what the police did when he went to present his statement, Mr Chairman, and all of this you must read against the evidence that was given by Ngqele before the Gross Violation Committee by Mr Smiles, by Mr, that the police intimidated people, they did not want to listen to reason, there is even evidence of threats, of assaults and killing.  That is the background, Mr Chairman.
	Now, if I do not cross-examine Mr Mbatha and Mr Smiles walks into the witness box and he implicates, directly, the people for whom I appear, then I am going to have to call Mr Mbatha back, because I have to build up some sort of platform upon which I have to cross-examine Mr Smiles when this issue arises.

CHAIRPERSON: Are you saying that you anticipate Mr Smiles will implicate your client?

MR VISSER: Well, absolutely, Mr Chairman, absolutely.  That is our anticipation.  Look, if, with all due respect, if Mr Smiles and Mr Mbatha will tell you here under oath that they have no qualms about saying that the police did nothing wrong, the justice system did nothing wrong, it was just an unfortunate mistake, I would take instructions that the probabilities are that I will be back on the aeroplane to Pretoria this afternoon.

SISI KHAMPEPE: But, Mr Visser, I mean, how is Mr Smiles going to implicate your clients?  I understand that that implication would only be to the extent that they refused to accept his statement.

MR VISSER: Well, is that not enough?  Is that not enough, Mr Chairman?  The point that is made here is it was not a mistake.  The police did not want to listen, the Attorney-General did not want to listen.  That is the point.

SISI KHAMPEPE: If that is so how does that information impinge on the evidence that is given by Mr Mbatha already?

MR VISSER: I am not saying it does or it does not.  All that I am saying is I am entitled to ask questions in cross-examination as an interested person in the outcome of this application, because if Mr Mbatha's application is allowed by this Committee, by necessary implication it would mean that the police did not do their job.  They investigated, brought to trial and had people prosecuted and found guilty.

CHAIRPERSON: But they acted in terms of the available evidence, evidence that was there before them.

MR VISSER: Well, that is correct.  As I say, again, if these two applicants before you today come and absolve the police of all blame, of all blame as a result of what had happened, Mr Chairman, with great respect, I would advise my clients that we can go home.