Amnesty Hearings — Kimberley — 1997-10-27

PROF DE KOKER: Thirty.  That seems to be a very important report and it would have been helpful to this Committee to have such a report at our disposal to help us to ascertain the truth.

CHAIRPERSON: Let me just get to the next question, Sir, if you do not.

PROF DE KOKER: Thank you Mr Chairman.  In terms of the reports that you received back, you had to prepare Mr Smiles to be handed over.  Is that correct?

LAURENS MBATHA: That is correct.

PROF DE KOKER: Two people were clearly responsible for this incident, Mr Smiles and you who gave the order.  Why were you not instructed to make this information of your involvement known?  Why was only Mr Smiles under orders to deliver himself up to the police?

LAURENS MBATHA: At that time Smiles is the one who threw the grenade and in the process of the case, it was the time when Smiles was going to reveal that I am the one who instructed him.

PROF DE KOKER: But you were the one who ordered the attack, so you and Mr Smiles are equally guilty of this attack.  Why was Mr Smiles ordered to hand himself to the police and you ordered to assist him, but not to give information to the police and not to make known your own personal involvement?

LAURENS MBATHA: You see, again, that type of question would be those, actually, who said it must respond to it, because, you see, I am just trying to assume what they thought and what I think and I think it will make it very complex for me.

PROF DE KOKER: Did you feel any urge to make, did you feel, without any commands, any urge to make the truth known?

LAURENS MBATHA: By the fact that of sitting down with Smiles, because the question was that the truth will have to come out.

PROF DE KOKER: So, you were prepared to have the truth made known as long as Mr Smiles goes to jail, but you not?

LAURENS MBATHA: Definitely he will not go alone.

PROF DE KOKER: Definitely you would not go alone.

LAURENS MBATHA: Yes.

PROF DE KOKER: Can you clarify that statement?

LAURENS MBATHA: By virtue of that Smiles would indicate that I instructed him.

PROF DE KOKER: But you helped Smiles to draw up an affidavit saying that he did it, but at the same time you did not avail yourself of the occasion to or the opportunity to make a statement yourself.  You waited for Mr Smiles to implicate you.

LAURENS MBATHA: I think the negotiations in Pretoria, that I am not sure of in the document that you are trying to get hold of.  Hence, I said they can best respond as to how did it came they should reach that position.

ADV DE JAGER: Did you, in fact, help Mr Smiles?  He put it  to you now that you helped Mr Smiles in drawing up the affidavit.

LAURENS MBATHA: Not helped in the sense of writing, but the importance of showing the need of telling the truth.  That is why I referred to assistance.

ADV DE JAGER: So, and if he would have told the truth, he would have put in his affidavit that you ordered him to throw the hand grenade?

LAURENS MBATHA: Sir, it is true.

ADV DE JAGER: Did you accompany him to the legal offices?

LAURENS MBATHA: The affidavit was, actually, done in the Perm Building in Kimberley and I accompanied him immediately when he went to the police station, I was there with him.

ADV DE JAGER: Have you seen the affidavit at that stage?

LAURENS MBATHA: I, actually, did not read it.  He, actually, drafted it, it was, actually, typed, we went, actually, from oath, I am not sure the person who, but I remember the direction that we took.  It was around Kimberley Hotel, assuming that he was nature by, he was senior by nature, where, actually, Smiles, actually, took the oath there and the following day, that was in the evening, it was the time when we went together, it was myself, Smiles and Rodney Isaacs, we went over, actually, to the Transvaal Police Station.

ADV DE JAGER: And do you know in this affidavit whether he referred to you as giving the, as the person who gave any orders?

LAURENS MBATHA: At that stage I concluded, because I knew I was the one who did it.

ADV DE JAGER: So, if he would have handed this affidavit over to the police they might have immediately arrested you with him?

LAURENS MBATHA: Sir, it is true.

ADV DE JAGER: Do you know today whether he ever mentioned you or any, that or mentioned that he received orders from you?

LAURENS MBATHA: Sir, can you just repeat your question please?

ADV DE JAGER: Do you know today whether, in fact, he, in this affidavit, whether he referred to you as being the person who gave him any orders?

LAURENS MBATHA: Whether I knew?  Can you just repeat it again?  It is just puzzling me.

ADV DE JAGER: You see, you have seen this affidavit today, I presume.

LAURENS MBATHA: I have not read it, no.

ADV DE JAGER: Ja.  Now, at that stage when you accompanied him to the police station, did you know or did you not know whether he implicated you in the affidavit?

LAURENS MBATHA: Sir, for me, it was obvious, because I was the one instructed him, but I did not, actually, read it.  What I know, it was a thick document that was prepared, submitted over.

SISI KHAMPEPE: Mr Tsholanku, can you come to our assistance.  Has your client had sight of this document?

MR TSHOLANKU: In the fear of influencing him, I did not let him have sight of this document, but if the Committee wants him to have sight of the document, I can let him have sight of the document now.

SISI KHAMPEPE: I think so, because we do not know whether we are talking about the same document.  I mean the whole thing hinges on the affidavit which was prepared by Mr Smiles and taken to the police.  It could be a different document.  I think it is important for us to ascertain that fact.  He is talking now of a thick affidavit which he saw that Mr Smiles attended to and this is just a three page document.

MR TSHOLANKU: I fully agree with you, Ma'am, but I think he meant in the earlier that he, at that particular point in time, he did not have sight of the particular document.  So, I do not know if that answers your question.

MR VISSER: May I suggest, Mr Chairman, that Mr Smiles just tell us whether that is the document that he handed in, yes or no.  He should know.

CHAIRPERSON: I do not know, Mr Visser, whether we can cross over and go to him.  I think that Mr Isaacs told us he was going to fetch for us a statement which was made by Mr Smiles and he identified the statement for us and he has given us the statement.  I think you should proceed on the assumption that it is the statement in question and then maybe go on and, you know, put questions to the witness.

MR VISSER: I am sorry, I just tried to help, Mr Chairman. I was just trying to shortcut the proceedings.  In fact, I have got a member of the Attorney-General's staff here that can also tell you that this is the document.

CHAIRPERSON: I was also trying to avoid the problem of going over to the witness only to find that, maybe, his attorney has not even yet consulted with him on that statement and I think we can, until the contrary is proved, we can safely assume that this is the document and let him go on to cross-examine on it and see what happens.
	Well, perhaps, I should tell you that having gone through the statement, there is no reference to you by Mr Smiles.  In fact, if you read this statement you will never be able to tell whether you are the person who had given him the hand grenade and the impression is that he obtained the hand grenade, the source of the hand grenade would have been somebody he did not know.  What is your comment on that?

LAURENS MBATHA: I think at that stage that it would be proper that Smiles should respond to it.

CHAIRPERSON: You stand by what you have told us today?

LAURENS MBATHA: What I said, Sir, is the truth, that I instructed him.

SISI KHAMPEPE: You instructed him to tell the truth to Mr Isaacs in preparation for that document being sent to the police?  Is that what you are saying?