Amnesty Hearings — Kimberley — 1997-10-27

MR VISSER: After the investigation had been completed, the then Acting Council, Denzil Potgieter and the attorney Isaacs, approached the police and the Attorney-General's staff, Mr Chairman, with Smiles, in person, and a statement made by him.  That statement was then given to the police and to the Attorney-General's office.  It was decided, for reasons which will, perhaps, appear later during this hearing, that they were not to act upon that statement and they then proceeded to prosecute Mr Mbakwe and Mr Ngohla, who you will also hear about later, Mr Chairman.  That is the statement that is missing.
	I may say, Mr Chairman, if, I am not sure it is my place to say this, but, clearly, Mr Isaacs is the man who should be contacted about this statement.  He was the attorney and one would presume that he should have a copy of that statement.

PROF DE KOKER: Mr Chairman, if I may confirm the general content of what Adv Mpshe conveyed to you and also support Adv Visser.  It seems as if there is general consent that this is a very important document to get hold of.  The obvious source would be Mr Isaacs, who drafted the affidavit, and who should have it available somewhere in a file and that file should be in Kimberley.

CHAIRPERSON: But you cannot keep on looking for documents forever.

PROF DE KOKER: Quite correct, but I believe that this is an important document.  I do not think that it would be necessary for any matter to be postponed today if simultaneously, perhaps, the Committee could subpoena Mr Isaacs who, apparently, is in Kimberley today to get hold of the document which should be in his file, which is also in Kimberley today, and he could, perhaps, bring it to us during the course of the day without any ... (intervention).

CHAIRPERSON: Is he an attorney?

PROF DE KOKER: He was an attorney when he was the legal representative of the applicant and I believe he is now the representative of the Department of Justice in the Northern Cape.

SISI KHAMPEPE: Prof de Koker, to your knowledge is his practice still in existence?

PROF DE KOKER: To my knowledge, his practice was sold to a new practice who, apparently, took over the files so that the documentation should still be available.

CHAIRPERSON: I do not think, Mr Mpshe, I do not think there is any problem in contacting him and finding out from him.  He may just say, oh, yes, here it is and then give us a copy.  Maybe at a convenient stage you can phone him and find out from him.

MOKOTEDI MPSHE: Mr Chairman, may I respond to that, which is also within the knowledge of Prof de Koker.  I did contact Mr Rodney Isaacs last month, telephonically, and I made mention to him about the existence, that the alleged existence of a statement and he said to me he was in Pretoria, he would be in Bloemfontein on a Friday, he does not remember what I am saying, but he will check in his file in Bloemfontein and he will come back to me on Monday.  He did not come back to me and I did convey this to Prof de Koker and he also made attempts to get hold of Mr Rodney Isaacs to no avail.  Mr Bodes also assisted me to get hold of Mr Rodney Isaacs to no success.
	He has been contacted, he said he was going to check, but the problem which he raised with me is that he is no more in practice, he has closed the practice, but he will go back and check if he cannot find something to that effect.

CHAIRPERSON: Where is he?  Is he in Kimberley?

MOKOTEDI MPSHE: Mr Chairman, he is in Pretoria in the Department of Justice.  He has closed the practice.

SISI KHAMPEPE: But we have just been told, Mr Mpshe, that today he is somewhere in Kimberley.

MOKOTEDI MPSHE: I am (...indistinct).

MR BODE: Mr Chairperson, maybe I can be of purpose here.  I did manage to get hold of the office of Mr Isaacs.  He is, in fact, in Kimberley today and I did leave a message at his office, for what it is worth now, to come to the hearing and I also stated the purpose of my call.  I also made enquiries at the practice that purchased the practice of Mr Isaacs in order for them to start searching for the file, but I have not yet had feedback on that aspect, but, unfortunately, Mr Isaacs has been out of town, at least, during the course of last week and it was impossible for us to communicate with him.

ADV DE JAGER: Is he stationed in Kimberley or in Pretoria?

MR BODE: Mr Chairperson, he will be stationed in Kimberley very shortly.  They are in the process of opening the new departmental offices of the Department of Justice in the Northern Cape.  It is a new office that they will have to start from scratch and that is, I believe, in preparation of this new exercise that he has been in Pretoria, but he is permanently stationed in Kimberley, yes, Mr Chairperson.

SISI KHAMPEPE: So, what you are saying, Mr Bode, is that you are expecting a call from Mr Isaacs during the course of the day?  He should be responding to your message?

MR BODE: Yes, Mr Chairperson.

CHAIRPERSON: Maybe you should give us the telephone number where he can be contacted so that we can give it to one of our staff members to go and phone him.

MR BODE: Yes, Mr Chairperson, the telephone number here in Kimberley will be 823524, 823524.  I will do something.

PROF DE KOKER: Mr Chairman, if I then could follow on the second matter, which was raised by Adv Mpshe as the first matter, and that is Mr Cassandra.

MR VISSER: Mr Chairman, perhaps, just to be of assistance.  You may wonder why this particular statement may be of importance.  In that regard, Mr Chairman, the Attorney-General of the Free State wrote a letter to the Chairman of the Truth and Reconciliation Commission dated the 19th of June 1996.  It has just been pointed out to me it is the North Cape division and, Mr Chairman, perhaps, if I could just read two paragraphs to you, you will immediately understand why, what the relevance of this statement will be, apart from the obvious relevance.  He says at page two, the second paragraph,
"During the original trial Adv Denzil Potgieter appeared as defence council for the accused.  Shortly after the commencement of the trial, Adv Potgieter approached the prosecuting state advocates with a copy of an affidavit, signed by Walter Smiles, in which he accepted full responsibility for the explosion.  On the strength of the affidavit, Adv Potgieter wanted the State to stop the prosecution against his clients which would have resulted in their immediate acquittal."
The last paragraph reads as follows:
"After considering the affidavit, the State advocates came to the conclusion that it was a fabrication to secure the acquittal of the two accused.  I agreed with them and it was decided to proceed with the case.  It was pointed out to Adv Potgieter that he was entitled to call Smiles as a defence witness to prove his client's innocence.  In court, however, Adv Potgieter attempted to introduce the statement without calling Smiles as a witness.
		This was improper and disallowed by the Judge.  Adv Potgieter never called Smiles as a witness and simply left the matter at that."
The point here, that seems to appear from this, is that the Attorney-General's staff, at least, on the strength of the affidavit, decided that it was a fabrication.  So, it seems, from that point of view, that it must be of vital importance to your Committee, Mr Chairman.  I just wanted to draw your attention to that.

CHAIRPERSON: But he is saying the same thing as he is saying in his papers before us, that he is responsible?

MR VISSER: Yes, indeed, but the point here is that the Attorney-General rejected that statement and without the statement we will never be able to tell whether the Attorney-General acted properly and correctly in doing so or not.