Amnesty Hearings — Kimberley — 1997-10-28

CHAIRPERSON: I'm saying to you, I don't think you're going to make any major point about who - whether Smiles sees it as a brown, somebody sees it as rusty, another sees it as yellow, I don't see what point you're going to make out of that.  People will just simply disagree on something that they see in front of them.

PROF DE KOKER: Quite correct Mr Chairman, I accept the point and I just want to draw your attention to page 4 because unfortunately it seems that Mr Mbatwa builds his case on the fact that the grenade he had was brown, that some witness referred to it as green and then that it was therefore clearly a different hand grenade.  That issue cannot then be solved or taken because none of the people involved are clear, none of those who really handled the hand grenade are clear on the colour.

CHAIRPERSON: Well anyway, only one hand grenade exploded that day, there's no problem about that Professor.

PROF DE KOKER: Major Mbatha, you were well trained in handling hand grenades.  You've informed us that you undertook this exercise without orders or instructions to that effect and you said that this action fell within your broad mandate.  I put it to you that you had no mandate to perform an act of violence at a political march organised by the organisations in terms of the National Peace Accord, you had no such mandate.  Is that true or false?

LAURENS MBATHA: I've referred to my command initiative yesterday.

PROF DE KOKER: But I put it to you, your command initiative did not include this mandate, your command initiative did not stretch so far as to give you the right to perform an act of violence at a political march organised and held in terms of the National Peace Accord.  Your mandate might have included other measures but it could not have included that particular mandate.

LAURENS MBATHA: I've never said that I got a mandate from them, I said the whole thing occurred, hence as a result I accept the responsibility because of my command initiative.

PROF DE KOKER: Quite correct, but you said you took the command initiative on the basis of your broad mandate and I put it to that that was not part of your mandate.

LAURENS MBATHA: I said to you, when somebody commands - I even mentioned the tactical area of responsibility that happens to be mine in the Northern Cape, I did come up actually with a broad analysis, an appreciation that I referred to yesterday, and I remember I had to elucidate more on what do I mean by abnormal situation - I went deeper into it.  Hence I said that building up situation with the initiative that I took was basically influenced by those circumstances, hence as a result acknowledging the mistake that happened on that particular day out of my initiative.

PROF DE KOKER: You therefore took the initiative but you had no mandate to perform this particular act of violence.

LAURENS MBATHA: I've said it more than five times, I'm not sure - I've repeated that thing yesterday to you many times, I've referred to my command initiative.

CHAIRPERSON: Can I put it differently?  Are you saying that your command initiative allowed you to do what you say you did?

LAURENS MBATHA: To the act yes, Sir.

PROF DE KOKER: Can you prove that to us, because we have on paper is the word of the leadership of the African National Congress and the other major political parties in South Africa who were signatories to the National Peace Accord and who undertook to act in a certain way whenever political frustration should be vented.  	That was a very, very important process at that stage, how could there have been instructions or a mandate existing within the organisation in conflict with those undertakings which were given at a National and International level?

CHAIRPERSON: Is there any way that you can prove to us that what you did fell within your command initiative?

LAURENS MBATHA: I actually did indicate yesterday - if I could be allowed to go back to the situation, I have actually referred to the element of insecurity which was starting to grow in the Province.  I have actually referred to the loss of weapons of which at that time were very clear, I even dedicated that to my knowledge they were not actually stolen because they were supposed to have been kept.
	I did actually mention Sir, intensification of the right-winger's training at their base next to Kuruman.  I did actually make mention of a house intercepted with all those weapons and the maid was chased away - since then actually she was nowhere collected, nobody knows exactly where she is. ...[intervention]

CHAIRPERSON: Sorry, were you're command initiative orders issued to you in writing by the MK?

LAURENS MBATHA: Normally they didn't issue them in writing, you are appointed in writing that you are the regional commander as from now on and these are your command members.

CHAIRPERSON: Well, we do not have any written proof of this command initiative.

PROF DE KOKER: We also have indications to the contrary that that could have been his command mandate at the stage when he perpetrated this particular act of violence, and that is the National Peace Accord signed and adhered to and respected by the organisations which he served.

CHAIRPERSON: But that is your personal evaluation or interpretation of that particular document, you can argue it during your argument.

ADV DE JAGER: Mr Mbatha ...[intervention]

CHAIRPERSON: You cannot construe that as orders to the contrary, you'll be stretching it a little bit too far I think.

ADV DE JAGER: Could I refer you to page 9 in Volume 1, and one of the reasons you're stating for taking this step, you said
"And Codesa like being at the brink of breaking"
Is that correct?

LAURENS MBATHA: Yes, Sir.

ADV DE JAGER: Was Codesa at that stage at the brink of breaking?

LAURENS MBATHA: Sir, the disagreement at that stage led to the mass action which was launched.

ADV DE JAGER: Well, at that stage - it was in May 1993, and Codesa - the previous Codesa had broken down and there was negotiations about peace and I want to put to you, at that stage the representatives were already starting to write the new Constitution, there was no breakdown then.

LAURENS MBATHA: Sir, if I recall very well - during that era, it was the era when the National Mass Action Campaign was launched and hence I stated yesterday, it was launched because things were not going right.  Referring to Codesa, it was the driving body by then where the negotiations were done and conducted, that is to the best of my knowledge that I have.

ADV DE JAGER: I only want to put it to you and I can - if necessary we can get evidence about that, I think you're making a mistake.  At that stage Codesa was running well and they started to write the new Constitution.  Well, the name wasn't  anymore even Codesa, it was a second - the negotiations at the Trade Centre, Codesa was something of the past already then.  There was new negotiations started and during May they've started writing the new Constitution.

LAURENS MBATHA: Sir, to my knowledge actually, I knew Codesa at that time.

PROF DE KOKER: Major Mbatha, I put it to you further that the situation of insecurity that you allege was building up at that stage did not exist.  You said yesterday there was a serious situation, more serious and different from that in other Provinces.  At that stage a number of serious incidents were taking place in Natal and in Transvaal and what is now the North West but Kimberley was relatively peaceful.   Kimberley was at a point where it was progressing very slowly through a very difficult phase but without this level of insecurity building up which you allege to be the main motivation for your act.  It was 11 months before the election, South African ...[intervention]

CHAIRPERSON: Sorry, Professor to interrupt you.  I don't think he said there was a feeling of insecurity in Kimberley, I think he said in the Northern Cape.