Amnesty Hearings — Kimberley — 1997-10-27

CHAIRPERSON: Prof de Koker, I think this whole confusion, if it is a confusion at all, results from one of the questions you put to the witness and I merely came in, because I did not know which statement you were referring to.  You said to the witness after he said he faxed a statement to the Legal Department, you said is this the statement that you faxed to the Legal Department and I wanted to, at some stage, and then the witness said yes and I thought, at that stage, I wanted to come in and ask the two of you which statement, which document were you referring to, because I kept on looking for that statement and, in fact, it turned out I was looking at a different page eight, like my colleague to my right.

PROF DE KOKER: Mr Chairman, I would just like to clarify the matter.  As far as I understand, recollect and we have just been reconstructing our notes, I asked Mr Mbakwe, Major Mbatha whether he contacted the Umkhonto we Sizwe and reported the incident.  He said that in July, August he reported the matter to the Legal Department of the ANC and that the statement he faxed was the one that was adjoined.  So, I also understood that that was the one that was adjoined to his amnesty application, which I think, was now very clearly shown, could not have been.

CHAIRPERSON: I thought he said he sent the statement to the Legal Department.  Did you say he went on to say the statement that I sent it is the one that he has attached to the paper?

PROF DE KOKER: That was the statement made by the applicant himself.

CHAIRPERSON: Was that before, oh, maybe I am wrong.  I had thought that after he said that he sent the document, the statement to the ANC, I thought you said, is this the statement that you faxed to the ANC.  I see your assistant is shaking her head.

PROF DE KOKER: That was only, my only reference was to the statement was in follow-up to the statement that the applicant referred to as being subjoined to his amnesty application.

CHAIRPERSON: I did not hear that part.  Anyway, it does not matter.  We are at a point where, apparently, according to the witness, the position is that the statement which he faxed to the Legal Department is not the document appearing on page eight.  Is that the position?

LAURENS MBATHA: Yes, Sir.

CHAIRPERSON: I think, in future, do not rush into admitting the documents before looking, reading them and having a look at them.

ADV DE JAGER: You will recollect, also, that I took my papers and pointed out is this the document headed the Kimberley blast.

LAURENS MBATHA: Yes, it is true.

CHAIRPERSON: You want to take it further?

PROF DE KOKER: Thank you Mr Chairman.  The comments from the Legal Department, as I understand it in terms of this document which we then do not have at our disposal, is to say that you should prepare Mr Smiles to be handed over to the police.

LAURENS MBATHA: After the document that I referred to, the message, actually, came through, I am not sure is it the Secretary-General, that I had to prepare Smiles out of what I have told them, because at that stage, also, nobody had access, nobody could talk to him, he was just open to me.  It is at that point in time an affidavit was prepared and he was taken over to be handed over at the police.  It is unfortunate at that time, the response was they do not need him, the ANC can use him the way they like.

PROF DE KOKER: Major Mbatha, I just want to clarify one issue.  You said he was only open to me.  Could you, perhaps, explain that phrase to us?

LAURENS MBATHA: Smiles, at that stage, was still scared to talk to anybody and for me it is normal.  Like a person, I indicated, within one of the, in the statement, that he had confidence in me.  So, he always preferred before I should be there.

PROF DE KOKER: If, I want to make sure whether I understand this correctly.  Was Mr Smiles, therefore, then not communicating with anyone else in connection with the incident?  He was speaking, when he spoke about the incident he only spoke to you?

LAURENS MBATHA: I think he can also best respond to it.

PROF DE KOKER: Did you report the actions to the ANC leadership in the Northern Cape or the ANC Youth League leaders in the Northern Cape?

LAURENS MBATHA: I reported the matter to Cosas members.  I do not recall exactly, within the Youth League, but definitely it was not John, because it was at the time when there was chaos as to whether really Sipho did the matter and I stood up and said he is not the one.  I know about the incident, I instructed Smiles and that thing was exactly on that particular day when we had to go and submit Smiles, because the reaction came out that members were really uncertain so I felt that I must explain to them that I knew about the thing and I had instructed Smiles.  I said it to Cosas members and I said it to some of the league members that I cannot recall at this stage.

PROF DE KOKER: When did you inform them about your role and your knowledge?

LAURENS MBATHA: The time when I was preparing Smiles, that very same day when we had to hand him over.

PROF DE KOKER: Can you, perhaps, indicate a date to us, just approximately?

LAURENS MBATHA: Really, at that stage, I do not want to indicate, because I am not really sure about it.

PROF DE KOKER: We received, earlier, a statement by Mr Smiles dated the 27th of September 1993.  Would you, perhaps, be referring to this statement and the day that this was signed?

LAURENS MBATHA: The statement that I know was the statement under oath.  I am not sure is that one under oath.

CHAIRPERSON: In fact, perhaps, you should place that on record.  Mr, Prof de Koker, you are referring to?

PROF DE KOKER: I, Mr Chairman, am referring to the sworn affidavit by Mr Walter Smiles signed at Kimberley dated the 27th of September 1993, a three page affidavit which was one that we received a few hours ago, I believe, through the intervention by the Committee and the assistance of Mr Isaacs.

CHAIRPERSON: Yes, I just wanted to round up that point.  You will remember that according to the record we are still waiting for this statement which we received just before one o' clock.  I wanted to close that aspect for the purpose of record and say that the document, the statement you are referring to is, in fact, the statement which we had asked Mr Isaacs to go and get for us by three o' clock and that document was sent, handed to us just before one o' clock.  Yes.

PROF DE KOKER: Quite correct.  Thank you Mr Chairman.

ADV DE JAGER: Are you going to hand it in as an exhibit?

PROF DE KOKER: I would leave that to Mr Mpshe, perhaps.  He was in charge of obtaining that affidavit.

MOKOTEDI MPSHE: Mr Chairman, members of the Committee, I obtained the affidavit, but it was not my intention to make use of it.  It was demanded or requested for, by Prof de Koker.  If he uses it, he must say he is handing it over to the Committee and it is already in the possession of the Committee.

CHAIRPERSON: I think use it for purpose of cross-examination and let us see later whether we can prove it through Mr Smiles.  After all, he is going to testify and only at that stage we will have it handed up.

PROF DE KOKER: Thank you very much Mr Chairman.
	Major Mbatha, to return to your report of the incident and your involvement to the ANC and the ANC Youth League, it seems, therefore, as if you waited till September to make your involvement in the matter known to the ANC and to the Youth League.  Is that correct?

LAURENS MBATHA: Ja, I am not really sure about, like I have said, I do not really want to say it is September only to find out it is not, because at this stage I am not even sure.  Hence, I have said, Smiles is the only one which (...indistinct) the statement, the affidavit that he signed on that day that he had to submit.