Amnesty Hearings — Kimberley — 1997-10-28

MR TSHOLANKU: Mr Commissioner, he says - my understanding of his response is that when you compare this statement and what he said yesterday pertaining to instructions that he gave Mr Smiles, Mr Smiles would be the best person to respond to the content of this particular statement.  Impliedly so he disassociates himself with this statement.

CHAIRPERSON: Yes, I think we're just going through the question of routine, Professor de Koker wants to take us through this as a matter of routine.  Clearly there is no major point to be made out of this but I think you know, it may look something insignificant but when you say to a - you read the statement to this witness and you say: "Can I get your comment on that", it not the same thing to some witnesses as saying to him: "Is this true or not".   Three times you read this statement to him and three times you said to him: "I want to get your comment on that".  Well to me I would understand that what you mean, you are saying to me: "Is this correct or incorrect" and to him it may not mean that.  To him you really inviting a comment and he comes with a long comment on that statement.  Maybe if you want to say: "Do you agree or do you not agree", maybe if you put it that way you'll get what you want.

PROF DE KOKER: Thank you Mr Chairman, I will follow your suggestion.
	Mr Mbatha, is this statement correct - made in that declaration by Mr Smiles under his signature or is it incorrect.

LAURENS MBATHA: Sir, incorrect.

PROF DE KOKER: Therefore the statement is false as was the statement contained in the affidavit in 1993 - according to you, is incorrect.  If the statement, the 1993 statement was incorrect, was it surprising that no-one accepted it as being correct - that no-one accepted Mr Smiles' affidavit and his acceptance of responsibility?  if in his affidavit ...[intervention]

CHAIRPERSON: No, you can't put that question to this witness, those people were not in possession of the statement on page 11.

PROF DE KOKER: Excuse me Mr Chairman.

CHAIRPERSON: The people who did not believe Mr Mbatha - the truth of Mr Smiles' statement in 1993, did not disbelieve him because as a result of the contents of page 11 which you've just read.  They were not in possession of this statement on page 11.

PROF DE KOKER: Quite correct Mr Chairman, I ...[intervention]

CHAIRPERSON: So, you can't link the disbelief of Mr Smiles' statement in 1993 with the contents of page 11.

PROF DE KOKER: That is quite correct Mr Chairman, I'm not trying to link it,  there were two separate statements made by Mr Smiles, each containing apparently incorrect information.  We would like to hear more from Mr Smiles on those affidavits.  The question I posed specifically was in respect of only the 1993 statement, the one that was not accepted by the Attorney General and by the police.  This was the statement which contained paragraph 7, which he also pointed out and which was acknowledged to be incorrect by ...[intervention]

CHAIRPERSON: Then rephrase your questions but don't make reference to page 11, don't say: "If Mr Mbatha told the truth with regard to the question of being paid money".  Are you surprised that in 1993, 4 years ago - 4 years earlier, people did believe you - you can't link the two.

PROF DE KOKER: Quite correct Mr Chairman, and I was not attempting to link it, if that came over as linking them, I ask the pardon of the Committee.   I proceed only the basis of the 1993 statement, the statement that was so - according to evidence, so harshly rejected by the police but which is now acknowledged to be a statement containing incorrect information.
	Was it surprising in the light of the fact that this statement was not correct, that it was rejected by the police and by the prosecutors - yes or no?

LAURENS MBATHA: The statement was not read to me.

CHAIRPERSON: I really don't think he can answer that question, what you are saying is with retrospect.  In essence that is your question because they didn't even know that paragraph 7 was incorrect, did they?

PROF DE KOKER: Major Mbatha would have known about it at that stage and ...[intervention]

CHAIRPERSON: We are talking about the people who did not believe Mr Smiles.

PROF DE KOKER: That is correct, but what I'm asking Major Mbatha - if I may rephrase that, was whether it was personally a surprise to him that this statement containing incorrect information was rejected.

SISI KHAMPEPE: He has also responded that he didn't know the contents of paragraph 7.

PROF DE KOKER: That is quite correct, and I would like to return in summary to those statements by Major Mbatha on which he was also exhaustively questioned by the Committee.  If the Committee feels that I should address this in argument, I will do so.
	Major Mbatha, we are still trying to go through the sequence of events, what we have reached at this stage was the point where this statement was rejected by the police.  At that stage the people were going on - were being tried for these specific offences, clearly the situation was becoming very serious - they were being charged with murder.  This statement was rejected by the police, what did you do then to save innocent people from being prosecuted?

LAURENS MBATHA: Sir, like I said to you, the day when we went to the police station - Transvaal Road, the man confidently said it - they are proceeding with the case, they don't need Smiles.

CHAIRPERSON: The question is, thereafter what did you do to save your comrades?

LAURENS MBATHA: At that stage - when I recall very well, the next attempt was to appeal the case - that is through Mr Rodney Isaacs and Denzil Potgieter.

PROF DE KOKER: They were still being tried at that stage, they were still in court, you could have appeared on their behalf, you could have given evidence, you could have gone to the police yourself and gave statements to save your comrades.  Which of these steps did you take?

LAURENS MBATHA: Sir, the one that I've indicated - clearly outlined to you, was the fact that I should go over to Smiles and say to Smiles he must tell the truth.  Going over to court as I've said, if I was called in by the Legal Defence team - if they would have called me in of which they didn't, in terms of the statement also like I've said to you Smiles had to write a statement - this is what I've said.

CHAIRPERSON: Professor de Koker, for the first time I'm going to ask you to give me permission to prescribe to you which questions to ask the witness.  Can you ask this witness - ask him, can we then accept that you didn't do anything?

PROF DE KOKER: Mr Chairman, I accept the prescription with gratitude.
	Major Mbatha, can we then put it to you that you did nothing to save your comrades?

LAURENS MBATHA: Incorrect, Sir.

PROF DE KOKER: What then did you do Major Mbatha?

LAURENS MBATHA: It is unfortunate Sir, we cannot reverse back to that situation.  I would have said attempt - that you should go and speak to Smiles, you will never could have ...[indistinct] nearer to you.  Unfortunately we can't go back to that time, the only way that Smiles could go there - I had to go to him, I had to talk to him.

PROF DE KOKER: The police rejected the affidavit by Mr Smiles which contained this incorrect information, clearly the Smiles avenue alone was then closed.  What did you do then in addition while your comrades were being tried for murder, what did you do to save them?

LAURENS MBATHA: Sir, to say that it was closed, it would be very incorrect for me except that the channel of communication like I've indicated was involving somebody very senior above and in an incident of that nature one expected that the matter should be reported back.   The report back - the carrying of that statement as I've said, that was Rodney Isaacs.