Amnesty Hearings — Kimberley — 1997-10-29

WALTER SMILES: (s.u.o.)

PROF DE KOKER: (cont)
	Mr Chairman, before we start with or before I proceed with cross-examination, I would like to address two specific issues which were raised earlier.  The first concerned the trial of the people involved and the question right at the start of the proceedings, as to the submission of the evidence that Mr Smiles acknowledged at that stage, that he had thrown the hand grenade.  
	It was unclear precisely what happened during the proceedings.  In the meantime Advocate Mpshe has said that he has made available to the Committee, an extract from the record dealing with that particular day and specifically the evidence by Mr Mtlele.  During his cross-examination, Advocate Potgieter put the specific affidavit dated the 27th of September to him.  Now that was apparently put to him on - a few after the drafting of that affidavit on the 2nd of October.  The State then said ...[intervention]

ADV DE JAGER: Advocate Potgieter put the affidavit to who?

PROF DE KOKER: Advocate Potgieter put the affidavit to Mr Mtlele and that is on page 181 of the record at paragraph numbered 30.  The state then intervened and said that would be hearsay evidence unless the particular witness which was Mr Smiles was called, they then asked Mr Potgieter whether he was going to call the witness.
	Mr Potgieter then said he was unsure - it proceeded - he was unsure whether he was going to call the witness.  They then argued for another 10 pages which brings us to page 189 and page 190 of the record.  I see that the record is handed to the Committee members only now.  Excuse me Mr Chairman, I proceeded on the basis that you had them in front of you already.  
	I'm referring you to page 181 at the bottom because that is where the discussion starts and then it proceeds to page 189 but with a bit of history on page 190.  In the middle of paragraph 10, Mr Botha placing the following on record:
"Pardon your Honour, I want to place on record that directly after the negotiations and when we adjourned, I told my learned friend - this reference is to Advocate Potgieter, that we were not going to use him Mr Smiles, as a witness.  When he got to the police station in the presence of his advocate, it was told to him that the State was not interested in him and that he was regarded as a witness for the defence"
So at that stage it was clear that he should have been called by the defence.  On page 189, Advocate Potgieter refers at paragraph 10, to the date on which this affidavit was drawn - paragraph 10:
"When did he make this statement Mr Potgieter? - recently, just a few days ago the 27th, what are we today, the 29th"
and then he said the 2nd which meant the 2nd of October.  Mr Potgieter continues:
"Monday yes, I don't know what his status would be.  I can hear them saying that I can get him again but I don't know"
The court says:
"Pardon"
And then they continue and Mr Potgieter says in the next paragraph:
"Yes, I  understand what my learned friend is saying, we can get hold of him again"
A bit further down, 25:
"Mr Potgieter, I understand that he's now available to me"
Mr Chairman, that clearly shows - and if you can proceed to page 191, it is repeated and then on page 191, paragraph 30, Mr Potgieter closes by saying:
"I want to propose it but I want to say I'm not in a position to say whether this person is a witness of mine"
Page 192:
"I must assure myself because I can't make a statement to this witness and then he turns out not to be a witness, I don't know whether I can do this.  I know that I can prove that the statement was made"
	It seems therefore from this extract from the record, as if it was clear at that stage that the onus was on the defence to call Mr Smiles as a witness and they also allowed him to proceed with Mr Mtlele's cross-examination, putting aside the affidavit but allowing him the opportunity to return to Mr Mtlele at a later stage once the specific evidence has been led.  I just wanted to put this to the Committee to clarify the matter as discussed on Monday morning.  
	The second preliminary matter deals with the document referred to by Advocate Tsholanku of which he was kind enough to furnish us with a copy.  I look at page 71 which is the paragraph which he specifically quoted in connection with the command initiative.  I follow his rather sensitive argument but it seems to be connected directly to the appendix which only lists incidents ranging from 1960 to 1989, fairly detailed and a fairly lengthy appendix.  I would like to find out and I don't know whether Advocate Mpshe will be able to help us.  
	There is a rather abrupt end to this list in 1989, was there a further document by the ANC or any document or submission to the TRC directly submitted by the ANC, in which they accepted responsibility for this particular incident.  That is not clear to me, it's clear - and that was raised yesterday, it's not listed in this list but there seems as if there could be another list or a further submission.  I would appreciate it if this matter could be clarified.
	It is clear that this is not the kind of incident which could simply have slipped away as being unknown by the ANC because it was reported to their legal department and some matters were actually dealt with by the legal advisor, Mr Matthews Phosa himself.

CHAIRPERSON: Sorry, not that it really bothers me but why do you say it seems there another list which will cover this incident?  Because when I look at the last page, the listing ends in the middle of the page which suggests that if there were to be anything to be added on, at least that last page would have been filled.
	So they stopped right in the middle of the page which contrary to the impression you have, to me it suggests that they had nothing - the fact that they leave the page - other pages have been filled to the bottom, the last page is left in the middle.  To me it suggests that there's nothing further to add, otherwise they would have continued to fill the page.  What gives you the impression that there is another list?

PROF DE KOKER: My impression or my question only arises from the fact that this is - at the bottom, indicated as being the second submission to the TRC.  I have not had access to the full document so I've only had this at my disposal and that is -   I'm simply putting the question as a matter or for my own information and for my client's sake, we have not had access to the full documentation - I agree this list clearly ends at 1989.

CHAIRPERSON: I think we can simply ask Mr Tsholanku or Mr Mpshe whether they are aware of any other list that goes beyond that period and indeed which also lists the incident in question.
	Are you aware of it or are you not aware?

MR TSHOLANKU: Mr Chairman, my understanding is that this forms part of the second submissions which were brought forth as a result of questions that were asked by the TRC after their first submissions because the concern of the TRC was that there're a whole lot of other incidents that might crop up.  They have a list of all the incidences that their combatants and commanders will be applying for amnesty in connection with.
	They then compiled a list of what they have as per their reports and records and also acknowledged that there are incidences - that is why they referred to them as the grey area, which they don't have a report of and which are not on the list.

CHAIRPERSON: But he's asking whether you are aware if there is another list including this incident, that is what he wants to know.

MR TSHOLANKU: In my person I'm not aware of that particular list.

CHAIRPERSON: Mr Mpshe, are you aware if there is?