Amnesty Hearings — Kimberley — 1997-10-29

PROF DE KOKER: Commissioner de Jager, I totally agree with you but I'm putting this to the Committee because we feel very uncomfortable about the ambit and the extent of the investigations undertaken by the various bodies of the Truth and Reconciliation Commission.  Yesterday, a surprise third witness who was in the car when the instruction were given, surfaced.  Today, it appears that there might be more witnesses who can shed light on the truth.
	Two people are presently in jail, one of them accepted responsibility for throwing the hand grenade.  There were 200 people roughly, involved at this incident, somewhere there must be witnesses who are prepared at this stage to come to the fore and to tell us the truth.  And ...[intervention]

CHAIRPERSON: Professor de Koker, really I don't think we should get into that.  You know, the situation might not be as easy as all that, it may very well be that even the police with their expertise and skill in their investigations were not able to get witnesses to come and say we say such and such a person, be it the convicted people or anyone else for that matter.
	We don't know, it may even be - I mean it's a fact a hand grenade was thrown there and it's a fact that there were people there but how many people - eye witness, did their police with all their skills and abilities unearth?  I don't know, it might just have been very difficult to get eye witnesses and I don't know whether your statement is justified in criticising the investigations so far done, it may not be as easy as you say.  At any rate really, these are matter for argument, I think deal with the evidence and then you can raise arguments later.

PROF DE KOKER: Chairman, I'm not criticising the TRC on this specific point, I have more evidence which makes me uncomfortable about the ambit of the research undertaken into this incident.  I would simply like the Committee to consider - because I regard this Committee as a Committee of Enquiry, to consider other avenues of getting the full truth on the table and to consider whether everything was done within the means of the Truth and Reconciliation Commission to ascertain the truth - that is purely a request, not criticism at this stage.

SISI KHAMPEPE: Professor de Koker, if you have any evidence to put before this Committee to show that the applicants are not entitled to amnesty, it is within your right and that is why you are here, you must do so.  We - I must personally I take ...[indistinct] at the criticism being levelled at our Investigative Unit, I think it's doing a good job and there is no reason for you to criticise it.  If you have evidence to give us, please provide us with that evidence.

PROF DE KOKER: If I may restrict myself then to one piece of information which made us uncomfortable about the ambit of the research.  The applications would have gone ahead in March after only two of the victims - those mentioned in the applications, were informed of the proceedings and at that stage it was postponed because we then made evidence available to the Committee showing that there are many more people who were involved - up to forty at that stage, and that appeared at that stage to have come as a surprise.
	That is some of the information which I would have thought would have been unearthed by the Investigation Unit but I wouldn't like to enter into a discussion or in further criticism of the unit.  I would simply - and that was the whole purpose of this request, ...[intervention]

CHAIRPERSON: Sorry, Professor de Koker, we have a procedure you know in these proceedings, we don't just conduct hearings at random on an ad-hoc basis.  You can't just in the middle of the evidence, while you are cross-examining the witness just stop leading evidence and just start arguing certain aspects of the case in the middle of a hearing.
	We really find this to be causing us great difficulty.  If you have got points to argue, to raise and even you feel you want to criticise some the reports and the like, do that at the right stage.  We're busy talking about certain things which are matters of argument and the witness is in the meantime sitting in the witness box.  The witness is there for you to put questions to him - we lead evidence, finish the evidence and then argue the case later.

PROF DE KOKER: Mr Chairman, I take your indication as it pleases you.  It was not my intention to disrupt the procedure, I will continue with my cross-examination if it pleases you.

CHAIRPERSON: I honestly believe that we have been extremely indulgent and I think you should really now get to the business of leading the evidence.

PROF DE KOKER: As it pleases you Mr Chairman.  Mr Smiles, after the explosion, did you return to the ANC head office and what did you do there?

WALTER SMILES: What I did, I went back to my commander and I told him that the operation was unsuccessful the way I'd done it.

PROF DE KOKER: What did you tell him?

WALTER SMILES: I told him that the operation was unsuccessful, that's what I said.

PROF DE KOKER: And what did he say to you?

WALTER SMILES: We went back to the place with a bakkie.

PROF DE KOKER: Before he got back into the bakkie with you, what did he say when you told him the operation is unsuccessful?  (transcriber's own translation)

WALTER SMILES: No, he didn't say anything, then we went back to the scene.

PROF DE KOKER: Did it come as a surprise that it was not a success?

WALTER SMILES: I don't know, I brought him the report saying it was not a success.

PROF DE KOKER: And what was reaction thereon?

WALTER SMILES: His reaction?

PROF DE KOKER: Yes.

WALTER SMILES: He didn't seem to feel very happy about it.

PROF DE KOKER: But he didn't know that it wasn't a success, you told him about it?

WALTER SMILES: That's right.

PROF DE KOKER: How is it possible that he couldn't know about this?  How was it that he didn't know that this was not a successful operation, was he at head office at the time it happened?

WALTER SMILES: No.  He was at the scene but he went back to head office.

PROF DE KOKER: When did he go back to head office?

WALTER SMILES: He went back when the marchers returned.

PROF DE KOKER: When the march was going back, was this now before or after you'd thrown the hand grenade that he returned - Major Mbatha?  Did he walk back to head office before you'd thrown the hand grenade or after?

WALTER SMILES: Just explain it again please.

PROF DE KOKER: Did you see him leaving the scene?

WALTER SMILES: No, there was a lot of people and they were walking around, so I didn't see him.

CHAIRPERSON: Yes, then he must say so.  He didn't see him, he did not see him when he walked away.

PROF DE KOKER: But it came as a surprise to Major Mbatha that the explosion had not been successful?

WALTER SMILES: But that's how we work in the army, I reported back.  The order comes from upstairs and then you report back, this is how the instruction works.

PROF DE KOKER: According to Major Mbatha's evidence, he was at the scene when the hand grenade exploded.

WALTER SMILES: But that's what I'm trying to explain, he was there but he left with the marchers.  I couldn't see him leaving, there were too many people.

PROF DE KOKER: Was this after the explosion when the people were lying on the ground, when he left?

CHAIRPERSON: No, he didn't see him leaving, he didn't know when Major Mbatha left, he didn't see it.

PROF DE KOKER: When did you see Major Mbatha last during the procession?

WALTER SMILES: When Major Mbatha was part of the march.

PROF DE KOKER: When was the last time you saw him in this procession?

WALTER SMILES: At the ANC office.

PROF DE KOKER: But during the march itself, was he there when the petitions were handed over?

WALTER SMILES: He was there.

PROF DE KOKER: Did you see him there?

WALTER SMILES: Yes.

PROF DE KOKER: Was he still there when they were finished with all the petitions?