Amnesty Hearings

CHAIRPERSON: We are supposed to have started at ten o'clock, but, as you can see, one of us is missing. She is not here yet. There have been some problems this morning which caused her to, not to be here at the time when she should have been here. So, we thought we should apologise to you. We know that some of you probably come from very far and you might be wondering as to what is happening. We will not be able to start until, at the earliest, half past 11, by which time, hopefully, our missing member will be here and as soon as she arrives we will start. So, we will just adjourn until that time. We apologise for the inconvenience.

MR VISSER: I am just wondering whether we could not spend the time fruitfully while we wait for Ms Khampepe. At the last hearings and, particularly, at the very last one there was, again, confusion as to the documents in the matter which should serve before you and what witnesses should be before you. Just very shortly, I do not want to go into a long story, but at that stage the approach of Mr Mpshe was that basically only the two applicants are what is necessary, but the background here is two people have been convicted and a whole number of witnesses may shed light on what you are supposed to investigate in this matter.

I am just wondering, Mr Chairman, well, from that point of view, Justice Mall ordered that a further pre-trial conference had to be held under the Chairmanship of one of the members of the Amnesty Committee and that has not been held and I am just wondering whether it may not be an idea if one of the two gentlemen presiding today would be prepared to assist us in having a short pre-trial conference. We may sort out, out a lot of matter which is just going to take up time later.

CHAIRPERSON: Yes, I think that can be done and, maybe, we should adjourn and then we will pursue that aspect in chambers. We will adjourn.

HEARING ADJOURNS

CHAIRPERSON: ... 27 October 1997. Hearings held in Kimberley in respect of the applications of K L Mbatha and W Smiles. Applications number 3363/96 and 3364/96, respectively and, again, for the record, the panel consists of myself, Judge Ngoepe, and to my left Adv de Jager, SC, and to my right Attorney Khampepe. Mr Mpshe is leading the evidence.

MR MPSHE: Thank you Mr Chairman. I am J Mpshe for the Amnesty Committee within the Truth Commission.

MR TSHOLANKU: Thank you Mr Chairman. Adv Tsholanku for both applicants.

CHAIRPERSON: Will everyone else please place themselves on record?

MR VISSER: May it please you Mr Chairman. For the record, Louis Visser, I am instructed by Wagener, Muller and du Plessis. We appear on behalf of certain persons implicated. They are Petrus Johannes van der Kolf, Christiaan Nataniel Erasmus, Bogiso Moses Kapanda, Gert Adolf Rossouw and Gavin Stewart Starke. They were all, at the time of the incident and in regard to which you will hear evidence, policemen in the service of the South African Police. PROF DE KOKER: May it please you, Mr Chairman, Louis de Koker appearing in conjunction with Adv Jean Nel who is also appearing on her own behalf as a victim.

MR BODE: Thank you Mr Chairman. I am Mr R Bode. I am representing a number of victims. At this point in time there is a limited number of victims that have mandated me. This number may be increased as the hearing continues as I am aware of the fact that all of the victims are not yet present here at the hearing. For purpose of the record, I will spell the names of those victims that I am representing at this point in time, Mr Chairperson.

First of all there are the parents of a certain deceased Mr Ezekiel Mokone, M O K O N E. The names of the parents are Mr A and Mrs E Mokone, M O K O N E. Then, Mr Chairperson, there is a number of victims that were, in fact, injured during the blast at the Trust Bank Centre here in Kimberley. Their names are as follows: Mr D Bethanie, B E T H A N I E, Ms A Kgoro, K G O R O, Ms M Motobe, M O T O B E. Mr Chairperson, I wish to point out that on the initial list of victims her name was spelt as Mothibe, M O T H I B E, but the correct spelling is, in fact, M O T O B E and then, lastly, Mr Chairperson, Mr F Moremedi, M O R E M E D I. Thank you, Mr Chairperson.

CHAIRPERSON: (...Indistinct) for us.

MR BODE: I will do so, Mr Chairperson. Thank you.

CHAIRPERSON: Yes, Mr Mpshe.

MR MPSHE: Thank you, Mr Chairman. Mr Chairman, before we commence, I just want to put certain things on record. Inasfar as victims are concerned, the victims are present, though not all of them, but they are aware, they are seated right in front here. Mr Chairman, in the last hearing wherein this matter was postponed, that was on the 25th of August 97, the postponement was due to, amongst others, the following reasons and I am going to tell the Committee as to what has happened in the meantime. There was a victim, a Mr Cassandra, who was deployed to South Africa by the United Nations to act in the peace mission. Mr Cassandra was not before the Committee then in August and Prof Louis de Koker who is here in, with us indicated that Cassandra would like to attend the hearings and, at that moment, Mr Cassandra was not in South Africa, but he was in Angola. The matter was postponed in order to secure his presence.

What has happened so far, Mr Chairman, is that I got in touch with the Angola Mission in Pretoria about the whereabouts of Mr Cassandra, especially when I was arranging this particular hearing days, and when I phoned the office in Pretoria that very same morning I was told that he was around in Pretoria and I immediately issued a fax to him and made him aware of the hearing days and wanted him to confirm. He did not come back to me, but later on a person at the Angola Mission in Pretoria contacted me that he did receive the fax, but, unfortunately, he has left for Angola once more and this person, a Mr Joseph, informed me that all my correspondence has been forwarded to the United Nations, because it is them who must decide whether Mr Cassandra should attend or not. I have a fax from him to that effect, if the Committee would like to see that fax.

Then later I wrote him a letter again to find out what is the position now and he told me that he was still awaiting the response from the United National Legal Department. On the 20th of this month the gentleman in charge of the Mission in Pretoria telephoned me and told me that he has now a response from the United Nations about Mr Cassandra. One, to sum it up, he read a document to me and he said he cannot forward the document to me, because it is for them and it is confidential from the United Nations, but the effect thereof is to the effect that Mr Cassandra is not allowed to attend this type of a hearing by the United Nations Legal Department. Number two, that if there is any information that we want from Mr Cassandra, we must put that in the form of questions to him, to Mr Cassandra, but via the United Nations, but he will not attend.

Number two, yes, that is all, and this I conveyed it back to him to confirm or telephonic conversation I have a fax to that effect and I requested him to telephone Prof de Koker and make him aware of the contents of the letter as he was the person who had made mention of Mr Cassandra and made, actually made the Committee aware of his whereabouts. That was done, that was confirmed to me by Mr, by Prof de Koker that the information was also conveyed to him. Now, that closes the chapter in as far as Mr Cassandra is concerned.

Another reason why the matter was postponed was that Prof Louis de Koker stated to the Committee that Walter Smiles, one of the applicants, had in 1993, if my memory is my good servant, made a statement and this statement was given to the now Premier of Mpumalanga, Mr Mathews Phosa, and he, Prof de Koker, has been in contact with Mr Mathews Phosa for that statement, but he has been unsuccessful. He did make available to me all the correspondence between him and Mr Mathews Phosa and the Committee requested that I must look into the matter and see if I cannot get the information from Mr Mathews Phosa. I did so, I contacted the Premier, Mr Mathews Phosa, and I spoke to him telephonically and he promised to respond to me in writing, which thing he did. He faxed a letter, a copy of which I do have if the Committee would like to see, and in the letter, the contents, it is simply that, indeed, it is true. The applicant, Mr Walter Smiles, did make a statement indicating that he was the person responsible for the throwing of the hand grenade and Mr Phosa then, representing the ANC Legal Department, contacted General van der Merwe about this and General van der Merwe referred him to talk to General le Roux and Mr Mathews then got in touch with General le Roux on the matter and he gave the statement over to the, but he was told that what he is saying and what Walter Smiles is saying is not correct, he is not the person who threw the hand grenade. The people who have thrown the hand grenade are the people the police have arrested. So, the matter was thrown out like that. I did communicate that ... (intervention).

CHAIRPERSON: Sorry, when was that statement allegedly made, yes, when?

MR MPSHE: It is alleged that it was, sorry, it was made around 1993, around 1993. I then conveyed this information to Prof de Koker and I tried to get in touch with General van der Merwe about this particular statement. In so doing, I got in touch with the, our Investigative Unit in Johannesburg and requested them to get in touch with Mr, with General van der Merwe via his attorney, Mr Jan Wagener. I have a response from the Investigative Unit, in writing, that they did get in touch with General van der Merwe and he cannot, he does not have a recollection about this document which was handed to him. He is not sure whether this happened or not, but he will, all the same, check with head office and revert. Nobody has referred it to me up till this moment. That is ... (intervention).

ADV DE JAGER: The document, the statement was not handed to him, it was handed to General le Roux. Was it not so?

MR MPSHE: Yes, (...indistinct).

INTERPRETER: The speaker's mike is not on.

MR MPSHE: Sorry. He was referred to General le Roux and he did get in touch with General le Roux and mention is not made here whether the statement was given to General le Roux by Mathews Phosa, but mention is made that Mathews Phosa was in touch with General le Roux after he was in touch with General van der Merwe. So, I thought, perhaps, General van der Merwe would have information about it.

ADV DE JAGER: Mr Mpshe, the reason I, because I have written down what you told us and you said Mr Phosa spoke to General le Roux and handed the statement to him and then Judge Ngoepe asked when was that and you said 1993. So, in fact, the statement was not handed to le Roux.

MR MPSHE: If that is what I said, it is not what is referred to in the document, but the impression is that Mr Mathews Phosa after talking to General van der Merwe, got in touch with General le Roux, but his document does not say whether he did give the statement to General le Roux or not. That is why I directed the Investigative Unit to get in touch with General van der Merwe, who was involved at the initial stages, and the response from the Investigative Unit is that he does not have a recollection thereof. So, we could not get that statement that was made, apparently, around 1993.

These were the reasons for the postponement of this matter, Mr Chairman. Thank you, I am speaking under correction. If Mr de Koker would want to confirm, he can do so or.

CHAIRPERSON: Sorry, Mr Mpshe, the, I understand certain two people have been convicted in relation to this incident. Now, this statement, was it made before that conviction or thereafter?

MR VISSER: It was made before, Mr Chairman.

CHAIRPERSON: During the investigations?

MR VISSER: After the investigation had been completed, the then Acting Council, Denzil Potgieter and the attorney Isaacs, approached the police and the Attorney-General's staff, Mr Chairman, with Smiles, in person, and a statement made by him. That statement was then given to the police and to the Attorney-General's office. It was decided, for reasons which will, perhaps, appear later during this hearing, that they were not to act upon that statement and they then proceeded to prosecute Mr Mbakwe and Mr Ngohla, who you will also hear about later, Mr Chairman. That is the statement that is missing.

I may say, Mr Chairman, if, I am not sure it is my place to say this, but, clearly, Mr Isaacs is the man who should be contacted about this statement. He was the attorney and one would presume that he should have a copy of that statement.

PROF DE KOKER: Mr Chairman, if I may confirm the general content of what Adv Mpshe conveyed to you and also support Adv Visser. It seems as if there is general consent that this is a very important document to get hold of. The obvious source would be Mr Isaacs, who drafted the affidavit, and who should have it available somewhere in a file and that file should be in Kimberley.

CHAIRPERSON: But you cannot keep on looking for documents forever.

PROF DE KOKER: Quite correct, but I believe that this is an important document. I do not think that it would be necessary for any matter to be postponed today if simultaneously, perhaps, the Committee could subpoena Mr Isaacs who, apparently, is in Kimberley today to get hold of the document which should be in his file, which is also in Kimberley today, and he could, perhaps, bring it to us during the course of the day without any ... (intervention). CHAIRPERSON: Is he an attorney?

PROF DE KOKER: He was an attorney when he was the legal representative of the applicant and I believe he is now the representative of the Department of Justice in the Northern Cape.

MS KHAMPEPE: Prof de Koker, to your knowledge is his practice still in existence?

PROF DE KOKER: To my knowledge, his practice was sold to a new practice who, apparently, took over the files so that the documentation should still be available.

CHAIRPERSON: I do not think, Mr Mpshe, I do not think there is any problem in contacting him and finding out from him. He may just say, oh, yes, here it is and then give us a copy. Maybe at a convenient stage you can phone him and find out from him.

MR MPSHE: Mr Chairman, may I respond to that, which is also within the knowledge of Prof de Koker. I did contact Mr Rodney Isaacs last month, telephonically, and I made mention to him about the existence, that the alleged existence of a statement and he said to me he was in Pretoria, he would be in Bloemfontein on a Friday, he does not remember what I am saying, but he will check in his file in Bloemfontein and he will come back to me on Monday. He did not come back to me and I did convey this to Prof de Koker and he also made attempts to get hold of Mr Rodney Isaacs to no avail. Mr Bodes also assisted me to get hold of Mr Rodney Isaacs to no success.

He has been contacted, he said he was going to check, but the problem which he raised with me is that he is no more in practice, he has closed the practice, but he will go back and check if he cannot find something to that effect.

CHAIRPERSON: Where is he? Is he in Kimberley?

MR MPSHE: Mr Chairman, he is in Pretoria in the Department of Justice. He has closed the practice.

MS KHAMPEPE: But we have just been told, Mr Mpshe, that today he is somewhere in Kimberley.

MR MPSHE: I am (...indistinct).

MR BODE: Mr Chairperson, maybe I can be of purpose here. I did manage to get hold of the office of Mr Isaacs. He is, in fact, in Kimberley today and I did leave a message at his office, for what it is worth now, to come to the hearing and I also stated the purpose of my call. I also made enquiries at the practice that purchased the practice of Mr Isaacs in order for them to start searching for the file, but I have not yet had feedback on that aspect, but, unfortunately, Mr Isaacs has been out of town, at least, during the course of last week and it was impossible for us to communicate with him.

ADV DE JAGER: Is he stationed in Kimberley or in Pretoria?

MR BODE: Mr Chairperson, he will be stationed in Kimberley very shortly. They are in the process of opening the new departmental offices of the Department of Justice in the Northern Cape. It is a new office that they will have to start from scratch and that is, I believe, in preparation of this new exercise that he has been in Pretoria, but he is permanently stationed in Kimberley, yes, Mr Chairperson.

MS KHAMPEPE: So, what you are saying, Mr Bode, is that you are expecting a call from Mr Isaacs during the course of the day? He should be responding to your message?

MR BODE: Yes, Mr Chairperson.

CHAIRPERSON: Maybe you should give us the telephone number where he can be contacted so that we can give it to one of our staff members to go and phone him.

MR BODE: Yes, Mr Chairperson, the telephone number here in Kimberley will be 823524, 823524. I will do something.

PROF DE KOKER: Mr Chairman, if I then could follow on the second matter, which was raised by Adv Mpshe as the first matter, and that is Mr Cassandra.

MR VISSER: Mr Chairman, perhaps, just to be of assistance. You may wonder why this particular statement may be of importance. In that regard, Mr Chairman, the Attorney-General of the Free State wrote a letter to the Chairman of the Truth and Reconciliation Commission dated the 19th of June 1996. It has just been pointed out to me it is the North Cape division and, Mr Chairman, perhaps, if I could just read two paragraphs to you, you will immediately understand why, what the relevance of this statement will be, apart from the obvious relevance. He says at page two, the second paragraph,

"During the original trial Adv Denzil Potgieter appeared as defence council for the accused. Shortly after the commencement of the trial, Adv Potgieter approached the prosecuting state advocates with a copy of an affidavit, signed by Walter Smiles, in which he accepted full responsibility for the explosion. On the strength of the affidavit, Adv Potgieter wanted the State to stop the prosecution against his clients which would have resulted in their immediate acquittal."

The last paragraph reads as follows:

"After considering the affidavit, the State advocates came to the conclusion that it was a fabrication to secure the acquittal of the two accused. I agreed with them and it was decided to proceed with the case. It was pointed out to Adv Potgieter that he was entitled to call Smiles as a defence witness to prove his client's innocence. In court, however, Adv Potgieter attempted to introduce the statement without calling Smiles as a witness.

This was improper and disallowed by the Judge. Adv Potgieter never called Smiles as a witness and simply left the matter at that."

The point here, that seems to appear from this, is that the Attorney-General's staff, at least, on the strength of the affidavit, decided that it was a fabrication. So, it seems, from that point of view, that it must be of vital importance to your Committee, Mr Chairman. I just wanted to draw your attention to that.

CHAIRPERSON: But he is saying the same thing as he is saying in his papers before us, that he is responsible?

MR VISSER: Yes, indeed, but the point here is that the Attorney-General rejected that statement and without the statement we will never be able to tell whether the Attorney-General acted properly and correctly in doing so or not.

MS KHAMPEPE: Mr Visser, are you able to say, you have just conceded when the Chairperson asked you whether he was saying things in that statement as he is saying in his affidavit before us, are you able to say whether the same affidavit made then is similar to the application that he has made now?

MR VISSER: I am precisely saying the opposite, Mr Chairman. We just do not know what is in that statement and that is the real reason why we really should have that statement. If we cannot obtain it, we will, obviously, have to go on without it.

ADV DE JAGER: But, Mr Visser, can't we get the statement from the Attorney-General?

MR VISSER: Mr Chairman, if that existed in the Attorney-General's staff, you would have had it. We have made enquiries from the very first moment we got involved in this matter and they do not have that statement. Mr Chairman, in fact, we hoped that it might be in the police docket and we have not seen the police docket yet.

ADV DE JAGER: That is very surprising. They have studied the statement, they have come to a conclusion on the statement and they discuss the whole statement, so there must have had it in their possession for quite a time and I cannot imagine the Attorney-General giving back a statement that is relevant, he would have kept it in order to cross-examine Smiles whenever he is called.

MR VISSER: I have no doubt, Mr Commissioner, that you are correct. The only point is that from our enquiries we could not obtain a copy. Well, they are in Kimberley, if you want to direct questions to them, we can have them brought here and they can answer your questions, but we fully agree with you, Mr de Jager. The only point that I am making is we could not obtain a copy and what is strange is that it seems that everybody had a copy.

CHAIRPERSON: Apparently, the court did not call him either.

MR VISSER: The court did not call him, no, Mr Chairman. It was left to Mr Potgieter to call him, obviously, as a witness, who would prove the innocence of the two accused and he was not called.

PROF DE KOKER: And, in particular, Mr Chairman, the defence, who were involved in the drafting of the affidavit of Mr Smiles also did not call him as a witness in the prosecution of their two other clients.

CHAIRPERSON: They might have felt that we had this affidavit here and we will not call him as a witness, it is up to the court to decide whether it wants to call him, because the court is aware of an affidavit in terms of which somebody says, well, I am the one who committed the offence.

PROF DE KOKER: I am not aware, Mr Chairman, that any information about the affidavit was given to the court by the defence lawyers either. ... be so I have not yet had access to the record which is, apparently, available this morning.

MR MPSHE: On the (...indistinct), Mr Chairman, if I am allowed, the court was aware, because Adv Potgieter, during the cross-examination of this witness Nele, did make mention of it and he was overruled by the court that he cannot admit it.

PROF DE KOKER: So mention was made, but the chief witness, then, the person who accepted responsibility for the incident was not called by the defence, but they simply alluded to the affidavit during cross-examination.

CHAIRPERSON: All right, let us not get bogged down on this.

PROF DE KOKER: Mr Chairman, just the last matter and that is in respect of Mr Cassandra. Mr Cassandra seems to be in a very unfortunate position as representative of the United Nations. In that capacity he was injured in the attack while he was acting as an international observer to our country. As a matter of fact, he appears to be the only international observer to South Africa during the run-up to the elections who was hurt in political violence. He was informed of the proceedings informally by us and by Adv Mpshe's office too, but it seems, in International Law, as if informal notification is not sufficient to get the attendance and participation of a member of the United Nations.

Now, I would like to leave his predicament to the Committee. I was only instructed to argue on his behalf in August, so I have no instructions now, but I would like the Committee to consider his predicament. Personally, he was very eager to participate and personally he made it clear that he has information which he would like to convey to the Committee, but formally he cannot do so as a representative of the United Nations unless approached formally and through our standing Commission at the United Nations.

CHAIRPERSON: Sorry, I do not understand that. Can he not, in his personal capacity come and participate? Could he not, in his personal capacity? Does he have to come in an official capacity?

PROF DE KOKER: Apparently, that is the stance taken by the United Nations because he was acting as an United Nations observer when he was injured and that seems to leave very little room for him to also act in his personal capacity.

ADV DE JAGER: The trouble is, I think, we have not got jurisdiction outside the boundaries of the Republic of South Africa to enforce people to come and give evidence, but I think it is common cause that he was injured. Is there anything in particular that would be relevant, and I do not think even if there is we could do something about it, but it is not denied that he has been injured, so he is a victim and he is a, as far as I can see, and it is common cause that a hand grenade was thrown by somebody, at least, and that he was injured while observing. So all those facts we could, I think it is common cause and we could accept that. Is there anything apart from that that is relevant?

PROF DE KOKER: It seems, Chairperson, as if the main evidence that could be delivered by Mr Cassandra would be in connection with the negotiations in terms of the peace accord, in terms of which the march was planned. The assurance is given by the full leadership of all the organisations involved and also communications by the leadership to him personally afterwards while he spent time in hospital. He was very seriously injured in the attack and he has sustained a limp which he will have for the rest of his life.

MS KHAMPEPE: Prof de Koker, I think in August the agreement was we would postpone the matter and that if Mr Cassandra was still unable to personally appear before this Committee, we would be willing to accept representations made by him in writing. I think that that was the agreement and I do not see why that cannot be effected now that he is unable to appear before this Committee personally.

PROF DE KOKER: That is still standing and I believe that is the best solution to our present problem, but the approach would then have to be in terms of our commitments to the United Nations in terms of International Law. So, it will have to be formal. Specific questions, they may be broad, but specific questions will have to be formulated in a formal rogatory which will be sent to the United Nations and, as I understood from the summary, although they felt that the approach was informal, they made it clear that they cannot be forced, as you pointed out correctly, to participate, but they will clearly facilitate the process as far as possible if approached in that matter, manner and I would request the Committee to consider doing so.

CHAIRPERSON: I do not, we do not follow the procedure of the United Nations, we follow our own procedure and as I see, from what Mr Mpshe has said we have given due notice, proper notice to Mr Cassandra, I suppose you call him that. In terms of the Reconciliation Act, we notify victims and that notice has been conveyed to him. The fax was sent and Mr Mpshe, if what he is saying is true and you have no reason not to believe him, somebody in the office, in the Angolan Embassy told Mr Mpshe that the fax had been received and Mr Cassandra had taken notice of it. Am I right, Mr Mpshe, in that regard?

MR MPSHE: That is correct, Mr Chairman.

CHAIRPERSON: Now, right up, up to that, up to there we have complied with the section of the Act. What happens, what the individual does beyond that point, I do not think lies with us. We have complied with the Act, we have given notice to him. Now, we have acquitted our duty and obligations in terms of the Act. We cannot get ourselves entangled in the situation beyond that, because we do not know what the terms of the employment agreement is between the United Nations and its, and the people that he employs. Maybe in terms of, the terms of the employment, if they are injured in some countries, they are not supposed to go back to lay a claim or do anything. We do not know and maybe the United Nations are acting in terms of some kind of agreement, we really do not know, but what I am saying to you is that we can do no more than comply with the Act, which we are to administer, and we have done that. PROF DE KOKER: Mr Chairman, you are quite correct and that is why I started out by referring to Mr Cassandra's position as extremely unfortunate. He seems to be caught between the South African National Law, in terms of which this Committee is acting, and International Law of the United Nations and procedures of the United Nations to which we are ... (intervention).

CHAIRPERSON: Are you sure of what you are saying, Prof de Koker or are you speculating?

PROF DE KOKER: I am interpreting the letters and the communications made both to Adv Mpshe and to myself.

CHAIRPERSON: I would have preferred to be careful about expressing myself on situations which I do not know of and, certainly, I, if the suggestion is that we should convey to him that he can submit representations in writing which is, in fact, a mechanism created by our own Act, I have no problems with that. We can convey to him that he can submit representations in writing in terms of the Act, but I do not want to find myself traversing areas which I am not sure of.

MR MPSHE: Mr Chairman, if I ... (intervention).

CHAIRPERSON: Anyway, I, sorry.

MR MPSHE: Mr Chairman, if I may, at this juncture. It has just been whispered to me that Mr Rodney Isaacs is on his way. Now, pertaining to Mr Cassandra's submitting an affidavit, this I have already done to him in writing, I have got a copy thereof. I did this on the tenth of October. I will read the last important sentence of my letter to him. I said,

"I request that you supply us with an affidavit outlining intentions and submissions to the application."

This was on the tenth of October. It has already been done. Thank you.

CHAIRPERSON: Well, I suppose when you started talking to us you were telling us about the reasons for the postponement last time and the various people have responded to that. I do not know if there is anyone who still wants to respond to that. Otherwise I am going to say we have noted the remarks.

MR TSHOLANKU: Mr Chairman, running the risk of being redundant, at the last appearing when the matter was postponed, a ruling was made by the Chairperson then, Judge Mall, that the so-called implicated individuals will only be allowed room to ask questions in as far as they are implicated. Now, Mr Chairman, I am not well versed with the procedure that applies, but reading through the Act, it appears to me that each Committee can set procedures that will apply on a particular day. The query that I want to raise is, is that ruling that was made by the Chairperson in the last postponed hearing binding on this particular Committee?

My concern is that, my understanding is that a person will only be notified if implicated by the applications as they are sent to the Amnesty Commission. I am not aware of any implications in the two applications that are made by Walter Smiles and Laurens Mbatha. I am simply asking for direction in that matter, as to whether that particular ruling that was made in Bloemfontein will also be binding on this particular Committee.

CHAIRPERSON: I am not sure I understand you, but I understand the rulings which was made by the Committee. In fact, the full Committee a long time ago was that implicated people do not have an automatic right of cross-examination and whether or not, in a particular case, they should enjoy such a right will depend on the circumstances of each case and if granted such a right, it will be enjoyed to a certain extent. Now, I do not think the sitting in Bloemfontein could have set a new ruling which over, could have overridden the previous one, but if you are talking about this particular case whether, if what you want to know is whether, simply because the Committee in Bloemfontein had said that people would cross-examine, we are today duty bound to say to those people, well, look in Bloemfontein a ruling was made that implicated people could cross-examine and we, you must therefore, in line with that ruling in Bloemfontein, ruling in inverted commas, you are entitled to cross-examine. I do not think that that would be the case. I do not think a previous, you see the truth of the matter is that whether or not a right of cross-examination can be enjoyed in a particular case would depend on circumstances of that particular case. So, you cannot make that a ruling before you are aware of the circumstances of the case and make it in advance.

MR TSHOLANKU: Mr Chairman, I fully agree with what you have just alluded to. I think that that is exactly what the Chairperson in Bloemfontein said. I might have put it in a very different fashion. As I pointed out, Mr Chairman, I am not well versed with the procedure. I just wanted to establish if that is the position and it will also still apply today.

CHAIRPERSON: We are normally inclined to allow implicated people to cross-examine, you know, unless, really, I mean, but we have never really denied any implicated person the right to cross-examine, but the issue can only be properly dealt with after one shall have heard the extent to which a person is or is not implicated and then such a debate, I suppose, can arise when you want to contest the right of an implicated person to cross-examine and you say, maybe, well, he is not sufficiently implicated to warrant the right of cross-examination, but that can only arise after listening to the evidence supposedly implicating that person.

MR TSHOLANKU: Thank you, Mr Chairman.

MR MPSHE: Mr Chairman, if the matters have been cleared, I will now hand over to my colleague who is for the applicants. Mr Chairman, Mr Isaacs is here in present. I do not know whether the Chair would like him to come and take a seat and he be questioned about that or I talk to him and find out.

CHAIRPERSON: Talk to him and find out (...indistinct).

MR MPSHE: May I be allowed to ... (intervention).

CHAIRPERSON: Just ask him (...indistinct).

MR MPSHE: May I be allowed to go to him?

CHAIRPERSON: (...Indistinct).

MR MPSHE: I am indebted to the Chair and the Committee. Mr Chair and the Committee members, Mr Isaacs informs me that they are still looking for that file. He just contacted the office, the secretary there is still looking for the file and he intends going to the office himself to go and check if the file cannot be found and whatever happens, he will contact Melanie Bergs to inform her whether the file has been found or not. That is where we are now.

CHAIRPERSON: Can I address myself to you Mr Isaacs, if you do not mind, please? Maybe you can stand next to a mike. How long do you think it would take you to, can tell us whether the file can be found or, more precisely, the statement can be found?

MR ISAACS: Chairman, Mr Chairman, I will, most certainly, myself now go and make a concerted effort to collect the file. I, maybe, took for granted and maybe just hoped, you know, that the file would be found, but the trial finished in December 93, I think, if I am correct, and up until now, four years have almost passed and I think the file, because my brief at that time that, you know, things had been completed, I then filed the file away about a year or two ago and it was because, let me put it this way, that it is amongst my completed files, Mr Chairman, and because I handed my file, my office over to another firm and because I am in another employment now with the Department of Justice, they took the files over into their office and I, what I understand is that all my completed files went into garage.

So, I will, myself, go and look for the file now, Mr Chairman. I think I just should not have depended on other people to collect it. I know how the file looks. It is like one of the thickest files in my office, so I am sure I can go directly to the file, Mr Chairman.

CHAIRPERSON: Well, shall we say, well, by three o' clock would you be able to report to us whether you did find a file or not?

MR ISAACS: I will most certainly do that, Mr Chairman. I will not just depend on your extension of time till three, but I will try to find it as soon as possible, Mr Chairman.

CHAIRPERSON: Thank you very much. Are you an admitted attorney?

MR ISAACS: Yes.

CHAIRPERSON: Is your name still on the roll?

MR ISAACS: Yes, Mr Chairman.

CHAIRPERSON: All right, well, I am just saying that, because, obviously, I am not putting you under oath to give evidence on that. I am inclined to believe that if you are still an admitted attorney, you are still on the roll.

MR ISAACS: Yes.

CHAIRPERSON: It would be, we can safely go along with your, with what you tell us.

MR ISAACS: Yes.

CHAIRPERSON: What you undertake to do for us.

MR ISAACS: No, I will most certainly assist you, Mr Chairman.

CHAIRPERSON: Thank you.

MR MPSHE: Thank you Mr Chairman. We are calling the first applicant, Laurens Mbatha.

CHAIRPERSON: Sorry, we were just putting domestic affairs in order. In what language is your client going to testify, Mr.

MR TSHOLANKU: Mr Chairman, he informed me that he is comfortable testifying in English.

CHAIRPERSON: Are you, well, will you please take the oath?

LAURENS MBATHA: (Duly sworn in, states).

CHAIRPERSON: Thank you.

EXAMINATION BY MR TSHOLANKU: Thank you Mr Chairman. Mr Chairman, I will first ask Mr Mbatha to give us a brief background of his schooling and his political involvement before we get to the merits of the incident of the 25th May 1993.

CHAIRPERSON: I have been requested by the technicians to ask people with cell phones to switch them off, because they interfere with the reception. Please switch off your cell phones if you have got one on. Thank you.

MR TSHOLANKU: Thank you Mr Chairman. Might I repeat myself, Mr Chairman? I will first ask Mr Laurens Mbatha to give us a brief background as to his schooling and his political involvement before we get to the merits of the incident that took place on the 25th day of May 1993.

MR MBATHA: I am Laurens Koeligani Mbatha. I was born in 1968, 25 July. I was born in Kimberley, born and bred up in Kimberley. I started my schooling in 1975 at the Lower Primary in Vergenoeg called Mankuruwani. 1976 Proceeded over to Natal in a small town called Wina, popularly known as KwaNababa, where I did my standard B. When I completed I was at the Roman Catholic School. I then came back to Kimberley. It was in 1978. In 1978 I went to Zingisa Primary School where I did my Standard one and Standard two. Then proceeded over to Zingisa Higher Primary School.

CHAIRPERSON: I think we can take it from your high school. Did you attend high school?

MR MBATHA: Yes.

CHAIRPERSON: Did you pass standard ten?

MR MBATHA: Actually, Mr Chairman, I did my Standard nine and proceeded over, proceeded to Uganda where I did, actually, my A levels.

CHAIRPERSON: And he can come to his political involvement, Sir.

MR TSHOLANKU: Thank you Mr Chairman. Mr Mbatha, prior to you proceeding to Uganda, can you explain to the Committee circumstances that led to you proceeding to Uganda as far as your political involvement is concerned and when did you start being involved in politics?

MR MBATHA: It all started whilst I was still around in Kimberley. It was in 1983, 84, if I recall, actually, quite well. I was actually amongst those students that one would define, at that stage, really, not so involved, because of the political system by then you were really worried that being a member of the structures by then to us, simply meant within no time whatever gathering that we will conduct, tomorrow for you was jail. So, one was really concerned and scared at that time, until an incident did occur. My mother, actually, can pay a witness and some of my neighbours on the street.

We were playing as kids in front of our home with some of the friends that I had. By then they called it, actually, a Caspar, it is, actually, now a Buffel. There were soldiers inside that Buffel who came, actually, passing by and it immediately, actually, halted in front of us. Because of the nature of the vehicle, which was very, that we were not comfortable with, we, actually, flee out of the scene. The soldiers, actually, did actually chase us. I happened not to have ran, actually, into our home, because for me it was not safe. It was only my mother there. I continued, actually, to jump the fences to the following street.

Unfortunately, it happened that I should be caught and was picked up by the soldiers into a Caspar. My mother, actually, came running towards that Caspar. It was about 93, 94, because she wanted to find out exactly what have I done. As, they, actually, responded in turn by saying I was part of a group who, actually, has lifted up a fist, by then symbolising Amandla and I was part of those, when the Caspar came, apparently, insulted them and that was a blue lie. My mother tried to talk to me, they told her they are not prepared even to listen to her further, they drove away with me. There is a place in Kimberley, as they used the Barkley Road, Barkley West Road. It is, actually, popularly known as the Langboom. Those are the tall trees.

They, actually, took me up to there where, actually, I was severely tortured by them and some of the words which were uttered to me, it was very clear that I must know it as from now on that my grandfather was a kaffir, my pas is 'n kaffir en ek gaan dood gaan en vrek as 'n kaffir. That I should know, because they are not prepared to come and listen to me, any nonsense further than that point. I tried to plead. It is repeated that I might not recall that soldier inside there, elderly by age, because I was not conversant with the rank system at that, but the young ones were in part of that Buffel. I could read from their eyes they were very pathetic and sympathetic, because they were young.

What they actually did, they put the two Buffels together. My hands, actually, they had to pull into the other Buffel and the other one into the other Buffel and they started, actually, slapping me in my face. That slapping continued until, I think, the senior one came, started kicking at me, especially on my ankles. I was thrown down that Buffel on the ground where the very senior one came and pressed, actually, his leg, actually, right on top of my head. It was a sandy area, I was alone in that area. Up until at the time I was coughing blood.

One situation, actually, did occur that I would say did actually save me from them, because I never knew what they were going to do. I think it was one of the schools from that distance where we went, we could see, actually, the smoke rising up. I was, actually, left there with my trousers torn apart. They left me there, ran into the Buffels and they drove off. I regard that one, actually, as my point, where all my anger regarding the system started at. It was after that fear, my mother, actually, took a decision, in 1995, fearing that, actually, I might end up being politically involved also, actually took me to Namibia to a school popularly known as Jakob Marengu.

Unfortunately, the school that they took me to happened to have been constituted by students who came from South Africa with different political backgrounds. At that school, it is where, actually, one became more conversant, politically, regarding to certain issues. I became involved in the youth league of Swapo by then that was internally based and a number of community related activities where there was a community based club. The stuff, actually, was more based on acting and it was called, if I recall it well, Club 1000. During my involvement at that stage, my links coming closer with the youth league of Swapo, as a member of Numsa also, that is the student organisation, literature, actually, became to our exposure, because we knew exactly if I wanted any political literature, where one of the members, who happen not to be here today, I learnt it later that he has passed away, he is originally from Upington and that is Tulani. I might not recall his surname.

We had a way of obtaining any political literature that we want and I remember the first one that came into my possession was the one of our present President now, The Long Walk to Freedom. The second thing that, actually, I became familiar with, was also Radio Freedom. So, at that stage with my involvement with Swapo it led up until 1996 where, at that stage, the intensification of, one would defy the South African Police in terms of disrupting Swapo marches. They were starting to intensify and I had a friend of mine, who happen not to be here, who, politically, at that stage, was more mature and stronger than I am. We, actually, took a decision at that stage that, I think, it was the right moment for us that we should, actually, skip the country now.

CHAIRPERSON: That must have been 1986?

MR MBATHA: That is 86.

CHAIRPERSON: Because earlier on you spoke of 1995, then again you said 1996. So, I supposed you are referring to the 80's?

MR MBATHA: Yes, I am referring to the 80's. At that stage we were receiving money from the Namibian Council of Churches as students. We, actually, went to the Namibian Council of Churches only to find out exactly can they finance us to skip the country. The idea was, no, that they cannot do, but we must use our monthly allowances. Unfortunately, for that end of the year, November and December you were paid, actually, a double amount of money. That resulted, I am not sure, is it into R360,00. Myself and my colleague then, actually, left Namibia through Gobabies. When we came into Namibia into Botswana, that is Buitepos, we were arrested, because when we left the idea was very clear, we were going to join the ANC.

I was arrested in Botswana together with Zamkolo. At that time what we learnt, they wanted, actually, arms from us and we told them that we were just students. We stayed in Buitepos in Botswana for a period of ten days until we were transferred to Gabarone.

CHAIRPERSON: Sorry, I am going to ask to make this remark to your representative that he must remember your client is making application for amnesty and he must lead him with reference to the requirements for amnesty.

MR TSHOLANKU: Mr Chairman, I might have misdirected myself, but my understanding is that one of the requirements is to show that he is a member of a political organisation that existed in South Africa at the particular time.

CHAIRPERSON: But do you have to start that far?

MR TSHOLANKU: Excuse me, Mr Chairman?

CHAIRPERSON: Do you have to start that far?

MR TSHOLANKU: I am ... (intervention).

CHAIRPERSON: Do you have to go to Namibia first and then go to Botswana before you can tell us that he is a member of the ANC?

MR TSHOLANKU: Unfortunately, Mr Chairman, this was precipitated by the question that he, how did he get to Uganda. I am not going to try and belabour the point, Mr Chairman. If I am, follow direction, I am inclined to follow direction, but it was precipitated by how he got to Uganda where he did his Standard nine. I can simply direct him as to where to go, Mr Chairman, if that is what the Committee wants. I was trying to avoid a situation where certain information will not be available to the Committee.

CHAIRPERSON: Yes, well, I do not think it is in dispute that he was a member of the ANC, but let us see where he takes us. You, did you eventually get to Uganda as you suggested?

MR MBATHA: Yes, my departure from Angola, we went straight to Uganda, because I was amongst the first contingent.

CHAIRPERSON: Were you recruited to join the ANC?

MR MBATHA: Actually, it is through Radio Freedom, it is through my friend who had, actually, a clear political history, that the whole process became very clear, because he was a strong, strong believer, an admirer, that time of President O R Thambo.

CHAIRPERSON: When you left, when you went to Angola for what purpose was it?

MR MBATHA: It was to undergo, actually, for a military training.

CHAIRPERSON: Did you eventually?

MR MBATHA: Yes, I was trained, actually, into a commanders course for a period of seven months and then from there proceeded over to the German Democratic Republic that is East Germany, specialising in urban warfare for a period of a year. Then coming back in 1998, it was at the era when the agreement was reached, was, actually, reached, that is between South Africa. The Namibian Government through the United Nation that ANC soldiers and the Cubans will have to withdraw from Angola. I happened to have been part of those, that is the first contingent, we left Angola for Uganda. That was in May 1988, 89 and reached Uganda, stayed there in the camps and assumed different political portfolios. I am not sure do I have to state that.

In the camp, actually, as members of those who have trained and experience from Angola, I became a member of the Commissariat Department, I became a member of the Research Department, which was basically there to update lectures, to update political discussions around the camp, as an element which was sustaining us in the camp, because politics was one of the major areas. I became a Company Commissar that trained personnel which came from Angola, I was deployed in it, shifted over now to the newly trained recruits who came in 1991, because it was for the first time that we had four ladies. So, I was, actually, dispatched to that unit as a Company Commissar by the camp administration to handle that situation.

Up until October where I was, actually, deployed now in the Chief Representative's Office, working as an Education Officer. At that stage my portfolio was to ensure, because all this members of MK in Uganda working through the Chief Education Officer of Uganda at a ministerial level, that we should ensure that we find openings for them, that is within all the tertiaries that are available there, including bursaries, that was linked with the World University Service, the South African Extension Unit. That we did proceed up until the end of 1991, the 14th. I have, actually, lost my brother and it was arranged, through the Representative's Office where a ticket was, actually, sent over from the military as to, that I will have to come back home.

So, I reached South Africa on the 14th of 1991, December. I could not attend the funeral of the deceased, because I was late due to some arrangements in Uganda, but now as the breadwinner by then, appeared to be the breadwinner, because my brother was the elder one. The arrangement was made again with Shell House, I should, sorry that I should indicate the name, that happened at, comrade Chris was also still alive that time, where I went, actually, back to them and explained that my position of going back to Uganda, it is not possible, because I am the only elder one at home and my brother was the breadwinner. The agreement, actually, was reached then, because the application had to be done through the internal affairs, because I was only given 30 days to be in South Africa, that I will have to remain. It is at that stage, actually, that my ID document was applied for. So, I stayed in South Africa up until 1992, July where, finally, I was appointed as the Regional Commander of Umkhonto we Sizwe in the Northern Cape. I assumed office up until 1994, that is June, when I was appointed as a Major in the National Defence Force, going through the (...indistinct) process, that is the British Military Aid Training Advising Team and at that stage I am serving at the three, the Third South African Infantry Battalion, that is in Three Sai, where I am appointed now as a Company Commander.

MR TSHOLANKU: Thank you Mr Mbatha. Now, ... (intervention).

CHAIRPERSON: Sorry, sorry to interrupt you. What position did you occupy until 1994?

MR MBATHA: By then I was appointed as the Regional Commander of Umkhonto we Sizwe in the Northern Cape.

CHAIRPERSON: From what year to what?

MR MBATHA: It is from 1992, June, it became effective on the first of September, up until July, the 20th, when I was appointed, that is July 94, when I was appointed in the National Defence Force as a Major.

MS KHAMPEPE: I thought you originally said you were appointed a Regional Commander of the Northern Cape from July. Is it June?

MR MBATHA: I was appointed from July.

MR TSHOLANKU: Thank you Mr Mbatha. So, would it be correct to say on the 25th day of May 1993 you were still Regional Commander of Umkhonto we Sizwe in the Northern Cape?

MR MBATHA: Yes.

MR TSHOLANKU: Now, an incident took place which is one of the reasons why you have applied for amnesty, this incident took place on the 25th May 1993. Would you shed light as to your involvement in this particular incident?

MR MBATHA: My involvement in the incident, as the Regional Commander of MK by then, that on that particular day, I am not sure do I have to go through the history of the day or just directly go to the point of the incident.

MR TSHOLANKU: Mr Mbatha, alluding to the incident, if necessary, if, a brief history of what led to the particular incident is necessary, I, speaking under correction, Mr Chairman, I think it would be proper for the Committee to hear this information. Thank you.

MR MBATHA: That prior to the incident on the 25th of May, that one should indicate it was, the 25th incident was, actually, the second incident that was taking place in Kimberley. What I am trying to say about that, it was not the first blast. It was the second blast, but on that particular day what occurred is there was a march. It was a joint march, that is between Cosas and the Youth League and at the march, predominantly, we had members of Cosas with Youth League, particularly, in leadership, where I became part of the march. The march proceeded from Areno. At that time I was driving with a 16V number plate of RCL, I am not sure about the figures. It was, actually, belonging to the organisation.

Inside there I had some of my command structure members. As we reached centre, that is social centre, it is, actually, on the way as you are coming over to town right in Galishewe. I drove away, actually, with the RCL with my members in the car not realising even and not notifying exactly, because they thought that we were just moving along the road. We drove, actually, back to the office where I picked up the F1 hand grenade and went back to the marchers with the grenade. At that time I drove off immediately as we reached Tikkie Stop. Tikkie Stop is one area in Kimberley as we are fast. Unfortunately, this is how we know it, it is a bus stop. It is at that point that I drove off, picked up one of my members, that is Walter Smiles.

Smiles, actually, entered the vehicle and in the process of driving, when we reached an area right in town, it is called in Afrikaans, die klein OK, small OK. It was that time when I branched off the vehicle with Smiles next to me and the vehicle drove off. It is ... (intervention).

MR TSHOLANKU: What do you mean, sorry, what do you mean by branched off, Mr Mbatha?

MR MBATHA: I, actually, climbed off the vehicle.

MS KHAMPEPE: You and Smiles?

MR MBATHA: Myself and Walter Smiles. It was during the process of the march, because the concentration and the spirit of the march was towards the destiny of the Trust Bank building where the Bop Consulate was. The concentration of the people were there, they could not notice and exactly realise what I was doing at that time. Smiles was just next to me and we were part of the marchers. It was at that time when I told Smiles and those were my instructions, that as soon as we reach the Trust Bank building, after the last memorandum has been submitted and the marchers moving away, you must throw that hand grenade right into that sliding door. That was my instructions to Smiles.

We proceeded with the march. I parted with him, I went to the forefront up until we reached this Trust Bank building. I remember during the last memorandum there was an exchange of words that were coming up from the marchers at that stage and we were still standing in front. One of the comrades, who were senior in the march, came in front, calmed them down, they must calm down, because they were preparing to move away. It was at that time when Smiles threw the grenade, but just at the verge of the door, I might not know his name, he is a security officer, but it is a private company, came out of the door and he was struck by that grenade right in his face.

The grenade, actually, fell off right into the corner, where I should say today, it is where the deceased, Ezekiel Mokone was standing and it exploded from there. The whole situation was very pathetic and a very chaotic one after the explosion. Members of Cosas and the League became victims of that blast including their leadership. When the explosion took off, everybody was running all over the direction. We ran back to the office and I came back with the Bakkie. The victims, we took them immediately over to Kimberley Hospital and at that time Smiles, I think, was still at the ANC office, if I am not sure.

The reason why it became chaotic is that the situation turned out not as planned and expected mainly because of the grenade, actually, strike the security guard in the face and it went back where the deceased was standing, of which that was not intention and it resulted in the death of the deceased, Ezekiel Mokone.

MR TSHOLANKU: What was the intention or what was the hand grenade supposed to do, what was the meaning of throwing the hand grenade?

MR MBATHA: As I have said, this is, actually, not the first, it was the second one at that stage. If one does recall well, during that stage we had a situation where the mass action campaign was introduced, because things were not, actually, proceeding well. We had an operation called Operation Barcelona spearheaded, actually, by the league and at that time, as one commanding, actually, in the Northern Cape, I was commanding in the Northern Cape, actually, focusing on all areas of the Northern Cape. To me, at my level, it became very clear that there is a situation that is starting to build up and, unfortunately, that is being (...indistinct) so fast, but when we proceeded at that stage, it appeared that the intensification was around the right-wingers, of which, when you go to Kuruman, it is about 27km away, they one, actually, one of their largest training camps.

Their training camp there was, it was more on a weekly basis. The intimidation, assaulting of people, was becoming a very common thing (...indistinct) as the Vaal, Haaswaterbel, the situation was becoming very serious and for me, at that stage, I could not come up with a clear distinction, because I regarded the right-wingers, especially from the statements that we are (...indistinct), that they have a very strong force and support within the security forces of the country. That situation did not end up there. One, actually, became more sensitised when one learnt of the Polo Park incidences, when one learnt, actually, about the death of comrade Chris also, that was in April. It became very clear that this situation is not, actually, going out as one, as one was, actually told, or expected that it should have gone.

For me, at that stage, preparations started to occur in the Northern Cape. Preparations were engaged mainly to prepare for the eventuality which might rise and it is unfortunate. I have a very limited strength of members, that is those who were trained. When I refer to a trained MK (...indistinct) I am referring to those who are coming from outside and with that limited number, one had to try and centralise the whole approach, decentralise it, in the sense that we had to reopen up structures all over the Northern Cape and those structures stretched from all areas, that is Kimberley, Upington, De Aar, Posman, Petrusville, you go into Warrington, you go into the Bop Belt, where you have the (...indistinct), you have the Gomotso's, because that was the basis that it is important that one will have prepare himself now, because of these activities that are becoming very visible to us and among which of the civil war aspect was becoming very serious.

CHAIRPERSON: At whom was the hand grenade aimed?

MR MBATHA: The hand grenade was aimed at the building, because that was to clearly signal to the Bop Government that they should know that the intensification of their brutality is numbered up to so far.

MS KHAMPEPE: Will you not come again, Mr Mbatha, what was the reason for launching the hand grenade at the building?

MR MBATHA: We knew exactly it is where the Bop populace Consulate was situated and by throwing that hand grenade inside there, it was not meant, actually, to kill anybody, like the rest of the other blasts that can pay testimony to that, but it was basically to send out as a signal the level and the attitude that was existing by then towards the Bop Government.

MR TSHOLANKU: Mr Mbatha, at your level of this particular as Regional Commander of MK, did you have a mandate or did you have clear instructions to engage yourself in such an act?

MR MBATHA: That is one point that I would like to outline. You see, as a Regional Commander or a Commander, when you are placed in a situation, one of the primary tasks is that you should be able to read the situation and after you have read the situation you should be able to take initiatives within those parameters as the situation was building up and, unfortunately, mine was in the Northern Cape, which was completely different to the rest of the other provinces, of which situations were more conducive and more advanced at their level, which was completely different to mine and mine, it was the starting point where the building up point, the building up position that was become very versible at that time, that the grenades became the one that one is utilised.

MR TSHOLANKU: Yes, ... (intervention).

ADV DE JAGER: Sorry, could you just repeat the last part of your sentence, it became? It was the starting point and then you added something after starting point. I could not catch it.

MR MBATHA: I, actually, said I ended up utilising the grenade for the blast.

MS KHAMPEPE: I still did not hear what you have just said. Would you mind repeating it again?

MR MBATHA: What I actually said is the situation in, that is, my area, that is my tactical area of responsibility, should refer it, that is the Northern Cape, I, actually, used a grenade, that is the word that I have used, utilising, for the incident that took place at the Trust Bank building.

CHAIRPERSON: I am not sure we understand. We do not quite understand the point you are making.

MR MBATHA: I am, actually, responding to the question that has been raised, that, within my capacity, did I act on instructions from above and then I defined that one of my responsibilities, as a Commander, is basically to take initiatives on the ground when you are placed in that situation and when you are faced with a situation you conduct an appreciation. An appreciation is nothing else, but you read the situation, how it envelopes and it develops out of yourselves and then from there it start with your own preparations, because at the end of the day you are the one who is supposed to be handling it. The situation was becoming a very uncertain one at that stage and on my side, with the preparation of those structures, that I have just indicated, (...indistinct) over the entire province. In Kimberley around, because, as I have indicated, this one was just the second one and it happened, it is where the mistake did occur. I am not sure will I have to go back to ... (intervention).

MS KHAMPEPE: We are trying to understand your response to the question from your counsel on whether you had instructions from above or not. Do we understand you properly if we say what you are saying to us is that you did not have any instructions from above, but you had powers as the Regional Commander of the Northern Cape of MK to read the situation and to take the necessary action which you deemed appropriate from time to time?

MR MBATHA: That is, actually, correct, an initiative.

MR TSHOLANKU: Thank you. Mr Mbatha, the objective of this particular incident was it attained and can you explain to the Committee as to what was the objective of this hand grenade throwing incident?

MR MBATHA: It is so unfortunate that one should say today, the objective is linked to the aim, as I have explained, to explode within the building so as to send a signal through, but, unfortunately, because of the mistake that did occur, I have referred to a security officer. I do not have his name, I do not have his name in my possession right now, but during the deliberations of the case itself, it did appear, because he was struck by that grenade, because he was sent, standing right in the centre of the door. It is where, actually, the grenade fell off, because the deceased was standing in a corner and it exploded. So, at that stage, one should say the objective was not attained, but it ended up, it ended up in a very sad situation where comrades, actually, ended up being victims of the whole situation.

ADV DE JAGER: Were there still people in the building when you, they, you threw the grenade?

MR MBATHA: At that stage I cannot exactly confirm, because it was during the time when the movement, people should, will, were, actually, preparing to move away and inside the building, if I recall very well, some of the people, they were not there, but the security guy is within the building was on his way out when the grenade was thrown from behind.

ADV DE JAGER: But the people receiving the memorandum they were still standing in the building?

MR MBATHA: No, at that time the last memorandum, I think, was also handed over and they were preparing to move.

ADV DE JAGER: So, were there no people in the building then?

MR MBATHA: At that stage there were no people in the building.

ADV DE JAGER: An empty building?

MR MBATHA: Within the vicinity, not the building in terms of people upstairs, but the area that I am referring to right as you move from the sliding door, nobody was standing there.

CHAIRPERSON: I think the question was, politically, what did you expect to benefit, if at all, by throwing the hand grenade?

MR MBATHA: One should, actually, say, at that stage, the way the situation was unfolding, at that time, it became very difficult as one, particularly in my capacity, to witness a situation that is building up the way that it was building up in the province ... (intervention).

MS KHAMPEPE: Mr Mbatha, I am going to intervene, because I think you will end up again not responding to the question. We would appreciate if you could try and limit your response to the question as posed to you. I think what we want to know is what were you hoping to achieve by launching the hand grenade?

MR MBATHA: Firstly, the first aim that one was intending to achieve was to show that the political installation within the area was assuming also different things. It was no more only from the other side where one only could say you could get all this funny reactions that they brutal in nature. That was the first one and the second one was to warn, also the Bop Government, because at that stage it was clear that in its intensification with its brutality, within Bophuthatswana, was starting to intensify. So, the aim was to signal that at that stage they must know that there is a different installation and an approach towards them.

MR TSHOLANKU: In your elucidation of the incidents, incident that took place on the 25th of May 93 you kept referring to the office. Could you clarify which office were you making reference to? You kept referring to an office that you went to, to fetch the grenade. I do not think we really understood which office were you talking about at that point in time.

MR MBATHA: It was exactly my office that is within the ANC office. It is where, actually, I kept it. After, I should indicate also, that I took the grenade the very same morning from Sipho and took it over to my office.

MS KHAMPEPE: Who is Sipho, Mr Mbatha?

MR MBATHA: Sipho happens to be the guy who was, actually, charged for this act that he never knew of.

MS KHAMPEPE: What is his surname?

MR MBATHA: That is Sipho Mbakwe.

MR TSHOLANKU: Now that you have mentioned Sipho Mbakwe and also have indicated that he did not, he knew nothing about the incident, there is another gentleman, Kosinatie is his name, Engochla, did he have knowledge of this incident, was he involved in any way in this incident?

MR MBATHA: In as far as that I can recall very well, Engochla was not even around Kimberley by then. If my memory serves me well.

MR TSHOLANKU: So, my understanding is that it was as per your instructions to Walter Smiles that the incident took place? Is that correct?

MR MBATHA: It is true, Sir.

MR TSHOLANKU: You were a member of the MK, what was your relation to Walter Smiles?

MR MBATHA: Smiles was a member of Umkhonto we Sizwe and I happened to be to his Commander by then.

MR TSHOLANKU: And as you have indicated that this was an instruction to Walter Smiles, how is a member of MK expected to react when instructions, to an instruction from his Commander?

MR MBATHA: Normally it is to execute that order or that instruction.

MR TSHOLANKU: Does he have a choice not to execute the command or react to your command?

MR MBATHA: Within the context of the military system, he, actually, executed the instruction as a person, that is very normal, who believed in his Commander, that is all.

MR TSHOLANKU: That I understand, yes, but what I want to put forth to the Committee is whether he had a choice, could he say no to his Commander?

MR MBATHA: Unfortunately, if he says no there is nothing that I can do, but as I am saying, my relationship with him is based on a military one where he believes in what I told him.

MS KHAMPEPE: I think what your attorney is trying to find out from you is whether a person who is acting under your command can refuse instructions given by you in your position as a Regional Commander.

MR MBATHA: Yes, it is true.

MS KHAMPEPE: Are you saying it is true that he can refuse instructions or what?

MR MBATHA: As I am saying, if he refuses there is nothing that one, actually, can do except to call the member in and talk to the member again to explain the importance of that type of exercise or operation to execute. It normally starts from a level where we explain it to the member and when the member understood it then he executes it, but it is not a situation where you just come and it goes off. The first experience, yes, it is different, it is where, actually, you do a lot of talking, a lot of explanations, but with the continuation of the process, it was not the first one. So, already it was something that the member was use to.

MS KHAMPEPE: I am sure, Mr Tsholanku, you want to proceed.

MR TSHOLANKU: Yes, Ma'am, thank you. Was it explained to him on this particular instance what the objective of this particular incident would be?

MR MBATHA: Yes, I did.

MR TSHOLANKU: So, can we safely say he fully understood what were the reasons behind this particular incident?

MR MBATHA: Yes.

MS KHAMPEPE: I do not understand, Mr Mbatha, what you are placing before us. I mean, you have earlier on advised us that you have been a trainer of the units which came through whilst you were in Uganda. Are you saying it was part of the training that a cadre could refuse instructions which he believed were reasonable when they came from a person who is a superior within the MK structures?

MR MBATHA: One should say that there is a difference, actually, between a situation when you refer it to Uganda and it has to do within training camps. Smiles is a product, that of an internal, he was trained internally, he never, actually, went out and the situation so far, it, normally when they train as cadres who are going through, orders are orders to be adhered to, but in a situation like this one, where a member is internally trained, the situation is not as strict as one quantifying as conducive as it is outside. So, inbetween, it is more of a situation that you are trying to take the member very slowly, but you cannot impose very strict laws on that very same member, because the question remains, like I have said, if the member decides that he will abstain, unfortunately, there is nothing that you can do.

So, the best way is that persuasion should be in such a way that the member, actually, understood, believes in you and understands the objective. It is based more on a conscious aspect, because around you you cannot use mechanical approach, which is more conducive within camp situations, that was one would define when you are training soldiers in a camp situation outside then.

CHAIRPERSON: So, he, Mr Smiles, if he had so chosen, he could have decided not to accept your orders? I do not know whether we should call it an order or your instructions.

MR MBATHA: I would, actually, say, yes, and try to elaborate on it.

CHAIRPERSON: I am satisfied with yes unless you feel the need to elaborate, because I thought you did elaborate earlier on to say that there is a difference between somebody trained internally and a person trained externally, but all we wanted to know was to satisfy ourselves that your evidence, as we understand it, was that Mr Smiles had the choice not to carry out an instruction and I understand your evidence to be that, yes, that is the case.

MR MBATHA: Yes, Sir.

CHAIRPERSON: And he could have chosen not to carry out those instructions without any consequences of any kind either from the ANC or from MK. Is that correct?

MR MBATHA: Just repeat your question again, Sir.

CHAIRPERSON: He could have refused to carry out those instructions without or let me put it this way. Had he refused to carry out those instructions there could have been no adverse consequences to him either from the MK or the ANC.

MR MBATHA: Yes, it is true, Sir.

MR TSHOLANKU: Thank you Mr Chairman. I think we have covered all the four requirements for an applicant applying for amnesty.

CHAIRPERSON: What was the purpose of the march?

MR MBATHA: It was an anti-Bop campaign.

CHAIRPERSON: Just explain that a little bit, the ultimate purpose.

MR MBATHA: The ultimate purpose of the march, as I have said, actually falls within the overall intention, that it was an anti-Bop march and to submit memorandums over to the Bop Consulate about the repression that was escalating within Bop and which resulted, also, if I remember very well, the Unibo situation.

ADV DE JAGER: Sorry, the Unibo situation. Do I understand the word correctly?

MR MBATHA: Yes.

ADV DE JAGER: What was the Unibo?

MR MBATHA: Unibo, it is, actually, the situation which resulted, that is University of Bop where one of the students were, actually, severely assaulted.

CHAIRPERSON: I think, sorry, for the record, I think what you should have said to the question was Unibo stands for University of Bophuthatswana. I think that is what the question was all about.

MS KHAMPEPE: Mr Mbatha, who had organised that march?

MR MBATHA: The march was, actually, organised, I cannot specifically say exactly, but it was between the Youth League and Cosas.

MR TSHOLANKU: Thank you Mr Chairman, that is the evidence of Mr Mbatha.

NO FURTHER QUESTIONS BY MR TSHOLANKU

MR VISSER: Mr Chairman, I have noticed that it is quarter to one. I wonder whether it might be an idea for you to take the adjournment now, if I may suggest that, we can, perhaps, sort out among ourselves what the order of questioning should be. I can start if necessary, Mr Chairman, but, perhaps, it might save a little time if we could, if I could get my mind precisely in order.

CHAIRPERSON: I think, Mr Visser, you will have to tell us on what basis you want to cross-examine this witness, because he is not implicating your clients.

MR VISSER: Well, Mr Chairman, we cannot look at this, the evidence of this witness, in isolation. We know, by way of background, that there was a criminal trial in which two people were convicted. That followed a process of police investigation, arrests, detention in terms of Section 29 and later they were brought to trial. In the documents which we were provided by ... (intervention).

CHAIRPERSON: Let me interrupt you for a minute and ask this gentleman. Mr Tsholanku, you said something earlier on at the beginning, was it with reference to the same point I am raising, the difficulty I am raising with Mr Visser?

MR TSHOLANKU: Yes, Mr Chairman, that is the difficulty that was perceived and, if I am correct, a dialogue was entered into between the Chairman then in Bloemfontein and Mr Visser where it was pointed out to him that as per the application that is before the Committee, nothing implicating the person or persons he represents appears and that being the case he will have to justify his cross-examination if he is afforded an opportunity to do so and he would only be afforded an opportunity to do so if there is a tinge, even if it is a sentence or a word that purports to implicate his representees.

CHAIRPERSON: Well, Mr Visser is going to address that point then and you may have to be called upon to respond.

MR TSHOLANKU: I will be glad to do so.

CHAIRPERSON: Yes, Mr Visser.

MR VISSER: Thank you Mr Chairman. Perhaps, I should just refer to the wording of the Act, Section 19, sub-section four, which deals with hearings of this Committee and that section provides,

"... if an application has not been dealt with in terms of sub-section three ...",

which is an informal procedure, as you know, Mr Chairman,

"... the Committee shall conduct a hearing as contemplated in Chapter six and shall, subject to the provisions of Section 33(A), in the prescribed manner notify the applicant and any victim or person implicated or having an interest in the application."

Those are the classes of people, Mr Chairman, who are entitled to receive notification and who are entitled to be before you to have their case put or to put their cases themselves. As I was saying, Mr Chairman, we know that there is a background here of a police investigation, a prosecution in a court and two people were, in fact, found guilty. If you will refer, Mr Chairman, to page 57 of your bundle, that is a Truth and Reconciliation Commission investigative report. It is, well, ours is unsigned. It says, the investigator is Kamagu and Christianson, but what I which to refer you to, Mr Chairman, is, first of all, at page 57 Mr Sipho Moses Mbakwe and Darlington Nkosinatie Engochla are described as victims, right at the top of the page.

Can I then go over the page to page 58, at the bottom of that page you will see that van der Kolf, Rossouw, Starke, all Kimberley Police Department, are described as perpetrators. Now, Mr Chairman, most importantly, may I refer you to page 59, to give you the background of why we are here and what the issues at stake are. First it talks of corroboration and it says that ... (intervention).

ADV DE JAGER: Where are they described as perpetrators?

MR VISSER: Mr Chairman, it is at page 58, right at the bottom, the second-last paragraph under the heading perpetrators and, perhaps, better, in better words than I can explain why we are here, Mr Chairman, we read at Analysis Conclusion at page 59, the following

"Sipho Moses Mbakwe did know about the hand grenade ..."

That was accused number one who was found guilty,

"... and he also brought it to the march. It is not likely to believe his explanation that he did not know that it was going to be launched at the venue. The police would most probably have been of the same opinion and when Nkosinatie ...",

that is Engochla, who was accused number two, Mr Chairman,

"... admitted to having launched the grenade adding the statement of the State witness ...",

that, Mr Chairman, is Mr Ngqele, N G Q E L E, N G Q E L E, Mr de Jager,

"... the conviction seems to be in order."

Then it follows on,

"Now if the statement and sworn testimonies given before the Commission are to be believed, the police fabricated the case and that theory is supported by the remarks that the two inmates refused to apply for amnesty or parole",

and it is said in parenthesis,

"(However, Sipho ...",

that is Mbakwe,

"... did apply for amnesty, but was, but it was clearly a mistake due to lack of information). Based on the information given, the two inmates ...",

that is Mbakwe and Engochla,

"... must be described as victims of gross human rights violations."

Now, that is the way this whole application fits together, because what we have here is two convicted persons serving a jail sentence and two others coming to the fore to say those people never committed any wrong, we are the ones that did so. That, Mr Chairman, is, in plain words, not due to a mistake made by the police or by the Attorney-General or by the judicial system, but on purpose. That is the point that is made. At the time when these witnesses gave evidence before the Committee for Gross Violations of Human Rights, there was an outcry, because of certain findings that were made at the time and it is in your record. We might be allowed, later, to refer you to them, which elicited quite a reaction from the Attorney-General of the Northern Cape, Mr du Plessis. I read one letter to you a little while ago.

The point here, Mr Chairman, this witness may not, specifically, say anything about the police, but the next witness, Smiles, will definitely have things to say about what the police did when he went to present his statement, Mr Chairman, and all of this you must read against the evidence that was given by Ngqele before the Gross Violation Committee by Mr Smiles, by Mr, that the police intimidated people, they did not want to listen to reason, there is even evidence of threats, of assaults and killing. That is the background, Mr Chairman.

Now, if I do not cross-examine Mr Mbatha and Mr Smiles walks into the witness box and he implicates, directly, the people for whom I appear, then I am going to have to call Mr Mbatha back, because I have to build up some sort of platform upon which I have to cross-examine Mr Smiles when this issue arises.

CHAIRPERSON: Are you saying that you anticipate Mr Smiles will implicate your client?

MR VISSER: Well, absolutely, Mr Chairman, absolutely. That is our anticipation. Look, if, with all due respect, if Mr Smiles and Mr Mbatha will tell you here under oath that they have no qualms about saying that the police did nothing wrong, the justice system did nothing wrong, it was just an unfortunate mistake, I would take instructions that the probabilities are that I will be back on the aeroplane to Pretoria this afternoon.

MS KHAMPEPE: But, Mr Visser, I mean, how is Mr Smiles going to implicate your clients? I understand that that implication would only be to the extent that they refused to accept his statement.

MR VISSER: Well, is that not enough? Is that not enough, Mr Chairman? The point that is made here is it was not a mistake. The police did not want to listen, the Attorney-General did not want to listen. That is the point.

MS KHAMPEPE: If that is so how does that information impinge on the evidence that is given by Mr Mbatha already?

MR VISSER: I am not saying it does or it does not. All that I am saying is I am entitled to ask questions in cross-examination as an interested person in the outcome of this application, because if Mr Mbatha's application is allowed by this Committee, by necessary implication it would mean that the police did not do their job. They investigated, brought to trial and had people prosecuted and found guilty.

CHAIRPERSON: But they acted in terms of the available evidence, evidence that was there before them.

MR VISSER: Well, that is correct. As I say, again, if these two applicants before you today come and absolve the police of all blame, of all blame as a result of what had happened, Mr Chairman, with great respect, I would advise my clients that we can go home.

CHAIRPERSON: Why should it be necessary for them to absolve the police? They, if they do not implicate them, why should we, how can they absolve the police? How can the issue arise of absolving, not absolving the police?

MR VISSER: Mr Chairman, could you turn to page 51, just by way of an example.

CHAIRPERSON: Before you go there, you referred us to a report by the Investigative Unit where they referred to people as perpetrators and victims. That is their own definition which is a wrong definition and we are not going to say that, to base our decisions, one or the other, on the basis of definitions given by the Investigative Unit. It is plainly wrong, their definitions are plainly wrong.

MR VISSER: The point ... (intervention).

CHAIRPERSON: We have got our own understanding of what the victim is and we, I think we should be guided by our own understanding of who the victim is and who is the perpetrator.

MR VISSER: I have no doubt that you are right, Mr Chairman. The only point that I was making is that this analysis and conclusion must have come from somewhere and it could only have come from the evidence.

MS KHAMPEPE: I think, sorry Mr Visser to butt in, I think, you know, the categorisation of people here in terms of victims and perpetrators was as a result of an application made by Mr Mbakwe and Engochla before the Human Rights Violations Committee which they were entitled to do in terms of Section 12 and the investigations which ensued was as a result of that application and that is why you have people being described as victims, because in terms of their own application they described themselves as victims and they described the names of your clients as perpetrators. That is clearly as a result of their application in terms of Section 12, which is different from the application in terms of the amnesty process.

MR VISSER: May I add one further aspect, Mr Chairman, I see Mr de Jager has got his finger on the button and that is this. Due to the fact that we act for the police in this matter there may be assistance which they might be in a position to give you which may assist you in coming to a conclusion. I make the point, I take it no further. What I wish to say now is the following, Mr Chairman. I am quite happy not to ask any questions of Mr Mbatha, because you are quite correct, he did not implicitly imply any of my clients. I do not argue with that, but we will stay here, Mr Chairman, and when Mr Smiles comes in or anybody else comes in and implicates our witnesses, then I will have to call Mr Mbatha back, Mr Chairman, because there are a lot of question marks on the evidence which he gave here today, which we will have to take up with him.

On that basis, Mr Chairman, I do not know whether that is of any assistance to you. I can wait until such time as a witness implicates my clients and if nobody does, then I have got a free ride, Mr Chairman.

CHAIRPERSON: The one thing that we must make quite clear. There has been a lot in the media and all other things about this kind of, about this matter and I am told papers have already been filed by the people who were then convicted to challenge their conviction, something to that effect. The one thing that we should understand that your, the police cannot hope to do would be to come here and say, well, we oppose application, amnesty to these people, because with a purpose of trying to prop up the conviction of the other people. We are not going to be a platform where the police would come here and try to use our system as a way of trying to uphold the conviction which took place in the Supreme Court.

MR VISSER: No, I am sorry.

ADV DE JAGER: Mr Visser, could I, I think at this stage, at least, as you have pointed out that it is not a word implicating your people. So, at this stage of the proceedings I do not think that you have got an interest on the evidence thus far which you should protect and on which you could cross-examine. It may be another thing with the further developments, but at this stage, as I said, going on the evidence there was not a word of police involvement in anything irregular. So, (...indistinct) stated if there is no implication, if your clients are not implicated or you agree that there is no reason why you should cross-examine.

MR VISSER: Commissioner de Jager is quite correct. May I just add one further detail and that is, perhaps, that one should not only think in terms of implication. It may be, Mr Chairman, that there is an interest that may arise. It has not arisen yet, but it may be an interest that arises and then I will, obviously, make noises from my side and ask you for us to be able to cross-examine. See, Mr Chairman, the whole issue here seems to be, the interest here from my client's point of view, seems to be that there may be aspersions, allegations that there were some defeating the ends of justice. Now, that is what I am here to protect, it has not arisen yet and I quite agree with Mr de Jager, perhaps it is an idea for me just to keep quiet until the situation does arise.

CHAIRPERSON: You are suggesting we should not excuse the witness, we should keep him at, keep him around just in case you may feel the need to apply for him to be called back?

MR VISSER: I am afraid, Mr Chairman, that would be the practical problem. The practical advantage may be that he might not have to be called back, but the difficulty is that he may have to.

CHAIRPERSON: Mr Tsholanku, I do not know what your attitude is, but I think that Mr Visser's suggestion is that it may be that he may have to ask that this witness be recalled and that he wants to play it by the ear to hear whether his clients are being implicated in the next, through the next witness or whether there would be a basis on which he may cross-examine the next witness or, indeed, even this witness. So, the suggestion is that the witness should not be excused finally, but he should remain available in case there is such a request and the request is granted that be, that he be called back and I think, under the circumstances, I think that that is a, that that is the best option.

MR TSHOLANKU: Mr Chairman, I am inclined to agree that it is a fair option.

CHAIRPERSON: Okay. Shall we adjourn and start at quarter to two to try and make up for the time we lost this morning? We will adjourn until quarter to two.

HEARING ADJOURNS

LAURENS MBATHA: (Still under oath).

MR VISSER: ... my submission that what we are busy here doing is to try to establish the truth. It is a problem with the electronics.

MR MPSHE: Mr Chairman, ... (intervention).

MS KHAMPEPE: Sorry to interrupt.

MR MPSHE: ... this announcement that channel five is now English.

MR VISSER: Four.

MR MPSHE: Four is Afrikaans according to this. Four is Afrikaans. It is channel five.

MR VISSER: Can I test it for you? Can you hear it?

MS KHAMPEPE: Yes.

MR VISSER: Mr Chairman, the point of the proceedings here must be to discover the truth. The question must be whether each of the applicants that give evidence before you is telling you the truth. Is there a problem Mr Chairman?

MS KHAMPEPE: Mr Mpshe seems to be having a problem, Mr Visser.

MR MPSHE: Thanks Mr Chairman, it has been sorted out.

MR VISSER: With respect, Mr Chairman, in the quest of the Committee to discover whether there was a full disclosure, the truth must play a significant role and when one has the situation, as we now know it is in this case, where there are material discrepancies in the evidence between various witnesses and in the evidence of the witness this morning here himself, the question is whether you will close your eyes to those discrepancies or whether those discrepancies should be placed before you by somebody who knows what they are and who has made a study of them which is, of course, where we come in, Mr Chairman. We can be of assistance there to point out these discrepancies to you.

For example, just to mention an example. At the trial of this case, Mr Chairman, Mr Engochla, the person who is really the one who Mr Smiles wants to take the place of, who threw the hand grenade, he pointed, he made a pointing out to the police where he said he stood when he threw the hand grenade. He made a confession during the pointing out that he, in fact, threw the hand grenade. Issues like that, Mr Chairman. The statement which you have just been handed by Mr Smiles which was handed to the Prosecutors, I do not know whether you had sight of it, which bears virtually no resemblance at all to what his statements to the Gross Violations of Human Rights Committee was going, had been.

The point here, Mr Chairman, is that, certainly, my clients do have an interest that the truth be seen to be investigated and be seen to come out. They also have an interest in not being thought of as persons who might make themselves guilty of thwarting the Law. Mr Chairman, with respect, we believe and we submit to you that we have a right to cross-examine Mr Mbatha and we ask you for a ruling. If you say we do not have such a right then, Mr Chairman, perhaps you should make that this can be tested. The point is that we seem to be running into this kind of problem every time we arrive, most of the times, when we arrive at this Committee in order to show somebodies innocence. It seems to be that when it is an applicant in an amnesty application who confesses his guilt, it seems to us that the Act and the procedures are geared towards that end, but it does not seem to us that the Act is really geared to accommodate a person who comes and want to tell you that he is innocent of allegations that are made, whereby he is either implicated or in which he has an interest. So, with respect, Mr Chairman, that is all I have to say. May I just ask my attorney?

Yes, Mr Chairman, just by way of, by way, lastly, by way of example, if one takes too strict a view of an implicated person then the question arises what about Adv Jean Nel, she is not an implicated person, she merely has an interest. The same with the late Chris Hani's wife. She never had an interest, she was not implicated, she only had an interest. So ... (intervention).

CHAIRPERSON: That they were victims. The people you are mentioning are victims.

MR VISSER: But, Mr Chairman, that is why we read to you Section 19(4), the distinction does not appear from that. It is any person, Mr Chairman, who is either implicated or has an interest, with respect. So, those are my, our submissions, Mr Chairman. We are here, we are here to assist the Committee in, at the same time, primarily, we are here to protect the interests of our clients and we believe that the only proper way in which we can do it is to highlight to you the fact that, perhaps, some of the witnesses, perhaps this witness, is not telling the truth which is vital for you to understand and to appreciate in coming to a conclusion on the amnesty application.

CHAIRPERSON: Mr Visser, I think we should indicate to you that we are very reluctant to allow ourselves to get entangled in the whole question as to whether or not certain people were wrongly convicted. That is the problem for the Supreme Court, I do not know there is in Kimberley or Bloemfontein. I have already mentioned that we have come to know that papers have been filed and I am sure there is going to be an argument about whether or not that conviction of those people should be set aside or not and I am sure one of the people you have mentioned, Mr Nele, has filed papers and I am sure there is going to be a huge, possibly, there is going to be a huge dispute of fact and those people who filed affidavits in support of that application are going to be called upon to come and testify and the like.

Now, we do not want to take that problem, which is not ours, and bring it into our arena and find ourselves involved in an argument here as to whether or not the conviction of those people was good or bad. Those who want to support the conviction of those people must go to the Supreme Court concerned, file affidavits and, or go and lead evidence there. Those who say that conviction or those convictions are bad must file papers with that court and go and give their evidence there. We are going to be very reluctant to allow ourselves to take that problem, which is not ours, and bring it here and find ourselves sitting here having to decide whether or not the conviction of those people is good or bad. That is not our problem and we will try by all means possible not to get ourselves entangled in problems which are not ours.

Now, to the question of, the point that you have raised now, it is not really a new point, because, Mr Visser, surely it is so that every person in this country wants the truth to come out. Everybody in this country is interested in the truth coming out. One cannot, on that basis, simply because somebody is interested in having the full truth told and say, well, that gives the person the basis on which that person can participate in the proceedings. It must still boil down to a particular individual. That particular individual must still show that him, I am talking about people with interest, they must still show that they have got interest in the proceedings and this simply takes us back to the same argument which was raised before lunch time.

I do not think we have, anybody has got a problem about the fact that your clients are interested in having the truth told. Indeed, everyone in this hall is interested in having the truth told, but does that give them, bring them within the ambit of that section? No. They must, as individuals, still show the basis on which they will be entitled to participate to the extent of cross-examining witnesses and I am not so sure whether the argument is any different that, than when we broke up for lunch.

In the meantime though, Mr Visser, well, you have suggested that we should make a ruling. It crosses my mind that, perhaps, if we are to make a ruling with regard to Mr Mbatha, perhaps it would be better not to do so now. It might be better to wait until your colleagues representing the victims have cross-examined. It may be that from their cross-examination it may emerge that your clients have got some legal basis to cross-examine the witness. It may be that during their cross-examination they may elicit some evidence which may tend to establish your client's interests one way or another and I thought, maybe, we should shelve that point and then let the other people put questions and only thereafter, your client's position, viz a vie this particular witness can only be properly assessed. After all, simply speaking, the witness has not finished testifying.

MR VISSER: Mr Chairman, your suggestion is eminently acceptable. Thank you, we, and we do accept it. May I just comment on what you have said. First, we must not lose out of sight that based upon the evidence that is accepted by you here and reflected in a report, in a judgment in this particular case, there may be a Presidential pardon of those two persons sitting in jail without us going through the proper process of going through a Court of Law, etc. So, there is that nagging problem in the background. The other thing is, Mr Chairman, is, perhaps, I did not explain it properly enough or clearly enough, is that the interest which I was talking about is the interest of my clients in not being thought of as people who are not upholding the Law and who may be charged for defeating the ends of justice. That is also an interest, but we accept your suggestion at the moment and we abide by that.

CHAIRPERSON: Who is next between Mr Bode and Prof de Koker.

CROSS EXAMINATION BY PROF DE KOKER: Mr Chairman, if you will be so kind as to permit me to start. The application of Major Mbatha raised a number of questions for us. If you will permit us we will commence with a number of general questions and then proceed to the particular.

Major Mbatha, you explained to the Committee that you acted as the Commander of Umkhonto we Sizwe in the Northern Cape. I would like to clarify your position. Can you please inform the Committee as to the people whom you reported to? So, the people directly in charge of you and your actions.

MR MBATHA: Is it regarding the incident of the 25?

PROF DE KOKER: Regarding your general position as Commander of Umkhonto we Sizwe in the Northern Cape, who did you report to directly?

MR MBATHA: Directly to the Chief of Staff's office, that is military HQ.

PROF DE KOKER: If you could just clarify that, Chief of Staff's office, military head?

MR MBATHA: Headquarters.

PROF DE KOKER: And the specific person that you reported to and took orders from?

MR MBATHA: There the Chief of Staff was General, Lieutenant-General Spenyanda at this stage.

PROF DE KOKER: You are referring to the time 1992 to 1994?

MR MBATHA: Yes.

PROF DE KOKER: Thank you very much and the persons who you served ... (intervention).

CHAIRPERSON: Sorry to interrupt you. I did not know the name, I did not hear the name of the person clearly. Who?

MR MBATHA: Yes, the Chief of Staff was Spenyanda.

PROF DE KOKER: You referred to a number of people who served under you, a limited number of people. Can you name them for us? MR MBATHA: Within my command structure I, as Laurens Mbatha, was the Regional Commander. My Regional Chief of Staff was the late Major Tebigo Matsiwane, my Regional Chief of Personnel was Mr Johnson Janga, my Regional Chief of Projects was Butemelo Mabilo and the Regional Commissar, Sylvester Modise. Those were the people in my command structure.

PROF DE KOKER: No one else served in your command structure?

MR MBATHA: Only those members that I have mentioned, because Johnson Janga replaced Thabo Morose who was initially our Regional Commissar, but because of the illness, that is a mental, actually, disturbance, sustained out of torture, he could not make it. We had to bring in a member. So, the member even at this stage is still undergoing medical treatment.

PROF DE KOKER: Where did Mr Smiles fit into your structure?

MR MBATHA: Smiles, as a member, he was part of the unit that was in Kimberley. It was, when I define it, a reinforced company.

PROF DE KOKER: How many members did this unit have?

MR MBATHA: The unit, actually, had the strength of about 120 people.

PROF DE KOKER: You mentioned, Major, that you had your office in the regional headquarters of the ANC, if I understood you correctly. What was your relationship with the civilian leadership structure? Did you take any orders from them?

MR MBATHA: They are my senior, seniors, in terms of my operational scope in the province. It is part of my tasks to work hand-in-hand with them.

PROF DE KOKER: If I understand you correctly, you work hand-in-hand, but they were your seniors and you took instructions from them?

MR MBATHA: Yes, it is true.

PROF DE KOKER: Were you ever nominated and elected to the civil leadership structures of the ANC or any of the related organisations?

MR MBATHA: No, not with MK. MK, actually, operated only as a command structure.

PROF DE KOKER: If I may ask you, in particular, Mr John Block, what was your relationship with him?

MR MBATHA: John, as that time, was the Chairperson of the ANC Youth League and as part of the broad leadership of the organisation, MK as the military wing. Within the mass democratic movement, we had that relationship that we had, very strongly. We would be called in, for instance, if members of the league would move from one point to another, they would request maybe a member of MK to be part of that vehicle, because of the situation by then. That was the relationship that was existing.

PROF DE KOKER: Did you regard Mr Block as your senior or as your junior?

MR MBATHA: As my senior.

PROF DE KOKER: Where did you obtain the hand grenade initially?

MR MBATHA: The hand grenades came into my possession after the situation became very unstable, from my command structure, we convened a meeting of all the command members. If could correct, actually, define the word correctly, was that we are too naked and we need, actually, to prepare ourselves for this coming eventuality. So, the donation of those grenades, at this stage, came from Thabo Morose, who happened, at this stage, not to be mentally fit.

PROF DE KOKER: If you refer to the command members, I take it you are referring only to those in the Northern Cape?

MR MBATHA: Thabo was then, was part of the command structure.

PROF DE KOKER: Do you know where Mr Morose obtained the grenades?

MR MBATHA: At this stage he obtained them during the time when he was still operational.

PROF DE KOKER: Do you know when he obtained it?

MR MBATHA: No.

PROF DE KOKER: Yet he was under your command?

MR MBATHA: The command structure came into existence in 1992, but members that I am referring to, the operational scope of Umkhonto we Sizwe members, had been operational before that time.

PROF DE KOKER: How many hand grenades were there in your possession?

MR MBATHA: Altogether there were three.

PROF DE KOKER: What happened to the others?

MR MBATHA: The other two were utilised, actually, for the support base based in the township.

PROF DE KOKER: Can you clarify that answer, please?

MR MBATHA: The other two grenades were used for the military support base based right in Vergenoeg.

PROF DE KOKER: In what way were they used?

CHAIRPERSON: Were they used to commit of, other offenses?

MR MBATHA: Yes.

PROF DE KOKER: Can you clarify and explain those offenses and give dates?

CHAIRPERSON: You are not applying for amnesty in respect of those offenses are you?

MR TSHOLANKU: He is not applying for amnesty in respect of those ... (intervention).

CHAIRPERSON: They are not before us, Mr de Koker.

PROF DE KOKER: I hear you, Mr Chairman. What I am trying to find out, Major Mbatha himself referred this incident as the second. Now, I am trying to find out what the first incident entailed. If you rule that I am not allowed to question that, I will accept the ruling, but, unfortunately, it will leave a gap in the evidence which Mr, Major Mbatha himself raised.

CHAIRPERSON: No, it does not leave a gap. We normally do not allow a cross-examination to deviate from the incident in which a person wants amnesty, then to go and deal with another incident for obvious reasons.

PROF DE KOKER: If you will be so kind to allow me, then I will withdraw this question, but I would like to know notify you that we might come across it at a later stage precisely where it will link with the evidence that Major Mbatha gave and I would like you then, perhaps, or for us, then, to reconsider the issue.

The particular hand grenade apparently had a history. Can you, perhaps, tell us how it came into your possession, how it left your possession and then came into your possession again before you handed it to Mr Smiles?

MR MBATHA: The process, actually, that it should come into my possession started when the situation in Windserton, a clear, serious fight, actually, emerged in the area where the local people, actually, fled their places. I came into the area with the basis of trying to restore what, at that time became clear, that the whole issue appeared to be political in nature. So, to clear the problem up it became very clear that a difference was between a member, who was part of the civics, of which, at the very same time, Cosas, Youth League, ANC's Women League, even the ANC was controlled by the very same individual. The whole situation ended up in a type of fighting, explosive situation in the area.

I went into the area, spent a period of about three months just to try and clear up that particular area, tried to restore the structures concerned and tried to put away the civics as a community based structure, that the civics, actually, is a border structured opened for all political parties and, at that stage, it was totally unacceptable for them to gain control over the structures of the league and Cosas that was existing, because lives of people were also at stake, because the in-fights were there. At that type of situation, when I was moving around, I was moving around with that grenade, it was after we had cleared the problem, because everybody, really it was a very, a situation that is very unhappy, that was, was prevailing there. A situation occurred in Daniel Scale ... (intervention).

CHAIRPERSON: Sorry, I am not so sure whether we should drift that far from the question. I think the original question, as I understood it, was how it came about that you possessed that hand grenade.

PROF DE KOKER: And then, Mr Chairman, to whom was it handed. It was handed back and then handed to Mr Smiles and I would like Major Mbatha to take us through those actions.

MR MBATHA: When I went to Daniel Scale there was fight between, an imminent fight between the marshalls and the police. After addressing the marshalls to stay away from the problem ... (intervention).

MS KHAMPEPE: Mr Mbatha, may I interrupt? The incident you are referring to now, in Daniel Scale, did it come before the Windserton incident or after?

MR MBATHA: It is, actually, after, because I want to establish the point, the grenade, because the point that is coming up here is to he, actually, did lend to and how did it came it should lend to him.

MS KHAMPEPE: Well, I think you must first explain how it came into your possession before you can get to a point where it lands into somebodies elses possession, until it, also, lands into the hands of Mr Smiles.

MR MBATHA: It came into my possession because I was working within the Windserton area and it was a fighting faction area that had started in the area. There were clear, open fights. It was at that time where I carried, I was moving around, carrying out that grenade.

MS KHAMPEPE: Who gave it to you?

ADV DE JAGER: You told us the hand grenade was given to you by Thabo Morose. Is that correct?

MR MBATHA: Yes, it is true.

ADV DE JAGER: So you had it in your possession then?

MR MBATHA: They were all in my possession.

ADV DE JAGER: Did it leave your possession at any time?

MR MBATHA: When we came from Daniel Scale ... (intervention).

ADV DE JAGER: And (...indistinct).

MR MBATHA: Yes.

ADV DE JAGER: Did it leave your ... (intervention).

MR MBATHA: Yes.

ADV DE JAGER: ... possession? And to whom did you give it?

MR MBATHA: I gave the grenade to Sipho Mbakwe.

ADV DE JAGER: Right. Now, from Sipho, when did you receive it back?

MR MBATHA: The Monday morning, the day of the march. That time it was, we never knew that there was going to be a march. I came the morning, because I gave him on Friday, because I was still going to Windserton and took it from Sipho.

ADV DE JAGER: Yes.

MR MBATHA: That was the morning.

ADV DE JAGER: So, you gave him on the previous Friday and ... (intervention).

INTERPRETER: The speaker's mike is not activated.

ADV DE JAGER: ... (...indistinct).

MR MBATHA: Yes.

PROF DE KOKER: Thank you Mr de Jager. Major Mbatha, I just want to clarify, Daniel Scale, you visited Daniel Scale on the Friday. Is that correct?

MR MBATHA: I cannot specifically exactly say, but I think it is around Friday.

PROF DE KOKER: The handed grenade was, therefore, in the possession of Mr Mbakwe, according to your statement, from that day till the Monday, which would be three or four days?

MR MBATHA: Yes, yes.

PROF DE KOKER: And you retrieved the hand grenade the Monday morning?

MR MBATHA: Yes.

PROF DE KOKER: How did you retrieve it and at what time?

MR MBATHA: It was exactly in the morning between eight and half past eight. I went to the ANC Youth League, went to Sipho and requested for the grenade of which he gave me.

PROF DE KOKER: What happened to the grenade then?

MR MBATHA: I took it back to the office.

PROF DE KOKER: Major Mbatha, in the documents at our disposal, page two, if I could specifically draw the attention of the Committee, you will find on page two the affidavit by ... (intervention).

ADV DE JAGER: Sorry to interrupt you. Sipho was not at the office when he handed the grenade to you?

MR MBATHA: Yes, the morning that day he was in the office.

ADV DE JAGER: He was in the office?

MR MBATHA: Yes.

ADV DE JAGER: So, you said you went to the Youth League, you asked him for that grenade and, you went to the Youth League, you asked him for the grenade and he gave it to you and then I took it to the office, but you were in the office.

MR MBATHA: The Youth League was sharing a different office and the ANC was sharing a different office.

ADV DE JAGER: Thank you.

PROF DE KOKER: If I may draw the attention of the Committee to page two of the documentation in front of you. I believe that is the second bundle of documentation. The written affidavit by Mr Sipho Moses Mbakwe. According to this statement, Major Mbatha, second paragraph Mr Mbakwe acknowledges that he accompanied you to Windserton and other places. Then if I may quote.

"When he dropped me off back home I realised that there was something extra in my bag. I saw that it was a hand grenade. I left my bag in the Kombi while we were at Windserton. I knew it must be his. He was the only person who had access to such things.

The following day I confronted him. He told me he had forgotten it and would fetch it from me.".

Is that a correct statement?

MR MBATHA: It is rather unfortunate that it is not a correct statement.

PROF DE KOKER: So, according to you, Mr Mbakwe lied under oath in this affidavit?

MR MBATHA: I would, actually, say the statement is not correct.

PROF DE KOKER: Therefore Mr Mbakwe, according to you, lied in this affidavit? Furthermore ... (intervention).

CHAIRPERSON: I think it is incorrect. He says it is incorrect.

PROF DE KOKER: Incorrect. Then, if you ... (intervention).

MR TSHOLANKU OBJECTS: Mr Chairman, if I may interject. The document that he refers to on page two, that Prof de Koker refers to on page two, I looked through it, it does not bear any resemblance of an affidavit. It is like a simple and straight forward statement. If you could also look at it and properly refer to it as a statement.

PROF DE KOKER: Thank you Adv Tsholanku, I agree with you. I stand corrected. I have just ascertained that myself. Thank you very much and, Mr Chairman, I wish to apologise. It remains a statement and it remains a statement, then, made to the TRC which is in front of this Committee. Furthermore, if we could look at this statement, then. According to this statement,

"... weeks went by, plus minus three weeks, and still he did not fetch it.

I was concerned about it one morning. So, round about the 10th, 11th of May I took it to work with me. ANC Youth League (...indistinct) way. I went to him and told him where it was and to fetch it from me.

On Tuesday, 25 May, in the morning he at last fetched it.".

Is these statements, are these statements correct?

MR MBATHA: Still incorrect.

PROF DE KOKER: If I may take this further and take the Committee to page 14 and 15 of the evidence given in front of the TRC Human Rights Violations Committee by Mr Mbakwe, this was under oath. I wish to draw your attention to page 12 where this oath was administered by Mr Denzil Potgieter.

"So, ...",

and that is at the bottom of page 14, over to page 15. "So, because I wanted to get this thing away from me ...",

referring to the hand grenade,

"... and I was anxious to get it away from me, because he had left it with me about three, four weeks ago and I had been pestering him to come and take this thing of his.".

Are these statements made under oath correct?

MR MBATHA: The question of being pestering about him, I cannot comment about it. He actually felt it. The only question that I could respond to is the question of three to four weeks. I think somewhere there it is still incorrect.

PROF DE KOKER: So, again, a further statement, repeating the previous statement, but this time under oath with the same incorrect information, then, according to you. Then, if we could look at the handing over of the memorandum and, again, that is repeated in both statements, but I will restrict myself to the affidavit or to the oral evidence given under oath. According to the statement on page 14, it starts,

"On the morning of that day we prepared the memorandums. So, while we were about to leave then came Laurens Mbatha. He came to see to enquire about an agreement he had left with me ...",

and, Mr Chairman, I propose that that was, probably, grenade which was heard and typed incorrectly.

"I then told him it is here, he can have it. He then said to me, no, because you see I do not have anywhere to put it, I have these tight pants. Could you do me a favour and come with it to the township and then I will take it there and go and put it away.".

According to this statement, therefore, the hand grenade was not handed to you at the office. Was this statement, given under oath, by Mr Mbakwe, correct?

MR MBATHA: I am sorry to say it is incorrect.

PROF DE KOKER: So, again, another unfortunate incorrect remark according to you. Then, on page 15, it continues and in terms of Mr Mbakwe's evidence, the hand grenade was eventually handed to you in a bag. Was that correct or incorrect?

MR MBATHA: It was in a small bag.

PROF DE KOKER: But was it handed to you in town, during the march or at the office, as you said earlier?

MR MBATHA: I picked it up at the ANC Youth League office.

PROF DE KOKER: If I may quote further from his statement to the Human Rights Violations Committee under oath, page 15.

"We met the march along the way, we came there, we stopped and then we joined the march at that point and Laurens was also there by then. So, then I went ..."

... (intervention).

ADV DE JAGER: Mr de Koker, could you kindly try and read first page 15, say, round about the middle of the page ... (intervention).

PROF DE KOKER: All right.

ADV DE JAGER: ... from where you are reading.

PROF DE KOKER: Taken with pleasure, Mr de Jager. It is in, basically three quarters of the page, on page 15. Unfortunately, it is not marked in paragraph numbers otherwise I could have given you clearer references.

"We met the march along the way, we came there, we stopped, we joined the march at that point and Laurens was also there by then. So, I then went up to him and said, no, obviously, you cannot give me that thing here in public, could you just carry it when we come in town. I will take it and then I will put it away by the office or in his car.

We then joined the march and this grenade was still in my bag and it did happen that when we reached the town, somewhere in town, he did come to me, asked me for it and took it."

End of page 15. Is that also, then, incorrect?

MR MBATHA: It is incorrect.

PROF DE KOKER: It seems then, unfortunate, from your point of view, that so many incorrect statements were made to the Human Rights Violations Committee of the TRC by Mr Mbakwe and that under oath. Major Mbatha, how and when did you come to learn about the particular march on the 25th?

MR MBATHA: Immediately after picking the grenade up from the ANC Youth League. That was between eight and half past eight. It was exactly nine, nine to half past nine that I learnt that there was a march of the league and Cosas.

PROF DE KOKER: Who told you about it?

MR MBATHA: That time I was called, actually, by John.

PROF DE KOKER: What did he tell you?

MR MBATHA: That there was a march of Cosas and the league and requested that the then Secretary-General of the ANC, I should convey the message to him. They would like that he should be part of the march.

PROF DE KOKER: Who was the person you referred to?

MR MBATHA: I am referring to Mr William Steenkamp.

PROF DE KOKER: Did you phone Mr Steenkamp then?

MR MBATHA: He was in a meeting with his Deputy-Secretary. I went to him and told him about this information. Initially, the, as he was a bit bitter, because it was at a short notice and he cannot accept that type of way, he should have been noticed, actually, at an earlier stage, but by explaining that this is the request and that time, the presence of the men would, actually, uplift, in a way, the march, because of his portfolio.

PROF DE KOKER: So, according to you, Mr Steenkamp did not know about this march before that day, you informed him about it?

MR MBATHA: Immediately after receiving the call and his reaction, actually, reflected also that to me.

PROF DE KOKER: Major Mbatha, I put it to you and we will lead evidence that Mr Steenkamp was also involved in the negotiations with the Peace Committee and the Secretariat leading up to this march, the detailed planning of this march. This is also the type of information that can be furnished by Mr Cassandra or, possibly, corroborated by Mr Cassandra.

When was the attack planned and who participated in the planning?

MR MBATHA: I, actually, planned the attack and I instructed Walter Smiles to execute my instruction.

PROF DE KOKER: When did you plan this attack? When did the idea arise?

MR MBATHA: During the movement of the march from Tikkie Stop. I did what is defined, actually, as a contingency planning. That is a short plan in the process of the march. It is when I, actually, came up with the idea of the march, the attack.

PROF DE KOKER: I put it to you Mr, Major Mbatha, that it is unfortunate that such a serious incident should be planned virtually on the spur of the moment. Was that the way it happened?

MR MBATHA: This is how I planned it.

PROF DE KOKER: When did you first decide to task Mr Smiles for this important project?

MR MBATHA: Immediately after picking up with him, my, the vehicle that I was driving in. On our way up, when we reached Klein OK, the small OK, it was at the time when we went off the vehicle, I, actually, informed him and instructed him then.

PROF DE KOKER: What precisely did you tell him?

MR MBATHA: I told him exactly that immediately when the protestors, the march, the people who were involved in the march are moving away, he must throw the grenade inside the building.

PROF DE KOKER: Did he ask you why he should do this?

MR MBATHA: At that stage when I told him I gave him a motivation.

PROF DE KOKER: What was the motivation that you gave him.

MR MBATHA: That as part of the anti-Bop march, because we are moving over to that process, I explained the objective over to him in terms of sending the signal over. This was the reason that I want that he should, actually, execute that instruction of which, at that time, he did not, actually, decline or refuse to do it. CHAIRPERSON: I must tell you, Major, that sometimes you speak in very convoluted language. I, personally, do not understand some of the things you say. For example, you speak of a signal over. I do not know what that really means. Should you not speak in your, in a way that is so simple that even people who, perhaps, have not received military training of any kind can understand precisely what you are saying?

MR MBATHA: Oh, sending a signal over, what I, actually, referred to, I am really sorry for that language, it is to send a message over.

PROF DE KOKER: I would like to draw the attention of the Committee to page 40 that is day two, Walter Smiles was giving testimony and, again, under oath administered by Mr Potgieter. On page 40 Mr Smiles ... (intervention).

MS KHAMPEPE: Forty?

PROF DE KOKER: Forty, 40, and that is about the seventh, eighth line. We can start about three lines before that.

"We went all the way to town ...",

this is relating his experiences in connection with the march,

"... to town and when we arrived here and I was not told what the whole cause of the trouble was when I got into the car. That was never explained to me. What then happened is that the Major asked me, this Laurens Mbatha I am referring to, Commander of the Northern Cape, when we went up and he then took me to the Oakley centre at the fourway, it is a fourway stop, and there are lots of people and it was time to go home. We got off there. When I got out of ...",

... (intervention).

ADV DE JAGER: Mr, Prof de Koker, could you kindly go a bit slower. It should be interpreted by the people there. They are giving me a sign they cannot interpret at that speed.

PROF DE KOKER: Thank you very much, with pleasure. I proceeded on this fast basis on the assumption that the Committee had the documentation in front of me and I beg the pardon of the translators.

ADV DE JAGER: Ja.

MS KHAMPEPE: It is probably being translated for Mr Smiles as well.

PROF DE KOKER: Thank you very much for the indication. If I may start where I left off.

"When I got out of the car there, I was not informed of any grenade or anything. I was just given a piece of paper, a wrapped up piece of paper and there was a grenade inside."

Is that correct, Major Mbatha?

MR MBATHA: It is true that the grenade was wrapped when I gave it to him, but before I gave it to him, it is where I have just initially said, the explanation and the purpose of what he is going to do.

PROF DE KOKER: Mr Smiles failed to refer to any such explanation. In terms of the explanation and if you look at his testimony, it seems as if all that was given was the hand grenade and that he took that as a command, no explanation given.

MR MBATHA: I really do not agree with that, because definitely, sure, he might not have even known where to throw that thing if that was the case.

PROF DE KOKER: Major Mbatha, you have, we will return to the specifics of the hand grenade.

ADV DE JAGER: While you are on that page, perhaps, I would like to ask a question too. He further testified,

"... but you see I have no experience of this type of thing and when we went up it was all right and when we got there the petitions were handed over, the first petition."

Did he have experience about hand grenades?

MR MBATHA: Yes.

PROF DE KOKER: If I may follow on that question. If Mr Smiles, then, had experience why did he testify under oath that he had no experience and I could, perhaps, also refer the Committee to page 41, about the tenth line from the top regarding Mr Smiles and the injury that was caused.

"I would not have done it if I had more experience, because I should have known that I was risking my life, but what about the other people."

CHAIRPERSON: Where, we are reading page?

PROF DE KOKER: Page 41, that is about the tenth line from the top and then the third line also from the top,

"It was not my intention to do this. If I had experience no one would have been hurt.",

and the following,

"That experience I only gained later in the camps when I learnt about various kinds of arms and ammunition."

MR MBATHA: Unfortunately, the circumstances that the member did that statement under oath, he is, actually, the best one to respond to.

PROF DE KOKER: Quite correct and we will certainly ask him to explain it too, but there is an interesting contradiction with the evidence that you give. Do you agree that that evidence which he gave is correct or was it, in terms of your evidence, incorrect?

MR MBATHA: I am referring to the circumstances in the sense that, because the last statement that he has submitted, I think also varies from the one that you are referring to. Hence, I am referring the situation that he was in then, he is the one best to explain to it.

PROF DE KOKER: Oh, quite correct, Major Mbatha, there are very interesting differences between all the affidavits that we have available and all the testimonies received from Mr Smiles, but, in particular, you have stated this member has experience. Unfortunately, that member, under oath, is on record saying I had no experience. As the ... (intervention).

CHAIRPERSON: Sorry, I do not know whether you should lead by the point, because the witness says that, you know, let the witness explain, because your statement is not, actually, correct, you know, because when you read further he said,

"I would not have done it if I had had more experience."

You see what I mean? If a person says,

"... if I had had more experience.",

to me it suggests that he is saying that he did have some experience.

PROF DE KOKER: Unfortunately, I agree, Mr Chairman, that this is unclear. Unfortunately ... (intervention).

CHAIRPERSON: Yes, that ... (intervention).

PROF DE KOKER: ... on two ... (intervention).

CHAIRPERSON: ... that is why the witness says to you leave that to the person who made that statement.

PROF DE KOKER: Right, but apart from that, the specific issue which I am, would like Major Mbatha to address is as to the experience that he knows that this person possesses, because he elected him from the 120 cadres that he had available and the whole of his command structure which he had, at that morning in his car, according to his own testimony, he chose this specific member.

CHAIRPERSON: That is another thing ... (intervention).

MS KHAMPEPE: Yes.

CHAIRPERSON: ... and we can simply ask him why do you say this man had experience.

MR MBATHA: It is basically because of I prepared him for the first incident.

MS KHAMPEPE: Why was he chosen for this operation out of the 120 members in your unit?

MR MBATHA: Because at that stage he was the only member that I have prepared in grenades, except those members who came from outside.

PROF DE KOKER: According to your evidence, you had trained him in hand grenades.

MR MBATHA: Sir, it is true.

PROF DE KOKER: Major Mbatha, according to your earlier statement this morning, no one, it was not your aim that anyone should have been killed in the attack. Is that correct?

MR MBATHA: It is true.

PROF DE KOKER: You also said this morning that the attack was solely aimed at the building.

MR MBATHA: It is true.

PROF DE KOKER: Why, then, was the attack launched in the middle of the day with all the members participating in the march present if all you wanted to target was the building?

MR MBATHA: Definitely it will, actually, lose its political content.

PROF DE KOKER: A hand grenade, I put to you, Major Mbatha, thrown at the dead of night at the consulate of Bophuthatswana, at that stage, would not have been an event without political content.

MR MBATHA: The situation by then, this is how I perceived it and this is how I happened to have executed it. I wanted that it should be (...indistinct). Unfortunately, whether it was during the night or in the morning, that is the time that I have, actually, felt suited that it should be thrown.

PROF DE KOKER: You chose particularly a public occasion where the whole membership leadership structure of the ANC was present, an event organised by the ANC Youth League, Cosas and the SACP, an event, specifically, therefore, organised, you chose that event to throw the grenade.

MR MBATHA: For that day, the aim, I think, I have stated it.

PROF DE KOKER: At that time, the ANC was the signatory to the National Peace Accord. It undertook, as a party, a movement, that it will further its political objectives in a peaceful manner. This particular march was organised in terms of the National Peace Accord. Days beforehand hours were spent in meetings between representatives of all the organisations, the leadership structure of all the organisations participating and members of the Peace Committee and Peace Secretariat and international observation. The ANC gave, as an organisation, commitments and assurances that this march will continue peacefully. I return to my question. Why did you choose this march to, in public, commit a breach of agreement on behalf of the leadership structure and of the organisation that you represented?

MR MBATHA: In my initial statement I did indicate the intention and the aim and the consequences, they were very unfortunate, not denying the fact that the organisation was part of the signatories of the Peace Accord. I did indicate that I took the initiative with the intention, with the aim, but it became very regrettable, at the end of the day, that innocent life had to be lost. It was very touching at the end of the day.

PROF DE KOKER: I agree, but apart from any injuries sustained, the mere fact that a hand grenade was thrown at an occasion which the ANC and all the other member organisations undertook and assured everyone involved would be a peaceful march, held in terms of the National Peace Accord with international representatives, national representatives, regional observers and local observers from a number of organisations, Council of Churches, Lawyers for Human Rights, National Peace Secretariat and United Nations present to observe the way in which the ANC held its word, you chose that occasion to go ahead, to throw a grenade and to break the agreement on their behalf. Why, again, do I put, put it to you, why did you do it?

MR MBATHA: As I said, it is rather very unfortunate, because everybody at that stage knew the stage that we were entering. I took the initiative, as I have said, circumstances that were prevailing by then, were becoming very clear that there was an abnormal situation that is starting to build up. Hence, I do not deny the fact that I took the initiative at that particular point in time.

PROF DE KOKER: You, therefore, decided to take it upon yourself to commit a breach of a National Peace Accord, which was reached and agreed by the member, by the leadership of your organisation. Is that correct?

MR MBATHA: That I do not deny.

CHAIRPERSON: Sorry, Prof de Koker, I must tell the applicant, a pertinent question has been put to you that after the ANC had given an undertaking to many people and organisations that the march would be peaceful, why did you do this, your answer was, I think, more or less because an abnormal situation was building up. You know, you have not really said anything. By just saying an abnormal situation was building up, that is really not useful evidence. You should tell us what it is that, abnormal in which way, you should really get, be practical and fewer (...indistinct) less, come down onto the level, onto the ground and really be concrete and give evidence.

It does not help us to engage in high, in a high flown language and we really want evidence, you know. What do you mean by because an abnormal situation was building up?

MR MBATHA: I am sorry, Sir, I was just avoiding the redundancy, because when I started I did explain the situation regarding the uncertainty. You say, if you recall well, I did make mention of the Pollo Park incident, I did make mention that around the area, the military base of the very same structure that I have mentioned, that is the AWB, their training has been intensifying and my distinction regarding that force and the security forces it was, there was no difference, because they were clearly, actually, stating their support that they had. Thirdly, Sir, at that very same stage, the disappearance of weapons from military bases was clear evidence that that thing could not be done without the involvement of people within inside.

That was the time when that whole process was escalating. That is the situation that I referred to, was building up and had abnormalities and the repression, again, within the Bop situation, Bophuthatswana. So, a person like myself, with a military background, experiencing all those problems, because it is very clear, when you talk in terms of arms are disappearing, you are not talking of arms to be stored, they will be utilised somewhere. Whether when, it is what one, actually, should strive to search and try and find, but, unfortunately, as I have said, at the end of the day, the capacity, the understanding, it is at that stage, with your own initiative, when you read the situation that you start preparing yourselves for it.

It was not long ago, on the very same area in Kuruman, a house was located, I personally had to go down, it was full of arms. We never, actually, could conclude exactly, because we had to go through the maid who linked us up to the area and later, three days later that maid was chased away, out of that house. So, the areas of the weapons disappearing from the military bases, like I have indicated, the actions that took place nationally at that time, yes, it is true, the situation was, we adhered, the organisation adhered to the Peace Secretariat, but activities on the ground clearly showed that the parties that you referred to as opponents that time, were not prisoners to those agreements and it has become very evident to us, this Commission, when people testified, because of those fears that one had, that this was the intention, this was the applied, this was the head political motivation, because they ended up, lately, acting out of those things, conducting blasts.

This is how, by then, the situation that I regarded was building up and my perception, actually, was linked out of those conditions. That is all that I am driving to define now.

MS KHAMPEPE: Mr Mbatha, did you have an opportunity to discuss these abnormal developments with the leadership of both Cosas and the Youth League?

MR MBATHA: At that stage the discussions that one had in the province, there was a strong element of insecurity from all the sectors of the province.

MS KHAMPEPE: So, you were unable to discuss these abnormal developments with the leadership of both structures?

MR MBATHA: I cannot specifically say to which particular individuals, at that level, but what I remembered, as a command structure, we use to have meetings that we called the MDM had to be briefed, where at that stage, actually, we would, actually, give them a summary of the briefing that is taking place in the province and ability that could be expected from our side. With the continuity of this assaults taking place, at a very rapid place, along the belt that I have referred to, the Kuruman Jonkempwa, the coming up of weapons, it actually brought a very serious element of insecurity, but now one, I am sorry, again, I should say, you cannot say, one is to read it, it is coming up, but understanding the sensitivity of the matter, you could not go back to the leadership and say this is what I am planning to do, because at that stage it was a different situation. By virtue of telling them you are busy implicating them in the matter.

So, I strictly had to adhere to the security rules, to my understanding, that I keep this thing to myself and this is my initiative.

PROF DE KOKER: Major Mbatha, this very serious situation that you identified that was building up, did you convey this to your command structure at headquarters?

MR MBATHA: Sir, it is no.

PROF DE KOKER: So, you did not inform your seniors of this very serious situation that was developing, according to you?

MR MBATHA: I did inform them.

PROF DE KOKER: How did you inform them?

MR MBATHA: In a form of my monthly reports.

PROF DE KOKER: Did you receive any instructions from them as to your actions?

MR MBATHA: No.

PROF DE KOKER: If the situation was so serious, would you then not have expected instructions from them?

MR MBATHA: To be appointed as a Commander you need to, you certainly need to have a certain ability, because of your experience and of your knowledge. You cannot put in a person that you know totally is inexperienced and does not possess the knowledge, because that type of person has a certain authority invested in him. Hence, those members under you, when you command there, it is because of there is a certain authority that you exercise that is being vested that way. That is what is defined as a Commander.

PROF DE KOKER: Major Mbatha, therefore, according to you, you deemed the situation serious enough for you to breach the National Peace Accord on behalf of your organisation, but without informing your seniors and without informing the leadership of the ANC, who committed them and your organisation to the National Peace Accord.

MR MBATHA: Initially, it is what I came up, the reflection of the abnormality came up as the mass action was introduced, came up when operational, Operation Barcelona came into existence. It was clear, at that stage, that things are not going as they were expected, because if the situation was normal by then, I do not even think that the mass action, that was instituted at that level, was going to be necessary.

PROF DE KOKER: Major Mbatha, you have outlined for us the importance and the qualities of a Commander of Umkhonto we Sizwe in the Northern Cape. If this action was so important and so crucial and the situation so tense, why did you not carry it out yourself?

MR MBATHA: I have members who were working under me and one of my tasks is to execute those orders, to make them execute my orders. I give them orders.

PROF DE KOKER: So you only instructed others, you never performed the, such acts yourself?

MR MBATHA: By virtue of preparing people and training them, it is part of my involvement, because I must supervise that area strongly.

PROF DE KOKER: What was your role during the march?

MR MBATHA: I was also part of the marchers.

PROF DE KOKER: Were you present when the hand grenade exploded?

MR MBATHA: Yes.

PROF DE KOKER: Did you give any sign to Mr Smiles that the hand grenade should be thrown?

MR MBATHA: The signal, within my aim, was as the members move away, because I was standing in front and he was standing behind me, when the members are away, he knew it already, that was the time to throw that hand grenade in.

PROF DE KOKER: So, you ascertained the correct time, you gave him the sign to throw the grenade?

MR MBATHA: That was, that is, actually, sign that I have just mentioned.

ADV DE JAGER: I think there may be a misunderstanding. I do not understand him to say I have been watching the people and then I have given a sign. I understand him to say, and I would like to be corrected if I am wrong, that you, before going there you, actually, told him when you see the people moving away, that would be the sign for you. I will not give you a sign, but when you see the people moving away (...indistinct).

MR MBATHA: Yes, Sir.

ADV DE JAGER: Perhaps you did not hear me. I do not know whether (...indistinct). So then, at the explosion itself, you did not give a sign there?

MR MBATHA: No.

PROF DE KOKER: Could you, perhaps, repeat again where were you standing at that moment?

MR MBATHA: I was standing right in front. I think with three to four people inbetween from where Sipho was standing. This is where I was standing, facing directly towards the door.

PROF DE KOKER: Did anyone else know about the hand grenade and the attack that you planned?

MR MBATHA: No.

PROF DE KOKER: So, only you and Mr Smiles knew about this?

ADV DE JAGER: You said you were standing three to four people away from where Sipho was standing?

MR MBATHA: Yes.

ADV DE JAGER: Not from where Smiles was standing?

MR MBATHA: Smiles was standing behind me, behind the crowd.

ADV DE JAGER: And you were standing three to four people away from Sipho? That is Mbakwe?

MR MBATHA: Yes. What I am trying to say is in front, it was in a row as we were standing in front. I was the fourth person from him facing towards the entrance of the building.

ADV DE JAGER: Kindly explain to me why you bring in Sipho now, because we are talking about Mr Smiles?

MR MBATHA: Smiles was standing ... (intervention).

ADV DE JAGER: (...Indistinct) the person who would throw the hand grenade, how far you were away from the person who would throw the hand grenade?

MR MBATHA: Smiles was behind me. I cannot exactly say his position where he was.

MS KHAMPEPE: You could not see Smiles from where you were standing?

MR MBATHA: Yes, I was in front.

MS KHAMPEPE: You could only see Sipho?

MR MBATHA: And the rest who were next to me.

PROF DE KOKER: Regarding the sign, if I may draw the attention of the Committee to page 40 of the thicker bundle of documentation, about two-thirds down the page. This, again, is the evidence by Mr Smiles delivered under oath to the Human Rights Violations Committee.

"But you see ...",

that is just about 60% in the page,

"But you see I have no experience of this type of thing and when we went up it was all right and when we got there the petitions were handed over, the first petition, the second petition and the third petition.

When it was time to hand over the third petition then there was a sign that I must throw this grenade and he laid down at the same time so when I threw it I was weak. I had had no experience of this type of thing."

I will end it there. According to this statement, Major Mbatha, there was a sign and the person who then gave the sign laid down at the same time, fell down on the ground. Who could this person have been?

MR MBATHA: I think the member can only respond to that.

PROF DE KOKER: Let me put this to you, that it was according to your evidence certainly not you?

MR MBATHA: Yes.

PROF DE KOKER: You gave no sign, you did not throw yourself down on the ground when the grenade was launched?

MR MBATHA: The member can best explain.

PROF DE KOKER: But, according to you, you and the member were the only people who knew about this attack?

MR MBATHA: It is true.

PROF DE KOKER: That is true. So, somewhere, then, there must be a third person or one of the two statements is incorrect? My attention was just drawn, members of the Committee, to page 16, that is evidence given by Mr Mbakwe to the Human Rights Violations Committee, page 16 and that is also about 60% into the page.

"I joined the other guys who were at the back. There was Mafu Davids and another comrade.",

and I will skip a few,

"... and a few other comrades, we were about six or seven. We were standing, observing the proceedings from the back.".

According to this statement, then, Major Mbatha, Mr Mbakwe said that he was standing at the back.

MR MBATHA: I think what I have said, in relation to this statement, the member can respond to it.

PROF DE KOKER: As far as I understood you raised the issue of where Mr Sipho Mbakwe was standing.

MR MBATHA: It is true.

PROF DE KOKER: And could we, perhaps, just, then, just clarify for the record precisely, according to your statement where he was standing.

MR MBATHA: I said he was in front.

PROF DE KOKER: In front and according to his statement he was standing at the back. Thank you very much for that clarification.

MR TSHOLANKU OBJECTS: Excuse me Mr Chairman, excuse me Mr Chairman, if I may interject, the last response, remark made by Prof de Koker is not entirely true. If he could read the whole paragraph and then rephrase his question and, you know, try and establish exactly what point was the Major referring to when he says he was standing next to Sipho, because it is entirely clear from the paragraph itself. Sipho says,

"At that point I was walking to the front to John Block."

So, if you could exactly establish at what point was he standing at the front and at what point was he standing at the back.

PROF DE KOKER: Right. Thank you very much Mr Tsholanku, I think I saw what you referred to and that is a statement regarding his position. Was Mr Mbakwe standing at the front, we just could recapture that?

MR MBATHA: Yes.

PROF DE KOKER: He was not walking around, he was standing?

MR MBATHA: I referred to the time when I was still there. So, that one I cannot determine as what time did he move out, what direction did he take.

PROF DE KOKER: And what is the time that you are referring to and was that when the hand grenade was thrown?

MR MBATHA: It was the time when I was in front and the hand grenade thrown.

PROF DE KOKER: And the hand grenade thrown and at that stage he was standing in front of you?

MR MBATHA: Sir, it is true.

PROF DE KOKER: Right, because according to this statement he also said he was at the back,

"... and then when the memorandums were handed over, at that point I was walking to the front to John Block."

That, unfortunately, Mr Chairman, we do not have Mr Mbakwe at the moment with us so I do not think we will be able to clarify the matter.

MS KHAMPEPE: Unless of course, Prof de Koker, you want to ask him where Mr John Block was at the time when he noticed that Sipho was standing in front of him.

PROF DE KOKER: May we regard that as your question to Major Mbatha?

MS KHAMPEPE: Do you want to respond to that, Mr Mbatha?

MR MBATHA: John, that time, was in front, facing towards the crowd, calming the crowd down, because the reaction in terms of moving back the movement and he was trying to calm people down, they must prepare to move back smoothly without the noise, without the insults, everything.

MS KHAMPEPE: Thank you.

PROF DE KOKER: At that state, Major Mbatha, the memorandums were handed over. What was Mr Block actually doing and saying to the crowd at that moment?

MR MBATHA: With the movement of the crowd to move back. As I have said, words, insults, the movement from there, Block came in front and calmed them down, that they must calm down and they must move back in a proper manner.

PROF DE KOKER: That is move back to where the march started. Is that correct?

MR MBATHA: Yes, they were going home.

PROF DE KOKER: What were his exact words at that stage? Can you recall them?

MR MBATHA: I cannot recall the exact words, but just the content of what he said.

PROF DE KOKER: I put it to you, Major Mbatha, that at that stage, Mr John Block, and this is corroborated by affidavits by Mr Vernon Patrick, Mr Block himself and Mr Jonathan America, that he was telling the crowd that we have accomplished what we come, we came for, please move back now the way that you came orderly and peacefully. Is that correct?

MR MBATHA: I do not refute the first statement that you have referred to, but the last remaining, it is what I have said, the content, they must go back in an orderly manner.

PROF DE KOKER: It is poignant that this particular moment when Mr John Block, whom you acknowledge to be your senior, at that stage, that when he was asking the crowd to act as the leadership gave assurances to everyone involved, that the crowd should, after a very orderly march, now after they have accomplished what they came for, should turn back and return to town in an orderly and peaceful manner, that this exact moment should be the moment when the hand grenade was launched.

MR MBATHA: I think I did explain my instructions initially and I think the best person to respond to this one, the time whilst the people were there, it is still Walter Smiles.

PROF DE KOKER: Quite correct. So, at that stage Mr Smiles had your instructions together with the instructions of Mr John Block and they were contradictory. You ordered him to throw the grenade, Mr John Block ordered him and the rest of the crowd to turn around and to return in peace. He had, therefore, two conflicting orders from two senior people. He chose to follow the first order. Is that correct?

MR MBATHA: That is true.

PROF DE KOKER: What ... (intervention).

CHAIRPERSON: They were not conflicting orders, they were different orders. They were not conflicting orders. Mr Block did not say to him do not throw the hand grenade anymore.

PROF DE KOKER: Quite correct, Mr Chairman, not specifically conflicting, but in content and spirit quite different. The one to perform an act of violence ... (intervention).

CHAIRPERSON: That is why they are different, Mr, Prof de Koker. They are not (...indistinct).

PROF DE KOKER: Ja. Contradictory, Mr Chairperson, well, in the sense that one could not do the other and still comply with the first. One either had to choose either the one ... (intervention).

CHAIRPERSON: Can he throw the hand grenade and then move back and go home?

PROF DE KOKER: Peacefully and orderly.

CHAIRPERSON: Peacefully with who?

PROF DE KOKER: Major Mbatha, thank you Mr Chairperson. Major Mbatha, when did you learn or what did you do when you saw the outcome of the attack?

MR MBATHA: At that time we evacuated the victims to the KH and later spoke to Smiles, because the whole situation was very disturbing, because this was not the intended results that one had expected, but what I said to Smiles, Sir, that, you know, Smiles, it is true, it was a mistake. That is a fact that you know, but, unfortunately, within the living world nobody could reach those who are outside, that is the dead, because I even said to him the only person amongst all these people who are here, if he could talk, if he could come forward is Ezekiel Mokone himself to say that this thing was not intended for him, because I told Smiles that, really, this thing should not break him, because we know it, that was not the aim of the action. Is after when I spoke to him.

PROF DE KOKER: When did you report the action to Umkhonto weSizwe, to your seniors?

MR MBATHA: I did not report the matter to them, because they did not instruct me to do it at that stage.

PROF DE KOKER: At what stage did you report it to them?

MR MBATHA: It was the time when I submitted the written application that you have of the amnesty, it is when I reported the whole matter to them.

PROF DE KOKER: Did you in that, roughly, three year period at no stage report to your seniors that you gave the command for this attack?

MR MBATHA: The statement that is presently used within the file that I have, that is of the application of my amnesty, I think it is there if you can just go through. It is exactly the report that I have sent over that time.

PROF DE KOKER: What was the date that you sent that report?

MR MBATHA: I cannot exactly say it, because it was faxed. Unless if I can have the fax cover sheet.

PROF DE KOKER: More or less, roughly, a day after the event, a week, a month, a year?

MR MBATHA: I think it was, I cannot exactly say it, but it was in the vicinity of that month.

PROF DE KOKER: That month referring to May or referring to a 30 day period?

MR MBATHA: It was August, July.

PROF DE KOKER: So, this incident happened in May, you did not report it in May or June, but somewhere in July or August you did?

MR MBATHA: As I have said, the situation was really chaotic at that time. Yes.

PROF DE KOKER: Who was the report sent to?

MR MBATHA: The last, when I sent the report through it was members of the Legal Department.

PROF DE KOKER: The Legal Department of Umkhonto weSizwe or the ANC?

MR MBATHA: No, MK does not have its own legal department, we were using the ANC Legal Department.

PROF DE KOKER: So, you informed the ANC Legal Department about it and the statement that you furnished to them is the one that we have at our disposal now? Is that correct? What comments did you receive from Umkhonto weSizwe or from the ANC in respect of this incident?

MR MBATHA: The question was that justice will have to take its course and they cannot stand on its way.

PROF DE KOKER: What did you take that statement to mean?

MR MBATHA: I am sorry, because I think it will again take me out when I refer back to it. It was at that stage where Smiles, I had to prepare Smiles to hand him over to the South African Police. Hence, I said I do not want to go into a situation which will take me out from what we discuss now.

PROF DE KOKER: I am referring to your personal part in this attack. You launched it, you originated it as Commander of Umkhonto we Sizwe in the Northern Cape yet after it happened you took quite a while to report it and then, apparently, not to Umkhonto we Sizwe, but to the Legal Department of the ANC. What did you report to them, your own involvement or the fact that you are assisting Mr Smiles to make an affidavit to be submitted to the police?

MR MBATHA: The statement, actually, that is there, it is verifying itself clearly. I was explaining it with the essence that those comrades were inside, they were innocent, they knew nothing about that incident. That is where I wrote the statement and explained exactly my role regarding Smiles.

PROF DE KOKER: Right, but Mr Smiles was not the only one who was guilty of the attack. You had prime responsibility, because you gave the instructions. So, what was their reaction as to your position?

ADV DE JAGER: (...Indistinct).

MR MBATHA: Can you just repeat the question again please?

PROF DE KOKER: I understood, understand that statement as referring to Mr Smiles and what he did and what was planned, but what was their reaction in respect of your position and your liability?

MR MBATHA: The reaction of the military HQ, are you referring to that one?

PROF DE KOKER: That and the Legal Department of the ANC.

MS KHAMPEPE: Prof de Koker, are you asking him whether he was repudiated by the MK office as well as the ANC office for his action? Is that what you are asking?

PROF DE KOKER: I am building up to that, but as far as I understand there was no direct submission made to Umkhonto we Sizwe, but it was made to the Legal Department of the ANC. So, I am pursuing that.

MR MBATHA: I think, perhaps, I should explain the situation what happened. It was at that time, as I have indicated, where the present Premier, Mathews Phosa, with all the argument which was made this morning, in terms of Smiles should be prepared and to be handed over. It was at that stage, because I had to submit a report exactly what has happened to indicate that those comrades were inside there were innocent.

Hence, to show that it is a faxed message, he could see that it has coded messages. Instead of the grenade we talk of an apple, because it was a faxed one, it is not, actually, a message that I had to send over personally, because five days after the incident, I think it is five days or a week, I happened, also, I was also picked up.

ADV DE JAGER: Can I just clear up something for my own mind. Is this the, was this the fax sent, on page eight?

MR MBATHA: Yes.

ADV DE JAGER: And was that, this fax sent during July, August of 1993, three months after the incident?

MR MBATHA: The incident was on the 25th.

ADV DE JAGER: Yes.

MR MBATHA: On the first of June I was picked up, stayed in detention for 28 to 30 days. After my release, it was in July, hence I said I am not sure is it July or August exactly, the particular date, it was at that time where I received the instruction that the issue was negotiated at Pretoria ... (intervention).

ADV DE JAGER: No, they, that was round about July, August?

MR MBATHA: Yes.

ADV DE JAGER: Something like that, you testified.

MR MBATHA: Yes.

ADV DE JAGER: But I want to know is this and have a look at it on page eight and nine and next to your application is a document, it is the Kimberley blast incident.

MR MBATHA: Yes.

ADV DE JAGER: The Kimberley blast incident. Could you have a look at that document. Was that the document you have sent to the Legal Department of the ANC?

MR MBATHA: Yes.

ADV DE JAGER: But it cannot be, Sir. Read the last sentence.

"I picked up the member who testified on the TRC on Tuesday the 12th of June 1996."

So, you could not have sent this in 1993.

MR MBATHA: The one that I am, actually, referring to is, was at the time when the arrangement was made that Sipho had to be submitted, Smiles had to be submitted over to the police and, yes, this one, because I could see with this paragraph here, was, again, actually, written to the Legal Department. What, actually, this one, it was the one that I was, actually, preparing now for my amnesty form.

MS KHAMPEPE: But now have you not just stated, Mr Mbatha, that this document which is annexed to your application is the document that was sent by fax to the office of the, to the Legal Department of the ANC? Have we misunderstood your testimony?

MR MBATHA: No, actually, the mistake was from my side.

MS KHAMPEPE: What is the document which is annexed to your application? When was that document written?

MR MBATHA: This one was immediately after when Smiles actually testified.

MS KHAMPEPE: When he testified before the Human Rights Violations Committee of the TRC?

MR MBATHA: Yes.

MS KHAMPEPE: Now the statement that you have alluded to, that is alleged to have been sent to the Legal Department of the ANC, where is it?

MR MBATHA: That one, it was the one that they acted on the basis that the comrade, because of what I have said, should be handed over to the police and those forms should be released, because I communicated it and I, actually, took it. I faxed it there.

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?

MR 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.

MR 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.

MR 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?

MR 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?

MR 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?

MR 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?

MR 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?

MR 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?

MR 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.

MR 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?

MR 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.

PROF DE KOKER: Major Mbatha, what did you say, what was the content of your first communications with leaders of the ANC and ANC Youth League who were injured in the incident? For instance, Mr William Steenkamp, what did you tell him, because, obviously, the incident would have been raised by either you or Mr Steenkamp.

MR MBATHA: As I have said, at that time I did not inform them.

PROF DE KOKER: What was the content of your first discussion with Mr Steenkamp then?

MR MBATHA: No, the discussion with the (...indistinct) that time he was also a victim of it. You only paid him a visit at home and the issue was not discussed.

PROF DE KOKER: No questions, no discussions about the incident. At that stage various rumours were flying about in the country over who was responsible for the incident. Mr Steenkamp was injured, but that was never raised in your discussion with him. Is that correct?

MR MBATHA: I do not deny the fact that he was injured, but as I am saying, I did not discuss it with him, because at that time nobody knew exactly what happened, but I knew it between myself and Smiles.

PROF DE KOKER: So although you knew you did not divulge that to the leaders of the ANC?

MR MBATHA: Yes.

PROF DE KOKER: And what was the content of your first discussion with Mr John Block? Did you reveal your involvement to him? He was also injured in the attack.

MR MBATHA: I have never revealed it to John also.

PROF DE KOKER: Yet some weeks later you reveal it not to the leaders of the organisation, but to some members unnamed of Cosas?

MR MBATHA: Yes.

PROF DE KOKER: As you were personally responsible for the injury of senior members of your organisation, who you regard as your seniors, it is only to be expected that at some stage you would have raised the issue with them and apologised. Yet, it seems as if you have not done that, but you spoke to some other members of the organisation, unnamed, who, apparently, junior members, and you told them about your involvement and your knowledge.

MR MBATHA: I did not specifically refer to the level of those members, exactly whether they were junior at that stage. I said I spoke to members of Cosas.

PROF DE KOKER: Can you name those members for us please?

MR MBATHA: At this stage, specifically, I cannot really exactly say who were they, because it was not only them. I even spoke to the staff where Khozo was, Thembinkosi was attending school at, because at that time they wanted, actually, to come up with a position exactly what is happening with Khozo inside there. Does he know about the thing. It was at the time when I said I am not sure whether the Deputy-Principal, because the one I recall him very well, that I indicate that at this stage he was very innocent. He is only young and he happens to be part of this thing and this is how he came into this thing.

PROF DE KOKER: So, therefore, just to recap, you discussed it with other members and even members of the public, it seems, but you never discussed it with the leaders of the organisations who were involved in the march and who were injured?

MR MBATHA: As I said, the reserved position came mainly because of the results, were really pathetic and were sad, because they were not expected.

PROF DE KOKER: Mr Popo Molefe was specifically sent to Kimberley by the ANC to investigate the explosion. It was public knowledge that he was here and while he was here he visited some of the injured in hospital. Did you contact Mr Molefe about the attack and did you furnish information to him?

MR MBATHA: With his presence in Kimberley I was still under Section 29, I was detained.

PROF DE KOKER: When were you detained, Major Mbatha?

MR MBATHA: I think it is the first or the second of June.

PROF DE KOKER: According to our sources, Mr Molefe visited Kimberley directly after the explosion, two days after the explosion. So, at that stage you would not have been held.

MR MBATHA: You know, that one, really, I do not want to exactly say. I recall the presence that he came, I was inside.

PROF DE KOKER: But the date of your arrest and the date of his visit differ. We will lead evidence in that respect. The bottom line, therefore, is, Major Mbatha, you did also not make any information available to the Executive Committee of the African National Congress who was represented by Mr Popo Molefe in investigating the issue.

MR MBATHA: Yes, it is true.

PROF DE KOKER: To the extent that you failed to make any report to Mr Molefe, that you failed to report to the senior members of the ANC in the Northern Cape, whose authority you recognised earlier, and to the extent that you failed to make an immediate report to Umkhonto we Sizwe, do you regard your actions as disciplined?

MR MBATHA: At that stage when I, actually, responded to the matter, as I said, there was chaos at that time. The only issue that I raised regarding the matter, I am sorry that I have to go back to, there was chaos to the effect that the suspicion was John, Vernon and Steenkamp were part of the planning process and I had to refute that factor that it was not true. This is the part that I recall. That was not true, those comrades ended up, actually, being the victim of the blast. I remember responding to a report, I am not sure was it read, but I do not recall it was Popo, because I responded, because there was chaos around the area and the unfortunate members were implicated in the matter and the whole presentation of the matter was brought in the sense that as if the three members instructed me and I just executed their instruction and I made it very clear that was not true.

PROF DE KOKER: Two issues arising from that statement. Mr John Block, Mr Vernon Patrick and Mr William Steenkamp were, therefore, suspects. You tried to clear their names, but you did that without discussing or revealing your involvement in the matter to either of these gentlemen, any of these gentlemen.

MR MBATHA: I remember the report was confidential at that stage. I did not reveal it to them, but spoke to the person who came to the province to go through that report.

PROF DE KOKER: When, to whom was that report made?

MR MBATHA: I am not sure, but it is definitely not Popo, but it was somebody from head office. I cannot recall his name properly, but I do not think was it Thabo Rue who came, because that was the first time that I was confronted.

PROF DE KOKER: This is the first and the very important time when you where confronted and you cannot even remember who was the representative from head quarters?

MR MBATHA: The way the presentation was made, started, hence, I said to you it appeared as if I was instructed by them and I said it very clearly it was not true. I, actually, took the initiative, on my own, and I instructed Smiles. Those poor comrades, actually, ended up being victims of the blast.

PROF DE KOKER: Quite correct, we agree on that, but my question is or actually my comment is that at this very important occasion where you were first confronted and, apparently, this is the official occasion where you informed your organisation that you actually ordered this attack, this important interview was conducted by someone whose name you cannot recall.

MR MBATHA: What I recall, that very same contact was not, actually, far from the time when we had to hand over Smiles, because it was a confirmation in terms of what I was saying.

PROF DE KOKER: Do you have a date on which you made this report?

MR MBATHA: No.

PROF DE KOKER: No name to whom it was made and no date on which it was made. In which form was it made? Was it made orally, did someone come to speak to you or did you make it in writing?

MR MBATHA: It was orally.

PROF DE KOKER: How long was the interview?

MR MBATHA: It, actually, did not even last for 30 minutes.

PROF DE KOKER: Thirty. That seems to be a very important report and it would have been helpful to this Committee to have such a report at our disposal to help us to ascertain the truth.

CHAIRPERSON: Let me just get to the next question, Sir, if you do not.

PROF DE KOKER: Thank you Mr Chairman. In terms of the reports that you received back, you had to prepare Mr Smiles to be handed over. Is that correct?

MR MBATHA: That is correct.

PROF DE KOKER: Two people were clearly responsible for this incident, Mr Smiles and you who gave the order. Why were you not instructed to make this information of your involvement known? Why was only Mr Smiles under orders to deliver himself up to the police?

MR MBATHA: At that time Smiles is the one who threw the grenade and in the process of the case, it was the time when Smiles was going to reveal that I am the one who instructed him.

PROF DE KOKER: But you were the one who ordered the attack, so you and Mr Smiles are equally guilty of this attack. Why was Mr Smiles ordered to hand himself to the police and you ordered to assist him, but not to give information to the police and not to make known your own personal involvement?

MR MBATHA: You see, again, that type of question would be those, actually, who said it must respond to it, because, you see, I am just trying to assume what they thought and what I think and I think it will make it very complex for me.

PROF DE KOKER: Did you feel any urge to make, did you feel, without any commands, any urge to make the truth known?

MR MBATHA: By the fact that of sitting down with Smiles, because the question was that the truth will have to come out.

PROF DE KOKER: So, you were prepared to have the truth made known as long as Mr Smiles goes to jail, but you not?

MR MBATHA: Definitely he will not go alone.

PROF DE KOKER: Definitely you would not go alone.

MR MBATHA: Yes.

PROF DE KOKER: Can you clarify that statement?

MR MBATHA: By virtue of that Smiles would indicate that I instructed him.

PROF DE KOKER: But you helped Smiles to draw up an affidavit saying that he did it, but at the same time you did not avail yourself of the occasion to or the opportunity to make a statement yourself. You waited for Mr Smiles to implicate you.

MR MBATHA: I think the negotiations in Pretoria, that I am not sure of in the document that you are trying to get hold of. Hence, I said they can best respond as to how did it came they should reach that position.

ADV DE JAGER: Did you, in fact, help Mr Smiles? He put it to you now that you helped Mr Smiles in drawing up the affidavit.

MR MBATHA: Not helped in the sense of writing, but the importance of showing the need of telling the truth. That is why I referred to assistance.

ADV DE JAGER: So, and if he would have told the truth, he would have put in his affidavit that you ordered him to throw the hand grenade?

MR MBATHA: Sir, it is true.

ADV DE JAGER: Did you accompany him to the legal offices?

MR MBATHA: The affidavit was, actually, done in the Perm Building in Kimberley and I accompanied him immediately when he went to the police station, I was there with him.

ADV DE JAGER: Have you seen the affidavit at that stage?

MR MBATHA: I, actually, did not read it. He, actually, drafted it, it was, actually, typed, we went, actually, from oath, I am not sure the person who, but I remember the direction that we took. It was around Kimberley Hotel, assuming that he was nature by, he was senior by nature, where, actually, Smiles, actually, took the oath there and the following day, that was in the evening, it was the time when we went together, it was myself, Smiles and Rodney Isaacs, we went over, actually, to the Transvaal Police Station.

ADV DE JAGER: And do you know in this affidavit whether he referred to you as giving the, as the person who gave any orders?

MR MBATHA: At that stage I concluded, because I knew I was the one who did it.

ADV DE JAGER: So, if he would have handed this affidavit over to the police they might have immediately arrested you with him?

MR MBATHA: Sir, it is true.

ADV DE JAGER: Do you know today whether he ever mentioned you or any, that or mentioned that he received orders from you?

MR MBATHA: Sir, can you just repeat your question please?

ADV DE JAGER: Do you know today whether, in fact, he, in this affidavit, whether he referred to you as being the person who gave him any orders?

MR MBATHA: Whether I knew? Can you just repeat it again? It is just puzzling me.

ADV DE JAGER: You see, you have seen this affidavit today, I presume.

MR MBATHA: I have not read it, no.

ADV DE JAGER: Ja. Now, at that stage when you accompanied him to the police station, did you know or did you not know whether he implicated you in the affidavit?

MR MBATHA: Sir, for me, it was obvious, because I was the one instructed him, but I did not, actually, read it. What I know, it was a thick document that was prepared, submitted over.

MS KHAMPEPE: Mr Tsholanku, can you come to our assistance. Has your client had sight of this document?

MR TSHOLANKU: In the fear of influencing him, I did not let him have sight of this document, but if the Committee wants him to have sight of the document, I can let him have sight of the document now.

MS KHAMPEPE: I think so, because we do not know whether we are talking about the same document. I mean the whole thing hinges on the affidavit which was prepared by Mr Smiles and taken to the police. It could be a different document. I think it is important for us to ascertain that fact. He is talking now of a thick affidavit which he saw that Mr Smiles attended to and this is just a three page document.

MR TSHOLANKU: I fully agree with you, Ma'am, but I think he meant in the earlier that he, at that particular point in time, he did not have sight of the particular document. So, I do not know if that answers your question.

MR VISSER: May I suggest, Mr Chairman, that Mr Smiles just tell us whether that is the document that he handed in, yes or no. He should know.

CHAIRPERSON: I do not know, Mr Visser, whether we can cross over and go to him. I think that Mr Isaacs told us he was going to fetch for us a statement which was made by Mr Smiles and he identified the statement for us and he has given us the statement. I think you should proceed on the assumption that it is the statement in question and then maybe go on and, you know, put questions to the witness.

MR VISSER: I am sorry, I just tried to help, Mr Chairman. I was just trying to shortcut the proceedings. In fact, I have got a member of the Attorney-General's staff here that can also tell you that this is the document.

CHAIRPERSON: I was also trying to avoid the problem of going over to the witness only to find that, maybe, his attorney has not even yet consulted with him on that statement and I think we can, until the contrary is proved, we can safely assume that this is the document and let him go on to cross-examine on it and see what happens.

Well, perhaps, I should tell you that having gone through the statement, there is no reference to you by Mr Smiles. In fact, if you read this statement you will never be able to tell whether you are the person who had given him the hand grenade and the impression is that he obtained the hand grenade, the source of the hand grenade would have been somebody he did not know. What is your comment on that?

MR MBATHA: I think at that stage that it would be proper that Smiles should respond to it.

CHAIRPERSON: You stand by what you have told us today?

MR MBATHA: What I said, Sir, is the truth, that I instructed him.

MS KHAMPEPE: You instructed him to tell the truth to Mr Isaacs in preparation for that document being sent to the police? Is that what you are saying?

MR MBATHA: The instruction, actually, was regarding the blast, but this one I discussed it with him.

ADV DE JAGER: I cannot understand, what did you say now what, in order to the question that has been put to you? Did you tell him to tell the truth in this document to the attorneys?

MR MBATHA: There is, within his statements that he is referring to that I said he must tell the truth, because I went personally to him that there is no way that we can hide this thing, that the truth must come out, because those people inside are innocent. Yes, it is true, he was a bit scared, hence, the reason I had to come and talk to him.

PROF DE KOKER: Major Mbatha, so you instructed Mr Smiles to speak the truth and what happened then? Did you accompany him to Mr Isaacs?

MR MBATHA: Not instructed, but spoke to him. Yes, I did say, we went together to Transvaal Police Station.

PROF DE KOKER: First, I would like to start with Mr Isaacs' office, because as far as I believe, the document was drafted there and signed at that office. Is that correct or were you not involved in the drafting of the document and ...?

MR MBATHA: I actually came in after several attempts were made (...indistinct) of the members to speak to Smiles and I remember that night, I cannot specifically say the date, I, actually, approached him, because it was clear he could not budge, budge in the sense that he could not open up.

CHAIRPERSON: When, did Mr Smiles have a consultation with Mr Isaacs eventually?

MR MBATHA: That night I, actually, came in. Sir, I cannot exactly say when did the contact, actually, start, but I came in as the sole person to talk to him, because the reality was that those people must go out, those who were inside.

CHAIRPERSON: No, I am asking whether, for the purpose of Mr Smiles making a statement, which was to be handed over to the police, did Mr Smiles have a consultation with Mr Isaacs?

MR MBATHA: At that stage I could not really say, but I remember it was during the deliberations of the case.

CHAIRPERSON: When what happened? It was during the deliberations of the case when what happened?

MR MBATHA: It was at that time when the message, actually, came clear that a negotiation, actually, started in Pretoria with the Generals and after that time I must go and hand over together with Rodney Smiles so that the preparations of those two comrades should immediately commence so that they should be released.

CHAIRPERSON: I think I am asking this question, because I assume that the statement which you took with Mr Smiles to be signed or attested to under oath was prepared at Mr Isaacs's office, is it not, or am I wrong?

MR MBATHA: Yes, Denzil Potgieter was also there.

CHAIRPERSON: But I thought, I was simply asking you whether such a consultation between Mr Smiles and Mr Isaacs did take place, to your knowledge?

MR MBATHA: Are you asking prior to that?

CHAIRPERSON: Prior to what?

MR MBATHA: To their consultation on that particular day when I came in.

CHAIRPERSON: Which consultation are you talking about, Major?

MR MBATHA: I am actually referring to the day when he had to ...

CHAIRPERSON: I am referring to any consultation between Mr Smiles and Mr Isaacs which led to this statement being made, whether it is the consultation that you stumbled into or whatever.

MR MBATHA: I could say that there were consultations also before, but, with Smiles, but it was at that time when Smiles, apparently, was scared, actually, to talk to them.

CHAIRPERSON: We have left the stage where he was scared. We are at the stage where he was no longer scared ... (intervention).

MR MBATHA: Ja.

CHAIRPERSON: ... and willing to make this statement.

MR MBATHA: Ja.

CHAIRPERSON: Did he consult with Mr Isaacs for that purpose?

MR MBATHA: Yes.

CHAIRPERSON: Were you present?

MR MBATHA: Yes, I was inside the building, in the room, in the office, actually.

CHAIRPERSON: Does that mean you were present?

MR MBATHA: You see, the preparation of the statement, because I remember that night it was not typed by Denzil, it was not typed by Rodney, because the question was the signature, it was important.

CHAIRPERSON: I think I want to know whether you were present when the consultation took place. Whether it was during the night or day.

MR MBATHA: Yes, I was called in, I was there.

CHAIRPERSON: Well, did you hear him relate to Mr Isaacs and/or Adv Potgieter as to how the events developed that day, the day of the incident? In particular, as to how he got the hand grenade ... (intervention).

MR MBATHA: I actually ... (intervention).

CHAIRPERSON: ... and from who?

MR MBATHA: I actually spoke to them regarding it.

CHAIRPERSON: Did you hear him tell them like it stands in paragraph seven that he had obtained that hand grenade from somebody he did not know, somebody from Johannesburg, did you hear him say that to him?

MR MBATHA: Ja, no, that one I did not hear it.

ADV DE JAGER: But you were present. What did he say where did he get the hand grenade?

MR MBATHA: As I said, I spoke to them, I even told them what happened on that particular day and Smiles had to prepare a statement where, acknowledge that he is the one who threw the grenade and I gave him the instruction.

ADV DE JAGER: And did you tell the attorney and the advocate the same story as you have related now to us?

MR MBATHA: Yes.

MS KHAMPEPE: When you were relating that story to the attorney and/or the advocate was Mr Smiles present, was he in the same consultation?

MR MBATHA: As I said, I was, actually, called in that day and I, actually, found them at the Perm Building.

MS KHAMPEPE: Were you in the same office with Mr Smiles when you were relating?

MR MBATHA: Yes.

MS KHAMPEPE: Were you in the same office with Mr Smiles when Mr Smiles in turn was also relating the incident to the attorneys?

MR MBATHA: You know, I cannot specifically remember when Smiles actually told them.

CHAIRPERSON: I think there is hardly any difference between being in the same office when the statement is being made and being present.

ADV DE JAGER: Even in the same room.

CHAIRPERSON: Yes. Mr, Prof de Koker, it is, I notice that it is ten past four or so and you, if you reach, sorry we interrupted you, but if you want to reach a convenient point at which we can adjourn, please tell us.

PROF DE KOKER: Mr Chairman, in fact, in my notes I have just a specific breaking point. I could proceed with a new chapter, but then we will probably have to stop somewhere midway. I am in your hands, I am prepared to proceed, but then we will not finish the next body of evidence and we will probably have to leave it dangling till tomorrow morning.

CHAIRPERSON: That is, maybe, in that case maybe we should adjourn until tomorrow morning at half past nine.

HEARING ADJOURNS