amntrans AMNESTY HEARING 1997-10-28 KIMBERLEY 2 LAURENS MBATHA https://sabctrc.saha.org.za/hearing.php?id=54757&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/kim/mbatha2.htm ON RESUMPTION CHAIRPERSON October the 28th and we are proceeding with the same applications and Major, you are still under oath. LAURENS MBATHA (s.u.o.) CHAIRPERSON Professor de Koker? PROF DE KOKER Thank you Mr Chairman, I believe we closed yesterday on the 1993 statement and certain questions which were then put by the Committee, would the Committee like to proceed with the questioning or would it like me to proceed with different matters? Thank you Mr de Jager - Commissioner de Jager, I realise my headphones were also off. I started by saying that we closed yesterday with the 1993 statement by Mr Smiles and certain acknowledgements in respect of that. The Committee members were putting certain questions and perhaps before I start I would like them to have the opportunity to continue that line of questioning. CHAIRPERSON No, I think - do proceed because we just intervened at a particular point. PROF DE KOKER In the light of the importance of Mr Mbatwa statements, we believe that it would be important to have access to this particular document. Furthermore it transpires from the evidence that Mr Mbatwa admitted to possession of a hand grenade, he was charged for that offence, he was found guilty and he is serving a term of imprisonment for that offence. That would then seem to be a crime of which he was guilty and for which he might therefore have applied for amnesty. The question seems to be hanging in the air and I believe the only way to solve it would be for us to have access to that document. CHAIRPERSON PROF DE KOKER CHAIRPERSON PROF DE KOKER That would be very kind Chairman, I think it would be relevant again in the light of the contradictions between Mr Mbatwa evidence and the evidence given by Major Mbatha yesterday. This application may shed further light on the truth. MS KHAMPEPE PROF DE KOKER MS KHAMPEPE Were you furnished by our office in Cape Town? PROF DE KOKER That is correct. MS KHAMPEPE Is that so, Mr Mpshe? MR MPSHE That is correct, upon request. CHAIRPERSON Very well, maybe we should - Professor de Koker we will ask one of our staff members try to see whether Cape Town cannot trace that application and then fax it through to us. PROF DE KOKER Thank you very much Mr Chairman. A second preliminary issue also addressed to the Committee - yesterday before the start of evidence, reference was made to the fact that neither of the two applicants were called as witnesses for the defence in the prosecution. Reference was made to the fact that evidence was led to the court about Mr Smiles who accepted responsibility for the incident and that that evidence was then not acted upon. Apparently the record of the case is available, we would very much like to have access to that particular page of pages on which this evidence was led to the court. CHAIRPERSON PROF DE KOKER Thank you Mr Chairman. Can we then perhaps have access to those particular pages where the legal representative attempted to have this very important document admitted to court? CHAIRPERSON PROF DE KOKER Mr Mpshe apparently has the record available and ...[intervention] CHAIRPERSON MR MPSHE PROF DE KOKER MR MPSHE It was couriered to you. PROF DE KOKER CHAIRPERSON You can sort that out with Mr Mpshe during tea time. CROSS-EXAMINATION BY PROF DE KOKER Major Mbatha, yesterday we closed after a discussion of the 1993 statement under oath by Mr Walter Smiles dated the 27th of September 1993. At that stage we have not had opportunity to look at the document, have you been afforded the opportunity since to study the document? MR MBATHA I went through it yesterday. CHAIRPERSON Professor de Koker, can I just interrupt you at that point, can I just talk to somebody about the application that you asked to be faxed from Cape Town. PROF DE KOKER With pleasure. CHAIRPERSON Right, thank you. PROF DE KOKER Thank you. So just to confirm, you had access to the document. If this is the statement that you referred to that was drawn up after the consultation you and Mr Smiles had with Mr Isaacs and Advocate Denzil Potgieter ...[intervention] MR MBATHA ADV DE JAGER So, did you make a mistake yesterday when you said it was in the same room? MR MBATHA I said actually in the same building but I was uncertain as to whether in the room because I remember the question posed to me: "When you were in the room", it simply means you should have heard what he said. ADV DE JAGER MR MBATHA PROF DE KOKER Could you then describe to us precisely where you were when the statement was taken. MR MBATHA The office itself is partitioned actually into three rooms, I was actually in the reception of it and Smiles, Rodney Isaacs and Mr Potgieter were in the other room. PROF DE KOKER If our recollection serves us, you mentioned yesterday that you were called into the room at some stage, at what stage were you called into the room? MR MBATHA I actually said that I was called to the building, it is at that time that I said: "I actually was" - I said to Smiles because I did indicate yesterday, apparently he felt more comfortable with my presence around the building and it was at that stage when I referred - I understood in the sense that as the person that instructed him, who knew about the event, anybody out of that area he was very uncomfortable to talk in my absence. PROF DE KOKER You mentioned that you were the only person that had access to Mr Smiles and you repeat now by saying he was very uncomfortable not speaking to anyone else about this incident, so he spoke only to you about this incident? MR MBATHA CHAIRPERSON Professor, whilst you are doing that, may be this volumes we just from this point onwards refer to the thinner one as Volume 1 and the other one as Volume 2 because we get confused sometimes as to which volume we are referring to. PROF DE KOKER "I was with Mafu Dawids on that morning when Smiles came running up to us and said: "He did it" Major Mbatha, does that sound like the statement of someone who is reticent about speaking about the incident? MR MBATHA I cannot comment on that one. PROF DE KOKER MR MBATHA Hence I said as far as my knowledge is concerned, this is how I actually viewed him and this is how I regard him. PROF DE KOKER Can I draw the attention of the Committee also to page 40, which is the evidence under oath given by Mr Walter Smiles to the TRC, last paragraph of page 40 The "down" should probable been a "now" but typed as "down". "What happened in that I went to the ANC office, I wanted to tell my story and I still felt very, very bad for what had happened, for the death that I had caused" Again Major Mbatha, I put it to you, does this sound like the statement of someone who is reticent and is only prepared to speak to you about the incident? CHAIRPERSON But you are dealing with a different context here, are we not here talking about a statement which was to be made by Mr Smiles for the purpose of going to the police? PROF DE KOKER That could be ...[intervention] CHAIRPERSON ...[inaudible] talking about somebody who was talking to his comrades. MS KHAMPEPE I have understood you differently, I thought you were trying to question Mr Mbatha why he states that Mr Smiles was reluctant to talk about this incident to anyone other than himself, have I not understood you properly Professor de Koker? PROF DE KOKER You are correct, Major Mbatha says that he had to act all the way and support Mr Smiles in everything he did because he was not comfortable about speaking about this incident to anyone and yet we have some indications in our documents that he did speak to other people and that he had the urge to speak about the incident. CHAIRPERSON Bearing in mind that we - you are comparing - you are talking about a statement which Mr Smiles had to make for the purpose of eventually being submitted to court and to the police during the consultation. The consultation at Mr Isaacs office was for the purpose of preparing a statement which was to be submitted to the police and to court. You compare it with a situation on the other hand of somebody who was talking to or making a statement not for the purpose of submitting to the police. PROF DE KOKER Mr Chairman, this line of cross-examination also links with the evidence led by Mr or given by Major Mbatha yesterday, that he was requested by the Legal Department of the ANC to prepare Mr Smiles for this testimony and he was requested because he was the only one who had access to him. CHAIRPERSON "Take you time Mr Smiles" MS KHAMPEPE "Sipho also found me there" PROF DE KOKER That is correct. If you noticed, that was at the funeral "Sipho" That would have been Sipho Mbatwa. So it seems as if his reticence there was due to the trauma that the family went through and he was unable to tell them at that stage that he was responsible for their hurt. MS KHAMPEPE PROF DE KOKER It certainly is unclear because Mr Mbatwa clearly states that on that day - and it seems as if that was directly after the incident, that he came to him and "I saw him the next morning ...[indistinct] So that would have been on the 26th when he confessed to Mafu Dawids but then at the funeral which was some days later ...[intervention] MS KHAMPEPE Which is a week later, much later. PROF DE KOKER ...[inaudible] MS KHAMPEPE Yes. PROF DE KOKER Because the family was present. ADV DE JAGER PROF DE KOKER Thank you Mr Chairman, if we could proceed. Major Mbatha, so you accompanied Mr Smiles to the offices of Mr Isaacs, what happened on that occasion? MR MBATHA PROF DE KOKER You testified yesterday that you told Mr Isaacs and Advocate Denzil Potgieter that you gave the command to Mr Smiles to throw the hand grenade, at what stage did you give them this information? MR MBATHA I cannot recall exactly - was it exactly on that particular day when I actually came in but I spoke to Mr Rodney Isaacs. PROF DE KOKER You testified yesterday that you told Mr Rodney Isaacs and Advocate Denzil Potgieter that you gave the command, when did you speak to Mr Isaacs and when did you speak to Advocate Denzil Potgieter? MR MBATHA Unfortunately they were always together. PROF DE KOKER So, you informed both of them, please recollect when you made this very important statement to the two legal representatives. CHAIRPERSON PROF DE KOKER There seems a very important issue for everyone involved and I would have liked not to place him under pressure but to allow him some time just to recollect. Would this have been before the statement was made by Mr Smiles? MR MBATHA I think it would be proper to allow me to go through it, to re-think it first. PROF DE KOKER MR MBATHA Your are right, I said that I read the statement and I even went back and said to you - if you can recall yesterday, I had a strong feeling of uncertainty hence the argument of the building where I was, was I next to him, did I hear the words. I was very frank and honest yesterday that I really - I should have even also said yesterday: "I should be allowed to re-think exactly". PROF DE KOKER This particular statement was drafted and signed in the offices of Mr Isaacs, what happened then? When they came out of the room, what happened then? MR MBATHA PROF DE KOKER And after that, what happened? MR MBATHA PROF DE KOKER What happened at the police station? MR MBATHA PROF DE KOKER MR MBATHA PROF DE KOKER MR MBATHA PROF DE KOKER Who made the appointment with the police? MR TSHOLANKU CHAIRPERSON Professor de Koker, I understand the question is in essence to be saying: "What is the relevance of this", maybe you should tell us in fact. PROF DE KOKER Mr Chairman, we now have a crucial statement here, handed to us yesterday in which Mr Smiles accepted responsibility for the hand grenade attack before the two gentlemen who are now in prison were prosecuted for the offence - who were actually tried. CHAIRPERSON PROF DE KOKER That is quite correct ...[intervention] CHAIRPERSON PROF DE KOKER CHAIRPERSON PROF DE KOKER CHAIRPERSON In relation to factors which are common cause? PROF DE KOKER The dates on which this particular statement reached the police and when decision were made, are not common cause at this stage Mr Chairman. CHAIRPERSON PROF DE KOKER CHAIRPERSON ADV DE JAGER Now can you put it to the witness whether he - when was the document in fact handed over to the police, was it handed to the man coming to the door there - the security door or to whom was it handed over. PROF DE KOKER Would you like me to repeat your question or would you like it to be put to you by the Advocate himself? ADV DE JAGER MR MBATHA Yes, Sir. ADV DE JAGER And you had the statement with you? MR MBATHA Yes. ADV DE JAGER When did you hand the statement to the police? MR MBATHA ADV DE JAGER That was even before the statement was handed to him? MR MBATHA I think the best person to respond on that is Rodney because I remember we went up to there up to the security door and we came back from there. MS KHAMPEPE Mr Mbatha, can ...[intervention] ADV DE JAGER Could I just ask one question? Did he read any document while standing there, before saying you should leave? MR MBATHA MS KHAMPEPE MR MBATHA At that stage really, no. PROF DE KOKER What was the reaction of Mr Isaacs and the team when they heard that? MR MBATHA PROF DE KOKER What did you discuss in the car on your way home, what was going to be your next step to remedy this injustice? MR MBATHA PROF DE KOKER Did Mr Isaacs and Advocate Potgieter know at that stage that you gave the command? MR MBATHA PROF DE KOKER But certainly at that stage when you visited the police, they knew that you gave the instructions? MR MBATHA ADV DE JAGER MR MBATHA I would say yes. MS KHAMPEPE MR MBATHA CHAIRPERSON PROF DE KOKER Quite correct, Mr Chairman. CHAIRPERSON MR MBATHA Well you see, what I recall is the full disclosure to the Legal Department, that one I recall very strongly. CHAIRPERSON MR MBATHA I would really recall that I should be allowed to go through it. CHAIRPERSON MR MBATHA The exactness when actually I did inform Rodney and Mr Potgieter. MS KHAMPEPE MR MBATHA CHAIRPERSON I think we are moving away from the main issue. By saying you want time to think it through, are you really saying that it is possible that at the time when Smiles made his statement to Mr Isaacs and Potgieter, you did not disclose your personal participation to them? Is there such a possibility - are you saying there is such a possibility? MR MBATHA CHAIRPERSON Well, disclosure of your personal participation would have been to my mind, something very important and I would have thought that you would be able to remember whether you made such a disclosure before you took Mr Smiles to the police. Do you appreciate that Mr Smiles could have been locked up by the police? MR MBATHA Sir, at that stage it was clear - evident enough, because the idea was to take out those comrades and we were prepared to face the charge. CHAIRPERSON MR MBATHA CHAIRPERSON MR MBATHA Sir, the best person to respond on that is Smiles. CHAIRPERSON That may be so but another possibility is that you did not disclose your personal participation to Mr Isaacs and Advocate Potgieter - if there was any, and also further that in fact there was a deliberate attempt to - not to disclose your personal participation, if there was any. MR MBATHA CHAIRPERSON MR MBATHA Sir, I think my reaction also yesterday was evident that regarding the statement, I was really puzzled in front of you. CHAIRPERSON Would you have been prepared also to hand yourself up to the police had they decided to take in Mr Smiles? MR MBATHA Sir, it was true. CHAIRPERSON Sorry? MR MBATHA It was true because the presence of Smiles there - he was just instructed and the factor is he was going to reveal that I am the one who instructed him. Whether he might not have written it there as you are saying now - because I believe the Investigation Unit has to do with a lot of research, has to do with a lot of whatever information that they can collect because if the intention of mine Sir, was not to go there, I think it was to keep Smiles away because I know I instructed him. That the fear ...[intervention] CHAIRPERSON Sorry, sorry to interrupt you, why did you not likewise make a statement like Mr Smiles did? MR MBATHA Sir, hence I said the negotiations were done actually at a senior level. Like I said actually the very similar approach strike me when actually I reached my dissatisfaction with the TRC Investigation Unit, they said to me this is how we operate and this how they have decided to approach the case. They ...[indistinct} at the HRC Hearing because I wanted to find out why was I not approached, they said to me: "This is how we deal with it". CHAIRPERSON MR MBATHA Madam, I think I did indicate that when I was called overnight - when I was called to arrive at the building, I was called in because Smiles - and with arrangement which was made, he should be handed over - I was not part of the decision making. CHAIRPERSON Who decided that it should be Smiles to make a statement to Mr Isaacs? MR MBATHA I think the arrangement that at that level - if he can involve also the Premier of Mpumalanga because I think Mr Isaacs also can give testimony to that. CHAIRPERSON MR MBATHA CHAIRPERSON MR MBATHA Sir, I actually doubt it a bit, I have a reason for it. Can I go through with my reason? CHAIRPERSON MR MBATHA I actually did indicate that I was under Section 29 and at that stage when I was kept there, I was actually told that there was a video cassette which was recorded at the scene - my response actually at that time was: "Then why do you waste your time continuing arresting people, proceed with the case". I even actually told it very clearly: "Then there is no need for me to answer any questions further because I think if you say there is a video camera, you have enough evidence". ADV DE JAGER But a video camera would surely not reflect your command? MR MBATHA At that stage they said it has everything. ADV DE JAGER MR MBATHA ADV DE JAGER MR MBATHA Yes, Sir. ADV DE JAGER And then I asked you whether in your presence whether he told Mr Potgieter and Mr Isaacs, can you remember that? MR MBATHA I remember that portion, it was exactly when you said to me if I was in that vicinity, then I should have heard what was said there and if you can remember I had a problem because I did indicate it also yesterday - the argument pursued then was: "If you were around there, then you should have heard". And when I came out I came back and said - with my recollection because it became very clear yesterday that with the statement I was a bit puzzled in front of you and I came back this morning and said: "I was on the other side of the room". The reason brought forward was, Smiles should make the statement, I am not going to put words into his mouth because apparently there is a legal procedure that it interferes with, so I must stay outside. CHAIRPERSON Tell me, have you ever disclosed to the police your personal participation - starting from the time when you were held in terms of Section 29, right up to the time when you took Mr Smiles to the police? MR MBATHA CHAIRPERSON Major, you must understand that when we ask questions we do so with a purpose and the purpose of asking a question is to get an answer and please try to keep to the question and just answer the question as it comes. I asked you whether you ever told - admitted to the police that you gave instructions or orders to Mr Smiles, to throw that hand grenade on that day and also that Mr Smiles got the hand grenade from you - whether you did tell them all that. MR MBATHA Sir, ...[intervention] CHAIRPERSON MR MBATHA Sir, in those exact words no, because the question was not posed like that to me. CHAIRPERSON MR MBATHA Is it at the time when I was still in? CHAIRPERSON At any time, even after you came out. MR MBATHA CHAIRPERSON MR MBATHA I think if the arrangement was also made in that fashion that I should go over, at that Sir, I would not have actually refused. CHAIRPERSON MR MBATHA CHAIRPERSON MR MBATHA CHAIRPERSON Professor de Koker, we interrupted - personally I did so because I felt that we should get to the heart of the matter. And shall we please just concentrate on important aspects of this case which are obviously problematic and perhaps not so problematic to other people and proceed please. PROF DE KOKER Thank you Mr Chairman. The 1993 statement by Mr Smiles under oath contained paragraph 7 referred to by the Chairperson. In paragraph 7 Mr Smiles said "I found the hand grenade at the hostel in Galashewe" Is that statement correct? MR MBATHA Sir, it is incorrect. PROF DE KOKER It is incorrect, so Mr Smiles lied under oath in this affidavit? MR MBATHA PROF DE KOKER Therefore Mr Smiles lied under oath in this affidavit. CHAIRPERSON I think we will decide whether Mr Smiles lied, it is sufficient if the witness says it is incorrect. PROF DE KOKER Thank you Mr Chairperson, I accept that, that the statement therefore under oath is incorrect. On 14 August another statement was made, this - to draw the attention of the Committee, is on page 51, volume 2 of the documentation. If I may ask the indulgence of the Committee, I just want to get hold of a specific statement. I beg the pardon of the Committee, this specific statement I wanted to refer to is on page 11, made by Mr Smiles and contained in the documentation of the TRC. MS KHAMPEPE PROF DE KOKER MS KHAMPEPE Would it be fair to request Mr Mbatha to respond to a statement that Mr Smiles had already disowned? PROF DE KOKER MS KHAMPEPE Proceed. PROF DE KOKER Thank you very much. According to this statement Mr Smiles said Afterwards Rodney Isaacs the lawyer, took me to the police station but I was kicked out without any interrogation. I have a witness" "who can testify that I was not on the venue that day, his name is Boy Oliphant. I never took any further notice of the matter and Major Laurens never paid me anything for signing this affidavit" Signed by Mr Smiles - dated 8 June 1996. According to this statement therefore, you requested Mr Smiles to volunteer - he was never involved? MR MBATHA Sir, the best person to respond to that statement is still Smiles. PROF DE KOKER MR MBATHA PROF DE KOKER ADV DE JAGER PROF DE KOKER He spoke about money - I stand corrected, thank you very much. MR MBATHA PROF DE KOKER MR TSHOLANKU PROF DE KOKER Mr Chairman, I would like ...[intervention] ADV DE JAGER MR TSHOLANKU Mr Commissioner, he says - my understanding of his response is that when you compare this statement and what he said yesterday pertaining to instructions that he gave Mr Smiles, Mr Smiles would be the best person to respond to the content of this particular statement. Impliedly so he disassociates himself with this statement. CHAIRPERSON PROF DE KOKER Thank you Mr Chairman, I will follow your suggestion. Mr Mbatha, is this statement correct - made in that declaration by Mr Smiles under his signature or is it incorrect. MR MBATHA Sir, incorrect. PROF DE KOKER CHAIRPERSON PROF DE KOKER Excuse me Mr Chairman. CHAIRPERSON PROF DE KOKER Quite correct Mr Chairman, I ...[intervention] CHAIRPERSON PROF DE KOKER CHAIRPERSON PROF DE KOKER Quite correct Mr Chairman, and I was not attempting to link it, if that came over as linking them, I ask the pardon of the Committee. I proceed only the basis of the 1993 statement, the statement that was so - according to evidence, so harshly rejected by the police but which is now acknowledged to be a statement containing incorrect information. Was it surprising in the light of the fact that this statement was not correct, that it was rejected by the police and by the prosecutors - yes or no? MR MBATHA The statement was not read to me. CHAIRPERSON PROF DE KOKER Major Mbatha would have known about it at that stage and ...[intervention] CHAIRPERSON We are talking about the people who did not believe Mr Smiles. PROF DE KOKER MS KHAMPEPE PROF DE KOKER That is quite correct, and I would like to return in summary to those statements by Major Mbatha on which he was also exhaustively questioned by the Committee. If the Committee feels that I should address this in argument, I will do so. Major Mbatha, we are still trying to go through the sequence of events, what we have reached at this stage was the point where this statement was rejected by the police. At that stage the people were going on - were being tried for these specific offences, clearly the situation was becoming very serious - they were being charged with murder. This statement was rejected by the police, what did you do then to save innocent people from being prosecuted? MR MBATHA CHAIRPERSON The question is, thereafter what did you do to save your comrades? MR MBATHA At that stage - when I recall very well, the next attempt was to appeal the case - that is through Mr Rodney Isaacs and Denzil Potgieter. PROF DE KOKER They were still being tried at that stage, they were still in court, you could have appeared on their behalf, you could have given evidence, you could have gone to the police yourself and gave statements to save your comrades. Which of these steps did you take? MR MBATHA CHAIRPERSON PROF DE KOKER Mr Chairman, I accept the prescription with gratitude. Major Mbatha, can we then put it to you that you did nothing to save your comrades? MR MBATHA Incorrect, Sir. PROF DE KOKER What then did you do Major Mbatha? MR MBATHA PROF DE KOKER The police rejected the affidavit by Mr Smiles which contained this incorrect information, clearly the Smiles avenue alone was then closed. What did you do then in addition while your comrades were being tried for murder, what did you do to save them? MR MBATHA PROF DE KOKER What did you do yourself or did you only leave it up to Mr Rodney Isaacs and other people to do something about it? You gave the instruction, you were the commander, you were the person who were prepared to interpret your mandate so wide as to perpetrate acts of violence without being instructed to it. What did you do as commander to save your comrades? MR MBATHA PROF DE KOKER So apart from leaving it in their hands and entrusting the matter to them to handle, you the person who gave the instructions took no further steps? MR MBATHA PROF DE KOKER What did you do when your two comrades who were then innocent according to your evidence, were found guilty? Which steps did you take then? MR MBATHA ADV DE JAGER MR MBATHA Sir, if somebody says that at a senior level there are negotiations, it simply means that I will have to ...[intervention] ADV DE JAGER MR MBATHA Sir, there you are correct. ADV DE JAGER MR MBATHA PROF DE KOKER Major Mbatha, that is the impression which your answers create because apart from internal communications to the Legal Department, you did not report this to your senior command, you did not report this to the ANC leadership in the Northern Cape. MR MBATHA Sir, like I said yesterday, I remember when you referred to Mr Molefi when I said to you: "Mr Molefi came, I was not there", I had to be reminded yesterday that Mr Molefi - that is contrary to the source that you claim that you had, came to Kimberly for Operation Barcelona because he had to mediate between that problem, between COSAS and the Youth League - nothing about the grenade. And then I said to you: "Somebody came, I cannot recall exactly is it Thabo because the matter at that time was subjected to investigations". PROF DE KOKER MR MBATHA Yes. PROF DE KOKER Did you visit them prison? MR MBATHA Yes. PROF DE KOKER Did you give advice to them in prison? MR MBATHA I was actually informing them about the developments. From the time when we attempted to take Smiles, I also went to them to inform them that finally Smiles is going in. It became so unfortunate, the statement that I uttered to them was: "You are coming out" because the agreement by then that we knew Smiles will be handed over, then investigations will continue - they will be released. Up to the time of the appeal at that early stage because through Mr Isaacs there was an attempt that the case will be appealed because of this fresh evidence and new evidence that did come up and I was always keeping them informed about those developments. PROF DE KOKER Appeal was allowed but the appeal was apparently never pursued, why not? MR MBATHA Mr Isaacs actually might respond to that. PROF DE KOKER Did you ever give any advice to your comrades who were in prison after they were found guilty? MR TSHOLANKU Mr Chairman, advice pertaining to what? PROF DE KOKER Advice pertaining to their particular case and to the pursuit of other legal remedies. Did you ever give them such advice on the steps that they should take to get out or prison - the legal remedies that are at their disposal? MR MBATHA Sir, can you just clarify the question for me? PROF DE KOKER Did you advise them or perhaps the easiest would be - could I draw the attention of the Committee to page 49 of bundle 2 containing a report of the Investigation Unit by investigators K Chirstensen and Zuku Komagu, the 4th paragraph of the statement "On 13 August 1996, both victims were re-interviewed at Kimberly prison and they were concerned about the safety of Walter Smiles as he was the key person in the case against them. Their concern was based on talks they had had with Major Laurens Mbatha who tried to persuade them to apply for parole instead of previewing the case" Is that correct, did you give them that advice? MR MBATHA PROF DE KOKER If we may also proceed to the following sentence "According to Sipho Mbatwa, Major Mbatha was of the view that the TRC had dumped them and that Smiles was discredited" That was the basis for their advice according to the report of the Investigation Unit, is that correct? MR MBATHA Sir, can you just repeat it again? PROF DE KOKER "Their concern was based on talks they had had with Major Laurens Mbatha who tried to persuade them" And the "them" is Mr Sipho Mbatwa and Mr Nkozinati Nkotla. "who tried to persuade them to apply for parole, parole instead of reviewing the case. According to Sipho Mbatwa, Major Mbatha was of the view that the TRC had dumped them and that Smiles was discredited" That is the report of the Investigation Unit. MR MBATHA CHAIRPERSON PROF DE KOKER And the statement that Smiles was discredited? MR MBATHA Sir, by whom? PROF DE KOKER MR MBATHA Sir, that statement is incorrect. PROF DE KOKER So, a further incorrect statement according to you, made by Mr Mbatwa. CHAIRPERSON No, no, no, it has not been made by Mr Mbatwa, it was made by the Investigating person. PROF DE KOKER CHAIRPERSON About what? PROF DE KOKER About the correctness of the statement which relates a statement made by Mr Mbatwa. CHAIRPERSON Are you saying about the truth of the statement? PROF DE KOKER About the truth of the statement, correct. CHAIRPERSON PROF DE KOKER Quite correct Mr Chairman, but it also shows that Major Mbatha was involved from start till this particular day. CHAIRPERSON Why did you accept the truth of this statement? PROF DE KOKER Provided the truth of the statement is accepted and ...[intervention] CHAIRPERSON And which comes through to us through a long chain. Mbatwa is reported by the investigating officer to have said that the Major said this and that and that, how can we really accept that? COMMITTEE ADJOURNS ON RESUMPTION LAURENS MBATHA (s.u.o.) CHAIRPERSON Professor de Koker, you are representing a victim, I think - you were given yesterday afternoon and a good part of this morning as well, we hope that we will now move towards the end of your cross-examination. CROSS-EXAMINATION BY PROF DE KOKER (cont) Thank you Mr Chairperson. Major Mbatha, why did you not give evidence at the HRV hearings held in Kimberley in 1996? MR MBATHA The question that I posed to the investigators - I was not confronted, they did not come over to me, hence as a result Smiles came because they went to him and during that time I was still busy in the Province at the command. PROF DE KOKER So the Investigative Unit never alerted you as to the investigation and their specific hearings? MS KHAMPEPE Professor de Koker, are you alleging that people who gave evidence before the Human Rights Violations Committee did so because of the investigations which were being conducted by the Investigative Unit of the TRC? PROF DE KOKER That is what I deduct from the answer given by Major Mbatha, that that was the reason why he did not testify because he was not approached. MS KHAMPEPE PROF DE KOKER At that - at the hearings in Kimberley last year, Mr Mbatwa, Mr Nkotla and Mr Smiles testified. I would then like to clarify the matter, did they testify as victims? MS KHAMPEPE If I read the bundle they testified as victims and as I read Volume 2, Mr Smiles was requested by either Mr Mbatwa or Mr Nkotla to come and testify on their behalf. PROF DE KOKER And then none of the three people involved called Major Mbatha to testify on their behalf, is that correct? MS KHAMPEPE PROF DE KOKER Major Mbatha, so neither the unit not any of the other people involved - your two comrades in prison and Mr Smiles, asked you to appear together with them at the hearings in Kimberley? MR MBATHA No. PROF DE KOKER Major Mbatha, after the indication given by the Chairperson, I would like to proceed to the victims of the attack. ADV DE JAGER ...[inaudible] ask you one question. You realise that Mr Smiles was at one stage prepared to meet the family of the deceased? MR MBATHA Sir, the arrangement was not actually in that manner and I think it would be proper that Mr Smiles should explain to you what happened that time. ADV DE JAGER Okay, and did you in fact pick Mr Smiles up early that morning and told him that he should go later and not at that stage? MR MBATHA And I said to Smiles: "If that person wants you they know where you work because they must go and report because you are working under a person that is very senior, hence now you have been declared a person absent without official leave of which you will be charged" and I took him back to his unit, that is the honest truth. PROF DE KOKER Mr Chairman. Major Mbatha, when you planned the attack, who did you plan to be injured or killed in the attack? MR MBATHA I said yesterday, the grenade should be thrown into the building with the intention of killing nobody. PROF DE KOKER Major Mbatha, we heard that evidence from you. You gave that instruction how - to Mr Smiles, what did you do to ensure that your instruction will not lead to injury or loss of life? MR MBATHA If it was not because of the security guy who came up - to ensure that part as part of my instruction I gave was: "When the people move away" - that was part of my instruction. PROF DE KOKER But what about the people who were standing in the foyer of the building? MR MBATHA Normally when the marchers move away, it is at the time that those people have moved. PROF DE KOKER MR MBATHA As I said my intention and the aim and the fact that when the people move away there were no people there. PROF DE KOKER Major Mbatha, how could you have foreseen that there would be no people in the fairly sizeable foyer of this building? Furthermore, this foyer was glass clad, it was surrounded by shops with glass fronts which opened up into the foyer. A hand grenade which would have exploded in the foyer, would have reeked even greater havoc. What did you do to ensure that there was no loss of life if as you said you intended that no-one should be hurt? MR MBATHA I stick actually to my instructions, this is what I said. PROF DE KOKER Your instructions according to what you said, was only: "Throw the hand grenade after the marchers have moved away" but what about the people in the foyer themselves, what did you do to ensure their safety or were they the people that you planned on being hurt and killed? MR MBATHA The instruction was issued out and Smiles himself knew that instruction was with the intention to kill nobody. PROF DE KOKER We asked you particularly and in detail yesterday, what your instructions to Mr Smiles entailed - the instruction which you gave was that the hand grenade should be thrown after the marchers had moved away, what about the people in the foyer? MR MBATHA At that time because of the protesters who were standing in front, there were no people around the area except the protesters. PROF DE KOKER MR MBATHA PROF DE KOKER Major Mbatha, that area was surrounded by glass fronts - you indicated yesterday that you are well trained, what happens if a hand grenade is thrown into a small enclosure enclosed by glass? MR MBATHA The type of glass that is there and in a small enclosure, the concentration becomes limited. PROF DE KOKER I put it to you Major Mbatha, in a small enclosure the concentration and the effect of a hand grenade does not become less, it increases. MR MBATHA PROF DE KOKER Major Mbatha, I put it to you that that foyer was a death trap for anyone standing there and any innocent shoppers in any of the surrounding shops. MR MBATHA Well, it actually fell where the deceased stood - that thing only cracked because of the nature of that glass. ADV DE JAGER MR MBATHA Sir, it actually fell exactly into the corner. ADV DE JAGER You being a person trained I suppose, would know that in a small cubicle - exploding a hand grenade there, would cause a much greater explosion that exploding it in the open veld? MR MBATHA Will you just repeat it again for me? ADV DE JAGER MR MBATHA Say it is true. MS KHAMPEPE Mr Mbatha, did you know whether there would be persons in the foyer in that building? MR MBATHA Madam, no. I actually regarded it as the Bop Consulate offices inside. MS KHAMPEPE MR MBATHA Honestly Madam, no. PROF DE KOKER Please describe this building to us Major Mbatha, how many storeys does this building have? ADV DE JAGER PROF DE KOKER CHAIRPERSON Before you leave it, where was Ms Nel when she was injured? PROF DE KOKER CHAIRPERSON She was not part of the march? PROF DE KOKER She was the representative of the National Peace Secretariat in Kimberley, she was assisting Mr Adriano Cassandra who was the United Nations Observer. She was acting on behalf of the Secretariat as an observer and they were both in conjunction with observers from lawyers from Human Rights and the Council of Churches, they were observing the observance by the participating organisations to the National Peace Accord. CHAIRPERSON PROF DE KOKER The only unfortunate incident was probably that the attack resulted in the injury and death of ANC members who participated in the march and not in the death and injury of people who were inside the foyer, shoppers in the shops around, employees and the clients of the bank which was also apparently on the same level. ADV DE JAGER PROF DE KOKER Chairperson, if that is accepted by the Committee that death and injury was foreseen and actually planned as part of the attack irrespective of ...[intervention] ADV DE JAGER Or at least should have been foreseen. PROF DE KOKER Should have and by way of ...[indistinct] it was therefore foreseen and intended, I will leave this line of cross-examination and return to it only in argument. ADV DE JAGER PROF DE KOKER MS KHAMPEPE PROF DE KOKER Thank you very much. With that indication then Chairperson, I will proceed to another issue dealing with the victims. Can you name specific people in the leadership structure of the ANC who were injured in this attack? MR MBATHA PROF DE KOKER Thank you very much, that is sufficient. If we may then see to your specific application for amnesty, the specific application form page 3 State whether any person was injured, killed, or suffered any damage to property of such attacks and there you stated "Injured and killed" Indicating that people were injured and killed and then the question proceeds: If so, state the name or names of the victim or victims, and what you stated there was "Izekial Lebugang Mokone and Jean Nel" MR MBATHA That document was actually prepared by Mr Isaacs office in relation with the TRC and the name Izekial was because of the deceased and Jean Nel, the explanation given was the critical nature of it but the TRC is in possession of the list. PROF DE KOKER But you did not furnish them with particulars in the statement that you signed, why not? MR MBATHA These are the names because I was told that the list was there and it was prepared and only because of Jean Nel, it was a very critical matter - and the deceased. PROF DE KOKER Mr Adriano Cassandra was also very seriously injured, as I said he sustained a limp because of that, he spent quite some time in hospital in Kimberley and that would also have been well known. If I may put it to you Major Mbatha, my problem is the following: this hearing would have taken place in March in Bloemfontein. In March in Bloemfontein, the hearing had to be postponed because the TRC only informed two victims, Jean Nel and the family of Mr Izekial Mokone - those were the only two victims mentioned in the application. When it was put to the TRC then that there were more victims, it came as a surprise that led the unfortunate fact that the matter had to be postponed, had to be dragged out even longer with - as you allege, innocent people spending even more time in jail. MR MBATHA To my knowledge the postponement - that even myself, we were told a day before the TRC. And in terms of those people there I think the best person to respond to it would be Rodney Isaacs because on that particular day we only learnt it after that we were supposed to have been at the TRC. PROF DE KOKER But you signed the application with this information, which means that you accept responsibility for the information being correct and comprehensive. MR MBATHA MS KHAMPEPE Is Mr Isaacs still your attorney? MR MBATHA No, by that time actually he was preparing the TRC document for us. MS KHAMPEPE And at the time of the preparation of this document, did you furnish him with a list of names of all the victims that you knew to have been affected by this incident? MR MBATHA Mr Isaacs knew Madam. MS KHAMPEPE Did you furnish him with that information or did you simply assume that he knew about a list? MR MBATHA I did not even furnish him those two names, he knew of the names because Mr Isaacs was closely working with the Secretary of the office at that time. MS KHAMPEPE Did you personally furnish Mr Isaacs with a list of victims? MR MBATHA No. PROF DE KOKER How was the application drawn up, did you furnish this statement to Mr Isaacs? That is the statement accompanying your application, I have it indicated as on page 8 "The Kimberly Blast Incident", did you furnish that statement to Mr Isaacs? MR MBATHA Yes. PROF DE KOKER When did you furnish him with that statement? MR MBATHA I have a problem with the exact date but it was immediately after the TRC - the HRC hearing and they were still searching at that time for the forms - amnesty forms. PROF DE KOKER Did you request Mr Isaacs to complete a form on your behalf? MR MBATHA From my statement it was typed and when I came in I went through the statement and I signed it. PROF DE KOKER MR MBATHA The arrangement of the TRC was again an arrangement through the TRC Department at head office level, hence Mr Isaacs as the one on the ground was actually identified to be the one to go through it. PROF DE KOKER Did he approach you or did you approach him? MR MBATHA I went to him and then he confirmed the information first. PROF DE KOKER Did you also accompany Mr Smiles to Mr Isaacs for his application? MR MBATHA We were together. PROF DE KOKER You were together? Did you work closely together in drawing up the applications? MR MBATHA PROF DE KOKER Did you compare notes? MR MBATHA No. PROF DE KOKER But the fact that you worked closely together, that is correct - yes or no? MR MBATHA No. PROF DE KOKER Excuse me, then I must have misunderstood you. Can you perhaps just repeat your answer to the last question? MR MBATHA We did not compare our notes. PROF DE KOKER If I may draw the attention of the Committee to page 53 - again one of those internal statements by the Investigative Unit, that is in bundle 2, page 53 in which the investigators said - that is just signed K K, it could refer to Kristen ...[indistinct] second paragraph In what way did you collaborate with Mr Smiles? CHAIRPERSON Did you collaborate with Mr Smiles? MR MBATHA Collaboration as far as the truth should be told. PROF DE KOKER And how did you ensure that the truth was to be told this time? MR MBATHA That he must tell the truth of what happened there. PROF DE KOKER Did you co-operate with Mr Nkotla and Mr Mbatwa in their applications? CHAIRPERSON Why are you asking him that question Professor de Koker? PROF DE KOKER I would like to lead on to the relationship between Mr Mbatha and Mr Nkotla. CHAIRPERSON PROF DE KOKER Quite correct Mr Chairman, but what I am trying to establish - Major Mbatha clearly played a central role in bringing information from Mr Smiles under the attention of authorities in 1993 ...[intervention] CHAIRPERSON Even so, restrict yourself to the applications which are before us. PROF DE KOKER If then we may deal specifically with Mr Nkotla, but only in respect of the evidence given by you yesterday. Did you train Mr Nkotla in handling of hand grenades? MR MBATHA No. PROF DE KOKER MR MBATHA Yes, I do. PROF DE KOKER How did you know that? CHAIRPERSON PROF DE KOKER The statement that was made by Major Mbatha seems to support the approach by Mr Nkotla during the case but which was then not supported by his own witnesses, which was refuted by two State witnesses and even refuted it seems by Mr Mbatwa himself on page 24 of Volume 2 of the documents in front of you. MS KHAMPEPE But Professor de Koker, is that issue central to the application before us? CHAIRPERSON PROF DE KOKER I believe so because Mr Nkotla accepted under oath and proven in court, he accepted responsibility for throwing the hand grenade. If he then threw the hand grenade, it is clearly that the applicants before us are not disclosing the full truth. CHAIRPERSON Where is the full truth that you are talking about? PROF DE KOKER MS KHAMPEPE PROF DE KOKER MS KHAMPEPE ADV DE JAGER MR MBATHA At that stage an activist like Nkotla - firstly he was going to be visible, I would have seen Nkotla if he was there. ADV DE JAGER MR MBATHA As an organiser - like I did explain it yesterday, how we were operating in the Province, Nkotla I remember even at that stage it was the time when he was still applying for his membership in MK and the fact that he was leaving Kimberley - I cannot exactly say which day exactly between those days. I knew that he came, informed me he was going around the Sishen area as an organiser - we had very close contact by then. ADV DE JAGER MR MBATHA Yes, Sir. PROF DE KOKER What were the type of hand grenades Major Mbatha, that you had in your possession? MR MBATHA Sir, F1 grenades. PROF DE KOKER Were all of them F1 grenades? MR MBATHA Yes, Sir. PROF DE KOKER What is the colour of F1 grenades? CHAIRPERSON If these are your most important questions Mr de Koker, I have reason to believe that you have almost finished your cross-examination. PROF DE KOKER CHAIRPERSON PROF DE KOKER Could we perhaps just have this answer on the colour of F1 ...[intervention] CHAIRPERSON You are being asked, what was the colour of the hand grenade? MR MBATHA PROF DE KOKER The colour then seems to tend to be brown, rusty and fawn coloured, is that correct? MR MBATHA CHAIRPERSON Are you still taking instructions on the colour of the hand grenade? PROF DE KOKER That is correct Mr Chairman, because on page 4 of bundle 2, the hand grenade is described as brown and on page 51 Mr Smiles again described it as being brown. CHAIRPERSON In that case, then I can solve your problem by saying that the colour of the hand grenade was as anybody saw it to be like and it might even be produced here before us and we may still not agree as to what that colour is. PROF DE KOKER Mr Chairman, I ...[intervention] CHAIRPERSON PROF DE KOKER Quite correct Mr Chairman, I accept the point and I just want to draw your attention to page 4 because unfortunately it seems that Mr Mbatwa builds his case on the fact that the grenade he had was brown, that some witness referred to it as green and then that it was therefore clearly a different hand grenade. That issue cannot then be solved or taken because none of the people involved are clear, none of those who really handled the hand grenade are clear on the colour. CHAIRPERSON PROF DE KOKER MR MBATHA PROF DE KOKER But I put it to you, your command initiative did not include this mandate, your command initiative did not stretch so far as to give you the right to perform an act of violence at a political march organised and held in terms of the National Peace Accord. Your mandate might have included other measures but it could not have included that particular mandate. MR MBATHA PROF DE KOKER Quite correct, but you said you took the command initiative on the basis of your broad mandate and I put it to that that was not part of your mandate. MR MBATHA I said to you, when somebody commands - I even mentioned the tactical area of responsibility that happens to be mine in the Northern Cape, I did come up actually with a broad analysis, an appreciation that I referred to yesterday, and I remember I had to elucidate more on what do I mean by abnormal situation - I went deeper into it. Hence I said that building up situation with the initiative that I took was basically influenced by those circumstances, hence as a result acknowledging the mistake that happened on that particular day out of my initiative. PROF DE KOKER You therefore took the initiative but you had no mandate to perform this particular act of violence. MR MBATHA CHAIRPERSON Can I put it differently? Are you saying that your command initiative allowed you to do what you say you did? MR MBATHA To the act yes, Sir. PROF DE KOKER Can you prove that to us, because we have on paper is the word of the leadership of the African National Congress and the other major political parties in South Africa who were signatories to the National Peace Accord and who undertook to act in a certain way whenever political frustration should be vented. That was a very, very important process at that stage, how could there have been instructions or a mandate existing within the organisation in conflict with those undertakings which were given at a National and International level? CHAIRPERSON Is there any way that you can prove to us that what you did fell within your command initiative? MR MBATHA I actually did indicate yesterday - if I could be allowed to go back to the situation, I have actually referred to the element of insecurity which was starting to grow in the Province. I have actually referred to the loss of weapons of which at that time were very clear, I even dedicated that to my knowledge they were not actually stolen because they were supposed to have been kept. CHAIRPERSON MR MBATHA CHAIRPERSON Well, we do not have any written proof of this command initiative. PROF DE KOKER We also have indications to the contrary that that could have been his command mandate at the stage when he perpetrated this particular act of violence, and that is the National Peace Accord signed and adhered to and respected by the organisations which he served. CHAIRPERSON But that is your personal evaluation or interpretation of that particular document, you can argue it during your argument. ADV DE JAGER Mr Mbatha ...[intervention] CHAIRPERSON ADV DE JAGER "And Codesa like being at the brink of breaking" Is that correct? MR MBATHA Yes, Sir. ADV DE JAGER Was Codesa at that stage at the brink of breaking? MR MBATHA Sir, the disagreement at that stage led to the mass action which was launched. ADV DE JAGER Well, at that stage - it was in May 1993, and Codesa - the previous Codesa had broken down and there was negotiations about peace and I want to put to you, at that stage the representatives were already starting to write the new Constitution, there was no breakdown then. MR MBATHA Sir, if I recall very well - during that era, it was the era when the National Mass Action Campaign was launched and hence I stated yesterday, it was launched because things were not going right. Referring to Codesa, it was the driving body by then where the negotiations were done and conducted, that is to the best of my knowledge that I have. ADV DE JAGER MR MBATHA Sir, to my knowledge actually, I knew Codesa at that time. PROF DE KOKER Major Mbatha, I put it to you further that the situation of insecurity that you allege was building up at that stage did not exist. You said yesterday there was a serious situation, more serious and different from that in other Provinces. At that stage a number of serious incidents were taking place in Natal and in Transvaal and what is now the North West but Kimberley was relatively peaceful. Kimberley was at a point where it was progressing very slowly through a very difficult phase but without this level of insecurity building up which you allege to be the main motivation for your act. It was 11 months before the election, South African ...[intervention] CHAIRPERSON PROF DE KOKER ...[inaudible] in the region and he chose to explode the hand grenade in Kimberley. CHAIRPERSON PROF DE KOKER Quite correct. CHAIRPERSON Well, it might also - whether or not one agrees that there was a feeling of insecurity, it might have depended on where you lived in the Province you know and who you were in the Province. Do you still stand by your version that there was feeling of insecurity Major? MR MBATHA I remain firm, Sir. CHAIRPERSON Thank you. PROF DE KOKER The Goldstone Commission was at that stage already running for more than one and a half years - the political process was after a very difficult period on track, the peace process was also progressing very well. In fact, the Regional Office of the National Peace Secretariat was staffed just a month before that and was progressing with the establishment of Peace Committees all over, this was a relatively stable Province and region. CHAIRPERSON Do you agree with that? MR MBATHA It is not true, Sir. PROF DE KOKER On which grounds do you say it was not true? CHAIRPERSON I think he mentioned four things, do you want him to repeat them again? The arms were intercepted, people were intimidated and terrorised - he said those things many times yesterday afternoon. PROF DE KOKER CHAIRPERSON He said these were the events which led to the incident taking place, the dates are not really - are they important? PROF DE KOKER The dates as the date of his Codesa remark could be very important because if those things happened after the event, it clearly could not have influenced him before the event. CHAIRPERSON PROF DE KOKER According to Major Mbatha, those events motivated him to launch this attack. CHAIRPERSON Yes. PROF DE KOKER We do not have the dates or more information about those events to corroborate it. If, as was proved with his Codesa remark, that happened at a time which was not connected with this incident - for instance happened after the incident, then clearly it could not have been motivating him at that stage and it was something that was drummed up afterwards to serve as a motivation. CHAIRPERSON Do you hope to get a concession from him that these things happened after the event - we may have to prepare ourselves to be here the whole afternoon? PROF DE KOKER CHAIRPERSON Well, that is his evidence, he can argue that. PROF DE KOKER Would you allow me to proceed with these questions or would you then ...[intervention] CHAIRPERSON It may very well be that you make a very presumptuous statement to say that it was not so, it may be that we have people who were in fact terrorised and intimidated during that period. And before you make that statement which may amount to being very presumptuous, I think you need to have some solid basis for saying such things. PROF DE KOKER I am therefore putting it to Major Mbatha to get his comments on those issues ...[intervention] CHAIRPERSON Well, his position is that he stands by what he said. PROF DE KOKER With no further details being given ...[intervention] CHAIRPERSON PROF DE KOKER MS KHAMPEPE PROF DE KOKER This attack was and could never have been in the interest of the ANC, it could never have been undertaken to further the interests of the ANC. The ANC at that stage was committed and they gave the leadership in this Province - whom you acknowledge as your seniors, gave their words personally that the march would progress peacefully. Everything was done by the leadership to ensure that it would proceed peacefully. In fact when Mr John Block ordered the marchers to return home in peace, again reiterating or living by the assurances - acting out the assurances that he gave, at that stage the act was perpetrated, the act was highly embarrassing to the ANC, it could not have ...[intervention] ADV DE JAGER Professor, I think it would be difficult to give an answer to the question if it was a question now. MR MBATHA I believe that if it was not because of that accident that occurred - the embarrassment actually came from there. CHAIRPERSON Yes, next question? PROF DE KOKER The embarrassment therefore - your statement is that there would have been no embarrassment if the hand grenade - the act of violence, was perpetrated inside the building and killed other people - no embarrassment, no breaking of assurances given by the leadership that the march would be peaceful? MR MBATHA PROF DE KOKER If the hand grenade exploded inside the building without injuring anyone, would it still have been an act of violence? MR MBATHA PROF DE KOKER MR MBATHA PROF DE KOKER Was it regarded by the leadership of the ANC at that stage, as an act of violence? MR MBATHA PROF DE KOKER MR MBATHA PROF DE KOKER I put it to you that the event as it transpired was an embarrassment to the ANC, is that correct? MS KHAMPEPE PROF DE KOKER CHAIRPERSON He says it would not have been an embarrassment. He said if it had exploded the way that it did that he had planned, it would not have been an embarrassment. PROF DE KOKER Thank you Mr Chairman. The result led to immediate action on the side of the ANC. Immediately afterwards, the act was interpreted as - and there were various statements made, that this was actually an attack by the police on the ANC and there were also allegations that people saw a White man or men throwing the hand grenade. Why were those statements made? MS KHAMPEPE Before the witness can be able to answer, who made those statements? PROF DE KOKER I have at my disposal various statements made to the press at that stage and reported. Statements by the - for instance, Mr Thys de Getsie who was then ANC - if I may translate or go over into the Afrikaans because that is the form that I have it in front of me "ANC spokesman in the Northern Cape" And he said: CHAIRPERSON Do you have any comment on that? MR MBATHA PROF DE KOKER PROF DE KOKER MR MBATHA PROF DE KOKER You said yesterday that you went inside and I take that as referring to the Section 29 detention - that you went into detention in June, do you still maintain that statement? MR MBATHA Yes, correct. PROF DE KOKER According to further evidence - and if I may quote, from the same Volksblad page dated the 27th of May 1993, page 2 "Mr Popo Molefe, member of the National Executive Committee of the ANC yesterday arrived here to investigate this explosion. He told the Volksblad that the ANC were going to ask the Goldstone Commission to investigate the explosion. An urgent and searching investigation is necessary to avoid Kimberley becoming part of the pattern of violence in the country. Mr Molefi said the possibility ...[intervention] CHAIRPERSON Sorry to interrupt you, before we lose the importance of the question out of sight. In terms of the report that is being read to you it would appear that if you went into detention only in June, you would have been outside when Mr Popo Molefe visited this area. Can you throw light on that? MR MBATHA Sir, I actually came out on the 28th of June. CHAIRPERSON Is it possible that you might - you may be wrong in saying that you were detained only in June? MR MBATHA It is actually the 2nd of June - if I recall very well, it is the day on a Monday that I was picked up. CHAIRPERSON When Mr Molefe came here, where were you - outside or already in detention? MR MBATHA ADV DE JAGER Mr de Koker, I think we should come down now to what really would be crucial for us to decide on as far amnesty is concerned and I want to ask this question to Mr Mbatha MR MBATHA Sir, by virtue of knowing the agreements that have entered to, that would have meant a direct implication that the ANC has instructed that thing. ADV DE JAGER Do you think they would have approved of your action? MR MBATHA Sir, no. ADV DE JAGER Did they at any stage up to today approve of your action? MR MBATHA ADV DE JAGER MR MBATHA ADV DE JAGER MR MBATHA No Sir, no communication so far regarding that what you say. MS KHAMPEPE But have any disciplinary actions been taken by your superiors as a result of this action? MR MBATHA MS KHAMPEPE MR MBATHA MS KHAMPEPE My question merely is - whether if you had thought there was a need for you to ask for permission to proceed with your operation, would you not have asked Mr Sepiwe Nyanda for that permission? MR MBATHA Madam no, hence I said it is within my command initiative. CHAIRPERSON Did you understand the question? MR MBATHA I understood it in as far as authority regarding the action itself. CHAIRPERSON How did you understand the question? MR MBATHA That - would I have actually asked permission from Sepiwe as the Chief of Staff of the ANC by then - of MK by then, to proceed with that type of action. CHAIRPERSON MR MBATHA CHAIRPERSON COMMITTEE ADJOURNS ON RESUMPTION LAURENS MBATHA (s.u.o.) CHAIRPERSON: Mr Bode? CROSS-EXAMINATION BY MR BODE if not so I will render a further list in due course. CHAIRPERSON Who is the person you are adding? MR BODE Mr P G Kock, K-o-c-k Mr Chairperson. CHAIRPERSON Sorry, for the record it is now Mr Bode who is speaking. CROSS-EXAMINATION BY MR BODE MR MBATHA Sir, not personally. MR BODE The family of the deceased is very much concerned with the fact that after his unfortunate death, that you never ever approached their family up till this day in order to condone them on their loss. MR MBATHA MR BODE Major Mbatha, you must also respect the wishes of the family and as to how they may feel about the loss of their own son and not so much of how other people may evaluate such a loss. It is my specific instructions from the parents whom are present at this hearing, to ask you officially in public here and now to apologise for your action that led to the death of their son. Are you willing to do so, yes or no? MR MBATHA Yes, Sir. MR BODE I believe that approximately two days after the unfortunate death of their son, members of the ANC Executive paid a visit to the residence of the Mokone family and certain promises were made regarding sharing the expenses of the funeral and other costs, unfortunately nothing materialised. Do you know about these proposals that were made? MR MBATHA Sir, not to the best of my knowledge. MR BODE Did you ever try to find out whether the family of the deceased were comforted by any means of financial support or emotional support after the death of their son? MR MBATHA MR BODE You Major Mbatha, often referred during your testimony to the fact that as a result of the explosion certain comrades and members of the leadership were injured as a result of the blast, what about other people that were also injured and whom did not form part of the comrade grouping and/or the leadership? What about the other people, the innocent bystanders, what about them? MR MBATHA MR BODE Major Mbatha, do you agree with the fact that the building in which the Bop Consulate was situated at that time, is a building of approximately 10 to 15 stories high, do you agree with that? MR MBATHA Sir, it is a huge building with a number of floors upwards. MR BODE Mr next victim is a gentleman with the name of Mr Dan Pethani, now he was employed in that building at that time and he was merely walking past the incident and observing for that moment what was happening at the entrance to the complex in which his office was situated and as a result thereof he was injured by the blast. Now, he had nothing to do with the whole march or he was no party to the planning and whatsoever Do you specifically and also here without any reservations apologise to Mr Pethani for that what was a result of your actions? MR MBATHA Yes Sir, I do. MR BODE Miss A Gorrel Miss Millicent Ntebe Mr Frank Modumedi and Mr Paul Kock Do you also here in public without any reservations apologise to them for the action done by yourself? MR MBATHA Yes, I do Sir. MR BODE MR MBATHA MR BODE No further questions Mr Chairperson, thank you. NO FURTHER QUESTIONS BY MR BODE CHAIRPERSON Mr Mpshe? CROSS-EXAMINATION BY MR MPSHE "State political objective sought to be achieved" And in your answer you said: "Political objective was not actually achieved" Can you see that? MR MBATHA Yes, Sir. MR MPSHE Right. Now, you have not stated the political objective sought to be achieved in your application, instead you refer to the annexure which is page 8 of your application - page 8 and 9, also in that annexure the political objective has not been outlined. Can you tell this Committee what was the political objective? MR MBATHA MR MPSHE Perhaps I need to put my question - the same question differently, to get the answer from you. MR MPSHE By doing what you did, did you intend to attain any political result? MR MBATHA Yes, Sir. MR MPSHE Now, what is that political result you intended attaining by doing what you did? MR MBATHA MR MPSHE MR MBATHA Sir, not ...[intervention] MR MPSHE You attacked - if I may use the word attack? MR MBATHA MR MPSHE MR MBATHA MR MPSHE Major, finally on this very same aspect, did you hope to achieve any change in the then existing political climate? MR MBATHA MR MPSHE MR MBATHA You are correct, Sir. MR MPSHE Now what is it that the Bop Government was doing to which you had to give them a warning or a signal. MR MBATHA The open brutality that they were exercising Sir, within Bophuthatswana because the greater parts of those areas starting from the ...[indistinct] Kuruman up, they were part of the Northern Cape by that time, including Mafeking. MR MPSHE Will I be correct Major to say that all what you intended achieving was to stop the brutality or the torture or the assaults within that region, will I be correct? MR MBATHA Sir, yes. MR MPSHE And not necessarily to stop the political conditions in that region, will I still be correct? MR MBATHA Yes, Sir. MR MPSHE MR MBATHA MR MPSHE Now Major, for the Committee and perhaps even for yourself, according to the criminal trial the march was said to have been a very peaceful march and orderly up till the stage when the hand grenade was thrown. Do you think it was really in keeping with the circumstances of the march or the occurrence then, to use a hand grenade in order to achieve your political objective? MR MBATHA MR MPSHE MR MBATHA Sir, it is regrettable of the results but the grenade was not actually for the march but for the building itself but it in turn resulted that the marchers ended being victims of it - that part actually, it is really regrettable. MR MPSHE Thank you Mr Chairman, members of the Committee, no further questions. NO FURTHER QUESTIONS BY MR MPSHE ADV DE JAGER MR MBATHA Sir, with - because it will me back again to my instruction. I see actually the oversight, hence within my instruction it was when the marchers move away the grenade should be thrown in. ADV DE JAGER MR MBATHA At that time my perception was it was going to lose really a political element - this is how I perceived it that time. MS KHAMPEPE Was it Mr Mbatha, not your intention to injure the personnel of the Bophuthatswana Government who were housed in that building? MR MBATHA No, Madam. MS KHAMPEPE Now, if you had ran - launched your attack after hours, how would that action have lost a political meaning? How would your attack have lost a political meaning if it had been committed after hours? MR MBATHA I only regarded at that time Madam, that attack to the building - what those activities not part of it, would be classified in whatever direction that one would like to because for me it ...[indistinct] no political but just a mere criminal act of a crazy person who did that thing. MS KHAMPEPE MR MBATHA MS KHAMPEPE MR MBATHA We had actually members - Madam, I must start in the ...[indistinct] area, it was an area at that time when I started preparing my structures, those members were picked up, severely tortured, kept in cells. I can refer to one old man from the very same area who can relate his own personal experience, who went through a terrible torture - sharing his experience with me. And in terms of their torture system Madam, if I might openly say it, they were really good at it because all those people who have gone through it ...[intervention] MS KHAMPEPE MR MBATHA Yes, Madam. MS KHAMPEPE MR MBATHA CHAIRPERSON Maybe we should go back to Mr Visser now. Unless you seek to disillusion us, we are of the view that as matters stand you have not brought your clients within a position where they would be entitled to cross-examine the witness bearing in mind the fact that you are representing a certain Mr so and so and so and not representing the police. MR VISSER As it pleases you Mr Chairman. CHAIRPERSON Do you want to re-examine Mr Tsholanku? RE-EXAMINATION BY MR TSHOLANKU Only on a few points Mr Chairman. Mr Mbatha, a question was asked by Advocate de Jager pertaining to the ultimate reaction of the ANC to this particular incident (1) Whether were they aware of this - at a later stage made aware by yourself? (2) Did they associate themselves with this either by retrospectively condoning it and you then alluded to submissions that they made MR MBATHA Yes, Sir. MR TSHOLANKU CHAIRPERSON Sorry, what is that book about? MR TSHOLANKU These are submissions and responses by the ANC to questions raised by the Commission for Truth and Reconciliation. The reason why - if I understood the response of the applicant, the reason why he alluded to these submissions - it was after a question was asked whether retrospectively so or any point in time the ANC associated itself to this particular blast, whether impliedly or explicitly. CHAIRPERSON Are you saying that that document constitutes submissions made by the ANC to the TRC? MR TSHOLANKU Yes, the Commission for Truth and Reconciliation. CHAIRPERSON I see, well you can read it to him and ask him whether he solicits his comments or whatever - his response to that in line with the point that you want to make. MR TSHOLANKU "It is not possible" Appendices, MK Operations and other Armed Actions: "It is not possible to give a detailed account of every MK operation as requested by the TRC, we did not keep records of this nature mainly for security reasons. More detail will forthcoming in applications for amnesty by various commanders and combatants" There are two lists of armed actions attached to these submissions, Appendix 4 provides information on operations carried out by members of MK, arranged chronologically and according to the nature of the target in each case. It is drawn from reports, recollections from the MK commanders, press reports and SAIRR ...[indistinct] surveys. There are probably omissions and some mistakes may have occurred due to incorrect reporting or a range of other reasons. The incidents and attacks listed in Appendix 5 fall into the grey are described above. We are not certain that all these attacks were carried out by MK personnel or by people trained by MK personnel. We cannot state with certainty what the objectives of these were but it is probable that many were carried out in good faith in that belief - incorrectly at times, the cadres were acting in accordance with the injunctions by the leadership to intensify the struggle at all costs and carry the struggle into wide areas. In other cases, we strongly doubt that our cadres were responsible but do not have sufficient information to substantiate this". Now, Major Mbatha, I have read out an extract from the submissions by the ANC and my emphasis is on this particular paragraph where it said: "We cannot state with certainty what the objectives of these attacks were but it is probable that many were carried out in good faith in the belief - incorrectly at times, the cadres were acting in accordance with the injunctions by the leadership to intensify the struggle at all costs". Now, you have mentioned what you referred to as your command initiative pertaining to this particular attack, can you safely say that that command initiative can be associated to this particular injunction by the leadership of the ANC that is mentioned in this particular submission? MR MBATHA Yes, Sir. MR TSHOLANKU Can I understand that to mean that the ANC in their submissions associating themselves to acts committed on the authority of their commanders and combatants that they were not aware of, which were carried out in good faith and on occasions incorrectly carried out ...[intervention] CHAIRPERSON MR TSHOLANKU MR MBATHA Yes, Sir because it was in good faith. MR TSHOLANKU Thank you Mr Chairman, no further re-examination. NO FURTHER QUESTIONS BY MR TSHOLANKU CHAIRPERSON Thank you Major, you are excused. WITNESS EXCUSED PROF DE KOKER CHAIRPERSON I was also curious about that. Was that incident listed? MR TSHOLANKU Mr Chairman, this incident was not listed. The incidences listed range from 1960 to 1989, those are the incidences listed. My understanding of the submission is that the ANC associated itself with which they refer to as the grey area. Where there is proof that a commander and a combatant of MK involved in an incident that was not reported to them for security reasons and if such was carried out in good faith, my understanding is that they associated themselves with them. CHAIRPERSON You can argue that I think. MR TSHOLANKU Yes, Mr Chairman, that is going to be my argument. ADV DE JAGER MR TSHOLANKU My understanding is that this would have been the injunction issued by the ANC but there apparently is a rider that even if in good faith the combatant or the commander believes that this was part of the injunction - even if he was incorrect at that particular time but if that was good faith, my understanding is that it is covered by this particular submissions. ADV DE JAGER I just wanted to - you should think about it because having an injunction and on the other hand, signing the Peace Accord - but you could address us on that later. MR TSHOLANKU MS KHAMPEPE Particularly with regard to MK operations? MR TSHOLANKU With regard to MK operations yes, Madam. CHAIRPERSON ...[inaudible] MR TSHOLANKU As it pleases Mr Chairman. CHAIRPERSON Thank you Major, you are excused. MR MBATHA Thank you Sir. WITNESS EXCUSED