Amnesty Hearings

WALTER SMILES: (s.u.o.)

CROSS-EXAMINATION BY PROF DE KOKER: (cont)

Mr Chairman, before we start with or before I proceed with cross-examination, I would like to address two specific issues which were raised earlier. The first concerned the trial of the people involved and the question right at the start of the proceedings, as to the submission of the evidence that Mr Smiles acknowledged at that stage, that he had thrown the hand grenade.

It was unclear precisely what happened during the proceedings. In the meantime Advocate Mpshe has said that he has made available to the Committee, an extract from the record dealing with that particular day and specifically the evidence by Mr Mtlele. During his cross-examination, Advocate Potgieter put the specific affidavit dated the 27th of September to him. Now that was apparently put to him on - a few after the drafting of that affidavit on the 2nd of October. The State then said ...[intervention]

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

PROF DE KOKER: Advocate Potgieter put the affidavit to Mr Mtlele and that is on page 181 of the record at paragraph numbered 30. The state then intervened and said that would be hearsay evidence unless the particular witness which was Mr Smiles was called, they then asked Mr Potgieter whether he was going to call the witness.

Mr Potgieter then said he was unsure - it proceeded - he was unsure whether he was going to call the witness. They then argued for another 10 pages which brings us to page 189 and page 190 of the record. I see that the record is handed to the Committee members only now. Excuse me Mr Chairman, I proceeded on the basis that you had them in front of you already.

I’m referring you to page 181 at the bottom because that is where the discussion starts and then it proceeds to page 189 but with a bit of history on page 190. In the middle of paragraph 10, Mr Botha placing the following on record:

"Pardon your Honour, I want to place on record that directly after the negotiations and when we adjourned, I told my learned friend - this reference is to Advocate Potgieter, that we were not going to use him Mr Smiles, as a witness. When he got to the police station in the presence of his advocate, it was told to him that the State was not interested in him and that he was regarded as a witness for the defence"

So at that stage it was clear that he should have been called by the defence. On page 189, Advocate Potgieter refers at paragraph 10, to the date on which this affidavit was drawn - paragraph 10:

"When did he make this statement Mr Potgieter? - recently, just a few days ago the 27th, what are we today, the 29th"

and then he said the 2nd which meant the 2nd of October. Mr Potgieter continues:

"Monday yes, I don’t know what his status would be. I can hear them saying that I can get him again but I don’t know"

The court says:

"Pardon"

And then they continue and Mr Potgieter says in the next paragraph:

"Yes, I understand what my learned friend is saying, we can get hold of him again"

A bit further down, 25:

"Mr Potgieter, I understand that he’s now available to me"

Mr Chairman, that clearly shows - and if you can proceed to page 191, it is repeated and then on page 191, paragraph 30, Mr Potgieter closes by saying:

"I want to propose it but I want to say I’m not in a position to say whether this person is a witness of mine"

Page 192:

"I must assure myself because I can’t make a statement to this witness and then he turns out not to be a witness, I don’t know whether I can do this. I know that I can prove that the statement was made"

It seems therefore from this extract from the record, as if it was clear at that stage that the onus was on the defence to call Mr Smiles as a witness and they also allowed him to proceed with Mr Mtlele’s cross-examination, putting aside the affidavit but allowing him the opportunity to return to Mr Mtlele at a later stage once the specific evidence has been led. I just wanted to put this to the Committee to clarify the matter as discussed on Monday morning.

The second preliminary matter deals with the document referred to by Advocate Tsholanku of which he was kind enough to furnish us with a copy. I look at page 71 which is the paragraph which he specifically quoted in connection with the command initiative. I follow his rather sensitive argument but it seems to be connected directly to the appendix which only lists incidents ranging from 1960 to 1989, fairly detailed and a fairly lengthy appendix. I would like to find out and I don’t know whether Advocate Mpshe will be able to help us.

There is a rather abrupt end to this list in 1989, was there a further document by the ANC or any document or submission to the TRC directly submitted by the ANC, in which they accepted responsibility for this particular incident. That is not clear to me, it’s clear - and that was raised yesterday, it’s not listed in this list but there seems as if there could be another list or a further submission. I would appreciate it if this matter could be clarified.

It is clear that this is not the kind of incident which could simply have slipped away as being unknown by the ANC because it was reported to their legal department and some matters were actually dealt with by the legal advisor, Mr Matthews Phosa himself.

CHAIRPERSON: Sorry, not that it really bothers me but why do you say it seems there another list which will cover this incident? Because when I look at the last page, the listing ends in the middle of the page which suggests that if there were to be anything to be added on, at least that last page would have been filled.

So they stopped right in the middle of the page which contrary to the impression you have, to me it suggests that they had nothing - the fact that they leave the page - other pages have been filled to the bottom, the last page is left in the middle. To me it suggests that there’s nothing further to add, otherwise they would have continued to fill the page. What gives you the impression that there is another list?

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

CHAIRPERSON: I think we can simply ask Mr Tsholanku or Mr Mpshe whether they are aware of any other list that goes beyond that period and indeed which also lists the incident in question.

Are you aware of it or are you not aware?

MR TSHOLANKU: Mr Chairman, my understanding is that this forms part of the second submissions which were brought forth as a result of questions that were asked by the TRC after their first submissions because the concern of the TRC was that there’re a whole lot of other incidents that might crop up. They have a list of all the incidences that their combatants and commanders will be applying for amnesty in connection with.

They then compiled a list of what they have as per their reports and records and also acknowledged that there are incidences - that is why they referred to them as the grey area, which they don’t have a report of and which are not on the list.

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

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

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

MR MPSHE: Mr Chairman, I’m not aware of any other list, this was the final written submission. The only documents that are there connected to two submissions, the first last year and this year, are Appendix 8 and I don’t know what the contents of Appendix 8 are - whether it will include what is being said here but I’m not aware of any other list.

CHAIRPERSON: Well, you must have heard their response.

PROF DE KOKER: Thank you Mr Chairman, but in the light of the response - and it seem to me that this particular document is not of particular relevance to this incident.

CHAIRPERSON: Which document?

PROF DE KOKER: The particular document referred to as the: "Green Book".

CHAIRPERSON: I think we must distinguish between points for argument which you can argue at the end after the evidence, and leading evidence and not interrupt the flow of evidence with arguments and start being engaged in arguments about that.

I’m not so sure - even on that argument of yours, I’m not so sure whether you’re right in saying so you know. I’m not so sure whether we are on the same wavelength as to the purpose of the: "Green Book" because as I understood the situation yesterday, the purpose of the "Green Book" was not to try and show that this incident was listed, that was not the purpose for which it was referred to.

PROF DE KOKER: Mr Chairman, I agree on that score but ...[intervention]

CHAIRPERSON: What was the purpose for referring to the: "Green Book", what was the purpose as you understand it?

PROF DE KOKER: As I understood it, it was led as evidence to show that a certain command initiative was allowed but the specific passage is linked to the appendix and the appendix only deals with incidents from 1960 to 1989, so it seems it is open to interpretation that it pertains only to command initiatives during that period, during a period of intensive struggle. And then we reach the end of the page and there’s no further information regarding the ambit of the command initiatives once the peace ...[intervention]

CHAIRPERSON: Are you saying any applicant coming to apply for amnesty in respect of an incident which is not listed there, would not be entitled to rely on the "Green Book" to show that there was some discretion allowed on their part? And any such applicant seeking to rely on the: "Green Book" to show that as regional commanders they were allowed some discretion, is not entitled to rely on that book and in his application this: "Green Book" would be irrelevant?

PROF DE KOKER: I would certainly like a more clear indication that the same ambit of the command initiative as existed during the height of the struggle, was also existing after the peace process had started in 1991 and at the moment when this particular act was perpetrated in 1993, 11 months before the elections.

CHAIRPERSON: I think you will argue that because you have a different perception as to when was the height of the struggle and somebody may have a different perception. You may believe that the struggle must have ended at a certain point, somebody might say that the struggle was not yet over so all these are questions for argument you know and I think it affects the relevance of that: "Green Book".

PROF DE KOKER: Thank you Mr Chairman, I take your indication then I will return to it in argument.

CHAIRPERSON: Sorry, please proceed, I’m sorry.

CROSS-EXAMINATION BY PROF DE KOKER: Thank you Mr Chairman. I would like to continue with the cross-examination of Mr Walter Smiles.

Mr Smiles, yesterday ended with a number of questions regarding your HRV application, specifically - or your HRV evidence, specifically your evidence that when it was time to hand over the third petition:

"Then there was a sign that I must throw this grenade and he lay down at the same time"

You were unsure yesterday and you were given time to reconsider, can you please explain your evidence given last year?

MR SMILES: Mr de Koker, to explain this now - the signal that we were talking about, I was a bit frightened yesterday but now to explain it today - when we got out of the car, I got this instruction and the instruction was that when the march was returning home, then I would have to throw the hand grenade. Unfortunately I saw the hand grenade striking this man in his face and then I went and lay down because I knew what the hand grenade could do.

PROF DE KOKER: You’re now saying that this signal to which you referred last year wasn’t a signal as such but rather the instruction which you got. Unfortunately at that same occasion - page 40 of the documentation, a little bit before you told the Committee

"When I got out of the car there, I wasn’t informed of any grenade or anything, I was just given a piece of paper"

And then you continued and it made sense - you didn’t get complete instructions, you came and then that signal was given to you that you had to throw this grenade.

MR SMILES: Mr de Koker, I understand what you’re explaining but on that day I was very scared and it was the first time that I was in a crowd, it was very big crowd and I was a bit confused.

PROF DE KOKER: But yesterday you said when the Committee asked you, you felt

totally at ease when you made this statement and today you’re saying you were scared and what you said there was wrong. How is this possible?

MR SMILES: Just explain to me again.

PROF DE KOKER: Yesterday you were asked by Commissioner Khampepe, whether you felt at ease, whether you felt comfortable when you were making this statement - when you gave this evidence, today you’re telling us that you were scared and that’s why you said things that weren’t true.

MR SMILES: People can get a fright, today I feel better able to explain it.

PROF DE KOKER: Mr Smiles, you said you got out of the car with a white bag with the hand grenade inside it, when did you take the hand grenade out of the bag?

MR SMILES: During the march.

PROF DE KOKER: What did you do with the bag?

MR SMILES: I gave the bag to someone, I can’t remember who it was.

PROF DE KOKER: So, you handed the bag to someone else and what did you do with the grenade?

MR SMILES: I walked with the grenade right up to the Bophuthatswana Consulate building.

PROF DE KOKER: Did you have it in your hand?

MR SMILES: No, I hand it under my T-shirt, under my skippa.

PROF DE KOKER: Under the T-shirt?

MR SMILES: Yes.

PROF DE KOKER: How did you keep it inside your T-shirt?

MR SMILES: I used my own initiative to keep it inside the T-shirt.

PROF DE KOKER: And what was this initiative?

MR SMILES: I couldn’t be seen with this hand grenade.

PROF DE KOKER: I just want to know - this heavy grenade, how did you keep it under your T-shirt? What did you do to keep it from falling out?

MR SMILES: I had a belt like this one I’m wearing in my trousers.

PROF DE KOKER: A belt? Did you hook it on the belt?

MR SMILES: No.

PROF DE KOKER: Can you then perhaps just explain to us?

MR SMILES: You must please explain to me very clearly.

PROF DE KOKER: You’re talking about a belt which kept the hand grenade from falling out underneath the T-shirt, is that correct?

MR SMILES: Yes, that’s correct.

PROF DE KOKER: Where did you wear this belt?

MR SMILES: Like you’re wearing this belt around your waist to keep up your trousers.

PROF DE KOKER: Did you hook it to the belt?

MR SMILES: No.

PROF DE KOKER: How did you use the belt to hold the grenade?

MR SMILES: So it can’t fall out - you see, I put in the bottom like this so it was lying like this at the bottom and the belt was keeping it - you see, that’s what I’m explaining.

PROF DE KOKER: A hand grenade which is worn like this isn’t really hidden, that big bulge under your shirt is quite obvious.

CHAIRPERSON: Well, this is not the Skippa he put on, is it?

PROF DE KOKER: That is correct Mr Chairman, but as I understand Mr Smiles, he’s referring to the Skippa as a T-shirt which had even less space for hiding this than his shirt.

CHAIRPERSON: You really - you don’t know what you’re talking about Professor de Koker, and I don’t know what the witness is talking about. How can you say - make that statement, please? How can you say that that T-shirt would have had less room? Do you know that skippa, have you seen it?

PROF DE KOKER: The witness was asked yesterday what he was wearing, he said it was a T-shirt - skippa and I assumed that he was referring to a T-shirt. He also said that he wasn’t wearing anything over this T-shirt. I want to determine these facts because I want to return to them later. I would like to continue with Mr Smiles’ application and I refer the Committee to the first bundle, page 13.

In the middle of the page Mr Smiles, you give the following explanation:

"On the 24th of May 1993, the commander Laurens Mbatha, gave me a hand grenade and instructed me to throw it into the Trust Bank building where the Bophuthatswana Representative would stand"

Mr Smiles, was this the instruction you got?

MR SMILES: Just explain this again please.

PROF DE KOKER: In your statement - in your amnesty application, which is in front of you now

"The commander Laurens Mbatha, gave me a hand grenade and instructed me to throw it into the Trust Bank building where the Bophuthatswana Representative would stand"

The instruction according to your own application, was that you had to throw this hand grenade there to where the Bophuthatswana Representative would be standing, is that correct?

MR SMILES: That is correct.

PROF DE KOKER: And then you continue

"I did in fact to what I was instructed to do"

You did what you were told to do.

"I threw the hand grenade towards the door at the Trust Bank where the Bophuthatswana Representative and Mr Uys were standing and thereafter I ran away"

So, you did as you were instructed to do, you threw the hand grenade to the door where the Bophuthatswana Representative and Mr Uys was standing, is that correct?

MR SMILES: I don’t know Mr Uys.

PROF DE KOKER: Who is this Mr Uys that you refer to in the application?

MR SMILES: I don’t know a Mr Uys.

ADV DE JAGER: Mr Smiles, this is your sworn statement. In your statement you mention a name - it appears to me you were told to say various things in this application, if you don’t Mr Uys or don’t recognise his name.

MR SMILES: I just want to think very clearly about it.

ADV DE JAGER: You must come with the whole truth now, did somebody tell you what to do or not?

MR SMILES: Please explain it to me again.

ADV DE JAGER: You mention a name, a Mr Uys in your own statement and now you’re telling this Committee you don’t know a Mr Uys.

MR SMILES: That is correct, this thing was drawn up by Rodney Isaacs - I don’t know a Mr Uys, I was just given the instruction. I don’t know a Mr Uys, I was just given the instruction, I didn’t know these people.

ADV DE JAGER: But you signed this statement under oath and you said this was the truth?

MR SMILES: Mr de Jager, Mr Isaacs will be able to explain this, I can’t explain it - I didn’t type or write this.

ADV DE JAGER: So this statement of yours is not correct?

MR SMILES: I’m not saying it’s not correct.

ADV DE JAGER: You’re throwing this hand grenade and you’re throwing it at the Bophuthatswana Representative and there’s a man next to him and that is Mr Uys.

MR SMILES: I wasn’t told that the grenade had to hit Mr Uys, I had to throw it inside the Trust Bank building. This Mr Uys I don’t know at all, Mr Isaacs must be asked about this.

CHAIRPERSON: Mr de Koker?

PROF DE KOKER: You also said it had to go inside the building, there where the Bophuthatswana Representative was standing. You’ve just said that that was your instruction and that was your instruction, it had to go right inside where the Bophuthatswana Representative was standing. The instruction you got yesterday that nobody get hurt, wasn’t correct. The instruction was in fact that you had to throw the hand grenade where the Bophuthatswana Representative was standing.

CHAIRPERSON: Sorry, that’s not what it says, it says

"Throw at the building where the man would stand"

You see there’s a difference because this could be a description of the building - by saying to throw the hand grenade at a building where the Bophuthatswana man would stand, you describe the building to distinguish it from other buildings in the city of Kimberley.

PROF DE KOKER: Quite correct.

CHAIRPERSON: ...[indistinct] this does not say: "Throw the hand grenade where the representative would stand" but: "Throw the hand grenade at the building where the man would stand" - you describe the building.

PROF DE KOKER: That would be a correct interpretation of this first sentence but unfortunately, then it goes on to say

"I did in fact to what I was instructed to do, I threw the hand grenade towards the door at the Trust Bank building"

And as far as I know, there’s only one Trust Bank building in Kimberley.

"I threw it towards the door of the Trust Bank building where the Bophuthatswana Representative and Mr Uys were standing"

He therefore identifies the particular building and then said he threw it towards the door of this particular building where the Bophuthatswana Representative and Mr Uys were standing.

CHAIRPERSON: Yes, that’s what I’m saying, I’m saying it’s a description of the building.

ADV DE JAGER: Well, I differ from my colleague here, I think it couldn’t be a description of the building, the description of the building is put down as Trust Bank building.

MS KHAMPEPE: Professor de Koker, wouldn’t you say that would be the description of the particular entrance of the Trust Bank building where the hand grenade had to be thrown?

CHAIRPERSON: Well, why doesn’t the sentence just say: "Throw the hand grenade where the Bophuthatswana man will be standing?

PROF DE KOKER: As far as I know, the Trust Bank building has only one entrance.

CHAIRPERSON: Or you could say: "Throw the hand grenade where the Bophuthatswana person will be standing", which would be the Trust Bank building.

CHAIRPERSON: Or just say: "Throw the hand grenade at the representative who will be at the Trust Bank building" - that’s really how you read it.

PROF DE KOKER: There are ...[intervention]

CHAIRPERSON: Look, are you reading this sentence to say that: "Your instructions was to throw the hand grenade at the Bophuthatswana Representative", is that how you read it?

PROF DE KOKER: Yes, yes I do and I believe that is a valid interpretation of that sentence because the particular building is identified twice - to throw it into the Trust Bank building.

CHAIRPERSON: You are not even prepared to concede that there is some ambiguity?

PROF DE KOKER: Unfortunately not, Mr Chairman.

CHAIRPERSON: Well, one member of the Committee agrees with you, two don’t agree with you but you can proceed. You can put whatever questions you want to put, you can argue that later on. You can put your questions as if we did not say that there is some ambiguity, you can put your questions on the basis that you are right.

PROF DE KOKER: Thank you Mr Chairman. Mr Smiles, what then was your particular instruction which you complied with?

MR SMILES: The instruction I got was nobody had to get hurt, the purpose was that it had to go inside the Trust Bank building, that was what the instruction was but I had to wait for the march to return to go home - that was the signal to throw the hand grenade.

PROF DE KOKER: At that stage, there was a least one person that we know of inside the building and that was the security guard, how did you follow your instruction that the security guard should not be hurt?

MR SMILES: The security guard was coming out as I threw the hand grenade and I hit him in the face. If the security had not come out then he would have been inside and I wouldn’t have worried what happened at the building.

PROF DE KOKER: Why would you not have worried what happened?

MR SMILES: My instruction was that when the hand grenade was in, it was in.

PROF DE KOKER: And what about the people inside the building?

MR SMILES: But I didn’t see any people inside the building.

PROF DE KOKER: But the security guard was inside the building when you threw the hand grenade. Lucky for the security guard he was coming out and the hand grenade hit him, is that correct?

MR SMILES: But how could I see that the security guard was going to come out - I didn’t know the security guard was going to come out?

PROF DE KOKER: And if he didn’t come out, he would have been inside? And your instruction was to see that nobody got hurt and you also had to make sure that the security guard didn’t get hurt.

MR SMILES: I had to see that the marchers were returning, then I had to throw the grenade.

PROF DE KOKER: Was the instruction that none of the marchers would get hurt or was your instruction that no-one, no-one at all whether they were marchers or not, would get hurt?

PROF DE KOKER: Who was not supposed to get hurt, no-one or not one of the marchers?

MR SMILES: Not one of our people, not one of the marchers had to get hurt.

PROF DE KOKER: It didn’t matter to you that there were other people who were going to get hurt, that’s why you threw the hand grenade into the building and that’s why you didn’t look whether there were people inside the building?

MR SMILES: I’m not sure whether you understand me Mr de Koker, but I’m explaining this thing over and over and I’m not going to explain it again. The intention was that the hand grenade had to go inside the building and the signal was that the marchers were returning - at that stage I threw the hand grenade and then the security came out, I hit him in the face and that’s how all the people got hurt.

PROF DE KOKER: And if he hadn’t come out, none of the marchers would have got hurt and it would have been inside and other people - the 10 or 15 people inside, would have been hurt or killed if you had followed your instructions?

MR SMILES: I didn’t know whether there were any people inside.

PROF DE KOKER: You didn’t need to know because it was not your instruction to look after them.

MR SMILES: Just explain to me again please.

PROF DE KOKER: Your instruction was to see that none of the marchers got hurt, your instruction was not see that any other persons - whoever they may be inside the building, did not get hurt. You threw the hand grenade inside the building and you didn’t mind who got hurt?

MR SMILES: I just want to think about this very clearly.

MS KHAMPEPE: Professor de Koker, hasn’t he already conceded to that? I think you can’t get anymore than what he has said.

PROF DE KOKER: In the light of that indication, I will then leave this line of questioning and we can continue to a next aspect.

You said that you threw the hand grenade in such a manner that nobody could detect you, now it still remains unclear where you stood when you threw the hand grenade. You said you stood back, I would like you to explain this to us. Let’s say this bench is the entrance of Trust Bank and let us say - to inform the Committee perhaps just the following note, the building faces the same direction as this exact bench here or this table here, so we are geographically situated as the Trust Bank building - corresponding to the Trust Bank building and the micro tower is on the right there where the door is, can you please indicate to us where did you stand?

MR SMILES: There was a little tree, that’s where I stood.

PROF DE KOKER: Well, let’s say this is the entrance - this before us here, please indicate by hand where was that little tree that you’re referring to.

MR SMILES: It was this side, as the Trust Bank stands, it was this side.

PROF DE KOKER: So, if we say the Trust Bank - you’re now standing in front of the Trust Bank and this is the entrance, you’re standing there in the middle of the street, can you show us here on the stage approximately where you stood if this was the entrance? (transcriber’s own translation)

ADV DE JAGER: He did indicate that he stood at a tree left of the entrance.

MR SMILES: That is correct.

ADV DE JAGER: For the record, that is how I understood it.

PROF DE KOKER: I’m just trying to get clarity.

Maybe Mr Smiles, you can indicate on this table where did you stand in terms of the entrance - just to help us clarify it physically?

MR SMILES: It’s very complicated, maybe we should go to the venue itself, then it can be easier.

MS KHAMPEPE: Professor de Koker, can you probably assist Mr Smiles by referring to the sketch plan which is annexed to his application, if you think that’s going to be of any assistance?

PROF DE KOKER: Thank you very much for that indication Commission Khampepe, on page 24 of the first bundle, there is a sketch plan of the building.

If you look very carefully at this sketch, can you perhaps - that is page 24 of the first bundle, if you look at this, could you on this sketch indicate more or less where you were standing?

MR SMILES: It was not too far away from the sidewalk, it was a tree in a pot - a plant holder.

PROF DE KOKER: When I look at this tree, this is the inside of the building. If inside the building underneath that D ...[intervention]

MR TSHOLANKU: Professor de Koker sorry, if you could be kind enough to give us the references to these points as to what A refers to, I think it would make it much easier. I’m trying to get the reference points, I can’t find them in my document.

MS KHAMPEPE: That’s on page 18, Mr Tsholanku. But I thought Mr Smiles had referred to a sidewalk?

PROF DE KOKER: That might be my misunderstanding or my bad eyesight then, Commission Khampepe.

MS KHAMPEPE: I think you simply saw something which looked like a tree in the square where D is, and settled.

PROF DE KOKER: That is correct. Could we perhaps just for clarification for everyone involved, ask Advocate Tsholanku if it’s possible for your client just to indicate in pen or pencil just by way of a cross where he’s standing - we could perhaps circulate that quickly and we could have that indication.

MR TSHOLANKU: Can we safely say that B and A is the front of the building - in page 18, reference is made to pictures and it makes it rather difficult because then the references don’t say what A is on the sketch plan.

PROF DE KOKER: Advocate Tsholanku, as far as I understand it and from my own recollection you’re quite correct, B and A refers to the front of the building. The line between B and A would be the glass front and in-between would be the sliding door where the hand grenade should have entered to point D then as I understand, which is part of the foyer opening up into a broader foyer.

MR TSHOLANKU: Thank you, Professor de Koker.

CHAIRPERSON: Mr Tsholanku, you’re now engaged in a dialogue with your client and we are puzzled, what is happening?

MR TSHOLANKU: I’m sorry, Mr Chairman, I was explaining to him that point A and point B is the front of the building and in relation to the front of the building he must then make a cross as to where approximately or exactly he was standing. He has already made a cross, I’ll circulate my copy of the document to give an indication to the Committee and everybody where he was standing exactly.

CHAIRPERSON: Which page are you referring to?

MR TSHOLANKU: Page 24.

CHAIRPERSON: Where was he standing?

MR TSHOLANKU: The point where he has made a cross, he says approximately in that area.

CHAIRPERSON: Were you standing on the pavement?

MR SMILES: Yes, Mr Chairman.

PROF DE KOKER: Thank you very much for the indication Mr Smiles. From which direction did the march come - if you look at that sketch, did the march come from Jones Street into George’s or did it come down George’s - which appears according to the sketch, to be a one-way? Did this march come down George’s Street?

MR SMILES: No, Mr de Koker, it did not. Georges - we are actually speaking of Jones Street where OK is?

PROF DE KOKER: No. Listen, there’s a Jones Street on this sketch and then there’s a George Street, that is apparently the big street in front of the building. Now tell us, from what direction did the march come?

MR SMILES: It is the big street.

PROF DE KOKER: Please can you indicate on the sketch, did this march come from?

MR SMILES: No, from this side.

PROF DE KOKER: From the direction of the micro tower?

ADV DE JAGER: So, what I’m getting is from Jones Street. Okay, tell us, in what street is OK?

MR SMILES: No, no, it wasn’t Jones Street. I’ve forgotten the street, I don’t know exactly what the street’s name was.

PROF DE KOKER: As far as I can understand then the march came past Craven Street and went along George Street right up to the entrance, is that right?

MR SMILES: Yes, that’s right.

PROF DE KOKER: And did the march then turn around and return in the same way?

MR SMILES: That’s correct, Mr de Koker.

PROF DE KOKER: Yesterday you said you threw the hand grenade so that nobody could see you?

MR SMILES: That’s right.

PROF DE KOKER: But when you threw the hand grenade, the memorandums had already been handed over and the people were turning back and going away.

MR SMILES: There was one memorandum - so when they were all going home, then was the time for me to throw the hand grenade.

PROF DE KOKER: Were the people already turning away?

MR SMILES: Some were going, some were still coming back. I can’t say that they were all going because I knew I had to wait for all of them to leave.

PROF DE KOKER: But when you threw the hand grenade, were there still people?

MR SMILES: The people were there but not a lot.

CHAIRPERSON: Where, can you ask him - please try to clarify because we ran into problems yesterday, you asked him a question and then he said: "ontelbare mense" and it appeared as though we might get confused in to whether you’re asking about the presence of people in the building or outside the building.

So when you ask him about whether there were people, would you please specify whether you’re referring to people in the building or in the foyer or the marchers on the pavement or in front of the building.

PROF DE KOKER: As it pleases you, Mr Chairman.

Mr Smiles, when you say that there were still people, are you referring to the people in the procession, the marchers?

PROF DE KOKER: So, some of the marchers were still standing there but some of them had already left.

MR SMILES: They were just turning around to leave and then the security man came out.

PROF DE KOKER: So, you didn’t wait before throwing the hand grenade until the people had started moving away?

MR SMILES: There wasn’t a lot of people.

PROF DE KOKER: Some people were standing, some had already turned away but my problem is this, you said you threw the hand grenade so that no-one would see you but there were people standing in front of the building - marchers, and you said that there were other people still wondering around, people who had turned back. How is it possible with all these people around you, to throw a hand grenade so that you wouldn’t be seen?

MR TSHOLANKU: Excuse me, Mr Chairman, we don’t know if at that particular point in time - as it is phrased, that everybody’s eyes were on Mr Smiles at that particular point in time when he threw the hand grenade. I think the question is misleading Mr Smiles because an impression is created that when he threw the hand grenade at that time - as it is ...[indistinct], everybody else’s eyes were on top of him them. How could he explain that nobody - he threw the hand grenade so that nobody should him at that particular point in time.

CHAIRPERSON: This question that was in fact asked yesterday - well let’s go back to hit again, I think he is wanting to know - he wants the witness to explain how it is possible if there were people between him and the building, some of whom would have in fact turned round to move towards him - in fact face him, how is it possible that he could have hoped that he could have thrown that hand grenade without being seen by the people.

MR TSHOLANKU: In that way Mr Chairman, I accept it.

CHAIRPERSON: Isn’t that what you’re asking?

PROF DE KOKER: That is quite correct, Mr Chairman, thank you very much for the clarification.

How was it possible for you to say yesterday, that you threw this hand grenade in such a way that no-one could see you? Yesterday you said, nobody saw you because everybody was looking at the memos and now you said people were wondering around buying food, going home. Where you said you were standing and the direction in which the marchers were returning were the same direction, people were walking in your direction. How could execute this bowling action without anyone seeing you?

MR SMILES: Just explain it to me again please, just please explain it to me clearly.

PROF DE KOKER: Yesterday you said you threw the hand grenade in such a way that no-one would see you.

MR SMILES: That’s right.

PROF DE KOKER: But the way you demonstrated how you threw this hand grenade, it’s a very clearly visible movement. Then you said to me no-one could see you because everyone was looking at the memos.

MR SMILES: That’s right.

PROF DE KOKER: Now you say, some people were looking at the memos, other people were wondering around buying food and some people already returning in your direction.

MR SMILES: A hand grenade is not something you can throw like a stone, you have to lift your hand in order to throw it.

MS KHAMPEPE: Mr Smiles, could you have launched that hand grenade into the building without being seen by people who were immediately around you?

MR SMILES: Yes.

MS KHAMPEPE: How is that, when you have to lift up your hand in order to throw it?

MR SMILES: I did lift my hand. It was my duty not to be seen, that was all I could do.

MS KHAMPEPE: You think you were not seen?

MR SMILES: Yes.

PROF DE KOKER: Mr Smiles, of all the people standing there can you bring anyone who saw you throwing this hand grenade?

MR SMILES: I explained it now, I had to make sure that I wasn’t seen. How can I find somebody who can testify that they saw me? I had to do my best not to be seen and that’s what I did.

PROF DE KOKER: Mr Chairman, the importance of this information is that it is highly likely that there were persons who saw ...[intervention]

ADV DE JAGER: Mr de Koker, but that is part of your argument. I can understand if you say it is possible that people might have seen him, since people were trying to turn around, people were coming on, people were moving back - taking all that into consideration, it is possible but that is an argument that you will have to put before us.

The witness won’t be able to take us further, he is saying he threw it in such a manner that he wasn’t seen. Now, one can take it in argument to decide whether it’s possible or not. I think the witness is not going to bring us any further because he believes he did it in such a manner that he wasn’t detected.

PROF DE KOKER: Commissioner de Jager, I totally agree with you but I’m putting this to the Committee because we feel very uncomfortable about the ambit and the extent of the investigations undertaken by the various bodies of the Truth and Reconciliation Commission. Yesterday, a surprise third witness who was in the car when the instruction were given, surfaced. Today, it appears that there might be more witnesses who can shed light on the truth.

Two people are presently in jail, one of them accepted responsibility for throwing the hand grenade. There were 200 people roughly, involved at this incident, somewhere there must be witnesses who are prepared at this stage to come to the fore and to tell us the truth. And ...[intervention]

CHAIRPERSON: Professor de Koker, really I don’t think we should get into that. You know, the situation might not be as easy as all that, it may very well be that even the police with their expertise and skill in their investigations were not able to get witnesses to come and say we say such and such a person, be it the convicted people or anyone else for that matter.

We don’t know, it may even be - I mean it’s a fact a hand grenade was thrown there and it’s a fact that there were people there but how many people - eye witness, did their police with all their skills and abilities unearth? I don’t know, it might just have been very difficult to get eye witnesses and I don’t know whether your statement is justified in criticising the investigations so far done, it may not be as easy as you say. At any rate really, these are matter for argument, I think deal with the evidence and then you can raise arguments later.

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

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

PROF DE KOKER: If I may restrict myself then to one piece of information which made us uncomfortable about the ambit of the research. The applications would have gone ahead in March after only two of the victims - those mentioned in the applications, were informed of the proceedings and at that stage it was postponed because we then made evidence available to the Committee showing that there are many more people who were involved - up to forty at that stage, and that appeared at that stage to have come as a surprise.

That is some of the information which I would have thought would have been unearthed by the Investigation Unit but I wouldn’t like to enter into a discussion or in further criticism of the unit. I would simply - and that was the whole purpose of this request, ...[intervention]

CHAIRPERSON: Sorry, Professor de Koker, we have a procedure you know in these proceedings, we don’t just conduct hearings at random on an ad-hoc basis. You can’t just in the middle of the evidence, while you are cross-examining the witness just stop leading evidence and just start arguing certain aspects of the case in the middle of a hearing.

We really find this to be causing us great difficulty. If you have got points to argue, to raise and even you feel you want to criticise some the reports and the like, do that at the right stage. We’re busy talking about certain things which are matters of argument and the witness is in the meantime sitting in the witness box. The witness is there for you to put questions to him - we lead evidence, finish the evidence and then argue the case later.

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

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

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

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

PROF DE KOKER: What did you tell him?

MR SMILES: I told him that the operation was unsuccessful, that’s what I said.

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

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

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

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

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

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

PROF DE KOKER: And what was reaction thereon?

MR SMILES: His reaction?

PROF DE KOKER: Yes.

MR SMILES: He didn’t seem to feel very happy about it.

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

MR SMILES: That’s right.

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

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

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

MR SMILES: He went back when the marchers returned.

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

MR SMILES: Just explain it again please.

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

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

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

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

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

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

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

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

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

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

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

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

MR SMILES: At the ANC office.

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

MR SMILES: He was there.

PROF DE KOKER: Did you see him there?

MR SMILES: Yes.

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

CHAIRPERSON: I don’t understand that question.

MR SMILES: Mr de Koker?

PROF DE KOKER: You saw him when the petitions were being handed over?

MR SMILES: That’s right.

PROF DE KOKER: You saw him there?

MR SMILES: Yes.

PROF DE KOKER: Why did you see him? Where was he standing?

MR SMILES: He was right in front.

PROF DE KOKER: Standing in the front?

MR SMILES: Yes.

PROF DE KOKER: You would have been looking ahead because that is where you were going to throw the hand grenade, is that right?

MR SMILES: Please explain carefully.

PROF DE KOKER: You were looking ahead at the building, is that right?

MR SMILES: That’s correct.

PROF DE KOKER: Major Mbatha was standing in front, so you were looking at him - in his direction?

MR SMILES: I wasn’t looking at him.

PROF DE KOKER: What happened after you helped Major Mbatha to take the people away?

MR SMILES: What then happened, there was one person who had died and then we took the truck and we picked up the other injured people.

PROF DE KOKER: And what happened then?

MR SMILES: We took them to hospital.

PROF DE KOKER: And then?

MR SMILES: And then we discussed this matter and then we left - I explained how it happened and then we left. Then we heard that innocent people had been hurt and he said to me: "Smiles, you must take responsibility for this case" and that’s how I accepted it with the statement that we made.

PROF DE KOKER: Why did he tell you to accept responsibility?

MR SMILES: Because other people had been charged with this.

PROF DE KOKER: Did he give you an instruction to accept responsibility?

MR SMILES: My conscience bothered me and I decided then to accept because people had - innocent people had been killed and hurt.

PROF DE KOKER: Did you go to Major Mbatha and say that you wanted to do it or did he come to you?

MR SMILES: No, we agreed that I would stand in for this.

PROF DE KOKER: What about Major Mbatha, he was also responsible together with you.

MR SMILES: I had to protect him as my commander because I didn’t know what would happen to him if they revealed him, I had to take responsibility, I was the person.

PROF DE KOKER: But he gave you the instruction?

MR SMILES: That’s right.

PROF DE KOKER: Was it your decision to protect him?

MR SMILES: Yes, it was my decision to protect him.

PROF DE KOKER: And what was his reaction?

MR SMILES: He didn’t react at all, he stayed cool.

PROF DE KOKER: You were protecting him and you were going to go to jail alone?

MR SMILES: I wasn’t worried about that, that was my duty.

PROF DE KOKER: You wouldn’t have been worried about going to jail?

MR SMILES: No.

PROF DE KOKER: How long did you think you would go to jail for this? How long did you think you were going to be locked up if you went and said you did it?

MR SMILES: That would depend on the court.

PROF DE KOKER: But did you prepare yourself for how long?

MR SMILES: I’m not a Magistrate.

ADV DE JAGER: Mr de Koker, I don’t think this is going to bring us any closer to a solution to the problem about which we have to decide, please limit your questions to that part which is relevant in Law. That is what we are dealing with, whether he thought he was going to go to jail for 100 years or for the day is not going to help us at all to decide these questions that we have to decide here.

PROF DE KOKER: Thank you Mr Chairman, what I wanted to determine was that ...[intervention]

CHAIRPERSON: Sorry, don’t explain that point if it may put the witness on the alert, do you know what I mean? If you feel you are making an important point, go on to make it, don’t explain it to us if you feel your explanation will put the witness on the alert.

PROF DE KOKER: Major Mbatha said it was cool that you went to jail yourself and that his role wasn’t mentioned.

MR SMILES: I said he was okay.

PROF DE KOKER: Okay, you said he was cool, he was all right.

PROF DE KOKER: Which instructions did he actually give you?

MR SMILES: The instructions he gave me was to through the grenade into the Trust Bank building ...[intervention]

PROF DE KOKER: Sorry, Mr Smiles, it was my mistake I confused you. What I was going to ask you was what instructions did he give you in terms of your statement at the police?

MR SMILES: No, he didn’t give me instructions in that regard.

PROF DE KOKER: No instructions?

MR SMILES: No, he was in the office on the other side but I felt I must say what was in that statement.

PROF DE KOKER: How did it come that you ended up with Mr Isaacs, did you go yourself?

MR SMILES: Mr de Koker?

PROF DE KOKER: Did you go all by yourself to Mr Isaacs? Did you phone him, did you tell him: "I have information, I want to discuss with you"? Tell us how did come about that you went to Mr Isaacs? (transcriber’s own translation)

MR SMILES: Mr Mbatha took me, we met with Denzil Potgieter the Advocate and then I explained the incident to them.

PROF DE KOKER: What did you explain to them?

MR SMILES: That is what is stated in the statement of September.

PROF DE KOKER: Was that statement of September correct except for the fact that you did not mention Major Mbatha’s involvement?

MR SMILES: Please explain it again.

PROF DE KOKER: You said yesterday you made a statement in 1993 with one mistake.

MR SMILES: That is correct.

PROF DE KOKER: The mistake was that Mr Mbatha was not mentioned anywhere.

MR SMILES: That is correct.

PROF DE KOKER: Now, is the statement correct - the remainder of the statement correct?

MR SMILES: The statement Mr de Koker, where I mentioned about the hand grenade I was unsure - I wasn’t sure about that other man’s position, I had to protect him and this is why I said - mentioned - referred to Johannesburg. He gave me the instructions ...[intervention]

INTERPRETER: The witness said that the man was in Johannesburg while he was not in Johannesburg.

PROF DE KOKER: I want to refer the Commission to page 2 of paragraph 9 of the statement, the second sentence.

Mr Smiles, in this statement you say ...[intervention]

MR TSHOLANKU: Exhibit A, Mr Chairman.

PROF DE KOKER: Exhibit A therefore, page 2, paragraph 9, second sentence

"While the memo was still being read I took the hand grenade out of the bag so that no-one could see it"

Is that correct Mr Smiles?

MR SMILES: Yes, that’s correct.

PROF DE KOKER: But this morning you told us that you had the hand grenade out of the bag while you were still underway, you were in the march on your way to the building, you were walking.

MR SMILES: Please explain to me again.

PROF DE KOKER: I asked you this morning, when did you take the hand grenade out of the bag and you said you took it out of the bag while you were walking. In ‘93 in paragraph 9 you said

"I took the hand grenade quietly out of the bag while the petition was being read"

Which is now the correct time? Were you correct this morning or were you correct in 1993? (transcriber’s own translation)

MR SMILES: Mr de Koker, it is something which happened in 1993, any person can forget something, so at this stage I may have forgotten as we sit here.

PROF DE KOKER: Which is then correct, when did you take out the hand grenade.

MR SMILES: While we were walking on the way there.

PROF DE KOKER: Now you remembered that you were underway but in 1993, three or four months after the incident you said you took out the hand grenade there.

MR SMILES: Well, that’s quite a number of years back, that’s why I’m a bit confused - four years ago, I can’t remember exactly what I said then.

PROF DE KOKER: You also said you handed over the bag to someone else?

MR SMILES: That is correct, that was underway.

PROF DE KOKER: In 1993 you said you still had the bag with you because that was the deduction

"I took the hand grenade quietly out of the bag"

MR SMILES: This is something that happened four years ago, I may have just forgotten.

ADV DE JAGER: Mr Smiles, four years ago you would have remembered better than you remember today?

MR SMILES: I remember that I took out the hand grenade while we were under way.

ADV DE JAGER: What I want to put to you is, this is something that happened a long time ago and you can forget about it but something which happened a month ago you would tend to remember. You would remember better after one month than after four years.

MR SMILES: I was given time to think about this whole thing, this thing I just forgot.

PROF DE KOKER: If we can return to the skippa T-shirt that you were wearing, can you describe it to us?

MR SMILES: I can’t remember, I’ve got so many clothes, I can’t remember exactly.

CHAIRPERSON: How do you begin to describe a skippa - that it has two arms ...[indistinct] or are you saying to him: "What is the colour of that T-shirt"? Otherwise I wouldn’t know how to begin to describe the skippa.

MR SMILES: Thank you Mr Chairman, as it pleases you.

MS KHAMPEPE: Professor de Koker, are you not trying to ascertain how baggy the skippa was?

PROF DE KOKER: And also the cut. I’m just trying to find out how it appears, I’m not quite certain about this skippa T-shirt.

This skippa T-shirt, did it have long sleeves or short sleeves?

MR SMILES: I just said I can’t remember, I had a lot of clothes and some of them I’ve given away - it’s a long time back and people forget.

PROF DE KOKER: Was it a T-shirt or a jersey - pullover?

MR SMILES: Please explain to me very clearly what you’re saying, you’re confusing me - you must make it easier for me to understand.

PROF DE KOKER: Yesterday and today you told us you were wearing a T-shirt, a skippa T-shirt, is that correct? Do you still think you were wearing a skippa T-shirt?

MR SMILES: Yes.

PROF DE KOKER: This skippa T-shirt - I’m trying to understand what this skippa T-shirt looked like.

MR SMILES: Please explain to me again Professor de Koker.

ADV DE JAGER: If you can’t describe the T-shirt, is there a difference between a T-shirt and a jersey - a pullover?

MR SMILES: I wasn’t wearing a jersey, I was wearing a T-shirt.

ADV DE JAGER: What is the Afrikaans word for a jersey?

MR SMILES: We’re talking the township Afrikaans.

MS KHAMPEPE: Professor de Koker, I’m sure you do know what a T-shirt is really. I think you must try and move on.

ADV DE JAGER: ...[inaudible]

INTERPRETER: The speaker’s mike is not on.

ADV DE JAGER: Do you know the word: "trui", the Afrikaans word for jersey?

MR SMILES: No, I do not know that word.

ADV DE JAGER: So, you have never heard that word, you don’t know what it means?

MR SMILES: No. I know it’s something you can put on, I don’t know whether it’s something warm or what it is exactly, I don’t know.

PROF DE KOKER: So the word: "trui" - jersey, you don’t know?

MR SMILES: No.

PROF DE KOKER: But in paragraph 9 of your ‘93 statement, the fourth or fifth sentence from above, the one about the hand grenade you say

"There were people surrounding me but I’m sure they did not notice me because I kept it under my jersey - "trui"

The word "trui" was used.

MR SMILES: This was written by a person who knew Afrikaans very well, I didn’t say that, it was the way he’s written it - he corrected it.

PROF DE KOKER: Who was the person that wrote it in that very good Afrikaans?

MR SMILES: Isaacs wrote it, he’s very, very good in Afrikaans.

PROF DE KOKER: I think you are trying to get the witness to describe the T-shirt in such a way that you can possibly be able to argue and say: "It is not possible for him to have put the hand grenade in that T-shirt" in the way in which the T-shirt has been described.

I don’t think really you’ll be able to ...[indistinct] and if it may - I would suggest that during tea time - if you have got a friend who is a reasonably experienced member of the security branch, just ask him during tea time what sort of weapons they used to find on people on their bodies - hidden in their bodies. He may give you some information about that.

PROF DE KOKER: Thank you Mr Chairman, unfortunately I do not have those kind of contacts. That was also not the purpose of my question, what worried me was the use of the word "trui" in the 1993 declaration but I think we’ve cleared that matter now, thank you very much.

Mr Smiles, after this ‘93 statement, what happened to it, what did you do then?

MR SMILES: I was taken to the police station with this statement.

PROF DE KOKER: Who took you to the police station?

MR SMILES: The commander and Rodney Isaacs.

PROF DE KOKER: What happened when you got there?

MR SMILES: As we got there on the 7th floor, there’s a security gate and one White man came out, I don’t know his name and then it was explained to him: "This is Smiles, this is the man who threw the hand grenade". What we were told was: "Take Mr Smiles away, you’re just confusing everything, the ANC can do with him what it likes", we couldn’t do anything.

PROF DE KOKER: Mr Smiles, you know that someone is sitting in jail?

MR SMILES: That is right.

PROF DE KOKER: That man says he did it, he threw the hand grenade.

MR SMILES: I’m explaining it now, it can’t be him.

PROF DE KOKER: Why would he say something like this?

MR SMILES: I don’t know, maybe you should ask him.

PROF DE KOKER: Were you ever asked by Advocate Potgieter or Mr Isaacs to testify in the case of those people?

MR SMILES: Yes, this was before they were sentenced and I was happy to take that case.

PROF DE KOKER: I didn’t quite follow that, just please repeat that.

MR SMILES: I would like you to ...[intervention]

PROF DE KOKER: I asked, were you ever asked by Advocate Denzil Potgieter or Mr Isaacs to testify in that case?

MR SMILES: I was asked to do that, yes. I was told: "It was your fault, you’ve got to go and stand in for it, go and make a statement"

CHAIRPERSON: But that’s not the question Mr Smiles, the question was: "Were you ever asked to testify in favour of these people"?

MR SMILES: Yes, I was asked.

PROF DE KOKER: And did you testify in that case?

MR SMILES: We was chased away at the police station, so what can we do? The court didn’t want to accept us, the police didn’t want to accept us, nobody wanted to accept us. (transcriber’s own translation)

PROF DE KOKER: There might be a misunderstanding here. You were asked to make that statement which you did, did they ask you to go and stand in the witness box in court?

MR SMILES: I wasn’t charged, so I couldn’t go and stand in the witness box. They said they felt they had the right people, so we couldn’t do anything.

PROF DE KOKER: So no-one ever asked you to go and stand in the box during the court case - not the police, not the Attorney General, not the Advocate?

MR SMILES: I asked to stand in for this matter but not to go and stand in the witness box.

ADV DE JAGER: Nobody asked you to be a witness in that case?

MR SMILES: I was the accused but I wasn’t asked to testify.

ADV DE JAGER: In the other case there were other accused but nobody asked you to go and stand in the box and say: "These people are innocent, I’m the one who did it" and to tell the Judge that?

MR SMILES: I couldn’t do it because no dossier had been opened. The court accepts a dossier, it doesn’t accept a person.

ADV DE JAGER: Yes, but the advocates and the lawyers, they did not ask you?

MR SMILES: No, Mr de Jager.

PROF DE KOKER: What did you do after you left the police station and they said they didn’t want to listen to you?

MR SMILES: We left, we walked away.

PROF DE KOKER: What did you do then?

MR SMILES: I went home, what else could I do?

PROF DE KOKER: Did you know these people were being charged in court?

MR SMILES: Yes, I knew.

PROF DE KOKER: Did you go to listen?

MR SMILES: I went to listen. I was in the court, I wanted to see who these people were that were being accused.

PROF DE KOKER: You went and listened at the court?

MR SMILES: I went to have a look, I wanted to see who these people were that were being charged and then I saw it was Sipho Mbatwa and Kotla, then I didn’t go back, I didn’t go and sit there again.

PROF DE KOKER: What did Major Mbatha do at that stage?

MR SMILES: We were chased away, what could we do? We couldn’t do anything else.

PROF DE KOKER: The people were found guilty and sent to jail, what did you do then?

MR SMILES: We still couldn’t do anything. You can’t stop the law and tell them that these people shouldn’t go to jail.

PROF DE KOKER: The next statement of yours that we have, which is the one dated June, the statement you made when Sipho and Doctor Alex Boraine came to talk to you.

MS KHAMPEPE: That’s on page 11?

PROF DE KOKER: That is on page 11 of the second bundle of documents.

That statement was incorrect, is that correct?

MR SMILES: Yes. I didn’t have any trust in these people and I went personally to them and they were at home, then my sister told me the investigation unit was here and they said they were looking for me, I had to go and see them at the Savoy Hotel. And I went to the Savoy Hotel and I found them there, I asked them: "What’s going to happen to me now because I’m now telling the truth"? They didn’t say anything to me, they just looked at me. I asked them: "Can I go home now"? and they said nothing, so I made up my own mind because the only thing they were going to do was to leave me alone - they didn’t even take me home. My intention was to go and tell the whole truth and then I had to make this statement but this statement is totally not the truth.

PROF DE KOKER: They didn’t’ give you any explanation?

MR SMILES: My intention was - my question was: "Could I go home", if they were honest they would have said to me: "Smiles, you can go home, the whole thing is going like", so why did I have to go and make this statement? So I went to the Major early in the morning and explained to him that I’d lied to those people and then he said to me: "No, you must go and tell the truth". If they’d explained it properly to me, I would have told the truth right at the beginning and that statement would not have been made.

PROF DE KOKER: What were you scared of?

MR SMILES: You could - it’s the first time I’d met people like that, I didn’t understand the nature of the TRC or what could happen.

PROF DE KOKER: What were you scared of, what did you think could happen to you?

CHAIRPERSON: Maybe - if you don’t mind Professor de Koker, maybe we should adjourn until half past eleven.

COMMITTEE ADJOURNS

ON RESUMPTION

WALTER SMILES: (s.u.o.)

CHAIRPERSON: Yes, Professor de Koker?

CROSS-EXAMINATION BY PROF DE KOKER: (cont)

Mr Smiles, you said you felt threatened by the TRC representatives and the circumstances, what were you afraid of?

MR SMILES: The threat was, what would happened - I asked them why they didn’t go to Laurens, why did they come to me.

PROF DE KOKER: What do mean when you say you wanted to know what you would get in years, what did you mean by this?

MR SMILES: Just explain to me again.

PROF DE KOKER: You just said - and I just missed that part of the sentence, you said they didn’t explain properly to you and you were scared - and then you said something about years, were you scared you were going to be sent to jail?

MR SMILES: What happened - I didn’t understand how the TRC worked and they didn’t explain it to me. I was sure I was going to jail, I didn’t say they were going to send me to jail.

PROF DE KOKER: And you were scared of going to jail?

MR SMILES: No, if they explained it nicely to me I would have given all the information. (transcriber’s own translation)

PROF DE KOKER: But you said you felt threatened, you were scared of going to jail.

MR SMILES: Just explain - understand me very well Mr de Koker, I felt I would go to jail, I didn’t say they said I was going to jail.

PROF DE KOKER: You didn’t like that feeling, you didn’t want to go to jail and that’s why you were scared, is that right?

MR SMILES: Please explain to me again.

CHAIRPERSON: What is it that you don’t understand about this question?

MR SMILES: I don’t understand this question very clearly, please explain it very carefully.

CHAIRPERSON: Answer the way you think you understand it, we’ll tell you whether you didn’t understand it. Answer the question the way you understand it.

MR SMILES: Please just explain to me again.

CHAIRPERSON: What is that you don’t understand about this question, is it a difficult question?

MR SMILES: No, please explain clearly to me and then I can explain to him what I want to say.

CHAIRPERSON: You must listen very carefully and if you don’t understand Afrikaans, then you must tell us in which language you want to hear it.

MR SMILES: Afrikaans is fine but ...[intervention]

CHAIRPERSON: Yes, but you can’t after every five minutes keep on asking for an explanation of even simple questions.

Professor de Koker, try to explain that question to him again.

PROF DE KOKER: Mr Smiles, what were you scared of, what made you feel threatened? Which bad things could happen to you if you told the truth to Doctor Boraine and Sipho?

MR SMILES: If they’d explained to me properly beforehand, I would have told them the truth.

PROF DE KOKER: But you did not tell them the truth, why not?

MR SMILES: Because I couldn’t understand how the TRC worked.

PROF DE KOKER: What were you scared of? What were you scared of, what could happen to you if you told them the whole truth?

MR SMILES: I also asked myself what would happen if I told the truth.

PROF DE KOKER: And how did you answer that? What were you scared of? What did you think could happen to you if you told the truth?

MR SMILES: What I thought was that I would go to jail that same day, that’s what I thought.

MS KHAMPEPE: May I interpose Professor de Koker? Mr Smiles did you know anything about the TRC?

MR SMILES: Nothing, it was my first encounter with the TRC.

MS KHAMPEPE: Now, did Sipho and Boraine explain to you what the TRC was and why you had to make a statement to them that day?

MR SMILES: No, I cannot remember such a thing.

MS KHAMPEPE: What did they say to you, what was it that they first said? Did they simply say: "Give us a statement about the incident in question"?

MR SMILES: No, I asked them why didn’t they go to Laurens, why did they come to me, why not go to Laurens. This is why I made up my own mind - if they explained it to me nicely, I would have told the truth. Obviously my intention was to tell the truth, I was honest. I actually went to them in all honesty and then I had made a decision to lie under oath.

MS KHAMPEPE: What was it that was said to you that made you to lie in particular?

MR SMILES: When I asked: "Am I going home", nothing was said and I was just looked at like this, then I walked out and I went home out of my own because I thought I’m going out of honesty to give full information to the TRC. If they explained to me nicely what the nature was, what could happen, what is what, then I could I could have explained it nicely to them what went for what. (transcriber’s own translation)

MS KHAMPEPE: Thank you.

ADV DE JAGER: Why then explain to them that Major Laurens approached you in terms of a volunteer that would throw a hand grenade and furthermore you also stated that Laurens told you that it was necessary to identify a perpetrator or a volunteer for the incident and he never told you why?

MR SMILES: Mr de Jager, there was no other choice, this is why I had to lie. I had to get out of there and this is why I made such a statement and it was not true, Laurens did not explain it like that.

ADV DE JAGER: By why then mention Laurens, why bring him into trouble?

MR SMILES: I was frightened, I then told them - I then made the statement, I told him what I’ve said. I then withheld no truth but I was frightened, I said that.

ADV DE JAGER: But you mentioned something - did Laurens say anything about money that you will get when you make this statement?

MR SMILES: No, I was frightened, I keep to that. Why should I make such a statement?

ADV DE JAGER: But now you are frightened and you land somebody else in trouble, you say he bribed you to make a false statement.

MR SMILES: No, no he never did that, I was frightened.

ADV DE JAGER: But that’s what you said to Doctor Boraine.

MR SMILES: This?

ADV DE JAGER: Yes, you landed Laurens in trouble because you were scared of these people.

MR SMILES: No, Mr de Jager, what actually happened - it was my only strategy to get rid of these people, I had no other option, I had to think of a way out of it. It was my intention to tell the truth, I don’t know how to explain it but I had ended up lying.

ADV DE JAGER: But if you want to tell the truth, why lie?

MR SMILES: No, they didn’t explain to me, if they explained to me I would have told them the whole truth. When I went to Laurens I withheld nothing, nothing.

ADV DE JAGER: Yes, but because of your lies you could have landed him in trouble.

MR SMILES: I don’t think so.

ADV DE JAGER: You said he offered you money to do this.

MR SMILES: No, he didn’t.

ADV DE JAGER: That’s what you said to Mr Boraine, why did you do it?

MR SMILES: Once again, because I was frightened.

MS KHAMPEPE: Mr Smiles, were you responding to questions which were being put to you by Sipho and Boraine?

MR SMILES: Can you explain that question to me please.

MS KHAMPEPE: When you made this statement on the 8th of June ‘96, was it as a result of questions which were being put to you by Sipho and Boraine?

MR SMILES: I asked them very nicely what could happen to me but they didn’t say anything.

MS KHAMPEPE: No, you don’t understand my question, that’s not what I’m asking you. I’m asking - for instance when you said

"Laurens said it was necessary to have a perpetrator volunteer to this incident"

Had you been asked specifically by Sipho and Boraine whether Laurens had requested you to volunteer for this incident or not or did that information come of your own volition?

MR SMILES: I told them myself.

MS KHAMPEPE: Thank you.

PROF DE KOKER: Mr Smiles, you said you felt upset of unhappy because they hadn’t gone to Major Mbatha first, is that right?

MR SMILES: Yes.

PROF DE KOKER: Why did you think that they should go to him first?

MR SMILES: Because he’s the man who gave the orders.

PROF DE KOKER: You thought he was the person who was really responsible?

MR SMILES: He was the person giving the order and I was the one executing the order, they should have gone to him first. If they had gone to him first and they would have come to me afterwards, then there wouldn’t have been this statement, then we could have explained the whole thing from top to bottom.

PROF DE KOKER: How did you know they hadn’t been to Major Mbatha before?

MR SMILES: I asked them.

PROF DE KOKER: And you mentioned his name to them?

MR SMILES: I asked them.

PROF DE KOKER: In ‘93, you were quite prepared to assume responsibility all by yourself and to go to jail alone for this, what made you scared in ‘96 to do the same?

MR SMILES: I didn’t the TRC was going to sit and I didn’t know what it was going to be like.

PROF DE KOKER: Whether you knew or not whether the TRC in existence or not, the fact is - as you told us just now, you were scared that day to go to jail. Why did you suddenly become scared of going to jail?

MR SMILES: On this statement?

PROF DE KOKER: Yes.

MR SMILES: I didn’t say I was scared, I only thought I was going to go to jail that same day.

CHAIRPERSON: Mr Smiles, no, that is not the impression that we got, our impression was that you said quite clearly that you were scared that you would go to jail that same day.

MR SMILES: Then I didn’t understand it right.

CHAIRPERSON: No, that’s what you said. Whether you understood the question or not, it didn’t make any difference. The fact is those words came from your mouth, you were scared that you would go to jail that day - whether you understood the question or not.

MR SMILES: That’s right, I was scared.

CHAIRPERSON: Those words came from you, was that the truth?

MR SMILES: On this statement?

CHAIRPERSON: Is it true that on that day you were scared that you would go to jail that same day?

MR SMILES: I wasn’t scared, I would have explained - I am the person who did this thing, I would have explained it all the way.

CHAIRPERSON: Professor de Koker, I thought he said that he was afraid that he would go to jail that same day?

PROF DE KOKER: That is how I understood it too, Mr Chairman.

CHAIRPERSON: Were you prepared to go to jail that day?

MR SMILES: On this statement which they asked me ...[intervention]

CHAIRPERSON: On the day you made this statement, were you then - were you still prepared to go to jail?

MR SMILES: I was prepared but not on the same day as they were threatening me. They should have said to me: "We were charging you" or they should have said: "We were looking for information", then it would have been much better, then I wouldn’t have made this statement.

CHAIRPERSON: Professor de Koker, continue.

MS KHAMPEPE: Before you continue Professor de Koker, may I again with your indulgence, just take one point further in trying to understand Mr Smiles’ testimony?

Were you threatened by the investigators that you would be taken to jail that day?

MR SMILES: No, I wasn’t threatened, I asked them but they never answered me about the jail thing.

MS KHAMPEPE: What did you say exactly to them?

MR SMILES: Before the statement?

MS KHAMPEPE: Yes.

MR SMILES: I asked them: "What will happen to me if I tell the truth", they never answered me, they just looked at me, so now you can make your own deduction from that. It wasn’t my intention to lie, it was to tell the truth.

MS KHAMPEPE: Did they explain to you that they were from the TRC?

MR SMILES: Nothing, they didn’t explain anything, I had no trust in them.

MS KHAMPEPE: When you a statement, did you think you were making the statement to the police?

MR SMILES: No, they should have produced a card - a visiting card, or something that they are from the Investigative Unit of the TRC, then I would have explained it better and then I could have gone into detail and if they were decent with me in their questionings, I would never have made this statement.

MS KHAMPEPE: So you are saying they didn’t explain to you that they were from the TRC and that they wanted a statement from you because they’re from the Investigative Unit of that body?

MR SMILES: What I’m explaining, they said Investigation Unit but they never proved it. They never proved their identity, so I never had trust in them, so this is why I’ve decided to make this statement. If they’ve come with a statement saying: "I’m from the Defence Force" and produce a card, I will know who they are and then I will have trust in them.

MS KHAMPEPE: Why did you not refuse to make a statement at all?

MR SMILES: Because they wanted a statement, that is why I decided to lie, it wasn’t my intention to lie beforehand.

MS KHAMPEPE: Thank you Mr de Koker.

ADV DE JAGER: There’s just one question I would like to ask, you said why didn’t they go to Laurens Mbatha first.

MR SMILES: That’s right, yes.

ADV DE JAGER: How would they know about Laurens because this was your secret between the two of you? How would they know that Laurens was involved if you didn’t tell them?

MR SMILES: I also asked them myself, how did they know that I was involved.

ADV DE JAGER: Wasn’t it news at that stage that you were involved because you had already made a statement in ‘93, when you said you were involved?

MR SMILES: In 1993?

ADV DE JAGER: Yes.

MR SMILES: I can’t say whether this statement was linked up to them, I could have given them the same explanation now but it would have implicated Laurens, then there wouldn’t have been any reason for that ‘93 statement, then the statement would have been correct, it wouldn’t have been on these lines here.

PROF DE KOKER: Mr Smiles, when did you start understanding what the TRC was all about, who explained to you? Who told you - on that day you didn’t know what the TRC was all about, who explained to you what the TRC was all about?

MR SMILES: I’ve got a book now on the TRC.

PROF DE KOKER: When did you get this book?

MR SMILES: I got it in ‘96.

PROF DE KOKER: But you made this statement in ‘96.

MR SMILES: I wanted to understand what the TRC was all about.

PROF DE KOKER: So, when did you get the book?

MR SMILES: I got it last year, I can’t remember the month.

PROF DE KOKER: Was it after you spoke to Doctor Boraine?

MR SMILES: Yes, after I spoke to him.

PROF DE KOKER: Yes, after you spoke to him then, then you got the book?

MR SMILES: Yes.

PROF DE KOKER: Did you get the book before you came here and gave evidence?

MR SMILES: The book explained to me what the TRC was all about, they wanted the truth and that was all.

PROF DE KOKER: Did you have that book before you came to testify here in public?

MR SMILES: I had it from last year, this book.

PROF DE KOKER: This statement was also made in 1996, and the evidence you gave in front of the Commission on the stage here in ‘96, you also gave that in ‘96 - it all happened in that year. And I want to find out, when you came to talk here when you came and told your story with all the people sitting here, did you know then ...[intervention]

ADV DE JAGER: Professor, you say: "When he came and talked here with all the people", it seems as if you’re referring to today’s meeting or do you mean when he came - when he spoke before the other TRC Commission?

MR SMILES: Yes, I understand.

ADV DE JAGER: He refers to the previous occasion when all the TRC people were here and you came and gave evidence, I don’t know whether it was here or where it was.

MR SMILES: Yes, it was in the same hall.

PROF DE KOKER: Thank you Commissioner.

Did you have the book then - did you know then before you came here, what the TRC was all about?

MR SMILES: Yes, I did.

PROF DE KOKER: You knew then?

Then I ask the Committee to turn to page 51 or volume 2, this is a statement made by Mr Smiles dated 14 August 1996 and apparently part of a document starting on page 49, which is a report of the Investigative Unit and these two documents belong together. This statement was drawn up after the evidence had been given, so this document was compiled ...[intervention]

ADV DE JAGER: I don’t think so Mr de Koker, the hearing - when was the hearing?

PROF DE KOKER: I understand it to have taken place in June.

MS KHAMPEPE: The hearing was on the 11th of June, three days after he had made the first statement.

PROF DE KOKER: Thank you very much. And this statement was made on the 14th of August, so basically one month later.

I would like to draw your attention to the last paragraph on 51. Mr Smiles, this statement, to whom did you make this statement, this one dated 14th of August ‘96?

MR SMILES: ...[tape blank]

PROF DE KOKER: ...[inaudible] of the TRC come to talk to you after you testified here in June ‘96?

MR SMILES: That’s right, they came to me again.

PROF DE KOKER: Did they visit you in August?

MR SMILES: I can’t remember the month.

PROF DE KOKER: In this document which says - it’s a statement which you made of 14th of August, you say and I quote

"The first statement I made to the TRC investigators dated 8 June 1996, is false, I made that statement on advice from some friends"

He did not want to give their names.

Mr Smiles, here you tell the TRC representatives that you made on the 8th of June was false and that you’d been advised by friends to make this false statement.

MR SMILES: I wasn’t advised by friends, they asked me what happened.

PROF DE KOKER: And what did you say?

MR SMILES: I said it wasn’t like this, this statement at that stage - you can forget that one.

PROF DE KOKER: I don’t quite understand Mr Smiles, what do you mean when you say: "Forget it"? In this statement you say that you said you made that a wrong statement because friends had advised you to do so.

MR SMILES: No, it wasn’t a friend who told me, I used my own head.

PROF DE KOKER: Now, why would it stand here, can you explain why it’s written there?

MR SMILES: Let me just think about this for a minute.

CHAIRPERSON: I think the questions should really be: "Did you tell the person who took this statement from you that you had made that statement on the advice of some friends"?

MR SMILES: What happened, I was scared but when they came they produced their cards.

CHAIRPERSON: Look at page 51 at the bottom, it reads

"The first statement I made to the TRC investigators dated 8th June 1996, is false"

Is that what you told the person who took this statement?

MR SMILES: Yes.

CHAIRPERSON: Now, we read further

"I made that statement on advice from some friends"

MR SMILES: What happened, they asked me who influenced me - I just said it was a friend but it wasn’t a friend, it was myself. If I have to be honest now, it was me. There were no friends involved, it’s only me.

CHAIRPERSON: Why did you then lie and say that you made that statement on the advice of friends?

MR SMILES: The TRC did ask me but I thought that I must take such a decision but it wasn’t a case - I was frightened.

CHAIRPERSON: But why lie if you are frightened?

MR SMILES: I thought they were going to take action the exact moment because of a false statement.

CHAIRPERSON: Who was the person that took this statement from you?

MR SMILES: Doctor Boraine and Sipho.

CHAIRPERSON: So, it was again Sipho and Boraine because I’m not referring to the previous statement, I’m referring to the latest statement on page 51. Who took this statement from you?

MR SMILES: It’s the same persons Sipho and Boraine.

CHAIRPERSON: Okay, I see. Now, explain to me again, why did you lie, why did you tell them that you were advised by friends to make a false statement?

MR SMILES: I was frightened because they asked me who advised me, who instructed me - I was frightened.

CHAIRPERSON: So now, every time you get a fright you lie?

MR SMILES: No, Sir. You know, a person gets a fright, you have - that is human nature.

CHAIRPERSON: But I’m trying to establish why was it necessary to lie?

MR SMILES: What happened was that I gave them the statement but then they identified themselves as TRC and then already they’ve written down here, then I realised these are people I can tell truth to but they took a long time to produce their cards - their identity. When they left the room I actually wanted them to rectify the statement but they’d left already.

CHAIRPERSON: Mr Smiles, we - I personally am getting quite despondent with some of your responses and the reason you are advancing for why you lie from time to time. Now, you have already stated the first time you made a statement to Sipho and Boraine, they didn’t identify themselves as TRC people and you also did not know what the TRC was all about and that’s why you were scared and you lied. Then you stated further that after that statement you then obtained a booklet which you were able to read and you could understand what the TRC was all about, in any event you were able to appear before the TRC when they were holding an event hearing at this hall on the 11th of June, so you already knew precisely what the process entailed of the TRC. Now I cannot understand why, if you already knew what the TRC was all about you were still frightened to a point of making another lie about something which is so innocuous as having to lie and say you were influenced by some people to lie on the 8th of June.

What was wrong in simply saying that: "I lied" and advancing the same reason that you have advanced today, that you lied because you didn’t know what the TRC was all about?

MR SMILES: What happened, at that time when they left I felt it was no use that I would give them a statement saying that someone had advised me but by that stage they had already left. If they hadn’t left I would have corrected that statement at that time.

ADV DE JAGER: Have you been frightened at this hearing as well?

MR SMILES: Yes, but not as badly as before. At this hearing I’m not at my best today because I see I’m being confused.

PROF DE KOKER: The statement you made to Doctor Boraine the first time was wrong, what made you decide to tell the truth?

MR SMILES: My conscience worried me about the person who died in the explosion.

PROF DE KOKER: Only because your conscience bothered you, you decided on your own last year to come here and tell the truth?

MR SMILES: That’s correct.

PROF DE KOKER: Nobody told you, you had to come and do it, you decided on your own to tell the truth?

MR SMILES: They told me I had to come to the TRC hearing.

PROF DE KOKER: Who were these people, who are you referring to?

MR SMILES: Doctor Boraine and Sipho, that same evening.

PROF DE KOKER: Did you talk to anyone else before you decided to come and tell the truth?

MR SMILES: I felt my conscience was worrying me.

PROF DE KOKER: Did you talk to no-on else about it, you decided on your own? Did you talk to any of your friends?

MR SMILES: About this situation - no?

PROF DE KOKER: May I draw the attention of the Committee to page 52 of bundle 2 - just the next page of the same document, the statement made on 14 August 1996 and I’ll read the two paragraphs

"Why I admitted to the TRC during the hearings that I launched the grenade, was on advice of Laurens who the day before said that I had to tell the truth.

I have confidence in Major Mbatha and I have never been threatened by him, he is now a Major in the Northern Cape Command"

You didn’t speak to anybody else?

MR SMILES: It was in the morning that I said that I made a false statement, that was the time I told him, not during the week - nobody came to tell me that I should tell the truth, he was the only person that I spoke to.

PROF DE KOKER: So it wasn’t your conscience that made you do this, you did this because Mbatha told you to do so?

MR SMILES: I misunderstood you. That was in the morning, not in the afternoon when I had to go tell the truth - he’s the only person who said to me ...[intervention]

PROF DE KOKER: Which morning is this when you say it was in the morning?

MR SMILES: The statement of 8th of June I made in the evening and on the morning of the 9th I went to him - I thought you were talking about during the day.

PROF DE KOKER: So you distinguish between the morning and the rest of the day? So, the rest of the day you didn’t speak to anybody?

If it pleases the Committee, I’d like to refer to page 40 of bundle 2.

Mr Smiles, we’re back at the evidence which you gave in front of the TRC in June, on page 40 you said:

"There was a COSAS march, I knew nothing about this march and it started in an arena. I knew nothing" ...[intervention]

ADV DE JAGER: Can you just refer us to the exact spot?

PROF DE KOKER: It is right on the top of page 41, my apologies.

You told the TRC that you knew nothing about the COSAS march, that’s what you said to the TRC and yesterday you gave evidence that you only heard about this the day before - in the afternoon, the afternoon on the 24th. Now, why in June ‘96 you said to the TRC that you knew nothing about the march?

MR TSHOLANKU: Mr Chairman, my recollection of his testimony was that he was sitting at the tickey stop and that point in time he nothing about the march of the particular day, I could be wrong but that is my recollection of what he said - that on the day of the march he was sitting at the tickey stop and knew nothing about the march on that particular day.

PROF DE KOKER: Chairman, I can refer to our notes but to the best of my recollection I asked the applicant specifically when did he first learn about this march and he said: "The previous afternoon". You can perhaps locate that if - his answer was

"It wasn’t that long, it was just the afternoon beforehand"

That was his answer and in fact it appears to be the very first question that I’ve put to the applicant.

MR TSHOLANKU: That is my understanding

"Die middag voor die tyd"

That is what he said and which would mean:

"The afternoon before the time of the march"

That is how I understood it, not the day before the march.

ADV DE JAGER: On the afternoon of the day before the march?

PROF DE KOKER: According to the notes that we’ve just compared, that that was the answer that we took down yesterday.

MS KHAMPEPE: I think mine reads

"It wasn’t long beforehand, only heard that afternoon"

That’s what I have in my notes.

ADV DE JAGER: I think you all agree on this. The advocate for the applicant says that it was the afternoon, the afternoon before the march happened.

MS KHAMPEPE: I don’t think the applicant is saying that.

MR TSHOLANKU: What I’m saying is, the Afrikaans version would be

"Die middag voor die tyd"

Which would mean:

"The afternoon before the time of the actual march"

Not the afternoon before the day.

ADV DE JAGER: Well, the march started in the morning at 9 o’clock, proceeded up to 11 o’clock - was 1 o’clock, so when was the afternoon before the march?

MR TSHOLANKU: That is exactly the question that should have been asked from the applicant. The impression that I got was that it was on that particular day, it was not clarified.

ADV DE JAGER: Well, there wasn’t an afternoon before the march.

MR TSHOLANKU: Advocate de Jager, I wouldn’t argue with you, I agree with you but the point is it was not clarified for the Committee and everybody else. That particular point is still shadowed, we don’t know exactly what particular point was he referring to. I agree with you there was not an afternoon before the march but my understanding is that

"Die middag voor die tyd"

Would mean:

"The afternoon before the time of the march itself"

Not to mean:

"The afternoon before the day of the march"

It could be three afternoons before the time of the march - 2 after, it’s not clear.

ADV DE JAGER: What I’m saying

"The afternoon before the march"

Would be the day before the march, not three days before the march because the march started that morning of the 25th.

MR TSHOLANKU: I agree with you, the point I’m trying to make is that it was not clarified for everybody because it says

"Die middag voor die tyd"

Now we don’t know which "middag" is he referring to.

ADV DE JAGER: My notes say

"When did you hear about the march the first time"?

My note says:

"The day before - the afternoon before"

That is what my notes say.

CHAIRPERSON: Well, I didn’t take notes on that aspect but perhaps we should ask him.

MR TSHOLANKU: I also agree, we should ask the applicant.

CHAIRPERSON: When did you hear about this march for the first time?

MR SMILES: The same day.

CHAIRPERSON: What time?

MR SMILES: I really remember the exact time, it was in the morning but I can’t remember the time.

CHAIRPERSON: Yes, Professor de Koker?

PROF DE KOKER: Then Mr Smiles, in the same statement on the same page about 40% down

"When I got out of the car there I wasn’t informed of any grenade or anything, when I got out of the car there I wasn’t 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"

When did you get the instructions to throw this hand grenade?

MR SMILES: I got the instructions as we got out of the car.

PROF DE KOKER: Yesterday you said you got the instruction inside the car. Did you get the instruction inside the car or when you were getting out?

MR SMILES: Then you confused me.

PROF DE KOKER: What are you saying now today, when did you get your instructions?

MR SMILES: I thought about it very carefully.

PROF DE KOKER: And what do you say now?

MR SMILES: I got the instructions when I was outside the car.

ADV DE JAGER: I’m getting worried about you evidence. I asked you yesterday: "The conversation took place inside the car in the presence of the driver, so the driver could also hear"? And you said: "Yes" .

Now, how must I understand your evidence, now you come with another explanation and the impression I get is that you realised yesterday that you said the driver also heard, now you want to get out of that problem.

MR SMILES: I got the bag in the car together with the hand grenade but I got the instructions when we were out already. (transcriber’s own translation)

ADV DE JAGER: Why did you tell me yesterday that the driver could also hear it because the instructions were given inside the car?

MR SMILES: Because I was confused as the Committee is doing to me now - I’m getting confused, I don’t understand correctly.

ADV DE JAGER: Sorry for interrupting you, you may proceed.

PROF DE KOKER: Thank you Mr Commissioner. Thank you Mr Chairman. On the same page, page 40 just of over half way.

Mr Smiles, in June ‘96 you further told the Truth and Reconciliation Committee the following: (transcriber’s own translation)

"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"

Further on:

"Then there was sign that I must throw this grenade and he lay down at the same time, so when I threw it I was weak. I had had no experience of this type of thing"

Did you have no experience of this sort of thing?

MR SMILES: What happened was the following: I hadn’t been trained but I was trained how to throw it, not personally trained.

PROF DE KOKER: How had you been trained?

MR SMILES: Always by taking a stone and throwing it like this.

PROF DE KOKER: So, you only knew how to throw a stone, not to throw a hand grenade?

MR SMILES: Yes, that’s right but you have the experience of throwing a hand grenade - you threw the stone like a hand grenade.

PROF DE KOKER: You have never previous thrown a hand grenade, you’ve always just practised with a stone?

MR SMILES: The second time I used a hand grenade was at the military base in Vergenoeg.

PROF DE KOKER: After this event - this was the first time?

MR SMILES: This was the first time and then I went to the military base and that’s when I got good experience - training on how to throw a hand grenade and then I was taught very nicely inside the defence force.

PROF DE KOKER: Were there any other people with you in MK in Kimberley?

ADV DE JAGER: There might be some confusion here because I didn’t understand the evidence as such yesterday. Was this the very first time in your life that you threw a hand grenade - here at the Trust Bank? (transcriber’s own translation)

MR SMILES: This was the first time and the second time was at Vergenoeg.

ADV DE JAGER: But the second time at Vergenoeg, were you then already in the defence force?

MR SMILES: I wasn’t in the defence force yet.

PROF DE KOKER: Were there any people with you in MK who had been trained or had experience in throwing hand grenades - who were working with you?

MR SMILES: As my commander explained, there were 110 of us but I didn’t know who had been trained.

PROF DE KOKER: I refer the Committee to the first bundle page 9, 2nd paragraph, it’s an extract from a supporting statement attached to Major Mbatha’s amnesty application - 2nd paragraph, page 9 first bundle, that’s the thinner one, the following is said

"I should indicate that the man I instructed was not just doing it for the first time but was involved in previous exercises which were a successful propaganda purposes"

MR SMILES: That is correct Mr de Koker, the reference here is to Vergenoeg to the military base where I was involved.

PROF DE KOKER: But those operations occurred after the Trust Bank incident, is that correct?

MR SMILES: It is correct.

PROF DE KOKER: In other words, at the Trust Bank incident you have had no experience, you only exercised with a stone?

MR SMILES: That is correct.

PROF DE KOKER: So, the statement you made on page 40, last June, is then in this instance correct.

Mr Smiles, it’s interesting if we look at all the statements that you made, that some information only emerges later on. In your ‘93 statement - if I may ask you pardon just for a second Mr Chairman? Thank you for the indulgence of the Committee, I’d like to turn to page 40 of the second bundle:

Truth and Reconciliation Commission in June 1996, you made no mention that the attack had any political purpose, why not?

MR SMILES: Do you mean the same scene? No, I wasn’t the person who should - it didn’t come from the TRC, my commander came up this - I did what I was instructed to do.

PROF DE KOKER: What do you mean when you say: "He came up with this"?

MR SMILES: If he hadn’t come up with that military base story, I wouldn’t have come up with it either because I was working through him.

PROF DE KOKER: I think there might be a misunderstanding. Mr Smiles, what I’m asking you is this: "In June ‘96 when you testified in front of the TRC, you did not say in your evidence that the purpose of this hand grenade - you didn’t say what the purpose of this hand grenade was, all you said was you had instructions

"When I got out of the car there, I wasn’t informed of any grenade or anything, I was just given a piece of paper"

And then you took the sign and then threw the hand grenade. Why do it, what was the purpose of the hand grenade - of throwing the hand grenade?

MR SMILES: The purpose was, when the march will be returned that will be the sign for me to throw the hand grenade.

PROF DE KOKER: But why, why throw it?

MR SMILES: It was an instruction I took.

PROF DE KOKER: What was the purpose, what should have been achieved?

MR SMILES: The objective was for the hand grenade to enter the bank - the building and the purpose was furthermore for me to ensure nobody got hurt.

PROF DE KOKER: Chairman, thank you very much for your indulgence, I have completed my examination.

NO FURTHER QUESTIONS BY PROF DE KOKER

CHAIRPERSON: Mr Mpshe?

CROSS-EXAMINATION BY MR MPSHE: Thank you Mr Chairman. Mr Smiles, when did you join the ANC?

MR SMILES: I joined the ANC in 1991.

MR MPSHE: From 1991 up till 1993 - the time of the incident, did you hold any position in the ANC?

MR SMILES: No, I was just a marshall.

MR MPSHE: When did you join the MK, when did you become a cadre?

MR SMILES: I joined 1992.

MR MPSHE: Just a year before the incident?

MR SMILES: That is correct.

MR MPSHE: Now, besides you having been told by your commander about the political climate in Bophuthatswana, did you have your own personal knowledge about the circumstances?

MR SMILES: Yes, Mr Mpshe.

MR MPSHE: What was you knowledge about the position in Bophuthatswana?

MR SMILES: Bophuthatswana was a Government that oppressed Black people, they had no option, they couldn’t join the Northern Cape - Kimberley.

MR MPSHE: In launching this or in throwing the hand grenade, did you believe that that operation was going to bring about a change in that region?

MR SMILES: Yes, Mr Mpshe.

MR MPSHE: Now, what type of change did you envisage?

MR SMILES: A new Government.

MR MPSHE: Now, in your own judgement, did you deem it necessary to throw the hand grenade in order to bring about the new Government or the change?

MR SMILES: Yes, Mr Mpshe, because they oppressed our people of Bophuthatswana, Hartswater, the whole of the Northern Cape as well as the University of the Witwatersrand. They were torturing our people, they took out raids and this why I thought I had no option - as a member of MK, I had to act.

MR MPSHE: Aren’t you making a mistake Sir, the University of Witwatersrand is and was not in Bophuthatswana.

MR SMILES: Hartswater is where their people are.

MR MPSHE: What about Hartswater? Are you saying people of Bophuthatswana were staying in Hartswater?

MR SMILES: No, Bophuthatswana people lived all over the Northern Cape, I mention Hartswater as part of the Northern Cape - Bophuthatswana people stayed there as well.

MR MPSHE: It has been made clear that there has been conflicting statements by yourself, are you now in a position to tell this Committee honestly that you have made a full disclosure?

MR SMILES: Yes, Mr Mpshe, I gave you the truth - I accept the case now, as it is I’ve made a full disclosure.

MR MPSHE: I want you to have a look at your application, page 13 - I withdraw Mr Chairman, it has already been asked - I canvassed it right at the beginning, no further questions, thanks. That is all Mr Chairman.

NO FURTHER QUESTIONS BY MR MPSHE

CHAIRPERSON: Mr Visser, if this is perhaps necessary for me to mention, it seems to us that Lieutenant Golf, Inspector Erasmus, Sergeant Kabanda, Superintendent Roussouw and Captain Stark have not even been mentioned by this witness.

MR VISSER: Mr Chairman, we did notice yes, thank you Mr Chairman. It seems to us that the status quo remains, the only concern Mr Chairman is that of course that they be dragged in by implication but I’m quite certain what has happened here, you’re not going to do that in your Committee - in your findings. So, Mr Chairman yes, that accords with how we view this situation.

CHAIRPERSON: Thank you very much. Did you want to re-examine?

MR TSHOLANKU: No re-examination, Mr Chairman.

CHAIRPERSON: Any further evidence?

MR TSHOLANKU: Mr Chairman, yesterday I pointed out that we will be leading further evidence pertaining to the attitude of the ANC and MK as far as the Peace Secretariat was concerned, unfortunately the witness that we intended to call - we have not located him, we have

tried on a number of occasions to get in touch with him.

We feel that Mr Chairman, without taking much of your time, we will not pursue that aspect. We have tried all that is reasonably necessary in our capacity to get hold of this witness, we can’t get hold of.

CHAIRPERSON: Are you closing your case in respect of both applicants?

MR TSHOLANKU: We’re closing our case in respect of both applicants.

CHAIRPERSON: Mr Smiles, you are excused.

WITNESS EXCUSED

MR TSHOLANKU: Mr Chairman, if I may, I don’t know where do I stand procedurally with what I intend saying to the Committee now but as one of my functions is to bring to the attention of the Committee, whatever information that may be necessary to assist the Committee in arriving at a just decision. I’ve just been given documents that had been faxed from Cape Town, now this document may be able to shed light on the cross-examination by Professor de Koker - right towards the end, as to whether Walter Smiles when he threw this hand grenade on that day was it for the first time or not. If I recall well, it was to the effect that he threw another one at a military base after this very incident - if my memory is correct, I think that is what was said. I have in my possession a document and a newspaper cutting which I can show to the Committee wherein a hand grenade was thrown at the SADF Support Base and this was on the 5th of May 1993, that was surely before this very incident - if it will be of any assistance to the Committee, I have copies thereof.

ADV DE JAGER: But do you have any indication that he threw the hand grenade?

MR TSHOLANKU: No, there is no indication but there is a covering letter that comes from his commander explaining that it was the first time that he did what he did but ...[intervention]

ADV DE JAGER: ...[inaudible] the trouble is, if it’s - there’s an implication that it could be him, he’s not applied for amnesty for that.

MR TSHOLANKU: Yes, I concede to that.

ADV DE JAGER: ...[inaudible]

MR TSHOLANKU: I concede to that yes. That’s why I was saying, I don’t know where it stands, it may shed light or it may cause more confusion but I’m in the hands of the Committee - I just wanted to make this information available.

CHAIRPERSON: Well, I’ll make this remark, after actually I’ve asked the witness in that regard.

Mr Smiles, you are still under oath. Mr Smiles, is it possible that the hand grenade that you threw at the military base was before this incident? Could you be making a mistake this morning when you told us that the hand grenade at the military base was thrown after this incident?

MR SMILES: That is so Mr Mpshe.

CHAIRPERSON: I’m not Mr Mpshe. Just say: "Yes", you can leave it there. Do you understand my question?

MR SMILES: Yes, I completely understand you.

CHAIRPERSON: What is your ...[indistinct]

MR SMILES: Mr Chairman, that was the second time I’ve thrown the grenade, it fell on the roof of the military base.

CHAIRPERSON: Was it before or after the Trust Bank incident?

MR SMILES: Trust Bank was first.

CHAIRPERSON: The reason why I asked you this question was because yesterday I got the impression that you said the hand grenade at the military base was before and now you are saying that it was after - all right, thank you.

MS KHAMPEPE: Do you recall Mr Smiles, that when I asked you yesterday whether it was the first time for you to throw the hand grenade, you were almost positive that the military base in Vergenoeg incident was the first one and the Trust Bank incident was the second incident in which you were involved in launching a hand grenade.

MR SMILES: I apologise because I misunderstood. I have to explain, military base was second, Trust Bank first - this is how I can remember today.

CHAIRPERSON: Very well now, you are excused Sir, you can step down.

WITNESS EXCUSED

CHAIRPERSON: Professor de Koker, do you have any witnesses to call?

PROF DE KOKER: Chairman, my client is available as a witness but I think it is clear at this stage as we’ve progressed during the past two and half days, that the type of information that she can provide is in a sense peripheral to the specific issues on the table at the moment but my client is available as a witness.

On the other hand, we have also affidavits which were prepared some months ago when the hearing was still going to proceed in August in which my client simply furnishes information which seems at this stage to be common cause. That might therefore be another way of putting the information in front of you and perhaps saving time in that way, if you will perhaps permit me to quote one or two paragraphs from the affidavit.

ADV DE JAGER: Mr de Koker, we only accept sworn statements as evidence. If all the parties accept this as the truth, you can submit these but it has no meaning if the person who made the affidavit is not available to be questioned by the other interested parties. You can negotiate with the other parties, if you agree that these papers be handed in, then it can be done otherwise it’s quite pointless unless they’re all going to be prepared to stand and give evidence and cross-questioned.

PROF DE KOKER: My client is available, I’m just thinking of ways of saving time. I will made the statement available to the other legal representatives and they can all have a look at it. My personal feeling is that there is nothing fundamental in this and the interest will be purely procedural and my client is prepared to answer any questions.

CHAIRPERSON: Any other witness?

PROF DE KOKER: No other witnesses.

CHAIRPERSON: Did you want to say something Mr Visser?

MR VISSER: May I please Mr Chairman, just to put the record straight, speaking of affidavits, we did also hand in affidavits of the clients for whom we appear and whose names you just read. I believe that Mr Chairman - for what it’s worth, they were handed to my learned friend Mr Mpshe and I think he did inform us that they were before you, so if there’s anything you’re obviously free to refer to those affidavits if there’s anything that arises which we don’t expect but I just want to make the point that there are also affidavits from my clients before you, thank you Mr Chairman.

CHAIRPERSON: I haven’t come across them, are they in the bundles - somewhere in the bundles?

MR MPSHE: Mr Chairman, they are not in your bundles but I have them in my possession.

CHAIRPERSON: Yes, just hold onto them, we are not so sure whether we need to have them in the light of the evidence so far.

Professor de Koker, I think that you could do that during lunch time. Maybe we should adjourn now and I see Mr Bode, you are burning to say something yes?

MR BODE: Thank you Mr Chairperson, on behalf of the other victims, I just wish to put on record that we are not intending to call any witnesses. Should you or members of your Committee wish to question any of the available victims, they will gladly be willing to do so but just to inform you regarding the further proceedings we are not proceeding with any leading of evidence, than you Mr Chairperson.

CHAIRPERSON: In which case, will we be able to - assuming that there will be no problems about the affidavit Mr de Koker’s client, will we be able to listen to argument after lunch?

PROF DE KOKER: I believe in the light of the evidence that’s been given the past two and a half days, that would be very difficult for me to do. If I could have the indulgence of the Committee perhaps to submit argument to them in writing, I would appreciate it.

CHAIRPERSON: So far, we have been in the practice of allowing people to submit written argument except that we’ve been experiencing a lot of problems, you know submissions not being forthcoming and as result we have a huge backlog with reserved judgements because many legal representatives are just not keeping to the terms but this is not to say that we will insist that people should submit argument but if that’s going to be the ruling we are going to request that we keep to the terms. Shall we adjourn then until 2 o’clock.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Mr de Koker?

PROF DE KOKER: Thank you Mr Chairman, with your indulgence I would like to lead very briefly some evidence by my client mainly pertaining to her injuries. To that effect I request you to receive provisionally as an Exhibit, copies of her affidavit.

CHAIRPERSON: Sorry, where is the original? Yes, we need to have the original. What was the understanding with regard to what you’re supposed to sort out with your colleagues?

MR TSHOLANKU: Mr Chairman, might I point out that I was afforded an opportunity to go through the affidavit. We don’t have a problem with the affidavit being accepted as evidence as the contents thereof is mostly what is common cause what has been traversed by Mr de Koker in cross-examination.

CHAIRPERSON: All right, yes?

INTERPRETER: The mike is unfortunately off.

PROF DE KOKER: Thank you very much Chairman. We will ensure that the original is handed back to you after the evidence has been led,

in the meantime we’ll give you another copy, thank you Mr Chairman.

Mr Chairman, I ask your indulgence and also your assistance, I’m not sure as to the procedure. I’m going to lead my client in evidence, what is the procedure as to the administration of ...[indistinct] in this regard?

ADV DE JAGER: Do you want to testify in Afrikaans or English?

MRS DE KOKER-NEL: I’ll testify in English.

JEAN EULETTE DE KOKER-NEL: (sworn states)

ADV DE JAGER: Could we have your full names please?

MRS DE KOKER-NEL: Jean Eulette de Koker-Nel.

ADV DE JAGER: This document now being handed to us, is this your signature appearing on it?

MRS DE KOKER-NEL: Yes, it is.

ADV DE JAGER: ...[inaudible] there are annexures thereto?

MRS DE KOKER-NEL: That is correct, the first part is media statements and then finally there is an affidavit made by Doctor Enrico Branca which he signed but that comes from the medical information which deals with my injuries as a result of the attack.

ADV DE JAGER: The last affidavit only deals with your injuries, it’s not an affidavit about the facts actually of this case.

MRS DE KOKER-NEL: No, it’s not, it purely deals with my injuries.

CHAIRPERSON: Which one are you now - are we only to take this one which relates to the injuries or the other affidavit as well? I thought you said you wanted to adduce evidence with regard to your client’s injury?

PROF DE KOKER: That is correct Chairman, we got hold of that particular affidavit only this morning and we thought to include it in the statement but it was not formal part of the statement. I realise this is an informal procedure and I will abide by your ruling in that respect.

CHAIRPERSON: Mr Tsholanku, what do you mean that you had no problems with the affidavit, do you mean this whole thing or only with regard to the injuries?

MR TSHOLANKU: Mr Chairman, my understanding is that - when I read the affidavit, if you look at paragraph 9 and 10 of the affidavit, it refers to the nature of the injuries that were sustained and when I looked at the affidavit by Enrico Branca I also realise that it refers to her injuries.

Mr Chairman, I can’t dispute the nature of her injuries, I don’t have a problem with that. If it causes the Chairman problems, Mr Chairman, I’m inclined to abide by your ruling but as far as her injuries are concerned, I can’t argue with that.

CHAIRPERSON: Mr Tsholanku, you are here to represent your own clients and we cannot decide that for you. We are looking at a document here - an affidavit, all I wanted to know from you is - you said you had no problems with this affidavit, now are you referring to the whole affidavit from this lengthy one - you have no problems with that one including this other one, that is all we want to know.

MR TSHOLANKU: The whole document Mr Chairman, including the Enrico Branca document as it was handed to me as one package and the other ...

MR MPSHE: Mr Chairman, I don’t know whether I can also be allowed to say something on this and where I stand again. I have a problem with the affidavit towards the end, that is from paragraph 14 thereof, if you look at paragraph 14, paragraph 15 and 16, it consists of questions that are asked of certain people, Major Mbatha, Walter Smiles and others as well as the TRC.

I don’t know how are these going to manned because these are questions which need answers. Should they still form part of the affidavit or should Professor de Koker make use of these paragraphs I’ve just enumerated in his submissions.

ADV DE JAGER: Professor, paragraph 14 for instance

"Questions to be asked to somebody"

That can’t be an affidavit relating to the facts of the matter, that could be suggestions and you’ve represented her, so I take it those questions you’ve asked, so that can’t be part of an affidavit because an affidavit would relate to the facts that should be considered.

PROF DE KOKER: Quite correct, Commission de Jager, this affidavit and submission jointly was drawn up in August before the second round of hearings and at that stage we were not sure whether we were going to be allowed an opportunity to put questions, so by way of a submission we wanted to bring certain questions to the attention of the Committee. Those questions from paragraph 14 to paragraph 17 have traversed during the past two and a half days, we regard them therefore as being answered.

ADV DE JAGER: So could you kindly then tell us - go through perhaps paragraph by paragraph and say: "Well I want the Commission to attend to the facts in this paragraph" because you’re also opposing the applications of the two people in jail, you’re referring to them and they’re not before us at this stage in any event. ...[inaudible] insofar as we should pay attention to this, which paragraphs do you want to be evidence in this case.

PROF DE KOKER: In particular, paragraphs 1 to 10 including 10, paragraph 11.2 till paragraph 13 including paragraph 13 and then paragraph 18, that is the very last paragraph ...[intervention]

MS KHAMPEPE: Professor, are you including paragraph 13 which actually requires answers?

PROF DE KOKER: Quite correct, it’s till paragraph 12 including 12, leaving 13 and the other paragraphs dealing with the questions that were put and answered.

CHAIRPERSON: Mr Bode, did you want to say something?

MR BODE: No, Mr Chairperson, thank you.

CHAIRPERSON: The paragraphs that have been mentioned by Professor de Koker, paragraphs of your affidavit, those are the paragraphs that you want us to have regard to, is that correct?

MRS DE KOKER-NEL: That is correct, Mr Chairperson.

CHAIRPERSON: And there is also another affidavit I believe or another document, yes indeed, another affidavit which is an annexure to the main affidavit and you also want us to have regard to that?

MRS DE KOKER-NEL: Yes, Mr Chairperson.

CHAIRPERSON: Are there any specific points that you want to elaborate on or elucidate in your affidavit?

MRS DE KOKER-NEL: I would particularly - well put some more light on my injuries sustained as a result of the explosion.

ADV DE JAGER: Now, your injuries are actually - should be set out in documents to the - that should come before the Rehabilitation Commission. We have only the authority to refer them that we are of the opinion that you’re a victim of violations of human rights. I believe they’ve got a form that should be completed, I don’t know whether some our staff members have got this affidavit and form available, if not then I think it should be requested and you should complete that affidavit in order to be declared a victim by the H&R or the Human Rights Violations Commission. We’re only making a recommendation and I think I’m speaking subject to my colleagues here but I think that as far as we’re concerned, all the people that’s been injured in this incident would be recommended as being victims and the same would apply to Mr Bode’s clients.

MRS DE KOKER-NEL: Mr Chairperson, that was the aim of me testifying, it to finally request the Committee to refer myself and the other victims of the incident to the Reparation and Rehabilitation Committee to be considered as victims.

CHAIRPERSON: Any other thing that you wanted to say?

MRS DE KOKER-NEL: That was all Mr Chairperson.

CHAIRPERSON: Professor de Koker, do you want her to put questions in connection with anything else?

PROF DE KOKER: To enable the Committee to consider referring the request in terms of the Act, I’d like to have an indication from you Mr Chairman whether it would be necessary to lead evidence as to the injuries. We can do so but I would not like to prolong the session if ...[intervention]

CHAIRPERSON: We will just have regard to the annexure to her affidavit and I think for our purposes that it would be sufficient.

PROF DE KOKER: Then I simply would like to ask my client whether there is anything else that she would like to add in respect of her injuries.

MRS DE KOKER-NEL: Mr Chair, in paragraph 10 of my affidavit I drew up the affidavit focusing on the facts and I did - particularly in the affidavit but did not in detail set out my injuries. That which is there is a general statement, it does not say - well, it does not deal particularly with my injuries, that is actually a very general way of saying I was injured.

What I have experienced is, I spent some time in the ICU, I suffered balance problems and because of that I had to learn to walk again, I had to learn to speak again. I spent seven months - the rest of 1993, at my parents home to recuperate and I returned to Bloemfontein in 1994. I wasn’t able to work again until 1995. I lost use of the left part of my body, full uses of which I have not regained and which I probably will never regain.

I had a number of operations, some of which included reconstructive surgery. I still have a shunt in my brain which regulates the pressure in my brain because the fact that there’s shrapnel in my brain blocking parts of my brain, so I need pipes in my body to make my brain and the pressure function properly. I suffer severe pain every day of my life, I can’t sleep at night because the nerve ends in my brain were affected to such an extent that it’s painful to rest my head against the pillow.

I can’t go back to the work I’d done prior to the accident, I had to make a complete career change and even where I work now, it’s a struggle. That is not part of the affidavit but I felt it may be necessary to say that.

CHAIRPERSON: Thank you.

PROF DE KOKER: Mr Chairman, I have no further questions to put to my client, I simply request you to receive this affidavit which was handed to you provisionally as an exhibit in evidence.

CHAIRPERSON: It will be Exhibit B. May I have that original please?

Mr Bode, do you have any questions to the witness?

MR BODE: None Mr Chairman, thank you.

CHAIRPERSON: Mr Tsholanku?

MR TSHOLANKU: None Mr Chairman.

CHAIRPERSON: Mr Mpshe?

MR MPSHE: None Mr Chairperson, thank you.

CHAIRPERSON: Thank you Mrs Nel.

WITNESS EXCUSED

CHAIRPERSON: Does that conclude all the evidence we were supposed to hear in this case?

Do you have witnesses Mr Mpshe?

MR MPSHE: No, Mr Chairman, thank you.

CHAIRPERSON: Well then, that concludes the evidence and when can we expect to receive ...[intervention]

MR MPSHE: Mr Chairman, we had a consultation during lunch time, we’ve all agreed on next week Wednesday being the 5th of November, they said submission will be forwarded to Cape Town office - that is next week Wednesday the 5th of November.

CHAIRPERSON: Well, that concludes our proceedings in respect of the applications of Smiles and Mbatha. What about the other applications Mr Mpshe, are we ready to commence or is the legal representative not here?

MR MPSHE: Mr Chairman, members of the Committee, the legal representatives are not here, we are not in a position to commence with them today but we will be able to commence with them tomorrow - they have not come back to me.

ADV DE JAGER: What time tomorrow?

MR MPSHE: I thought perhaps the time 9H30 or 9H00 will be suitable, the time that the Committee may direct.

CHAIRPERSON: ...[inaudible]

MR MPSHE: I will be able to contact him, thank you Mr Chairman.

CHAIRPERSON: We will adjourn until tomorrow 9 o’clock.

COMMITTEE ADJOURNS