MS SOOKA:

Would Sipho Moses Mbaqa first stand please - can you hear me now?

MR MBAQA:

I can hear you.

MS SOOKA:

Okay, we’d like to welcome both of you here, we are very happy that you have taken the trouble to come and give your testimony. As is usual in these cases we will ask you first to take the oath and then we will hand you over to Commissioner Ntsebeza on my left hand side who will assist you with your testimony.

Sipho, will you please stand first so that you can take the oath?

SIPHO MOSES MBAQA Duly sworn states

ADV POTGIETER:

Thank you very much, you can be seated.

MS SOOKA:

Are you able to hear?

MR MBAQA:

Yes.

MS SOOKA:

Are you sure - okay Commissioner Ntsebeza will now assist you to lead your evidence.

ADV NTSEBEZA:

Good afternoon, I will start by speaking to Sipho. Who is Sipho?

MR MBAQA:

It’s me.

ADV NTSEBEZA:

Thank you - let’s start by asking you to give us a background about yourself. Where were you born, your upbringing and did you attend any school - if so where and were you ever employed, if so where were you employed.

I would like you to take only three minutes to give us the details in connection with your background and then we will start to get into the core of the matter. Are you going to speak Xhosa?

MR MBAQA:

No I am going to speak English.

ADV NTSEBEZA:

Oh! okay - you can go.

MR MBAQA:

Yes I am Sipho Moses Mbaqa. I come from a family of five brothers - I come from a family of five brothers and one sister and I am the third one. I was born here in Kimberley - I grew up here and I went to school here like everybody and throughout the turbulent years as everybody knows that we never really had a proper schooling although we would talk about schooling because of boycotts year in and year out.

So and I went up to Matric - I went up to Matric and after that I didn’t do anything. I then began to work for the ANC Youth League from 19 - in fact much earlier I started to work for the - proper I started to work for the South African Youth Congress earlier, in fact I had been - I started to work for the South African Youth Congress but then I started to work for the ANC Youth League sometime in 1992.

MS SOOKA:

Could we ask that you move in quite and as quickly as possible because you are interfering with the witnesses ability to give his testimony clearly. Could we have silence please.

ADV NTSEBEZA:

Ja just before we go on are you comfortable with English or would you wish to speak in another language?

MR MBAQA:

No - no I am very comfortable.

ADV NTSEBEZA:

Oh! ja - okay - I would like a witness to testify in a language he is best able to give his testimony - if you comfortable it seems okay.

MR MBAQA:

Yes.

ADV NTSEBEZA:

So you were still saying that you were working for the ANC Youth League.

MR MBAQA:

Yes and - but now then I had been in the Youth Leaguer for - for many years despite that - even before the ANC was un-banned I was a Youth League until those times when the ANC was un-banned I was there all the time until of course I was arrested for this murder and convicted.

ADV NTSEBEZA:

Right, let’s now come to the 25^th of May 1993, which is - which I think you will never forget in your life.

MR MBAQA:

No certainly not.

ADV NTSEBEZA:

Ja, can you just tell us briefly the events of that day as you recall them before we get on to what happened to you thereafter.

MR MBAQA:

Ja on that day - the 25^th May 1993 - we - we had a march. We had organised the march in reaction to it - to events that had taken place a week or two or even three weeks earlier at the University of Bophuthatswana as it was referred to then, Where the police had assaulted students there because during that time that region, it used to be part of our region. Therefore in my responsibility end of Tape 2, Side B … sort of areas as well.

So when the students were assaulted there on that day, one of whom is a fairly prominent person by the name of Soliboka, he was there involved also there - he was assaulted on that day.

So we organised that march on that day to the Bop Consulate here in Kimberley to actually protest what had happened to those students on that particular day. And that, that was the purpose of that march among the other things.

ADV NTSEBEZA:

Yes, if you will just carry on and relate events of that day, so there was this march it was progressing, what happened.

MR MBAQA:

Okay, on - on the morning of that day we prepared you know the memoranda’s. It was me, and the Chairperson of the ANC Youth League and I think two other officials who were there and we were preparing those memoranda’s to hand over. And we did that, that morning.

So while we were about to leave, then came Lawrence - Lawrence then - Lawrence was then the Commander of MK in the region. He then came there in the office and he came to see me - to inquire about a agreement he had left with me. I then told him no - it is here you can - you can he can have it. He then say to me no, because you can see I have - don’t have anywhere to put it, I have these tight pants. Can you make me a favour and come with it to the township and then I will take it there and go and put it away.

So because I wanted to get this thing away from me it was his anyway and I was anxious to get it away from me because he had left it with me about three - four weeks ago and I had been pestering him to come and take this thing of his. So he then came back [indistinct] to come and take it, so I made him the favour and I took that thing and I of course placed it beside my bag and I left with the Chairperson of the ANC Youth League and another chap of the Kimberley Civic Association, they call him Vernon Patrick and another comrade of the civic also is Lionel Jacobs and Mafu Davids who was the publicity secretary of the ANC Youth League during that time.

But then when Lawrence came and we had these discussions about this grenade of his, these other people of course they were not aware of what we were actually talking about. So even when I put this grenade in my bag and I left with it in Lionel’s car they did not know I had something like that.

So we then went out - we drove with the car - with Lionel’s car it was a white Skyline. We then drove to - to the township to where the said march was supposed to commence, to start from. But then unfortunately we were a little - we were a little bit too late so we instead found the march had moved from where it was supposed to start.

We met the march along the way - then we came there we stopped and then we joined the march at that point and Lawrence was also there by then. So I then went up to him and he said no obviously you can’t give me that thing here in public. Could you just carry it when we come in town I’ll take it and then I’ll put it away by the office or in his car, that was what he said. But then it made sense also to me that I could not give him that type of thing in public.

We then joined the march and this grenade was still in my bag and it did happen that when we reached the town somewhere in town here, he did come to me and said well bring me - bring me this thing - he took it [intervention]

ADV NTSEBEZA:

Just to clarify something there. When you say when you were in town, was it in the process of the march.

MR MBAQA:

Yes certainly it was in the process.

ADV NTSEBEZA:

When he said just let me have that thing.

MR MBAQA:

Yes that correct, that’s right.

ADV NTSEBEZA:

Okay, and Lawrence - Lawrence who - do you know who - his other name?

MR MBAQA:

Yes, it’s Lawrence Mbatha.

ADV NTSEBEZA:

Mbatha.

MR MBAQA:

Yes.

ADV NTSEBEZA:

Okay.

MR MBAQA:

Well he then took it away together with the bag, then we proceeded with the march and I forgot about it. We then got to the Bop Consulate, in front of the Bop Consulate and then people came there and then the memoranda’s were handed over.

But then I was standing at the back because I was also doubling up maintain some kind of order there. So I was at the back - so in the process of me walking around there then this chap came up to me - you know Smiles Walters then came up to me. He then opened his jacket like this but then I saw what I thought was a grenade. I won’t say it was a grenade but I think it was from what I - I saw.

But then I didn’t take him seriously, I just left him there I was disgusted and I - I left him there because I thought what he was doing you know rather stupid and that type of thing. So I just left him alone and I joined the other guys who were also standing there at the back. It was Mafu Davids and another - another comrade I knew him only as Quire and a few other comrades, we were about six or seven - we were standing together there observing the proceedings from the back.

But then at some point just after the memoranda’s were handed over - when the people were about to leave the place - at that point I was now walking to the front - I was walking to John Block - there Chairperson of the Youth League, because I was - I was going to collect the memoranda’s that had been signed.

ADV NTSEBEZA:

Who was going to be given these memoranda?

MR MBAQA:

Is the Bop Consulate.

ADV NTSEBEZA:

And was Mangope there, as well.

MR MBAQA:

He was obviously not there - his Consul was there.

ADV NTSEBEZA:

Only the Consul.

MR MBAQA:

Yes.

ADV NTSEBEZA:

All right.

MR MBAQA:

And after they had handed over those three or four memoranda’s, just when the people were about to move so I was walking towards John Block when I - you know I just saw what I thought was something like you know tear gas smoke and everybody just running away. I didn’t know what was going on there at that stage, but I did see something like thick smoke what I thought was thick smoke and everyone running.

Well I thought at that stage that it was tear gas so I also ran away. But I - I just ran a short distance and what possibly happened you know it just occurred to me, at that point as to what possibly happened. So I then went back you know and - but when I went back I could not hear you know what - what people were saying, my eyes - my ears I beg your pardon, were sort of you know that sensation you have if you had been swimming - that sensation - so I could not properly what people were saying it was just like you know - and I saw people lying there - I saw some of our own people were there. Some comrades I cannot recall who they were, but they were there - and others were saying, call the ambulance and so on and I ran again to the ANC office.

And then I found Mafu Davids and the others they were there and some other people who had been slightly injured, who had managed to - because the ANC office was not far from that scene. So some people who were slightly injured they were already there and I found that they had already of course called the ambulance and so on and you know it was just sirens - police sirens and everything.

We then took some of these people to the hospital with Mafu Davids and I don’t recall who else - and we came to the hospital, there at the hospital I met Lawrence, because when that happened I thought the grenade that was with me - so has been used here, so I - that’s what I thought at that point, because I [intervention]

ADV NTSEBEZA:

At that stage did you think of the grenade that you had been shown under the jacket?

MR MBAQA:

I was thinking about it exactly I in fact after the blast I said I ran away, I stopped you know when I could - as soon as I recovered - it occurred to me what possibly could have happened, because I did see that guy with that thing. So I went back too - just to confirm you know what I was already suspecting and I could - I found that no, this was actually a kind of explosion.

ADV NTSEBEZA:

Who did you go and confirm with, with Mbatha or the person who had shown you [intervention]

MR MBAQA:

No, as I said to you when this thing occurred I thought it was tear gas and I ran away, but then it occurred you know I just suspected it - it just - my brain just you know - when this happened I just became confused I didn’t hear - I didn’t even hear the noise you know, a bang or something - I just saw something what looked like thick smoke and people running helter skelter and so on.

So I ran away as well but then that happened and I came back and as I said, we when to the hospital. When we came to the hospital I asked Lawrence about what had happened. I asked him you know, I said do you know about what just happened here, he said to me no he doesn’t know what happened. But then I must just keep out of this that’s what he said to me.

But I said to him, how can you say so, my eyes are closed now I cannot even hear well, he said you probably took the impact of that but as I am saying to you, you just keep out of - out of this but I don’t know what - what happened, that’s what he said to me.

I then let him alone but obviously I had a suspicion in any way but I didn’t see Smiles at that time, I didn’t see him - I only saw him the next morning when I went to the office. I then left the ANC office to go to our office - I was with Mafu Davids on that morning when Smiles then came running up and said you know he did this and that he was sorry.

I didn’t say anything at that point - I didn’t say anything we just kept on walking away. I don’t know if Mafu Davids heard him, but I never spoke - I never said anything - we never discussed anything because at that point I thought well here comes trouble and something I did not know about and so on. This thing was with me at some stage and so on - that’s what I thought.

So that day passed and the following day I don’t know, I think it was about four days - four - five days I went away and I came back again and when I came back I was told Lawrence had been arrested and Tembikosi and Millicent, well when that happened I thought well maybe these people will clear this up and maybe they know -particularly Lawrence, that’s what I thought.

But still I didn’t discuss this with anyone - still I didn’t talk with anyone about this - this matter. I - I obviously wanted to be - to be you know on the safe side because there was already a lot of police activity at that stage. And I went away again after the following week, when I returned I was then arrested at the Kimberley airport, when I returned from Johannesburg. I was arrested by the police and they then told me they were taking me into detention as a suspect in this incident of the 25^th 1993.

They took me to Transvaal - Transvaal Road police station where I met some - some officers I do not know but it is very senior officers. They then told me that they were taking - okay they then told me that they were taking me - they then told me that they we taking me into detention I don’t know but it was some of those pieces of security legislation. I think it was - they said something first and I don’t recall it - something under Public - Public Order or something ja but eventually they told me they are taking me in under Section 29 of the Internal Security Act. They then told me I cannot see a lawyer I cannot see anybody, I can only see them.

They then took me to the District Surgeon - after that they took me back to Transvaal Road police station to - to the same people, from there they took me to Barkly West, I then slept there and then the following day begun the interrogation sessions.

They interrogated me then every day saying my bag was with - they asked me what I did with my bag you know. At that stage I didn’t want to co-operate with them, I didn’t say - I didn’t say anything, so that was that situation then me not wanting to anything - them saying all sorts of things and I wasn’t saying anything so that became an process of every day - every day - every day - that was the situation.

Then after some days I can’t remember I had no longer have a recollection of days as to what happened there - as to which - on which day what specifically happened. But one day they came to me and said look we know that you - you had a grenade in the bag we also know that you were there at the march with a grenade and at some point during the march you went out of the march and you took the grenade out of your bag and you placed it inside your pocket and you gave your bag to Lawrence and your marched up to the Bop Consulate. When you reached the Bop Consulate you gave your bag to - I mean you stood there at the back with - with Nkosinathi.

And then at some stage after the memoranda’s had to be over, you then gave him the grenade to - to launch it. That’s what they said to me, but I didn’t speak much to them, what I just said to them - I said to them look that story of yours you won’t find a market anywhere for it. It won’t be bought anywhere where you go, because I knew there was no such person like Thembikosi - I beg your pardon Nkosinathi that day.

But I said to them look - that’s what I said - I am using the words I exactly told them - I said you won’t find a market anywhere for that story. Well I think they thought I was lying when - when I say that.

And as days go on, I realised that these people were becoming you know serious with their story and it was at that point then - then I decided that you must remember - as I said earlier, when this thing happened - nobody said to me I - I must not accept Lawrence, nobody placed me under pressure to say you know I must not speak about what I saw.

I took it out of my own you know not to speak - so when I realised these people - this police are becoming so serious about this matter of Nkosinathi - I then decided to tell them the truth. I told them the truth - I told them what the whole situation and that situation they have it in their files. If they produce their files they will find that I told them exactly what happened.

It seems to me they didn’t believe me, at that stage I realised that these people, they were just - they wanted me to confirm their story which was not true. And the story that is the truth that I tell them - they don’t believe it.

I then decided to go on a hunger strike. I went on a hunger strike for about ten days and at some stage I went to the hospital and they were coming repeatedly to visit me you know just to get me to confirm the story - they wanting me to confirm this story of Nkosinathi.

So I realised that this was now a lost case - there was nothing I could talk with this people anymore, because they don’t believe the truth, they believe something that I did not know they take it there. After some days then came to me and said look if you stop this hunger strike we are going to charge you and so on - I said no, that’s okay and then I stopped. Then they sent a Major - no it’s a senior officer, I don’t know is it Niewoudt or Mostert - one of the two. He then confirmed it to me - I then stopped the hunger strike. They then charged me - really they did so, they charged me.

And then at that stage they told me no, now you’ve got access to legal representatives and so on and of course during that time also there was this Magistrate who used to come and - who use to come and ask you know for - for what - what complaints we - we had and so on and I did not - I did not speak anything with him you know. I didn’t talk anything with him.

So after that the police then decided to charge us and they did so and - well I thought they were joking but they really brought the charge sheets and I could see that Nkosinathi’s name on this thing. We did also at that stage I did receive a lawyer, I was visited by an attorney Gullah Makawaray and then they charged us - I don’t recall what the date was, but they took us to court.

It was the first time I then met Nkosinathi, I then I asked him how do you get involved in this matter and then he told me a long story of how you know the police were pressurising him and so on - otherwise I will leave that to him, he will talk about it.

But I then said to him no I understand - I understand and I believe you that you, you are innocent and you don’t know this matter. We appeared in court and were then taken to prison. All right we appeared un-represented that morning because advocate Gullah Makawaray arrived late, but then he did meet us afterwards. We were then taken - we were then taken to the prison, and then we then waited and so on but I then received a visit from the Chairperson of the ANC Youth League. It was then - he was the first person I ever spoke - it was the first time I spoke - I ever spoke about this matter.

I then told him actually well this is what happened and he then took it up I think with the - with the leadership and so on.

And I was further interrogated or questioned by some - by some of the people from the Security Department of the ANC on - on this matter. And then ultimately then we were put on - we were put on trial. But then at that stage I was told and of course we were represented then by Advocate Denzil Potgieter.

Then at that stage just before the trial begun I was told that Smiles had - had agreed to come forward and to own up to what he had - he had done. But apparently the police initially agreed that okay if he signs an affidavits and do all sorts of things they will - they will then you know arrest him instead. But I don’t know what happened and the police apparently changed their mind. That is what I was - I was told and instead insisted that we call Smiles as a witness.

We then decided no you know we could not do this thing because what was happening during that same period the police were busy wanting to drag other people into this matter, saying all sorts of things and intimidating people saying before they see us - they must obviously expect - exploiting the ignorance of people of well - before they see us they must first ask permission from them.

Of course that practise was stopped by the prison people who said that is nonsense, it is not necessary to us - permission from police. Because at time as I said because of this intimidation of the police many of my old comrades had actually abandoned me. Even those chaps who were with me you know who possibly could - who possibly could say what the police were saying, it is not true you know. Even they had fled.

It’s only recently that these guys have appeared I think in the absence of that threat, that they have come forward and said but you know we never believed what the police said you know because the activities were so serious this one other comrade of us, in fact he left political activity altogether and they knew what the police were saying, were lying - he knew - he know that. But because of their activities - their threats of arresting people and doing those sort of things.

We were then put on trial - with that obviously cooked evidence. We then battled with that evidence, but they seemingly had enough resources to bring in all sorts of false witnesses to the extent that they brought in even our own comrade, and then our comrade then [intervention]

ADV NTSEBEZA:

Who is that comrade?

MR MBAQA:

He is here he’ll will be testifying he said - here he is sitting.

ADV NTSEBEZA:

Thembikosi.

MR MBAQA:

Yes - you know being I knew as a comrade and I trusted very much and so on - but he came that day and he was this State witness, obviously saying something that was not true because at least I had an - I had an idea. But he was saying something completely wrong and he stood by it.

We tried under all ways to break him, under interrogation, but the guy behaved as if he was trained you know to - in fact he surprised me because he was a chap I knew - you know - with all respect it’s a chap I knew he is you know the feeble type of people I understand him - maybe not a good thing to say, but just a good chap, but that day he was a changed person. He was virtually a professional of some kind because he was really telling lies and which were not there.

And I had no doubt in my mind that this chap was saying something he rehearsed for a very long time because he just was not making mistakes. It is difficult for a young chap of his age to say you know something like that without making mistakes and only makes mistakes when really cornered.

Now when you - I suppose when you said you tried everything to break him with your interrogation you meant cross-examination.

Cross-examination that’s what I mean.

ADV NTSEBEZA:

Oh!

MR MBAQA:

That’s exactly what I meant.

All right and this advocate Potgieter is he the one who is now Commissioner.

MR MBAQA:

Yes - yes that’s so - well, Thembikosi never broke. He never changed his story - he stood by his story to the end.

ADV NTSEBEZA:

What was his story [indistinct]

MR MBAQA:

Okay - that’s it - what Thembikosi is saying is on the morning when I arrived there in the Skyline as I said earlier when we met the march along the way. He says he saw a barge or something in this bag that I was carrying. He says he was wondering what that was but he didn’t take me seriously.

He then says somewhere along the march - along the process of the march - because there is somewhere we stopped and waited for some other people who came from another direction to join the march. He says at that stage I apparently left the march and I took the grenade out of my bag and then I placed it inside my pocket . And then he didn’t see me then from there. Then he only saw me at the Trust Bank again - Trust Bank Building again where the Bop Consulate is housed.

He said he only saw me there because he was standing in front he apparently saw me standing with Nkosinathi at the back and then he apparently saw me giving Nkosinathi a grenade. But then he was asked how could he have seen - when he was asked how could he have seen me giving Nkosinathi a grenade if we were standing at the back, obviously with a lot of people in front of us, he then said no he did not see - he actually did not see me giving Nkosinathi a grenade. He saw our shoulders moving.

But then he was showed our height that there is no way he could have seen Nkosinathi’s shoulder he must have seen my shoulder and probably Nkosinathi’s hair because he had an afro then - well, he then said , well, that’s what I saw when he was asked, but how could you have seen that, he just said no that’s what I saw - that‘s what I saw - he said that about several times - probably ten times.

We dropped him there and then as it was clear that he was not going to change his story.

MS SOOKA:

Order please.

ADV NTSEBEZA:

Didn’t you at that stage - I don’t know perhaps about - subsequent you might have, didn’t you at that stage feel that he must have been acting under pressure? He was not the person whom you knew - that something must have brought him to that state.

MR MBAQA:

I had no doubt about it - no I had no doubt about that, I knew that this man is acting, he is busy with a story which he doesn’t know probably. Unless he can say something different I am convinced he doesn’t know a thing about the events of that day. Unless he knows what I do not know of course - we leave that for him.

ADV NTSEBEZA:

Now were you convicted as a consequence of that evidence?

MR MBAQA:

No, the whole matter was not so simple - you know this was a very sophisticated case - I was not convicted by his evidence per se. He was used to tackle me and partly to tackle Nkosinathi because the evidence was such that Nkosinathi was arguing and rightfully so, that he was not there.

So what happened after Thembikosi had told the Court this type of things about me, they then brought in another so-called surprise witness. This surprise witness then said he actually saw Nkosinathi here in town on the day of that event - on the day this incident happened - so that which the forecast from there shifted to - to him and then we were then convicted eventually on the basis of what he said against me and what the other witness said against him. That’s how we were convicted.

ADV NTSEBEZA:

Now it is common cause that you now serve twelve years imprisonment.

MR MBAQA:

Yes.

ADV NTSEBEZA:

As a consequence thereof - now how much of that time have you served already.

MR MBAQA:

I have served probably two - two

ADV NTSEBEZA:

Two years.

MR MBAQA:

Two and a half - two and a half years - yes should be.

ADV NTSEBEZA:

Ja - now I just want to ask you how - how you feel.

MR MBAQA:

Honestly speaking, I cannot say - I cannot say how I feel. I don’t know, I cannot say how I feel, I know I feel something but I cannot say how I feel, I cannot tell you how I feel. But maybe I can just say to you I feel bad, but I don’t know honestly is that the way I really feel. I don’t know - I don’t have a better word to describe- I can’t describe how I feel really, I can’t.

ADV NTSEBEZA:

Do you have any views about the judicial system.

MR MBAQA:

I certainly have.

ADV NTSEBEZA:

The legal system especially insofar as you feel, even though you can’t describe it, I don’t want to put words in your mouth.

MR MBAQA:

Yes.

ADV NTSEBEZA:

What is your view and attitude of and about the judicial system after what you have gone through.

MR MBAQA:

Well you know - well you know and I would probably give a very political response - because I [intervention]

ADV NTSEBEZA:

You can give any response you want to.

MR MBAQA:

That’s good - you know from the past as I said to you I had been a youth leader for - for many years in - in this area. But then obviously I had an understanding of the politics in South Africa. So in some sense you know I had - like many - probably many of activist of our time we had that - that suspicion of the system.

The system that looked at the police - the judiciary even the parliament and everything, obviously we had that suspicion and that little disrespect for those institutions you know. And when this happened, I always knew you know when these things happened for - to other people, but when the police did this and it really happened - it was happening to me - you know I could really feel that well here was - it was the first time I came close to seeing you know how the police can manipulate the system and so on.

I don’t want to make comments on - on the Court or - or on the Judges, I’ll refrain from commenting on, that I will say after that I was completely disillusioned with the system - you know particularly because the person who had done this - never denied that he did this. He never denied that - he took him away - they refused to take him - and all sorts of things. They pursued - they pursued a story which was not - which was not true. You know that’s - that’s the way I [intervention]

ADV NTSEBEZA:

Who had refused to accept the evidence - the Attorney General?

MR MBAQA:

Pardon?

ADV NTSEBEZA:

Was it the Attorney General or the State Prosecutor who had refused to accept the evidence of Smiles - what do you know?

MR MBAQA:

Well apparently it is the police but then I reckon it was on the advice of the Attorney General, I mean you know that - that the case is the case of the Attorney General so he might have said no. He advised them, he is their lawyer - he is a state lawyer, so I take it they had their advice from the Attorney General.

If - that is my assumption, it could have been the other way. It could have been their own initiative to refuse to accept that evidence.

ADV NTSEBEZA:

Thank you Sipho. I think I should take the evidence of Nkosinathi before I ask other Commissioners to put other questions to you.