HELD AT: KIMBERLEY

CHAIRPERSON: October the 28th and we are proceeding with the same applications and Major, you are still under oath.

LAURENS MBATHA: (s.u.o.)

CHAIRPERSON: Professor de Koker?

PROF DE KOKER: Thank you Mr Chairman, I believe we closed yesterday on the 1993 statement and certain questions which were then put by the Committee, would the Committee like to proceed with the questioning or would it like me to proceed with different matters?

Thank you Mr de Jager - Commissioner de Jager, I realise my headphones were also off. I started by saying that we closed yesterday with the 1993 statement by Mr Smiles and certain acknowledgements in respect of that. The Committee members were putting certain questions and perhaps before I start I would like them to have the opportunity to continue that line of questioning.

CHAIRPERSON: No, I think - do proceed because we just intervened at a particular point.

PROF DE KOKER: Thank you very much. Mr Chairman, then I would like raise two preliminary issues. I referred yesterday to various statements made by Mr Mbatwa who is one of the gentlemen currently imprisoned. We were informed by the TRC that only Mr Nkotla applied for amnesty. It appears from the documentation in front of us on page 58 and 59, that is the thicker bundle, last paragraph before the heading: "Perpetrators", the complainant Sipho Moses Mbatwa has also applied for amnesty on the first of June 1996 but as he states that he’s not guilty of the crime, the Amnesty Committee replied in a letter that his case was out of the mandate, that is also repeated on page 59.

In the light of the importance of Mr Mbatwa statements, we believe that it would be important to have access to this particular document. Furthermore it transpires from the evidence that Mr Mbatwa admitted to possession of a hand grenade, he was charged for that offence, he was found guilty and he is serving a term of imprisonment for that offence. That would then seem to be a crime of which he was guilty and for which he might therefore have applied for amnesty. The question seems to be hanging in the air and I believe the only way to solve it would be for us to have access to that document.

CHAIRPERSON: Initially I got the impression that you were formulating your question to the witness but as it progressed I realised I must obviously be wrong, you are obviously addressing yourself to us. You want - which document do you want, Mr Mbatwa’s application form?

PROF DE KOKER: Mr Mbatwa’s application dated 1st of June 1996 and referred to in the documentation of the Truth and Reconciliation’s Investigative Unit on page 58, sorry, January, 1st of January 1996 - that apparently was the date of that application. We’ve received applications from Mr Nkotla and from the two present applicants but we’ve never received a copy of that particular application and it seems to be particularly pertinent also in the light of the information that came to light during the course of yesterday.

CHAIRPERSON: But his application was of course filed - I’m referring to Mr Mbatwa’s - Moses Mbatwa’s application, was filed separately and dealt with on paper because as the statement says he denied committing the offence. And he would not have been given a copy thereof because one would not have seen the relevance thereof but if you are interested in it, I suppose you can ask the office in Cape Town and ask them whether they can fax it through to us.

PROF DE KOKER: That would be very kind Chairman, I think it would be relevant again in the light of the contradictions between Mr Mbatwa evidence and the evidence given by Major Mbatha yesterday. This application may shed further light on the truth.

MS KHAMPEPE: Are you saying Professor de Koker that your present are in possession of Mr Nkotla’s application to the Amnesty Committee.

PROF DE KOKER: We’ve been furnished with Mr Nkotla’s application in March this year during the first round.

MS KHAMPEPE: Were you furnished by our office in Cape Town?

PROF DE KOKER: That is correct.

MS KHAMPEPE: Is that so, Mr Mpshe?

MR MPSHE: That is correct, upon request.

CHAIRPERSON: Very well, maybe we should - Professor de Koker we will ask one of our staff members try to see whether Cape Town cannot trace that application and then fax it through to us.

PROF DE KOKER: Thank you very much Mr Chairman. A second preliminary issue also addressed to the Committee - yesterday before the start of evidence, reference was made to the fact that neither of the two applicants were called as witnesses for the defence in the prosecution. Reference was made to the fact that evidence was led to the court about Mr Smiles who accepted responsibility for the incident and that that evidence was then not acted upon.

Apparently the record of the case is available, we would very much like to have access to that particular page of pages on which this evidence was led to the court.

CHAIRPERSON: I didn’t understand anybody to say that evidence was led, what I understood to have happened was that counsel for the accused attempted to have the affidavit admitted and the court did not admit - refused to admit the affidavit, I don’t think it was ever mentioned that evidence was led.

PROF DE KOKER: Thank you Mr Chairman. Can we then perhaps have access to those particular pages where the legal representative attempted to have this very important document admitted to court?

CHAIRPERSON: You will have to get it yourself, we are not going to assist you in that regard. We don’t think that is important or relevant to us so we’re not going to help you in that regard, you’ll have to go and get it yourself I’m afraid.

PROF DE KOKER: Mr Mpshe apparently has the record available and ...[intervention]

CHAIRPERSON: You can talk to him - sorry Professor de Koker, you can talk to him about that but we don’t think that we are going to get ourselves involved in that, this is not relevant or important to us.

MR MPSHE: Mr Chairman, if I may Mr Chairman, if I may? The relevant documentation referred to by Professor de Koker wherein the statement was been raised, this was couriered to him and I telephoned him on Friday that: "I’m going to courier to you the relevant portion of the court record and he provided me with his home address and this was couriered on Friday, I don’t know which one he’s looking for now.

PROF DE KOKER: Mr Chairman, I’m very glad to hear that, unfortunately I did not receive any package by courier. I do not believe there’s a dispute, Advocate Mpshe said the documentation is available and would also be available here in Kimberley.

MR MPSHE: It was couriered to you.

PROF DE KOKER: I’m very glad it was couriered to me but unfortunately I did not receive it, thank you very much. Advocate Mpshe said it was available and I confirm that he said that it will be couriered to me on Friday but as I said, unfortunately I did not receive it and I would therefore just request him perhaps during tea break to have access to the documentation so that we can get hold of those particular pages. Thank you very much Chairman.

CHAIRPERSON: You can sort that out with Mr Mpshe during tea time.

CROSS-EXAMINATION BY PROF DE KOKER: Mr Chairman, if you’ll permit me then to proceed with the cross examination of Major Mbatha.

Major Mbatha, yesterday we closed after a discussion of the 1993 statement under oath by Mr Walter Smiles dated the 27th of September 1993. At that stage we have not had opportunity to look at the document, have you been afforded the opportunity since to study the document?

MR MBATHA: I went through it yesterday.

CHAIRPERSON: Professor de Koker, can I just interrupt you at that point, can I just talk to somebody about the application that you asked to be faxed from Cape Town.

PROF DE KOKER: With pleasure.

CHAIRPERSON: Right, thank you.

PROF DE KOKER: Thank you. So just to confirm, you had access to the document. If this is the statement that you referred to that was drawn up after the consultation you and Mr Smiles had with Mr Isaacs and Advocate Denzil Potgieter ...[intervention]

MR MBATHA: With the recollection actually of the events yesterday, I did indicate there was a certain stage where I was a bit uncertain - my presence in the room, when I recollected the events properly on that particular day, I was - I did actually indicate it even yesterday, I was not in the very same room. And the reason for that as indicated, was basically that I’m not supposed to be interfering what Smiles is saying on the other side. Yes, it was in the same building but not the same room.

ADV DE JAGER: So, did you make a mistake yesterday when you said it was in the same room?

MR MBATHA: I said actually in the same building but I was uncertain as to whether in the room because I remember the question posed to me: "When you were in the room", it simply means you should have heard what he said.

ADV DE JAGER: ...[inaudible] got a note about it and I’ve got a very clear recollection, so I don’t want us to make a mistake here. Your answer: "In the building, in the office, in the room", you actually mentioned the three buildings and I noted especially: "In the room" and later I commented also to it that you mentioned that you were in the same room, so if it’s mistake then I can understand it but I don’t know whether other people can bear me out but that’s what I’ve written down that you in fact stated: "In the same room".

MR MBATHA: If this is what I’ve said, then it was a mistake.

PROF DE KOKER: Could you then describe to us precisely where you were when the statement was taken.

MR MBATHA: The office itself is partitioned actually into three rooms, I was actually in the reception of it and Smiles, Rodney Isaacs and Mr Potgieter were in the other room.

PROF DE KOKER: If our recollection serves us, you mentioned yesterday that you were called into the room at some stage, at what stage were you called into the room?

MR MBATHA: I actually said that I was called to the building, it is at that time that I said: "I actually was" - I said to Smiles because I did indicate yesterday, apparently he felt more comfortable with my presence around the building and it was at that stage when I referred - I understood in the sense that as the person that instructed him, who knew about the event, anybody out of that area he was very uncomfortable to talk in my absence.

PROF DE KOKER: You mentioned that you were the only person that had access to Mr Smiles and you repeat now by saying he was very uncomfortable not speaking to anyone else about this incident, so he spoke only to you about this incident?

MR MBATHA: He actually spoke to me about the incident, it’s like the nature of the incident itself.

CHAIRPERSON: Professor, whilst you are doing that, may be this volumes we just from this point onwards refer to the thinner one as Volume 1 and the other one as Volume 2 because we get confused sometimes as to which volume we are referring to.

PROF DE KOKER: Thank you Mr Chairman. What struck me when Major Mbatha said that Mr Smiles was reticent about speaking about this incident due to it’s sensitive nature, was other statements in the document that you refer to and specifically page 18 - if I may refer the Committee members to that in bundle 2, the thicker bundle and that is the evidence under oath by Mr Sipho Moses Mbatwa, page 18 about 60 to 70% into the page:

Major Mbatha, does that sound like the statement of someone who is reticent about speaking about the incident?

MR MBATHA: I cannot comment on that one.

PROF DE KOKER: I’m asking you: "Does that sound like the statement of someone - I don’t require you to confirm it, does that sound like someone who is not prepared to speak to anyone about the incident?

MR MBATHA: Hence I said as far as my knowledge is concerned, this is how I actually viewed him and this is how I regard him.

PROF DE KOKER: Can I draw the attention of the Committee also to page 40, which is the evidence under oath given by Mr Walter Smiles to the TRC, last paragraph of page 40:

The "down" should probable been a "now" but typed as "down".

Again Major Mbatha, I put it to you, does this sound like the statement of someone who is reticent and is only prepared to speak to you about the incident?

CHAIRPERSON: But you are dealing with a different context here, are we not here talking about a statement which was to be made by Mr Smiles for the purpose of going to the police?

PROF DE KOKER: That could be ...[intervention]

CHAIRPERSON: ...[inaudible] talking about somebody who was talking to his comrades.

MS KHAMPEPE: I have understood you differently, I thought you were trying to question Mr Mbatha why he states that Mr Smiles was reluctant to talk about this incident to anyone other than himself, have I not understood you properly Professor de Koker?

PROF DE KOKER: You are correct, Major Mbatha says that he had to act all the way and support Mr Smiles in everything he did because he was not comfortable about speaking about this incident to anyone and yet we have some indications in our documents that he did speak to other people and that he had the urge to speak about the incident.

CHAIRPERSON: Bearing in mind that we - you are comparing - you are talking about a statement which Mr Smiles had to make for the purpose of eventually being submitted to court and to the police during the consultation. The consultation at Mr Isaacs office was for the purpose of preparing a statement which was to be submitted to the police and to court. You compare it with a situation on the other hand of somebody who was talking to or making a statement not for the purpose of submitting to the police.

If you think that you are really making a strong point out of it then he can proceed but in my mind I clearly distinguish - I clearly understand why a person who is to make a statement for submission to the police, would be reticent about it. It doesn’t surprise me that the same person can have - can adopt two different attitudes under those different situations.

PROF DE KOKER: Mr Chairman, this line of cross-examination also links with the evidence led by Mr or given by Major Mbatha yesterday, that he was requested by the Legal Department of the ANC to prepare Mr Smiles for this testimony and he was requested because he was the only one who had access to him.

Now again, against the backdrop of the explanations that we’ve been given, we have to accept that Major Mbatha himself did not report this incident or discuss it with anyone in the Northern Cape but Mr Smiles was going around speaking to Mafu Dawids, accepting responsibility.

CHAIRPERSON: I think Professor, you can proceed. I’ve indicated to you, for example page 40, you have the Commissioner saying:

Clearly putting him at ease and that was a different - he was making his statements in a different context and I distinguished clearly in mind between a situation where he would have been making a statement which he would know that it would take him to prison. And if a person is a bit hesitant under those circumstances where he was to make a statement which could possibly take him to prison was less hesitant and less willing, I would understand it in my mind but proceed if you really think you’re making a good point out of it.

MS KHAMPEPE: Professor de Koker, what do you say about what is contained at page 41 - you’ve just read a portion from page 40 but you didn’t proceed with what is also stated by Mr Smiles on page 41:

That’s the first line:

PROF DE KOKER: That is correct. If you noticed, that was at the funeral:

That would have been Sipho Mbatwa.

If that is Sipho Mbatwa, that would seem to contradict the other statement by Mr Mbatwa and that is something that we’ll explore with Mr Smiles. Certainly it continues:

So it seems as if his reticence there was due to the trauma that the family went through and he was unable to tell them at that stage that he was responsible for their hurt.

MS KHAMPEPE: But then, doesn’t it say something about the statement of Mr Sipho Mbatwa - that he had already said something? You don’t know whether he said it before the funeral, is that - that would be your argument?

PROF DE KOKER: It certainly is unclear because Mr Mbatwa clearly states that on that day - and it seems as if that was directly after the incident, that he came to him and:

So that would have been on the 26th when he confessed to Mafu Dawids but then at the funeral which was some days later ...[intervention]

MS KHAMPEPE: Which is a week later, much later.

PROF DE KOKER: ...[inaudible]

MS KHAMPEPE: Yes.

PROF DE KOKER: Because the family was present.

ADV DE JAGER: Professor, I think you’ve put across what you intend to argue on this and you’ve laid the basis for the argument but really what we’re busy now, we’re arguing the case what would it be, what would the probabilities be and I think you could do that in argument. You’ve laid the basis for an argument on that foundation.

PROF DE KOKER: Thank you Mr Chairman, if we could proceed.

Major Mbatha, so you accompanied Mr Smiles to the offices of Mr Isaacs, what happened on that occasion?

MR MBATHA: Like I actually said, after I’d spoken to him he entered into the other room with Mr Rodney Isaacs and Denzil Potgieter and I was sitting on the other side of the room.

PROF DE KOKER: You testified yesterday that you told Mr Isaacs and Advocate Denzil Potgieter that you gave the command to Mr Smiles to throw the hand grenade, at what stage did you give them this information?

MR MBATHA: I cannot recall exactly - was it exactly on that particular day when I actually came in but I spoke to Mr Rodney Isaacs.

PROF DE KOKER: You testified yesterday that you told Mr Rodney Isaacs and Advocate Denzil Potgieter that you gave the command, when did you speak to Mr Isaacs and when did you speak to Advocate Denzil Potgieter?

MR MBATHA: Unfortunately they were always together.

PROF DE KOKER: So, you informed both of them, please recollect when you made this very important statement to the two legal representatives.

CHAIRPERSON: He said he cannot remember, he can’t recollect. ...[inaudible] sit here and give him time to recollect and think.

PROF DE KOKER: There seems a very important issue for everyone involved and I would have liked not to place him under pressure but to allow him some time just to recollect.

Would this have been before the statement was made by Mr Smiles?

MR MBATHA: I think it would be proper to allow me to go through it, to re-think it first.

PROF DE KOKER: Excuse me Major Mbatha, I understood you saying that you’ve read the particular statement and that that was the statement that was made by Mr Smiles on that occasion when you accompanied him to the office of Mr Isaacs.

MR MBATHA: Your are right, I said that I read the statement and I even went back and said to you - if you can recall yesterday, I had a strong feeling of uncertainty hence the argument of the building where I was, was I next to him, did I hear the words. I was very frank and honest yesterday that I really - I should have even also said yesterday: "I should be allowed to re-think exactly".

Until when I came - because when I went through those document, it’s exactly when I said it was drafted ...[indistinct] the other one because I think yesterday it became very clear that the contents of the document really, they were not to my knowledge but the one that I told you of, was that I know that I instructed him - that was the concluding part of what I said.

PROF DE KOKER: This particular statement was drafted and signed in the offices of Mr Isaacs, what happened then? When they came out of the room, what happened then?

MR MBATHA: We actually drove to one area popularly - it’s actually an entertaining centre and also a motel, that is ...[inaudible] We went there actually to a very elderly person, he’s a professional - I don’t know his name right now, it is where actually he made actually Smiles should do it under oath.

PROF DE KOKER: And after that, what happened?

MR MBATHA: I went back, Smiles also went back because now we’re preparing for the following day because I had to pick him up whilst in the office, waited until Rodney came and we proceeded over to the police station.

PROF DE KOKER: What happened at the police station?

MR MBATHA: When we actually arrived there - I think it’s the 7th floor, there is security door lock, a gentleman came out and told us exactly that they don’t need Smiles anymore - the ANC can do what it likes with him, they are proceeding with the case, that’s all.

PROF DE KOKER: Wait a bit, at this stage you were still - let’s take it step by step. You were arriving at the 7th floor, what happened then?

MR MBATHA: I said there is a security door lock, a man came out from the room where he was - it’s a door that has a fence around it, when I say it’s a security door lock it simply means only certain people might have access through it so we were standing outside. When the man came he actually answered it whilst he was standing on that other side and we were standing on the other side, we did not even went into any offices.

PROF DE KOKER: But at that stage he would not even have known what your business was, you’d just arrived at the offices. He would not even probably have known why you were there or who Mr Smiles was and you said he then simply chased you away, how is that possible?

MR MBATHA: Sir, I’m sorry to say, this arrangement as I’ve said, it’s an arrangement that is known and it is linked because we cannot just make any contact with Transvaal Road. I did mention that the whole thing was indicated is with Generals, so they have a way of communicating it down, you can’t just go there.

We went there on the basis that we are bringing Smiles because this was said - the arrangements I’ve explained it yesterday, so when we arrived there the man came out because I remember Rodney said: "We have brought Smiles now", the man said: "No, we don’t need him, the ANC can do what it likes with him", that’s all.

PROF DE KOKER: Who made the appointment with the police?

MR TSHOLANKU: Excuse me Mr Chairman, if I may interject. I’m inclined to believe that Professor de Koker is going to direct his cross-examination to events that will - solicit answers pertaining to the police. Initially it was indicated in the testimony of Mr Mbatha that nothing whatsoever was mentioned about the police except what is common cause, that Smiles was taken to the police station and he was told they don’t need him.

Now, I foresee a position where Professor de Koker will lead cross-examination that will solicit information pertaining to the police activity which are outside the scope of his testimony and his application. I’m just raising this point because we have indicated that the police are not implicated by Mr Mbatha’s testimony.

CHAIRPERSON: Professor de Koker, I understand the question is in essence to be saying: "What is the relevance of this", maybe you should tell us in fact.

PROF DE KOKER: Mr Chairman, we now have a crucial statement here, handed to us yesterday in which Mr Smiles accepted responsibility for the hand grenade attack before the two gentlemen who are now in prison were prosecuted for the offence - who were actually tried.

This is a crucial document, this document it is then said was taken to the police. On arrival with - and that is what I’m trying to discover, without apparently any other communication the team was simply chased away with the police referring to the affidavit that this team has now come to hand to the police.

CHAIRPERSON: Professor de Koker, it is common cause that Mr Smiles made a certain statement, it is common cause that statement reached the police, it’s common cause that it reached the office of the Attorney General and it is common cause that neither the police nor the Attorney General acted on the strength of that statement. What are you adding?

PROF DE KOKER: That is quite correct ...[intervention]

CHAIRPERSON: It’s not disputed that the police did not act on the basis of that statement. Is it in dispute that the statement was taken to the police, do you dispute that? Do you dispute the fact that the police did not act on the basis of that statement?

PROF DE KOKER: I am not disputing that Mr Chairman, but what I am enquiring about is the date because according to the evidence that we’ve received, this statement was drawn the previous day. The next morning - early in the morning, they went to the police. By that stage - somehow then this affidavit which they had in their possession was handed to the police, went to the level of Generals in Pretoria who negotiated it and when they came the next morning there was already an answer. We have no indication that that is on table, that the affidavit ...[intervention]

CHAIRPERSON: How does that help your client’s case? How is that relevant to your client’s case?

PROF DE KOKER: It is relevant to my client’s case because it deals with full and frank disclosure by the applicant.

CHAIRPERSON: In relation to factors which are common cause?

PROF DE KOKER: The dates on which this particular statement reached the police and when decision were made, are not common cause at this stage Mr Chairman.

CHAIRPERSON: Of what importance is it to us even if it’s not common cause, as long the main features of the issue are not - are common cause. The fact is that the statement was made by Mr Smiles and that is common cause and the police didn’t act on the basis thereof. Whether the statement was taken there on a Tuesday or Thursday or after whatever date, or what importance is it to us?

PROF DE KOKER: It is highly relevant as to Major Mbatha’s involvement in that particular statement. As you will recall ...[intervention]

CHAIRPERSON: Sorry, I’m going to interrupt you and ask you to formulate your argument properly because you are going to make your ruling on it.

ADV DE JAGER: Mr de Koker, you’ve asked the witness: "You went to the police station and there was no handing over of the document as yet", isn’t that the position? And before there was any evidence that the document was handed to the police, he testified that the police chased him away.

Now can you put it to the witness whether he - when was the document in fact handed over to the police, was it handed to the man coming to the door there - the security door or to whom was it handed over.

PROF DE KOKER: Would you like me to repeat your question or would you like it to be put to you by the Advocate himself?

ADV DE JAGER: I’ll ask the witness. You went up to the police station with Mr Isaacs and Mr Smiles, is that correct?

MR MBATHA: Yes, Sir.

ADV DE JAGER: And you had the statement with you?

MR MBATHA: Yes.

ADV DE JAGER: When did you hand the statement to the police?

MR MBATHA: When we reached the security door. The man came out, he did not take it and just said that simply: "We don’t need Smiles anymore, the ANC can do what it likes with him, we are proceeding with the case" - he went back.

ADV DE JAGER: That was even before the statement was handed to him?

MR MBATHA: I think the best person to respond on that is Rodney because I remember we went up to there up to the security door and we came back from there.

MS KHAMPEPE: Mr Mbatha, can ...[intervention]

ADV DE JAGER: Could I just ask one question? Did he read any document while standing there, before saying you should leave?

MR MBATHA: You know, the man actually just came out. When Rodney introduced to him that we have brought Mr Walter Smiles, simply straight forward said to us: "We don’t need this man anymore, the ANC can do what it likes, we are proceeding with the case, thank you" - he went back.

MS KHAMPEPE: Mr Mbatha, are you in a position to tell this Committee whether before going to the police station there had been prior discussions between the attorneys of - that’s Mr Isaacs, between Mr Isaacs and/or Mr Denzil Potgieter and the police? Are you able to give any indication in that regard?

MR MBATHA: At that stage really, no.

PROF DE KOKER: What was the reaction of Mr Isaacs and the team when they heard that?

MR MBATHA: You know only actual reaction and feelings, I could not really exactly say except the words that - I mean everybody, it was unbelievable, that’s all because we thought actually the purpose of the case was that justice should be done to it.

PROF DE KOKER: What did you discuss in the car on your way home, what was going to be your next step to remedy this injustice?

MR MBATHA: Like I’ve said initially, the co-ordination, the agreements regarding what happened on that particular day involved also the Premier of Mpumalanga at that stage, so it was for him because definitely sure Denzil and Rodney were going to communicate the message back because the whole co-ordination and the cycle of the chain was in that direction.

PROF DE KOKER: Did Mr Isaacs and Advocate Potgieter know at that stage that you gave the command?

MR MBATHA: Like I said to you yesterday - but the fact that I had to be told that I had to come to get hold of Smiles, at that stage the message was already conveyed over and because Rodney and Mr Potgieter were actually on the defence of those who were in and we actually - Smiles had to go over to them to prepare that affidavit, so it was communicated to them but I’m not sure exactly when, hence I said I had a problem with that thing.

PROF DE KOKER: But certainly at that stage when you visited the police, they knew that you gave the instructions?

MR MBATHA: I don’t refute exactly that I told them but I said the point exactly because it doesn’t - the question that you are raising now with me will end up actually leading into a point that I think, it would be proper that I should go through this thing properly.

ADV DE JAGER: The question is only this, did they know or didn’t they know that you issued the command at that stage? When they went to the police, did they know that you were the commander telling Smiles to throw the hand grenade, yes or no?

MR MBATHA: I would say yes.

MS KHAMPEPE: Mr Mbatha, you’re able to say that - I think the same question was posed to you earlier on by Professor de Koker and your response was that you couldn’t recollect exactly when they became aware that you had given a command to Mr Smiles to launch the hand grenade attack.

MR MBATHA: Hence when I recalled it, I said it started by the time when I reported the matter to the Legal Department, it went through Premier Matthew Phosa who later communicated with the police. Now the difficulty that I had, I can’t say is it a day before that, is it three minutes before but at that time, that is the part that I’m trying to avoid at this stage, but ...[intervention]

CHAIRPERSON: Now just a minute, you may not remember the date but unless I understand Professor de Koker question, it’s in relation to the sequence of events not so much the dates because the impression I get from your evidence is that you must have told Mr Isaacs and Advocate Potgieter about your involvement prior to Mr Smiles making his statement and indeed prior to you taking the statement to the police station. And following upon that I understand the question to be saying that: well then it would mean that by the time you - or at the time when you handed Mr Smiles’ statement or attempted to hand it over to the police, by that time even though you do not remember the exact date on which you would have disclosed your participation to Isaacs and Potgieter, surely they must have known about your personal involvement"? Do I understand your question correctly?

PROF DE KOKER: Quite correct, Mr Chairman.

CHAIRPERSON: If I understand your evidence correctly, you can’t have told them about your personal involvement for the first time only after you had gone to the police station to try and hand over Mr Smiles and/or the statement, surely you must have told them before then? Well, maybe you didn’t tell them, I don’t know but I would have thought in terms of your evidence the impression that I get is that you would have told them but if you didn’t tell them, say so because there may have to be some important questions flowing from that.

MR MBATHA: Well you see, what I recall is the full disclosure to the Legal Department, that one I recall very strongly.

CHAIRPERSON: Yes, but that’s a separate incident, we are not talking about that, we are taking about the making of statement by Mr Smiles in relation to your personal - to the disclosure of your personal participation, your disclosure to the same people who made or who consulted with Mr Smiles for the purpose of putting up his statement and I think these two issues are different or incidents are different.

MR MBATHA: I would really recall that I should be allowed to go through it.

CHAIRPERSON: To go through - I don’t understand when you say ...[intervention]

MR MBATHA: The exactness when actually I did inform Rodney and Mr Potgieter.

MS KHAMPEPE: Mr Mbatha, are you not able to recall an approximate whether you disclosed to the Legal Team before Mr Smiles’ statement was taken down by the attorneys or after the statement was taken down by the attorneys? Are you not able to approximate when you gave then an indication of your participation - your personal participation in the matter? Did you speak to them before this statement was taken down by the attorneys or did you only disclose to the attorneys your personal participation in this attack after this statement was taken down?

MR MBATHA: You know I think I will have to really think about it, that is a request I would like make because the atmosphere by then as I’ve said to you - after the incident there was chaos, there was no disclosure at that time, until when I communicated it up. Until that we identified that we should go over to - because attempts to get hold of Smiles at that time were very difficult, hence I referred that he actually was not comfortable with my absence. Hence, the night when I was called over to the building I was with him - I don’t deny the fact, I spoke to Smiles ...[intervention]

CHAIRPERSON: I think we are moving away from the main issue. By saying you want time to think it through, are you really saying that it is possible that at the time when Smiles made his statement to Mr Isaacs and Potgieter, you did not disclose your personal participation to them? Is there such a possibility - are you saying there is such a possibility?

MR MBATHA: Sir, it can be possible but the best thing I think, you’d have to verify it with Rodney himself.

CHAIRPERSON: Well, disclosure of your personal participation would have been to my mind, something very important and I would have thought that you would be able to remember whether you made such a disclosure before you took Mr Smiles to the police. Do you appreciate that Mr Smiles could have been locked up by the police?

MR MBATHA: Sir, at that stage it was clear - evident enough, because the idea was to take out those comrades and we were prepared to face the charge.

CHAIRPERSON: But in terms of what you are saying, I’m not so sure whether you are right in saying that - in saying: "We were prepared to take the wrap", it seems to me that - on your evidence now, it seem to me that the only person who was to take the wrap could well have been Mr Smiles only.

MR MBATHA: Sir, in responding to what you are saying - I’m sorry if I can move out, when the TRC approached me - the investigation team, I raised the question to them: "Why not approach me", their response to me was: "The way we work, we wanted him because he was regarded as the person involved in the act, we don’t deal with people - the senior people" - that is how they defined me, "we will come back later to you".

CHAIRPERSON: You see Major, what troubles me is that in Mr Smiles’ statement no mention of you is being made and in fact there is a misleading - in terms of your evidence this surely must be misleading, a misleading paragraph 7 as to where Mr Smiles would have got the hand grenade from. One would have expected that in paragraph 7, it would be stated that he got the hand grenade from you.

MR MBATHA: Sir, the best person to respond on that is Smiles.

CHAIRPERSON: That may be so but another possibility is that you did not disclose your personal participation to Mr Isaacs and Advocate Potgieter - if there was any, and also further that in fact there was a deliberate attempt to - not to disclose your personal participation, if there was any.

MR MBATHA: Sir, I actually - I did say I did make a disclosure to them but I’m not sure when. If you can recall the question came as to was it before we entered the police station, was it before you entered the building, it is where I started saying: "I think I have a problem to say exactly when".

CHAIRPERSON: But irrespective of when you disclosed your personal participation to Mr Isaacs and Advocate Potgieter, why should Mr Smiles’ statement says what it says in paragraph 7 with regard to the question as to where he got the hand grenade from? Does paragraph 7 surprise you - the contents thereof?

MR MBATHA: Sir, I think my reaction also yesterday was evident that regarding the statement, I was really puzzled in front of you.

CHAIRPERSON: Would you have been prepared also to hand yourself up to the police had they decided to take in Mr Smiles?

MR MBATHA: Sir, it was true.

CHAIRPERSON: Sorry?

MR MBATHA: It was true because the presence of Smiles there - he was just instructed and the factor is he was going to reveal that I am the one who instructed him. Whether he might not have written it there as you are saying now - because I believe the Investigation Unit has to do with a lot of research, has to do with a lot of whatever information that they can collect because if the intention of mine Sir, was not to go there, I think it was to keep Smiles away because I know I instructed him. That the fear ...[intervention]

CHAIRPERSON: Sorry, sorry to interrupt you, why did you not likewise make a statement like Mr Smiles did?

MR MBATHA: Sir, hence I said the negotiations were done actually at a senior level. Like I said actually the very similar approach strike me when actually I reached my dissatisfaction with the TRC Investigation Unit, they said to me this is how we operate and this how they have decided to approach the case. They ...[indistinct} at the HRC Hearing because I wanted to find out why was I not approached, they said to me: "This is how we deal with it".

CHAIRPERSON: I don’t think you understand the Chairperson’s question. Why did you not make a statement to Mr Isaacs about your personal participation?

MR MBATHA: Madam, I think I did indicate that when I was called overnight - when I was called to arrive at the building, I was called in because Smiles - and with arrangement which was made, he should be handed over - I was not part of the decision making.

CHAIRPERSON: Who decided that it should be Smiles to make a statement to Mr Isaacs?

MR MBATHA: I think the arrangement that at that level - if he can involve also the Premier of Mpumalanga because I think Mr Isaacs also can give testimony to that.

CHAIRPERSON: Major, I - it is one argument which is not your argument as I understand your evidence, it is one argument to say: "I disclosed my personal participation to members of the ANC but then they said no, for strategic reasons or for certain reasons we must protect you because you are too important, you shouldn’t go to prison, we must protect you and not mention your name" but that’s not what you’re saying.

One might understand that but that’s not what you’re saying, what you’re saying is that you disclosed these things to them and they were also of the view that you must also - your participation must be disclosed and they - you are not saying that they at any stage wanted to protect you. There is a very strong suggestion here which may be wrong, that you didn’t tell them about your personal participation.

MR MBATHA: Sir, if you can recall yesterday, I did actually respond to the question because the question was: "What was the reaction from them", then I said: "The position was clear, justice will have to take it’s course" - if you can just recall yesterday Sir.

CHAIRPERSON: They said justice should take it’s course - well, they were saying that with reference to the facts at their disposal, not facts held back from them. But another thing, don’t you think that if you had made your statement yourself, the police and everyone else would have been more inclined to accept Mr Smiles - to accept the version put forward by Mr Smiles?

If Mr Smiles had indicated that he got the hand grenade from you and if you had also personally made a statement for the purpose of saving those people you described as your comrades, don’t you think it would have worked better?

MR MBATHA: Sir, I actually doubt it a bit, I have a reason for it. Can I go through with my reason?

CHAIRPERSON: Yes, let’s hear.

MR MBATHA: I actually did indicate that I was under Section 29 and at that stage when I was kept there, I was actually told that there was a video cassette which was recorded at the scene - my response actually at that time was: "Then why do you waste your time continuing arresting people, proceed with the case". I even actually told it very clearly: "Then there is no need for me to answer any questions further because I think if you say there is a video camera, you have enough evidence".

ADV DE JAGER: But a video camera would surely not reflect your command?

MR MBATHA: At that stage they said it has everything.

ADV DE JAGER: But you’ve given this command not at the Trust Bank building, you’ve given it on the approach to the Trust Bank building when you handed the grenade to him.

MR MBATHA: Sir, that one I fully agree with you but I’m explaining the time when I was still inside.

ADV DE JAGER: Well, could you kindly explain something else to me then, yesterday afternoon I asked you whether you instructed Mr Smiles to tell the whole truth to Mr Isaacs and you said: "Yes" and the whole truth would have involved your command, wouldn’t it?

MR MBATHA: Yes, Sir.

ADV DE JAGER: And then I asked you whether in your presence whether he told Mr Potgieter and Mr Isaacs, can you remember that?

MR MBATHA: I remember that portion, it was exactly when you said to me if I was in that vicinity, then I should have heard what was said there and if you can remember I had a problem because I did indicate it also yesterday - the argument pursued then was: "If you were around there, then you should have heard". And when I came out I came back and said - with my recollection because it became very clear yesterday that with the statement I was a bit puzzled in front of you and I came back this morning and said: "I was on the other side of the room". The reason brought forward was, Smiles should make the statement, I am not going to put words into his mouth because apparently there is a legal procedure that it interferes with, so I must stay outside.

CHAIRPERSON: Tell me, have you ever disclosed to the police your personal participation - starting from the time when you were held in terms of Section 29, right up to the time when you took Mr Smiles to the police?

MR MBATHA: Sir, the first day actually when I came in - when the application for Section 29 was brought over to me that I had to sign, the reasons actually there were basically the head of the DLB’s that were in my possession - they wanted to know where those arms are. I stood up very clearly Sir and told them, the issues of DLB’s is not a secret at this stage but it is a question of when they become exposed to you, then you can act on them. They said to me I should know one thing for sure about the incident, they have a video cassette.

It was at that stage Sir, when I told them: "I am not prepared to enter into any redundancy with you as from now on, you prosecute me, you proceed with the case and you are not going to keep me just sitting inside here because you have the video cassette". It was at that stage where I actually even entered into hunger strike because I told them: "You have the cassette so don’t waste my time".

CHAIRPERSON: Major, you must understand that when we ask questions we do so with a purpose and the purpose of asking a question is to get an answer and please try to keep to the question and just answer the question as it comes. I asked you whether you ever told - admitted to the police that you gave instructions or orders to Mr Smiles, to throw that hand grenade on that day and also that Mr Smiles got the hand grenade from you - whether you did tell them all that.

MR MBATHA: Sir, ...[intervention]

CHAIRPERSON: Please don’t answer in an ambiguous way.

MR MBATHA: Sir, in those exact words no, because the question was not posed like that to me.

CHAIRPERSON: But you - at a stage when you - after you had talked with Mr Smiles and told him and convinced him that it would not be fair for those comrades to be in jail while we are the responsible people, you should have volunteered isn’t it - that information to police, whether they had asked for it or not.

MR MBATHA: Is it at the time when I was still in?

CHAIRPERSON: At any time, even after you came out.

MR MBATHA: Sir, like I said, even the decision that I should go and talk to Smiles, I have indicated to you he was scared to accept it. We had to sit down, we had to talk about it - that we can’t hide this thing further.

CHAIRPERSON: I have no problems with Mr Smiles, he admitted his participation at some stage, I’m asking about you, whether you did tell the police - why didn’t you go to the police and tell them about your personal participation? Let’s leave Mr Smiles aside for a while.

MR MBATHA: I think if the arrangement was also made in that fashion that I should go over, at that Sir, I would not have actually refused.

CHAIRPERSON: I’m saying why did you not go there on your own?

MR MBATHA: Sir, unfortunately at that stage - like I’ve just explained, the arrangement that we should go there came after that one had to sit down and talk to Smiles, hence the arrangement was said that we should go to them. I just felt that by going on my own after they had decided that there is evidence coming up on my side.

CHAIRPERSON: Major, I think this is what this case is all about, I must tell you that there are only two possibly explanations as to why you never went to the police and made a statement about your personal participation and the like. Firstly - and this is how I think - I would like to think that this is the point people who are opposing the application are making, firstly you didn’t do so simply because you were not involved at all, you were never involved in this incident.

The other possibility is that you are involved - if you are involved, you shied away from accepting full responsibility for it and that it is not true that you were at all time or at any time willing to go to prison for it. As I see things, these are really the only two possible explanations. Now which one is this one or do you have some other explanation as to why - if you were involved, why you did not come forward and say I’m prepared together with Mr Smiles - you take him along by his hand and say: "Well, let’s go"?

MR MBATHA: Sir, I think I did indicate yesterday - after the setback of the incident, did indicate the state of shock, the irregrettable loss. I did indicate that I did not actually even communicate the information over. Up until at a time when we conveyed the message over to the Legal Department, the main reason for that was basically because of the consequences like I’ve said, the objective was not reached and one really regretted of the incident what happened after.

CHAIRPERSON: Professor de Koker, we interrupted - personally I did so because I felt that we should get to the heart of the matter. And shall we please just concentrate on important aspects of this case which are obviously problematic and perhaps not so problematic to other people and proceed please.

PROF DE KOKER: Thank you Mr Chairman. The 1993 statement by Mr Smiles under oath contained paragraph 7 referred to by the Chairperson. In paragraph 7 Mr Smiles said:

Is that statement correct?

MR MBATHA: Sir, it is incorrect.

PROF DE KOKER: It is incorrect, so Mr Smiles lied under oath in this affidavit?

MR MBATHA: Sir, like I’ve said, it is incorrect.

PROF DE KOKER: Therefore Mr Smiles lied under oath in this affidavit.

CHAIRPERSON: I think we will decide whether Mr Smiles lied, it is sufficient if the witness says it is incorrect.

PROF DE KOKER: Thank you Mr Chairperson, I accept that, that the statement therefore under oath is incorrect. On 14 August another statement was made, this - to draw the attention of the Committee, is on page 51, volume 2 of the documentation. If I may ask the indulgence of the Committee, I just want to get hold of a specific statement. I beg the pardon of the Committee, this specific statement I wanted to refer to is on page 11, made by Mr Smiles and contained in the documentation of the TRC.

MS KHAMPEPE: Professor de Koker, didn’t Mr Smiles disown that statement - if you refer to page 51?

PROF DE KOKER: That is quite correct, he did and I would also like to hear Mr Mbatha’s comments on those particular statements contained.

MS KHAMPEPE: Would it be fair to request Mr Mbatha to respond to a statement that Mr Smiles had already disowned?

PROF DE KOKER: Unfortunately there seems to be statements in every one of the statements made by Mr Smiles from 1993 to date, which seems to be questionable. We will discuss those matters with Mr Smiles, if permitted by the Committee but I would also like Major Mbatha’s comments on those statements. Major Mbatha also indicated yesterday that there were several of the statements made by Mr Smiles which he regards as being incorrect.

MS KHAMPEPE: Proceed.

PROF DE KOKER: Thank you very much. According to this statement Mr Smiles said:

I’m going to skip one paragraph.

It’s a further paragraph.

According to this statement therefore, you requested Mr Smiles to volunteer - he was never involved?

MR MBATHA: Sir, the best person to respond to that statement is still Smiles.

PROF DE KOKER: I agree and I will ask him to respond to that if I’m allowed to do so but I ask you to respond to it. In this declaration signed by Mr Smiles, he make a particular allegation and that is that he had nothing to do with it but his involvement was only based on a request from your side to volunteer as the person who did this and that he would receive money for doing so - that he was innocent.

MR MBATHA: Sir, the full disclosure yesterday regarding Smiles to what I’ve said - I don’t want to relate it to the statement, he’s the best person to respond to.

PROF DE KOKER: And if I will ask him if allowed to do so, to respond but I’m asking you now Major Mbatha, because he makes - he made a very particular allegation against you that you paid him to volunteer that he did something which he never did.

ADV DE JAGER: He didn’t say he paid him, he spoke about money.

PROF DE KOKER: He spoke about money - I stand corrected, thank you very much.

MR MBATHA: Yesterday Sir, I spoke of instructions and I think you called me that I should define them exactly what do they mean. I did explain to you they had to do with his involvement up to the time when he executed what I told him to do but with this statement - I’m repeating it again, it is very clear to you to what I’ve said yesterday, that he’s the best person to respond to it.

PROF DE KOKER: I’ve given you three opportunities to respond to this specific statement, if you are not going to reject these specific statements as incorrect, then I will feel justified to accept that you accept that his statements must be incorrect.

MR TSHOLANKU: Mr Chairman, three opportunities have been given to Mr Mbatha to respond to the particular question and he’s given us one answer three times, now I don’t know what Professor de Koker wants more from him.

PROF DE KOKER: Mr Chairman, I would like ...[intervention]

ADV DE JAGER: But in not one of the answers he denied that this happened and that’s what I think Professor de Koker is asking him to do, either admit or deny it.

MR TSHOLANKU: Mr Commissioner, he says - my understanding of his response is that when you compare this statement and what he said yesterday pertaining to instructions that he gave Mr Smiles, Mr Smiles would be the best person to respond to the content of this particular statement. Impliedly so he disassociates himself with this statement.

CHAIRPERSON: Yes, I think we’re just going through the question of routine, Professor de Koker wants to take us through this as a matter of routine. Clearly there is no major point to be made out of this but I think you know, it may look something insignificant but when you say to a - you read the statement to this witness and you say: "Can I get your comment on that", it not the same thing to some witnesses as saying to him: "Is this true or not". Three times you read this statement to him and three times you said to him: "I want to get your comment on that". Well to me I would understand that what you mean, you are saying to me: "Is this correct or incorrect" and to him it may not mean that. To him you really inviting a comment and he comes with a long comment on that statement. Maybe if you want to say: "Do you agree or do you not agree", maybe if you put it that way you’ll get what you want.

PROF DE KOKER: Thank you Mr Chairman, I will follow your suggestion.

Mr Mbatha, is this statement correct - made in that declaration by Mr Smiles under his signature or is it incorrect.

MR MBATHA: Sir, incorrect.

PROF DE KOKER: Therefore the statement is false as was the statement contained in the affidavit in 1993 - according to you, is incorrect. If the statement, the 1993 statement was incorrect, was it surprising that no-one accepted it as being correct - that no-one accepted Mr Smiles’ affidavit and his acceptance of responsibility? if in his affidavit ...[intervention]

CHAIRPERSON: No, you can’t put that question to this witness, those people were not in possession of the statement on page 11.

PROF DE KOKER: Excuse me Mr Chairman.

CHAIRPERSON: The people who did not believe Mr Mbatha - the truth of Mr Smiles’ statement in 1993, did not disbelieve him because as a result of the contents of page 11 which you’ve just read. They were not in possession of this statement on page 11.

PROF DE KOKER: Quite correct Mr Chairman, I ...[intervention]

CHAIRPERSON: So, you can’t link the disbelief of Mr Smiles’ statement in 1993 with the contents of page 11.

PROF DE KOKER: That is quite correct Mr Chairman, I’m not trying to link it, there were two separate statements made by Mr Smiles, each containing apparently incorrect information. We would like to hear more from Mr Smiles on those affidavits. The question I posed specifically was in respect of only the 1993 statement, the one that was not accepted by the Attorney General and by the police. This was the statement which contained paragraph 7, which he also pointed out and which was acknowledged to be incorrect by ...[intervention]

CHAIRPERSON: Then rephrase your questions but don’t make reference to page 11, don’t say: "If Mr Mbatha told the truth with regard to the question of being paid money". Are you surprised that in 1993, 4 years ago - 4 years earlier, people did believe you - you can’t link the two.

PROF DE KOKER: Quite correct Mr Chairman, and I was not attempting to link it, if that came over as linking them, I ask the pardon of the Committee. I proceed only the basis of the 1993 statement, the statement that was so - according to evidence, so harshly rejected by the police but which is now acknowledged to be a statement containing incorrect information.

Was it surprising in the light of the fact that this statement was not correct, that it was rejected by the police and by the prosecutors - yes or no?

MR MBATHA: The statement was not read to me.

CHAIRPERSON: I really don’t think he can answer that question, what you are saying is with retrospect. In essence that is your question because they didn’t even know that paragraph 7 was incorrect, did they?

PROF DE KOKER: Major Mbatha would have known about it at that stage and ...[intervention]

CHAIRPERSON: We are talking about the people who did not believe Mr Smiles.

PROF DE KOKER: That is correct, but what I’m asking Major Mbatha - if I may rephrase that, was whether it was personally a surprise to him that this statement containing incorrect information was rejected.

MS KHAMPEPE: He has also responded that he didn’t know the contents of paragraph 7.

PROF DE KOKER: That is quite correct, and I would like to return in summary to those statements by Major Mbatha on which he was also exhaustively questioned by the Committee. If the Committee feels that I should address this in argument, I will do so.

Major Mbatha, we are still trying to go through the sequence of events, what we have reached at this stage was the point where this statement was rejected by the police. At that stage the people were going on - were being tried for these specific offences, clearly the situation was becoming very serious - they were being charged with murder. This statement was rejected by the police, what did you do then to save innocent people from being prosecuted?

MR MBATHA: Sir, like I said to you, the day when we went to the police station - Transvaal Road, the man confidently said it - they are proceeding with the case, they don’t need Smiles.

CHAIRPERSON: The question is, thereafter what did you do to save your comrades?

MR MBATHA: At that stage - when I recall very well, the next attempt was to appeal the case - that is through Mr Rodney Isaacs and Denzil Potgieter.

PROF DE KOKER: They were still being tried at that stage, they were still in court, you could have appeared on their behalf, you could have given evidence, you could have gone to the police yourself and gave statements to save your comrades. Which of these steps did you take?

MR MBATHA: Sir, the one that I’ve indicated - clearly outlined to you, was the fact that I should go over to Smiles and say to Smiles he must tell the truth. Going over to court as I’ve said, if I was called in by the Legal Defence team - if they would have called me in of which they didn’t, in terms of the statement also like I’ve said to you Smiles had to write a statement - this is what I’ve said.

CHAIRPERSON: Professor de Koker, for the first time I’m going to ask you to give me permission to prescribe to you which questions to ask the witness. Can you ask this witness - ask him, can we then accept that you didn’t do anything?

PROF DE KOKER: Mr Chairman, I accept the prescription with gratitude.

Major Mbatha, can we then put it to you that you did nothing to save your comrades?

MR MBATHA: Incorrect, Sir.

PROF DE KOKER: What then did you do Major Mbatha?

MR MBATHA: It is unfortunate Sir, we cannot reverse back to that situation. I would have said attempt - that you should go and speak to Smiles, you will never could have ...[indistinct] nearer to you. Unfortunately we can’t go back to that time, the only way that Smiles could go there - I had to go to him, I had to talk to him.

PROF DE KOKER: The police rejected the affidavit by Mr Smiles which contained this incorrect information, clearly the Smiles avenue alone was then closed. What did you do then in addition while your comrades were being tried for murder, what did you do to save them?

MR MBATHA: Sir, to say that it was closed, it would be very incorrect for me except that the channel of communication like I’ve indicated was involving somebody very senior above and in an incident of that nature one expected that the matter should be reported back. The report back - the carrying of that statement as I’ve said, that was Rodney Isaacs.

PROF DE KOKER: What did you do yourself or did you only leave it up to Mr Rodney Isaacs and other people to do something about it? You gave the instruction, you were the commander, you were the person who were prepared to interpret your mandate so wide as to perpetrate acts of violence without being instructed to it. What did you do as commander to save your comrades?

MR MBATHA: By fact that I’ve said I’ve made a disclosure to the Legal Department - a senior body, it was clear that I was subjecting to what they were saying from them.

PROF DE KOKER: So apart from leaving it in their hands and entrusting the matter to them to handle, you the person who gave the instructions took no further steps?

MR MBATHA: Sir, hence I subjected myself to them. The matter was already on the pipeline, the liberation’s of the case were already on. Hence I’m saying the Legal Department that with their best knowledge regarding the matter, they are the ones exactly to come up with a position from there.

PROF DE KOKER: What did you do when your two comrades who were then innocent according to your evidence, were found guilty? Which steps did you take then?

MR MBATHA: My subjection at this stage by disclosing that information by going over to Smiles, the ...[indistinct] actually came as a surprise. Like I said I knew that what was taking place was not true because besides that once I’ve conveyed the message over I’m subjected to them.

ADV DE JAGER: Mr Mbatha, I think the answer is clear, you did nothing because according to you you’ve reported it to your seniors and then you did nothing about it, isn’t that so?

MR MBATHA: Sir, if somebody says that at a senior level there are negotiations, it simply means that I will have to ...[intervention]

ADV DE JAGER: No, but I’m asking to interpret your answer and not to give a whole history about it. You did nothing about it except to report it to your seniors - that was the only thing you did, isn’t that so? And then you left it to them to decide what should be done.

MR MBATHA: Sir, there you are correct.

ADV DE JAGER: Yes, now why can’t you give a straightforward answer?

MR MBATHA: Sir, if you imply that a person has done nothing it goes back to the question as if all along I’ve played no role and I’ve distanced myself from the thing.

PROF DE KOKER: Major Mbatha, that is the impression which your answers create because apart from internal communications to the Legal Department, you did not report this to your senior command, you did not report this to the ANC leadership in the Northern Cape.

There’s some illusive statements made yesterday of a report that you made to an unnamed representative from headquarters on a day which you can’t recall, and that is all the evidence that we have that you yourself reported your involvement to the organisation. Do you have any proof that you can offer this Committee to prove your statement?

MR MBATHA: Sir, like I said yesterday, I remember when you referred to Mr Molefi when I said to you: "Mr Molefi came, I was not there", I had to be reminded yesterday that Mr Molefi - that is contrary to the source that you claim that you had, came to Kimberly for Operation Barcelona because he had to mediate between that problem, between COSAS and the Youth League - nothing about the grenade. And then I said to you: "Somebody came, I cannot recall exactly is it Thabo because the matter at that time was subjected to investigations".

PROF DE KOKER: Major Mbatha, we will return to Mr Molefi’s visit to Kimberley and my sources. What happened after the people - your comrades were then innocently imprisoned, what did you do to get them out of prison? Did you maintain contact with them?

MR MBATHA: Yes.

PROF DE KOKER: Did you visit them prison?

MR MBATHA: Yes.

PROF DE KOKER: Did you give advice to them in prison?

MR MBATHA: I was actually informing them about the developments. From the time when we attempted to take Smiles, I also went to them to inform them that finally Smiles is going in. It became so unfortunate, the statement that I uttered to them was: "You are coming out" because the agreement by then that we knew Smiles will be handed over, then investigations will continue - they will be released.

Up to the time of the appeal at that early stage because through Mr Isaacs there was an attempt that the case will be appealed because of this fresh evidence and new evidence that did come up and I was always keeping them informed about those developments.

PROF DE KOKER: Appeal was allowed but the appeal was apparently never pursued, why not?

MR MBATHA: Mr Isaacs actually might respond to that.

PROF DE KOKER: Did you ever give any advice to your comrades who were in prison after they were found guilty?

MR TSHOLANKU: Mr Chairman, advice pertaining to what?

PROF DE KOKER: Advice pertaining to their particular case and to the pursuit of other legal remedies.

Did you ever give them such advice on the steps that they should take to get out or prison - the legal remedies that are at their disposal?

MR MBATHA: Sir, can you just clarify the question for me?

PROF DE KOKER: Did you advise them or perhaps the easiest would be - could I draw the attention of the Committee to page 49 of bundle 2 containing a report of the Investigation Unit by investigators K Chirstensen and Zuku Komagu, the 4th paragraph of the statement:

Is that correct, did you give them that advice?

MR MBATHA: Sir, the statement is incorrect, what I can tell you that thing of the parole was pursued at the level of the Secretary’s office, I didn’t have the capacity to advise them to undertake something of that nature.

PROF DE KOKER: If we may also proceed to the following sentence:

That was the basis for their advice according to the report of the Investigation Unit, is that correct?

MR MBATHA: Sir, can you just repeat it again?

PROF DE KOKER: I’ll repeat the whole paragraph because I realise you probably don’t have it in front of you.

And the "them" is Mr Sipho Mbatwa and Mr Nkozinati Nkotla.

That is the report of the Investigation Unit.

MR MBATHA: Sir, the issue that the TRC has dumped them, up to so far I must say it doesn’t make sense to me at all.

CHAIRPERSON: I think leave it there, it doesn’t make sense - full stop please. Yes, next question Mr de Koker?

PROF DE KOKER: And the statement that Smiles was discredited?

MR MBATHA: Sir, by whom?

PROF DE KOKER: I’ve no idea. Did you give - did you ever tell Mr Mbatwa that they should rather wait for parole and they should not have their case reviewed, that the TRC had dumped them and that Mr Smiles was discredited? Have you ever told that to Mr Mbatwa because that is what he related to the Investigation Unit of the TRC?

MR MBATHA: Sir, that statement is incorrect.

PROF DE KOKER: So, a further incorrect statement according to you, made by Mr Mbatwa.

CHAIRPERSON: No, no, no, it has not been made by Mr Mbatwa, it was made by the Investigating person.

PROF DE KOKER: That is correct, the investigator who interviewed Mr Mbatwa, and if there is any concern about the correctness of the statement, we may perhaps call the person Mr Zuku Komagu who compiled this report - if there’s uncertainty in the minds of the Committee, that would probably ...[intervention]

CHAIRPERSON: About what?

PROF DE KOKER: About the correctness of the statement which relates a statement made by Mr Mbatwa.

CHAIRPERSON: Are you saying about the truth of the statement?

PROF DE KOKER: About the truth of the statement, correct.

CHAIRPERSON: No, it’s not our - we are not going to worry ourselves about the truthfulness of what that investigator is saying. I mean, do you see the chain - what is in front of us is something which was said by somebody who was supposed to have been told by some other person.

PROF DE KOKER: Quite correct Mr Chairman, but it also shows that Major Mbatha was involved from start till this particular day.

CHAIRPERSON: Why did you accept the truth of this statement?

PROF DE KOKER: Provided the truth of the statement is accepted and ...[intervention]

CHAIRPERSON: And which comes through to us through a long chain. Mbatwa is reported by the investigating officer to have said that the Major said this and that and that, how can we really accept that?

Mr Mpshe, I’m surprised that the - I’m just speaking for myself, that there’s a tendency to bring into the documents - at times I get the impression that attempts are being made by the leaders of evidence to - and I hope I’m wrong about it, to try and establish the truth of certain facts by putting in reports by investigators, which investigators by the nature of things are never called as witnesses.

My impression initially was that the investigators were doing some investigations for the Amnesty Committee and filing reports as an internal memorandum and it would be unfortunate if such reports - attempts were to be made to use those reports to discredit witnesses, either by the leader of evidence or any other person. And if that - if you people want to do that you’ll have to do it properly, you must then make sure that the people who compiled reports attend the hearings so that they can be at the disposal of anybody who wants to call them as witnesses.

But I find the whole thing to be quite a suppressing thing and I never thought at the beginning that such reports were meant to be parts of the court documents except that it was to be a report to the Committee to tell us whether they found a witness at home or whether they were not there and the like but it’s creating problems when attempts are being made to try and tender them as proof of anything without bringing those people as witnesses. Shall we adjourn for - until half past three.

LAURENS MBATHA: (s.u.o.)

CHAIRPERSON: Professor de Koker, you are representing a victim, I think - you were given yesterday afternoon and a good part of this morning as well, we hope that we will now move towards the end of your cross-examination.

CROSS-EXAMINATION BY PROF DE KOKER: (cont)

Thank you Mr Chairperson. Major Mbatha, why did you not give evidence at the HRV hearings held in Kimberley in 1996?

MR MBATHA: The question that I posed to the investigators - I was not confronted, they did not come over to me, hence as a result Smiles came because they went to him and during that time I was still busy in the Province at the command.

PROF DE KOKER: So the Investigative Unit never alerted you as to the investigation and their specific hearings?

MS KHAMPEPE: Professor de Koker, are you alleging that people who gave evidence before the Human Rights Violations Committee did so because of the investigations which were being conducted by the Investigative Unit of the TRC?

PROF DE KOKER: That is what I deduct from the answer given by Major Mbatha, that that was the reason why he did not testify because he was not approached.

MS KHAMPEPE: But you are aware that you only go to the Human Rights Violations Committee if you have applied to be declared a victim and that’s why you go and appear and give evidence, in order for that Committee to be able to ascertain whether you can be declared a victim or not. And that’s the reason why people who appeared before that Committee went in and gave evidence.

PROF DE KOKER: At that - at the hearings in Kimberley last year, Mr Mbatwa, Mr Nkotla and Mr Smiles testified. I would then like to clarify the matter, did they testify as victims?

MS KHAMPEPE: If I read the bundle they testified as victims and as I read Volume 2, Mr Smiles was requested by either Mr Mbatwa or Mr Nkotla to come and testify on their behalf.

PROF DE KOKER: And then none of the three people involved called Major Mbatha to testify on their behalf, is that correct?

MS KHAMPEPE: I can’t make that deduction, all I can say is that he is not amongst the people who testified before the Human Rights Violations Committee.

PROF DE KOKER: Thank you very much and I’m being led by your experience with the workings of the TRC, thank you for the information.

Major Mbatha, so neither the unit not any of the other people involved - your two comrades in prison and Mr Smiles, asked you to appear together with them at the hearings in Kimberley?

MR MBATHA: No.

PROF DE KOKER: Major Mbatha, after the indication given by the Chairperson, I would like to proceed to the victims of the attack.

ADV DE JAGER: ...[inaudible] ask you one question. You realise that Mr Smiles was at one stage prepared to meet the family of the deceased?

MR MBATHA: Sir, the arrangement was not actually in that manner and I think it would be proper that Mr Smiles should explain to you what happened that time.

ADV DE JAGER: Okay, and did you in fact pick Mr Smiles up early that morning and told him that he should go later and not at that stage?

MR MBATHA: It’s not a question of that he should go later, when I contacted his unit I was told that Smiles was on AWOL, that is Absent Without Official Leave. I went to his place, when I asked Smiles: "Smiles, what are you doing here, why are you not at work"?, Smiles said that: "I was called by a lady by the name" - I’m not sure is it Lena, "because of there is a gathering". "Smiles, who is Lena"? "I don’t know who she is"

And I said to Smiles: "If that person wants you they know where you work because they must go and report because you are working under a person that is very senior, hence now you have been declared a person absent without official leave of which you will be charged" and I took him back to his unit, that is the honest truth.

PROF DE KOKER: Mr Chairman. Major Mbatha, when you planned the attack, who did you plan to be injured or killed in the attack?

MR MBATHA: I said yesterday, the grenade should be thrown into the building with the intention of killing nobody.

PROF DE KOKER: Major Mbatha, we heard that evidence from you. You gave that instruction how - to Mr Smiles, what did you do to ensure that your instruction will not lead to injury or loss of life?

MR MBATHA: If it was not because of the security guy who came up - to ensure that part as part of my instruction I gave was: "When the people move away" - that was part of my instruction.

PROF DE KOKER: But what about the people who were standing in the foyer of the building?

MR MBATHA: Normally when the marchers move away, it is at the time that those people have moved.

PROF DE KOKER: Major Mbatha, this attack took place in the middle of the day round about 1 o’clock when everyone in the building were leaving their offices, it was to be expected that there would be people in the office - other people not necessarily connected to the ANC but innocent people leaving their offices. What did you do to ensure their safety?

MR MBATHA: As I said my intention and the aim and the fact that when the people move away there were no people there.

PROF DE KOKER: Major Mbatha, how could you have foreseen that there would be no people in the fairly sizeable foyer of this building? Furthermore, this foyer was glass clad, it was surrounded by shops with glass fronts which opened up into the foyer. A hand grenade which would have exploded in the foyer, would have reeked even greater havoc. What did you do to ensure that there was no loss of life if as you said you intended that no-one should be hurt?

MR MBATHA: I stick actually to my instructions, this is what I said.

PROF DE KOKER: Your instructions according to what you said, was only: "Throw the hand grenade after the marchers have moved away" but what about the people in the foyer themselves, what did you do to ensure their safety or were they the people that you planned on being hurt and killed?

MR MBATHA: The instruction was issued out and Smiles himself knew that instruction was with the intention to kill nobody.

PROF DE KOKER: We asked you particularly and in detail yesterday, what your instructions to Mr Smiles entailed - the instruction which you gave was that the hand grenade should be thrown after the marchers had moved away, what about the people in the foyer?

MR MBATHA: At that time because of the protesters who were standing in front, there were no people around the area except the protesters.

PROF DE KOKER: Evidence was led during the trial that at that stage there was between 10 and 15 people in the immediate vicinity in the building - and that is Volume 4, page 316, paragraphs 10 to 30. How could you have foreseen when you gave the instruction that the foyer at 1 o’clock in the afternoon would be empty?

MR MBATHA: The point where he was supposed to have thrown it - as I’ve indicated, it was the area where I knew there were no people.

PROF DE KOKER: Major Mbatha, that area was surrounded by glass fronts - you indicated yesterday that you are well trained, what happens if a hand grenade is thrown into a small enclosure enclosed by glass?

MR MBATHA: The type of glass that is there and in a small enclosure, the concentration becomes limited.

PROF DE KOKER: I put it to you Major Mbatha, in a small enclosure the concentration and the effect of a hand grenade does not become less, it increases.

MR MBATHA: What I’m trying to say is, the danger zone area than in an open field expands to about 200 metres but in an incident of that nature - because of the areas that you refer to, it is contained, it is smaller. I’m not referring to the impact, the point of impact is something else.

PROF DE KOKER: Major Mbatha, I put it to you that that foyer was a death trap for anyone standing there and any innocent shoppers in any of the surrounding shops.

MR MBATHA: Well, it actually fell where the deceased stood - that thing only cracked because of the nature of that glass.

ADV DE JAGER: Wasn’t it because it was outside in the open?

MR MBATHA: Sir, it actually fell exactly into the corner.

ADV DE JAGER: You being a person trained I suppose, would know that in a small cubicle - exploding a hand grenade there, would cause a much greater explosion that exploding it in the open veld?

MR MBATHA: Will you just repeat it again for me?

ADV DE JAGER: If you would throw a hand grenade in a small chamber - glass chamber, it would cause a greater explosion, a greater impact than throwing it out in the open field because of the concentration of air in that - and the air can’t move out.

MR MBATHA: Say it is true.

MS KHAMPEPE: Mr Mbatha, did you know whether there would be persons in the foyer in that building?

MR MBATHA: Madam, no. I actually regarded it as the Bop Consulate offices inside.

MS KHAMPEPE: That being so, didn’t you foresee the possibility of there being private persons in the building, particularly at the point where you intended the grenade to explode?

MR MBATHA: Honestly Madam, no.

PROF DE KOKER: Please describe this building to us Major Mbatha, how many storeys does this building have?

ADV DE JAGER: Mr de Koker, I think - I don’t want to curb in your - you’re appearing for a victim so I don’t want to curb your cross-examination but I think it’s clear that a hand grenade was thrown at the building, we know that it’s a dangerous weapon that’s being used. As it happened one was person was killed in the outside even so I think as far as that is concerned - and he’s applying for amnesty for the murder of that one, so as far as the case before the Committee is concerned, he’s applying for amnesty - am I correct, for the murder of a person caused by this explosion.

It may have been that there could have been 20 people killed - even the people outside, there could have been more of them killed and injured. And he’s applying also for amnesty for the attack on Ms Nel, so as far as that is concerned I don’t think we would advance the application or discredit the application one way or the other whether one person was killed or whether 20 could have been killed. The fact is there was a murder and for that amnesty is being asked, so I think you could accept that the Committee would regard it as a murder for which amnesty has been asked for and an assault or injury to people for which amnesty is being asked for.

PROF DE KOKER: Thank you Commissioner, I’m pursuing this particular line of cross-examination, I will leave it if that is indicated by the Committee but ...[intervention]

CHAIRPERSON: Before you leave it, where was Ms Nel when she was injured?

PROF DE KOKER: She was standing right in front of the building, close to the corner where the hand grenade landed and within about a metre from the sliding door through which this hand grenade was supposed to have passed, so if it didn’t fall in the corner right behind her outside the building, it would have fallen behind her inside the building.

CHAIRPERSON: She was not part of the march?

PROF DE KOKER: She was the representative of the National Peace Secretariat in Kimberley, she was assisting Mr Adriano Cassandra who was the United Nations Observer. She was acting on behalf of the Secretariat as an observer and they were both in conjunction with observers from lawyers from Human Rights and the Council of Churches, they were observing the observance by the participating organisations to the National Peace Accord.

CHAIRPERSON: Well, I don’t know the area where this thing happened but I ask this question because if Ms Nel was where you suggest innocent people could have been hurt in the building, it may very well be that you could be entitled to put that kind of question that you have been putting to the witness.

PROF DE KOKER: Thank you Chairperson, I’m also putting the question because this has to do with the motive behind the attack. According to Major Mbatha, only the building was targeted, no people should have been killed but he took no steps to prevent people from being injured, in fact the attack took place in the middle of the day basically during lunch hour and yet he says that he anticipated no-one should be killed.

He anticipated and unfortunately - this was a very unfortunate circumstance because it should have fallen in the foyer where it would have exploded without any repercussion, simply slight damage ...[indistinct] simply damage to the building. I’m trying to show that there were people inside the foyer too, that was to have been expected by Major Mbatha and that was probably intended by Major Mbatha when he planned the attack.

The only unfortunate incident was probably that the attack resulted in the injury and death of ANC members who participated in the march and not in the death and injury of people who were inside the foyer, shoppers in the shops around, employees and the clients of the bank which was also apparently on the same level.

ADV DE JAGER: Well Mr de Koker, I think he should have foreseen that other people could have been killed but that - I don’t think that would affect his application for amnesty. He should have foreseen that even some of his own people could have been killed as in fact happened and that was the basis on which I think the others were found guilty or he could have been found guilty. So, as far as the fact is concerned that a murder of an offence was committed, I don’t think we - it would be of any assistance to us to pursue that further because we accept it.

PROF DE KOKER: Chairperson, if that is accepted by the Committee that death and injury was foreseen and actually planned as part of the attack irrespective of ...[intervention]

ADV DE JAGER: Or at least should have been foreseen.

PROF DE KOKER: Should have and by way of ...[indistinct] it was therefore foreseen and intended, I will leave this line of cross-examination and return to it only in argument.

ADV DE JAGER: ...[inaudible] speak on behalf of myself, not on behalf of the Committee because I don’t know whether they would agree with me on that point or not.

PROF DE KOKER: If that is accepted, we can probably save time and I’ll leave this line of questioning.

MS KHAMPEPE: I think Professor de Koker, you have already made your mark. I personally have taken note of what you have taken out of Mr Mbatha’s responses.

PROF DE KOKER: Thank you very much. With that indication then Chairperson, I will proceed to another issue dealing with the victims.

Can you name specific people in the leadership structure of the ANC who were injured in this attack?

MR MBATHA: It was the Secretary of the ANC William Steenkamp, it is the present Secretary of the ANC John Block, it is the Chairperson of the Civics Patrick Vernon, we only know him by the name of comrade P and most of them at this stage, really I can’t recall them.

PROF DE KOKER: Thank you very much, that is sufficient. If we may then see to your specific application for amnesty, the specific application form page 3:

Indicating that people were injured and killed and then the question proceeds:

What about the other 42 victims and specifically the people that you’ve mentioned now, why didn’t you mention their names in your application?

MR MBATHA: That document was actually prepared by Mr Isaacs office in relation with the TRC and the name Izekial was because of the deceased and Jean Nel, the explanation given was the critical nature of it but the TRC is in possession of the list.

PROF DE KOKER: But you did not furnish them with particulars in the statement that you signed, why not?

MR MBATHA: These are the names because I was told that the list was there and it was prepared and only because of Jean Nel, it was a very critical matter - and the deceased.

PROF DE KOKER: Mr Adriano Cassandra was also very seriously injured, as I said he sustained a limp because of that, he spent quite some time in hospital in Kimberley and that would also have been well known. If I may put it to you Major Mbatha, my problem is the following: this hearing would have taken place in March in Bloemfontein. In March in Bloemfontein, the hearing had to be postponed because the TRC only informed two victims, Jean Nel and the family of Mr Izekial Mokone - those were the only two victims mentioned in the application.

When it was put to the TRC then that there were more victims, it came as a surprise that led the unfortunate fact that the matter had to be postponed, had to be dragged out even longer with - as you allege, innocent people spending even more time in jail.

MR MBATHA: To my knowledge the postponement - that even myself, we were told a day before the TRC. And in terms of those people there I think the best person to respond to it would be Rodney Isaacs because on that particular day we only learnt it after that we were supposed to have been at the TRC.

PROF DE KOKER: But you signed the application with this information, which means that you accept responsibility for the information being correct and comprehensive.

MR MBATHA: The explanation given was that: "We are in possession of the list" - I only mentioned the two like I’ve said, it’s the deceased and the critical one and further than that point I think that Mr Isaacs can further explain on that point.

MS KHAMPEPE: Is Mr Isaacs still your attorney?

MR MBATHA: No, by that time actually he was preparing the TRC document for us.

MS KHAMPEPE: And at the time of the preparation of this document, did you furnish him with a list of names of all the victims that you knew to have been affected by this incident?

MR MBATHA: Mr Isaacs knew Madam.

MS KHAMPEPE: Did you furnish him with that information or did you simply assume that he knew about a list?

MR MBATHA: I did not even furnish him those two names, he knew of the names because Mr Isaacs was closely working with the Secretary of the office at that time.

MS KHAMPEPE: Did you personally furnish Mr Isaacs with a list of victims?

MR MBATHA: No.

PROF DE KOKER: How was the application drawn up, did you furnish this statement to Mr Isaacs? That is the statement accompanying your application, I have it indicated as on page 8 "The Kimberly Blast Incident", did you furnish that statement to Mr Isaacs?

MR MBATHA: Yes.

PROF DE KOKER: When did you furnish him with that statement?

MR MBATHA: I have a problem with the exact date but it was immediately after the TRC - the HRC hearing and they were still searching at that time for the forms - amnesty forms.

PROF DE KOKER: Did you request Mr Isaacs to complete a form on your behalf?

MR MBATHA: From my statement it was typed and when I came in I went through the statement and I signed it.

PROF DE KOKER: But did you approach him and say you’ve heard about the TRC, you want to apply for amnesty and he must complete the application form for you?

MR MBATHA: The arrangement of the TRC was again an arrangement through the TRC Department at head office level, hence Mr Isaacs as the one on the ground was actually identified to be the one to go through it.

PROF DE KOKER: Did he approach you or did you approach him?

MR MBATHA: I went to him and then he confirmed the information first.

PROF DE KOKER: Did you also accompany Mr Smiles to Mr Isaacs for his application?

MR MBATHA: We were together.

PROF DE KOKER: You were together? Did you work closely together in drawing up the applications?

MR MBATHA: He actually had to draw his, I was actually drawing mine. Like I’ve said, I submitted my statement, he had to submit his statement.

PROF DE KOKER: Did you compare notes?

MR MBATHA: No.

PROF DE KOKER: But the fact that you worked closely together, that is correct - yes or no?

MR MBATHA: No.

PROF DE KOKER: Excuse me, then I must have misunderstood you. Can you perhaps just repeat your answer to the last question?

MR MBATHA: We did not compare our notes.

PROF DE KOKER: If I may draw the attention of the Committee to page 53 - again one of those internal statements by the Investigative Unit, that is in bundle 2, page 53 in which the investigators said - that is just signed K K, it could refer to Kristen ...[indistinct] second paragraph:

In what way did you collaborate with Mr Smiles?

CHAIRPERSON: Did you collaborate with Mr Smiles?

MR MBATHA: Collaboration as far as the truth should be told.

PROF DE KOKER: And how did you ensure that the truth was to be told this time?

MR MBATHA: That he must tell the truth of what happened there.

PROF DE KOKER: Did you co-operate with Mr Nkotla and Mr Mbatwa in their applications?

CHAIRPERSON: Why are you asking him that question Professor de Koker?

PROF DE KOKER: I would like to lead on to the relationship between Mr Mbatha and Mr Nkotla.

CHAIRPERSON: We are today not dealing with Mr Nkotla’s application and Mr Mbatwa, they may very well be heard by a different Committee differently constituted.

PROF DE KOKER: Quite correct Mr Chairman, but what I am trying to establish - Major Mbatha clearly played a central role in bringing information from Mr Smiles under the attention of authorities in 1993 ...[intervention]

CHAIRPERSON: Even so, restrict yourself to the applications which are before us.

PROF DE KOKER: If then we may deal specifically with Mr Nkotla, but only in respect of the evidence given by you yesterday. Did you train Mr Nkotla in handling of hand grenades?

MR MBATHA: No.

PROF DE KOKER: You also stated that to the best of your recollection Mr Nkotla wasn’t even in Kimberley on that fateful day.

MR MBATHA: Yes, I do.

PROF DE KOKER: How did you know that?

CHAIRPERSON: I don’t think you should ask this witness that question unless you can explain to us why you think you should go into those aspects of Mr Nkotla’s application.

PROF DE KOKER: The statement that was made by Major Mbatha seems to support the approach by Mr Nkotla during the case but which was then not supported by his own witnesses, which was refuted by two State witnesses and even refuted it seems by Mr Mbatwa himself on page 24 of Volume 2 of the documents in front of you.

MS KHAMPEPE: But Professor de Koker, is that issue central to the application before us?

CHAIRPERSON: In particular to your client’s ...[inaudible]

PROF DE KOKER: I believe so because Mr Nkotla accepted under oath and proven in court, he accepted responsibility for throwing the hand grenade. If he then threw the hand grenade, it is clearly that the applicants before us are not disclosing the full truth.

CHAIRPERSON: Where is the full truth that you are talking about?

PROF DE KOKER: That is the truth that we’re trying to ascertain regarding this incident and who was responsible for it. A full truth would also not be revealed if someone who was not involved in the incident is later ...[indistinct] or later volunteers to accept responsibility for the incident. In fact, that would make a mockery of the whole system and especially of amnesty applications of the Committee.

MS KHAMPEPE: You obviously are aware that Mr Nkotla and Mr Mbatwa have also applied to this Committee for amnesty and we still have to adjudicate on their applications. We just don’t want to bring issues which are going to cloud our decision in respect of this application.

PROF DE KOKER: Correct, but I just wish to draw your attention to the fact that those applications were apparently withdrawn but if the Committee is prepared to strike off Major Mbatha’s comment yesterday that to the best of his recollection Mr Nkotla was not even in Kimberley that day, then I’m also prepared to leave this matter.

MS KHAMPEPE: I don’t know if I recollect his evidence obviously verbatim but I think he made mention to the fact that he believes that Mr Nkotla was not even there. As I say I may not be quoting him verbatim.

ADV DE JAGER: Perhaps we could solve it easier, could you tell us on what grounds did you believe that Mr Nkotla wasn’t in Kimberley on that day?

MR MBATHA: At that stage an activist like Nkotla - firstly he was going to be visible, I would have seen Nkotla if he was there.

ADV DE JAGER: Mr Mbatha, but I can’t think for a moment that you could say: "I would have seen him" because today, do you know who is in Kimberley today or whether they’re here or not - there are thousands of people in Kimberley.

MR MBATHA: As an organiser - like I did explain it yesterday, how we were operating in the Province, Nkotla I remember even at that stage it was the time when he was still applying for his membership in MK and the fact that he was leaving Kimberley - I cannot exactly say which day exactly between those days. I knew that he came, informed me he was going around the Sishen area as an organiser - we had very close contact by then.

ADV DE JAGER: That’s an answer because he told you, that’s the reason why you didn’t believe him because he told you he’s going out of Kimberley.

MR MBATHA: Yes, Sir.

PROF DE KOKER: Thank you very much. I’m dealing with a few ...[indistinct] issues which arise from the evidence yesterday, before I will come to the final matters.

What were the type of hand grenades Major Mbatha, that you had in your possession?

MR MBATHA: Sir, F1 grenades.

PROF DE KOKER: Were all of them F1 grenades?

MR MBATHA: Yes, Sir.

PROF DE KOKER: What is the colour of F1 grenades?

CHAIRPERSON: If these are your most important questions Mr de Koker, I have reason to believe that you have almost finished your cross-examination.

PROF DE KOKER: If you’ll allow me, I will demonstrate the importance of the answer, if you will just allow me this indulgence.

CHAIRPERSON: It’s always better to demonstrate the importance of the question first.

PROF DE KOKER: Could we perhaps just have this answer on the colour of F1 ...[intervention]

CHAIRPERSON: Very well, let’s see - go ahead.

You are being asked, what was the colour of the hand grenade?

MR MBATHA: No, I’m not really good actually at colours, the colour it is not greenish, it is not fawn but the case of - those grenades were stored for a long time where they came from - some rusty elements outside also, were also visible.

PROF DE KOKER: The colour then seems to tend to be brown, rusty and fawn coloured, is that correct?

MR MBATHA: No, not brown exactly. As I’ve said, I’m trying to come up between two - fawnish, greenish.

CHAIRPERSON: Are you still taking instructions on the colour of the hand grenade?

PROF DE KOKER: That is correct Mr Chairman, because on page 4 of bundle 2, the hand grenade is described as brown and on page 51 Mr Smiles again described it as being brown.

CHAIRPERSON: In that case, then I can solve your problem by saying that the colour of the hand grenade was as anybody saw it to be like and it might even be produced here before us and we may still not agree as to what that colour is.

PROF DE KOKER: Mr Chairman, I ...[intervention]

CHAIRPERSON: I’m saying to you, I don’t think you’re going to make any major point about who - whether Smiles sees it as a brown, somebody sees it as rusty, another sees it as yellow, I don’t see what point you’re going to make out of that. People will just simply disagree on something that they see in front of them.

PROF DE KOKER: Quite correct Mr Chairman, I accept the point and I just want to draw your attention to page 4 because unfortunately it seems that Mr Mbatwa builds his case on the fact that the grenade he had was brown, that some witness referred to it as green and then that it was therefore clearly a different hand grenade. That issue cannot then be solved or taken because none of the people involved are clear, none of those who really handled the hand grenade are clear on the colour.

CHAIRPERSON: Well anyway, only one hand grenade exploded that day, there’s no problem about that Professor.

PROF DE KOKER: Major Mbatha, you were well trained in handling hand grenades. You’ve informed us that you undertook this exercise without orders or instructions to that effect and you said that this action fell within your broad mandate. I put it to you that you had no mandate to perform an act of violence at a political march organised by the organisations in terms of the National Peace Accord, you had no such mandate. Is that true or false?

MR MBATHA: I’ve referred to my command initiative yesterday.

PROF DE KOKER: But I put it to you, your command initiative did not include this mandate, your command initiative did not stretch so far as to give you the right to perform an act of violence at a political march organised and held in terms of the National Peace Accord. Your mandate might have included other measures but it could not have included that particular mandate.

MR MBATHA: I’ve never said that I got a mandate from them, I said the whole thing occurred, hence as a result I accept the responsibility because of my command initiative.

PROF DE KOKER: Quite correct, but you said you took the command initiative on the basis of your broad mandate and I put it to that that was not part of your mandate.

MR MBATHA: I said to you, when somebody commands - I even mentioned the tactical area of responsibility that happens to be mine in the Northern Cape, I did come up actually with a broad analysis, an appreciation that I referred to yesterday, and I remember I had to elucidate more on what do I mean by abnormal situation - I went deeper into it. Hence I said that building up situation with the initiative that I took was basically influenced by those circumstances, hence as a result acknowledging the mistake that happened on that particular day out of my initiative.

PROF DE KOKER: You therefore took the initiative but you had no mandate to perform this particular act of violence.

MR MBATHA: I’ve said it more than five times, I’m not sure - I’ve repeated that thing yesterday to you many times, I’ve referred to my command initiative.

CHAIRPERSON: Can I put it differently? Are you saying that your command initiative allowed you to do what you say you did?

MR MBATHA: To the act yes, Sir.

PROF DE KOKER: Can you prove that to us, because we have on paper is the word of the leadership of the African National Congress and the other major political parties in South Africa who were signatories to the National Peace Accord and who undertook to act in a certain way whenever political frustration should be vented. That was a very, very important process at that stage, how could there have been instructions or a mandate existing within the organisation in conflict with those undertakings which were given at a National and International level?

CHAIRPERSON: Is there any way that you can prove to us that what you did fell within your command initiative?

MR MBATHA: I actually did indicate yesterday - if I could be allowed to go back to the situation, I have actually referred to the element of insecurity which was starting to grow in the Province. I have actually referred to the loss of weapons of which at that time were very clear, I even dedicated that to my knowledge they were not actually stolen because they were supposed to have been kept.

I did actually mention Sir, intensification of the right-winger’s training at their base next to Kuruman. I did actually make mention of a house intercepted with all those weapons and the maid was chased away - since then actually she was nowhere collected, nobody knows exactly where she is. ...[intervention]

CHAIRPERSON: Sorry, were you’re command initiative orders issued to you in writing by the MK?

MR MBATHA: Normally they didn’t issue them in writing, you are appointed in writing that you are the regional commander as from now on and these are your command members.

CHAIRPERSON: Well, we do not have any written proof of this command initiative.

PROF DE KOKER: We also have indications to the contrary that that could have been his command mandate at the stage when he perpetrated this particular act of violence, and that is the National Peace Accord signed and adhered to and respected by the organisations which he served.

CHAIRPERSON: But that is your personal evaluation or interpretation of that particular document, you can argue it during your argument.

ADV DE JAGER: Mr Mbatha ...[intervention]

CHAIRPERSON: You cannot construe that as orders to the contrary, you’ll be stretching it a little bit too far I think.

ADV DE JAGER: Could I refer you to page 9 in Volume 1, and one of the reasons you’re stating for taking this step, you said:

Is that correct?

MR MBATHA: Yes, Sir.

ADV DE JAGER: Was Codesa at that stage at the brink of breaking?

MR MBATHA: Sir, the disagreement at that stage led to the mass action which was launched.

ADV DE JAGER: Well, at that stage - it was in May 1993, and Codesa - the previous Codesa had broken down and there was negotiations about peace and I want to put to you, at that stage the representatives were already starting to write the new Constitution, there was no breakdown then.

MR MBATHA: Sir, if I recall very well - during that era, it was the era when the National Mass Action Campaign was launched and hence I stated yesterday, it was launched because things were not going right. Referring to Codesa, it was the driving body by then where the negotiations were done and conducted, that is to the best of my knowledge that I have.

ADV DE JAGER: I only want to put it to you and I can - if necessary we can get evidence about that, I think you’re making a mistake. At that stage Codesa was running well and they started to write the new Constitution. Well, the name wasn’t anymore even Codesa, it was a second - the negotiations at the Trade Centre, Codesa was something of the past already then. There was new negotiations started and during May they’ve started writing the new Constitution.

MR MBATHA: Sir, to my knowledge actually, I knew Codesa at that time.

PROF DE KOKER: Major Mbatha, I put it to you further that the situation of insecurity that you allege was building up at that stage did not exist. You said yesterday there was a serious situation, more serious and different from that in other Provinces. At that stage a number of serious incidents were taking place in Natal and in Transvaal and what is now the North West but Kimberley was relatively peaceful. Kimberley was at a point where it was progressing very slowly through a very difficult phase but without this level of insecurity building up which you allege to be the main motivation for your act. It was 11 months before the election, South African ...[intervention]

CHAIRPERSON: Sorry, Professor to interrupt you. I don’t think he said there was a feeling of insecurity in Kimberley, I think he said in the Northern Cape.

PROF DE KOKER: ...[inaudible] in the region and he chose to explode the hand grenade in Kimberley.

CHAIRPERSON: Well, it still isn’t the same region which he was referring to.

PROF DE KOKER: Quite correct.

CHAIRPERSON: Well, it might also - whether or not one agrees that there was a feeling of insecurity, it might have depended on where you lived in the Province you know and who you were in the Province.

Do you still stand by your version that there was feeling of insecurity Major?

MR MBATHA: I remain firm, Sir.

CHAIRPERSON: Thank you.

PROF DE KOKER: The Goldstone Commission was at that stage already running for more than one and a half years - the political process was after a very difficult period on track, the peace process was also progressing very well. In fact, the Regional Office of the National Peace Secretariat was staffed just a month before that and was progressing with the establishment of Peace Committees all over, this was a relatively stable Province and region.

CHAIRPERSON: Do you agree with that?

MR MBATHA: It is not true, Sir.

PROF DE KOKER: On which grounds do you say it was not true?

CHAIRPERSON: I think he mentioned four things, do you want him to repeat them again? The arms were intercepted, people were intimidated and terrorised - he said those things many times yesterday afternoon.

PROF DE KOKER: They were general incidents referred to but we don’t have any dates at this stage, we don’t any information that was part of the main evidence that he gave.

CHAIRPERSON: He said these were the events which led to the incident taking place, the dates are not really - are they important?

PROF DE KOKER: The dates as the date of his Codesa remark could be very important because if those things happened after the event, it clearly could not have influenced him before the event.

CHAIRPERSON: I don’t understand you.

PROF DE KOKER: According to Major Mbatha, those events motivated him to launch this attack.

CHAIRPERSON: Yes.

PROF DE KOKER: We do not have the dates or more information about those events to corroborate it. If, as was proved with his Codesa remark, that happened at a time which was not connected with this incident - for instance happened after the incident, then clearly it could not have been motivating him at that stage and it was something that was drummed up afterwards to serve as a motivation.

CHAIRPERSON: Do you hope to get a concession from him that these things happened after the event - we may have to prepare ourselves to be here the whole afternoon?

PROF DE KOKER: Well, I wish to get more evidence from him regarding the specific events which he then said motivated him because I’ve just drawn the broader outlines of the process in the Province. Nationally the political process was on track, in the Province it was also on track. Major Mbatha rejects that but we have not had any evidence proving or supporting his mere allegations.

CHAIRPERSON: Well, that is his evidence, he can argue that.

PROF DE KOKER: Would you allow me to proceed with these questions or would you then ...[intervention]

CHAIRPERSON: It depends what questions you’re going to ask but you must be careful against making presumptuous statements to say that the region, the whole region then was peaceful when somebody tells you that people were intimidated, assaulted and the like.

It may very well be that you make a very presumptuous statement to say that it was not so, it may be that we have people who were in fact terrorised and intimidated during that period. And before you make that statement which may amount to being very presumptuous, I think you need to have some solid basis for saying such things.

PROF DE KOKER: I am therefore putting it to Major Mbatha to get his comments on those issues ...[intervention]

CHAIRPERSON: Well, his position is that he stands by what he said.

PROF DE KOKER: With no further details being given ...[intervention]

CHAIRPERSON: He has been giving details since yesterday, he enumerated four facts a few minutes ago and you can believe him or not believe him, that is his evidence. Even if you can repeat it a hundred times, you’ll get the same answer.

PROF DE KOKER: If he can give us more details about those we could perhaps corroborate his evidence or disprove it but if Chairperson, you’d like us to leave this - that you take it as bland statements that were made by Major Mbatha and do attach weight to it, then I am prepared to leave the line of cross-examination.

MS KHAMPEPE: Surely Sir, you can argue that out if you so wish, because I don’t think you will get anything out of Major Mbatha. He has already stated his reasons advanced to you are the only reasons, so you are free to take it up in your legal argument when you present us with that.

PROF DE KOKER: If that is the opinion of the Committee, I’ll then proceed with the following issue:

This attack was and could never have been in the interest of the ANC, it could never have been undertaken to further the interests of the ANC. The ANC at that stage was committed and they gave the leadership in this Province - whom you acknowledge as your seniors, gave their words personally that the march would progress peacefully.

Everything was done by the leadership to ensure that it would proceed peacefully. In fact when Mr John Block ordered the marchers to return home in peace, again reiterating or living by the assurances - acting out the assurances that he gave, at that stage the act was perpetrated, the act was highly embarrassing to the ANC, it could not have ...[intervention]

ADV DE JAGER: Professor, I think it would be difficult to give an answer to the question if it was a question now.

Didn’t you think your act could embarrass the ANC?

MR MBATHA: I believe that if it was not because of that accident that occurred - the embarrassment actually came from there.

CHAIRPERSON: Yes, next question?

PROF DE KOKER: The embarrassment therefore - your statement is that there would have been no embarrassment if the hand grenade - the act of violence, was perpetrated inside the building and killed other people - no embarrassment, no breaking of assurances given by the leadership that the march would be peaceful?

MR MBATHA: I think I’ve said to you the intention was not to kill. I think if you can phrase it properly - if that thing could have exploded inside that building, I can agree with you with the intention and my aim that I said to you yesterday.

PROF DE KOKER: If the hand grenade exploded inside the building without injuring anyone, would it still have been an act of violence?

MR MBATHA: My message to you - I’m sorry to use the very same word, was to signal to the then Bophuthatswana Government.

PROF DE KOKER: I’m simply asking you, was it an act of violence?

MR MBATHA: An act of violence regarding you perception, I don’t regard it as an act of violence at that stage.

PROF DE KOKER: Was it regarded by the leadership of the ANC at that stage, as an act of violence?

MR MBATHA: I’m not here to comment on behalf of the ANC leadership.

PROF DE KOKER: So, you regarded these acts as being perfectly in line with the National Peace Accord because they weren’t acts of violence, is my deduction correct?

MR MBATHA: I’ve referred to a situation of abnormality and if it could have pursued further, I think more than what has just occurred there could have been possible.

PROF DE KOKER: I put it to you that the event as it transpired was an embarrassment to the ANC, is that correct?

MS KHAMPEPE: I think he’s already conceded to that Professor de Koker, and surely it must be an embarrassment - I mean to have your own people dying at your own hands, it is an embarrassing situation.

PROF DE KOKER: It is. And then we have the statement that - although you’ve given assurances that it would be peaceful, if an of violence was perpetrated by throwing a hand grenade at a building during the march then that would not in Major Mbatha’s opinion, amount to a breach of agreement. The ...[intervention]

CHAIRPERSON: He says it would not have been an embarrassment. He said if it had exploded the way that it did that he had planned, it would not have been an embarrassment.

PROF DE KOKER: Thank you Mr Chairman. The result led to immediate action on the side of the ANC. Immediately afterwards, the act was interpreted as - and there were various statements made, that this was actually an attack by the police on the ANC and there were also allegations that people saw a White man or men throwing the hand grenade. Why were those statements made?

MS KHAMPEPE: Before the witness can be able to answer, who made those statements?

PROF DE KOKER: I have at my disposal various statements made to the press at that stage and reported. Statements by the - for instance, Mr Thys de Getsie who was then ANC - if I may translate or go over into the Afrikaans because that is the form that I have it in front of me:

And he said:

CHAIRPERSON: Do you have any comment on that?

MR MBATHA: I’m not sure why they only select the ANC because even a police officer at that stage came up with a statement that he saw somebody amongst them who threw the grenade - we said to you it was a chaotic stage, we did acknowledge that thing yesterday. And by virtue what Mr ...[indistinct] said, only showed you that the ANC had no knowledge about it, it was my command initiative - he is right with what he said.

PROF DE KOKER: I’m not aware of this statement by the policeman, can you elucidate? Can you refer to who was the person and when was the statement made?
MR MBATHA: Then you’ll have to go to the police, they will tell you.

PROF DE KOKER: I’ve looked at the police dossier, there’s no such statement in that dossier that I found.

MR MBATHA: Sir, I’m sorry, I’m telling you what came to my attention whilst I was still inside there - you might like it maybe in black and white, but that was an oral discussion - I was told at that time.

PROF DE KOKER: You said yesterday that you went inside and I take that as referring to the Section 29 detention - that you went into detention in June, do you still maintain that statement?

MR MBATHA: Yes, correct.

PROF DE KOKER: According to further evidence - and if I may quote, from the same Volksblad page dated the 27th of May 1993, page 2:

CHAIRPERSON: Sorry to interrupt you, before we lose the importance of the question out of sight.

In terms of the report that is being read to you it would appear that if you went into detention only in June, you would have been outside when Mr Popo Molefe visited this area. Can you throw light on that?

MR MBATHA: Sir, I actually came out on the 28th of June.

CHAIRPERSON: Is it possible that you might - you may be wrong in saying that you were detained only in June?

MR MBATHA: It is actually the 2nd of June - if I recall very well, it is the day on a Monday that I was picked up.

CHAIRPERSON: When Mr Molefe came here, where were you - outside or already in detention?

MR MBATHA: Mr Molefe came - though it was not for the first time, I’m not sure Sir, was I outside by then. Before I could go to detention - I’d know during that week, I was really not convinced that he was around.

ADV DE JAGER: Mr de Koker, I think we should come down now to what really would be crucial for us to decide on as far amnesty is concerned and I want to ask this question to Mr Mbatha:

Mr Mbatha, why didn’t you ask the ANC for their approval before you threw the hand grenade?

MR MBATHA: Sir, by virtue of knowing the agreements that have entered to, that would have meant a direct implication that the ANC has instructed that thing.

ADV DE JAGER: Do you think they would have approved of your action?

MR MBATHA: Sir, no.

ADV DE JAGER: Did they at any stage up to today approve of your action?

MR MBATHA: Sir, it was that justice will have to take it’s course and within - amongst the clause that are here Sir, Commanders responsible for their actions will have to apply in relation to those actions.

ADV DE JAGER: That’s still not an answer to my question.

MR MBATHA: Sir, what I’m saying is - during their submissions at the TRC - there is actually a document next to me also that does indicate that part, that for your actions you will have to apply for it.

ADV DE JAGER: That’s for your actions and you’re applying for amnesty, I understand that but my question was whether your party approved in any way up to today, of what you’ve done?

MR MBATHA: No Sir, no communication so far regarding that what you say.

MS KHAMPEPE: But have any disciplinary actions been taken by your superiors as a result of this action?

MR MBATHA: The question was that justice will have to take it’s course and nobody will be defended in that matter.

MS KHAMPEPE: Now, when you were asked by Mr de Jager whether you asked the ANC for an approval, would you have asked the ANC or if you didn’t believe that your command initiative included the right to take the action that you did, would you not have asked your superior - which you have stated that at that stage was Mr Sepiwe Nyanda, as opposed to asking the ANC leadership?

MR MBATHA: Madam, hence I said I’ve said the question of asking but I recall very well regarding my monthly reports, the very same statement of the insecurity - if I can extract them and present them over to you as a serious concern, was brought to their attention.

MS KHAMPEPE: My question merely is - whether if you had thought there was a need for you to ask for permission to proceed with your operation, would you not have asked Mr Sepiwe Nyanda for that permission?

MR MBATHA: Madam no, hence I said it is within my command initiative.

CHAIRPERSON: Did you understand the question?

MR MBATHA: I understood it in as far as authority regarding the action itself.

CHAIRPERSON: How did you understand the question?

MR MBATHA: That - would I have actually asked permission from Sepiwe as the Chief of Staff of the ANC by then - of MK by then, to proceed with that type of action.

CHAIRPERSON: No, that’s not the question, that’s not the gist of the question. The gist of the question is, had you found it necessary to seek authority from Sepiwe, would you have asked for such authority had you found it necessary to do so?

MR MBATHA: Sir, I’ve raised it many a times but the question was no, they cannot authorise that thing.

CHAIRPERSON: I wonder whether this shouldn’t be a convenient point to break for lunch, maybe until a quarter to two. We will adjourn until a quarter to two.

LAURENS MBATHA: (s.u.o.)

CHAIRPERSON: Mr Bode?

CROSS-EXAMINATION BY MR BODE: Thank you Mr Chairperson. For purposes of the record I wish to add a further name to the list of victims that will be represented by myself, the name of the 6th victim will be Mr P G Kock - I’ll spell it for purposes of the record: K-o-c-k. I did furnish one of your personnel members with a hand-written list of the names of the victims, I trust that you have that in your possession,

if not so I will render a further list in due course.

CHAIRPERSON: Who is the person you are adding?

MR BODE: Mr P G Kock, K-o-c-k Mr Chairperson.

CHAIRPERSON: Sorry, for the record it is now Mr Bode who is speaking.

CROSS-EXAMINATION BY MR BODE: That’s correct Mr Chairperson. I will then proceed Mr Chairperson.

Major Mbatha, I’m firstly representing the parents of the decease Mr Izekial Mokone. Can you tell the Commission, did you personally know the deceased prior to this incident?

MR MBATHA: Sir, not personally.

MR BODE: The family of the deceased is very much concerned with the fact that after his unfortunate death, that you never ever approached their family up till this day in order to condone them on their loss.

MR MBATHA: Sir, my approach actually was this is a very serious nature - matter and if it is something that it should be done - I’ve actually even raised it with Smiles, it should be in a much more dignified manner. The apology to go over to them, hence I even said to Smiles when we spoke about the matter: "It is very difficult at that stage, it is a very regrettable thing, it’s a very sad feeling" and we would like actually when it is done, it should be done actually with the most atmospheric respect that it deserves.

And at that stage would be when the correct decision came because I always had that belief and hope in my mind, it was not the fact that I’m trying to run away from there. I’ve shared the pain, I’ve shared the feeling because loss is not something that you can just easily take light, particularly being a parent with an aspirant child who might have assumed a role in the family and it happened that out of my action, that his life was actually shortened at that time.

So the idea was not because of I’m running away from it, yes it is true Sir, I didn’t go there. I even said to Smiles, if it is done, it should not be done in drips and drabs as if he’s hiding to go there, it should be done in a manner that when one goes over, when the truth is revealed about the process, that it will be in a much more dignified manner, thank you Sir.

MR BODE: Major Mbatha, you must also respect the wishes of the family and as to how they may feel about the loss of their own son and not so much of how other people may evaluate such a loss. It is my specific instructions from the parents whom are present at this hearing, to ask you officially in public here and now to apologise for your action that led to the death of their son. Are you willing to do so, yes or no?

MR MBATHA: Yes, Sir.

MR BODE: I believe that approximately two days after the unfortunate death of their son, members of the ANC Executive paid a visit to the residence of the Mokone family and certain promises were made regarding sharing the expenses of the funeral and other costs, unfortunately nothing materialised. Do you know about these proposals that were made?

MR MBATHA: Sir, not to the best of my knowledge.

MR BODE: Did you ever try to find out whether the family of the deceased were comforted by any means of financial support or emotional support after the death of their son?

MR MBATHA: Sir, honestly speaking - as I’ve said, it was a sad feeling and regarding myself and Smiles at the level that we have at this type of act, means of doing at that stage was waiting for the right moment to come.

MR BODE: You Major Mbatha, often referred during your testimony to the fact that as a result of the explosion certain comrades and members of the leadership were injured as a result of the blast, what about other people that were also injured and whom did not form part of the comrade grouping and/or the leadership? What about the other people, the innocent bystanders, what about them?

MR MBATHA: Sir, as I’ve said it is really regrettable for them also to become victims of the very same act. That is where I would say also, I do convey my apology to them.

MR BODE: Major Mbatha, do you agree with the fact that the building in which the Bop Consulate was situated at that time, is a building of approximately 10 to 15 stories high, do you agree with that?

MR MBATHA: Sir, it is a huge building with a number of floors upwards.

MR BODE: Mr next victim is a gentleman with the name of Mr Dan Pethani, now he was employed in that building at that time and he was merely walking past the incident and observing for that moment what was happening at the entrance to the complex in which his office was situated and as a result thereof he was injured by the blast. Now, he had nothing to do with the whole march or he was no party to the planning and whatsoever Do you specifically and also here without any reservations apologise to Mr Pethani for that what was a result of your actions?

MR MBATHA: Yes Sir, I do.

MR BODE: I’ve also a number of other victims here that are still suffering to various extents as a result of the injuries sustained, injuries that were sustained more that four years ago, people who still have shrapnel in their bodies and whom from to time may have to undergo further treatment. Their names are as follows:

• Miss A Gorrel
• Miss Millicent Ntebe
• Mr Frank Modumedi and
• Mr Paul Kock

Do you also here in public without any reservations apologise to them for the action done by yourself?

MR MBATHA: Yes, I do Sir.

MR BODE: One last question Major Mbatha, did you ever during the course of these years since the day of the incident, ever go to any of the clients as I’ve indicated to you whether directly or indirectly and conveyed to them your condolences, your regret as to what has happened and sharing the information that you were actually involved? Did you every do any of these actions?

MR MBATHA: Sir, as I’ve said actually starting from the family of the deceased that for one actually to address it in that fashion, my concern would be at that time because the loss of actually Mokone was the most striking one and it was a moment that when that time comes starting from the family of the deceased, to Jean Nel, Mr Cassandra and all the members who were there, to convey my apology to them and I would have liked that it should be done in public.

MR BODE: No further questions Mr Chairperson, thank you.

CHAIRPERSON: Mr Mpshe?

CROSS-EXAMINATION BY MR MPSHE: Thank you Mr Chairman, members of the Committee. Major Mbatha, in your application page 3 thereof, paragraph 10(a) - I’ll read the question to you, it states:

And in your answer you said:

Can you see that?

MR MBATHA: Yes, Sir.

MR MPSHE: Right. Now, you have not stated the political objective sought to be achieved in your application, instead you refer to the annexure which is page 8 of your application - page 8 and 9, also in that annexure the political objective has not been outlined. Can you tell this Committee what was the political objective?

MR MBATHA: Sir, as I defined the political objective of the process, I went deeper Sir, to the circumstances which has compelled me. The circumstances basically on the basis that I’ve indicated of the element of insecurity experienced by people and I did actually make mention in the statement that in my capacity as the commander to protect the aspirations of those within my ability, those that their lives are threatened, they’re secured - insecure. This is actually the basis of my departure regarding my political views of the whole process which in turn actually compelled me for this type of act.

At that stage now directed towards the Bop Government which in terms of it’s acts of repression at that stage, was clear that the rule of iron hand and open brutality was a very clear exercise resulting in the popularly know activity of Mkaba assaulted at the University of Bophuthatswana and a number of others ...[indistinct] in a protest march. They were also - the march was instructed - ended up in a very bitter thing, that was the basis of my motivation.

MR MPSHE: Perhaps I need to put my question - the same question differently, to get the answer from you.

MR MPSHE: By doing what you did, did you intend to attain any political result?

MR MBATHA: Yes, Sir.

MR MPSHE: Now, what is that political result you intended attaining by doing what you did?

MR MBATHA: To those people Sir, that I’ve referred to - the type of act, will be to reinstate and reconfirm the presence of MK within their mists and that they are not alone in the struggle at that particular point in time - that is the point.

MR MPSHE: Then I’m getting a little bit confused now Major. Are you saying by doing what you did, you wanted to attain the recognition of the MK?

MR MBATHA: Sir, not ...[intervention]

MR MPSHE: You attacked - if I may use the word attack?

MR MBATHA: Not recognition as such as one should define it because the recognition of Umkhonto weSizwe has been there for a very long time but within the particular area itself, activities of Umkhonto weSizwe regarding the process of this struggle, were less experienced and less known - that is in the particular area that I’m referring to but in terms of it’s recognition alone in the area it has been known.

MR MPSHE: Well, will I be right if I say what you’re trying to outline to us is the - you wanted to attain the free political activity of the MK in that region?

MR MBATHA: The activity Sir, has been free. Hence I’ve referred that we’ve been operating jointly with the mass democratic movement structures in the present - in this Province.

MR MPSHE: Major, finally on this very same aspect, did you hope to achieve any change in the then existing political climate?

MR MBATHA: Sir, as I’ve said, the act itself was directed as a signal to the Bop Government and as I did indicate yesterday to say that at that stage and escalation that it assumes, that their days actually they should know are numbered.

MR MPSHE: You know, if you say you give a signal to a person, it is even correct ...[indistinct] to say I’m giving this person a warning for him either to stop doing what he is doing, do I understand you correctly?

MR MBATHA: You are correct, Sir.

MR MPSHE: Now what is it that the Bop Government was doing to which you had to give them a warning or a signal.

MR MBATHA: The open brutality that they were exercising Sir, within Bophuthatswana because the greater parts of those areas starting from the ...[indistinct] Kuruman up, they were part of the Northern Cape by that time, including Mafeking.

MR MPSHE: Will I be correct Major to say that all what you intended achieving was to stop the brutality or the torture or the assaults within that region, will I be correct?

MR MBATHA: Sir, yes.

MR MPSHE: And not necessarily to stop the political conditions in that region, will I still be correct?

MR MBATHA: Yes, Sir.

MR MPSHE: You see, to be fair to you I’m asking these questions because the question of political achievement to be - the political objective sought to be achieved is not being inclined by yourself and that is one of the requirements of being given amnesty. Now, if you say the intention was to make them desist or stop from the brutality in their region and not to stop them in their political activities, then I’m having a problem.

MR MBATHA: Sir, if I might respond to - the brutality that one was actually referring to, was basically directed towards ANC members in the Province because in that type of Government if you’re identified with that kind of political organisation, then life in it was miserable. So, I’m sorry that I should have actually have disassociated it separately but it was in that context because the brutality was influenced by that particular factor.

MR MPSHE: Now Major, for the Committee and perhaps even for yourself, according to the criminal trial the march was said to have been a very peaceful march and orderly up till the stage when the hand grenade was thrown. Do you think it was really in keeping with the circumstances of the march or the occurrence then, to use a hand grenade in order to achieve your political objective?

MR MBATHA: Sir, it is unfortunate at this stage I don’t have actually at my disposal the memorandums which were said there. I made mention yesterday as an anti-Bop march but through my recollection, part of the submissions that were made there had to do with the brutal activity of the police in the previous marches. Hence amongst those memorandums, one was directed towards it.

MR MPSHE: What I’m trying to say to you is, a hand grenade in one hand - an object capable of causing death, destruction and maiming people, as against a peaceful orderly march. Don’t you think this was not in keeping with the circumstances there?

MR MBATHA: Sir, it is regrettable of the results but the grenade was not actually for the march but for the building itself but it in turn resulted that the marchers ended being victims of it - that part actually, it is really regrettable.

MR MPSHE: Thank you Mr Chairman, members of the Committee, no further questions.

ADV DE JAGER: If that was the position - your last answer being the hand grenade wasn’t intended, why didn’t you throw the hand grenade when the marchers weren’t there, why at the time of the march? Why not one night for instance?

MR MBATHA: Sir, with - because it will me back again to my instruction. I see actually the oversight, hence within my instruction it was when the marchers move away the grenade should be thrown in.

ADV DE JAGER: If it was only directed at the building, why didn’t you go for instance on a Sunday night when there was nobody in the building, no workers in the building or a Saturday night or when you know there’s no workers and throw the hand grenade at the building?

MR MBATHA: At that time my perception was it was going to lose really a political element - this is how I perceived it that time.

MS KHAMPEPE: Was it Mr Mbatha, not your intention to injure the personnel of the Bophuthatswana Government who were housed in that building?

MR MBATHA: No, Madam.

MS KHAMPEPE: Now, if you had ran - launched your attack after hours, how would that action have lost a political meaning? How would your attack have lost a political meaning if it had been committed after hours?

MR MBATHA: I only regarded at that time Madam, that attack to the building - what those activities not part of it, would be classified in whatever direction that one would like to because for me it ...[indistinct] no political but just a mere criminal act of a crazy person who did that thing.

MS KHAMPEPE: Would you not have owned up to that action if it had been committed after hours - to make sure that it didn’t lose any political meaning?

MR MBATHA: At that stage, as I’ve said Madam, that because of the incidences, that element of uncertainty - I’m sorry to go back to it, for reasons that I felt best - security. Normally with an action of that nature you keep it and you file it up.

MS KHAMPEPE: Now, you’ve valued it to the brutal action that was being perpetrated by the Bophuthatswana Government against ANC members, what in fact did the Bophuthatswana Government do to your membership?

MR MBATHA: We had actually members - Madam, I must start in the ...[indistinct] area, it was an area at that time when I started preparing my structures, those members were picked up, severely tortured, kept in cells. I can refer to one old man from the very same area who can relate his own personal experience, who went through a terrible torture - sharing his experience with me.

Hence as a result when you have gone through their hands, that was the point at the time of all the comrades who were tortured by the security branches of Bophuthatswana that they don’t like to go through that experience again. That was the type of situation in the area, the element of fear. I had a contact member in the ...[indistinct] area Madam, who also basically because of my visits in the area because at that time it was the restructure - the structures there, the member also subjected to interrogation, picked up. Marches actually Madam, like I’m referring to, were stopped, you could not hold those marches.

And in terms of their torture system Madam, if I might openly say it, they were really good at it because all those people who have gone through it ...[intervention]

MS KHAMPEPE: But that was precisely the reason why a march was organised, isn’t it?

MR MBATHA: Yes, Madam.

MS KHAMPEPE: Didn’t you think that the marches organised would achieve the same purpose that you ultimately found it necessary to launch a grenade attack?

MR MBATHA: Madam, at that time the adamant approach of the Government which remained clear - that it was there to stay and not to move because of the nature of torture that I’ve just referred to, is the one actually which influenced me - not excluding the role the march would have played, that the nature of this initiative that I took would serve the purpose.

CHAIRPERSON: Maybe we should go back to Mr Visser now. Unless you seek to disillusion us, we are of the view that as matters stand you have not brought your clients within a position where they would be entitled to cross-examine the witness bearing in mind the fact that you are representing a certain Mr so and so and so and not representing the police.

MR VISSER: As it pleases you Mr Chairman.

CHAIRPERSON: Do you want to re-examine Mr Tsholanku?

RE-EXAMINATION BY MR TSHOLANKU: Only on a few points Mr Chairman. Mr Mbatha, a question was asked by Advocate de Jager pertaining to the ultimate reaction of the ANC to this particular incident:

(1) Whether were they aware of this - at a later stage made aware by yourself?

(2) Did they associate themselves with this either by retrospectively condoning it and you then alluded to submissions that they made

pertaining to particular actions by their commanders and that commanders would then allude to those acts. Now, you then mentioned a document that is here present, can you safely say that the document you’re referring to is this green book that is in front of me?

MR MBATHA: Yes, Sir.

MR TSHOLANKU: Mr Chairman, I don’t if the Committee would allow me to read the particular submission in this particular green book pertaining to the response of the ANC insofar as it relates to this particular response that was afforded to Advocate de Jager or would you like the applicant himself to read the particular response?

CHAIRPERSON: Sorry, what is that book about?

MR TSHOLANKU: These are submissions and responses by the ANC to questions raised by the Commission for Truth and Reconciliation. The reason why - if I understood the response of the applicant, the reason why he alluded to these submissions - it was after a question was asked whether retrospectively so or any point in time the ANC associated itself to this particular blast, whether impliedly or explicitly.

And he then in response said the ANC has come out to say there are acts that they are not aware of to which each and every commander that is aware or that is involved in that particular act, will then shed further light and that they impliedly associated themselves with those if those were committed by members of MK. I’m inclined to believe that that information is necessary pertaining to what seemed to be a ...[indistinct] issue when it comes to the ANC accepting responsibility for this particular act, either impliedly or explicitly.

CHAIRPERSON: Are you saying that that document constitutes submissions made by the ANC to the TRC?

MR TSHOLANKU: Yes, the Commission for Truth and Reconciliation.

CHAIRPERSON: I see, well you can read it to him and ask him whether he solicits his comments or whatever - his response to that in line with the point that you want to make.

MR TSHOLANKU: As it please you Mr Chairman. I’ll read on page 70 of the ANC’s second submission to the TRC, paragraph 5 - these submissions were apparently made on the 12th day of May 1997, it reads as follows Mr Chairman:

Appendices, MK Operations and other Armed Actions:

Now, Major Mbatha, I have read out an extract from the submissions by the ANC and my emphasis is on this particular paragraph where it said:

Now, you have mentioned what you referred to as your command initiative pertaining to this particular attack, can you safely say that that command initiative can be associated to this particular injunction by the leadership of the ANC that is mentioned in this particular submission?

MR MBATHA: Yes, Sir.

MR TSHOLANKU: Can I understand that to mean that the ANC in their submissions associating themselves to acts committed on the authority of their commanders and combatants that they were not aware of, which were carried out in good faith and on occasions incorrectly carried out ...[intervention]

CHAIRPERSON: Sorry, you can’t put that question like that, what you can ask him is whether he in his view, the ANC associate themselves?

MR TSHOLANKU: I’m indebted to you Mr Chairman. Can we assume that in your view - having read this, the ANC associated themselves with this particular act?

MR MBATHA: Yes, Sir because it was in good faith.

MR TSHOLANKU: Thank you Mr Chairman, no further re-examination.

CHAIRPERSON: Thank you Major, you are excused.

PROF DE KOKER: Mr Chairman, excuse me, may I perhaps address you and just ask whether we could have a copy - excuse me Mr Chairman, may I ask you whether we could have a copy of that particular passage? We did not have the privilege of having it in front of us and I would also - there was a reference which I recall, to a specific list and I would like to know whether this particular incident was listed or not in that document - I’d appreciate it.

CHAIRPERSON: I was also curious about that. Was that incident listed?

MR TSHOLANKU: Mr Chairman, this incident was not listed. The incidences listed range from 1960 to 1989, those are the incidences listed. My understanding of the submission is that the ANC associated itself with which they refer to as the grey area. Where there is proof that a commander and a combatant of MK involved in an incident that was not reported to them for security reasons and if such was carried out in good faith, my understanding is that they associated themselves

with them.

CHAIRPERSON: You can argue that I think.

MR TSHOLANKU: Yes, Mr Chairman, that is going to be my argument.

ADV DE JAGER: Could I ask you something? In what you’ve read there, wouldn’t it have been a pre-requisite that the ANC issued an injunction to intensify the struggle at that stage?

MR TSHOLANKU: My understanding is that this would have been the injunction issued by the ANC but there apparently is a rider that even if in good faith the combatant or the commander believes that this was part of the injunction - even if he was incorrect at that particular time but if that was good faith, my understanding is that it is covered by this particular submissions.

ADV DE JAGER: I just wanted to - you should think about it because having an injunction and on the other hand, signing the Peace Accord - but you could address us on that later.

MR TSHOLANKU: Yes, Mr Chairman, I’m planning on leading evidence pertaining to the ANC’s attitude towards the Peace Accord at that particular point in time.

MS KHAMPEPE: Particularly with regard to MK operations?

MR TSHOLANKU: With regard to MK operations yes, Madam.

Mr Chairman, if I’m afforded an opportunity to use the photocopy machine, I would make them available.

CHAIRPERSON: ...[inaudible]

MR TSHOLANKU: As it pleases Mr Chairman.

CHAIRPERSON: Thank you Major, you are excused.

MR MBATHA: Thank you Sir.