Amnesty Hearings — Kimberley — 2000-02-04

MR KOOPEDI: He did not describe what a professional soldier is, but I will venture to say what I believe a professional soldier is.  A professional soldier is someone who not only is a soldier, you'd find that a person would be a soldier on a part-time basis, you know, where there are people who are called on conscription and they would come back, they are people who perhaps like I said, work part times, but he was full-time a soldier, he was full-time a senior person, so senior and professional was he, that he could be deployed on the ground.  He was the most senior person.  There was this fear that the march is going to storm Bisho, the military government is going to be taken over, Umkhonto weSizwe is going to be deployed there and possibly shoot at people.  It's my submission that under those circumstances, you would only put the best you have, not a person who would look at a crowd, chicken out and believe that I'm being shot at and that's the crux of my submission.  This subjective test that is applied, must be that one of that senior person, that professional soldier, the way he has called himself.

ADV SANDI: Yes, but for some of the factors, one may well apply the objective test.  You don't use a subjective test throughout.

MR KOOPEDI: That is indeed so.  That is indeed so.  I was only merely referring to the part when you come to the subjective test.  It should not be the ordinary subjective test, it should be a very defined subjective test.  Who is the subject?  What does the subject know?  What is his area of practice?  What has he been trained to do?  How senior is this person?

ADV SANDI: In evaluating the conduct of such a person, don't you do that in accordance with the way he finds himself on the ground?

MR KOOPEDI: That is indeed so.  That is indeed so, but  we're referring to - he is on the ground, there are circumstances which he did not plan for that hit him on the ground, but he is this person, this professional soldier, this trained person, that is what I'm referring to.

CHAIRPERSON: What you call a subjective test is really that the Committee takes into account the particular circumstances that prevailed on the particular day where you had a situation as this and you had a person such as the applicant Mr Mkosana present on the scene and then you draw your inferences from there, whether conduct on his part would be reasonable under the circumstances etc.  So the subjective part of this is to take into account the reality of the situation.  We must assess this matter on the basis of the facts which prevailed there.

MR KOOPEDI: That's indeed so, Chairperson.

CHAIRPERSON: Yes.

MR KOOPEDI: Now the second part about this order which I was about to allude to, refers to the instruction which he received.  My learned friend, Mr Smith, has alluded to that.  The instruction was that:  "If you are being shot at, shoot back."  That was a very clear instruction.  "If you are being shot at, shoot back."  However, he gives an order that people must be shot at.  At that stage when he gives this order, it is very clear that there was no further shooting.  He goes further and amends that order and says:  "Minimal force."  No order was given to him that minimal force should be used.

ADV SANDI: Are we not in a situation here where the fact is that no order was issued?  If we accept that this was a provisional order, shoot on proviso, that those facts you are conveying to me exist, but the evidence  here is that those facts did not exist.

MR KOOPEDI: Yes, that is indeed the point and that is why I tried to put these into categories in the event that a finding is made that there could have been such an order, the event that it is found that they may have been shot at, the order that came from van der Bank was a very clear one:  "Shoot if you are being shot at" and nothing mentioned about minimal force.  That is if that finding is made.  Yes.
	Now, he  - I'm still on Mr Mkosana.  He states that he was in the immediate vicinity of Mr Gonya.  So does Mr Gonya's evidence corroborate that part.  Mkosana said in his evidence he was the only person who could order Gonya to use his grenade launcher.  He however did not give such an order.  In my mind it means therefore that he is then not applying for amnesty for anything that Gonya did, particularly because he did not make that order.  He also goes further that his order, the order to shoot, was restricted to the crowd within sight, within his sight, because this was the crowd that was supposed to be storming them and firing at them, which means that the order to shoot was restricted to this crowd.  However, people were shot at, people who were not within this crowd.  It is therefore my submission that he's not applying for amnesty for people who were shot elsewhere, at other places, or by other soldiers, because this is not the order he gave.  I realise that perhaps on our part we have not been very helpful to the Committee in terms of determining who and how many people were shot at in that particular area.  It is simply because, with the documents available to us, I could only see a list of people who were killed, but not be able to tell who was killed at what stage and perhaps finally one should add that if I say I didn't do it, it means I'm not asking for amnesty for it, you can't ask for amnesty for something you say you have not done.  
	So my submission is that on all those instances where Mr Mkosana says he did not give an order, he should therefore not be granted amnesty for that and that is all.

CHAIRPERSON: Thank you, Mr Koopedi.  Mr Mapoma?

MR MAPOMA: Thank you, Chairperson.  Chairperson, I've got only two issues to raise of and concerning the application by Mr Mkosana in particular.
	The first Chairperson is the submission that Mr Mkosana refers to, that of I don't know, Major General  Ulser.  Chairperson, the essence of that submission was that he authorised the shooting to take place if they were shot at and that in itself, he was saying that:  "If you are being shot at, then defend yourselves" and it is in fact along those lines that Mr Mkosana instructed that people be shot at to defend themselves, now it comes then to a question as to what act or offence is it that Mr Mkosana should be granted amnesty for in the circumstances because he is coming to this Committee to provide this Committee with a defence of self defence against a possible 
offence and in a way it is my submission that he denies that he committed offences on that day, because he was acting in self defence or he instructed the forces to act in self defence.  The  Picard Commission Report, the Board of Inquiry and the Goldstone Report, do not take this matter any further as well, in his favour.  They just do not assist him.  He in fact goes on to say that he accepts, he does not accept liability for the actions that were committed by those soldiers whom he says he never instructed.  The only responsibility that he seems to be taking is the responsibility for the consequences of what he calls minimum force, which he claims to have instructed that it be executed.  It would be noted, Chairperson, that this minimum force, was described by the applicant quite succinctly and out of the description that he has given of this minimum force, it is highly unlikely, I submit, that the magnitude of these offenses where people died, might have been killed as a result of that minimum force which he claims to be responsible for, given the explanation that he gave this Committee of what the minimum force entails.  It therefore consequently shows that he denies the offence still.

ADV SANDI: But Mr Mapoma, is it not the position here that there are contradictions anyway on that particular aspect between the evidence of Mkosana and Gonya?  Gonya does not recall Mkosana having mentioned anything about minimum force.  All he said was:  "Fire, fire, fire."  He didn't qualify the order.