Amnesty Hearings — Kimberley — 2000-02-04

CHAIRPERSON: And then to add to that, the statistics that Mr Smith referred to, all those rounds of ammunition that were discharged, at Jongelanga approximately 185 rounds of ammunition and we know that these were assault rifles, it was R4 and R1 rifles, high-powered lethal weapons that were used, so there is that submission of Mr Smith that the concept of minimum force fits in very uncomfortably with those statistics.

MR MAPOMA: Yes, I think that is in line with my argument, Chairperson, actually because I'm saying the consequences of what happened are highly disproportionate to the minimum force as he has described it.  It cannot be said that these people died as a result of minimum force in the circumstances.
	Another issue Chairperson I would address, is the question of proportionality.  We are dealing here with the applicants who were soldiers, armed, shooting at defenceless people, civilians for that matter, in what has been declared throughout South Africa to be a peaceful protest.  It must be noted, Chairperson, that the ANC as SACP Alliance, during that period, has been indulging in mass actions around the country and there has never been a situation where those mass actions, where the MK has been reported to have gone to attack people through what is called the marches, through those marches and even in Ciskei in particular, South African part known as Ciskei then, there were marches here.  In fact there was a march which was conducted in August that year, which did not get into Ciskei.  It was a peaceful march as well.  There was nothing which showed that armed MK was there to challenge the CDF then.  So I'm saying - the upshot of my argument is that it was unreasonable even for that intelligence of their's, to expect that MK would come and launch war in the area known as Ciskei then.  It's an unreasonable explanation to warrant the action that they did and especially given the fact that there was no war, it was a self-declared war actually, by the applicants and the Ciskei troops only, otherwise it was well reported that this was a march which was led by Clergy for that matter, the peace keeping force was there as well, of South Africa.  So I think that as well, Chairperson, ought to be taken into account by the Committee.  So in the circumstances it was highly disproportionate of Ciskei Defence Force to give live ammunition and to shoot at people in the circumstances of that nature.

ADV SANDI: Is it not common cause, I take it to be so, that in this particular march you had thousands of women and old people?

MR MAPOMA: Absolutely Chairperson.  All ages of South Africans who were interested in peace in Ciskei were there. in fact all categories of people, as I said, clergy, peace loving people of South Africa were there, so there's nothing that was indicating that there was war going to take place and especially given the track record of these marches in South Africa then, no war erupted out of those marches.  I think that is it Chairperson.  Thank you.

CHAIRPERSON: Is it common cause that there was a hand gun discovered at some point on the scene, but that in any event there was no evidence that was discharged?

MR MAPOMA: Yes, Chairperson.

CHAIRPERSON: There's no dispute about that?

MR MAPOMA: Not that I - I don't think there's a dispute about that.

CHAIRPERSON: Very well.  Yes, thank you Mr Mapoma.

ADV SANDI: Sorry, just one thing, Mr Chairman.  Mr Mapoma, you've said Mr Mkosana says he acted in self-defence and in that way he thinks that he did not commit an offence.  He therefore should not have applied for amnesty.  Did I understand you correctly?

MR MAPOMA: Yes, that's my argument, Chairperson.

ADV SANDI: Yes, but given the general situation and circumstances of this case, was it not be a bit artificial to say that, having regard to the context in which the act of self defence occurred?

MR MAPOMA: Chairperson, perhaps it may.

ADV SANDI: Or to put it more correctly, the so-called or the alleged act of self defence?

MR MAPOMA: Yes, I like the part alleged self defence.  It must be noted Chairperson, that it is incumbent upon the applicant to come to this Committee and own up to the actions that he did unequivocally and that has not been done.  The applicant is coming here to say on the one hand, I did this thing in self defence, then I'm not liable, but if the Committee may find that I'm liable, then I apply for amnesty.  Chairperson, that is not an unequivocal taking of responsibility for the consequences that took place on that day and I'm saying, for that reason and that reason Chairperson in particular, he is not owning up to the responsibility of his action.  In fact that is not in accordance with the intention of this Act.  The spirit of the Act, Chairperson, for granting amnesty, is for the person who did that which is wrong to somebody, to come to this Commission and say:  "I did this thing, it was wrong, I appreciate that, it was unlawful, it was a crime, then I apply for amnesty."  The victims are here to listen to that person who talks like that and that has not been the case here.  Thank you.

CHAIRPERSON: Thank you Mr Mapoma.  Mr du Plessis, any reply?

MR DU PLESSIS: No reply.
NO REPLY BY MR DU PLESSIS

ADV SANDI: Sorry, Mr du Plessis, just to come back to you on one thing.  Are we in a position here to say in respect of whose murder and attempted murder the applicant Mkosana is applying for?

MR DU PLESSIS: I'm not in the position to state that - to assist the Commission in that instance.  The reason for that being, we've been - the applicant has been supplied by the Commission with a list of names or supplied by a list of names and as such we went through that list, but he is not in a position to indicate to myself, as his legal representative, as to which specific persons he's applying for.  I'm not ...(intervention)

ADV SANDI: Because I understood him to say that he's only taking responsibility in respect of those people who were part of the small portion of the crowd that was advancing, that was his responsibility, only in relation to members of that crowd who were murdered or injured.  He's taking no responsibility whatsoever, as I understood him, for the acts committed by soldiers who were shooting from Fort Hare.

MR DU PLESSIS: Indeed Mr Commissioner, it is indeed the evidence of Mr Mkosana before this Commission, that and I heard my Learned Colleague, that he's only applying for the people who got shot, hurt or killed in the instance for the order that he issued.

CHAIRPERSON: Yes and I think you have made it clear in your application and in your case that there are a number of people who have been injured, the names are available.  You've not been able in the circumstances, to specifically identify people, but I think you've also offered to look into it if the Commission feels that can be ...

MR DU PLESSIS: Indeed, Mr Chairman, indeed.

CHAIRPERSON: No, we've noted that.  Yes and I think the details of the killed and injured are available.

MR DU PLESSIS: Indeed Mr Chairman, they available.  Yes, indeed.

CHAIRPERSON: In the papers.

MR DU PLESSIS: Yes, indeed.

CHAIRPERSON: Mr Nompozolo, have you got any reply?

MR NOMPOZOLO: Thank you Mr Chairman, no reply.