Amnesty Hearings — Kimberley — 2000-02-04

MR KOOPEDI: The second applicant, I am totally leaving that to the capable hands of this Committee, but my submission is that you'd have to make a credibility finding on him and depending on that finding, then the matter is closed.  What I'm saying is, if it's found that he is telling the truth, you can't take the matter any further, he was acting under an order, you know, all the political motivations are covered, no personal gain, but if no so, then yes, there are problems.  Now with regard to the first applicant, Mr Mkosana, he's applying for amnesty for the killing of 28 people and the injuring of many others.  He has in his testimony and in the documents before you and in particular Exhibit A, told you that on the day in question he was acting as a professional soldier, not just a soldier.  I believe in your considerations, a subjective test would come into play when you make a consideration as to the facts that informed him at that stage.  I would ask Chairperson, Honourable Committee members, that this subjective test must be a test restricted to a professional soldier, as he has said, not an ordinary person.
	If I could go on.  He says in his testimony that he heard two shots being fired and then there are no further shots.  He then makes contact with his superiors.  His superior being van der Bank, speaks to someone else, Gen Ulser, comes back to him, Mr Mkosana and says to him:  "If you are being shot at, shoot."  Nothing indicates that between the time of the lapse of the two shots, the end of the two shots, until he receives this order that should beg there was any shooting, it is clear from his evidence and all other documents before you, that no one had heard any further shots, there wasn't any shooting, the order was that:  "If you are being shot at, shoot back."  
	As my learned friend has put it, Mr Smith, he doesn't ascertain as to whether, you know, are we still under attack, he just proceeds and gives an order to shoot.

CHAIRPERSON: Yes.  Yes, Mr Koopedi it is fairly safe to assume that there were no further shots, if there were shots before and if the evidence of Mr Gonya is accepted on this issue, that there were no shots at all, or at the very least that there were no shots from the advancing crowd, then it's safe to conclude that there couldn't have been any further shots.

MR KOOPEDI: That is so, thank you, Chairperson. And my submission based on that is therefore that the order was:  "Shoot, if you are being shot at."  Clearly at this stage, on his own version and on all other versions, no one was being shot, but he still went ahead, issued an order that people should be shot at.

ADV SANDI: Is it not the position here that you had people like van der Bank using binoculars to constantly monitor the crowd.  You also had a helicopter or helicopters hovering around, surely those people must have seen, or they would have seen any member of the crowd being in possession of a firearm and releasing a shot on the soldiers.

MR KOOPEDI: None of them, on the documents that I've read, saw anyone having a firearm or shooting at this section of the troops.

ADV SANDI: That would mean that the whole exercise of the monitoring of the crowd with helicopters and use of binoculars would have been a useless exercise.

MR KOOPEDI: That is indeed so, which also goes to the credibility of Mr Mkosana.  He has given evidence to the effect that van der Bank was airborne.  He kept using the word airborne.  In my mind he was very certain that this person was on a helicopter.  The evidence before you, which has been incorporated I believe in these proceedings, van der Bank gave evidence.  In his evidence he says he doesn't put himself in a helicopter, he puts himself at a building.  That is clear from the page 222, which Honourable Commissioners were referred to, he puts himself on a building.  At all times during, that is the time before he is asked for directions in terms of the attack and immediately thereafter he was not on any helicopter, he goes on on page 222 that at some stage the people moved away from his side, he could not see them.  I would assume that if he was on a helicopter, people would not move from his side because he was looking down on them.

CHAIRPERSON: And the situation could be even worse from he perspective of the applicants if the possibility that Mr Mkosana conceded, were to be the case that the shots that he heard were fired from the helicopter.

MR KOOPEDI: I missed that Chairperson.

CHAIRPERSON: If that possibility which Mr Mkosana seemed to have conceded in his evidence that the shots could possibly, that he heard could possibly have been fired from the helicopter, wouldn't that render the position even worse?

MR KOOPEDI: I agree.

CHAIRPERSON: In respect of the attack on the crowd?

MR KOOPEDI: Yes, I agree, it would have been a worse situation.  Now this aspect of having obtained the order and giving the order, I believe it's the crux of this application and I believe, my submission is that there would be two ways to look at this aspect.  The first is, was Mr Mkosana and his troops being shot at?  If the answer to that is yes, if this Committee can find that they were being shot at, I believe it's the end of the question in that he would have relayed the truth to his commanders who then gave him an order, but if not, if the finding is that these people were not being shot at, the question would then be taken further to be:  was it reasonable for him as a trained and a very senior soldier at that stage, was it reasonable for him to assume that they were being shot at?  The second part ...(intervention)

ADV SANDI: Sorry, Mr Koopedi, before you go any further with that, isn't there - you see from time to time, we find ourselves having to take decisions in cases where facts and evidence are very complex.  ...(indistinct) or perhaps in a case like this, one could easily fall into the trap of an armchair critic and perhaps in that process ignore the fear which existed on the part of the soldiers.

ADV SANDI: You see, people do a whole lot of things when acting under fear, they can even imagine things which are not there.  Isn't there such a danger here that we ignore the subjective - you said something about the subjective test - we ignore the subjective fear on the part of the soldiers?

MR KOOPEDI: There is indeed that danger and I believe that is why in my opinion, I referred to the subjectivity which I know this Committee, the subjective test which this Committee would use and my submission is that in applying this subjective test, this must not be a test in terms of a person or a lay person, who was afraid.  No, this is a person who says:  "I was a professional soldier on that day".  This is his evidence.  He was acting as a professional, not as a person who could have been swayed by rumours or information that he received anyway whilst he was a professional soldier and on top of that the most senior person on the ground who had more than the responsibility of his life, he was responsible for all the troops that were on the ground at that stage, so my submission is that in looking as to whether could this man have thought that he's being shot at, this man that we're talking about should be classed as a professional soldier.

ADV SANDI: What is a professional soldier?