Amnesty Hearings — Kimberley — 2000-02-04

MR DU PLESSIS: Furthermore Mr Chairman, I refer to (b).
"The act, omission or offence to which the application relates, is an act associated with a political objective committed in the course of the conflict of the past and in accordance with the provisions of (2) and (3)."
	Your Worship, it's also my humble submission that in this regard and I refer the Honourable Commission to the following:  regarding the act as such, in general the applicant radioed to his superior, Col van der Bank, to request permission to open fire on the marchers and that once such authorisation was received, the applicant then passed it on to Capt Mbina, who  in turn authorised specific sections of the troops to open fire.  It is common cause that this  resulted in the death of 28 or 30 people, Mr Chairman and therefore I can also refer the Honourable Commission to the evidence related by Maj Gen Marie Scholtzliech in this regard.  I refer the Honourable Commission as to the testimony - as to the deployment and circumstances that reigned on the 7th of September 1992 and that was given to the Honourable Truth and Reconciliation Commission by Maj Gen Marie Scholtzliech,  the applicant, in this regard, Col Mkosana and Maj Mbina.  
	Association with the second part thereof,
"Associated with a political objective, conflict of the past,"
it is common cause Mr Chairman, that that march was planned by the ANC/SACP and Cosatu Alliance and it is common cause, according to the applicant, that it was the instructions from their Intelligence Unit that it was for the mere fact to take over the Ciskeian State or Government.
	I refer the Honourable Commission to Exhibit number A which is before the Honourable Commission again as well as the testimony before the Truth Commission in this regard, therefore it's my humble submission, Mr Chairman, that this application indeed also complies with (1)(b) of the Act.  
	This argument is not bound or limited to this, is not limited to this and I refer the Honourable Commission to all the other reports, namely the Picard, Goldstone and Independent Board of Inquiry as well as the Ciskei Defence Force Board of Inquiry which was assembled for the purpose of investigating this matter.  	That leaves us lastly, Mr Chairman, with the applicant has to make a full disclosure of all relevant facts.  It's my humble submission that the applicant in this instance, in this regard, Col Mkosana, made a full disclosure of all the facts to his knowledge.  He was put under cross-examination by my Learned Colleagues in this Commission as well as the Commission and he answered all the questions,  it's my humble submissions, truly, honestly and to his capability.  He has also referred the Honourable Commission to all the facts pertaining to this issue, that's not just relevant but could also be acquired by the applicant, namely the facts that's pertained in bundle 1 and bundle 2.
	Therefore, Mr Chairman, it's my humble submission that without being prescriptive, that the applicant has complied with the Act and therefore should be granted amnesty.  If there's any further aspect the Honourable Commission would like to hear me on, I would gladly discuss that.

CHAIRPERSON: There's just one more issue.  One of the criteria for determining whether the conduct of the applicant is associated with a political objective, is the one of proportionality.  Would you  deal with that requirement in the circumstances of the particular case, whether the action taken was proportionate to the objectives sought to be achieve?

ADV SANDI: Maybe before you deal with that, I can just add one thing here.  Are we not faced here with quite some serious contradiction between the evidences of the two applicants?  Can you deal with that as well?

MR DU PLESSIS: Mr Chairman, let me first deal with that aspect you've raised now.  It is indeed true that before this Commission today, there are actually two versions, the one of the Colonel, Col Mkosana, and the one of Rifleman Gonya.  Indeed, Mr Commissioner, it is so that it is my humble submission that the evidence leans to the favour of Col Mkosana, in as far as the military structures and command has been explained to this Commissioner, whereby certain commands would have been relayed in certain stages to certain people or persons under the command of Col Mkosana.  I refer the Honourable Commission to the testimony of Rifleman Gonya and it's exactly the point that was raised concerning the exact command that was given to him and at no stage, Mr Commissioner, it's my humble submission, is it on record and was clarified under cross-examination or it was determined under cross-examination, that Rifleman Gonya understood this general order as to open fire or that he should also open fire and therefore it's my humble submission Mr Commissioner, that this version of Mr Gonya is in actual fact in conflict with Col Mkosana, but the favour indeed leans to the Colonel's version that he indeed not instructed Mr Gonya to open fire.

ADV SANDI: According to the evidence of Gonya, he did not hear any gun shot before the order was issued, yet they were together in the vehicle with Mkosana and he also did not hear Mr Mkosana give any report to van der Bank about a gun shot that had just occurred.  Aren't those very serious contradictions between the two versions?