Amnesty Hearings — Kimberley — 2000-02-04

MR GONYA: Yes, that is correct, it worked like that.

MR DU PLESSIS: Yes.  Then again I ask you, I fail to understand today, on your own evidence, how could it be possible that when a general order of fire is given and in this instance the evidence of Col Mkosana is very clear and you sat in the Commission listening to his evidence the whole time, that an order was directed specifically to Maj Mbina, I fail to understand how could you, at that specific time, understand that the order was directed to you, to utilise that 40 mm grenade launcher Sir, can you comment on that?

MR GONYA: There's nothing I comment about that.

MR DU PLESSIS: Is it possible, Sir, today in hindsight, that it could be argued that maybe you made a mistake?  You're a human being and you made a mistake in the light of the situation.

MR GONYA: I was given a rocket launcher.  I was the one who was given a rocket launcher, so when the order was issued by Col Mkosana that we must fire, so I took it as if I was supposed to use that rocket launcher, because I was the only one who was given that rocket launcher.  It differs, when there are a number of you given that rocket launcher, you would expect a different order, but if you are alone, you assume that you have to obey that one order, because there was one rocket launcher.

MR DU PLESSIS: Mr Gonya, so your evidence today is that on the specific day in question you worked on a presumption, you assumed that you should deploy the weapon, you worked on a presumption in your own mind.  Is that correct?

MR GONYA: I wouldn't say so.

MR DU PLESSIS: Because there's clearly no evidence that there was any, at any specific time during this incident, that there was a specific order directed to you in person to deploy this weapon.  Your comment?

MR GONYA: No, there was no specific order directed to me to use the rocket launcher.

ADV SANDI: Mr du Plessis, just for my own clarity.  Is there any indication in the manner in which this order has been formulated to indicate that the witness was being excluded from firing like the rest of his group?

MR DU PLESSIS: Mr Commissioner it is my humble submission that indeed, that the evidence of Col Mkosana indeed laid the basis for this argument, that he directed the instruction to Major Mbina as to the fact that the order was, "Major Mbina, minimum force, fire".  Now it is clear from the evidence of Col Mkosana that there were certain stages through which the orders would have been given in these circumstances as the Commission has clearly requested Col Mkosana to clarify for the Commission as to what type of procedure would have been followed and the basis for this argument is that the orders according to Mr Mkosana were directed to Major Mbina on the basis of, Major Mbina, minimum force, fire.
	Last aspect Mr Commissioner.  I refer the Honourable Commission to the application of the applicant before this Honourable Commission today and mere specific to the fact that page number 29, at paragraph 2 thereof and the last sentence,
"My instructions (pertaining to - in first person) were that I would only open fire upon the direct order of Col Mkosana."
And therefore my cross-examination, Mr Commissioner, is directed to this specific issue.  Whether there was a direct instruction to the applicant before this Honourable Commission issued by Col Mkosana, and that's the basis for this cross-examination.

ADV SANDI: Let us get that more clearer from the witness.

MR DU PLESSIS: Yes.

ADV SANDI: Did he mention the name Mbina?  Mr Gonya, are you able to recall.  How exactly did he express himself when he was giving this order?  What did he say?  Can you try and repeat the same manner in which he expressed himself, word for word?

MR GONYA: Can you please repeat your question Sir?

ADV SANDI: What exactly did Mkosana say when he was giving the order?  Did he mention the name Mbina?

MR GONYA: Col Mkosana did not direct this order to Maj Mbina because the vehicles were standing this way, on the right side it was Maj Mbina's car and then on the left it was Maj Mkosana's.  Maj Mbina couldn't do anything at that time because he was second in command.  The person who was there on the ground was Col Mkosana.  He did not specify and say that Maj Mbina must shoot, using minimum force, he did not say that.

ADV SANDI: Thank you Mr du Plessis.

MR NOMPOZOLO: I'm sorry Mr Commissioner.  I'm sorry Mr Chair.  I would love this to be put in a correct context.  The sentence my learned friend refers to says
"My instructions were that I would only fire upon direct order of Col Mkosana."
It doesn't say to use the rocket launcher.  It says on instructions of Col Mkosana.  That has got so many interpretations.  That can be interpreted that when Col Mkosana says fire, then I would fire, so my learned friend is quoting it a little bit out of context, with respect.

CHAIRPERSON: Yes, I suppose these are matters for argument, although the interpretation that Mr du Plessis puts on it is a reasonable on, it is not an unreasonable interpretation and I think he's asking - I don't think - he's probably going to ask your client to comment on that, but that's one of the interpretations that he puts on it, so it's a matter of argument really.

MR DU PLESSIS: Mr Gonya, you indicated in your evidence-in-chief that Col Mkosana had three radios with him, is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: You've indicated that one radio was to be in direct communication with the helicopter, is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: And the one radio was to be in direct communication with Mr van der Bank.

MR GONYA: That is correct.

MR DU PLESSIS: And the last one with the company commanders.  Is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: No, I put it to you that the evidence of Col Mkosana, you've heard the evidence, was that van der Bank was in the helicopter.

MR GONYA: Col van der Bank was not in the helicopter, he was in the Parliament building, on top of the building.  He was not in the helicopter.

MR DU PLESSIS: You also indicated that you've heard and you've seen no shooting from the crowd that was approaching you.  Is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: Is it possible that somebody else in this specific instance, Col Mkosana, could have heard shots from the crowd, is it possible?  Maybe he heard something.

MR GONYA: It is not possible for him to hear because he was busy on the radios and we were the ones observing the crowd.

MR DU PLESSIS: Your attorney indicated to Col Mkosana under cross-examination that you will testify to the fact that Col Mkosana was on the ground, he was not in the Buffel.  Can you elaborate on that?

MR GONYA: Can you please repeat?

MR DU PLESSIS: The attorney of record, my learned colleague, indicated to Col Mkosana under cross-examination that it is his instructions that Col Mkosana was on the ground, can you elaborate on that?  He was not in the Buffel, I presume then, or can you just elaborate on that?

MR GONYA: No, he was not on the ground, we were together in the Buffel until 5 o'clock.

ADV SANDI: Just explain one thing.  I don't know, maybe you'll ask him a question on a different aspect.  Did he at any stage say to you he had heard some shooting coming from any direction?  Did he mention anything about shooting before giving the order?

MR GONYA: No.

ADV SANDI: Thank you.

MR DU PLESSIS: During your period at Oudtshoorn, the instruction or the course you did, what is the specific command that would be issued when neutralising the 40 mm grenade launcher?  What specific command would be given?

MR GONYA: We would be given any command and then you would be told which target to use that rocket launcher.  If maybe we are patrolling a certain area and then we'd be contacted that a certain car was running away, you would be told to fire and then you will fire on that car, on that running  car.