Amnesty Hearings — Kimberley — 2000-02-04

MR NOMPOZOLO: Thank you.  Yes, Mr Chairman - I'm sorry, yes, Mr Commissioner.  All I'm trying to say, Mr Commissioner is that he has been truthful to the Commission and he has not been criticised on his evidence at all and at the end of the day, the question is whether he did take an order from Mr Mkosana.  Now it was never put to him that:  "You were never ordered by Mr Mkosana to shoot."  It was - all that was put to him was whether there are specific instructions for the rocket launcher to be used and he's saying in that situation it would not apply because we were not attacking the house, we were not attacking a running car which would be the situation under which you get a specific command to use the rocket launcher.  At the time they left the army base and at the time they were on the scene, it was known that they'll be dealing with crowds of people.
	The rocket launcher was taken to the scene knowing full well that they'll be dealing with crowds of people.  Now how then is it expected for him not to shoot when there is an order to do so because a specific order regarding to a house or a car should be issued.  There was no situation that that order could be issued, therefore he has covered his back by shooting because had he not shot and something happened, it would be said somebody had a rocket launcher and was assigned to use it and he didn't use it.  He found himself, Mr Chairman, in a very difficult position, let me say, but after having said that the other aspect I wish to bring to the Commission is the fact that it is said he acted unlawful in the circumstances, that's what Mr Mkosana is saying, but Mr Mkosana was a Colonel, he does not make a report to the relevant army personnel so that the law can take it's course.  He does not do that.  He makes an oral representation, reporting about the incident to his senior but he does not follow the proper army channels to have Mr Gonya charged.  Now with that, Mr Chairman, it is very clear and it is very clear on what my learned friend, Mr Mike Smith pointed out, that there was a cover-up on this incident on prior Commissions as to what actually happened and that is why he was not charged, because there was nothing at that stage which said that he committed something unlawful.  It's only now that people are running away from the responsibility.  He has actually admitted to the Commission that:  "I did shoot and I understood an order to be saying I must shoot."  
	That, Mr Chairman, from my side, warrants that, with respect, that he must get the amnesty for his deeds of the day.

MR SIBANYONI: To suspect a cover-up, he was also not called to the Board of Inquiry yet he is a person who fired some shots.

MR NOMPOZOLO: Yes, thank you.  That's also correct, Mr Chairman.

ADV SANDI: So, maybe one last point from me.  Once again on the issue of proportionality, how does the applicant justify his use of this very dangerous weapon to the marchers, which he repeatedly states is normally used in situations of war?

MR NOMPOZOLO: Thank you Mr Commissioner.  Mr Commissioner he is saying, no I think the first point which we'd need to look at is that it was not his initiative to bring the weapon in question to the scene.  It was the plan, it was part of the plan, which he is not part of it, but he was just a tool in that situation.  When he had to use his discretion in terms of shooting, he is saying he shot where he thought that it was in front of the crowd, as a result dust came up.  He does not dispute that it might  have hit the crowd, but he is saying:  "Well, as far as I was concerned, it hit in front of them.  As a result they did not come nearby again."  That is the proportionality that he used to circumvent what was the crowd coming towards them.

CHAIRPERSON: Thank you Mr Nompozolo.  Mr Smith have you got any submissions?

MR SMITH: Thank you Mr Chairman.  Mr Chairman, in regard to the second applicant, Mr Gonya, my submission is that the evidence that he has submitted here, quite clearly he has not complied with Section 21(c) in making a full disclosure.  He submitted evidence in regard to the order given and the delay in carrying out this order which is the first time that it's been submitted before any Inquiry and in respect of his evidence that he fired the grenade or he fired the two grenades into the ground, there is in volume 2, no bundle 1 page 309, there is an annexure to a draft indictment which shows that a Mr Gola died as a result of shrapnel wounds.
	My submission is, Commissioners, that Mr Gonya fired this grenade launcher without any order, maybe he may have been panicked, but he did not receive any order to fire it and that he is not accordingly afforded, or that he has not complied with the provisions of Section and especially Section 20(ii).  	
	In respect of Mr Mkosana, my submission is, Commissioners, that firstly the Defence Force covered up what was happening.  Mr Gonya was not called, they were fully aware of who had the rocket launchers from his evidence.  He was not called and that was quite clearly to cover it up.  When these two applicants were then advised at some time that they could face criminal charges, they decided to now disclose what had actually happened.
	In respect of Mr Mkosana, Mr Commissioners, my submission is that in order for his action to fall within the definition of an act associated with a political objective, he must have committed it bona fide with the object of countering or resisting.  Now in his evidence he relayed to van der Bank that they were being shot at.  He was given an order to shoot back.  He then gives evidence further to say, on his own version, that he amended this order to say:  "Use minimum force", but then if he was bona fide in his action, before giving such an order, he should have ascertained whether shots were still being fired, because his order was in effect, if you are being shot at, shoot back.  It's an order to act in defence of their own lives, in self defence.

CHAIRPERSON: So it's a conditional order.

MR SMITH: It's a conditional order, Mr Chairman and before executing that order, he does not go to the trouble of ascertaining whether shots are still being fired, whether they are in fact still under threat.
	And in respect of the proportionality, Mr Commissioners, there is the - I think it's a report by Mr Skrube who found that in respect of the persons stationed at Jongelanga, which we determined was a number of 36 soldiers, amongst them they fired 185 bullets and the group at Fort Hare he determined was a group of 78 and they fired 240 bullets.  
	My submission is that the relationship between the supposed attack, if one accepts that there was an attack, and weighed in proportion to the reaction, was totally out of context.  My submission in the end is therefore that both applicants have not complied with the requirements of the Act and that the application should be refused.

CHAIRPERSON: Thank you Mr Smith.  Mr Koopedi?

MR KOOPEDI: Thank you, Honourable Chairperson, fellow Committee Members.  I will have a brief address.
	With regards to the second applicant, Mr Gonya, my submission is that you'd have to make a credibility finding on him, or on his evidence and depending on that finding, the matter is closed on his side and that's my only submission about him.
	Now with regards to the first applicant,  Mr Mkosana.  Mr Mkosana is before you, seeking amnesty for the killing of 28 people and the injuring of many, many other people on the 7th of September 1992.

ADV SANDI: Sorry Mr Koopedi, I did not quite pick up your attitude in relation to the first applicant, Gonya.  Did you say you're still opposing the application?