Amnesty Hearings — Kimberley — 2000-02-04

MR DU PLESSIS: Mr Commissioner I hear the question and that firstly towards the gun shots, it's - we have to go back into that specific situation where the crowd is storming onto this vehicle that was deployed, people are scared in the circumstances and it's indicated by Col Mkosana in his evidence that at some stage he heard at least two or three shots.  Now it's debatable as to the question whether Rifleman Gonya, in the same Buffel, would have heard the same shots.  Now with all due respect, we're working with human beings here, Mr Commissioner.  The one in his heart believes that he heard some shots and he conveyed that to his superior.  The other person in this same situation said no, he did not hear any shots at all.  It's my humble submission that in these circumstances, that it could not be argued that Col Mkosana in his right mind believed that when he said he heard shots, that there were no shots, just because Rifleman Gonya said he didn't hear shots.
	Furthermore concerning the radio communication, it was specifically asked to Rifleman Gonya during cross-examination as to certain aspects of the conversation he heard and he related to the Commission.  Certain aspects he was still sitting in the same position as to where he was previously seated and he did not hear that discussion.  I refer the Honourable Commission tot the specific situation where this - it was reported that some Rifleman was shot, that he didn't hear that clearly, he didn't hear where he was shot or how it came about, but he heard that if the crowd was past the trees, then you should shoot.  It's highly unlikely that if - or that even shows the same as previously, that if he hears this, but he doesn't hear the shot, therefore it is my humble submission, Mr Commissioner, that that aspect has to be dealt with in the situation as - that is how it prevailed according to this specific witness.
	As to proportionality to the force, it's indicated, Mr Chairman, that the situation that prevailed was that this crowd was storming to this Buffel and the question was put to the Commissioner, to Mr Gonya, and asked:  "What would have happened if you did not obey the order that was given to you?"  And he indicated that he would not have been alive or sitting here today and that pertains to the question that it, in my mind and it's my humble submission that the crowd was approaching at the speed that they did not know what was going to happen and they were fearing for their lives and therefore it's my humble submission that the force in this instance that was used, was the force that they in their minds, on the date of the incident, portrayed as being the necessary force to avert this action of the crowd, Mr Commissioner.

MR SIBANYONI: But when they were ordered to shoot, they hesitated until the command was given for the third time.

MR DU PLESSIS: That's the evidence of Rifleman Gonya, that is not the evidence of Col Mkosana.  The evidence of Col Mkosana is that the order was relayed to Maj Mbina who subsequently ordered his troops under his command to open fire.  I hear that that is the evidence of Mr Gonya, but that is not the evidence of Col Mkosana.

CHAIRPERSON: Yes, thank you Mr du Plessis.  Mr Nompozolo?

MR NOMPOZOLO: Thank you Mr Chairman.
	Mr Chairman, let me open by saying Rifleman Gonya appeared to me as a very unsophisticated person.  He was holding a position of a Rifleman at the time of the incident.  He was working for the Ciskei Defence Force.  Now, if one can take everything in context, Mr Chairman, the army issued them with armoury, knowing fully well that they are going to meet with people.  It is very clear the message the army had, Mr Chairman, that by giving them lethal weapons like those they were given, it was very clear that they were going to be used.  What was remaining was when to use them and when the time came, Mr Chairman, an order was issued for them to carry out what the army knew was going to happen and they carried out orders, Mr Chairman.  Mr Chairman, with respect to my Learned Colleague, I'm not criticising him, but Mr Gonya was an honest witness, he has actually revealed some things which were not known even by the Commission, which were not known by anyone regarding this incident.  He would not make it up, Mr Chairman, for instance, that Mr van der Bank went to Parliament and used binoculars, where would he take that from?  He's being honest.  He's saying that:  "Well, I understood that the order was saying I must shoot."

CHAIRPERSON: Yes, it appears from the testimony of Col van der Bank - Major General van der Bank as he's called here in the papers, that he was actually on the ground.  He says he was in the complex and he was stationery on the ground somewhere.  He was actually looking at what was going on.

MR NOMPOZOLO: Which Mr Chairman ...(intervention)

ADV SANDI: Page number 222, the first line on page number 222, he said:  "I was stationed at the complex" Mr Chairperson.  Thank you.

CHAIRPERSON: Thanks.

MR NOMPOZOLO: That being the case, corroborates the evidence of Mr Gonya because according to Mr Mkosana, he was in the helicopter, he was not anywhere, he was in the helicopter.  Now, why I am saying he's an honest witness, Mr Chairman, all along it was known that the crowds started shooting at the soldiers according to the information which has been going around and according to him, he never saw anyone shooting and actually according to him, the order was not obeyed on two occasions, because the soldiers had a different view from the order.  Now that being the case, Mr Chairman, it shows how honest he is and moreover he is saying all along, "After I fired these two shots, I sat back and then at the army base" - he has been consistent on his version, "at the army base I showed my commander and I said: 'Look, this is what I've used".  That was never challenged, he was never cross-examined about that and on their evidence, Mr Chairman, Mr Mkosana is saying:  'I even reprimanded him.'  He's saying that in his evidence-in-chief.  The witness was here, that was never put to him that: "You were reprimanded", so that he can answer to that.  He has answered honestly and he has been open.  He played open cards with the Commission and with that in mind, Mr Chairman, I would say in terms of honesty and the truth, the scale falls to his favour.

ADV SANDI: Mr Nompozolo, I hear that you keep on saying Mr Gonya was an honest witness.  Well, I don't know about that, but I trust that perhaps you might have the support of Mr du Plessis because I see that he did not criticise his credibility in his argument.