Amnesty Hearings

ZAMILE THOMAS Gonya: (sworn states)

CHAIRPERSON: Mr Nompozolo.

EXAMINATION BY MR NOMPOZOLO: Thank you, Mr Chairman.

Mr Gonya, during September 1992, it's common cause that you were a soldier employed by the Ciskei Defence Force.

MR GONYA: That is correct.

MR NOMPOZOLO: And it's also common cause that at that stage your rank was that of a Rifleman?

MR GONYA: That is correct.

MR NOMPOZOLO: It's also common cause that on the 7th of September 1992 you were deployed with some other soldiers in the vicinity of Bisho Stadium, the Telkom or the Post Office Exchange then and the University of Fort Hare Branch at Bisho, in that vicinity?

MR GONYA: That is correct.

MR NOMPOZOLO: It is also common cause that you were under the command of Col V A Mkosana then.

MR GONYA: That is correct.

MR NOMPOZOLO: Now, can you tell the Commission at the time of the incident with what you were armed?

MR GONYA: Come again.

MR NOMPOZOLO: Can you tell the Commission what weapon was given to you on the day in questions?

MR GONYA: Yes, I can tell the Commission.

MR NOMPOZOLO: Yes, please do so.

MR GONYA: The weapon that was given to me from our base, the Ciskei Battalion, we went with Col Mkosana to Bisho. We were told there that we were going to Bisho, it was myself Col Mkosana. I was given a hand grenade. I was working with this hand grenade.

MR NOMPOZOLO: Now how many hand grenades were you given?

MR GONYA: A rocket launcher, it loads six.

MR NOMPOZOLO: Were you given, at the army base, any instructions when to use the rocket launcher?

MR GONYA: When I was given this rocket launcher, I was told that I was going to be with Col Mkosana as I was using this rocket launcher, I was going to hear or get instructions from him and when he was giving me an order to fire, I would use the rocket launcher.

MR NOMPOZOLO: For the purposes of firing, what orders would one as a soldier expect? What orders, can you elaborate? What category of orders one should expect?

MR GONYA: You wouldn't just shoot as a Rifleman, because as a Rifleman, you have to get instruction from your company commander, you cannot just shoot without getting instructions.

MR NOMPOZOLO: Now what specific instructions would you need to use the rocket launcher? Are there any specific instructions?

MR GONYA: According to the situation at that time, they did not tell me how to do it, but what I know is when it was said that I should fire, I had to continue that way, but in certain a certain situation when you are using a rocket launcher, you would be told to fire at a certain car, or a certain house, or a certain building, so in that situation I was not told that way.

MR NOMPOZOLO: And at the time you were given this rocket launcher, there were no instructions whether you'll be going to a house or to a - you would be hitting a specific target.

MR GONYA: No, I was not told.

MR NOMPOZOLO: Now let's go to the scene now. You are already on the scene. What happened there?

MR GONYA: What happened there is that those two vehicles, the one I was with, Col Mkosana and Maj Mbina's vehicle, those two vehicles were stopped at the Telkom exchange and the crowd from King William's Town, they went in the stadium and we were stopping there in that place so we saw this crowd coming from the stadium at the back and we were there with Col Mkosana. It came towards our direction, coming out of the stadium and at that time I was, we were on the left. One company was on the left side and the other on the right side.

Col Mkosana had three radios with him. The first radio, he operated it with the helicopter and the other radio he communicated with Col van der Bank and the other radio he communicated with the company commanders.

When this crowd was coming towards our direction, Col Mkosana contacted Col van der Bank and he told him that the crowd is coming out of the stadium and it was coming towards our direction. Col van der Bank was in Parliament at that time and he was looking through the binoculars in the Parliament building. Col van der Bank told Col Mkosana, asked Col Mkosana whether he sees a certain tree and then he said that if they had passed that tree, he must inform them.

Indeed the crowd passed that tree and then Col Mkosana told Col van der Bank. He then said that we must fire them and then Col Mkosana called out and said: "Fire" after the crowd had passed the tree. He said "Fire" and the soldiers looked at each other. Nobody started shooting. He called out again for the second time and the soldiers didn't shoot. We looked at each other. He said that again for the third time. At the third time he was shouting at us saying: "I am saying fire" and then the soldiers started shooting because they were not used to that situation, that's why they did not shoot at first. It was their first experience to shoot at the people. That is why when he was saying fire, Col Mkosana and he was also speaking over the radio with Col van der Bank, I started shooting with the rocket launcher, left and right and in those rocket launcher, I shot pointing at the crowd. What I wanted to do is that those people must turn back, they must not come to our direction and after shooting those two rocket launchers, I put the firearm in the car and then I sat down and the shooting continued with the rifles.

Some of them fell down, some went back to the stadium and when they were in the stadium, he then said that we must stop firing. Col Mkosana said that we must stop firing.

MR NOMPOZOLO: Now at the time you were firing, you have already told the Commission that you had an order which was given to the soldiers three times. Did you believe it to be a legitimate order?

MR GONYA: The order that was issued by Col Mkosana, I wouldn't know whether it was legitimate or not, I don't know whether it was from him or Col van der Bank, I only heard him saying that we must fire, giving out that order.

MR NOMPOZOLO: Now from your side as a soldier, did you believe to obey the instruction he was giving?

MR GONYA: Yes, I had to obey that order.

MR NOMPOZOLO: Now, regarding the incident itself, you have already told the Commission that soldiers were reluctant, to the extent that a third order had to be issued for them to shoot, how do you feel about the incident?

MR GONYA: What happened there, that incident, according to that situation, when I perceived the situation at that time, those people were not armed, he should have just said that we must maybe shoot two rounds and must observe the reaction of the people, but he only said that we must fire and then he ceased fire when the people went to the stadium, that is when he told us to stop firing.

MR NOMPOZOLO: All I'm asking, I'm asking about you now, how do you feel about the incident? Do you feel good about it? Can you tell the Commission how you feel about the incident itself after it happened?

MR GONYA: After this incident had happened, I was not feeling good because when I was shooting there, I knew that the parents of the people that were affected would not feel good about it because they were also our brothers and sisters involved there, so I'm apologising for that.

MR NOMPOZOLO: Now what do you ask the Commission to do about you regarding that incident?

MR GONYA: I would like reconciliation.

MR NOMPOZOLO: And do you want to be forgiven for your role you played in that incident?

MR GONYA: That is correct.

MR NOMPOZOLO: Do you know any of the victims of the incident?

MR GONYA: No, but I used to see the people that were said to be in the stadium.

MR NOMPOZOLO: Thank you Mr Chairman. That's the evidence.

NO FURTHER QUESTIONS BY MR NOMPOZOLO

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

CROSS-EXAMINATION BY MR SMITH: Mr Gonya, did you at that time, have any experience in dealing with the grenade launcher?

MR GONYA: Yes, I had experience.

MR SMITH: Tell us about that experience. Where was that?

MR GONYA: I did a course in Oudtshoorn in Mortar Platoon, so I was under the Mortar Platoon Branch there in the Ciskei Battalion.

MR SMITH: Have you ever fired a grenade launcher in a battle situation, except for training? Did you at any stage fire it at any target before this incident?

MR GONYA: Before this incident, I did not use that, I did not fire with it because that is why I did not want to shoot directly to the target or to the crowd because I wanted to shoot on the ground, I did not want to shoot directly at them.

MR SMITH: Now you said that van der Bank said if the first order, the people in the lead of this group passed a certain tree he should be informed about it, did you hear this on the radio communication?

MR GONYA: I heard it from a radio when he was talking to Col Mkosana.

MR SMITH: Did you hear Mkosana reporting to van der Bank that the crowd were shooting or that shots were being fired at your position?

MR GONYA: No, the people that were in front of us, there was no shooting coming from those people, from that crowd.

MR SMITH: Now, ... (intervention)

ADV SANDI: Sorry Mr Smith. Yes, but the question was, did you hear Mr Mkosana reporting to van der Bank that there had been some shooting from the crowd? Did you hear that report from Mkosana to van der Bank?

MR GONYA: No, I did not hear him.

ADV SANDI: How far were you from Mr Mkosana to be able to hear the conversation between himself and then Mr van der Bank?

MR GONYA: I was sitting, he was on the front seat and I was sitting on the back seat. I was sitting on the seat that was behind him.

ADV SANDI: Thank you, Mr Smith.

MR SMITH: Thank you. When you fired, did you shoot directly into the ground or did you shoot into the crowd?

MR GONYA: I was pointing on the ground, I was shooting on the ground, not directly to the crowd.

MR SMITH: Now ...(intervention)

ADV SANDI: Are you moving onto something else?

MR SMITH: No, I'm ... When these grenades are fired, is there a lot of noise from the launcher? Would there be a lot of noise inside the Buffel if you fire these grenades from inside the Buffel?

MR GONYA: When you are shooting, the noise is not - the noise is where it lands, where it explodes, not with the launcher itself.

MR SMITH: Now, was there a Major Zulu in that troop carrier, in the Buffel that you were in?

MR GONYA: Yes, Maj Zulu was there.

MR SMITH: Did he speak to you about your firing of the launcher?

MR GONYA: I did not hear him saying anything.

MR SMITH: And did anybody speak to you afterwards, the following day or at any time to say that you were wrong to have fired that grenade launcher?

MR GONYA: No.

MR SMITH: Do you have any idea why you were not called to the Internal Board of Inquiry to give evidence?

MR GONYA: No.

MR SMITH: Were you still at the same base where you were prior to the incident at the time that the Inquiry was held in October 92?

MR GONYA: That is correct.

MR SMITH: And you also - were you in a position to observe the crowd as they were approaching?

MR GONYA: Yes, I could see them clearly.

MR SMITH: And you made a statement to say that they were not armed. Can we assume that you did not see any of them carrying weapons in their hands, firearms?

MR GONYA: No, I did not see them carrying weapons or firearms.

MR SMITH: That is all, Mr Chairman.

NO FURTHER QUESTIONS BY MR SMITH

CHAIRPERSON: Thank you Mr Smith. Mr Koopedi, any questions?

MR KOOPEDI: Just one question Chairperson.

CROSS-EXAMINATION BY MR KOOPEDI: Mr Gonya, you say you did not hear or see anyone shooting in your direction, is that correct?

MR GONYA: Yes, that is correct.

MR KOOPEDI: Now, if you co-applicant, Mr Mkosana, if he said to van der Bank that: "We are being shot at", would he have been lying, in your opinion?

MR GONYA: On our side, where we were deployed, I did not see anybody with a firearm, unless maybe on the other side, the Parliament side, we could not see on that side and the shots started from the Parliament side because there was a rifleman, a soldier, who fell down that side. I'm not sure about the surname of that guy.

MR KOOPEDI: My question is, in as far as the people who were in your immediate vicinity were concerned, which would include Mr Mkosana, if any one of those people said: "We are being shot at", would this person be telling the truth?

MR GONYA: No, he would not be telling the truth. We were not being shot at.

MR KOOPEDI: I have no further questions, Chairperson.

NO FURTHER QUESTIONS BY MR KOOPEDI

CHAIRPERSON: Thank you Mr Koopedi. Mr du Plessis, have you got any questions?

MR DU PLESSIS: Yes, Mr Chairman.

CROSS-EXAMINATION BY MR DU PLESSIS: Mr Gonya, prior to your testimony today, Mr Gonya, you were sworn in, you took the oath, is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: And you swore that you will tell the truth, the whole truth and nothing but the truth, is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: You've indicated in your evidence-in-chief that when you were given the instructions to deploy and this 40 mm rocket launcher or grenade launcher was given to you, it was given to you under the clear instructions that you would receive your instructions from the Colonel, Col Mkosana, is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: Yes.

ADV SANDI: Sorry Mr du Plessis. Who gave this grenade launcher to you?

MR GONYA: We were given those grenade launchers by the storeman for all the companies, so the rocket launcher was placed in Col Mkosana's vehicle, so I was told that I have to be in that vehicle, because I would be patrolling with that grenade launcher.

ADV SANDI: ... the senior officers from the army, who was there when these weapons were given to you?

MR GONYA: Col Mkosana was there and Maj Mbina was there.

ADV SANDI: Thank you.

MR DU PLESSIS: Now you've testified in your evidence-in-chief that according to yourself, that there were three commands given by Col Mkosana, namely to fire, but at the first two the troops didn't react to that command order, is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: It was only on the third command when he started shouting and screaming on you, that the troops indeed started to fire, is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: Mr Gonya, you also in your application, or reply to me - I'll come to that now. I seem to miss in your evidence in total where did Col Mkosana ever instruct you in person to deploy the rocket launcher, on your own version, Sir? Nowhere here is it stated in your evidence-in-chief that at any specific time, that you were in person instructed. Can you comment on that?

MR GONYA: What I heard was that we must fire. There was that order that we must fire and then when I was shooting, I used that rocket launcher.

MR DU PLESSIS: Are you sure in your mind today that the order that was given to the soldiers by Col Mkosana, was directed at yourself as well?

MR GONYA: Yes, we were all given the same order, because I was not told that as I was using this grenade launcher, I would be given a specific time to shoot or to use it.

MR DU PLESSIS: Mr Gonya, you have undergone specific training at Oudtshoorn military base in the use of this weapon, is that correct?

MR GONYA: That is correct.

MR DU PLESSIS: Now during this training, was it ever conveyed or indicated to you as an operator of this piece of equipment, that there would be different orders concerning the deployment of this specific weapon in question, to the orders that would be given to a rifleman?

MR GONYA: Yes.

MR DU PLESSIS: Of course, Sir. We work on the presumption and bear with me a minute, that if we've got the first line of defence and certain people are deployed with R4 rifles, certain people are deployed with rocket launchers, that there would be a different order that would be instructed, or issued, when each and every type of firearm would be used, that's correct.

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.

MR DU PLESSIS: So there's no specific instruction? No specific words that would be uttered when the instruction or the order is given? It can be any order for that matter, any words used in this instance?

MR GONYA: You cannot use a rocket launcher just anywhere or anyhow. There are specific places where you can use the rocket launcher, but even in the township, you would be able to use it and in order to be able to use a rocket launcher, you had to be trained. You can direct it to that chair and it would go straight to that target and not hit the person sitting on the right side or on the left side. It can work anywhere.

MR DU PLESSIS: You also indicated in your evidence-in-chief that you did not see any person in the crowd being armed. Would you agree with me that that would not be, that would not entail that there were no arms there, but it would just entail that you did not see any arms, is that correct? Is it possible?

MR GONYA: Yes, it is possible, because I did not see them.

MR DU PLESSIS: Now, it was indicated that you heard on the radio - how did it come to your knowledge that one of the riflemen or troops was injured or shot, wherever he might be, because it's common knowledge or common cause that one of the riflemen or one of the military personnel was indeed shot. How did it come to your knowledge?

MR GONYA: I heard that from Major Kushu, who was operating in that company, that was Rifleman Nabisa who was injured. Maj Kushu reported that to Col Mkosana, that there was an injured man, a rifleman, who was injured.

MR DU PLESSIS: Did you hear it when it was - did you hear this report when the actual report was made on that specific day, or did you hear it at a later stage? Did you hear it while you were sitting in the Buffel there in your chair, did you hear it then?

MR GONYA: I heard it when he was reporting it over the radio at that time.

MR DU PLESSIS: What was the exact report? What happened to this Rifleman, this troop, what happened to him? What was the report Sir?

MR GONYA: I did not listen attentively to what was happening because I was busy observing the crowd on the right hand side, so it was - that report was being given to Col Mkosana.

MR DU PLESSIS: I find it strange that you listened very clearly to what was said to Col van der Bank, you even go to van der Bank by Mkosana or Mkosana to van der Bank, when somebody is injured in this situation, you didn't listen properly. Don't you find it strange Sir?

MR GONYA: It is not strange.

MR DU PLESSIS: If the Commission would bear with me a second. So lastly I want to put it to you that it is my instructions that from my client, the applicant, Col Mkosana, that you were never instructed or - he was - an order to direct use of the utilisation of this 40 mm grenade launcher or rocket launcher, call it whatever you want, was never ever directed to you by Col Mkosana. That's my instructions. Your comment?

MR GONYA: When we - Col Mkosana was the one who was supposed to give me instructions directly of what to do when we arrived there. He had to give me specific instructions of what to do and when to do it and he did not do so, but he was supposed to do like that, so when the crowd was coming towards us, I was together with the rifleman, so I was doing what they were doing, because we were together.

MR DU PLESSIS: I have no further questions, Mr Chairman.

NO FURTHER QUESTIONS BY MR DU PLESSIS

CHAIRPERSON: Thank you Mr du Plessis. Mr Mapoma, have you got any questions?

MR MAPOMA: Just a few, Chairperson.

CROSS-EXAMINATION BY MR MAPOMA: Mr Gonya, prior to the day in question, the day of the shooting, did you hear, I mean the day before the shooting, did you hear the news that those marchers will be in company of MK?

MR GONYA: Yes, that is correct.

ADV SANDI: Mr Mapoma, just for my clarity. Where did this news come from? Was it not a rumour that MK members ... (intervention)

MR MAPOMA: No, no it was not a rumour Chairperson. Mr Mkosana said they heard from their Intelligence that MK was going to be there. Now, when you were given this rocket launcher, did you anticipate that you may have to use it on the day of the shooting?

MR GONYA: I had no idea of what was going to happen because I didn't even know how much people were armed with and this came to me as a shock that we also have to get this rocket launcher with.

MR MAPOMA: I suppose it's because you were prepared to fight with MK, together with these people, is that correct?

MR GONYA: Yes, that is how I looked at it.

MR MAPOMA: Now when you shot this rocket launcher towards the crowd, what did you observe when the rocket launcher landed?

MR GONYA: When it landed on the ground, it exploded, there was dust and the fragments, they rose in a form of umbrella and they go up in the air and even the group of people that was coming, they stopped when they saw this dust ...(indistinct), the other people. I put the rocket launcher at safe lock and I put it back in the car.

MR MAPOMA: Now, in your evidence now, is it possible that some people may have been injured by that?

MR GONYA: Yes, that is possible and because of the spreading of the fragments.

MR MAPOMA: Thank you Chairperson, no further questions.

NO FURTHER QUESTIONS BY MR MAPOMA

CHAIRPERSON: Thank you Mr Mapoma. Has the Panel got anything further?

ADV SANDI: This grenade launcher, who did you give it to after you had finished using it?

MR GONYA: After coming back from the scene at about 5 in the afternoon or evening, late afternoon, I opened the rocket launcher and removed 2 cartridges. Col Mkosana was also there and I told him that I used two rocket launchers round there and there were four left inside and they took the rocket launcher to the storeroom.

ADV SANDI: Was there any talk about you having used this grenade launcher without an order?

MR GONYA: They never uttered that to me and I would go to different places, no one ever told me about that.

ADV SANDI: Did you have any tear gas canisters amongst those weapons which you had to control the crowd?

MR GONYA: In the vehicle that we were in belonging to Col Mkosana, there were no tear gas canisters.

ADV SANDI: Do you know if soldiers from other groups or companies had tear gas canisters?

MR GONYA: Not as far as I know. I cannot say whether they had them or not.

ADV SANDI: I would assume that there must have been quite a bit of talk amongst members of the Ciskei Defence Force about what was going to happen on this particular day. A huge crowd of marchers were going to force their way into Bisho. You must have been talking a lot amongst yourselves about what was going to happen.

MR GONYA: As far as I'm concerned, as a rifleman I don't discuss any issues in the army, I am just told as to what is going to happen on a certain date and I'm always told about operations and how the people are going to be deployed because I don't get a chance to be in a conference as a rifleman.

ADV SANDI: I'm afraid I don't understand you. Didn't you have, from time to time, discussions with your colleagues from Ciskei Defence Force, discussions about a whole range of issues?

MR GONYA: Please repeat your question.

ADV SANDI: Did you not talk to your colleagues, other soldiers, just ...(ethnic), conversations? Didn't you have conversations with them?

MR GONYA: That is not possible. If you are troops you are in the one bungalow and you will also have your own ...(indistinct) and your offices, that depends on the people who are in the senior positions, not with the riflemen.

ADV SANDI: Yes, but is it not the position that soldiers were quite concerned about what was going to happen on that day with this big crowd of people coming into Bisho?

MR GONYA: Yes, that is correct. Yes, we were concerned and the reason for that we heard our brothers and sisters would be attending the march but when the situation came as it was, some of us were very concerned and we didn't even know what was going to happen, what was going to be the order of the day.

ADV SANDI: When you were deployed at Jongelanga Crescent and you saw this crowd of people coming, did you talk amongst yourselves as to how the situation was going to be dealt with?

MR GONYA: I was never deployed at Jongelanga Crescent.

ADV SANDI: Thank you Mr Chairman.

MR SIBANYONI: Mr Gonya, when Mr Mkosana gave the order or the command for the first and second time, the troops didn't fire, it would appear in the mind of the troops it was not necessary to fire. What is your comment?

MR GONYA: Yes, that is true. The command that was issued, it actually confused the soldiers because the crowd was approaching. It was very difficult to shoot in that situation because at least there were steps that were supposed to be taken before like administering tear gas and then you wait. If there is resistance, then something else would be done, that is why the soldiers were commanded for the first time and the second time that they resisted.

MR SIBANYONI: You were also one of the troops who didn't respond to the order and what is the reason? Why didn't you respond to the order for the first time?

MR GONYA: I was also with the same idea.

MR SIBANYONI: You also felt that it was not necessary to use live ammunition together with the other troop members?

MR GONYA: Yes, that is correct. It was not necessary initially to use live ammunition. Some of the things were supposed to be used to try and prevent the crowd from going further and then you wait for the response of the crowd and then something else would be done.

MR SIBANYONI: Then you said for the third time, Col Mkosana was insisting and it is only then that you started shooting. If he didn't insist or shout at the troops, in other words, there would have not been any shooting.

MR GONYA: If he never mentioned that for the first time, that couldn't have happened, but we were going to be first to do something because the crowd was approaching and it was coming closer. When he mentioned it for the first time, the crowd was just in front of us, therefore in that situation it's quite impossible to use minimum force.

MR SIBANYONI: Was the stadium not cordoned with barbed wire to prevent the crowd from coming to your direction?

MR GONYA: No, there was no barbed wire. from Telkom Exchange to the stadium, the only fence was between the Republic of South Africa and the Republic of Ciskei. When the crowd was approaching from King William's town towards the hospital, the fence was removed.

MR SIBANYONI: Can you repeat yourself?

MR GONYA: There was no fence there, the only fence was at the borders of South Africa and Ciskei. The fence that was there was removed because the people were going to get into the stadium, but around the stadium itself, there was no fencing.

MR SIBANYONI: Thank you Mr Chairperson, I've got no further questions.

ADV SANDI: Can I just come in quickly? I just missed out one thing. What did you think would have been the consequence of you not carrying out the order from Mkosana?

MR GONYA: Please repeat your question Sir.

ADV SANDI: What did you think would happen if you did not do at all what Col Mkosana was asking you to do?

MR GONYA: If I did not do that, maybe even today I would not be alive.

ADV SANDI: Can you explain yourself? What do you mean when you say you would not have been alive?

MR GONYA: Come again.

ADV SANDI: What exactly would have happened to you? If you did not do what Mr Mkosana said you must do, what would have happened to you?

MR GONYA: We wouldn't escape there because of the crowd.

ADV SANDI: You wouldn't escape from whom?

MR GONYA: We wouldn't escape the crowd.

ADV SANDI: Let me leave you. Thank you Mr Chairman. Thank you.

CHAIRPERSON: Any re-examination Mr Nompozolo?

MR NOMPOZOLO: Yes, just two aspects Mr Chairman.

RE-EXAMINATION BY MR NOMPOZOLO: The first one is; if you did not carry out the order of your commander as a soldier, what would have happened to you?

MR GONYA: That would mean that I would be disobeying the commander.

MR NOMPOZOLO: And what would be the consequence of that?

MR GONYA: A person who is disobedient is normally taken.

MR NOMPOZOLO: So where are you taken to? What is the end result of not obeying an order from your commander?

MR GONYA: If you are disobedient, you are normally taken to the senior officers to a forum whereby you will be dealt with by the senior officers and they make a decision upon that.

MR NOMPOZOLO: Now, it was said to you that it is strange by my learned friend, when he was cross-examining you, that you were in a position to hear the conversation between Mkosana and van der Bank and you could not hear the conversation between Mkosana and the other commander whose soldier was injured. Were these situations the same situation, that is, was it calm at all times before he talked to van der Bank and asked if he can shoot and after and at the time when the soldier was shot at, was it the same situation.

MR GONYA: Sometimes it would be calm but because of the noise of the two helicopters that were around, one wouldn't hear properly, but if they go and land and go to the Parliament yard, there would be calmness, it would be quiet and it was possible for me to hear what he was saying.

MR NOMPOZOLO: All I'm asking is, when the crowd was approaching and Mr Mkosana spoke to Mr van der Bank, at that time, was the situation the same with the situation at the time of the shooting?

MR GONYA: No, the situation was not the same.

MR NOMPOZOLO: Mr Chairman, there is one aspect I did not raise. With the permission of the Commission, may I raise it? I don't think it affects the evidence as such?

CHAIRPERSON: No, very well, go ahead and we'll see if anybody else wants to deal with it. We can see.

MR NOMPOZOLO: Thank you Mr Chairman. What is your highest standard passed at school?

MR GONYA: Up to standard 10.

MR NOMPOZOLO: Thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR NOMPOZOLO

CHAIRPERSON: Thank you Mr Nompozolo. Yes, Mr Gonya thank you, you're excused.

WITNESS EXCUSED

MR NOMPOZOLO: Thank you Mr Chairman, that is the evidence.

CHAIRPERSON: Is that the case for ...?

MR NOMPOZOLO: Yes, that is the case for ...

CHAIRPERSON: Yes, thank you Mr Nompozolo. Mr Smith, are you tendering any evidence?

MR SMITH: No. No, Mr Chairman.

CHAIRPERSON: Thank you. Mr Koopedi, are you tendering any evidence?

MR KOOPEDI: The same with me. No evidence tendered Chairperson.

CHAIRPERSON: Thank you. Mr Mapoma?

MR MAPOMA: No evidence tendered Chairperson.

CHAIRPERSON: Thank you. Yes Mr Du Plessis, have you got any submissions on the merits of your client's application?

ADV SANDI: Sorry, can you just press those gadgets on?

MR DU PLESSIS IN ARGUMENT: Mr Chairman, the Commission, in my address to the Commission, the Commission is well-known with the facts of this matter, the application before the Commission and therefore because of a time restraint, I'm going to limit my address to the Commission to the actual application as such and the Act.

In terms of Section 20 of the Act, Mr Chairman, I refer to the Promotion of National Unity and Reconciliation Act 34 of 1995. Section 20:

"Dealing with the granting of amnesty, if the Committee, after consideration of an application for amnesty is satisfied that: (a) the applicant's application complies with the requirements of the Act ..."

Now let me stand still there for a minute. It's my humble submission, Mr Chairman, that this application indeed complies with the requirements of the Act

CHAIRPERSON: Yes, you don't need to worry about that, Mr Smith.

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?

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 IN ARGUMENT: 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.

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 IN ARGUMENT: 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 IN ARGUMENT: 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?

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?

MR KOOPEDI: He did not describe what a professional soldier is, but I will venture to say what I believe a professional soldier is. A professional soldier is someone who not only is a soldier, you'd find that a person would be a soldier on a part-time basis, you know, where there are people who are called on conscription and they would come back, they are people who perhaps like I said, work part times, but he was full-time a soldier, he was full-time a senior person, so senior and professional was he, that he could be deployed on the ground. He was the most senior person. There was this fear that the march is going to storm Bisho, the military government is going to be taken over, Umkhonto weSizwe is going to be deployed there and possibly shoot at people. It's my submission that under those circumstances, you would only put the best you have, not a person who would look at a crowd, chicken out and believe that I'm being shot at and that's the crux of my submission. This subjective test that is applied, must be that one of that senior person, that professional soldier, the way he has called himself.

ADV SANDI: Yes, but for some of the factors, one may well apply the objective test. You don't use a subjective test throughout.

MR KOOPEDI: That is indeed so. That is indeed so. I was only merely referring to the part when you come to the subjective test. It should not be the ordinary subjective test, it should be a very defined subjective test. Who is the subject? What does the subject know? What is his area of practice? What has he been trained to do? How senior is this person?

ADV SANDI: In evaluating the conduct of such a person, don't you do that in accordance with the way he finds himself on the ground?

MR KOOPEDI: That is indeed so. That is indeed so, but we're referring to - he is on the ground, there are circumstances which he did not plan for that hit him on the ground, but he is this person, this professional soldier, this trained person, that is what I'm referring to.

CHAIRPERSON: What you call a subjective test is really that the Committee takes into account the particular circumstances that prevailed on the particular day where you had a situation as this and you had a person such as the applicant Mr Mkosana present on the scene and then you draw your inferences from there, whether conduct on his part would be reasonable under the circumstances etc. So the subjective part of this is to take into account the reality of the situation. We must assess this matter on the basis of the facts which prevailed there.

MR KOOPEDI: That's indeed so, Chairperson.

CHAIRPERSON: Yes.

MR KOOPEDI: Now the second part about this order which I was about to allude to, refers to the instruction which he received. My learned friend, Mr Smith, has alluded to that. The instruction was that: "If you are being shot at, shoot back." That was a very clear instruction. "If you are being shot at, shoot back." However, he gives an order that people must be shot at. At that stage when he gives this order, it is very clear that there was no further shooting. He goes further and amends that order and says: "Minimal force." No order was given to him that minimal force should be used.

ADV SANDI: Are we not in a situation here where the fact is that no order was issued? If we accept that this was a provisional order, shoot on proviso, that those facts you are conveying to me exist, but the evidence here is that those facts did not exist.

MR KOOPEDI: Yes, that is indeed the point and that is why I tried to put these into categories in the event that a finding is made that there could have been such an order, the event that it is found that they may have been shot at, the order that came from van der Bank was a very clear one: "Shoot if you are being shot at" and nothing mentioned about minimal force. That is if that finding is made. Yes.

Now, he - I'm still on Mr Mkosana. He states that he was in the immediate vicinity of Mr Gonya. So does Mr Gonya's evidence corroborate that part. Mkosana said in his evidence he was the only person who could order Gonya to use his grenade launcher. He however did not give such an order. In my mind it means therefore that he is then not applying for amnesty for anything that Gonya did, particularly because he did not make that order. He also goes further that his order, the order to shoot, was restricted to the crowd within sight, within his sight, because this was the crowd that was supposed to be storming them and firing at them, which means that the order to shoot was restricted to this crowd. However, people were shot at, people who were not within this crowd. It is therefore my submission that he's not applying for amnesty for people who were shot elsewhere, at other places, or by other soldiers, because this is not the order he gave. I realise that perhaps on our part we have not been very helpful to the Committee in terms of determining who and how many people were shot at in that particular area. It is simply because, with the documents available to us, I could only see a list of people who were killed, but not be able to tell who was killed at what stage and perhaps finally one should add that if I say I didn't do it, it means I'm not asking for amnesty for it, you can't ask for amnesty for something you say you have not done.

So my submission is that on all those instances where Mr Mkosana says he did not give an order, he should therefore not be granted amnesty for that and that is all.

CHAIRPERSON: Thank you, Mr Koopedi. Mr Mapoma?

MR MAPOMA IN ARGUMENT: Thank you, Chairperson. Chairperson, I've got only two issues to raise of and concerning the application by Mr Mkosana in particular.

The first Chairperson is the submission that Mr Mkosana refers to, that of I don't know, Major General Ulser. Chairperson, the essence of that submission was that he authorised the shooting to take place if they were shot at and that in itself, he was saying that: "If you are being shot at, then defend yourselves" and it is in fact along those lines that Mr Mkosana instructed that people be shot at to defend themselves, now it comes then to a question as to what act or offence is it that Mr Mkosana should be granted amnesty for in the circumstances because he is coming to this Committee to provide this Committee with a defence of self defence against a possible

offence and in a way it is my submission that he denies that he committed offences on that day, because he was acting in self defence or he instructed the forces to act in self defence. The Picard Commission Report, the Board of Inquiry and the Goldstone Report, do not take this matter any further as well, in his favour. They just do not assist him. He in fact goes on to say that he accepts, he does not accept liability for the actions that were committed by those soldiers whom he says he never instructed. The only responsibility that he seems to be taking is the responsibility for the consequences of what he calls minimum force, which he claims to have instructed that it be executed. It would be noted, Chairperson, that this minimum force, was described by the applicant quite succinctly and out of the description that he has given of this minimum force, it is highly unlikely, I submit, that the magnitude of these offenses where people died, might have been killed as a result of that minimum force which he claims to be responsible for, given the explanation that he gave this Committee of what the minimum force entails. It therefore consequently shows that he denies the offence still.

ADV SANDI: But Mr Mapoma, is it not the position here that there are contradictions anyway on that particular aspect between the evidence of Mkosana and Gonya? Gonya does not recall Mkosana having mentioned anything about minimum force. All he said was: "Fire, fire, fire." He didn't qualify the order.

CHAIRPERSON: And then to add to that, the statistics that Mr Smith referred to, all those rounds of ammunition that were discharged, at Jongelanga approximately 185 rounds of ammunition and we know that these were assault rifles, it was R4 and R1 rifles, high-powered lethal weapons that were used, so there is that submission of Mr Smith that the concept of minimum force fits in very uncomfortably with those statistics.

MR MAPOMA: Yes, I think that is in line with my argument, Chairperson, actually because I'm saying the consequences of what happened are highly disproportionate to the minimum force as he has described it. It cannot be said that these people died as a result of minimum force in the circumstances.

Another issue Chairperson I would address, is the question of proportionality. We are dealing here with the applicants who were soldiers, armed, shooting at defenceless people, civilians for that matter, in what has been declared throughout South Africa to be a peaceful protest. It must be noted, Chairperson, that the ANC as SACP Alliance, during that period, has been indulging in mass actions around the country and there has never been a situation where those mass actions, where the MK has been reported to have gone to attack people through what is called the marches, through those marches and even in Ciskei in particular, South African part known as Ciskei then, there were marches here. In fact there was a march which was conducted in August that year, which did not get into Ciskei. It was a peaceful march as well. There was nothing which showed that armed MK was there to challenge the CDF then. So I'm saying - the upshot of my argument is that it was unreasonable even for that intelligence of their's, to expect that MK would come and launch war in the area known as Ciskei then. It's an unreasonable explanation to warrant the action that they did and especially given the fact that there was no war, it was a self-declared war actually, by the applicants and the Ciskei troops only, otherwise it was well reported that this was a march which was led by Clergy for that matter, the peace keeping force was there as well, of South Africa. So I think that as well, Chairperson, ought to be taken into account by the Committee. So in the circumstances it was highly disproportionate of Ciskei Defence Force to give live ammunition and to shoot at people in the circumstances of that nature.

ADV SANDI: Is it not common cause, I take it to be so, that in this particular march you had thousands of women and old people?

MR MAPOMA: Absolutely Chairperson. All ages of South Africans who were interested in peace in Ciskei were there. in fact all categories of people, as I said, clergy, peace loving people of South Africa were there, so there's nothing that was indicating that there was war going to take place and especially given the track record of these marches in South Africa then, no war erupted out of those marches. I think that is it Chairperson. Thank you.

CHAIRPERSON: Is it common cause that there was a hand gun discovered at some point on the scene, but that in any event there was no evidence that was discharged?

MR MAPOMA: Yes, Chairperson.

CHAIRPERSON: There's no dispute about that?

MR MAPOMA: Not that I - I don't think there's a dispute about that.

CHAIRPERSON: Very well. Yes, thank you Mr Mapoma.

ADV SANDI: Sorry, just one thing, Mr Chairman. Mr Mapoma, you've said Mr Mkosana says he acted in self-defence and in that way he thinks that he did not commit an offence. He therefore should not have applied for amnesty. Did I understand you correctly?

MR MAPOMA: Yes, that's my argument, Chairperson.

ADV SANDI: Yes, but given the general situation and circumstances of this case, was it not be a bit artificial to say that, having regard to the context in which the act of self defence occurred?

MR MAPOMA: Chairperson, perhaps it may.

ADV SANDI: Or to put it more correctly, the so-called or the alleged act of self defence?

MR MAPOMA: Yes, I like the part alleged self defence. It must be noted Chairperson, that it is incumbent upon the applicant to come to this Committee and own up to the actions that he did unequivocally and that has not been done. The applicant is coming here to say on the one hand, I did this thing in self defence, then I'm not liable, but if the Committee may find that I'm liable, then I apply for amnesty. Chairperson, that is not an unequivocal taking of responsibility for the consequences that took place on that day and I'm saying, for that reason and that reason Chairperson in particular, he is not owning up to the responsibility of his action. In fact that is not in accordance with the intention of this Act. The spirit of the Act, Chairperson, for granting amnesty, is for the person who did that which is wrong to somebody, to come to this Commission and say: "I did this thing, it was wrong, I appreciate that, it was unlawful, it was a crime, then I apply for amnesty." The victims are here to listen to that person who talks like that and that has not been the case here. Thank you.

CHAIRPERSON: Thank you Mr Mapoma. Mr du Plessis, any reply?

MR DU PLESSIS: No reply.

NO REPLY BY MR DU PLESSIS

ADV SANDI: Sorry, Mr du Plessis, just to come back to you on one thing. Are we in a position here to say in respect of whose murder and attempted murder the applicant Mkosana is applying for?

MR DU PLESSIS: I'm not in the position to state that - to assist the Commission in that instance. The reason for that being, we've been - the applicant has been supplied by the Commission with a list of names or supplied by a list of names and as such we went through that list, but he is not in a position to indicate to myself, as his legal representative, as to which specific persons he's applying for. I'm not ...(intervention)

ADV SANDI: Because I understood him to say that he's only taking responsibility in respect of those people who were part of the small portion of the crowd that was advancing, that was his responsibility, only in relation to members of that crowd who were murdered or injured. He's taking no responsibility whatsoever, as I understood him, for the acts committed by soldiers who were shooting from Fort Hare.

MR DU PLESSIS: Indeed Mr Commissioner, it is indeed the evidence of Mr Mkosana before this Commission, that and I heard my Learned Colleague, that he's only applying for the people who got shot, hurt or killed in the instance for the order that he issued.

CHAIRPERSON: Yes and I think you have made it clear in your application and in your case that there are a number of people who have been injured, the names are available. You've not been able in the circumstances, to specifically identify people, but I think you've also offered to look into it if the Commission feels that can be ...

MR DU PLESSIS: Indeed, Mr Chairman, indeed.

CHAIRPERSON: No, we've noted that. Yes and I think the details of the killed and injured are available.

MR DU PLESSIS: Indeed Mr Chairman, they available. Yes, indeed.

CHAIRPERSON: In the papers.

MR DU PLESSIS: Yes, indeed.

CHAIRPERSON: Mr Nompozolo, have you got any reply?

MR NOMPOZOLO: Thank you Mr Chairman, no reply.

CHAIRPERSON: Yes, thank you very much. That concludes the formal part of the proceedings, the evidence that is presented to us. I think you would understand if I say that the matter is an extensive one, there is a great deal of material and information that we have to take into account in order to decide this case, it is not an ordinary matter by any manner of means and we have to look at everything that was said here to us and all of the things that were said before in connection with this case very carefully before we can decide the matter. Our duty as a Panel is to decide the two cases that have been presented to us against what the law says. There are clearly spelled out requirements that an application for amnesty must comply with, so what we have to do is to look very carefully at what was said and all of the information and to test that against what the law says the requirements are and if the application complies with the requirements in the law, the Panel is left with no discretion, we have to grant the application under those circumstances. Conversely if the application that has been presented does not comply with the requirements that are spelled out in the law, we again have no discretion, our hands are tied, we must simply execute what the law says we must do and in that case we won't be able to grant amnesty, so that is the process that we must engage in at this stage which is going to be one that will take some time, it's very hard to say beforehand how long it will take. We always try our very best under the circumstances that we work in, which is of course no secret, is highly pressurised and very demanding. There are many, many other matters that we are hearing whilst we are considering the cases that we've already heard, so we have to leave here, we must look at this application, it is a very big one and most of us will go into new cases next week, which we must hear, so we must find time in between all of this, to sit down and to decide the cases that we've heard, so it is not a very easy and straightforward matter to do, but even within those constraints we always attempt our very best to give our decisions as quickly as we can. We know that there are often very important consequences that flow from the decisions and it is important for the people who are involved in the matter to hear what has happened and to get finality on the matter. We are very much alive to that.

But in all these circumstances, we are going to reserve our decision in this matter. We will consider the applications and we will notify all of the parties, the legal representatives as soon as the decision is available in this matter, so we reserve the decision in the matter. That also concludes our session, Mr Mapoma, if I'm not mistaken.

MR MAPOMA: Yes, Chairperson.

CHAIRPERSON: Thank you very much. Well then, I would just like to take the opportunity to first of all thank the legal representatives for assisting us in a difficult matter. It always helps a great deal to have the assistance of the lawyers on all sides in order for us to eventually come to a proper decision in the matter, so we never underestimate the assistance that we get from the lawyers. Mr du Plessis, thank you very much, Mr Nompozolo for having come in under some pressure and at the last moment, at least making it possible for us to continue with this application, otherwise the consequences of having had to postpone the matter are too tremendous to even consider at this stage. We are indebted to you for that. Mr Smith, for looking after the interest of the victims ad the interested parties and Mr Koopedi for your assistance as well and Mr Mapoma, we appreciate that and also for all the other people who have assisted us in being able to have this hearing here. It is not an easy matter to arrange a hearing, particularly of this magnitude in any area in the country and we appreciate the effort that goes into arranging a hearing of this nature. We always appreciate that.

Our staff, interpreters, the proprietors of the venue, South African Police Services and of course the members of the public and the interested people, in having taken the trouble to come here. Often it's not convenient to do so and it goes with a great deal of sacrifice, but it's important for the process that we are engaged in, for interested people and members of the public to see the process and to feel that at least it attempts to serve the interests of everybody, the applicants for amnesty, the people who are affected by the actions that were taken and in that process, moving the situation in our country forward, further away from the past, which we would like to close the book on as soon as circumstances permit, but we do appreciate and it's important to have your presence here as well and then finally to my colleagues on the Panel with me, for their assistance. I am indebted to you. We're adjourned.

HEARING ADJOURNS