CHAIRPERSON: Today is Friday the 4th of February 2000 and we are continuing with the amnesty applications of Mkosana and Gonya. The Panel and the appearances are as would be apparent from the record. Mr Nompozolo has in the meantime joined and he's acting on behalf of Mr Gonya.

Yes, we've reached the stage where all of the questioning, apart from that on behalf of Mr Gonya, has been concluded so what remains is, Mr Nompozolo, to hear if there are any questions on behalf of Mr Gonya.

MR NOMPOZOLO: Thank you, Mr Chairman. Yes, I do have some few questions.

CHAIRPERSON: Mr Mkosana, I just remind you that you are still under oath. Do you understand?

MR MKOSANA: Yes.

CHAIRPERSON: Very well.

VAKELE ARCHIBALD MKOSANA: (s.u.o.)

CROSS-EXAMINATION BY MR NOMPOZOLO: Thank you Mr Chairman. Mr Mkosana, I am instructed by Mr Gonya that on the day in question you were having three radios with you, is that correct?

MR MKOSANA No.

MR NOMPOZOLO: According to him, you had a radio which communicates with the commanders of the companies.

MR MKOSANA: Yes.

MR NOMPOZOLO: You also had a radio which was communicating with a helicopter.

MR MKOSANA: Yes, Sir.

MR NOMPOZOLO: You also had a radio which was communication with what he called "van der Bank".

MR MKOSANA: No van der Bank was on a helicopter, he was an airborne commander, we've got only two radios. The one of the ground, communicate to the ground personnel and the one to communicate with the Brigadier on the helicopter.

MR NOMPOZOLO: According to him you were so busy on that day to the extent that he feels that you were given too much work to handle in the circumstances.

MR MKOSANA: That's not true.

MR NOMPOZOLO: Now, if a soldier does not follow the instructions of a commander, let's take a troop who does not follow instructions of a commander in terms of the Army laws, what happens to that soldier?

MR MKOSANA: Yes, he got a punishment, or he come to the orders, I mean ...(indistinct) office orders.

MR NOMPOZOLO: Were those steps taken against Mr Gonya?

MR MKOSANA: Yes, Sir, because he was involved in the Board of Inquiry, which was conducted by Mr Skrube.

MR NOMPOZOLO: According to my instructions, no inquiry was every held against him and also that no matter was reported that he defied the orders of a commander.

MR MKOSANA: Yes, we take it as a blanket issue, this matter, because Gonya was also involved with the troops that were deployed along Parliament and Ministers residence, so we took them that he's also a ...(indistinct) soldiers, so they were involved, all of them, in this Board of Inquiry.

MR NOMPOZOLO: According to him, he was never charged on any departmental inquiry with disobeying your orders in particular.

MR MKOSANA: Yes, in this case, Sir, no one was being punished or being given a fine or a charge at least in this matter because we take it that the Board of Inquiry must be opened, must be convened. We haven't specifically said, "you have fired so now you must come to the office ...(indistinct) and get orders".

CHAIRPERSON: I'm sorry, Mr Nompozolo. So the Board of Inquiry, was this just a general inquiry, was this just a general inquiry into what happened on the scene?

MR MKOSANA: Yes, because we haven't speak up individuals, that "you must come, you must come, you must come", because it was the overall issue of the matter.

CHAIRPERSON: Yes, so it is - there was never a situation where Mr Gonya as an individual was charged for having done anything wrong.

MR MKOSANA: Yes, Sir.

CHAIRPERSON: He appeared as one of the people at the general inquiry.

MR MKOSANA: That's positive.

CHAIRPERSON: I see. Mr Nompozolo.

MR NOMPOZOLO: Thank you Mr Chairman.

ADV SANDI Sorry, just explain one thing here. Tell me, Mr Mkosana, the use of the rocket launcher by Gonya, wasn't it something you took a bit seriously?

MR MKOSANA: Yes, Sir. ...(indistinct - mike not on)

ADV SANDI: Did you say you took it seriously?

MR MKOSANA: Yes, I took it seriously.

ADV SANDI: What steps did you take to show that this was a matter that you took seriously?

MR MKOSANA: That's why I've decided to appeal. It was also my initiative to tell Mr Skrube that Gonya must also apply for amnesty because he'll be in trouble because he ...(indistinct) violence, if under instructions of myself.

ADV SANDI: But I don't know, according to the papers I have before me, you appeared before the Special Board of Inquiry, didn't you?

MR MKOSANA: Yes, Sir.

ADV SANDI: And that appears from page 20 to 24. When you appeared there, you were asked a number of questions which you answered.

MR MKOSANA: Yes, Sir,

ADV SANDI: Did you say anything at the Board of Inquiry about the manner in which Gonya had conducted himself? He had used a rocket launcher without authority from you.

MR MKOSANA: Yes, Sir, I mentioned to Maj Skrube that Gonya had fired with a rocket launcher without my orders.

ADV SANDI: Yes, but that does not appear in these papers.

MR MKOSANA: I think Sir, in myself, that's why Gonya is here today. I don't know why he didn't appear on that Board of Inquiry, because I have stated to Mr Skrube.

ADV SANDI: Thank you. Mr Nompozolo.

MR SIBANYONI: Before he used this rocket launcher, you saw that he was armed with it, is that so?

MR MKOSANA: Yes, he was allocated with that one, that rifle.

MR SIBANYONI: Yes, he was allocated with it. At what stage was he supposed to use it?

MR MKOSANA: He was supposed to use it when the situation prevailed under my orders. When the situation is tense, when I take that initiative that now it is the time that I must fire with rocket launcher, its the time that I will give him an order to fire, not individualities' own orders.

MR SIBANYONI: Were you supposed to give him different orders than those which you gave to Mbina?

MR MKOSANA: Yes, Sir. That's why that rocket launcher was employed in my vehicle. I would give him that fire - two rounds per minute, maybe fire, five round per minute.

MR SIBANYONI: Was that pre-arranged?

MR MKOSANA: Yes, Sir.

MR SIBANYONI: Thank you Mr Chairperson.

CHAIRPERSON: Thank you.

MR NOMPOZOLO: Thank you Mr Chairperson. Now is it correct that the firearms, that includes rocket launchers and every weapon which was used on the day in question, they were taken out of the armoury and allocated to each and every soldier who was going to be deployed?

MR MKOSANA: That's positive.

MR NOMPOZOLO: Is it also correct that soldiers were not given any briefing but they were just deployed there? There was no briefing in the army that: "We are going to do this and this." It was said that the police would be in the forefront and then it's only when the police cannot settle the situation that the soldiers will take over?

MR MKOSANA: No Sir, orders were given. Every soldier knows that he will have an operation that on the 7th of September and then we'll be deployed at the stadium. Everybody was given orders. I've given a warning order to my deputy and then I also to affect my own orders and then I give them to my 2 IC, my second in command, give them to the Majors and the Majors go to the troops specific on the ground to tell them: "We're going to deploy this way, because then such and such and such and such."

MR NOMPOZOLO: Yes, but according to my instructions there were no orders as to - there were no orders as to: "We are going there to attack or to do this." The troops were just given armoury and were told that they will only be deployed at such and such a place.

MR MKOSANA: Yes, there were orders, tat deployment is also included in the execution of the orders which means that they were given orders. In the army you cannot take troops and then go, we say we go to Mdantzane without briefing them or giving them orders, that we're going to Mdantzane and go to search such a house at this time and then after that we come back.

MR NOMPOZOLO: Are there any levels of orders in the form of telling people when to fire? Are there any levels that if I say fire, it means that you only use rifles, if I say fire twice, you use side arms, if I say fire strongly, you use rocket launchers and other heavy armoury?

MR MKOSANA: I can say, yesterday Sir I indicated that when I was talking about a minimal force, which stages we go through them until we say now fire with full fire.

MR NOMPOZOLO: No, all I'm asking is, if you say fire and nothing else, wouldn't every soldier use the weapon he is carrying?

MR MKOSANA: No, your order must be specific, that I'm talking to this Rifleman or to this Lieutenant that: "Fire."

MR NOMPOZOLO: Who are the Riflemen that you referred to on the day in question?

MR MKOSANA: I referred to Mr Gonya.

MR NOMPOZOLO: Now according to Mr Gonya, you said fire for the first time and the soldiers did not carry out your instructions and you said fire for the second time, they still were hesitant and you said fire for the third time, they started firing at the marchers who were approaching.

MR MKOSANA: No, no, no, no. I never said that. I said fire only at once to Maj Mbina, to say: "Maj Mbina, enforce fire", only to Maj Mbina, there was no resistance in the vehicle because nobody had shot them because that's a command vehicle, the command vehicle doesn't shoot at the people, it only shoots when the battlefield or when there's an intensive battle, you don't fire in the command vehicle, no one is permitted to fire.

MR NOMPOZOLO: And according to Mr Gonya, you were outside the vehicle when you gave the instruction to fire and you were not using a loud hailer but you were just shouting that: "Fire", you said that three times.

MR MKOSANA: No, Sir.

MR NOMPOZOLO: Now, how do you reconcile the fact that you never made any report to the army that Mr Gonya did not follow your instructions and fired with a heavy armoury to the people without you giving that order, yet he was not charged according to the army?

MR MKOSANA: Yes, Sir, I did report to my higher authority about the incident that who have fired. The people at the parliament, the people at the Fort Hare branch and the people from the Telkom and even Gonya fired with a rifle grenade, that's why the General said there must be Board of Inquiry, must be convened, the Board of Inquiry.

MR NOMPOZOLO: Is it correct that each and every soldier who fired there, fired after you gave the instruction?

MR MKOSANA: They fired while I was, after I gave the instructions and say: "Major Mbina, fire", they fired.

MR NOMPOZOLO: Now there was also a helicopter there. Did they also get the instruction from you?

MR MKOSANA: To what?

MR NOMPOZOLO: To fire. To fire at the people there?

MR MKOSANA: No, there's no helicopter that fired there, I'm not aware of that fact. The only helicopters were there, were the military helicopters of Ciskei Defence Force and the helicopter of the South African Police Force. I have no idea if they fired or what.

MR NOMPOZOLO: I may be mistaken Sir, but I saw it on TV, helicopter firing shots at the people. Now all I'm asking ...(intervention)

MR DU PLESSIS: Objection, Mr Chairman. With all due respect, my Learned Colleague indicates to the - under cross-examination that he himself saw it on the TV that there were shots fired from a helicopter. Am I then to understand that my Learned Colleague is to testify in this matter, this application?

CHAIRPERSON: Yes, well, I think the idea is for the applicant to respond to that. I think the applicant has already said he is not aware of any firing from the helicopter.

MR DU PLESSIS: As the Commission pleases.

CHAIRPERSON: So I think he has responded to that already.

MR DU PLESSIS: As the Commission pleases.

MR NOMPOZOLO: Now, as you have indicated that you are not aware that people fired from the helicopter, am I correct to say you can't dispute that?

MR DU PLESSIS: Yes Sir, I am saying that I am not aware whenever helicopters fired, but the rumours which I got from the media, the rumours that are coming from the community in the village, they are saying the helicopters also fired, but I was not aware that helicopters had fired, it's just a hearsay for me.

MR NOMPOZOLO: Now, let's go along and say that what has been said in the media is correct, that the helicopter fired. If that is the case, could it have been flowing from the order you gave that they must fire?

MR MKOSANA: No, if that is so, it cannot be the following of my order because I was using a ...(indistinct) radio, which only communicated for myself and Col van der Bank at airborne, so the radio which Maj Mbina said he had given, the order to Ndandiso, was not linked, when fired was opened, was not linked to the airborne radio. They have got separate channels.

MR NOMPOZOLO: I understood you to be saying that you were communicating with the helicopter.

MR MKOSANA: Yes, Sir.

MR NOMPOZOLO: Did you communicate to the helicopter that the helicopter can fire or that you have given an order to fire because you were being attacked?

MR MKOSANA: No firstly, the helicopter I believe, it hasn't got any guns there. I think the Brigadier only has a pistol.

MR KOOPEDI: Now listen, all I'm asking, did you communicate to the helicopter that you've given an instruction for the troops to fire?

MR MKOSANA: That's positive.

MR NOMPOZOLO: Yes. Now you obviously were not in the helicopter and you were not aware of the armoury they had in the helicopter.

MR MKOSANA: I'm aware of the armoury which was in the helicopter.

MR NOMPOZOLO: I see. Do you know what was used on the helicopter or - sorry Mr Chairman, he has already said he is not aware. Now,

ADV SANDI: Sorry, Mr Nompozolo, are you moving on to something else? I want to ask him a question about this, talking about helicopters?

MR NOMPOZOLO: Yes, I was going to move to something else. Yes, you can ask.

ADV SANDI: Okay. By the way Mr Mkosana, how many helicopters are we talking about here?

MR MKOSANA: There were two helicopters there, a Ciskei Defence Force helicopter and a South African Police helicopter.

MR NOMPOZOLO: I take it that, well let me put it this way - what was the reason for the use of helicopters on that day?

MR MKOSANA: I cannot tell the reason of the South African police to employ a helicopter on the air but the reason of our helicopter was to make a surveillance as to tell us in detail the estimation of the crowd, what is happening in Zwelitsha, what is happening in Mdantzane, all that information.

ADV SANDI: Yes, but more specifically to have a clear visibility of the crowd to see who is doing what from the crowd, not so?

MR MKOSANA: Yes, as I understand, it was to monitor the situation.

ADV SANDI: But, why did you not ask these people from the crowd if they had seen anyone shooting at your troops before you gave the order? Why didn't you ask them? Why didn't you say: "Gentlemen, I've got a problem here. I've just heard two shots here. Are you able to see from where you are what is happening?"

MR MKOSANA: At that stage, Sir, the Brigadier was not on that specific point of the crowd which was embarking to us in Jogelanga ...(indistinct), it was not in that position at that time.

ADV SANDI: Who is the Brigadier? Can you give names? MR MKOSANA: I mean Col van der Bank.

ADV SANDI: But were you not able to speak to anyone from one of those helicopters and say you've just heard two shots, can they establish what exactly is happening before you give the shout and say "Fire"?

MR MKOSANA: I've just said to the Brigadier: "Brigadier, there's some shots fired", so he was not in that position to say "Okay, I've spotted people on the ground that are firing." He was not in that position, but South African Police, I had no communication with South African Police.

ADV SANDI: Thank you. Mr Nompozolo.

MR NOMPOZOLO: So again, where was the helicopter belonging to the South African Police?

MR MKOSANA: I beg yours?

MR NOMPOZOLO: Where was the helicopter? You said there were two helicopters.

ADV SANDI: Yes, Sir.

MR NOMPOZOLO: One the Ciskei Government and the other the South African Police.

MR MKOSANA: Yes.

MR NOMPOZOLO: And you said the one in which Col van der Bank was travelling was not in the vicinity of the crowd which was embarking on you?

MR MKOSANA: Yes.

MR NOMPOZOLO: Where was it to start with?

MR MKOSANA: I cannot tell Sir, because he was monitoring the situation, the whole situation.

MR NOMPOZOLO: Now where was the helicopter used by the South African authorities?

MR MKOSANA: Also I cannot say exactly he was here or there, but I was just seeing them time and again, time and again, flying over, time and again flying over. But at that stage I didn't notice the whereabouts of those helicopters.

MR NOMPOZOLO: Yes, you said you had to sit down to communicate because there was this noise of the helicopter.

MR MKOSANA: Yes, Sir.

MR NOMPOZOLO: I take it it was just around there in the vicinity.

MR MKOSANA: That's why I say I am saying that I didn't spot where the helicopters were, but Brig van der Bank, at that specific moment, our helicopter was not there. The police, I didn't notice where is it or where are they at the moment, but there was a noise.

MR NOMPOZOLO: Assuming the sound of the gunshot was from the helicopters, were you able, or could you be able to make a distinction that it wasn't from the ground but from the helicopters?

MR MKOSANA: I cannot make a decision, Sir, I cannot. Only the medical people can say, maybe the people are shot on the head, can say that was being shot at on top, but I cannot tell.

MR NOMPOZOLO: No I mean the direction of where the sound of the gunfire was coming from. Would you make any difference whether it was coming from the side of the ground or from the side of the helicopter, or it was impossible for you to establish?

MR MKOSANA: That's why I was saying, to my belief it was from the ground. That's why ...(intervention)

MR NOMPOZOLO: But you've got no basis to say that? On what are you basing that?

MR MKOSANA: What I have told the Commission is that there were no other people maybe at our rear that can fire on us, there were only the people that were confronting us, that we heard shots from. So I don't know the helicopter or who have shot, but there were shots being fired.

MR NOMPOZOLO: Yes but the helicopters were hovering above and making a lot of noise, that is why you had to sit down and communicate.

MR MKOSANA: Yes.

MR NOMPOZOLO: Thank you.

CHAIRPERSON: Yes, can I just round this off? Are you saying that it is possible that the sounds that you heard, the gunshot sounds that you heard, could have come from the helicopter as well?

MR MKOSANA: I cannot say Sir, because I don't know the armament that they have there.

CHAIRPERSON: Yes. No but I'm just talking about your situation and the conditions on the scene. Were the conditions such that it was possible that what you heard could have come from the helicopter?

MR MKOSANA: I can say so, maybe from the helicopter or from the ground.

CHAIRPERSON: It could have come from either of that?

MR MKOSANA: That's positive.

CHAIRPERSON: Alright. Yes, Mr Nompozolo?

MR NOMPOZOLO: Thank you Mr Chairman. Now you have said you don't know the armament they had in the helicopter, so possibly they could have used more than what you instructed to be used in the helicopter because you don't know what armoury they had.

MR MKOSANA: Positive.

MR NOMPOZOLO: Now on page 5 of your affidavit, paragraph 5 you say:

Now my question is, were you in a position to measure the danger you were facing at that time?

MR MKOSANA: Yes, I think I can measure it.

MR NOMPOZOLO: What sort of danger was that?

MR MKOSANA: Firstly the crowd was running on us, so we never know, maybe they can take the guns and shoot at us.

MR NOMPOZOLO: Yes.

MR MKOSANA: That's why I feel threatened.

MR NOMPOZOLO: Now you have said in your evidence-in-chief then you instructed the soldiers to use the minimum force.

MR MKOSANA: Yes.

MR NOMPOZOLO: Now, correct me if I'm wrong. If I am carrying a rifle and I'm instructed according to you to use a minimum force, a minimum force with a rifle would be to fire fewer shots to just stop what is dangerous or the danger I'm facing, am I correct?

MR MKOSANA: Yes.

MR NOMPOZOLO: Now if one is carrying a rocket launcher with six grenades on it, if he uses two, that would amount to a minimum force, am I correct?

MR MKOSANA: No.

MR NOMPOZOLO: What would it amount to?

MR MKOSANA: Ja, the minimum force, we use it in the urban operation when controlling the crowd and then we use rifles and then the rocket launcher is used only when there's, I can say a battle but I've never experienced a battle, when the situation is very tense. We were fighting or we were doing exercise to demolish a bigger target or a hard target. Yes.

MR NOMPOZOLO: What would be the purpose of the army taking to the crowds a rocket launcher if you know that it's only used on a battle?

MR MKOSANA: Yes. As I have stated yesterday, that according to the information there, we the army, we were only carrying live ammunition and then according to the information we received from my Intelligence Section, that there would be a fight between the MK and us.

MR NOMPOZOLO: Yes.

MR MKOSANA: So we were going to fight with them.

MR NOMPOZOLO: Yes. So there is a possibility, according to you, that the MK was shooting at you, because on the briefing you knew that the MK was going to fight you?

MR MKOSANA: Yes, Sir.

MR NOMPOZOLO: So then, when you took that racket launcher, you knew that there was a possibility that it can be - in fact there was more a probability of using it, than a mere possibility?

MR MKOSANA: I mean to use a rocket launcher in that situation, it was wrong and unlawful because if there was the attack of the MK, the attack will be purely an attack to us, they will never involve the civilians, the marchers, they will openly come forward and then they charge.

MR NOMPOZOLO: But on your own evidence, Sir, you have told the Commission that you believed that you were attacked and you and the troops were in danger.

MR MKOSANA: Yes, Sir.

MR NOMPOZOLO: And you believed that shots were fired at you.

MR MKOSANA: Yes, Sir.

MR NOMPOZOLO: And at that time you had troops who were armed with heavy armoury.

MR MKOSANA: Yes, Sir.

MR NOMPOZOLO: And when you left the base with that armoury, you knew that there would be consequences that that armoury might be used there at the scene.

MR MKOSANA: That's positive.

MR NOMPOZOLO: And when you knew that it might be used at the scene, the scene you knew that if it had to be used, it's not going to be on a calm situation, it might be on the situation where there is no proper control of the situation.

MR MKOSANA: No Sir, when using rocket launcher, firstly I must clarify this, the heavy points are being employed by myself, which means the rocket launchers and the other guns and the motors are being controlled by the regimental sergeant major. No one can give an order, or can fire those weapons without our order.

MR NOMPOZOLO: Now was it part of the briefing before you left the base that the people who are armed with rocket launchers which I believe there were about three people who were armed with rocket launchers, were they informed that: "You cannot use those until you are under specific instructions to do so"?

MR MKOSANA: They have gone through the course and they fully understand that these weapons cannot be fired. Every soldier has been given an order to fire. You cannot just fire at your own, you must be given an order to fire.

MR NOMPOZOLO: So, would you concede that the situation was a chaotic situation and sort-of a moving scene there at the scene?

MR MKOSANA: It was not - ja it was a chaotic scene, but to employ it, they have weapons, that was not meant for it, that was not the time to operate on those weapons.

MR NOMPOZOLO: Who was your senior you were reporting to?

MR MKOSANA: It was Col van der Bank.

MR NOMPOZOLO: Did you, on that day, report to Col van der Bank that: "Mr Gonya has unlawfully used a rocket launcher?"

MR MKOSANA: Yes, when we were doing the debriefing, Col van der Bank, I told him, he asked who gave the order to fire those people at Parliament and at Fort Hare Branch. I said: "No one" and then I also told that Gonya, because we thought that was the grenades that were exploded from the masses, I said - he asked me that, I said: "No, it is this Rifleman Gonya who has fired these launchers without my orders."

MR NOMPOZOLO: Now according to Mr Gonya, there at the base he informed you that he has used two grenades and that was the first time you learned that he has used the rocket launcher himself.

MR MKOSANA: No, no, that's why I was saying that Maj Zulu, is my key witness, because he tells me that - he use a vulgar language - "This fucking tube has fired" and I also said to him: "Why you have fired, why, who gave you an order?"

MR NOMPOZOLO: Now there at the scene, I am instructed that the situation was very chaotic and you were not in control of the situation.

MR MKOSANA: I don't understand. Can you elaborate?

MR NOMPOZOLO: Yes. Mr Gonya tells me that there at the scene, after you had said they must fire for the third time, they've started firing and you were up and down trying to communicate with the radios and all that and all that and you couldn't monitor properly the situation and that's when he saw that he can use only two rocket launchers, I'm sorry, two grenades, which was what he believes stopped the danger from coming to them.

MR MKOSANA: No, I can say, Sir, it's my belief, there was no situation that was chaotic, the situation was under control, only when the people were firing, that was a chaotic situation.

MR NOMPOZOLO: Which people were firing?

MR MKOSANA: Those who were deployed in parliament and the Fort Hare Branch.

MR NOMPOZOLO: Now, did you write a report there at the army that Mr Gonya did not obey the orders?

MR MKOSANA: No, I didn't write a report because Col van der Bank told me that no, everybody who has fired, there will be a Board of Inquiry that will be convened, that was the situation.

MR NOMPOZOLO: Was it on the same day?

MR MKOSANA: It was on the second day.

MR NOMPOZOLO: On the second day?

MR MKOSANA: Yes, when Mr Skrube was on the scene and to us the troops who have fire ...(intervention)

MR NOMPOZOLO: Now after everything had happened on that day, were you not supposed to write a report about what happened and to also write a report about those who put the army in disrepute by not following their orders?

MR MKOSANA: Sir, I verbally speak with my senior authority, Col van der Bank and then he said a Board of Inquiry will be convened, so there was no necessity to write a report and then, the report which I made was verbally during that day because the next day we were also deployed on that same spot. We withdraw at about 1 o'clock from the spot.

MR NOMPOZOLO: Is it a normal procedure that after an incident of that nature has happened, reports would be made verbally and those who you believe they had acted unlawfully will not be charged, is that the normal procedure?

MR MKOSANA: No the normal procedure, we must write a report, but at that stage Sir, we haven't write a report, it was verbal.

MR NOMPOZOLO: And in fact at no stage a report was written.

MR MKOSANA: According to this incident, there was no report written.

MR NOMPOZOLO: And in fact the situation of Mr Gonya was a unique situation in the sense that he used a heavy calibre armoury against people who were coming, therefore according to you he acted unlawful, therefore it warranted that either he can even be charged criminally, not so?

MR MKOSANA: If I can have you clearly, Sir, you said Gonya has said the next day he reported to my office?

MR NOMPOZOLO: No. No, no. No. Let's first answer this question. All I'm saying, Gonya acted unlawfully in the circumstances as you have said, now there would even be a possibility of him being criminally charged, yet you did not write a report about that and hand it over to the relevant authority so that they can see what they can do about it.

MR MKOSANA: I think that my report is there with that Board of Inquiry because I was the first person to go to Mr Skrube and to testify about what happened there on the scene.

MR NOMPOZOLO: Yes. No, let's leave alone the Board of Inquiry because the point is, the Board of Inquiry was going to establish what happened there but this one, it's an isolated incident of a person who acted unlawfully, not as a group, but as an individual because he used a heavy calibre which he was not supposed to use.

MR MKOSANA: No, the Board of Inquiry was being convened, Sir, I have no other answer on that because we didn't write a report, that's why I was saying.

ADV SANDI: Sorry, Mr Nompozolo. The following day when you were redeployed, was Mr Gonya included in the group of soldiers that were to be under your command? Was he again part of the group?

MR MKOSANA: Yes. We have not withdrawn because all of the group that was deployed have stayed there until about 12 o'clock and then we withdraw to see that the situation is calm, everything.

ADV SANDI: Yes, but was he directly under your command the following day when you were redeployed?

MR MKOSANA: Yes.

ADV SANDI: Were you not concerned about the behaviour of this man who just goes on his own and does things he's not been ordered to do?

MR MKOSANA: That's why I say we have confronted Gonya, when Maj Zulu spotted him, that he was firing. We say: "What were you doing? Who has given you an order to fire?" And then, when Mr Skrube came, I told Mr Skrube who had fired with my instructions, who had not fired with my instruction and then the Board was being convened. Yes, I was worried because - but I haven't take a stop or write a report. I was worried about the situation. Why he uses this - to employ a launcher.

ADV SANDI: Thank you, Mr Chairman.

CHAIRPERSON: As the Field Commander, were you in a sense held responsible for the shooting by your superiors in turn? In other words, was their attitude: "Mr Mkosana, you are going to be one of those people that will be called upon to explain what happened there"?

MR MKOSANA: Yes.

CHAIRPERSON: Because, were you the person who was supposed to have given the order to fire on the ground?

MR MKOSANA: Yes.

CHAIRPERSON: And their attitude was that they want to know whether you are responsible for all this chaos that erupted there.

MR MKOSANA: Yes, because they asked me what had happened there. I told them and then they said: "You must meet Mr Skrube so that you can have a statement, to make a statement with Mr Skrube and then the Board of Inquiry will be convened about the situation."

CHAIRPERSON: So you were almost like one of the suspects in this inquiry?

MR MKOSANA: As a commander, because I was the commander. I cannot say I was a suspect but I was - maybe I was held responsible.

CHAIRPERSON: Ja.

MR MKOSANA: Because I was the commander.

CHAIRPERSON: Yes. The term suspect is used advisedly, but you were one of the people who could possibly be called upon to answer for this.

MR MKOSANA: Yes, I was one of them.

CHAIRPERSON: So you went into the Inquiry under those sort of circumstances?

MR MKOSANA: Yes.

CHAIRPERSON: Possibly there could be action taken against you.

MR MKOSANA: Yes, Dir.

CHAIRPERSON: I understand. Yes, Mr Nompozolo.

MR NOMPOZOLO: Thank you Mr Chairman. Now, according to Mr Gonya, the shooting incident happened probably towards lunchtime somewhere there. In the afternoon round about 5 o'clock nothing was happening. You, together with him and other soldiers, you were patrolling the area together, is that correct?

MR MKOSANA: Yes.

MR NOMPOZOLO: And according to him, there was no talk of him not obeying the orders of yourself.

MR MKOSANA: Yes I told Gonya when we were shooting that why were you shooting, but during the time we were doing patrols to look for the situation, I didn't speak because the troops had fired, I was just conducting patrol because I know the next day we will deal with Gonya because we were busy with a task.

CHAIRPERSON: Did he still have the rifle grenade and everything in his possession?

MR MKOSANA: Yes, no weapon was withdrawn.

MR NOMPOZOLO: And when Mr Gonya testifies he will deny that you ever said minimum force must be used and that after he used the rocket launcher, you reprimanded him. he's going to deny that.

MR MKOSANA: I think if he can deny it, I think Maj Mbina's statement can also say that I've said minimum force. Maybe he haven't understand what I was talking about.

MR NOMPOZOLO: Because of the situation, is it possible that he did not hear you, he only concentrated on the question of fire? Is there such a possibility because of the situation?

MR MKOSANA: No, I cannot tell because why only Gonya fired in that vehicle, why the others have not tried? Why the others have not tried?

MR NOMPOZOLO: Yes, that's exactly the point. It's about him understanding what was being said, you see, he understood you to be saying fire and everyone was panicking, so he fired with the rocket launcher.

MR MKOSANA: No, that was impossible, because why is that, there were seniors also in that vehicle, like Corporals who were there, why they haven't fired themselves, but he is the only one who was having a rocket launcher in that vehicle, is that correct?

MR NOMPOZOLO: Yes.

MR MKOSANA: And was he the only troop?

MR Mkosana: No, I think we were about four or five troops and the section leader and the section 2 I.C. They were superior there, myself and the other corporals.

CHAIRPERSON: Yes.

MR NOMPOZOLO: Were the soldiers panicking? Was there a sense of panic and urgency?

MR MKOSANA: Yes, to those who were deployed, who have a threat that ...(indistinct)

MR NOMPOZOLO: Thank you Mr Chairman, nothing further.

CHAIRPERSON: Just on that point Mr Mkosana. Would it be correct to say that there was a sort of a build-up to this confrontation in the minds of the troops? There was this idea of a looming battle involving Umkhonto weSizwe?

MR MKOSANA: Yes, I can say so, because that's why they were given orders. They know that there will be an attack from Umkhonto weSizwe.

CHAIRPERSON: And that is why all this heavy lethal armament was deployed?

MR MKOSANA: Yes, Sir.

CHAIRPERSON: Because you were expecting a full-scale battle.

MR MKOSANA: That's positive.

CHAIRPERSON: And would it be fair to say that there must have been a great deal of apprehension amongst the troops? Wouldn't there have been some concern, even fear, amongst your troops? They were preparing for war in a sense, in their minds.

MR MKOSANA: That's correct, Chair.

CHAIRPERSON: And they would have been edgy on this day.

MR MKOSANA: I think so.

CHAIRPERSON: So that it looks as if it would have taken very little to spark off action on the part of the troops.

MR MKOSANA: Yes, Sir.

CHAIRPERSON: Has the Panel got other questions?

ADV SANDI: Yes. Just a follow-up on that. By the way, I understood you yesterday to say these are very inexperienced soldiers when it comes to crowd control.

MR MKOSANA: Yes, I can put in that way. All of the Ciskeian force who were not fully trained in riot control and we never conducted a control as such, we were always in support of the police.

ADV SANDI: Were you not personally concerned that things could very easily go wrong, having a group of inexperienced soldiers on crowd control? Wasn't that something that really concerned you?

MR MKOSANA: Yes, Sir, it was my concern because we were told that the marches would be on at the stadium and then we haven't been told that the marchers would go out from the stadium, that was my concern, although we were always in support of the police.

ADV SANDI: Yes, but the same soldiers which you say were very inexperienced, you still give them order to shoot using minimum force when you've not even seen a person or an object around that has been struck by one of those gun shots which you heard, same soldiers telling them: "Shoot." You tell them "Fire. Fire."

MR MKOSANA: Yes, they are trained Sir, the soldiers, but they are not trained in this riot control so much. They know ...(indistinct) in riot control, they don't understand fully, duly, like police did, but they are trained soldiers in any aspect of how to control a weapon, when to open fire.

ADV SANDI: Can I take it that before you gave this order that your soldiers should shoot? You were not really under a serious pressure to return fire to the marchers, not so?

MR MKOSANA; We were under pressure, Sir, because the people were coming to us, so what we can do because we have no water canal to draw the people away, we have no tear gas to tear gas the people away.

ADV SANDI: But you still take the time to contact van der Bank and say to him: "We are being shot at, what should we do"?

MR MKOSANA: Yes.

ADV SANDI: Yes. Why don't you simply return fire to the crowd and explain to van der Bank later? Why you ordered your soldiers to open fire? Why don't you simply return fire?

MR MKOSANA: No, that's an order. If there's something wrong, wherever I'm being attacked, I will attack back but in that situation I said the shots were being fired, so I report to van der Bank: "The crowd is coming to us with speed and then there are shots being fired".

ADV SANDI: I understood you to say you had not seen any person falling down onto the ground as a result of having been struck by a bullet.

MR MKOSANA: Yes, from our side, I haven't seen anybody falling down.

ADV SANDI: You did not even see an object such as a tree, a building or any physical object being struck by a bullet?

MR MKOSANA: No I haven't ...(indistinct) contact Sir.

ADV SANDI: There was no physical indication whatsoever that someone was shooting at you, just something in your ears.

MR MKOSANA: Yes, Sir because that's why I heard shots being fired. I haven't see a person firing to us directly.

ADV SANDI: Yes, but why did you not contact other commanders, Field Commanders and ask them if they were in fact being shot at before you gave the order that your soldiers should fire?

MR MKOSANA: No, I didn't ask them Sir, because the crowd was coming at us on speed and then there were shots fired, so it's why I acted. I haven't asked company commanders why, they can here fire or...?

ADV SANDI: Yes, but why did you not say to Mr van der Bank: "van der Bank, what is this thing I hear? I think they are now shooting at us. Have you heard shots, have you seen anything, where are you?" Why didn't you do that?

MR MKOSANA: No, I haven't done it.

ADV SANDI: Did you have any reason for not doing that?

MR MKOSANA: Yes, the only chance I have to speak to him that we are being fired at, I didn't say to him to identify, I don't think a person from the helicopter can hear shots on the ground.

ADV SANDI: Tell me one thing, when you finished talking to van der Bank on the radio, were they still firing at you? Could you still hear these shots?

MR MKOSANA: No, as I've said yesterday that it was only about two shots that were fired. Why did you not say to van der Bank: "van der Bank, they've just been shooting at us, but they've just stopped now, I don't know what's happening." Why didn't you do that?

MR MKOSANA: I didn't do that. The only thing I said: "They are coming at us now, so what to do?"

ADV SANDI: Thank you. Thank you Mr Chairman.

CHAIRPERSON: Thank you.

MR SMITH: Thank you, Mr Chairman. Perhaps with the consent of the Commission members, would I be allowed to raise two issues with the applicant before he stands, or before he is re-examined, Mr Chairman? It's not the case of a second bite at the cherry, it's just that I could not find what I was looking for yesterday in these volumes.

CHAIRPERSON: Yes. Yes, you say you want to put two issues to him?

MR SMITH: Only two issues.

CHAIRPERSON: Yes, well ...

MR SMITH: If the Members feel that it's not relevant, I will not proceed.

CHAIRPERSON: Yes, no, no, put it, Mr Du Plessis will be able to re-examine in a minute.

MR SMITH: Thank you.

CROSS-EXAMINATION BY MR SMITH: Mr Mkosana, you knew on the day of the shooting that Gonya had fired a grenade launcher?

MR MKOSANA: That's positive.

MR SMITH: You made an affidavit on the 18th of September which was submitted to the Board of Inquiry. Is that correct?

MR MKOSANA: Yes, if I'm on the truck.

MR SMITH: It's page, I don't know if the documents are available there, it's page 166 of bundle two. Ja, paragraph 7.19, it starts on page 165 and it goes over to page 166. Do you have it before you?

MR MKOSANA: 17.9, yes.

MR SMITH: It's paragraph 7.19.

MR MKOSANA: Yes.

MR SMITH: Now you say there that you saw and heard two explosions which you knew to be grenade explosions. Why did you not, at that stage, place the fact of Gonya having fired those two grenades, before the Commission of Inquiry by way of this affidavit?

MR MKOSANA: Yes, Sir, that's what I've indicated yesterday. The only person who had noticed that Gonya fired, is Maj Zulu. It's the first person who have said that: "Gonya is firing." Yes I see the explosion from Fort Hare.

MR SMITH: What I'm asking you Mr Mkosana, by the 18th of September you knew that he had fired those grenades, you had spoken to him about it, on your version.

MR MKOSANA: Yes, I had already spoken to Maj Skrube, the one who was convening a Board of Inquiry and the Brigadier.

MR SMITH: I'm asking, at the time that you made this affidavit, it was 11 days after the incident. Why did you not say that Gonya had fired? Okay, then can I just continue? Go to paragraph 7.2.1. You now say at the end of that affidavit, to the best of your knowledge, the troops under your command did not employ any weapons other than R4 rifles. By the time that you made this affidavit, you knew that that was incorrect. Gonya had fired the rocket or the grenade launcher in the Buffel that you were travelling, or from that Buffel that you were travelling in.

MR MKOSANA: I think this version, Sir, when I think I've sign it, but I must be talking lies that I ...

MR SMITH: Were you lying to the Board of Inquiry?

MR MKOSANA: No. If I have not say that, I don't think I said the guns were not employed because I said we have all weapons all the armament of the military was employed.

MR SMITH: Will you look at that paragraph 7.21 again? It says -

MR MKOSANA: Yes.

MR SMITH: Why didn't you say that?

MR MKOSANA: I have no answer on that Sir, because ...(intervention)

MR SMITH: Let me put it this to you, Mr Mkosana, were you covering up that that rocket or the grenade launcher had been used?

MR MKOSANA: No. I was not covering up.

MR SMITH: Because I also see that Mr Gonya was never called before this Inquiry.

MR MKOSANA: I don't know because I was called for the Inquiry and Gonya was called only for the Board of Inquiry.

MR SMITH: Now, just one final issue. There was a Rifleman Dlodlo was deployed at Jongelanga Crescent. He was called. Would you agree, that his affidavit or statement is on page 39 of that same volume? Do you have that in front of you?

MR MKOSANA: Yes, Sir.

MR SMITH: Now towards the end of his answer number 1, he says that:

That is the fourth line from the bottom of that paragraph. Do you have where I am?

MR MKOSANA: Yes.

MR SMITH:

And then he says:

Were those the instructions that you expected to be issued?

MR MKOSANA: That's positive.

MR SMITH: Now can you look at question 2 where it is raised whether there was any firing from the crowd and he says:

Do you have any comment on that?

MR MKOSANA: Yes, I cannot tell because he was also deployed there. Maybe he have heard the shots or not heard the shots.

MR SMITH: No, look at the question. It says:

and he says:

He excludes shots having come from the crowd.

MR MKOSANA: Yes. There were no fire but the shots were there. He's right when he said no, there was no fire.

MR SMITH: Do you agree with what he said?

MR MKOSANA: Yes, because there's no fire, but there were shots fired.

MR SMITH: No, the question that was asked to him, was there any fire from the crowd, which I presume were gun shots fired from the crowd and he says no, they were only rushing at the troops.

MR MKOSANA: No maybe he haven't yet heard the shots, he haven't heard where the shots were fired, maybe. I can put in that way.

MR SMITH: That is all, thank you Mr Chairman.

CHAIRPERSON: Thank you Mr Smith. Mr du Plessis, any re-examination?

MR DU PLESSIS: One or two questions Mr Chairman.

RE-EXAMINATION BY MR DU PLESSIS: Mr Mkosana, were you part of the planning concerning the deployment prior to the 7th of September 1992 at the H.Q.?

MR MKOSANA: Yes.

MR DU PLESSIS: Were you also part of the group that instructed or convened the Board of Inquiry by Mr Skrube or did you only hear that the Board of Inquiry would be instructed?

MR MKOSANA: No, I was not part of the Board of Inquiry, I was also making a statement to the Board.

MR DU PLESSIS: I've got no further re-examination.

CHAIRPERSON: Thank you Mr du Plessis. Yes, Mr Mkosana, thank you, you are excused.

CHAIRPERSON: We will take the tea adjournment at this stage. We'll adjourn for 15 minutes.

CHAIRPERSON: Yes Mr du Plessis, I assume that would have been the case for Mr Mkosana?

MR DU PLESSIS: As the Committee pleases, Mr Chairman.

CHAIRPERSON: Thank you. Yes Mr Nompozolo, do you want to lead the evidence of Mr Gonya?

MR NOMPOZOLO: That is correct, Mr Chairman.

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.

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.

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.

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,

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:

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.

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.

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.

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

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).

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,

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.

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.