These are applications for amnesty in terms of the provisions of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 ("the Act").

The applicants are former members of the then Ciskei Defence Force ("CDF"). They are seeking amnesty for the murders and attempted murders of several persons who were shot and killed by CDF members at Bisho on 7 September 1992 ("the Bisho Massacre"). Over 100 CDF members were involved in the shooting. The incident occurred when leaders of the ANC - SACP - COSATU Alliance ("the Alliance") organised a march to Bisho and several thousands of their supporters participated. The marchers were demanding the resignation of Brigadier Oupa Gqozo and that Ciskei be placed under an interim administrator, pending the outcome of the historic negotiations at the World Trade Centre which eventually ushered in a new constitution for the Republic of South Africa ("RSA"). We hasten to point out that at the time peaceful marches and demonstrations were commonplace in many parts of the country. It should be mentioned that the Bisho Massacre was previously dealt with at two prolonged Special Hearings of the Human Rights Violations Committee (HRVC) of the TRC. The Goldstone and Pickard Commissions and a CDF Internal Board of Inquiry also looked into the matter. The hearing of testimonies on the present applications was expedited by the availability of transcripts of the evidence and submissions that were made in these fora, a great deal of which is common cause and warrants no detailing. The HRVC has already made victim findings in the matter. It is only necessary for us to give a brief summary of the incident.

The procession was to commence from the King William’s Town Victoria Sports Grounds which fell under the jurisdiction of the R.S.A. Bisho was the administrative capital of the Ciskei, an "independent homeland" under apartheid. Ciskei was under the rule of Brigadier Gqozo whose administration was fiercely opposed by the Alliance and its supporters. Gqozo, having come to power in 1990 in a coup d'etat, lacked the necessary support and co-operation from a very large section of the inhabitants of the area. The period leading up to the massacre saw widespread incidents of violence between supporters of the Alliance and those who were perceived to be supporting and protecting the Ciskeian regime. CDF and Ciskei Police Force ("CPF") members were targeted and forced to leave their homes. It needs to be stressed that the Ciskeian regime, in spite of its lofty Bill of Rights which guaranteed inter alia the right to freedom of association and assembly, was not readily prepared to allow demonstrations which it saw as a threat to oust Gqozo and his Council of State. Demonstrations, albeit peaceful, were frequently, dispersed with brute force and applications for the necessary permits would be refused. When the organisers of the march requested a permit they had to go through many hurdles before it was finally granted, often subject to stringent conditions. At first the authorities completely refused to allow the march to enter the Ciskei and later, after intensive shuttle diplomacy by members of the National Peace Secretariat, it was agreed that the marchers could enter Bisho. They were, however, to confine themselves to the Bisho Stadium and were not to enter the Central Business District ("CBD") where they originally wanted to hold the demonstration. The protest was to take place between 12h00 and 16h00. This compromise on the part of the Ciskeian authorities was preceded by several events which it is necessary to detail in the light of the justification by applicants and their superiors of the actions of the CDF on the day of the incident. At some stage an urgent application for an interdict was brought by the Ciskei Commissioner of Police against the Alliance, seeking an order to compel them not to proceed with the march. At the same time a counter-application was launched by the Alliance for a mandamus to compel the Chief Magistrate of Zwelitsha to grant the application. (Ciskei security laws required that such applications be made to a Chief Magistrate). Finally, it was ruled by the Magistrate that a permit would be granted, but subject to the aforementioned conditions. It is clear that the Alliance leaders were determined not to adhere to the restrictions which they saw as unreasonable and a violation of their right to peaceful protest.

On the day of the march CDF and CPF members were deployed at various points in Bisho to monitor the movements and activities of the marchers. CDF members were deployed at Jongilanga Crescent; at the University of Fort Hare Bisho Campus; at the Ministerial Complex and the Assembly Buildings. In addition to these arrangements there was a helicopter which was monitoring the movements and actions of the marchers from the air, and binoculars were used to have a clear view of the situation. Both applicants were part of the Jongilanga Crescent troops. Members of the National Peace Secretariat were also present. Members of the South African Police (SAP) and Defence Force (SADF) monitored the movements and actions of the marchers on the South African soil. There were no incidents en-route to Bisho. The Applicant Mkosana was the Field Commander of all the soldiers and platoons on the ground. He took orders from the Deputy Commander Colonel Van der Bank, with whom he was able to communicate with a radio. Colonel Marius Oelschig was the Chief Commander and Van der Bank took orders from him. Mkosana was also able to make radio contact with commanders in charge of the different platoons. He had no contact with the helicopter and, for all intents and purposes, the CDF was effectively the first line of defence. Amongst the arms that were issued to their soldiers were R4 rifles, LMG hand grenades and grenade launchers. According to Mkosana the Ciskei intelligence services had received a rumour that at the march CDF members were going to be attacked by cadres of Umkhonto weSizwe ("MK"), the military wing of the ANC which led the Alliance. So much for the background. We now proceed to deal with the evidence of each applicant.

1. VAKELE ARCHIBALD MKOSANA ("MKOSANA")

He joined the CDF when he was 21 years of age and regarded it as his duty to carry out orders from his superiors. He was a professional soldier with a call to ensure the security of the State and safety of the police and he was aware that the Alliance was preparing a march "to take over the Ciskei". Initially he was informed that the Ciskei authorities were taking an uncompromising and stubborn attitude on the matter and the CDF was under no circumstances going to allow the march to proceed beyond the borders of South Africa and enter the Ciskei. However, on the morning of the march, he was informed that the marchers had been granted a permit to enter the Ciskei but would under no circumstances be allowed to proceed beyond the Bisho Stadium. In the light of the existing political tensions and their lack of experience in crowd control, soldiers were very much in fear of their lives. Although on previous occasions it had appeared to him that the marchers were peaceful, this still did not remove his fear of CDF members being overrun and killed.

Whilst positioned at Jongilanga Crescent he observed a crowd of about 100 000 people steadily flowing into the stadium. Suddenly, he observed a group of about 200 to 300 marchers breaking out of the stadium through a gap in the fence. They were charging aggressively in the direction of the Jongilanga Crescent troops in an attempt to bypass them and stage the demonstration in the CBD. At that point no police contingent had been deployed and his troops were going to be the first line of confrontation. He estimated that from the gap to the point where his troops were positioned was a distance of about 200 metres. He suddenly heard two shots but did not see who was firing and at whom. He concluded that it must have been the marchers shooting at them. He reported his observations and the sound of gunshot to Van der Bank over the radio. The latter replied that if they were being fired at by the crowd, they should also return fire ("skiet terug"). At that stage the crowd was getting very close to Mbina, the commander of the Jongilanga Crescent troops. Having received what he conceived to be an order from Van der Bank, he immediately ordered: "Fire with minimum force!". He says he was only referring to Mbina who ten conveyed the order to his troops. It is common cause that when Van der Bank received the report from Mkosana he contacted Oelschig who authorised the shooting, but it is clear that Oelschig was only giving an order in respect of those soldiers who were allegedly under fire, namely the Jongilanga Crescent platoon. At the time Van der Bank was observing the crowd from the roof of the Parliament Buildings.

Mkosana says although he never intended the order to be a command to all the platoons, when the Jongilanga Crescent platoon started firing, all the platoons fired. This was in spite of the fact that none of the other platoons were in danger of being attacked. The so-called break-away group of marchers was only advancing in the direction of the Jongilanga Crescent platoon. At the end of the volley of shots which ensued and continued even when the marchers were fleeing, 28 people were killed and at least 300 injured. The troops were not only firing at the breakaway group that was led by Mr Ronnie Kasrils, one of the prominent leaders of the Alliance. They were firing in the general direction of all the marchers, including those who were still in the process of entering the stadium and those who had not even exited. The amount of chaos and confusion was such that loud calls by Mkosana to cease fire were unheeded. One would imagine that his difficulty was further compounded by the fact that he did not have a loud hailer to make himself heard. He says the extent of the confusion necessitated that he physically go to all platoons and order them to stop the shooting. After the shooting he was told by Mbina in the presence of the Applicant Gonya that during the shooting the latter had fired a rocket launcher. Although he was only a few paces away from Gonya he had not observed him doing so. Gonya was not reprimanded for his misconduct. Mkosana is adamant that when he issued the order he was not referring to Gonya. He testified that he was only referring to those members of the Jongilanga Crescent platoon who were armed with rifles. He takes no responsibility for the conduct of Gonya and the shooting by members of other platoons. They were not acting under his orders.

There are serious contradictions between the versions of the two applicants and we shall deal with these when we summarise the evidence of Gonya.

Under cross-examination Mkosana admitted that he never saw any one of the marchers carrying a firearm. he had not seen any person firing a shot. Indeed subsequent investigations revealed that this was a very remote possibility as none of the marchers were armed and no shooting had occurred before the troops opened fire and even thereafter. No person or physical object had been struck by a bullet before Mkosana gave the order and both judicial commissions discounted any possibility of riflemen Nqabisa, who was shot and killed in the incident, having been shot by the marchers. The CDF internal investigation also did not make a finding to the contrary. Nqabisa was part of the Fort Hare Campus platoon. He was shot on the left side of his head. The probability is very real that he was shot by one of his fellow soldiers.

2. MZAMILE THOMAS GONYA ("GONYA")

Being one of the riflemen under the command of Mbina, he was issued with a grenade launcher and his instructions were to use it on orders from Mkosana. He testified that it was a very strong part of the military discipline and culture that a soldier could not just shoot without orders. He had not used a grenade launcher before. However, he knew it to be a very dangerous weapon which is normally used in war situations. On that day their platoon had two military vehicles. One was occupied by himself and Mkosana, and the other by Mbina. Whilst sitting behind Mkosana in the vehicle he overheard him speaking with Van der Bank on the radio. He was reporting that some of the marchers were coming towards them. And indeed this was the case because at that stage he had observed a certain group of the crowd marching out of the Bisho Stadium. They were coming in their direction towards the CBD. He had not observed anyone of the marchers carrying a weapon. Although he could not follow all the details of the conversation between Mkosana and Van der Bank, he was able to overhear the latter telling the former that he should tell him when this particular group of marchers pass a certain tree. This Mkosana did when the group came too close. Then he heard Mkosana giving them an order to shoot. This was an unqualified order and it was clear what they were being commanded to do excluded the use of minimum force. Mkosana shouted twice that they should fire and there was no reaction from the riflemen. He says they just looked at each other in confusion as they did not see the need to shoot. Being part of the broader Ciskei community, they were quite reluctant to open fire on what they saw as their own brothers and sisters. But when Mkosana shouted for the third time, frantically commanding that they open fire, they complied with the order and fired at the marchers. They were afraid of the consequences of not carrying out an order from a commander. When asked what at the stage he thought would happen (to them) if they did not comply with the order, he replied that they would have been killed by the marchers who were fast getting closer and closer. No warning shots were fired to induce the crowd to turn away.

There can be no doubt that the leadership of the Alliance and their supporters were quite determined to enter the CBD and vocalise their opposition to what they saw as a dictatorship of Brigadier Gqozo and his administration. It is also clear that they were very anxious to have the Ciskei reincorporated into the wider South Africa, so that the inhabitants of the area could at last exercise their right to vote for the first democratically elected government of the country. Judging by their conduct and various statements issued by some of the leaders of the Alliance in the media it is indubitable that they expected some form of resistance from the Ciskei Security Forces to prevent the gathering from taking place in the CBD. However, it does not seem that they expected such unbridled use of lethal force to crush what was clearly a peaceful march. It is our conclusion that in the circumstances it was totally unjustified for the CDF to use lethal force of a general and indiscriminate nature against the marchers. Save for a figment of imagination on the part of Mkosana, there is not a shred of evidence that CDF members were fired at by the marchers. The marchers were unarmed and their intentions were clear, namely to stage a peaceful march in the Bisho CBD, just as it was happening all over South Africa at the time. No property had been damaged and there had not been any report of attempts in that direction. Worst of all, Gonya says he never heard any gunshot before the order to shoot was issued. We reject as false and an exaggeration that shots were fired by one or more members of the crowd. Whilst we do not necessarily accept Gonya's evidence that he used the rocket launcher in execution of orders from Mkosana, we find his conduct totally inexcusable in the circumstances. Gonya testified that they as soldiers did not see the need to shoot and hesitated before they carried out the order. This shows that they appreciated that the order was so palpably wrong in the circumstances that it ought not to be obeyed. In any event, Mkosana denies having given him an order to use the rocket launcher.

The reckless conduct of the CDF troops that day is directly related to another factor, namely the existence of serious problems of discipline within the CDF. Senior CDF officers previously tendered testimonies to this effect. This view is fortified by the evidence that some of the soldiers who opened fire were not even on duty that day. The whole matter of conduct of foot soldiers in obedience to superior orders needs to be put into proper perspective. Although we generally accept that acts performed by foot soldiers in certain circumstances may be justified on the basis of carrying out orders, this is not a hard and fast rule.

In this regard we are also aware that this justification is recognised in many jurisdictions in the world as a special form of defence, for very obvious public policy reasons. What is, however, envisaged is a disciplined and not a trigger happy soldier. In any event, even if we were to accept the evidence of a gunshot having been fired from the crowd, the reaction of the CDF members, including the two applicants, was totally disproportionate to the objective of self-defence and to prevent the marchers from entering the CBD of Bisho.

There is no doubt that some of the marchers acted in breach of the conditions of the permit when they burst out of the stadium, but to simply open fire on everyone under the pretext of enforcing the conditions of the permit was totally unjustified in the circumstances. Indeed this reaction is so irrational and disproportionate that it cannot reasonably be accepted that the leaders of the group of marchers who left the stadium ought to or should have foreseen this reaction. The probabilities are that some warning would have been sufficient to cause the breakaway group on turn back.

It follows that we are not satisfied that the actions of Applicants constitute acts associated with a political objective as envisaged in the Act.

In the result amnesty is REFUSED to both the applicants.

SIGNED AT CAPE TOWN ON THIS DAY OF 2000

ACTING JUDGE D POTGIETER S.C.

ADV N SANDI

MR J B SIBANYONI