This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Names: Mthetheli Crosby Kolela, Bafo Gift Ngqunge, Mabitana Mani
25-05-1999: Day 1
Held At: East London
Matter: Bisho Massacre
CHAIRPERSON: This is another one of many applications to be heard by the Amnesty Committee. Before we proceed, just for the purposes of the record, I am Judge Pillay and I am going to ask my colleagues to announce themselves for the same purpose and those who are appearing.
MR LAX: Good morning, I am Ilan Lax, a member of the Amnesty Committee.
DR TSOTSI: I am Dr Tsotsi, an attorney in Port Elizabeth.
MR VABAZA: I am Vabaza, M W, an attorney from Queenstown representing the applicants.
CHAIRPERSON: Mr Vabaza, do you represent all the applicants?
MR VABAZA: Yes, Judge, all three applicants.
MS MTANGA: I am Lulama Mtanga, an Evidence Leader appearing for the Truth Commission.
CHAIRPERSON: Mr Vabaza?
MR VABAZA: Chairperson, could I start by calling the first applicant?
CHAIRPERSON: Before you do so, I just need to inform you that this Committee is not going to decide what the applicants are applying for. You are going to have to lead the evidence and tell us what you are seeking at the end of the day.
MR VABAZA: I'll proceed to call the first applicant to give evidence. The first applicant will be Mthetheli Crosby Kolela.
CHAIRPERSON: Mr Kolela could you state what language you prefer to use?
MR KOLELA: Xhosa.
CHAIRPERSON: Very well, have you any objections to the taking of the oath?
MR KOLELA: No, sir.
MTHETHELI CROSBY KOLELA (sworn states)
CHAIRPERSON EXPLAINS CHANNELS
EXAMINATION BY MR VABAZA: Thank you, Mr Chairperson. Mr Kolela, is it correct that you reside at 1448 Babanisa Township?
MR KOLELA: Yes, sir.
MR VABAZA: And that you are a councillor in King William's Town presently?
MR KOLELA: Yes, that is correct.
MR VABAZA: You have made an application before the Amnesty Committee? That is correct?
MR KOLELA: Yes, that is correct.
MR VABAZA: What are you requesting the Committee to grant amnesty to you for?
MR KOLELA: First of all, Sir, I would like to thank the Amnesty Committee by giving me this opportunity to make this submission today. I want to give a clear picture as to what happened in October 1992 after the Bisho massacre of which I think everyone knows about it, as it was an international and national issue. People from King William's Town and the neighbouring parts were not very pleased by being massacred dead. They were even chased, even at their own places of residence. Most of the people were living like animals. Only one organisation that was the public enemy, that is, African National Congress, the one that I am still serving in. At the time, I was a chairperson of Payamisa branch in King William's Town.
Conditions at the time forced the people of King William's Town and the Border regions and the neighbouring parts to try and protect themselves and defend themselves against the attacks from the government of Brigadier Gozo. And the only enemy was the African National Congress. The only enemy of the government. At the time the only political organisation that could attack Gozo's government as was against was the African National Congress.
If the people will remember well, the Bisho Massacre was the result of the conflict between Brigadier Gozo's government and African National Congress. The killing of the people did not end there. People would be attacked even at their places of residence.
I want to come to the incident that took place in October 1984. In 1992 when we were arrested I was with Bafo Ngqunge and the place where we were arrested. On that particular day we were at Tembeni at a road block. It was in the morning at about 2 am, we were from our mission that failed. The first mission was to disarm and ambush the soldiers who were at Frankfort Hotel drinking there. The reasons being this - we received an instruction from our commander of the unit at the time, that was Comrade Xoliswe Sotyifa.
CHAIRMAN: Was he an MK Commander?
MR KOLELA: Yes, that is correct.
CHAIRPERSON: Tell us exactly what the order was.
MR KOLELA: The order, the first one, we were instructed to go and take the firearms from the soldiers who were drinking at Frankfort Hotel. The aim was to add to the weapons that we had at the organisation, that is the African National Congress, under the command of Comrade Sotyifa. We aborted the mission because we could not find the soldiers.
CHAIRPERSON: Where is Frankfort Hotel?
MR KOLELA: The Frankfort Hotel is situated at about 15 km from King William's Town, I think it is 5 km from the place where we were arrested, that is at Tembeni. It is within the King William's Town area ... (intervention)
MR LAX: Sorry, ladies, you haven't pressed the button, we're not hearing the translation.
MR KOLELA: The second mission was to go and kill the policeman ... (intervention)
CHAIRPERSON: I want to know everything about the first mission. You were saying - let me ask you, let me ask you certain questions, perhaps. You say you were the first applicant. Is it only two of you who went on the first mission?
MR KOLELA: No.
CHAIRPERSON: Who were with you?
MR KOLELA: It was Bafo Ngqunge, Mabitana Mani, Xoliswe Sotyifa, Sindile Adoni. I was the fifth one.
CHAIRPERSON: Who was the last one you said?
MR KOLELA: Sindile Adoni.
CHAIRPERSON: Good. Now, were you people armed?
MR KOLELA: Yes, that is correct. We had two handgrenades, two F1s, 1 RG5, and one pistol called Stashkin.
CHAIRPERSON: Did you have ammunition for all the pistols and firearms?
MR KOLELA: Yes, we had ammunition for the Stashkin.
CHAIRPERSON: Now, what was this plan?
MR KOLELA: It was like this. First of all, we were going to the place where the soldiers were drinking and on arriving there, if there was quite a number of them we would try and disperse them by the use of handgrenades. And if, perhaps, someone is firing from their side, we would use the pistol, the Stashkin, and that we would go and take their arms. The aim was to get those firearms or those weapons and use them to protect the people, because we did not have enough weapons.
CHAIRPERSON: Yes, carry on.
MR KOLELA: After we, after that we did not find the soldiers. We did not see the soldiers we decided to abort the first mission.
CHAIRPERSON: Is that the reason you aborted the mission, because you couldn't find the soldiers?
MR KOLELA: Yes, that is correct.
CHAIRPERSON: Now this plan. Armed yourself, your plan was to obtain these firearms.
MR KOLELA: We wanted to get the weapons so that we could take them to the members of the defence units so that they can use them in trying to protect the people as we were always attacked.
CHAIRPERSON: Did you make plans as to how you were going to effect the obtaining of these firearms? How were you going to do it?
MR KOLELA: First of all, we did not go there with the intention to kill. Soldiers at the time were using the Frankfort Hotel. They would drink there with - they used to be armed. First of all, we would wait for them to get drunk and we would take their weapons. If perhaps they would fight, they would fight back. The weapons that we had, we were going to use them to disperse them so that if there were other people who would be following or pursuing we would try and protect ourselves with the arms that we had.
CHAIRPERSON: Carry on.
MR KOLELA: We had a car that was driven by Mabitana Mani who is also among the applicants.
CHAIRPERSON: Tell us about the second incident now.
MR KOLELA: The second incident. We were going to a rural area called Tembeni. Yes, that was the same night. We received an instruction from our commander, that is Mr Sotyifa. He told us that there was a report from the Chairperson of ANC, that particular branch, that is Mr Mantawule, he said that there was a certain policeman there who was called Mxolise Ngqolozana.
CHAIRPERSON: You say he was a policeman.
MR KOLELA: Yes, that is correct.
MR LAX: Can I, just before you do. Can I just ask the name of the Chairperson who gave the report? I just didn't catch it?
MR KOLELA: The surname is Mantawule. His first name is Tembusile. What we were told there by the Chairperson of that branch through our Commander Sotyifa was that this policeman was disturbing all the meetings that would be held. Meetings of the African National Congress in that area and he was victimising the members of the African National Congress and the other people had run away from their homes and others would sleep at ANC offices in King William's Town. And others were sleeping in Border Council of Churches and others would sleep in offices of SANCO. That is when we were instructed through our Commander Sotyifa and we were told that that kind of a person was an enemy and in those days we knew very well each and every person who loved freedom wouldn't just go and disturb the meetings in the African National Congress. The only people who would do that were the people who were against development and democracy. Therefore, he was regarded as a person who was on the side of the enemy. The enemy at those times was Brigadier Gozo's government. When we got into that village ... (intervention)
DR TSOTSI: Do you say you were sent to this policeman to do what with him?
MR KOLELA: We were told to go and kill the policeman. We had a lot of things to consider before going ahead with the plan. The first thing was to check about this person who sent us there. We had to check if this person was not holding a grudge against this person. We had to be sure that this person was doing it because he was a member of the organisation and we also realised that this person was not giving problems to individuals but was problematic to the whole organisation.
Secondly, we had to check the place where to get this person so that the other people would not be affected. Meaning the innocent people. We had to go around the village and check the room, his bedroom that is. We wanted t find him alone without anyone, because in those days we had nothing against his family. The only person that we were looking for was him. When we got in, we saw his car about 12 as we were coming in the village. When we got into the village we saw him sitting in his car with a certain lady. The first thing that we asked was that if it was the right thing to kill him in that particular place where he was sitting with this lady. We had agreed that it was not the right thing because there was a second person and we didn't even know how that person was affected in his actions - by his actions.
The other thing that we were looking at was that we did not - we wanted to be sure that by finding him there was not a trap that was directed to us. We went to check in his house. When we arrived there, we went past again and we monitored around the village to check as if it would be safe for us after the mission to exit the village. We monitored him from that place. We thought that he would leave then go straight home. When we came back to the very first spot where he was, he was no longer there. We went to his house. When we arrived there, we were not sure if he was in there or not. But we had agreed that as we did not know what room was he in, and we decided not to demolish or to demolish the whole house with the explosive because the other people and the children who were there would be affected and the people who were innocent. That is when we agreed to abort this mission and go back home and try to think afresh.
When we left there we were stopped at a certain road block. We were ordered to take off our clothes, everything. We were assaulted by those soldiers who were there manning the road block. I personally was assaulted until my arm was broken. All of us were limping as we were hit with the rifles right on our legs. After that the solders who were there, they instructed us to get into the vehicle and leave the place. We heard them saying that we should get into that vehicle and wee were going to be shot at as if we were the people who were running away.
After that, a policeman came. The police was totally against this action - was totally against the fact that we were ordered to take off our clothes and then he put us into the van. That happened after the argument that took place between the police and the soldiers in the road block. The police instructed that we should be arrested just like normal people. And we had changed our names in that road block, we did not give them our real names. The reasons for that was that each and everyone who was in the Executive of the African National Congress, in the structure of the ANC Youth League or any alliance and the Self-Defence Unit, we knew that Brigadier Gozo's government had their names. If we had revealed our real names there, I am sure that even today we wouldn't be alive.
The police took us to the cells in Zelini that is called Zeli Police Station. When we arrived there at Zeli Police Station we were held by the other police who were at there. At the police station we managed to make calls to our legal representatives and even phoned the African National Congress to tell them that we were arrested.
The following day we were taken to Tamaga Police Station. When we arrived there at the police station, as we were about to write our - register our names or write our names, that is when we revealed our real names. Because we knew that if those names were entered in the police register at least the people would get a clue if something happens. The soldiers at the time, more especially the Intelligence Unit of the Ciskei Defence Force, they were very angry about that. We were taken to - into some things that looked like sacks. It was myself, Bafo Ngqunge and Mabitana Mani. We were put into the van and taken to a certain farm that even today I don't know that farm. We were assaulted there. As my arm was broken like this, it was being twisted like this. We were told to tell the truth. The truth that they are looking for is that they wanted to know where the weapons were coming from. We were forced to lie ... (intervention)
CHAIRPERSON: I'm getting a bit confused. First of all, why did soldiers beat you up and why did the police arrest you?
MR KOLELA: When we arrived at the road block, they saw these three handgrenades and the Stashkin pistol that was in our possession. They asked us where did you get those weapons. They were torturing us and interrogating us. We are not sure whether we were being assaulted because of the weapons or else they wanted to know, to get information that - we were not so sure of the reason why we were being assaulted, because it used to be the procedure in Ciskei that if they find you with weapons they would associate you with ANC and they would even assault even if they are looking for nothing. The police were arresting us because legally the soldiers do not have the right to arrest us. And they were also divided in this issue because when the others came they said the other should phone the police so that it could be the police who would arrest us. That is when the police interfered now, and that is when they took us to the police station.
CHAIRPERSON: As a result of the arrest, were you charged?
MR KOLELA: Yes, we were charged for attempted murder, and we were charged for being in possession of weapons unlawfully. At some stage, we were forced to make some statements. The example, myself. I think we made the statement after 10 days because I told them that I couldn't - I was not in a position to make a statement without seeing my legal representative, but because of the pain on this arm, I was forced - we were forced to make a statement. The other reason is that we were severely beaten up and even in court some of the statements as our case was held at the Regional Court, we were forced to tell lies. And the people that we mentioned in court, those people that we said we got the arms from, we said we got the firearms, the weapons from Zukise Mabethu and today I want to tell this Commission the truth that Zukise Mabethu at the time of our arrest was in Uganda attending a training of Umkhonto weSizwe there. And the second one was Robert Desi and at the time he was not present.
The reason for us to tell lies. First of all our Commander Sotyifa is the one who gave us the weapons. If we told the truth that time, it would happen that each and every command structure of MK in Border region including the other leaders of African National Congress would be arrested because we did not know the other people who were also involved with our commander. That is why we decided to mention the names of the people who were in the exile to try and protect Sotyifa. And we wanted to give them the wrong directions so that we could get a relief and we would let the people look for the people who were not around.
We were taken to different camps, sometimes we would be tortured on the farms. Sometimes they would open the windows and instruct us to jump and run away - jump from the window. But we refused to do that. We were divided. I was left up at Mdantsane and others were at Tamaga Police Station.
CHAIRPERSON: Sorry, for how long were you detained before you were released?
MR KOLELA: The others appeared about two times in court before I could appear. I think the others spent a week. I think I spent something like three weeks. They said I was arrested or detained under Section 26 of Internal Security Act of Ciskei at the time.
MR VABAZA: Do you want to add anything to what you have already told the Committee?
MR KOLELA: What I would like to add before concluding. I would like this Committee at this hearing to know very well that all we did at the time refers about the political climate of the time as I have already given a picture, political picture of those days. It's not that we used to hate him or we were hating him, Mxolise Ngqolozana, but the situation prevailed at the time forced us to take those steps. And we are so thankful that today he is still alive. As much as we say that our actions were politically motivated, we know that we cannot say we are sorry. We are only sorry towards the Amnesty Committee that because of the political climate at that time, the lives of the people were in danger. We know that everything that was happening at the time was a result of the policies of Bantustan and the policies of apartheid regime. And all those things were caused by Bisho Massacre which did not even end there. And after that we, after the Bisho Massacre we couldn't sleep at our homes before we are making a general request to show that we are opening up our hands, that we are stretching our arms to all the people who were affected by the situation.
And I also request that during the process of considering whether we will get this amnesty applications or not, but it should be known that all these things happened, they happened because of political climate. It was not just criminal actions, they were not criminal actions. Thank you.
MR VABAZA: What has happened to your case in the Regional Court? Do you know?
MR KOLELA: It was postponed. It was postponed pending on the decision that it be taken by the Amnesty Committee.
MR VABAZA: Fine. The policeman, Mxolise Ngqolazana, was he stationed at Tembeni Location or station somewhere? Do you know?
MR KOLELA: This policeman was stationed at Mdantsane, but he would go to the village at Tembeni, that is, and work there and go there when he was not on duty. And he would disperse the meetings, not because he was on duty, but he was using his powers as a policeman, but a policeman that was not on duty. He was actually stationed at Mdantsane and his home was at Tembeni.
MR VABAZA: You also told the Committee that you sustained some injuries. Were you seen by a doctor as a result of the injuries you had sustained?
CHAIRPERSON: Mr Vabaza, I don't think that is really relevant to the application.
MR VABAZA: Oh. Thank you, Mr Chairperson, but I thought in view of the statements they were forced to make ... (indistinct). You are thus requesting the Committee to grant you amnesty because of the reasons you have already tabulated to it.
MR KOLELA: The reason for asking amnesty is because at the time the police were the enemy. More especially the police who were associated with Gozo's government. But even today the people who had assaulted it as the African National Congress, we have forgiven them. That is why we are asking for amnesty so that we could unite with them and stay in peace in our country.
MR VABAZA: Tell me, were you in a position to refuse the order from the Commander of the MK structure? Could you refuse to obey or to carry out what you were told to do?
MR KOLELA: That was impossible. You would be regarded as a person who was defying the orders of the organisation. If the Commander instructs you to do something you must not question, but you had to do it. There was a term that was used that says you comply and complain later.
MR VABAZA: You also told the Committee that at Zelini Police Station you were able to phone the African National Congress to advise them of your arrest ... (intervention)
CHAIRPERSON: Mr Vabaza, what relevance is all this evidence?
MR VABAZA: Well, Mr Chair, I thought it would also help to fortify their version. That in fact it was to the instructions of the ANC. That is why that when they got a chance to, at Zelini Police Station, they had to ... (indistinct) the structure that had ordered them. I thought that will indeed, but if the Committee feels it is irrelevant I will drop the question.
CHAIRPERSON: I'm just trying to follow the relevance of it, because their evidence is that they acted in terms of an instruction. Whether they were able to refuse or not is neither here nor there.
MR VABAZA: Thank you, Mr Chair. Do you have any other thing or are you through with your version. Thank you, Mr Chairperson.
NO FURTHER QUESTIONS BY MR VABAZA
CROSS-EXAMINATION BY MS MTANGA: Thank you Chairperson. I have got one or two questions to ask. Mr Kolela, the soldiers you were going to attack at the Frankfort Hotel, were they the only people who were attending, or who were drinking at that hotel at the time?
CHAIRPERSON: They don't know because they never found the soldiers.
MS MTANGA: Chairperson?
CHAIRPERSON: He doesn't know because he never found the soldiers.
MS MTANGA: Let me rephrase my question then. During the time you were doing a reconnaissance, were there other people besides the soldiers who were drinking at that hotel?
MR KOLELA: I want to clarify this part first. The soldiers were not going to be attacked at the hotel. We went there and get the drunk soldiers who were there at the hotel and take their weapons, so that if they were pursuing us we would use the arms that we had in our possession. Certainly, in a place that is, in a public place like that, there are other people not soldiers only, but we were not going to attack the hotel. Our target was the soldiers and we wanted to take the weapons and if they were firing we knew that we would also fire back.
MS MTANGA: In your evidence you said you were going to use a handgrenade to disperse them. How were you going to do that?
MR KOLELA: I am talking about a situation whereby we would find soldiers. Say for instance, about six or eight soldiers and would get in as five people we wanted to take their arms. Surely the soldiers as trained people cannot sit down and fold their arms if you run away towards the door, they would pursue us. In that process, anticipating that they would follow us, we would use these handgrenades to disperse. It was not that we wanted to hit them inside. And we also did not know what their reaction would be after taking their firearms.
MS MTANGA: Do you know what rank was held by Mxolise Ngqolozana at that time?
MR KOLELA: I am not sure about his rank.
MS MTANGA: That's the end of my questions, Chairperson.
NO FURTHER QUESTIONS BY MS MTANGA
TAPE BLANK
MR KOLELA: Though we did not throw the handgrenades to Mr Ngqolozana that is the first thing we are asking amnesty for, though we did not do that. Secondly, we are asking for amnesty for being in possession of weapons unlawfully.
MR LAX: Chairperson. You said there were five of you present. I just wanted to be clear. It was yourself, Ngqunge, Mani, Adoni, and who was the fifth person? I didn't catch the name.
MR KOLELA: The fifth person is Sotyifa.
MR LAX: Thank you. He is late now, I understand. Is that correct?
MR KOLELA: Yes, that is correct.
MR LAX: Thank you.
COMMITTEE ADJOURNS
BAFO GIFT NGQUNGE
ON RESUMPTION
MR VABAZA: Thank you, Mr Chairperson and the members of the ... (indistinct). Allow Mr Bafo Ngqunge to testify.
CHAIRPERSON: Mr Ngqunge what language would you prefer to use.
MR NGQUNGE: Xhosa.
BAFO GIFT NGQUNGE (sworn and states)
CHAIRPERSON: Mr Ngqunge you are one of the persons referred by the previous witness, not so, as being part of a group of people who embarked on these ventures. Is that correct?
MR NGQUNGE: That is correct.
CHAIRPERSON: You have heard what he had to say about the planning and what actually happened. Is that correct?
MR NGQUNGE: That is correct.
CHAIRPERSON: Do you differ with him in any way?
MR NGQUNGE: No, I don't differ.
CHAIRPERSON: Do you agree with what he says?
MR NGQUNGE: Yes, I agree.
CHAIRPERSON: And in the same way, you were - were you a member of the ANC structure?
MR NGQUNGE: That is correct.
CHAIRPERSON: Which was that?
MR NGQUNGE: ANC Youth League.
CHAIRPERSON: And would you therefore have fallen under the umbrella of command of Sotyifa.
MR NGQUNGE: Yes, that is correct.
CHAIRPERSON: And you were prepared to comply with the instructions that he may have given?
MR NGQUNGE: That is correct.
CHAIRPERSON: And would you agree also that this other policeman, Mxolise, did you know whether he was giving the community trouble, and in particular membership of the ANC?
MR NGQUNGE: According to our commander, that is correct.
CHAIRPERSON: And you accepted that as true?
MR NGQUNGE: We accepted it.
CHAIRPERSON: What arm were you carrying personally?
MR NGQUNGE: I was carrying a Stashkin, a pistol.
CHAIRPERSON: Yes, thank you. Have you got any further questions you would like to lead him on, Mr Vabaza?
NO QUESTIONS BY MR VABAZA
NO QUESTIONS BY MS MTANGA
WITNESS EXCUSED
MABITANA MANI
MR VABAZA: The third applicant, Mr Chairperson and members, is Mabitana Mani. He is also amongst the five group of people.
CHAIRPERSON: Mr Mani what language would you prefer to use?
MR MANI: Xhosa, Sir.
MABITANA MANI (sworn and states)
CHAIRPERSON: Mr Mani, you - were you a member of any political structure in the course of the events which has been referred to in this application.
MR MANI: Yes, Sir.
CHAIRPERSON: What was that?
MR MANI: SDU.
CHAIRPERSON: Are you the person referred to by Mr Kolela as being part of a group who embarked on this venture?
MR MANI: That is correct.
CHAIRPERSON: And in respect of the policeman, Mxolise, were you personally aware of the problems that he is alleged to have given the community? Or did you rely on the order given by the commander.
MR MANI: I relied on the orders, Sir.
CHAIRPERSON: Did you consider yourself as falling under the umbrella of authority of that Commander?
MR MANI: Yes, that is correct.
CHAIRPERSON: And you accepted what the Commander informed you?
MR MANI: Yes, I accepted it.
CHAIRPERSON: Now, you have heard the evidence of Mr Kolela.
MR MANI: Yes, Sir.
CHAIRPERSON: Do you agree with what he says?
MR MANI: Yes, it is correct, Sir.
CHAIRPERSON: Do you associate yourself with his testimony?
MR MANI: Yes, Sir.
CHAIRPERSON: Is there anything that you dispute in what he says?
MR MANI: No, there is nothing, Sir.
CHAIRPERSON: Were you armed that day?
MR MANI: I was the driver of the car, Sir.
CHAIRPERSON: But were you also armed?
MR MANI: No.
CHAIRPERSON: There is one question that I omitted to ask the previous two witnesses. I just want to find out from you. From the evidence as I understand it, no shot was discharged during either of the incidents. Am I correct?
MR MANI: Yes, that is correct.
CHAIRPERSON: Yes, thank you.
NO QUESTIONS BY MR VABAZA
NO QUESTIONS BY MS MTANGA
WITNESS EXCUSED
CHAIRPERSON: Are there any other witnesses you would like to call?
MR VABAZA: No, Mr Chairperson, there are no other witnesses. We are concluding the evidence for the applicants.
CHAIRPERSON: Is there any witness or victim who would want to testify before us?
MS MTANGA: No-one, Mr Chairperson, none.
CHAIRMAN: That seems to bring the end to the testimony in this matter application. Mr Vabaza, there's not much we would like you to argue on.
MR VABAZA: That is correct, Mr Chairperson.
CHAIRPERSON: I am informing you that is our view. But I want to come to issues that do concern us and we want to give you an opportunity to deal with it, it seems from the written application that application is being made for amnesty in respect of transgressions of the Arms and Ammunition Act, the Explosives Act. Now, with those two Acts and how it affects the application, we've got no trouble with. There is the matter, of course, of the application of attempted murder. We would like you to address us on that. And as you address us, I will give you our prima facie views on what the problems are.
We are of the view, at this stage, that there's no evidence to justify an allegation that attempted murder was committed, and hence, in respect of that, amnesty cannot, of course, be granted, because it was never committed. We would like to hear you on that aspect.
MR VABAZA: Thank you, Mr Chairperson and members of the Committee. It had always been our view also that no charge of attempted murder even when we appeared in the Regional Court in Zwelitshya. But the prosecutor and police said it was the instruction of the AG then that they should charged with attempted murder on the basis of how they had gone into Tembeni to do. I also agree with the Committee, Mr Chairperson, that in respect of that indeed there could be no amnesty granted, but we included it only because it was, it was formed part of the charge sheet in the Regional Court.
CHAIRPERSON: Further view is that what may be something that we consider is the issue of the planning of a murder and hence the offence of conspiracy to murder, which may be, at this point in time, more appropriate. I don't know what your views are on that.
MR VABAZA: Thank you, Mr Chairperson and members. Indeed it could be said the charge of the offence of conspiracy to commit attempted murder could be an appropriate alternative. Mr Chairperson, the only view ... (indistinct) will be able to make is that even that one it was, from our point of view, rather remote, not causally, not closely connected, more so if one takes into account that when they got into the village nothing was done, though it had originally been planned to. That's the only view .... (intervention)
CHAIRPERSON: Isn't that primarily a conspiracy?
MR VABAZA: It is, what you are saying. Even, that's what we are going to argue in the court that there's no very strong evidence. Only it is based on the statements extracted from them. It is indeed, I agree.
CHAIRPERSON: Mr Vabaza, the difference between this forum and the court is that here you'd like your client to be guilty. Because then he can get amnesty.
MR VABAZA: No.
CHAIRPERSON: If he is not guilty, then he can't get amnesty.
MR VABAZA: No, Mr Chairperson, that's not what I am saying. I am saying I agree with you, Mr Chairperson and the Committee, that indeed conspiracy is.
CHAIRPERSON: What about conspiracy to robbery in respect of the firearms of the soldiers.
MR VABAZA: Even that one is an appropriate one.
CHAIRPERSON: One would have hoped that in your, at least your affidavits that supplemented the application, that would have been set out. Because the only way we can make such a finding is because it comes out of the facts of the evidence. Hopefully in future, it will be covered properly. But would you agree also that in the case of the first incident where the soldiers were going to be ambushed, there was certainly conspiracy to rob them of their firearms?
MR VABAZA: I agree with you.
CHAIRPERSON: Is there anything else you'd like to add?
MR VABAZA: There is nothing else other than the similar evidence given and tendered.
CHAIRPERSON: I see. Mtanga, have you got any ...
MS MTANGA: No, I have nothing to say, Chairperson, thank you.
CHAIRPERSON: We're going to take some time to consider this and you will probably be informed during, through the normal channels of what our decision is. I am also given to understand that the matter scheduled to begin tomorrow has been postponed and so too, the matter that was supposed to start on Thursday. We are attempting to bring forward the matter scheduled for Friday and at the moment, the best we could do is to get an undertaking about Thursday in respect of that matter. In the circumstances, we will adjourn till Thursday 9 am.
COMMITTEE ADJOURNS
04-02-2000: Day 2
ON RESUMPTION
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:
"At the time when I required instructions from my commanders, I honestly believed that my troops and I were in danger and conveyed this to them."
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.
NO FURTHER QUESTIONS BY MR NOMPOZOLO
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 -
"The troops under my command did not employ any weapons other than the R4 rifles. The light machine guns were not deployed, but at that time you knew that the grenade launcher had been employed."
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:
"We were told by Captain Ndandiso to fire."
That is the fourth line from the bottom of that paragraph. Do you have where I am?
MR MKOSANA: Yes.
MR SMITH:
"The orders were followed."
And then he says:
"The Captain said, 'Ready', they changed the levers and he then said: 'Fire one shot.' The crowd turned back immediately."
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:
"No, but they were rushing at us."
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:
"Was there any fire from the crowd?"
and he says:
"No, but they were rushing at us."
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.
NO FURTHER QUESTIONS BY MR SMITH
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.
NO FURTHER QUESTIONS BY MR DU PLESSIS
CHAIRPERSON: Thank you Mr du Plessis. Yes, Mr Mkosana, thank you, you are excused.
WITNESS EXCUSED
CHAIRPERSON: We will take the tea adjournment at this stage. We'll adjourn for 15 minutes.
COMMITTEE ADJOURNS
ON RESUMPTION
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.