ANALYSIS | The Collins Khosa report: Confusion in defence dept corridors or was the minister misled?

The Khosa family together with a few individuals buried their son Collins. Picture: Supplied
The Khosa family together with a few individuals buried their son Collins. Picture: Supplied
  • Defence Minister Nosiviwe Mapisa-Nqakula has backtracked on her comments made at the Portfolio Committee on Defence about the Collins Khosa report.
  • The minister's comments were inconsistent with the affidavit she deposed to the high court.
  • Mapisa-Nqakula confirmed Elvis Hobyana’s affidavit, she also specifically mentioned certain orders that will be addressed in due course. 

It's been a week Minister of Defence Nosiviwe Mapisa-Nqakula may well want to forget.

After going on the offensive as she tried to fend off questions about a South African National Defence Force (SANDF) board of inquiry in the actions of soldiers accused of killing Collins Khosa on Good Friday, the minister had a bad Friday as she was forced to put out a statement saying comments she made so emphatically to parliamentarians was, in fact, wrong.

But how did she get it so wrong? Was it just a misunderstanding, as her ministry's statement suggests, did someone fudge the truth along the way.

The SANDF report emanates from an incident in Alexandra, Johannesburg, in March when Khosa, 40, was confronted by soldiers and joined later by metro police officers. He died hours after the confrontation, but the defence force's board of inquiry found the soldiers, despite pushing and smacking him, were not responsible for the injuries which caused his death.

Khosa's family originally approached the Constitutional Court, which dismissed their direct access application.

They then approached the Gauteng High Court in Pretoria, on an urgent basis, in a bid to force the government to intervene and reign in law enforcement's alleged heavy-handedness during the lockdown.

Following arguments, the court ruled in favour of the Khosa family’s urgent application.

The SANDF report

The SANDF board of inquiry report first appeared attached to an explanatory affidavit filed with the court on 26 May.

The affidavit was filed to update the court on what steps had been taken to adhere to Judge Hans Fabricius' orders.

The report, which gives a summary of events, makes findings and gives recommendations ultimately clearing the soldiers accused of killing Khosa, as it concluded that there was no link between the injuries he sustained due to their actions and him dying.

Hobyana’s affidavit

According to an affidavit filed by the SANDF's legal adviser Elvis Hobyana, made under oath, the facts contained in the affidavit are "to the best of his knowledge, true and correct".

Hobyana states that where he relies on information given to him by senior members of the SANDF, as well as Mapisa-Nqakula, to confirm the steps taken by them to comply with the court order, he believes that this information is accurate.  

He further says that Mapisa-Nqakula was required to file the affidavit in compliance with the order, but that he was requested to depose the affidavit on behalf of the minister, the secretary of defence and the chief of the SANDF because Mapisa-Nqakula "is currently constrained by engagements of the State".

A group of South Africans protest in solidarity with those protesting the death of George Floyd in America at Zoo Lake. (Photo by Gallo Images/ER Lombard)

In Fabricius' judgment, he orders the Minister of Defence, as well as the Minister of Police, to ensure that internal investigations, which includes the treatment of Khosa, is completed and the reports are furnished to the court on or before 4 June.

It appears that it is this specific order that led to the report into Khosa's death being attached to Hobyana’s affidavit.

Furthermore, in his affidavit, under the heading of compliance, Hobyana explicitly said that the board of inquiry had concluded its investigations on the incident regarding Khosa.

"Copy of the report of the board of inquiry is attached as annexure DOD1," the affidavit reads.

Mapisa-Nqakula’s comments

On Wednesday, News24 reported that Mapisa-Nqakula had told the Portfolio Committee on Defence neither she, nor her deputy, had received a report from the board of inquiry, adding that the chief of the SANDF sent the report back, as they had not fulfilled the full terms of reference.

"Work on that is still being done," she said.

"It is not a matter which has been concluded."

Committee chairperson Cyril Xaba asked for clarification on whether the report in the public domain was a preliminary report.

Mapsia-Nqakula answered: "I don't accept it even as a preliminary report. As far as I'm concerned there is no report."

This is not the first time that the minister publicly refuted the finality of the report. On 28 May, during a briefing, Mapisa-Nqakula said the matter was still under investigation, News24 reported.

Mapisa-Nqakula confirmatory affidavit

The day before the briefing, on 27 May, Mapisa-Nqakula signed a sworn affidavit confirming the explanatory affidavit deposed by Hobyana.

And this is where the discrepancies begin to creep in.

In her affidavit, Mapisa-Nqakula says she has read the explanatory affidavit deposed by Hobyana and filed on behalf of herself, the secretary of defence and the chief of the SANDF, at her request.

“The explanatory affidavit explains the steps taken by the first to third respondent to comply with the order of this court, handed down on 15 May 2020.

"I confirm the contents of that affidavit in as far as they relate to me,” the minister said in her affidavit.

The minister then notes that part of Hobyana's affidavit, which makes reference to the implicated soldiers being placed on suspension, appeared to have been an error.

Mapisa-Nqakula sets the record straight, referring to other parts of Hobyana's affidavit which details that the soldiers were not placed on suspension but were rather placed on special leave pending the outcome of the investigations.

The affected members will further not be permitted to report for duty until the police complete the criminal investigation.

"This has the same effect as the precautionary suspension on full pay ordered by the court," Hobyana said.

Then, perhaps most tellingly, Mapisa-Nqakula’s affidavit notes that there has been either full or substantial compliance with the court order, apart from 6.1.2, 6.2 and 6.3 "which will be addressed in due course".

In the Fabricius judgment, in clause 6, he orders that the first (Minister of Defence) and fourth (Minister of Police) respondents shall:

6.1 ensure that the internal investigations into the incidents listed below are completed and reports are furnished to this Court, on or before 4 June 2020:

6.1.1 the treatment of Mr Collins Khosa;

6.1.2 the treatment of any other person whose rights may have been infringed during the State of Disaster at the hands of members of the SANDF, the SAPS and/or any MPD

6.2 immediately lodge each report with this court Court

6.3 furnish such reports to the applicants' legal representatives… " 

Mapisa-Nqakula specifically mentions 6.1.2, 6.2 and 6.3, as orders that would be complied to in due course.

The fact that 6.1.1, which would be the report into the death of Khosa, is not mentioned, infers that this part of the order has been completed and complied with.

It can further be denoted that Mapisa-Nqakula would not mention 6.1.1 as outstanding as the report was to Hobyana's affidavit as per the court's order.

The lawyer representing Khosa's family, Wikus Steyl of Ian Levitt Attorneys, makes a similar suggestion in a letter to the state attorney, acting on behalf of the defence minister, on Thursday.

Mapisa-Nqakula backtracks

In a statement, released on Friday, Mapisa-Nqakula backtracked on her comments made to the Portfolio Committee on Defence.

According to the statement, the minister, when addressing the committee, pointed out that "she was made to understand that the investigation had been referred back by the Chief of the South African National Defence Force and might be reopened for further investigation".

"This understanding has turned out not to be correct as the SANDF will not be reopening the Board of Inquiry for further investigations."

The statement read:

The Minister regrets any confusion that might have been caused by her address to the Joint Standing Committee on Defence and by the subsequent public reporting of her address to the Joint Standing Committee.

"However, and consistent with the SANDF’s affidavit and the Minister's confirmatory affidavit to the Court, a criminal investigation is still ongoing by the SAPS."

The statement further says that the minister has ordered the Military Ombud to conduct further investigations on the complaint regarding the Khosa incident.

"For these reasons, there is not yet a final word on the Khosa incident and any culpability that might be established for his death."

While the minister backtracks on the comments she made before the committee, she offers no further explanation as to why her understanding of the matter was incorrect, nor does she offer any explanation for the obvious discrepancies between the comments she made and the confirmatory affidavit she filed with the High Court. 

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