SANDF ruling on Khosa’s death stuns legal experts

SANDF conduct foot patrols as Gauteng Community Safety MEC Faith Mazibuko leads an awareness operation in Slovo Park Informal Settlement near Brixton, 14 May 2020. The operation included members of JMPD, SAPS, SANDF and well as Home Affairs. Picture: Tracy Lee Stark

They don’t take responsibility for their actions, and instead shift blame, said a law professor.

The SA National Defence Force’s (SANDF) report exonerating its soldiers in the death of Alexandra resident Collins Khosa has stunned legal experts, who described it as “unfortunate” and “poorly drafted”.

An internal board of inquiry exonerated the soldiers, despite the High Court in Pretoria having ruled in favour of Khosa’s family in an urgent application to have the soldiers present when he died taken off patrol.

Associate law professor at the North West University Elmien du Plessis said the SANDF and SA Police Service (Saps) were yet to comply with the order to establish a freely accessible mechanism for civilians to report allegations of abuse, brutality and torture.

“This has not happened. It is important to ensure that the state obeys this court order.

“SANDF or SAPS cannot be the wrongdoers and then judge their own wrongdoing. An independent mechanism is urgently needed,” she said.

The soldiers allegedly involved in the incident are not completely off the hook as a criminal case has been transferred to the SAPS Gauteng Provincial Organised Crime Unit for investigation.

Du Plessis said the family should also institute a legal claim for damages against the SANDF and could pursue a private prosecution if the state declined to prosecute.

Du Plessis said the inquiry was not independent nor impartial, pointing out that none of Khosa’s family members or neighbours had been interviewed to find out what had happened.

She said the court had indicated that the investigation was shoddy and that the SANDF now relied on this shoddy investigation, rejecting the version of the Khosa family.

Khosa’s family described in court papers how he was dragged out of his home yard on to the street and severely assaulted, including being butted with a machine gun, throttled and slammed against a steel gate.

The 40-year-old father of three died hours after the alleged attack on him and brother in-law, Thabiso Muvhanga, but the board of inquiry found that Khosa was “conscious and healthy” when the security forces left.

“The report is very poorly drafted,” said Du Plessis. “For instance, in the findings the cause of death is a blunt force head injury, but the pathologist found only a small cut above the left eye, a scratch on the left leg underneath the knee and no other injuries.

“In the next paragraph they write that ‘the injuries on the body of Khosa cannot be linked with the cause of death’.

“This does not make sense. For one, a blunt-force head injury is an injury on the body.

“Where did he get the blunt force head injury? This is not explained or addressed.”

She said it was it was unfortunate that the SANDF asserts that provocation is an excuse for violence, saying the court had made it fairly clear that force may not be used, and where it is necessary, only the minimum force can be used.

“Neither SANDF nor SAPS may use violence when provoked.

“Violence is reserved for exceptional circumstances and deadly force only when there is a threat to life.

“The report speaks of ‘pushing and clapping’ – which, even if [Khosa and his brother-in-law] were contravening the regulations will not be justified.”

Du Plessis said the inquiry seemed to have missed the fact that Khosa was on his own property, not contravening any of the lockdown regulations and therefore there was nothing he needed to comply with.

Du Plessis said the exoneration of the state and the officers from any wrongdoing, together with the suggestion that the community must get training, shows a lack of understanding on the part of SANDF on their role and the use of force.

“They don’t take responsibility for their actions, and instead shift blame.

“The [Defence and Military Veterans Minister Nosiviwe Mapisa-Nqakula] also did this in press statements.

“This came out very strongly in the court case. And this is a great concern,” Du Plessis said.

siphom@citizen.co.za

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