A South African National Defence Force (SANDF) soldier stands in front a house as he patrols the streets in Alexandra, Johannesburg, on March 27, 2020 during a joint operation with the South African Police Service (SAPS) in order prevent the spread of the Covid-19 outbreak. (Luca Sola/AFP)
Soldiers implicated in the death of Collins Khosa have been exonerated by an internal South African National Defence Force investigation, which found that the altercation was not what caused his death “when taking into account the post mortem report”.
A police investigation is still ongoing, however.
The SANDF board of inquiry’s report is attached to a court affidavit by SANDF legal adviser Elvis Hobyana, who was reporting back to the high court’s Judge Hans Fabricius on the implementation of the orders he gave in the Khosa case.
Khosa’s family went to court saying that his death was caused by a brutal assault by members of the SANDF and the Johannesburg Metropolitan Police Department (JMPD). In their court papers, the family said Khosa was strangled, slammed against a cement wall and a steel gate and hit with the butt of the machine gun. Afterwards, he could not walk, began to vomit and lost speech, they said. A few hours later his partner, Nomsa Montsha, could not wake him up.
The post mortem described the cause of death as a blunt force head injury. According to the board’s report, the post mortem found “subarachnoid hemorrhage involving the pons and cerebellum” — or bleeding between brain and the membrane that surrounds it, which then pushed the brain down and compressed the brain stem, where basic life functions are located.
But the board of inquiry’s panel said: “On the [post mortem] report presented by the pathologist, there is no injury(s) linked to the cause of death, there are no scalp contusions, the skull is intact.”
It continues: “There were no signs of injuries and vomiting when the body was examined except minor injury on the top left eye and below the knee.” The panel adds that, based on the post-mortem report, it consulted a neurologist, Professor M Baker, who was “concerned” by the level of the pathologist that was assigned to “such a sensitive case”.
“He pointed out some short-comings and contradictions,” said the board panel.
It is not clear from the report whether Baker examined Khosa’s body, nor whether the board’s remark, that there was no injury linked to the cause of death, was based on Baker’s opinion. Although the inquiry concludes that “the cause of death is blunt force head injury”, it also finds that “the injuries on the body of Mr Khosa cannot be linked with the cause of death”.
“Consequently, the board concluded that the death of Mr Khosa was not caused by the SANDF members nor JMPD,” said the report.
The board of inquiry also found that it was Khosa and his brother-in-law, Thabiso Muvhango, who caused the altercation with the SANDF members: “The cause of the argument was the undermining of the two female soldiers by Mr Muvhango and Mr Khosa (gender inequality). The attitude of the two men was provocative.”
In summarising the events, the board of inquiry said Khosa and Muvhango repeatedly ignored their instructions and argued with the female SANDF members, who then called for backup and the two men were forced to comply.
“The force used was pushing and clapping in order for the men to comply with the instruction. Eventually the men complied and walked to the house,” said the report.
But the panel said it did not interview Muvhango or the family members and instead relied on the statements in the police docket and in the court papers.
The panel said that none of the witness statements nor the post-mortem mentioned that Khosa had vomited and that most of the witness statements said he had walked into the house “contrary to the founding affidavit mentioning that he was taken inside the house”. Witness statements also said Khosa told Muvhango to take his wife to hospital and went to the toilet twice — “contrary to the founding affidavit mentioning that he was confused and unconscious”.
In court papers, Montsha said she had also been assaulted.
“Based on the above contradictions the board concluded Mr Khosa was conscious and healthy when the security forces left.”
In his affidavit, to which the report is attached, Hobyana said a police investigation was still underway and that the soldiers would stay off patrol until it was concluded.