Second SANDF report-back to court is silent on Khosa investigation

Another report has been filed in court on behalf of Defence Minister Nosiviwe Mapisa-Nqakula in the Collins Khosa case. It gives no explanation for apparently contradictory positions taken by the minister — saying one thing in court and another in Parliament — about the investigation into Khosa’s death.

Khosa died after an altercation with members of the South African National Defence Force (SANDF) and the Johannesburg Metropolitan Police Department (JMPD). In court papers, his family said he was brutally assaulted by the soldiers and police officers and his death was the result. The assault included his being strangled, slammed against a cement wall and a steel gate and hit with the butt of the machine gun, they said. 

Pretoria high court Judge Hans Fabricius gave a number of orders, including one that Mapisa-Nqakula and Police Minister Bheki Cele must “ensure that internal investigations into the incidents listed below [including Khosa’s] are completed and reports are furnished to this court on or before June 4”. 

Last week an affidavit was filed in court by Elvis Hobyana, legal adviser to the SANDF. It attached the “concluded” investigation report from an SANDF board of inquiry, which exonerated the soldiers implicated in Khosa’s death. “Consequently, the board concluded that the death of Mr Khosa was not caused by the SANDF members, nor JMPD,” said the report. 

In his affidavit, Hobyana, under the heading “compliance”, refers specifically to Fabricius’s order. The minister also deposed to an affidavit, confirming — on oath — the contents of Hobyana’s affidavit. 

But two days later, Mapisa-Nqakula reportedly told the media that the investigation was not finalised. The Sowetan reported that the minister said she was surprised to see the board of inquiry report published in the media — despite it being attached to public court documents — because “all processes have not been exhausted in dealing with that issue”.

Questions from the Mail & Guardian to the minister’s spokesperson, including a question about whether the minister had misled the court, were not answered. 

This week News24 reported that the minister told Parliament’s defence portfolio committee that work was still being done on the investigation. “As far as I am concerned, there is no report,” she is quoted as saying. 

Thursday was the court’s deadline for the internal investigations into the death of Khosa and other allegations of abuse to be completed and for report-backs to court.

But the further report-back filed in court on Thursday contains no more information into any investigation into Khosa’s death. There is no explanation given to the court for why the minister said to Parliament that the investigation was ongoing. Nor — if it is true that the investigation is ongoing — why it has not been completed as required by the court order.

Instead the affidavit from SANDF deputy chief of joint operations Elma de Villiers deals with a further aspect of the court’s order — the other internal investigations into allegations of army brutality. De Villiers explains that, of the 14 internal investigations referred to in the minister’s court papers at the hearing, only two dealt with allegations of abuse of power. 

One of these dealt with a video of members of the SANDF assaulting a member of the public. “The SANDF members involved were summoned to appear before what is referred to as office orders, and were reprimanded for their conduct,” said De Villiers. The police were also still conducting a criminal investigation, she said. 

The second one involved the alleged assault of Lindelani Mthethwa, she said. But in his case, the matter was being investigated by the Hawks and not a SANDF board of inquiry.  

Police Minister Bheki Cele, also put a “compliance” report-back into court on Thursday. His affidavit dealt only with the case of Khosa and not any further investigations into police brutality. 

He said an internal investigation as to the role of South African Police Service (SAPS) members in the death was completed by the Independent Police Investigative Directorate (Ipid) on May 22. Although no SAPS members were involved in the altercation, Ipid had recommended disciplinary proceedings against two SAPS members, he said. When the Ipid report had been received by the national police commissioner, these disciplinary steps would be taken.

He added that the criminal investigation into the death of Khosa was ongoing.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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