Speaking to Sunday Independent, the family’s lawyer, Wikus Steyl from Ian Levitt Attorneys, said: “This report is a sham and ridiculous, we don’t accept it. We are taking it on review. Khosa’s family members weren’t even interviewed for this report.”
Steyl confirmed an independent pathologist would be appointed to analyse Khosa’s post-mortem.
“We don’t want a cover-up, we want justice,” he said.
Steyl said he was awaiting a second report from the SANDF before he could take it on.
“All the so-called discrepancies mentioned in this sham report were never raised in court because they knew we were going to challenge them because they are ridiculous.”
The DA has is calling on President Cyril Ramaphosa to discipline or replace the minister of defence “for her and her department’s shambolic handling of the inquiry into the death of Khosa”. Kobus Marais said Nosiviwe Mapisa-Nqakula backtracked on comments she made before Parliament’s joint standing committee on defence that the army’s investigation into Khosa’s death was a preliminary report and “has been referred back by the chief of the SANDF and might be reopened for further investigation”.
“She has now indicated that her understanding of the situation was incorrect and that SANDF will not be reopening the investigation. This raises several questions, such as, did the minister mislead Parliament? Did she not know that she signed the affidavit which was submitted to court? Was she undermined by the military leadership? Or has she lost their trust and support?
“It is this confusion and contradiction which fuel speculations that the entire internal military investigation into Mr Khosa’s untimely death was a sham and devoid of transparent and due process,” Marais said.
He said the investigation was solely an exercise to exonerate the soldiers who were implicated in the death. “This was never about justice for the Khosa family,” he said.
Khosa died on April 10 after an altercation with soldiers and Joburg metro police. Witnesses said they were at home with him and two others when soldiers arrived, accusing them of violating lockdown regulations. Khosa was allegedly taken outside into the yard where soldiers poured beer over his head, slammed him against a cement wall, kicked, slapped and punched him.
He died a few hours later.
Despite witnesses, an SANDF board of inquiry’s report released this week absolved the soldiers implicated and raised more questions than answers. The report attached an affidavit by SANDF legal adviser Elvis Hobyana, who was reporting to Pretoria High Court Judge Hans Fabricius’s orders.
According to the report, a lack of respect towards female soldiers and provocation led to the altercation that resulted in the death of Khosa. It found the soldiers and members of the metro police who were accused of killing Khosa could not be held liable.
“The cause of the incident was gender inequality and provocation, specifically a lack of respect towards female soldiers by two men,” it said.
The military board of inquiry started on April 14 after the Khosa family had opened a case against the soldiers and JMPD members.
Khosa’s family took the minister of defence and her police counterpart, Bheki Cele, to court arguing that his death was a result of the brutal assault by the soldiers and members of the JMPD.
The board of panel report states that the postmortem report indicated that there were “no signs of injuries” and concluded that Khosa’s death “was not caused by the SANDF members nor JMPD”.
It further found that Khosa was conscious and healthy when security forces left but acknowledged that there were injuries.
“The injuries on the body of Mr Khosa cannot be linked with the cause of death,” it said.
The report also added that Khosa and his brother-in-law, Thabiso Muvhango, might have provoked the two female soldiers, who first came to his house where they found a camp chair and a glass half full of alcohol in his yard.
The panel concluded that the provocation might have caused the altercation with the soldier and also added that Khosa and Muvhango repeatedly ignored instructions from the soldiers but instead argued with them. The female soldiers then called for back-up.
The report added that “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”.
Steyl said the panel said it did not even interview Muvhango or Nomsa Montsha, Khosa’s partner.
Steyl has now written to the state attorney’s office questioning the defence minister’s affidavit and submissions. He said the report that was submitted to court was the final version as the minister had submitted under oath that she had complied.
“It is instructive to note that the board’s report was dated 15 May 2020. The affidavit annexing the board’s report is dated 26 May. Thus, the minister has no fewer than 11 days to consider the board’s report, and if she was of the opinion that it was not final, or was going to be ‘sent back’ to the board, she could and surely would have said so to the court. But she did not,” Steyl said.
“Instead, she represented to the court that reports attached to the affidavit was the final report. In the view of the above, the minister’s statements to Parliament cannot be reconciled with her statements to the court.”