Magidiwana said that after he had been wounded in the leg and fallen among several other injured and dead miners, “I could hear voices of policemen approaching the place where we had fallen. When they got to me, I was again shot several times at close range whilst I was on the ground.

“I sustained further shots in my abdomen. The last shot caught my testicles and caused me some severe injury. I pleaded with the police to rather kill me.”

Magidiwana says that he was laughed at, and told that he would die anyway – that the police would not bother to finish him off.

Police, on the other hand, say he was seen firing a pistol at the police.

Magidiwana denies this, saying he has never had a gun of any sort.

In building his case that police had deliberately set out to exact revenge for the deaths of two policemen three days previously, the wounded miner’s counsel, Dali Mpofu, also presented a video clip of North West police commissioner Zukiswa Mbombo telling journalists: “I do not want to explain to you what we will do if they won’t move, but today we are ending this matter.”

On the ground, the police officers reflected the same. One isiXhosa-speaking cop even told a ‘homeboy’ miner from the Eastern Cape that they had been given the authority to shoot the strikers. Other police officers referred to 16 August as a D-day, using the famous WWII code name for the Invasion of Normandy.

Within hours, the gunfire and bloodshed at Marikana was itself to resemble a war zone.

While Magidiwana’s testimony still has to be examined fully in the Commission, it is seems unlikely that the video footage of the day will not determine the truth of either version. There is footage of one miner at the initial scene, who shot at police after the teargas and rubber bullets had been fired by the police. It should be a simple matter to determine if this was Magidiwana or not. On the other hand, if Magidiwana fell wounded next to strike leader ‘Mambush’ Noki, and in the following minutes was shot at close range by police, this would have surely been witnessed or captured on camera by journalists at the scene. Perhaps the trauma of the day compromised his memory of actual events, though his wounds reflect that he indeed was shot several times.

These inexplicable failures of basic common sense in some of the discussions around the witnesses and evidence are not helping the nation get closer to the truth. And it would seem that the legal counsel is trying to show the motivation(s) of the various players by way of events on the ground.

Yet behind the scenes of legal thrust, parry and fumble as the truth is pursued in a Rustenburg hall, there are dark manoeuvrings afoot. The Commission was meant to be the sole legal avenue being pursued regarding the events before and during the Marikana massacre, yet the police in North West have, for months now, been extremely busy arresting and charging people – mostly, but not exclusively, miners – from the communities around Marikana.

Associate Professor of Law at Wits’ Centre for Applied Legal Studies (CALS), Bonita Meyersfeld, says: “There was a strong call from all quarters, including Parliament, that the Commission of Inquiry into Marikana be allowed to take its steps to operate without parallel processes.”

Despite this, other legal and illegal processes continue, but only against the miners and the communities they hail from. Recently, the 276 miners who had been arrested initially on the afternoon of the massacre of 16 August – and charged with the murder of their own colleagues by the National Prosecuting Authority under the common purpose doctrine – had to appear in court again. While the NPA, under pressure from the horrified public and puzzled Minister Jeff Radebe, withdrew the murder charges, it never dropped the charges of public violence. Despite representations from the commissioners, the commission had to adjourn for two days as the hundreds of accused and their supporters travelled to the Ga-Rankuwa magistrate’s courts.

Here, the day was wasted as the men, in small groups due to the size of the courtroom, traipsed in simply to hear that the matter had been postponed until after the Commission. It was not as if the justice system needed to check if the accused were still around – they have to appear three times a week at their local police station. (Most say they have to show themselves every Monday, Tuesday and Friday.)

While the miners and supporters sang songs to bolster their courage on the bus ride in, many were clearly afraid. Some refused to be photographed for fear of being singled out by the police.

Their fears are not without cause. We have previously reported on the torture in detention of some strike leaders, and the attempted intimidation of people who might be damaging witnesses against the police.

Many of the strike leaders live in fear, some still bearing the scars of previous assaults. As the crowd of Marikana residents made their way into the court grounds, these policemen were seemingly so brazen that they lined up outside, leaving an impression of trying to spot those among the miners’ supporters they still wanted to arrest. The courage of many of the men disappeared when they saw the faces of policemen they say were complicit in their torture over the last months.

Some of those cops are known by name to the Daily Maverick. These policemen, dressed in civilian clothes, were pointed out as being the Crime Intelligence members who led raids on the miners and arrested them. As the throng of miners and their supporters made their way into the court property, they were hungrily watched by these policemen, who were mostly dressed in Pep Stores-Rhinestone Cowboy fashion – blue jeans and brightly coloured shirts boasting decorative detail.

What is curious is why restraining orders have not been taken out by the miners’ lawyers against the SAPS to prevent these arrests, detentions and tortures. The attorneys and advocates arrived at the Ga-Rankuwa magistrate’s courts seemingly oblivious that the tormentors of some of their clients were watching their splendid vehicular entrance with narrowed eyes.

Professor Meyersfeld, who is also an expert on torture, responded to the claims: “If it’s true, it takes us back to some of the darkest days of Apartheid police brutality. Violence is absolutely not allowed as a method of interrogation. This is in fact one of the most undisputed principles of international law.”

The Independent Police Investigative Directorate, the body empowered to root out abuse by the police, responded: “Kindly note that the IPID cannot comment at this stage, as doing so could jeopardise ongoing investigations.”

Which is interesting, as they have previously said they cannot investigate unless a charge has been laid. To our knowledge, the assaulted miners have been too scared to lay a charge, and their attorneys have not responded to our queries as to charges being laid. If there is indeed an IPID investigation, it is curious that the alleged perpetrators are allowed to continue to intimidate people, especially in such a high-profile matter. If the IPID is hot on the trail of the torturers, it would be good for the people of Marikana, as well as the witnesses, to know this. They, and we, need to be assured that police brutality is not simply a given in our land once again.

One of those strike committee members fortunate enough to have evaded arrest by the police is Lungisane Nogwanya. He is surprisingly youthful, the father of two very young children, and he evades capture by sleeping in different places each night. “The police are looking for me. Those that are arrested are asked where I live, how they can find me. (Their heads) are put in a plastic bag, the door is closed, a pipe is taken, those white electricity ones. They say they are beaten with these. They come back red in the body. They are asked to take their clothes off and they are beaten on the cement.”

“How is it that we can be arrested, when it was said that nobody would be arrested until the end of the Commission? The Commission will tell who will be arrested.”

Nogwanya says that it is the police and the trade union NUM who are looking for him. He says this while wearing the green t-shirt of AMCU, the union that has replaced NUM in the platinum belt miners’ workplace and hearts.

Nogwanya acknowledges he cannot escape the police for ever. “Even those that are arrested, they are asked where I live, how they can find me. They say the police are looking for me. My day is also coming. I am afraid.”

He relates that even as another of the strike leaders, Xolani Ndzuza, was arrested, he managed to run and escape. Ndzuza claims he was beaten while in detention after that arrest, and the matter was brought up with the Commission by his legal counsel, advocate Dali Mpofu.

Yet it seems that little or nothing was done to stop the reign of terror out Rustenburg way, where that suburban facade that the police are there to serve and protect apparently has no resonance.

Even women who are not mine workers are being targeted. Primrose Nomzekelo Sonti is a middle-aged woman who is an ANC stalwart in the shanty settlement of Nkanini. Well, she was, until the events of the 16 August. Then, a month later, her friend, ANC counsellor Paulina Musohlo, was shot by police. Public Order Policing members opened fire with rubber bullets at her and a group of women gathered outside the community hall in September. Two rubber bullets hit Paulina, one grazing her abdomen and the other embedding itself in her knee. She was operated on and due to be released from hospital when she inexplicably died. I won’t share the conspiracy theories of why she died after she was due to be discharged, but suffice to say that the community has nothing but anger and hatred for the police.

That no-one has been charged with her death is odd. Rubber bullets are designed to be bounced off the ground, and are lethal under 50 metres, so when police fire at will into a group of women at a women’s group meeting from the portholes of an armoured vehicle, it is hard to justify that the action is in the interests of public order. These same small, round rubber bullets easily penetrated the corrugated iron of the Nkanini shacks during that day.

Just three weeks ago, Sonti was arrested for intimidation, she says. “They asked me why we were supporting the strikers. I said, our brothers and husbands are dead, so we are supposed to support them.” The police asked why they were there, and Primrose answered that she was watching President Zuma and the ‘Kings from the Eastern Cape’, as well as Julius Malema.

The police responded, she says, by asking “Where is that bladdy shit Julius Malema? How much money did Julius Malema donate to Wonderkop?”

Sonti says the police threatened to beat and jail her, but she remains unmoved. “These police know that they themselves are guilty, but they want to blame the miners and the community for causing the death of these people, that is why they go everywhere, arresting us. But we know it is the police.”

It is unclear if these police actions are meant to further justice, or the interests of a narrow group, or the state. It is clear, however, that the police have lost the faith of the community. They have also managed to ensure the average person in Marikana feels abandoned. “The government doesn’t care about us, never, more especially the ANC. I am angry with [the] ANC,” says Sonti.

These people are not hardened criminals. They are workers who took part in a strike. Some of them did indeed commit crimes, even murder. But collective punishment cannot be meted out by the police. Not a single policeman has been arrested, suspended or even charged regarding the events of the 16^th.

The submission by the police to the Farlam Commission admitted that police killed 34 people, and it remains to be seen if these killings will later be termed murder or not.

Prof Meyersfeld says, “If I’m not feeling safe, secure, if I’m not feeling like I can come forward and tell my story and somebody is going to listen to me and give me the space, without fear of further persecution, then I would not personally feel that that is the pursuit of justice. I don’t think that’s fair.”

Quite simply, the prosecuting authority and the police need to act with a strong sense of responsibility and complete impartiality at this critical time. It will be the poor who suffer most if they do not. DM

Photo: Residents watch police work at the scene of the massacre at Wonderkop that saw 34 striking miners killed by police. 17 August, 2012. (Greg Marinovich)