Analysis of the third kind
19 October 2017 05:26 (South Africa)
South Africa

Marikana Commission: As Bizos cross-exam ends, Phiyega is still not forthcoming

  • Sipho Hlongwane
    sipho hlongwane BW
    Sipho Hlongwane

    Sipho Hlongwane is a writer and columnist for Daily Maverick. His other work interests also include motoring, music and technology, for which he has some awards. In a previous life, he drove forklift trucks, hosted radio shows, waited tables, and was once bitten by a large monitor lizard on his ankle. It hurt a lot. Arsenal Football Club is his only permanent obsession.

    He appears in these pages as a political correspondent.

  • South Africa
sipho-bizos-subbedM.jpg

Advocate George Bizos finally wrapped up his cross-examination of the national police commissioner at the Marikana Commission of Inquiry. He had nothing nice to say about Riah Phiyega’s testimony, calling her unhelpful. But after weeks of having to deal with her dodging questions and giving one-word answers, it was in fact a kind word to use to describe the commissioner's performance. By SIPHO HLONGWANE.

At the conclusion of his cross-examination of national police commissioner Riah Phiyega at the Marikana Commission of Inquiry, advocate George Bizos announced that he would submit to the commission that she had failed to provide the relevant answers. This came after a marathon cross-examination session that followed the commissioner’s presentation to the Commission.

Bizos said: “Not only have you come here without answers, but you've come here to avoid personal accountability.”

His summary of Phiyega’s time in the witness stand was that she had come to the Commission to protect the police who shot and killed 34 protesting miners on 16 August 2012.

Phiyega had a different view of her time on the stand, branding Bizos’ description as character assassination.

“Although I may have not given you the answers you were looking for, I've answered the questions to the best of my ability. I came here as an honest contributor to this Commission,” she said.

Phiyega’s performance on the stand on Tuesday was a small-scale example of the general impression she’s made. Several times before, she claimed not only to have been aware of the plans being made by the police for 16 August, but she gave the police the green light. She also took responsibility as the conduit between the operational police and the national cabinet – though she is unclear on which way the orders and information were flowing during that period – and therefore ought to have known what was happening.

Bizos then asked why it was North-West police commissioner Lieutenant-General Zukiswa Mbombo who seemed to have been calling the shots on the day. The Commission heard recordings of the provincial commissioner saying that Thursday 16 August was “D-Day”, and the day to “end this thing”. He then asked if she had permission to make that statement from Phiyega.

Phiyega replied that Mbombo was fully within her rights to order the operation without first asking or informing the national commissioner or the police minister. The two met the previous day and agreed that the striking miners needed to be disarmed and dispersed. The plan was not supposed to include the police using their weapons – a line that we have heard from different police witnesses.

The Legal Resources Centre advocate then put it to Phiyega that the statements she made soon after the shootings were made without her having fully applied her mind. On 20 August, at a police rally, she commended the police for their actions, and said among things that she wanted to thank them for “enduring the challenges”, and also said all that they did was their jobs. “We had a plan and that plan was disrupted.”

“The message I was sending was that we are mourning the tragedy. I was thanking them for following protocol. And that was separate to the mourning. I did not celebrate death,” Phiyega said.

Expert witnesses would be called to testify that the conduct of the police on 16 August had provoked the striking miners, Bizos said.

“Acts of force, like what happened here, putting a razor wire [both as a barrier between the police and miners, and also to funnel the men] was or can be considered highly provocative,” Bizos said.

“A heavy police presence and their use of water cannon, tear gas, and stun grenades without warning had escalated the situation.”

The police commissioner replied to say that the heavy police presence was supposed to be a deterrent.

The soft-spoken Bizos then said that Phiyega believed everything that the police told her, and treated what she was told by everyone else as allegations. (She denied this.) He also accused her of reneging on her personal responsibility by being wilfully ignorant of key details, and of being led astray by the police commanders who report to her.

Phiyega was made to once again go over the statement made by Warrant Officer Hendrick Wouter Myburgh, who witnessed a constable of the national intervention unit shoot a subdued protester. She agreed this time around that it was unconscionable that the officer did not think to take down the name, or even note the face of the constable.

“As a warrant officer, he is a senior and I would have expected him to be more responsible,” she said.

After being cross-examined by an evidence leader of the commission and Bizos, Phiyega must still face lawyers representing the unions, the company, the families of the men who died, and also those who were wounded. There is still plenty of opportunity for the lawyers to probe the gaps in the commissioner’s testimony. She must explain why she changed her statement about either reporting to police minister Nathi Mthethwa on Marikana, or being ordered to attend to the situation by him. She must explain why she congratulated the police for their actions, and told the Commission that it was the best example of responsible policing when there was evidence that she knew of at least one prisoner that was shot in cold blood.  Most of all, she has to explain why she has apparently been powerless to stop the massive cover-up and tampering with evidence that the Commission has seen so many signs of.

The Commission is due to continue on Wednesday afternoon, after the chairman Judge Ian Farlam meets with the department of justice to discuss moving the venue of the Commission to Pretoria.

Meanwhile, Lonmin announced that the current executive head of engineering and capital projects at Anglo American Platinum, Ben Magara, would become the new chief executive officer and director. The former CEO Ian Farmer was rushed to hospital with a ‘serious illness’ shortly after the Marikana massacre, and has been ill since. DM

Photo: Police commissioner Riah Phiyega speaks at the SA Police Union's central executive committee meeting in Pretoria on Friday, 16 November 2012. Picture: Werner Beukes/SAPA

  • Sipho Hlongwane
    sipho hlongwane BW
    Sipho Hlongwane

    Sipho Hlongwane is a writer and columnist for Daily Maverick. His other work interests also include motoring, music and technology, for which he has some awards. In a previous life, he drove forklift trucks, hosted radio shows, waited tables, and was once bitten by a large monitor lizard on his ankle. It hurt a lot. Arsenal Football Club is his only permanent obsession.

    He appears in these pages as a political correspondent.

  • South Africa

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