South Africa

Marikana Commission: When ‘warning shots’ kill and wound

By Greg Marinovich 17 June 2014

As an elite police unit commander on the ground is cross-examined at the Marikana Commission, it’s becoming clear just how crucial Colonel Modiba is to understanding the how and why of what happened at Marikana. By GREG MARINOVICH.

Colonel Kaizer Ntlou Modiba was the commander of 96 National Intervention Unit (NIU) policemen on 16 August 2012. Unusually, he and his men were at both Scene 1 and Scene 2 – each of the two locations where 17 striking miners were killed by police bullets.

Let us be clear: he and his unit did not fire at Scene 1, the infamous shooting we all watched time and again on television. The NIU were there as backup to their colleagues. Rather, it is at Scene 2 that Modiba’s NIU took centre stage.

The mentality of the police plan crystallises once you think in the apparently simplistic terms in which the various units presented themselves for duty at Marikana. There were four types of police unit there. The first were the Public Order Police, or POP, who are usually relied upon to sort out troublesome protestors. They could have had, but did not have, plastic shields and batons. Instead they had stun grenades, teargas, side-arms, shotguns loaded with rubber bullets and – illegally – birdshot and the occasional R5 automatic rifle.

POP was the SAPS’s first option: to subdue the miners with minimum force. The Commission has already heard that police intelligence and some experienced officers had told the operation’s commanders that this would not work on such a massive group. The miners had declared they would not allow police to disarm or move them until their demands to meet their Lonmin employer had been met.

Should the public order policing option fail, the Tactical Response Team (TRT) or Amabereta would move in. The TRT was the next step in escalation. Their only weapons were side-arms and R5 rifles, so the only course of action they could take was lethal, or to do nothing.

Should the TRT fail, then it would fall upon the National Intervention Unit to take over. The NIU are a more professional crew than the TRT, with extensive training. They, too, were armed only with 9mm pistols and R5 rifles.

Should the NIU fail to defeat the miners, then the Strategic Task Force (STF) would be called upon. The STF were just two squads of men, but they had on their armoured vehicle a massive mounted machine gun that could shoot anti-aircraft size bullets. The STF training is the same as that which the infamous Recce Battalion undertook in the Apartheid regime. The STF are our equivalent of the SAS or Green Berets. Just the type of fighting men that are needed to sort out a labour dispute, or, as Advocate Dali Mpofu put it to Modiba, “And if really now the world is going to come to an end, then you’d bring the ultimate, the Special Task Force, the paramilitary force, correct?”

In the logic of this hierarchy of deadliness, the POP were the first policemen to try to disarm and arrest the miners fleeing the Koppie once the razor wire was laid down. Behind them, the TRT lined up, ready to play their part should the POP fail. Even further back, the NIU prepared themselves under Col. Modiba.

It is therefore from about 100 metres away from what played out at Scene 1 that Modiba’s statement gives his impression of what happened there. As has been quite standard with the police statements, they have been tailored to bolster the prosecuting authority’s case in charging the miners with crimes, primarily murder. The second theme to emerge from these statements has been that police acted only in self- and private defence against dangerous, muthi-ed strikers.

The colonel is clear that the miners’ intentions were to attack the police, that the TRT had no choice but to respond with live fire as their lives were in imminent danger.

The various lawyers for the Commission, the arrested miners and the families of the dead miners as well as the Human Rights Commission have been at the forefront, chipping away at this monolith that represents the core of the police case.

One of the key points being that if the miners were indeed fixed upon killing cops, then why did they not attack and kill the lesser armed public order policemen who were within metres of the miners, and in disarray, as they failed to subdue the strikers with their rubber bullets and teargas?

Instead, the logic of the police case dictates that the miners were trying to attack the heavily armed line of TRT men, who were all lined up and waiting for them. This is why the police had to open fire and kill 17 miners in eight terrible seconds.

The exchange on this point between Mpofu and Modiba is best recounted verbatim:

COLONEL MODIBA: I could not specifically see the shots, but I could still make a sense that there was as well firing from the group.

MR MPOFU: Yes, but thats the point. Thats your imagination flying ahead again. So from, without seeing anything, with shots all over, with you being more than a hundred metres away, you somehow worked out that there must be shots coming from the group. I mean what is that?

COLONEL MODIBA: That was possible.

MR MPOFU: And with the combination of all these things that Ive said to you, the argument will be that your evidence that you saw the strikers attacking the police is just another fabrication and the product of your fertile imagination.

COLONEL MODIBA: That is incorrect, Chairperson. Its no fabrication. That what happened, the charging of the armed strike, miners, it indeed happened. They did charge at the police. Theres no fabrication there.

…..

MR MPOFU: How far were they from the police who killed them?

COLONEL MODIBA: Im not sure with the distance how far between them and the police. I could still make an estimation of the distance could have been between 10 to 20, between, in between.

MR MPOFU: Between them and their killers there was about 20, 20 metres?

COLONEL MODIBA: Between them and the police, not the killers, the police.

MR MPOFU: The police are the killers. Its the same thing. Its a synonym.

COLONEL MODIBA: You cannot be –

MR MPOFU: They were killed by the police.

COLONEL MODIBA: You cannot be so robust to say the police are the killers.

MR MPOFU: Who killed them?

COLONEL MODIBA: You cannot say that.

MR MPOFU: Who killed them, Colonel Modiba? Who killed those 18 people there next to that kraal? Who?

COLONEL MODIBA: Im not prepared to –

CHAIRPERSON: … Colonel, its common cause that the strikers who died and those who were injured at what we call Scene 1 were, died or were injured as a result of shots fired by members of the police service. The issue before us has been explained very clearly by the police counsel. The question is whether the police acted in self-defence or in private defence. The fact that they physically were responsible for firing the bullets which caused the deaths and injuries is not disputed.

……

COLONEL MODIBA: My position as I pleaded with the Chairperson to say Im not interested, not going to entertain the insensitive utterances you are making about labelling the police as the killers.

MR MPOFU: Which one is insensitive; to say that the people were killed by the police, or to aim R5s at them and shoot them in their heads until their breath is off, until they are dead? Which one do you think is insensitive in the –

COLONEL MODIBA: Insensitive –

CHAIRPERSON: I don’t think –

COLONEL MODIBA: – labelling the police as the killers –

CHAIRPERSON: I don’t think we need hear the witnesss answer to that. I dont –

MR MPOFU: Well, then he mustnt tell me that Im insensitive, Chairperson. The police killed these people. They murdered them in my –

CHAIRPERSON: No

MS BALOYI: Objection, Chairperson.

CHAIRPERSON: Mr Mpofu

MR MPOFU: They did –

CHAIRPERSON: Mr Mpofu

MR MPOFU: That is what Ive argued in my opening statement. They murdered them. They murdered them. They murdered them.

CHAIRPERSON: Mr Mpofu, please calm –

MR MPOFU: But Im being kind and saying they killed them.

CHAIRPERSON: Mr Mpofu, please calm down. We are here to decide whether the police were guilty of murder or guilty of culpable homicide or there was –

MR MPOFU: Well, my case is that they murdered them.

Mpofu’s outburst and clash with the police colonel over his issue that the people who killed 34 men should not be called killers is a telescoping of much of the Commission’s frustrations, and the blandness with which the police, and the state behind them, have tried to skirt around what happened.

Of course, what that exchange also illustrates is the mindset of those cops on the ground. And the mindset of the colonel in charge of 96 deadly NIU members is a critical component.

Like most of the cops at Marikana on 16 August, Modiba was aware of what had happened three days earlier, on the 13th, when two policemen and three miners had been killed. As he put it, “… on the 13th, the police were attacked and killed. So for me to be there, I always had that in mind that this could happen.”

Modiba said he was unaware that it was police firing of stun grenades and teargas that provoked the confrontation.

One of the most important issues has been how long it took police to allow medics access to the wounded, especially at Scene 1. It took paramedics 56 minutes to reach those wounded at the kraal, even though they were on standby just a few minutes away.

The duty of any policeman at a scene is to assist an injured person. It does not matter if that injured person is a fellow cop, a bystander or a suspect.

Yet despite every policeman in the NIU having passed a level three first aid course, not a single one assisted any of the wounded miners at Scene 1. Neither POP nor TRT are required to do a first aid course as a part of their training; NIU members are. Despite seeing dozens of miners shot and wounded, many fatally, Col Modiba instructed his men to move off, in pursuit of miners fleeing across the veld, towards what came to be known as Scene 2.

The NIU policemen formed a single line of armed men sweeping across the rough terrain, flushing out any hidden miners before them. This is where things begin to get murky in the narrative.

Modiba states that as they approached the broken down Koppie of Scene 2 (the Killing Koppie or Thaba Nyana – Small Koppie) they came under fire from the miners charging at the police. Under cross-examination he admitted that he did not know, firstly, if the gunshots came from the group of miners, or secondly, if they were aimed at policemen at all. The gunmen – either strikers or cops – might have been from anywhere on or behind Small Koppie.

The issue of imminent danger towards the cops is part of the police claim to killing the strikers in self-defence, yet it is doubtful whether police were actually in danger at Scene 2.

The first two dead miners the NIU group came across were bodies A and B, Anele Mdizeni and Thabiso Thelejane. They were shot at the base of a large boulder, some 40-45 metres away from where Modiba’s NIU were at that stage. Both their wounds show that they were facing away, to the side, from their killers at the time. Yet Modiba insists they had traditional weapons and were charging at him and his men, putting the cops in imminent danger.

The police’s version is that the miners had participated in a traditional ceremony that made them believe they were invulnerable to police bullets. The ritual did indeed occur, and is key to the police narrative of the dangerous and fearless warriors. The autopsies of both those men, however, do not reveal the recent scarification or incisions that were a part of the traditional ritual.

The Colonel himself says he discharged five shots from his sidearm, but all were into the ground; warning shots. The Colonel, on being questioned, said that he believed none of his group fired directly at anyone, and that all the deaths at Small Koppie were caused by ricochets from warning shots fired at the rocky ground.

There are witnesses who survived Scene 2, and they tell a different story from the police version. Nkosikhona Mjuba told the Commission that “[s]ome mineworkers hid themselves with trees and some under the rocks. The police officers started shooting the mineworkers with long and short firearms. Some mineworkers put their hands on air [sic] to show they [weren’t] fighting/attacking the police officers but they were shot.”

The Daily Maverick carried that story in 2012 from the perspective of Shadrack Mshamba, an eyewitness to people trying to surrender, yet being shot, repeatedly, at Small Koppie.

Dozens of men were trapped within the closing circle of policemen, and it was here that 17 more miners were killed, many wounded and most of the 276 arrested. These arrested men would later all be charged with murder – the murder of their fellow miners, under the Common Purpose Doctrine. The logic of the Doctrine dictates that when they went on their unprotected strike, the miners should have foreseen that their comrades would die, and therefore they were culpable. Those charges have not yet been quashed, just provisionally withdrawn, even though it was policemen who pulled the triggers that propelled those bullets.

It was just after Anele Mdizeni and Thabiso Thelejane (A & B) were killed that Colonel Modiba and Major General Ganasen Naidoo, a deputy commissioner for the North West Province, met up and had a discussion. Naidoo had moved up from the south with a group of policemen to support the police action at Scene 2, when he should have been escorting medical personnel from a holding area to the shot miners at Scene 1.

Actually, there is a discrepancy between the two police officers’ testimony here. Gen. Naidoo says he had a discussion with Modiba. Col. Modiba says they never met up and never exchanged any words at all. It is curious why they would have a difference on this and what the implications will prove to be.

It was also members of this unit of the NIU who apparently committed a cold-blooded murder that was partially witnessed by a dog squad member, Warrant Officer HW Myburgh. Myburgh says he walked past a wounded miner on the ground and, within seconds, heard a shot from behind him. On turning, he saw an NIU constable replacing his pistol into his holster above a now-dead miner, and say to Myburgh: “He deserved to die.” The register of which NIU constables fired their 9mm pistols at Scene 2 narrowed the possibilities down to just two men. Neither Naidoo nor Modiba knew anything about this incident on the day, they claim. No identity parade has been held to determine which policeman it was that Myburgh saw.

Instead, another policeman has come forward with a statement that in fact it was Myburgh who boasted that he shot the wounded miner – this all long after Myburgh’s statement came to light.

At any rate, Naidoo and a few of the NIU under Modiba’s command climbed to the left, up and over the boulder, while Modiba went right, around the boulder. Constable Vuyisile Ngwaleni was one of the NIU policemen who clambered up with Naidoo. In his first statement, as pointed out by Adviocate Dumisa Ntsebeza, he said, “A couple of mine-strikers charging to our direction with spears and pangas. I warned them to put their hands up. Some didn’t comply. I fired five warning shots on the air with an R5 rifle and that, instructing them, lie down and drop their weapons [sic]. No-one fell down or injured because of my discharge.”

The crime scene investigation found 17 discharged R5 cartridges on that elevated rock. And the fact is that ten miners were shot and killed within a fifteen-metre radius of where those cartridges were found. The only policemen with R5s up on that rock at the time were from the NIU. Maj. Gen. Naidoo and Warrant Officer Lukas Breedt were both armed with 9mm pistols.

Not all the cartridges for expended ammunition were found. Several days after the shooting, journalists were still finding cartridges. Some of these were brought to the attention to crime scene investigators; others were taken as souvenirs.

In a later statement, Constable Ngwaleni noted that he actually discharged 25 bullets, and that perhaps his rifle was on automatic and that is how he discharged that many, unknowingly. His commander, Col. Modiba, tried to dance around the discrepancy. At this stage Judge Ian Farlam interjected to get the colonel to answer directly:

CHAIRPERSON: I’m sorry to interrupt you, but I take it that if youve got an R5 and you think youre firing five warning shots in the air when in fact your rifle is on automatic and you fire 25 shots, youre likely to know that and not think you only fired five, isn’t that right? I mean, isn’t that correct? I mean, youve fired an R5 in your time, havent you? Surely you know the difference between firing automatic shots and firing, not firing automatic shots but firing what we can call ordinary shots and firing five. Theres a difference, isn’t there?

COLONEL MODIBA: It –

CHAIRPERSON: It’s difficult to understand how he could have thought he fired only five if his rifle was on automatic and he fired, isn’t that correct?

COLONEL MODIBA: Ja, that is why there is assumption that it might have switched over to automatic mode.

CHAIRPERSON: Without his being aware of it, while he thought he only fired fired five. That sounds a bit of a tall story, doesn’t it?

It would seem, again, that much of the police testimony is made up of tall stories. And as they entangle and trip each other up, perhaps will the truth eventually out. DM

Photo: A policeman fires at protesting miners outside a South African mine in Rustenburg, 100 km (62 miles) northwest of Johannesburg, August 16, 2012. REUTERS/Siphiwe Sibeko

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