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22 January 2018 06:17 (South Africa)
South Africa

Marikana: The list of accused

  • Greg Nicolson
    greg nicolson BW
    Greg Nicolson

    Nicolson left his hometown of Melbourne to move to Johannesburg, beset by fears Australia was going to the dogs. With a camera and a Mac in his bag, he ventures out to cover power and politics, the lives of those included and those excluded. He can be found at the tavern, searching for a good story or drowning a bad one.

  • South Africa

After two years, oral evidence from 56 witnesses, and transcripts running to almost 40,000 pages, legal teams at the Marikana Commission submitted their final heads of argument last week. GREG NICOLSON takes you through the accused. If the commissioners follow the recommendations, perhaps a police officer may finally be charged for the massacre.

With reams of evidence and a class of lawyers, at times the Commission has been hard to follow. The proceedings have been drawn out and disjointed. Witnesses contradicted each other and at times themselves. Some clearly lied. There wasn't enough time to hear others. The final arguments submitted by 10 legal teams last week provide the best available accounts of what happened in Marikana in August 2012, who is responsible and how justice should be served.

The arguments function as an anthology of views on how and why 44 people were killed in a single week during a strike. While no police have been arrested for the killings, the list of accused shows that many of the legal teams believe there's evidence for the Commission to recommend officers be investigated and prosecuted.

At the top of the food chain, however, are the politicians. Lawyers for the injured and arrested mineworkers, represented by Dali Mpofu, want the Commission to recommend Deputy President Cyril Ramaphosa be charged with murder, corruption and perjury, former Police Minister Nathi Mthethwa be charged with murder and corruption, and former Mineral Resources Minister Susan Shabangu be charged with corruption and perjury. Mpofu's team says it will seek recourse at the International Criminal Court if the South African system doesn't deliver.

While most legal teams find there is not sufficient evidence that Ramaphosa's intervention was illegal, the South African Human Rights Commission (SAHRC), which didn't explicitly suggest any prosecution recommendations, said given certain aspects of the decision to disarm the strikers on 16 August, “reasonable suspicion” should be applied to the question of what influence the deputy president had in deciding to go tactical on 16 August.

National Police Commissioner Riah Phiyega could also face criminal charges. Mpofu wants her charged with murder for allegedly being the conduit of political influence that led to the deaths. Others say she should be investigated and potentially prosecuted along with her colleagues for taking the decision on 15 August at an extraordinary meeting of the SAPS National Management Forum to disarm the strikers the next day. The evidence leaders recommended an inquiry be established to investigate Phiyega's fitness to hold office after she made concerted attempts to mislead the Commission and the public after the killings.

Much of the blame, however, is laid at the feet of the provincial SAPS leadership and police commanders who led Marikana operations. Many of the legal teams say those in the joint operational co-ordinating committee, including Provincial Commissioner Zukiswa Mbombo and then Deputy Provincial Commissioner William Mpembe, should be investigated and potentially charged for deciding at 13:30 on 16 August to proceed with the dispersement plan, despite foreseeable loss of life.

Mpembe might also be investigated for criminal liability if the Commission finds that on 13 August he caused the deaths of three strikers and two police officers when confronting the protestors. In that incident, the Commission could recommend charges against police shooters for the death of at least one striker. Mpembe also faces potential charges for the Scene 2 killings on 16 August.

The evidence leaders argued in their heads, “After the Scene 1 shootings had taken place, Maj Gen Mpembe and Maj Gen Annandale were no longer bound to implement Lt Gen Mbombo’s order. As overall commander and de facto overall commander respectively, they were under a duty to consider whether the operation should be stopped in the light of the Scene 1 shootings and to act accordingly. In making this assessment, they had to consider whether there was a risk of further loss of life if implementation of the plan continued.

“Because both Maj Gen Mpembe and Maj Gen Annandale gave false evidence to the effect that they were ignorant of the Scene 1 shootings, one does not know what attempts, if any, they made to stop the operation after Scene 1.”

One cop on almost all the lists of accused is Brigadier Adriaan Calitz, operational commander on the ground on 16 August. The Commission could find he made the order to open fire at Scene 1, but the most common argument is that he was grossly negligent and reckless. Evidence leaders found “a reasonable operational commander in the position of Brig Calitz could have acted in a manner that prevented the Scene 1 tragedy.” Not only did Calitz fail to prevent the deaths at Scene 1, he claimed he never heard of them or of the subsequent deaths at Scene 2 until the killings were over.

“The SAHRC submits that his claim to have had no knowledge of this information until 16:47 is designed to exculpate his failure to call a halt to the operation, to order a retreat from Koppie 3, or to slow down and coordinate the movement of various units in the aftermath of Scene 1,” said the SAHRC.

Then there's Major General Ganasen Naidoo. His K9 team pursued strikers to Scene 2, without orders or communication between different units, where police killed 17 people. Justification for the vast majority of those deaths has not been explained and evidence suggests some strikers were murdered unarmed and posing no threat. The evidence leaders submit, “Maj Gen Naidoo was the senior ranking officer present while SAPS members fired 295 rounds of sharp ammunition at the strikers in the koppie, in what appears to have been a completely chaotic free-for-all which cost 17 people their lives. The firing free-for-all that unfolded at Scene 2 called for immediate command and control to direct the SAPS to positions of cover, stop the SAPS shooting, and isolate the problem if it still existed. That was the responsibility that Maj Gen Naidoo should have assumed at Scene 2. Had he done so, it is likely that many of the 17 fatalities at Scene 2 would have been avoided. As de facto officer in command at Scene 2, Maj Gen Naidoo also failed to exercise any proper control over the crime scene.”

Naidoo was meant to be responsible for calling the paramedics if anything went wrong. Instead of calling them after the deaths at Scene 1, he went to Scene 2 to join the action. Paramedics arrived only an hour after the shootings at Scene 1, leading directly to the death of one striker. The evidence leaders say Naidoo fabricated his justifications for not calling them earlier.

While much of the arguments submitted focus on police leaders, some teams argue there's a prima facie case against different police shooters who should be investigated and potentially prosecuted.

In its heads of argument, the SAPS defends its decision to implement the dispersal plan, the details of the plan, and the officers involved. While things obviously went wrong and there has been much criticism of the plan, there hasn't been evidence to show that things might have gone better had they implemented it at a different time, the SAPS argues. It defends those who put the plan together and the actions of commanders on the day.

In looking at the deaths at Scene 1, and largely Scene 2, the police argue members acted in self-defence. It supports this by claiming there was small group of aggressive protestors leading the strike who made threats against officers and were intent on attacking cops, which tie to the use of muti.

While some of the other legal teams accept that officers may have felt under threat at Scene 1, arguments in particular from the Socio-Economic Rights Institute representing the families of the deceased mineworkers, the SAHRC, and the evidence leaders cut through the police case. The SAPS fails to prove its decision to move into the plan's tactical phase was justified and rational, that there were real threats against them, that cops did all they could to prevent loss of life, and that officers didn't recklessly shoot at protestors. The SAPS case is largely tainted by omissions, fabrications, and hidden evidence, casting doubt on some of its key submissions.

Across arguments from different teams, there are also submissions that say the strikers who killed other mineworkers and two police officers should be held criminally accountable and if the NPA has evidence it should resume prosecutions. The evidence leaders also suggest strikers that can be identified holding dangerous weapons should be investigated and prosecuted.

Regarding Lonmin, there seems to be a consensus that the company contributed to the violence by not negotiating with the strikers, but parties differ in their recommendations. The injured and arrested mineworkers want Lonmin officials Bernard Mokoena and Albert Jamieson charged with murder and corruption; the evidence leaders recommend the company be investigated for criminal liability; the SAPS recommends Lonmin conduct internal inquiries and the state review its social labour plan.

The Commission sits next week to hear the closing arguments. The final report is due in March next year. After a marathon inquiry that has drawn the process of healing and justice out over two years, soon the country will be looking towards the three commissioners to decide who did what and how the perpetrators must pay. DM

Read more:

  • Access the heads of argument here

Photo: Werner Beukes/ SAPA

  • Greg Nicolson
    greg nicolson BW
    Greg Nicolson

    Nicolson left his hometown of Melbourne to move to Johannesburg, beset by fears Australia was going to the dogs. With a camera and a Mac in his bag, he ventures out to cover power and politics, the lives of those included and those excluded. He can be found at the tavern, searching for a good story or drowning a bad one.

  • South Africa

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