Lawyers at the Farlam commission have told the UK’s Channel 4 News they will argue for murder charges to be brought against senior police commanders and politicians, including possible charges at the International Criminal Court against the country’s deputy president, Cyril Ramaphosa. By INIGO GILMORE for Channel 4 News.
Dali Mpofu and George Bizos, speaking in their first extensive interviews about the marathon Marikana commission of inquiry as it enters its final phase, have given details about how they will argue for a raft of prosecutions against key figures in the ruling elite as they make a last big push for justice for the murdered miners and their bereaved families.
Lawyers for the injured and arrested mineworkers, represented by Dali Mpofu, want the Farlam Commission to recommend that Deputy President Cyril Ramaphosa be charged with murder, corruption and perjury in connection with the horrific events that occurred on 16 August 2012. The commission will hear the arguments over several days after it reconvenes on November 5th.
Mpofu’s team will also seek recourse for Mr Ramaphosa to face charges at the International Criminal Court (ICC )if the South African system fails to deliver.
Mr Mpofu told Channel 4 News: “There must be prosecutions, there must be compensation and, more importantly, there must be an exposition of who the real culprits are outside of the people who pulled the trigger, as it were.”
In his submission to the commission Mr Mpofu’s team argues that the Marikana massacre was “a crime against humanity”. In their final argument documents they say the ICC has jurisdiction as the Marikana massacre “was self-evidently a systematic attack resulting in the murder of a civilian population”, adding that many of the surviving miners were also “tortured” by police and suffered “inhumane acts” which affected their mental and physical health.
Referring to his proposal that Mr Ramaphosa and a current serving Cabinet minister face charges at the ICC, Mr Mpofu said: “Our clients’ feeling is that some of them may not face proper justice in South Africa. So one or two might be recommended for prosecution in the International Criminal Court.”
At the time of the massacre, Ramaphosa was out of politics and on the board of Lonmin, the British-based company that owns the Marikana mine. The commission has seen a series of emails sent by Ramaphosa to Lonmin board members, which shows he used his connections to lobby government ministers to take action.
In one email he describes the ongoing strike in Marikana as a “criminal act”; explains how he has spoken to a senior minister to make sure the president “will be briefed”; and how he has encouraged the police minister to act in a “more pointed way”. Lawyers say Ramaphosa’s intervention set in motion a chain of commands, resulting in the catastrophic police action.
The move to push for Mr Ramaphosa to stand trial has received strong backing from his one-time friend and liberation struggle comrade, Joe Seoka, formerly a priest in Soweto and now the Bishop of Pretoria. The Bishop was in Marikana as a mediator on the day of the massacre and in the ensuing days, trying to help negotiate on behalf of miners who were pushing for better wages.
He says he was appalled by Ramaphosa’s attitude when he spoke to his old comrade in the immediate aftermath of the killings. He says Ramaphosa continued to label the striking miners as “killers and murderers” and in surprisingly strong language, Bishop Seoka told Channel 4 News that the deputy president must now face murder charges.
“Given the content of the emails, and the stories that Cyril was busy talking to ministers concerned and police, so he is liable. He also should be charged for murder, and for influencing police to take violent action against the workers,” he told Channel 4 News.
In a searing critique of the current ruling elite, Bishop Seoka suggested Marikana was a disturbing sign that South Africa seems to have lost its way as leaders chase profit over the rights of the people they claim to represent. He said: “What has become of our struggle heroes? Evidently money has become more important than people’s lives. Positions are more important than protecting human rights.”
He said he had no trust in the South African police and added: “We are not safe. We are more vulnerable than before. During Apartheid we knew who the enemy was. Today we don’t know because it is one of ours.”
Ramaphosa has always denied any wrongdoing. But the very notion that some of Nelson Mandela’s successors could even be linked to murder accusations and crimes against humanity is seen as a betrayal of everything the revered struggle hero fought for alongside so many others in the anti-Apartheid liberation movement.
Even though Marikana occurred 16 months before the former president died, Mandela’s close friends were urged never to discuss the traumatic events with him. One of those was George Bizos, who represented Mandela at the Rivonia trial in 1963-64 (he is credited with helping Mandela avoid the death penalty) and has recently worked as a leading lawyer at the Commission.
When I visited Bizos at his office in downtown Johannesburg, just a few blocks from where Mandela once had his own law offices, he wore a pained expression as he recalled his visits to Nelson Mandela’s home in Johannesburg in the wake of the massacre.
Behind him on the wall were pictures of the famous lawyer with his friend Mandela. One was taken in Soweto, where Bizos was being given a bear hug by the much bigger Mandela after his release from jail. As was the case so often at that time, Ramaphosa is standing alongside him.
Bizos explained how he was told by Mandela’s wife, Graca Machel, that it would be better not to mention the traumatic mass killing that had just unfolded to the former president, given the state of his ailing health.
With a deep sigh Bizos, now 86 and Mandela’s lawyer for more than 50 years, recalled how he agreed to make no mention of it even though he and the former struggle leader talked extensively about everyday matters.
”We talked about things but we avoided things that we thought would make him feel sad,” Bizos recalled, with a forlorn look. Twice Bizos broke down during our interview and as he mentioned his old friend, he appeared visibly upset.
I delicately asked him how Mandela would have reacted if he had been told about Marikana. Bizos replied: ”He would have been devastated about it.”
The events of August 2012 have indeed been a devastating moment for South Africa, where many hoped the mass killings and brutal police excesses of the Apartheid era were long behind them. It is an irony not lost on Bizos, who lived through that turbulent period and concedes that Marikana has parallels with the notorious Apartheid-era massacres of Sharpeville and Soweto.
From the moment some of the horrific pictures of heavily-armed officers shooting dead miners were captured by the TV cameras and beamed around the world, the South Africa police always insisted they acted in self-defence. But during the inquiry, which has seen 56 witnesses and more than 40,000 pages of evidence, Bizos and other lawyers punched holes in the police case and exposed a series of lies, much as they tried to do with the police force during the Apartheid years.
I asked Bizos about the now familiar argument put forward by the police that, even though no officer was injured, they were acting in self-defence after coming under attack from protesting miners bearing arms. He was dismissive, saying: “We have identified that some of the people were shot not only once.There were multiple shots. How can you say it was self defence or that it was an accident?”
During the commission Bizos clashed with the national police commissioner, Riah Phiyega, in some feisty exchanges, and accused her of being evasive. He was incredulous that she claimed she could not remember details about a critical meeting that took place the night before the massacre on August 15th when Phiyega and senior police commanders decided to take action in Marikana the next day.
“I don’t want to be judgemental but her favourite response was, ‘I don’t remember’,” said Bizos with a dismissive chuckle, his face breaking into a smile. “She did not mention the meeting she attended the night before because she forgot about it. The facts speak for themselves. You cannot believe anybody that says such a highly improbable thing – that she forgot she was at the meeting the night before.” I asked Bizos whether he would also push for Commissioner Phiyega to face murder charges and he said simply:“Yes”
In January last year Channel 4 News raised important questions about the police’s self-defence claims when we reported on some critical police video footage, which had been submitted to the commission but was almost overlooked.
Among some shaky images filmed on the day of the massacre we came across a distressing scene where a police officer calls for restraint, shouting “don’t shoot, don’t shoot him” just moments before gunfire rings out. In the next scene a body of a miner appears, lying motionless on the ground.
As the camera shakily pans back and forth one of the officers, standing next to the body, can be heard boasting about how he took the young man down. Chillingly, the unidentified officer can be just be made out saying: “M*********r, I shot him at least 10 times.” This scene is just one of several disturbing moments captured by two policemen.
Now evidence against the police appears to be damning. Lawyers have produced a compilation of video evidence, gathered from various media sources (including video first aired by Channel 4 News), the police and Lonmin’s own mine cameras, which they claim directly contradicts the police’s case. Lawyers say the video evidence clearly shows miners were trying to leave the protest scene peacefully prior to the massacre, before they were herded towards police lines and shot.
Other disturbing details have also emerged, which lawyers say support claims that rather than acting in self-defence,the police actions – and decision to use force – were pre-meditated. Documents have emerged which show that four mortuary vans were ordered to Marikana hours before the shooting, as well as 4,000 extra rounds of ammunition.
Miners have appeared before the commission to tell how they were chased to a second group of rocks after the initial shooting, and shot at close range, with police officers accused of going on a killing frenzy. Miner Shadrack Mtshamba told Channel 4 News that he saw his co-workers being shot even as they tried to surrender to police and he recently appeared before the Commission to give his important evidence.
Sifting through post-mortem reports which detail how each miner died, it is now clear that most of the miners killed were shot in the back or in the head, some in the back of the head. Some victims appear to have been handcuffed, in disturbing photos taken by the police themselves. Others had weapons planted on them as part of an elaborate yet ultimately poor executed police cover-up.
Despite these horrific details, at a police gathering just two days after the massacre, Commissioner Phiyega praised the police officers who had been deployed at Marikana.
In the police video from the gathering, obtained by Channel 4 News, most of which has never been previously broadcast, Phiyega tells officers that what happened in Marikana was “the best of responsible policing” and urged the officer to congratulate themselves on a job well done. In a bizarre moment, she actually gets her officers to clap. There’s an uncomfortable round of applause, as one officer next to her urges others to clap louder.
I tracked down commissioner Phiyega to a conference in Cape Town where I asked her about demands she face prosecution. Her spokesman appeared uncomfortable and at one point attempted to step in, saying “she has to go” as I asked her about what happened and the prospects that she might face murder charges.
“My response to that is [that] it has been an unprecedented event and secondly we have given our all to participate in the Commission,” she said in response.
When I pushed her on whether she still stood by her comments that the police’s actions in Marikana had been the best of South Africa policing, she replied:
”I have told you, we have made our submission to the Commission; we are waiting for the Commission to come out with their findings and we will be able to respond on that much more elaborately at that point in time.” DM
Photo: Crosses are placed at a hill known as the “Hill of Horror”, during the one-year anniversary commemorations to mark the killings of 34 striking platinum miners shot dead by police outside the Lonmin’s Marikana platinum mine in Rustenburg, 100 km (62 miles) northwest of Johannesburg, August 16, 2013. REUTERS/Siphiwe Sibeko