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Marikana Commission: Evidence (leaders) damning

On Wednesday the Marikana Commision heard the first day of closing arguments. It's time for the legal teams to look at the events leading to 16 August 2012 with perspective, draw conclusions, offer recommendations and for the commissioners to test arguments. The day was dominated by the evidence leaders who dismantled the SAPS case and reminded everyone that it was people, not faceless caricatures who died. By GREG NICOLSON.

“For two years we’ve been staring minutely at what is the single most disturbing episode in the history of our democracy, and we’ve been looking day-in and day-out at images of bodies being shot to pieces by military assault rifles. It’s only natural that we’ve developed coping mechanisms to deal with this process, but part of what those coping mechanisms do is that they normalise the horrific and they dull our outrage at what should be and what is truly unacceptable.

“In a constitutional democracy it is never acceptable for a line of police members armed with military assault rifles to fire 300 shots into a crowd of striking miners. That is never acceptable in a constitutional democracy. In a constitutional democracy it is never acceptable for the police to fire blindly into a koppie so that they kill 15 people in circumstances that they can’t even describe the circumstances of the death, never mind justify them.

“Now our learned friends from SAPS have done an excellent job in trying to normalise this conduct on the part of their clients. And they’ve been helped by the numbness that we’ve all developed by being forced to focus on this unimaginable horror day-in and day-out. But when it comes to making your findings and writing your report, Mr Chairperson, you and your commissioners need at some level to think yourselves back to that night of Thursday 16 August when you switched on the television, and you saw the Reuters footage which was broadcast, the Reuters footage that we now know so well and we’ve analysed frame by frame.

“You need to remember the horror that you experienced when you saw it for the first time, when you saw miners being gunned down by the TRT line. Because that horror reflects the reality of the situation. And that’s a reality that’s at real risk of being diluted through these proceedings because one cannot stare at horror every day for two years without normalising it.

“I would urge you to do that because if you cannot rediscover the horror that you experienced before your responses to the killings were numbed by daily exposure, there will be two unfortunate consequences for this commission. The first is your report will be compromised because it will be shaped by the numbing effect of overexposure to horror. And the second is that your report will lack legitimacy. Because the South African public which has not been numbed to the horror that took place, that hasn’t been here day in day out, will not accept a report that fails to regard the killings at Marikana with the horror that they merit.

“I would strongly emphasise that you try to take yourselves back to the first time that you saw what we now have seen day in day out on the Reuters footage, on the footage, to stop thinking of the striking miners as an undifferentiated faceless mob.

“Start thinking of individuals.

“Start thinking of Mr Gwelani, who was walking back to Nkaneng more than 250 metres away from the TRT line, who was shot through the head by an R5 bullet. Mr Gwelani, whose death SAPS still have the gall to attempt to justify in paragraph 178 of their heads of argument, where they say he was, quote, ‘clearly amongst the group of strikers who were attacking the police or those the police could reasonably have believed were meaning to attack them’. Two hundred and fifty metres away.

“Think of Mr Mtshamba, unarmed and terrified, huddling in the killing zone at scene two, while SAPS bullets ricocheted around him and he was waiting to be killed. Think of the people who weren’t as lucky as him, the 10 victims who also sought shelter in the killing zone but were shot dead by SAPS members in circumstances where there’s no evidence before this commission to suggest that they posed an imminent threat to anyone.

“Give them names. Mr Mancotywa, victim D. Mr Liau, victim E. Mr Mosebetsane, victim G. Mr Mabiya, victim H. Mr Nokamba, victim I. Mr Saphendu, victim J. Mr Ngxande, victim K. Mr Gadlela, victim L. Mr Pato, victim M, and Mr Mohai, who was wounded in the killing zone and died in hospital.

“And think of Mr Mdze, bleeding slowly to death for an hour at scene one while SAPS members mill around the scene offering no assistance and Major-General Naidoo doesn’t bring assistance to scene one because he prefers to join in the action at scene two.

“Think of individuals and try at all times to remember that every victim who died at Marikana, not just the seven victims of the strikers leading up to 16 August. Every victim at Marikana was an individual human being, with a family and a life, an individual. Resist the attempt by SAPS to characterise the people they killed as undifferentiated members of a faceless mob. That has to be the starting point.”

This passionate plea from evidence leader Advocate Matthew Chaskalson, worth quoting in full to emphasise the impact Marikana has had as the commission goes into its final phase, set the tone for the first day of closing arguments on Wednesay. The evidence leaders made presentations for most of the day, explaining parts of their almost 700 pages of heads of argument and focusing on who they believe evidence suggests must be held accountable.

The evidence leaders have argued that on in the days preceding the massacre the killing of non-striking workers and two cops was unlawful and where possible culprits should be identified and charged. They did, however, recommend the commission treat the evidence of Mr X, a mineworker who turned police witness, with caution as some of his evidence looks to have been fabricated to suit the SAPS case.

Looking at 13 August when three strikers and two police officers were killed, the evidence leaders said the confrontation was triggered by reckless and unjustified police action under the operational head on the day, Major-General William Mpembe. The commissioners seemed reluctant to accept Mpembe was responsible for the violence. While the shooting of Thembelakhe Mati and Semi Jokanisi by the SAPS can’t be tied to specific officers, the evidence leaders say the commission should recommend an investigation into the few officers who can be identified to have been involved in killing Phumzile Sokanyile, who was not a threat to the SAPS.

“Is the evidence sufficiently detailed to identify, I think the correct word is, the shooter?” asked Chairman Ian Farlam, wanting to tie specific deaths to culprits.

On the events later in the week, the evidence leaders argued improper political influence, stemming from Cyril Ramaphosa’s phone calls, led to the decision to remove the strikers and impose Thursday as an artificial deadline. The decision on 15 August by the country’s top police officers to disarm and disperse the protesters the next day led to the 34 deaths. In their meeting, SAPS leaders from across the country could have warned that it was too dangerous, but they didn’t. Nevertheless, the evidence leaders say neither Ramaphosa nor the officers at the meeting can be held to be legally responsible for the killings.

In their heads of argument, the evidence leaders said all mineworkers who can be identified to have carried dangerous weapons should be investigated and charged. On Wednesday, Chaskalson said he realised this was a double standard. He argued that all SAPS members who fired a weapon recklessly should also be investigated and charged.

Looking at scene one on 16 August, the evidence leaders said there wasn’t evidence to suggest a massacre had been planned, but both police leaders and individual officers could be held responsible. As leader on the ground, Brigadier Adriaan Calitz could have done a better job at blocking the avenues from protesters to police. Police also could have used non-lethal means of crowd dispersal earlier and more effectively.

The shootings at scene one were disproportional to the threat, Chaskalson submitted. “When it comes to justify a killing, a case has to be made out that there was an imminent threat from the person who was killed,” he said. The commission cannot conflate common intention with the objective threat. Some miners may have intended to harm police and evidence shows one shot a pistol towards them, but it cannot be assumed that they all had violent intent, as there’s also evidence of miners in the front group with no weapons. Police exceeded the bounds of private defence and inadequate care was taken to shoot at lower limbs and stop shooting within a reasonable time, said the evidence leaders.

They have recommended investigations of criminal liability at scene one for North West Provincial Commissioner Zukiswa Mbombo, who pushed the plan to disperse, and Calitz. They also recommend investigations into the few deaths that can be tied to specific guns, particularly those shot with 9mm pistols.

Looking at scene two, the evidence leaders say Calitz and Major-General Ganasen Naidoo should be investigated for criminal liability as they were on the ground. If they deliberately turned a blind eye to the “uncontrolled free-for-all” they could face murder charges or at least culpable homicide. Leaders on the day including Mbombo, Mpembe, and Major-General Charl Annandale should also be investigated for failing to stop the killings when they likely knew of the deaths already at scene one.

Evidence leader Geoff Budlender was scathing in his summary of the SAPS at the commission. Since the day after the killings, from the top down, police misled the public on what happened, lied to the commission, and hid evidence such as how the decision to disarm the strikers was made by top cops on 15 and not 16 August, the ordering of mortuary vehicles and 4,000 rounds of ammunition, and key video evidence. Officers planted weapons on bodies at scene two, told witnesses to modify their statements if they cast police in a questionable light, and turned on anyone who broke ranks with the SAPS agenda of deceit. “It’s a disgrace,” said Budlender on recent submissions by the top ranking officers around the country.

The evidence leaders have asked the commission to recommend an inquiry be held into the fitness of National Commissioner Riah Phiyega to hold office. The cover-up appears to be police policy, which she would know about, and Phiyega clearly lied during her appearances at the commission.

The day finished with Michelle Le Roux for the SA Human Rights Commission (SAHRC) appearing briefly. Her clients look to ensure accountability is achieved and will attempt to hold the SAPS accountable as an organisation, rather than punishing individuals. Le Roux will continue on Thursday and the commission will also hear from George Bizos for the Legal Resources Centre representing the family of John Kutlwano Ledingoane.

The commission will not sit Friday but will sit all of next week to finish closing arguments. The commissioners then have until March 2015 to turn the unimaginable horror into a report for the president. DM

Read more:

  • Marikana: The list of accused in Daily Maverick
  • Channel 4 News: Ramaphosa to face the ICC? In Daily Maverick
  • Access the different heads of argument here

Photo: Demonstrators wave placards during a site inspection by the judicial commission of inquiry into the shootings at Lonmin’s Marikana mine October 1, 2012. (REUTERS)


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