Marikana: Phiyega on the attack and Malema on new legal and political crusade

One of the biggest blows to the SAPS narrative on Marikana at the Farlam Commission of Inquiry was delivered by the police’s own expert witness, Cees de Rover. De Rover is a former Dutch police officer that worked for over 20 years as a police expert for organisations such as the International Committee for the Red Cross and the United Nations. Greg Marinovich and Greg Nicolson reported in Daily Maverick in September 2014 how De Rover turned against the SAPS during his testimony to the commission.

“In his original statement, he said police could not have foreseen nor acted differently to the risks at scene one. But presented with the new evidence, he agreed with much of the analysis from White, an Irish policing expert who has done the most comprehensive analysis of what happened at Marikana. De Rover even went so far as to state that the decision to go ‘tactical’ on 16 August, when after two days of relative calm police decided to confront the miners, must have come from the executive, or at the least the executive must have been consulted.”

Judge Ian Farlam said in his report that the commission agreed with the evidence leaders on the following submission: “One of the first recommendations Mr De Rover made to the National Commissioner was to withdraw R5 rifles from the Public Order Police, and not to permit them to be used in crowd control. He gave her this advice between 28 February and 8 March 2013. When the National Commissioner gave evidence on 10 September 2014, almost 18 months after she had received this advice from Mr De Rover, she said that R5 rifles are still being used in public order operations, and that SAPS is still considering the matter. We submit that given the urgency of the matter, which is demonstrated by the high number of public protests and demonstrations in South Africa and the fatal shootings at Marikana, that is simply not good enough.”

The commission report also states the following: “Firing hundreds of rounds into the koppie is typical of a military action, aimed at overpowering and destroying an enemy. A policing operation would be limited to firing shots at particular members of the group on the koppie who posed an imminent threat to life. With the exception of those few with whom there was an engagement at close quarters, the only strikers who could have been a threat of imminent danger to life would have been those who were shooting firearms, as they were all at some distance from the police. It is clear from the evidence that either none, or very few, of the strikers who were killed had been shooting at the police. The obvious question, then, is why they were shot.

“The explanation is that this was a paramilitary operation, with the aim of annihilating those who were perceived 376 as the enemy. Mr De Rover stated that he agreed ‘absolutely’ with the view of Lt Col Scott that once it was clear that the strikers had holed themselves up at koppie three, it would have been preferable to retreat rather than firing 295 live rounds into the koppie.”

This week, De Rover, who is in Australia, received the following SMS from National Police Commissioner Riah Phiyega: “You seriously misrepresented SAPS in the Marikana Commission. You shall never be able to assist this service. We are disappointed by the subjective approach you adopted and the clear focus on your self enlightened interests a real pity indeed General Phiyega” [sic]

Approached for comment about the SMS, national police spokesman Lieutenant-General Solomon Mokgale said he was not aware of it but would check with Phiyega if she had in fact sent it. He did not respond to Daily Maverick by midnight on Thursday.

Judge Farlam recommended that based on her performance at the commission, President Jacob Zuma institute a commission of inquiry into Phiyega’s fitness to hold office. The SMS displays that the national commissioner is feeling the mounting political and public pressure against her. But it also sheds light on how pressure can come to bear on subordinates who do not toe the line.

How much more so for the unfortunate detective at the Marikana police station who will have to investigate criminal charges against his or her superiors? The Economic Freedom Fighters’ (EFF) leadership is on Friday laying charges against Phiyega, Deputy President Cyril Ramaphosa, former Police Minister Nathi Mthethwa, former North West Police Commissioner Zukiswa Mbombo and the directors of Lonmin.

Malema said at a media briefing on Thursday that the EFF believed Ramaphosa and Mthethwa’s actions had a “causal effect on the ultimate decision to plan the mass killings of workers in Marikana”. “Conspiracy to commit murder is a criminal offence in terms of the Criminal Procedure Act,” Malema said.

The commission found that the accusations against Ramaphosa were groundless and did not hold anyone directly accountable for the massacre. But Malema said it was only through a criminal investigation that the matter could be thoroughly probed. He said the police needed to examine the cellular phone conversations and exchange of text messages to get more evidence to supplement the email discussions between Ramaphosa and others prior to the massacre.

“There is a worse story to be told from Ramaphosa’s side. Only police can unearth that information, not a commission. We are convinced that there is dangerous information hidden in his electronics,” Malema said.

The Presidency said on Thursday that it noted “plans by some in the political circles to lay charges” against Ramaphosa, ministers and officials. “In this regard we wish to state that in respect of the findings of the Farlam Commission related to Deputy President Ramaphosa personally, the Commission’s findings are clear. Accordingly, Deputy President Ramaphosa has nothing further to add.”

The Farlam Commission recommended that all members of police involved in the killings at scenes one and two on 16 August 2012 be investigated. The judge also recommended that the national director of public prosecutions (NDPP) investigate all the killings and assaults that took place in the period before the massacre.

But Malema said he did not trust “Zuma’s processes”, and neither did he trust the new NDPP, Shaun Abrahams, whom he said was part of a faction in the National Prosecuting Authority protecting the president. He said while the EFF was aware that a private prosecution was unlikely to succeed, they had to lay the charges to pursue justice for the Marikana victims. “In as much as we don’t trust junior investigators can investigate their seniors, perhaps the NDPP could appoint independent prosecutor. We may be lucky like that,” Malema said.

“Political situations are dynamic. Tomorrow we may wake up with Zuma not being president… Nature might resolve our problem.” He said if the political situation did change, the Marikana should be on the police records so the investigation could be pursued. Malema said while the Marikana workers had wanted to take the matter to the International Criminal Court (ICC), but this was not advisable until the court was transformed and it was compulsory for all the nations of the world to be members. He said it would ordinarily have been “ideal” for the ICC to investigate Ramaphosa and others as the South African justice system was biased in favour of top politicians in government.

Malema said the EFF had written to the Speaker of Parliament Baleka Mbete requesting a debate on the Marikana report. He said hoped Mbete acceded to their request as the EFF wanted to expose the weaknesses in the report.

Marikana is likely to be a new whip for the EFF to beat the ANC with, with the two parties already on a collision course over Nkandla. The EFF plan of action on Marikana includes demanding reparations from Lonmin. Malema said Lonmin should pay the families of the deceased mineworkers R10 million each, and all injured workers should receive R5 million each.

The EFF says they will also report Lonmin to the South African Revenue Service for “all cases of aggressive tax avoidance”. This is after the commission agreed with the evidence leaders that Lonmin’s excuse that it could not meet its housing obligations for the workers was incorrect. The evidence leaders submitted that between 2007-2011, when Lonmin claimed it could not afford its housing obligations budgeted at R665 million, it paid more than R1.3 billion in “marketing commission” payments to Lonmin Plc and/or its Bermudan registered subsidiary, Western Metal Sales Ltd.

While Phiyega has until the end of July to respond to Zuma’s notice of an inquiry into her fitness for office, the EFF will no doubt be on a crusade for the foreseeable future on the issue of Marikana. And the ANC will have to barricade itself and its leaders from yet another onslaught. DM

Photo: The Farlam Commission into the Marikana Massacre sitting in Rustenburg, with Police Commissioner Riah Phiyega being questioned. (Photo Greg Marinovich) Rustenburg, North West, South Africa. 2013, April 5.