Former National Police Commissioner Riah Phiyega. (Photo: Gallo Images / Thulani Mbele)
Almost 10 years after the massacre of 34 striking minors by police in Marikana in 2012, the Pretoria High Court dismissed, with costs, the attempt by former National Police Commissioner Riah Phiyega to overturn the damning findings of the Farlam Commission of Inquiry.
Back in 2012, Daily MaverickVeteran journalist Greg Marinovich was the first journalist to report that the majority of 34 minors shot dead by police in Marikana on August 16 were killed out of public view.to an indescribable collection of rocks some 300 meters behind Wonderkop ”.
The killing fields of Marikana. The cold murder fields of Marikana.
Write about September 8, 2012 Marinovich noted that he was with City pressCharl du Plessis tries to fill in some gaps in their understanding of the tragedy that rocked democratic South Africa.
“While climbing about four meters on a rock, Du Plessis found a stick and a pipe. Nearby were stains of blood. Then, precariously close to the edge, he spotted a bullet. A twisted and scuffed bullet that looked a lot like an R5 bullet. He had obviously ricocheted once or even twice off the granite.
Marinovich and Du Plessis alerted the Independent Police Investigations Directorate, which dispatched investigators within two hours, as well as a specialized crime scene investigator.
“None of these events were seen by the media or filmed. They have only been reported as part of the sum of the greatest tragedy, ”Marinovich wrote at the time.
On June 1, 2021, Pretoria High Court Judge Natvarlal Ranchod finally dismissed, with costs, the attempt by former National Commissioner Riah Phiyega to quash the findings of the Marikana Commission of Inquiry, chaired by the retired Court of Appeal judge Ian Farlam, on 44 deaths in Lonmin. mine in August 2012.
Ranchod dismissed the claim with costs, including those of two lawyers. Phiyega initiated his request for review more than 12 months after the report was released in 2015. Phiyega had hoped that the SA Police Department (SAPS) would pay his legal fees.
While 34 miners were shot dead on August 16, the death toll included two police officers, three non-striking miners, two Lonmin security guards and three striking miners who were killed a week before the massacre.
Phiyega was suspended in October 2015 and remained on full pay with full benefits until the end of her term on May 31, 2017. The final tally for the taxpayer was R3.2 million.
After the publication of the Marikana Commission report, then President Jacob Zuma set up the Claassen Commission of Inquiry (chaired by Judge Neels Claassen) into Phiyega’s suitability to perform his duties as recommended. .
The Claassen investigation also investigated whether Phiyega was guilty of misconduct by attempting to mislead the commission.
Ultimately, Phiyega was found unfit to perform his duties and the Claassen investigation accepted evidence that the national commissioner had edited a report, removing from public knowledge the evidence of the killings at the “second koppie”. These murders were originally included in his report to Zuma.
This had constituted a “violation of his duty to manage and control the police in an honest and transparent manner”.
While the Claassen investigation concluded that Phiyega had not misled the Marikana Commission in some respects, “it did in other respects,” Ranchod said.
With regard to the second koppie killings, the commission found that Phiyega, in his statement to the media, “created the impression of a single shooting incident and the most reasonable conclusion is that the report which had been prepared for the president was deliberately changed. in order to obscure that there had been two separate shootings in time and space, and that this had deliberately misled the public, who felt that all the deaths were caused during the confrontation on the first scene they had seen on television ”.
The commission also found that SAPS management “at the highest level” had not provided an accurate version of how the “tactical” option had been implemented on the afternoon of August 16, 2012.
The leaders had also tried to “cover up the fact that the plan to be implemented had been hastily drawn up without a POP. [Public Order Police] inputs or evaluation ”.
This decision, Ranchod said, had not been disclosed to the commission, inaccurate minutes had been prepared for a meeting and there had been a At first glance the case where the National Commissioner and the Provincial Commissioner for the Northwest, Lieutenant-General Zukiswa Mbombo, knew the real facts.
“The appointment of a commission of inquiry is executive action, not administrative action,” Ranchod said.
The president had not been required to consult the subject of the investigation before appointing a commission, he added. The function of a commission of inquiry was to determine the facts and to advise the president by making recommendations.
“A commission of inquiry is not a tribunal. He has the right to receive evidence or information relating to matters referred to him. It can receive evidence of any kind, including hearsay evidence and newspaper articles, and it can even receive submissions and representations that are nothing more than opinions, ”Ranchod said.
Phiyega had mounted an attack on three fronts but, said Ranchod, “two of the three attacks are academic on the basis of non-compliance and preemption.”
Only “a small residue” from Phiyega’s case and the relief she sought were “still alive,” he added.
The Claassen inquiry, Ranchod said, had confirmed the conclusion of the Marikana Commission that Phiyega’s “deliberate attempt to mislead South Africa by altering the media statement to read as if the tragic incident did not had only occurred on scene 1 where the police acted in self-defense did not comply with the duties corresponding to their function ”.
The Claassen investigation also concluded that Phiyega had not concealed from the Marikana Commission “in his initial testimony” the fact “that a decision had been taken on the evening of Wednesday August 15, 2012 to proceed with disarmament and dispersal. strikers the next day on Thursday August 16, 2012 ”.
The Claasen investigation recorded that while the Marikana massacre had manifested “the worst possible police practices”, Phiyaga had described them as “the best possible police”.
She had also analyzed all the evidence and concluded that Phiyega “was not a satisfactory witness in all respects”, and that she had been “ambivalent and contradictory as to whether the tactical option was being discussed or no “.
She had also attempted to shirk responsibility for the conduct of the police by denying that she had made the decision to use lethal force.
This, Ranchod said, tainted Phiyega’s testimony and put his credibility in “serious doubt”.
by phiyega the self-exculpatory argument “was spurious and somewhat easy,” added the judge. And While Phiyega had declared his intention to take the Claassen investigation report for review, “no further details” were provided, Ranchod said.
In any case, said the judge, if Phiyega intended to continue in this direction “then even more, it seems to me, the present application is doomed to failure”.
The Claassen investigation resulted from the recommendations of the Marikana Commission.
“Therefore, the recommendations were rendered moot as they were followed by the fourth respondent [the president]. “
Phiyega’s lawyers argued that the mootness should be ignored “on the basis of alleged high public importance nationally and internationally, of the tragic incident that occurred at the Lonmin mine in Marikana”.
The difficulty he had with this argument, Ranchod said, was that “it is inconsistent with the express basis upon which the claim was made. He was not brought in in the public interest, ”but in Phyega’s personal interest.
Phiyega, Ranchod said, had confused three issues: the public interest, the issues of public concern and its private interest.
Nowhere in his papers “are any separate legal issues of public importance supposed to arise that would affect business in the future.”
Phiyega had based his review on the legality and rationality of the Marikana Commission’s recommendations, saying they were irrational because they had not been supported by evidence.
However, Ranchod said, Phiyega had “failed to establish any basis for criticizing the accuracy of the Marikana commissioner’s report.” DM
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This notice was published: 2021-06-20 21:01:21