Mill of justice for Marikana dead grinds ever slower

Who ordered tear gas and stun grenades to be fired at striking mineworkers, which led to five dead in a skirmish at Marikana in 2012? Rarely has the SA justice system been more lethargic.

“Time heals all wounds” is a cliché as vacuous as the architectural wasteland of strip malls and drive-thrus that dominate Mahikeng’s urban sprawl. This is evident inside Court A at the North West division of the high court in the venerable former railway town once home to Sol T Plaatje.

It was crystallised in the tears of Sergeant Benjamin Mahume, who sobbed during his testimony as memories returned of the death of a colleague, Warrant Officer Sello Lepaaku, at the hands of striking mineworkers on 13 August 2012.

It was clear in the strain felt by the families of the mineworkers whom police killed during a 2012 strike at platinum mining company Lonmin’s Marikana mine. More than a dozen attended the murder trial of five police officers involved in the operation.

Mahume testified that on 13 August he had been standing next to Lepaaku in a “C” formation as they escorted armed striking mineworkers back to a koppie where they had been protesting since the strike had started four days before.

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The mineworkers, who were returning from a fruitless attempt to close down a nearby mine shaft that was, in fact, not operational, had refused to lay down their weapons because they feared being attacked by Lonmin security or the majority National Union of Mineworkers, as had happened in the preceding days of the strike.

According to Mahume, the mineworkers were being escorted back to the koppie after a decision by then North West deputy police commissioner Major General William Mpembe (one of those standing trial) not to disarm them at the railway line where the two groups had first encountered each other.

Mahume testified that he and Lepaaku were the last people on the right side of the “C” formation with 5m separating them – Lepaaku being the last police officer at the tip, and the easiest to be isolated in the formation.

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Mahume, a public order policing unit member since 2009, testified that the striking mineworkers had not posed a threat to him or his colleagues as they moved in an orderly fashion towards the koppie. He said this changed when Mpembe, who is now head of security at a mining company at Marikana, gave the order to fire tear gas, rubber bullets and stun grenades at the mineworkers.

According to Mahume, he was about 10m away from Mpembe when he heard the command: “CS [tear gas], rubber bullet, stun grenade.” He relayed this message to Lepaaku.

Mahume then saw Warrant Officer Daniel Kuhn, who gave testimony the week before, respond to Mpembe’s order and fire a tear gas canister at the mineworkers. Bedlam broke out, according to Mahume, after another tear gas canister was fired and a stun grenade thrown into the group of mineworkers.

The skirmish that followed left five people dead: Lepaaku from the public order policing unit in Phokeng in the North West and Tsietsi Monene from the same unit in KwaMhlanga; and three miners, Semi Jokanisi, Thembelakhe Mati and Phumzile Sokanyile.

This formed half the death count, which also included non-striking mineworkers and Lonmin security officials, in the ten days preceding the police massacre of 34 striking mineworkers on 16 August 2012. At this stage police were also firing rubber bullets.

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The commission of inquiry chaired by retired Judge Ian Farlam, that investigated the violent strike, established that the skirmish was started by the police firing tear gas and stun grenades. Farlam was also of the view that Mpembe’s “denial that he gave an order to fire a tear gas canister (or for that matter stun grenade) must be accepted”.

So who did give the order to fire? This is the burning question in this criminal case in which Mpembe has been charged with five counts of murder and of defeating the ends justice by lying under oath to the commission. At the commission, Mpembe denied giving the order to fire tear gas and stun grenades, despite witness statements to the contrary, including one submitted by Mahume, then a constable.

Witness to violence and death

The now-retired Colonel Salmon Vermaak, who was part of the police’s air wing command during the strike, is also charged with lying to the commission and leading a posse of police officers in hunting down and killing Sokhanyile. Among these officers are co-accused Constable Nkosana Mguye and Warrant Officers Collin Mogale, Joseph Sekgwetla and Khazamola Makhubela.

Mahume said once the chaos erupted, two mineworkers, one armed with a panga and another with a knobkerrie, approached him and he fired a rubber bullet cartridge with two rounds in it. These apparently “did not penetrate” the blanket the mineworker with the panga used to cover his front. He then turned to his left and retreated from his position when he heard Mpembe order in Setswana: “There is a policeman being killed. Shoot!” According to Mahume, there was a “five to seven minute” period between the tear gas first being fired and Mpembe’s order to fire because a police officer was being attacked.

When Mahume turned to face Lepaaku again, he said he saw him being attacked by two miners. He saw a miner armed with a panga make chopping motions at Lepaaku. He then saw a mineworker remove Lepaaku’s firearm and retreat with it, before holding it up and celebrating its capture.

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During both his evidence in chief and under cross-examination by advocate Jan Ellis, Mpembe’s counsel, Mahume looked broken several times as the memories from that fatal day were resurrected.

At times, Mahume appeared indolent and hostile to Ellis, who seemed intent on psychologically breaking him down by continuing to focus on the attack on Lepaaku, before interspersing the line of questioning with repeated questions about more tactical and technical aspects of the operation and the unfolding events.

Mahume told the court, where Judge Tebogo Djaje presided, that he was unable to go back to the crime scene to inspect Lepaaku’s body: “I saw him being chopped up, but I didn’t have the courage to go and inspect his wounds.”

Lepaaku was airlifted from the scene and later died in hospital.

A police officer for 23 years and stationed at Klipgat Police Station at the time of his death, Lepaaku, according to his autopsy report, suffered a fractured skull and bleeding between the brain and the thin tissue that covers it.

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In a statement to the Farlam Commission his wife Petunia remembered the agony of watching the 7.30pm news on the evening of 13 August, when it was reported that two police officers had been hacked to death at Marikana. “I saw my wounded husband being carried away from the scene to hospital by his colleagues,” she said. “I tried to call him but his phone rang unanswered.”

Petunia said she waited with dread for the police chaplain to visit her home and confirm the news. Petunia and Sello Lepaaku married on 7 May 1996 and had three children, Tsholofetso, Botshela and Tsietso. “He and I were meant to be together,” Petunia said. “I personally lost the best part of my life. We were soul mates.”

Ironically, at the time of the strike Lepaaku was earning about R8 000 a month, according to his wife, much less than the R12 500 the mineworkers were demanding at Marikana. 

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Fine mineworkers have been charged with killing Lepaaku in a separate, long-running trial.

These criminal trials look set to continue for years. Failures in court resourcing further hamper the country’s slow-moving criminal justice system. Set down for three weeks this month, this trial has already lost three out of the past nine days at the time of publishing: once because electricity was not restored to the courts after loadshedding and twice because of a shortage of translators. 

At the high court in the North West, the wheels of justice do not merely move slowly. Instead, they appear to have been stolen, punctured and set alight – to what end, though? For the families of the dead mineworkers, security officials and police officers killed at Marikana in 2012, it is only a denial of justice.

Judiciary spokesperson Nathi Mncube ignored questions about translator shortages and electricity supply to the court.  

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