The high court in Pretoria has dismissed, with costs, former national police commissioner Riah Phiyega’s attempt to set aside the findings of the Marikana Commission of Inquiry into the 44 deaths at Lonmin’s Marikana platinum mine in 2012.
Judge Natvarlal Ranchod gave short shrift to Phiyega’s desperate – and anaemic – attempt to set aside the findings by retired Supreme Court of Appeals Judge Ian Farlam, which included that the police leadership had colluded to cover up what really happened at Marikana.
Ranchod found that Phiyega, in her application, made a three-pronged attack on Farlam’s report but that “mootness and preemption” rendered two of them “academic” and that only a “small residue” of her case, and the relief sought, was “still alive” – but he was still unable to find for the former police commissioner.
He also found that the application was not in the public interest, as Phiyega had argued, since it related “exclusively to the applicant herself in circumstances where her tenure as national commissioner has expired (on full pay), and who has no career in the [South African Police Service (SAPS)] or reputation as police commissioner to defend”.
Phiyega was two months into her job as national commissioner when police killed 34 striking miners in the North West town of Marikana on 16 August 2012. Three non-striking miners, three striking miners, two police officers and two Lonmin security personnel were also killed in the week preceding the massacre.
The findings that Phiyega had sought to set aside included that police leadership from the highest level sought to deceive the commission about when the decision was made to “go tactical” and use deadly force on 16 August. It was established at the commission that the decision was made on the eve of the massacre and not, as police had previously testified, on the hoof as circumstances changed on 16 August.
Ranchod found that there was no reputational damage to Phiyega because the inquiry set up to investigate her fitness to hold office on the recommendation of the Farlam report confirmed findings and was “entirely destructive” of the former police commissioner’s case and the relief sought.
“The [Claassen Board of Inquiry] report records that whereas the Marikana massacre manifested the worst possible policing practices, the applicant described it as ‘the best possible policing’. It also analysed all the evidence and concluded that the applicant ‘was not a satisfactory witness in all respects’; was ‘ambivalent and contradictory on the topic whether or not the tactical option was discussed’; ‘[and attempted] to avoid taking responsibility for the conduct of the police at Marikana by denying that she took the decision [to use force]’”. This “tainted her evidence to the extent that her credibility is in serious doubt”; and her self-exculpatory argument “was disingenuous and somewhat facile”.
Lying and misleading the public
The commission had also found that police had colluded in a general cover-up of events and decisions in their official submissions to the hearing as presented in their version of events contained in the dossier Exhibit L.
Farlam found that there was at least a prima facie case that, despite knowing the truth about what happened on 16 August, Phiyega and North West Provincial Commissioner Lieutenant General Zukiswa Mbombo approved of and submitted Exhibit L, “an SAPS presentation which contained the incorrect facts”, to the commission.
Witness testimony and the evidence leaders’ discovery of police hard drives containing evidence to the contrary refuted much of what appeared in Exhibit L. Police had sought to hide the hard drives from the commission.
Phiyega also attempted to set aside findings by Farlam that the police sought to conceal that the plan it implemented on 16 August was hastily put together and did not include the input of public order policing officers, as they were legally obliged to do. Police also prepared an inaccurate set of minutes from their meeting at 6.30am on the morning of 16 August, which various police officers supported by perjuring themselves at the commission.
Phiyega also contested the commission’s finding that the media statement she read out a day after the massacre created the impression of only one shooting incident and that the report prepared for then President Jacob Zuma had been “deliberately amended in order to obscure the fact that there had been two shooting incidents separate in time and space, and that this resulted in [the] deliberate misleading of the public”.
One incident occurred near a cattle kraal at Marikana, and it was broadcast around the world as media cameras captured it. Seventeen men were killed there.
The second incident happened later at a koppie about 700 metres away from the first, where forensic evidence, including the location of bodies and the entry and exit bullet wounds sustained by the 17 miners who were killed there, strongly suggested that police had hunted down and shot them dead while they were hiding.
Finally, Phiyega attempted to set aside Farlam’s recommendation that an inquiry be held into her fitness to hold office and to investigate whether she was guilty of misconduct in attempting to mislead the commission.
This recommendation led to the institution of a board of inquiry chaired by Judge Neels Claassen. She did, as the judgment pointed out, agree to participate in the Claassen inquiry but refused to testify there.
The Claassen report confirmed Phiyega’s “deliberate attempt to mislead South Africa by amending the media statement [on 17 August 2012] to read as if the tragic incident only occurred at scene [one] where the police acted in self-defence is not in keeping with the duties commensurate to her office. A reasonable national commissioner would have known that this amounted to misrepresentation to the people of the country and would not have acted in this way.”
Phiyega contended that “her rights to dignity and just administrative action have been impaired and therefore the recommendations in the Marikana commission’s report cannot be considered moot despite the fact that the [president] has already acted on them by appointing the Claassen Board of Inquiry.” Ranchod did not find this argument persuasive.
Upon the release of Farlam’s report in 2015, Phiyega was suspended on full pay and benefits until she reached retirement age in 2017. Answering parliamentary questions put to him in 2017, then police minister Fikile Mbalula confirmed that Phiyega had, while suspended, received a salary of more than R2 million, a non-pensionable cash allowance of R562 541.23 and a head of department allowance of R299 244.08 up until April 2017. In addition, contributions to her pension fund totalled R335 130.47. The total cost to the fiscus was reported at R3.2 million.
Correction 24 June 2021: The article previously stated that the high court was Johannesburg instead of Pretoria.