27 March 2013
Adv. George Bizos took the witness through different sections of the Constitution that govern and give powers to the police. He also read out the police’s code of conduct.
General Riah Phiyega said the Marikana situation was different
and unprecedented and that’s why the police could not prevent the
loss of life.
‘Some years back, then Minister of Safety and Security said to the police, “u must kill these bastards, don’t fire warning shots. The police Commissioner said the team she leads have to do their job according to the law and prescripts and they don’t follow anyone’s orders. ‘If this statement was made during my term, I would issue a statement reminding all police officers to follow the law when doing their job.
When asked if the action of the police on 16/08/2012 was proportional, Ms Phiyega said the police were acting in self-defence. ‘I hope this Commission will give a judgment with regards to proportionality. I’m not comfortable responding to the issue.’
“If self-defence was the reason for the police’s shooting, why, according to you, was there no injury to any police officer?” asked Adv. Bizos. “The police are trained and they do their work professionally and I think that’s what enabled them not to incur any injuries,” replied Ms Phiyega.
Adv. Bizos said that the term ‘maximum force’ is not included in any law or legislation and that it is merely an excuse for the police to kill people. The term is included in General Phiyega’s media statement. “By maximum force I meant that the police had to use necessary force to protect themselves,” said the police Commissioner. On 13/08/2012 during the meeting, Ms Phiyega said that there was no mention of the police plan and she further said she did not see it before the 16th. She agreed that the plan was developed without her approval because she had delegated the relevant officials for this. She further agreed that she takes responsibility for what her subordinates do.
Adv. Bizos said that in Sharpeville 69 people died and 180 were injured, they were shot by the police and mostly in the back.’ The police said they acted in self-defence and Dr Verwoerd, then Minister of Police, praised them. Most of those who were shot were not armed.’ The opening statement of the police said there were 3000 armed protestors. The second version said there were 200 to 300 armed protestors and the rest were unarmed. Adv. Bizos asked if the plan was to disarm 3000 or 200 – 300 armed protestors. “My commanders will reply on that one. The plan was to encircle, disarm and disperse the crowd,” said Ms Phiyega.
When asked if she can agree that the majority, as shown on the videos, were disarmed the national commissioner said she won’t agree because she was not on the scene. “Those who were at the scene are best placed to answer on the number of protestors at Marikana on 16/08/2012. On the case of the Sharpeville massacre, Gen Phiyega said that we are now a new dispensation and that people did not have a right to march back then.
“Would you agree that if innocent people who carried no weapons and were marching only because of wage demands and were killed for not committing any crime; would you say that the perpetrators should be charged with murder?”
“I hope the Commission will make a finding on the matter; I’m in no position to respond,” said the General. She agreed that people who kill other people for no reason should be charged with murder. When asked if she believed that her lack of experience made her less responsible for what happened in Marikana, she replied by saying ‘no’. She again said that she did not know the police’s plan or its strategy and further said that she did not approve it; it is known by those who drew it up. She denied hearing any of the SAPS commanders say that the 16th was D-Day.
She agreed that the TRT, NIU and STF don’t have the capacity to deal with protest action and that one of their responsibilities is to deal with bank robberies, cash in transit heists, terrorist actions and hostage situations and that they may be called to assist POP’s if necessary. The Police Commissioner disagreed that the police had made a declaration of war towards the striking workers. “My concern was capacity on the meeting of the 15th and not the types of units needed,” she said.
26 March 2013
Adv. Madlanga SC, continued with General Phiyega’s cross examining.
The national Police Commissioner said that when addressing the police officers at the police parade, the statement she made had no reference to the killings but was in reference to the prescripts, policies and standing orders of the SAPS. ‘The work you did represents the best in responsible policing’ – Ms Phiyega said that this refers to the plans and work done and does not include the killings of the protestors. Adv. Madlanga SC said “We will submit that it was irresponsible for the National Commissioner to make the statement, especially since she stands by this.”
When asked about the faulty SAPS analogue radio network, Ms Phiyega said that the commander in charge would be able answer on that issue. She further said that when she made the statement she had no knowledge of the faulty analogue radio network. Adv. Madlanga said that according to Mr Gaffley, the SAPS were shooting in different directions and could have shot each other. He then asked if this represents responsible policing. ‘This may have happened but because it is a pre-supposition, I cannot answer that question,’ she answered.
In terms of planning, I would say the police did their work; the process was however disrupted and the outcome was unintended. I would say that the plan was a good one. The Police Commissioner was asked what decisions did she take in relation to what was happening in Marikana. ‘I ordered that sufficient manpower should be deployed to Marikana, sent out media statements and did resource mobilisation.’
General Mbombo is a strategic leader of the North West and she also has general management skills. Ms Phiyega refused to confirm if General Mbombo is largely experienced in financial management and said she is a general manager.
General Phiyega further said that she first became aware of the Tampering of Evidence report on the 24th or 25th of October 2012.
19 March 2013
The leader of evidence leaders, Advocate Mbuyiseli Madlanga SC, commenced with his cross-examination.
Adv. Madlanga asked the Police Commissioner about the statement
she received on 17/08/2012. General Phiyega said she received an
update from the JOC which consisted of a lot of people and the
media statement that was released was a collaborative product of
all parties involved. When asked if she was aware that only General
Naidoo and Brigadier Calitz were involved at the events of the
16th of August 2012, Gen. Phiyega replied by saying yes. “When
you were asked earlier you said you were not aware,” asked Adv.
Madlanga. The Police Commissioner denied that she did not contradict
herself. She said she does not know where Lt Col. Scott, General
Annandale and Provincial Commissioner Mbombo were during the shooting
on 16/08/2012. Most of them were there during the briefing on 17/08/2012.
“Did you try and establish where the other officers were during
the shooting on 16/08/2012. General Phiyega replied by saying no.
Advocate Madlanga asked ‘would you as a leader would take a decision without considering opposing views?’ Gen Phiyega replied by saying that it would depend on the circumstances.
Before sending out the media statement, I was aware that were a lot of participants from both the SAPS and the protestors; about 3000 protestors and 600 police officers. When asked if she knew that more than 160 officers fired shots, Ms Phiyega said she cannot confirm that and said the commanders at the scene are best placed to give a more accurate response.
‘When being briefed did you not consider that you should take the
time to find out for yourself what had happened and what different
versions there were?’
Ms Phiyega said the media statement that was sent out was well considered. ‘If there are new facts different from the statement of the 17th, then I would ask that the facts be presented to me for consideration. To date and to my knowledge, what was presented to me on the 17th still stands,’ she continued.
Mr Hendrich Wouter Myburgh, from the K9 unit was at Marikana on 16/08/2012. He alleged that an National Intervention Unit constable had finished off an injured protestor lying on the ground. When Warrant Officer Myburgh asked the NIU constable why he shot the injured protestor, he is reported to have said that ‘they deserve to die.’ Adv. Madlanga further said that W/O Myburgh reported the incident to Major General Naidoo and to Provincial Commissioner Mbombo and the National Commissioner on 02 October 2012. General Phiyega confirmed that she was informed of this.
The National Commissioner said that not much could be done of this reported incident because W/O Myburgh said he did not see a name tag of the NIU constable and it was known who this NIU member was. General Naidoo, as the commander would have gotten to the bottom of the matter had there been any new light.
‘On the issue of the tampering of evidence you ordered an investigation by a senior official but now you didn’t institute an investigation into this matter.’ The National Commissioner replied by saying that if there was any new information coming out, then there would have been action taken. ‘Were there any attempts made to try and identify the NIU police officer?’ General Phiyega said that she ordered General Naidoo and Provincial Commissioner Mbombo to look into the matter and that it was General Naidoo who brought the matter to Gen Phiyega’s attention.
Adv. Madlanga pointed Ms Phiyega to a document that is the SAPS’ own analysis of the shooting in Marikana. The document, which is exhibit number FFF8, contains the names, details, shots fired, etc. at scene 2. The document contains only four NIU members who fired 9mm pistols. It would have been a matter of relative ease for the NIU members who fired 9mm pistols at scene 2, to have been taken for an identity parade. The National Commissioner replied by saying ‘yes, it could have been.’ Ms Phiyega said that she did read the SAPS presentation and she tried her best to read it to her full understating.
14 March 2013
The legal representative for the South African Police led Ms Riah Phiyega on her statement. He read out a number of legislations that governs the Police and various powers and responsibilities that are provided therein.
On 13 August 2012, North West provincial Commissioner General Mbombo informed General Phiyega that they were going to implement ‘stage 3’. On the 16th of August 2012 she received a caal to implement ‘Operation Dispersal’. The police killed thirty four striking workers and 259 miners were arrested. General Phiyega said she called the Police Minister to inform him of this and she advised him that she attend the matter personally.
“The events at Marikana are of concern to me. The unfortunate loss of life is to me regrettable. Yes I saw media reports saying that I had laughed in the commission. It hurt me a lot because it is inhumane and not part of my character. As an adult and responsible citizen, I could do no such a thing. I hope no one gets humiliated like that. I hope there will be more balanced reporting so that the widows’ pain doesn’t get exacerbated by such unnecessary and unbalanced reporting.” The National Commissioner mentioned that the South African Police Service has handled 33 521 protests in 3 years; an average of 11 000 per annum and a majority of those were peaceful.
Police to citizen ratio in South Africa is comparing well, even in international standards. The SAPS employs about 200 000 employees in total, making it one of the biggest departments in South Africa. The SAPS is therefore able to deal better with crime. Some serious crimes such as bank robberies and ATM bombings are almost getting obsolete. There is no future in any country without law and order. The SAPS receives a budget of R63 billion and 70% goes to HR.
I first heard of the Marikana unrest on the 10th of August 2012. After hearing the news of the shooting on 16/08/2012 I called the Police Minister and I advised him that I will be travelling to Marikana. I went there later that day and I was briefed by General Mbombo and other senior SAPS officials. It was then decided that we will hold a press conference the following day since we had not received complete information even though many reporter wanted us to hold a press conference on that day. President Jacob Zuma was in Mozambique attending a SADC meeting then. Minister of International Relations called to ask what had happened. On the 17th we held a press conference and an announcement of the Inter-Ministerial committee.
13 March 2013
Mr Magidiwana was shown several video clips and asked to comment. He said he believed that ‘Bhayi’, one of the striking workers who was killed on 16/08/2013 and who was known to Mr Magidiwana, was finished off by the police because after he was shot, he was seen moving in one of the clips. One of the clips show a police officer with a boot on the face of one of the injured or dead strikers lying on the ground.
He also denied the evidence that will be provided by Mr ‘X’ that a white and black sheep were required and quickly procured. Mr Magidiwana denied any knowledge of this and further said he has never seen a black sheep in his life.
Mr Magidiwana said he had sustained eight gunshot wounds in different parts of his body, including his private parts. “The injury on my testicles could not have been sustained while standing up because it is clear from the wound that I was shot while lying down.” In my group I did not see anyone shooting or holding a gun. When I was leaving the koppie on 16/08/2012 it did not occur to me to run towards the veld and it seemed unsafe because there were three or four helicopters in the air.
When asked by Adv. Ishmael Semenya, on behalf of the SAPS, Mr Magidiwana said he does not know the time difference between the first and the second shooting. “When I was shot for the second time, I was lying on my back and not with my chest facing the ground.” He says in the video where he is shown lying on the ground facing down, it was just after the first shooting and before the second one. “The pain from the gunshot wounds was really bad so after I had seen that the police had passed I turned around.”
Mr Magidiwana was very reluctant to agree that none of the video
clips shown on the day depicted any of the events detailed in his
Mr Semenya said that they will argue that Mr Magidiwana was shot only during the first incident.
12 March 2013
Mr Magidiwana testified that he arrived early in the morning and went up to the group on the koppie where he joined them in singing. “I do not know what time that was.”
Aerial photographs of the striking workers were shown to Mr Magidiwana
and he was asked to point out exactly where he joined the group
upon his arrival.
Mzoxolo Magidiwana again said he does not recall being on the koppie among the striking workers on the 15th of August 2012. He confirmed that he knew the song that says ‘how can we kill this Num’ and that he sang it on the 16th of August 2012. “Before the 16th I had never sang the song before.”
Two video clips taken on 16 August 2012 were shown and Mr Magidiwana confirmed seeing himself in them. He said they were taken after Mr Mathunjwa’s speech on the koppie and he confirmed having carried two traditional weapons. He again said the ‘Incula’ he had was borrowed and he returned it later afterwards.
When asked if there were any specific actions that people were asked to do when joining the strike, Mr Magidiwana replied by saying, ‘yes, on the 10th I heard that all Lonmin employees must join the strike and demand an increase from Lonmin, even non RDO’s.’
“I heard about the killings on the 10th of August 2012 and it was Num that was alleged to have killed the workers. I had not heard from anyone that on the 16th people would go to the koppie. Since the stadium was locked, I then knew that the workers had assembled on the koppie because I saw them going there. From there 13th, I knew that workers were gathering at the koppie,” he proceeded. I last went to work on the 10th of August 2012 and I then decided to join the striking workers. I did not know then that there was a demand for R12, 500. Adv. Terry Motau SC, representing Lonmin started cross examining the witness.
When asked why he went on strike, Mr Magidiwana said that he went on strike to get R12, 500 but not less than R10, 000 after deductions. ‘This means that your demands were not similar to RDO’s since they wanted R12, 500 after deductions’, asked Adv. Motau. Yes. I would have been happy with R10, 000 had the employer said that’s what they could afford.
“The R12, 500 salary increase was the main demand of the workers, whether it included the sleeping out allowance or not was immaterial. This allowance has been there and the workers wanted a salary of R12, 500.” Had the RDO’s received the R12, 500 salary increase, I would have tried my best to work hard and apply for RDO’s positions. When asked by Mr Teboho Mosikili on behalf of Amcu, Mr Magidiwana denied having seen any striking workers trying to cut through the inyala’s tyres.
11 March 2013
Adv. Vuyani Ngalwana continued with cross examining Mr Mzoxolo Magidiwana.
There was still a lot of dispute in as far as videos or pictures depicting Mr Magidiwana being shot for the second time. Mr Magidiwana said this did happen even though there were no videos to this effect. Mr Ngalwana said Mr ‘X’ will testify that during the first incident, the group charged towards the police because the Inyanga had made them believe that bullets would not penetrate them. Mr Magidiwana denied this.
Mr Karel Tipp commenced with questioning the witness. When asked if he knew that the strike was unprotected, Mr Magidiwana responded by saying that he was told that going on an unprotected strike could lead to his dismissal and he said that he did not want that.
Mr Magidiwana was asked if he had been told that on the 10th of August 2012 Lonmin had obtained a court order declaring the strike illegal and ordering all workers to return to work. Mr Magidiwana replied by saying that he did not know this.
06 March 2013
For the third day in a row, the witness was extensively cross-examined
by Adv. Ngalwana on the path he intended to take while planning
to go home.
When questioned about the threats that ‘Mambush’ made to the police in the Nyala, Mr Magidiwana said that Mambush was not sent by the striking workers to go say what he said to the police and he never came back to report to them on what he had said. ‘What he had said to the police was his personal statement and it didn’t represent the views of the striking workers.’ He also denied having seeing any protestor with a gun or hearing any shots being fired by a protestor on the day.
Mr Magidiwana denied having any scarification marks on his chest as a result of the rituals done at the koppie at any time during August 2012. ‘The only marks I have are the ones which were done at home before I started working at Lonmin; this was back in December 2011. When I go back home, I will have more scarification marks done.”
When it was put to him, Mr Magidiwana agreed that an Incula (sharpened iron) is a dangerous weapon. He however said that he only had it on him momentarily as it was borrowed. He said he does not know how long he had it on him, since he didn’t have a watch on him. ‘It never occurred to me that carrying that weapon was in effect, breaking the law.’ Mr Magidiwana also denied being part of the group that slept at the koppie and he again denied ever being in possession of an unlicensed firearm.
05 March 2013
Adv. Vuyani Ngalwana, on behalf of the SAPS, continued with cross examining the witness. Mr Magidiwana revealed that when the barbed wire was half dispatched and it seemed that things were going to be bad, the workers started singing and headed off on a road leading to Nkaneng because it was apparent that the police had targeted the group in the front.
When asked if he was a brave man or a coward, Mr Magidiwana said he is a coward. Adv. Ngalwana put it to him that if he really was a coward then he would have left the koppie after the Amcu president Mr Mathunjwa had warned that the police were going to kill them. He said he tried to leave but was blocked out by the barbed wire.
Adv. Ngalwana asked why the workers didn’t leave before the barbed wire was deployed when everyone was leaving freely. “When I decided to leave, the barbed wire was deployed just ahead of us and it blocked us in. Water cannons were sprayed on us and we retreated to the other side of the kraal; where there were police shooting at us. We were followed by the police and they blocked our every move. We tried to leave when the barbed wire was deployed because we were afraid and didn’t know what was going to happen to us.”
01 March 2013
Mr Magidiwana continued with his testimony. He said that on 16/08/2013,
he went home earlier in the day to go and have lunch. He later
returned to the koppie. When he left he says there was space for
him to leave the koppie since there was no barbed wire and there
was sufficient space between the inyalas.
Mr Magidiwana denied having seen anyone next or near him holding a gun, even though the police identified someone near him in one of the video footages shown, with a gun.
He says after he saw a police man shooting in their direction, he started screaming saying ‘yhoo’. He denied knowing any of the persons who were lying on the ground after having been shot. He said he only knew one person called ‘Bhayi’. He said he had tied his towel around his body and while lying on the ground after being shot, he was told to remove it off his body. He denied that they had worn heavy clothing so as to soften the blows of the rubber bullet. He said he had worn a blanket because it was cold in the morning.
On the 16th, he says most of the weapons that were carried by the protestors were sticks. The witness was able to identify his stick after he was shown an image of a pile of traditional weapons that were recovered at scene 1. Mr Vuyani Ngalwana, on behalf of the SAPS, commenced with his cross-examination. Mr Magidiwana said that though it was cold in the morning, it became hot during the day.
He agreed that he was not an RDO but the RDO’s asked all workers to join them in the strike. He says he worked at General Tramming and Transport. He said his other reason for joining the strike was that he also wanted a R12, 500 salary increase. He says he told his lawyers of this demand. ‘RDO’s earn slightly more than me.’
He confirmed that everything in his witness statement was correct and that nothing was left out. When asked why is his demand of R12, 500 salary increase not included in the statement he replied by saying that he thought it was in the statement. He further said the statement was written in December and that the reason why there was no mention of his salary demand was that he thought the focus was on his injuries. He said he supported the strike because RDO’s are overworked and underpaid, but he said he does not support any violence or killings.
‘During the strike, I never heard of anyone who was going to work during the strike because RDO’s had pleaded with all the workers to join them in the strike and therefore everyone was on strike and that’s why I also joined.’ Mr Magidiwana said that on Wednesday 15 August 2012 he heard from a man by the name of ‘Lucky’ that a union leader was coming to address the workers on the koppie on the 16th. ‘After checking my cow at the kraal in the morning of the 16th, I decided to go to the koppie.’ He said he does not remember being on the koppie before the 16th, even though a video still of a person very similar to him was shown.