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Daily updates from the Marikana Commission (Archive: May 2014 - April 2014 - March 2014 - February 2014 - January 2014 - December 2013 - November 2013 - October 2013 - September 2013 - August 2013 - July 2013 - June 2013 - May 2013 - April 2013 - March 2013 - February 2013 - January 2013 - December 2012 - November 2012)

11 June 2014

Advocate Dumisa Ntsebeza SC started cross-examining Lieutenant Colonel Kaizer Modiba.
Mr Modiba said the strikers who were killed at scene 1 were trying to attack the police.

“When following the strikers who fled to the mountain we planned to allow them to lay down their weapons but they charged at the police and had to be arrested. The follow up to koppie 2 and 3 was to clear the area where the strikers ran and to effect arrests because they were armed when they went there. By clearing the area, we were retrieving guns and dangerous weapons. We were hoping the strikers were going to lay down their arms and if that failed there was going to be another attempt of encircling, dispersing and disarming them. But this changed after the attack on the police and we thereafter had to effect arrests,” he said. 

The witness told the Commission that it is possible that some of the strikers were in hiding while others were charging at the police. He said warning shots were aimed at the ground and that it is possible they could have ricocheted and hit some of the strikers who were in the area.
Lt Col Modiba denied issuing an instruction to fellow SAPS members use their firearms.

Mr Modiba testified that he told SAPS members under his command about Section 49 of the Criminal Procedure Act, which states that when defending oneself the level of force used must be proportional to the threat and should not be excessive.

Advocate Ntsebeza told the witness that it is possible that some of the strikers were shot at while raising their hands trying to surrender.
“I’m not aware of any strikers at scene 2 who may have been shot while trying to surrender. I have not received any report where there were allegations of cops who shot strikers while they were raising their hands,” said Col Modiba. Advocate Dali Mpofu commenced his cross-examination of Lt Col Modiba.

Adv. Mpofu said two of the shots fired by Lt Col Modiba may have killed one or some of the strikers, who were killed by high velocity firearm, such as an R5. The witness said he did not have an R5 on the day as he only carried a pistol.

“Saps members in my group with pistols and R5 rifles fired warning shots in the ground. There could be a possibility that some strikers were killed as a result of the bullets that ricocheted. A warning shot should be fired when a police officer sees some danger; and if the danger persists then the threatening person should be fired. But if the danger does not persist then one does not have to fire at the person. In some situations you cannot fire warning shots as the danger may be imminent. If a person is killed by a warning shot, this may be justifiable and it will depend on the situation,” continued the witness.

10 June 2014

Advocate Mathew Chaskalson cross-examined Lieutenant Colonel Kaizer Modiba.

Mr Modiba told the Commission that he was standing and observing behind the TRT when the aggressive group came around the kraal in Marikana on 16/08/2012.

Advocate Chaskalson asked the witness why he did not deploy some of the 96 medically trained police officers to help the injured. “I don’t remember having first aid equipment then. If I knew that we had the equipment I would have deployed them. I did not make any enquiries about the availability of first aid kits,” said the Lt Col Modiba.

“If at scene 1 some police officers were shot and lying wounded and bleeding on the scene, would you not have assisted them as a matter of priority?” asked Mr Chaskalson. Colonel Modiba said efforts still had to be made to get the medical team to tend to the injured. The witness continued to say that he was not in front with the TRT line before the arrival of the paramedics and he was therefore not able to assist the injured.  

Lieutenant Colonel Modiba said he cannot dispute the fact that he could have walked up to the TRT line and asked if he could help with the injured strikers, since TRT does not have 1st aid training. “I could have done that; it could be that I failed to do it if I had to. As the SAPS, it is our duty to assist the injured, regardless of whether it is a suspect or not,” he added.

“During the confrontation between the NIU line, some strikers were ordered to lie on the ground. Those that were hiding under the rocks were brought under the physical control of the police officers. They were brought from the rocks to be searched. I did not observe anyone carrying a dead or injured striker,” said Mr Modiba.

Advocate Chaskalson said Mr Thelejane (one of the deceased strikers) was not facing the person who shot him and he would not have been able to move before he died and therefore he could not have been part of the charging group of strikers.

05 June 2014

Mr Michael Gomes Da Costa, Vice president of Lonmin’s Karee mining operations testified under Adv. Geoff Budlender’s cross-examination.
Mr Da Costa said that Lonmin did not want to negotiate with Amcu because it was a not a recognised union. Advocate Budlender said Lonmin was, in effect, saying to the strikers that: “We will speak to you but only through people that you do not trust, people who do not represent you and who also don’t support the strike.”

The witness said Lonmin’s intention was to stay within existing and recognised bargaining structures. Adv. Budlender said this meant there would not be any effective communication between Lonmin and the strikers. “I disagree. Our intention was not to collapse the established negotiations structures and we wanted to use these,” replied Mr Da Costa.

Mr Budlender said it was cynical for Lonmin to say they only wanted to negotiate through established structures.
Advocate George Bizos started his cross-examination.

Mr Da Costa said during the strike in Marikana, Mr Ian Farmer was Lonmin’s CEO and Simon Scott was the CFO.
The witness agreed with Adv. Bizos that you need good negotiators in order to try and settle the differences between two parties. He added that in some instances good mediators are needed to bring the parties together. “The perception that the employers are always sitting on a bag of money is not true,” he said.

The witness added that after the events of the 16th all parties softened their positions, mediators came in and assisted.
Mr Bizos asked whether the witness felt that had he or Lonmin negotiated with the workers earlier on, the tragedy may have been avoided. “Before the events of the 16th there were considerations of whether the strikers would have been agitated had we engaged with their delegates on the koppie and told them we could not afford what they had requested. I did not think that anything like the shootings in Marikana could ever possibly happen,” he replied.
Did you realise that workers did not want the police intervention between the dispute with them and Lonmin. Mr Da Costa said the actions and animosity of the strikers at the koppie would have suggested that they did not want the police there. “There were a lot of assaults and killings and I think the police had to be there.”

Advocate Karel Tipp on behalf of Num and the wife of the late Mr Fundi, started his cross-examination.
When asked if Lonmin investigated the incident of the 12th when the two Lonmin security guards were killed, the witness said yes and that there was a report produced.

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