News: December 2012

20 December 2012

Advocate Lesego Mmusi, on behalf of the injured and arrested, asked Brigadier Mkhwanazi about the police’s ‘shoot to kill’ stance. “Former Minister Charles Nqakula once said that if a person points a firearm at the police then that person must be shot.” Brigadier responded by saying that it depends on the situation. “If the intention is to kill, then the police have a right to shoot that person in self-defence.”

On the 16th of August 2012, there were 45 Public Order Police (POP) members deployed as a monitoring group. There was an additional 53 members who were deployed with a barbed wire. Adv. Mmusi asked if it was possible for 98 POP members to manage a crowd of thousands of armed protestors. “It is possible, with the assistance of other members (TRT, STF, etc.). Together they can dispose, encircle, disarm and arrest,” said the Brigadier.

Brigadier Mkhwanazi refused to answer or confirm if the deployment of a barbed wire would have triggered movement from the protestors from the protestors. “Generally, a barbed wire is used to protect properties during strikes and to channel protestors in a certain direction.” He however denied that a barbed wire is sometimes as an aid to effect arrests. He further said he does not know what prompted the move from koppie 1 after the deployment of the barbed wire.
After the deployment of the barbed wire, some protestors thought they were being surrounded and they started leaving in different directions.

Adv. Mmusi said that evidence will be led that after the 8 second shooting on 16/08/2012, went searching and checking the dead and injured and finished off those who were not dead. “Furthermore, protestors who fled to koppie 2 to hide, were shot at even after surrendering their weapons and had their hands in the air. Brig said this is not in line with the training offered to the police. Adv. Mmusi asked if the six barbed wires were sufficient for cordoning off the koppie given the number of protestors. Brigadier Mkhwanazi said he would be better placed to answer if he knew the size of the koppie.

19 December 2012

The day started with disagreement when Bizos and Semenya differed because Brig Mkhwanazi was asked to comment on expert advice. Semenya complained that his witness was not afforded enough time to study the notes so as to give expert opinion.

When it was put through by Bizos, Brig agreed that South Africa is comparatively a violent country. Brigadier agreed with Adv. Bizos that it would have been better if the protestors were arrested from their homes, as they were walking to the koppie, instead of dealing with thousands by dispersing them with water cannons and teargas. Brig said that the reason why this was not done is because there was an agreement the day before that the protestors would leave their weapons at home. Brigadier said he cannot comment on the statement made by Provincial Commissioner Mbombo about ‘today being D day,’ as he said he did not why this was uttered.

Mr Bizos said that had a warning been given before the deployment of the barbed wire, loss of life could have been avoided. Brigadier said some people were leaving the koppie without being stopped. Brigadier further said procedurally a warning should be given before the deployment of a barbed wire. Bizos insisted that if the wire was meant to protect the police and the media, there should have been a warning made to the crowd. Again Brigadier Mkhwanazi refused to condemn the South African Police’s lack of warning to the protestors as he does not know the circumstances during and before.

Bizos asserted that in operations it should be known by all as to whom the commander is and that the person in charge should give the order to ‘shoot’ if necessary. Brigadier vehemently disagreed with Mr Bizos that there was supposed to be someone to give an order to kill. Brigadier again repeatedly refused to answer many questions posed to him by Bizos because he was not there. “I will not answer questions just to please you.” Bizos asked: “do you not train your pupils that killing should be a last resort? Killing should never be an option unless it is done in self-defence.

Killing should be proportionate to the crime or threat. George Bizos further asked what Brigadier Mkhwanazi will say if asked that why did more than 15 people die and not a single police had a scratch. “I will have to first get all my facts straight and even do in-loco inspection.”

18 December 2012

Cross-examination of Brig Mkhwanazi continues. He still refused to condemn any of the actions of the police for the unfortunate loss of life that occurred on 16/08/2012. Brigadier agreed that the task of the Special Task Force is to handle high-risk operations that fall beyond the scope of classic policing.

When asked by George Bizos SC, Brig again refused to be forced to say that some of the decisions taken by the police were wrong, and he again reiterated that he was not involved in the Marikana labour dispute. He denied that usually the police would provoke a crowd of protestors to hostility and he mentioned that the police’s duty is to peacefully disperse a crowd. “The police should not choose sides in a labour dispute between employer and employee and should not be biased in any way,” said the Brigadier.

The Brigadier said that he has never heard of a plan to disarm and arrest 3 500 people, to which Bizos said it is an unprecedented and ‘crazy plan’. Brigadier Mkhwanazi said splitting the crowd into smaller groups and then disarming them possible and achievable. Bizos stated that in the police’s plan, there was no sufficient provision for handcuffs and further asked how many handcuffs did the police bring on the 16th/08/2012.

13 December 2012

Brigadier Mkhwanazi continued to give testimony on the operations of Public Order Policing and managing protests. He explained that Public Order Policing before 1994 is different from now since protests are now protected by the Constitution. In the Marikana incident, Brig testified that the cause of the strike should be first ascertained and the behaviour of the strikers should then be assessed.

“General Mpembe was correct when he pleaded with protestors to lay down their weapons; dialogue is important in this regard.” He endorsed the SAPS operational plan and said it was appropriate to deal with the situation. He further agreed with the implementation and execution thereof. He says that from all the plans and the operations on the 16th/08/2012, he is confident that the SAPS acted within the law.

When asked about the fact that striking workers were shot at without any warning, Brig said that this was because there was no opportunity given for warning shots to be fired.

12 December 2012

Marvellous Mpofana, one of the injured who was represented by Dali Mpofu, is sad to have committed suicide due to trauma over the 5 day adjournment. On behalf of the Commission, judge Farlam conveyed.

Mathunjwa said that on 11/08/2012, workers were at the koppie because it was a safe place for them since they were shot at by some union members.
On 16/08/2012 Mr Mathunjwa says he had expected to meet Lonmin management at 08:00am so that he would be able to address the workers at 09:00. Had Lonmin met Joseph Mathunjwa, he says he would have reported back to the workers and a peaceful resolution would have resulted. He confirmed that he expected a breakthrough when after addressing workers; they said that he should come back and address them the following morning.

Mr Mathunjwa further blames management for not holding a meeting on the 10th which he had requested. The meeting was to include all stakeholders and was eventually called but did not include Amcu. At the Joint Operation Centre (JOC), Mathunjwa says there was a lot of interaction between NUM, Lonmin and SAPS.

In his testimony, Mr Mathunjwa says he did his best to calm the workers and pleaded with them to lay down their weapons and stop the violence. His aim, he says, was to quell the situation and avoid any further bloodshed. Joseph Mathunjwa agreed that he told the workers to go back to work and lay down their weapons implicitly and not explicitly. He says he spoke implicitly because of the volatile situation and because not all the striking workers were Amcu members.

Brigadier Zephania Mkhwanazi from the SAPS was the next witness and he was questioned by Vuani Ngalwana on behalf of the SAPS. Brig Mkhwanazi says he joined the SAPS in 1986 as a student constable and he did his basic training in 1987. He did training in riot control. He worked in Alexandra riot unit or POP, where he was responsible for operations. He also did presentations and trained some officials in the Head Office. He worked there from 1987 – 2004.
Mkhwanazi explained the legal framework around enforcing Public Order Policing and mentioned the Regulation of Gatherings Act and its provisions amongst others. Brigadier says he was not involved in the events of the 16/08/2012 and he played no role in the planning of the days before.

He further said that it would be unfair for him to express an opinion in the planning or execution of the POP for the Marikana strike because he was not involved from the onset and he does not have all the facts. “POP’s training does not prepare its members for situations where they deal with heavily armed protestors with different kinds of weapons.”

04 December 2012

NUM’s legal counsel, Mr K Tipp, refuted most of the allegations that were made against NUM. Mr Dumisa Ntsebeza, on behalf of the families of the deceased and families of all who died on 16/08/2012, stated that 17 of the deceased are Amcu members, 10 from NUM and 7 were un-unionised. In Lonmin, Ntsebeza says there was no love lost between the leadership of NUM and Amcu.

An article that was published in the mining yearbook on 02/08/2012 and appeared again in the City Press on 18/08/2012 stating that in 1999, 3000 workers protested for two weeks against the axing of Joseph Mathunjwa, who was then NUM branch chairman in Duncan Colliery mine. An investigation that followed is said to have found that there was no reason to discipline Mr Mathunjwa.

When asked by Adv. Dali Mpofu, on behalf of the injured and arrested, Joseph Mathunjwa admitted that he is a Christian and that he has worked in the mines for over 25 years and in all that time he has never heard of miners believing that they are invincible or invisible to bullets.

One of the protestors is alleged to have said that ‘the police should leave this place or we will finish them here’ and the other protestors are the said to have laughed. Because of this laughter, Adv. Mpofu is says that these words were not taken seriously. Mr Mathunjwa replied by saying that this depends on an individual’s interpretation. Mr Mathunjwa said that no one stopped from going back to the koppie and he further denied having seen Bishop Seoka on 16/08/2012.