News: April 2013

29 April 2013

Major General Annandale was cross-examined by Adv. Budlender.

Maj. Gen Annandale explained that the police had reasonably believed that weapons would be put down and that this depended on partnership with the different role players. He also mentioned that Provincial Commissioner Mbombo only became aware that the weapons would be put down only after the media briefing.

Advocate Budlender read through a number of documents including General Mbombo’s statement and the police presentation ‘Exhibit L’ which made no mention of the implementation of stage 3 being necessitated by the escalation of violence. These documents state that stage 3 was triggered by the protestors’ failure to hand in their weapons.

Exhibit L states that ‘after evaluating the situation and reports from the ground.’ Maj. Gen Annandale said that these words are very broad and they mean that there was an escalation of violence.

“In the meeting on the evening of 15/08/2012 between the Provincial Commissioner and the National Commissioner it was decided that stage 3 would be implemented,” said Adv. Budlender. Maj. Gen Annandale replied by saying that he was not in the meeting and he therefore cannot speak on the issue.
Advocate Budlender stated that if the Provincial Commissioner had decided on the night before that stage 3 would be implemented if the protestors did not hand over their weapons then it means for her the trigger was not the escalation of violence.

Major General Annandale said that he first heard of the shooting on scene 1 at 16:30 or afterwards on the 16th of August 2012. Advocate said that by that time the shootings had occurred.

24 April 2013

Adv. Ishmael Semenya, acting on behalf of the South African Police, continued with leading Major General Annandale on his evidence- in- chief.
Maj. Gen Annandale testified that all standing orders were complied with when drawing up the plan for the Marikana operation.

“We intended to arrest, there would be space for 170 persons to be arrested but it was not the number we had envisaged arresting. During an arrest there is always a possibility for people to be injured but we tried to mitigate that risk by breaking up a bigger group into smaller more manageable groups,” said the Major General.

He further said that Mr Gary White misunderstands the operation in terms of filming people to be arrested. He said the video recordings as proposed by Mr White would not have assisted in preventing injuries to people. The Major General further reiterated that it was not the intention to arrest so many people.
“Our plan was based on different phases, such as sector policing, high visibility policing, negotiations and other phases. It was not foreseen that the use of live-ammunition would be needed. The barbed wire was deployed to discourage any approach towards the police line. There wasn’t an offensive action by the police, it was defensive. When a barrier is being created it usually does not attract people towards it.”

When asked why, in the Reuters video, some police officers are shooting while others are not; Maj. Gen Annandale said it is difficult for him to comment since every individual has his or her perception of threat. He further said the police did not foresee this.

Major General Annandale spent most part rebutting or disagreeing with many of Mr Gary White’s criticism of the SAPS Marikana operation.

23 April 2013

Major General Annandale testified that stage 3 was considered as a last resort because there was a breakdown in communication and protestors refused to lay down their weapons. Stage 3 was meant to disperse into smaller groups, encircle and disarm. This process included deploying the barbed wire to enclose the SAPS safe area to prevent advancement onto SAPS by armed protestors and it included the use of water cannons, stun grenades, tear gas and rubber bullets. The Tactical Response Team (TRT), National Intervention Unit (NIU), Public Order Police (POP) and the Special Task Force (STF) all had roles to play in stage 3.

When asked if he had heard, when the plan was drafted, that the protestors had used muthi that would render them invincible, invisible and invulnerable, Maj. Gen Annandale replied by saying no but that this was discussed at the JOC COM.

Major General Annandale said it was not foreseen that members of the front group might be killed and that the plan was to break the protestors into smaller groups without any loss of life.

‘We had two video operators from POP operating in the Nyala’s, two water cannons equipped with a camera system and we also had an arrangement that we had with Lt Col Botha that he should make video recordings while airborne,’ said the Major General.

‘I left after 08:30 with Lt Gen Mbombo to attend a press briefing together with some senior police officials. Upon my return I was updated on what happened in my absence. At around 09:00am it was reported that hundreds of people, some heavily armed, were moving towards the koppie from different directions.’
The Major General further testified that the police line was less than 400 metres and that it is not true that it prevented people who wanted to leave the koppie and that there was a huge area open for anyone who wanted to leave the koppie. He denied claims that the barbed wire was deployed to encircle the protestors. He said 1,3km’s of barbed wire would be needed in order to encircle the entire koppie.

‘The barbed wire did not disturb movement on the right hand side of the big koppie. The informal settlement was accessible without going through the police line.’

22 April 2013

Major General Charl Annandale who serves as the Component Head of Specialised Operations in the SAPS started giving testimony at the Commission.
When asked by Adv. Ishmael Semenya, Major General Annandale testified that he had not been involved in an operation as big as the one in Marikana which had so many armed protestors. He also testified that Lieutenant Colonel Scott was asked to intervene in the Marikana operation because he is known to have exceptional planning abilities and that he did operational commander training in 2002 which involved planning for crowd management operations where he was the best performer. Lt Col Scott was also one of the planners of the 2010 Soccer World Cup and the COP17 summit. These are among the reasons why he was asked to coordinate planning for the Marikana operation.

When the National Police Commissioner General Riah Phiyega arrived on the 13th of August 2012 at the Joint Operation Centre (JOC), she was accompanied by Lieutenant General Petros, Provincial Commissioner Mbombo, Lt Gen Naidoo, Mpembe and other senior SAPS officials.

In the meeting that we had with Lonmin, we were told about the two conflicting unions and we were also given an overview of the entire situation. Lonmin indicated that they were unable to conduct any wage negotiations because of the existing two year wage agreement they had entered into with the workers.
On the 14th, the meeting at the JOC was attended by Major General Mpembe and Naidoo, Brigadier Calitz, Brigadier Van Zyl, Brigadier Seboloke, Brigadier Fritz and Brigadier Tsiloane, Lt Col Scott, Public Order Policing commanders, commanders from the K9 unit, air wing unit and the Tactical Response Team (TRT). I requested for negotiators from the National Coordinator for Hostage Negotiators Lieutenant Colonel (Dr) Strydom and Lt Col Mcintosh and three other negotiators, of which one was a psychologist, were dispatched. The aim was to negotiate with a view to finding a solution, including that the striking workers must return to work, but the negotiators were not to negotiate on any labour relations issues. The negotiations were to be conducted from the Nyala armoured vehicle using a public address system. An interpreter was also required as the group spoke in Fanakalo.

Maj. Gen Annandale testified that in the meeting on the evening of 15 August 2012, AMCU president Joseph Mathunjwa indicated that he was convinced that the group will lay down their weapons the following day, on Thursday 16 August 2012. However, he did not make a promise on this matter.

17 April 2013

Legal Counsel for the families of the deceased, Adv. Dumisa Ntsebeza, commenced with the cross-examination of Ms Phiyega.

On the matter of Mido Macia, General Phiyega confirmed that she suspended the officials concerned. “When I suspended the police officers, I did not consider the fact that they had acted in self-defence,” said Ms Phiyega. The police Commissioner said there were no police officers who were arrested for their involvement in the Marikana shooting because the Independent Police Investigative Directorate (IPID) and the Marikana Commission of Inquiry were busy with the investigations.

The Police Commissioner confirmed that the IPID has the power to effect an arrest should a police officer be found guilty of a crime. She also said that the IPID reports to the Minister of Police and that they are independent and not answerable to her.

“At the Potchefstroom meeting, did you ask if there was video footage of the happenings at Marikana?” asked Adv. Ntsebeza. Ms Phiyega replied by saying that Provincial Commissioner Mbombo, as the head of the entire operation in Marikana was the one to ask such questions. She mentioned that she was at the meeting to be briefed.

“To my understanding, we have submitted all that we have and the incompleteness of video material has a reason because the plan was disrupted. It was a cause of concern and frustration that my instructions were not complied with.”

The National Police Commissioner said her commanders will come and give explanations for the lack of video footage. “Our videographers were seen as spies and therefore had to retreat and that’s why they couldn’t take footages. This is understandable because their lives were in danger and that is the disrupting factor.”

“What should I tell those I represent when they ask why the international media were able to capture the happenings in Marikana and the SAPS could not because they withdrew two hours before the operation was carried out,” asked Adv. Ntsebeza. General Phiyega replied by saying that he should tell them that the police were in danger and that is why they had to be withdrawn. The commanders will explain in detail why there are video footages missing, including those from scene 1 and scene 2.

16 April 2013

Adv. Tim Bruinders on behalf of Amcu commenced with cross-examining the National Police Commissioner.

On the meeting of the 10th of August 2012, Ms Phiyega testified that she did not ask minute details of the plans that were to be put in place by the SAPS. “I asked North West Provincial Commissioner Mbombo whether she had sufficient manpower because it is my duty to ensure that capacity is available. I was then satisfied that she had matters under control and I was confident that she and her team were handling the situation well.”

When asked about the purpose of the meeting on the 13th of August 2012, General Phiyega said the meeting was meant to discuss faceless people unknown to Lonmin; and after examining the pictures it was established that they were indeed Lonmin employees.

“The meeting on 13 August 2012 provided me with an overview of what was happening in Marikana and I further understood the Provincial Commissioner to be in charge of the entire operation. We encouraged Lonmin to meet with the unions and to find a solution to the strike. Our aim was to get Lonmin to talk to its workers, regardless of union affiliation. I emphasised the principle of achieving a peaceful solution.”

‘All Provincial Commissioners inform me if they need additional capacity.’

Adv. Bruinders said that Amcu will ask the Commission not to believe the national Commissioner. “If you had the time to identify employees on pictures then you should have had the time to tell your commanders to obey your national instructions,” said Adv. Bruinders.

Ms Phiyega replied by saying that the issue of Lonmin saying that they had ‘faceless protestors’ was very critical to her and that is why she invested so much of her time on the matter. “I knew that the police officers knew the importance of following the national instructions and that they would follow them,” she continued.

This was a POP operation and exhibit L slide 211 

05 April 2013

Adv. Dali Mpofu, on behalf of the injured and arrested, started cross examining the National Police Commissioner.

Ms Phiyega said that on the matter of tampering with evidence at the scene of the shootings on 16/08/2012, she commissioned people to investigate and that shows that she did not neglect her responsibilities and she looked on all the evidence and concluded that there is a rational explanation.

In the matter of the NIU Constable ‘finishing off’ an injured striker, Ms Phiyega said that she decided to refer the matter to IPID since there was a life lost. ‘In the tampering with evidence case, we decided to investigate the matter ourselves as SAPS since there was no life lost.’

The Police Commissioner further said that should it be found that the police were involved in the killing of the Inyanga who was performing rituals for the striking workers at the koppie, then IPID will investigate.

“Adv. Madlanga had deduced the number to two NIU Constables, in the matter of the striking worker who was finished off. The two being Constable Harlam and Constable Thafeni; since its only two it could be easy to identify the alleged culprit,“ asked Adv. Mpofu. Ms Phiyega refused to confirm this and said that the matter is in IPID’s hands.

“If it is found that the police breached any one of the ten principles that symbolize crowd management, would you agree that remedial action should be taken against the police?” General Phiyega replied by saying that the matter would have to be looked at, focusing on both sides and that remedial action would be taken if deemed necessary.

04 April 2013

Mr Schalk Burger, on behalf of Lonmin continued with his cross examination.

Ms Ria Phiyega said that on the 12th of March 2013 she looked at where she did not sign (on page 7) and then she signed. But she placed on record that she did not read page 7 because she knew the contents therein. “What did the Minister of Police say when you told him of the shooting on 16/08/2012?” ‘He wanted to know what we were doing and I said we are attending to the matter and we will keep him updated. The Minister was satisfied that we were attending to the matter and he did not give any instructions.’

“As the Commander in chief of the South African Police will you accept responsibility if the Commission finds that the police exceeded their boundaries when acting in self-defence?”

The Police Commissioner said that she does not want to respond to that assumption and that a decision on the course of action to be taken will only be made after the Commission has made its findings.

03 April 2013

Advocate Malindi, on behalf of Human Rights Commission commenced with his cross-examination.

When it was put to her by Adv. Malindi, the Police Commissioner refused to agree that what happened in Marikana was disastrous but said that it is regrettable and that the police’s aim was for a peaceful resolution. She again said that the police had a plan which was disrupted and which resulted in an unintended outcome.

Adv. Malindi asked if General Phiyega knew that during the strike, there would be about 50 striking workers in the morning and a few hundreds around midday and the number grew to some thousands in the afternoon. The Police general said she was not operational and she had officials who were tasked with monitoring the situation and she further said that they will come and answer those questions.

Ms Phiyega said that she was informed by Gen Mbombo of the decision to implement stage 3, which was to encircle, disarm and disperse around 3000 striking workers and that she endorsed the decision on the 15th, even though she was not involved in the decision-making process. She further said that the North West Provincial Commissioner has all the powers to take the decision.   “We will submit that the situational analysis was not correctly done,” said Adv. Malindi.

The national Police Commissioner refused to agree that the protest action could not have harmed any surrounding businesses or members of the public. She said there were media people, paramedics, properties and others that were at risk. She further denied that what happened in Impala platinum mine and Kwezi platinum mine between January and August 2012 was a carbon copy of the incidents in Marikana.

“Mr Gary White says that there was very poor intelligence gathering by the police and that they didn’t know if the protestors had any weapons and if so then what kind and how many,” said Adv. Malindi. General Phiyega replied by saying that the SAPS supports peaceful protests and when strikers are armed the police have a duty of ensuring that law enforcement takes place.

General Phiyega insisted that she is not critical of Warrant Officer Hendrick Wouter Myburgh’s statement and that she is just concerned that he did not look at the NIU Constable’s name badge. ‘We will wait for the Independent Police Investigative Directorate (IPID) to conclude their investigations and then await their recommendation.’

When asked if she can point to any deficiencies in the SAPS that have been identified throughout the review and debriefings that have taken place, Ms Phiyega said that that type of exercise has not been done for now mainly because of the Commission of Inquiry and she nonetheless conceded that it is important for it to be done.  

“All the expert’s statements and opinions that are critical of the police’s operation in Marikana will be looked at and taken into consideration by the SAPS,” said the Police Commissioner. She further disagreed with Adv. Malindi’s view that the deaths, injuries and extensive damage to property was because of poor planning by the SAPS.

Mr Schalk Burger SC, on behalf of Lonmin, commenced with cross examining the witness. Mr Burger said that when writing an affidavit, the commissioner of oaths should have no interest in the contents of the affidavit, to which Ms Phiyega said that she drafted and wrote her statement with inputs from some people.

Mr Burger showed the police Commissioner a statement which she had written and signed on 07/03/2013, wherein all pages were signed except for page 7 which does not follow page 6 and does not lead to page 8. Ms Phiyega insisted that page 7 does fit into her statement and that the statement is hers and she stands by it. She said the reason why page 7 was unsigned was because it was a mistake which she later corrected. Mr Burger insisted that the original page 7 was taken out and replaced with another one.

When asked why the statement is not initialled, the police Commissioner replied by asking, ‘do people not make mistakes?’
“You were not there when the Commissioner of oaths signed the statement. You did not read the document because page 6 does not follow page 7, which does not lead to page 8 and that is why we say you were not there when the statement was written.” Ms Phiyega vehemently denied this.

02 April 2013

Advocate George Bizos said that an expert will argue that it was not the crowd who disrupted the plan but it was the police who disrupted the crowd. He further said that when the police putting up a razor wire that it was a provocative act towards the striking workers. The use of stun grenades and water cannons without warning or explanation by the police was a provocative act. Ms Phiyega said her communication with the Minister of the Police was mainly to keep him abreast of the developments in Marikana.

When asked if she doubted Warrant Officer Hendrick Myburgh’s statement, the Police Commissioner replied by saying that a matter should be investigated and facts should be sought. “As a Warrant Officer, I would have expected Myburgh to follow up the matter of the injured striker who was finished off by the National Intervention Unit (NIU) constable, especially since the Constable is junior to him. However, he did not check his name badge nor could he remember what he looked like,” said the General. The Police Commissioner said she does not have the evaluation/debriefing report and did not ask for one because she wanted all efforts to be focused on the Commission of Inquiry.

“Not only have you come here with no answers, you have evaded personal questions put to you and instead of helping the Commission, you have pretended to be ignorant of key details,” said Adv. Bizos. “I do not agree with you, but I have presented the facts as I know and I have done my best to assist the Commission. And what has been put to me is character assassination,” replied Ms Phiyega. “We’ll argue that you have placed the narrow interests of the police above those of the country,” continued Adv. Bizos.