News: MAY 2013

28 May 2013

Ms Phiyega disagreed with Adv. Mpofu when he said that since the police officers used maximum force in Marikana, this then means that the SAPS members breached the prescripts that state that only minimal force may be used. She said that the Constitution states that people may gather peacefully, unarmed and that the Marikana operation was unprecedented.

“I will argue that there was no attack to necessitate self-defence by the police officers during the Marikana operation.”
Advocate Mpofu asked if General Phiyega knew that the Marikana operation was principally aimed at the protesters who did not want to leave the koppie because they were to be searched; to which the Commissioner replied by saying ‘no’.

Adv. Mpofu argued that this was wrong because there are two requisites for the implementation of stage 3 which were not in place but the stage was implemented nevertheless; the requisites are:

  1. That the striking workers should drop their weapons and
  2. And that they should leave the koppie

When asked about the process of deploying different police units, the Police General replied by saying that if there are matters in one province then the Provincial Joint Operations Centre will handle the deployment of the various units from within the particular province. The National Joint Operations Centre would intervene for external help.

“Provincial Commissioner Zukiswa Mbombo has the right to manage the province including responding to events at Marikana, setting up according to protocols any team needed to address the issues,” continued General Phiyega.

“If it turns out that the police officers did not follow a measure in the prescript, what will you do to make sure it doesn’t happen again?” asked Adv. Mpofu. General Phiyega replied by saying that as a result of the outcomes, the SAPS will look at relevant remedies and interventions.

27 May 2013

Advocate Dali Mpofu continued with cross-examining General Riah Phiyega.

The National Police Commissioner insisted that she did not discuss any political issues with the Minister of Police. She also said that as far as she knew, the Minister of Police was not involved in the day to day operations in respect to the SAPS’s Marikana operation.  

When told that Senzeni Zokwana telephoned Minister Mthethwa to ask for more police deployment in Marikana, Ms Phiyega said she does not know and is unable to answer if this constitutes political involvement. The Police Commissioner said that during all her engagements with the Minister of Police, the main concern was the situation in Marikana and that there was never any mention of names.

When asked what did the Ministers political advice constitute, Ms Phiyega replied by saying that nothing of a political nature was discussed. “Mr Zokwana is not an SAPS member and I do not know his discussions with the Minister and therefore I cannot comment on this.”
Ms Phiyega said she doesn’t know why Provincial Commissioner Mbombo skipped Lieutenant General Mpembe when giving the instruction to commence with stage 3 and gave it to Annandale.

Advocate Mpofu asked if Ms Phiyega knew that the SAPS Act states that ‘where a member on official duty is authorised by law to use force, that he may only use minimal force’. The National Police Commissioner said that she is aware and that there other sections of the Act that gives SAPS members other powers depending on the circumstances.

“I’m going to argue that under no circumstances that more than minimum force may be used,” concluded Advocate Mpofu.

23 May 2013

Advocate Dali Mpofu continued with cross-examining General Riah Phiyega.

Adv. Mpofu started the day by rehashing most of the questions that were covered the previous time when the National Police Commissioner was being cross-examined.

Adv. Mpofu said that despite General Phiyega’s explanation, most people held the view that she thanked the police for having killed the striking workers.
“In my responsible position and being a human being, I can never celebrate death. The police had been working many hours and we were mourning and I expressed my sense of condolence; whether it is expected or not it is nevertheless the truth or sincere. As the police, we needed to continue to do our work in bringing stability in Marikana. And that’s why despite the difficult circumstances, I had to encourage them to continue doing their work.”
She denied the fact that the police were mourning the death of fellow police members and celebrating the death of striking mine workers. She said this interpretation is wrong.

When asked about a Sowetan article, dated 20/08/2012, where she is quoted as saying that the police are not sorry for what happened in Marikana. “I hold no authority on what a journalist writes. The scripted speech I read is nothing like what is being reported by Sowetan. There were a number of different reporters at the event and it would be interesting to see what other newspapers wrote. I disagree with what is being reported by the Sowetan,” said the police General.
Advocate Mpofu said that they will argue that shots that were fired after the call for a ceasefire were done out of the police prescripts. The national police commissioner said that the police commanders who were at the scene will have a different view.

On a video clip that was played one police officer is heard saying, “I’ll shoot you”. Adv. Mpofu asked if this represents the best of responsible policing and professionalism. General Phiyega said she doesn’t share Adv. Mpofu’s interpretation. Adv. Mpofu said he will argue that the Police General is evading simple questions.

Adv. Mpofu also asked if it represents the best in responsible policing when a policeman drags an injured or deceased person on the ground. Ms Phiyega replied by saying that it depends on the circumstances and the commanders on the scene will be best placed to answer.
Advocate Mpofu further asked if it represents the best in responsible policing when SAPS members remove weapons at a crime scene. “I cannot answer on that; if police officers on the scene perceived danger, then they may have deemed it necessary to do so. The context, which I and you don’t have now, is important in this regard. A police officer who is in operation will tell you what they do when they are in that kind of situation. Again, the context is very important.”

A video clip showing a policeman kicking an injured striking worker lying on the ground was shown. “As a National Police Commissioner, will you do all in your power to call the people in the video to explain what they were doing,” asked Adv. Mpofu. The SAPS legal representative, Adv. Ishmael Semenya said they will call one of the police officers on the video to come and testify at the Commission.

22 May 2013

Advocate Dumisa Ntsebeza continued to cross-examine Major General Annandale.

The Legal counsel for the families of those killed on the 13th and 16th of August 2013 said that they will submit that the police knew and foresaw that the different units were going to use sharp ammunition because that is what they use and carry all the time.

General Annandale replied by saying that the units were not deployed by the National Commissioner. He again said that the TRT and NIU were already at Marikana by the time he got there and that he did not facilitate their deployment to Marikana and that he only deployed the STF.

“The use of sharp ammunition was not part of the police’s plan and sharp ammunitions are not used for dispersal actions. On scene 2, even POP members used sharp ammunition. The use of sharp ammunition at Marikana was because of self-defence and private defence.
Adv. Ntsebeza insisted that fatalities were foreseeable when the TRT, NIU and the STF were deployed.

“We did not foresee fatalities according to the plan. We have to note that the STF did not fire any weapons,” replied the General.

Advocate Ntsebeza further submitted that it was improbable for someone who was at Marikana, like the Major General, to not have known that at 16:31 the shootings had occurred, when it was already in the news worldwide by that time.
Advocate Ntsebeza’s cross-examination ends.

General Annandale made an apology to the families of the deceased for the loss of their loved ones.
“I want to say that my heart goes out to all the family members who have lost a loved one. I am aware of the gap that it leaves in everybody’s lives when a when a loved one is lost. I know that breadwinners, fathers, brothers and husbands were lost. The lives of SAPS members were deeply affected by this incident,” said the Major General.

“In these circumstances, the apology would be best made in person and I would urge that if the General wants to speak out then he should arrange, through this forum and through the lawyers, to do so with the families; then his words would be better received as the wounds are still raw. Dialogue should be encouraged and anger should be expressed but at the end there will be forgiveness,” said Advocate Ntsebeza.

Advocate Mpofu said that he had told the National Police Commissioner that he was hoping that she would engage the families privately; away from the glare of the cameras and that a better result may then be obtained. “If the Commission is able to facilitate such a forum then we would request that this be done. We are willing to assist in this regard,” added Adv. Mpofu.

21 May 2013

Advocate Ntsebeza continued with cross-examining Major General Annandale.

Advocate Ntsebeza said that the police’s plan was ill-conceived and highly risky and it was not in line with tried and tested Public Order Policing principles and that an expert witness will testify that there were insufficient POP members to disperse the crowd.

Major General Annandale said that smaller group of the protesters carried dangerous weapons and the majority of the workers had traditional workers. He further said that the plan was not to disarm all striking workers and that it was expected that they would willingly lay down their weapons.

General Annandale testified that he did not know McIntosh before the Marikana operation.

“The National Intervention Unit (NIU) and the Tactical Response Team (TRT) were already deployed on Sunday 10 August 2012. The Special Task Force (STF) was brought in on Monday due to the escalation of violence at Marikana and it was important to someone who had the knowledge, skills and expertise to coordinate the planning for all the units. Prior to my arrival at Marikana, there already were a number of experienced personnel including Brigadier Calitz and Colonel Merafe,” he said.

“There is nothing called a Public Order Policing trained negotiator. The South African Police has a course where all negotiators are trained. Hostage negotiator and suicide training are the only two accredited courses offered by the SAPS,” he continued.

Advocate Ntsebeza said that if the police had deployed 1 300 POP members to Marikana then this would have made a meaningful difference; to which the Major General said that it would not have been feasible for all the POP members to be deployed to Marikana because there are a lot of incidents that require POP intervention around the country on a daily basis and therefore not all of the POP capacity could be deployed to one place as they are needed nationwide.
“According to Brigadier Mkhwanazi water cannons, pepper spray and teargas were supposed to have been used to avoid lethal equipment,” said Adv. Ntsebeza. Major General Annandale agreed and said that this was part of the police’s plan.

Adv. Ntsebeza added that according to the police’s plan, there were less than ideal number of POP members and less than ideal number of water cannons to have adequately dealt with the Marikana operation. General Annandale denied this and insisted that there were enough POP members and that the police’s plan was ended because of the disruption.

20 May 2013

Advocate Heidi Barnes proceeded with Major general Annandale’s cross-examination.

Adv. Barnes questioned why on 15/08/2012 Mr Joseph Mathunjwa was refused permission to go and address workers at the koppie without police escort but was allowed to go on the following day. The Major General replied by saying that an arrangement was made for Joseph Mathunjwa to be escorted by the police but he decided to go to the koppie on his own. “Joseph Mathunjwa was to told what was expected of him as a leader when he went to the koppie,” said Mr Mathunjwa.

Adv. Heidi Barnes said the reason why the SAPS did not provide escort to Mr Mathunjwa was because they were no longer interested in negotiations as they had already decided to go tactical. The Major General denied this and he said that SAPS negotiators were still there and that SAPS made arrangement for Joseph Mathunjwa to be escorted to the koppie.

Before 13:30 on 16/08/2012 SAPS decided to go tactical, JOC Comm meeting on was held at 13:30 because of this decision. General Annandale said the decision to go tactical was made at around 13:15 and one of the reasons to go tactical was because the police at the koppie were threatened. Threats were reported to have been made to the police by the striking workers at 11:20, 13:40 and 15:40.

The SAPS videographers are alleged to have withdrawn from the koppie because they were said to be under threat.

“At 13:25 it is recorded that Amcu leaders said they were going to speak to Lonmin and SAPS management. But by then SAPS had already decided to go tactical. If you truly believed that Joseph Mathunjwa could persuade the striking workers to lay down their arms and disperse then the SAPS would not have decided to go tactical while Joseph Mathunjwa was still addressing the workers. You did not Mr Mathunjwa any chance to finish persuading the striking workers,” concluded Adv. Barnes.

Advocate Dumisa Ntsebeza, acting on behalf of the families of those killed on 13 and 16 August 2012 by the police commenced cross-examining Major General Charl Annandale.

Adv. Ntsebeza argued that Lieutenant Scott was the author of the police’s plan and that in formulating it, he did not receive any input from anyone else. “The police reluctance to admit that their plan was drafted by Lt. Scott is because professionally, he was not the right person to draw up the plan. The plan that was accepted by JOC Comm was Scott’s brainchild and no change was made on it,” said Adv. Ntsebeza.  

17 May 2013

Adv. Heidi Barnes on behalf of Amcu, commenced with Major General Annandale’s cross-examination.

Major General said that it was initially commonly believed that the Marikana unrest was an Amcu strike. He said that the Marikana unrest was based on union rivalry and he said this was because of information received from a number of sources. Advocate Barnes said that during the Marikana strike, there were a lot of people who were suspected to not be Lonmin employees.

Adv. Barnes also said that on the 15th of August 2012 Lonmin had a meeting with both Num and Amcu and the SAPS did not convene a meeting with the two unions together.

It was placed on record that the police told the striking workers that if they lay down their weapons and go back to work then wage negotiations will resume. Adv. Barnes asked if the SAPS was not worried when Mr Mathunjwa reported that Lonmin would not negotiate with the striking workers even after they were to go back to work. Major General replied by saying that he was not involved in the negotiations and that General Mpembe was, more involved. “Retrospectively, there is no doubt that further efforts should have been made.

“We will submit that an attempt should have been made to engage with Lonmin before Mr Mathunjwa went to speak to the belligerent workers,” said Adv. Barnes.

16 May 2013

Ms Nokukhanya Jele, on behalf of the Human Rights Commission started the day with cross-examining Major General Annandale.

A video footage of Brigadier Calitz addressing police officers about the plan or strategy to be followed and about former African National Congress Youth League (ANCYL) president Julius Malema’s planned visit to address the striking workers at Marikana, was shown.

When asked how many videographers ought to have been used for the Marikana operation, General Annandale replied by saying that usually one or two are used but in retrospect he says five or more may have been needed. He further said that the recordings of the briefings are problematic because there is about 15 or more briefings all happening simultaneously.

Major General Annandale testified that one of the invitees at the Potchefstroom meeting was an independent facilitator; known as Brigadier van Graan employed at the SAPS Legal department. He confirmed that there was no one from the IPID.

When asked about the SAPS’ policy on cell phone usage policy by police officers while on duty, Major General Annandale replied by saying that the SAPS has official photographers and that he is not aware of any policy in that regard. “I do not know if there were any officers who took photos or cell phone footage with their cell phones and or camera’s,” said the Major General.

Ms Jele said that a request was made to all SAPS members who were involved at the Marikana operation and not only those invited to the Potchefstroom meeting, to avail all cell phone photos or video footage. General Annandale said he does not know if there was any response to this request, and that Lieutenant Colonel Scott should know.

The General said that the Joint Operation Centre was operational after 16/08/2012, he said however he was unsure if there are any minutes of this.
He confirmed that he was in the JOC on the 16th of August 2013 between 15:30 and 17:30 except for two or three times when he stepped outside to answer to take a cell phone call.

A video footage of an airborne helicopter was shown to the Commission and Major General Annandale said that the voices being heard on the SAPS radio are those of Lieutenant Colonel Vermaak and Brigadier Calitz.
The General pointed out to a number of discrepancies in the police’s OB book saying some of the times and entries are incorrect.

15 May 2013

Advocate Schalk Burger, on behalf of Lonmin commenced with cross-examining the witness.

Major General Annandale said that the South African police works with a lot of stakeholders in their fight against crime and that this is done because they usually need someone on the ground who will provide background information and who will provide continued assistance. As an example, he mentioned the fact that they work with SanParks in their fight against rhino poaching.

The General further said that there is nothing untoward about the SAPS using Lonmin’s facilities in the running of the Joint Operations Centre. He added by saying that it would have been impractical to have the SAPS’ JOC outside of Lonmin’s premises.
The Major General agreed with Adv. Burger that the SAPS’ usage of Lonmin’s CCTV cameras was a manifestation of a functional and responsible working relationship.

Major General Annandale also testified that the deployment of Lonmin’s medical personnel in such a big operation was normal.
“There were more than 30 officials at the JOC who were not SAPS officers and therefore there was nothing wrong with Mr. Botes being at the JOC. The Joint Operations Centre is not exclusively for the SAPS only, there are usually other members or stakeholders, for example the provincial traffic department. Though he was at the JOC, Mr Botes did not take part in any strategic planning by the police. The Protea Coin Group was not present at the JOC and they were not part of the police’s planning. Protea Coin is responsible for the protection of Lonmin mine and its employees and properties,” said the Major General.
When asked by Mr Burger, General Annandale said it is a standard procedure and there was nothing wrong with Lonmin helping to brief the National Police Commissioner.

“It was not possible for Lonmin to negotiate with the striking workers because they did not want to negotiate, they only wanted to know when the R12, 500 was going to be paid to them. It was not easy for Lonmin because the striking workers had killed a number of people and stolen firearms from the police and Lonmin security guards. The police believed the firearms were carried by the striking workers beneath the blankets. Another reason why Lonmin did not want to negotiate was that there was an existing wage agreement and the strikers were on an illegal strike and in contempt of a court order. For the above reasons, it would have been unreasonable for Lonmin to negotiate with the striking workers at the koppie,” said Adv. Burger.
The Major General replied by saying that given the circumstances, he accepts that it would have been unreasonable for Lonmin to negotiate with the workers.

Mr Burger’s cross-examination ends.

14 May 2013

Advocate Dali Mpofu’s cross-examining of Major General Annandale continued.

When asked by Adv. Mpofu, the Major General said that there is a difference between rubber bullets and sharp ammunition. Adv. Mpofu said that the General is contradicting himself because he had replied ‘no’ when asked the same question by Adv. Ishmael Semenya during his evidence in chief.
The Major General denied this saying the question asked by Adv. Semenya was a different one.

Major General Annandale said that the police’s show of force during the Marikana operation was meant to discourage any movement by the striking workers towards the police line. Adv. Mpofu maintained that a barbed wire would have been more effective than a police line consisting of armed police officers with semi-automatic firearms. “The barbed wire would have resulted in much fewer casualties than that of armed police officers,” continued Adv. Mpofu.
Adv. Mpofu further said that Mr Magidiwana’s evidence is that at the koppie on the 16 of August 2012, they were shot before they could reach the path that they had intended to use to leave the koppie and go home and not to attack the police.

When it was put to him by Adv. Mpofu, General Annandale agreed that he is not a Public Order Policing (POP) expert. He said that the Marikana operation was not just a POP operation but it was a broader operation.

“On the 30th of September 2012, I was a Major General, a position which I acquired on the 1st of August 2012. On 31/07/2012 my rank was Brigadier. By the time I went to the Marikana operation, I had been a Major General for only twelve days.

When asked if he was the most senior official in the Joint Operation Centre during the shooting on the 16th of August 2012, Major General Annandale replied by saying that Major General Mpembe was airborne and that he was with Provincial Commissioner Mbombo in the JOC. He was unable to confirm if the Provincial Commissioner was in the JOC or just outside, but he said that she was in the vicinity of the JOC when the shootings occurred on scene 1 and 2.
Advocate Mpofu mentioned a number of instances which he said proved that there was a collusion between Lonmin and the South African Police; these included the following:

  • The fact that Lonmin had provided its facilities for usage by the SAPS JOC
  • The fact that an SAPS radio was issued to Lonmin to assist in monitoring the situation
  • The presence of Lonmin contracted Netcare medical personnel at the Forward Holding Area (FHA) 1
  • The presence and usage by the SAPS of a helicopter owned by a company contracted to Lonmin
  • The usage of a Lonmin employee who could speak in Fnakalo to assist the police when speaking with the workers
  • The fact that at one stage Provincial Commissioner Mbombo was airborne in a Protea Coin helicopter
  • On 13/08/2012 there was a joint briefing of the National Commissioner by both Lonmin and the SAPS
  • During the shootings on 16/08/2012 the overall commander, General Mpembe was airborne in the Protea Coin helicopter

Major General Annandale could not agree with Advocate Mpofu’s assertion that the entire Marikana shootings were mainly caused by a wage dispute. He further said that the police were there because of criminal aspects in Marikana. He later agreed that there was indeed a labour dispute.
The Major General agreed with Advocate Mpofu that there is a constitutional imperative for the South African Police Service to act impartially. The General said that the view held Advocate Mpofu’s clients that SAPS and Lonmin acted in collusion and to the detriment of the workers which led to the arrests, injuries and deaths, was incorrect.

“I put it to you that you had no authorisation to be in the Marikana operation; you had no authority to deploy neither the STF nor the NIU; you had the largest footprint in the Marikana massacre; some of your evidence has been tailored to suit the case and you overstepped the legal mark in appointing or deploying other units,” concluded Advocate Mpofu.

Major General Annandale said he does not agree with any of these.

13 May 2013

Advocate Dali Mpofu continued with cross-examining Major General Charl Allandale.

The Major General confirmed that he was present in the meeting when General Mbombo told the National Commissioner of the implementation of stage 3. General Allandale also confirmed that on the 15th, the striking workers said they are carrying weapons to protect themselves from NUM members. On the 16th they still refused to lay down their arms even when asked to do so by the police. Allandale said due to this, the police made arrangement for contingency in this regard, and not a contingency plan.

Major General Allandale said agreed that teargas, stun-grenades and water cannons may only be used after a warning has been issued.
Advocate Mpofu said that some of the Inyalas were installed with public address (p.a.) systems and could therefore have been used to make the warning. “The means and the opportunity to make a warning before the use of live ammunition was there. After all the six inyalas had deployed their barbed wire and there were still some groupings on the koppie, a warning should then have been made,” said Adv. Mpofu.

Major General Allandale replied by saying that during the little time that the police had to make a warning, there was a lot of action taking place.
Advocate Ishmael Semenya contended that because the police were acting in self-defence, there was virtually no time for a warning to be made.

‘Nyalas 5 and 6 did not deploy their barbed wires,’ confirmed Major General Annandale.

09 May 2013

The Commission commenced with Advocate Dali Mpofu cross-examining Major General Annandale.

When asked about the principles of policing before 1994 Major General Annandale said that he has been serving the SAPS for longer in the democratic dispensation than during the previous regime pre democracy. “Before 1994, I used values which were taught to me by my parents and which are based on respect. Those values have helped me to work in any system. I’m not aware of any perception by the police of ‘skop, skiet and donner’.

“Amcu president Joseph Mathunjwa said that the protestors must leave the koppie because the life of a black person is cheap and they were going to be killed. The mentality among members of the public is that the police are violent,” said Adv. Dali Mpofu. Major General Charl Annandale said he does not know why Mr Mathunjwa said those words and he is not aware of any violent attitude among any police members.

When asked if he knew of the attitude or cases among the police of a usage of maximum force, the Major General replied by saying that he can only recall the Sharpeville incident.

“In the new dispensation, are you aware that maximum force may not be used or has been outlawed,” asked Adv. Mpofu. Mr Annandale said that he is not aware of any right that the police have to use maximum force. The police only use minimum force which is legislated. 

The Major General denied using the term ‘maximum force’ when briefing the National Commissioner. He further said that if the order to engage was given by Brigadier Calitz, then he will explain what he meant.

02 May 2013

Advocate George Bizos started the day with cross-examining Major General Annandale.

Major General Annandale agreed that Brigadier Calitz was the operational commander at Marikana. When asked why it is that Brigadier Calitz said in his statement that ‘the group was armed with different weapons and they acted as one and they all associated with the actions of each other and they all had the same intention’, Mr Annandale replied by saying that he can only answer for what he knows.

“My statement is based on the observations that I made, including the photos that I took personally. The JOC also made mention of a smaller militant group among the striking workers,” said the Major General. He refused to say that there were contradictions between his observations and those of Brigadier Calitz and that he (Brig Calitz) will make qualifications on his statement when he comes to testify before the Commission.

“We will submit that you follow the example that the police do not contradict each other and that they agree with each other regardless of what the facts are,” said Major General Annandale.

Advocate Bizos said that in a number of documents from the SAPS they could find anywhere it was stated that they had to deal with a smaller militant group of about 300 to 400. ‘My statement is based on facts and in meetings in the JOC the smaller group was consistently discussed. The fact that it is not put in words that Adv. Bizos mentioned does not mean that it was not like that,’ said Major General Annandale.
We did not have crazy plan; we had a proper plan that was drafted by a team of experts who among them have many years of experience.

Major General Annandale disagreed with Mr Hendricks criticism of the SAPS’ Marikana operation that even if the protestors were to lay down their weapons, there would not be enough personnel from the police to effect arrests. Police expert, Mr Gary White also questioned the police’s ability to arrest such a big crowd and Maj. Gen Annandale disagreed saying Mr White’s assumption is based on arresting 3000 protestors and that was not the plan.