News: NOVEMBER 2013

28 November 2013
Advocate Budlender SC, on behalf of the evidence leaders continued cross-examining Brigadier Calitz.
Brig Calitz said he did not know that the shooting at scene 2 started about twenty minutes after scene 1. He said after scene 1 they re-grouped while water cannons were moving forward.

“If I knew that TRT had opened fire on strikers at scene 2, I would have taken an appropriate decision, I would have contacted the operational commander, I would have called the JOC, assessed the situation, I would have spoken to Col Naidoo and Col Makhubele and spoken to POP to regroup so as to avoid damage caused to property,” said the Brigadier.

Brigadier Calitz testified that Captain Loest was a commander of one of the TRT units and he was on scene 1 and he knew what was going on at scene 1 because he was there.

The witness said he only knew about the shootings at scene 1 at 16:47. Adv. Budlender told the witness that the shootings occurred at 15:53.
Strikers used a panga to attack the wheels of one of the police nyala, according to the Brigadier.
“If 16 people were shot dead by the police and the operational commander knew nothing for 54 minutes then this reveals a fundamental and massive failure in the planning and execution of the police operation,” said the Advocate.

When asked, the Brigadier agreed that it is important for the operational commander to know what is going on and that the commanders on the scene had a duty to keep him up to date of what was going on. Brig Calitz said he believes there were people who tried to contact him but could not since there were problems with radio communications.

Brig said it was not part of the police plan for the strikers to be surrounded and shot at koppie 3 nor was it the plan for them to be killed in cross-fire.
Brigadier Calitz said when he told the police officers that they executed the plan 110% he meant it as a motivation to the police officers. “It was for the first time that some of the police officers were involved in such a traumatic experience. There were talks that police officers were in trouble and that they should be fired. Their morale was low and it was my duty to motivate them. They were under a lot of pressure, stress and trauma,” said the Brigadier.

27 November 2013
Advocate Budlender SC continued cross-examining Brigadier Calitz.
The witness said he did not know that the Provincial Commissioner had held a media briefing at 09:30. Brigadier Calitz said he did not know what was discussed at the National Management Forum on 15/08/2012.

“On 16/08/2012 JOCOMM had to take decisions on what action was to be taken. I did not know of any information that came from this meeting,” said the Brigadier.

Brig Calitz testified that the TRT, NIU and STF were all armed with R5 rifles and that this was expected. He further told the Commission that an R5 rifle is not necessarily meant to kill and it can also injure.

The Brigadier said he did not instruct anyone to arrange the delivery of 4000 R5 rounds to Marikana.
“In the late evening of 13/08/2012, I said that since the rounds were fired by TRT and POP members earlier in the day, the ammunition must be replaced but I did not mention the amount required.”

Brig Calitz told the Commission that he did not know anything about the requests for mortuary vehicles for the Marikana operation. “I have been involved in police operations where mortuary vehicles were used and hospitals are also placed on alert. In my experience, requests for mortuary vehicles are done only if deaths occurred the day before, not in advance. Based on what happened before, we expected people to be killed. I cannot remember being in an operation where mortuary vehicles were called in advance,” said the Brigadier.
“I told Captain Adriao that we were proceeding to the following phase of the action and the media must be behind the police.”

26 November 2013
Brigadier Calitz continued giving his evidence in chief at the Marikana Commission.
The witness testified that the information they had received from Crime Intelligence was that the strikers were faceless people and their residence was unknown. It was not known which hostel or informal settlement they stayed. It was not known initially that the strikers slept at the koppie but the information we received later was that some of the strikers slept at koppie 3.

The strikers were warned of the deployment of the barbed wire, I spoke on the public address system for more than four times warning them that the barbed wire will be deployed.

When asked about a photo of a police officer with his boot on the face of a striker who was lying on the ground, Brigadier said that he did not personally observe this. “Normally when approaching armed people, the idea is to disarm or arrest. If the person to be arrested has a long weapon, a foot or knee is used when disarming. If they have a firearm, the police officer has to press with a knee or foot to keep under control while someone is removing the weapon. This is standard practice when arresting an armed person,” said Brigadier Calitz.

In my entire experience, I have never seen police officers being attacked. It was the first time in my career that I had witnessed this. In all the courses I attended, I have never heard of police officers being attacked. I heard that this happened in Impala mine last year. On the day we had sufficient show of force which was enough to discourage the strikers. This was unexpected.

I have never seen the uncoiling of a barbed wire causing people to be aggressive or to attack. During the planning stage, I did not foresee that the strikers would attack the police or advance towards the police line.
In any negotiation, usually demands are stated and we meet each other half way but in this case, as the police, we could not offer anything in terms of the R12, 500 that was sought. Mr Nokkie said he wanted to talk to management and we passed through the message and we gave the response back to the strikers.

Lonmin was never seen by the police as the enemy. Mr Sinclair sent someone from Lonmin to assist with interpreting into Fanakalo at a point when the police did not have anyone to help in that regard. Mr Sinclair’s offer was taken up because the police did not want to waste time to go look for an interpreter. Strikers did not complain or raise any objections about the use of a Lonmin employee to interpret. The interpreter was positioned behind Col McIntosh and the strikers could not see him.

The witness’ evidence-in-chief was concluded at this stage.
Adv. Budlender SC commenced cross-examining Brigadier Calitz.
Brigadier Calitz stated that on 16/08/2012, the strikers were arrested for possession of dangerous weapons and public violence. Brigadier Calitz said he did not witness any police officers firing with a shotgun at the scene on 16/08/2012. He further said that it is a possibility that strikers who were shot with shotgun pellets were fired at by their fellow strikers.

The Brigadier further denied seeing anyone other than SAPS members or the strikers at the scene while the operation was being carried out.
“I did not request Lonmin to assist the SAPS with a barbed wire. The issue was discussed at the Joc,” said the Brigadier.

25 November 2013
Brigadier Calitz continued giving his evidence-in-chief.
On 16/08/2012, I was informed by JOC to take all the commanders to Forward Holding Area 1 (FHA1) at 14:30 for a briefing where we were briefed by Lt Col Scott about the implementation of stage 3. He informed us that the JOC took a decision that we could not allow an armed group to continue to move uncontrolled. The instruction was to deploy the barbed wire as a defensive measure and to move out next to the kraal in a line formation. The briefing was that we should disperse the armed and aggressive strikers into smaller groups, encircle, disarm and arrest them. The operation was meant to commence at 15:30 at the instruction of the operational commander.

The plan was that after the formation of the barbed wire and after the nyala’s were in place, I would give the strikers a warning in more than one language through the interpreter. The strikers were then to be given 20 to 30 minutes to disarm and disperse. I would then explain to those who remained that their gathering was illegal and that those who don’t heed the order to disarm and disperse would be arrested.
The plan contemplated that the group that remained would be dispersed on command through the use of water cannons, teargas and stun grenades and as a last resort through rubber rounds.

After the briefing all commanders went back to their units to brief their members. I arrived at the koppie at around 15:00.
It was not possible to start the operation at 15:30 because the Amcu president and some of the members of the media were at the koppie. After the Amcu president finished his address he left the koppie.
I gave the instruction to deploy the first barbed wire at 15:40. The barbed wire was deployed in a straight line as protection for both the police officers and members of the media.

A smaller group of the strikers moved in their formation towards the front of the SAPS police line towards nyala 4. The group of the armed strikers was aggressive and were advancing towards the SAPS members in an attacking manner and nyala 4 managed to cut in front of them.

The group then moved back and in a horse shoe shape came back to the police line for the second time. When I noticed the approach of the armed strikers, I instructed the POP dispersion group to engage, meaning that the dispersal group was ordered to get involved. I further ordered the dispersal group to move forward and block the advancing strikers.

I also ordered the water cannons to move forward and disperse the crowd by spraying them with water. Teargas as well as stun grenades were also used to repel the armed strikers. With these measures not effective, rubber balls were also fired at the armed strikers.

22 November 2013
Brigadier Adriaan Marthinus Calitz, who started giving his evidence in chief on 21 November 2013, continued testifying on his role at the Marikana operation and was led by Adv. Ishmael Semenya SC.

Brig Calitz testified that on 16/08/2012 at a JOComm meeting with Lonmin, SAPS and union leaders, Major General Annandale told the meeting that Amcu president Joseph Mathunjwa gave an indication that the strikers are likely to lay down their weapons at 09:00am the following day. He said members of the SAPS Crime Intelligence had however reported that the strikers were not prepared to disarm.

“Lieutenant Colonel Scott presented an overview of the unfolding of stage 2. He explained that the barbed wire trailers were to be positioned for later deployment as part of a show of force. The barbed wire was meant to protect SAPS members and to create a safe area for the police and the media. The barbed wire would also delay the advancing strikers should they decide to attack the police by advancing at the police line,” continued the Brigadier.
Six nyala’s with the barbed wire trailers were then positioned and ready for deployment. As the SAPS vehicles were deploying, a group of approximately 300 to 400 men on the koppie, some wearing blankets and armed with weapons, stood about 80 meters from the barbed wire nyala’s. The men were aggressive and waved their weapons at the police.

Upon arrival at the koppie, we received a report from our observation post that there was a group of about 600 people arriving at the koppie who were heavily armed.

Lt Col McIntosh tried to negotiate with the men and Mr Nokkie (the man in the green blanket) approached our nyala and told us that he did not want us there and went back to the koppie. The group then moved towards nyala 6 where they told police officers to remove the barbed wire and Mr Nokkie told the police officers that he was not going to ask them again. Lt Col McIntosh explained to Mr Nokkie over the nyala P.A. system that the barbed wire was for the safety of the police and the media personnel.

21 November 2013
Adv. Mathibedi SC, on behalf of SAPS re-examined Major General Mpembe.
General Mpembe said the SAPS would have escorted Lonmin management to the koppie had they asked for this, as they had done with the union leaders. “Standing Order 262 does not require SAPS officials to give a warning before engaging in self or private defence,” said Mr Mpembe.

The Major General further explained that the police plan did not prohibit the arrest of the strikers who committed any crime other than possession of dangerous weapons. General Mpembe, who acted as the overall commander during the Marikana operation, said he did not have the power to force Lonmin to talk to the strikers and that he unsuccessfully persuaded them. Mr Mpembe said when he told the police officers to protect the informal settlement he meant they should put nyala’s in front of the informal settlement.

“There would not have been a confrontation on 13/08/2012 between police officers and the strikers had the strikers handed over their weapons to the police,” said the Major General.

19 November 2013
Advocate Dali Mpofu continued cross-examining Major General William Mpembe from the South African Police Service.
General Mpembe testified that all the decisions he knows of were taken at the Provincial JOC and that National JOC only facilitated the presence of resources and the decisions of deployment thereof.

“We kept the National JOC abreast on all developments during the Marikana operation and I do not know what was done with the information we provided to them,” said the Police General.

The witness denied any knowledge of mortuary vehicles that were put on standby and he further said he believes he should have been made aware of this.
Major General Mpembe said the neutral area was a defined static place which was police controlled and was not accessible to civilians.
Adv. Mpofu asked if it would be fair to say that, to some extent, this was a joint operation between SAPS and Lonmin. “No, Lonmin as a stakeholder only acted as an employer,” replied the General.

The General further clarified that the strikers were not walking towards the road but were charging at the police.
When asked if he did not find it strange that the strikers did not lay down their weapons there and then but chose to do so the following morning at 09:00, General Mpembe said he did not see it that way.

18 November 2013
Advocate Mpofu cross-examined Major General William Mpembe.
General Mpembe denied saying in his statement that he said they could not fly low and had to fly high because they knew the strikers had stolen firearms in their possession. He also said he has not spoken to the National Commissioner in relation to his testimony at the Marikana Commission.
Mr Mpembe said the trigger for the rollout of stage 3 was not only the failure of negotiations but that it was one of them.
Adv. Mpofu said they will argue that the rollout of stage 3 was done prematurely.

According to the witness, the negotiations were declared as a failure the last time when Joseph Mathunjwa spoke to the strikers and there was no other alternative when stage 3 was implemented.

“On 15/08/2012 we appealed to unions and management to negotiate to end the impasse. Mr Kgwadi from Lonmin was in the police nyala on the evening of 15/08/2012 and I take it that if he was not feeling safe then he would not have gone. SAPS would have provided security to all the parties, including Lonmin and the unions if they were going to address the workers,” said the Major General.

The witness was asked if he is aware that the strikers did not harbour any animosity for the police and that they carried the weapons to protect themselves from NUM members. “That’s what they told me,” replied the General.

Major General Mpembe denied that he had no reason, before the attack to believe that the strikers wanted to attack the police. “The problem was their refusal to hand over their weapons. They could have trusted the police to protect them against any attackers. Their refusal showed me their intention to injure. They could have attacked the police and anyone else.

Mr Mpembe testified that the shortage of resources was the principal reason for the abandonment of the encirclement plan. Adv. Mpofu stated that he will argue that the arrests were unnecessary. When asked, the witness said he does not know the circumstances surrounding the arrest of Adv. Mpofu’s clients on the 16th because he was not there and he was not the arresting officer.

Advocate Mpofu said the plan stated that those who refuse to disarm and those found in possession of dangerous weapons should be arrested. General Mpembe agreed that if some of the strikers were arrested and not in possession of dangerous weapons and did not refuse to disarm then that would constitute a deviation from the original plan.

13 November 2013
Advocate Dali Mpofu continued cross examining Major General William Mpembe.     
Major General Mpembe replied by saying yes when he was asked by Adv. Mpofu if it was necessary for the SAPS to bring big guns and snipers just to scare off strikers during the Marikana operation. “I did not disagree with the bringing of the STF for the Marikana operation. If General Annandale did not bring the STF, I would have invited them,” said the witness.

General Mpembe agreed with Adv. Mpofu that during the Marikana operation, wage dispute was the root of the problem and also said that there was a security aspect. The Major General further said that it would be wrong to classify only one aspect and that the operation should be seen as a combination of the two and that the SAPS was only focusing on the security issue.

The witness said he held the view that if all the parties had negotiated as they did after the killings then the tragedy would not have occurred. When asked, General Mpembe agreed with Adv. Mpofu that from all his interactions with the strikers, they consistently said they wanted to talk to management. “Yes, I was frustrated by the absence of reciprocation by Lonmin because SAPS officials could have escorted them. I conveyed to Lonmin that the strikers wanted to talk to them. Lonmin did not want to talk to the strikers because they were armed. On the other hand, since their security officials were killed, I understood why they did not want to,” continued the Major General.

The Major General agreed with the Advocate when he said that Lonmin had a primary duty to make sure that the strike is quelled. The witness said he was not aware that since his plan incorporated the use of SANDF and their equipment without the President’s approval that this was a breach of the Constitution. General Mpembe agreed with Advocate Mpofu that it was his duty to be familiar with all the relevant prescripts during the Marikana operation, and that police members must act impartially when there is a dispute between two parties.

The Major General denied being aware of any political influence on the decisions that were taken during the Marikana operation.

“Do you accept that for there to be a situation of private defence there must be an attack or an imminent one?” asked the Advocate. Mr Mpembe agreed. “In the absence of an attack then it’s no longer private defence?” The Major General replied by saying yes.
“On 13/08/2012 you went to the ground because you wanted to save lives and you opted to go yourself and not Brigadier Calitz because you understood the language and the culture of the strikers,” asked Mr Mpofu. General Mpembe agreed.

Advocate Mpofu asked why General Mpembe decided to send Brigadier Calitz to the scene on 16/08/2012 with a bigger operation and a bigger crowd. Major General Mpembe testified that on 16/08/2012 there was a Fanakalo interpreter who was sent by Lonmin. “Public Order Police members were there and they could have used any language. On 16/08/2012 there were four interpreters some of whom could speak Fanakalo,” continued the witness.

General Mpembe denied being side-lined during the Marikana operation and he disagreed when he was told that according to records from 13-16/08/2012 he did not utter a word or give any instructions on the minutes of the JOC. “I gave instructions on the processing of the arrests and arranging various activities which were to happen. As part of the duties I performed, I chaired a meeting on 14/08/2012 where the plan was debated,” said the General.

“Would it surprise you that the Provincial Commissioner would discuss some considerations which would lead to a major decision being taken of the Marikana operation with someone who is not a SAPS member and not with you as overall commander?” asked Adv. Mpofu. Major General Mpembe replied by saying ‘no comment’.

12 November 2013
North West Deputy Provincial Commissioner Major General William Mpembe was cross examined by Adv. Dali Mpofu on this day.
When asked about the number of police officers, General Mpembe said that at one point he had 120 SAPS officer for the Marikana operation. He said it is difficult for him to speculate on whether he would have been able to disarm and arrest the protesting mine workers.
Major General Mpembe agreed that communication between him and the strikers was fairly respectful, during his discussion with the strikers at the railway line. He also confirmed that the strikers repeatedly said that they are not fighting him or the police and that they are only carrying weapons to protect themselves from NUM members.

Advocate Mpofu told the witness that there was no way for the striker to get to the koppie without passing through a residential area to which the General replied by saying that he knew that and that the police officers were going to be able to control the strikers.
The legal representative for the injured and arrested miners put it to the witness that the strikers marched through the koppie to the Karee mine and there were no reports of violence from the strikers even though there was no police escort. “Your alleged fear that if the strikers pass through a residential area then something will happen was unfounded because they had done so without police escort and there was no violence. The supposed fear for violence in the informal settlement was unfounded because it is an impossibility,” said Adv. Mpofu.

General Mpembe disagreed and said that he was informed that the strikers had killed people before and it was his duty to make sure that the strikers did not cause any more violence.

Advocate Mpofu said that had the teargas not been fired, the deaths of five people would not have occurred because the strikers were not showing any aggression. General Mpembe replied by saying that the singing and the clicking of the traditional weapons by the strikers was intimidating and that the choice of the song that was sung was also aggressive.

The Major General agreed with Adv. Mpofu that after Lt Baloyi had sustained serious injuries, he was airlifted to hospital as soon as possible. “On 16/08/2012 when some people were riddled with bullets, they were not immediately airlifted to hospital but were left with their injuries for about an hour,” stated Advocate Mpofu. General Mpembe said he was not on the scene on 16/08/2012 and that he was not aware.

The witness agreed with Adv. Mpofu that if injured people were left unattended for about an hour without receiving any medical attention then that would constitute deviation from the plan that he (General Mpembe) approved, but said that those on the ground would explain why.

11 November 2013
Advocate Heidi Barnes, on behalf of Amcu commenced with the cross-examination of Major General Mpembe.

Major General Mpembe said when he briefed Provincial Commissioner Mbombo about a discussion he had with Joseph Mathunjwa, he did not use the word ‘agree’. But he conveyed to her that the strikers were willing to lay down their weapons. General Mpembe testified that on 13/08/2012 when he spoke to the striking workers at the railway line, he was concerned that the strikers may injure or kill those going to work. He said the strikers repeatedly asked that the police officers escort them back to the koppie.

Adv. Barnes asked the General to explain why the strikers asked the police officers to escort them if they were planning to kill some people. Ms Barnes further said that the strikers wanted the police to escort them anywhere. The witness disagreed and said that the strikers wanted to be escorted to the koppie specifically.

Ms Barnes told the Commission that Constable Zondi and Constable Plaatjie, who were both involved in the Marikana operation, had both stated in their statements that General Mpembe had said that they must block the strikers so that they would not go to the informal settlement side.
Major General Mpembe vehemently denied this and said that he did not brief any juniors. He said he told commanders that the strikers should not enter the informal settlement and the mine shaft area.

Ms Barnes quoted Constable Plaatjie’s statement which stated that, ‘while Mpembe was addressing the strikers they walked away and he ordered us to block them and one nyala drove off in front of the strikers so that it could block them’. The Major General also denied knowing that some police officers complained to Lt Col Vermaak about wrong commands that he made.

“At Potchefstroom groups of police officers got together in a break-away kind of session so as to produce a written narrative. Each and every one was expected to give information of their account of events, but there was no agreed document; members were giving their personal knowledge. Approximately there were four or five or a few more in each break away session,” said General Mpembe.

08 November 2013
Advocate Dumisa Ntsebeza, on behalf of the families of the deceased, commenced cross-examining Major General William Mpembe.

Adv. Ntsebeza said that the witness is evading answering the question of disarming the strikers because he knows it was not done in the best way. Colonel Scott said that when he had a conversation with Mr Zokwana and Mr Mathunjwa in the early evening on 15/08/2012, a decision had not yet been taken for tactical phase to be embarked upon in the following day.

“As early as 15/08/2012 you knew that to disarm the strikers at the mountain would lead to bloodshed. You could have persuaded your colleagues to adjourn the implementation of disarming the strikers at the mountain in favour of disarming them at their places of residence.

Major General Mpembe chose not to comment when Adv. Ntsebeza said that he will argue that General Mpembe knew on 15/08/2012 in the evening that the only way to disarm the strikers was to go where they stay but he decided not to do that. The Major General agreed that when he was negotiating with the strikers near the railway line they treated him with utmost respect even though he (General Mpembe) may not have agreed with what they said.

Advocate Ntsebeza said to General Mpembe that the strikers asked him (Gen Mpembe) to accompany them to the koppie. “They also said if you escort them to the koppie and call Lonmin management to address them then they will hand over their weapons,” continued the Advocate. Mr Mpembe agreed.
“On the phone, I told General Mbombo that I am taking a decision following the application of situational appropriateness and that if the strikers do not disarm then we will escort them. I made another call to JOC where I spoke to Brigadier Calitz and I relayed the same information to him.

Major General Mpembe denied that he firstly agreed with the strikers, to accompany them to the koppie, and later changed his mind after he made the call to Provincial Commissioner Mbombo and the JOC.

When asked about the STF vehicles, Gen Mpembe said he was aware of the presence of STF vehicles at Marikana but denied seeing one which was mounted with a machine gun. He however did not dispute that the machine gun mounted STF vehicle was there on 14/08/2012. The SAPS legal team confirmed that the vehicle was there on 14/08/2012 and on 16/08/2012. The witness agreed with Adv. Ntsebeza that the weapon is not one to carry or use during crowd management operations and he further said that one cannot even use a 9mm pistol for crowd dispersal because there are appropriate weapons for crowd control.

07 November 2013
Advocate Ishmael Semenya commenced his re-examination of Colonel Duncan Scott.

Colonel Scott testified that where there is one channel that is functional, it is possible to work with it because all commanders and officers will be able to communicate. “With standard procedure, if you suspect that opponents are listening to your channels then a code, that is unknown to non-SAPS members, would be given and everyone will switch to that channel. There was never a time during the Marikana operation where I felt that radio communication was dead,” said the Colonel.

The Colonel stated that there was no intention to include incorrect information in Exhibit L and that incorrect information in exhibit L came about as a result of not having a complete picture of the events of the Marikana operation.

“Was there any attempt at portraying a misleading impression by withholding information from the Commission,” asked Adv. Semenya. Colonel Scott denied this.

Colonel Scott also denied being placed under pressure to implement the arresting of the strikers and he said he did not feel pressured by the Provincial Commissioner.

“It is not a requirement to inform strikers before a defensive measure such as a razor wire is being deployed. In instances where I’ve seen a barbed wire being used, it did not trigger any aggression from the strikers nor was there any violence as a result. The barbed wire could not have been a hazard to any of the strikers unless they came close to it,” continued Colonel Scott.

The Colonel confirmed that Nkaneng was not inaccessible by reason of a barbed wire being in place.

“There is nothing inherently wrong with using stun grenades, teargas, rubber bullets, etc. to disperse an armed group of protesters who had gathered illegally.
Colonel Scott said he does not know who fired the shots after the first volley of shots was heard. He agreed that the fact that some of the striking workers had taken muthi was an important factor to be considered when drawing up a plan to deal with them.

05 November 2013
Advocate Dali Mpofu continued with Colonel Scott’s cross-examination.

Colonel Scott testified that there was no plan for koppie 3. He said that on 16/08/2012 the distance between POP members and TRT was 100 meters. The Colonel further said that very few plans stick to what the original plan anticipated. “So usually impromptu decisions are taken on the ground,” he continued.
When asked whether the police expected the strikers to advance towards the informal settlement, Colonel Scott said they expected the militant group to remain behind. “In most statements I have seen, the strikers said they were not going to leave and they told Mr Mathunjwa that they are willing to die and will not leave,” said Col Scott. He agreed that the strikers advance to Nkaneng was foreseen.

Advocate Dali Mpofu introduced a video which is a longer version of a video that portrays a man kneeling and urinating on the ground; which was already an exhibit at the Commission. As the video continues, Adv. Mpofu said that one of the police officers in the background can be heard saying ‘they are not being aggressive towards us’. That part was not in the initial video. Colonel disagreed with Mr Mpofu and he said he does not deem that part as critical evidence.
“I was not aware that Bishop Seoka had intervened in the Marikana unrest,” admitted the Colonel. Scott agreed that was the reason why Seoka’s intervention is not included in exhibit L and that it was not mentioned at Potchefstroom.

The witness agreed that the strikers just wanted Lonmin management to address them and he also agreed that they said they were carrying weapons to protect themselves.

Advocate Mpofu said that he submits that the police’s plan was shambolic and it resulted in the deaths of the striking workers. “There is no evidence in your presentation or what was presented to you that suggested there was an attack on the police except for the crowd’s crouching, which is in fact a sign of respect or submissiveness,” said the Advocate. Colonel Scott disagreed and said that the history of the Marikana unrest based on the events of the previous days, the threats that were made, the strikers unwillingness to leave the area and other factors were considered by the police on that day.

“Exhibit L was doctored and riddled with inaccuracies and was meant to mislead the Commission,” continued the Advocate. Again Colonel Scott disagreed and said that there was no ill-intent when exhibit L was compiled and that the information included in it, was all they were given.

Adv. Mpofu concluded by saying that video footages were deliberately manipulated to exclude crucial points for the Commission. Colonel Scott denied this.

01 November 2013
Adv. Dali Mpofu started the day with cross-examining Colonel Scott.

Colonel Scott agreed with Adv. Mpofu that on 13/08/2012 strikers were not violent when they were negotiating with Major General Mpembe and were kneeling in crouch position. Adv. Mpofu said that the strikers crouch position was a sign of respect and not aggression because they walked past the police without harming them.

“The reason there was no conflict is because they had their way. We don’t know what would have happened had the police tried to stop or divert them,” said the Colonel.

The legal counsel for the injured and arrested asked the Colonel if he had any reason to suggest that had the strikers been allowed to crouch walk past the police on 16/08/2012 that they would have harmed them. “I cannot speculate on that because I do not know why they moved directly towards the armed police. They could have chosen a different path,” replied Colonel Scott. Adv. Mpofu said that the reason they took that direction is because it is the most obvious one that leads up to where they stay.

Mr Mpofu stated that the TRT line was formed and TRT members had their guns corked before strikers emerged from the corner of kraal.

05 November 2013
Advocate Dali Mpofu continued with Colonel Scott’s cross-examination.

Colonel Scott testified that there was no plan for koppie 3. He said that on 16/08/2012 the distance between POP members and TRT was 100 meters. The Colonel further said that very few plans stick to what the original plan anticipated. “So usually impromptu decisions are taken on the ground,” he continued.
When asked whether the police expected the strikers to advance towards the informal settlement, Colonel Scott said they expected the militant group to remain behind. “In most statements I have seen, the strikers said they were not going to leave and they told Mr Mathunjwa that they are willing to die and will not leave,” said Col Scott. He agreed that the strikers advance to Nkaneng was foreseen.

Advocate Dali Mpofu introduced a video which is a longer version of a video that portrays a man kneeling and urinating on the ground; which was already an exhibit at the Commission. As the video continues, Adv. Mpofu said that one of the police officers in the background can be heard saying ‘they are not being aggressive towards us’. That part was not in the initial video. Colonel disagreed with Mr Mpofu and he said he does not deem that part as critical evidence.
“I was not aware that Bishop Seoka had intervened in the Marikana unrest,” admitted the Colonel. Scott agreed that was the reason why Seoka’s intervention is not included in exhibit L and that it was not mentioned at Potchefstroom.

The witness agreed that the strikers just wanted Lonmin management to address them and he also agreed that they said they were carrying weapons to protect themselves.

Advocate Mpofu said that he submits that the police’s plan was shambolic and it resulted in the deaths of the striking workers. “There is no evidence in your presentation or what was presented to you that suggested there was an attack on the police except for the crowd’s crouching, which is in fact a sign of respect or submissiveness,” said the Advocate. Colonel Scott disagreed and said that the history of the Marikana unrest based on the events of the previous days, the threats that were made, the strikers unwillingness to leave the area and other factors were considered by the police on that day.

“Exhibit L was doctored and riddled with inaccuracies and was meant to mislead the Commission,” continued the Advocate. Again Colonel Scott disagreed and said that there was no ill-intent when exhibit L was compiled and that the information included in it, was all they were given.

Adv. Mpofu concluded by saying that video footages were deliberately manipulated to exclude crucial points for the Commission. Colonel Scott denied this.

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