News: MARCH 2014

18 March 2014

Advocate Dali Mpofu continued cross-examining Major General Ganasen Naidoo.
Mr Mpofu stated that the times allowed for the briefings of police officers were inadequate for the size of an operation as big as the Marikana one. General Naidoo clarified that Colonel Scott would brief police commanders who in turn briefed their members and that he (Naidoo) did not have to brief any commanders.

The witness agreed that NIU members made an advance in order to engage protesters and that he saw statements made to this effect.
Major General Naidoo further confirmed that police canters were arranged as a contingency plan to assist with arrests. Mr Naidoo also agreed that since medics were brought to the scene then injuries were foreseen. When asked if death was foreseen since mortuary vans were called to the scene, the witness replied by saying that he does not know the circumstances around the delivery of mortuary vans.

When criticised for the SAPS’ lack of communication with the strikers before arrests were made on 16/08/2012, Mr Naidoo replied by saying: “the reasons for the arrests were clear because police officers shouted at the strikers to drop their weapons and they spoke in different vernacular languages; so there was communication with the strikers.”

Mr Naidoo further testified that strikers who dropped their weapons and dispersed were not to be arrested but those who refused to lay down their weapons were to be arrested and that all weapons that were found on arrested strikers were taken to police stations. He conceded that it would be difficult to match weapons to the arrested strikers, but he said it will not be impossible.

“Several of the strikers hid behind rocks on the koppie. The police called out to them to come out and there was some reluctance but they eventually came out with their hands in the air, and they were then taken to the arresting area. Some of the strikers came out with their weapons and were ordered to drop them and were then arrested. Those who were arrested with their hands up were arrested because they were part of an illegal gathering. Strikers who dispersed were allowed to go and those who refused to disperse and disarm were arrested,” said the witness.

General Naidoo agreed that he fired two shots at the strikers at scene 2 and that it is possible that he may have killed or injured one or two people.
“We will recommend that you should be charged with murder as accused number 7 in the list of public officials, in respect to the shots you fired,” said Advocate Mpofu.

The witness agreed that in relation to scene 2, police officers’ gunshots may have been mistakenly responding to friendly fire. He nonetheless said that he saw the person who shot at his direction before he returned fire.

14 March 2014

Advocate Dali Mpofu continued cross-examining Major General Ganasen Naidoo.
The witness told the Commission that all necessary steps were taken to eradicate SAPS members who would not be in the right emotional state to continue with their duties after the killing of their colleagues on 13/08/2012.
Adv. Mpofu said on 16/08/2012 just before the shootings, Captain Kitt who was one of the TRT commanders, told police officers to remember that the strikers

had killed some police officers on the 13th. Mr Naidoo replied by saying that Captain Kitt was not on the scene on the 13th.
“Major General Annandale’s portfolio includes TRT, POP, NIU and STF at head office level. General Annandale attended the meeting with the National Police Commissioner and other SAPS managers and he was then tasked to facilitate resources under his command to support the province. He was also tasked with chairing the JOComm which looked at how to implement the Provincial Commissioner’s decision,” explained the Major General.

When clarifying circumstances which led to his firing shots at Marikana on 16/08/2012, Mr Naidoo said someone fired upon him and he had to return fire. He also said that before the Marikana operation, he had never killed any person. The witness further agreed with Advocate Mpofu that one of the things that haunt him is the possibility that he may have killed or seriously injured someone. “As a police officer, when I report for duty I don’t do so with the intention to kill anyone. When I fired the shots in Marikana, my only other option was to be shot or to run in another direction. In the thirty years of my career, I have never been so close to being shot,” said Major General Naidoo.

Mr Naidoo agreed with Adv. Mpofu that in an operation as big as the Marikana unrest, one of the key things is communication. The pair further agreed that communication is as good as the quality of the information being communicated.

The witness agreed that on the evening of the 13th the issue of ‘faceless people’ was disputed by still photographs. General Naidoo further said he remembered that Lonmin had stated that the root of the problem was the rivalry between NUM and Amcu. He added that there were other issues at play such the Rockdrill operator’s salary increments, etc. but the rivalry between the two unions was reported as the primary issue.
“One of the key issues that motivated those who wanted the tactical stage to be active was the crime intelligence that the strikers were not going to surrender their weapons and they would fight,” stated Adv. Mpofu. Major General Naidoo said he is not sure if this was the sole reason because he was not at the meeting where the stage 3 decision was discussed. “So low was the quality of intelligence that it was sometimes self-contradictory,” charged Advocate Mpofu.

13 March 2014

Advocate Jason Brickhill, on behalf of the Legal Resources Centre (LRC), cross-examined Major General Naidoo. 
Advocate Brickhill said that the SAPS policy and process manuals state that a police officer must administer first aid within the limits of their training. General Naidoo said Colonel McIntosh is a trained paramedic and he did attend to an injured person.

The witness said he does not agree entirely that SAPS members at a crime scene had a duty to assist the injured as a matter of policy. Instead, he said the policy states that police officers should guide the paramedics in administering medical assistance to the injured.
General Naidoo further testified that there were several SAPS members who were at scene 2 so it is difficult for him to say who the first member at the scene was. He nonetheless accepted that he was the most senior SAPS member.

“When I got to the scene I ensured that crime scene and medical personnel were brought in and I made sure that K9 members swept the scene and set out the perimeter and secured the crime scene; as a senior member I made sure that all these necessary steps were taken. The scene was cordoned off after K9 had finished sweeping and members of the public were moved to the outer end of the koppie for the medics to do their job and for crime scene personnel to do their job as well,” explained the General.

Mr Naidoo agreed with the Advocate that Warrant Officer Breedt from the K9 unit had a dog in one hand and was busy removing weapons with the other and he therefore could not write notes. The General conceded that this could have been done better. He added that normally K9 members work in pairs so that the one member can cover the other. “I was not aware that Warrant Officer Breedt needed assistance; had he requested he would have gotten it. I do not think that he was the only one removing the weapons. I do not recall seeing him removing the weapons. Cordoning off a scene is important to avoid it from being contaminated. Yes, Warrant Officer Breedt reported in his statement that an unknown and un-uniformed police officer instructed him to return the weapons. Crime scene managers, detectives and crime intelligence officers arrived on the scene, so there were many non-uniformed police officers on the scene,” he continued. The witness agreed that this could have happened before or after the cordoning off of the scene.

Major General Naidoo told the Commission that when a police officer arrives at a crime scene and there is a suspect, he should act and this could result in the suspect being injured. He said it is impractical for the officer to step aside and wait for other police officers to work on the crime scene. He added that this could happen in an ideal situation but the Marikana situation was not an ideal situation.

Advocate Brickhill concluded his cross-examination and Advocate Dali Mpofu, on behalf of the injured and arrested strikers started cross-examining the witness.

Mr Naidoo said the Marikana operation was not one of the biggest operations in his career. “I have not been involved in an operation with a large number of fatalities and injuries such as the one in Marikana. The Marikana operation, in terms of injuries and fatalities, is the biggest I have been involved in,” he explained.

The Major General said he was not involved in the compilation of a report sent to the President of the country but some of the information he had imparted was used.

Advocate Mpofu said on 16/08/2012 there were people who were severely injured and there were four helicopters but it still took up to an hour before some of the injured got medical assistance. The witness said out of the four helicopters only one was a medical helicopter and it was used on the day. He further said he is not sure what the specific instructions on the usage of helicopters are.

General Naidoo agreed that Lieutenant Baloyi was transported with a non-medical helicopter when he was injured on 13/08/2012. Mr Mpofu said that in the same way, the non-medical helicopters should have been used to transport the injured strikers on 16/08/2012. “The prevailing attitude is that an injured person should not be transported with an official SAPS vehicle if the injured individual is not an SAPS member. Policy does not allow police officers to do this,” he explained.

“The medical helicopter does form part of medical services but it was not under my command,” he added.
Advocate Mpofu asked General Naidoo whether he agrees that the gist of SAPS’ explanation for removing weapons from the deceased and injured strikers was to allow medics to perform their duties in a safe environment. The witness agreed and added that some of the medical personnel complained of working near weapons. Mr Naidoo also agreed with Adv. Mpofu that there is evidence that shortly after the shooting at scene 1, there was removal of weapons from the strikers.

“At scene 1, medical personnel arrived after approximately an hour after the shooting so there were no weapons for them to complain about. There was discrimination in the way you treated your members to other citizens,” said Adv. Mpofu.

12 March 2014

Advocate Dumisa Ntsebeza, on behalf of the families of the deceased, continued cross-examining Major General Naidoo.
Adv. Ntsebeza said according to a post-mortem report, the late Mr Anele Mdizeni had a high velocity gunshot wound to his right hip. He said this was inconsistent with the SAPS claim that the victim was charging towards the police.

Mr Ntsebeza said the position of the rifle cartridges is indicative of where the NIU line was in relation to the bodies. General Naidoo said the location of cartridges is not an indication of where the shooters were. “We will argue that it is unlikely that Mr Mdizeni was shot, incapacitated and died as he was charging at the NIU line,” said Adv. Ntsebeza. The witness said this can be ascertained from those who were on the scene and he is unable to comment on the issue.

Major General Naidoo said at the scene where he was, he fired two shots and he is not sure how many shots were fired by the NIU members who were using R5’s.
“When I got to Mdizeni’s body, I did not see any cable ties lying around. Some NIU members were using cable ties to effect arrests and this could be why they were there,” said the Major General.

According to Advocate Ntsebeza, a post-mortem report records an irregular 4cmx4cm abrasion on the left cheek. “I do not recall this detail. When we got there people were already lying on the base of the cliff and there were 3 people around the body of the deceased. I did not see anyone being dragged around the cliff,” replied Mr Naidoo.

The Commission was told by Adv. Ntsebeza said that all the facts taken together are inconsistent with any suggestion that Mr Mdizeni was charging at the police when he was shot. Major General Naidoo said he was not there when the incident occurred.
“In terms of the post-mortem report, Mr Johannes Thelejane was shot twice in the back of the head with a high velocity gun, two centimetres above his right ear. The exit wound was on the left side of the back of his head,” said the advocate. Mr Naidoo said he cannot dispute the pathological report. “We will argue that on the basis of these wounds it would seem to be inconceivable that Mr Thelejane was facing those who were shooting him,” continued Advocate Ntsebeza. The witness said he was not there and therefore cannot comment on the issue.

The legal representative for the families of the deceased said that with relevance to the position in which Mr Thelejane was lying, he will argue that at its very least, it appears as if he was running away from the police rather than charging at them.
“All of the objective facts we have tried to canvass with you, will be a basis for us to argue that they are inconsistent with the SAPS version that the strikers were charging at the police.”

Advocate Ntsebeza presented a post-mortem report which showed that Mr Nkosiyabo Xalabile had a high velocity gunshot entrance wound on the left side of his neck and had an exit wound on the right side of his chest. The report states that Mr Xalabile was shot from above and he was therefore not facing the person who shot him. Mr Naidoo said he was not there when Mr Xalabile was shot.

Mr Ntsebeza said the position of the victim’s hands behind his back criss-crossing at the wrists is consistent with the hands of a person tied behind his back.
When asked about there not being any cartridge cases found on the area where fire was reported to be coming from the protesters, Maj. Gen Naidoo said he is not familiar with the ballistic reports of that scene and he is therefore unable to speak on the issue.

11 March 2014

Advocate Dumisa Ntsebeza, representing the families of the deceased, started cross-examining Major General Ganasen Naidoo.
General Naidoo said in the meeting that took place after the killings on 13/08/2012, discussions were not only about the SAPS members who were killed in the skirmish, but it was also about the people who were killed in the days before the 13th. Adv. Ntsebeza told the witness that his statement only mentions the deaths of two police officers as a contributory factor for the escalation of forces but fails to mention the deaths of three strikers. The Advocate added that witness’ statement only mentions two police officers who were killed by the strikers and it is as if the other deaths of the strikers did not occur.
“The general Public Order Policing situation was discussed and it was not just the deaths of the police officers and the missing firearms,” replied the General.
The witness testified that the escalation of forces came about after the National Police Commissioner was informed by the Provincial Commissioner who is the only person who can make the request and the National Commissioner, in consultation with other provincial commissioners, can then help in releasing the required resources. Mr Naidoo agreed that this decision partly lies with the Provincial Commissioner in as far as provincial resources are concerned and it was the National Commissioners’ decision in as far as forces from other provinces are concerned.

Major General Naidoo said he could not confirm if the National Commissioner approved the delivery of additional resources from other parts of the country, but he said she did not disagree with it.

The Commission was told that when the issue of the escalation of forces was discussed, there was no mention of the involvement of the minister of police. When asked if this was not something that minister of Police should have known, General Naidoo said the National Commissioner and the Provincial Commissioner are operationally charged with policing. Advocate Dumisa Ntsebeza said he will argue that he finds this very unusual.
Mr Naidoo explained the police’s plan in Marikana in the following way: “The situation was not purely a POP one because of attacks on armed groups. So the POP and tactical units were to be deployed. Negotiators were to be brought in to facilitate discussions and they were to be accompanied by POP’s. The plan was to talk to the miners in order to stop the violence and TRT was used to protect the rear of the POP.”

The witness agreed with Adv. Ntsebeza that the deaths of the two police officers were an added impetus to the escalation of forces.
Advocate Ntsebeza asked Mr Naidoo if when a person is bleeding to death the SAPS members in the vicinity will be reluctant to stop the bleeding because the South African Police Service has been exposed to billions of rands of claims. The General disagreed and said that when the SAPS makes a policy it has to be duly resourced because junior police officers may be reluctant to help out. He said a conducive environment has to be created for police officers to be able to help out when necessary.

In as far as the delay in getting medical assistance to the injured strikers is concerned, Adv. Ntsebeza said it was Major General Ganasen Naidoo’s responsibility as having been in charge of medical service and he should be held culpable for the deaths that occurred.
“Is it true that police officers on the scene did not render any assistance to the injured strikers because there is a general fear that an intention to assist may lead to civil claims?” asked Adv. Ntsebeza. The witness replied by saying he is unable to make a judgment on the issue.
Mr Naidoo conceded when Adv. Ntsebeza read out a list of seven names of deceased strikers whom he said would have died dignified deaths instead of being manhandled and left on the field to die.

Major General Naidoo was asked about his experience during political fighting’s of various parties in Kwa-Zulu Natal. He further said that during this time there were various attacks on the police. He added that some of the different groups carried firearms when fighting against each other and these included rifles, small calibre weapons, AK-47’s as well as home-made weapons.
“Throughout our time in Lonmin, we had seen Lonmin security guards who were tasked with guarding Lonmin assets. At the scene of the shootings, the medics came to the scene under escort of the guards,” said Mr Naidoo.

Advocate Dumisa Ntsebeza read out a number of IPID statements wherein some of the strikers alleged that their fellow strikers were shot at even after they had raised their hands in the air in surrender. The witness denied that SAPS members killed strikers who had raised their hands in the air in surrender at scene 2.

10 March 2014

Advocate Michelle Le Roux continued cross-examining Major General Naidoo.
The witness testified that he does not know of any police officer who was injured with a panga on 16/08/2012. He further agreed that he took control of scene 2 and he allowed medics and detectives to get to the scene; though he was unsure if this happened at 16:20.
Adv. Le Roux said that the South African Human Rights Commission (SAHRC) could not find any radio communication of Major General Naidoo informing the JOC that he had taken control of scene 2. Mr Naidoo said he communicated to the JOC both by cell-phone and radio and that he communicated to Brigadier Pretorius and General Annandale mostly by radio communication.

“The first time I saw Brigadier Calitz at scene 2 was when the mass arrests were being carried out in front of rocks and bushes. When Brig. Calitz arrived, he said he will take care of the people being arrested. When I thereafter spoke to him, we discussed the scenario in front of us and this was our primary discussion. Brigadier Calitz did not tell me where he was before he came to the scene nor did we discuss his previous activities in detail because we were busy with the mass arrests,” testified Mr Naidoo.

Advocate Michelle Le Roux concluded her cross-examination and Advocate Anthony Gotz on behalf of Amcu started cross-examining Major General Ganasen Naidoo.
The witness said he was travelling with the Provincial Commissioner and her driver when they left for Potchefstroom and that in the afternoon of 13 August 2012 he went with the Provincial Commissioner to see the injured police officer in hospital.

Adv. Gotz said that Joseph Mathunjwa complained that no one from SAPS or Lonmin management was willing to talk him. General Naidoo said Mr Mathunjwa was at the JOC requesting for transport and escort to go and address workers at the koppie but he left before this was finalised.
“I did not have Joseph Mathunjwa’s numbers and I told my members to intercept him if they were to see him at Forward Holding Area (FHA) 1. At no stage did I see Mr Mathunjwa or his vehicle,” he said. When asked if he tried to get Joseph Mathunjwa’s cell-phone numbers, the witness said his task was to intercept Mr Mathunjwa at FHA 1 and he did not have his cell-phone numbers nor did he ask for it.

Advocate Gumbi appearing on behalf of the family of the late Warrant Officer Lepaaku and Lieutenant Baloyi started cross-examining the witness.
When asked of the progress of the SAPS’ internal inquiry into the death of the late W/O Lepaaku and the injury of Lt Baloyi, General Naidoo said the SAPS conducts administrative inquiry for all deaths and injuries to all police officers. He added that he is not able to indicate the progress of this inquiry.

07 March 2014

Advocate Michelle Le Roux, on behalf of the South African Human Rights Commission (SAHRC) started cross-examining Major General Ganasen Naidoo.
General Naidoo said the case of Warrant Officer Myburgh was brought to him on the first of October. He said normally they refer these sort of cases to IPID for investigation and recommendation. He further confirmed that the matter was taken to IPID and he is not aware of any other investigations other than that of the police watch body.

“I cannot say for sure if police officers brought their own firearms and used them in Marikana. Personally, I have not seen SAPS members going to an operation with their own firearms and not declaring them. In some instances, some overzealous police officers prefer to bring an additional round of ammunition to supplement the one that has been issued to them. In an operation under my control, I have not seen this happening,” he said.
The witness testified that if he had discovered that a police officer had brought extra ammunition and did not disclose, then internal disciplinary procedures would have to be instituted. The Major General said possession of additional ammunition is illegal and it is therefore possible that this could lead to criminal prosecution and that IPID would deal with the matter if there was a shooting.

When asked how confident he is that no police officer brought their own ammunition in Marikana, General Naidoo said he works with SAPS members on a daily basis and that he does not think it would be fair for him to say he does not trust the validity of the discharge list.

“During the morning briefing, we had discussed with my driver that we would go to scene 1 and therefore it was not necessary for me to repeat this instruction to him. On the radio, the communication was clear that there was an incident taking place so it was not necessary for me to tell him it was urgent because we were both listening to the radio reports and we could hear the shootings so the urgency of the matter was obvious,” continued Mr Naidoo.

04 March 2014

Major General Naidoo continued to testify under Advocate Chaskalson’s cross-examination.
Mr Naidoo said at Roots he did not know that JOCOMM had no knowledge about scene 1 for half an hour and scene 2 until it was over; he said he realised this after some time but he does not know exactly when he became aware of this fact because some time has passed since then. General Naidoo confirmed that he attended most of the meetings where drafts of exhibit L were shown.
Advocate Chaskalson said exhibit L does not tell the full truth in as far as getting medical personnel to scene 1 because it does not mention that medical personnel only started work on scene 1 an hour after the shootings.

“According to Lieutenant Colonel Gaffely, SAPS members were shooting simultaneously at scene 2. Lt Col Gaffely and his members had to retreat to their nyala because there was cross-fire from SAPS members in different directions at scene 2 and this is not mentioned in exhibit L,” said the Advocate.
When asked about the video of the North West Provincial Commissioner saying ‘we will end this today’ the witness said it was omitted from exhibit L and he does not know why it was left out. Mr Naidoo said he does not perceive the Provincial Commissioner’s statement as necessarily negative because they all had the hope that the strike would end that day. He said despite the crime intelligence report that said some strikers would refuse to lay down their weapons, their optimism made them hopeful that the problem would end.

General Naidoo said even though the video clip was not included in exhibit L, but it was brought to the Commission.
The Major General said that from Tuesday until Wednesday there were various discussions on the various dispersal methods. He said some discussions happened outside the JOC after hours because some people had to travel to Gauteng and could not stay after the meeting.
“At scene 2 and koppie 3, when I met up with NIU they told me they had already shot at strikers. They said they were charged at when they arrived and had to defend themselves,” said the witness.

On the encounter between the NIU and the strikers, the witness told the Commission that it was not explained to him exactly where the confrontation took place. He said he saw bodies at the base of the hill and there were almost five people lying there with their weapons. Mr Naidoo said he does not know if the position where the bodies were found, at the foot of the rock, could have been where the charging took place. “I do not know but it is not impossible in relation to where the bodies were found. I cannot testify on how they were charging,” he added.

“I took charge after I had arrived at the place where the NIU was. I took control over those I could see, because I could not take control of those I could not see. As I walked up with the canine group I did not notice the filtering line because they ended up going out of my line of sight.”

The Major General said he was told by the NIU that they were confronted by a few people but they did not tell him the exact number. “I have no idea where the shooters were shooting from; I heard shooting from the direction of koppie 3 before I left the power station”.

Advocate Chaskalson said this is unbelievable. He asked the witness that if it is shown that he and his group reached koppie 3 before NIU had done any shooting, then the Major General as a senior commander at koppie 3 should be held responsible for failing to prevent or control the shooting by NIU at koppie 3. Mr Naidoo again said that the shooting happened after he had arrived at koppie 3.