News: MAY 2014

29 May 2014

Lieutenant Colonel Little Joe Classen took the stand and was cross-examined by Advocate Michelle Le Roux, on behalf of the South African Human Rights Commission (SAHRC).

Lt Col Classen testified that he did a three week course in crowd management, which touched on the usage of lethal force. He said he was taught that the usage of live ammunition should be avoided at all costs.

He said if there is a threat posed during a crowd management situation, the person posing the threat should be shot at and not all members of the group.
Advocate George Bizos for the Legal Resources Centre (LRC) commenced his cross-examination of the Lieutenant Colonel.
The witness said he was one of the commanders in Marikana and he did not fire any shots because his hand was injured. “It was so serious that I was using my left hand to hold the radio. I had a pistol on me. Had my life been in danger I was going to attempt to use it,” he testified. When asked why he did not ask to be excused because of his injury, Mr Classen said it could have been sensible but that it was circumstantial.

The witness agreed that if he and his team were in danger, it would have been his duty to direct the manner in which lethal force was to be used. However, Mr Classen said he did not give a command for his members to shoot.

“With 34 deaths and 76 serious injuries, do you think things went wrong in Marikana on 16/08/2012?” asked Adv. Bizos. Lt Col Classen said things did not go according to plan because it was not part of the plan to kill.

Advocate Kameshni Pillay started her cross-examination of the Police witness.
Colonel Classen said before he had left for Marikana, he intervened for his exhausted members not to go to Marikana because they were exhausted and he did not want them to make mistakes.

The witness said Colonel Scott’s briefing was for the TRT to give back up to POP’s and assist in the dispersal of the strikers and to sweep the koppie. And that they had to form a basic line behind POP.

“Disarmament was to take place after dispersal and strikers were allowed to leave with their weapons according to Col Scott’s briefing. This briefing could have lasted for 20-30 minutes. It was a clear and adequate briefing for everyone. I wasn’t briefed by Brig Calitz or Captain Loest,” he continued.
Before the tactical phase, Lt Col Classen said he told his members not to forget the rules of engagement and that they should not just shoot at the strikers and if they see that something is going to happen then they should shoot below the knee. I made it clear to them and it took me a minute up to two to tell them this.

20 May 2012

Advocate Ishmael Semenya SC, re-examined Captain Loest on this day.

When asked about the mood of the strikers, Captain Loest said they had the same body language and they seemed aggressive and did not look like a peace loving crowd and they looked like they were seeking conflict.
Mr Loest testified that on 13/08/2012 when he was in the chopper with Colonel Vermaak, he heard that the strikers were moving to the koppie but did not know where the koppie was. He said he was unsure about their movements or intentions.

Advocate Semenya asked if it was normal procedure for a police officer to have dragged an injured striker while searching him, as it happened on 16/08/2012 in Marikana after the shooting. “There is no other way of removing a weapon that a suspect is lying under. One has to use any means possible including one’s limbs to secure the suspect,” he replied.

Captain Loest said he can remember seeing the late Mr Mdze while he was lying on the ground injured, before the arrival of the paramedics. The witness testified that the paramedics were reluctant to get to the scene and assist the injured because of safety issues and that he assured them that it is safe for them.

He said it took some time for the paramedics to get to the scene and he does not know why it took them so long.
“My understanding of the encirclement plan is that strikers were to be encircled and they were to be contained and asked to leave their weapons. The encirclement was supposed to be of a group of the 2000 strikers. The barbed wire was to be used. We did not have enough barbed wire to encircle the whole group. We were not really involved with the POPs encirclement plan and so I did not know all the specifics of the plan. We were only there to assist,” he said.
Captain Loest said the use of a barbed wire normally does not trigger the attack on the police because it is meant to separate the two groups and to create a safe area for police to their work. The witness said neither a teargas nor a stun-grenade is known to trigger an attack on the police.
Mr Loest denied being in command of POP or being in command of the implementation of Standing Order 262.

“If the strikers did not pose any threat on POP, we were going to let them go and we were going to let them be. After the first volley of shots, I waited 8 seconds before I called for a ceasefire since I could not see because of the dust. The ceasefire was called a couple of seconds before and I only repeated it,” he concluded.

Lieutenant Colonel Stephen McIntosh took the stand and was led on his evidence-in-chief by Advocate Tebogo Frank Mathibedi SC on behalf of the SAPS.
“On 16/08/2012, I attended the jocomm meeting, it was discussed that the strikers may put down their weapons and JM was to help in facilitating this. It was found that JM ddnt speak to the strikers when we got to the koppie. They were very aggressive and several threats were made against the cops, they said we were going to die in our hippos and they said we must sign a piece of paper showing that we were going to kill each other.

I heard that one of the strikers was trying to slash the wheels of the nyala. They were trying to stop the nyala from uncoiling the barbed wire.
Cops were dealing with an armed mob that didn’t want to surrender their weapons. It was nt a crowd mangt situation bcos a crowd mang situation the crowd can be contained through the use of rubber bullets, stun grenades and so forth.

Adv Heidi Barnes for Amcu and Mcintosh
15th morning meeting with Lonmin. The employer was asked if they could engage the strikers to see if they could end it. u took no steps to establish wherthwe there was an incident with Num. it was ur duty to investigate and find the truth and go bek to the strikers that we investigating this no one had been killed.” on thursday 16th we gave them Feedbek was given to the strikers that no one was killed.” “We told them that cops wud protect them if the put down their weapons.”
Threats by Mr Nokkie on 15th does not appear in Brig Calitz statement. “the threat was def made on the 15th and it was reported to him to report it to the JOC.” Adv Barnes says the threat also does not appear in the OB book. It was made the threat cos they ddnt want us there.

16/08/2012 – Evidence with

Ms Le Roux for SAHRC and Lt Col McIntosh
16/08/2012---
Brig Calitz sed there was a shooting and 14 to 15 ppl have died at scene 1. He ddnt tel me how he got to know about the shooting.
“im a trained medic, but on the day I ddnt hav any equip on the day except for a mouthpiece.

Adv Ntsebeza and Lt Col McIntosh
“Mr Mpumza had a spear in his right hand and a sharpened knobkerrie in the other hand.” Cst Sebenyane was attacked by Mr Mpumza and he shot the attacker (Mr mpumza) 9 times. “I was a witness from a side angle and I was not in his situation.
Cst sebejane, a transcript was read where he was saying he fired 10 shots at him. “There are profanities after cops have been involved in a shooting.” Distance was between 1,5m to 3 meters.
Il argue dat at dat distance it was possible for sebejane to shoot at the victims legs and not at his upper body.””I would not have shot at the legs, I wouldv shot at the upper body and head as well.

15 May 2014

Advocate Nicole Lewis, on behalf of the families of the deceased strikers, commenced cross-examining Captain Loest.
Captain Loest denied seeing Lt Col Vermaak in possession of an R5 rifle on 13/08/2012.
The witness confirmed having heard that on 16/08/2012 it took an hour for paramedics to arrive at scene 1. “The Tactical Response Team (TRT) members did not have first aid training except for me. I am not sure on what level is the first aid training I have received. I think I may be on more or less level 5. The training I received lasted 7 months,” said Mr Loest.

Captain Loest was asked if he was familiar with the medical concept of a ‘golden hour’. He replied by saying that after a person has been injured, a paramedic would work on an hour basis before they can be taken to a hospital to be treated by a Doctor. Ms Lewis agreed and added that if someone is attended to within an hour then they have better chances of survival.

Advocate Lewis asked the witness why he did not provide any assistance to the injured at scene 1. “My first priority was to ensure that there were no weapons lying around and that strikers were to be searched and the weapons were to be removed,” he replied.

Ms Lewis said they will argue that as the only person with first aid training, Captain Loest first priority was to ensure that the injured strikers received first aid before the arrival of paramedics.
“I will not treat any injured strikers because I do not want to open up a potential lawsuit. SAPS stopped paying for my first aid training and that is why I have not had any training recently. My members were severely traumatised and they were my first priority,” replied the Captain.
Adv. Lewis said Captain Loest should have prioritised the strikers who were shot and injured and lying on the ground instead of traumatised police officers.
In one of the videos shown at the Commission, a police officer is seen dragging an injured striker and one shows an SAPS member with a boot on the head and neck of an injured striker lying on the ground. Advocate Lewis said she will argue that SAPS members used unnecessary force.
The witness was asked about a striker who bled to death and needed a bandage to stop the bleeding. Captain Loest said he did not have any equipment or means to help the injured. Ms Lewis said he could have used a sock or any piece of cloth to stop the bleeding.
After being shown a video clip of a police officer with his boot on the head of an injured striker lying on the ground, Captain Loest said such an act is inhumane.

The witness agreed that NIU and STF members have first aid training and they were both present at scene 1. Captain Loest said he did not ask them to provide first aid assistance to the injured strikers. Ms Lewis said three minutes after the shooting, NIU members can be seen still lined up facing the koppie and up until 10 minutes they were in easy access of scene 1.

“I wasn’t aware that NIU was so close nearby. I focused on scene 1 and what was happening there and not around scene 1. I don’t know if the Joc made any effort to contact NIU or STF members to assist at scene 1,” he said.
Captain Loest added that they could not allow SAPS members to move into the scene of the injured and dead strikers after the shooting, because they did not know what weapons the strikers had underneath their blankets.
Advocate Dali Mpofu started cross-examining Captain Loest.

The witness agreed that the formation of TRT line should be placed on his shoulders.
Captain Paul Loest denied seeing the attack by protesters on nyala 4. “It was expected by SAPS members that if strikers wanted to access the road which was closed by nyala 4, the only other way was to go around the kraal to access it,” he added.

“The TRT line was supposed to be 100 meters behind POP, according to the plan. As the strikers approached us they revealed their weapons from under the blankets and that showed us that they did not have good intentions,” said Mr Loest.
When asked if he gave the instruction for the formation of the basic line, which incorporates the cocking of the guns, the witness agreed. He further said he gave the command for a ceasefire.

“I know about crime scene management to some extent. It seems like I failed to look after the injured at the crime scene,” he said.  

14 May 2014

Captain Paul Bismark Loest, the SAPS North West Provincial Coordinator of the Tactical Response Team (TRT) started giving evidence on this day.
The witness was cross-examined by Advocate Charles Wesley.

Captain Loest told the Commission that he attended the Joc meeting on the morning of 16/08/2012. He said he had approximately 70 – 80 TRT members under his command and that this number consisted of SAPS members from different parts of North West.
The witness testified that apart from Brigadier Calitz, there was no one who could give him instructions and that on 16/08/2012 he did not receive any instructions from anyone other than Brigadier Calitz.

Captain Loest further said that the plan on 16/08/2012 was for POP’s to get strikers to surrender their weapons. If POP’s had failed TRT was not to go to the crowds and disarm them, because the role of TRT was to support the POP.

“During the briefing on 16/08/2012, Colonel Scott explained what will happen with the deployment of the barbed wire. Col Scott was briefing us from the inside of a Mercedes Vito. The briefing was not an adequate briefing, in terms of time and detail, it was very sketchy. Some members asked for clarifications but because of time this was not done sufficiently,” he continued.
Advocate George Bizos, on behalf of the Legal Resources Centre (LRC) started cross-examining Captain Loest.
The witness testified that he was a TRT commander on the 16th but did not have an R5 rifle.

When asked about common law principles of self-defence, Captain Loest replied by mentioning ‘proportionality’ and ‘imminent threats’.
“Each SAPS member on the scene acted by himself. They used their own discretion on how to deal with the situation around them. We were armed and they were armed; they attacked us and we responded,” he said.

The witness agreed that if a police man is able to defend himself without killing anyone then they should.
Captain Loest said in the situation they were facing it was not possible for the police to give a warning. Adv. Bizos asked the witness if he has ever seen people being shot in back if they were alleged to be shot in self-defence. Mr Loest said he has never seen this. Mr Bizos said some of the strikers were shot in the side.

The witness confirmed that he is aware of the common law principle that states that one must shoot in the lower body. The advocate said that eight of the strikers who died in Marikana were shot in head and neck. “I cannot comment on members that shot,” replied Mr Loest.
Captain Loest said that all police officers go through similar training of the laws governing their work and therefore it was not necessary for Brigadier Calitz to emphasise adherence to the common law principles of self-defence.
Advocate Michelle Le Roux, on behalf of the South African Human Rights Commission (SAHRC) started her cross-examination of the Captain after Adv. Bizos.

The witness said as the strikers approached the police line on 16/08/2012, they started opening their blankets and their weapons were revealed.
Ms Le Roux said she will submit that as the police opened fire at the strikers in Marikana on 16/08/2012, shots that came after the first four seconds from the SAPS members were made aimlessly because the police could not see the strikers because of the cloud of dust caused by the shots.
Advocate Le Roux told the Commission that during the shootings in Marikana, the police used fifty seven (57) 9mm rounds; two hundred and thirty three (233) R5 rounds. Captain Loest was asked if he thought this was necessary. “It’s difficult for me to answer on why eighty (80) police officers decided to open fire and that’s why I called for a cease fire because the threat I had seen had ended,” he said.

Mr Loest said it is not permissible for a police officer to open fire only because some fellow officers are firing.
The witness agreed that it is possible, that some SAPS members did not hear the call for a ceasefire. He said it is for that reason that they continue repeating the call for a ceasefire and put up the hand signals so that each and every individual understands it

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