Inquiry paints damning portrait of the Marikana massacre

On Wednesday the Marikana Commission of Inquiry heard the first day of closing arguments. It marks a moment for the legal teams to examine the events leading to 16 August 2012, where 34 miners were killed and 78 injured during a strike by platinum mine workers. The day was dominated by the evidence leaders, who dismantled the South African police’s case and reminded everyone that it was people, not faceless caricatures who died.

A passionate plea

The evidence leaders argued: “In a constitutional democracy it is never acceptable for a line of police members armed with military assault rifles to fire 300 shots into a crowd of striking miners. That is never acceptable in a constitutional democracy.”

To they court they said: “I would strongly emphasise that you try to take yourselves back to the first time that you saw what we now have seen day in day out on the Reuters footage, on the TV footage, to stop thinking of the striking miners as an undifferentiated faceless mob.

“Start thinking of individuals.”

This passionate plea from evidence leader Advocate Matthew Chaskalson set the tone for the first day of closing arguments. You can read the full statement by Chaskalson on the Daily Maverick, here.

On the events later in that fateful week, the evidence leaders argued improper political influence, stemming from South Africa’s deputy president Cyril Ramaphosa’s phone calls, which led to the decision to remove the strikers. The decision on 15 August by the country’s top police officers to disarm and disperse the protesters the next day led to the 34 deaths. Nevertheless, the evidence leaders say neither Ramaphosa nor the officers at the meeting can be held to be legally responsible for the killings.

In their heads of argument, the evidence leaders said all mineworkers who can be identified to have carried dangerous weapons should be investigated and charged. On Wednesday, Chaskalson said he realised this was a double standard. He later argued that all South African police service (SAPS) members who fired a weapon recklessly should also be investigated and charged.

Disproportionate force

The shootings at “scene one” were disproportional to the threat, Chaskalson submitted. “When it comes to justify a killing, a case has to be made out that there was an imminent threat from the person who was killed,” he said. The commission cannot conflate common intention with the objective threat.

Some miners may have intended to harm police and evidence shows one shot a pistol towards them, but it cannot be assumed that they all had violent intent, as there’s also evidence of miners in the front group with no weapons, he argued.

Police exceeded the bounds of private defence and inadequate care was taken to shoot at lower limbs and stop shooting within a reasonable time, said the evidence leaders.

They have also recommended investigations of criminal liability for North West Provincial Commissioner Zukiswa Mbombo, who pushed the plan to disperse the strikers. They recommend investigations into the few deaths that can be tied to specific guns, particularly those shot with 9mm pistols.

Scene Two

Looking at “scene two”, the evidence leaders say Brigadier Adriaan Calitz and Major-General Ganasen Naidoo should be investigated for criminal liability as they were present on the ground. If they deliberately turned a blind eye to the “uncontrolled free-for-all” they could face murder charges or at least culpable homicide.

Leaders on the day including Mbombo, Mpembe, and Major-General Charl Annandale should also be investigated for failing to stop the killings when they likely knew of the deaths already at scene one.

Scathing summary

Evidence leader Geoff Budlender was scathing in his summary of the SAPS at the commission. He argued that since the day after the killings, from the top down, police allegedly misled the public on what happened, lied to the commission, and hid evidence such as to how the decision to disarm the strikers was made by top cops on 15 and not 16 August, including the ordering of mortuary vehicles and 4,000 rounds of ammunition.

He also referred to the officers planting weapons on bodies at scene two, instances where officers allegedly told witnesses to modify their statements if they cast police in a questionable light, and allegations that they turned on anyone who broke ranks with the SAPS agenda of deceit.

“It’s a disgrace,” said Budlender on recent submissions by the top ranking officers around the country.

The search for accountability

The evidence leaders have asked the commission to recommend an inquiry be held into the fitness of National Commissioner Riah Phiyega to hold office. They argue that a cover-up appears to be police policy, which she would known about, and that Phiyega clearly lied during her appearances at the commission.

The day finished with Michelle Le Roux for the SA Human Rights Commission (SAHRC) appearing briefly. She said that her clients look to ensure accountability is achieved and will attempt to hold the SAPS accountable as an organisation, rather than punishing individuals. Le Roux will continue on Thursday and the commission will also hear from George Bizos for the Legal Resources Centre representing the family of John Kutlwano Ledingoane.

The commissioners then have until March 2015 to turn the unimaginable horror into a report for the president.

A longer version of this article originally appeared in Daily Maverick