Phiyega’s silence on Marikana may come back to bite her, Inquiry told

“This is a crucial thing, members of the board. This commission is entitled to accept as a point of departure that the adverse findings (of the Marikana Commission of inquiry led by retired Judge Ian Farlam) constitute prima facie evidence against the national commissioner. That was clearly understood by her,” evidence leader Ismail Jamie, SC told the inquiry in Centurion, Pretoria.

“The factual findings of the Farlam Commission constitute prima facie evidence against her. Not against her and anyone else (but) against her.”

In his closing arguments, Jamie said Phiyega should have presented her side of the story, regarding the August 2012 Marikana incidents which left more than 44 people dead.

“If a prima facie case is made against you, and you elect not to rebut that with evidence, you run a risk which very often is the inevitability that notwithstanding where the onus lies – that is going to come back to haunt you. There is prima facie against her, and yet she didn’t testify,” said Jamie.

He said unlike the Farlam inquiry, the Claassen board of inquiry’s recommendations may result in criminal liability.

“This is the reason why the Farlam Commission did not go on to say anyone was guilty of anything. That is the important reason why this board of inquiry was set up, precisely because the Farlam Commission didn’t have power to make findings of fact which would go on to civil criminal liability,” said Jamie.

“This board does have the power to make findings of fact, we submit, which will have civil consequences if your recommendation is that, as we submit should be, she is unfit for office and if that recommendation is accepted by the president.”

Phiyega is facing questions over her role as national police chief in the Marikana unrest, where 34 people, mostly striking mineworkers from the Lonmin mine, were shot dead in a clash with police on August 16, 2012.

More than 70 people were wounded, and 250 were arrested at the company’s platinum mining operations in Marikana, near Rustenburg. In the preceding week, 10 people, including two policemen and two Lonmin security guards, were killed in the strike-related violence.

President Jacob Zuma set up the Claassen board of inquiry into Phiyega’s fitness to hold office in September, in line with a recommendations by the Farlam commission which was set up to investigate the unrest.

Phiyega’s actions prior to and on the day of the August 16 incident, believed to be the biggest loss of life in a single police operation in post-apartheid South Africa, was heavily criticised by the Farlam commission of inquiry.

In June last year, Zuma released the report of the Farlam Commission. It recommended the board of inquiry into Phiyega’s fitness to hold office after finding fault with the police’s “tactical” plan to deal with the striking miners.

The Farlam Commission also found the police had misled it about its plans on the day of the deadly shootings.

The Claassen inquiry was scheduled to hear closing arguments on Wednesday, but those plans were momentarily put on ice when Advocate Dali Mpofu, representing Association of Mineworkers and Construction Union (Amcu) boss Joseph Mathunjwa and all mineworkers who were injured or arrested at Marikana, sought permission to present Mathunjwa’s late affidavit.

“I wish to assure the board that the lateness of the intervention has nothing whatsoever to do with disrespect, it has nothing to do with undermining the dignity of the board. If anybody’s dignity is at stake, it is that of the victims. We express appreciation even to be given this audience,” Mpofu said as he read out Mathunjwa’s appeal to be permitted to give evidence at the inquiry.

Phiyega’s defence team, led by Advocate Mahlape Sello, said they no longer objected to the evidence of Mathunjwa and the Marikana “victims” being admitted. Claasen subsequently ruled that Mpofu can give evidence on behalf of his clients.

Judge Cornelis Claasen chairs the three-member board, assisted by advocates Bernard Khuzwayo and Anusha Rawjee.

Closing arguments continue on Thursday.