Following the release of the Farlam Commission report last week, the Right2Know Campaign and the Marikana Support Campaign have used the Promotion of Access to Information Act (PAIA) to demand answers from SAPS on what steps it has taken in the past three years to investigate wrongdoing amongst its members.
The Farlam Commission report was released at the end of last month, three months after it was sent to the Presidency. The report has been met with disappointment from families of those who were killed and the survivors of the massacre, as well as social justice organisations.
The soft treatment given to the executive in the Commission’s findings has been highlighted in many analyses and reports. Many have expressed disappointment in the Commission’s failure to find anyone in particular to be responsible for the deaths of 34 miners on 16 August 2012. Rather, the Report, pins the blame on processes, or lack thereof, within the south African Police Services. The outrage over not acknowledging personal responsibility and accountability should not eclipse the question of what needs to be done to ensure that police who pulled the trigger, and others who implicated in unlawful action at Marikana, are held accountable.
Up until the very last day of the Commission the SAPS’s stance was that it had done nothing wrong at Marikana. Now that the report has been released it can no longer justify this stance. Despite the unsatisfactory nature of the report it clearly confirms there are considerable grounds for believing that a large number of SAPS members at Marikana acted unlawfully. The Report also indicates that several members of the SAPS deliberately mislead the Commission itself. The implication that these members acted unlawfully cannot – and should not – be disregarded by the SAPS.
The Commission found it likely that a number of SAPS members on the ground are guilty of murder and attempted murder. It concluded that there were adverse findings relating to Brigadier Calitz, Major General Naidoo, General Phiyega, Lieutenant General Mbombo and Major General Annandale, as well as the eight other officers who fired their weapons on automatic mode at Scene 2. The identity of those officers is known and the Report identifies them as having exceeded the bounds of justifiable force. We therefore call for the dismissal of these officials, and all others who are found to be implicated in the killings. We also call for General Phiyega to resign immediately from her position as Police Commissioner of the SAPS.
Despite its shortcomings, the Commission’s recommendation that these cases should be investigated for possible prosecution raises questions about what, if anything, the SAPS has done in the three years since the massacre:
1. Has the SAPS taken any steps to identify police members who may have exceeded the bounds of justifiable force at Scene 1 and Scene 2? If so, what?
2. Has the SAPS initiated criminal investigations or disciplinary measures against any of these members?
3. How many of the officers involved in the killing are still carrying firearms?
4. Do any of the members of the SAPS who were involved in the killings at Marikana continue to serve in NIU, SDF, TRT or K9 units?
5. Have any steps been taken to review the suitability and fitness of members of the SAPS who were involved in the killings at Marikana to continue serving in the SAPS?
6. Have any steps been taken to assess the impact of participation in the events at Marikana on members of the SAPS who were involved?
R2K and MSC have submitted a request in terms of the Promotion of Access to Information Act (PAIA) to the SAPS for answers to these questions.
What about efforts to protect and promote the right to protest?
We welcome the Commission’s finding on the need to demilitarise the police urgently. As evidence leaders argued, in recent years South Africa saw a remilitarisation of police that was accompanied by a repoliticisation of the police.
This underscores how superficial the existing ‘demilitarisation’ effort by police appears to be, as announced by Police Minister Nathi Nhleko in May 2014. Since then, police have sought an extra R3,3 billion for Public Order Policing over four years, seeking more muscle for the policing of dissent. Many protesters across the country continue to experience harassment and brutality from police, as evidence by the 14 protesters killed by police since the start of 2014, and the at least 86 protestors killed by the police since 2004.
South Africans should be disappointed in the general lack of detail in the Commission’s findings on how better to protect the right to protest going forward. The Commission found that automatic rifles like the R5 should not be used to police protests, which is to be welcomed. But almost every other crucial question on reforming public order policing has been placed on hold by the recommendation that an expert committee be set up to deal with this issue. For example, the Commission has no clear finding on whether or not paramilitary units such as the Tactical Response Team should be involved in policing protests. The establishment of the Tactical Response Teams was a core part of the process of militarisation of the SAPS and these units need to be at the starting point of the focus of demilitarisation efforts.
FACT SHEET: SAPS as per the Farlam Commission Report
The Commission’s report indicates that:
At Scene 1
- In relation to the TRT members who fired their weapons at Scene 1 the report says that the Commission ‘does not believe that it would be appropriate to draw an adverse inference against all those fired their weapons at scene 1’. Nevertheless it says that ‘None of the shooters at Scene I have as yet provided a statement that demonstrates that each one of the shots that they fired was justified. Furthermore the report says that ‘There are indications that some may well have exceeded the bounds of self or private defence, in which event there is at least a prima facie case that they are guilty of attempted murder.’
At Scene 2
- There is no dispute about the fact that members or the National Intervention Unit (NIU), K9 unit and TRT were responsible for the killings at Scene 2. Though the report does not state so explicitly it indicates that there is no positive evidence that any of the strikers at scene 2 shot at the police. Three years after the massacre the SAPS has not provided a satisfactory account of any of the deaths at Scene 2. The report says that the South African Police Service ‘provided no details of what happened with regard to the deaths of most of the deceased at Scene 2’ and that ‘where it does provide evidence pertaining to the deaths of some of the deceased, their versions do not, bear scrutiny when weighed up against the objective evidence.’
- Most explicitly the report appears to regard as credible the evidence that Major General Naidoo, accompanied by a group of police officers from the K9 unit continued firing at the strikers at scene 2, despite being told to ceasefire, and when there was no evidence of shooting by strikers. Major General Naidoo contradicted his own written statement in his oral evidence before the commission after ballistic evidence showed that a cartridge case linked to Major General Naidoo’s firearm was found on top of the rocks at Scene 2.
- Whereas the Commission’s report is characterised by a lack of detail, more detailed analysis of the accounts provided by the SAPS of many of the killings at Scene 2 are provided in the final heads of argument of the families of the deceased the South African Human Rights Commission. Inter alia the report makes note of the submission by the families that all of the killings were unlawful. While the report finds that the SAPS accounts do not ‘bear scrutiny’ the report indicates that the arguments provided by the SAHRC and Families are of merit. They, as well as the heads of argument of the evidence leaders, should therefore also be regarded as relevant to assessing the steps that are required against SAPS members.
Failure to provide timely medical assistance to injured miners
- In addition to failing to ensure that medical assistance was provided to the strikers at Scene 1, Major General Naidoo
 518(6) of the Farlam Commission Report
 517(4) of the Farlam Commission Report
 517 (5) of the Farlam Commission Report
 313 (1) and (2) of the Farlam Commission Report
 316 of the Farlam Commission Report
 318 of the Farlam Commission Report
 316(10) of the Farlam Commission Report
 320 onwards