Riah Phiyega was restricted from intervening in the labour unrest in North West prior to the Marikana massacre, and so there’s no way she could be liable for the orders that led to the massacre.
This was the submission of the suspended police commissioner on Thursday as she sought to absolve herself from blame for the August 16, 2012 shooting at the Lonmin platinum mine in Marikana.
Instead, she appeared to divert the blame on retired North West police commissioner Zukiswa Mbombo, saying she was restricted due to strict provisions of the SA Police Service Act, which prohibited her from circumventing provincial police chiefs.
Phiyega made these assertions on Thursday when she testified before the Claassen Board of Inquiry, which is probing her fitness for office.
“If the national commissioner was not authorised, in the absence of a directive from the president in terms of the SAPS Act, we submit that the national commissioner could not assume control and management of the police function in Marikana in that period,” Phiyega said through her counsel, advocate Mahlape Sello.
“If she did… (act) then she would have exceeded her powers. She would have contravened the provisions of section 17 and section 12 (of the SAPS Act).
"Most importantly, she would have offended the provisions of section 207 (4) of the constitution.”
Phiyega has come under severe criticism – both at the Claassen Board of Inquiry and the Farlam Commission of Inquiry – for her alleged role in the massacre and for her actions prior to the massacre, where 34 people were killed.
The massacre is believed to be the biggest loss of life in a single police operation in post-apartheid South Africa.
Not even the assertions of political influence appear to have induced empathy for Phiyega, with her opponents maintaining that she had acted of her own free will.
On Thursday, however, Phiyega argued, through her counsel, that it was important to understand the SAPS Act in relation to the strikes like the one in Marikana.
She said the unrest had started off as a strike, followed by public disorder, and then deaths.
“As the events started, it was a public-order-policing function, and that was directly under the (then) provincial commissioner Lieutenant-General Zukiswa Mbombo.
"As matters developed and the issue of her capacity to deal with what was transpiring, it became incumbent upon her to engage her national commissioner,” said Sello.
She then suggested that she could only have acted with a directive from President Jacob Zuma. “What the law doesn’t require of her (Phiyega) is to take over the functions of the provincial commissioner, unless she is so directed by the president.”
Earlier, advocate Dali Mpofu, representing mineworkers who were arrested and injured during the shootings, said Phiyega should be discharged from her job as she has violated her constitutional duties and her oath of office.
“If we do not act, if we allow politicians to make people to violate their oaths of office such as the national commissioner had to do, (that would be an injustice).
"We submit that a person who is made to do that, inter alia, by political pressure should not even be allowed to come anywhere near the office of a national commissioner.”
Earlier, Amcu (Association of Mineworkers and Construction Union) president Joseph Mathunjwa submitted an affidavit that the board of inquiry extend its scope to allegations of political influence into the massacre.
Mpofu said although the Farlam Inquiry had found that there was political pressure by Deputy President Cyril Ramaphosa – who was a major Lonmin shareholder in 2012 – Phiyega was not blame-free.
“He (retired Judge Ian Farlam) found that the political pressure did happen. Not only did it happen, it was taken into account, inter alia, by the national commissioner.
"Under those circumstances, it is our respectful submission that for the sake of our clients and for the sake of this country, you should find that on the basis of specifically succumbing to political pressure, the national commissioner is guilty of misconduct and is not fit for office,” argued Mpofu.
Advocate Dumisa Ntsebeza SC, for the families of the victims, has testified that Phiyega’s statement remains one of the most shocking actions following the massacre.
He said Phiyega had failed to seize the opportunity during the Farlam Commission to set the record straight.
The advocate believes Phiyega should have foreseen bloodshed in Marikana and that a statement congratulating police officers after the massacre was wrong. “It was the worst statement anybody who was a police officer could make…” he said.
African News Agency