Marikana commission postponed on request for move to Pretoria

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The commission’s chairman‚ retired Judge Ian Farlam‚ was to have discussed the application with Justice Minister Jeff Radebe on Wednesday but he received an opposing affidavit by the community that owns the land where the Lonmin Platinum Mine in Marikana is based.

This meant the relocation application had to be put on hold pending further input from the parties.

Last month‚ Maluleke Msimang & Associates‚ acting for about 300 victims of the Marikana tragedy in which 34 mineworkers were killed by police on August 16‚ lodged an application to relocate the seat of the commission. Some of the reasons given included the financial burden of travel and accommodation costs.

In the opposing papers received on Tuesday‚ the Bapo ba Mogale community said the relocation of the community would deny traditional communities in the North West access to justice.

Before the adjournment on Friday‚ Judge Farlam said the parties still had to file affidavits in reply to the opposing affidavit and the matter would be heard on April 16.

National police commissioner Gen Riah Phiyega was still on the witness stand on Friday and she agreed with counsel for the arrested and injured miners Adv Dali Mpofu that if the commission found some police officers had breached any principles of crowd management in Marikana on August 16‚ remedial action would have to be taken.

On that day‚ police shot and killed 34 striking workers and injured more than 70 others in an operation that was meant to disperse and disarm the crowd of 3‚000 miners who had assembled at a koppie near an informal settlement in Marikana.

However‚ Gen Phiyega explicitly refrained from promising that "heads will roll" should the officers be found to have breached the standing orders for crowd management.

Adv Mpofu put it to Gen Phiyega that‚ “If the individuals are found to have been responsible for those breaches right through the chain‚ there should be consequences and heads must roll given the fact that so many lives have been lost.”

Gen Phiyega replied that relevant remedies would be considered but refused to say heads would roll.

Adv Mpofu said Section 47 of the South African Police Service Act stated that a member should obey any order or instruction from a superior provided it was not patently unlawful.

He said if a police service member was found to have breached a standing order‚ consequences should follow.

"I will exclude the rolling of heads. I want to say relevant remedies‚" Gen Phiyega said.

Gen Phiyega had commissioned a report because there were two sets of photographs depicting the dead workers.

In some pictures taken at the scene‚ the miners are seen without weapons. In other pictures taken on the evening of August 16‚ the same miners are now depicted to be in possession of weapons.

Adv Mpofu said he would argue that the placing of the weapons was an afterthought‚ to bolster the police argument that they were acting in self defence on that day.

Gen Phiyega said she would not agree‚ based on the report she had commissioned which revealed that weapons were removed from the bodies to ensure that paramedics assisted the men‚ and later replaced.

When Mpofu asked whether the idea of a dead body being manipulated was something that was offensive to the culture of the people and respect given to dead people‚ Gen Phiyega replied that this was an "emotionally laden statement".

"Let’s stick to the facts. Weapons were removed to assist those who were there‚ to assist those who were injured‚" she said.