THE Marikana Commission of Inquiry has confirmed that the police do not have video footage of the massacre in which 34 miners were shot dead - as it should in terms of the law.

Yesterday commission chairman Judge Ian Farlam said he found it strange that the police could overlook this as it was standard procedure for members of public order policing to record protests on video.

A video recording, among other uses, assists the police in cases where there is legal action against them relating to the incident.

Advocate Schalk Burger, for Lonmin, also said he found it hard to understand how the fact that there was no video recording of the Marikana massacre seemed to have been of little concern to the police.

The two legal eagles were responding to testimony by SAPS witness Colonel Cornelius Botha, who told the commission that he was specifically ordered to video record the day's proceedings from a helicopter.

But he had failed to capture the two incidents in which 34 miners had lost their lives and more than 70 of their colleagues were seriously wounded.

The commission has learnt that 16 people died when the police fired at protesters for the first time when they broke through the barbed wire the police had set up. The police fired a second fusillade further from the hill where the protesters had first gathered.

Botha told the commission that when the helicopter he was recording from eventually landed he was told by his superior, Brigadier Van Zyl, that "many people have been killed".

Botha said despite this Van Zyl - who had ordered Botha to video record the operation - had not asked if he had footage of the killings.

"I fail to follow your testimony. You get off a helicopter, you tell the brigadier that you have a video recording; but the next question is not whether you have recorded the killings?" Burger asked Botha in disbelief.

Botha has also told the commission that two stun grenades were fired from the helicopter he flew in.

Burger also questioned the fact that the police had a nine-day bosberaad in Potchefstroom to review the Marikana "operation" and none of the officers present ever asked if anyone had video footage of the killings.

Advocate George Bizos, representing the Legal Resources Centre, had also previously questioned Botha's testimony.

Bizo's argued that video footage of the incident would have been an important part of such a review. He found it hard to believe that the police (according to Botha) did not seem to think so.

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Warning to journalists

THE Marikana Commission yesterday warned journalists who published, without permission, information leaked by commissioners or the legal representatives of various parties affected by the massacre and meant to be presented as evidence, could be jailed.

Evidence leader Mike Chalskalson warned that such behaviour was in contravention of the regulations of the commission and such an act was regarded as a criminal offence.

The warning comes after e-mails between Cyril Ramaphosa and Lonmin board members were published last week. In the e-mails, Ramaphosa advised that the strike should be seen as a "dastardly criminal act that needed concomitant action to be taken". Ramaphosa's advice apparently happened 24 hours before the massacre took place.

Last week advocate Dali Mpofu described the killing of the 34 miners as a "premeditated murder of defenceless people." Ramaphosa has since offered to testify at the commission.