Police's Marikana lawyers must be probed

The recommendation that National Police Commissioner General Phiyega be probed for possibly lying to the Marikana Commission of Inquiry raises serious questions about the conduct and integrity of the lawyers who represented the SA Police Service at the commission.

Last month President Jacob Zuma announced the establishment of a commission to be led by Retired Judge Neels Claasen to investigate Phiyega's fitness to hold office. This is in line with a recommendation by retired Judge Ian Farlam in his final Marikana Commission report.

In the report, Farlam says that police leadership at the commission, at the highest level, appear to have taken a decision not to give the true version of events that led to the killing of 34 mineworkers on August 16 2012.

Farlam said an inaccurate set of minutes for a meeting where a decision was taken to confront the strikers was prepared and a number of SAPS witnesses testified before the commission in support of the incorrect version.

He submitted that there is at least a prima facie case that Phiyega and then provincial commissioner for the North West, Lieutenant-General Zukiswa Mbombo, who knew the true facts, approved this incorrect version.

Questions about the police case at the Marikana Commission of Inquiry were raised as early as October 2012 when proceedings got under way in Rustenburg, with lawyers for the victims questioning photographic evidence at scene two where 18 miners were shot dead by police on August 16.

In the first set of photographs taken by police crime scene experts in daylight, the bodies of shot miners are photographed lying among rocks with no weapons next to them.

Then in another set, which was photographed at dusk, pictures showed the same bodies, with weapons seemingly planted in their hands or next to them.

The police explanation for this was that the weapons had been removed to allow paramedics to attend to the men before they were put back. Then in September 2013, the commission was postponed for two weeks after evidence leader advocate Geoff Budlender announced that they had discovered crucial documents and videos which police had earlier claimed did not exist.

But did the police legal team at any stage question the SAPS management about possible cover-up attempts after these concerns were raised?

And if not, why?

The revelation of concealed evidence, further fuelled suspicion that the SAPS top brass were involved in cover up attempts similar to those of apartheid police when they attempted to clear their tracks in crimes against activists.

There was also the contentious issue of the Roots Conference, which was attended by police top brass and all involved in the calamitous Marikana operation held in Potchefstroom from August 27 to September 8 2012.

In its submissions, the SAPS claimed the conference was held to debrief and prepare for the commission. However, the SAPS failed to provide minutes of that meeting to the commission.

Based on this, lawyers for the victims argued that the conference could in fact have been an exercise to cook up a version that was not based on fact, but rather a cover up based on the distortion of the truth.

Evidence leaders argued that the SAPS constructed and concealed evidence, in order to support a version cooked up at the Roots Conference, and that this could not and would not have happened unless it had the sanction of top leadership of the SAPS.

In the commission's final report and heads of arguments submitted by evidence leaders, many accounts reveal that police either deliberately withheld evidence or at worst, attempted to distort the truth.

But what was the role of the SAPS legal team in all this? The relevant regulatory bodies in the legal fraternity need to follow Zuma's example and probe the conduct of these lawyers who were paid millions by the taxpayer to help the commission establish the true facts regarding the deaths of 44 people killed at Marikana.

Lawyers, have an ethical and moral obligation to uphold the truth even if it is to the detriment of their clients' case and possibly result in loss of income, especially at inquiries to establish truth behind tragic events such as Marikana.

If indeed the police top brass lied, did they do so with the full knowledge and assistance of their legal team which comprised such legal heavyweights as Ishmael Semenya, Vuyani Ngalwana and Tebogo Mathibedi, all senior counsel? A probe into the conduct of these lawyers would help address any doubt over the integrity of not only these SAPS lawyers but of the legal profession in general.

 Comment at ledwabal@sowetan.co.za