Far­lam strikes back at Phiyega

For­mer po­lice com­mis­sioner’s ac­cu­sa­tions re­gard­ing in­quiry ‘base­less and a gra­tu­itous at­tack on me’, says head of Marikana com­mis­sion

CityPress - - News - ABRAM MASHEGO abram.mashego@city­press.co.za

Re­tired Judge Ian Far­lam has ac­cused for­mer po­lice com­mis­sioner Riah Phiyega of at­tack­ing him and other mem­bers of the Marikana Com­mis­sion of In­quiry. In a sworn af­fi­davit, which was filed on Thurs­day on be­half of the com­mis­sion, Far­lam states that “the con­tention that the com­mis­sion acted ma­li­ciously and in bad faith is base­less and a gra­tu­itous at­tack on me, [and] other mem­bers of the com­mis­sion”.

Far­lam was re­spond­ing to a se­ries of ac­cu­sa­tions made by Phiyega in her ap­pli­ca­tion to the High Court in Pre­to­ria filed in June last year in which she is chal­leng­ing the com­mis­sion’s find­ings against her.

In the af­fi­davit, Far­lam states that he “on a num­ber of oc­ca­sions, had to in­ter­vene as [Phiyega] gave ev­i­dence and to pro­tect and as­sist her where I felt that the ques­tions posed were un­fair and/or vague”.

“It was not my in­ten­tion to hu­mil­i­ate [her], nor does it ap­pear so from a pe­rusal of the tran­script.”

Phiyega is try­ing to clear her name by tak­ing the Far­lam Com­mis­sion’s re­port – which found that she mis­led the com­mis­sion and con­cealed in­for­ma­tion about the in­fa­mous “Scene 2” at which po­lice of­fi­cers gunned down 18 strik­ing min­ers, many in the back – on re­view.

In her ap­pli­ca­tion, Phiyega ac­cuses Far­lam and ad­vo­cates Ban­tubonke Re­gent Tokota SC and Pingla Devi Hem­raj SC, who as­sisted him at the com­mis­sion, of hav­ing “cut-and-pasted ev­i­dence lead­ers’ heads of ar­gu­ments”.

City Press ob­tained a copy of a mem­o­ran­dum pre­pared by Werks­mans At­tor­neys, in which they high­light sim­i­lar­i­ties be­tween Far­lam’s find­ings and the sub­mis­sions by ev­i­dence lead­ers.

How­ever, Far­lam de­nies his find­ings were “in­ac­cu­rate or vi­ti­ated with il­le­gal­ity, nor were they ir­ra­tional, ma­li­cious and sus­cep­ti­ble to ju­di­cial re­view”.

Phiyega, whose le­gal fees for the re­view were paid by the state, was this week forced to sign an un­der­tak­ing that she would re­fund tax­pay­ers the costs in­curred in her pro­tracted le­gal bat­tle should she lose the case.

Phiyega’s prob­lems started two months af­ter Pres­i­dent Ja­cob Zuma ap­pointed her as na­tional po­lice com­mis­sioner, with the mas­sacre at Marikana of 34 strik­ing mine work­ers in 2012. Ten peo­ple, in­clud­ing two po­lice of­fi­cers, were killed in the week prior to the mas­sacre. The Far­lam Com­mis­sion was crit­i­cal of Phiyega’s role in the events sur­round­ing the mas­sacre.

Although 18 mine work­ers have ap­peared in court charged with the mur­ders com­mit­ted in the days lead­ing to the mas­sacre, no po­lice of­fi­cers have been in­ves­ti­gated or charged for their roles in the mas­sacre and the ex­tra­ju­di­cial killings at Scene 2.

Po­lice watch­dog the In­de­pen­dent Po­lice In­ves­tiga­tive Di­rec­torate (Ipid) has iden­ti­fied Phiyega and 72 po­lice of­fi­cers as sus­pects it be­lieves should be prose­cuted for their role in the mas­sacre.

For­mer North West com­mis­sioner Lieu­tenant Gen­eral Zuk­iswa Mbombo, Bri­gadier Ledile Malahlela, and North West deputy po­lice com­mis­sion­ers Ma­jor Gen­eral Ganasen Naidoo and Ma­jor Gen­eral Wil­liam Mpembe are also on Ipid’s list. Their pro­posed charges will range from mur­der and as­sault to per­jury and de­feat­ing the ends of jus­tice. In its pre­sen­ta­tion to Par­lia­ment in March, Ipid re­vealed that the in­ves­ti­ga­tions were at an ad­vanced stage and it un­der­took to sub­mit the dock­ets to the Na­tional Pros­e­cut­ing Author­ity (NPA) by April 24. But the watch­dog con­ceded it had not yet ob­tained all rel­e­vant state­ments, nor had it ver­i­fied some of the video footage ob­tained dur­ing the in­ves­ti­ga­tion. “Sixty-four warn­ing state­ments are out­stand­ing out of the 184 crime scene re­con­struc­tions,” said the re­port. A warn­ing state­ment is the fi­nal stage in an in­ves­ti­ga­tion, and is is­sued to sus­pects who are of­fered an op­por­tu­nity to state their side of the story. The NPA then de­cides whether or not to pros­e­cute. Ac­cord­ing to the pre­sen­ta­tion, “all rel­e­vant state­ments per­tain­ing to” Phiyega’s and Mbombo’s roles in mis­lead­ing the Far­lam com­mis­sion were sub­mit­ted to the NPA, and Ipid was wait­ing for fur­ther guid­ance. An­other docket im­pli­cat­ing Naidoo in the shoot­ing of mine work­ers has also been sub­mit­ted to the NPA. It refers to Naidoo fail­ing to in­form Ipid that he had also fired shots at the scene, and that he had re­fused to sub­mit his firearm for bal­lis­tics test­ing. The prose­cu­tion is yet to an­nounce its de­ci­sion on the mat­ter.

PHOTO: REUTERS

NAMASTE Girls prac­tise yoga dur­ing a train­ing ses­sion at a school com­pound ahead of In­ter­na­tional Yoga Day in Ahmed­abad, In­dia, yes­ter­day

Riah Phiyega

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