In­quiry re­stricted in its rul­ings, says SAPS ad­vo­cate

But Far­lam says it can rec­om­mend pros­e­cu­tion

The Star Early Edition - - NEWS - SAPA

HE OUT­COME of the Far­lam Com­mis­sion of In­quiry will have some lim­i­ta­tions be­cause it is not a court of law, Ish­mael Se­menya SC, for the SAPS, said yes­ter­day.

“I will be sur­prised if the pres­i­dent re­ceives your re­port, which says ‘there are point­ers of crim­i­nal wrong­do­ing on the part of the na­tional com­mis­sioner of po­lice, please have this in­ves­ti­gated, and have the DPP (Di­rec­tor of Pub­lic Pros­e­cu­tions) pros­e­cute’,” Se­menya told the in­quiry in Pre­to­ria in his clos­ing ar­gu­ments.

“The pres­i­dent shouldn’t be in­ter­ested in that. It must be cor­rect that the pres­i­dent knows that there are in­stru­ments in this coun­try whose pri­mary statu­tory re­spon­si­bil­ity is to do that. They don’t need you to do that.”

He said the In­de­pen­dent Po­lice In­ves­tiga­tive Direc­torate (Ipid) had the re­spon­si­bil­ity to in­ves­ti­gate all com­plaints of po­lice cul­pa­bil­ity. “Why should they wait for you, as a com­mis­sion, to make that rec­om­men­da­tion?”

Se­menya said it was “com­pletely un­nec­es­sary” for the in­quiry to ven­ture into the ter­rain of pros­e­cu­tions.

The com­mis­sion chair­man, re­tired judge Ian Far­lam, in­ter­vened, stat­ing that his terms of ref­er­ence em­pow­ered him to rec­om­mend mat­ters for pros­e­cu­tion.

“Be­fore you carry on, in the terms of ref­er­ence we are en­joined, where ap­pro­pri­ate, to re­fer any mat­ter for crim­i­nal pros­e­cu­tion, fur­ther in­ves­ti­ga­tion or the con­ven­ing of a

Tsep­a­rate in­quiry,” Far­lam said.

“Clearly one of the things the pres­i­dent has told us to do is that if we think it is ap­pro­pri­ate, we should do the things I have listed.

“It is there­fore not cor­rect to say the ques­tion of pos­si­ble pros­e­cu­tions is a mat­ter we may not con­sider.”

Se­menya said Ipid was al­ready in­ves­ti­gat­ing the com­plaints against the po­lice, and the man­date of the com­mis­sion was to in­ves­ti­gate, not to ad­ju­di­cate.

“The func­tion of an in­quest is to in­ves­ti­gate, and if there is a find­ing of prima fa­cie crim­i­nal wrong­do­ing, it takes the mat­ter for­ward. It can­not make a find­ing of, for ex­am­ple, mur­der,” Se­menya said.

“You do not want to end up with an in­quest find­ing that a per­son has been mur­dered and in the same case a crim­i­nal court finds the (ac­cused) per­son is ac­quit­ted.

“You then have two struc­tures with con­flict­ing opin­ions. So I cau­tion you in the same vein.”

He said the in­quiry should be care­ful about find­ing cer­tain par­ties “un­law­ful and the like”.

“The con­sti­tu­tion re­poses ju­di­cial func­tion on civil and crim­i­nal courts that are go­ing to pro­nounce them­selves on th­ese is­sues.”

Se­menya said that where the in­quiry found ev­i­dence for the killing of a per­son, the com­mis­sion could not pro­nounce it as mur­der.

“By that you would now be do­ing ju­di­cial func­tions, not an in­ves­tiga­tive func­tion,” Se­menya pointed out.

Judge Far­lam said he had a prob­lem with Se­menya’s as­ser­tions.

“The terms of ref­er­ence say the com­mis­sion shall in­quire and make find­ings. I thought you said we must not make find­ings, but re­port on the rec­om­men­da­tions.

“Imag­ine what would hap­pen if we say to the pres­i­dent, ‘thank you Mr pres­i­dent, we spent over two years and used so many mil­lion rand hold­ing in­ves­ti­ga­tions. (But) we are not go­ing to make any find­ings be­cause we must not’,” he said.

The com­mis­sion is in­ves­ti­gat­ing the deaths of 44 peo­ple dur­ing strike-re­lated vi­o­lence at Lon­min’s plat­inum min­ing op­er­a­tions in Marikana, near Rusten­burg, North West.

Thirty-four peo­ple, mostly strik­ing minework­ers, were shot dead in a clash with po­lice, more than 70 were wounded, and another 250 ar­rested on Au­gust 16, 2012.

Po­lice said they were try­ing to dis­arm and dis­perse them.

In the pre­ced­ing week, 10 peo­ple, in­clud­ing po­lice­men and se­cu­rity guards, were killed.

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