Phiyega’s costs fall to taxpayers
The state has spent millions on the former police commissioner’s ‘zombie litigation’
The government has thrown R5.5-million — and counting — into a black hole of litigation for former police commissioner Riah Phiyega to clear her name in relation to the Marikana massacre, despite a high court finding her application was threadbare and not in the public interest.
At the time of going to print the South African Police Service (SAPS) had not responded as to whether the government would be carrying the burdens of the costs order awarded against Phiyega by the Pretoria high court in its judgment on 30 May.
Phiyega has already filed a notice to appeal the high court judgment, and lawyers who spoke to the Mail & Guardian said the next round of litigation would push the cost to taxpayers to above the R10-million mark.
This amount would increase if the matter went to the Constitutional Court. For context, the M&G understands that, with a R10-million budget, lawyers at the South African Revenue Service would pursue tax disputes of about R650-million.
Phiyega was just two months into her job as national commissioner when police shot dead 34 striking miners at platinum-mining company Lonmin’s Marikana operation in the North West on 16 August 2012. Ten men, including striking miners, nonstriking miners, Lonmin security staff and two policemen were killed in the 10 days before the massacre.
The Farlam commission’s report was scathing about the role Phiyega played. It found that police leadership “on the highest level” had sought to deceive the commission about how the police decision to “go tactical” (use live ammunition and force) on 16 August 2012 was reached, and to conceal that the plan did not include input from public order policing members. The latter is a legal obligation in such situations.
The commission also found that Phiyega and the police leadership had not disclosed that the decision to “go tactical” had been made at a meeting of the National Management Forum (with the various provinces’ commissioners present) on the eve of the massacre.
Judge Ian Farlam recommended an investigation into Phiyega’s fitness to hold office. She was subsequently suspended on full pay. The high court found Phiyega’s challenge to the recommendation for further investigation into her fitness was moot, because former president Jacob Zuma had already set up a board of inquiry. In 2016 it recommended that she be fired. Zuma did not do so and Phiyega’s contract ended in 2017, with full benefits accrued.
Advocate Geoff Budlender SC, one of the evidence leaders at the Farlam commission, said: “The findings of the Farlam commission were fully and clearly justified and explained. In my opinion, there is no basis for this litigation, which appears an unwarranted waste of public money. If she feels so strongly about the matter, she should fund this herself.”
A lawyer working for the state described Phiyega’s application as
“zombie litigation”, with little chance of success.
Nomzamo Zondo, the executive director of the Socio-economic Rights Institute, which represents the majority of the families of the striking miners killed by police at Marikana, said the litigation was misguided. “Phiyega seeks to attack the commission’s conclusions and not the facts. If you take the facts independently, you still reach the same conclusions about a police cover-up … She is also conflating her personal interest with the public interest. Phiyega is coming to the high court and saying ‘I want to clear my name’, not ‘I want to clear up what happened.’ The truth about what happened on the day of the massacre is the very least that the families deserve,” Zondo said.
“She may be right to say that she shouldn’t be the only one to be blamed for what happened at Marikana — many of the policemen there have since been promoted and [then police minister] Nathi Mthethwa is still in the cabinet — but
then she must come clean and tell us all she knows about Marikana.”
This view was echoed by Nokuthula Zimbambele, the widow of Thobisile Zimbambele, who, during the Farlam commission, told the M&G that Phiyega’s evidence left her cold: “There are things that make a woman: sympathy and mercy. She has none of that.”
This week, Zimbambele was astonished that Phiyega was fighting the findings of the commission: “She has never paid for what happened to our husbands. She kept her salary and she has never apologised to us. I cannot believe that she now wants to clear her name.”
Zondo said it was criminal that the government was paying for this kind of litigation while, nine years down the line, it had yet to settle the general damages claim — for trauma, loss of life, et cetera — with the families of the striking miners.
In an interview on Wednesday, the former police commissioner said she was prepared “to fight this all the way”, because she had been made a “scapegoat” for what had happened at Marikana. “I’ll do everything to fight for my justice,” she said.
On Wednesday, Phiyega refused to comment on whether she would be personally paying the costs order against her. She also declined to comment on whether the state paying for her legal fees in this litigation was a term of her five-year contract.
She has, on the taxpayers’ bill, enlisted Werksmans Attorneys as her lawyers, in an attempt to have sections of the report by the Farlam commission of inquiry set aside.
The findings and recommendations of Farlam’s report that Phiyega has sought to set aside include:
The SAPS had prepared “an inaccurate set of minutes” for the Joint Operations Committee’s 6.30am meeting on the morning of the massacre. This was submitted to the Farlam commission and police witnesses testified in support of the incorrect version.
Before the evidence leaders’ discovery of evidence of a police cover-up of the massacre, which had been stored on SAPS hard drives, the police had submitted their version of what happened at Marikana, “Exhibit L”. The commission found that “Exhibit L” contained “incorrect facts” and that there was “at least a prima facie case” that both Phiyega and then North West provincial commissioner Lieutenant-general Zukiswa Mbombo approved “Exhibit L”, despite knowing the “true facts”.
The commission’s finding that Phiyega had, in a media statement read out in public on 17 August 2012 and a report sent to then-president Zuma, sought to mislead the nation and the president. This was done by “deliberately” creating the impression that there was only one shooting incident at Marikana, and not two. At the second incident, 17 men were killed by police: 11 were shot in the back and four shot execution style in the head or neck — suggesting they were hunted down and killed.
Answering parliamentary questions put to him in 2017, then police minister Fikile Mbalula confirmed that Phiyega had, while suspended, received a salary of more than R2-million, a non-pensionable cash allowance of R562 541.23 and a head of department allowance of R299 244.08 until April 2017. In addition, contributions to her pension fund totalled R335130.47. The total cost to the fiscus was R3.2-million.
In the Pretoria high court, Judge Natvarlal Ranchod found that “mootness and pre-emption” rendered two of Phiyega’s attacks on the Farlam report “academic” and that only a “small residue” of her case, and the relief sought, was “still alive” — but he was still unable to find for the former police commissioner.
He ruled that the application was not in the public interest and that she had failed to prove simple aspects of her case, including the “tremendous” effect of Farlam’s findings on her reputation.
The SAPS has yet to respond to several questions from the M&G, including who authorised Phiyega’s litigation and on what grounds this was approved.