Marikana prosecutions beyond Farlam’s scope – SAPS

2014-11-13 17:20

Police have argued that the Farlam Commission has no power to tell President Jacob Zuma that certain people should be prosecuted for the killings in Marikana.

Advocate Ishmael Semenya, representing the South African Police Service, told retired Judge Ian Farlam that he would be seriously surprised if the commission’s report, which is meant to be advisory and will be handed over to Zuma in March 2015, would say there are serious criminal wrongdoings, saying certain people should be investigated and that others should be prosecuted.

“There are already instruments in this country [whose] statutory responsibilities are to do that.

Their function is to investigate independently. They don’t need you to make that recommendation.

It’s completely unnecessary to explore that terrain; it’s outside your province,” said Semenya.

He went on to advise that if there was any vicarious responsibility on the part of the minister, the lawyers of the wounded and arrested and the families of the deceased should sue the minister.

But Farlam made it clear that it was his responsibility given by the president that the commission should investigate and make the appropriate recommendations, including asking for further investigation.

“The commission shall, where appropriate, refer any matter for prosecution, further investigation or the convening of a separate inquiry to the appropriate law enforcement agency, government department or regulator regarding the conduct of certain persons.”

Only after this, Semenya went into the merits of his case.

He began by arguing that the country should not be numbed by time as to the horrors that unfolded in the week in August 2012.

“Lieutenant [Shitumo] Baloyi says that he suffered nine stab wounds – two stab wounds on the head, two stab wounds were on his right shoulder, two on his left shoulder, three on his left hand, one on his stomach below the umbilical cord and one on his buttocks,” read Semenya to demonstrate the horror of the killings.

He added that there would not have been a miner, police officer or security guard killed if the miners were not carrying weapons.

“[Mgcineni] Noki [The Man in the Green Blanket, who was killed by the police at Marikana] goes to police numbering 700 odd and tells them that there won’t be two bulls in this kraal. One will have to leave. Do you and I want to live in a society faced with that type of threat on our police officers? We should rebuke this type of behaviour,” he said.

He added that it’s a “mis-description to say that the people on the koppie were just strikers on an unprotected strike carrying weapons”.

“The correct description is that they were 3 000 to 4 000 people who were bearing arms against the state. Show me any higher treason. If we bring home that these people were attacking the police and attacking the authority that is to maintain law and order. The commission must make a factual finding that these were people who were bearing arms against the state,” he said.

The police’s justification for the killings was not changed as Semenya argued that the police acted in self and/or private defence alternatively putative self or private defence.

Semenya will continue his final arguments tomorrow as the Marikana Commission of Inquiry sits its last day.

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