Mr X competent to testify – Judge Ian Farlam

2014-06-23 14:53

At least three representatives in the Marikana Commission of Inquiry have asked for Mr X to be evaluated to determine his mental capability to testify. But retired Judge Ian Farlam says, through his own observation, he is satisfied that Mr X is competent to testify.

“It cannot be said that there are any grounds that he is deprived of the proper use of his reasoning,” the judge said at the inquiry today.

Last week, Mr X said that the people in the auditorium were using muti against him.

He said: “Excuse me judge, these men are working me. Can I request to go see my own sangoma?”

Advocate Dali Mpofu, lawyer for the wounded and arrested miners, argued that Mr X’s utterances were one of the reasons his clients instructed him to bring the application.

He argued that there were sufficient grounds to believe that Mr X might not be a competent witness and that all reasonable steps ought to be taken to investigate Mr X’s competency. He said after consultation with some of the people implicated by Mr X, it transpired that Mr X was either paranoid, hallucinatory or delusional.

“Given the record of the police in this matter, he may be a victim of trauma, including torture by police.

“He is prepared to testify about events which happened in his absence as if he was present. He claims he was one of the 15 leaders, yet the real leaders have only seen him here for the first time,” said Mpofu.

He added that Mr X had personally participated or imagined participation in quite traumatic events and horrific activities, which were bound to have affected his mental state.

“We have been advised by one of the miners who know him [Mr X] well, that he has a metal plate on his head which is possibly a result of a previous serious head or brain injury and that he suffers from mood swings,” said Mpofu.

But the SA Police Service (SAPS) lawyer, Advocate Ishmael Semenya, argued that because the commission is not a court of law it does not have the judicial powers to force Mr X to undergo evaluation.

Semenya also argued that the Constitution states that everyone has the right to freedom of religion, thought, belief and opinion.

“It’s a constitutional right whether we want to agree with it or not. Mr X says he believes in witchcraft. He’s exercised his constitutional right,” said Semenya.

Mpofu’s application was supported by only two other parties, Advocate Dumisa Ntsebeza, who represents the families of the deceased miners, and the Association of Mineworkers and Construction Union lawyer Teboho Mosikili.

The evidence leaders were opposed to the application supporting the SAPS. Advocate Kameshni Pillay said there needed to be two clear requirements for a court to compel a witness to undergo such evaluation.

“The witness must suffer from a mental illness and, as a direct result of illness, must be deprived of his or her reasoning. It is not apparent to us that he suffers from a mental illness. His testimony thus far has been clear and coherent,” said Pillay.

Mr X will continue to testify.

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