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.