The South African Police Service, mining company Lonmin and its executives should be further investigated and criminally charged, according to two legal teams at the Marikana Commission of Inquiry.
The commission is in its second day of listening to closing arguments from all parties who have investigated the killings of August 2012 where 44 people died.
But knives are out for the police to be held criminally and civilly liable for the majority of the deaths that occurred on and before August 16.
Michelle le Roux from the Human Rights Commission today argued that the police have not been able to justify why they shot and killed the strikers on August 16 at both scenes.
“The sole legal burden to prove the lawfulness of any killing by police rests on the police themselves. However, in respect of the deaths caused at Scene 2, the SAPS has failed to identify, in respect of each individual killed at Scene 2 ... a justification for the death,” said Le Roux.
She continued to argue that because SAPS has not identified statements of members that justify each death, the SAPS has failed to justify “all and any use of force” at Scene 2.
She also explained that the use of muti by the strikers could not be accepted as a basis for the SAPS’ case that the police officers believed that they had to protect themselves from muti-crazed strikers.
“How could they think they were invisible and invincible but they were wearing blankets to protect themselves from rubber bullets? How could they think that they would be immune to live ammunition,” asked Le Roux.
She added that the SAPS case presented to the commission had been defined by half-truths, obfuscation, nondiscovery and omission.
“In the aftermath of the use of force by police, which resulted in the deaths of 37 people, the approach of the SAPS when accounting to this commission – and to the public – has fallen far short of the standards of internal accountability one would expect from a democratic police service.”
Advocate George Bizos, from the Lawyers for Human Rights, stated that his main concern was that the police did not want to accept any liability for what happened. This, he said, would be tantamount to the Sharpville massacre of 1960 when the apartheid regime took no responsibility for killing 69 people.
The Lawyers for Human Rights argued that the police and Lonmin should share the responsibility here because the crowd of up to 3?000 people who gathered on the koppie at Marikana between August 13 and 16 was not the “faceless mob” initially claimed by Lonmin executives.
“Instead, it was made up largely of [rock-drill operators] employed by Lonmin and contained a mix of [National Union of Mineworkers] and [Association of Mineworkers and Construction Union] members. Lonmin and its senior executives failed to respond appropriately to the threat and outbreak of violence that occurred at its premises and its senior executives created an environment that was conducive to the creation of tension, labour unrest and disunity among its employees or other harmful conduct. Lonmin and its senior executives contributed to the loss of life and damage to persons and property that occurred from August 12 to 16 2012,” said Jason Brickhill from Lawyers for Human Rights.
Brickhill argued that Lonmin executive members should also be held criminally liable because the violence that arose between August 10 and 16 2012 was foreseeable and preventable, and that Lonmin and its directors foresaw the violence but failed to take adequate steps to prevent the violence and stop its further escalation once it had begun.
Deputy President Cyril Ramaphosa was a Lonmin director and shareholder until recently. He also testified at the commission about his role in the August 2012 events.
“Lonmin senior executives should be investigated or charged as they contributed to and facilitated the deaths of the 34 strikers and the injuries sustained by approximately 70 other people,” said Brickhill.
The commission will resume on Monday with the closing arguments of Lonmin.