Lawyers have called for the immediate release of four witnesses arrested and intimidated, as they were returning from the Farlam commission.
Lawyers acting for families of 21 of the miners killed at Marikana in August have called for the immediate release of four witnesses arrested by police on Tuesday night, as they were returning from the Farlam commission of inquiry into the tragedy, being held in Rustenburg.
According to the Socio-Economic Rights Institute of South Africa (Seri), Zamikhaya Ndude, Sithembele Sohadi, Loyiso Mtsheketshe and Anele Kola were arrested when a taxi carrying 14 people, who had attended Tuesday's proceedings, was stopped by a police armoured vehicle.
Seri attorney, Teboho Mosikili said: "The four were pointed out and arrested, apparently by, or on the information of, a police officer that had attended the commission's hearing [on Tuesday]. Hoods were placed over their heads and they were told not to speak, or they would be shot."
Moskili said the arrests, "in the presence of police officers who had been present at the commission" had affected "the integrity of the commission: that the police are making arrests before the commission has reached its findings makes this whole process redundant".
Brigadier Thulani Ngubane, spokesperson for the North West police said the four were arrested for the series of "mysterious murders" that had taken place in Marikana since the August 16 massacre. He said the police were doing a routine vehicle control point search and "the suspects that we needed were in this vehicle".
He refused to specify to the Mail & Guardian which murders they had been arrested for: "We don’t want to come out with specific murders because then it gives the opportunities for others involved to flee," said Ngubane.
Seri have, according to Mosikili, written to the police's legal representatives at the commission to ask for their immediate release and that an assurance be given "that no further arrests will be effected in relation to charges that may arise in connection with the events under investigation by the commission, or of persons travelling to, from, or attending the commission".
He said that if these demands were not met by October 29, when the commission reconvenes, Seri would ask for a postponement and consult with its clients over whether to withdraw from proceedings. Mosikili added that Seri was hoping for solidarity on the matter from the other legal teams involved in the commission.
The Mail & Guardian has also learnt that English lawyer, James Nichol, a partner at the TV Edwards LLP law firm, who is consulting with families of the dead miners, has written to the England and Wales Law Society requesting that it "urgently" sends observers to the commission "to help ensure that the proceedings remain fair and that, in particular, the South African Police Force is prevented from intimidating miners who are to be witnesses before the inquiry".
Nichols noted that since the killings at Marikana, "there have been numerous occasions in which the police have used grossly excessive force against the residents of Marikana". He pointed to the killing of ANC councillor, Paulino Masuhlo, in a clampdown on Marikana ordered by President Jacob Zuma in September, as one example.
Nichols' letter points to a systematic programme of intimidation instigated by the police: "In the last few days important witnesses, miners who are poor, live in corrugated shacks and are often unable to read or write, have been arrested and intimidated by SAPS."
This programme, according to Nichols, culminated in Tuesday's arrests when "an estimated 30 to 40 police in an armour-plated vehicle, vans and other unmarked vehicles" stopped the taxi in which the four were travelling.
"The group were ordered out of the vehicle by police wielding pistols and rifles, forced to lie face down in the dirt, and pinned down with booted feet at their necks. The police slapped and beat members of the group, threatening to shoot them if they attempted to look up. One member of the group was warned 'I will blow your head away!'" said Nichols in his letter.
According to Nichols the four men were all former strike leaders at Lonmin and were identified by police as "these are the ones that we are looking for". They were given no reason for their arrest, according to Nichols. He also intimated that he would be making similar requests for observers to the Bar Council and international legal bodies.
Mosikili added that, "The arrests materially and adversely affect Seri's ability to prepare for and participate in the commission's work … They were providing Seri and the team, lead by advocate Dali Mpofu, with information and testimony which is adverse to the police. They are unlikely to do so without fear of retribution while in police custody.
"Furthermore, it appears, prima facie, that the arrested persons were targeted because they were assisting us at the commission. Seri can no longer, in good conscience, provide to the commission, or the parties to it, information relating to the identities of potential witnesses who may provide information and testimony adverse to the police."
Ngubane dismissed Seri's fears around tainted witness testimony by saying, "these criminals are the property of the state … Lawyers would understand that a criminal is a criminal but they will have access to these criminals. The laws of the land allow it, the commission allows it, the commission has subpoena powers and the police will ensure that these witnesses appear before it."