But this was perhaps the only concession the national police commissioner allowed advocate George Bizos as he advanced her into a corner during the second day of their showdown at the Farlam commission of inquiry.
Bizos, who represents the Legal Resources Centre, is cross-examining Phiyega about her role in the circumstances that led to the deaths of 45 people between August 9 and August 16 when police opened fire on the assembled workers during an unprotected strike at Lonmin.
Bizos referred heavily to the Council for the Advancement of the South African Constitution's (Casac) submission to the commission, in which it argues that the espousal of the doctrine of maximum force in the police ranks had a direct bearing on the Marikana massacre.
Phiyega initially denied that she had used the term in her public utterances but was forced to accept her memory lapse when Bizos pointed her to the offending paragraph in the speech she delivered to the public on August 17, a day after the massacre.
In describing events that took place in the "high bushy ground", referred to as scene two, Phiyega told the assembled press that "the militant group stormed towards the police firing shots and wielding dangerous weapons. Police retreated systematically and were forced to utilise maximum force to defend themselves."
Before soliciting Phiyega's interpretation of the term "maximum force", Bizos referred to a section of the Casac submission that quotes Police Minister Nathi Mthethwa as saying (in 2009), "in such dangerous situations we will be flexible, so that the police can use maximum force without these surprises happening. When criminals shoot the police, they boast about that."
Phiyega said her understanding of "maximum force" was the "necessary force [for police] to defend themselves".
'Lethal force'
The Casac submission argues that the term, as used by Mthethwa in the above-mentioned instance, is a synonym for "lethal force" but it has also been used inconsistently. This, in essence, is the central point the submission makes, that its meaning has been left open to interpretation with tragic consequences.
Thus, one can speculate on the impact this attitude had on the rank and file police officers, when one considers the doctrine's long trajectory. In 2008, at a Pretoria anti-crime imbizo, then minister of safety and security Susan Shabangu said, "You must kill the bastards [criminals] if they threaten you or the community. You must not worry about regulations. I want no warning shots. You have one shot and it must be a kill shot."
Two days later, the statement was endorsed publicly by ANC president Jacob Zuma, who said: "If you have a deputy minister saying the kinds of things that the deputy minister is saying, this is what we need to happen."
While it is difficult to generalise on the impact of an unclearly defined doctrine that is off the books and yet somehow made it into general police parlance, a Mail & Guardian article published in 2011 and referenced by Casac, quotes a police officer-in-training as saying his instructor in street survival and the use of firearms had begun a session by insisting that "police were correct to use maximum force" in dealing with Andries Tatane.
Phiyega also distanced herself from the crafting of the operational plans for the days leading up to August 16, saying these were developed by the generals to whom she has conferred the relevant powers to.
Phiyega's cross-examination continues.