Police witness Mr X will be allowed to testify in camera by video link but his name and photo must be disclosed to the evidence leaders and parties.
Judge Ian Farlam ruled on Tuesday that police witness Mr X will be allowed to testify in camera and by video link but said families of the deceased mineworkers may be present in the auditorium during the testimony.
Two weeks prior to Mr X's testimony, the police will be required to disclose his name and a photo of him to the evidence leaders and parties.
Farlam ordered that no mention of Mr X's name or any other information which may reveal his identity be published or broadcast by the media.
According to Frikkie Pretorius, acting for the police, Mr X will testify about the events at Marikana relating to the organising and the planning of the strike; the intimidation and killing of employees who were unwilling to participate in the strike; the march to the National Union of Mineworkers' offices on August 11 2012; and the killing of two Lonmin security employees on August 12 2012.
Mr X is also expected to testify about the events of August 13, during which two members of the police were killed and one seriously injured; the killing of security guards on August 14 2012; participation in rituals in preparation for a confrontation with the police; and a plan to attack the police on August 16 2012, the date on which police shot and killed 34 miners.
Invisible to the police
Mr X was allegedly part of the group of protesting Marikana miners who underwent a ritual that included two sangomas, the burning of live sheep and the swallowing of their ashes on August 11 2012. According to a statement made by Mr X, this was to protect the miners from the police's bullets and "made us fearless, strong and invisible to the police".
In Mr X's sworn statement, seen by Sapa, he details how the miners attacked and killed Lonmin security guards Hassan Fundi and Frans Mabelani.
Hassan's body parts were removed and taken together with Mabelani's ashes for further muti rituals, according to Mr X. He details how the sangomas cut Fundi's parts into smaller pieces, mixed them with blood and burnt them to ashes.
"We were instructed by the inyangas [traditional healers] to stand in a line and the ashes were put in our mouth using a spoon which we licked and swallowed," Mr X wrote in his affidavit.
"Only the commissioners, evidence leaders, the parties, the legal representatives and accredited media representatives shall be present in the auditorium during the testimony of Mr X," Farlam ruled.
"Members of the public may listen to the audio transmission of the testimony of Mr X in the overflow room."
The judge ruled that an evidence leader be present in the room of the remote location from which Mr X was to testify, at all times. Farlam also rejected the police's request that the families of the deceased mineworkers as well as injured and arrested persons be excluded from the auditorium during Mr X's testimony.
He said they had been permitted along with the police, Lonmin and the trade unions, together with others interested in matters covered by the commission's terms of reference, to participate fully in the proceedings.
"Since this commission began its work, it has been accepted that the families of the deceased strikers have an interest in learning the circumstances in which their breadwinners died … To treat them now simply as members of the public and not as parties with a special interest in finding out what happened would be contrary to the spirit in which they have been treated from the beginning."
Farlam also pointed out that if Mr X tells the truth, it is likely that the injured and arrested persons already know who he is, because according to his statements, he played a significant role in some of the events in which the strikers were involved.
The judge's finding was based on the history of assassinations of potential witnesses and other mineworkers who were not willing to participate in the strike. The police's application in this regard stated: "If he [Mr X] has to travel to where the commission is sitting from the place where he is staying under witness protection and to return thereto when he has finished testifying there is a real risk that his whereabouts may be discovered and that he and/or members of his family may be harmed or even killed."
Earlier this year, advocate Dali Mpofu, who is representing the injured and arrested persons, strongly opposed the application. Mpofu originally said that he would have to reveal the identity of Mr X to his clients and to the family members of the deceased mineworkers unless there was proof that these people would endanger Mr X.
Mpofu was unavailable for comment after the ruling.
Dumisa Ntsebezam SC, for the families of slain miners, and Anthony Gotz for the Association of Mineworkers and Construction Union (Amcu) also opposed the police's application.
Pretorius, on behalf of the police, said that he would not give comment on the basis that he hadn’t "studied the detail of the ruling of the judge". He added however that they would not submit an application of review and would "proceed and accept the ruling of the judge".
It is not yet known when Mr X will testify but hearings continue on April 22. – Additional reporting by Sapa