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Marikana inquiry: Application to postpone Mr X's testimony

Gabi Falanga

The police have applied to the Marikana commission to hear Mr X's evidence 10 days later than planned because they need more time to prepare him.

Mr X is expected to testify about numerous events relating to the strike, which led to 34 people being shot and killed by police on August 16 2012. (Gallo)

The South African Police Service on put an application to the Marikana commission for the evidence of Mr X to be presented on June 19 instead of on June 9, as originally planned.

Advocate Frank Matebedi, representing the South African Police Service (SAPS), told the commission that they were aware that Mr X is a “very important witness of the SAPS, who will play a critical role in understanding the mindset of strikers”. But he added that the police needed more time to prepare the witness.

Most of the parties supported the SAPS application for Mr X’s postponement, but gave various conditions. The parties supporting the postponement included National Union of Mineworkers (NUM), Amcu, Lonmin, the families of the deceased miners, the injured and arrested miners, as well as the Legal Resources Centre and the South African Human Rights Commission.

The evidence leaders however, opposed the application. 

Head commissioner, retired judge Ian Farlam, will hand down a ruling on Friday.

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. He is now in police witness protection.

More time needed to prepare Mr X and evidence
Matebedi  referred to Mr X’s lack of education and the language barrier, as part of the reason for the delay. “He can’t just be given documents. His legal team will have to sit and read to him,” said Matebedi.

The judge criticised the SAPS for not having dockets and other evidence ready to hand to the evidence leaders and other parties, especially given the time restraints that the commission is currently facing. Matebedi said that they had been waiting for permission from the director of public prosecutions before releasing the documents. He also cited logistical problems.

“I’d like the chairperson to take into account, Mr X is currently in witness protection. Whenever consultations are to be held with him, security considerations need to be taken into account. It’s not like we can willy-nilly consult with him,” Matebedi said. 

Consult with clients
Advocate Dali Mpofu, representing the injured and arrested miners, supported the SAPS application, on the basis that he also needs more time to go through the evidence once it is provided and to speak to any of his clients who may have been mentioned in Mr X’s statement.

“Mr X is a very important witness … He makes serious allegations against some of the people I represent, which will necessitate that I do some thorough consultations before I can be in a position to cross examine Mr X,” Mpofu told the commission. “If Mr Matebedi has a problem with an uneducated witness, in my case, multiply that by 300. How am I supposed to consult with hundreds of people? These are not the kind of witnesses you can just dump arch lever files and memory sticks and say I’ll come back. This is going to be painstaking process.”

Mpofu as well as Advocate Dumisa Ntsebeza, representing the families of the deceased miners, pointed to the fact that all the names mentioned in Mr X’s statement have been blanked out. The police still need to provide the parties with the relevant names. 

Time restraints
Mpofu and Ntsebeza referred to the commission’s final deadline of July 31 2014 as being problematic in terms of trying to fit in all the remaining witnesses as well as having to deal with any unexpected issues that crop up, such as the request to postpone Mr X’s evidence.

“When President Zuma set this date of July 31, clearly it was not done with applying his mind to the realities,” said Mpofu. “Let’s assume it was for financial considerations; my suspicion is that it’s for financial reasons, my clients’ suspicion is that it’s for political reasons. 

“It’s unjustifiable, we can’t get to this stage of the commission, as my clients put it: when the employer and the ministers have to face the music, we’ll press the fast-forward button so that we can’t hear the song.  They do not apply their mind to the interests of justice and the finding of the truth.”

Ntsebeza pointed to the limited time that is now available for the parties to cross-examine witnesses, saying that this will severely affect the amount of evidence the commission is able to collect about the mine workers who were killed at what has become known as scene two. “The families [of the deceased miners] want four things:  Truth, justice, fairness, but above all they want closure,” said Ntsebeza.

Advocate Matthew Chaskalson told the commission that the evidence leaders objected to the postponement of Mr X’s testimony on the basis of the short amount of time available to the commission to complete its work. “From Monday next week we only have 34 hearing days left,” he told the commission.

He then listed the important witness that still have to testify before the commission during this time, such as Lonmin employees, Mr X, ministers Cyril Ramaphosa and Nathi Mthethwa and more police witnesses. Also still to be heard are various expert witnesses. 

“The testimony of the experts might well be the most important heard by the commission,” he said. 

“Another risk is that the commission won’t be able to say anything on a range of issues … we’ve had extensive evidence on the 13th and 16th [of August 2012], but very little evidence on the other events of the week, in particular events that do not involve SAPS directly and that’s where we need to focus our available time,” Chaskalson told the commission.

He listed issues which the commission has not yet gathered enough information on, such as the background events that led up to the August 2012 Lonmin strike; the organisation of the strike; any communication of instructions from the national executive to the national commissioner; Lonmin’s involvement with events on August 16 2012; and various incidents of violence, intimidation and death in the week leading up to the massacre. 

Mr X’s testimony
Mr X is expected to testify about numerous events relating to the strike, which led to 34 people being shot and killed by police on August 16, and leaving more than 70 injured. He will also 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 NUM offices on August 11 2012; and the killing of two Lonmin security employees on August 12 2012. Some of his evidence could also include information about a plan to attack the police on August 16.

Earlier this year, the police an application was granted for Mr X’s evidence to be heard in camera.

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