/ 27 September 2013

Farlam commission: Police may face perjury charges

Breakdown of trust: Riah Phiyega.
Breakdown of trust: Riah Phiyega.

When the evidence leaders at the Marikana commission of inquiry issued their explosive statement on September 19, effectively alleging the police had lied under oath, it could not have come at a worse time for SAPS.

Earlier the same day, police commissioner Riah Phiyega had released what experts called the worst crime statistics in years: after a 10-year, steady decline in violent incidents such as murder, these crimes had begun to spike.

Then on September 23, Judge John Murphy handed down a judgment that effectively called into question whether the senior leadership of the police and the National Prosecuting Authority understood their constitutional roles.

Murphy ordered that the charges against suspended crime intelligence boss Richard Mdluli should be reinstated; he said they were illegally dropped.

And as the Farlam Commission of Inquiry turns to the thousands of additional documents mined from the master police hard drive, as it tries to make sense of the Marikana massacre on August 16 last year when 44 people died, it will begin to unpack the evidence that leaders have suggested is a fabricated narrative from the police.

If the commission finds that the police lied, they could be charged with perjury and, in some cases, evidence tampering or defeating the ends of justice.

The evidence leaders, in the statement that they said was not made lightly, revealed that they had obtained a copy of the master of the police's computer hard drive. This is separate from the original hard drive handed over to the commission when it commenced in October 2012.

The new hard drive contained v­ideos previously not given to the commission, documents that the police allegedly said did not exist and documents that appeared to have been post-dated.

Technicians are combing through the thousands of additional documents, attempting to verify when they were created so they can be tested against the police's evidence.

Several witnesses will probably be recalled and the commission will adjourn until mid-October to analyse the hard drive.

What is emerging is evidence that the meeting, which lasted nine days and was convened by the police in Potchefstroom three weeks after Marikana, was not just used to plan the police's defence, it may have been used to tamper with the evidence to construct a narrative that suited the police's version of events.

Plans and reports submitted to the commission also appear to have been backdated; made to appear as if they were written in the days and, in some cases, the months before the massacre. But the new hard drive suggests they were written at the Potchefstroom meeting last year.

In keeping with this theme, a crucial video was discovered on a second hard drive. It shows an operational commander addressing police at Marikana two days after the massacre.

He told the police that President Jacob Zuma had promised a commission of inquiry and that they had no reason to lie. Rarely had a plan been executed so perfectly, so the police were in the clear, the officer said.

Also, it appears that the operational plan for August 16 seems to have been back-dated, although the commission is currently cross-examining witnesses on this.

The police will likely also contest the allegation that its witnesses have been somewhat economical with the truth because they were all under oath. For any witnesses to be convicted of perjury this way, prosecutors would have to prove that they deliberately misled the commission.

This is a question that retired judge Ian Farlam can only answer once he gives his findings to Zuma.

But according to transcripts of evidence given at the commission, there are parts of the police witnesses' evidence that simply don't add up, and lends credence to the suggestion that the police case was constructed around a particular narrative, which is starting to unravel.

For starters, by the morning of August 16 2012 the police assert they had merely planned to encircle the protestors on the koppie and isolate the so-called instigators.

But other evidence shows the police had "intelligence" on the evening of August 15 that the protestors would not disarm peacefully, and that a bloody clash was inevitable if the police confronted the strikers.

The narrative became unstuck as early as November last year, when it emerged that the police allegedly doctored the crime scene, prompting an internal investigation.

Photographs of the scene were allegedly tampered with and weapons placed near the bodies of dead, unarmed miners.

Evidence leader, advocate Matthew Chaskalson SC also queried video evidence – in some cases, videos appeared to have been edited.

In all the video evidence, at least in the initial hard drive handed over by the police, it appeared that the police videographers made no attempt to film the actual shooting of miners at Marikana last year.

In January, advocate Dumisa Ntsebeza SC, for the families of the 34 dead miners, said he was examining the possibility that the police had destroyed evidence, including videos.

Police counsel objected to the line of questioning, saying it was "unfair" and that the police had handed over all the necessary evidence.

But Ntsebeza insisted that some of the evidence was missing.

The police had not responded to questions at the time of going to print.