A debate about whether the Farlam Commission of Inquiry can recommend that members of the police should be investigated for criminal acts could influence whether the government will take the commission’s final report seriously.
On Thursday, advocate Ishmael Semenya, counsel for the South African Police Service, called on the commission to recommend that the striking Marikana miners should be charged with treason. He also said that any proposals to charge the police for their involvement in the 2012 massacre should be disregarded because this would be outside the mandate of retired Judge Ian Farlam.
Semenya gave final arguments on behalf of the police on Thursday.
Much like the debate about the powers of the public protector, Semenya indicated that the police view the commission’s powers as extending only to making recommendations in its final report. But Farlam argued that the commission can make findings of fact and can recommend to the police or the National Prosecuting Authority to charge certain individuals.
Semenya countered that the commission may not recommend the laying of criminal charges against the police because there are already institutions mandated to do this, such as the Independent Police Investigative Directorate (Ipid).
Farlam refers to the terms of reference
Farlam intervened to read from the commission’s terms of reference, which state that the commission can “refer any matter for prosecution, further investigation or the convening of a separate inquiry to the relevant authority”.
He said Semenya was correct in saying recommendations of criminality should not be referred to the president, who is unable to investigate crimes. But Farlam said President Jacob Zuma, in setting out the terms of reference, clearly intended for the commission to recommend prosecutions where appropriate.
Semenya maintained that Ipid is already tasked with dealing with the police and does not need a recommendation from Farlam to do so.
Farlam argued that the terms of reference are wide enough for him to refer “any matter”, including police action, for prosecution. He said this is why the police were the subject of much of the commission’s investigations.
“It is completely unnecessary for you to traverse that terrain because it is outside your province (sic),” countered Semenya.
He added that Farlam’s job is to provide “advice to the president”, and that this could not be interpreted as providing legal advice to the families or the injured.
Semenya: investigate, not adjudicate
In what could be seen as an attempt to distance the police further from the possibility of civil claims and having to compensate the families of the miners, Semenya said the commission is not a “civil or criminal court”. Some legal teams have asked the inquiry to rule that compensation must be paid.
“If there is vicarious liability [on the police’s part], they [the families, and the injured and arrested miners] are capably represented by [counsel] who would tell them whether they can sue for damages,” Semenya said.
He said the Commissions Act stipulated that commissions should be set up to “investigate” matters, not to “adjudicate them”.
“It would seem to us, at the very highest, where the evidence is available, there appears to be no reason to justify the killing of Mr Whoever; that’s as high as you can go. You cannot go the distance and say the killing was a murder. That would be a judicial function.
“It is glibly said in some arguments that if a killing cannot be justified then the commission must find that the killing was unlawful.”
Two years and millions of rands
Semenya said he did not think that the credibility of, for example, Mr X (an anonymous miner who testified via video link), would be particularly important to the president, but that the president would be more interested in policy or legislative suggestions that could avoid another Marikana.
Farlam repeated the commission’s terms of reference, emphasising that it is empowered to “make findings”.
“Can you imagine what would happen if we said to the president: ‘Thank you very much, we’ve spent two years and millions of rands, the investigations are all on the record; we are not going to make any findings because we mustn’t, but we’ll make some recommendations,’ and that’s all. That can’t be right,” Farlam said.
Seemingly contradicting his own argument, Semenya said the miners who gathered on the koppie on August 16 2012 had committed an “act against the state” by “attacking” the police, and so Farlam should find them guilty of treason.
He contended that the strikers who tried to leave the koppie as police rolled out barbed wire, just before they were gunned down, should have listened when the police asked them to stop.
“What were the police to do?” Semenya said.