/ 3 May 2016

First big blow for Phiyega at Claassen inquiry

First Big Blow For Phiyega At Claassen Inquiry

Suspended police commissioner Riah Phiyega felt her first blow at the Claassen Board of Inquiry on Tuesday when it ruled that witnesses not previously included in the Farlam commission could be called to testify.

President Jacob Zuma set up the board of inquiry in September last year following the Farlam Commission of Inquiry report, released in June, that accused Phiyega of misconduct.

Headed by retired judge Ian Farlam, the commission investigated the August 2012 killings of 34 striking miners by police in Marikana, Rustenburg.

Evidence leader head advocate Ismail Jamie requested that the Claassen inquiry allow him to bring in witnesses who had not testified at Farlam commission. 

This sparked opposition from Phiyega’s representative, advocate William Mokhari, who argued that bringing in new witnesses was tantamount to broadening the terms of reference and scope of the inquiry and should not be allowed by the board chairman, Judge Neels Claassen.

“The manner in which the evidence leaders have presented their argument to you [Claassen] is that you must make your ruling in the abstract. That they are entitled to call witnesses. But it can’t be,” Mokhari argued.

“They must be able to say, ‘We have the evidence of the following people and we are asking for a ruling from you whether we can adduce that evidence because there is an objection to that.’ They are not doing that.”

Mokhari said the defence team should have been furnished with the sworn statement of witnesses that the evidence leaders intended calling. He said the defence wanted to see what evidence those witnesses would be going to present.

“We are not told of who (is it) they are going to call, who has made the statement under oath and what is the relevance of that evidence. I would like to do that myself because that is what this board has to consider when making its own ruling. We have only been given four statements. When the evidence talks of calling witnesses, we assume they are talking of calling only four people,” said Mokhari.

“They can’t tell us about other people today, which they have not told us about and have not given us statements.”

Mokhari stressed that the evidence leaders were attempting to transfer to themselves Phiyega’s right to call witnesses.

“It is the national commissioner who is being accused of misconduct. She has the rights, derived from the principle of natural justice, to a fair trial, to adduce evidence, to be present here and to call whatever witness. Now the evidence leaders want to transpose the rights which are conferred on the national commissioner … that those rights also apply to them,” said Mokhari.

“They have made allegations and they must now prove those allegations. Whatever evidence they bring, it must be relevant to the terms of reference … Evidence leaders are bound by terms of reference and cannot call witnesses who did not testify before the Farlam to bolster their case.”

Jamie argued that some of the witnesses who deposed statements before the Farlam commission were not called to give testimony and were not cross-examined. Excluding such witnesses from the Claassen inquiry would result in the exclusion of evidence required to test Phiyega’s fitness to hold office.

In arguing his case, Jamie said that despite repeated promises by Phiyega that she and the South African Police Service (SAPS) would co-operate with the Farlam commission’s investigation, evidence had subsequently surfaced that she had never intended to do so. 

“It has now transpired that the national commissioner, acting personally, instructed her legal team not to co-operate with the Farlam commission in a crucial part of its work,” he said.

An example of such evidence are emails between Phiyega and her legal team, which Jamie read aloud to the Claassen inquiry.

“Dear national commissioner, I have been instructed by the legal team to communicate this letter to you.

“We refer to your letter of June 2013 conveying the instruction to the legal team that the SAPS management declines the instruction of the chairperson of the commission,” Jamie read.

The email concluded by asking Phiyega to reconsider her instruction to her legal team to prevent various experts from assisting the Farlam commission. 

Jamie said this letter demonstrated that Phiyega was unfit to hold office. 

“This inquiry cannot ignore this information [on the basis that] it was not admitted as evidence before the (Farlam) commission.”

This is first piece of evidence presented in the evidence leaders’ case that the embattled police commissioner is not fit to hold office.

Claassen ruled in favour of the evidence leaders, saying that they could call any witnesses, including those who had not previously testified to the Farlam commission. 

“This is in the nature of a disciplinary hearing between an employer and employee. In such a hearing it would be absurd to suggest that evidence leaders would not be entitled to call witnesses,” Claassen said. 

He added that the relevance of witnesses would be determined by the inquiry’s terms of reference. 

These include investigating whether Phiyega, acting with others in the SAPS leadership structures, “misled the commission” by hiding the fact that they had authorised the “tactical option” during a management meeting on the day before the killings.

The Claassen inquiry is also investigating whether Phiyega, while taking the decision to go the tactical route, could have foreseen the “tragic and catastrophic consequences which ensued”.

Phiyega’s actions on August 16 2012, when 34 miners were killed during the strike at the Lonmin mines in the North West, were heavily criticised by Farlam.

The incident is the biggest loss of life in a single police operation in post-apartheid South Africa.

The Claassen inquiry continues on Wednesday when testimony by two Phokeng morgue officials, Simon Laka and Philani Tladinyane, will be heard. 

Laka and Tladinyane worked at the morgue that received a request from police officials to send more mortuary vehicles to the scene of the 2012 Marikana massacre.

Two police officials, Captain Monwabisi Ntlati and Lieutenant Elias Mawela, will also be called to testify. – Additional reporting by African News Agency (ANA)