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Phiyega’s refusal to testify at Claassen inquiry ‘will come back to haunt her’

Evidence leaders at the Claassen board of inquiry on Wednesday said suspended national police commissioner Riah Phiyega’s refusal to testify would come back to haunt her.

“This is a crucial thing, members of the board. This commission is entitled to accept as a point of departure that the adverse findings [of the Marikana Commission of inquiry led by retired Judge Ian Farlam] constitute prima facie evidence against the national commissioner. That was clearly understood by her,” evidence leader Ismail Jamie, SC told the inquiry in Centurion, Pretoria.

“The factual findings of the Farlam Commission constitute prima facie evidence against her.”

In his closing arguments, Jamie said Phiyega should have presented her side of the story regarding the August 2012 Marikana incidents which left more than 44 people dead.

“If a prima facie case is made against you, and you elect not to rebut that with evidence, you run a risk […] that this is going to come back to haunt you. There is prima facie against her, and yet she didn’t testify,” said Jamie.

He said that unlike the Farlam inquiry, the Claassen board of inquiry’s final recommendations may result in criminal liability.

“This is the reason why the Farlam Commission did not go on to say anyone was guilty of anything. That is the important reason why this board of inquiry was set up, precisely because the Farlam Commission didn’t have power to make findings of fact which would go on to civil criminal liability,” said Jamie.

“This board does have the power to make findings of fact, we submit, which will have civil consequences if your recommendation is that, as we submit should be, she is unfit for office and if that recommendation is accepted by the president.”

Read more about the closing arguments at the Claassen inquiry:
Phiyega mustn’t be spared testimony by Marikana survivors and widows – lawyers

Phiyega is facing questions over her role as national police chief in the Marikana massacre where 34 people, mostly striking mineworkers, were shot dead in a clash with police on August 16, 2012.

More than 70 people were wounded, and 250 were arrested at Lonmin’s platinum mining operations in Marikana, near Rustenburg. In the preceding week 10 people, including two policemen and two Lonmin security guards, were killed in the strike-related violence.

President Jacob Zuma set up the Claassen board of inquiry into Phiyega’s fitness to hold office in September last year in line with recommendations made by the Farlam Commission tasked to investigate the massacre.

Phiyega’s actions prior to and on the day of the August 16 incident, believed to be the biggest loss of life in a single police operation in post-apartheid South Africa, was heavily criticised by the Farlam Commission.

In June last year, Zuma released the report of the Farlam Commission. It recommended that a board of inquiry be constituted to investigate Phiyega’s fitness to hold office, and accused her of withholding information.

The Farlam Commission also found the police had misled it about its plans on the day of the deadly shootings.

Read more: 
‘National management’ ordered advance on Marikana miners, says witness
First big blow for Phiyega at Claassen inquiry
Phiyega’s email exposes her deceit

The Claassen inquiry was scheduled to hear closing arguments on Wednesday, but this was extended to Thursday after Advocate Dali Mpofu sought permission to present a late affidavit by Joseph Mathunjwa. Mpofu represents Mathunjwa,  head of the Association of Mineworkers and Construction Union (Amcu), as well as all mineworkers who were injured or arrested at Marikana.

“I wish to assure the board that the lateness of the intervention has nothing whatsoever to do with disrespect, it has nothing to do with undermining the dignity of the board. If anybody’s dignity is at stake, it is that of the victims. We express appreciation even to be given this audience,” Mpofu said as he read out Mathunjwa’s appeal to be permitted to give evidence at the inquiry.

Phiyega’s defence team, led by Advocate Mahlape Sello, did not object to the admission of evidence from Mathunjwa and the Marikana victims. Claassen subsequently ruled that Mpofu could give evidence on behalf of his clients.

Judge Neels Claassen chairs the three-member board, assisted by advocates Bernard Khuzwayo and Anusha Rawjee.

Closing arguments are set to continue on Thursday. – ANA (Edited by Michelle Solomon)

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