When the presidency moved this week to implement the recommendations of the Farlam report on the Marikana massacre, suspended national police commissioner Riah Phiyega had already filed court papers asking for it to be reviewed.
In a bid to clear her name, Phiyega is seeking a review of the report that led to a board of inquiry, which has now reportedly found she is not fit to hold office.
Phiyega filed the review application in the Pretoria high court after Judge Neels Claassen’s inquiry into her fitness to hold office wrapped up.
She contends that there are large sections of the Marikana report’s findings that were simply “cut and pasted” from the evidence leaders’ heads of arguments, and that the adverse findings have “impugned my dignity and reputation worldwide”.
Phiyega maintains that the Marikana report is riddled with contradictions, “a demonstration that the respondents [commissioners] have not applied their minds in preparing the report … My attorneys of record also studied the report extensively and identified profound similarities between the report and the evidence leaders’ heads of arguments almost word for word, an indication of a clear cut and paste by the respondents.”
She claims that there are no fewer than 113 instances of “cut and paste”.
Phiyega now wants parts of the report concerning her set aside, and stated that Judge Ian Farlam’s findings and recommendations against her were irrational and conflicting.
In the papers she lists several reasons the papers were filed later than the stipulated six months after the report was released, including the fact that she and her lawyers had to prepare for the Claassen commission into her fitness to hold office.
All three commissioners are cited as respondents but, according to Phiyega’s attorney from Werksmans, Sandile July, the state attorney will be responding on their behalf.
“We filed the papers and were advised by the state attorney that they will file an intention to oppose the review. But they still have not filed those papers. Last time we spoke they promised to file by October; that has come and gone and still nothing,” said July.
He added that President Jacob Zuma had also expressed the desire to intervene on behalf of the commissioners, but that no further communication had been received.
Phiyega is asking the high court to review and set aside the following findings and recommendations made by Farlam and advocates Bantubonke Tokota and Pingla Hemraj two years ago:
- That the leadership of the police appears to have decided not to give the true version of why the tactical option was used to address the Marikana unrest in August 2012;
- That an inaccurate set of minutes was prepared for a certain meeting and a number of police witnesses testified before the commission in support of the incorrect version;
- That there is at least a prima facie case that Phiyega and the commissioner for North West province, despite knowing the true facts, approved a police presentation that contained incorrect facts; and
- A recommendation that an inquiry should be launched into Phiyega’s fitness to remain in office and whether she is guilty of misconduct in attempting to mislead the commission.
Phiyega contends in her court papers: “No evidence was tendered at the commission that the national commissioner knew the plan, saw the plan, approved the plan and that she gave instructions for the new plan to be prepared, saw it or approved it. In the absence of such evidence, it is irrational to conclude that the national commissioner knew [the]true facts.”
Tokota confirmed that the commissioners had been served with the papers but would not participate in the matter, which was being dealt with by the state attorney’s office.
“We had a mandate from the state. We fulfilled that mandate and handed over recommendations to the president. Those recommendations have been fulfilled and we know that the inquiry into her fitness has also been concluded and it states that she must be fired as far as we are concerned,” he said.
Farlam confirmed that the application would be opposed. “Our opposing papers are being drafted,” he said.