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Hope faces off against power in Marikana trial

The public area in the Mahikeng high court was populated with history’s ghosts at the resumption of the murder trial of the police officers implicated in the strike at Marikana in 2012 that left 44 people dead.

There were close to 20 of the widows and other family members of the 37 mine workers the police killed during the 10-day wildcat strike. They waited, as they have done for almost a decade, for the first successful prosecution of a police officer for any of the strike-related deaths.

In Mahikeng, justice’s waiting area appears as a homage to the Sol Kerzner casino and hotel resorts that populated apartheid South Africa’s Bantustans – in this case Bophuthatswana and the former Mmabatho Sun – only stripped of its slot machines and card tables, and replaced with cushioned metal seats. It has that official smell of bureaucracy, of time appearing to stand still, and hope struggling to defeat the powerful.

Sharing the same waiting area, passageways and ablution facilities were the men accused of murdering their loved ones and then trying to cover it up.

William Mpembe was a major general in the South African Police Service (SAPS) and North West province’s deputy provincial commissioner in 2012. As the police operational commander during the strike, Mpembe, who now heads security at Tharisa Minerals in Marikana, faces five counts of murder and is charged with defeating the ends of justice for lying under oath at the Farlam Commission of Inquiry into the Marikana massacre.

The now retired Colonel Salmon Vermaak, who was part of the police’s air-wing command during the strike, is charged with lying to the commission and with leading a posse of police officers – which allegedly included Constable Nkosana Mguye and Warrant Officers Collin Mogale, Joseph Sekgwetla and Khazamola Makhubela – in hunting down and killing striking mineworker Phumzile Sokhanyile.

The charges relate to a skirmish between police officers and striking mineworkers on 13 August 2012, three days before the police massacred 34 striking mineworkers. 

Police escort

The police had engaged with the group of mineworkers, who were returning to the koppie on which they had been gathering daily during the strike, on 13 August. The mineworkers had attempted to go to Karee mine’s K3 shaft to stop anyone who was working there from doing so. They had twice encountered Lonmin security guards, who told them the shaft was closed, and were trekking back to the koppie when a police contingent led by Mpembe stopped them.

The striking mineworkers were armed with traditional weapons to protect themselves against Lonmin mine security and members of the majority National Union of Mineworkers, both of which had attacked them in previous days. The more violent peripheries among the striking mineworkers had killed security guards and non-striking mineworkers as the violence escalated.

Mpembe acquiesced to the striking miners’ demand that the police escort them to the koppie, after which they would hand over their weapons. This after a fruitless negotiation meant they had ignored his demand that they do so near the railway tracks where the two groups encountered each other.

The police were escorting the mineworkers who police witnesses at the commission testified had been marching peacefully and in an orderly fashion until the skirmish broke out. 

Video evidence submitted at the commission confirmed that the police started the skirmish without provocation. It left five people dead. These included mineworkers Sokhanyile, Semi Jokanisi and Thembelakhe Mati. Warrant Officers Hendrick Monene and Sello Lepaaku were also killed by striking mineworkers, with a separate murder trial involving those accused also dragging on.

Operational incompetencies

Alone, in another corner of the Mahikeng high court waiting area on 12 May, Warrant Officer Daniel Kuhn of the East Rand Public Order Policing Unit sat impassively in his blue uniform, his palms facing flat on his knees. 

Kuhn was the police officer who fired the first tear gas canister which, followed quickly by another canister and a stun grenade, led to the deadly “chaos” on 13 August.

Above his SAPS-issue blue mask, his eyes stared straight ahead. Whether they remained fixed on the present or the past was difficult to tell. But years ago, Kuhn cited suffering post-traumatic stress as a reason not to testify at the Farlam commission, or be cross-examined.

National Prosecuting Authority advocate Kenneth Mashile confirmed information the police officer had furnished to the commission in a witness statement. This included that he had fired the first tear gas canister following an order from someone he was unable to identify. This was in contravention of the police Standing Order 262, which states that force may only be used on the command or instruction of the head of the Joint Operational Centre or operational commander, if appointed. Members may not act individually without receiving a command from their commander. Nine years later and Kuhn has still not been disciplined for this contravention.

Kuhn also confirmed during cross-examination that there had been a shortage of radios at the Marikana operation, which undermined the easy transmission of orders from police leadership to their boots on the ground. That is but one of a litany of operational incompetencies that riddled the police operation at Marikana.

Unclear testimony

Under cross-examination by Mpembe’s counsel, advocate Jan Ellis, Kuhn said he could only see about 15m ahead of him because of the tear gas, but had witnessed several miners attacking a police officer.

He fired two bullets at the mineworkers and claimed to hit one of them, who fell “at the feet” of the police officer, who was confirmed as Monene. Kuhn said he had shot the mineworker in the shoulder and that he was still alive when he approached the two bodies. He subsequently handcuffed the mineworker and confirmed that the warrant officer was not dead.

Kuhn said he later learnt that the mineworker he shot had died at the scene and that did not know his identity. According to Kuhn’s evidence regarding the bullet wounds inflicted, the only person he would have killed in the incident would have been Jokanisi. Mati had sustained gunshot wounds to his thigh and buttock and Sokhanyile had been shot across a small stream about 620m from where Kuhn was and where the skirmish was taking place.

Photographic and forensic evidence at the Farlam commission, however, appears to contradict Kuhn’s version of events. It confirms that 29-year-old Jokanisi’s body was found 150m from the body of Monene and an estimated 80m to 100m from Lepaaku.

With wounds similar to those Kuhn described as having inflicted, Jokanisi’s body also had a bullet lodged in his spine and another that fractured his leg, making it impossible for him to move after he had been shot. This raises questions about Kuhn’s testimony – particularly that he had shot Jokanisi and then handcuffed him – or that Jokanisi was even involved in the attack on Monene. 

Kuhn’s testimony of what happened on 13 and 16 August 2012, which the families of the dead mineworkers and police officers have waited nine years to hear, appears unclear for the moment. But what is clear is that he has travelled a long, perhaps still unsuccessful journey to free his mind of the trauma and tear gas, the bullets and the bloodshed of that fatal week.

For one sees Kuhn on 16 August 2012 in video footage from “scene one” near the cattle kraal where police officers mow down 17 striking mineworkers. He is not with the section to which he was deployed, the Public Order Policing Unit. Instead, he is standing alone about 10m in front of the Tactical Response Team line that opens fire on the mineworkers as they round the cattle kraal. Kuhn, too, opens fire, shooting 10 rounds of his R5 rifle into the mass of crouching mineworkers. He stops firing well after the order to do so is given. 

Was he haunted then by the deaths of 13 August? Is he haunted still by history’s ghosts?

This article was first published on New Frame

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Niren Tolsi
Niren Tolsi is a freelance journalist whose interests include social justice, citizen mobilisation and state violence, protest, the Constitution and Constitutional Court, football and Test cricket.

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