CHAPTER 1

INTRODUCTORY MATTERS

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1.

The establishment of the Commission and its terms of reference

1.1

By Proclamation No. 50 of 20121 (referred to in what follows as the

Proclamation),

the

President

appointed

the

Commission

to

investigate matters of public, national and international concern

arising out of the tragic incidents at the Lonmin Mine in Marikana in
the North West Province from Saturday 11th August to Thursday 16th
August 2012 which led to the deaths of approximately 44 people,
more than 70 persons being injured, approximately 250 people being
arrested and damage and destruction of property, with the terms of
reference quoted below.

1.2

Although the period set out in the Proclamation begins on Saturday

11 August 2012, the Commission is of the view that in order to put
matters in proper perspective it is necessary to have regard to what
happened on the two preceding days, i.e. Thursday 9 August 2012
and Friday 10 August 2012.

Published in Government Gazette No. 35680 of 12 September 2012

1.3

The Commissions terms of reference, as set out in paragraph 1 of

the Proclamation, are, as follows:-

1.

The Commission shall inquire into, make findings,

report on and make recommendations concerning the
following, taking into consideration the Constitution and
other relevant legislation, policies and guidelines:
1.1 the conduct of Lonmin Plc, in particular:
1.1.1

whether
it
exercised
its
best
endeavours to resolve any dispute/s
which may have arisen (industrial or
otherwise) between Lonmin and its
labour force on the one hand and
generally among its labour force on the
other;

1.1.2

whether it responded appropriately to

the threat and outbreak of violence
which occurred at its premises;

1.1.3

whether it by act or omission, created

an environment which was conducive
to the creation of tension, labour
unrest, disunity among its employees
or other harmful conduct;

1.1.4

whether
it
employed
sufficient
safeguards and measures to ensure
the safety of its employees, property
and the prevention of the outbreak of
violence between any parties;

1.1.5

to examine generally its policy,

procedure, practices and conduct
relating to its employees and organised
labour; and

1.1.6

whether by act or omission it directly or

indirectly caused loss of life or damage
to persons or property.

1.2 The conduct of the South African Police

Service, in particular:

1.2.1

the nature, extent and application

of any standing orders, policy
considerations, legislation or other
instructions in dealing with the
situation which gave rise to this
incident;

1.2.2

the
precise
facts
and
circumstances which gave rise to
the use of all and any force and
whether this was reasonable and
justifiable
in
the
particular
circumstances;

1.2.3

to examine the role played by

SAPS through its respective units,
individually and collectively in
dealing with this incident; and

1.2.4

whether by act or omission it

directly or indirectly caused loss of
life or harm to persons or property.

1.3 The conduct of the Association of

Mineworkers and Construction Union
(AMCU), their members and officials and in
particular:
1.3.1

whether it had exercised its best

endeavours to resolve any
disputes which may have arisen
(industrial or otherwise) between
itself and Lonmin and/or NUM or
any other parties;

1.3.2

the extent to which it exercised

effective
control
over
its
membership and those persons
allied to it in ensuring that their
conduct was lawful and did not
endanger the lives and property of
other persons and

1.3.3

whether by act or omission it

directly or indirectly caused loss of
life or damage to persons or
property.

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1.4 The conduct of the National Union of
Mineworkers (NUM), its members and
officials and in particular:
1.4.1

whether it had exercised its best

endeavours to resolve any
dispute/s which may have arisen
(industrial or otherwise) between
itself and Lonmin and/or AMCU or
any other parties;

1.4.2

the extent to which it exercised

effective
control
over
its
membership and those persons
allied to it in ensuring that their
conduct was lawful and did not
endanger the lives and property of
other persons; and

1.4.3

whether by act or omission it

directly or indirectly caused loss of
life or damage to persons or
property.

1.5 The role played by the Department of

Mineral
Resources
or
any
other
government department or agency in
relation to the incidents and whether this
was appropriate in the circumstances, and
consistent with their duties and obligations
according to law.
1.6 The conduct of individuals and loose
groupings in fermenting and/or otherwise
promoting a situation of conflict and
confrontation which may have given rise to
the tragic incident, whether directly or
indirectly.
2.

The Commissions Act, 1947 (Act No. 8 of 1947)

shall apply to the Commission, subject to such
modifications and exemptions as may be
specified by proclamation from time to time.

3.

These terms of reference may be added to,

varied or amended from time to time.

4.

The Commission shall submit interim reports and

recommendations to the President each month
prior to the final report being presented to the

5
President. The Commission shall complete its
work within a period of four (4) months from the
date hereof and must submit its final report to the
President within a period of one (1) month after
the date on which the Commission completes its
work.
5.

1.4

The Commission shall where appropriate, refer

any matter for prosecution, further investigation
or the convening of a separate enquiry to the
appropriate
law
enforcement
agency,
government department or regulator regarding
the conduct of a certain person/s.

The periods referred to in paragraph 4 of the Proclamation were

extended

(a)

to 31 May 2013 by Proclamation 4 of 20132 in terms of which

the Commission was called upon to submit its report within 6
weeks after the date on which it completed its investigation
and in which, provision was made for the Chairman to
determine any place other than Rustenburg as its seat and
in terms of which the obligation to submit interim reports was
removed;

(b)

to 31 October 2013 by Proclamation 15 of 20133 in terms of

which the Commission was called upon to submit its report
within six weeks after the date on which it completed its
investigation;

2
3

Published in Government Gazette 36154 of 12 February 2013

Published in Government Gazette 36526 of 31 May 2013

6
(c)

to 30 April 2014 by Proclamation 48 of 20134 in terms of

which the Commission was called upon to submit its report
within six weeks after the date on which it completed its
investigation;

(d)

to 31 July 2014 by Proclamation 30 of 20145 in terms of

which the Commission was still called upon to submit its
report within 6 weeks after that date and, in addition, as
provided in paragraph 3 of the Proclamation, paragraph 1.5
of the Commissions mandate was deleted;

(e)

to 30 September 2014 by Proclamation 40 of 20146 in terms

of which the Commission was called upon to submit its
report to the President within six weeks after the date on
which the Commission completed its investigation; and

(f)

to 14 November 2014 by Proclamation 66 of 20147 in terms

of which the Commission was called upon to submit its final
report on or before 31 March 2015.

2.

The regulations applicable to the Commission

2.1

In terms of paragraph 6 of the Proclamation, the President made, by

Proclamation 59 of 20128, regulations with reference to the
Commission.

Published in Government Gazette 37001 of 1 November 2013

Published in the Government Gazette No. 37611 of 5 May 2014
6
Published in Government Gazette No. 37798 of 4 July 2014
7
Published in Government Gazette 38030 of 26 September 2014
5

2.2

The most pertinent regulations and the steps taken in terms thereof
are set out below.

2.3

In terms of regulation 2 which provides for the manner in which the

Commissions proceedings should be recorded, the chairperson
determined that the proceedings be electronically recorded and that
a running transcript of the proceedings be prepared.

He also

ensured at the outset, as provided in regulation 3, that all persons

charged with the recording of the proceedings took the prescribed
oath or affirmation.

2.4

In terms of regulation 5 which provides for the designation of

knowledgeable and experienced persons to assist the Commission,
the chairperson designated Adv. P C van der Byl SC as legal
researcher to assist the Commission in the performance of its
functions.

2.5

In terms of regulation 7A which provides for the assistance to the

families of the deceased to attend the enquiry, arrangements were
made for the families or representatives of the families of the
persons who died in the tragedy who wish to attend the inquiry to
attend the inquiry and to remain in attendance for such time as they
may wish to attend the inquiry or such other period as may be

Published in Government Gazette 35730 of 28 September 2012 and amended by Proclamation R66
of 2012, published in Government Gazette 35875 of 14 November 2012

8
agreed

upon

between

the

Secretary

and

the

families

or

representatives of the families.

2.6

In terms of regulation 8 any person appearing before the

Commission was entitled to the assistance of an advocate or an
attorney.

2.7

In terms of regulation 9(1) no person appearing before the

Commission might refuse to answer any question on any ground
other than the privilege contemplated in section 3(4) of the
Commissions Act No 8 of 1947.

2.8

In terms of regulation 9(2) no evidence regarding any fact or

information that comes to light in consequence of any answers given
by a person obliged in terms of regulation 9(1) to answer questions
put to him or her shall be admissible in any criminal proceedings
against that person other than proceedings in which that person is
charged with an offence of contravening section 6 of the
Commissions Act.

3.

Participants and their representation

3.1

Apart from the evidence leaders (Advs M R Madlanga SC, until 31

July 2013, G Budlender SC, M Chaskalson SC, K Pillay SC, C
Wesley, M Mojapelo and T Lupuwana), appointed by the
Commission in terms of regulation 5, the following persons and

9
bodies participated in the proceedings as provided in regulation 8,
and were represented during the proceedings of the Commission by
the following legal practitioners, namely

(a)

the

South

African

Police

Services

(the

SAPS),

represented during the major part of the proceedings by Adv

I Semenya SC, together with Advs F Mathibedi SC and S
Baloyi, and, in the earlier part of the proceedings, also with
Adv V Ngalwana SC;

(b)

Lonmin PLC, represented throughout by Adv S Burger SC,

together with Advs A Bham SC and M van As;

(c)

the National Union of Mineworkers (NUM), represented

throughout by Adv K Tip SC, together with Adv T Ntsonkota;

(d)

the Legal Resources Centre (LRC), the Benchmarks

Foundation and the family of Mr John Kutlwano
Ledingoane who was killed on 16 August 2012,
represented throughout by Adv G Bizos SC, together with
Advs T Ngcukayithobi and J Brickhill;

(e)

the Association of Mineworkers and Construction Union

(AMCU), represented throughout by Advs H Barnes and A
Gotz and initially also by Adv T Bruinders SC;

10
(f)

the more or less 270 mine workers who were Injured and
Arrested (the injured and arrested parties) represented by
Adv D Mpofu SC, together with Advs M A Qofa and R Tulk;

(g)

the Department of Mineral Resources, represented where

necessary by Adv C Badenhorst SC;

(h)

the families of the three strikers who died on 13 August

2012 and the families of the persons who died on 16
August 2012 at scenes 1 and 2, excluding the family of
Mr John Kutlwano Ledingoane, represented throughout by
Adv D Ntsebeza SC, together with Advs T Motloenya and N
Lewis;

(i)

the Bapo Ba Mogale community, represented from time to

time by Adv T Ncongwane SC, together with Advs R
Mogagabe SC and K Kgoroeadira;

(j)

Lieutenant Shitumo Solomon Baloyi who was injured on

13 August 2012 and the family of Warrant Officer Sello
Ronnie Lepaaku who was killed on that date, represented
by Adv L C Gumbi;

(k)

the South African Human Rights Commission (the

SAHRC) represented by Adv M Le Roux and Mr T Fisher,
Barrister at Law;

11
(l)

the family of Warrant Officer Hendrick Tsietsi Monene,

who was killed on 13 August 2012, represented by Adv T
Masevhe;

(m)

the Minister of Police, represented by Adv L Nkosi-Thomas

SC;

(n)

the families of Mr Frans Mabelane, Mr Thapelo Eric

Mabebe and Mr Julius Langa, who were killed on 12th
and 13th August 2012, represented by Mr. T Ramphele,
attorney.

3.2

The Commission also received written submissions from Amnesty

International, Mr Robert David Bruce and CASAC. The submissions
received were made available to the participants for comment and
were considered in the context of the evidence and submissions
made by persons and bodies who participated throughout the
proceedings.

3.3

The Commission wishes to express its gratitude to all the persons

who and bodies which assisted it to perform the task the President
mandated it to do. They are:

3.3.1

The Municipalities of Rustenburg and Tshwane, which made

venues available to the Commission free of charge and thus
made a significant contribution to the Commissions work.

12

3.3.2

The officials of the Department of Justice and Constitutional

Development and the secretariat of the Commission for all
they have done to facilitate the workings of the Commission.

3.3.3

The Evidence Leaders and the researchers for all the

dedicated work they did to enable the Commission to carry
out its function.

3.3.4

The legal practitioners, who represented the various parties

who participated in the proceedings of the Commission for
the input and their submissions which have been of great
assistance to the Commission in the preparation of this
report. (Although the participants were not parties in the
strict sense, they were treated as such and were for
convenience referred to as parties).

3.3.5

The media for the coverage they gave to the Commissions

work, which enabled the public both in this Country and
beyond our borders to follow what was happening at the
Commission.

3.3.6

The members of the families of the deceased, who have

attended the proceedings of the Commission in an
endeavour to learn as much as they could about the
circumstances in which their loved ones died and who
participated in the proceedings by giving the Commission

13
personal details about the lives of the deceased and the
impact their deaths had on their families.

3.3.7

The Commissions researcher, Adv PC van der Byl SC, who

gave sterling and dedicated assistance to the Commission
during the hearings and in the preparation of this report.

3.3.8

Ms Dikeledi Senokwane, the executive assistant to the

Commissioners, for the diligent and extremely competent
assistance she rendered to the Commissioners.

4.

The manner in which the Commission conducted its proceedings

4.1

In performing its functions in accordance with its terms of reference,

the Commission considered its mandate in two phases, namely -

(a)

first, the conduct of Lonmin, the SAPS, AMCU and NUM as

envisaged in paragraphs 1.1 to 1.4 of its terms of reference
in so far as such conduct was directly linked to the events
which took place during the period 9 August 2012 to 16
August 2012 (Phase 1'); and

(b)

secondly, all the other issues covered by the terms of

reference (Phase 2).

14

4.2

As already indicated, paragraph 1.5 of the Proclamation was

deleted9 leaving the Commission, subject to what is set out below, to
deal, as Phase 2, with the issues mentioned in paragraph 1.1.3 of
the Proclamation, which are dealt with below.

4.2.1

In a letter dated 24 April 2015 addressed to the chairperson

by

the

President,

the

President

indicated

that

the

investigation relating to the role of the Department of

Mineral Resourses and other departments or agencies
pertaining to the tragic incidents as contemplated in
paragraph 1.5 of the terms of reference may be considered
at a later stage, guided by the outcome of the Commissions
findings and recommendation with regard to the incidents of
9-12 August 2012.

4.2.2

It is for this reason that the Commission made the

recommendation contained in Chapter 24.

4.3

As provided in paragraph 2 of the Proclamation, the provisions of

the Commissions Act No. 8 of 1947 apply to the Commission.

4.4

In terms of section 4 of that Act the Commission was required to

hear all the evidence and addresses in public, subject to a

See: footnote 5 above

15
qualification that the chairperson might in his discretion exclude from
the place where such evidence is to be given or such address is to
be delivered any class of persons or all persons whose presence at
the hearing of such evidence or address is, in his opinion not
necessary or desirable.

4.5

On an application made on behalf of the SAPS, the chairman made

a ruling on 15 April 2014, for the reasons set out in Annexure A
directing, amongst other things, that the evidence of a person
referred to as Mr X be heard in camera and by video link.

4.6

During the course of the Commissions proceedings the Commission

conducted four inspections in loco, namely, on 1 and 2 October
2012, 13 August 2013 and 8 September 2014, which were attended
by the parties and their legal representatives.

During these

inspections, points regarding the incidents on 12, 13 and 16 August

2012 were pointed out to the Commission.

4.6.1

The proceedings at these inspections were duly videotaped

and these videos form part of the record of the proceedings
of the Commission.

4.6.2

It was unfortunately necessary for the inspection on 16

August 2014 to be terminated before all the points that the

16
Commission had come to see were pointed out. This was
because of unruliness amongst some of the parties.

4.6.3

The Commission was accordingly obliged to hold a further

inspection on 30 September 2014. At this inspection
attendance was strictly limited

to

the parties legal

practitioners and persons whose presence was required for

pointing out purposes. These proceedings were also duly
videotaped and those videos also form part of the record of
the Commissions proceedings.

4.7

The Commission sat on 300 days (of which seven days were
devoted to oral argument) and the transcript of the proceedings
comprises 39 719 pages of evidence, interim and interlocutory
applications and oral argument. In addition to various videos and
video clips, documentary evidence (having ran four times through
the alphabet from A to ZZZZ, many of which have various subnumbers e.g. ZZZZ 1 to 49) consists of thousands of pages.

The procedure followed by the Commission in conducting its

proceedings

5.1

In conducting its proceedings the Commission followed a quasiadversarial procedure, in that the evidence leaders, who were
assisted by two investigators, investigated the facts, led some

17
witnesses and cross examined others and addressed full and helpful
arguments to the Commission.

5.2

In this regard the Commission ruled -

(a)

in relation to evidence in chief, that statements or affidavits,

setting out the major points to be covered in the evidence in
chief by the various witnesses had to be filed and these
statements or affidavits had to be distributed beforehand to
the Commissioners and the representatives of the other
parties;

(b)

as regards cross-examination, that an application to crossexamine a witness should be given to the Commissioners,
setting out the topics proposed to be raised during crossexamination together with copies of documents to be relied
upon in the proposed cross examination.

Copies of the

documents but not the list of topics had to be made available

beforehand to the party whose witness was to be cross
examined.

After

considering

the

application,

the

Commission granted the party applying leave to cross

examine on some or all of the topics.

5.3

In following this procedure the Commission attempted to shorten the

proceedings. Eventually in order to shorten the proceedings further,

18
it limited the time available to the parties to lead or cross examine
witnesses.

6.

Interpretation of terms of reference

6.1

It will be recalled that paragraph 1.2.1 of the Terms of Reference of

the Commission enjoins the Commission to investigate the conduct
of the SAPS, in particular, the nature, extent and application of any
standing

orders,

policy

considerations,

legislation

or

other

instructions in dealing with the situation which gave rise to this

incident.

Apart from the Constitution and the South African Police

Service Act No. 68 of 1995,

considered

the

standing

(the SAPS Act), the Commission

orders,

policy

considerations

and

instructions set out in Annexure B, which will, in so far as may be

necessary, be referred to in this report.

6.2

In the course of the Commissions proceedings submissions and

suggested recommendations were made by some of the parties in
relation to various issues which call for a consideration as to whether
such recommendations fall within the ambit of the Commissions
terms

of

reference.

These

issues

relate

to

suggested

recommendations with regard to the civil and criminal liability of

some of the parties involved in the incidents during the period 9 to 16
August 2012.

19
6.3

The submissions relating to the civil and criminal liability are clearly
premised on paragraph 5 of the Commissions Terms of Reference.
This paragraph, amongst other things, enjoins the Commission to
refer any matter for prosecution where this is appropriate.

This

paragraph was clearly not intended to require the Commission to

usurp the functions of the National Prosecuting Authority, which are
set out in section 179 of the Constitution. The various Directors of
Public

Prosecutions

will

clearly

not

be

bound

by

any

recommendations the Commission may make but they will, the

Commission is sure, carefully consider them before deciding whether
to accept or reject them.

6.4

Counsel for the LRC correctly submitted in paragraphs 144 and 145
of their heads of argument that the appropriate threshold for the
making of recommendations in respect of potential criminal liability is
a prima facie basis for finding that a particular person may be
criminally liable.

6.5

The Commission is mindful of the fact that it has not been possible
(nor would it have been appropriate) for it to hold a series of minicriminal trials in respect of the persons whose conduct has to be
scrutinised by the Commission in carrying out its terms of reference.
The evidence such persons would have given would in any event,
not be admissible against them if they were to be prosecuted,
(except for offences under Section 6 of the Commissions Act) and it

20
would clearly be undesirable and unfair to such persons for the
Commission to find them guilty of any offences.

What the

Commission has decided to do, where it is appropriate, is to

recommend that the conduct of certain persons be investigated and
for a decision thereafter to be made by the appropriate authority
whether prosecution should be instituted.

6.6

As far as civil liability is concerned, the Commission accepts that any

finding it may make must be on a prima facie basis and it accepts in
this regard, the submission made by the LRC in paragraph 144 of its
heads of argument.10

6.7

A substantial amount of photographic and video material was placed

before the Commission.

The times when particular photographs

were taken and video recordings made were inaccurate as the

clocks on the equipment used were not set correctly. The Evidence
Leaders were able to produce a time line of events, which all the

10

LRC heads p. 91, paras 143, 144 and 145 which read as follows:
143.

It is not appropriate in making findings of responsibility, which may include

potential civil and criminal liability to apply strictly the standards of the balance of
probabilities or reasonable doubt.

144.

Instead, the Commission is enjoined to adopt a flexible approach to assessing the

factual issues and to make findings accordingly. In respect of potential civil and
criminal liability, the appropriate threshold is whether there is a prima facie basis to
find that a particular person may be civilly or criminally liable and to make
recommendations accordingly.

145.

In applying this standard, the Commission is called upon to make findings that
particular persons or parties may be responsible for deaths and injuries and other
events at Marikana. Where the facts before the Commission constitute sufficient
evidence to establish a prima facie basis for responsibility, the Commission should
find accordingly..

21
parties accepted. The base for this time line was the time on the
eTV video cameras which appears to be correct and the times on all
the photographs and video material put before the Commission have
been converted to eTV time.

22
CHAPTER 2

PRINCIPLES APPLIED BY THE COMMISSION IN CONDUCTING ITS

PROCEEDINGS

1.

Introduction

1.1

It is at the outset necessary to refer to the generally accepted

principles applicable to commissions of inquiry.

1.2

A useful starting point is the remarks made by Van den Heever JA in

the reports of the Durban Riots Commission. The proper function of
a commission of inquiry, he said, is- 11
.. to find the answers to certain questions put [by
the State President] in the terms of reference. A
Commission is itself responsible for the collection
of evidence, for taking statements from witnesses
and for testing the accuracy of such evidence by
inquisitorial examination inquisitorial in the
Canonical, not the Spanish sense.

1.3

In an article by W Bray entitled: n Paar Gedagtes raakende die

Getuie voor n Kommissie van Ondersoek12, it was said that the
functions of a commission of inquiry are generally not truly judicial
because there are no facts in issue to be decided judicially, therefore
rules of evidence may be relaxed.

11
12

UG 36 49: Report of the Commission of Inquiry into riots in Durban

(1982) 45 THR-HR 390 at 393

23
1.4

In S v Sparks and Others 1980(3) SA 952 (T) at 961B-C Human J

(with whom Theron AJP and Franklin J) said:

A court of law is bound by rules of evidence and the

pleadings, but a Commission is not. It may inform itself
of facts in any way it pleases - by hearsay evidence and
from newspaper reports or even through submissions or
representations or representations on submissions
without sworn evidence.

1.5

In the course of the Commissions proceedings the question arose

as to whether any party is burdened with an obligation to prove or
disprove any allegation made before the Commission (the burden of
proof).

Linked to that question, the status of statements or

affidavits made by persons (particularly the police officers who fired

shots at Scenes 1 and 2 who were not called to give oral evidence,)
was also raised.

2.

Burden of Proof

2.1

It is well established that a commission such as the present is mainly

a fact-finding body (Bell v Van Rensburg NO 1971(3) SA 693 (C) at
719). It is not a court of law nor even a quasi-judicial body.

2.2

Counsel for the SAHRC submitted (in para 2.4 of their heads of
argument) that there is a burden of proof resting on the SAPS to

24
prove that the killings of the 37 persons by the members of the
SAPS were lawful.

2.3

The Commission does not agree with this submission. The inquiry
on which it is engaged is not a lis, a law suit, brought by one party
against another. The Commissions task is, amongst other things, to
make factual findings on matters which are in dispute. If it cannot do
so, it must say so. There are no parties in the strict sense of the
word (although various persons and bodies including the SAHRC
have been given permission to participate in the proceedings) and
no-one can be said to bear what the Appellate Division in Mabaso v
Felix 1981 (3) SA 865 (A) at 871H called the overall onus of proof,
what Wigmore ( 9 Evidence 2485) called the risk of non-persuasion.
That is because there is no case for anyone to lose if at the end of
the day the Commission is not persuaded that the killings were
lawful. It is of course different where there is a lis. The matter was
considered by the Appellate Division in Mabaso v Felix: In that
case it was pointed out that in a criminal case the State bears the
overall onus to prove the unlawfulness of an assault, whether fatal or
not. The court held, however, (at 872H 374E) that the position is
different in a civil case where considerations of policy, practice and
fairness inter partes require that the defendant should bear the
overall onus of averring and proving the lawfulness of his actions in
assaulting and killing the deceased.

25
2.4

In support of their submission counsel relied on two cases, Bleier v

Uruguay, a decision of the United Nations Human Rights Committee
(Communication No. 30/1978, the passage relied on by counsel
being at para 13.2) and Bektas and Ozlap v Turkey, a decision of
the European Court of Human Rights, Application No. 10036/03 (20
July 2010), the passage relied on by counsel being at para 57.

2.5

Both cases were suits brought against the State party concerned,
where in the event of the tribunals being unable to determine on the
evidence led whether the killings were lawful one of the parties had
to lose, i.e., it bore the risk of non-persuasion. The cases are no
authority for the proposition for which counsel contended, viz., that in
a commission, where there are no parties stricto sensu and no
winners and losers, there is a burden of proof on the State.

2.6

The facts of the Bleier case are similar to those in another case on
which counsel relied, Orhan v Turkey, European Court of Human
Rights, Application No. 25656/94 (18 June 2002). In that case the
court drew an inference against Turkey (as the United Nations
Human Rights Committee had done against Uruguay in the Bleier
case) because it failed, without giving a satisfactory explanation, to
submit the information which it had in its possession relating to the
allegations of the applicant, to which information it had sole access.

26
2.7

The drawing of such an inference is permitted in our domestic law,

where the principle was laid down by the Appellate Division in
Galante v Dickinson 1950 (2) SA 460 (AD) (at 465), viz. that an
inference can be drawn against a party who fails to give evidence on
matters which are unquestionably within his knowledge.

2.8

Counsel submitted (in para 2.3.8 of their heads) that The

Commission should adopt a similar approach: where the SAPS have
failed to provide an adequate explanation for the failure to furnish the
Commission with vital information, the Commission is entitled to
draw inferences against the SAPS and is entitled to apply a lower
standard of proof in reaching findings against it.

2.9

The Commission agrees with the first part of the submission

(particularly in view of the undertaking by the National Commissioner
that the SAPS would give its full co-operation to the Commission). It
does not, however, as will appear from what is said in the next
section, agree that that involves applying a lower standard of proof.

3.

Standard of Proof

3.1

The chairperson said on Day 13513 that the Commission would

evaluate all of the available evidence and come to a view of the
probabilities on the facts. Counsel for the SAHRC submitted (in

13

Day 135,Scott, p. 14347

27
para 2.3.3 of their heads) that this is the appropriate standard to
apply to the majority of the issues in dispute but that some flexibility
may be justified in relation to certain issues. Reference was made
to a comprehensive discussion of the topic by Stephen Wilkinson et
al, Standards of Proof in International Humanitarian and Human
Rights Fact-Finding and Inquiry Missions, a research project
undertaken under the auspices of the Geneva Academy of
International Humanitarian Law and Human Rights in close cooperation with Geneva Call and published by the academy.

3.2

In Section IV of the report the authors (at page 51) recommend

balance of probabilities (i.e., the domestic standard of proof in civil
cases) as a coherent starting point for the application of a set
standard of proof.

At page 55 they say: FFMs [Fact-Finding

Missions] should ensure that their findings are credible and reliable:
lower standards of proof should therefore be accepted only in limited
circumstances. At page 58 they deal with the level of co-operation
that can be expected from the parties under investigation. They say
that when the parties under investigation are not open and
receptive, it is likely that some findings will only ever reach the
standard of one of the reasonable conclusions [i.e., a standard
lower than the civil standard]. The FFM may need to rely on adverse
inferences.

3.3

The Commission is of the view that it would not be appropriate for it

to adopt a lower standard than the civil standard when it makes

28
factual findings. In this regard it is important to bear in mind that
both the criminal and civil standards are flexible.

In Cross on

Evidence (12th edition by Colin Tapper), the following dictum by

Denning LJ in Bater v Bater ([1951] P35 at 36-37) is quoted:

It is of course true that by our law a higher standard of

proof is required in criminal cases than in civil cases. But
this is subject to the qualification that there is no absolute
standard in either case. In criminal cases the charge
must be proved beyond reasonable doubt, but there may
be degrees of probability within that standard. The
degree that depends on the subject-matter. A civil court,
when considering a charge of fraud, will naturally require
for itself a higher degree of probability than that which it
would require when asking if negligence is established. It
does not adopt so high a degree as a criminal court, even
when it is considering a charge of a criminal nature; but
still it does require a degree of probability which is
commensurate with the occasion.

3.4

Cross and Tapper also quote what Morris LJ said in Hornal v

Neuberger Products Ltd ([1957] 1 QB 247 at 266):

Though no court and no jury would give less careful

attention to issues lacking gravity than to those marked
by it, the very elements of gravity become a part of the
whole range of circumstances which have to be
weighed in the scale when deciding as to the balance
of probabilities.

3.5

And, as has been said above, in the application of the civil standard,
inferences can be drawn in appropriate cases against a person who
alone knows the relevant facts but fails to give evidence thereon. In
the present case the undertaking by the SAPS to co-operate fully

29
with the Commission is relevant to the question whether the drawing
of an adverse inference against the SAPS is appropriate.

3.6

Furthermore it is important to note that the Commissions Terms of

Reference enjoin it to inquire, make findings, report and make
recommendations on the matters set out in the Proclamation
establishing the Commission. The recommendations it may make
include

recommending

further

investigations

and

possible

prosecutions. When it comes to making recommendations regarding

possible prosecutions the Commission will consider (a) whether
there is a prima facie case against the person in respect of whom the
institution of a prosecution is to be considered; and (b) if not,
whether there is a reasonable prospect that further investigation will
uncover a prima facie case.

3.7

The Commission will thus not be making factual findings in this part
of its work and the application of the civil standard will not arise.

4.

Status of statements and affidavits

4.1

The question of the status of various statements and affidavits

submitted by the SAPS arose in the course of the proceedings at the
time when the SAPS presented to the Evidence Leaders a lengthy
list of witnesses, including a number of SAPS members who had

30
fired shots at Scenes 1 and 2, whom the SAPS wanted to call to give
evidence and when it was, because of time constraints, not possible
to call those members as witnesses. The chairman directed that the
SAPS has a duty to justify all the shootings by SAPS members
which caused injury or death.14

4.2

On the question relating to the status of the various statements or

affidavits submitted, the chairman held that the SAPS may discharge
that duty by calling witnesses to give oral evidence by submitting
written statements of witnesses or by relying on the other evidence
which is before the Commission15; that no adverse inference may be
drawn from the fact that the SAPS has not called every SAPS
member who fired a shot or shots as a witness to give oral evidence;
and that the Commission will evaluate all of the evidence before it in
considering whether shooting by members of the SAPS was
justified.

4.3

In so far as the ruling purports to hold that the SAPS has a duty to
justify, in a strict legal sense, all of the shootings by SAPS members
which caused injury or death, the word justify was, bearing in mind
the ruling on the burden of proof, not correctly used.

4.4

The Commission agrees with the submissions raised by the South

African Police Services in paragraph 98 of its Heads of Argument
which reads as follows:

14
15

Day 292, Mr Seedat, pp. 38359 to 38360

Day 292, Mr Seedat, pp. 38359 to 38360

31

98.

4.5

The ruling that the SAPS has a duty to justify all

of the shootings by SAPS members which
caused injury or death, in the context of a
commission hearing, cannot be a reference to a
legal duty. There being no onus bearing party in
these proceedings, in the strict legal sense, the
SAPS is not called upon to discharge such a
duty. A commission is an investigative and not
adjudicative process. Therefore the SAPS only
has a duty to place evidence before the
Commission which explains the circumstances
under which the police acted. The conclusions
from the consideration of the evidence may point
to any justification for the police conduct or lack
thereof.

Accordingly the Commission is of opinion that no onus lies on any of

the parties to prove or disprove any responsibility, but that each
party has an obligation to place all relevant information at its disposal
before the Commission.

4.6

The Commission has in the course of its work had regard in the main
to oral evidence given on oath or after an affirmation made by the
witness which was subjected to cross examination.

It has also,

where it considered it appropriate, had regard to affidavits deposed

to by persons who were not subjected to cross examination, as well
as statements appearing in Occurrence Books kept by the SAPS
and by Lonmin but in doing so it has been mindful of the need to
bear in mind the fact that evidential material of this kind must be
used with care. Among the evidential material put before it were

32
also warning statements made by SAPS members to IPID
investigators. These statements are dealt with in Chapter 22 below.

5.

Self- and Private Defence

5.1

The SAPS contended that the shots fired by its members on 13 and
16 August, some of which killed and injured some of the strikers and
another person, a non-striker who was near scene 1 on 16 August
were fired while the members were defending themselves and their
colleagues from an attack and that the shots fired were accordingly
lawful.

5.2

NUM contended that the shots fired by its members at its office on
11 August were also justified because they were acting lawfully to
defend themselves and their office, which they had been informed
was going to be set alight and burnt by some of the strikers who
were approaching it.

5.3

It is accordingly convenient to summarise the legal principles relating

to the doctrine of self- and private defence in our law.

5.4

As was stated by Chaskalson P in S v Makwanyane and Another

1995(3) SA 391 (CC), para [138] at 448 H 449 A:

33
Self-defence is recognised by all legal systems. Where a
choice has to be made between the lives of two or more
people, the life of the innocent is given preference over the
life of the aggressor To deny the innocent person the right
to act in self-defence would deny to that individual his or her
right to life. The same is true where lethal force is used
against a hostage taker who threatens the life of the
hostage. It is permissible to kill the hostage taker to save
the life of the innocent hostage. But only if the hostage is in
real danger. The law solves problems such as these
through the doctrine of proportionality, balancing the rights of
the aggressor against the rights of the victim, and favouring
life or lives of innocents over the life or lives of the guilty.
But there are strict limits to the taking of life, even in the
circumstances that have been described, and the law insists
upon those limits being adhered to.

5.5

In footnote 166 at 449 H Chaskalson P said:

Self-defence is treated in our law as a species of private

defence. It is not necessary for the purposes of this
judgment to examine the limits of private defence. Until now,
our law has allowed killing in defence of life, but also has
allowed killing in defence of property, or other legitimate
interest, in circumstances where it is reasonable and
necessary to do so. Ex parte Minister van Justisie: In re S
v Van Wyk 1967 (1) SA 488 (A). Whether this is consistent
with the values of our new legal order is not a matter which
arises for consideration in the present case. What is
material is that the law applies a proportionality test,
weighing the interest protected against the interest of the
wrongdoer. These interests must now be weighed in the
light of the Constitution.

5.6

For a successful invocation of the defence there has to be an

unlawful attack on the defender or another, which has commenced
or is imminent, against which the defender has used force against
the attacker which was not excessive in relation to the danger and
was the only or least dangerous means whereby the defender could
have avoided the danger: see, e.g., R v Attwood 1946 A.D. 331 at

34
340 and R v Patel 1959 (3) SA 121. As it was put in R v Patel, at
123 D, (i)n considering these, the Court must beware of being an
armchair critic and must take into account the exigencies of the
occasion.

5.7

In deciding whether the use of force was the only or least dangerous
means of avoiding the danger, i.e., was necessary, as was held by
Madlanga AJP in Ntamo and Others v Minister of Safety and
Security 2001 (1) SA 830 ((Tk HC) at paras [21] to [24], at 836H 837H), to have regard not only to the events immediately preceding
the use of force by the defender but also to the question as to
whether some other form of intervention was available to the
defender at an earlier stage.

5.8

Madlanga AJP discussed the issue of the wrongfulness of resorting

to lethal force, as opposed to some lesser form of force, in paras [33]
and [34] of his judgement as follows:

(A) lot turns on the specific facts of each case and the
person relying on private defence must proffer such facts
as may justify the use of that force. No facts were placed
before me explaining why the police did not shoot at the
deceaseds legs. There was no suggestion that shooting
at the deceaseds legs would not have neutralised him.
Even if this was an emergency and the police had to act
swiftly, they still could have shot at the legs and, for all we
know, that the exact same time they used in shooting at
the torso. The have failed to explain why they did not do
so. They have thus failed to justify their use of lethal
force.
Whilst appreciating that the life-threatening
situation would in all probability affect ones calm and
proper judgment and that, therefore, this should come into

35
the equation, surely the boni mores by no means make
light of the sanctity of life, and that includes the life of the
aggressor. It can never be that any person who whips out
a firearm and threateningly points it at the police
apparently intent on shooting them is fair game to be shot
and killed by the police. The police must justify their
resorting to lethal force. In this regard examples of
factors that may be relevant are the following:

5.9

(i)

the imminence of the danger;

(ii)

how threatening the danger is to life or limb;

(iii)

the nature of the instrument, if any, the attacker is using

in waging the unlawful attack;

(iv)

the proximity of the attacker and the attacked;

(v)

the mobility of the attacker and the celerity of his/her

movement; and

(vi)

how easy or difficult it would be to apply force to a less

delicate part of the body.

[34]

The particular facts of each case will determine

which of these and other factors are relevant. By
way of example, the more imminent and threatening
the danger and the more difficult it is, for example,
to shoot at the legs by reason of, say, the attackers
mobility and speed, the easier it will be to discharge
the onus and vice versa. In casu, the police have
failed to sufficiently set out all the relevant facts.

In para [35], before quoting the passages from Makwanyanes case

which are set out in para 5.14 above, he said:

The new constitutional dispensation certainly has a

bearing on the boni mores of society (cf Amod v
Multilateral
Motor
Vehicle
Accident
Fund
(Commission for Gender Equality Intervening) 1999
(4) SA 1319 (SCA) para [23] at 1329E 1330A, a case
dealing with the period immediately preceding postapartheid constitutional era). Surely, the legal convictions
of the community on the issue under discussion are, at
present, informed by, inter alia, the sanctity of life, a
fundamental right enshrined in s 11 of the Constitution of
the Republic of South Africa Act 108 of 1996.

36

5.10

Paragraphs [36] to [38] are also important in this context because

they indicate that in applying the doctrine of proportionality in this
context the principles laid down by the European Court of Human
Rights in interpreting article 2 of the European Convention of Human
Rights provide informative and useful guidance to our courts. They
read as follows:

[36] The doctrine of proportionality has been dealt with in

the constitutional context in jurisdictions where the
right to life is sacrosanct. In my view, it would be
useful to draw from the experiences of these
jurisdictions. I use decisions of the European Court
of Human Right as examples. In the case of
McCann and Others v United Kingdom (1996) 21
EHRR 97 the European Court of Human Rights was
concerned with the interpretation of art 2 of the
European Convention on Human Rights, which
reads as follows:
1.

Everyones right to life shall be protected by

law. No one shall be deprived of his life
intentionally save in the execution of a
sentence of court following his conviction of a
crime for which this penalty is provided by
law.

2.

Deprivation of life shall not be regarded as

inflicted in contravention of this article when it
results from the use of force which is not
more than absolutely necessary:
(a)
In defence of any person from unlawful
violence;
(b)

(c)

[37] Although neither the common-law test of

wrongfulness in cases involving the use of lethal
force in private defence nor the provisions of s 11 of
the Constitution make reference to the concept of
absolute necessity (para 2 of art 2 of the

37
Convention), in my view, the principles enunciated in
the McCann case are quite informative and useful.
In that case the following was said:
(T)he force used must be strictly proportionate to
the achievement of the aims set out in subparas
2(a), (b), and (c) of art 2.
In keeping with the importance of this provision in a
democratic society, the Court must, in making its
assessment, subject deprivations of life to the most
careful scrutiny, particularly where deliberate lethal
force is used, taking into consideration not only the
actions of the agents of the State who actually
administer the force but also all the surrounding
circumstances, including such matters as the
planning and control of the actions under
examination.
[38] The European Court of Human Right reaffirmed the
above statement of the law in Andronicou and
Another v Cyprus (1998) 25 EHRR 491 at 545.
The latter was a case of hostage taking in which
members of a Cyprus specialist police unit, in their
rescue effort, had shot and killed both the hostage
taker and the hostage. The Court which decided (by
five votes to four) that there was no violation of art 2
of the Convention was agreed that, amongst others,
important considerations are adequate and proper
planning and meaningful control in the execution of
the plan. In a dissenting judgment Judge Pikis said
(at 565):
The State has added duty of planning as
well as controlling the operation so as to
limit the circumstances in which force is
used and, if the use of force is
unavoidable, to minimise its effects.
For present purposes, I wish to qualify the idea of
planning. It should not conjure up ideas of nothing
but elaborate planning. The nature of planning
should, inter alia, depend on the nature of the harm
to be averted and the time available for taking
appropriate action. Reverting to the instant case,
the bungling of the police, their lack of
professionalism in approaching the deceased and
their planning (or lack thereof) sink the defendant
even further if we import, as we must do, the

38
dictates of the Constitution to the notion of legal
convictions of the community.

5.11

It is also important in this context to consider the question raised by

Professor Andrew Ashworth in Principles of Criminal Law, 7ed, : If
the law gives the subject of the attack the liberty to wound or kill his
aggressor, what happens to the aggressors right to life and physical
safety? He points out that some legal systems favour the approach
that the aggressor forfeits these rights when he embarks on the
attack. This approach is contrary to our law as is clear from the
quoted dictum of Chaskalson P in para 5.4 above, where he spoke
of balancing the rights of the aggressor against the rights of the
victim.

5.12

Where the person who purported to act in self- or private defence

was mistaken in thinking that he was under attack he cannot rely on
the doctrine of private defence, as was held by the Appellate Division
in S v De Oliviera 1993 (2) SACR 59 (A) at 63 64 where the legal
position was set out as follows:

A person who acts in private defence acts lawfully,

provided his conduct satisfies the requirements laid down
for such a defence and does not exceed its limits. The
test for private defence is objective would a reasonable
man in the position of the accused have acted in the
same way (S v Ntuli 1975 (1) SA 429 (A) at 436E). In
putative private defence it is not lawfulness that is in issue
but culpability. If an accused honestly believes his life or
property to be in danger, but objectively viewed they are
not, the defensive steps he takes cannot constitute private

39
defence. If in those circumstances he kills someone his
conduct is unlawful. His erroneous belief that his life of
property was in danger may well (depending on the
precise circumstances) exclude dolus in which case
liability for the persons death will also be excluded

5.13

McCanns case concerned a planned terrorist attack to be carried

out in Gibraltar by members of the Provisional IRA, who were going
to detonate a car bomb. After the three suspects had arrived in
Gibraltar (but before the car bomb was brought across the border
from Spain), they were shot by soldiers belonging to the British
Special Air Service (SAS), who testified that they had fired at the
suspects believing that they were about to detonate the bomb.

5.14

At the Gibraltar inquest, the jury (by a majority of nine to two)

returned verdicts of lawful killing.

5.15

The relatives of the deceased applied to the European Court of

Human Rights for financial compensation and costs and expenses,
alleging a violation by the United Kingdom of Article 2 (art 2) of the
European Convention for the Protection of Human Rights and
Fundamental Freedom.

5.16

The Grand Chamber of the Court held (by ten votes to nine) that
there had been a violation. The majority accepted that the SAS
members who shot the deceased had acted lawfully but held that the
anti-terrorist operation as a whole was not controlled and organised

40
in a manner which respected the requirements of Article 2 (art 2) of
the Convention. In paragraph 213 of the judgment, the majority
summarised its conclusions as follows:

In sum, having regard to the decision not to prevent the

suspects from travelling into Gibraltar, to the failure of the
authorities to make sufficient allowances for the possibility
that their intelligence assessments might, in some
respects at least, be erroneous and to the automatic
recourse to lethal force when the soldiers opened fire, the
court is not persuaded that the killing of the three
terrorists constituted the use of force which was no more
than absolutely necessary in defence of persons from
unlawful violence within the meaning of Article 2
paragraph 2(a) (art2-2-a) of the Convention.

5.17

The decision was thus based on defective planning of the operation.

Thus the necessity to kill the suspects would not have arisen if they
had been prevented from entering Gibraltar.

5.18

In their heads of argument, counsel for the SAHRC summarised the

ratio of the McCann judgment (which they call the principle of
prevention/ precaution) as follows:
the principle of prevention/precaution requires that
those in command of policing operations in which
higher levels of force are anticipated as a possibility to
plan and command those operations in such a way as
to minimise the risk that lethal force will be used.

5.19

Counsel for the SAPS contended that this principle is not part of
South African law. As has been seen, it has been specifically cited
and applied by Madlanga AJ P in the Ntamo case. The Commission

41
agrees with that judgment and is satisfied that the McCann principle
is indeed part of our law.

5.20

In Makwanyane (in footnote 166 at 449H), quoted above in para 5.5

above, Chaskalson P left open the question as to whether the
decision in Ex parte Minister van Justisie: In re S v Van Wyk 1967
(1) SA 488 (A), to the effect that our law allows killing in defence of
property, is consistent with the values of our new legal order. There
is as yet no authoritative pronouncement on the issue, which is
accordingly still open. The Commission is of the view that, provided
the property sought to be defended is sufficiently valuable our law
does permit a defender to use force to protect it. But, as pointed out
earlier, such force must be necessary and not more harmful than
necessary in the circumstances. Thus where an aggressor who is
launching an imminent attack could be deterred from attacking by a
warning shot, this must be done (cf Ntamo at para [24] at 83 F
G).

42

CHAPTER 3

THE PROCESSES OF COLLECTIVE BARGAINING AS THEY IMPACTED ON

EVENTS AT MARIKANA

------------------------------------------------------------------

1.

1.1

Introduction

The evidence shows -

(a)

that the tragic events at Marikana are rooted in widespread labour

disputes in the area, particularly, at Lonmins Karee mine and at the
nearby Impala Platinum Mine (Implats) which were characterized by
violence, intimidation and loss of life and the undermining of agreed
collective bargaining processes; and

(b)

that the tragic events that occurred during the period 12 to 16 August
2012 originated from the decision and conduct of the strikers in
embarking on an unprotected strike and in enforcing the strike by
violence and intimidation, using dangerous weapons for the purpose.

43
1.2

It is convenient first to deal briefly with the processes of collective bargaining

and the background facts which appear to have given rise to the unrest at
Marikana.

2.

The processes of collective bargaining

2.1

The processes of collective bargaining are embedded in the

Constitution and in a set of sophisticated enactments, central to
which is the Labour Relations Act No. 66 of 1995 (the LRA).

2.2

At its core the labour relations dispensation which resulted from

these developments is an arrangement of lawfully organised union
and employer entities functioning within a bargaining environment
that not only regulates their interaction, but also provides for the
possibility of resort to lawful strike or lockout measures.

2.3

In his statement, Mr Erick Gcilitshana (Mr Gcilishaha),16 a national

office bearer of NUM and employee of Lonmin, outlined the general
practice followed by NUM in its conduct of wage negotiations.

2.3.1

According to him NUMs priority is to make any wage

negotiations an inclusive process with mandates being
obtained from members before negotiations commenced.

16

Exhibit XX1, statement of Gcilitshana, paras 21-32

44
2.3.2

Mass meetings of workers are held in order to report back

and to obtain final mandates before negotiations are
concluded.

2.3.3

He detailed the process where each branch would convene

a shop stewards council at which workers demands were
directly received. Thereafter each branch convened separate
mass meetings at which the demands are presented and
debated.

2.3.4

The executive leadership of each branch would further

discuss the demands which are placed before a central
stewards council for consideration.

2.3.5

A list of demands is placed before a central mass meeting

of workers for finalization before submission of the demands
to Lonmin.

2.3.6

The demands are first forwarded to a dedicated market

research section within NUMs head office, where they are
assessed for consistency with the unions policies and
evaluated against industry and market norms and practices.
The purpose of this, he said, is to ensure that NUM does not
make unreasonable demands of the employers and in turn,
that it does not create unreasonable expectations on the part

45
of workers which may backfire on the union and negatively
affect the credibility of NUMs negotiations.17

2.3.7

He said that it would be only after this process that a set of

demands would be considered for submission to the
employer.

2.4

Against this brief background, consideration can be given to the

events that occurred at Implats and whether such events triggered
the events that occurred at Lonmin.

3.

The events that previously occurred at the nearby Impala Platinum

(Implats) Mine

3.1

On 7 October 2011 NUM (being at the time the representative trade

union at Implats as well as at Lonmin) and Implats, as provided in
section 14 of the LRA, entered into a collective agreement, expiring
on 30 June 2013, regulating wages and other conditions of
employment.

3.2

Notwithstanding the agreement concluded between NUM and

Implats, Implats, on or about 18 December 2011, unilaterally granted
an additional wage increase of 18 per cent effective from January
2012 to one category of its workers, being the Miners who are

17

Day 35, Gcilitshana pp. 3804-3805

46
miners in first line supervision of mining work teams, allocated to
every face panel, and are mostly NUM members within the
bargaining unit.18

3.3

This decision by Implats, according to the evidence,19 put NUM in a

spot in that, apart from having undermined the collective agreement
concluded on 7 October 2011, it caused discontent amongst the
NUM members for at least two reasons, namely, first, because the
increase was granted only to one category of workers and, secondly,
it created the impression that NUM had been lying to them when at
the time of the conclusion of the agreement it had persuaded them to
agree to the agreement on the grounds that, as contended by
Implats, their coffers have been exhausted,20 hence the fact that
the RDOs, in particular, decided not to persist with their demand to
be upgraded from category 4 to category 7 workers.

3.4

During January 2012 the RDOs at Implats became aggrieved by the

Implats decision in that regard and embarked on an unprotected
strike in demand of a monthly basic salary of R9 000. This strike
was characterized by high levels of violence and intimidation much
of which was directed at the NUM and its members. During the
strike 60 persons were injured and four persons lost their lives. The

18

They are in effect the persons who have to do the early examination to ensure that the area is safe
before other workers can get in and who should be pointing where the rock drill operators have to drill
and who have, after a blast, to clear the shaft.
19
Day 35, Gcilitshana pp. 3774-3777
20
Day 35, Gcilitshana p. 3788

47
result was that the NUM branch offices at Implats were forcibly
closed.

3.5

In response to the unprotected strike Implats dismissed about 17

200 of its workers on or about 2 February 2012, but later it reinstated
the majority of the workers so dismissed.

3.6

During April 2012 Implats acceded to the demands by granting

increases of various kinds to its entire workforce, which brought an
end to the strike.

3.7

The RDOs they were all promoted from category A4 to category B1,
which in effect resulted in an overall increase of their salaries,
including a holiday leave allowance, a living out allowance and a
retirement contribution, from a total guaranteed pay of R6 540 to a
total guaranteed pay of R9 991 with effect from 1 April 2012, being a
date brought forward from 1 July 2012 (the dates in the collective
agreement of 7 October 2011).21

21

Exhibit XX2.4 - Implats Management Brief No. 11.12

48
4.

The impact of the developments at Implats on Lonmin

4.1

These increases gave rise to the fact that RDOs at Lonmin were
lagging behind in wages, compared to their colleagues at the
surrounding platinum mines, particularly at Implats.

4.2

On 2 December 2011 NUM and Lonmin, after a fairly long bargaining

process, concluded a substantive agreement22 which was valid for
two years commencing on 1 October 2011 and expiring on 30
September 2013, providing, inter alia -

(a)

that the agreement bound all permanent employees whether

or not they are members of NUM and were employed at
Lonmin;

(b)

that certain categories of employees who included the RDOs

would receive, with effect from 1 October 2011, increases
depending on the category of employees in which they fell of
9 and 10 per cent per annum;

(c)

that employees would receive a housing allowance,

depending on the category in which, they fell of R1 850 and
R1 950 per month;

22

Exhibit XX2

49
(d)

that any disputes relating to the interpretation and

application of the agreement were to be dealt with in
accordance with the procedure described therein;

(e)

that (a)ll proposals and demands on which agreement was

not reached, or which were withdrawn by the unions or the
company, are regarded as having been settled and may not
be subject to strike action until this agreement lapses on the
30th of September 201323; and

(f)

that no addition to or variation, consensual cancellation or

novation of the agreement and no waiver of any right arising
from the agreement or its breach or termination would be of
any force or effect unless reduced to writing and signed by
all the parties or their duly authorised representatives.24

4.3

As was confirmed by Mr Gcilitshana,25 the unilateral wage increases

at Impala impacted on Lonmin workers in two ways: first, that some
workers might cross over to Impala; and, secondly, that those
workers who did not form an expectation of achieving substantial
increases through the same route, namely unprotected strike action.

4.4

That expectation was indeed formed and the same route was
pursued. The first clear manifestation of it was the presentation to Mr

23

See: Clause 12.3 of the agreement.

See: Clause 12.4 of the agreement
25
Day 35, Gcilitshana pp. 3814-3816
24

50
Michael Da Costa of a demand for RDO nett wages to be increased
to R12,500. He was at the time the VP Mining Operations at Karee
and he gave detailed evidence of the manner in which this
happened.

4.5

According to him, during June 2012 approximately 300 RDOs at

Lonmins Karee mine, apparently took notice of the strike and the
increases granted to RDOs at Implats. Two of their representatives,
Mr Magqabine and Mr Mofokeng, approached him at Karee,
indicating that they do not wish the involvement of any of the trade
unions as their demand did not involve the entire workforce. They
demanded,

notwithstanding

the

existence

of

the

collective

agreement a basic nett salary of R12 500 per month.26 They were
unable, except for indicating that it was a nice figure, to shed any
light on when that amount was first discussed or decided upon, by
whom it was discussed and decided upon, and what the rationale for
demanding that specific amount was.

4.5.1

Mr Da Costa told them that raising any grievance by

marching to his office was an incorrect way of doing things.
The discussion went on for approximately one hour. Mr Da
Costa kept referring back to the structures in place which
dealt with wage negotiations whereas they kept stating that
they wished to deal with the matter outside of those

26

Day 239, Da Costa p. 30023

51
structures. They also said that they were not making a
demand but were simply requesting an increase in the basic
salary. Mr Da Costa informed them that he would take the
matter up to Lonmin's Exco and that he would give them
feedback by 2 July 2012.

4.5.2

In response to this demand Mr. Da Costa prepared a

memorandum to Lonmin management, recommending, for
reasons set out therein, the engagement with NUM and
AMCU to reach agreement on the matter and the payment of
certain allowances so as to bring RDOs remuneration on a
par with the remuneration paid by Implats to its RDOs.27

4.5.3

Lonmin management decided to award, effective from 1 July

2012, the following additional monthly allowances to RDOs
and their assistants at all divisions of Lonmin, namely -

R750 to all unassisted RDOs;

R500 to assisted RDOs; and
R250 to assistant RDOs.

4.5.4

The RDOs were, however, not prepared to accept this award

and decided at a meeting held on 9 August 2012 to go on an

27

Exhibit XXX3 at p. 448 of bundle

52
unprotected strike in support of their demand for a wage of
R12 500 per month.28

4.6

In contending that the Implats strike had a major impact on the

Lonmin strike, counsel acting on behalf of Lonmin, under cross
examination, drew parallels between Implats and Lonmin, in that, in
both strikes, RDOs were involved; both strikes were preceded by
demands outside collective bargaining structures; both strikes were
unprotected; both strikes were accompanied by high levels of
violence and intimidation; in both strikes, the NUM offices were
threatened and targeted; both strikes resulted in NUM losing
membership and AMCU gaining membership.

28

Exhibit YY1, para 3; Day 37, Setelele pp. 4077-4079

53
CHAPTER 4

THE EVENTS THAT OCCURRED ON THURSDAY, 9 AUGUST 2012

1.

It is common cause that on Thursday, 9 August 2012, which was a public

holiday, a significant group of RDOs (according to some sources,
approximately 3000 at some stage) met outside the Wonderkop Stadium at
Lonmin between 08h00 and 13h00, and, having rejected the allowances
offered by Lonmin, decided not to go to work the next day and to march in
support of their demand of a monthly nett salary of R12 500, to the offices of
the Lonmin Platinum Division (LPD).29

2.

It is also common cause that this strike as it progressed over the period was
an unprotected strike.30

3.

Mr Vusimuzi Mabuyakhulu (Mr Mabuyakhulu) testified that the workers

decided not to engage the unions for three reasons31, namely -

(a)

first, that the RDOs came from different units, namely Karee,
Rowland and Eastern Platinum and hence belonged to different
unions;

29

Exhibit OO 17, paragraph 6.1 and 6.2

See : section 67 of the Labour Relations Act 66 of 1995
31
Day 48, Mabuyakhulu, pp. 5261 to 5262
30

54
(b)

secondly, that at that stage NUM had allegedly already made it clear
that they were unable to take forward the demand of the RDOs; and

(c)

thirdly, that in 2006/2007 a similar request had allegedly been made

to NUM and they did not receive any feedback.

4.

This gathering was observed by, amongst others, Mr. Pieter Botha, a
security superintendent in the employ of Lonmin.

He described it as

peaceful.32

5.

News of this gathering reached Mr. Barnard Mokwena, Lonmins Executive

Vice President for Human Capital and External Affairs, on 9 August 2012,
together with strong rumours that the workers were possibly intending to
embark on a wild cat strike as from 10 August 2012 in response.33

6.

Lonmin, thereupon, issued an internal communique (drafted by Mr.

Mokwena) reminding employees that Lonmin had existing collective
bargaining structures and that no demands outside of these structures would
be tolerated.34

7.

32

The communique also warned

Exhibit ZZZZ 16, paragraphs 6, 7 and 8

Exhibit RR1, paragraph 15
34
Exhibit WWWW1 page 8
33

55
a)

that the planned work stoppage on 10 August 2012

amounted to unprotected industrial action and that any
gathering of workers would be in breach of the Regulation of
Gatherings Act;

b)

that the SAPS would be called in to assist and that

management would not hesitate in dismissing workers who
participated in the industrial action.

8.

It was seriously disputed by NUM, as contended by Mr Mabuyakhulu, that

NUM had at that time made it clear that they were unable to take the
demand of the RDOs forward and that in 2006/2007 a similar request had
been made to NUM in respect of which they did not receive any feedback.

9.

These contentions raised by Mr Mabuyakhulu are in any event at odds with

the indications given by the representatives of the RDOs to Mr Da Costa to
the effect that they do not wish the involvement of any of the trade unions as
their demand did not involve the entire workforce.35

10.

It would accordingly appear that at that stage the RDOs decided, for reasons
unrelated to any of the trade unions (AMCU having not aligned itself with the
demand and NUM having distanced itself from the demand), to advance
their claim for a wage of R12 500, on their own. 36

35
36

Exhibit OO17, paragraph 3.16

Exhibit EEEE19.2 and Exhibit OO1

56
11.

Mr X, the witness who was permitted to testify by television link from a

remote location, testified about this matter and on a number of other matters.
A summary and evaluation of his evidence is contained in Annexure C.

57
CHAPTER 5

THE EVENTS THAT OCCURRED ON FRIDAY, 10 AUGUST 2012

The following incidents on the 10th call for consideration and evaluation:

The march to Lonmin Platinum Division offices and the meetings with
Lonmin Security;

Whether the crowd was armed and the mood of the crowd;

The presence of SAPS;

The intimidation of employees and the shooting of rubber bullets by Lonmin

Security;

Whether the shooting by Lonmin security was justified;

The shooting of Mr Mutengwane and Mr Dlomo;

SAPS contingency plan of 10th August 2012; and

Lonmins failure to apply its counter industrial response.

58
A

The march to Lonmin Platinum offices and the meeting with Lonmin
Security

1)

At approximately 06h00 on 10 August 2012 Lonmin workers began gathering

at the Wonderkop Stadium. This was observed by, amongst others, Mr
Botha.37 Estimates of the size of the crowd that began gathering vary from
between six hundred to one thousand five hundred. Eventually, the size of
the crowd increased to approximately three thousand.

2)

At 07h00 Graeme Sinclair, the Group Mining Emergency and Security

Manager of Lonmin, held a debriefing with other Lonmin managers38
including Mr Blou and Mr Jomo Kwadi, Lonmins Senior Manager of
Employee Relations. It was recorded at this meeting that workers had not
reported for work at the various Lonmin shafts as per usual.39 It is also
recorded that AMCU was not aligned with the demand of the workers and
that NUM had distanced itself from it.

3)

At approximately 08h00 the workers started marching from the Wonderkop

Stadium to the LPD offices.40 Mr Blou was concerned about the fact that
SAPS was not present at this time, considering the size of the crowd and in
light of the fact that no application had been made in terms of the Regulation
of Gatherings Act.41

37

Botha statement 2 July 2014; Exhibit ZZZZ 16 paragraph 9.

Exhibit EEEE19.2.
39
Exhibit EEEE19.2
40
Exhibit EEEE19.2.
41
Exhibit RRRR1.1, paragraphs 12 and 13.
38

59

4)

Mr Blou telephoned Lieutenant General Mbombo, the North West Provincial

Commissioner of Police, and requested that assistance be provided by the
Public Order Police (POP) unit at Rustenburg. Lieutenant General Mbombo
advised him that the necessary support would be sent to Lonmin.42

5)

At the LPD office Messrs Sinclair and Blou had a telephonic discussion with
Mr Abey Kgotle, the Executive Manager for Human Capital of Western
Platinum, who informed them that management would not speak to a
faceless crowd when there were recognised and established structures in
place whereby demands could be put to management.43

6)

Mr Kgotle in his witness statement stated that on 10 August 2012 he

reported for work at approximately 08H00, and at 09H00 he received an
urgent telephone call from Mr Sinclair who advised him that there was a
group of people gathering near Wonderkop, and that there appeared to be a
planned march to LPD later that day.44 Mr Kgotle stated further that they
hastily convened a meeting with a few of Lonmins senior management. At
this meeting they took a resolution not to accept the memorandum from the
marchers because Lonmin would not bargain outside its established
bargaining structures.45

7)

By 10h00 the crowd had moved past the four-way stop at Rowland Shaft.46
Mr Botha observed that the crowd was armed only with sticks and

42

Exhibit RRRR1.1, paragraphs 12 and 13

Exhibit FFFF1, paragraph 25; Exhibit RRRR 1.1 paragraph 19.
44
Exhibit OO16 para 12
45
Exhibit OO16 para 16
46
Exhibit OO16 par 16
43

60
knobkerries and that no other weapons could be seen.47 SAPS had arrived
on the scene by this time with four Nyala armoured vehicles and several soft
skin vehicles.48 SAPS took over the task of escorting the workers from
Lonmin security.49 This appears on Exhibit W.

8)

At the Wonderkop four-way stop (also referred to as the LPD four-way

crossing), which is situated approximately 600 meters from the LPD office,
Messrs Sinclair and Blou as well as the SAPS commander approached the
crowd. Speaking in Fanagalo, Mr Sinclair asked the crowd what it was that
they wanted. Approximately six workers came forward and told Mr Sinclair
that they wanted to speak to management.50 Mr Sinclair replied that
management had instructed him to convey to them that management was
not willing to negotiate with the crowd as they were not following the existing
channels of negotiation. Mr Sinclair also requested that the crowd put their
demands in writing, to which the crowd replied that they were illiterate and
could not write down their demands. Mr Sinclair then returned to the LPD
office together with Mr Blou to inform management of the events and to
obtain further instructions.51 The crowd then dispersed.

9)

After the march Mr Kgotle issued a communique52 informing workers that

their conduct amounted to serious misconduct and instructing them to report
for duty. The communique pointed out that failure to comply with the
instruction would lead to the termination of their employment.

47

Botha statement 2 July 2014, exhibit ZZZZ16 paragraph 10.

Botha statement 2 July 2014, exhibit ZZZZ16 paragraph 10.
49
Botha statement 2 July 2014, exhibit ZZZZ16 paragraph 11.
50
Exhibit BBB8, paragraph 4.
51
Exhibit FFFF1, paragraphs 22, 23 and 24.
52
Exhibit CCC4.
48

61

10)

By around 13h00, the crowd had arrived at the LPD office.53 Video footage of
the march shows that Mr Sinclair, flanked by members of Lonmin security
and SAPS, spoke to representatives of the workers who came forward. 54 Mr
Sinclair conveyed the contents of Mr Kgotles communique to the crowd. The
workers representatives then addressed the crowd. This was recorded by
Mr Callie Miles, a security manager in the employ of Lonmin.55 Thereafter
the crowd began to disperse from the LPD office and proceeded back to the
Wonderkop Stadium.

11)

Whilst dispersing, members of the crowd showed their displeasure,

displayed aggressive behaviour, and intimated that management would have
to take the consequences and would be responsible for what was to
happen.56 Mr Sinclair said that the levels of aggression and the number of
workers involved were unusual and very disturbing and not something he
had previously experienced.

He realised at this stage that people from

Karee and other mines were joining the crowd.57

12)

Mr Blou, in his statement said that as the crowd was dispersing, threats from
various people in the crowd were uttered and with suggestions that this was
not the end of the issue and something would happen further. He said that
he could not point to any specific individuals who uttered such threats, but
there were voices from the crowd with a level of verbal aggression which he

53

Exhibit FFFF1, paragraphs 26 and 27; Exhibit RRRR1.1 paragraph 20.

Exhibit BBB8, paragraph 4.
55
Exhibit AAAA27.
56
Exhibit FFFF1, paragraph 28; Exhibit RRRR1.1, paragraph 20.
57
Exhibit RRRR2.1 paragraph 32
54

62
had not previously experienced at the mine.58 He said that the words were
to the effect that management would have to deal with the consequences
and would be responsible for what was to happen.

13)

He testified that he was aware that there were two occasions when road
blocks were put up involving Lonmin Security and SAPS, the one at Rowland
Crossing and the one closer to LPD, and although management had issued
an instruction to security that the crowd should not get to the office, the
marchers in fact simply pushed their way past those road blocks.59 He said
that that did not ring any alarm bells with him in respect of the mood of the
marchers because in their assessment, this was consistent with previous
marches and previous gatherings. He said that the game changer was when
the crowd had been advised that their demands would not be entertained,
and that is when great dissatisfaction was shown by them.

14)

Mr Blou said that when the crowd had dispersed, he agreed with Mr
Sinclairs words that there was a fairly alarming sense of mood at that point
at LPD.60 He agreed that there was clearly a significant change of mood
which required an appropriate response from Lonmin.61

15)

Dewald Andre Louw, a Security Superintendent in the employ of Lonmin,

observed the crowd and testified that at the LPD it appeared to him that the
crowd were being controlled by between four to six individuals who would
give instructions that the crowd would obey.62

58

Exhibit RRRR 1.1 paragraph 20

Day 281, Blou, p. 36172
60
Day 281, Blou, p. 36174
61
Day 281, Blou, P.36155
62
Day 262, Louw, p. 33043
59

63

16)

Mr Mabuyakhulu testified that on 10 August 2012, the workers met at the

gate to Wonderkop stadium. A decision was made that they should go and
meet the employer. Before embarking on the march the workers elected 5 or
6 people to represent them.63 They then marched to LPD. On the way they
were stopped by two white people and some SAPS members. They
conveyed their demands to them. When these people did not come back
with a response, they proceeded further to the LPD offices.

17)

Mr Mabuyakhulu testified that the workers then marched to the Time

Management Office (also known as the LPD).64 At the LPD, the delegation
of five went forward and were met by representatives from Lonmin. After
some time the five returned and informed the workers that according to the
employer, NUM did not want them to talk to the workers.

18)

Mr Mabuyakhulu testified that the workers asked the representatives to find

out from the employer what they were supposed to do next. The report
conveyed to the workers was that the employer said that they should do
whatever they wanted.

19)

With regard to the reaction of the crowd to this message, Mr Mabuyakhulu in

his evidence said:65

we asked them to return back to the employer to go and ask

what should be done next.

They came back to us and

reported that the employer said we can do what we want,

63

Day 48, Mabuyakhulu, p. 5264

Exhibit LLL 26, paragraph 7; Exhibit BBB8, paragraph 4.
65
Day 48, Mabuyakhulu, p. 5265
64

64
then lets make the decision what to do. This is where the
problem started, Mr Chairman. We decided that lets go and
sit down and talk and allow the employer to come back to us
and this is where the trouble started.

20)

The workers then returned to Wonderkop stadium and dispersed from there.
Before dispersing, the workers agreed to meet again the following morning
at Wonderkop Stadium.66 Mr Mabuyakhulu, somewhat curiously, testified
that the decision was made that they would meet the following day and sit
there and wait until the employer changed his mind and spoke to them. 67 He
did not explain on what basis it was expected that the employer would
change his mind.

21)

At approximately 13h58 a Lonmin management debriefing was conducted by

Mr Sinclair.68 The note of the debriefing recorded that two SAPS members
were in attendance.69

22)

In response to the march, Lonmin issued a further internal communique. In

that communique Lonmin gave notice that it intended to bring disciplinary
proceedings against those involved in the march and thanked all employees
who heeded managements call and reported for duty.

66

Exhibit AAAA1.2, paragraph 5.

Day 48, Mabuyakhulu, p. 5266
68
Exhibit EEEE19.2.
69
Exhibit EEEE19.2
67

65
B

Whether the crowd was armed and the mood of the crowd

1)

Captain Veerasamy Velayudam Govender, the commander of Visible

Policing stationed at Marikana, testified that he monitored the march on 10
August from the Wonderkop stadium up to the return of the workers to the
stadium later on in the day.70 He testified that he was in close proximity to
the workers during the march but that the mood of the crowd was peaceful. 71
Some of the workers had sticks in their hands, but nothing dangerous that he
noted. He testified that he did not see any threat being posed by the workers
towards the police.72

2)

Mr Sinclair stated that the crowd showed displeasure and aggression when
they dispersed after the march.73 The march was recorded in videos taken
by Mr Botha,74 Mr Miles,75 and by W/O Masinya,76 a video operator attached
to the Rustenburg POP unit. Whilst these recordings confirm some of the
observations that were made by Captain Govender that the crowd dispersed
peacefully after the march, in other videos some of the persons in
conversation with Mr Sinclair can be observed to be reacting with some
degree of displeasure.77

70

Day 274, Govender, pp. 35022 - 35024. And see Exhibit LLLL 5.
Day 274, Govender, p. 35023
72
Day 274, Govender, p. 35023
73
Exhibit FFFF1 paragraph 28
74
Exhibit W1.
75
Exhibits W2, W3 and W5.
76
Exhibit W4.
77
Exhibit W1 and W2
71

66
3)

The versions of Mr Sinclair and Mr Blou do find support in the evidence of Mr

Mabuyakhulu with regard to the reaction of the crowd when the attitude of
Lonmin management was conveyed to the strikers.

The presence of SAPS

There are no complaints about the lack of co-operation by SAPS for this
event. The Lonmin Log Book records that at 07h00, two POP platoons and
one superintendent, Colonel Merafe, were in attendance, and that at 13h45,
the police arrived at Wonderkop. The evidence is that there were four Nyalas
and several soft skin vehicles in attendance. This is visible on the videos as
well.

The intimidation of employees and the shooting of rubber bullets by

Lonmin Security

1)

The Lonmin Log Book reports that information about incidents of intimidation
were received and noted as follows:

(a)

At approximately 16h30 on 10 August 2012 the first recorded report

in the Lonmin Log Book of intimidation by workers was received by
Lonmin, when it was reported that intimidation had occurred at the
Wonderkop NUM offices.78

78

Exhibit EEEE19.2.

67

(b)

At 17h15 it was reported by the EPL hostel manager Mr Makgema

that he had received the information that the workers at the EPL
hostels would be intimidated when they wanted to go to work.

(c)

At 17h25 Mr Botha reported that Lonmin security were in the process

of monitoring a meeting at Wonderkop near the SAPS satellite police
station.79

(d)

At 17h45 Mr Blou reported the receipt of information that a few

people at the mine were intimidated.80

(e)

At 17h50 Mr Kellerman reported that the meeting at the Wonderkop

Stadium was adjourned and that a further meeting was going to be
held at the Karee Hostel.81

(f)

At 18h10 it was reported that approximately 200 workers were

gathered at the Karee Hostel.82

(g)

At 18h25 the manager of the K3 Shaft reported the intimidation of

employees who were going to work.83

(h)

At 18h35 Mr Botha reported that he and Mr Kellerman had fired

about 10 rounds at the commuters who were aggressive and who
were busy intimidating people.84

79

Exhibit EEEE19.2.
Exhibit EEEE19.2
81
Exhibit EEEE19.2
82
Exhibit EEEE19.2
83
Exhibit EEEE19.2
84
Exhibit EEEE19.2
80

68

(i)

At 18h59 Mr Kellerman reported that commuters were intimidating

workers not to go to work, and were using pangas and knobkerries
to do so.85 He reported further that Mr Botha had fired 15 rounds of
rubber bullets at them.86

(j)

At 19h31 Camera 637 observed commuters who were offloading

workers from the bus at EPL Hostel.87

(k)

At 20h00 it was reported that two workers who were on their way to
work had been assaulted near the NUM offices at Wonderkop.88

(l)

At 21h19 a report was received that commuters were intimidating

workers at K3 Shaft.89

2)

Mr Malesela William Setelele,90 the chairperson of the NUM branch at WPL

(Western Platinum Limited), stated that during the course of the evening of
10 August, they received reports of widespread intimidation of workers who
wanted to report for duty. They were also informed that the bus service had
been stopped with the result that employees were unable to travel to work.
According to Mr Setelele they used the NUM vehicle, a Toyota Quantum, to
transport workers to work throughout the mine.91 This vehicle had been
provided to NUM by Lonmin.

85

Exhibit EEEE19.2
Exhibit EEEE19.2
87
Exhibit EEEE19.2
88
Exhibit EEEE19.2
89
Exhibit EEEE19.2
90
Malesela William Setelele was shot dead at Marikana on 17 October 2013.
91
Exhibit YY1, paragraph 14
86

69
2)

He said that he did not notice any signs of intimidation whilst transporting the
workers throughout that night, expect for an incident that occurred near the
Wonderkop Stadium. A group of persons gathered there shouted to them, in
a threatening manner, that they would be killed for transporting workers to
work while they were on strike.

3)

Gene Kellerman92 in his statement in the docket Marikana CAS 68/8/2011,

which pertains to 2 counts of attempted murder on 11 August 2013, says
that on the 10th, Lonmin received reports of intimidation and the preventing
of employees from going to work throughout the day. At 18h00, Mr Botha,
his colleague, received instructions from Lonmin Emergency Disaster
Management to attend upon Rowland Shaft. He accompanied him.

4)

He attended the scene and when about 100 meters away from the crowd, he
clearly saw them armed with pangas, spears and knob kieries. He observed
the crowd singing and dancing and he noted that during the evening a group
of about 20 to 30 persons would break away towards the hostel areas and
intimidate the employees who wanted to work, and prevented them from
going to work. They were also jeering, threatening and swearing at members
of security.

5)

He says that at about 18h45, when a group of workers came off duty, he
warned them to walk on the opposite side of the road to where the strikers
had positioned themselves. Six of them did not listen to his warning and
were charged at by 20 to 30 strikers shouting and wielding weapons,

92

Exhibit EEEE 29

70
whereupon they fled from the scene towards the Roland shaft. The group of
strikers ran towards the six employees. Both Botha and Kellerman shouted
at the group to stop chasing after the others, but they did not stop. Botha
thought that the group might catch up with the fleeing workers and decided
that he had no other option but to use rubber bullets to attempt to bring the
situation under control.

6)

Mr Kellerman says that he was armed with a shotgun which he had loaded
with low grade low density rubber bullets. He fired a warning shot into the
ground with no result. He says he had no option but to fire twice at the
crowd with rubber bullet reduced rounds. He says that he ensured that he
aimed low and towards the legs of the strikers, and also took care that there
were no other pedestrians in the area where the employees were being
chased.

7)

He says that at the time he shot, he had no other measure available to him
to bring the situation under control, to stop the armed strikers from chasing
the employees and to protect the employees either going to or returning from
work.

8)

He says the group then turned around and joined the bigger group of strikers
and the shooting of rubber bullets seemed to have the desired effect. There
were no injuries to any person on the scene.

9)

Mr Botha contacted Captain Govender at the Marikana Police Station, who

despatched a vehicle to the scene and attended with two other policemen.
Captain Govender and his crew drove towards the direction of the crowd,

71
and when they returned, Captain Govender said that he had noticed the
crowd were in possession of traditional weapons. Mr Kellerman says that he
noticed that the crowd ran off in the direction of Nkaneng village when the
Police vehicle drove towards them.

10)

Mr Botha contacted their security manager, Mr Miles, for back up. Captain
Govender left the scene just before the back-up arrived at 20h00.

11)

He says that until about 22h30, there were similar incidents of chasing and
threatening of workers and during which incidents, he shot 16 rubber bullets,
in an attempt to contain the strikers to protect those employees who came to
work.

12)

Mr Kellerman filed two shooting reports in respect of the shootings in which

he was involved on the evening of 10 August. The first report related to his
firing of five 37mm rubber (stopper) rounds.93 The second report related to
his firing of sixteen rubber bullets, two of them being warning shots. 94 In this
report he did not distinguish between the three separate shooting incidents,
and treated them as one. As regards the time of the incident, the description
of the incident, and the reason for the incident which led to the shots being
fired, Mr Kellermans two shooting reports were in identical terms to the
shooting report that was filed by Mr Botha.

13)

The same statement is made by Mr Botha in the docket, the only difference
being the number of shots fired by him.

According to Mr Botha, at

approximately 18h00 on 10 August 2012 and at the Rowland crossing he

93
94

Exhibit EEEE32A.
Exhibit EEEE32B.

72
observed a group of about 20 to 30 workers carrying knobkerries, spears
and pangas.95 He said that the group was threatening those workers who
were coming off their shifts and those workers who were going to work for
the evening shift.96 He was accompanied by Mr Kellerman.97 According to
Mr Botha, they approached this group of workers in their Nissan Livina motor
vehicle and fired rubber bullets at them, aiming for their legs, after which the
group quickly dispersed and fled to the surrounding areas.98

14)

Mr Botha filed a shooting report in respect of these shootings.

99

In this

report he did not distinguish between the three separate shooting incidents
but treated them as one. The time of the incident was recorded as being
18h35 to 20h10.100 In the shooting report, he stated that the persons shot at
had knob kieries, pangas and spears in their possession and intimidated the
workers in the area.

15)

The reason given by Mr Botha for the incident which led to the shots being
fired was that the RDOs were involved in an illegal march and intimidated
employees.101

16)

In the shooting report Mr Botha recorded that he had fired seventeen rubber
bullets, all of them warning shots.102

95

Botha statement 2 July 2014, paragraph 14.

Botha statement 2 July 2014, paragraph 14.
97
Botha statement 2 July 2014, paragraph 14.
98
Botha statement 2 July 2014, paragraph 14.
99
Exhibit EEEE32C.
100
Exhibit EEEE32C.
101
Exhibit EEEE32C.
102
Exhibit EEEE32C.
96

73
17)

In his testimony Mr Dirk Botes, a Security Risks Manager in the employ of

Lonmin, testified that the reports of shots being fired by Mr Botha and Mr
Kellerman at 18h35, 18h59 and 20h10 on 10 August 2012 related to three
separate incidents, and that he was present during the second and the third
such incidents.103 He was unable to explain why he only dealt with one
shooting incident in his statement104 and said that he forgot about the latter
incidents.105

18)

Mr Botes was on the scene at the Rowland Crossing at approximately 20h30

in the company of Mr Sinclair where they met Mr Miles, Mr Botha and Mr
Blou.106 Mr Botes was informed that two people from amongst a group of
marchers had been shot near the NUM office.107 According to Mr Botes, he
observed that there were scattered groups of individuals who were intent on
joining the strike; that there were groups of people who were intent on
intimidating workers who were ready to go on night shift; that these groups
were dancing and toyi-toying; and that he spoke to the SAPS commander
who was on the scene who told him that as the people were peaceful SAPS
would do nothing further.108

19)

Mr Botes, testified that the crowd of strikers danced and intimidated

employees on the walkway from the hostel complex to the shaft, and
prevented them from going to work. When members of Lonmin Security
warned them to disperse, they threw stones at them. This prompted the

103

Day 265, Botes, p. 33433 - 33434.

Exhibit GGG19
105
Day 265, Botes, p. 33440
106
Exhibit EEEE2 paragraph 13, read with Exhibit EEEE9, paragraphs 8.1 and 8.2.
107
Exhibit EEEE2 paragraph 8.9
108
Exhibit EEEE2 paragraphs 13 and 14.
104

74
Lonmin Security members, including Mr Botes, to fire at the groups of people
with rubber bullets.109

20)

Captain Govender says that at approximately 18h20 he had received a

report from Mr Blou that employees of Lonmin were being threatened and
intimidated by other employees as a result of industrial action, and that the
threat was concentrated at Rowland Shaft and at the K3 Shaft. 110 He
immediately proceeded to the Rowland Shaft at Wonderkop, accompanied
by other SAPS members.111

21)

Upon his arrival at Wonderkop he noticed a group of approximately 15 males

standing on the side of the road opposite Rowland Shaft. He said that he
could not confirm if this group was the same group of persons who were
intimidating employees. As he approached them, they moved off in the
direction of the hostels.

22)

He said that whilst he sat in his vehicle monitoring the group he was
approached by Mr Graeme Sinclair and Mr Dirk Botes, who told him that
SAPS should disperse the group of males standing on the opposite side. Mr
Botes was excited and quite vocal.112 He told Mr Botes that those people
were just standing there and not presenting a problem to anybody. 113
Captain Govender testified that as far as he could see the strikers were not

109

Day 266, Botes, p. 33595

Exhibit FFFF7 paragraph 2.
111
Exhibit FFFF7 paragraph 2
112
Day 274, Govender, p. 35031
113
Day 274, Govender, pp. 35027 - 35028
110

75
in possession of sharp instruments but merely had knobkerries.114 He
testified that he did not see them as threatening.115

23)

Captain Govender testified that one of his colleagues, Constable Njomo

went to enquire from the group what they were doing there. They said that
they were waiting for a taxi, but they subsequently dispersed before any taxi
came along.

24)

He also testified that he did not witness any shooting by Lonmin security with
rubber bullets.116 Mr Kellermans shooting incident report mentions that the
shooting of the rubber bullets occurred in the presence of SAPS. This cannot
be reconciled with the version of Captain Govender.

25)

Captain Govenders evidence is in contrast to what is said by Sinclair, Botes

and Kellerman. It occurs to the Commission, that it might be for the following
reasons:

(a)

the strikers moved off while the police were present, and Captain
Govender and his crew were unable to notice exactly what the
strikers had in their possession,

(b)

the strikers desisted from any provocative behaviour while SAPS

were present,

(c)

the group of persons that Captain Govender observed were not the
same group that were intimidating employees.

114

Day 274, Govender, p. 35027

Day 274, Govender, p. 35033
116
Day 274, Govender, Page 35035
115

76

Whether the shooting by Lonmin security was justified:

26)

The question that arises is whether the three incidents of shooting by Lonmin
security on the evening of the10th were justified. It has been submitted that
the bland references to strikers intimidating workers are insufficient grounds
to justify shooting at people and that Lonmin was unable to provide sufficient
clarity or detail on exactly what intimidation was taking place and, more
importantly, why it was necessary to resort to shooting at people gathered
there. The Commission disagrees.

27)

Whilst neither Kellerman nor Botha testified, there is nothing to gainsay the
versions in their statements that the employees were being chased and
intimidated by armed strikers. There was no statement of any striker or any
cross examination that placed another version of the behaviour of the crowd
before the Commission. Mr Botes testified that the shooting occurred when
people were intimidating workers who walked from the hostel complex to
Rowland crossing and when the crowd threw stones at the security
personnel.117 This evidence of Mr Botes was not challenged in cross
examination.

28)

Given the climate of intimidation of striking workers that prevailed at the time,
it is very probable that Lonmin Security shot rubber rounds in an attempt to
protect working employees being intimidated.

117

Day 265, Botes, p. 33435

77

29)

The Attempted murder of Mr Mutengwane and Mr Dlomo

A docket was opened at Marikana under CAS 69/08/2012, in respect of

these two shootings, the charges being two counts of attempted murder. 118

30)

In his statement, Mr Thando Elias Mutengwane, a Lonmin employee, stated

that he was walking towards Nkaneng past the Wonderkop Stadium on 10
August 2012 at approximately 18h15 when someone in one of Lonmin
Securitys Twin cabs opened fire at him.119 He saw white men in or on the
bakkie, and realised that he had been shot in the left thigh.120 His medical
report filed in the docket121, describes a gunshot wound, with the bullet
visible on the X ray. Another man who was walking with him was also
shot.122

31)

Another Lonmin employee, Mr Bulelani Kluvert Dlomo, stated that at about

19h40 he was walking away from the Rowland crossing after being dropped
off by a taxi when he heard four or five shots that came from a group of
Lonmin security officers.123 He fell to the ground having been shot in the
head and next found himself in hospital.124

32)

It is not clear to the Commission from the contents of the docket whether the
injuries caused to Mr Mutengwane and Mr Dlomo were caused by rubber

118

Exhibit XX5.
Exhibit XXX2.18
120
Exhibit XXX2.18
121
Exhibit EEEE28
122
Exhibit XXX2.18
123
Exhibit XXX2.19
124
Exhibit XXX2.19
119

78
bullets or sharp ammunition. In the Commissions view, these shootings
merit further investigation by SAPS.

SAPS contingency plan of 10th August 2012

33)

In relation to the SAPS Contingency Plan of 10 August 2012, the following

appears from the evidence:-

(a)

On 10 August 2012 the SAPS purported to have a contingency

plan in place to deal with the unrest situation at Marikana. The
contingency plan was signed by Lieutenant Colonel Joseph
Omphile Merafe, the Unit Commander of Rustenburg POP,
and by Brigadier Mokhele Samuel Seboloki, the then Acting
Cluster Commander for Rustenburg.

(b)

Major General Naidoo testified that the contingency plan made

provision for SAPS to deploy resources to conduct policing
generally because as at that date SAPS could not specifically
say what was going to happen. He testified further that the
deployment of POP units from other provinces and the NIU
was to enhance the contingency plan. Major General Naidoo
testified that the contingency plan was activated from 10
August 2012 and was continuously built on and upgraded
thereafter.

79
(c)

Lieutenant Colonel Merafe testified that the contingency plan

was prepared on his behalf by Warrant Officer Motlame on 10
August 2012 after the march that had occurred that day. It was
conceptualised as an intervention plan (in the sense that it was
drafted so that SAPS were ready in the event that intervention
was required).

(d)

Captain Govender was the commander of Visible Policing

(VISPOL) at the Marikana police station on 10 August. He was
mentioned in paragraph 10.2 of the contingency plan under
the heading Command and Control, where it was recorded
that he was the VISPOL commander. The operation that was
envisaged in the contingency plan fell within his usual area of
operations.

It would therefore have been expected that he

would have intimate knowledge of the contents of the plan.

However, Captain Govender testified that not only was he
never given a copy of the document, he did not even know
about the existence of the document.

(e)

While the contingency plan directed that a JOC would be

activated at 07h00 on 10 August 2012 and would remain open
for the duration of the strike, Captain Govender testified that
he had no knowledge of any such JOC being established. He
also said that whereas the Contingency Plan provided that one
officer and six members from the Marikana police station
would be responsible for patrolling and visible policing in the

80
area, the patrolling and monitoring that was conducted by his
unit in the area on 10 and 11 August 2012 was conducted as
part of their normal policing duties and not in accordance with
the Contingency Plan.

(f)

A JOC was established by SAPS on 12 August 2012 at 18h00

at Lonmin.125 By that time ten people had been injured and
four people had been killed.

(g)

In cross examination Major General Naidoo was invited to

comment on the assertion that if the SAPS had executed the
Contingency Plan the incidents that led to the injuries and
deaths that occurred up to the time that the JOC was
established might have been picked up early by the SAPS,
and the injuries and deaths might possibly have been
prevented. Major General Naidoo responded that he had no
comment.

(h)

The SAPS intelligence report for 11 August 2012 recorded the

following in respect of the events that had occurred on 10
August 2012:

It was reported on 2012-08-11 that two people were

injured during the previous night and that it was
linked to the activities of AMCU members. They had
an unlawful gathering on 2012-08-10 at the Karee
125

Exhibit FFF25

81
Hostel Sports ground in support of their wage
demands. The gathering was not approved and was
monitored

by

the

SAPS

and

Mine

Security

personnel. It was also reported that a group of 2000

AMCU members were gathered at the Karee mine
hospital and later moved to the nearby Nkaneng
informal settlement and from there to the Koppie.
The information was reported to OIAC Provincial and
National Offices. Brig Engelbrecht also discussed
this with the DPC, operational services [Maj Gen
Mpembe] during the same day and the seriousness
was explained, as well as the need for police
visibility.

(i)

That report again attributes the shooting of Mr Mutengwane

and Mr Dlomo to inter union rivalry between AMCU and NUM,
despite the fact that both men state categorically in their
statements that they had been shot by Lonmin security. The
intelligence report also hints at a lack of increased visible
policing in light of the intelligence reports that had been
received.

82
H

1)

Lonmins Counter Industrial Action Response Procedure

An issue which can at this stage be dealt with under the events of 10
August 2012 (although it has also relevance to the events on 11 and
12 August 2012) is the applicability of Counter Industrial Action
Response Procedure.

34)

According to the cover page of this document it appears that it was

last revised in May 2012. It was approved by Lonmins Manager of
Mining Security.

35)

The document has a footer on each page which states that a signed
copy of the document is held at E & DM Mining Security (Middelkraal).

36)

Mr Sinclair testified that the security procedures document was

formally adopted by Lonmin.

He testified that their operational

procedures are based on that document which guided the response of

Lonmin security in an emergency situation. While he testified that
exhibit XXX8 is a guideline for Lonmin security of what should be
done, Mr Sinclair accepted under cross -examination that exhibit XXX8
constitutes rules prescribed by Lonmin for how unprotected industrial
action should be dealt with.

37)

Mr Mokwena, on the other hand, testified that this document was

never a fully authorised company policy as it had not been authorised
or signed by three operation executives, including himself, and

83
presented to EXCO.126

This evidence is surprising in view of the

evidence of Mr Sinclair that the document was binding on Lonmin

security. In any event Mr Blou testified that there are many policies
and procedures within Lonmin that are not physically signed off, but
this did not mean that they were not implemented. Mr Blou testified
that exhibit XXX8 reflected good practice and governed Lonmins
security operations.

38)

In these circumstances it would appear that the document was at least

perceived as binding on Lonmin security.

39)

Some of the crucial issues dealt with in exhibit XXX8 include the
following:

(a)

In terms of clause 4.1.3, the procedure will serve as a

guideline for managing industrial action. Each individual
incident will require the Manager of Mining Security (or his
delegate) applying his discretion as to the most effective way
to manage the situation. Mr Blou testified that in practice this
duty rested on him.127 He testified further that this required
that information be fed through to him effectively so that he
could properly exercise his discretion as to how to manage a
situation.

126
127

Day 290 Mokwena p. 37884

Day 281, Blou, p. 36129

84
(b)

It is necessary to obtain sufficient forewarning through

intelligence

gathering and maintaining effect channels of

communication (clause 4.3);

(c)

The manager of mining security (or person appointed by him)

has to ensure effective and detailed planning, briefing and
debriefing (clause 4.4.1). Mr Blou testified that in practice this
duty rested on him.

(d)

Clause 4.4.3 requires that detailed records be kept. It requires

specifically that detailed minutes be kept of briefing meetings
and that these should incorporate details of plans. Mr Blou
testified that Lonmin security were well aware of the
requirement that detailed minutes be kept. He, however,
accepted that the log book did not reflect accurate or detailed
minutes. He accepted that this was a discrepancy and
explained that either the minutes were not captured properly or
they were not captured at all because of the fast pace at which
events unfolded. In relation to plans, Mr Blou testified that
these were usually done on notice boards and whiteboards in
the Lonmin JOC. He, however, accepted that they ought to
have been recorded in proper minutes.

(e)

In terms of clause 4.5, during the planning, important

shortfalls, risks and events must be identified and recorded. Mr
Blou accepted in his evidence that shortfalls included shortfalls
in the gathering of information, the processing of information,

85
decisions about deployments, equipment to be used in
deployments, the number of deployments, and the place of
deployment.

In relation to the requirement to conduct

thorough risk assessment, Mr Blou accepted that when in

planning the management of potential risks, it is important to
consider all realistically possible scenarios.

40)

(f)

Clause 5 regulates the establishment of the JOC.

(g)

Clause 6 deals with administration and record-keeping;

(h)

Clause 7 deals with operational requirements:

(i)

Clause 7.1.3 entrenches the doctrine of minimal force.

Notwithstanding the detailed provisions of Exhibit XXX8, there has

been little or no evidence from Lonmin of any detailed planning,
briefing or debriefing in relation to the incidents of 10, 11 or 12 August
2012.

86
CHAPTER 6

The events that occurred on Saturday, 11 August 2012

The following incidents on the 11th call for consideration and evaluation:

A.

the March to the NUM Office and the Confrontation at the NUM Offices

B.

the shooting of Mr Mabuyakhulu and Mr Ngema

C.

the intention of the crowd

D.

whether the crowd was armed with sharp weapons

E.

the shooting by the NUM members

F.

who was responsible for the shooting of Mr Mabuyakhulu and Bongani

Ngema and the subsequent attack on Mr Mabuyakhulu

G.

whether SAPS were in attendance

H.

Rituals

I.

ICAM

J.

Lonmin Briefing

87
A

1)

The march to the NUM office and the confrontation at the NUM office

On 11 August 2012 at 02h19, Riaan Beukes, a Senior Security Officer in the

employ of Lonmin, reported that NUM members had informed him that they
would go through the village and ask the workers to go to work, and that they
wanted him to do the same inside the hostel. 128 Mr Setelele said that in the
early hours of 11 August 2012 he had used a loudhailer whilst driving around
to inform people that the strike was not endorsed by the NUM and that they
should report for duty. He also arranged for other NUM members and shop
stewards to do the same on foot in the hostel complex.129

2)

At 08h00 a Lonmin management debriefing was conducted by Mr Sinclair.

The note of the meeting recorded reports of intimidation at the Roland Shaft,
Nkaneng, Marikana and Wonderkop. Jomo Kwadi expressed a fear that
NUM members using loudhailers encouraging their members to go to work
and trying to assist them with transport and protecting them would lead to
NUM taking the law into its own hands and that faction fights between the
rival unions might result.130

3)

Mr Mabuyakhulu was amongst the group of protesters who were at the

Wonderkop Stadium on the morning of 11 August 2012. He says in his
evidence-in-chief131 that they met at 09h00 to see what they were going to
do that day. There were various discussions, and information was conveyed
to them that some people had been shot by members of NUM who were

128

Exhibit EEEE19.2 [also Exhibit XXX4].

Exhibit YY1, paragraph 16.
130
Exhibit EEEE19.2.
131
Day 48, Mabuyakhulu, p. 5266
129

88
driving around in a Quantum which is owned by the mine. They also
received a report that certain persons had guns pointed at them and were
told to go to work under force. He says the decision that was taken was that
they should go to NUM to enquire from them as to why they do not want the
employer to talk to them.

4)

Under cross examination, he could not say why it would not have been
appropriate for only a small number of representatives to go to the NUM
office to talk about the issue, rather than all 3000 of them marching to the
office. It was also put to him in cross examination that he said in his
statement that he wanted to go to the NUM office to find out why they had
been shooting at the AMCU members the previous day

5)

The group of protestors marched from the direction of Wonderkop stadium

moving to the east through the Karee hostel and towards the NUM office that
was situated just outside and to the north-east of the eastern gate to the
hostel area. These events were observed by Mr Akanyang Julius Motlogelwa
and Mr Sello Elias Dibakoane, security officers in the employ of Lonmin.

6)

Mr Dibakoane said in his statement132, that the meeting on the morning of

Saturday 11 August 2012 took place at about 09h00 and at about 09h30 the
crowd started singing and chanting and appeared to be preparing to move to
the NUM offices. At approximately 09h40 he and Julius Motlogeloa received
information from an informant that the crowd intended to march to the NUM
offices to burn down the offices because NUM was assisting its members to

132

Exhibit ZZ3, paragraphs 2.7 to 2.10

89
attend work the previous day. He decided to drive to the NUM offices to
warn the members present there of the position.

7)

He said some members of the marching crowd were carrying traditional

weapons which included sticks and spears. He did not observe any pangas
or firearms.

8)

Mr Motlogelwa stated that a certain David informed him that protesters have
decided to destroy and burn the NUM offices at the Hostel. At about 11:00
they started singing and marched towards the Hostel. He saw that they
carried sticks and spears. He drove to the Hostel and informed Mr. Brown
(Mr Setelele), the chairperson of NUM at Rowland shaft, that protesters are
coming to destroy and burn their offices. He advised him to vacate their
offices to save their lives. Mr Brown and his team said that they were not
going to leave.

9)

Mr Setelele said that he was at the NUM office that morning when two
Lonmin security officers, Elias Dibakoane133 and Julius Motlogelwa,134
arrived there and told him that a group of protesters had started marching
from Wonderkop Stadium headed in the direction of the NUM office, and that
they were carrying an assortment of weapons that included knobkerries and
spears,135 and that according to their information the protesters intended to
burn down the NUM office and the vehicle that NUM had been using to

133

Exhibit ZZ3
Exhibit ZZ4 [also Exhibits XX2.20, AAAA38 and DDDD10].
135
Exhibit YY1, paragraph 17.
134

90
transport employees to work.136 Mr Setelele left the NUM office immediately
to take the vehicle that NUM had been using to a place of safety.137

10)

Mr Setelele acknowledged that at this time there were a number of weapons

such as knobkerries, sticks and spears at the NUM office, which was not
ordinarily the case. He stated that some of these weapons been confiscated
from protesters during the course of previous night, whilst others had been
brought there by NUM members who had fetched them from home in
response to the threats and intimidation of the protesters that they had
experienced during the previous night whilst assisting employees to get to
work. He stated that he later heard that Daluvuyo Bongo had distributed
these weapons amongst the NUM members who had decided to defend the
NUM office against the approaching protesters.138

11)

Mr Saziso Albert Gegeleza said in his statement139 that they all moved out of
the office and onto the road because they feared that they might be trapped
in the building or its yard, which was fenced. He said that although many
people spoke in favour of remaining and trying to protect the office, it was
clear that most of them, if not all, were very afraid of the strikers given the
information they had received. Several of those present did in fact leave. By
the time that the strikers arrived, there were less than 20 people who had
remained at the office. He was one of those who resolved to stay, despite his
fear.

136

Exhibit YY1,
Exhibit YY1, paragraph 18.
138
Exhibit YY1
139
Exhibit ZZ2, paragraph 14, paragraphs 15 to 24.
137

91
12)

He said that whilst standing outside the office fence, two security personnel
drove up in a white van and advised Mr Bongo they should all leave the
scene because the strikers were on their way to attack and burn the office. In
response to a question from Mr Bongo, they made it clear that they were not
in a position to provide any protection. The two security personnel were
visibly worried about the situation. Immediately after they had spoken to Mr
Bongo, they left in the direction of the Wonderkop Township. He said that
the fact that Lonmin security had said that they were unable to assist them
added to the level of the fear amongst those who were still at the office.

13)

They could hear that the strikers were approaching and he then led a small
number of persons to the sidewalk alongside the Brits taxi rank road, from
where he saw that a very large group of strikers was coming around the
corner of the road from the hostel and stadium and moving in their direction.
He observed that they were singing and chanting in an aggressive manner
and were armed with knobkerries and sticks and several of them had
assegais.

14)

He observed that many of the strikers were turning down the road which led
to the entrance to the NUM office. The others continued to move down the
road towards where he was. When they were more or less in line with the
satellite police station the strikers in front stopped.

15)

The strikers started shouting at them, including threatening words like here
are these dogs and were very hostile. There was at no stage any indication
that they had come there in order to speak to the NUM people. Nothing at all

92
was said to the effect that they wanted NUM to take their demand to Lonmin
management.

16)

Some of the crowd threw stones at them and then the crowd started moving
forward again. These events, he said were happening very fast and he had
no doubt that they were going to attack them and was extremely afraid. They
were nevertheless determined that they would not run away but that they
would defend themselves and the NUM office.

17)

He heard at least 3 gunshots, but because of the noise, could not tell exactly
from where the shots had been fired. He was very startled by that and said
that it seemed that the strikers were also startled. Almost immediately the
strikers in front of the group began retreating. Those behind did the same
and very quickly the strikers were dispersing. He saw that the same was
happening with those strikers who had gone down the road towards the
NUM office entrance.

18)

The majority of the strikers turned back up the road through the hostel
complex and others pushed through a broken portion in the concrete fence
(known as a stop-nonsense) on the side of the road opposite the satellite
police station. As they went through this gap, some of the strikers dropped
the weapons they were carrying.

19)

He believed that the gunshots saved him and others from serious injury and,
even, from being killed.

93
20)

The NUM members chased after them to ensure that the strikers kept on the
move and continued to disperse. The concern was that they should not have
the opportunity to regroup and launch another attack on the NUM office.

21)

Mr Dibakoane and Mr Motlogelwa were positioned near the scene where this
incident occurred. Mr Dibakoane, in his statement,140 described that the
NUM crowd were standing outside the NUM office and facing in the direction
of the oncoming strikers. He did not observe any weapons on the NUM
members, although some NUM members, were wearing blankets which
could have concealed weapons.

22)

Mr Motlogelwa, who had stopped the Lonmin security vehicle some 70

metres behind the gathered NUM members and in a position facing the
approaching crowd, observed that as the crowd approached the MTN
container located on the corner of the cross road in front of the NUM office,
approximately 30 NUM members started to run towards the crowd. The two
crowds clashed in the vicinity of the MTN container. He said there was chaos
and that everybody scattered and started running in all directions.

23)

He heard two loud sounds which he took to be gunfire and watched as the
crowd ran off in the opposite direction towards Wonderkop. As the crowd
retreated, Mr Motlogelwa slowly drove his security vehicle towards the
direction of the Wonderkop stadium trailing behind the retreating striking
employees.

140

Exhibit ZZ3, paragraphs 2.10 to 2.23.

94
B

The shooting of Mr Mabuyakhulu and Mr Ngema and the subsequent

attack on Mr Mabuyakhulu.

24)

Two members of the crowd of protesters, Mr Bongani Ngema and Mr

Mabuyakhulu, were shot in the process. Both were later taken to the Andrew
Saffey Hospital by Lonmin security personnel. An attempted murder docket
was opened at Marikana under CAS 67/08/2012141 in respect of Mr Ngema
and an attempted murder docket was opened under Marikana CAS
68/08/2012142 in respect of Mr Mabuyakhulu.

25)

Mr Mabuyakhulu, said in his statement143 that whilst they were marching on

the same street as the taxi rank but before they could reach the junction
behind the satellite police station, they observed that a small group of NUM
members were approaching. The group was singing something about
AMCU and Karee and thereafter he heard gun shots. He did not see who
was shooting but it was from the side of the group of NUM members in NUM
shirts.

26)

They then ran away into different directions. He saw one person fall,
apparently from a gunshot. He then decided to go through the gap in the
concrete fence known as stop nonsense and started to run and realised
that he had been shot in the back. He continued running towards the bus
rank. He then fell after losing power and feeling weaker.

141

Exhibit XX5
Exhibit XX6
143
Exhibit BBB8, paragraphs 8 and 9.
142

95
27)

Mr Mabuyakhulu in his evidence144 said that while he was running away, he

became aware that he had been shot and he collapsed and fell down. He
was set upon, he said, by members of the NUM who asked him where he
worked. He lied and said he was working at Rowland Shaft. They said that
he was lying and that he was working at Karee and was an AMCU person.
One of the persons said lets finished him off and used the handle of a
spear and struck him with it until it broke. He gave a description of the
person who struck him as wearing a NUM tee-shirt and white overalls and
said that he was carrying a butchers knife. He also says that he felt a blow
at the back of his head whereupon he lost consciousness.

28)

He said that he is able to identify his assailants from video footage. The
video footage referred to appears on the SAPS hard drive.145

29)

At page 5276, he deals with the medical reports relating to his injuries. 146 At
page 5281, he says that a bullet was removed from his body and it was
handed over to the police.

30)

The videos were not played during the Commission hearings for the witness
to identify the persons. This is something that the Commission recommends
to be investigated and that the DPP apply his mind to seeing whether those
persons who assaulted Mr Mabuyakhulu can be identified for the purposes
of prosecution. Whilst there might not be any evidence about who shot him,
the subsequent assault on Mr Mabuyakhulu while he lay injured on the
ground, should be thoroughly investigated.

144

Day 48, Mabuyakhulu, p. 5269 et seq

Day 48, Mabuyakhulu, p. 5285
146
Exhibits XX 5 and XX 6
145

96
C

1)

The intention of the marching crowd

Mr Mabuyakhulu said that he was not aware of any intention to burn down
the NUM office.147 Under cross examination, he disavowed any intention
whatsoever of any violence or threatening behaviour. He said that the
reports of persons being shot from the Quantum and forcing employees to
go to work did result in a reaction from the meeting, with people saying that it
was just not right.148

2)

He said that the report of persons being injured by the shooting did not
produce any reaction from the crowd.149 He hesitated to admit, under cross
examination by counsel for NUM, that his statement to the investigating
officer included his saying that they marched to the NUM offices to ask about
the shooting. The furthest he went was to say that he might have said so.150
He did agree though that at the meeting it was conveyed to them that
members of AMCU had been shot by members of NUM, but denied that they
had marched to the offices of NUM to find out why AMCU members had
been shot.151

3)

Under cross examination by counsel for SAPS, Mr Mabuyakhulu could not

explain why a representative group did not attend upon the NUM office to

147

Day 48, Mabuyakhulu, p 5265

Day 49, Mabuyakhulu, p. 5350
149
Day 49, Mabuyakhulu, p. 5353
150
Day 49, Mabuyakhulu, p. 5346
151
Day 48 ,Mabuyakhulu, p. 5319
148

97
discuss their concerns. He agreed that it would be easier for five persons to
make the enquiries, rather than a crowd of 3000. 152

4)

AMCU in their Heads of Argument at paragraph 26, submit that the strikers
did not have violent intentions, and that there was but a rumour about the
intention to burn down the NUM office. This point was also made by counsel
for Injured and Arrested Persons.

5)

The Lonmin Logbook records a report at 08h39 of a threat to burn down the
NUM office, and at 08h47, Mike Gerrtsen from Rowland reported that people
were planning to burn the cars at the shaft. If these were indeed just
rumours, they certainly seem to have been widespread.

6)

There had already earlier that morning been incidents recorded of

intimidation of employees. At 08h39 Rowland Shaft control room reported
that people were running away from the parking area because they are
afraid of people passing from the shaft. Perhaps the prevailing climate of
distrust and intimidation gave more credence to these rumours.

7)

The evidence leaders submit correctly, in the Commissions view, in

paragraph 234 of their Heads of Argument, that despite Mr Mabuyakhulus
assertion to the contrary, it is probable that the protesters who descended on
the NUM office did so with violent intent. This intent, they submit, was most
probably fostered by the fact that NUM had actively assisted workers to go to
work during the night, which constituted actions aimed at breaking the strike
that the protesters were trying to enforce. This position was further inflamed

152

Day 48, Mabuyakhulu, p. 5309

98
by reports of shootings and injuries to members of AMCU which allegedly
took place the previous evening.

Whether the crowd was armed with sharp weapons

1)

Both the security officers saw sticks and spears in the possession of the
crowd. Both Mr Setelele and Mr Gegeleza say that the crowd was armed
with knobkieries, spears and assegais. There is nothing to gainsay this
evidence.

2)

Mr Mohammed Cassim, the owner of a hardware store at Marikana, said in

his statement, that on 11 August 2012 at approximately 09h00 when he
opened the doors of his store, he had a rush of persons buying pangas153
and that his usual stock of pangas of about thirty items was quickly sold
out.154 He said that he was very suspicious because usually they would want
the items to be wrapped in newspaper, but on that day they just put them in
their trousers.155

3)

There was some debate about whether the buying of the pangas occurred
before the shooting incident.

4)

There are differing versions given as to the time of these events. Mr

Mabuyakhulu said that they gathered at 09h00.156 Mr Dibakoane157 said at
that the meeting commenced at the Wonderkop Stadium at approximately

153

Exhibit HHH7.2, paragraph 3.

Exhibit HHH7.2, paragraph 4.
155
Exhibit HHH7.2, paragraph 5.
156
Day 48, Mabuyakhulu, p. 5266 - 5267, Exhibit BBB 8
157
Exhibit ZZ3
154

99
09h00, and at about 09h30 the crowd started singing and chanting and
preparing to move to the NUM offices. Mr Julius Motlogeloa said in his
statement that at about 11h00 the protesters started singing and marched
towards the hostel.

5)

The Lonmin logbook reflects a report by Mr Frans Mabelane of a shooting at

09h00, and again at 09h03 of a person being shot next to the Schagen
offices. At 09h36, it is recorded that medics are transporting a person with a
gunshot wound to his lower back to hospital.

6)

The vehicle tracking history of the Toyota Hilux used by Lonmin Security
shows the vehicle present at the area of the NUM offices between 08h22
and 08h44, and again there between 10h10 and 10h11.

7)

The evidence leaders submitted158 that the confrontation between the unions
took place between 08h35 and 08h42 because 08h35 is the time when the
vehicle is recorded as driving to a position where it was facing the strikers
from behind the NUM office. This is most likely, against the background of
the times recorded in the Lonmin Log Book.

8)

This being so, the buying of the pangas from Mr Cassim could not have
taken place before the march to the NUM offices. Mr Cassim could also not
have been the only source of sharp weapons, as number of sharp weapons
in the possession of the strikers in the following days, exceeded thirty by far.

158

Day 298, Argument, p. 39321

100

The shooting by NUM members

1)

It was not disputed that the NUM members opened fire on the crowd of
protesters.159 . Counsel for NUM, at the inspection in loco, recorded on
video160 admitted that it is NUM that fired the shots. Apart from this
statement made by their counsel, the Commission has not heard any
evidence as to the circumstances surrounding the shooting.

2)

Mr Gegeleza said that he had no idea that anyone was in possession of a

firearm.161 It was put by Mr Madlanga, under cross examination162 that the
witness must have known about the firearms being carried by certain NUM
members otherwise the probability of about 20 people confronting a crowd of
about 2 000 did not make sense. The witness was adamant that he did not
know about it.

3)

NUM submit that their firing of shots was in defence of the office and
themselves, and that the shooting in fact saved the lives of some 20 to 30 of
them from the crowd of approximately 3 000 persons converging on them.
They maintain that it was the strikers who threw stones at them first.

4)

The question that requires to be answered is whether in initiating the clash

by running towards the crowd and the subsequent firing of shots the NUM
members can be construed as acting in self- or private defence.

159

Exhibit YY1, paragraph 21.

Exhibit YY3
161
Day 40, Gegeleza, p. 4335
162
Day 39, Gegeleza, p. 4272
160

101

5)

AMCU in its Heads of Argument at paragraph 24.4 submitted that the

shooting by NUM officials on the 11th August 2012 was unlawful. Its
submission in paragraph 26.9 was that in deciding to remain at the office
against the advice of the security officers and in arming themselves, that
they readied themselves for a fight.

6)

The act of arming themselves with an assortment of weapons to protect their

office and persons cannot in itself attract criticism, especially in the light of
the information conveyed to them by the security officers and the short time
period within which these events occurred. It is convenient to deal with their
actions in two parts, before and after the shooting. Before the shooting, all
they appear to have done is to run towards the approaching crowd. The
Commission has not heard any evidence that they perpetrated any assaults
upon any person in the crowd of strikers. The shooting of the crowd and the
subsequent assaults are in the Commissions view matters that require
further investigation. Certainly the assault upon Mr Mabuyakhulu while he lay
on the ground does not appear to be justified.

7)

It is difficult to determine whether the actions of the shooters were justified

on any basis without having any evidence as to the circumstances in which
the shooter(s) decided to fire. NUM has not permitted the Commission to be
privy to this information. In the Commissions view, these shootings are
matters which require to be further investigated.

102
F

Who was responsible for the shooting of Mr Mabuyakhulu and Mr

Ngema and the subsequent attack on Mr Mabuyakhulu?

1)

Under cross examination by cousel for SAPS, Mr Mabuyakhulu said that he

was not a danger to anyone at the time he was shot whilst running away and
at the time he was bludgeoned about his head while lying injured on the
ground.163

2)

The docket placed before the Commission names a suspect, but not much
seems to have been done to take the investigation further. Mr Mabuyakhulu
testified that he is able to identify two of his attackers, and has done so
already from a video shown to him.

3)

Whatever the position at the time of shooting, the attack on the injured Mr
Mabuyakhulu by two armed persons requires urgent investigation and
prosecution.

1)

Whether SAPS were in attendance

The Lonmin Logbook records that at 08h45, PW (Mr Botha) reported for the
second time to Marikana SAPS and Constable Ramafoko also informed
SAPS. At 09h02, PW reported to Colonel Merafe and Captain Sefike and
asked for assistance.

163

Day 48, Mabuyakhulu, p. 5305

103
2)

At 09h03, when 8 rubber rounds were fired to disperse a mob opposite the
NUM offices, two SAPS Constables were available to assist. At 09h43, Mr
Henry Blou was to contact SAPS Provincial Commissioner Mbombo or Major
General Naidoo to report that no support had been received from SAPS and
two shootings had already been reported.

3)

It has not been disputed by SAPS that they were not in attendance at the
scene.

1)

Rituals

Mr Sipete Phatsha who, according to him, joined the strike on 10 August

2012 and received a gunshot injury on the afternoon of 16 August 2012, 164
testified that what was depicted in Exhibit L87 was men washing themselves
and that he did not see any muti being used and in any event does not take
muti as he is a person who prays.165

2)

He was, however, contradicted by Mr Xolani Nzuza who admitted that he

was the second-in-charge of the strikers and who testified after Mr X had in
his evidence disclosed the nature and extent of the rituals that had been
conducted.166 Mr Nzuza testified that he was on this day asked by Mr Noki,
who was the leader, to assist with bringing the inyanga.167 He formed part of

164

Exhibit DDD1
Day 51, Phatsha, p. 5570 - page 5572
166
Exhibit PPPP1, paragraph 2
167
Exhibit PPPP1, paragraph 3
165

104
a four man delegation which was tasked with going to fetch the inyanga.168
He stated that the reason why he had not mentioned this fact in his first
statement was because

it is, in my view, completely irrelevant to the issues being

investigated by the Commission.169 The various religious
and/or cultural beliefs of such a heterogeneous group as the
3000 or more strikers played no role whatsoever in relation to
the massacre or its causes.170
Mr Nzuza stated further that:
[a]ny suggestion that the practice of traditional rituals had a
sinister motive is pure nonsense, racial stereotyping and an
insult to our belief system. It is a sign of the police clutching
at straws to justify the mass murder of innocent workers after
the fact. In all our interactions with the police, they never
raised any objections to the performance of traditional
rituals.171

3)

An undercover security superintendent employed by Lonmin Security who

infiltrated the meeting of strikers at the Koppie stated in his statement172 as
follows:

We (large part of the security team) were standing opposite

Wonderkop Stadium when I told Callie Miles that I am going
to join the gathering so that I can get an understanding of
what was happening and what they were planning to do. I
crossed the road in a westerly direction in order to join the
protestors where they were standing. When I got there I heard
them saying that they were looking for a Sangoma. They were
also discussing methods in which to pay the Sangoma. I didnt
hear the beginning of the conversation, but overheard that
they had to send someone to him in order to determine the
rate required. At this point they dispatched approximately
three persons to make the enquiry. I was able to determine
168

Exhibit PPPP1, paragraph 3

Exhibit HHH21
170
Exhibit PPPP1, paragraph 4
171
Exhibit PPPP1, paragraph 4
172
Exhibit ZZZZ15, file 1, tab 6
169

105
through the bits of conversation that I overheard, that they
were attempting to secure the services of the same Sangoma
who helped the Impala employees to win their battle earlier
this year.
The delegates returned with an answer from the Sangoma
that the going rate would be R1000.00 per person. The
activists felt that R1000.00 was too much and once again
despatched the delegates to negotiate a more affordable rate.
When they returned they announced that an agreement had
been reached at R500.00 per person. During the prelude to
the negotiations we were instructed to make known the
number of participants. We were able to come up with the
figure of 1800 people.
After agreement had been reached between the Sangoma
and the crowd, we were instructed by one of the delegates
that the [place] currently occupied was too public and we
needed to move to a more private spot. The Koppie was then
selected as a suitable venue for whatever rituals were to be
conducted.
When we arrived at the koppie, we divided ourselves into
groups according to our working places, i.e Karee, Westerns
and Easterns. We were instructed to remove our hats, turn off
our cellphones and refrain from any sexual activity as any of
these could fall/would interfere with his mutis.
Furthermore we were instructed to obtain water and about
500 Minora blades. I witnessed the fact that some people
went down to the village to get water and Minora blades.
By the time that the Sangoma arrived it was already late and
almost dark. Upon arrival he first had a discussion with the
individuals who conducted the negotiations. After which he
started with the first group (either Easterns or Westerns).
From my vantage point I was able to see people removing
their upper body garments. The bare-chested individuals then
presented themselves one at a time to him to perform
whatever ritual he was about to perform. The Sangoma was
also half naked. I only saw a male Sangoma but I heard that
there was a female Sangoma in the vicinity who it was alleged
was to be the back-up plan should the principal Sangomas
muti not work.
While I was there I overheard the crowd saying that they were
not going to sleep at all that night as they needed to plan how
they were going to retaliate regarding their two comrades
allegedly killed during the march that preceded the gathering

106
at the koppie. It seemed to me that they were preparing for
war.
I left the koppie before the Sangoma could start with his ritual
on the group that I had infiltrated.
When I arrived back at my JOC team, I reported what I had
witnessed. I mentioned that the Sangoma was present and
had promised the crowd that if they participated in his rituals
they would not need to fear the firearms of their enemies
because the firearms would either jam or the bullets would
turn to water before striking them.
I am not sure whether my superiors took my
recommendations seriously due to the fact that they laughed
regarding the water bullet issue.

The ICAM Report

Mr Blou testified about inscriptions contained in an annexure to the Lonmin

ICAM report regarding the undercover security superintendent.173

1)

Lonmin Briefing

In the interim at approximately 14h00 a debriefing was conducted by Mr Blou

and Mr Botes. The note in respect of the debriefing reads as follows 174:

This morning Sat 2012/08/11 a mob was noted and

information was that they want to torch NUM offices and
Lonmin Kombi that NUM uses.
There was somewhat a faction [fight] between the groups,
gun shot and 2 people were injured.
173
174

Exhibit RRRR2.4
Exhibit EEEE19.2

107

Management had a meeting with NUM to assist defuse the

situation.
Management will discuss with AMCU to assist with KPL
situation.
NUM feels SAPS and Mine security not doing enough. From
Observation, there might be a fight between NUM and
AMCU.
From Lonmin side, the following are in place: 24 hours man
power plan + external services.
SAPS informed that problematic areas are the hostels, the
bus stops and during shift changes.
Lonmin requests that SAPS open a JOC at E&DM
boardroom.
SAPS to consult CIG on standby and get all information
about the situation.

2)

At approximately 15h30 a further debriefing was held by Mr Blou and Mr

Botes. The note in respect of this debriefing reads as follows175:

Teams will continue to operate 24 hours.

SAPS behaviour not tolerable as they stopped the medics to get
names of the injured person.
SAPS is not giving cooperation, Matter referred to Abbey Kgotle
to resolve.

3)

At approximately 18h31 Lieutenant Colonel Merafe confirmed that he would

send SAPS members to Marikana after the parade which was to be held at
19h00.176

175

Exhibit EEEE19.2

108

4)

At approximately 21h03 Mr Blou reported that a POPS hardskin vehicle was

on the scene.177

5)

The SAPS intelligence report for 12 August 2012 recorded the following in
respect of the events that had occurred on 11 August 2012178:

Crime intelligence reported that AMCU members went

through a ritual with a Sangoma with the belief that they
could not be shot by the police or mine security during the
day. They were further planning to set the office of NUM and
the satellite police station near Wonderkop alight. This
information was also reported and Brig Engelbrecht relayed
it to DPC Mpembe.

6)

After the rituals had been performed the strikers stayed on the Koppie
through the night of 11 August 2012.179

7)

It is apparent that on 11 August 2012 the strikers embarked on a process of

arming themselves with sharp and dangerous weapons. In his evidence in
chief Mr Phatsha stated that on 10 August 2012 he was armed with a stick,
whereas on 16 August 2012 he was armed with butchers knife and a
sharpened iron rod.180 He was asked what happened between 10 August
2012 and 16 August 2012 that made him change the nature of weapon he
was carrying. He answered that it was because we were attacked by NUM

176

Exhibit EEEE19.2
Exhibit EEEE19.2
178
Exhibit TT5 pages 1 and 2 paragraph 6
179
Exhibit AAAA1.2, paragraph 11
180
Day 51, Phatsha, pp. 5457 - 5460
177

109
and that he wanted to use the weapons to protect or defend myself in case
NUM came and attacked us, like before.181

181

Day 51, Phatsha, p. 5462

110
CHAPTER 7

THE EVENTS THAT OCCURRED ON 12 AUGUST 2012

The following incidents on the 12th call for consideration and evaluation:

A.

the confrontation between the strikers and Lonmin Security at the traffic
island

B.

the confrontation between the strikers and Lonmin Security at the hostels

C.

the attack on K4 Shaft, the murder of Mr Mabebe and the assaults and
damage to property at K4 Shaft

D.

whether SAPS were in attendance

111
A

The confrontation between the strikers and Lonmin Security at the

traffic island

1)

Lonmin security held a debriefing meeting at 07H40 on 12 August. In

attendance were Mr Blou, Mr Kgotle and Tony from Murray and Roberts, 182
contractors at K4 shaft. From the record of the debriefing it appeared that
Tony was going to send a communique to Human Capital (HC) to sensitise
the Murray and Roberts employees who worked at the K4 shaft, [including
Mr Thapelo Eric Mabebe], about the strike situation.

2)

Mr Blou under cross examination183 agreed that it was evident from the
record of the debriefing that it must have been apparent to Lonmin security
that there might be trouble at K4 shaft and that something had to be done
about it to prevent trouble and to protect the people who were there.184

3)

At approximately 08h07 Mr Martin Vorster reported that a group of at least

30 people had gathered at the koppie behind the Wonderkop sub-station.185

4)

At approximately 09h29 Lonmin security personnel reported that the mob at

the Wonderkop koppie was moving in the direction of Nkaneng.186

5)

Mr Dewald Louw, a Security superintendent in the employ of Lonmin, had

reported for duty at 05h00 on 12 August 2012.187 Together with Mr Sydney
Mogola, he proceeded to the Wonderkop Stadium area where they relieved

182

Exhibit EEEE19.2
Day 282, Blou, pp.36326 - 36367
184
Day 283, Blou, pp.36479 - 36485
185
Exhibit EEEE19.2 [also Exhibit XXX4]
186
Exhibit EEEE19.2 [also Exhibit XXX4]
187
Exhibit AAAA36.
183

112
the night shift consisting of Mr Botha and Mr Kellerman. Messrs Botha and
Kellerman informed them that it had been quiet through the night without any
incidents.

6)

At approximately 06h00 Messrs Louw and Mogola collected Mr Martin

Vorster and then proceeded with their normal patrolling duties in and around
the mining area, with the emphasis on the Karee Mine. Mr Louw then
received notice to attend to a gathering that was happening at the EPL
Hostel. Upon arriving at the EPL Hostel he found a group of protestors
standing adjacent to the Teba Bank entrance. According to Mr Louw,
something about the body language of the crowd and the way that they were
standing and watching the Lonmin security members made him and the
other security personnel who were on the scene uncomfortable. Mr Mogola
made the comment that this is a decoy. Mr Louw realised that if this was a
decoy then they were being kept away from something that the crowd did not
wish them to attend to. At that point Mr Louw realised that there were no
Lonmin security members at the Wonderkop Hostel area. For this reason Mr
Louw and the others returned to the Wonderkop Hostel area.

7)

On the way to the Wonderkop area, Mr Louw received a report that the
crowd gathering at the koppie were moving towards the Wonderkop Hostels.
Messrs Louw and Vorster dropped Mr Mogola off at the office and continued
to the Wonderkop Stadium area. They parked their vehicle on the traffic
island which is situated outside the western entrance to the Wonderkop
Hostel.

113
8)

Mr Louw said that the crowd stopped about 20 metres before the traffic
island and formed a crescent with the Lonmin security in the concave part.
He and Mr Vorster got out of their vehicle and faced the crowd pointing their
shotguns in the direction of the crowd. Mr Louw informed emergency OPS of
the situation and asked for back-up.188

9)

There were, he said, two groups of strikers, a smaller group in front of about
50 strikers and another group consisting of more than 1000 strikers behind
them. The smaller group rhythmically slammed their traditional weapons
together, humming and chanting just loudly enough to be audible.

10)

One of the strikers stood up and hurled a rock at the Lonmin Security. At that
point Mr Vorster opened fire with his shotgun and the rest of the group
charged forward to attack them. Mr Louw also opened fire and managed to
get off 2 shots before ordering Mr Vorster to get back into the vehicle so that
they could retreat.

11)

Before they managed to enter the vehicle, Mr Louw was hit with a knobkerrie
on his left shoulder and struck on the left thigh by a large rock. Mr Vorster
was cut by a panga on his right side all the way from the armpit to the hip.

12)

After they entered the vehicle, Mr Vorster tried to pull away, but the vehicle
stalled. Mr Vorster managed to get it going again and they drove through the
crowd to the soccer field halfway between the island and the Rowland
crossing. The vehicle was severely damaged.

188

Exhibit AAAA36

114
13)

In his evidence, Mr Louw described the crowd as militaristic, organised and

disciplined. Their body language was hostile and attacking, especially the
manner in which they gestured with their spears. He said that one striker
moved his spear across his throat as if to slit his throat, conveying a
message that they were going to slaughter them. Their facial expressions
were hostile, and they were shouting and taunting the security officers,
looking for a reaction. This was very different, he said, to any crowd
behaviour he had witnessed in the past.189

14)

He said that when he alighted from the vehicle, he indicated to the crowd to
stop both verbally and with hand signals. The small group moved to their
right as if to flank them and prevent them from moving off the island. Mr
Vorster pointed his firearm at them and they moved back to their original
position, they then moved to the right to flank them again and moved back
when a firearm was pointed at them. The crowd then went into a crouching
position, and this is when a striker in a white overall threw a rock at them.190

15)

Mr Louw said that he fired two shots and the group stormed them. Whilst
trying to get into the car, he was struck by a rock and a knobkierie. When
inside the vehicle, there were problems with starting the vehicle. The crowd
surrounded and attacked the vehicle. As the vehicle drove off, he fired four
rubber bullets through the window that had been shattered by the strikers. 191

189

Day 262, Louw, pp. 33055 - 33057

Day 262, Louw, pp. 32988 - 32991
191
Day 261, Da Costa, p. 32997
190

115
16)

In his testimony Mr Louw referred to aerial photographs depicting the

scene.192 He also referred to a series of six photographs which show the
damage that was inflicted on the vehicle by the strikers during this
incident.193

17)

Under cross examination by counsel for the Injured and Arrested Persons,
he said that he had been told by other security officers that the strikers
wanted to go to the NUM offices to take revenge for the incident of the
previous day where they had allegedly been shot at by NUM officials, and
did not have any other information in this regard. He did not receive any
information that the strikers wanted to target the security personnel. Mr Louw
said that rumours of any threat to person or property were not taken lightly,
and that they did act upon them.194

The confrontation between the strikers and Lonmin Security at the

hostels

1)

Mr Louw testified that he informed Emergency OPS and Mr Miles of what

had happened. They then returned to their office to replenish their
ammunition. On their way back to the Wonderkop Hostel Mr Vorster and Mr
Louw were informed that Mr Frans Mabelane and Mr Hassan Fundi had
been trapped inside the hostel area and were unable to retreat.

192

Exhibit DDDD4
Exhibit DDDD3
194
Day 264, Motlogeloa, pp. 33292 - 33293
193

116
2)

Mr Vorster jumped into the Protea Coin armed vehicle and moved into the
hostel area. Mr Louw used the damaged vehicle HDK 354NW and
proceeded around to the eastern entrance of the hostel via the gravel road
passing Andrew Saffy Hospital. However he was unable to enter the hostel
from the eastern entrance to get to Messrs Mabelane and Fundi because the
marchers were blocking the road.

3)

Mr Joseph Masibi, a security officer in the employ of Lonmin, in his

statement, said that he had received radio communication from Mr Louw
requesting

backup

to assist them as he and Mr Vorster, were being

attacked in their vehicle by strikers outside the Wonderkop Hostel.195

Together with Mr Marcus Manamela, Mr Masibi immediately headed for
Wonderkop. As they were approaching the Wonderkop Hostel they
requested guidance on the radio as to the side from which they should
approach the hostel. Mr Louw did not respond to their enquiry on the radio
but Mr Mabelane informed him that they should approach from the hospital
side towards the bus terminal, which is from the eastern side of the
Wonderkop Hostel via the entrance at the eastern side.

4)

Vehicle tracking records show that several Lonmin Security vehicles had
reached the Hostel before Mr Masibis Polo and that by the time he joined
his colleagues, they had already retreated a considerable distance.

5)

By 09:51, Mr Mabelane and Mr Fundi in a Nissan Livina, and Mr Motlogeloa

and Mr Dibakoane in a Hilux, had stopped approximately 100 meters east of
the boom at the west entrance to the Wonderkop hostel complex, and they

195

Exhibit AAAA37

117
had been joined by a rescue vehicle driven by Mr van Rooi who was
responding to the distress call of Mr Louw.196

6)

By 09:52, the two security vehicles had retreated another 80m into the hostel
complex and the rescue vehicle was roughly halfway between those vehicles
and Mr Masibis Polo which had reached the bus terminal;197

7)

By 09:54 all three vehicles had retreated to the bus terminal where they had
stopped near Mr Masibis vehicle.198

8)

Mr Masibi confirmed that he met Mr Mabelane and Mr Fundi and other

colleagues at the bus terminal. Mr Mabelane explained to them that the
strikers were on their way to burn the NUM office. He instructed them to take
out their shotguns and stop them.199

9)

Mr Masibi said that there was a disagreement between Mr Mabelane and

some members of the team concerning the lack of manpower present as
well as the absence of an armed vehicle which should have been present
before attempting to stop the strikers. Mr Mabelane insisted that they needed
to stop the illegal gatherers.

10)

Some of the security team members attempted to prevent the crowd from
approaching by raising their voices in order to be heard over the noise and
from a distance. The strikers disregarded this and continued moving towards
them, albeit a little more slowly.

196

Exhibit EEEE15.6
Exhibit EEEE15.7
198
Exhibit EEEE15.8
199
Exhibit AAAA37
197

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11)

The security officials realized that the marchers were not going to stop and
some of them started firing rubber bullets towards the marchers. Mr Masibi
testified that he did not recall hearing any order given. However he also
started to fire rubber bullets towards the strikers until he had emptied his
firearm magazine that contained seven rounds. There was no chance to
even attempt to reload the firearm.

12)

Mr Masibi testified that he and his colleagues retreated and ran to his
vehicle, the VW Polo. However when he reached the vehicle he realized that
he would not have enough time to get into the vehicle and retreat along with
it. He decided to leave the vehicle there and retreated on foot to where Mr
Mabelane and Mr Fundi were already seated in their vehicles.

13)

Mr Masibi managed to find an open Bakkie which was already in motion and
climbed onto the back of it, travelling towards the taxi rank and turning right
in the direction of Andrew Saffy Hospital. The vehicle tracking records place
this at between 09:58 and 09:59.200

14)

By the time the crowd reached the taxi rank in the immediate vicinity of the
NUM office, Mr Masibi and his colleagues realized that Mr Mabelane and Mr
Fundi had not escaped the crowd with them.

15)

They were later informed that Mr Mabelane and Mr Fundi had been killed.
Two Mossberg shotguns were stolen from Mr Fundi and Mr Mabelane in the
process, and two vehicles were set alight. A docket for two counts of murder,

200

Exhibit EEEE15.9 and EEEE15.10

119
malicious damage to property and two counts of theft of a firearm was
subsequently opened at Marikana under CAS 107/08/2012.

16)

In his evidence, Mr Masibi said that there were six security vehicles and
twelve security officer present at the scene. Mr Mabelane, their senior, said
that the information was that the crowd of strikers were intending to burn
down the NUM offices, and that they should form a line and disperse the
crowd with rubber bullets. He said that he and others disagreed with this
instruction because they did not have enough equipment and that they could
not disperse such a large crowd with rubber bullets. Mr Mabelane instructed
them to use their shotguns to disperse the crowd with rubber bullets to
prevent them from causing damage to Lonmin property.201

17)

He said that the crowd were walking closely together, and would then crouch
and clash their weapons. Mr Motlogelwa approached them unarmed, and
gestured with his hand, enquiring what they wanted. The strikers
approached clashing their weapons and gesturing with their hands indicating
that the security officers should shift out of their way. Mr Motlogelwa then
returned.202

18)

As the crowd neared them the security officers in the line fired rubber bullets
at them. He said the rubber bullets had no effect on the crowd. They
retreated to their vehicles and as he was running he felt items being thrown
at him but could not see what they were. He reached his vehicle but did not
get in as the crowd was very close at the time. He ran past the vehicle in

201
202

Day 262, Masibi, p. 33155 - 33157

Day 262, Masibi, pp. 33158 - 33159

120
which Messrs Fundi and Mabelane were, and jumped onto a security vehicle
passing by. He reloaded his firearm and fired 7 rubber bullets into the
crowd.203

19)

At the time he fired those shots, the crowd had completely surrounded the
security vehicles and he could not see what was happening there. A short
while later he saw smoke arising from the vehicle in which Mr Fundi had
been. The majority of the strikers were still surrounding the burning vehicle.
He could not see what was happening there and it was too dangerous to get
any closer. He saw that a group of strikers had proceeded towards the taxi
rank next to the NUM offices.204

20)

Mr Motlogelwa in his evidence, confirmed much of what Mr Masibi said, and

added that as he returned from trying to talk to the strikers, he saw Mr
Dibakoane with his hands up as if surrendering and with his shotgun on the
ground, He was also trying to address the oncoming crowd with gestures as
if to stop them. He also gestures for them to stop. The crowd continued
crouching and singing and gestured for them to get out of the way. He said
that he addressed them by saying Oh please man, what is the problem?
What is going on? The crowd appeared not to hear him205 and proceeded to
approach them.

203

Day 262, Masibi, p. 33160

Day 262, Masibi, p. 33161 - 33163
205
Day 263, Motlogeloa, pp. 33222 - 33225
204

121
21)

He managed to leave the scene. At some stage he saw that the crowd had
surrounded the vehicle of Mr Messrs Mabelane and Fundi. Another group
ran past and threw stones at the vehicles that were driving away. 206

22)

He reported the incident to the Lonmin control room. He received feedback

that contact could not be established with Messrs Fundi and Mabelane. At
that stage one SAPS vehicle attended the scene. The policeman who
observed the scene said that they could not approach the scene because
they were in a small vehicle. At some later stage when he returned to the
scene, he noticed that many policemen were present. 207

23)

The extent of the attack upon Messrs Mabelane and Fundi , and the damage
to the vehicles, is visible on both video and photographs. The positions of
the places where they were killed are depicted in the aerial photograph
marked Annexure D.

24)

It appears to be common cause that the strikers were responsible for the
deaths of Mr Mabelane and Mr Fundi. No facts have been put forward to
suggest that the killings were in any way justified, and no party had made
submissions to that effect.

25)

At the first inspection in loco, which the Commission held on 1 October 2012,
it saw marks on the outside of the NUM office, which indicated that attempts
appeared to have been made to gain access to the office.

206
207

Day 263, Motlogeloa, p. 33228

Day 263, Motlogeloa, p. 33228

122
C

The attack on K4 shaft, the murder of Mr Mabebe and the assaults and
damage to property

1)

During the incident at the K4 shaft, three people were assaulted and Thapelo
Eric Mabebe was killed. A number of vehicles were damaged. A docket for
nine counts of malicious damage to property and three counts of assault with
intent to do grievous bodily harm was opened at Marikana under CAS
111/08/2012.208 A docket for the murder of Mr Mabebe was opened at
Marikana under CAS 109/08/2012.209

2)

At 21h04, the Lonmin logbook records that there was trouble at the K4 Shaft,
and that reports of intimidation were received.210

3)

Mr Hermanus Andries Janse van Vuuren was employed by Murray and

Roberts as an underground diesel mechanic, working at the K4 shaft. 211 He
stated that on that night, he was scheduled to go on night shift at the K4
shaft. At approximately 21h00 he drove his red VW caddy bakkie to the K4
shaft to go on shift.

4)

Prior to that day they had been briefed by Lonmin and by Murray and
Roberts management about the strike that was taking place and were
warned to be on the lookout for strikers who were walking around together in
a crowd or gang.

208

Exhibit ZZZZ15.7
Exhibit A 18
210
Exhibit EEEE 19.2.
211
Exhibit GGGG3.
209

123
5)

When he arrived at the security gate at the K4 shaft there was one security
guard on duty there. The guard stopped him and told him that it was not safe
to enter the K4 shaft because there was a strike on at that moment. He said
that he contacted his supervisor, Mr Pottek, who told him that he knew
nothing about the strike at the K4 shaft and that he was to go on shift.

6)

He then told the security that he was instructed by his foreman to get onto
the premises, so he went through the security gate to the sliding gate and
entered the premises. He entered the parking area and parked his vehicle.
He said that his van was over heating and when he stopped his vehicle
under the roof, he took out his tools and started repairing the water pipe that
was leaking.

7)

When he completed the repairs he tried to reverse to drive to another side to

find parking and noticed that there were people in that area who had thrown
blankets over the razor wire, trampling the wire, and who stormed at him.
The people had balaclavas over their faces and wore what looked like
ponchos that hid their clothing. They were all armed with knobkieries,
pangas, and iron pipes which they held in their hands. He said that as he
drove his vehicle, the people started throwing stones at him.

8)

He said it was about 15 people that had stormed over the wire at that time.
Whilst he was driving to get away from them throwing stones, his windscreen
was hit by a pipe right in front of his face. He said it was a steel pipe. He
kept on driving and stopped his vehicle where the end of the building is
indicated in an L shape. Those are the open parking areas. He said that
when he got to that point, they were still throwing stones and he shouted at

124
them stop now with your nonsense. He got out of his vehicle and to escape
but the turnstile was not working. He then hid behind a brick wall and lay
there for some time.

9)

After a while, he saw that motor vehicles were on fire. He then saw a person
(who was obviously Mr Mabebe) lying on the ground (at the place depicted in
the aerial photograph marked Annexure E) and he realised that this person
had been chopped in his face and he was lying between the burning cars.
He said that there was blood on his face. He said he realised that he had to
pull him away from there. He said that he was afraid of the attackers but
they were busy attacking Mr Keyter on his motorcycle.

10)

He said he saw the attackers strike Mr Keyter with a pipe. He said that while
Mr Keyter was trying to run away and climb over the turnstile, he was
stabbed in the back with a screw driver or a knife. He also saw an attack on
Mr Greyling.

He said while they were waiting for the security and the

ambulance to arrive, he looked for first aid boxes to assist Mr Mabebe but
could not find any.

11)

He said that when he arrived at the security gate, there was just one person
there. He did not see whether he had a firearm. He only noticed him in
possession of a tongfa. He said that this post was always manned by one
person and he did not see any other security personnel in the vicinity. 212

12)

Under cross examination bycounsel for NUM, he said that he had not at any
time before the 12th been told that it might be risky to report to work.

212

Day 270, Van Vuuren, p. 34336

125
Counsel put on record the injuries that Mr Mabebe sustained. He confirmed
that at the time he pulled Mr Mabebe away from the burning vehicles, that he
was still alive and was able to speak and said that he was in serious pain.
He said that they had to wait quite a long while before an ambulance came
and took them to hospital.

13)

The injuries to the witness and the damage to the vehicles are documented
in photographs.213

14)

In Marikana CAS 111/08/2012, Nontsokolo Gloria Botman, in her Affidavit214

in the docket, said that on Sunday 12 August 2012 at about 18h00, she was
posted at Lonmin K4 shaft and she was with her co-workers Mr Baleko and
Mr Mokhotu, both of whom were posted on the other side of K4. Her posting
was alongside the K4 parking at the main entrance. She said that she was
not feeling safe because of the miners who were on strike and asked her two
colleagues to stay with her.

15)

At about 20h50 when Mr Mokhotu opened the boom gates for one of the
employees on a motorcycle, she saw four unknown persons coming in her
direction who went under the boom gate. They were standing still just
looking at them and they were wearing blankets. She was able to see them
but could not see their faces. She thought that they had something under
the blankets. The person on her right hand side was visible to her and he
was carrying stones in both hands.

213

Exhibits GGGG4.1 to GGGG4.6; Exhibits GGGG4.7 and GGGG4.8; Exhibit GGGG5; Exhibits
GGGG7.1 to GGGG7.40
214
Exhibit A10

126
16)

She went to the guard room to report about the four persons and she heard
one of the persons outside saying Guys come in. Shes going to make a
phone call. She went outside and saw many people standing there. She
told them that she was not calling anyone. She noted that they had sharp
instruments like spears, pangas and knobkieries.

They were speaking

Xhosa and Sotho. They searched her and her colleagues and took away
their cell phones.

17)

One of the persons wanted to assault them, but the other person who was
speaking Xhosa said that they want to burn the cars that are in the parking
lot. They also enquired if there were other persons who were still around or
had gone to the shaft. She said that she did not know. She was instructed
by them to open the main gate so that they could enter and burn the vehicles
at the parking. She said that they took her clock card and opened the main
gate. They then all proceeded towards the entrance.

18)

There was an employee who was standing just watching them and three
men went straight to him and assaulted him with knobkieries until he fell to
the ground.

19)

She said that while they were there, she and her colleagues were inside the
mob. While there, she saw two persons who were assaulted by the mob.
She saw that another group, who forced the fence down on the other side of
the yard, were surrounding the area. Whilst the group were concentrating on
burning the cars, she managed to make her escape with her colleagues.

127
20)

Mr Mohau Mokgothu, in his Affidavit215, says much the same as Ms Botman,

but adds that while they were being searched, the persons who were doing
the searching demanded firearms and two way radios from them.

21)

There are various statements in the docket about persons who ran away
from the crowd and in the running fell and jumped over fences and injured
themselves.

22)

Mr Joseph Makgao from SAPS Marikana in his Affidavit 216, said that he
attended at K4 shaft at about 01h30 on the 15 August 2012 and he found 8
motor vehicles were damaged and burned.

23)

This incident is an unprovoked attack on unarmed persons at K4 shaft who

were simply going about their business. The only reason for the attack
appears to be to enforce the strike with intimidation. The Commission
condemns this attack in the strongest terms.

Whether SAPS were in attendance

It is clear from the evidence that there was simply no adequate SAPS
presence at any of the events that occurred on the 12 th. This is not disputed
by SAPS.

215
216

Exhibit A11
Exhibit A6

128
CHAPTER 8

THE EVENTS THAT OCCURRED ON MONDAY, 13 AUGUST 2012

The following incidents on the 13th call for consideration and evaluation:

The killing of Mr Julius Langa

Events of the 13th August 2012 and the killing of two police officers, Warrant
Officers Monene and Lepaaku, and three strikers, Mr Mati, Mr Jokanisi and Mr
Sokanyile, and the assault of Lieutenant Baloyi

After the incident at the Railway Line

The killing of Mr Julius Langa

1)

Mr Julius Langa was employed by Lonmin as a production team leader at

Saffy Shaft217 and was, according to Mr Botes, at the time of his death not
affiliated to any union.218 Mr Langa was brutally killed near EPL next to the

217
218

Exhibit FFFF10 page 7

Exhibit EEEE1

129
railway line in the early hours of 13 August 2012. The place where he was
killed is depicted in Annexure F.

2)

According to the post-mortem report Mr Langa had 18 incised wounds on his

chest, back and upper limbs. These wounds varied from 1cm to 11cm. He
also had wounds on his face and head.219

3)

The Lonmin security officer who attended to Mr Langas body, Mr Simon

Kgopana, states that when he found Mr Langas body he was lying on his
stomach with 14 holes in his back. According to Mr Kgopana, Mr Langa
appeared to have been stabbed with sharp instruments including pangas
and knives. Mr Kgopana states further that even though when he arrived on
the scene there were many bystanders, no one came forward with
information on how Mr Langa died.

4)

Apart from Mr X none of the witnesses who testified before the Commission
admitted to having personal knowledge of how or why Mr Langa was killed.

5)

The evidence before the Commission is overwhelming that Mr Langa was

killed by strikers on his way to work. According to Mrs Langa, the last time
she saw her husband was when he left for work in the early hours of 13
August 2012.

219

Exhibit AAAA22

130
6)

The Lonmin occurrence book is replete with reports of violence and

intimidation directed at workers who did not join the strike. The occurrence
book also has specific entries made the day before Mr Langa was killed
which records specific threats by strikers directed at workers from Saffy
shaft.

7)

The following entries appear in the Lonmin occurrence book on 12 August

2012:-

(a)

At 13h35:

Information received from Patricia that the crowd

would be mobilising to Saffy shaft tomorrow
because the workers are still working.

(b)

At 14h22:

Received information from Michael Mokwena of

Saffy that when the workers are going to work
tonight they will be shot.

8)

The following entries appear from the JOC occurrence book on 13 August
2012:-

131
(a)

Entry 14 at 3h30 records that there were people gathered at

Segwaeleng/Wonderkop bridge throwing stones at cars and
passers-by;

(b)

Entry 17 at 4h18 records that there were people intimidating

workers going to work;

(c)

Entry 20 records that at 5h10 people were gathering near

Wonderkop intimidating commuters. Constable Serope shot
two rounds with his shotgun to disperse people.

9)

Mr Sinclair confirmed that the path on which Mr Langas body was found is a
popular route for workers based at Saffy shaft who live in the Wonderkop
hostels. Workers walk along that particular path to EPL hostel in order to
catch a bus (arranged by Lonmin) which transports them to Saffy shaft.

10)

Crucially, the case put forward by the Injured and Arrested Persons does not
dispute that Mr Langa was killed by strikers. To the contrary, during his
cross-examination of Mr X, their counsel specifically placed it on record that
the responsibility for the deaths of Mr Langa, Mr Mabebe, Mr Fundi and Mr
Mabelane can be placed at the door of the protestors.

11)

In addition to this concession, Mr Xolani Nzuza testified that the deaths of

the ten people before 16 of August 2012 were caused by Lonmins refusal to
talk to the strikers. This evidence (significantly by one of the leaders of the

132
strikers) points ineluctably to the inference that Mr Langa was killed by the
strikers as part of their violent campaign to enforce the strike.

12)

A secondary issue arises in the context of Mr Langa death, namely, the

extent to which Lonmin can be held responsible for failing adequately to
protect workers during the violent strike is discussed below.

Events of the 13th August 2012 and the killing of two police officers,
Warrant Officers Monene and Lepaaku, and three strikers, Mr Mati, Mr
Jokanisi and Mr Sokanyile, and the assault on Lieutenant Baloyi.

1)

The Commission was, to a certain extent, assisted by video footage in

getting a better picture of what took place at Marikana on 13 August 2012.
This is helpful especially if regard is had to the fact that some witnesses may
have perceived the events differently, some may have been mistaken, some
may have been reluctant to reveal the truth for various reasons and some
may have feared reprisals after giving evidence.

2)

Mr Xolani Nzuzas account of the events of 13 August 2012 has to be treated

with circumspection not only because of his doubtful credibility but because
of his lack of candour of what had happened on that day.

3)

He says he joined the strike for the first time on 11 August 2012 after he had
been stopped from going to work and stones were thrown at him on 10

133
August 2012220. He continuously attended meetings at the Koppie from 11
August 2012 until the day of the tragedy.

4)

Although the cause for the strike concerned the RDOs wage grievance and
he was a winch driver, he was a leader in the strike, being the second in
command.

5)

On 13 August 2012 while the strikers were at the koppie it came to their
attention that, despite the strike having started, certain employees were still
be going to work at K3 shaft. A decision was then taken that a small group
consisting of 100 to 200 strikers should go to K3 shaft to request the mine
management to close the mine and allow the workers there to join the strike.
He was part of the group.221

6)

When Mr Nzuza gave the evidence in chief he stated that Mambush, the late
Mr Noki, had asked him to go with him and the group to K3 shaft to see if
there were workers at the shaft.222 On their way to the K3 shaft at Karee they
met Lonmin security next to the bridge. They told the Lonmin security
members the purpose of their trip to Karee shaft.

7)

He said that Mr Noki said to them that we have come here to stop the
workers from working because we want them all on the mountain, what we
want is, we want money, we are demanding R12 500.00 from the employer
and we would like the employer to come and tell us when we will get this
money.223

220

Day 277, Nzuza, p. 35458

Exhibit HHH21 para. 6
222
Day 277, Nzuza, p.35480
223
Day 277, Nzuza, p.35487
221

134

8)

The security personnel responded by saying that there were no employees

working there and that they should go back to where they came from. The
security personnel undertook to come back with the employer to them. Mr
Motlogeloa who testified before the Commission appears to be the security
officer who spoke to the strikers. He confirms that the late Mr Noki did talk to
him and that he requested that they bring the management to the koppie.224

9)

Mr Motlogeloa testified that when he saw the group he stood on top of the
bridge and addressed them in Fanagalo. They were walking in a crouching
manner when he stopped them. They told him that they had heard that there
were employees who were working at the shaft and that they wanted to
speak to them so that they could inform them to go home and stop
working.225

10)

When he spoke he was speaking to the man with a green blanket. That is Mr
Noki. He informed them that there were no employees working there and
that they should go back. Mr Noki accepted that there were no employees
and requested him to bring management to the Koppie.226

11)

After they were told by security that no one was at work at K3 shaft they
turned back and on their way to the koppie met the police under the
command of Major-General Mpembe near the railway line.

12)

In so far as the evidence of the police is concerned a summary of the

sequence of events is as follows. Major General Mpembe came back from

224
225
226

Day 263, Motlogeloa, p.33233

Day 263, Motlogeloa, pp.33232-33233
Day 263, Motlogeloa, p.33233

135
leave on 13 August 2012. He, together with Major-General Naidoo,
accompanied the Provincial Commissioner, Lt.-General Mbombo, to
Marikana.

13)

On arrival at Lonmin the three Generals had a meeting with Lonmin

management where they were met by Mr Mokwena, who was accompanied
by Messrs Hawker and Kwadi.227 The Lonmin management briefed them
about what had happened and informed them that these people who were
on strike were faceless and were not known to Lonmin.

14)

After the meeting they went back to the JOC. Whilst at the JOC they
observed on a closed circuit television screen a group of strikers moving
from Karee along the railway line. After seeing this group the Provincial
Commissioner appointed General Mpembe as the overall commander of the
operation and instructed him to remain there and take care of the
situation.228 He was further instructed to go and attend to the group which
was coming from Karee mine along the railway line. He then decided to take
about 70 members to accompany him to the group. Colonel Merafe who was
one of the POP commanders also accompanied him with his group.

15)

As already stated the SAPS members under the command of Major General
Mpembe met the strikers near the railway line. The strikers group consisted
of about 200 strikers who were crouching and singing. They were armed with
assorted dangerous weapons.

227
228

Day 103, Mpembe, p.11079

Day 103, Mpembe, p.11080

136

16)

One of the songs the strikers were singing is depicted in exhibit QQ2.

17)

Col. Merafe testified that when the strikers saw them they squatted on the
road.229 The police got out of their vehicles and walked towards the strikers.
He then approached the strikers with Major-General Mpembe, Colonel Diole,
the commander of Visible Policing, Lieutenant Colonel Tsiloane, and Captain
Thupe, the commander of TRT members, behind him. Colonel Diole and
Major-General Mpembe called him back saying these people will kill you.
He retreated and Major-General Mpembe addressed them.230

18)

The Commission has seen the video footage of what happened when they
met the police. The strikers were armed with assorted weapons such as
pangas, assegais, spears and sharpened objects.

19)

Major General Mpembe requested Mr Blou of Lonmin security, who was

present at the time, to call management so as to get a Fanagalo interpreter
but without success. Because he had previously worked in the mines he
understood the language although he could not speak it. Therefore he
decided to speak in Zulu to the strikers to which they responded well.

20)

Major-General Mpembe introduced himself and informed them that they

were not entitled to carry the dangerous weapons and it was illegal to carry
them.

229
230

Day 216, Merafe, p. 26634

Day 216, Merafe, p. 26632-26633

137
21)

He informed them that the police were not going to arrest them but that they
should hand over the weapons. They replied that they were carrying those
weapons for self defence against NUM members. They told him that they
were not fighting but they wanted to talk to the employer.

22)

The strikers refused to hand over the weapons and requested the police to
go with them to the mountain where, they said, they would hand over the
weapons. Major General Mpembe informed them that he would not allow
them to go unless they handed over the weapons.231 They still refused.

23)

Major General Mpembe observed that the strikers were not going to hand
over the weapons. He phoned Lieutenant General Mbombo and informed
her that he was going to escort the strikers and that it would not be advisable
to disperse and disarm them. The Provincial Commissioner agreed.

24)

Having observed the behaviour of the crowd, Major General Mpembe told
the commanders to brief the members to escort the group to the koppie as it
was not advisable for them to disperse and disarm them because to attempt
to do so would be dangerous. Colonel Merafe did not agree.232 General
Mpembe informed them that he did not want a Tatane situation and that the
situational appropriateness was of such a nature that they could not disperse
and disarm them but should rather escort them back to the koppie.233

25)

Having decided to escort the strikers Major General Mpembe informed the
commanders that they should form a basic line and that they should escort

231
232
233

Exhibit QQ2
Day 103, Mpembe, p.11085
Day 103, Mpembe, p.11087

138
the strikers to the koppie and make sure that they did not go into the informal
settlement or in any of the business areas.

26)

Major General Mpembe, after he had briefed the commanders, went back to
the crowd and made a further effort to persuade the strikers to hand over
their weapons. He said he was going to count to ten. He started counting.

27)

He did not get beyond three. The strikers got up, sang and moved on
through the police line. Major General Mpembe was still counting when they
forced their way through the police line in a crouching manner, clashing their
weapons together.

28)

Major General Mpembe gave the following reasons for deciding not to
disperse and disarm the group:

(a)

the group was next to a railway line and he did not know when the next
train would pass by and such movements of the train may be affected
by the commotion;

(b)

they were next to a service road and for that reason it would have been
unwise to create such a commotion next to that road in dispersing the
crowd;

(c)

the mood of the strikers, who were angry and agitated, having refused
to lay down their weapons, was of such a nature that they were likely to
resist the action and a Tatane situation might have occurred;

139
(d)

there was a business area nearby which would be affected by the

dispersal and, applying the doctrine of situational appropriateness, he
felt that dispersing and disarming the crowd was not an option at the
time notwithstanding opposition by Colonel Merafe.234

(e)

As this was a spontaneous group no plans were in place for the

disarmament. There was also a residential area nearby.235

29)

There were also Nyalas lined up to block them from entering the informal
settlement as well as soft vehicles.

30)

The Nyalas were then escorted and the police kept a reasonable distance
between them in a line formation at the back following them.

31)

Whilst they were still escorting the strikers a teargas canister was fired. This
triggered a fight between the strikers and the police as the strikers attacked
the police.

32)

No one has been able to give a proper account of the attack.

33)

Major General Mpembe testified that the firing of the teargas canister was
not done as a result of his orders. Warrant Officer Kuhn, who fired the tear
gas, was on the extreme left and Mpembe was on the extreme right hand
side when the teargas was fired. He denied completely that he ever gave
such an order. He stated that he had ordered the Nyalas to move into

234
235

Day 103, Mpembe, p.11086

Day 103, Mpembe, p. 11123

140
position to protect the informal settlement and there was accordingly no
need for the teargas canister to be fired.

34)

He testified that at Potchefstroom as they were preparing for the

Commission at Roots they were divided into groups. Lieutenant Colonel
Merafe and Captain Thupe together with Lieutenant Colonel Vermaak were
sitting together and communicating. Colonel Vermaak warned him that he
should not trust the people he was sitting with.

35)

As they were sitting there Captain Thupe said he heard that it was General
Mpembe who gave the order to Warrant Officer Kuhn.236 Warrant Officer
Kuhn himself said that he heard an order but did not know who gave the
order or could not make out whose voice it was.

At that stage Captain

Thupe said General, I heard you giving the order. When General Mpembe
pointed out that he could not have given the order, because if he had done
so, he would have done so through the radio so that everybody could hear
then Captain Thupe kept quiet.237

36)

Major General Mpembe stated that he did not even see Captain Thupe
during the events of 13 August 2012 when they were escorting the strikers.

37)

The explanation given for firing the tear gas was that the strikers were
moving towards the informal settlement. Colonel Vermaak who was flying
above the scene in a helicopter, testified, however, that when the stun
grenade or teargas was fired he did not observe any deviation in movement
of the strikers towards the informal settlement. Colonel Vermaak testified

236
237

Day 104, Mpembe, p. 11166 and 11167

Day 104, Mpembe, p.11168

141
that after the stun grenade was fired the strikers turned around and stormed
towards the police members.238

38)

He observed that SAPS members were being attacked by the strikers and in
order to assist them he ordered Captain Oosthuizen, the pilot, to fly low so
that the strikers could be scared. He threw teargas and stun grenades in
order to scare the strikers off. About 20 teargas and 10 stun grenades were
fired from the helicopter by Colonel Vermaak. He did so in order to stop the
attack on the police members.

39)

Captain Thupe testified that he was deployed to Marikana on 13 August

2012. On his arrival there he was briefed by General Mpembe and he
accompanied him to the group near the railway line. The circumstances
preceding the attack by the strikers on the police and use of tear gas and
stun grenades are not in dispute.

40)

In his testimony Captain Thupe testified that General Mpembe gave

instructions to Warrant Officer Kuhn to use teargas. 239 He himself fired 8
rounds with pistol, shooting at the strikers in self-defence.240

41)

It is recorded that he compiled a shooting list of his members that occurred

on the 13th of August 2012. According to that list only 3 of his members fired.
He fired 8 rounds with a pistol. Constable Sekgweleya fired 19 rounds with
an R5 and Sergeant Mguye fired 10 rounds with an R5.241

238
239
240
241

Day 204, Vermaak, p.25233

Day 227, Thupe, p. 27938
Day 227, Thupe, p. 27940
Day 227, Thupe, p. 27944

142
42)

He had difficulties under cross examination with regard to the instructions

allegedly given by Major General Mpembe to Warrant Officer Kuhn to fire
teargas.

43)

The Commission is of the view that his version in this regard is

unsatisfactory in the light of the following, as appears from the cross
examination by evidence leaders:

a)

The question of Major General Mpembe having given

instructions to Warrant Officer Kuhn to fire a teargas canister
appeared for the first time in his statement, exhibit QQQ9,
dated 14 April 2014;

b)

This statement was made only after Major General Mpembe

had given his evidence to the Commission;

c)

This information did not appear in the statement which he

made for the first time on 12 December 2012 when the
events were still fresh in his mind;242

d)

All that he said in that statement is that when the strikers

changed direction and went straight towards the informal
settlement an instruction was given for firing teargas to
redirect them not to pass through the informal settlement; No

242

See: Annexure HHH15.1

143
allegation is made that such instruction came from Major
General Mpembe;243

e)

Exhibit L does not mention instructions of Major General

Mpembe.

f)

Documents coming from SAPS do not support Captain

Thupes allegation that General Mpembe gave instructions;

g)

Warrant Officer Kuhn in his statement does not mention that

Major General Mpembe gave such an order but says that
whilst he was busy running behind the strikers someone on
his right side gave instructions that teargas and stun
grenades must be thrown.244

44)

The Commission is of the view that Major General Mpembes denial that he
gave an order to fire a teargas canister (or for that matter stun grenade)
must be accepted.

45)

Colonel Vermaak testified that whilst he was in the helicopter on the final
approach to land they observed strikers carrying a person who appeared to
be injured. This person was wearing a white overall.245 He ran to the scene
and saw Warrant Officer Monene who had been attacked by the strikers.

46)

Major General Mpembe arrived and he was in a state of shock. He noticed

that Major General Mpembe had lost control of the members.

243
244
245

Day 227, Thupe, p. 27954-27956

Exhibit RRR9 para. 4; Day 227, Thupe, p. 27972-27973
Day 205, Vermaak, p.25242

144

47)

Colonel Vermaak testified further that after he had landed he requested

Captain Loest to give him two members of the TRT group to follow the
strikers carrying the one with a white overall.246

48)

He said that whilst they were still flying they observed persons with a
shotgun and R5 which they suspected belonged to the police. After taking
the TRT members with him they chased the strikers who crossed the stream.
Whilst they were nearing the stream they were shot at with a shot gun and
an R5 by the group. One of the members returned fire to the strikers. 247

49)

After the gun fire they crossed the stream and found the body of Mr
Sokanyile. He left members to secure the scene and went back the first
scene.

50)

The evidence relating to the circumstances in which Mr Sokanyile was shot

is very confused. There are three potential explanations as to who shot Mr
Sokanyile. They are:

(a)

He was shot by the group of Colonel Vermaak;

(b)

He was shot by the group of Constable Yende; and

(c)

He was shot by the group of Captain Thupe.

It is not possible for the Commission to decide on the evidence before it which
explanation is correct. Consequently the question as to by whose group and

246
247

Day 205, Vermaak, p.25243

Day 205, Vermaak, 25245

145
in what circumstances Me Sokyanile was shot must be referred for further
investigation.

51)

Colonel Vermaak said that when he came back to the scene he found TRT
members very angry. They alleged that General Mpembe was responsible
for the attack on their members by the strikers and the he (Mpembe) whould
lie with the deceased members.248

52)

Colonel Vermaak had earlier telephoned the Provincial Commissioner and

informed her that there was chaos. After hearing the threats he became
worried about the safety of General Mpembe as he took the threats
seriously. He telephoned the Provincial Commissioner again and requested
her to give him permission to remove General Mpembe from the scene and
take him back to the JOC. She gave permission. He then requested Captain
Loest to get him two members with a nyala to assist taking General Mpembe
to the JOC. He informed General Mpembe of the threats against him and he
(Mpembe) walked to the Nyala. He voluntarily got into the Nyala and was
taken to the JOC.249

53)

Lt. Baloyi, who, the Commission was informed, was too ill to testify, did not
give viva voce evidence but made a statement.250 His version of the events
before that attack is in line what can be seen on the video. He said that
whilst General Mpembe was negotiating with strikers they became restless
and started singing. They stood up and moved towards the police and were
allowed to proceed.

248
249
250

Day 205, Vermaak, p.25252

Day 205, Vermaak, p.25257
Exhibit GGG16

146

54)

General Mpembe instructed that they be escorted to the koppie where they
would be disarmed. One senior commander disagreed saying that they
would outnumber the police at the koppie.

55)

Lt Baloyi said that he got into a nyala. He took one stun grenade from one of
the members and they drove slowly behind the strikers. The strikers allowed
the driver to pass them. He asked the driver to stop while it was facing
South. He got out of the Nyala and watched the strikers moving towards the
direction of the mountain.

56)

Within seconds two teargas canisters were fired. The strikers ran towards
him. He then threw a stun grenade at them and ran to the Nyala. He realised
that the strikers had already reached him. They were attacking members. He
ran past the Nyala and he was being chased by the strikers. While running
away, he started firing rubber bullets with his shotgun at the strikers who
were chasing him.

57)

He was attacked from behind. He used his shot gun. He was hit with
something like a panga. He was tripped and fell on the ground. The strikers
started stabbing him in the chest. One of the strikers was pointing a firearm
at police officers who were approaching and then pointed it at him but was
disturbed by others who were trying to rob him of the shot gun. He was
stabbed with an assegai below the umbilical cord and he surrendered the
shot gun

58)

He was rescued by the Nyala driver. The strikers stole his pistol and a radio.

147
He suffered very serious injuries. He was airlifted to Marikana Clinic where he
was treated and later taken to Ferncrest Private Hospital, Rustenburg. He
suffered nine stab wounds all over his body. He was lucky to survive.

59)

Mr Mati, who was confirmed as one of the strikers, was found dead in front
of a house in the informal settlement. How he met his untimely death is not
clear from the available evidence.

60)

Dr Nkosi examined the body of Mr Mati on 16 August 2012 and found that
the chief cause of death was Stab Wound of Right Femoral Vessels.

61)

Dr Naidoo subsequently viewed autopsy photographs and the post mortem

report of the autopsy on the body of Mr Mati and remarked that it is not
uncommon for doctors to misinterpret and mis-diagnose wounds or, if
diagnosed correctly, to fail to make a critical descriptive differentiation
between wounds caused by sharp weapons and those caused by firearm.
He concluded that the wound through the thigh of Mr Mati was a gunshot
wound and not a stab wound as was observed by Dr Nkosi.

62)

In the light of the conflicting evidence of the doctors, the Commission is of

the view that it does not have sufficient evidence about the death of Mr Mati.
Consequently this should be referred for further investigation. It is not
possible for the Commission to decide on paper whether the views of Dr
Naidoo, who did not see the body of Mr Mati, should be preferred to those of
Dr Nkosi, who did.

148

After the incident at the Railway Line

1)

After the incident near the railway line on the afternoon of 13 August 2012
the National Commissioner, General Rhia Phiyega, arrived at Marikana at
around 16h00.

One of those accompanying her was the Provincial

Commissioner of Gauteng, Lieutenant General Petros. After being briefed

by Major General Annandale, the Head Specialised Operations from Head
Office, and Brigadier Adriaan Marthinus Calitz, the Provincial Head of
Operational Response Services whom Lieutenant General Mbombo had
appointed the Operational Commander of the operations at Marikana, she
and other senior members of the SAPS met with Lonmins management,
who stated that the strikers were not known to them: they described them as
faceless. They said further that the genesis of the problem was rivalry
between AMCU and NUM.251

2)

On Major General Annandales instructions Brigadier Fritz, the head of the

Special Task Force, instructed Colonel Duncan Scott, a member of the STF,
to go to Marikana to assist with the planning and co-ordination of an
operation there. Colonel Scott arrived at Marikana during the course of the
evening and he immediately started work on an operation briefing for the
National Commissioner while the National Commissioner and her delegation
were meeting with the Lonmin mine management.

251

D178, Mbombo, pp. 21300 - 21311

According to his

149
evidence the operational plan of 14 August 2012 was created after
discussions with Mr Graeme Sinclair, the Group Mining Emergency and
Security Manager of Lonmin, Colonel Merafe, the Head of POP at
Rustenburg, and other POP officers.

The essence of the plan was the

encirclement of the strikers on the koppie and a filtering line of members of

the police service who would be deployed to search people who approached
the koppie and confiscate any dangerous weapons found in their
possession.252

3)

Originally Colonel Scott intended this plan to be implemented early on the

morning of Tuesday, 14 August 2012, shortly after sunrise when there were
fewer people on the koppie. This could not be done because none of the
commanders came to the JOC early in the morning and when Colonel Scott
was told that a substantial number of strikers was on the koppie he decided
that the plan could not be proceeded with immediately. 253 There was also
evidence that there were not enough SAPS members to implement the plan at
that stage and that reinforcements from other provinces would be coming. It
is unnecessary to make a finding on why it was decided not to implement the
plan then.

4)

In his evidence Colonel Scott set out in some detail how it was envisaged
that the plan would work: 254

252

Consolidated statement, Col Scott, Exhibit HHH20; Day 134, Scott, pp. 14175 - 14177
Day 134, Scott,, p.14177
254
Day 134, Scott, pp. 14170 - 14173
253

150
a)

a barbed wire cordon was to be drawn around the koppie, the idea
being to uncoil the wire in two directions around the koppie at that
same time so as to ensure that the encirclement took place quickly;

b)

there was to be a filtering line of Nyalas placed between the informal

settlement and the koppie;

c)

there were to be NIU and STF reaction teams at koppie 3 and an

observation post closer to the front of the koppie: both the reaction
team and the observation posts were to be out of sight of the strikers
on the koppie; and

d)

there was to be a processing zone to the south-west of the koppie

where the strikers who were inside the cordon were to be processed
for arrest after the operation had been successfully completed, the
idea being that the strikers would have exited through the point
where the two lines of barbed wire met and would then have been
taken to that area for processing.

151
CHAPTER 9

THE EVENTS THAT OCCURRED ON TUESDAY, 14 AUGUST 2012

The following incidents on the 14th call for consideration and evaluation:

The planning of the operation;

Negotiations to bring about a voluntary laying down of weapons and

dispersing from the koppie;

Discussions between Lieutenant General Mbombo and Lonmin Management;

and

The killing of Mr. Twala.

The planning of the operation

1)

As set out in paragraph 80 above, in his evidence Colonel Scott set out in
some detail how it was envisaged that the plan would work. 255

255

Day 134, Scott, pp. 14170 to 14173

152
2)

Though the implementation of this strategy was abandoned early on the

morning of 14 August 2012 Colonel Scott further developed the plan later in
the morning and presented it to a meeting of JOCCOM at 14h00 that day256.
The plan he presented was in six phases, as follows:257

(a)

phase one: the purpose of this phase was to engage in dialogue to

seek a peaceful disarmament and dispersion of the strikers. SAPS
deployment forming part of this phase included:

i)

SAPS armoured vehicles would be positioned from south to

north between the koppie towards the west and the informal
settlement and Wonderkop Hostel towards the east;

ii)

POP members in the armoured vehicles would have a

response group of TRT members behind them;

iii)

a reserve group consisting of additional POP armoured

vehicles with barbed wire trailers would be on standby to
form a barrier should the strikers decide to attack (This
reserve group was to be out of sight of the strikers so as not
to provoke confrontation.) In addition NIU, STF, Emergency

256
257

D 134, Scott, p. 14192

Consolidated statement, Col Scott, Exh HHH120

153
Medical Services, Fire Brigade and crime scene and
investigation experts were to be based at the nearby
Forward Holding Area (FHA);

iv)

the SAPS helicopter would be used to send information to

the JOC and the ground forces, inter alia, by providing
photograph and video footage to enhance operational
awareness; and

v)

the SA Airforce Oryx would be used as a response platform

for the deployment of a STF tactical team.

(b)

phase two: in the event of an increase in the threat level against the
SAPS or an apparent mobilisation of the strikers towards anticipated
key points behind the police line:

i)

there would be an escalation in SAPS force levels with

reserves from the FHA258 being brought forward, the
purpose of the resulting show of force being to dissuade
illegal activity or planned violence towards SAPS;

ii)

the POP armoured vehicles with barbed wire trailers, which

during phase 1 were to be kept out of sight to avoid

258

Later a second FHA (called FHA two (FHA2)), near an informal settlement north of the koppie
was added, the original FHA becoming FHA one (FHA1)

154
provoking the strikers, were to be pre-positioned between
the police line and the strikers so that the barbed wire could
be uncoiled quickly to close off the area behind the police
line

(the

so-called

neutral

area)

from

aggressive

approaches by the strikers; and

iii)

the STF and air reaction teams was to be positioned at the

rear area and was to be used to provide a show of force
deployable from the air.

(c)

phase three: this was a pre-determined deliberate tactical option to

be employed if negotiations failed and the show of force (which was
part of phase two) had failed to deter further unlawful activity by the
strikers.

3)

The strategy for this phase was based on the initial encirclement strategy,
entailing encircling the strikers with barbed wire and offering them an exit
point through which they would need to move while handing over their
weapons. As was the case with his initial plan, this phase was only capable
of being implemented early in the morning when there was a relatively small
number of strikers on the koppie.

155
(a)

phase four: this was to be implemented once the strikers who had
spent the night on the koppie or had approached it in the early
morning had been disarmed and arrested. Essentially it involved the
processing of those arrested and evidential material by the police
detectives and the forensic services.

(b)

phase five: this consisted of intelligence driven follow-up operations

to carry out high risk arrests, to search the residences of the strikers
and to search for weapons and other evidence. This would be for
detectives and for crime intelligence members to follow up on
information gained from interviews with arrested strikers who could
possibly provide intelligence relating to the earlier murder and the
whereabouts of firearms stolen from the mine security staff murdered
on 12 August 2012 and the police members who were murdered on
13 August 2012. High risk arrests and the searching of residences
was to be undertaken by members of the NIU and STF.

(c)

phase six: this involved a cordon and search operation to be

authorised by Lieutenant General Mbombo in terms of Section 13(7)
of the South African Police Service Act 68 of 1995.

What was

planned for this phase was that the Wonderkop and Karee hostels
were to be cordoned off and searched for dangerous weapons, the
cordoning off to be done by POP members and searching (and
seizure of any weapons found) to be done by TRT members.

156

4)

After Colonel Scott presented the plan to, and it was approved by the
JOCCOM, with POP commanders present, the commanders were briefed, the
briefing being conducted by about 14h30, whereafter the commanders briefed
their members.259 At around 16h00 phase 1 deployment took up position at
the FHA and the monitoring and negotiation group moved forward to occupy
the ground to the east of the koppie. This area from then on became the
neutral area which the police dominated. 260

Negotiations to bring about a voluntary laying down of weapons and

dispersing from the koppie

1)

It had already been decided the previous evening that attempts should be
made to negotiate a peaceful resolution of the situation with the strikers
before there was a move to an offensive tactical operation. Arrangements
were accordingly made for Lieutenant Colonel Stephen James McIntosh, the
commander of the Carletonville Family Violence, Sexual Offences and Child
Protection Unit, who is a trained hostage negotiator, to go to Marikana and
assist with the negotiations with the strikers.

He arrived at Marikana at

12h30 on 14 August 2012. After being briefed by Brigadiers Calitz and Fritz
and Major General Annandale he was taken by Brigadier Calitz at about
15h20 in a Nyala to the koppie where he found a crowd which he estimated

259
260

Consolidated statement, Col Scott, Exh HHH20

Ibid

157
to consist of between 4 000 to 5 000 strikers, who were armed with
knobkieries, assegais, pangas and other homemade sharp instruments. He
addressed the crowd, which he described as rowdy and aggressive,
through the public address system of the Nyala, using a Lonmin employee
as an interpreter as the negotiations were being conducted in Fanagalo. He
began by saying that the police had come in peace and wanted to find a way
for the situation to be resolved peacefully. He saw a group of well armed
males, about 300 in total, who were in front of the others and appeared to be
the leaders of the group. (In the rest of this report this group will be called,
as it was during the hearings, the militant group.) He asked for five of the
strikers bravest men to come forward towards his Nyala so that he could
speak and negotiate with them. Eventually five men came forward, one of
whom had a green blanket wrapped around him. (It was common cause
during the hearings that this man was Mr Noki, one of the leaders of the
strikers.) Lieutenant Colonel McIntosh advised them that their safety was
the concern of the police who would stay in the Nyala and that they would be
safe and free to return to the group after talking to the police.261

2)

The five strikers came right up to the Nyala and Mr Noki climbed on the bull
bar of the Nyala in order to talk to the SAPS members through the porthole.
He informed the negotiating team that the strike was about wages and
demanded to speak to the Lonmin management.

He also said that the

strikers were there because members of NUM had killed some of their
members on Friday 10 August 2012 at 16h40. He refused to give his name
261

Statement: Lt Col McIntosh, exh HHH14

158
and was quite agitated and adamant that the strikers wanted to talk to the
Lonmin management. Lieutenant Colonel McIntosh told them that the SAPS
wanted them to disperse peacefully and to leave their weapons on the
ground. He also informed them that the SAPS did not want to fight with
them or hurt them but that they wanted a peaceful solution to the problem
and guaranteed their safety.

3)

262

At about 17h03 the negotiators received information that there was a body at
the back of the koppie and that investigators and crime scene personnel
were required to go to the scene and that they wanted to fly in a
photographer.

The body, which was that of Mr Isiah Twala, a Lonmin

supervisor, was found about 200 metres away from where the negotiators
had been parked on the side near the back of the koppie (the position of Mr
Twalas body is depicted in Annexure H). The strikers representatives, on
being requested to do so, gave feedback that the police could land the
helicopter and conduct investigations on the scene, saying that they did not
know anything about the body or the circumstances of the death.

263

The

negotiators went to the body and investigations were conducted on the

scene. (The killing of Mr Twala is dealt with in detail later in this chapter.)

4)

When they went back to the negotiation point Mr Noki requested them to
postpone the meeting until the next day at 09h00 to allow the group to
discuss the process they wished to follow. After the request was transmitted

262
263

Ibid
Ibid

159
to the JOC, the negotiators informed the group that the negotiations would
continue the next day, whereafter the negotiators withdrew.

C.

264

Discussions between Lieutenant General Mbombo and Lonmin

Management

1)

While Lieutenant Colonel McIntosh and his colleagues were negotiating with
the strikers representatives Lieutenant General Mbombo was having an
extraordinary discussion with members of the Lonmin management, in
particular Mr Barnard Mokwena, the executive vice president Human Capital
and External Affairs at Lonmin, and Mr Sinclair.

Lieutenant General

Mbombo was not aware that the conversation was being recorded. The
audio file of the conversation and a transcript (handed in as Exhibit JJJ192)
were subsequently, however handed over by Lonmin to the SAPS in
compliance with a subpoena issued under Section 205 of the Criminal
Procedure Act. During the hearings a corrected transcript was handed in as
Exhibit JJJ192 bis.

Despite the fact that the conversation was a very

important one the SAPS did not include the transcript on the hard drive it
furnished the evidence leaders and the Commission in purported compliance
with the initial undertakings made by the National Commissioner to cooperate fully with the Commission.
belatedly discovered by Lonmin.
264

Ibid

The transcript and audio file were

Prior to this discovery there was no

160
evidence before the Commission that that conversation took place. It was
not mentioned in the initial statements by Mr Mokwena 265 and Lieutenant
General Mbombo.

266

In her supplementary statement Lieutenant General

Mbombo says that she did not mention this informal discussion because
nothing turned on it.

This is an unsatisfactory explanation.

As will be

apparent from what follows, a lot turned on the conversation and it was
incumbent on both SAPS and Lonmin to inform the Commission about it
when the initial statements were filed and the transcript and the audio file
ought to have been included on the SAPS hard drive.

2)

Lieutenant General Mbombo said in her supplementary statement that she

asked Mr Sinclair to arrange the meeting with Lonmins management in
order to ascertain if they had devised ways to address the unrest situation
and to share with Lonmin the approach adopted by SAPS in policing the
situation. 267

3)

As appears from the transcript,

268

Lieutenant General Mbombo began the

meeting by saying that she wanted to meet with Lonmin management in

order to understand the decisions they were taking as to how they intended
getting the situation back to normal.

Mr Mokwenas response was that

Lonmins priority was getting people arrested. It was very clear, he said, that
AMCU was behind the strike and that AMCU had made media statements
265

Exh 0015
Exh GGG5
267
Exh LLL1
268
Exh JJJ192 bis
266

161
that they had presented a demand of R12 500 to management. He also
referred to a tape recording on which AMCU had said that Lonmin would
remain ungovernable. (In cross-examination

269

before the Commission Mr

Mokwena said that he was prepared to retract the statement that AMCU was
behind the strike. He also withdrew his allegation that AMCU had issued
media statements about its alleged demand for R12 500. As regards the
tape recording on which AMCU had allegedly said that Lonmin would remain
ungovernable he said in cross-examination that he had never heard the tape
recording and that his colleague, Mr Jomo Kwadi, who had claimed to be in
possession of the recording, was unwilling to hand it over.)

4)

Mr Mokwena emphasised that Lonmin would not start to talk to the strikers
outside organised bargaining structures. Lieutenant General Mbombo said
that the strikers felt that they were in control because their employer was not
telling them anything and not calling them to work. She stated that she
wanted to circle the workers and then talk to them and the SAPS would give
them the opportunity to put down their weapons and leave the koppie one by
one. If they did not, however, surrender their arms the next day, it is blood.
In the transcript, she can be heard receiving a telephone call from the
National Commissioner and having a conversation with her, in the course of
which she is recorded as having said there are about 500 to 1000 that are
there. So are we are thinking that whilst they are at that number, we can
maybe circle them around.270 She also mentioned in this context that that

269
270

Day 291, Mokwena, pp 38003 - 38005

Exhibit JJJ 192 bis, page 2, lines 4-6

162
evening she would be getting 480 members. (This was clearly a reference
to the extra SAPS members who were to be arriving at Marikana from other
provinces. According to figures provided by the SAPS in their counsels
heads, on the previous day, 13 August 2012, there were 209 members and
officers at Marikana, on 14 August 2012 there were 532 members and
officers and on 15 August 2012 there were 689 members and officers. In
other words during the period 13 to 15 August an extra 480 members and
officers were sent to Marikana.

On 16 August 2012 the total SAPS

deployment at Marikana was 718 members and officers.)

examined

271

When cross-

on this passage of the transcript she conceded that by saying

it is blood she had meant that if the strikers did not surrender there would
be injury or death.

5)

During this conversation Lieutenant General Mbombo encouraged Mr

Mokwena to communicate with the strikers and to issue an ultimatum for
them to come to work. She said that it did not matter if the workers were
angered because the police were there and were prepared to move in a
different direction.

Mr Mokwena agreed that they would prepare a

communiqu which would be delivered by helicopter. In his evidence Mr

Mokwena confirmed that what had been agreed with Lieutenant General
Mbombo during this conversation was that Lonmin would issue ultimatums to
its workers to come back to work.272 If they did not do so, the police would
act on the following day, 15 August 2012, to disperse them. He also testified

271
272

Day 181, Mbombo, pp 21661 - 21662

Day 291, Mokwena, p 38013

163
that Lonmin was not prepared to issue an ultimatum that workers should
return to work without being satisfied that the police were going to take
action to resolve the situation.

Mr Mokwena testified further that to his

recollection at no stage after this discussion did Lieutenant General Mbombo

urge Lonmin to negotiate with the strikers273.

274

During the discussion

Lieutenant General Mbombo referred to a discussion she had had with Mr

Abey Kgotle, the Executive Manager for Human Capital of Western Platinum
of Lonmin, the night before when she mentioned allegations that
management at Impala were colluding with AMCU and she alleged that from
a political point of view there was a feeling that the mining industry wanted to
replace NUM with another face and that that was why these things were
erupting. She also referred to a discussion the National Commissioner had
had the day before with Mr Kgotle in which she apparently raised concerns
that if management gave the strikers leeway they could be seen as
supporting them.

6)

Lieutenant General Mbombo also mentioned that when she spoke to the
Minister of Police, Mr Mthethwa, he had said that Mr Cyril Ramaphosa was
calling him and pressurising him. In this regard she said that the National
Commissioner had asked her the previous evening who the shareholders
were and that she had replied that she did not know but that the Minister had
mentioned Mr Ramaphosa, whereupon the National Commissioner had said
that she got it. Explaining this, Lieutenant General Mbombo referred to the

273
274

Day 292, Mokwena, p 38200

Day 292, Mokwena, p 38185

164
fact that Mr Ramaphosa had presided over the hearing of the appeal brought
by Mr Julius Malema against the decision of the African National Congress
to expel him from the party and that Mr Ramaphosa was, as she put it, very
strong in terms of the decision made. She went on to mention that Mr
Malema had intervened in the dispute at Impala and that the police had been
able to manage the situation there after his visit. She stated that in her
discussions with the National Commissioner they had been concerned about
the fact that if once again it came across that Mr Malema had defused the
situation it would seem as if he has taken charge of the mines. She added
that because of Mr Malemas known position that the mines should be
nationalised it had a serious political connotation that had to be taken into
account and which they needed to find a way of defusing. She said that she
had told her people that they needed to act in such a way that they killed
this thing. Mr Mokwena agreed with this statement and said, immediately,
yes. During cross-examination, when she was questioned about what she
had said about Mr Malema and it was put to her that she and the National
Commissioner were concerned that Mr Malema should not get credit for
defusing the situation, she denied that that was correct and said that what
she had been afraid of was that Mr Malema might come and not solve the
problem but in fact make it worse. 275

7)

Both Lieutenant General Mbombo and Mr Mokwena referred to being

contacted by Mr Themba Godi, an opposition member of parliament. They
agreed that the situation needed to be arrested because it allowed

275

Day 180, Mbombo, p. 21544

165
opportunists the opportunity to comment and then the situation [would] get
out of control. Mr Mokwena then mentioned that the next day was D-Day.

8)

Also during the course of this discussion Lieutenant General Mbombo

mentioned that a key challenge facing her was the cost of keeping all the
members there every day. She implied that it was for this reason that she
had given the operational commanders until the weekend if we cannot sort
this thing but she added that she hoped this would happen by tomorrow [i.e,
Wednesday 15 August 2012] the latest. During her evidence she confirmed
that cost was one of the factors to be taken into account. She added that
they had to work together and quickly but that they should not jeopardise the
success of the operation.276

Lieutenant General Mbombo was strongly

criticised both in cross-examination and in argument for the comment she

made during the conversation with the Lonmin management which indicated
a complex political motive for wanting to act against the strikers and to do so
the next day. The Commission agrees with the following submissions made
by the evidence leaders in this regard:277

She was unable to provide a coherent and compelling

explanation for the sentiments she expressed and testified under
cross-examination that:

276
277

Day 178, Mbombo, p. 21337

ELs Heads, paras 542 - 544

166
542.1

The call from Mr Ramaphosa to the Minister did not

influence

her

decision-making

in

respect

of

Marikana. She testified that any citizen is entitled to

phone the police for assistance. We submit that this
explanation is unconvincing to say the least. From
JJJ192 bis it is evident that Gen Mbombo was at
pains to convey to Mr Mokwena that the person who
telephoned the Minister was politically influential.
Under cross-examination she was unable to explain
why she did [say] this if it was an irrelevant fact

542.2

We note also that Lt Gen Mbombo was unable to

provide any explanation for her utterances in respect
of Mr Julius Malema.

While she persisted in her

version that she was merely interested in doing

policing work at Marikana, her testimony that she
would have welcomed Mr Malema to Lonmin if it
meant he could defuse the situation is wholly
unconvincing and completely at odds with her
utterances recorded in exhibit JJJ192 bis.

Her

explanation that she feared that Mr Malema would

make matters worse is in sharp contrast to the
sentiment that she expressed in JJJ192 bis
namely that he was given the credit for defusing the
situation at Impala. Nowhere in JJJ192 bis does Lt

167
Gen Mbombo even hint at a fear that Mr Malema
might worsen the situation at Marikana.

543.

We submit that exhibit JJJ192bis clearly shows that

Lt Gen Mbombo took into account irrelevant political
considerations in approaching the situation at
Marikana:

543.1 She did not want mining companies to be seen

to be supporting AMCU;

543.2 She did not want mining companies to

undermine NUM;

543.3 She was responding to what she perceived as

pressure from Mr Cyril Ramaphosa whom she
considered to be politically influential;

543.4 She wanted to end the violence before Mr

Julius Malema arrived in Marikana and was
given credit for defusing the situation;

543.5 She was concerned to put an end to a situation

where an opposition member of Parliament
was involving himself in the community.

544.

These factors were put by the evidence leaders to Lt

Gen Mbombo during cross-examination. She was

168
unable to provide an adequate explanation for her
denial that the inferences listed above can validly
be drawn.

In their submissions278 the evidence leaders also contended that the

9)

transcript of the conversation between Lieutenant General Mbombo and the

Lonmin management shows not only that Lieutenant General Mbombo took
irrelevant political considerations into account in approaching the situation
but also that the National Commissioner participated in inappropriate
discussions about political considerations. This much is clear, they say,
not only from the wording of the transcript but also from Lieutenant General
Mbombos repeated testimony that she and General Phiyega discussed the
possibility of Mr Malema coming to Marikana and taking credit for defusing
the situation.

10)

Their submissions in this regard are set out in the following passage in their
heads, with which the Commission is in full agreement:

545.

We contend that Gen Phiyegas testimony that

she was unable to recall this specific conversation is
both unsatisfactory and unconvincing, It is however
telling that she does not dispute the testimony of Lt
Gen Mbombo.

278

ELs Heads, paras 545 - 546

169
546.

We submit that, on the evidence, the Commission

[should] make a finding that Gen Phiyega was
complicit in engaging in discussions where political
factors

were

inappropriately

considered

and

discussed in relation to policing the situation at

Marikana. This is inconsistent with our constitutional
and statutory regime which requires that policing be
conducted in an impartial and unbiased manner.

11)

The conversation between Lieutenant General Mbombo and the Lonmin

management terminated on the basis that the next day, Wednesday 15
August 2012, was to be D-Day, when the strikers either voluntarily laid
down their arms and left the koppie or were forced to do so as a result of
police action.

The Killing of Mr Twala

1)

The body of Mr Twala was found on 14 August 2012 behind the koppie at
Wonderkop.279 The post mortem report shows that he died as a result of
multiple stab wounds to the body.280

2)

According to Lieutenant Colonel McIntosh,281 at around 17h03 on 14 August

2012, they received information that there was a body lying behind the

279
280

See Exhibit B8 for location of the body

Exhibit A780

170
Koppie and the LCRC and detectives wanted to fly in a photographer to
process the scene, whereupon, the strikers allowed SAPS to land a
helicopter in order to photograph and remove the body.

3)

Mr Xs evidence about this incident is dealt with in Annexure C.

4)

Apart from the testimony of Mr X, the evidence relating to the death of Mr

Twala is contained in witness statements in docket CAS 121/8/2012.

5)

Mr Oupa Christopher Malinga282 stated that on Tuesday, 14 August 2012

and in the morning Mr Twala arrived at his home and asked him to
accompany him to a meeting at the koppie. When they arrived at the koppie,
people had already gathered there and they were singing. After a while, he
and Mr Twala decided to leave and on their way to the informal settlement,
two men came up behind them and ordered them to go back to the koppie.
He says that both men were wearing blankets and were armed with sharp
instruments.

6)

When they arrived at the koppie, they were both ordered to sit in the middle
of a group of about 12 men and they were ordered to identify themselves.
There was a third person who was already seated at the centre of the group
when they arrived. Various questions were put to them by the crowd.

281
282

Exhibit HHH14 paragraph 8

Exhibit A13

171

7)

Mr Twala was accused by the group of being an informer (impimpi), and one
of the persons present said that he used to parade them at the office for
discipline. He described one of the five persons who were questioning Mr
Twala.

8)

He said that he and the other person were set free and Mr Twala remained
seated in the middle of the group. He then saw them leaving to the other
side of the mountain with sharp instruments placed against his body. Later
he heard the sound of two gun shots coming from that direction. Later, the
same persons that had left with Mr Twala returned but Mr Twala was not
with them. He thereafter left the koppie.

9)

Mr Leonnard Nzingisi Nzimasa said that he is employed at Eastern Platinum

Mine and is the deputy Chairperson of NUM at No 2 Shaft. On Tuesday 14
August 2012, he was at the koppie attending the gathering. He was called
out by one of the persons present to come to the front where the other
leaders were.

10)

Among the leaders that he saw at that stage were Anele, Xolani, Bayi, Rasta
and Mambush, amongst others. He says that he was ordered to sit down in
front, when a second and third person were also pointed out and called to
the front.

172
11)

They were ordered to sit down while being surrounded by this group. He
does not know the name of the person who called him out but he is able to
identify him if he is to see him again. One of the persons in the group asked
each of them to identify themselves. He was the first to do so and was
asked various questions by the group. Mr Siboko and Mr Nongovu who
were a part of the group said nice things about him and he was left to go
back to the crowd. A second person was also questioned and later allowed
to go back. The group remained with one person for questioning.

12)

After they questioned him, a group comprising of Anele, Xolani, Bayi, Rasta
and Mambush and others took away that person to the other side of the
koppie. He heard the sound of a person crying from that direction. After a
short while, that same group of leaders returned from that side of the
mountain and the one person was not with them. He says that he saw Anele
cleaning the panga he was in possession of with grass, and realised that he
was cleaning blood from it.

13)

Mr Luxolo Mqokwana283 said that he was also present at the koppie on 14

August 2012 and saw three persons being questioned and Mr Twala being
taken away to the other side of the mountain. He says that before he was
taken away, Anele searched Mr Twala and found a silver firearm on his
person. He took it and handed it over to someone in the group. When the
group had gone to the other side of the mountain, he heard the sound of
gunfire from that direction. When the group came back, Mr Twala was not

283

Exhibit A30

173
with them. He heard Anele giving feedback to the group that the work had
been done. He saw Anele take the firearm he had taken from Mr Twala and
a shotgun and cover it with his blanket.

14)

Mr Vuyani Life Siboko284 corroborated this version.

As did Mr Thulani

Nongovu.285 He added that Mr Xolani Nzuza said that Mr Twala is a very

bad person because lots of workers lost their job because of him. They also
said that he is an impimpi. When he saw three people going down behind
the hill with Mr Twala he heard a gunshot and he saw that one person had a
panga. When they came back, they said to the workers they have finished
the job. He describes the clothing of the person who said that, and says that
he will be able to identify him. The song that everyone sang thereafter was
how can we kill the NUM members?

15)

Mr Melibakho Solvet Bttatyi286 said that on 14 August 2012, it was alleged at

the gathering on the mountain that Mr Twala was present to spy on them for
the employer.

16)

Mr Nzuza asked Mr Twala what he was doing at the mountain and his reply
was that he was there to join the strike. Mr Nzuza asked Mr Twala for his
cellphone and paged through it and while doing so, he said that he saw the
cell phone numbers of the leaders of NUM and the employer. Mr Nzuza

284

Exhibit A15
Exhibit A14
286
Exhibit A16
285

174
asked Mr Twala why the cell phone numbers of the leaders of NUM and the
employer were stored on his cell phone and Mr Twala replied that these
were the leaders that he works with and he had their numbers in case there
was a problem.

17)

One of the persons said that Mr Twala must be taken behind the mountain.
He was escorted by four persons behind the mountain. The one with the
scar on his head was the one who searched him and found the firearm in his
possession. He said that he can identify this person. When they returned
from the mountain, they said to the workers that they must sing a song.

18)

The Post Mortem Report287 documents multiple stab wounds and firearm
injuries and gives the cause of death as multiple stab wound injuries. The
firearm injuries are not documented but 13 stab wounds are.

19)

It appears that there are outstanding investigations in the docket which

include the outcome of ballistic examinations as cartridge cases were
recovered at the scene.

20)

Mr Nzuza, who was charged with the murder of Mr Twala, testified288 that he
was not present at the Koppie at the time that Mr Twala was killed, but later
indicated that when he arrived at the Koppie he saw Mr Twala standing and

287
288

Exhibit A7
Day 277, Nzuza, pp. 35513 - . 35514, and p. 35912

175
talking to the strikers at the Koppie. At the time he did not know Mr Twalas
name, but heard him saying that he (Mr Nzuza) knows him; that he
responded by saying that he did not know Mr Twala and only met him once
when he wanted goggles from him and that he had threatened to get him
fired; that after this discussion he left the Koppie and went to have a soft
drink somewhere in Wonderkop; that he saw nothing that day that warranted
Mr Twala being killed.

21)

As is apparent from the aforegoing, it would appear as if Mr Twala was

killed, execution style, by a number of strikers, apparently acting in concert,
because of a suspicion that he was spying on them on behalf of their
employer and / or NUM

22)

As is also apparent from the docket, CAS 121/8/2012, a police investigation

had been commenced at the time into the murder of Mr Twala and in the
Commissions view the investigation should, in so far as it is necessary,
proceed and the law be allowed to take its course.

176
CHAPTER 10

THE EVENTS THAT OCCURRED ON WEDNESDAY, 15 AUGUST 2012

The following incidents on the 15th call for consideration and evaluation:

The Forum at 8;

The visit by the two union presidents to Marikana;

Debriefing of Mr Mathunjwa and Mr Zokwana; and

National Management Forum.

1)

The Forum at 8

The conversation between Lieutenant General Mbombo and the Lonmin

management terminated on the basis that the next day, Wednesday 15
August 2012, was to be D-Day, when the strikers either voluntarily laid

177
down their arms and left the koppie or were forced to do so as a result of
police action.

2)

In the result this did not happen on Wednesday 15 August 2012 for two
reasons. First the police commanders appreciated that it would be a breach
of faith, while negotiations were still proceeding, to launch the encirclement
action which was phase 3 of their planned operation, the so-called tactical
option.289

3)

Secondly, a new intervention, which it was hoped would solve the problem,
was initiated as a result of the efforts of Mr Xolani Gwala, the presenter of
the SAFM radio programme The Forum At 8, which was broadcast just after
the 8am news on Wednesday, 15 August 2012.

290

The guests on the

programme, which was dedicated to the situation at Marikana, were the

presidents of the two trade unions whose members were on the koppie, Mr
Senzeni Zokwana of NUM and Mr Joseph Mathunjwa of AMCU, as well as
Mr Mokwena representing Lonmin.

At the end of the programme the

presidents of the two unions agreed to go to Marikana to talk to the workers

and urge them to go back to work, while Mr Mokwena said that Lonmin
wanted, to use his words, to use the structures of the unions to discuss any
grievances or concerns in the most civilised manner without pangas and
without guns.

He added, we can do it now, we can do it as soon as

possible.
289
290

Consolidated Statement, Col Scott, HHH 20

The transcript of the broadcast is exh LL

178

4)

When the two Presidents and Mr Mokwena arrived at Marikana they were
met by Major General Mpembe, who told them that SAPS required the
intervention of the leadership of the two unions to go to the koppie, talk to
the strikers and tell them to disperse and disarm.

291

He said that their

intelligence revealed that some of the strikers belonged to NUM while others
belonged to AMCU. He stressed that the police did not want to be seen as
the police that is brutally killing people and at the same time we do not want
to be seen as the police that is not complying with international standards.
He continued: We are policing in a democracy where negotiation [is] its
weapon, not bloodshed.

5)

Both Mr Zokwana and Mr Mathunjwa agreed to accompany the SAPS

negotiation team to the mountain. The arrangement was that they would go
in separate Nyalas and that they would address the strikers from within the
Nyalas. Mr Mokwena was not prepared to go to the mountain. He reiterated
Lonmins stance that they would only negotiate in a controlled environment
and only within established bargaining structures.

He set out Lonmins

position to be conveyed to the strikers as follows:

We are willing to engage our employees within the

structures that are known. In a very safe environment where
there are no weapons. Not on the mountain. So we are
291

Transcript of meeting between Maj Gen Mpembe, Mr Mokwena and the Trade Union Presidents,
exh 004

179
willing to meet our employees through their structures,
through their leaders to discuss any issue. Not when they
are armed.

Not when they are actually outside Lonmin

property .

So when the workers are back, disarmed, tomorrow, tonight,

through their leaders we will meet them. That is our position.
So we are not against meeting, discussing issues with [our]
employees through their right structures. We are prepared to
do that.

The visit by the two union leaders at the koppie

1)

The union leaders then were taken to the koppie in separate Nyalas. Mr
Zokwana spoke first from within his Nyala through a loudspeaker.

292

The

strikers refused to listen to him and he had to abandon his address. The
AMCU delegation had a friendlier reception.

An AMCU official in the

Mathunjwa team started off by saying, Phantsi nge Gundwana phantsi,

which loosely translated means, Down with traitors down (traitors in this
context clearly meaning workers who were not prepared to take part in the
unprotected strike).

292

Exhibit BB6, transcript of video of address by Zokwana and Mathunjwa at koppie on 15 August
2012,

180
2)

Mr Mathunjwa told the strikers that he had asked the employer to give them
a guarantee that if the strikers went back to work it would talk to their union,
namely the structures the RDOs had chosen so that they could get what they
wanted. He further advised the strikers that they should go back to work so
that if the negotiations broke down they could approach the CCMA for
arbitration so that any subsequent strike in which they might engage would
be protected. According to him the strikers thanked him and told him that
they understood the message from the employer but said that as it was
getting dark he must come back in the morning and that they (i.e Mathunjwa
and his team) would see how they would go back to work. There were two
subsequent debriefing sessions thereafter, one between the police and the
AMCU team, the other between the police and the NUM team.

293

Debriefing of Mr Mathunjwa and Mr Zokwana

1)

At the AMCU debriefing Mr Mathunjwa came across as confident that the

strikers would lay down their weapons the next day. Indeed it is correct to
say that he was overconfident. But he did not give the police an unequivocal
undertaking in this regard, as Major General Annandale conceded.294 He
said expressly that he did not have a specific answer as to what would
happen the next day but he added that he believed that the next day would

293
294

exh GGG 4, transcript of both debriefing sessions,

Day 91, Maj Gen Annandale, p. 9710

181
be the day of joy for everyone. Major General Annandale also said that Mr
Mathunjwa had asked the police for an undertaking that they would not take
action against the strikers that night as the strikers wished to spend the last
night on the koppie before discussions would resume at 09h00 the next
morning.

2)

At the debriefing between the police and the NUM team Mr Zokwana said
that the strikers should not be allowed to remain armed. He also said that
the culture of lawlessness could not, as he put it, be encouraged and
promoted. Major General Mpembe in reply said:295
I need to do my job and you also tell me to remove
firearms. I cannot go there and disarm people. It would
be bloodshed. I need to go in a specific house [and]
disarm them.

That is the only way. You have your

members there inside. Beating this elephant bit by bit

because me going there to the mountain, disarming
people, it is going to be bloodshed. That one I can
assure you.

You have to give me to say which

houses, which people and I need statements.

I need

evidence that I should now start doing my work. My job

is to get these people disarmed. 24 hours I am here. I
need to get that information. So as a union you need to
work around the clock with that Here it is that the police
are shooting, are killing people and we do not want to go

295

Day 83 Annandale, p. 8792

182
that route but at the same time we are also not prepared
that our members should die but we have a duty to
disarm.

3)

Later, after Mr Zokwana had said that the local leaders of NUM should be
able to identify people who could assist and who offered co-operation, Major
General Mpembe said:

I cannot go to the mountain, it is not has never been

strategically in my training. How do I disarm somebody
with an axe as I have a firearm. It will never work. There
is no training in the whole world to be like that.

4)

As the evidence leaders correctly submit,296 Major General Mpembe clearly

foresaw bloodshed if the police went in to disarm and disperse the strikers
and he was realistic in that regard. Despite this foresight SAPS moved to
the tactical phase without putting in place any substantive measures to
mitigate against bloodshed and the loss of life.

The SAPS leadership

appeared to have reconciled itself to the notion that bloodshed was a real
possibility, if not an inevitability.

296

ELs Heads, para 591

183
D

The National Management Forum

1)

While Major General Mpembe was debriefing the NUM and AMCU teams at
Marikana, the National Commissioner and Lieutenant General Mbombo were
attending a meeting of the National Management Forum (NMF) of the SAPS,
which was being held at Midrand. The meeting was also attended by the
Provincial Commissioners of the other provinces as well as the Divisional
Commissioner for Operational Response Services, the Deputy National
Commissioner Operational Response Services and the Acting Divisional
Commissioner Crime Intelligence.297

2)

It is now common cause that the decision that the strikers would be forcibly
removed from the koppie by the police on 16 August 2012 if they did not
voluntarily lay down their arms was not taken by the tactical commanders on
the ground at Marikana on that day but rather by Lieutenant General
Mbombo and endorsed by the SAPS leadership at an extraordinary
session of the NMF held after its ordinary meeting was over on the evening
of 15 August 2012. Some of the members had left but those present apart
from the National Commissioner, were all Provincial Commissioners and the
Divisional Commissioner for Operation Response Services and the Head of
Crime Intelligence.

297

exh JJJ 177 Minutes, Extraordinary session of NMF,

184
3)

The information made available to the Commission regarding this meeting is

limited.

In an endeavour to obtain more information on the point a

questionnaire was sent to the members who were present there and they
were asked to submit affidavits to the Commission answering the questions
posed. Two of those members, both of whom are no longer members of the
SAPS, failed to respond.

4)

The answers that were forthcoming were correctly described by Advocate

Budlender SC, the senior evidence leader, as a disgrace. He motivated his
comment as follows:298

Chair, if one analyses these statements one is left, to be

absolutely blunt, with a feeling of absolute despair. These
are the most senior people in the South African Police
Service. Theyre asked some very important questions by
a Commission which is investigating, as Mr Chaskalson
put it, the greatest catastrophe since we achieved
democracy, and the answers are evasive and they are
non-responsive.

5)

A very serious aspect of this matter is that it appears that SAPS deliberately
attempted to withhold from the Commission information about this meeting

298

Day 294, Submission by Mr Budlender SC, pp. 38686-38687

185
and concealed the fact, the very important fact, that the decision to go over
to the so-called tactical option was made not in the middle of the day on 16
August 2012 after the situation had escalated to such an extent that the
tactical option was the only appropriate way forward, but the day (or
evening) before when it was not known what the situation on the ground
would be when the tactical operation commenced.

6)

No mention of the meeting or the decision was disclosed in Exhibit L, the

SAPS presentation document, or on the SAPS hard drive. According to
Colonel Scott the meeting and the endorsement of the decision on the
evening of 15 August 2012 was not mentioned at the Roots conference,
which began eleven days after the shootings took place. The existence of
the meeting and the decision was brought to the attention of the evidence
leaders by a third party and only after they had made specific enquiries
about this meeting was the minute of the extraordinary session disclosed.
This was months after the National Commissioner had completed her
original evidence. In that evidence299 she said that at the NMF meeting
Lieutenant General Mbombo told her, as she put it, of a possibility of a
peaceful resolution being reached.

She stated that Lieutenant General

Mbombo said that she had been told that Mr Mathunjwa had promised that
the strikers would lay down their weapons at the koppie at 09h00 the next
morning and would thereafter leave the koppie.

The Provincial

Commissioner added that if this undertaking was not complied with, the
police would have to disperse the crowd. The minute is Exhibit JJJ177: its
299

Day 74, NC Phiyega, p 7943

186
terms appear to have been settled by the National Commissioner herself
(this emerges from e-mails emanating from her own office). It reads as
follows:

The National Commissioner opened the meeting and

requested

the

Provincial Commissioner North

West,

Lieutenant [General] Mbombo to brief the attendees on the

issue of the labour unrest in Lonmin mine in Marikana,
North West.

After deliberations the meeting endorsed the proposal to

disarm the protesting masses and further indicated that
additional resources must be made available upon need
identification by the Prov Comm, North West.

7)

Because she had not mentioned the meeting or the decision the National
Commissioner was recalled for further questioning on the point but what she
said was singularly unhelpful.300 She claimed to be unable to remember
most of what was discussed. What does appear from her evidence is that:

300

Day 288, Phiyega, pp 37392 et seq

187
(a)

The meeting was told that it was hoped that Mr Mathunjwa might be
able to persuade the strikers to lay down their arms and leave the
koppie when he met them at 09h00 the next day;301

(b)

The meeting was not told that it would not be possible to implement
the existing encirclement plan after 09h00;302

(c)

It is possible that the details of the plan to disperse the strikers were
discussed at the meeting but she could not recall whether this
happened;303

(d)

She denied that the meeting endorsed Lieutenant General

Mbombos proposal without knowing what the details of the
operation were;304 and

(e)

She suggested that there must have been a discussion in which an

assurance was sought that the possibility of bloodshed had been
adequately considered and that measures were in place to ensure
any bloodshed would be kept to a minimum but she herself could not

301

Day 288, Phiyega, p 37403

Day 288, Phiyega, p 37404
303
Day 288, Phiyega, pp 37409 - 37410
304
Day 288, Phiyega, p 37418
302

188
say that was so, and added that she was not able to give those
pedantic details;305

(f)

The decision which was endorsed was to be implemented the

following day but the National Commissioner when asked whether
Lieutenant General Mbombo conveyed to the meeting any pressing
reason why the operation had to be mounted the next day, answered
not that I know of.306 Lieutenant General Mbombo was also not
able to give much detail as to what was said and by whom during the
deliberations at the extraordinary session. She said that the meeting
was under an hour. She spoke for about ten minutes and briefed
those present on the issues of the labour unrest and she told them,
she said, that she had hoped that there would be a solution but if
this [is] not successful [my] intention was that we take the weapons
which are the result of the violence existing. Those present who
spoke said that they agreed with her decision. Those who were to
assist with the necessary resources for this operation agreed then
that they would do so.

8)

Immediately after the extraordinary session she telephoned Major General

Annandale, Major General Mpembe and Major General Naidoo and told
them of the decision that the strikers were to be disarmed the next day if
they did not voluntarily lay down their weapons.

305

Day 88, Phiyega, pp 37418 - 37419

Day 88, Phiyega, p 37447
307
Day 180, Mbombo, p. 21573
306

307

(The three generals

189
denied in evidence that they were informed by Lieutenant General Mbombo
of her decision but, as the evidence leaders correctly submit, these denials
must be rejected.308 It is clear from the telephone records that Lieutenant
General Mbombo telephoned them shortly after the meeting. Why would
she not have informed them of the important decision she made, which they
had to implement the next day? For what other reason would she have
telephoned them?

And, as will appear later, the first thing said at the

JOCCOM meeting of 06h00 the next morning was that that day was to be DDay.) Another telephone call she made was to Mr Sinclair of Lonmin.309 It is
overwhelmingly probable that she informed him also of her decision. At the
meeting she had with the Lonmin management on 14 August 2012 she had
stressed that she wanted the activities of Lonmin and the SAPS to be
coordinated.

310

It is clear from the evidence that part of the coordination

would have been the issuing by Lonmin of the ultimatum timed to coincide
with the police action to resolve the situation. And indeed by 06h29 on
Thursday 16 August 2012 Mr Mark Munroe, the Vice President of Lonmin,
had conveyed to Lonmin executive managers that the ultimatum had to go
out311, suggesting that he already knew of Lieutenant General Mbombos
decision, something which is highly likely in view of the fact that Mr Sinclair
reported to Mr Munroe.

308

312

Day 149, Mpembe P. 17044; Day 87, Annandale p. 8662; Day 193, Naidoo, P. 23634; EL HoA
para 596
309
Exhibit ZZZ 11 page 36
310
Exhibit JJJ 192 bis
311
Exhibit WWWW 3, E-mail from Munroe to Mokwena and others
312
Day 292, Mokwena p 38193

190
CHAPTER 11

THE EVENTS THAT OCCURRED ON THURDSDAY, 16 AUGUST UP TO SCENE 1

The following events on the 16th call for consideration and evaluation:

The events and issues leading up to the JOCCOM meeting at 13h30;

The JOCCOM meeting at 13h30;

The briefing and operation leading up commencement of the uncoiling of the

barbed wire;

Bishop Seoka;

The operation at Scene 1;

Attack on Nyalas on northern end of small kraal;

Intention of the strikers; and

Stopping the operation after Scene 1.

191
A

The events leading up to the operation at Scene 1

1)

It is clear that Lieutenant General Mbombos decision had been

communicated to the operational leadership by 06h00 the next morning
because the hand written notes taken by Captain Moolman (now Colonel) at
the meeting begin with the word D-Day313. These notes were first disclosed
to the Commission more than a year after it was established. Initially the
Commission was given a document which purported to be the typed minutes
of the meeting but which did not mention that 16 August 2012 was D-Day.
On the contrary it said that phase 3 of the plan would be implemented if the
situation escalated. This document, which is Exhibit TT4, which was given
to the Commission as part of the SAPS hard drive, was prepared at the
Roots conference. It does, however, say that if the strikers did not, as Mr
Mathunjwa had indicated that they probably would, lay down their arms,
what was described as a contingency (by which was obviously meant a
contingent plan) had to be in place and had to be prepared based on the
intelligence brief. (The intelligence brief, which was presented to the
meeting, indicated that the strikers were in possession of spears, assegais
and pangas, that they would decline to surrender them to the police, would
not leave the koppie and were prepared to fight if their demands are not met
which includes resisting the police.) There is no reason to believe that the
decision to have a contingency plan prepared was not made.

Brigadier

Calitz confirmed that this decision was made and agreed that Colonel Scott

313

Exh JJJ 168, handwritten notes of JOCCOM of 06h00 on 16 August 2012

192
was the obvious person to draft this plan.

314

(It is probable, however, that

this decision was not made at the JOCCOM meeting but sometime
afterwards, because it is not mentioned in the hand-written notes.)

2)

After the meeting the SAPS continued with phase 2, which had been
implemented on the two previous days, with one significant difference,
namely the Nyalas with the barbed wire trailers, which had been kept out of
sight of the strikers so as not to provoke them were pre-positioned so that
they could uncoil the wire if it was needed. At 09h30 Lieutenant General
Mbombo addressed a press conference at which she said:315

I think the question that relates to that Im saying we are

ending the strike today, what do I mean.

I mean that

remember that we said our intention to disarm the people,

and also our intention to [inaudible] the people that they
leave, that people dont gather in this area where they are,
and that is what we wish to do today, and I said [inaudible]
we wish that we will do that still amicable, meaning we will
ask them to leave, but then I dont want to explain to you if
they dont, what then. What I told you is today we are
ending this matter.

314

Day 177, Calitz pp. 21231-21232

Exh AA 13, transcript of Lt Gen Mbombos media conference

315

193
3)

After the press conference she had an interview with eNCA in which she
said:316
The plan is that we intend to ensure that today we end
this strike. If they resist, like I said, today is a day that we
intend to end the violence.

4)

It is clear that Lieutenant General Mbombo foresaw there was a high risk of
bloodshed if her decision were implemented during the course of 16 August
2012 and it was clear, at some time after 09h00, that the voluntary
disarmament Mr Mathunjwa had overconfidently predicted was not going to
happen. Her conversation with the Lonmin management on 14 August 2012
seems to indicate that she was aware of the original phase 3 plan of
encirclement. If so, it is probable that she knew that it could not be carried out
if there were 3000 to 4000 strikers on the koppie. She should therefore have
foreseen that the relatively risk free original phase 3 could not be implemented
on 16 August 2012 after 09h00 and that as she herself had told the Lonmin
management on 14 August an attempt to disarm the strikers would lead to
blood. She also said that before 09h00 on 16 August 2012 Major General
Mpembe and Major General Annandale told her that there was a possibility of
people being injured but she was assured that all endeavours would be made
to avoid spilling of blood.317

316
317

JJJ 92, video of Lt Gen Mbombos interview with eNCA at 0.08 and 0.38
Day 181 PC Mbombo pp. 21725 - 21726

194
5)

It is also clear that the commanders on the ground at Marikana who were
going to implement the decision taken the previous night by Lieutenant
General Mbombo and endorsed by the extraordinary session of the NMF must
have foreseen that there was a high risk of bloodshed. Reference has already
been made to what Major General Mpembe had said the previous evening to
Mr Zokwana and the intelligence information placed before the JOCCOM at its
06h00 meeting.

Either Brigadier Calitz or Colonel Merafe ordered 4000

additional rounds of R5 ammunition for delivery to Marikana. The ammunition

duly arrived at the JOC in the course of the afternoon but was sent back by
Brigadier Pretorius because it was not needed. Colonel Merafe says that
Brigadier Calitz placed the order318, while Brigadier Calitz denies this.319 It is
not necessary for the Commission to endeavour to resolve this dispute of fact:
what is significant is that one of them (it does not matter who) thought that
they were needed. A further indication that a senior member of SAPS at
Marikana foresaw a bloody confrontation is the fact that Colonel Madoda and
Colonel Classens, at the instance of Brigadier van Zyl, requested the
presence at Marikana of four mortuary vehicles (which would have provided
for the removal of sixteen corpses)320. In the event only one hearse was
available and it arrived at Marikana shortly after 13h00.

6)

A particular problem with which the SAPS had to deal was the fact, as
pointed out earlier that their plan for phase 3 (the encirclement plan) could

318

Day 217, Merafe, pp 26693 26694 and Exh JJJ 186

Day 156, Calitz, pp 17655 - 17662
320
Exh HHH 66 and 67, Exhibits JJJ 180 to 184 and Exh JJJ 193
319

195
only be implemented early in the morning when there were relatively few
strikers on the koppie.

This plan was relatively risk free: it had been

designed by Colonel Scott with the assistance of Colonel Merafe and other
POPs officers and accepted by the JOCCOM, at a meeting attended by
several POPs officers. Attempts were made by SAPS to indicate that it was
abandoned before 16 August 2012 and replaced by a new plan, to disperse
the strikers from the koppie and to disarm and arrest the more militant ones
(what was referred to in the evidence as the DDA plan). It was suggested,
for example, that it could not be implemented because there was not enough
barbed wire but the evidence indicated that the SAPS ordered more wire
from Lonmin and that Lonmin had enough wire available to deliver to the
SAPS as and when it was needed.321 There also an absurd suggestion that
it would have been inhumane to encircle the strikers who were on the koppie
because that would have exposed them to the cold Highveld winter air this
in the case of strikers who had elected to spend the night on the koppie!322

7)

Colonel Scott testified that between 16 August 2012 and the Roots workshop
he had recalled the discussions about difficulties with the encirclement plan
taking place only on 16 August 2012 itself, after the 06h00 JOCCOM. At
some stage at Roots or later he apparently became convinced that these
difficulties had already been identified by Wednesday, 15 August.

The

Commission is satisfied that it is overwhelmingly probable that his original

recollection was correct. A number of documents which he had prepared
during the period from the evening of 16 August to 21 August relating to the
321

Day 134, Scott, p 14246 and pp 14250 - 14251

Exh JJJ 50 (slides 9, 10 and 13); Exh JJJ 100; Exh JJJ 43 (esp slides 12 and 13); JJJ 101A; Exh
JJJ 102B1 and Exh JJJ 101 B (slides 24, 28 and 30)
322

196
operation were found on his computer which became available to the
evidence leaders during the course of his cross-examination.

All were

consistent with the tactical plan having been changed after the 06h00
JOCCOM meeting and before the 13h30 JOCCOM meeting. The barbed
wire Nyalas that were pre-positioned in a line in front of the koppie in a line
stretching from the power station on to the south were placed on the line that
was going to be used to encircle the koppie under the original encirclement
plan and considerably closer to the koppie than would have been the case if
they had followed the ostensible instructions relating to the DDA plan.
323

Colonel Scott, despite the fact that he had the whole morning from after

he had finished working on the cordon and search application, at about

08h54, to work on the details of the new plan and to have a document
prepared setting out the details for the use of the commanders, had no
documents at all to give the commanders and merely briefed them off a
single Google Earth diagram on the screen of his laptop.

324

(A copy of the

electronic file he used is reproduced in Exhibit L, slide 18; he used it without

the text boxes and arrows which he added later.) When asked what he did
during the morning he said he could not remember. He commented that he
would have had printouts ready if he had received the instruction to draw up
the plan earlier and he indeed conceded also that his earlier recollection may
well have been correct.

323
324

Exh L, slides 149 and 152 and Exh JJJ91

Day 135, Scott, pp 14337 - 14338

197
8)

The barbed wire Nyalas arrived at their positions on the field in front of the
koppie between 10h34 and 10h44. The positions they took up were closer
to the koppie than they were supposed to be, as indicated on a gridded map
and reproduced on slide 149 on Exhibit L, and were in fact, as already
stated, on the line that had been intended as the line along which they were,
under the encirclement plan, to have encircled the koppie. The arrival of the
barbed wire Nyalas provoked an aggressive response from the strikers,
something which Colonel Scott had anticipated would be the case when he
had originally directed that they remain out of sight of the strikers. The JOC
Occurrence Book, in an entry made at 11h20, states that Brigadier Calitz
reported that Mr Noki aggressively asked the SAPS to remove the barbed
wire Nyalas and stated that he would not ask again. This appears to relate
to an incident which took place at about 10h50 (shortly after the barbed wire
Nyalas took up their positions) because Mr Noki can be seen on a video
returning to the strikers at the koppie from the direction of Papa 1, the
negotiation Nyala, at about 10h52 in a state of some agitation. Brigadier
Calitz testified that he explained the purpose of the barbed wire to Mr Noki.

9)

Shortly before midday Nyala 6, the last of the Nyalas pulling barbed wire
trailers was moved on the instructions of Major General Annandale from its
original position at the northern end of the line beginning at the power station
to a position south of the small kraal. This was done because groups of
strikers congregated directly opposite it and it was feared that it might be
isolated in its original position. The moving of this Nyala subverted the logic
of the SAPS plan, which had been to screen the strikers away from Nkaneng
and to force them to move in a westerly direction off the koppie, by opening

198
up a route for the strikers from the koppie in an easterly direction, toward the
neutral area and, if they wanted to go there, to Nkaneng.

325

As will become

apparent later the moving of Nyala 6 was to have inadvertent but fatal
consequences for 18 strikers.

10)

As is set out in Chapter 21 of this report, Mr Mathunjwa did not go to the

koppie at 09h00 and only went there at about 12h35. He and his colleagues
left the koppie at about 13h25 and returned to the JOC at about 13h50 when
the 13h30 JOCCOM meeting was still in progress. At about 12h25 Captain
Dennis Adriao, the SAPS liaison officer, informed the two SAPS video
operators, Warrant Officer Masinya and Warrant Officer Ndlovu, who were
on the koppie, that the strikers had identified them as police spies and that
they might be killed if they remained in the general media group. He told
them that they should withdraw from that place. They accordingly left and
went back to the JOC.

326

Why they went back to the JOC and did not go to

the neutral area or into one of the Nyalas, where they would have been safe
and able to take video footage of the strikers and their actions, was never
explained.

The absence of SAPS video footage of all phases of the

operation has significantly hampered the Commission in its work. On 20

July 2012, just under four weeks previously, the National Commissioner had
issued a national instruction, entitled Police Order Policing (POP): Use of
Force During Crowd Management, in paragraph 3.3 of which POP
Operational Commanders were instructed to ensure that video footage is

325
326

Day 135, Scott, pp 14335 - 14336

Exhibit L, slide 170; Exh HHH8, W/O Masinga

199
taken of the crowd through the phases and including during the use of
minimum force. 327

The JOCCOM meeting at 13h30

1)

At the JOCCOM meeting held at 13h30 Major General Annandale raised

several matters on a checklist so as to ensure that everything was in place.
One of them was enough video operators to capture the sequence of events
as it unfolded.328 When asked in cross-examination who was responsible for
ensuring that his instruction was carried out, he said that the two SAPS
operators themselves were responsible for this.329 When it was pointed out
to him that they were not at the JOCCOM meeting he said that he assumed
this instruction would be conveyed to them by Colonel Scott and Brigadier
Pretorius during the briefings they were to give to the commanders after the
JOCCOM meeting. When the matter was raised in cross-examination with
the National Commissioner she said that she found the excuse given for the
withdrawal of the video operators and the resultant absence of video
material recorded by them to be acceptable.330

2)

The failure by SAPS to record video footage of the briefings that occurred on
16 August 2012 and of the ensuing operation was in direct violation of the

327

Exhibit S
Exhibit EE
329
Day 79, Annandale, p 8442
330
Day 75, Phiyega, p 8067
328

200
national instruction referred to and that the excuse proffered therefor was
plainly not acceptable.331

3)

The original reason given by the SAPS for the calling together of the
JOCCOM at 13h30 was the escalation of tension at the koppie and the need
for a decision as to whether to proceed with phase 3, the so-called tactical
phase of the plan. As became clear once the Commission learnt about the
extraordinary session the previous evening of the NMF and its endorsement
of Lieutenant General Mbombos decision or proposal that the tactical phase
was to be implemented on 16 August if the strikers did not agree to lay down
their arms and leave the koppie, this reason is not the correct one. The
original plan which had been on the table of the JOCCOM and approved by
it could no longer be implemented. A new plan was needed. It is probable
that the reason the 13h30 JOCCOM meeting was called was the fact that
there was no sign that Mr Mathunjwa would succeed in persuading the
strikers to leave the koppie and, if (as decided at the extraordinary session of
the NMF) the tactical phase was to be implemented before the end of the
day, it was important that this should happen while there was still enough
light.

4)

According to the minutes of the 13h30 JOCCOM meeting at the beginning of

the meeting Lieutenant General Mbombo instructed Major General
Annandale to proceed with the implementation of phase 3 of the operational
plan.

332

She indicated (either at the beginning of the meeting as she said in

evidence, or at the end (as the minutes say) it is not necessary to make a
331
332

Evidence Leaders Heads, para 656

Exh EE

201
finding on which version is correct) that she had already informed the
National Commissioner of the situation then current, that a deadlock was
reached with negotiations and that phase 3 of the operational plan would be
executed.

Major General Annandale told the meeting that the approach

would be as follows:333

(a)

The group on the koppie would be communicated with to try again

to negotiate with them to lay down their weapons and leave the
koppie;

(b)

They were to be asked to leave their dangerous weapons on the

koppie as they were leaving it;

(c)

After this was done the strikers who refused to leave would be
searched on the koppie and the whole area was to be swept for
dangerous weapons;

(d)

If the strikers refused voluntarily to lay down their weapons and to

leave the koppie, phase 3 of the operation would be implemented as a
last resort.

5)

According to the minutes he then instructed Colonel Scott to present the

operational plan to the meeting.334 According to Colonel Scotts evidence

333
334

Ibid
Ibid

202
335

what actually happened was that Major General Annandale asked the

members in the JOC at the outset how they were going to execute phase 3.
At that stage the detail of how phase 3 was going to be executed was still
something that had to be debated.

According to Colonel Scotts

understanding clarity was sought on the actual application of the strategy with
regards to the implementation, which had not been discussed at that point.
He concluded that though they had a dispersal and disarm strategy, detail
hadnt entered the picture at JOCCOM. He then asked if he might suggest a
course of action whereupon he was given the floor to brief the JOCCOM. At
that point none of the members with POP experience was there: they were all
in the field. 336

6)

He then explained on the Google Earth satellite photograph he had printed out
for the commanders that morning for the phase 2 deployment where he felt the
dispersion should take place, with the different units in their different roles and
areas of responsibility.337 When he had finished Major General Annandale
requested any further inputs and whether the concept was acceptable. None of
the JOCCOM members present raised any objection and the concept was
accepted. Those present made no further inputs.338 The presentation included
the following:339

335

Day 135, Scott, pp 14315 7

Day 135, Scott, pp 14317 8
337
Day 135, Scott, pp 14316
338
Day 135, Scott, p 14317
339
Exhibit EE
336

203
(1)

The repositioning of the barbed wire for the

protection of the SAPS members and soft top
vehicles;

(2)

Stage 3 Dispersion into smaller groups, encircle

and disarm

Phase 1 Enclose SAPS safe area with

barbed wire to prevent advancement onto the
SAPS by militant protestors.

Phase 2 Form up two lines:

o

POPs and Nyalas with water cannons in

the middle

Use of force continuum

Advance line

Move to water cannons

Stun grenade and tear gas

Rubber bullets

TRT to be deployed as a back-up for POP

during dispersion and to execute arrests
and secure high ground.

204
o

STF, NIU and TRT to sweep koppies after

POP dispersion.

Phase 3 Encircle and disarm

If protestors do disperse into smaller

groups they must be encircled and
isolated

and

all

persons

properly

searched for dangerous weapons and

arrests to be effected.

7)

Colonel Scott was, as has been said, the only person who gave any detail to
the plan at the meeting. He was not aware of Standing Order 262, the SAPS
Standing Order dealing with Public Order Policing, nor of its contents.340 After
Colonel Scotts presentation Major General Annandale went through a check
list to ensure everything was in place. He then instructed Colonel Scott to
ensure that all commanders were briefed accordingly, the briefing to take
place at FHA 1. Brigadier Pretorius was instructed to accompany Colonel
Scott. Major General Annandale instructed them to report back to the JOC at
15h15 as he wanted the operation to commence at 15h30. The meeting then
adjourned at 14h00.341

340
341

Day 135, Scott, pp 14319 14320

Exhibit EE

205
C

The briefing and operation leading up to commencement of the

unrolling of the barbed wire

1)

Colonel Scott and Brigadier Pretorius arrived at FHA1 at 14h30. He did not
brief them with any written materials but referred to the gridded plan he had
handed out during the 06h00 JOCCOM,342 which no longer reflected the
position on the ground because, as said previously, Nyala 6 had moved in a
south easterly direction, thus changing the shape and orientation to the
barbed wire cordon and opening up the main road to Nkaneng.

2)

Colonel Scotts briefing to the commanders at FHA1 was the first time that
they were introduced to the new tactical plan.

343

He briefed the 20

commanders off a single Google Earth diagram on the screen of his laptop,
while he sat inside a Mercedes Vito vehicle so that there was shade over the
screen of the laptop. He pointed the screen out towards the commanders
who had gathered around the vehicle and explained the plan with reference
to the icons on his screen.

3)

344

The briefing lasted no more than 30 minutes.

345

The commanders had

approximately 20 minutes to brief the members under their command and for
this briefing they had no visual aids whatsoever, Captain Loest, the
342

Exhibit HHH 20, Consolidated Statement of Col Scott, para 13

Day 135, Scott, p 14329
344
Day 135, Scott, p 14338
345
Day 135, Scott, p 14340
343

206
commander of the neutral response team of TRT members described the
briefing as inadequate.

346

It is clear that certain basic factors of the plan

were not communicated to the commanders for example Brigadier Calitz

was unaware that Colonel Scott required the six barbed wire Nyalas to uncoil
their wire simultaneously: if that had been done the whole exercise would
have taken approximately two minutes. Brigadier Calitz instructed that the
wire be uncoiled consecutively, an exercise which took over nine minutes.
Colonel Scott wanted a simultaneous roll out of the wire to prevent the
strikers from crossing the line.

347

He was not aware of the fact that a

simultaneous roll out was not practically possible and that the wire was going
to be uncoiled consecutively.

1)

Bishop Seoka

Bishop Seoka, the Angilcan Bishop of Pretoria and the Chairman of the
South African Council of Churches, arrived at the koppie at a time he
estimated as being at about 13h00.

348

He spoke to some of the strikers

leaders, including Mr Noki. They asked him to secure the attendance of the
Lonmin management to address them. He then went to the area near the
JOC and met the Lonmin management to convey to them the strikers
request.
346

Mr Kgotle said that the management would not meet with the

Day 229, Loest, p 28352

Day 154, Calitz, p 17248; Day 137, Scott, p 14564
348
This estimation cannot be correct. The bishop must have arrived at the koppie after the end of Mr
Mathunjwas first visit, i.e., at some time after 13h30.
347

207
strikers as they were criminals and murderers in that they had killed their
people and security personnel.

Mr Mokwena asked the Bishop to

accompany Lonmin management to Lieutenant General Mbombo and put his

proposal.

When he spoke to Lieutenant General Mbombo she was

unfriendly, anxious and uncooperative. 349

2)

Mr Mokwena then told the Bishop to go back to the koppie and tell the
strikers that Lonmin management would talk to them, but only if they
surrendered their weapons, elected five to eight people to represent them
and dispersed from the koppie. Just before the Bishop left for the koppie
someone whispered in Mr Mokwenas ear, whereupon he told the Bishop he
could no longer return to the koppie as it had been cordoned off and was
now a security risk zone. The Bishop then left and returned to Pretoria
without going back to the koppie. 350

The operation at Scene 1

1)

At Scene 1 sixteen persons died consequent upon the events at the scene
as depicted in the aerial photograph Annexure I.

349
350

Exh M, affidavit of Bishop Seoka

Ibid

208
2)

3)

The names of the deceased are -

(a)

Michael Ngweyi (body N on the Annexure)\

(b)

Patrick Akhona Jijase (body K on the Annexure)

(c)

Bonginkosi Yona (body I on the Annexure)

(d)

Andries Motlopola Ntsenyeho (body J on the Annexure)

(e)

Mzukisi Sompeta (body G on the Annexure)

(f)

Jackson Lehupa (body E on the Annexure)

(g)

Mongezeledi Netenetya (body F on the Annexure)

(h)

Mphangeli Tukuza (body D on the Annexure)

(i)

Thobisile Zibambele (body C on the Annexure)

(j)

Cebisile Yawa (body L on the Annexure)

(k)

Mgcineni Noki (body B on the Annexure)

(l)

Khanare Rlias Monesa (body A on the Annexure)

(m)

Bongani Nqongophele (body M on the Annexure)

(n)

John Kulwano Ledingoane (body O on the Annexure)

(o)

Babalo Mtshazi (body N on the Annexure)

(p)

Thembinkosi Gwelani (body P on the Annexure)

During the course of the day, and according to the SAPS witnesses, Mr Noki
and another striker threatened violent action against the police.

These

threats would have been audible to at least some of the SAPS members in
the field. There is objective evidence in respect of at least four of the threats
made. This evidence is set out later in this Chapter.

209

4)

The operation did not commence at 15h30 as General Annandale had

instructed. This was because the police had to wait until Mr Mathunjwa left
the area in front of the koppie after making his second impassioned appeal
to the strikers to prevent the loss of blood and to go back to work. Mr
Mathunjwa left just before 15h40.

Shortly after he finished his address

groups of strikers started to leave the koppie,351 and some of them followed
the route along the path running past the mouth of the kraal at scene one to
gain access to Nkaneng. This path had been used by many of the strikers
throughout their occupation of the koppie. On 16 August the SAPS allowed
movement to and from the koppie up until about the time when Nyala 4 was
uncoiling its barbed wire.

5)

The operation commenced at 15h40 just after Mr Mathunjwa left when

Brigadier Calitz gave instructions for the uncoiling of the barbed wire.

6)

After Nyala 1 had started rolling out its barbed wire and while strikers were
moving along the path to Nkaneng Nyala 6 moved from a position on the
kraal side of the path to a position on what can be described as the SAPS
side of the path.352 It was put in cross examination that the strikers may well
have interpreted this as an indication that SAPS had no objection to their
going along that route. The militant group of strikers remained at this stage

351

His car can be seen driving away from the koppie and the strikers can also be seen leaving the
area on Exh L. slide 193
352
A comparison of Exh L, slides 191 (taken when Nyala 1 started uncoiling its wire) and slide 193
(taken when Nyala 1 has reached Nyala 2) shows the two positions of Nyala 6 at this time

210
in its position on the flat area in front of the koppie. The roll-out of the
barbed wire proceeded as follows:

(a)

Nyala 1 started to roll out its wire shortly before 15:42:35.

(b)

By 15:46:28 strikers were already moving off koppie 1 in large

numbers.

(c)

By 15:46:40 Nyala 2 was rolling out its barbed wire and it reached
Nyala 3 at 15:46:58.

(d)

Less than a minute later Nyala 4 (which had initially been positioned
to the south of a mast situated close to the line along which the wire
Nyalas had been placed) started moving in a northerly direction from
Nyala 3 and closer to Nyala 5. By 15:47:51 it was still however, a
significant distance to the south of the mast.

(e)

By 15:48:27 Mr Noki was leading what appears to be the militant

group of strikers off the koppie. By 15:48:56 he had passed the
mast and was therefore north of the mast. By 15:49:27 all but four of
what may be described as the lead group of strikers had passed the
mast.

211
(f)

At 15:50:08 Nyala 3 started rolling out its barbed wire and moving
away from Nyala 2.

(g)

At 15:50:22 it reached Nyala 4 at a position some distance south of

the mast. At this stage most of the lead group of strikers had already
moved around Nyala 5, which was slowly moving back into the
neutral zone.

(h)

By 15:50:50 Nyala 5 had moved some distance south of the lead

group and had stopped within the neutral zone.

(i)

At 15:50:52 Nyala 3 and Nyala 4, which had moved off together,

stopped at the mast, where Nyala 3 remained.

(j)

At 15:51:26 Nyala 4 started to roll out its barbed wire and had moved
away from Nyala 3 at the mast.

(k)

At 15:52:03 Nyala 4 reached the western edge of the kraal. To do

so it cut off the strikers who had been proceeding slowly towards the
point at which the path to Nkaneng passes the kraal on its western
side.

(l)

Neither of the water cannons had by this point moved from their
starting positions in the SAPS vehicle area to the south of the neutral
zone and no teargas or stun grenades had been used.

212

7)

These findings are based on an exhaustive analysis of the video material

placed before the Commission by the evidence leaders and the SAHRC
together with the representatives of the families of 36 of the deceased,
including the evidence of Mr Dagan, which provided the Commission with
synchronised, chronological and time-coded footage of the events leading up
to and at Scene 1.

353

The Commission has checked all the references given

and satisfied itself that they are correct.

8)

The SAPS case on the movement of the strikers from the koppie to the kraal
is set out in Exhibit L, slides 194 to 204. In summary, the case presented
was that the strikers made two attempts (called incidents 1 and 2) to enter
the neutral zone while Nyala 4 was uncoiling its barbed wire but were
repelled each time. Incident 1 allegedly consisted of an attempt by the
strikers to enter the neutral zone in front of Nyala 4 before it started rolling
out its barbed wire, which failed because Nyala 4 cut the strikers off by
driving towards the kraal quickly, passing Nyala 5 while it was rolling out its
wire. Incident 2 allegedly consisted of an attempt by the strikers to enter
the neutral zone in front of Nyala 4 before it reached the kraal, which was
foiled by POP members from Nyalas 3 and 4, who engaged the strikers with
rubber balls and tear gas and were assisted by POP members from the
northern

flank

(under

Lieutenant

Colonel

Pitsi)

and

negotiations/monitoring group (under Lieutenant Colonel Mere).

353

Exhibit UUUU 10

the
It was

213
further alleged that two water cannons on the scene started spraying the
strikers to prevent them from entering the neutral zone, whereafter POP
members applied non-lethal force in the form of stun and tear grenades and
rubber bullets. As a result of this application of less than lethal force Nyala 4
had, so it was alleged, time to close the gap with the remaining barbed wire.
It was also alleged that the strikers fired bullets at the police Nyala,
described as Papa 5, which caused damage which can be seen in Exhibit
L, slides 201 and 202.

9)

The video evidence summarised above refuted the SAPS allegations in

respect of incidents 1 and 2. In addition not a single SAPS witness gave
written or oral evidence to support the SAPS version as set out in Exhibit L
as regards incident 1. As far as incident 2 is concerned, the evidence of
Captain Loest, Lieutenant Colonel Classen and Captain Thupe was that they
were not aware of any confrontation between the police and the strikers at
the point where Nyala 4 reached the kraal. The absence of teargas, stun
grenades or water cannons at incident 2 was put to Brigadier Calitz on the
basis of the video evidence provided by the Rowland Headgear Camera,
Exhibit KKK9.

The SAPS were invited to traverse the issue in re-

examination if they found any basis to dispute that the video footage referred
to showed that there were no stun grenades or teargas used at incident 2.
They did not do so. As regards the assertion that bullets were fired at Papa
5, videos of Papa 5 arriving at Marikana on 15 August were shown,354 from
which is appeared clearly that the damage in question was there already on
354

These can be seen in the Evidence Leaders presentation, Exhibit JJJ 194

214
15 August. No explanation was offered by SAPS as to how it happened that
this damage was passed off as damage caused by strikers on 16 August.

Attack on Nyalas at northern end of small kraal

1)

There is a substantial body of affidavit evidence to the effect that a number

of strikers attacked Nyala 11 at the northern end of the small kraal after the
Nyala had proceeded up the passage way between the small kraal and the
corrugated iron shack to the east of the kraal.

2)

Although this evidence was not given orally and was not tested by cross
examination, the Commission is satisfied that it can be accepted.

It is

noteworthy in this regard that when Brigadier Calitz gave evidence on the
point, counsel for the Injured and Arrested Persons did not specifically
challenge this evidence.

He put Brigadier Calitz that Mr Magidiwana, like

the other strikers, was simply on his way home and had no intention to
attack anyone.355

Furthermore, as the evidence leaders pointed out in

paragraph 731.9 of their Heads of Argument this is evidence which has to

be accepted even if one can discount the SAPS versions of attacks at
incidents 1 and 2. They pointed out in this regard (in footnote 1146) that a
number of the deponents on this point testify to several facts than are plainly
355

Day 170, Calitz, p. 20069-20071

215
adverse to the SAPS case on other points. There is thus no reason to
disbelieve what they say on this point.

3)

Brigadier Calitz said that there was definitely a confrontation with the strikers
and Papa 11.356

They physically went past the vehicle, chopped at the

vehicle and he could see it clearly from where he was in his vehicle as they
went past Papa 11 in the direction of the kraal and that was when he gave
the order that the vehicles must move in between the crowd to disperse
them.357

4)

Brigadier Calitz explained that he saw the attack on Papa 11 which was in
front of him where the spears and the weapons were being struck against
the Nyalas and tyres.358 He also said that either stones were thrown at his
Nyala or strikers had shot at it. He could hear the sounds but was not sure
exactly what happened.

He said that he realised that the POPS were

already under attack and that is why they ended up throwing stun grenades
and shooting rubber balls. He realised that these measures had no effect
upon the strikers and that was why he gave the order for the Papa Nyalas to
drive amongst them because they were not being dispersed by anything
else. He said when they were shot with the rubber, it did nothing to them.359
They held their weapons high and began to storm and nothing that they were
doing had any effect upon them.

356

Day 154, Calitz, p. 17318

Day 154, Calitz, p. 17318
358
Day 157, Calitz, p. 17805-17812
359
Day 157, Calitz, p. 17812
357

216
5)

Warrant Officer Dewald de Vries, stationed at POPS in Pretoria, said that he

was the driver of Nyala P17 with the barbed wire trailer and he was under
the command of Colonel Makhubela. He said when the second Nyala drove
towards him, the crowd got very close to the police vehicles and threw
stones at the Nyala. They struck the Nyala with spears and pangas and
threw stones at those policemen who were outside the Nyala.

6)

Sergeant Asay Dzivhani, stationed with POPS in Johannesburg, said that he

was the crew of Nyala Papa 11 under Colonel Mere. They received an order
from Colonel Mere to block so that they can disarm the strikers. On arrival
next to the kraal, he saw Papa 11 being attacked with stones, pangas and
axes and that some of the strikers tried to open the door of the Nyala. He
was instructed by Colonel Mere to shoot rubber and he shot twelve rubber
rounds to disperse the strikers.

7)

Warrant Officer Joseph Nkosana, stationed at POPS in Johannesburg, says

he was stationed in Papa 1. He had a shot gun and forty rounds. He was
with the negotiators and Brigadier Calitz.

He said that at 15h30, three

persons came to Papa 1 and the person in the green blanket said that all
Nyalas and vehicles must leave or the police are going to die. He said when
the wire was deployed, the crowd moved forward and started to attack. He
said Papa 11 moved in to assist and the crowd attacked Papa 11 with
weapons. Papa 1 moved in to assist on the other side of Papa 11. He
opened the door of Papa 1 and used a stun grenade to try and disperse the
strikers but it had no effect on them and they carried on attacking Papa 11.

217
When the water cannon arrived and used water, he said the crowd attacked
the water cannons as well and he shot rubber bullets through the port holes
in the Nyala.

8)

Constable Ronny Khose, a member of POPS, said that he was the crew in
Nyala Papa 11. He was instructed by Colonel Mere to block. The crowd
attacked the Nyala by throwing stones and hitting the Nyala with pangas,
spears and axes and tried to open the Nyala door. He was instructed to use
rubber by Colonel Mere and fired ten shots from his shot gun.

9)

Warrant Officer Kanwanyamo, stationed with POPS in Potchefstroom, says

that he was the driver of Papa 3, one of the front line Nyalas and he saw the
attack on the Nyalas in front of him. He said the following members were
outside: Warrant Officer Mayano, Constable Nhkadivet, Constable Ntuli,
Constable Sephare and Constable Lethugile, who was the radio operator.
He said when the crowd were attacking the barbed wire Nyalas, Colonel
Mere instructed them to disperse the crowd and he instructed members to
help those members who were on the ground to protect them by shooting
the rubber. He called all the members back into the vehicle when he noticed
that live ammunition was being used.

10)

Constable Nkoko Mahwai, stationed at POPS in East Rand, said that he was
in Nyala 6 and he saw Nyala 3 deploy the wire and the strikers come very
close to his Nyala and even though tear gas canisters and stun grenades
were thrown, they were still advancing towards the Nyalas. He fired eleven

218
rubber rounds at them but they still advanced to the Nyala and he withdrew
back into his Nyala.

11)

Constable Moses Malesa said that he was in the crew in Papa 11 and when
they got the instruction from Colonel Mere that they must move right to
block, they did so. On arrival, their Nyala was attacked with axes, stones,
spears and pangas and the strikers tried to open the doors. Colonel Mere
gave them orders to disperse with rubber and he shot eight rubber rounds.
Colonel Mere then gave them instructions to move forward.

12)

Constable Matharaha, stationed in POPS Diepkloof, said he was the driver

of Nyala Papa 11 and as he drove to block, his Nyala was attacked with
stones, live ammunition, tyres were stabbed at and they tried to open the
doors.

13)

Captain Ephraim Mathibela said he was stationed with POPS in Pretoria and
he was in command of Papa 17, which is Nyala 4 with barbed wire. He said
as Nyala 4 rushed to close the gap towards the crowd, the strikers were
running towards the left of the Nyala, hiding from rubber bullets.

14)

Constable Lawrence Mokganedi, stationed with POPS Rustenburg, said he

was in Nyala BHL 093 B, under the command of Colonel Pitsi. He saw the
crowd run towards the Nyala and a striker in a brown jacket fired six shots at
the Nyala. The strikers ran towards members of SAPS who were on foot
and he fired nine rubber rounds towards them.

219

15)

Lieutenant SH Malobye, stationed with POPS at Rustenburg, said he was

the driver of Papa 1, that is Nyala BHL 093 B. While advancing, he saw the
strikers shoot at the Nyala and the windscreen and he saw them trying to
damage the tyres of the Nyalas in front of them.

16)

Captain Sefako Moselano, stationed with POPS in Pretoria, was the section
commander in Nyala 3 with barbed wire under the command of Colonel
Makhubela. He said as they finished deploying and Nyala 4 was ready, a
group of strikers were very near them and he saw the attack on Nyala 4
about sixty metres away and members from Nyala 3 went to assist Nyala 4
to deploy.

17)

Lieutenant Colonel Paulus Nthimkulu, stationed at POPS at Springs, said he

was the assistant commander to Colonel Makhubela on six barbed wire
Nyalas and their carts. As their wire was being deployed, his Nyala was
surrounded by strikers with spears, assegais and fire arms. A striker with a
red blanket produced a fire arm from under the blanket and shot at them. He
returned fired with three 9mm rubber bullets. He said the Casspir driven by
Captain Thulo, came to their rescue.

He ran to the Nyala and moved

forward to try to block them when he heard the sound of rifles shooting from
the crowd.

18)

Constable Talakani Ntakuseni Riusel, stationed with the TRT in Gauteng,

says he saw three strikers with fire arms as they approached.

220

19)

Constable Sakhile Philip Phakati, stationed with TRT in Soweto, said that he
saw the crowd throwing spears and stones as they approached across the
barbed wire and they were chasing the POPS to their Nyalas. He saw a
striker with a red t-shirt with stripes with a fire arm shooting in his direction
and he fired two shots.

20)

Lieutenant Comfort Ramagogodi, said he is stationed with POPS in

Rustenburg. He was inside a Nyala deploying barbed wire when one of the
strikers in the crowd, who was about three metres away from his Nyala, was
firing with a pistol.

21)

Constable Joko Lukas Rapilana, stationed with POPS in Potchefstroom, was

a crew member in Papa 2. He was on foot using rubber rounds but he had
to return to the Nyala for cover because the Nyala was being shot at on the
drivers door side and in the middle.

22)

Constable Ramahoko Victor Seeko, stationed at POPS Johannesburg,

Soweto, said he was a crew member in Papa 1 and he was there when the
threat was made to kill the police. He said the crowd that approached the
Nyalas was directed by the leader who had made the threats. He saw the
crowd attack the Nyala, trying to stab and deflate the tyres and to open the
door. He was instructed to assist and Warrant Officer Kgosa threw stun
grenades to disperse them. Another group ran towards Papa 1 and he shot
at this group with rubber bullets to try to divert them. As the group was

221
diverted, they turned to attack the water cannon and he also went to assist
there.

23)

Warrant Officer Nkululeko Kweyame of the STF in Durban said he was

inside the Casspir under the command of Lieutenant Colonel Gaffley. At
15h20, Lieutenant Ntombela instructed the Casspir and the Scorpion to the
scene where the negotiations were taking place. He was in the Casspir with
the door closed, moving along the front of the Nyala laying barbed wire.
Towards a corner, the strikers drew closer and threw objects and stones at
the Casspir. Others went under and around the Casspir to where the police
were on foot and that is when the shooting started.

24)

Warrant Officer Marthinus Jacobus Parsons was stationed at POPS in

Soweto and the driver of water cannon BRL 906 B with Warrant Officer CJ
Kruger as commander and Warrant Officer Dicks as the operator. He said
when the barbed wire was rolled out, the strikers moved alongside looking
for a gap while he sprayed them with water along the wire. Closer to the
kraal, he saw a gap between the Nyala and the kraal and moved in that
direction to spray water so that they do not come through the gap. The
strikers moved to the north of the kraal and he heard shots and he moved to
the other side of the kraal to block. At some stage, he heard shots and felt
as if something hit the roof of the water cannon which is not bullet proof so
he moved immediately to the west of the koppie. This would seem to be at
scene 2.

222
25)

Johnson Makwena, the driver of Nyala Papa 9 was present when the threat
was made by Mr Noki. He said as the razor wire was rolled out, the strikers
were moving alongside. Brigadier Calitz gave the order to move to block
and they did and a shot from a striker hit and damaged the right mirror of the
Nyala. Because of the shots being fired, he shouted that the Nyala door
should be opened to let the members outside jump in. He fired eight rounds
from his pistol to keep the strikers away and he drove alongside the water
cannon to the second scene.

26)

Constable Mathavha stationed at POPS in Johannesburg, said that he was

the driver of the Nyala and that he was instructed to drive the Nyala to block.
The Nyala was attacked with stones and live ammunition and the strikers
tried to stab the tyres and open the doors.

Intention of the Strikers

1)

After Nyala 4 reached the south western corner of the kraal and blocked the
route to the neutral zone on that side the TRT members moved to form a line
to block the gap on the other side between the kraal and a shack which was
surrounded by a wire fence.

360

Captain Loest conceded in his evidence that

they did this because it was clear to him that the strikers were coming round

360

Day 229, Loest, p 28316

223
the kraal and that any threat from them would have been in that gap.
Brigadier Calitz testified that the instruction to the TRT to form the line was
given by the TRT commanders.

361

Captain Loest in his evidence said that

when the TRT arrived at the koppie the TRT commanders received a further
briefing from Brigadier Calitz, who told them that their members would at
some stage get an instruction to form a basic line and they were to support
the POP and if the strikers were to break through and the TRT stood their
ground they would not get an instruction to shoot.

362

Lieutenant Colonel

Classen testified that he heard Brigadier Calitz say TRT move in.
363

Captain Loest said that he could not remember this (there were blanks in

his memory) but said that the order he gave to move in would not have been
given unless he had been passing on an order from Brigadier Calitz.

364

The

basic line was formed on the southern side of the road that ran past the gap
to Nkaneng.

2)

As stated above Nyala 4 had reached the kraal by 15:52:03, which meant
that from then on the only route the strikers could take if they wanted to enter
the neutral zone was to come around the kraal and move down the passage
way between the eastern side of the kraal and the fence surrounding the
shack opposite the kraal.

3)

The evidence leaders submitted365 there were two points where this route
could have been closed off by the SAPS. This is depicted on a photograph
in their Heads of Argument in paragraph 700. The first point, marked A,

361

Day 155, Calitz, p 17574

Day 229, Loest, p 28313
363
Day 236, Classen, pp 29479 29488
364
Day 229, Loest, p 28440
365
ELs Heads, para 700
362

224
was at the mouth of the passage way between the north east corner of the
kraal and the corner of the fence surrounding the big kraal to its north. This
is referred to as passage A. The second point, marked B, was at the end
of the passage way between the south east corner of the kraal and the
corner of the fence around the shack. This is referred to as passage B.
The Commission agrees with the evidence leaders submission

366

that an

operational commander with knowledge of the terrain and an appreciation

that he was dealing with a crowd that had the potential to attack the SAPS
should have anticipated a possible need to seal off the neutral zone by
closing passage A if the strikers attempted to advance into the neutral zone.
As far as passage B is concerned, the Commission is of the view that a
block at passage B would not have been appropriate, for reasons set out
below.

4)

Brigadier Calitz testified that a block of passages A and B was not part of the
plan.367 He should have realised that the wire rollout would take about 10
minutes and that there was a risk that the strikers would seek to enter the
zone. The gap which would be available for the longest time for the strikers
was the gap at the east of the kraal, which was never to be sealed by barbed
wire in terms of the plan. It was therefore a gap which might have to be
blocked. Even if that it was not foreseen originally it became foreseeable
when it became clear that the strikers appeared to be intent on entering the
neutral zone.

366
367

ELs Heads
Day 159, Calitz, pp 18182 18183 and pp 18244 18245

225
5)

It is not clear whether Brigadier Calitz issued an instruction to block passage

A (i.e. to close the gap in some way) when he realised that the strikers were
moving round the eastern side. At some point in his evidence he testified
that he did issue a command to block the strikers and indicated passage A
as the place where this block was to take place. At other points he said that
he had no intention and gave no instruction to block passage A.368 In fact he
testified that by the time he realised where the strikers were heading there
was no time to issue a command to block them.

6)

369

If he did issue such an order it was either not heard or misunderstood. That
this is so appears from the fact that it was not implemented.

What did

happen was that the Nyalas were arranged in a crescent shape which left
open the entire passage way through passages A and B. Brigadier Calitz
described the formation as a perfekte blok, 370 but could provide no
explanation for its shape and positioning which far from blocking the strikers
from entering the neutral zone had the effect, as things turned out, of
encouraging the lead group to go through the passage towards passage B
and ultimately into the fusillade of TRT fire.

7)

371

Counsel for the Families of 36 of the deceased argued that Scene 1 was a
trap in the sense that the strikers were channelled towards the TRT line so
that the TRT would forcibly disarm and arrest them. They submit that it is
unclear whether this involved a premeditated intent to kill the strikers and
they say that it is not necessary for the Commission to come to this

368

Day 159, Calitz, pp 18138 18143; p 18152; p 18182; p 18225

Day 159, Calitz, pp 18105 18106; pp 18153 18154; p 18150
370
Day 160, Calitz, p 18270
371
Day 160, Calitz, pp 18271 18286
369

226
conclusion. Their contention on this part of the case is that in channelling
them in this way SAPS acted with at least dolus eventualis.

For the

reasons set out in the following two paragraphs, the Commission does not
agree with this submission.

8)

The SAPS witnesses did not explain why the Nyalas were ultimately
positioned in the crescent formation, which had the effect of encouraging the
strikers to move first towards the POPS members and if they did not stop
them from advancing and withdrew, then toward the TRT line.

The

Commission accepts that the obvious inference is that this was done to
achieve that effect. According to Captain Loest Colonel Scott said at the
14h30 briefing that if during the dispersion operation the POPs members
could not contain the strikers and they broke through then the TRT would
form up in a basic line and stand their ground and by doing so discourage
the [strikers] from resisting dispersion and disarming.

372

When asked to

explain how this was to happen, Captain Loest said in his evidence that what
would have happened was that the TRT members, whose equipment and
attire were different from that of the POP members, would have tried with
their mere presence to discourage the strikers from carrying on with what
they were doing.373 Later he said that their only purpose was just to form a
line and not to let the strikers proceed any further. [T]he way that we were
dressed and our equipment would give a clear indication, towards the
[strikers] that we are, I would say, a higher level of aggression and that we

372
373

Day 229, Loest, p 28312

Ibid

227
are able to use lethal force if need be.

374

Further on in his evidence he said

this:
[B]asically like I explained before the members of TRT
would just form a line and keep them at bay.375

9)

That, the Commission believes, is the most likely explanation of what the
police had in mind. What is clear at this stage is that before the strikers
reached passage A eight Nyalas had travelled further in the passage way
than they would have needed to travel to reach passage A and no more than
six of them would have been needed to block passage A. (The width of
passage A is less than 19 metres, a Nyala is about 2.5 metres wide and the
standard blocking procedures require a 1 metre distance between Nyalas to
allow members to debus.)

10)

In relation to passage B there was of course more time to arrange a block

because the strikers only reached passage B when the shootings took place,
i.e., 15:53:50, almost two minutes after Nyala 4 reached the western edge of
the kraal at 15:52:03. There were three different ways in which the SAPS
could have blocked passage B:

(a)

By using seven of the eight Nyalas available for blocking the

passage A to block the 23 metre gap in passage B;

374
375

Day 229, Loest, pp 28330 28331

Day 229, Loest, p 28336

228
(b)

Because passage B was accessible from open ground in either

direction it would not have been necessary for the blocking Nyalas to
be parked side by side, as in passage A: they could have formed a
blocking line head to toe. As each Nyala is approximately 5 metres
in length, only five would have been required for the blocking to be
done in this way.

376

Thus only five of the thirteen armoured vehicles

available at that scene could have blocked passage B.

(c)

When Brigadier Calitz ordered Nyala 4 to make for the kraal he could
have ordered Nyala 5 or Nyala 6 to make ready to uncoil its barbed
wire to close passage B if there was a need to do so. This would
have given the POPs team in one or other of these Nyalas time to
remove the triangle behind the barbed wire trailer and have ample
time to then unroll the wire over the 40 to 50 metres from where
Nyala 4 had stopped up to the fence around the shack.

11)

Brigadier Calitz responded to these suggestions by saying that a block at

passage B would have been undesirable because (1) it would have created
a risk of a stampede of strikers in a relatively small area enclosed with
barbed wire;

377

and (2) it would have trapped the SAPS vehicles in the

neutral zone and prevented them from getting out to perform their dispersion
action, while isolating their colleagues on the other side of the block.

376

Day 137, Scott, p 14709

Day 159, Calitz, p 18145
378
Exh JJJ107, para 146, Affidavit of Brig Calitz
377

378

229
12)

The Evidence Leaders argue that neither of these objections is valid. They
contend that causing a stampede of strikers in a relatively small area
enclosed with barbed wire would clearly have been less catastrophic than
channelling them towards the fusillade of TRT fire at scene 1. That may be
so, but the criticism loses sight of the potential danger to both POP members
and strikers in the event of a stampede.

Furthermore, it is clear from

Captain Loests evidence that the idea was not to expose the strikers to a
fusillade of TRT fire, but as he says, to keep them at bay in the manner
described.

13)

The Evidence Leaders argue that the SAPS vehicles would not have been
trapped in the neutral zone if the blocking had been done by using armoured
vehicles; even if blocking were done with barbed wire, because, if need be,
the SAPS Nyalas could have broken out of the neutral zone by driving
through the fence around the shack (as his vehicle in fact did) and thus
clearing a route for all SAPS vehicles needed in the dispersion action. In
view of the fact that the Commission is satisfied that Brigadier Calitzs first
objection cannot be dismissed as invalid, it is not necessary to consider this
criticism.

14)

By the time the strikers went around the kraal and could see down the
passage way the basic TRT line was in place. The path to Nkaneng was
open as the basic line was stretched out on the other side. A number of the
strikers were carrying sharp edged dangerous weapons and as they passed

230
the POPs members one of them fired a shot towards some of the POPs
members at about 15:53:40. 379

15)

Over 100 strikers approached passage A at 15:53:22.380 Shortly thereafter

the POPs members appear to have started the use of non-lethal force.
Three stun grenades were fired, eight teargas canisters and both water
cannons started spraying water. This all happened in the 20 seconds before
the shootings at a time when the lead group of strikers was already moving
down the passage way to the east of the kraal.381

16)

The non-lethal POPs methods were used later than they should have been
and were imprecisely directed. No water was shot at, or in front of, the lead
group of strikers.

All the teargas and stun grenades fired before the

shootings were fired behind the leading group of strikers with the result that if
they tried to move away from the teargas canisters and stun grenades they
would have moved towards the TRT line.

17)

An analysis of the footage of Exhibit JJJ194 reveals the following:

(a)

Over 100 strikers approached passage A at 15:53:22.

(b)

After 15:53:30, when the first stun grenade was fired, from those
strikers who were ahead of the stun grenade a group of less than 40
split off and moved forward down the passage way away from the

379

Exh UUUU 10.6

Exh JJJ194, 116 01:09 (eTV 15.53:22)
381
Exh FFF35, SAPS discharge report; Exh UUUU 10.5, Annexure V4
380

231
stun grenade. Those strikers who were behind the stun grenade had
their progress down the passage way halted.

(c)

The split off lead group of less than 40 appears to have been
fragmented further by the use of non-lethal POPs measures because
at the time of the shootings at 15:53:50 a video clip taken by an eTV
camera operator (Exhibit JJJ194.17) shows a clear gap between Mr
Nokis group of 11/12 strikers at the front (the 11/12 leading
strikers) and the rest of the group of 40 (the kraal edge group): the
former have already passed across the JJJ194 line of camera
through the gap between Papa 2 and Papa 4 and behind Papa 2,
while the latter have not yet reached the gap and are behind Papa 4.

(d)

The position of the places where the 16 strikers were killed are
depicted in the aerial photograph marked Annexure I.

18)

The kraal edge group appears to have been halted and pushed towards the
kraal by the POP interventions (possibly by the teargas that can be seen
rising from behind Papa 2 at the point of the split, possibly by a combination
of that teargas and the teargas canister fired up against the POP Casspir
shortly before the smoke becomes visible on the eTV clip at 15:53:42). A
photograph taken just after the shootings382 shows the leading group split
into two sections: one on or around the path to Nkaneng (including Mr Noki
and the other leading strikers), the other close to the entrance of the kraal.

382

Exhibit JJJ10. 4542

232

19)

The strikers who approached passage A at about 15:53:22, as has already

been stated, were halted in their progress once the POPs started using nonlethal force. The objective evidence as provided by video and photographs
appears to show that if the non-lethal POPs measures had been used earlier
and in a more focused manner designed to prevent the lead group of strikers
from entering the passage way to the east of the kraal or proceeding any
appreciable distance along it towards the TRT basic line it would not have
been necessary to use lethal force at scene 1 and the deaths and injuries
could have been prevented.

20)

A major point of contention between the SAPS and some of the other parties
appearing before the Commission related to the likely intention of the
members of the group that advanced on the kraal. The SAPSs case was
that they were intending to attack the police and drive them away from the
koppie so that they could remain in occupation of the koppie and in
possession of their weapons. The case on the other side was that members
of the group, under the leadership of Mr Noki, had decided to leave the
koppie with their weapons and walk to Nkaneng along the path that had
been used since they had started occupying the koppie. The evidence given
by witnesses who gave direct evidence on the point was so extremely
unsatisfactory on other issues that their evidence on this aspect of the case
did not take the case much further. The evidence of Mr X on the police side
said that it was the intention of the strikers to attack the police but his
testimony has been fully dealt with elsewhere in this report and nothing

233
further need be said on this point. On the other side the evidence of Mr
Magidiwana (who, for example, falsely denied that he had been on the
koppie before 16 August) and Mr Nzuza (who, for example, falsely denied
what he had already said in his statement that he was the deputy leader
(no.2) of the strikers) was also of poor quality.

21)

It is necessary, therefore, to consider all the circumstances revealed in the

evidence, particularly the objective evidence, in an attempt to come to a
reliable conclusion on the point.

22)

The evidence leaders have dealt with this topic very fully and fairly in
paragraphs 719 to 732.9 of their heads of argument, which read as follows:
Evidence of intention by the strikers to attack the SAPS

719.

The events of the 16th cannot be viewed in

isolation. As on previous days, on 16 August the strikers

can be seen carrying dangerous weapons at the koppie.
720.

Col McIntosh reports that the leader of the

group, Mr Noki approached Nyala 1 and said that the

police must sign a piece of paper stating that we are
going to kill each other today.

721.

Col Mere too reports this incident. He states

that Mr Noki went on to warn these hippos would not

leave this place and you will all die today.

234
722.

Mr Noki also gave a speech about two bulls in

one kraal. The two bulls referred to the strikers and the
police. According [to] Mr Mtshamba, Mr Noki meant that
either the strikers or the police should leave the mountain.
As the police found the strikers there, the police should
leave. The police and the strikers were fighting for one
territory.

723.

The striker labelled in Exh L as protestor 6

(Kaizer) can be seen brandishing a panga on slide 172.

At the speeches at the koppie at 1.00 on 16 August he
said[:]
the

police

officers

who

came

from

the

homeland will be left here.they will not be

able to get into this hippo we are going to
finish them here. They must leave the place.

This speech would have been audible to at least some of

the SAPS members in the field.

724.Mr

Ntsenyeho

delivered

speech

when

Mr

Mathunjwa was at the koppie. His speech is captured in

slide 163 of exhibit L (protester 1). He said:
We said that we would leave here, after getting the
money we want.

Otherwise, we will die on this

mountain. None of us will be expelled, none of us will

235
leave whilst we are here. We would rather die. There
is no way that Lonmin can hire people while we are
here.

Otherwise, Lonmin must close.

It must be

finished with Lonmin, if it is finished with us.

I am

finished.

The likely intention of the members of the group that

advanced on the kraal

725.

At the outset, we emphasise that the question

of the intentions of the strikers in the group that was

ultimately shot at by the TRT cannot be answered in an
undifferentiated fashion. The group of strikers that turned
clockwise round the kraal after Nyala 4 closed the gap at
the western side of the kraal may have comprised more
than 100 people. It is tempting to impute a single common
intention to each one of these people, but that cannot be
done.

726.

It

may be

that

some

members of

the

leadership group intended collectively to attack the SAPS

after Mr Mathunjwa left the koppie for the last time on 16
August, but there is not convincing evidence of such an
intention, still less of a single common intention on the part
of all members of the group that ultimately came around
the kraal at scene 1. One cannot leap from the fact that
people stayed behind together and then started moving as

236
a group, to the conclusion that they all had the same
intention. Different members of the group will have had
different intentions:

some may have been looking to

attack the SAPS, others may have been looking merely to

get away from the SAPS and to safety in Nkaneng, others
may have had intentions somewhere between these two
positions such as intending to escape to Nkaneng but
being willing to shoot or hack their way through if the
SAPS attempted to prevent them from doing so.

727.

This position is quickly illustrated if we focus on

the movements and responses of individual members of

the group. Mr Ntsenyeho provides a good example of this
purpose, because he appears to have played some
leadership role in the strike and is readily identifiable by
the yellow string backpack he was carrying through the
week and the brown jersey he wore on the 16th with the
light diamond pattern running down its front.

727.1 Mr Ntsenyeho is one of the strikers who

spoke at the stand-off with Maj Gen Mpembe
at the railway line on the 13th. On the day he
was wearing a red brown long sleeved
shirt/jersey with lighter brown horizontal
stripes.

His speeches in Fanagalo to Maj

Gen Mpembe appear at 15:42 and 18:57 of

237
Exh Z1.
conciliatory.

the speeches were essentially

A transcript of them is to be

found in Exh QQ2 where Mr Ntsenyeho is

described as Lonmin Worker 3 at p 7 and
Lonmin Worker 2 at pp 9-10.

727.2 Mr Ntsenyeho also spoke at the koppie after

Mr

Mathunjwas

first

address.

He

is

Protestor 1 in Exhibit L, and his speech in

SeSotho is recorded in slide 163. We have
referred to this speech above. It is militant, in
that it suggests that he is willing to die on the
koppie, but it does not, itself, suggest an
intention to attack the SAPS.

727.3 As the group of strikers moved away from the

koppie in the direction of Nkaneng, Mr
Ntsenyeho can be seen on the outside of the
group closest to the SAPS on the left of the
screen in JJJ194.11 at 0:36 seconds into the
video (eTV 15:48:57). He is gesturing with
his arm in a manner that may have been
related to a marshalling role.

He is not

carrying any stick or weapon.

727.4 From the start of JJJ194.12 he is again

visible by his yellow backpack. He is walking

238
on the outside of the group closest to the
SAPS as the strikers move past the mast. He
passes behind the mast at 0:04 of the video
(eTV 15:49:10).

727.5 On JJJ29.121 (eTV 15:51:20) his yellow

backpack identifies him on the outside of the
group closest to the SAPS. He is facing (and
apparently moving) parallel to the boundary
of the police area in an easterly direction.

727.6 Ten seconds before the shootings, he is

visible on JJJ194.17.

He comes into sight

from the right at 0:04 of the video (eTV

15:53:40) just at the point that a striker a few
yards ahead of him shoots at the SAPS. He
is clearly visible for the next three seconds
because he is standing tall while most of the
strikers around him are bending forwards
making themselves smaller now that the
POPS are shooting rubber bullets at them.
Both of Mr Ntsenyehos hands are visible and
he is clearly not carrying any weapons in his
hands.

727.7 By

his

yellow

backpack,

he

is

briefly

identifiable again at 0:10 if the same video

239
(eTV 15:53:46), still striding forward and
walking tall before he disappears behind
Papa 2.

727.8 Shortly

after

Mr

Ntsenyeho

disappears

behind Papa 2, Mr Noki and the other strikers

in the group of 12 leading strikers at the front
are visible moving towards the TRT line
across line of camera through the gap
between Papa 2 and Papa 4.

727.9 Mr

Ntsenyeho

never

crossed

the

gap

between Papa 2 and Papa 4. It seems likely

that shortly before the TRT shooting broke
out, he (along with most of the strikers in the
kraal edge group) moved away from the
teargas at Papa 2 and the POPS Casspir
towards the edge of the kraal.

727.10

Mr Ntsenyeho was shot through the

neck and through the thigh with two R5

bullets. He died towards the back of the pile
of bodies alongside the kraal.

His body is

identifiable by the yellow backpack on the

aerial

photographs

of

Lt

Col

Vermaak

JJJ10.4541 and 4542 which were taken

before the SAPS had moved the bodies.

240
727.11

It is clear that when Mr Ntsenyeho

approached the kraal, he had no weapons in

his hands.

In

the

circumstances,

he

personally could hardly have been intending

to attack the heavily armed SAPS members.

727.12

It is, of course, possible that Mr

Ntsenyeho may have intended [to attack] or

foreseen that other strikers in the group
would attack the [SAPS members] and may
have been content to leave it to his armed
colleagues to execute the attack, but if he did
have that intention it would have been
anomalous for him to put himself unarmed in
the middle of a group that was about to
engage in a battle with the SAPS (in this
regard his position on the 16th is clearly
distinguishable from that of Mr Nzuza, who
was also an unarmed leader, but did not join
the group that moved around the kraal).

728.

In contrast to Mr Ntsenyeho,
728.1 Mr

Noki

and

Kaiser

both

made

speeches at the koppie at 1.00 which, if

they are not to be dismissed as
meaningless bravado, suggested an

241
intention earlier in the day, either to
attack the police or violently to resist
any attempt by the police to interfere
with the strikers occupation of the
koppie; and

728.2 the striker who fired at the SAPS at the

very least showed an intention or
willingness

to

attack

the

SAPS

members, either as an objective in its

own right or as a necessary step to
achieve another objective.

729.

We argue below that immediately prior

to the firing of the first shots, individual
members of the TRT at scene 1 might
have reasonably believed that they or
their colleagues were about to come
under attack. In the circumstances, we
submit that, quite apart from the fallacy
of an approach which imputes a single
intention to the crowd, the question of
the intention of the strikers is a red
herring.

730.

In the circumstances, we submit that any

finding as to the intention of the group of strikers at scene

242
1

would

be

both

inappropriate

and

irrelevant.

Nevertheless, in discharge of our duties as evidence

leaders we draw attention to the following contradictory
evidence regarding the motives and behaviour of the
members of the crowd so that the Commission can take it
into account if it does not accept our submission not to
make a finding in respect of the intention of the crowd of
strikers:

731.

In support of the notion that some members of

the crowd may have sought a confrontation with the SAPS

there are

731.1 the motive that strikers would have had to fight

off the SAPS and thus prevent them from interfering
with the manner in which the strike was being
organised (and enforced) at the mountain.
731.2 the

speeches

of

Mr

Noki

and

Kaiser

described above;

731.3 the other militant and confrontational speeches

at the koppie around midday:

731.3.1

Protestor 2 warned black policemen to

sign and take a decision so and they
would see what was going to happen in
an hours time. He then threatened that

243
those who had signed must continue with
their signatures, that the strikers were
going to climb of top of them and eat
them, and they (those who had signed)
will eat the strikers.

731.3.2

Protestor 4 said it is either them (the

strikers), or the police.

731.4 the killing by SAPS of Mr Jokanisi, Mr Mati

and Mr Sokanyile on 13 August, which may
have given the strikers a revenge motive, and
the killing by the striker of W/Os Monene and
Lepaaku, which may have emboldened them
in confrontation with SAPS;

731.5 the threats made by Mr Noki earlier on 16 August;

731.6 the fact that the strikers could have reached

Nkaneng without crossing into the SAPS
area,

and

the

false

evidence

of

Mr

Magidiwana when confronted with this fact;

731.7 the fact that most (but by no means all)

strikers in the group that came around the
kraal were armed with sharp edged weapons;

244
731.8 the video evidence of the striker shooting at
the SAPS west of the kraal; and

731.9 the clear evidence of attacks before the

shootings on SAPS vehicles to the east of the
kraal this is evidence which has to be
accepted, even if one can discount the SAPS
versions of attacks at incidents 1 and 2 (see
above).

732.

Pointing in the opposite direction is the following

evidence

732.1 While strikers would have had a motive

to fight off the SAPS and thus prevent
them from interfering with the manner in
which the strike was being organised
(and enforced) at the mountain, they
would equally have had a motive to beat
a strategic retreat to Nkaneng so that
they could regroup away from the SAPS
to keep the strike going;

732.2 Whilst the strikers could have reached

Nkaneng without crossing any SAPS
lines, the route that they followed was
one which had been taken by individual

245
strikers to and from the koppie right
through the 16th and had been allowed
by SAPS even as late as 10 minutes
before the shootings.

It also offered

their leaders a way of saving face whilst

effectively retreating.

732.3 From

the

video

recording

of

Mr

Mathunjwas last address at the koppie at

approximately 15h30, it appears that the
mood

at

the

koppie

had

changed

significantly in the preceding 2 hours.

None of the bravado of the first speeches
is evident the mood is more one of
resignation, and the strikers are singing a
lament;

732.4 If the strikers were intending to attack

the SAPS members, they would have
had ample opportunity to break into the
SAPS zone because there was no
barrier between them and this zone for
almost 10 minutes from the point that
the barbed wire roll out began shortly
before eTV 15:42:35 and the point at
which Nyala 4 closed off the route past

246
the kraal with its barbed wire at
15:52:01. Even after they moved off the
koppie at eTV 15:48:22, they had almost
4 minutes to enter the SAPS zone
before it was sealed off by Nyala 4 at
15:52:01.;

732.5 If the strikers were intending to attack

the SAPS members, it is difficult to
explain why they chose a route that went
out of its way to go around Nyala 5;

732.6 Similarly, the strikers at the head of the

group that came around the kraal appear
deliberately to have kept their distance
from the POPS members and their
Casspirs in the crescent formation to the
East of the kraal;

732.7 Because the TRT opened fire before the

lead strikers had reached the path to
Nkaneng, we will never know with
certainty whether they intended to turn
left along the path or to cross over into
the SAPS zone to attack the SAPS;

247
732.8 At the point at which the TRT opened
fire, the lead group of 12 strikers
approaching the TRT line had their
heads down and blankets over their
heads. Their position was that of people
trying to protect themselves from SAPS
members firing rubber bullets and stun
grenades in their direction, rather than
that of assailants about to launch an
attack;

732.9 There was a significant gap between the

lead group of strikers approaching the
TRT line and those behind them.

So

whatever intention the 11/12 leading

strikers may have had, the strikers
behind them posed no imminent threat
to the SAPS.

23)

In paragraphs 729 and 730 the evidence leaders submit that the question of
the intention of the strikers is a red herring and that any finding as to the
intention of the strikers at scene 1 would be irrelevant. They also argue that
an approach which imputes a single intention to the crowd is fallacious.

24)

While the Commission accepts that the imputation of a single intent to a

crowd is fallacious it is possible and presumably occurs in some cases that

248
every member of a crowd may have the same intention, e.g., to burn a
building or kill someone.

25)

The evidence leaders submission that a finding as to the intention of the

strikers would be irrelevant is based on the fact that they submit later in their
heads that individual members of the TRT probably held the reasonable
belief that they or their colleagues were about to come under attack.

26)

The SAPS contention on this part of the case is that its members are not
liable for the shootings (1) on the grounds that they were acting in self or
private defence because they were, inter alia, being attacked and had
reasonable ground for thinking that they were in danger of death or serious
injury; or (2) on the ground that they acted in putative self or private defence
because, inter alia, they reasonably believed that they were in such danger
even though they were not in fact in such danger.

27)

The point made by the Evidence Leaders amounts to this:

it is not

necessary to decide if the TRT members were under attack because they
will still not be liable if they reasonably believed that they were, provided of
course that they did not exceed the bounds of self defence.

28)

The Commission agrees with the evidence leaders submissions that the
TRT members (and Warrant Officer Kuhn) had reasonable grounds for
believing they were under attack in circumstances which justified them in
defending themselves and their colleagues. It is in the circumstances not
necessary to decide whether they were actually facing an attack, an issue in
respect of which there are arguments of great cogency on both sides.

249
29)

Ten seconds after the man in the brown jacket fired his pistol shot, as the
leading group continued to advance towards the TRT basic line, 47 of the
TRT members opened fire with their R5s towards the advancing strikers.
Warrant Officer Kuhn, a member of POP also fired at the advancing strikers
with an R5. The evidence leaders submit that the individual SAPS members
in the TRT line would have had reasonable grounds to believe they were
facing an imminent attack.
Warrant Officer Kuhn.)

(The same point would apply in the case of

The grounds for this submission are set out in

paragraph 733 of the evidence leaders heads, which read as follows:

The reasonable perception of the SAPS members facing

this group

733.

Whatever the true intention of the strikers coming

around the kraal, it is our view that the individual
SAPS members in the TRT line would have had
reasonable grounds for believing that they faced an
imminent attack:

733.1 Those members all would have been aware that

strikers advancing in a group armed with traditional
weapons had killed[:]

733.1.1.

Armed Lonmin security guards

on 12 August, and

250
733.1.2.

Armed SAPS members on 13

August.

733.2. They would have been aware of the fact that many
of the strikers were armed with traditional and
dangerous weapons.

733.3. In this context, they would also have seen strikers

apparently advancing on them at speed from a short
distance away in circumstances where they would
not have had time to identify that the strikers were
bent over with blankets over their heads and were
quite possibly trying to protect themselves from
rubber bullets and stun grenades behind them.

733.4.Nor would they have had time to see the true scene
developing.

Because of the last minute move of

Papa 10 (Papa19), many of the TRT members

would not have had any view of the advancing
strikers until they were at close quarters.

In all these circumstances, it would not be reasonable to

criticise individual TRT members for thinking that they were
facing an imminent attack.

30)

The SAHRCs counsel took a broadly similar line. They submitted that the
evidence allows the Commission to conclude that some of those who fired

251
their weapons at scene 1 may have had a reasonable belief of an imminent
threat to life but the evidence does not allow the Commission to conclude
that there was in fact such a threat.

The Commission agrees with the

evidence leaders submissions and finds that those who shot at scene 1 had
reasonable grounds for the belief that their lives and those of their
colleagues were under imminent threat. It bases this submission not only on
the facts set out in paragraph 733 of the Evidence Leaders Heads of
Argument but also on the facts that they knew that some of the strikers were
in possession of firearms and ten seconds before they started firing they
heard two shots, at least one of which was fired by one of the advancing
strikers, the man in the brown jacket, which would have led them to fear
further shots from the side of the strikers, who from that point on were
rushing towards them. The SAPS members who shot knew that teargas and
stun grenades had been fired which apparently had not had any effect in
stopping the advancing strikers in their tracks.

31)

Counsel for the Injured and Arrested Persons, the families of the deceased,
the LRC and AMCU submitted that the evidence leaders were incorrect in
submitting that the individual SAPS members in the TRT line would have
had reasonable grounds for believing they faced imminent attack.

This

argument is based inter alia on the contention that it was impossible for the
Commission to find that on the basis of the statements of the TRT members
that the shooters at scene 1 were genuinely in fear of their lives. In S v De
Oliviera 1993(2) SACR 59 (SCA), a decision in which the court
distinguished between actual and putative self- and private defence, the
conduct of the accused, who did not testify, was assessed with reference to

252
objective evidence. In the present case, apart from the objective evidence to
which the evidence leaders referred, evidence on the shootings at scene 1
was given by Captain Loest, who commanded the TRT members at the
scene, Captain Thupe and Lieutenant Colonel Classen, all of whom say that
in their view the TRT members had feared for their lives and that of their
colleagues. In the circumstances the Commission finds that the members
who did not testify in all probability saw the situation as their commanders
did.

32)

The counsel for the Families, the LRC, AMCU and the Injured and Arrested
persons also submitted that the TRT members did not fire because they
were in fear of their lives but because they were ordered to do so. They
contend that they opened fire in response to an order from Brigadier Calitz to
engage, engage, engage, which according to Mr Botes of Lonmin, who was
in the JOC at the time, was followed basically immediately seconds383 by
the shooting. Captain Loest said that Brigadier Calitzs instruction, which
Lieutenant Colonel Vermaak repeated, was directed at the POP members
and not the TRT members. Whether the TRT members heard it and thought
it was directed at them does not, in the Commissions view, take the matter
any further because it is clear on the evidence of Lieutenant Colonel Classen
and Captains Loest and Thupe that they perceived the members to be under
threat so they would on the probabilities have fired in any event.

33)

The counsel for the Families, the LRC, AMCU and the Injured and Arrested
parties also referred to what they call a number of objective indicators that

383

Day 266, Botes, pp 33640 33641

253
the TRT did not open fire because they were afraid but rather on the basis of
instructions to do so. The indicators on which they rely are the following:

(a)

The TRT line was called forward.

(b)

As they came forward they can be seen drawing and cocking

their guns.

(c)

They formed up before the strikers came around the kraal.

(d)

They all braced themselves at the same time.

(e)

Certain hand signals can be seen including form the line and
hold the line.

(f)

Brigadier Calitz stated that the shooters acted after the

command was given by their commanders as well as some
of them to act in self-defence.

(g)

The TRT members were in a position to observe the

movements of the strikers for more than 10 minutes and
therefore knew that the strikers had actually avoided
confrontation with the police and were following the many
other strikers who had escaped to Nkaneng.

254
(h)

The TRT line was able to see that the strikers had covered
their heads and were assuming a defensive rather than an
attacking posture.

(i)

By running towards the danger, breaching the 100 metre

rule, chasing the media away, forming a basic line and
stretching it out and cocking their R5s, the TRT members
had voluntarily assumed the risk of an attack and
unnecessarily so in the circumstances.

34)

As far as indicators (1) to (5) are concerned it is clear on the evidence that
the TRT line was formed, as Captain Loest said, to prevent the strikers
proceeding further, to keep them at bay, by what amounted to a show of
what he called a higher level of aggression, and that drawing and cocking
their guns, is how they are trained to deploy. Indicators (7) and (8) certainly
did not cause Lieutenant Colonel Classen and Captains Loest and Thupe to
realise that they and their colleagues were not under threat and there is no
reason to believe that any of the other TRT members would have seen the
situation differently. Indicator (9) is at variance with the facts. The TRT
members ran forwards, as has been said, to discourage by their presence
the further advance of the strikers. The 100 metre rule applied when there
was a line of POP members stretched out before them: this did not apply
when the basic line was formed as all the POP members except Warrant
Officer Kuhn had taken refuge in or behind the Nyalas.

Far from being

chased away, representatives of the media were still very much on the

255
scene and much of the photographic and video material of the shootings
comes from them. There is no basis for saying that by complying with the
order to form a basic line for the reasons indicated they voluntarily assumed
the risk of being attacked.

35)

Indicator (6) is based on a mis-statement of the evidence. In his address to

the assembled members on 18 August 2012 Brigadier Calitz said When
they become under attack that is when the command was given by their
commanders, as well as some of them act in self-defence.

384

When cross-

examined on this passage in his address by Mr Budlender, Brigadier Calitz,

who said he had not seen this incident himself and was talking about what
he learnt afterwards, explained that the command to which he was referring
was that given by the TRT commanders to their members to keep the basic
line, keep the basic line while the words as well as some of them act in selfdefence referred to what he was told thereafter by the members that they
acted in self-defence. 385 It will be noted that the insertion of the word to has
been inserted in indicator (6) before the words act in self-defence
significantly alters the meaning if what Brigadier Calitz said.

36)

According to the SAPS 328 rounds of live ammunition were fired at scene 1
over the course of eight or twelve seconds. (It is not necessary to decide
which is correct.) It is apparent from the video material that three strikers fell
in the first three seconds of the volley and thus after that stage no
conceivable threat existed.

384

386

Also during the first four seconds an

Exh JJJ82, address by Brig Calitz on 18 August 2012

Day 157 , Calitz, pp 17855 17858
386
Exh UUUU 10.6 Video Annexure V5 Part 3
385

256
appreciable number of shots were fired as warning shots, into the ground,
some possibly into the air, others certainly into the ground in front of the
advancing strikers. As a result of this a dust cloud arose four seconds from
the beginning of the volley which made it impossible for the TRT members to
see what was happening.

387

By this time it appears that all of the front group

of 10/11 strikers had either fallen down or turned around before the dust
cloud obscured them. It is common cause that some members went on
firing multiple rounds for at least another four seconds after this. Mr Gary
White, the policing expert called by the SAHRC, referred to this footage and
said, correctly, that it showed that, a large number of the shots continued to
be fired into what was essentially a dust cloud without sight of any specific
target388. This, he said, was reckless and unjustified. Regard being had to
the fact that according to the measurements made on Google Earth
photographs the distance from the TRT line to the front line of the strikers
when the shooting started was about 18 metres, the Commission is of the
view that Mr Whites opinion in this regard is correct.

After 9 seconds

Captain Loest raised his fist into the area and shouted cease fire, after
which he did not observe any threat existing that necessitated the use of
either R5 rifles or 9 mm pistols, although for some time some of the
members continued firing.389

37)

As the evidence leaders point out, the video evidence is clear that after the
first shot was fired, there was, as they put it, simply no opportunity for any of
the strikers in the leading group to avoid the bullets by changing direction or

387

Exh RRR17, Reuters footage

Exh JJJJ17.8 Final Statement of Gary White, para 7.5.10(c)
389
D 229, Capt Loest, p 28406
388

257
indicating that they were surrendering. It would not have helped a striker to
fall to the ground because it was likely that he would have been hit by bullets
aimed low. Turning his back to the shots would also not assist, as indeed
happened to one of the strikers seen in the video, nor would throwing (or
dropping) his weapon have helped as happened with another striker seen in
the video.

38)

390

The evidence leaders make the further point that it is not clear that any
individual TRT member who fired at this start of the shooting could
reasonably have fired warning shots that would have given the strikers the
chance to indicate that they did not (or did not any longer) pose a threat to
the SAPS.391

39)

A number of the shooters may have exceeded the bounds of what can be
regarded as reasonable self- or private defence. Many of the strikers who
were killed or injured have wounds on their chests or heads. In some cases
these wounds may have been occasioned by shots fired in the direction of
feet and legs, which hit victims who had already lain or fallen down. But as
the evidence leaders point out the number of these lethal and potentially
lethal wounds is too large to be explained away in this way.392

40)

There is video evidence of shooting at head or chest height. Several TRT

members can be seen on the Reuters footage shooting at a potentially lethal
height.

390

393

ELs Heads, para 746

ELs Heads, para 747
392
ELs Heads, para 749
393
Exh UUUU10.2 Annexure V1.7
391

258
41)

Several of the TRT members who fired at scene 1 admitted in the

statements they made that their rifles were on automatic fire.

394

Lieutenant

Colonel Classen confirmed that in his view this was grossly negligent

395

and

Mr Cees de Rover, the policing expert called by the SAPS, said that in his
view automatic rifle fire has no place in law enforcement. You still at every
pull of the trigger need to prove the existence of an imminent threat to life or
serious injury.396

42)

The evidence indicates that R5 bullets tend to disintegrate when entering the
body of a victim. This is what happened at Marikana. As a result it is not
possible on the ballistic evidence to connect any member who shot at
Marikana with any person who died. In the case of certain shooters there is
prima facie evidence that the members concerned may well have been guilty
of attempted murder but it cannot be said that any shooter is guilty of murder
because it cannot be shown which of the shooters actually killed anyone. In
the case of those shooters who exceeded the bounds of self- or private
defence, the most they can be convicted of is attempted murder.

43)

Counsel for the Families, the LRC, AMCU and the Injured and Arrested
persons also contend in the alternative that the TRT members acted
unreasonably in believing they were under imminent attack and that the
Commission should find a prima facie case that their conduct constituted
culpable homicide. This contention overlooks the fact that there is no such

394

Exh ZZZZ3.152 (Cst Kunene); Exhibits VVV6.6 and 6.7 (Cst Medlapho) and Exh ZZZZ3.334 (Cst
Modisekeng)
395
Day 236, Classen, p 29546
396
Day 286, De Rover, p 37134

259
crime as attempted culpable homicide: see R v Kadongoro 1980 (2) SA 581
(R) and S v Ntenzi 1981 (4) SA 477 (N).

44)

When the shootings stopped at scene 1 twelve bodies were lying on the
ground near the kraal.

Eleven grouped together in the middle of the

entrance to the passage between the kraal and the fenced road to Nkaneng:
this group is the group described earlier in this report as Mr Nokis group
and the 11/12 leading strikers. The second group, described earlier as the
kraal edge group, were piled up together near the entrance to the kraal.

45)

The latter group included seven strikers (four of whom had died) who had
suffered injuries from shotgun pellets.

The four who died were Cebisile

Yawa, Bongani Mdze, Bonginkosi Yona and Mphangeli Tukuza. The kraal
was on their right hand side and the injuries were all on the other side, i.e.,
their left hand side.

397

This was the side where, apart from strikers and

journalists, members of the SAPS were to be found. There is no evidence to

suggest that any Lonmin security officers were there.

46)

The question to be considered is: who fired the shotgun pellets at the kraal
edge group?

47)

Shot gun pellets have been withdrawn from operational use by SAPS
members although they were still being used for target shooting practice and
were thus still available at various SAPS police stations.398 It is not clear

397
398

Exhibits KKK11 and VVV9

Day 199, Naidoo, p 24407; Day 204, Naidoo, p 25110

260
where the pellets used on 16 August came from: members could have had
access to the stockpiles kept for training purposes, or bought them on the
open market or got them from Lonmin security, which uses birdshot for
crowd management purposes.

48)

Major General Naidoo suggested in his evidence that the shotgun injuries at
scene 1 could have been caused by friendly fire from strikers using
shotguns stolen from the Lonmin security guards on 12 August 2012. 399 The
Commission does not find this suggestion to be an acceptable one. The
pellets were clearly fired from the left hand side of the victims, near the
fenced area containing the shack, where the SAPS vehicles were parked.
There is no evidence to support the theory that strikers fired pellets towards
the kraal edge group. No-one saw them doing so in the passage and the
possibility that a striker or strikers somehow placed himself or themselves on
the eastern side of the police vehicles which were parked there and fired
pellets at the SAPS members sheltering behind those members, which
pellets missed the members, went through the gaps between the vehicles
and hit the victims on the other side of the passage, is not supported by the
evidence of any SAPS member or any other witness for that matter nor is
there any photographic or video material showing this. The Commission is
accordingly satisfied that Major General Naidoos suggestion in this regard
can be rejected.

49)

During his cross-examination of Mr Botes, a Lonmin Security official, counsel

for the Families suggested that the pellets shot at scene 1 were probably

399

Day 199, Naidoo, p 25119

261
shot from Nyalas 5 or 19.400 It was also suggested that it was possible that
Lonmin officials were inside one or both of these Nyalas or that Lonmin
security officials gave shotgun pellets to the police for use in the operation.
There is no evidence whatsoever to support this submission.

50)

Apart from the members of Mr Nokis group and the kraal edge group who
were lying dead or wounded at scene 1 when the shooting was over, there
were four other strikers who were to be seen lying on the ground at or near
scene 1. They were Mr Ledingoane, Mr Mtshazi, Mr Nqongophele and Mr
Gwelani.

51)

Messrs Ledingoane and Mtshazi were killed in a position about 45 metres

away from the closest point to the TRT line.

401

Both were incapacitated by

the shots that killed them, Mr Ledingoane by a single R5 shot through his
spine402 and Mr Mtshazi by a single R5 shot through the neck403.

Mr

Ngongophele was killed by a single R5 bullet that ricocheted and hit him
close to his right eye and injured his brain.

404

He appears to have survived

for at least an hour because he received medical treatment at scene 1, an

intravenous line being inserted into his arm.

405

His injuries were of such a

nature that it is not likely that he could have moved after being shot.

406

Mr

Gwelani, who was unemployed, was not a striker. According to his family he
went on to the koppie on 16 August to take food to his uncle, who was a

400

Day 265, Botes, p 33547

Exhibit B, pp 15 and 16 (Mr Mtshazis body was body N and Mr Ledingoanes body was body O on
these plans)
402
Exhibit A, pp 600 (a) 603; Exhibit Abis pp 215 228, esp at p 221
403
Exhibit A, pp 616 618; Exhibit Abis pp 229 237, esp at p234
404
Exh A bis, p 199, para C.1A; Exh FFF20, p20 Item 26
405
Exh A bis p 198, para 4B. No paramedics reached the scene in the first hour after the shootings
406
Exh A bis, p 202
401

262
striker.

407

His body was found on the path to Nkaneng north of the koppie

more than 250 metres away from the TRT line but within the funnel of fire.

408

His injuries are consistent with his having been shot where his body was
found as he walked along the main path to the northern part of Nkaneng,
away from the koppie and away from the SAPS.409 He was shot through the
back right hand side of the head and would have been immediately
incapacitated and dead almost immediately after he was shot.

52)

410

These four victims, who were all shot at substantial distances from the TRT
line could not possibly have been perceived as presenting an imminent risk
to the safety of anyone else. As the evidence leaders put it [a]t best for the
SAPS these are victims who were accidentally killed in the TRT volley.411

53)

The evidence leaders also say, correctly in the opinion of the Commission,
that Mr Gwelanis case provides the clearest illustration (if any are needed)
of why the use of military assault rifles should be banned in public order
situations.412

H Stopping the operation after Scene 1

407

Day 273, Gwelani family presentation, pp. 34952 - 34953

Exh ZZZZ12
409
Ibid
410
Exh A pp 631 633 (a); Exh A bis pp 239 145; Exh FFF20 p 20 Item 29 (DR593)
411
ELs Heads, para 751
412
ELs Heads, para 752
408

263
1)

Mr White and Mr De Rover agreed that the operation should have been
halted after the shootings at scene 1413 and Major General Mpembe said that
he would have done so if he had known of the shootings at scene 1.

414

The

SAPS commanders response to the argument that the operation should

have been stopped after the shootings at scene 1 was they were not aware
of what had happened at scene 1 until some time afterwards. Brigadier
Calitz claimed not only that he was wholly unaware of the shootings at scene
1 but also that he was unaware of the shooting at scene 2 until after they
happened. He said that he first became aware of the shootings at scene 1
at 16h47 when he spoke to Major General Annandale.415

2)

There are numerous items of evidence which indicate clearly that the
commanders, viz Lieutenant General Mbombo, Major General Mpembe,
Major General Annandale and Brigadier Calitz must all have known before
the shootings at scene 2 commenced that live ammunition had been fired at
scene 1 and some strikers had been killed or seriously injured. Mr Botes,
the Lonmin security official who was in the JOC at the time said that he
heard on the radio the sound of shooting, a lot of firearms being fired. He
agreed that what he heard could be described as a fusillade or volleying and
that it must have been obvious to everyone in the JOC that something quite
serious had happened.

416

Captain Kidd, who was at FHA 2, also said that

he heard the shooting on the radio, which he described as follows:417 I heard

commotion, the firing of ammunition, people screaming.

413

White: Exh JJJ172, final statement of Gary White, para 7.6.2; De Rover: D 286, De Rover, p 37157
Exhibit GGG12 Statement by Major General Mpembe paragraph 57
415
Day 154, Calitz, p 17353
416
Day 266, Botes, p 33643
417
Day 232, Kidd, p 29004
414

264
3)

He also said that what he heard was sharp ammunition being fired from an
R5 rifle and that anyone listening to the radio would have heard that.

4)

Shortly before the shooting took place Lieutenant Colonel Vermaak said over
the radio that the strikers were attacking the TRT and just after that there
were 18 bodies down and the TRT were staying behind at the scene.

418

Regard being had to the fact that the commanders knew that if the TRT
members were attacked they would only be able to defend themselves with
R5 rifles it must have been obvious what the shooting which was audible
over the radio was all about and the further information just after the
shooting that there were 18 bodies lying on the ground and the medical
assistance that was being called for would have made what had happened
ever clearer than before.

5)

Three things happened thereafter which remove any doubt that there may be
on the point. The first is the SMS message Brigadier Pretorius sent from the
JOC to Mr Molatedi of IPID at 16:03:34. It reads as follows:419

Having operation at Wonderkop.

Bad. Bodies.

Please prepare your members as going to be bad.

6)

The second is the sending by Lieutenant General Mbombo of an SMS to the

National Commissioner at 16:02:19.

418

Exh FFF25, entry 1018

Exh UUUU7, Statement of Molatedi Molatedi
420
Exh LLL3, Lt Gen Mbombos phone records
419

420

The National Commissioner did not

265
receive the SMS until some time after the shootings and Lieutenant General
Mbombo says that she cannot remember what the SMS was about. She
claims that she did not hear the radio at the relevant time because she was
standing outside and that no-one told her at the time what had been heard.
421

The Commission does not accept this evidence. It is highly unlikely that

she would not have been told about what had happened (if she really was
outside in the passage) and the most likely reason for her SMS to the
National Commissioner at 16:02:19, just over a minute before Brigadier
Pretoriuss SMS to IPID, is that she knew or had been told of the shooting
heard over the radio. The third was a telephone call Captain Loest made to
Brigadier Pretorius, 2 minutes after the call to IPID where he gave her what
can be called a quick situation report. Thereafter she telephoned him twice,
at 16:08:54 and again at 16:13:52.

422

During one of the calls Brigadier

Pretorius made to Captain Loest (he cannot remember which) he also spoke
to Major General Annandale and gave him a situation report.

423

Major

General Annandales claim in his evidence that those in the JOC were
unaware that anything had gone wrong at scene 1 until approximately 16h20
is clearly incorrect.

7)

Major General Mpembe testified that he was listening to the radio

continuously from 15h30. He said he had decided to fly over the area in a
helicopter to get a better view of what was happening. On his way to the
helicopter he heard Lieutenant Colonel Vermaaks report about the strikers
moving towards the TRT line (although he thought this was a mistake and

421

Day 181, Mobombo, pp 21805 21815

Day 229, Loest, pp 28355 - 28356
423
Day 229, Loest, pp 28435 - 38436
422

266
the strikers must have been moving towards the POP line) and his report
about bodies down. 424 He must also have heard the commotion, the firing of
ammunition and people screaming that Captain Kidd heard. It is thus clear
that he also was aware of the shootings as and when they took place.

8)

Brigadier Calitzs evidence that he was not aware of the shootings at scene
1 at the time and indeed not until 16h47 is clearly not correct. He conceded
that when the lead group of strikers passed out of his sight down the
passage way to the east of the kraal a confrontation between them and the
SAPS members trying to prevent them from entering the neutral zone was
probable. 425 He anticipated, he said, that the TRT would form up where they
did and also said that he heard Lieutenant Colonel Vermaak report that there
were 18 bodies lying on the ground but stated that he thought that
Lieutenant Colonel Vermaak was talking about strikers who had been injured
by rubber bullets.

426

According to his evidence he left the vicinity of scene 1

just after giving instructions to the POP members to engage, in order to drive
after the strikers who had decided to escape from or avoid scene 1 and to
proceed to koppie 2, where his vehicle was stationary for about seven
minutes. 427 It is improbable that he would not have heard the more than 300
shots fired at scene 1. Even if he did not hear the shots directly he must
have heard them over the radio because he was sitting at the commanders
radio in Papa 1. If he was able to hear Lieutenant Colonel Vermaaks report
about the 18 bodies lying on the ground, he must have heard the volley
described by Mr Botes.
424

Day 106, Mpembe, pp 11472 - 11475

Day 159, Calitz, pp 18111 - 18113
426
Day 154, Calitz, p 17341
427
Exh CC22, Protea Coin video at 6:21 at Exh CC38, Flir camera at 16:09:13
425

267
9)

His explanation that he thought Lieutenant Colonel Vermaak, when he spoke

of bodies lying down, was describing strikers injured by rubber bullets is also
unacceptable. He knew that the POP members had retreated and that the
strikers were advancing to where he thought the TRT members had taken up
their position. He must have realised that it was highly probable that the
TRT members would defend themselves and their colleagues from what they
would see as an attack and that the only way they had to do this would be by
firing their R5 rifles. In the circumstances, there was a strong possibility that
of the bodies lying on the ground some would be those of strikers who had
been injured, in some cases fatally, by TRT fire. If he was not sure that any
of the strikers were dead or injured one would have expected him to have
asked over the radio for a report of what had happened, in which event he
would have learnt the facts from someone such as Captain Loest.

10)

There is a further item of evidence which points strongly in the direction of

showing that he was well aware of what had happened at scene 1. That is
an instruction he gave to the members under his control after the stand off at
koppie 2 when the SAPS operation started to roll forward towards the
strikers fleeing in the direction of koppie 3.

The instruction was as

follows:428No lethal firearms now unless the target engage you. No need to
shoot while they are running unless the target engages you.

11)

The evidence leaders point out that it is difficult to imagine that Brigadier
Calitz would have seen a need to caution against the use of lethal firearms

428

Exh CC22, Protea Coin video, 07:10 07:19 transcript Exh 00012 at p2, first item

268
when the SAPS were rolling forward towards scene 2 if he had not been
aware of the fact that lethal firearms had already been used at scene 1.429

12)

It is very significant that when he testified in chief about this instruction he

said it was directed towards the POP members and referred to the use of
shotgun rubber balls. This is patently incorrect because he spoke of lethal
firearms. When he gave this evidence in chief the Commission had before it
an incorrect transcript of the instruction: the words lethal firearms were
transcribed as no need for firearms.430

429
430

ELs Heads, para 769.4.3

See original transcript, Exh GGG35 at p2

269

Chapter 12

The events that occurred on Thursday, 16 August 2012 at Scene 2

The following incidents on the 16th call for consideration and evaluation:

The Evidence;

The Killing of Mr Mpumza;

The Killing of Mr Mkhonjwa;

Command and Control;

Ballistics and Medical Evidence;

Delay with medical assistance to Scene 1;

Crime Scene 2 and Investigations;

Independent Police Investigative Directorate; and

Referral and Recommendations.

270

At Koppie 3 fourteen persons died on the scene431and three died later in hospital.
The names of the deceased are -

a)

Dumisane Anele Mdizeni (body A)

b)

Thabiso Johannes Thelejane (body B)

c)

Nkosinathi Xalabile (body O)

d)

Tokoti Mangcotywa (body D)

e)

Raphael Jeneveke Liau (body E)

f)

Mpumzeni Nxande (body K)

g)

Stelega Meric Gadlela (body L)

h)

Henry Mvuyisi Pato (body M)

i)

Thabiso Mosebetsane (body G)

j)

Fezile David Samphendu (body J)

k)

Mafolisi Mabiya (body H)

l)

Ntandaso Nokamba (body I)

m)

Thobile Mpumza (body C)

n)

Makhosandile Mkhonjwa (body N)

o)

Telang Vitalis Mohai (who died in hospital)

p)

Modisaotsile Van Wyk Sagalala (who died in hospital)

q)

Molefi Osiel Ntsoele (whodied in hospital).

The positions where those who died on the scene were killed are depicted in
Annexure J, as is the position where Mr Mohai sustained his fatal injuries. It has not

431.

Exhibit B47, Mohlaki, p. 675, et seq

271
been possible to ascertain precisely where Messrs Sagalala and Messrs Ntsoele
sustained their fatal injuries.
Introduction

1)

After Scene 1, Brigadier Calitz stopped at the dry river bed to re-organise the
operation. He then proceeded in a northerly direction to a position some one
hundred and fifty metres north of Koppie 3 to supervise the arrest of strikers
fleeing in that direction. At the same time, the NIU under Colonel Modiba
approached Koppie 3 from the north east, the TRT under Captain Kidd
approached Koppie 3 from the south west and Major General Naidoo with
the K9 and other units approached the Koppie from the south. This led to
the position where three separate units converged on Koppie 3 without
informing either Brigadier Calitz or the JOC.

2)

There was shooting from various members of each of these units in the
direction of the koppie where the strikers had gathered. This resulted in 17
strikers being killed. There were 14 bodies found at Scene 2 and three
strikers who were wounded subsequently died in hospital. Ten of them were
killed in what can be described as a crevice in a rocky area inside the koppie
where they appear to have sought refuge during the operation.

3)

The Commission heard evidence regarding the deaths of two strikers, Mr

Mpumza and Mr Mkhonjwa.

There was no evidence adduced as to the

specific circumstances in which any of the other deceased were killed.

272
4)

SAPS stated in their opening statement that they would have difficulty
justifying all of the deaths that took place at Scene 2.432

1)

The Evidence

Brigadier Calitz said that after the dispersal at Scene 1, Lieutenant Colonel
Vermaak was directing the water cannons towards Koppie 3 and he thought
that with his experience of some twenty years in POP, he was the
appropriate person to take the members forward and to task them.433

2)

He saw at that stage the larger group of the strikers going to the north west,
one group going north and a group that went to Koppie 3. He took his
vehicle towards the larger group that was running in the westerly direction.
He said that about twenty to twenty nine arrests were made. They then had
to wait for the canter to arrive. Warrant Officer Nong climbed out of the Nyala
to take photographs of the arrested persons.

3)

At that stage, Lieutenant Colonel McIntosh screamed at him and said that
one of his members was under attack. Lieutenant Colonel McIntosh said
that he was going to jump out of the vehicle because he saw a striker
running towards a police official and he was just a few metres away.

432
433

Exhibit FF9 page 19

Day 154, Calitz, p 71346

273
Brigadier Calitz said that he shouted at Lieutenant Colonel McIntosh not to
get out of the vehicle but he had already done so.

He also shouted at

Warrant Officer Nong to get back into the vehicle to get closer to see what
was going on. He did not witness the incident.434

4)

At some stage he heard Lieutenant Colonel Vermaak saying over the radio
that the people are encircled and this was one of many instructions that
Lieutenant Colonel Vermaak gave to get the vehicles into position. He said
that while he was moving north, he heard Lieutenant Colonel Vermaak
directing the Nyalas and the water cannons, and thought that while he was
busy with the dispersal action, they were busy on the other side, as the
people were encircled and boxed in. He thought that the Nyalas and the
water cannons had helped with that. He then gave the instruction over the
radio to the Papa Nyalas that they must get out of their vehicles, out of
protection, and engage at koppie 3.

5)

Warrant Officer Nong drove a few metres to where he could see Lieutenant
Colonel McIntosh bending over a person.
said that the person was already dead.

Lieutenant Colonel MacIntosh

He said that he saw the TRT

members there and was surprised to see Captain Kidd there because
according to the briefing, he was posted at FHA 2. He was supposed to have
a filtering line in place so that the strikers who were moving in that direction
could be searched. He told Captain Kidd immediately to find out what was
happening with his members there and to report immediately to the JOC.

434

Day 154, Calitz, p 17349

274
6)

He was told by Lieutenant Colonel Vermaak that the people were encircled
and he gave instructions to the Nyalas to go and engage with the dispersion
action and the arrest. From the position that he was in, he could see that
there was movement and he could see that there were a lot of people who
were busy with the arrests, so he went towards koppie 3. This was just
before 17h00. At koppie 3 he found a number of strikers lying on the ground
under arrest, with their hands behind their heads. He noticed that the water
cannons, the canters and the Nyalas were there.435 He said that by the time
he got to koppie 3, all the shootings had already taken place.436

7)

He met Major General Naidoo at koppie 3 at 16h45. He said that he was not
expecting to see him there because he was in command of FHA 1 and he
was in control of the medical personnel, the detectives, the criminal record
centre people and the dog unit. In particular he expected that the dog unit
would be busy with the sweeping of koppies 1 and 2 but he did not expect
him at koppie 3.437

8)

He said that when he arrived and saw the weapons on the scene, he
understood that the medical personnel needed to be safe and he cautioned
the members to remember that it was a crime scene and they should try as
far as possible to preserve the crime scene because it was very large and
complex and not a simple crime scene.

435

Day 154, Calitz, p. 17353 17355

Day 154, Clalitz, p. 17358
437
Day 154, Calitz, p.17355
436

275
9)

Lieutenant Colonel Vermaak said with regard to the video438that he saw the
strikers entering koppie 3 and he brought in the water cannons and the
Casspirs. He also said that he saw that the strikers moving out of the koppie
and other strikers leaving the koppie towards the south west. The strikers
were going in the direction of the second informal settlement in the south
west which was where the FHA 2 was and where Captain Kidd was
supposed to be.

10)

He said at that stage, the water cannons were brought in from both
directions to encircle the koppie according to the original plan. He
communicated to Brigadier Calitz where the water cannons were and also
the position of the armoured vehicles for the protection of the water
cannons.439 He noticed that there were strikers who were running out on the
western side of the koppie. He reported this to the JOC and to Brigadier
Calitz. This is with reference to his saying they going to break through. He
said that he also saw people in the middle of the koppie at that stage.

11)

He then saw two bodies down at the back of the koppie which he reported.
He could not see how they were injured because of the distance. At some
stage, while the water cannon was spraying water, he said he noticed that
there were policemen on foot and he told the water cannons to stop spraying
water because the koppie was encircled by policemen and they were going
to be carrying out arrests.440 He said he saw a group near a dry dam and

438

Exhibit CC22
Day 206, Vermaak, p. 25407
440
Day 206, Vermaak, p.25417
439

276
the people were moving in that direction and that was when he said they
were going to break out.441

12)

He recalled that Brigadier Calitz said there were several people hiding in the
small koppie. He said at page 4 of the transcript it is Brigadier Calitzs voice
that says live fire, live fire.442 Brigadier Calitz in his evidence denied this
was his voice and stated that he was not aware of the shootings at koppie 3.

13)

Lieutenant Colonel Vermaak confirms that he did not know Major General
Naidoo had arrived on the scene.443 He saw people being arrested and he
needed to bring in the canters. There were some problems with their getting
the canters in because nobody was aware of the kind of terrain that they
would have to traverse.444 There was some trouble with communication with
the vehicles and getting them to go in the right direction.

14)

Lieutenant Colonel Vermaak said that he was never appointed to an aerial

command post and he did not perform the function of an aerial
commander.445

15)

The evidence of Brigadier Calitz was put to Lieutenant Colonel Vermaak

that he in effect gave him control or rather he asked him to play the eye in
the sky role for him and to take control and command for him over koppie
3.446 Lieutenant Colonel Vermaak said at no stage was any direction or
instruction given to him that he must take control or command of a group of

441

Day 206, Vermaak, p. 25419

Day 206, Vermaak, p. 25427
443
Day 206, Vermaak, p 25425
444
Day 206, Vermaak, p. 25433
445
Day 206, Vermaak, p.25440
446
Day 206, Vermaak, pp.25441 and 25442
442

277
vehicles. He said he was asked to assist to take the vehicles in to where
they were needed for a specific task.

16)

It was put to Lieutenant Colonel Vermaak that Brigadier Calitz said that he
was informed while they were standing there stationary and they were
communicating on the radio that he requested him to take the vehicles in
and to command from the air.447 Lieutenant Colonel Vermaak disagreed
with that.448

17)

Lieutenant Colonel Vermaak said that at no stage was command given over
to him and, if that were so, a note would have been made at the JOC in their
records.449 The role that he played, he said, was to get the vehicles in to
execute the plan of dispersing and encirclement and there was no other
order given to him except to give directions from the air as to what routes the
vehicles should follow. He made an important point when he said that there
were many instances where he communicated with the vehicles and that
Brigadier Calitz thereafter confirmed the order that he had given. Lieutenant
Colonel Vermaak said that the control that he had was only of taking the
vehicles into the area and reporting their positions because it was not
possible for Brigadier Calitz, who was on the ground, to see and to realize
where all the vehicles were.450

18)

He played the role of the eye in the sky and he reported back to the
operational commander where his resources were and where his people
were on the ground so that he could make operational decisions. He said in

447

Day 206, Vermaak, p 25443

Day 206, Vermaak, p.25445
449
Day 206, Vermaak, p.25445
450
Day 206, Vermaak, p.25446
448

278
this instance where there were many problems with radio communications, it
often happened that if it appeared to him that the people on the ground did
not hear Brigadier Calitzs instructions, he repeated them.

Lieutenant

Colonel Vermaak described how he made the comment that the water
cannon must wait, the people are encircled and that was conveyed to
Brigadier Calitz, who then gave orders, ok water cannons hold back, guys
get out of the Nyalas under protection. Get out there and engage.451 .
Brigadier Calitz, he said, gave orders on the basis of the information he was
giving to him.

19)

Captain Kidd said that on the 16th, he was deployed at FHA 2 under the
command of Lieutenant Colonel Pitsi. In August 2012, he was a member of
the TRT, stationed at Johannesburg. At about 10h00 Lieutenant Colonel
Pitsi was redeployed by Brigadier Calitz to the frontline and he left with forty
POP members, four Nyalas and one Casspir. He said that he remained with
fifty five TRT, twenty nine POP and six Dog unit members.452

20)

He attended the briefing at FHA 1 at 14:30, where he was told that the task
of his group stationed at FHA 2, would be to protect the informal settlement
situated close by and to make a filtering line so that whoever was leaving the
koppie area could be searched and disarmed.

Their members were

specifically tasked to move in a straight line to form a barrier between the

koppie and the informal settlement once the incoiling of the barbed wire had
commenced. They were to protect the informal settlement from attack and to

451
452

Day 206, Vermaak, p.25456

Day 232, Kidd, pp. 28992-28993

279
disarm strikers approaching the line, to confiscate any dangerous weapons
in the possession and thereafter to allow them to proceed.453

21)

He said that he returned to his members at FHA 2 and briefed them in terms
of the briefing given to him. His members had certain queries about what
type of weapons or firearms they would be encountering and he said to them
that firearms had been taken from the police at the incident on the 13 th as
well as from security personnel prior to that. He indicated on Exhibit L181
his position as a diagonal line on the photograph with the informal settlement
behind him.454 He understood the koppie to be where Scene 1 took place.455

22)

At about 15h40, he heard an instruction over the radio that barbed wired
should be deployed, and he instructed the members with him to climb out of
their vehicles, to form the basic line and to move forward to form a barrier. 456

23)

He said that before they reached their intended position, he heard over the
radio that the police were under attack. At this stage he was about half way
to his intended position. He said that he heard a commotion on the radio,
the firing of ammunition and people screaming but he could not identify the
voice of the person that made the report that the police were under attack.
He tried calling Brigadier Calitz, the JOC and Lieutenant Colonel Vermaak
on the radio just to get some response but had no success.

24)

He said that he could hear on the radio that the live ammunition being fired
was from R5 rifles and that a volley was being fired. He said that he could

453

Day 232, Kidd, pp. 28993-28995

Day 232, Kidd, p. 28997
455
Day 232, Kidd, p. 28999-29000
456
Day 232 Kidd, p. 29001
454

280
differentiate between the sound of rubber balls being fired from shotguns
and sharp ammunition from R5 rifles.457 He repeatedly called on the radio
but there was no response. He consulted with Captain Ryland and they
made the decision to move forward towards the koppie and not stop where
they had intended to stop. He made the decision because he thought it was
necessary to give other members support.

25)

He and Captain Ryland both had cell phones but neither of them thought of
trying to contact the JOC or Brigadier Calitz by cell phone.458 He said further
that he did not have the telephone numbers of the JOC or Brigadier Calitz
because when he went to FHA 2, he was just a group commander and not in
charge of the whole of FHA 2. That was the task of Lieutenant Colonel Pitsi
who would have had the numbers on him.459 He agreed that it would have
been sensible for him to inform the JOC as well as the operational
commander of his intentions to go towards the koppie so that the actions of
the group could be coordinated.460

26)

Whilst conceding that neither the JOC nor Brigadier Calitz knew that he was
approaching Scene 2, he said that he thought Lieutenant Colonel Vermaak
had a birds eye view and while they were listening to the radio
communication, they could hear Lieutenant Colonel Vermaak directing
people on the western side to go forward. It occurred to him that the people
listening to the radio would know from the radio communication that they
were there on the western side.

457

Day 232 Kidd, p. 29003-2004

Day 232, Kidd, p.29005
459
Day 233, Kidd, p.29016
460
Day 232 Kidd, p. 29006
458

281

27)

He said that while they were moving in the direction of the koppie, hundreds
of strikers were approaching the line from the direction of koppie 1. They
were allowed to pass after laying down the dangerous weapons in their
possession. The weapons that they put down were a variety of spears, axes
and sticks. None of the strikers refused to lay down his weapons when
instructed to do so.461

28)

He said that there was a chopper hovering in the air and a police woman
waving to them to move to the left hand side. (This would appear to be
Sergeant Venter who was in Brigadier Fritzs helicopter.) At that point, he
also heard an instruction from Lieutenant Colonel Vermaak that they must
move to the side. He understood this to mean to move to the left hand side
and he heard Lieutenant Colonel Vermaak saying the people on the west
move to your left, move to your left. He thought this was the same
instruction that the lady in the helicopter was indicating to them.462

29)

He said that as a result of these instructions, his basic line that extended
over 150 metres, split up into three different groupings. He remained in the
middle group where the majority of the members were. He said that with the
splitting up he was no longer in control of everyone. Each of the units had its
own commander because the TRT units were from Pretoria, Johannesburg
and Honeydew. He expected that each commander would command his
group.

He conceded that practically he could exercise no control

whatsoever over the other two groups that had split away from his group.

461
462

Day 232, Kidd, pp. 29007-29010

Day 232, Kidd, pp. 29011-29015

282
He conceded as well that at the time that the group split up, he could have
designated the commanders who were in charge of each of the groups to
stay in touch with each other by cell phone, but did not do so.463

30)

He said that as they were approaching the koppie, he thought that this was
koppie 1 and that everything was happening just on the other side of the
koppie. This was, he said, because when they were shown a photograph of
the area, it did not appear as though there were different koppies. There
were just bushy areas with a couple of rocks and he could not see the
difference in the height or the difference in how big the koppies were.464
This is an indication of the inadequacy of the briefing received.

31)

He said he heard the sound of gunfire and the sound of bullets flying over
their heads, coming from the direction of the koppie in front of them.465 There
was not much cover and a lot of members ran to rocks and took cover there
on the western side.

He said that the firing that came from the koppie

sounded like small calibre firearms.466 From where he was taking cover, he
could see into the open area inside koppie 3 and he saw a group of strikers
running around inside the koppie.467 He said that they gathered together in a
group, and they were making a hissing sound, banging their weapons
together.468 He said the group approached the members on the western
side and stopped near the bushes. He said the policemen were shouting at
the strikers, telling them to put down their weapons and to come out

463

Day 233, Kidd, pp. 29017-29024

Day 233, Kidd, pp. 29020-29021
465
Day 233, Kidd, p.29021
466
Day 233, Kidd, pp. 29029-29027
467
Day 233, Kidd, pp. 29029 29030
468
Day 233, Kidd, pp.29032 -29033
464

283
repeatedly. He said all the strikers did was to tap their weapons twice and
point them forward towards them.

They were chanting and singing and

repeatedly tapped their weapons and pointed them towards the policemen.

32)

He said that suddenly, two of the strikers from the group charged the police
members who were positioned on his right hand side. The two strikers were
shouting something which he did not understand. The police shouted at
them to drop their weapons but they proceeded to charge towards the
members, who were lying near a small rock. They rushed out into a flat open
area between the spot where they had been and the spot where the
policemen had taken cover.469

33)

He said the expressions on the faces of the strikers were that of persons
who were very focused. They were looking straight at the policemen and
they were not blinking their eyes. They were just looking, tapping their
weapons and pointing repeatedly. Some of the group at the back were
standing still and those in the front were crouched down, but the two that ran
out were totally upright with their arms raised above their heads, holding
weapons and they were shouting something.470

34)

As the two ran out shouting, the policemen were shouting at them to drop
their weapons but they did not. Shots were fired from the policemen towards
the two strikers. One of the strikers was shot and fell to the ground. The
other, who was dressed in a red shirt stood for about three to four seconds,
turned around and ran back to where he had come from. He thought that

469
470

Day 233, Kidd, pp 29037-29038

Day 233, Kidd, pp.29039-29040

284
the striker had been hit but when he saw him run back, he thought that he
had misjudged the position. He said he did not know at that stage which
policemen had been shooting, but realised subsequently that they were
mainly POP members because there were no TRT members on the ground
who fired there. Again, he did not know what they fired with at the time but
found out later that they fired 9mm pistols as well as rubber balls from
shotguns. No R5s were used at that stage.

35)

About twenty seconds later, the same striker came out acting in much the
same way with his weapons raised above his head. Again, the policemen
shouted at him to stop, but he continued towards them. More shots were
fired and this time the striker fell to the ground. Thereafter, he seems to
have crawled back in the direction from which he had come. At the time the
police shot at the strikers, the one striker was about ten metres away and the
other about five metres away.471

36)

The striker in red, Mr Gadava, was injured.

Mr Mkhonjwa died at the

scene.472 After the shooting, he saw that the strikers that who were in the
koppie carried on with their singing and chanting and moved deeper into the
bushes behind the rocks until he could not see them anymore.

37)

While he was in that area, he did not notice any of the other members in the
three groups who were there, shooting.

471

Day 233, Kidd, pp. 29040-29043

Day 233, Kidd, pp. 29048 29049
473
Day 233, Kidd, p.29053
472

473

285
38)

He said that on his left hand side, he noticed one of the strikers come
running from behind the bushes armed with two spears in his hand. 474 At
that stage, he was about twenty five to thirty five metres from him. He said
that the striker looked in his direction, saw him and changed his direction to
go towards the far left where policemen were standing there in the open. He
shouted at them to watch out. Some other members also shouted at them to
look out that there was someone running towards them on the left. That was
when those policemen started looking at the person who was running.

39)

Captain Kidd said he also started running in the same direction475 to see
where the striker was going to, except that he was on the other side of the
bushes, parallel to the path taken by the striker.

Captain Kidd said he

stopped screaming at them because they had seen the striker and were
shouting at the striker to drop his weapons.

40)

He said he heard shots fired. He saw the striker as well as a policeman fall
to the ground. He did not see whether the striker had been shot because he
was some distance behind. It looked to him as if the striker fell on top of the
policeman. At the time that they fell, it was the member who fell who fired.
He then stood up and Captain Kidd saw that he was unharmed but the
striker had been shot and was lying on the ground. When he got closer, he
noticed that he had a spear in one hand and what looked like a knobkierie in
the other. His hands were still moving and he was still alive at that point.
The person on the ground was the deceased Mr Mpumza.476

474

Day 233, Kidd, p.29054

Day 233, Kidd, p.29057
476
Day 233, Kidd, pp.29061-29065
475

286
41)

He then saw Lieutenant Colonel McIntosh arrive and attend to Mr Mpumza.

He did not know what happened to the weapons that were in the possession
of Mr Mpumza.

He said that while he was at the scene, various other

members arrived. He told them to go back and do whatever they could to

assist in the operation. He then left and went to the scene where the strikers
had been arrested and were lying on the ground where paramedics were
attending to the injured.477

42)

He mentioned that Mr Mpumza had a rope fastened around his upper arms
and knees and that someone said that he should not touch it because it was
some form of muti used by sangomas.478

43)

Under cross examination, he said that he did not give an instruction to the
group he was in command of to split when the helicopter came along and
gestured to them. He said that everything was fine until the helicopter came
along and they received the instruction from Lieutenant Colonel Vermaak.
He did not have time or opportunity to discuss with anyone or to give any
orders as to how the group should move forward. He said events just took
over. He said the following day he mentioned that at a meeting where Major
General Annandale and Brigadier Calitz were present.
communication was impossible.

He said that

He conveyed to them that he had tried

repeatedly to call on the radio but he was being cancelled out. He said he
was told on two occasions when they were moving forward that his line had
to split and go to the left.479

477

Day 233, Kidd, p.29066

Day 233, Kidd, p. 29068
479
Day 233, Kidd, pp. 29077-29079
478

287
44)

He said that although he heard Brigadier Calitz say water cannons move in,
water cannons move in he did not actually see the water cannons deploying
water.

480

He said that he had not paid much attention to the role of the water

cannons because it was not part of his brief in the operation.

45)

481

It was put to him that there were two cannons spraying water in a westerly
direction trying to disperse the strikers and move them to the west. That
would be precisely where his line ended up and where he and his men were
blocking the escape route for the strikers. He said that there were lots of
people that passed, and whoever wanted to leave was allowed to leave
provided they put down their weapons. Whoever wanted to stay behind on
the koppie, did so. He said that the people who stayed on the koppie would
have been able to see how he dealt with the people who had left.

46)

It was put to him that the strikers who were being sprayed by the water
cannons and driven to the west could see the TRT either on the south west
or the west in the group that he was in and think that they were not able to
pass through and that their escape route was blocked. He said that because
the area was so big, if someone wanted to come out, he could have laid
down his weapons and walked through the filtering line.

47)

It was put to him that the strikers who were in a position to witness the
shooting of Mr Mkhonjwa, Mr Gadava and Mr Mpumza would have thought
that the western exit and the south western exit from Koppie 3 were blocked.
He did not agree because it was being said to the people at all times lay

480
481

Day 233, Kidd, p. 29081

Day 233, Kidd, p.29084

288
down your weapons and come out. This was being said in English and in
various other languages. He said if anyone had laid down their weapons and
come out he would have been allowed to pass even after the shooting.
Those members that came out from the Koppie and put down their weapons
were also searched because he bore in mind that he still had to protect the
informal settlement behind FHA 2.482

48)

He said that at the time he spoke about the shots flying over his head, he
thought that the shots were fired by the strikers on the koppie because there
was about three or four shots from small calibre firearms and it was not a
burst of fire or from high calibre weapons.483

49)

It did not occur to him that it might be the police that were shooting because
they were the first group to arrive there. As far as he was concerned, he had
only heard about the water cannons being told to move in but he did not
know that there were any other police units at koppie 3. The first time that
he became aware that there were different units present was when they
were lying there and he saw members of the NIU from the eastern side.484

50)

He said that he saw the NIU coming from the eastern side after the shooting
of Mr Mkhonjwa but before the incident with Mr Mpumza. There were less
than ten NIU members walking and they were also shouting at the strikers.
They were not in a line because it was a very rocky area.485 He said that
POP members started arriving in a Nyala on the western side. He could not

482

Day 233, Kidd, pp.29085-29089

Day 233, Kidd, pp.29092-29093
484
Day 233, Kidd, pp. 29089-29090
485
Day 233, Kidd, pp.29093-29094
483

289
say quite when it was that the POP members arrived. 486 He said that he first
observed K9 members (members of the dog unit), when he went back to his
line and where the body of Mr Mkhonjwa (body N) was found. Warrant
Officer Swartz told him that he had also discharged a firearm at someone
and he said that there were more incidents around the corner where the dog
unit and other TRT members were.487

51)

He said that he did not hear continuous shooting for the twenty minute
period on koppie 3. He heard shots and a period of quiet and again shots
being fired. They sounded like low calibre shots and R5 shots. He said he
would be surprised to hear that there were more than 250 rounds fired at the
koppie.488

52)

Under cross examination by both counsel for the Families and the Injured
and Arrested Persons, it was put to him that the strikers were tapping their
weapons repeatedly and pointing at the police in an effort to tell them to get
out of their way because they wanted to emerge from the koppie.489 His
response was that they free to come out at any stage and would be allowed
to pass, as long as they put down their weapons.

53)

Colonel Modiba said according to the plan he was stationed with the NIU to
be positioned behind the POP and the TRT to sweep the koppies. When the
TRT line fired at Scene 1, he was about eighty to one hundred metres
behind them. He instructed his unit to do a sweep of koppie 1 as instructed
and went with them through a gap between a Nyala and its empty wire

486

Day 233, Kidd, p. 29095

Day 233, Kidd, pp.29096-29097
488
Day 233, Kidd, p.29100
489
Day 234, Kidd, p.29331
487

290
trailer.

Because the TRT were busy at Scene 1, he instructed Colonel

Nkebe to sweep koppie 2 and Captain Cwinyane with nineteen members to

sweep koppie 1.490

54)

He proceeded towards koppie 3 in his formation, with Colonel Nkebe on his

right.

Just before they entered koppie 3, armed strikers emerged from

behind the rocks and charged at their line. They were in possession of an
assortment

of

dangerous

weapons

such

as

assegais,

axes

and

knobkieries.491 At the same time, he heard the sound of firing from the
mountain and assumed it was from koppie 3. He could not distinguish the
calibre of the shots but confirmed that it was not automatic fire.492

55)

When the armed group was about fifteen to twenty metres away, he shouted
at them to stop but they did not. He and other members of his unit fired
warning shots and some of the group returned to koppie 3, but others
continued to charge while he was firing into the ground.493

56)

As he moved closer, and near a large rock, he saw the body of Mr Anele
Mdizeni (body A) and some other persons but could not make out whether
they had been killed as well.494

57)

At some stage he saw Major General Naidoo with less than ten policemen
with him and there was firing from the southern side. He saw Major General
Naidoo climb over the rocks. At that stage, Colonel Modiba entered koppie
3.

490

Because there was shooting from the western side, he waited until it

Day 242, Modiba, pp.30487 to 30489

Day 242, Modiba, pp.30494 to 30496
492
Day 242, Modiba, pp.30497 to 30499
493
Day 242, Modiba, pp.30500 to 305004
494
Day 242, Modiba, p. 30504
491

291
stopped. He could see strikers charging and running and he heard gun
shots coming from that direction.495

58)

As he walked around, he saw Mr Thelejane (body B) lying there. He had no

idea who had shot either of the deceased persons and conceded that it was
possible that they were shot by members of his unit when they were firing
warning shots.496

59)

The approach to koppie 3 by the NIU on foot without any armoured vehicle
cover from the east resulted in an engagement between the members of
SAPS and strikers on the eastern side of the koppie. The discharge list
indicates that they shot one hundred and fifteen rounds of live ammunition of
which one hundred and three were R5 rounds.497

60)

The evidence leaders set out Mr Whites criticism of the risk as being
twofold, in that, the NIU members were placed at risk because they formed a
large target if the strikers on Koppies 2 and 3 were violent and armed with
firearms and also that if the strikers resisted arrest the NIU were armed with
only live ammunition to ensure compliance.498

61)

Major General Naidoo said he was deployed at FHA 1 from Tuesday, 14

August 2012 with members of the STF, NIU, POP Reserve Forces, the K9
Unit, the Mounted Unit, the Detectives, the Crime scene Investigators,
Medical Emergency Personnel from Rescue 911 and Fire Fighters.499

495

Day 242, Modiba, pp.30506 to 30509

Day 242, Modiba, pp.30514 to 30516
497
Exhibit FFF 8
498
Evidence Leaders Heads of Argument paragraph 835
499
Day 188, Naidoo, p. 22876
496

292
62)

On the 16th, because of various deployments, his contingent comprised the

K9 Unit, the Mounted Unit, the Crime Scene Investigators, Medical Rescue
Personnel, Fire Fighters and POP in soft vehicles.500

63)

He said that his role in the operation was to provide support, which entailed
releasing medical personnel, fire trucks and other support functions as and
when required.501 He clarified that the K9 Unit was to conduct a sweep of the
area after the dispersal to find any weapons, especially firearms which may
have been discarded in the bushes and the rocks.

They were also to

provide an escort service for the emergency personnel.502

64)

He said that he briefed all his commanders as well as the K9 personnel in

terms of the briefing in the morning and moved his entire reserve forces,
besides the Mounted Unit, to Immediate Response Area 1, closer to Koppie
1.503

65)

He said that around 15h40 he was listening to the radio where Brigadier
Calitz was reporting that the crowd was moving towards the negotiation
group and discussions about the roll out of the barbed wire were taking place
with his various commanders to repel or block off the group that was trying to
get through the police lines.

He could not see any of this. There was

frequent communication between Brigadier Calitz and Lieutenant Colonel

Vermaak. At some stage, he heard on the radio that the negotiation group
were under attack by the crowd. He heard the sound of gunfire erupting as

500

Exhibit JJJ 108 paragraph 53

Day 189, Naidoo, p.22900; Exhibit JJJ 108 Paragraph 55
502
Day 189, Naidoo, p. 22901
503
Exhibit JJJ 108 Paragraph 57-58
501

293
well as the sound of stun grenades being deployed. He said that the volley
of live ammunition that he heard was unexpected.504

66)

At that stage, he was still at Immediate Response Area 1 and he heard

Lieutenant Colonel Vermaak say that people were down at koppie 1 and that
he should get medical assistance to them. The picture that he had was that
of people being injured during dispersal and stampeding. He was also told
that the veld had been set alight and that he had to deploy the fire trucks.505

67)

In response to the radio message, Major General Naidoo moved with the K9,
medical personnel and the fire personnel, in the direction of the small power
station, moving towards koppie 1. He turned into a small road on the side of
the power station which was the most direct route to get to the injured
persons, but found that they could not traverse that road and the column of
vehicles had to turn around.506 He said that they used the road around the
electricity sub-station to pass koppie 3 to move towards koppie 1. As he
came around the substation, he heard heavy gun fire that sounded like
someone using automatic weapons.

It sounded like several automatic

firearms firing at the same time at short intervals. He asked the main body of
the reserve group to stop in that area and moved towards the direction of the
firing where he had also observed certain SAPS personnel.507

68)

As he approached, he saw a line of NIU members to the right of the Koppie

moving in a westerly direction from Koppie 1 towards koppie 3. They were
more than a hundred metres from him at that stage. He stopped about two

504

Day 188, Naidoo, pp.22906 to 22909; Exhibit JJJ 108 Paragraph 59

Day 189,Naidoo, pp.22909 to 22911
506
Day 189, Naidoo, pp.22911 to 22912
507
Day 189, Naidoo, pp.22913-22915
505

294
hundred metres away from koppie 3. He saw an STF Casspir on the scene
and a water cannon being escorted by a Nyala in front of the Casspir. He
also saw veld fires directly behind the Nyala.508

69)

At that stage, he could not see any people in koppie 3 as he could just see
dense bush. He saw a group of TRT members moving from the west. He
thought the firing that he heard was coming from the east and feared that
there was an exchange of fire.

He saw many strikers dispersing in a

westerly direction who went through the filtering line that the TRT,
approaching from the west, had formed.509

70)

He said that he moved forward with the K9 and POP members to ensure that
the area was secure for the deployment of emergency services. 510 He said
that the reason for moving to koppie 3 instead of koppie 1, where he was
supposed to be going, was that the route towards koppie 1 would have to go
past the area of koppie 3 and he could not guarantee the safety of the
emergency personnel whilst there was a discharge of firearms in that area.
He said it was obvious to him that he needed to determine why the shooting
was taking place because he could see SAPS members there and he
needed to address the issue of the shooting and clear the route for the
emergency vehicles.511

508

Day 189, Naidoo, pp.22917 22921

Day 189, Naidoo, p 22922 to 22924
510
Exhibit JJJ 108 paragraph 65
511
Day 189, Naidoo, pp.22925-22926
509

295
71)

Approximately a hundred and fifty metres away from the koppie, he stopped
the vehicles and asked the members to hold the line while he moved to the
right of Koppie 3 where he had seen the NIU members.512

72)

He saw some strikers between the rocks and trees at the koppie and was
under the impression that there were a few strikers there with firearms, who
were refusing to disperse or surrender their arms.

He approached the

koppie with Sergeant Harmse to where the NIU members had taken up
position. He came across three armed strikers in the middle of the veld. He
arrested them and put them into a vehicle. He went to Colonel Modiba and
his team who had taken cover behind one of the rocks. At that stage, he
could not tell what the size of the group of strikers was as he could only see
a few of them at the foot of the koppie.513

73)

He said when he brought his vehicles to a halt, and he went with a sergeant
from the dog unit, he saw dust puffs around his feet and realized it was
bullets that were striking the ground.514 Sergeant Harmse was about two
paces behind him at the time. He knew that the members had taken cover
at the vehicles and he heard some shooting from the K9 members. His
impression was that they were returning fire to whoever was firing at them
and they were firing in the direction of the koppie.515 He could not say how
many rounds were fired but he thought that they were fired from R5 rifles.

74)

He saw about three to five strikers running along the top of the koppie, and
he had no idea how many were inside the koppie or in the bushy area. He

512

Day 189, Naidoo, pp.22926-22927

Day 189, Naidoo, pp22927 -22929
514
Day 189, Naidoo, p.22931
515
Day 189, Naidoo,p. 22933
513

296
thought he saw one of them, in possession of a long barrelled firearm
running in a westerly direction. He was clearly visible running on the rock
and he was about 200 to 300 metres away at that time. The firearm was
clearly distinguishable because of the shape. He said that other persons
with him also saw the firearm. When he assessed the situation, he saw that
there were several strikers lying on the rocks above the police officials. 516
He instructed his personnel to reform the line so that they could continue to
move forward in a sweeping action to clear the rocks as the NIU had been
doing before the shooting.

75)

He said as they approached the rocks, they came under fire. At that stage,
there were three or four police officials together with Sergeant Harmse of the
dog unit with him.517 He could not see how many people were inside the
koppie, he could only see two people behind the rock and there was a tree in
front of the rock. A bullet that was fired from that direction narrowly missed
him and struck the rocks behind him.518

He said that he immediately

returned fire discharging two rounds from his 9mm pistol at the individual
whom he could see with a firearm in his hand firing at him. At that stage
several other members from the NIU also simultaneously returned fire in the
direction from where those shots had come. He thought that about two or
three people were shot and that about five shots were discharged from R5
rifles. The firing from inside the koppie stopped immediately.

516

Day 189, Naidoo, p. 22935

Day 189, Naidoo, p. 22938
518
Day 189, Naidoo, p. 22939
517

297
76)

He said when the NIU line reached the rocks from where the shots had
emanated, they did not find anyone there to engage. 519 As he approached
he saw several of the strikers running away. He did not follow them. As he
approached the rocks, he saw several strikers, about three or four, inside the
crevices in the rocks. They were armed with traditional weapons, pangas,
spears and sharpened pieces of iron.520 He confronted them together with
members from the NIU. They instructed them to drop their weapons and
they were removed individually, placed under arrest and secured by cable
ties. He heard sporadic firing but he could not give the direction from where
it emanated, nor did he think he was under any specific threat from that
fire.521

77)

At some stage he came across policemen including public order policemen

who were shouting at the strikers to put down their arms.

The strikers

emerged in twos and threes. They were confronted, their weapons were
dropped and they were then arrested.522 Once the area was secured, he
ordered the medical personnel under escort by the K9 to attend to the
injured persons on the scene.523

78)

He then informed the JOC by telephone what had happened. He said this
was the first time he was able to communicate with the JOC as he could not
do this previously because of the radio traffic and the movement that he was
executing.524

519

Day 189, Naidoo, p. 22940

Day 189, Naidoo, p. 22944
521
Day 189, Naidoo, p. 22946
522
Day 189, Naidoo, p.22948
523
Day 189, Naidoo, p.22949
524
Day 189, Naidoo, p.22949
520

298

79)

He called in the crime scene experts and the detectives to take over the
scene and process it. He said this was the first time that he met up with
Brigadier Calitz. They assessed the situation with regard to securing and
transporting of the arrested strikers and instructed the K9 members to sweep
the scene in terms of the plan. Various weapons and firearms were found.
The injured were taken to hospital and the crime scene was evacuated to
allow the crime scene personnel to do their work.525

80)

He said that because the number of medical personnel under his command
was so small, and because of the number of people that were injured and
killed, a large number of further medical personnel were brought to the
scene escorted by Lonmin security. He was instructed by the JOC to return
to FHA 1 to meet with the IPID team. Whilst there, he received a report from
the JOC that the strikers were attacking and burning property and vehicles in
an area about one hundred metres behind him. He responded together with
POP and Mine Security and secured the premises where four motor vehicles
had already been burnt. When he returned to the FHA 1, he discovered that
the IPID team had already moved to Scene 1.526

81)

With regard to the criticism that he ought not to have moved to koppie 3
without the command of Brigadier Calitz and if he had proceeded with the
medical personnel to Scene 1, lives could have been saved, he responded
that an instruction to engage would be normal for the deployment for tactical
units.

525
526

However, with the deployment for emergency services, the

Day 189, Naidoo, pp.22950 to 22951

Day 189, Naidoo, pp.22955 to 22957

299
international expectation was that they would respond appropriately to
ensure people received treatment and services. He said it was very clear to
him from the radio conversation that Brigadier Calitz was not aware of the
need for medical attention until Lieutenant Colonel Vermaak raised the issue
for emergency services to respond. He did not in those circumstances
expect Brigadier Calitz to command him to do so. He also said that he
agreed that swift medical attention at Scene 1 could have saved lives but
emergency services personnel will not deploy if the police cannot ensure
their safety. He said ensuring that the area was safe was a priority. He made
mention of back up medical personnel responding to Scene 1 being stoned
on their way to Scene 1.527

82)

Under cross examination and with regard to the volley of firing that he said
he heard, he conceded that there was a distinct possibility that people had
been injured by the firing.528 He said he did not exclude the possibility that
people had been injured by R5 bullets and had to treat it as a worst case
scenario.529

83)

With regard to the confusion about the shortest route to Scene 1 and the
time wasted with ascertaining the correct route, he said that he had engaged
the services of a driver from the area and worked on the basis that the
person who knew the terrain would take them to where they were required to
be deployed.

Lieutenant Colonel Tongwane of the Mounted Unit of

Rustenburg was the designated driver and he was also present at the
527

Day 189, Naidoo, pp. 22977 to 22978

Day 190, Naidoo, pp.23083 to 23085
529
Day 190, Naidoo, pp. 23088
528

300
briefing by Colonel Scott at 14h30 and knew where the operation was going
to take place. He said that he trusted him to pick the best route to get to
koppie 1 and did not do a reconnaissance himself or task anyone to do so.530

84)

The difficulty of emerging on the police side of the barbed wire with the route
he took was put to him.

He said he did not communicate to the driver

specifically on which side of the barbed wire he wished to be and was under
the impression that he would take the shortest route to Scene 1. The driver
informed him that the route that he took was a better road but he would not
know if that was correct. At some stage, he thought that they would be able
to breach the barbed wire at the power station but did not apply his mind to it
any further.531

85)

Under cross examination he said that there was a twofold purpose for
approaching koppie 3, the first to get information about the safety of the area
and the second to support the police operation there.532

He said the

assessing of the situation was to decide whether it was safe to take the
medical personnel through.

He said that if there was no threat to the

medical personnel in getting to Scene 1 but a need for the police operation
to be supported at Scene 2, he would have tasked one of the K9 groups
under the command of Colonel Mopedi to assist at koppie 3 and since he
was responsible for the safe keeping of the medical personnel, he would
have gone with them to Scene 1.533

530

Day 190, Naidoo, pp.23115 to 23116

Day 190, Naidoo, pp. 23122 to 23125
532
Day 191, Naidoo, p. 23167 and p. 23170
533
Day 191, Kidd, pp.23174 to 23176
531

301
86)

He said that when he got to koppie 3 he saw that people had been shot.
Because one of the primary focus areas for him was to ensure that medical
attention was taken to whoever needed it, it was clear to him that people
who had been shot needed attention. It was put to him that he knew some
thirty minutes previously that he had been asked to bring medical personnel
to the area where the volley of R5 fire had been and that he should have
taken the medical personnel to that scene first. He said had he done that,
he would no doubt have been called upon to answer why he did not attend to
the injured at Scene 3 to whom he was closest. He had three paramedics
with him and he conceded that he could have made a decision to use one at
Scene 2 and send two on to Scene 1.534

B The Killing of Mr Mpumza

1)

Constable Sebatjane is a member of the TRT who was under the command
of Captain Kidd on 16 August 2012. He was on the extreme left of the basic
line and when the groups split, he went into the northernmost group. He
said he ended up on the north western side of the koppie where he met
some POP members arresting some of the strikers. He and some of his unit
assisted in protecting the POP unit.535 At some stage, he heard bullets flying
over his head.536 He was not able to see where the shots were coming from.

534

Day 191, Kidd, pp.23177 to 23179

Day 237, Sebatjane, pp 29648-29649
536
Day 237, Sebatjane, p.29649
535

302
2)

When he finished helping members assist and load suspects into the truck
and as he approached the koppie, he saw a striker with dreadlocks wearing
a white jacket come running out towards the direction of Captain Kidd. This
was Mr Mpumza, who suddenly made a turn and ran in his direction where
he was with Constables Mabe and Buthelezi. Captain Kidd started
screaming at him. Constable Mabe shouted out instructing the striker to
drop his weapon.537 The striker stopped running and started walking slowly
towards them.538 He said that all three of them shouted at Mr Mpumza to
drop his weapons.

He knelt down as if he were putting them down.

Constable Sebatjane said that when he was about three paces away he
walked behind the striker and was about to put his firearm in his holster and
take out his hand cuffs when the striker stood up, turned and faced him,
picked up his left hand in which he had a weapon and tried to stab him. He
indicated that he came forward more or less at shoulder height and just
missed his neck by about three or four inches. He said he drew his firearm
with his right hand and began to fire when he was about two or three paces
from him. He fired one round into his chest and does not know if he hit him.
The striker came running towards him, holding up his spear in his left hand
and wanted to stab him.539 He said that in his left hand he had the spear
with which he was trying to stab him and in his right hand he had a piece of
iron.540 In total he fired nine rounds. He said that the striker tried to stab him
about four or five times while he was on his feet.541

537

Day 237, Sebatjane, pp.29650-29653

Day 237, Sebatjane p.29655
539
Day 237, Sebatjane pp. 29663-29664 and pp.29667-29669
540
Day 237, Sebatjane p. 29670
541
Day 237, Sebatjane p.29670
538

303
3)

He could not say that all the shots that he fired struck the striker. 542 He
thought he was the only person who had shot at that stage as he did not
hear any other shots being fired.543 He subsequently heard that Constable
Mabe had discharged his R5 in defending him.544

4)

Under cross examination, it was put to him that the injuries documented in
the post mortem report were inconsistent with his version in that all the
injuries were described as having been caused by high velocity firearms and
there was no indication that the shots were fired at close range.

5)

The post mortem report records that most of the twelve entrance wounds are
consistent with being fired from high velocity firearms. There is no evidence
of any entrance wounds caused by the 9mm pistol used by Constable
Sebatjane. There is no indication as to the distance from which the shots
were fired.

6)

Constable Mabe said that he fired four shots at the legs and lower body of
Mr Mpumza in private defence.545 A bullet and two bullet fragments were
retrieved from the lower limbs of Mr Mpumza. There is no explanation as to
who fired the other shots that inflicted the other wounds described as being
caused by high velocity gun shots. This merits further investigation.

7)

Captain Ryland captured this incident on video on his cell phone and
confirms that there was an attack on Constable Sebatjane.546

542

Day 237, Sebatjane p. 29695

Day 237, Sebatjane p. 29697
544
Day 237, Sebatjane pp. 29698-29699
545
Exhibit WWW 5
546
Exhibit 12
543

304

The Killing of Mr Makhonjwa

1)

This incident is described in detail by Captain Kidd in paragraphs 32 to 38

above.

2)

There is no evidence of the identity of the person who shot Mr Mkhonjwa.

The positions of the cartridges found on the scene by Captain Mohlaki do not
assist in identifying the person who shot him.

3)

The post mortem report records a single distant perforating gunshot wound
entering and exiting the left arm and re-entering the chest. Paragraph 4.3
describes a concentric ring of abrasion on the lateral aspect of the left
forearm, presumably the entrance wound.547

In view of the fact that the

main post mortem finding records a distant entrance wound, the Commission
is unable to determine the distance from which the shooter fired. Because of
the paucity of evidence the Commission is unable to find whether the shot
was fired in self- or private defence.This incident too, merits further
investigation.

547

Exhibit A page 91

305
D

Command and Control

1)

Major General Mpembe testified that on 16 August 2012, whilst he was in

the JOC and they were receiving feedback over the radio about the
implementation of stage 3 and before the dispersal process had started, he
went to Major General Annandale and asked for a chopper so that he could
fly over the area, together with Brigadier Tsiloane and get an aerial view of
what was going on. Whilst he was on the way to the chopper, he heard over
the radio that there was a line of strikers moving towards TRT. He said that
he thought that could not be so and that the strikers must have been moving
towards POP. This, according to the time line, was at 15h53.548

2)

He said that being able to see what was happening on the ground from the
chopper would enable him better to perform his functions as an overall
commander. He was asked whether while in the helicopter, he would have
directed the operation if he thought that it was not going according to plan
and whether he would then give orders from there because he was in a
better position to see what was happening.

He said that operationally

speaking, once the operation had commenced, it was in the hands of the
operational commander. If he heard on the radio or if he saw that there was
something going wrong, he could intervene without any help being sought
from him. However he would expect that the operational commander would
communicate with him in this regard.549

548
549

Day 106, Mpembe, pp.11475-11477

Day 107, Mpembe, pp.11487-11488

306
3)

He said that he heard Brigadier Calitz asking why the TRT and the STF are
not moving and that there was a response from the chopper saying that
there were bodies lying down.550 He said that was an indication to him that
there was something wrong. He tried to communicate with the operational
commander but because there was very high radio traffic between Brigadier
Calitz and Lieutenant Colonel Vermaak, he was unable to communicate with
Brigadier Calitz and ordered the pilot to take him back to the JOC.

4)

He said when he heard about bodies down, he had not heard a report of any
shooting. He said whilst in the chopper he heard the conversation between
Brigadier Calitz and Lieutenant Colonel Vermaak. He said he heard
Brigadier Calitz giving dispersal instructions and giving orders to the water
cannons. He remembers as significant that he heard him say do not engage
the target before the target engages you.

5)

He said he was in the air for about twenty minutes. When he got back to the
JOC he learnt that there had been a shooting and that people had died.

6)

Under cross examination by Mr Madlanga, Major General Mpembe said that

when he was in the air for about some twenty minutes, he could follow what
was going on from the reports on the radio and see some of the dispersal
action but could not see whether people were lying on the ground.551

7)

He said that he did not even think of calling Brigadier Calitz on the cell
phone. It was put to him that he deprived himself of the opportunity of

550
551

Day 107, Mpembe, p.11489

Day 112, Mpembe, pp.12064-12066 and p.12070

307
considering what appropriate action to take after Scene 1.552 He said that he
thought that there might be problems with the electricity lines in the area and
that might affect the mobile phone signals.553 In his statement at paragraph
51, General Mpembe says that at all times including when he was in the
helicopter for about twenty minutes, he was accessible by radio to the
operational commander Brigadier Calitz and to the JOC.

As the overall

commander, he could only give direction when it was sought from him, either
from the operational commander or the JOC. Neither sought direction from
him. He said it is not the function of the overall commander to usurp the
functions of the operational commander when he was better positioned as
being on the ground and experiencing the action first hand.

8)

It occurs to the Commission that the aerial view that Major General Mpembe
had placed him in a more advantageous position to assist the operational
commander on the ground, who might

have had a somewhat restricted

view, given the size and nature of the terrain over which the operation was
being rolled out.

The Commission does not understand why he, as the

overall commander, would expect to be invited to assist.

9)

Under cross examination, Major General Mpembe said that at Scene 2 there
were five units with five commanders converging on koppie 3 and at that
time they should have been coordinated by the operational commander,
Brigadier Calitz.554

552

Day 112, Mpembe, p.12073

Day 113, Mpembe, pp. 12087-12088
554
Day 125, Mpembe, p.12964 day 125
553

308
10)

He said that Lieutenant Colonel Vermaak was in the helicopter as an aerial

post for Brigadier Calitz who could not see on the other side of the mountain
and Brigadier Fritz was also in a chopper and he was also to act as the
operational commanders eyes in the sky.555

11)

He said that Major General Naidoo was in charge of the members of FHA 1,
Colonel Gaffley was in command of the STF, Colonel Modiba was in
command of the NIU, Captain Kidd and Lieutenant Colonel Pitsi was in
charge of the TRT.556 Major General Mpembe said that from the briefing that
he received from these members on the late afternoon of the 16 th

557

, it

appeared as though as they had acted on their own initiative and that their
actions were not coordinated by Brigadier Calitz. 558

12)

Major General Mpembe said that he did have a discussion with Brigadier
Calitz about his not coordinating all the units at Scene 2, and Brigadier Calitz
said that he was not aware at the time that there were people that went there
on their own initiative.559

13)

It was put to him that there are statements of several members of SAPS
saying that they were unaware of the presence of other units on the other
side of koppie 3 and that the gunfire that they heard and thought had come
from the protestors might in fact have come from other SAPS members.560
He replied that he was unaware of these statements.

555

Day 125, Mpembe, p.12966

Day 125, Mpembe, p.12962-12963
557
Day 125, Mpembe, p.12964
558
Day 125, Mpembe, p.12940
559
Day 125, Mpembe, p.12975
560
Day 125, Mpembe, p. 12977
556

309
14)

He said that when any officer does anything on his own initiative, it is
normally expected of him to communicate that to the operational
commander.561 It was specifically put to him that if Captain Kidd went to
koppie 3, he should have communicated that to Brigadier Calitz. He agreed
and added that when he raised it with Captain Kidd, he raised the problem
with radio communication. He also agreed that if Captain Kidd had informed
the operational commander by radio then the JOC would have got to know
that he was taking the initiative to go to koppie 3.

15)

It is clear from the evidence that the overall commander Major General
Mpembe had absolutely no command and control of Scene 2.

Did Brigadier Calitz hand over control to Lieutenant Colonel Vermaak?

1)

The evidence relating to this issue is set out in detail in paragraphs 1 to 7

and 10 to 19 above.

2)

In the Commissions view, Lieutenant Colonel Vermaak appears to have

assisted Brigadier Calitz in directing the water cannons, the Nyalas with POP
members and the canters in and around Scene 2. The Commission has no
hesitation in finding that Brigadier Calitz did not hand over command and
control to Lieutenant Colonel Vermaak.

561

Day 125, Mpembe, pp.12978 -12979

310
3)

Brigadier Calitz has been criticised by the Evidence Leaders for failing to
issue any warning to the strikers at the stage when they were surrounded in
koppie 3.562

They argue that those strikers who wished to surrender

peacefully were not given an opportunity to do so before steps were taken to

disperse them which might include the use of force. Sections 9(2) (a) and
(b) of the Regulation of Gatherings Act 205 of 1993 apply.563 The
Commission agrees with this submission.

4)

The Commission also agrees with the further criticism that Brigadier Calitz
failed to order the use of tear gas to force the strikers out of their hiding
places at koppie 3, which process had far less risk involved to both members
of the South African Police Services and the strikers.564

5)

According to Brigadier Mkhwanazi the responsibity of the operational

commander is to coordinate the entire operation as set out in Standing Order
262.565 He said the operational commander is the main person who will be in
charge of the operation and who will co-ordinate all the issues of the
operation.

562

Evidence Leaders Heads of Argument Paragraph 815.1

Section 9 (2) (a) and (b) states: (2) (a) In the circumstances contemplated in section 6(6) or if a
member of the Police of or above the rank of warrant officer has reasonable grounds to believe that
danger to persons and property, as a result of the gathering or demonstration, cannot be averted by
the steps referred to in subsection (1) if the gathering or demonstration proceeds, the Police or such
member, as the case may be, may and only then, take the following steps: (i) Call upon the persons
participating in the gathering or demonstration to disperse, and for that purpose he shall endeavour to
obtain the attention of those persons by such lawful means as he deems most suitable, and then, (ii)
in a loud voice order them in at least two of the official languages and, if possible, in a language
understood by the majority of the persons present, to disperse and to depart from the place of the
gathering or demonstration within a time specified by him, which shall be reasonable.
(b) If within the time so specified the persons gathered have not so dispersed or have made no
preparations to disperse, such a member of the Police may order the members of the Police under his
command to disperse the persons concerned and may for that purpose order the use of force,
excluding the use of weapons likely to cause serious bodily injury or death.
564
Evidence Leaders Heads of Argument paragraph 815.2
565
Exhibit SS 2
563

311
6)

The Commission must accept that because of the large area and the nature
of the terrain, an operational commander on the ground would have a very
limited view of what was happening on all sides of the koppie. Lieutenant
Colonel Vermaak was in the best placed position to see who was converging
on koppie 3, but makes no mention of any of the units moving towards
koppie 2 on the radio. Brigadier Fritz was equally suited to see what was
happening on the ground, but completely neglected to advise either the JOC
or Brigadier Calitz as to what was happening on the ground.

7)

The evidence does establish that when Brigadier Calitz was regrouping, and
could not see the TRT line behind him, he asked Lieutenant Colonel
Vermaak to check where they were. Once Brigadier Calitz was aware, as he
obviously was from the radio traffic, that there were police units in the area, it
was incumbent upon him throughout the operation to check with each unit
where it was, or if unable to do so, to ask Lieutenant Colonel Vermaak and
Brigadier Fritz on the radio, to report on where the various units were and
what they were doing.

8)

Brigadier Calitz said that he was not aware of the shooting at Scene 2. The
Evidence Leaders contend that this is as implausible as his claim that he
was unaware of the shootings at Scene 1. In paragraph 769 of their Heads
of Argument they submit that his Nyala was not moving at any stage during
the shooting at Scene 2, and the only noise would have been the noise of
the vehicle idling. The doors of the Nyala were open while it was stationary
and they submit the sound of the two hundred and ninety five gunshots
would have been audible through the open doors. They said that Brigadier

312
Calitz conceded that he got out of Papa 1 on several occasions while he was
but one hundred and fifty metres away from Koppie 3. The shooting at
Koppie 3 was heard by Warrant Officer Mamobolo, the Commander of Papa
11 which was parked with Papa 1 at the scene and if he could hear them,
then Brigadier Calitz must have heard them.

9)

The Commission agrees with these criticisms and find support for these
contentions in the transcript of the radio conversation between Lieutenant
Colonel Vermaak and Brigadier Calitz.566

10)

Major General Naidoo conceded that as the senior ranking officer at Scene
2, he was in command and control of all the police units there.567

11)

The Evidence Leaders criticised Major General Naidoo for having

participated in a chaotic free for all which cost sixteen people their lives
without exercising any command and control and without taking any steps to
stop the shooting and isolate the problems.568

We agree with these

criticisms.

12)

Captain Kidds explanation was that he was unable to command those

members under him once the orders were received from Lieutenant Colonel
Vermaak and Sergeant Venter in the helicopter to move left and his group
split in three different directions. In view of his concession that when the
groups split up, he could have designated commanders to be in charge of
each of the groups and to stay in touch with each other by cell phone but did
not do so, his explanation is unacceptable

566

Exhibit OOO 11
Day 194, Naidoo, pp.23707 to 23708
568
Paragraphs 819 to 822
567

313
E

Ballistics and Medical Evidence

1)

It has been suggested by SAPS that their members came under fire from the
strikers at the koppie.

Three firearms were recovered from the strikers.

One firearm had a full magazine and appears not to have been fired on 16
August. Another had a cartridge holding six rounds and one empty cartridge
in its magazine with a capacity for seven rounds. The last had two rounds in
a magazine with capacity for eight rounds. There does exist a possibility that
there might have been further firearms in the possession of the strikers on
the koppie that were either hidden on the koppie and not recovered or
concealed on the persons of the strikers when they left the area.

2)

According to Exhibit L just under a third of the cartridges for the two hundred
and ninety five shots fired by the members of the South African Police
Services at Scene 2 were recovered. No cartridge cases for any shots fired
by strikers or anybody else was found. This is an indication that only a few
shots could have been fired by the strikers.

3)

Apart from the circumstances set out above, there is no other evidence
about the deaths on koppie 3. A reconstruction of scene 2 was done by Mr
De Rover and he sets out his views in his supplementary statement. 569 He
testified that he went to Marikana with the members who were involved in
the operation. He asked each of the members to place himself where he was
at the time of the shooting, with each member confirming the correct position

569

Exhibit FFF (A)

314
of those who were to his left and right. The members pointed out where they
were when they fired shots and their reasons for doing so.570

4)

Regrettably, the Commission is not privy to the workings and details of the
reconstruction and has not been furnished with any documentation or
diagrams to show the process followed in arriving at these conclusions. It is
not possible for it to assess the merits of his conclusions.

5)

A detailed report integrating the ballistics and medical evidence compiled by

Dr Naidoo and Mr Steyl is instructive.571 The Commission notes that many of
the ballistics reports referred to, emanate from the South African Police
Services.

6)

The evidence leaders submit that firing from the K9 members under the
command of Major General Naidoo and the NIU members from the east, is
most likely to have caused the death of those strikers killed in the area
among the crevices and rocks.572

7)

They based this on the trajectories plotted by Dr Naidoo and Mr Steyl and
set out their detailed conclusions as follows:

(a)

Mr Mangcotywa appears to have been shot from the rocks over

which the NIU came with Major General Naidoo, but could also have
been shot from the direction of the K9 vehicles and members.

570

Day 285, de Rover, pp.36884 to 36885

Exhibit ZZZ5
572
Evidence Leaders Heads of Argument paragraph 870 and 871
571

315
(b)

Mr Liau was shot with a single 9 mm bullet. The bullet was found but
could not be linked positively to any firearm handed in for analysis. It
is possible that Mr Liau was shot from a position on top of the rocks
over which Major General Naidoo came with the NIU.

(c)

Mr Mosepetsane was most likely shot from the direction of the K9

members.

(d)

Mr Mabiya was also most likely shot from the direction of the K9
members.

(e)

Mr Nokamba may have been shot from either the rocks over which
Major General Naidoo came with the NIU or from the position of the
K9 members.

(f)

Mr Saphendu was also probably shot either from the rocks over
which Major General Naidoo came with the NIU or the position of the
K9 members.

(g)

Mr Ngxande appears to have been shot from the rocks over which
Major General Naidoo came with the NIU members.

(h)

Mr Gadlela may have been shot either from the rocks over which
Major General Naidoo came with the NIU or from the position of the
K9 members.

316
(i)

Mr Pato is likely to have been shot from the rocks over which Major
General Naidoo came with the NIU.573

8)

The South African Police Service postulated various scenarios surrounding

the deaths of the deceased, relying in some instances on an analysis of the
shooters statements against the background of the ballistics analysis of Mr
Steyl and the reconstruction by Mr De Rover.

The Commission is not

convinced that these scenarios are correct.574

9)

Apart from the evidence of a reconstruction of the scene by Mr De Rover,

the South African Police Service provided no details of what happened with
regard to the deaths of most of the deceased at Scene 2. Where it does
provide evidence pertaining to the deaths of some of the deceased, their
versions do not, in the Commissions view, bear scrutiny when weighed up
against the objective evidence.

10)

The Families, in their detailed analysis of the evidence given at the hearings
and the affidavits placed before us against the background of the medical
and ballistics evidence, submitted that all the killings at Scene 2 were
unlawful. They submitted that there were no attacks by any of the deceased
on the members of SAPS, that SAPS members did not act in private defence
and that their response was disproportionate to any perceived threat.575

11)

The SAHRC was equally critical of the evidence surrounding the deaths at
Scene 2, as was the Legal Resources Centre. Their analyses pointed to the

573

Exhibit ZZZ5
SAPS HOA Paragraphs 212 to 237
575
Families HOA Paragraphs 416 to 609
574

317
improbabilities in the versions proffered by SAPS as to how the deceased
were shot. An important point that resonates with the Commission is the
criticism of the lack of information in the statements provided by members of
SAPS that deal with the shootings.576

12)

In view of the recommendations the Commission make with regard to Scene

2, it is not necessary to deal with these submissions in detail, save to say
that the Commission is alive to the merits of the submissions made.

1)

The Effect of Major General Naidoos Actions

The approach by Major General Naidoo and K9 from the south towards
koppie 3 effectively blocked one of the dispersal routes for the strikers on
koppie 3, the others being blocked by Captain Kidd and his members and
Colonel Modiba and his members.

This hampered the dispersal of the

strikers by the POP members from the terrain of koppie 3 into open ground
where the strikers could have been disarmed by the tactical teams.

2)

The shooting by Major General Naidoo and the K9 members placed the
members of the STF at risk causing Colonel Gaffley to desist from
attempting to sweep the koppie with his STF members.

It is submitted

correctly by the Evidence Leaders that the unit best qualified to sweep the

576

SAHRC HOA Part Twelve; Legal Resources Centre Heads of Argument paragraphs 238 to 310

318
koppie and disarm the strikers was prevented from doing so by the shooting
of the members with Major General Naidoo.577

3)

Major General Naidoo is criticised for his failure to exercise control at Scene
2. It is submitted by the evidence leaders that as most senior officer at
Scene 2, he did nothing to stop the firing of two hundred and ninety five
rounds of ammunition at the strikers in the koppie. He failed to ascertain
what the problems were and in so doing, completely failed to exercise any
command and control at the scene. The Commission agrees.

The shooting by Major General Naidoo

1)

The Evidence Leaders point out that Major General Naidoos version of the
shooting in self-defence is contradicted by the statements of the occupants
of Papa 11, namely, Warrant Officer Mamabolo and Constables Dzivhani,
Zondi, Khosa, Malesa, Mathabha and Mokoyama.

The version in these

statements is to the effect that Major General Naidoo and other police
officers were seen emerging on the top of the boulders from the direction
from where the firing came. Warrant Officer Mamabolo says that he shouted
at them to cease fire but the shooting continued. None of them noticed any
shooting by the strikers. There is also no corroboration for Major General
Naidoos version from Sergeant Harmse who was very close to him.

577

Evidence Leaders Heads par 818.2

Exhibit FFF10

319
2)

They also submit that his description in oral evidence of the shooting is
different from the versions in his statement. They attribute this change in
version to the belated finding by the ballistics expert that a cartridge case
linked to Major General Naidoos firearm was found on top of the rocks,
because at the time of making his statements he was not aware of this
ballistics evidence.

3)

They also criticise that he only belatedly submited his own firearm for
investigation by the ballistics experts.578

4)

The Commission is satisfied that the anomalies in his evidence as well as

the fact that his version is contradicted by other evidence, warrant the
circumstances surrounding the shooting to be referred to the Director of
Public Prosecution for further investigation.

Medical Attention at Scene 1 and 2

1)

It is common cause that there was no medical attention provided at Scene 1

for about an hour. The paramedics under the protection of Major General
Naidoo at FHA 1 were diverted to Scene 2. The justification proferred by him
for so doing was that there were injured persons at Scene 2 who needed
medical attention.

578

Evidence Leaders Heads of Argument paragraphs 824 to 829

320
2)

Whilst there might be some merit in attending to those injured persons in the
closest proximity to the paramedics, he must be criticised for not conveying
to the JOC or to Brigadier Calitz that he was unable to bring the paramedics
to attend at Scene 1. Had he done so, there would no doubt have been other
measures that could have been put in place to remedy the situation.

3)

The Commission finds unacceptable his version that he could not have used
his cell phone to communicate with the JOC because he was busy with the
interventions at koppie 3. It is the Commissions view that he should have
made notifying the JOC of his inability to bring the medical personnel
through to Scene 1, a priority.

4)

However, the delayed medical attention at Scene 1 cannot be entirely

because of his omission. Captain Loest testified that he telephoned Brigadier
Pretorius around 16h05 and asked her to arrange medical personnel as
soon as possible.579 He said that he had to call on the cell phone because
communication by hand held radio was not possible.

5)

There is a note in the JOC records that he reported twenty eight strikers
injured.580 Brigadier Pretorius and other senior officers in the JOC would
have known that there were only three paramedics at FHA 1 with Major
General Naidoo. The report by Captain Loest must have alerted them to the
fact that those three paramedics would not be sufficient to attend at Scene 1
even if they did arrive timeously.

579
580

Day 229, Loest, p.28323

Day 229, Loest, p.28357

321
6)

There has also been evidence that medical emergency services were
stationed at the JOC and according to the evidence Brigadier Pretorius did
arrange for other medical assistance to be sent to the scene. The
Commission has not heard evidence as to why they were unable to attend
timeously given that they were closely positioned to Scene 1.

7)

In view of the fact that it was foreseen that four hearses were required and
four thousand extra rounds of ammunition was ordered, the question arises
as to whether in the planning of the operation arrangements were made for
sufficient medical personnel to attend.

8)

Under cross examination by Mr Chaskalson, it was put to Major General

Naidoo that medical personnel arrived by chopper at Scene 2 at about the
same time that the medical personnel with him were at Scene 2. It has not
been explained why if the response time to Scene 2 was so short that it was
not so as well with Scene 1.

9)

The medical evidence before us is that timeous medical assistance could

have saved the lives of some of the deceased.

10)

Major General Naidoo is also criticised for being unable to explain why he
stopped at various instances en route to Scene 1 thus wasting time and
failing to prioritise the taking of the medical personnel to Scene 1.

11)

The Commission recommends that the circumstances surrounding the delay

caused by Major General Naidoo in bringing medical attention to scene 2
should be forwarded to the Director of Public Prosecutions for further
investigation to ascertain whether there is a basis for prosecution.

322

Crime Scene 2 and Investigations

1)

Captain Mohlaki and his team, consisting of Warrant Officer Thomas,

Warrant Officer Molefe and Warrant Officer Henderson, are all members of
the South African Police Services, and were the first investigators to attend
at the crime scene. The IPID investigators arrived some two hours after
Captain Mohlaki and his team had been processing the crime scene.581

2)

Captain Mohlaki said that both Scenes 1 and 2 were very large areas and
that he was at a disadvantage with a team of only four members. He said
that the terrain was not friendly to work in and that while he was trying to
process the scene, there were still activities ongoing. Motor vehicles were
moving all over the terrain where he had to look for cartridges. Medical
personnel and other police officers were walking all over the place that he
had to examine.582 He conceded that the scene was corrupted to a great
extent.583 He said that he did not and could not collect all the cartridge
cases on the day in question.

A number of them were recovered

subsequently and as late as 1 October 2012 during the inspection in loco. 584
Some cartridge cases were also recovered by IPID on the scene.

581

Day 7, Mohlaki, p.775 to 776

Day 7, Mohlaki, p.819 following
583
Day 7, Mohlaki, p.821
584
Day 8, Mohlaki, p.859
582

323
3)

Warrant Officer Breedt, said in his statement585, that he removed weapons

from the persons and vicinity of injured and deceased to enable the
paramedics to attend to the strikers in a safe environment. This was his own
initiative. He was asked to replace them by someone that he could not
identify, but who he thought was from the Local Criminal Record Centre. He
made no record of where the weapons were prior to removing them and
conceded that in replacing the weapons, he might have done so incorrectly.

4)

The evidence leaders criticise the inadequacy of the explanation by Warrant

Officer Breedt,586 and ask the Commission to condemn in strong terms the
placing of weapons on the deceased persons by members of the South
African Police Services. They point out that a similar incident occurred on 13
August 2012 in the case of Mr Sokanyile.

5)

The possession of weapons and the types thereof is particularly relevant

where members of the South African Police Service allege that they fired in
private defence and in the face of attacks with sharp weapons or firearms.

6)

The Commission is unable to rely on the evidence in the photographs and

videos of scene 2 depicting the bodies of the injured and deceased persons
and the positions of the weapons on or in proximity to their bodies, to
ascertain whether any injured or deceased person may in fact have been in
possession of a particular weapon, because of the actions of Warrant Officer
Breedt and because of the failure to those in command to preserve the crime
scene.

585
586

Exhibit GGG 14
Evidence Leaders Heads of Argument paragraphs 1116 to 1121

324

7)

There is no explanation forthcoming why photographs were not taken prior to

the weapons being removed from the scene, to preserve some degree of
accuracy as to the evidence.

Whilst the Local Criminal Record Centre

personnel might not have been at the scene, and there might have been
some urgency with having the medical personnel attend to the strikers in an
area free from weapons, nothing precluded photographs being taken with a
cell phone camera. Major General Naidoo said that the priority at a crime
scene is to save lives and arrest suspects. It would have been preferable,
he said, if photographs had been taken prior to weapons being removed so
that the integrity of the crime scene could have been preserved. Practically,
that did not always happen.587

It is extremely unfortunate that this did not

happen in this case.

1)

Independent Police Investigative Directorate

The evidence leaders criticize the handling of the crime scene by IPID
particularly with regard to their lack of personnel and lack of experts. 588
They correctly aver that IPID relied on the South African Police Services
ballistics and crime scene experts.

587
588

Day 195, Naidoo, pp.23863 to 23865

Heads of Argument paragraphs 1150 to 1158

325
2)

The Independent Police Investigative Directorate Act589 (the IPID Act) sets
out as one of the objects of the Act in section 2(d), the provision of
independent and impartial investigation of identified criminal offences
allegedly committed by members of the South African Police Services. 590

3)

Section 4 of the Act specifically states that the Directorate functions

independently from the South African Police Service.591 IPID did not function
independently in all respects in these investigations.

4)

Section 24(5) states that no self-incriminating answer or statement made by

any person to an investigator will be admissible in criminal proceedings
against such person, except in criminal proceedings for perjury.592

5)

The paucity of information in the statements of many of the South African

Police Services members involved at the scene, failed to convey a full
picture of what transpired. Whilst the Commission appreciates that many of
the statements were in the nature of warning statements, it was open to
SAPS to place before the Commission more detailed versions, to assist it.
The fact that none of the information contained in the statements furnished
to the Commission in these proceedings of the Commission may be used in
any criminal prosecutions, ought to have encouraged full disclosure.

589

Act 1 of 2011
IPID Act: Section 2 (d) The objects of this Act are to provide for independent and impartial investigation of
identified criminal offences allegedly committed by members of the South African Police Service and Municipal
Police Services
591
IPID Act: Section 4 (I) The Directorate functions independently from the South African Police Service. (2) Each
organ of state must assist the Directorate to maintain its impartiality and to perform its functions effectively
592
Section 24(5): No self-incriminating answer given or statement made by any person to an investigator
exercising powers in terms of this Act will be admissible as evidence against that person in criminal proceedings
instituted against that person in any court, except in criminal proceedings for perjury.
590

326
6)

Many of the statements taken by IPID are in the nature of warning

statements and are lacking in clarity and detail.

7)

The warning statements do not inform the suspect of the protection afforded
to him in terms of section 24(5). The lack of clarity and detail might not have
existed had the provisions of section 24(5) been explained to them by the
IPID investigators at the time of the taking of the statements.

It is

unfortunate that the printed form used by IPID for warning suspects does not
contain the provisions of section 24(5) and inform the suspect of his rights in
terms of that section.

8)

For understandable reasons the IPID investigations have not proceeded

during the proceedings of this Commission. A perusal of the dockets
indicates that there is a great deal of investigation which is still outstanding.

Referral and Recommendations

1)

The lack of clarity around the death of the 17 deceased persons at Scene 2,
places the Commission in the difficult position of not being able to make
findings as to the circumstances surrounding the death of each deceased.
To accept or reject any version, with any degree of certainty, requires further
interrogation of many factors.

327
2)

In the Commissions view, the ballistics evidence, the medical evidence and
the eye witness accounts require to be interrogated alongside a
reconstruction of the scene involving independent specialists in each of
these disciplines. It would be particularly apposite for trajectories and
distances to be plotted and measured, to facilitate an understanding of
where the shooters were in relation to the persons who were shot. These
issues cannot be determined simply by plotting the position of the cartridge
cases in relation to the bodies of the deceased and the positions of the
injured persons and without full explanations from the shooters of their
actions.

3)

Accordingly, in terms of paragraph 5 of the Commissions Terms of

Reference, the Commission refers the circumstances surrounding the
injuries and deaths of all persons at scene 2 to the Director of Public
Prosecutions of the North West Province, to exercise his powers in terms of
section 24(1)(c) of the National Prosecuting Authority Act 32 of 1998593, to
supervise, direct and co-ordinate a specific investigation into the events at
Scene 2.

4)

It is recommended that for the purposes of the investigation, a team is

appointed, headed by a Senior State Advocate, together with independent
experts in the reconstruction of crime scenes, expert ballistic and forensic
pathologist practitioners and Senior Investigators from IPID, and any such
further experts as may be necessary. The investigators from IPID are

593

NPA Act: Section 24(1)(c) Subject to the provisions of section 179 and any other relevant section
of the Constitution , this Act or any other law, a Director referred to in section 13 (1) (a) has, in respect
of the area for which he or she has been appointed, the power to supervise, direct and co-ordinate
specific investigations

328
required to specifically explain section 24(5) to the members of the South
African Police Services when obtaining statements. The Commission
recommends a full investigation, under the direction of the Director of Public
Prosecutions, with a view to ascertaining criminal liability on the part of all
members of SAPS who were involved in the events at Scene 2.

329
CHAPTER 13

The Plan, its Defects and Execution

1)

As counsel for the SAHRC pointed out in their heads (in section 6: at pp[ ])
expert evidence is both necessary and required to assist the Commission and
enable it to fulfil its Terms of Reference.

2)

This is because good and effective policing requires expert knowledge

acquired by training and practical experience. Furthermore public order is a
field of particular expertise. This is recognised in Standing Order (General)
262,

which

deals

with

crowd

management

during

gatherings

and

demonstrations. It provides that the senior officer responsible for designating

the commander of the joint operational centre (the CJOC) which is activated
at the scene of an incident or event must ensure that the CJOC is conversant
with [the Standing] Order and relevant legislation and is well trained to take
responsibility for the operation (para 8(1), read with the relevant definitions in
para 2).

3)

The Commission had the benefit of the evidence of three external expert
witnesses on policing matters, Mr Eddie Hendrickx (who was called by the
Legal Resources Centre), Mr Gary White (who was called by the SAHRC) and
Mr Cees De Rover (who was called by SAPS).

All have considerable

domestic and international experience and expertise in policing matters. Mr

Hendrickse was the manager of the first phase of a technical co-operation
agreement between the South African and Belgian governments from 1996 to

330
2000, when he worked with the Police Development Services on the
restructuring of the Internal Stability Units into the Public Order Policing
Services. He returned to South Africa in 2004 as the head from 2004 to 2008
of a team of international experts responsible for monitoring and evaluating
the management of the changes in the SAPS. Mr White was a member of the
police service in Northern Ireland for over thirty years and was involved for a
considerable period as the district commander in the North and West Belfast
area, which was and is considered one of the most difficult policing
environments in Northern Ireland because of the sustained amount of public
disorder experienced. In his last three years in the service he was the Chief
Superintendent in charge of the operations department. He has extensive
experience of commanding public order policing operations in the area
concerned.

Mr De Rover, who hails from the Netherlands, also has

considerable experience and expertise in public order policing and has been
involved through the United Nations in advising government all over the world.

4)

The expert opinions of Messrs Hendrickx and White were broadly consistent.
Although this only became apparent when he gave oral evidence Mr De
Rover also agreed with them on all the major issues. On one issue, whether it
is possible, in present circumstances, for the SAPS to meet a standard of
compliance with international benchmarks against which Mr White assessed
the SAPS performance at Marikana, Mr De Rover disagreed with Mr White.
The Commission is of the view that that is not a matter on which it needs to
make a finding.

331
5)

The plan which Lt Col Scott suggested to the 13h30 meeting of the JOCCOM,
and which was accepted is well summarised by the evidence leaders in paras
636.1 to 636.16 of their heads as follows:
636.1.

The aim of stage 3 of the plan was to disperse the strikers

from the Koppie area into smaller groups towards the west
where the police, after regrouping and reorganising, could
disarm and arrest fragmented groups of armed strikers.

636.2.

Stage 3 was to be broken up into three phases. The first

phase involved the rolling-out of the barbed wire cordon
between the police and the strikers. The plan required all
vehicles to roll out their barbed wire simultaneously, so that
the process would be quick and the strikers would not have
advance notice of the intention of the SAPS. Once the
barbed wire cordon had been rolled out, it would serve to
direct the strikers towards the west and away from the east
where the police and media area was.

636.3.

Phase 2 of stage 3 was the dispersion action. The dispersion

was to take place towards the west with movement to the
east blocked by the razor wire, and to the north blocked by
police armoured vehicles.

636.4.

In advance of the dispersion action, a verbal warning was to

be issued to the strikers by the Operational Commander.
Strikers who heeded the verbal warning to disperse were not
to be pursued in the field. There was to be a follow-up action,

332
phases 5 and 6 of the plan, to retrieve their weapons from
their places of residence.
636.5.

It was anticipated, however, that not all strikers

would heed the
verbal warning. In particular, Col Scott anticipated
that the militant group would remain. He envisaged
that this group, or its members, might respond in
three different ways :
636.5.1. they might close the ground on the POP
line to confront them with their traditional
weapons,
636.5.2. they might take refuge on the higher
ground between the rock crevices and
bushes on Koppie 1 to ambush any police
officials who attempted to approach them
there, or
636.5.3. after confrontation and being disorganised
by the water cannon and teargas, they
might retreat to regroup on the open fields
to the west.

636.6.

The dispersion objective was to drive the strikers into the

open fields to the west. This would enable the police to
approach the scattered strikers on open ground to effect
arrests. The police dispersion line would form up to the north
of the koppies and push from the north to the south, turning

333
the dispersion line towards the west and the open fields. The
dispersion line would split into three parts to take three
different paths determined by the terrain: the lower path
would turn around the back of Koppie 1, the middle path
would turn between Koppies 1 and 2, and the upper path
would cross above Koppie 2.
636.7.

Once the dispersion action had been initiated and the three
dispersion movements had passed the koppies, the SAPS
would stop and reorganise along the dry river bed running
from north to south between Koppies 1 and 2 to the east and
Koppie 3 to the west.

636.8.

In order to mitigate possible risks, the plan made certain

specific provisions :
636.8.1.

One water cannon was to stay behind the razor

wire line to protect the safe area with the POP
members who had deployed the barbed wire.
These POP members would have some of the
TRT members as back-up, focusing on the gaps
between the barbed wire Nyalas and their trailers
which were a potential weak point in the cordon.
The water cannon could also be used from the
eastern flank to spray at any strikers who did not
heed the verbal warning to disperse and
remained on the koppie.

334
636.8.2.

POPS members were to retreat into the Nyalas if

at any stage they came under violent threat.
Teamwork was emphasised, as was the need to
hold the line according to tactics so that
colleagues were not isolated in a manner that
would make them targets for militant strikers as
had taken place on Monday 13th.

636.8.3.

The TRT line would form up behind the POP

dispersion line to protect any POP members who
found themselves isolated and under threat.

636.8.4.

The TRT would follow the POP dispersion

formation at a distance of not more than 100
metres, and the STF and NIU would form up
behind the TRT line.

636.8.5.

When the TRT line turned west towards Koppie

2, the STF/NIU line with the armoured vehicles in
support would move towards the bigger Koppie
1, where it was anticipated that some of the
militant strikers would take rfup position. The
STF was specifically tasked to clear Koppie 1 of
strikers who had taken refuge there. It was to be
flanked with NIU members on its left and right.
The STF would be responsible for high risk
arrests of belligerent armed strikers in the
vicinity.

335
636.9.

Stage 3 of the plan involved the reorganisation action that

would take place at the dry river bed. It provided a point for
the SAPS to regroup and to identify striker groups or
individuals who remained to be targeted for disarming and
arresting. The Operational Commander would reallocate
tasks at the reorganisation point so that the SAPS resources
could be used most effectively to disarm and to arrest the
remaining strikers. Again it was anticipated that POP
members involved in the disarming and arrest process would
have their armoured vehicles as safe havens as well as
protection from TRT, NIU or STF members.

636.10.

The role of the members at forward holding area 2 was to

secure the small settlement to the south-west of the koppies,
to prevent any violence being visited on the residents of that
settlement and to strop strikers using the settlement as a
sanctuary or a base from which to launch new attacks on the
police.

636.11.

The SAPS teams at forward holding area 1 were instructed

to move closer to immediate reaction area 1 on the southern
side of the power station. This would place them out of sight
of the strikers and would also enable the emergency medical
and fire services to respond quickly to emergency situations
where time would be of the essence.

636.12.

K9 members at FHA 1 would be brought in to search the

rock crevices for illegal firearms and other weapons that

336
might be hidden. They might also be called in to assist with
higher risk arrests. They were not to play any role in the POP
dispersion action.
636.13.

The mounted unit was to patrol the safe environment behind

the POP and tactical forces to maintain a police presence
and to maintain domination of that area.

636.14. The medical services and fire brigade were to be employed as

instructed, but only when cleared to do so either with an
escort for their safety or on the basis of a determination by
the Operational Commander that the area where they were
needed was safe.
636.15.

The force continuum to be used would start with a POP

dispersion line advancing on foot and would then proceed
through the use of water cannons, teargas, stun grenades,
and rubber bullets, in that order and only to the extent that
escalating force was necessary.

636.16.

Once the forces had regrouped at the reorganisation line, the

further implementation of the operation in the field would be
left to the discretion of the Operational Commander. He
would, however, be assisted by Col Vermaak who would be
his eye in the sky in Chopper 1961 and the aerial
commander, Brig Fritz, who would be above the operation in
Chopper 2 and would direct the tactical forces to areas
where they were required.

337
6)

As the evidence leaders point out in para 637 of their heads, there were a
number of obvious weaknesses in the plan Lt Col Scott put together in the
short time period available to him prior to the 13h20 JOCCOM meeting.

7)

The first two, which explain the tragedy on scene 1, are set out in para 637.1
and 637.2, as follows:

637.1.

First, the plan depended on a simultaneous roll-out of the

barbed wire Nyalas. This was necessary, because in the
absence of a speedy and simultaneous roll-out of the barbed
wire, there was an obvious risk that the strikers would
observe the barbed wire rolling out slowly in front of them
and attempt to break through the path of the barbed wire
before it had been rolled out.

However, the

technical

difficulties of rolling-out barbed wire from trailers attached to

Nyalas precluded the possibility of a simultaneous roll-out.
This was apparently known to all POPS Commanders, but
not to Lt Col Scott. Because there were no POPS
Commanders involved in the formulation of the plan and no
POPS Commanders who were present at the 13h30
JOCCOM, this obvious shortcoming of the plan was never
pointed out to Lt Col Scott.
637.1.1.

Brig Calitz who testified after Lt Col Scott,

attempted

to

minimise

this

problem

by

suggesting that common crowd behaviour is not

338
to attempt to break around a barbed wire barrier
while that barrier is being rolled-out.
637.1.2.

This reasoning, however, ignores a crucial fact

which animated Lt Col Scotts planning, namely
that by the time that SAPS commenced with the
roll-out of the barbed wire Nyalas, on their own
version, they had been subject to threats from Mr
Noki and other strikers that the strikers would
attack them. Thus Lt Col Scott stated Now by
the time that the Phase 3 that we are speaking
about, the detail thereof is discussed at the
13h30. The threats had been made towards the
police already, so in my mind I, at that time, if we
were going to go now to Phase 3, its amongst
others because there are threats against the
police from my understanding. And that we
needed to do that rapidly as well, so it is so that I
didnt want the strikers to see that the police are
starting to rollout the barbed wire slowly and then
start building contingency plans against what the
police were doing, to try and counter what the
police were doing.

637.1.3.

Statements about the ordinary behaviour of

crowds in these situations thus do not address
the particular risks that confronted SAPS in this

339
operation. Indeed, common sense suggests that
a crowd as hostile as the crowd with which SAPS
was dealing on 16 August was most unlikely to
stand by idly as it saw what it perceived to be a
barbed wire cage rolling-out around it.
637.1.4.

The reasoning of Brig Calitz is also difficult to

reconcile with the common cause fact that prior
to 16 August 2012, SAPS had taken a deliberate
decision not to place the barbed wire Nyalas in a
position visible to the strikers because it thought
that they would be provoked by the sight of the
barbed wire Nyalas, and the video evidence that
the appearance of the barbed wire Nyalas in the
morning of 16 August 2012 did elicit an
aggressive response from Mr Noki.

637.2.

The next major shortcoming of the plan was the absence of

any measures between POPS members with teargas, rubber
bullets and two water cannons, and a TRT line of sixty
members armed with R5 weapons and effectively operating
as a firing squad. The failure to designate individual shooters
within the TRT line was a tragic shortcoming of the plan.

8)

Mr White was particularly critical, and rightly so, of what the evidence
leaders call the absence of any measures between the POPs members
[using less than lethal force] and a TRT line of sixty members operating

340
as a firing squad. He referred to the fact that there was, as he put it, no
challenge process when Lt Col Scott laid out his plan. The plan was for the
TRT members to engage the crowd if the POP members moved out of the
way for their own protection.

It was said that they would do this

proportionately. Mr White said (on Day 249, at p 31406):

I kept looking for someone to say, so what does this mean? Lets
put it into plain English. If they only have R5 rifles so what were
talking about is shoot people. That seems to be whats going to
happen if its not an inevitability, a high likelihood that there are
going to be very high levels of force used in this.
What is the position were putting these police officers in? What do
we think theyre going to do? I see that as the challenge process,
which didnt happen, and to be honest with you, I was actually
shocked in terms of reading the evidence.

9)

The Commission agrees with Mr Whites comments. It is also of the view

that both of the defects to which the evidence leaders refer would have been
obvious to experienced POP commanders who could have raised them at
the JOCCOM meeting.

10)

The encirclement plan, which was replaced by the new plan at the 13h30
meeting of the JOCCOM because it could not be implemented that day, was
substantially less risky. It, unlike the 13h30 plan, had been drawn up by Lt

341
Col Scott with inputs from experienced POP commanders and was approved
by a full-strength JOCCOM including more POP commanders.

11)

The decision not to implement it was clearly dictated solely by the earlier
decision that Thursday, 16 August, was to be D-Day. That decision, for
which Lt Gen Mbombo and those present at the extraordinary session of the
NMF on 15 August 2012 must accept responsibility, was the decisive cause
of the 34 deaths on 16 August.

12)

In addition to the encirclement plan, there was also the possibility of

executing a cordon and search operation once sufficient information was
available as to the whereabouts of the militant group who did not stay
overnight on the koppie but returned, presumably to their homes, with their
weapons each night.

13)

In order to get this information, a team of detectives from Gauteng had been
working since Tuesday, 14 August, with staff members of Lonmin in
identifying the armed members who could be seen on the videos.

In

addition, it will be recalled, Mr Zokwana had promised the previous night that
NUM members would assist with information regarding the names and
addresses of strikers with the dangerous weapons.

From the nature of

things, this information was not available on the Thursday morning.

14)

The Commission agrees with the contention raised by the SAHRC (in para
4.1.5 at p 313 of its heads) that the operational command should have

342
explained to Lt Gen Mbombo and the National Commissioner the risks that
the order carried and explained to them that on the basis of those risks
four mortuary vans had been requested in advance of the operation. In this
regard it is relevant to note that according to Lt Gen Mbombo (at pp 21717
21726, Day 181) before 09h00 on the morning of Thursday, 16 August, Maj
Generals Mpembe and Annandale warned her that there was a risk of
bloodshed if the operation took place that day but that they would use every
endeavour to reduce it to the absolute minimum. If they had had a proper
challenge process with experienced POP commanders present at the 13h30
meeting and the points made by Mr White had been raised, and they had put
them to her, she would, according to her evidence (at p 21716, D 181), have
been open to a postponement to Friday, 17 August.

15)

The SAPS contended that the fact that there was no comprehensive written
plan did not create a problem for its members because a disperse, disarm,
arrest order is well-known to POP members. But as counsel for the SAHRC
pointed out in para 4.1.8 of her heads this was no ordinary POP disarm,
disperse, arrest operation. She referred to Lt Col Scotts statement, Exh
GGG39, para 6, where he said:
I am not aware that the SAPS has ever been confronted with a
situation of the kind with which members were confronted on the
ground on 16 August 2012. The plan or strategy that I prepared
and proposed for adoption by the JOCCOM was the first of its
kind. Neither the crowd management strategies for which
Standing Order 262 provides, nor the hostage management

343
strategies were appropriate in isolation. I thus had to devise what I
considered at the time to be an appropriate plan for an
unprecedented situation, being on which had to encompass the
principles of Standing Order 262 but moving beyond the
restrictions of the Standing Order to effectively plan for the
disarming of the protestors while considering the protection of the
police officials and the community in the area when dealing with a
belligerent armed group numbering up to 3000 persons who were
choosing to contest the request to disperse and/or disarm,
demonstrating a clear defiance towards the law and the enforcers
of the law with aggressive action should they be approached as
demonstrated on Monday 13th August 2012.

16)

She also referred to Mr Whites discussion of the point in paras 2.3.11 and
2.3.12 of his supplementary statement, where he said:

2.3.11

As a general point, this approach appears to contradict the

requirement

of

SO262

for

comprehensive

written

operational plan, as well as the requirement for unit

commanders to prepare detailed written plans on their
specific tasks. At paragraph 6.6.4 of my Final Statement I set
out the importance of plans provided by unit commanders to
ensure that briefing has not only been given, but also
understood. So on a general basis, I consider that SAPS
policy does not support the contention made at 3.10 of

344
Annexure GW8 (a). But I have a particular disagreement with
the SAPS response in the specific context of the operation at
Marikana.
2.3.12

The SAPS have described the situation they were facing as

unprecedented. The decision to move to a proactive,
tactical phase to disperse, disarm and arrest potentially
hundreds of people within a crowd numbering in the
thousands, meant that this was the most high risk stage of
the whole operation. It involved the co-ordination of a range
of units including the POP, TRT, NIU, STF, K9, Mounted
Unit, Air Wing, and other supporting units including medical
and fire teams. It was important that these various disciplines
worked in harmony. In order to be able to do this it was vitally
important that each unit and each officer understood their
role, but also the role of others as well. The absence of a
written plan increases the risk for instructions and directions
to be misheard or misunderstood, both in relation to what
each unit should be doing, but also in relation to what other
units should be doing. There is significant evidence to
suggest that a number of people within the operation had
misunderstood what was required of them.

17)

The National Commissioner testified (Day 286, pp 7127 7128) that she
thought that the plan was a good one and that the tragic outcome, which was
not intended, was the result of the disruption of the plan. (The disruption to

345
which she refers is the fact that the strikers started leaving the area where
they were while the wire was being uncoiled and some of them advanced
towards the police, giving rise to the belief on the part of the police that they
were going to attack them).

But that overlooks the fact that the plan

provided for possible attacks on the POP members, which would be

repulsed by TRT members, 60 of them, using R5 rifles, which is what
happened.

18)

Mr White also criticized the way the briefing took place and said that the
SAPS failed properly to ensure that the people on the front line understood
the plan.

Mr White explained (in para 6.6.1 of his final statement, Exh

JJJ178) the importance of effective briefing, as follows:

6.6.1

Effective briefing in an operation of this type is essential.

Officers need to understand exactly what is required of them,
what they are required to do, what they are entitled to do and
what they should not do. There is an old adage in planning
for operations that if the people on the front line dont know
what the strategy is, then there is no strategy. That adage is
reflected in the SAPS document Crowd management for
Platoon Commanders - Briefing and Debriefing which notes:
A good briefing is as important as a good plan, because if
there is no clarity and common understanding during the
briefing, the operation is doomed to failure.

346
19)

In her heads (para 5.1.2 at p 324) counsel for the SAHRC summarized the
main points made by Mr White in his final and supplementary statements in
this regard. Her summary reads as follows:

a.

The problematic nature of the briefing by Lt Col Scott, where he

briefed from the back of a van, with 20 commanders crowded
around a small laptop screen, and spoke to a single Google Earth
plan. The commanders were provided with no written material to
take away with them and did not take any notes. The gridded
maps provided that morning in relation to the Stage 2 deployment
no longer described the situation on the ground because Nyala 6
had moved. Despite it being the first time the DDA plan was
described, Lt Col Scott did not recall any questions being asked
by commanders at the briefing; and

b.

The absence of any detailed written plans furnished by unit

commanders on their specific tasks. As Mr. White noted, their
absence is important: the provision of detailed written plans from
section commanders allows the overall commander to confirm that
each commander has fully understood his or her role in the
operation. It is a means to ensure that not only has the briefing
been given, but also that it is understood. In the absence of these
plans, there is no way to be sure that a briefing has been properly
understood.

347
20)

In para 5.1.3 of her heads (pp 325 6) she highlighted some of the more
significant examples of misunderstood or absent briefings, as follows:

a.

Lt Col Vermaak was never briefed on the operation prior to his

deployment as the eye in the sky. Consequently, when the
operation commenced, he believed he was still implementing a
plan to encircle the strikers in the Koppie.

b.

The operators of the JHB water cannon, W/Os Dicks and Kruger
did not attend the briefing in advance of the operation and were
not provided with a radio. This explains why the JHB water
cannon was so delayed in deploying prior to the events at Scene
1 and why W/Os Dicks and Kruger were surprised to find barbed
wire preventing them from driving straight to the Koppie.

c.

There was significant misunderstanding over the purposes of the

barbed wire:
i.

Brig Calitz did not understand that Lt Col Scotts intention

was for the barbed wire to be rolled out simultaneously.
Consequently, a key aspect of Lt Col Scotts plan was not
implemented and Lt Col Scott was not informed that it
would not be implemented, so could not amend the plan;

ii.

Col Makhubela, who was in charge of the barbed wire

nyalas, appears to have believed its purpose was to
encircle the Koppie. That view was shared by others; and

348
iii.

Capt Thupe appears to have believed the purpose of the

barbed wire was to channel the strikers towards the
informal settlement.

d.

Capt Kidd was unsure of the role the water cannons would play in
the operation because he did not pay attention to that part of the
briefing. Consequently, at Scene 2, as the water cannons sought
to drive the strikers towards the west of Koppie 3, Capt Kidds
TRT members blocked what Mr. de Rover described as the
intended pathway out of the Koppie

21)

In a section in their heads on expert policing issues with which the

Commission is in entire agreement, the evidence leaders deal with the
following topics: contingency planning; the adequacy of Standing Order 262;
Recording of radio communications; the use of R5 rifles; radio equipment
and other equipment; intelligence; first aid; designated shooters where
shooting may be necessary in violent crowd situations; the role of political
decision-makers; militarization and demilitarisation; and SAPS accountability
and lessons learned on reluctance to admit error. These topics are dealt
with in paras 1025 1106, which read as follows:
Contingency planning

1025. The experts expressed a good deal of criticism of the planning

of the operation at Marikana.

349
1026. Mr Hendrickx was asked to comment on the plan presented by
Lt Col Scott to the JOCCOM on 14 August 2012 (Operation
Platinum).

He criticised it as not addressing prevention or

conflict resolution for example by meeting with and negotiation

channels between the different parties and the SAPS, patrolling
the area, etc. In this respect, his evidence was similar to that of
Mr De Rover, who spoke of the need for the police to be able to
act as facilitators and as a conduit, rather than as the
mouthpiece in the bearer of the bad news that no-one else
would be coming to talk to the strikers. Mr De Rover referred,
too, to the need for the SAPS to have had a bargaining chip in
order to be able to fulfil this role, and to find ways to relieve the
pressure and the tension, in order to create an atmosphere that
would make it possible to have a conversation rather than an
adversarial stand-off. Similarly, Mr Hendrickx stated that:
There was no real negotiation or dialogue with the
crowd. The SAPS issued an ultimatum but were not able
to offer anything to the crowd in response to its demand
to meet with Lonmin management.

1027. Mr Hendrickx said that the events of 13 August had marked a

turning point which altered the course of the operation at
Marikana.

Previously, the situation had been managed

predominantly as a POP operation. There was a change in the

command structure, with the designation of Maj Gen Annandale

350
as the Chief of Staff and Lt Col Scott as the Chief Planner, and
with formal representation of the NIU and the STF at the
JOCCOM. There was a change in the composition of the SAPS
units, with the specialised or tactical units now outnumbering the
POP units and taking priority roles in the operation.

The

operational strategy was developed and presented by Lt Col

Scott, a member of the STF.

And SAPS witnesses gave

evidence that the situation was regarded as unprecedented,

requiring an operational strategy that moved beyond the
limitations of Standing Order 262.

1028. He contended that the shift away from crowd management was
inappropriate. He said that the crowd management regulatory
framework and Standing Order 262 were applicable to the
situation at Marikana, and that POP units are trained to manage
situations such as that at Marikana. He disputed the contention
that the situation was unprecedented.

1029. Mr De Rover stated that with an operation of this kind you do not
plan half of it and hope that half will suffice, and that if you need
more than that you are going to go back and envisage what
other eventualities could occur. He would be surprised if a plan
completing Phases 3, 4, 5 and 6 was only thought of at 1.30 on
16 August: That would be a serious worry. He agreed that for
an operation of this kind there was a need for a written plan, and

351
the plan must cater for a variety of contingencies the best case
and the worst case scenarios. That needs to be accompanied
with a probability estimate.

1030. That was a necessity identified in the report Towards Peaceful

Protest in South Africa, which was produced by the multinational

expert

committee

appointed

by

the

Goldstone

Commission, and under the leadership of Prof Philip Heymann.

The report formed the foundation for the drafting and enactment
of the Regulation of Gatherings Act.

The expert committee

report as follows, under the heading Command and control of

police:
It is of the utmost importance that the policing of public
order operations is characterised by thorough planning
and preparation. Senior officers must consider and make
contingency plans for various scenarios from those
thought to be highly probable through to those considered
possible, however unlikely.

Through these means the

police will avoid being surprised by unexpected events

and thus retain maximum control over their own officers
and the events themselves.

1031. Mr De Rover was asked whether he had seen such a plan. He

said that he had done so. He was asked to make this plan
available to the Commission, and subsequently made available

352
a document headed Annexures Thursday 2012-8-16. It is the
source file for the last few pages of Exhibit SS3. It was created
on 14 December 2012, four months after the events. Lt Col
Scott explained that he had prepared it in accordance with a
brief to reverse engineer the plans as they were for the
Commission, while Brig Mkhwanazi was testifying.

It is

therefore not a pre-prepared written plan of the kind that Mr De

Rover considered necessary.

1032. We submit that none of the plans made available by the SAPS
meets the criteria set out by the expert panel of the Goldstone
Committee, and also identified by Mr De Rover, particularly with
regard to contingency planning, and dealing with best case and
worst case scenarios. This is not simply a matter of formality:
the failure to consider and plan for alternative scenarios led to
the fatal results of 16 August.

1033. We do not criticise Lt Col Scott for not preparing an adequate

plan: he was placed in an impossible position by the precipitate
decision to implement the tactical phase. It is not difficult to infer
from the conduct of Maj Gen Annandale, who insisted that an
entry be made in the Occurrence Book that this decision had
been made by Lt Gen Mbombo, that he was well aware of the
dangers inherent in the implementation of this decision.

353
The adequacy of Standing Order 262

1034. There was considerable debate during the hearings as to the

applicability of Standing Order 262 to events of the kind which
took place at Marikana during August 2012. On the one hand, it
was contended that Standing Order 262 is intended to deal
comprehensively with Crowd Gatherings and Demonstrations,
and that the conduct of the SAPS should have been governed
accordingly. On the other hand, it was contended that Standing
Order 262 is not appropriate to deal with crowds that are armed
and potentially or actually violent, and also not intended to deal
with operations in which specialist units such as the NIU and
STF (as opposed to just the Public Order Police) are involved.
1035. The fact that there could have been such debate, demonstrates
the inadequacy of Standing Order 262.

There is a need for

complete clarity on this matter. The applicability of Standing

Order 262, or any successor which may be prepared, governs
critical questions, for example, who should be in charge of the
SAPS operations, and whether the use of sharp ammunition is
prohibited in all circumstances. The failure of Standing Order
262 to make any provision at all for the use of sharp ammunition
invites the response from the SAPS that Standing Order 262 is
therefore no applicable in operations with crowds that are armed
and potentially or actually violent.

This in turn leaves space

open for argument as to what prescripts, if any, apply in such

354
situations with regard to the preparation of written plans,
briefing, debriefing, and generally the issue of spontaneous
events.

1036. Given the large number of gatherings and demonstrations which

actually or potentially involve violence, it is a matter of great
urgency that Standing Order 262 be revised to address explicitly
such gatherings and demonstrations.

The Standing Order

should specifically address the question of when tactical units

may be involved in dealing with gatherings and demonstrations,
who is to be in overall command in such situations, and what
prescripts apply to the use of sharp ammunition. It should be
made clear that the usual prescripts relating to planning, briefing
and debriefing are applicable to all such operations.

Recording of radio communications

1037. One of the matters which has given rise to difficulty in

establishing the truth of what happened at Marikana is that the
SAPS did not record and keep a recording of the radio
exchanges.

This was identified by Mr White.

The Chair

suggested that an elementary principle was that there should be

a tape recording made of all traffic on the radio. Mr De Rover
agreed with this.

355
The use of R5 rifles

1038. One of the first recommendations Mr De Rover made to the

National Commissioner was to withdraw R5 rifles from the
Public Order Police, and not to permit them to be used in crowd
control. He gave her this advice between 28 February and 8
March 2013. When the National Commissioner gave evidence
on 10 September 2014, almost eighteen months after she had
received this advice from Mr De Rover, she said that R5 rifles
are still being used in public order operations, and that SAPS is
still considering the matter. We submit that given the urgency of
the matter, which is demonstrated by the high number of public
protests and demonstrations in South Africa and the fatal
shootings at Marikana, that is simply not good enough.

1039. Mr De Rover said there is ample literature on the use of military

weapons in a law enforcement context, and there are rules of
international law that address the use of assault rifles in law
enforcement, generally stating that this should be discouraged.
He said that a .556 round fired at close range is virtually and
per definition a kill shot. The R5 is guaranteed deadly. As to
having the TRT armed with R5 rifles, in the operation, he said he
thought the question turned on:

356
Was it reasonably foreseeable that they would be forced
in that position and did they contemplate that that could
occur, and if you have it occurring, the thing is that it then
almost follows: you put them in that position, all they carry
is that R5, so then it ends up being used.

1040. He said that R5 rifles do not belong in public order management.

If you take away the possibility for them to be used, then you do
not have to deal with the consequences of the reality that they
are used.

Automatic rifle fire does not have a place in law

enforcement. He said that people had admitted to him that they

had fired inadvertently on automatic, and that a burst went off
that might well account for five or six rounds on one pull of the
trigger. That was an utter reality that one must contend with,
whether it is the result of ineptitude or stress.

Radio equipment and other equipment

1041. The SAPS leadership repeatedly attributed what happened at

Marikana to a lack of adequate communication, and in particular
the difficulties with the radio system there was only a single
channel in operation, and most of the airtime was taken up by
Brig Calitz and Lt Col Vermaak.

357
1042. Mr White stated that in his experience of large public order
operations, problems with radios arise very frequently. When a
single channel is being used without an override button, it can
be difficult to get on the radio to make a transmission. But he
also made the point that this was a foreseeable problem in an
operation such as the one which took place at Marikana. Given
the circumstances, it was almost inevitable that there would be
difficulties communicating easily by radio.

As this was

foreseeable, alternatives needed to be arranged and used,

included through cell phones or in person, if necessary via a
third party.

1043. We endorse these views. We submit that it would be a huge

mistake to blame the outcome on the communication problems.
If that is done, and attention is not given to the underlying
problems of the lack of adequate planning, the lack of adequate
briefing, and inadequate command and control, then tragedies
of this kind are likely to occur, whatever communication system
is purchased by the SAPS.

1044. The same applies to the broader question of deficiencies in

equipment. As Mr White pointed out, the SAPS have identified
difficulties with the camera technology, the use of high velocity
ammunition rather than lower velocity ammunition, the absence
of teargas masks at Scene 1, and the need for less than lethal

358
options. We endorse what is said by Mr White in this regard: the
tragedy did not occur because the SAPS were not issue with the
correct equipment. It occurred because of poor planning, poor
briefing and poor decision-making.

Intelligence

1045. Both Mr White and Mr Hendrickx criticised the quality and extent
of the intelligence that the SAPS collected and made available
to the decision makers.

1046. Mr Hendrickx contended that the SAPS should have prioritised

information

gathering

in

the

operation.

During

cross-

examination, he was questioned intensively on this issue. The

practical difficulties involved in obtaining information were
pointed out. Mr White and Mr Hendrickx both accepted that
there were difficulties in gathering intelligence.

They both

suggested however that there were opportunities for better

intelligence to be gathered.

1047. We make the following submissions in this regard:

1047.1

There were indeed practical difficulties in obtaining

reliable

intelligence.

Under

the

prevailing

circumstances, potential informants would have

359
been afraid of the consequences if they provided
information. The murder of Mr Twala by certain of
the strikers, apparently because he was suspected
of

being

an

informer,

testifies

to

the

reasonableness of such a fear.

1047.2

The intelligence was indeed very thing. However,

it was consistent, and accurate, in respect of
probably the single most important piece of
information namely, that if the strikers were
confronted at the koppie they would stand their
ground, and a conflict would ensue (see for
example exhibit TT5).

1047.3

Mr De Rover said that he was told that the police

intelligence showed that there was a likelihood of
confrontation with the strikers on 16 August
because some of [them] might refuse or be
reluctant to disarm, and there might even be
conflict if they were engaged by police.

That

information came from Maj Gen Annandale and

Lieutenant Colonel Scott.

1048. While it can fairly be said that the intelligence was very thin
indeed, the real problem was not the quality of the intelligence:
it was the failure of the plan, the decision-making, and the

360
implementation of the plan to have regard to the intelligence
which had consistently been provided, and which was accurate.

First Aid
Delay in arrival of the first aid specialists

1049. After the shootings at Scene 1, no medical attention was

provided to those who had been wounded for nearly an hour.
The television footage shows SAPS members grouped around
the dead and wounded, not providing any assistance at all to
those who had been wounded for a very long period. There was
similarly a substantial delay in providing medical attention to the
wounded at Scene 2.

1050. Even if the delay in providing expert medical attention can be

justified on the grounds that the scene first needed to be
secured, there is no evidence that suggests that there was any
lack of safety for such a long period. At best, the lack of safety
was for a few minutes while the SAPS took control at the scene.

1051. Mr White asserts that in planning an operation where there is a

high likelihood of the use of force, it is a matter of good practice
and recognised as in compliance with human rights standards,
that adequate first aid arrangements should be factored into the
plan. It is striking that in recognition of the high likelihood of the

361
use of force, an attempt was made to have four mortuary vans
brought to the scene on the morning of 16 August. That action
speaks volumes for the fact that shooting and death (and
therefore injury) must have been anticipated at a senior level.

First aid training and obligations for non-specialist SAPS members

1052. Brig Breytenbach gave evidence on the training of members of

the SAPS.

For this purpose he used a slide presentation,

Exhibit Q. Slide 79 of Exhibit Q described certain aspects of the

training of NIU members.

In the rural phase (phase 2), the

matters on which training is provided include first aid level 3.

1053. Gen Phiyega was asked whether the police are expected to
assist injured people with first aid or any other such assistance,
while waiting for more professional assistance to arrive. She in
effect declined to answer. She stated that SAPS counsel had
indicated that a witness would be called who would testify how
such issues are treated and Id like to leave that question to that
environment.

1054. The matter was examined more fully when Maj Gen Naidoo
gave evidence.

He was asked whether, in terms of SAPS

protocols, if one or more of the group of police members arriving

at a scene had been trained in first aid, it would have been

362
expected of them to administer first aid to those who had been
shot and injured. He said that he did not know the answer.

1055. He was then asked whether he accepted that there should be a

protocol which states that SAPS members with first aid training
who are on the scene of an incident where first aid is called for,
should administer first aid. After some debate, he stated that
this would make sense, but that the policy would need to be
followed with proper infrastructure and backup to ensure that the
policy was effective.

1056. He said however that the police member would potentially be

conflicted, on the one hand carrying arms and possible using
force, and at the same time having to render assistance to a
person who was injured. We submit that there should be no
such conflict. A police official is required to take reasonable
measures to prevent an offence being committed. If the wouldbe offender is injured or incapacitated in the process, there is no
conflict involved in the police officer then giving that person first
aid. The policing purpose will have been achieved. There
would be no conflict in then giving assistance to the person
concerned to the extent that this was possible.

1057. It was subsequently pointed out to Maj Gen Naidoo that the
policy on crime scene management provides that the first

363
member upon arrival at the scene, must, with due consideration
of the integrity of physical evidence, assist the injured within the
limitations of his or her training as a matter of priority.

1058. In his final statement, Mr White stated that he was not able to
understand why SAPS members on the scene had not at least
attempted to administer first aid, pending the arrival of the
medical teams. He stated that in the Police Service of Northern
Ireland, all officers are trained in basic first aid.

Specialist

firearm officers receive additional training in administering first

aid for those with bullet wounds. This is done on the principle
that if you provide an officer with a firearm, you increase the
likelihood that gunshot injuries might take place, and that to
mitigate this, the police should therefore provide those officers
with the basic first aid skills to assist any person that they have
been forced to shoot with that firearm. He considered that in
planning an operation where there is a high likelihood of the use
of force, it is a matter of good practice and recognised as
compliant with human rights standards, that adequate first aid
arrangements should be factored into the plan. He had been
advised that the training records of those in the TRT line at
Scene 1, showed only two who had records of such training. He
concluded that if the training records were complete, and this
conclusion was correct, then that was a significant omission and
one which, if not addressed, was bound to lead to avoidable

364
deaths.

In the Recommendations which were invited by the

evidence leaders, he recommended that firearms should be

provided with the basic first aid skills needed to deal with
gunshot wounds.

1059. We endorse this recommendation.

Designated shooters where shooting may be necessary in violent

crowd situations

1060. We have submitted above that it is reasonable to accept that

when the group of strikers came around the kraal at Scene 1,
moving in the direction of the TRT line, some members of the
TRT line may have had the apprehension that they or their
colleagues were under attack, and needed to be protected in
self-defence or private defence.

Whether or not their

apprehension was correct, there were grounds for such an

apprehension.

1061. That, however, did not provide any justification for a fusillade of
fire, by multiple members of the TRT, using high velocity
weapons, some of which may have been on automatic.

If

shooting was necessary and justified, the justification was

limited to identifying and dealing with particular members of the
approaching group who posed a direct threat, and doing so in a

365
manner which was aimed not at killing them, but at
incapacitating them. Instead, what happened was a fusillade of
uncoordinated shooting, some of the shots being fired at a time
when it was impossible to see precisely what was happening
and whether was actually still a threat, and some of it plainly
going well beyond the time when there was any conceivable
threat of imminent harm or danger to life.

1062. We submit that this was at least in part the result of what Mr De
Rover described as associative threat perception:

a police

officer perceives that a colleague of his or her is under attack,

and that his or her duty is to back up that member in order to
protect his or her life. The police official observes that another
member of the SAPS is shooting, assumes that there is a threat
which justifies this, and then starts shooting as well. What this
means is that police members shoot not because they have
themselves perceived a threat, but because another member of
the SAPS has apparently done so and is shooting.

1063. Mr De Rover said that he saw evidence of associative threat

perception at Scene 1, namely officers firing because others
were doing so, without necessarily having perceived the threat
themselves. That would not provide any justification for that use
of force.

366
1064. The evidence of Mr White was that this situation can be avoided
by designating particular members of the unit or the line as
having responsibility for identifying particular members of a
crowd who are a threat to life, and giving them the responsibility
of dealing with that.

We submit that this would be the

appropriate approach: while there may always be some threat of

associative threat perception, identifying the members of the
tactical unit who have specific responsibility for dealing with
such threats would limit the risk of an undifferentiated volley of
fire from police members who did not themselves identify a
threat, and in fact may not even have been clear what they were
firing at, except in the general direction of the target group.

The need for operational officers to have control over operational

decisions

1065. After some prevarication, the SAPS version became that the
decision to implement the tactical option on 16 August was
taken by the Provincial Commissioner on 15 August, with the
support of the National Commissioner.

1066. The Provincial Commissioner, Lt Gen Mbombo, joined the police

force in 1980. After training she performed crime prevention
duties in Umtata from 1980 1981. That is the full extent of her
operational experience. Thereafter, as she moved through the

367
ranks, she held positions in administrative and financial
management. At all times she had an administrative job (a desk
job). In 2005 she was appointed Provincial Commissioner in the
Northern Cape.

Thereafter she was appointed as Provincial

Commissioner in North West. She has had no experience of

ever commanding any Public Order Policing, whether as a unit
commander, operational commander or overall commander.
She has in fact never worked in Public Order Policing at all
except for once when she was young, when she was a
constable in Umtata.

1067. It should be self-evident that the Provincial Commissioner did

not have the training, the skills or the experience to enable her
to make decisions as to what should be done in the complex
and difficult situation at Marikana. She was simply unqualified to
do so. Despite this, she made two critical decisions with regard
to the operation. First, on 15 August, she made the decision
that the tactical option would be implemented the next day, if
the strikers did not lay down their arms and leave the koppie that
morning. That decision was inexplicable, and no real attempt
has been made to explain or justify it. It was frankly reckless.
Second, at 13h30 on 16 August, she made the decision that it
was now time to move to phase 3 (the tactical phase). This too
was a reckless decision. She had been informed of the risks of
the operation, but nevertheless proceeded, at a time when there

368
was no reason to do so.

It is not surprising that Maj Gen

Annandale required that it be recorded in the Occurrence Book

that the decision had been hers.

1068. The National Commissioner was, if anything, in an even worse

position. She had been appointed to head the SAPS just a few
months earlier, after receiving professional training in social
work and having had a professional career focused largely on
human resources and on the management of state enterprises.
She had no policing expertise and experience whatsoever.

1069. The consequence of this situation is that the two senior officers
in the decision-making line were entirely unqualified to make any
decisions at all bearing on police operational matters.

1070. In his Recommendations, Mr White fairly put it as follows:

The officer in overall command of the operation (Lt Gen

Mbombo)

had

no

relevant

Public

Order

Policing

experience. The officer given responsibility for planning

(Lt Col Scott) had limited experience in Public Order
Policing operations and no knowledge of the SAPS policy
on policing of protests. Very few of the senior command
team for the operation had recent and relevant training in
respect of the policing of protests. Critical decisions were

369
taken without reference to what had been planned and
therefore what was reasonably foreseeable. A direction
to initiate stage 3 was issued by the Provincial
Commissioner before it had been planned by Lt Col
Scott. This critical decision resulted in an unrealistic time
frame being imposed that prevented proper planning. No
critical examination took place of the plan in the form of a
challenge process to the efforts of the planning team.

1071. To this may be added the fact that the designated Overall
Commander, Maj Gen Mpembe, was himself not a trained public
order policeman.

1072. Under these circumstances, it is hardly surprising that events

took such a catastrophic turn when the operation was
implemented.

1073. The tragedy at Marikana illustrates the need to operational

officers with the necessary training, skills and experience, to
have control over operational decisions. We accept that in a
major operation of this kind, there is an appropriate decisionmaking role for the police officers at the top level. However, that
must be subject to two qualifications. First, the officers at the
top level need to have training, skills and experience in policing.
Running a police service is not simply a managerial job: it

370
requires a high degree of skill in policing operations. This was
totally absent in the two key positions at the time of this
operation. Second, they should not take operational decisions.
Those matters should be decided by the operational officers on
the ground.

The role of political decision-makers

1074. We have analysed elsewhere the question of political influence

in policing decisions. It is plain that there is an appropriate role
for political decision makers. It is also inevitable that in practice,
they will play a role. What is necessary is that this should be
transparent and accountable.

That has been lacking in this

instance.

1075. In his recommendations, Mr De Rover recommended as follows:

Where large and special operations (e.g., the Marikana

protests) are high public interest/significance and/or
present significant risks to safety and security, it is
essential that clear policy guidance be given to the Police
Service for the conduct of its operations.
guidance

should

identify

strategic

This policy

objectives

and

formulate desired and acceptable outcomes of any such

operations. That policy guidance should be provided in a

371
timely manner and should be appropriately and securely
recorded, preferably through real time audio and visual
recording.

Subject to security and other operational

requirements it should also be made public. The latter

two requirements will serve to minimise the risk of
political or other interference in public order management.
Equally it will serve to manage public expectations with
regard to police capabilities and anticipated police
responses.

1076. We endorse that approach.

Militarization and demilitarization

1077. The National Development Plan was published by the National

Planning Commission during November 2011. Chapter 12 of
the Plan deals with building safer communities.

1078. The National Planning Commission found that after 1994 there
had been a decision to demilitarise the police force. However,
there had been a remilitarisation of the police in recent years.
Mr Hendrickx found that there had been a remilitarisation of the
police since the time when he worked with the SAPS.

He

explained what is meant by militarization, in a report which he

372
submitted to the Commission titled Notes on Militarization and
De-militarisation of the Police. He stated as follows:

On the organisational level, the traditional view on the

role and position of the police in society implies that the
police are being managed as an army This may lead
to characteristics such as army officers and command,
military rank and hierarchy.

Military discipline, military

training, military culture, and the restriction of rights and

liberties of personnel.

On the operational level this

traditional view may lead to an operational militarization

of the police, define as performing military duties and or
implementing military principles in performing police
duties. The implementation of military principles in the
performance of police duties leads to the use of violence
and arms as an appropriate means to solve problems;
thinking in terms of enemies resulting in an approach
that does not solve problems but only combats systems.
These principles are mostly applied and highly visible in
public order policing and the reactive style of police in
interventions performed as fire fighters.

1079. The National Planning Commission summarised its conclusions

in this regard as follows:

373
The decision to demilitarise the police force, moving
away from its history of brutality, was a goal of
transformation after 1994.

The remilitarization of the

police in recent years has not garnered greater

community respect for police officers, nor has it secured
higher conviction rates.

Certainly a paramilitary police

force does not augur well for a modern democracy and a

capable developmental state. The Commission believes
that the police should be demilitarised and that the culture
of the police should be reviewed to instil the best possible
discipline and ethos associated with a professional police
service.

1080. The Commission then dealt with this subject in more detail. It
stated as follows:

Civilianising a highly militarised and politicised police

force was a transformation objective after the 1994
elections. It was considered necessary to professionalise
the police, establish a rapport with communities, develop
confidence and trust in the police, and promote positive
community-police relations. The goal was to transform
the police from a paramilitary force to a police service that
meets all the criteria of a civilian professional entity.
Demilitarisation required changes in police insignia,

374
military ranks and force orders to create a civil police
service as the first phase of community policing. The
second

phase

consisted

of

changing

policing

methodologies from a kragdadige style to one which

placed the community at the centre of policing through
community policing
From 2000 however, the police service gradually started
resembling a paramilitary force. This process was
formalised with the reintroduction of military ranks in
2010. It took place against the backdrop of increasing
violent crime, high levels of community frustration and
fear, and a perception that the old military police ranks
would command greater respect from communities.
However, these arguments are inconsistent with the
polices mandate in a modern democracy. They also
neglect the challenges of developing greater competence
and skills in the police to respond to growing complexity
and changing patterns of crime.
1081. The Commission quoted a work by R Balco, which has a strong
resonance with what happened at Marikana:
The most obvious problem with the militarisation of
civilian policing is that the military and the police force
have two distinctly different tasks. The militarys job is to
seek out, overpower, and destroy an enemy. When those
soldiers attempt to avoid them, collateral casualties are

375
accepted as inevitable. Police, on the other hand, are
charged with keeping the peace, or to protect and
serve. Their job is to protect the rights of the individuals
who live in the communities they serve, not to annihilate
the enemy.
1082 We deal elsewhere in these submissions with the conduct of the
police on 16 August 2012. The conduct of the SAPS at Scene 2,
in particular, is typical of a military rather than a police response.
295 rounds of live ammunition were fired at the strikers at Scene
2. At the very most, 14 rounds of live ammunition were fired at
the police at Scene 2.

1083. Firing hundreds of rounds into the koppie is typical of a military

action, aimed at overpowering and destroying an enemy. A
policing operation would be limited to firing shots at particular
members of the group on the koppie who posed an imminent
threat to life. With the exception of those few with whom there
was an engagement at close quarters, the only strikers who
could have been a threat of imminent danger to life would have
been those who were shooting firearms, as they were all at
some distance from the police. It is clear from the evidence that
either none, or very few, of the strikers who were killed had been
shooting at the police. The obvious question, then, is why they
were shot. The explanation is that this was a paramilitary
operation, with the aim of annihilating those who were perceived

376
as the enemy. Mr De Rover stated that he agreed absolutely
with the view of Lt Col Scott that once it was clear that the
strikers had holed themselves up at koppie 3, it would have
been preferable to retreat rather than firing 295 live rounds into
the koppie.

1084. The events at Marikana underline the correctness of the

analysis of the National Planning Commission.

1085. The National Development Plan holds as follows:

The South African Police Service has been under strain
as a result of serial management crises over the past few
years. Coupled with organisational rank changes to
military ranks without any or further training in judgement,
discretion and professional conduct, these crises have
had

detrimental

effect

on

police

culture

and

subcultures The Commission therefore recommends

that the South African Police force be demilitarised. This
is a short term objective which should happen in the
immediate term. Furthermore, the organizational culture
and subcultures of the police should be reviewed to
assess the effects of militarisation, demilitarisation,
remilitarisation and the serial crises of top management.

377
1086. The National Planning Commission submitted a draft of its
report to the SAPS for its comments, before it finalised the
National Development Plan. The SAPS was invited to make
comments.

Those

comments

were

placed

before

the

Commission. In its response, the SAPS did not take issue with
the contention of the Commission that there had been a
remilitarisation,

and

that

demilitarisation

was

necessary,

including in relation to ranks. Rather, it commented:

This should not be confined to police insignia, military
ranks and force orders but should address the training
and development curricula with a view to effecting a
mental change required for policing today and future.

1087. The National Commissioner first gave evidence during March

2013. She stated that she was aware of the recommendations of
the National Planning Commission. She was then asked
whether she agreed with them.

This led to a very lengthy

answer, which appeared to culminate in a statement that she did

agree with them:
So I understand and I think its a journey that we will all
try and travel.

1088. The senior evidence leader and then the chair both tried to get
an answer from her as to whether she agreed that the
demilitarisation was a short term objective which should happen

378
in the immediate term. There efforts met with little success.
The closest she came to answering this question was to say:
I may not be having the end times but this work in
progress is pumping and its very active.

1089. It is now three years since the National Planning Commission

published the National Development Plan, and more than two
years since the report was handed to the President. It is of
course correct that the reintroduction of military ranks into the
SAPS is only one manifestation of the remilitarization which took
place after 2000. However, it is an important signifier and
symbol.
It is a matter which can be readily addressed, through
regulations made in terms of the SA Police Service Act. It is
inexplicable that three years after the National Planning
Commission published its report with which the SAPS has
never expressed any disagreement the military ranks still
remain in place, and no indication can apparently be given as to
when, if at all, this issue will be addressed.

1090. We have drawn attention above to the finding by the National

Planning Commission that one of the characteristics of the
police force under apartheid was that it was a highly militarised
and politicised police force, and that civilianising the force was
a transformation objective after the 1994 elections. Regrettably,

379
it has to be said that if depoliticisation did take place at the same
time

as

demilitarisation,

the

remilitarisation

has

been

accompanied by a repoliticisation. We refer elsewhere in these

submissions

to

the

improper

and

inappropriate

political

considerations which guided the conduct of both the National

Commissioner and the Provincial Commissioner. This too is a
matter which requires urgent attention. The National Planning
Commission recommended the professionalisation of the police
by enforcing the code of conduct and a police code of ethics,
appointing highly trained and skilled personnel, and establishing
a body to set and regulate standards.

1091. This is an urgent priority, and it has to start at the very top. Other
senior officers and rank and file members of the SAPS can
hardly be expected to see the need for the SAPS to act in a nonpolitical manner, and to act accordingly, if the example set by
their most senior leaders is exactly the opposite.

1092. In Recommendations which he submitted to the Commission, Mr

De Rover made the following comment:
In most modern democracies the appointment of police
leadership is an executive function ensuring an
appropriate separation from the political process. Most
modern democracies also require that police leaders are
experienced law and justice practitioners. There has also

380
been a clear departure, in recent years, from the
paramilitary style of police
characterised

by

military

organisation, which is
ranks

and

hierarchical,

centralised decision-making. On all three matters South

Africa has taken a rather different approach: senior police
appointments are highly politicised, non-experts are
appointed; and the organisation is paramilitary in
structure and functioning.

1093. He somewhat tactfully concluded:

It is well beyond my remit to make a judgment on the
success or otherwise of that approach. However the
Commissions work may have provided some insight into
issues

around

leadership

that

could

be

usefully

addressed in its recommendations. As a minimum, SAPS

requires consummate professionals on [in?] key strategic
positions to provide the organisation with the effective
leadership it desperately needs.

SAPS accountability and lessons learned: a reluctance to admit

error

1094. Mr White concluded that there did not appear to have been any
serious attempt by the SAPS, through debriefing or otherwise, to
identify mistakes made and lessons learned in the events of 9

381
16 August. The 9-day conference at Potchefstroom (Roots) was
aimed at preparing a presentation for the Commission, and not
at identifying errors or lessons learned.

From the outset, he

contended, the SAPS at a corporate level adopted a defensive

approach, setting out a justification for the deaths caused,
before a full investigation was conducted into the facts.

He

contended that this approach in the aftermath of the shooting

incidents may have set a tone which discouraged proper
reflection and internal examination of what had gone wrong, and
potentially encouraged the adoption of a robust defensive
stance. He questioned whether the SAPS leadership and/or
unit commanders made any serious attempt to encourage their
members to provide full, detailed and frank accounts of what
happened. The evidence of the senior police officers who were
involved in the operation revealed a distinct unwillingness to
engage with the tragic consequences of the police action, and a
failure to acknowledge errors or accept responsibility for the
deaths which occurred. Such evidence as that of the internal of
review of the events, showed only a very limited internal review
focused predominately on technical inadequacies rather than
the key strategic and tactical errors which led to the tragedy.

1095. We submit that all of these criticisms are fully justified both by
the evidence to which Mr White refers, and by the other evidence

382
to which we refer in these submissions. His conclusions are if
anything understated in certain respects.
1096. On a number of occasions, the SAPS undertook to provide the
Commission with a document setting out what lessons the police
considered they had learned from the events at Marikana, and
what steps they were taking in this regard. The Chair stated that it
was not good enough to wait until the report of the Commission
was produced, because incidents might take place in the interim.
Mr De Rover took a similar view: he said one of the first things he
did when he came to South Africa was talk to the National
Commissioner and point

out that

having

regard

to the

circumstances that produced the outcome at Marikana, the least

that the SAPS should try to do is alter its method of operation to
prevent a similar occurrence from simply happening again,
because such things could happen again while attempts were
being made to establish what had gone wrong and how it went
wrong.

1097. Maj Gen Annandale had said (on 15 May 2013) that the SAPS
would produce a document setting out the lessons learnt from
Marikana. On day 173 (23 January 2014), the leader of the
SAPS legal team informed the Commission that SAPS had
informed him the previous day that Mr De Rover was working on
it. Asked by the Chair when the Commission was likely to
receive it, the leader of the SAPS team said that he had been

383
told the previous day that his clients had made contact with Mr
De Rover to establish the timelines for that report to be here.

1098. When this was put to Mr De Rover, he stated that he had never
been requested to prepare a report. What SAPS said, namely
that he was working on it, was not correct. The SAPS has not
explained how and why this incorrect information was given to
the Commission.

1099. The SAPS repeatedly undertook to produce a document setting

out the lessons learned from what happened at Marikana.
Ultimately, at the very end of the Commissions hearings, the
SAPS produced Exhibit YYYY, headed Lessons Learnt
Marikana: A Submission to the Farlam Commission. It is a
highly technicist report. A particular concern is that by the time
SAPS produced exhibit YYYY, it had had access to the detailed
and penetrating analysis of the operation which had been
prepared by Mr White. Yet it did not address the fundamental
issues in the operation which had been identified by Mr White:
1099.1.

Overall lack of accountability and failure to accept

responsibility;

1099.2.

Poor audit trail of decision-making, and poor

recording of the operation;

384
1099.3.

A mindset which treated the crowd as a single

violent entity rather than a grouping of different
individuals;

1099.4.

Absent or reckless planning;

1099.5.

Inadequate briefing of SAPS members;

1099.6.

Errors of strategy, tactics and proportionality at

both scenes 1 and 2;

1099.7.

Absence of timely first aid to those shot at scene 1.

1100. Mr De Rover stated that his experience of his meetings with the
SAPS, where he pressed them to identify the lessons learned
from what happened at Marikana, was that there was a genuine
reticence to do so, because of the fear that identifying lessons
learnt would amount to an acknowledgement that mistakes had
been made:
I felt there was that equation of a lesson learned is a
mistake made and not a more positive approach that
when you conduct any operation of any kind, whether
successful or not, you try and draw from that operation
the positive and negative points that facilitate the learning
organization experience so that you retain what was good
and that you seek to remedy what went wrong.

1101. It is understandable that an institution would attempt to shield

itself from criticism in a situation such as this, and that it would

385
be reluctant to invite criticism by explicitly or implicitly
acknowledging mistakes that were made. That, however, is what
is required of the SAPS. It has a duty of public accountability
and truth-telling, because it exercises force on behalf of all
South Africans, and all South Africans are entitled to know
whether what was done in their name was justified.

1102. This reluctance to admit mistakes must have been fuelled by the
statement of the National Commissioner to the police parade on
17 August, to which we refer elsewhere in these submissions,
that:
Whatever happened represents the best of responsible
policing. You did what you did, because you were being
responsible.

1103. Such a statement will inevitably lead to a closing of ranks, and

an unwillingness to admit error. It is not surprising that in his
dealings with the SAPS, Mr De Rover experienced a reticence
to identify lessons learnt, for fear of admitting that a mistake had
been made. This attitude is the best explanation for the
nondisclosure of evidence to which we refer elsewhere in these
submissions.

1104. This raises a structural issue which was identified by Mr De

Rover in his evidence. He said that a problem arose from the

386
fact that very shortly after the events, SAPS members who had
fired shots were required by IPID to make warning statements.
He had seen many statements that fell far short of the
requirement of explaining what was the imminent threat to life or
serious injury, in order to enable one to judge whether such fear
existed and whether there was an imminent threat that
warranted and necessitated the response:
The explanation I was given for that is IPIDs
involvement, where people are no longer witnesses of
truth that because of their public office can help you and
assist you and should assist you to piece together in
detail what happened, but now they are suspects,
because these warning statements basically accuse
them, you know, tell them youre a suspect of murder now
and you are advised to avail yourself of legal support.
You are advised of the fact that you do not have to say
anything if you do not wish to do so. Now personally I
think well, if I cant really oversee [foresee?] the
consequences of speaking with that warning being, Id
rather say nothing for the time being, and I think many
SAPS members elected that path, even when I tried to
engage them.

The first session I held with the people for scene 2

necessitated a general to come in and give them an order

387
to speak to me because nobody was prepared to answer.
Not even a question as to where were you.

1105. He said of the statements of those who had fired shots on 16

August:
They all sing much of a tune and they dont offer you
much of clue. And where they do offer a clue Id actually
want detail, the same detail that you want. So theyre a
frustrating bunch of statements in that sense and that is a
given.
1106. As Mr De Rover repeatedly said, it is a fundamental necessity
that police members should be witnesses of truth. That
requires that they speak freely and frankly. The achievement of
that goal in relation to truth-seeking and accountability is,
however, undermined by the well-intentioned IPID process.
There clearly is a need for alleged police misconduct to be
investigated by an agency which is independent of the SAPS,
and IPID is intended to perform that function. However, the
manner in which the system operates appears to be counterproductive, at least in instances where a substantial public
interest is involved such as is the case with regard to Marikana.

388
CHAPTER 14

THE SAPS PARADE ON 17 AUGUST 2012

1)

On the afternoon of 17 August the National Commissioner and the Minister

addressed a parade of SAPS members.594

2)

The National Commissioners speech contained the following:

I come before you to actually say, trying as it may be,

mourning as we are, let us take note of the fact that whatever
happened represents the best of responsible policing.

You did what you did, because you were being responsible,
you were making sure that you continued to live your oath of
ensuring that South Africans are safe, and that you equally
are a citizen of this country and safety starts with you.595

3)

When one bears in mind that the statement was made on the day after 34
civilians had been killed by members of the SAPS and the President
announced that a Commission of Inquiry would be established, the
statement that whatever happened represents the best possible policing
was singularly inappropriate because it set out what was from then on to be
the official police line: that no blame at all attached to the police for what

594
595

Affidavit by National Commissioner, Exh FF2, para 27

Transcript from video recording VVVV5

389
happened because they had been responsible in doing what they did. This
was calculated to effect a closing of the ranks, encouraging those who had
participated in the operation to withhold contrary information from the
Commission and indeed to deny that mistakes had been made and things
had been done that could not be described as the best of possible policing.

4)

The National Commissioner clearly did not, and to be fair, could not know all
the relevant facts and she exposed herself to a cross-examination in which
she cut a sorry figure when things that had happened and which were
recorded on video or in photographs were shown to her and she was asked
whether they represented the best of responsible policing.

5)

After she had finished the Minister spoke. His speech was short and, like
the National Commissioners, communicated unequivocal support for the
actions of the SAPS. It contained the following:596

You must know that as your Minister and on behalf of

the Government, the Executive as a whole, on behalf
of the President of the Republic, Commander in
Chief of all the armed forces in this country, we are
all behind you.

We know what we have gone

through this period, this week and we would want

you to continue ensuring that lives are saved,

596

Exhibit CCCC 7 and CCCC 8.1

390
property is protected against anybody who would
want to do bad things in this country.

There will be criticism [inaudible of lives?] lost but

here as your leadership we are confident that what
you have done you did it in trying to ensure that the
rule of law reigns in South Africa. We are not going to
allow anybody to run amok in the country, to want to
turn South Africa into a banana republic. It would be
painful and it is painful that in the process life is lost
but we are a professional force and we must keep to
that.

We must ensure that at all times we do

everything in our power so that anarchists do not think

that SA is their stage. From the bottom of my heart as
your Minister, I want to thank you on behalf of our
government. I want to thank you and commend what
you are doing.

Continue to protect your country.

Continue to protect the citizens of South Africa. It is

your duty. It is your constitutional obligation. And I
thank you.

6)

He did not go as far as heaping praise on the SAPS for the best of
responsible policing, but his exhortation to the police to continue
ensuring that lives are saved [sic] and his words of commendation for
what they were doing were also calculated to bring about a closing of the

391
ranks and to discourage any SAPS member who was minded to tell the
Commission that things had not gone as well as they must have hoped
they would.

The Commission appreciates that the Minister and the

National Commissioner may well have been confronted with what

appeared to be a serious lack of morale on the part of those involved in
the operation and that they would have considered it necessary to
address that. But it was, in the Commissions view, a serious error of
judgment on their part to go as far as they did in giving what would have
been understood to be an unqualified endorsement of the police action.

7)

While the Commission cannot find, as the evidence leaders suggest, that
it is likely that the Minister and the National Commissioner discussed the
approach in advance, it is firmly of the view that his remarks and her
remarks were ill-advised and may well have had the result of hampering
the Commission in its work for the reasons stated above.

392
CHAPTER 15

The report submitted to the President and the media statement made by the
National Commissioner on 17 August 2012

1)

When the shootings took place the President was at a SADC meeting in
Mozambique with the Minister of International Relations, who requested the
National Commissioner to have a report prepared so that the President could
decide whether to continue attending the SADC meeting.597

2)

A report was prepared very late on 16 August and sent to the Minister of
International Relations in the early hours of 17 August.598 A copy of the
report was handed in as Exhibit FFF4.

3)

On the morning of 17 August the National Commissioner held a media

briefing at which she read out a statement which is Exhibit FFF5.599 The
information in this document was obtained from the commanders at
Marikana.600

4)

Both statements were drafted by a communications team consisting of Brig

Mashego, the head of SAPS Public Relations and Capt Dennis Adriao, the

597

Day 64, Phiyega, pp 6834 - 6838

Day 64, Phiyega, pp 6834 - 6835
599
Day 64, Phiyega, p 6838
600
Day 64, Phiyega, p 6839
598

393
polices media liaison officer, who collated the information, provided by the
commanders and drafted the statements. 601

5)

Exhibit FFF4, which records the death toll as 29, was clearly drafted before
FFF5, which reflects the death toll as 34. Although the wording of the two
statements is for the most part identical, there is (apart from the different
death toll figures), a very material difference.

6)

FFF4, the report to the President and the Minister of International Relations,
makes it clear that there were two separate incidents in which the strikers
were shot and killed. The relevant part reads as follows:

When the Police started deploying the barbed wire fencing,

a militant group from the protesters armed with weapons,
pangas, spears, axes and firearms, hastily flanked the
vehicles deploying the wire. They were met by members
from the Police who tried to [riposte] the advance with stun
grenades. The attempt was unsuccessful and the Police
members had to employ force to protect themselves from the
charging group. This resulted in the death of 16 protesters
with 13 wounded at that scene.

The dispersion action had commenced at this time and the

protesters were driven from their stronghold to a high bushy
601

Day 105, Phiyega, pp 11351 - 11352

394
ground in the close vicinity. The Police members encircled
the area and attempted to force the protesters out by means
of water cannons, rubber bullets and stun grenades. The
Police advance to arrest the armed protesters resulting in
Police officers having to again employ force to defend
themselves at close quarters. This resulted in 13 more
protester deaths with 15 more wounded at the second
incident.

More people were reported to have died after being taken to

the Mine hospital.

The total death toll of the protesters currently stands at 29

with more than 71 critically injured and others being treated
for minor wounds.

7)

It is thus clear that when this report was prepared the compilers knew that
there had been two separate shooting incidents at different places, which
came to be known subsequently as scene 1 and scene 2.

8)

FFF5, the media statement prepared later, does not disclose this. It creates
the impression that there was only one shooting incident, which culminated
in the police having to defend themselves with maximum force against a
storming group of strikers who fired shots and wielded dangerous weapons.

395
9)

The relevant parts of this statement reads as follows:

When the Police started deploying the barbed wire

fencing,

the

group

of

protesters

armed

with

dangerous weapons and firearms, hastily flanked the

vehicles deploying the wire. They were met by
members of the Police who tried to [riposte] the
advance with watercannon, teargas as well as stun
grenades. The attempt was unsuccessful and the
Police members had to employ force to protect
themselves from the charging group.

The dispersion action had commenced at this time

and the armed protesters were driven from their
stronghold to a high bush ground in the close vicinity.
The Police members encircled the area and attempted
to force the protesters out by means of water cannons,
rubber bullets and stun grenades. The militant group
stormed towards the Police firing shots and wielding
dangerous weapons. Police retreated systematically
and were forced to utilize maximum force to defend
themselves.

The total death toll of the protesters currently stands

at 34 with more than 78 injured.

396

10)

The statement (in FFF4) that 13 strikers had been killed before the
dispersion actions started was excised as was that separate death and injury
toll at scene 2. In addition an allegation that at the end of the engagement
the police had to deal with the militant group which stormed at them, firing
shots and wielding dangerous weapons was added to the statement.

11)

The effect of these changes in the statement issued to the public was
materially misleading because it created the impression that there had been
only one shooting incident, which led to the deaths of the strikers. The
public who had seen on television the shooting at scene 1 would inevitably
have concluded that all the deaths had occurred while the police were
defending themselves against the militant group [which] stormed towards
the police. The changes were clearly not accidental because, as has been
said, the wording of the relevant parts of the statement was otherwise
virtually identical.

12)

The National Commissioner when asked to explain the difference was

unable to do so, except to say that it was important for us not to be putting in
detail that may not have been fully confirmed. 602 But that answer is not a
valid explanation of the changes. In fact she conceded

603

that it was fair to

say that she could not explain the reason for the changes. She added,
however, that she was the owner and reader of the statement.604

602

Day 105, Phiyega, p 11360

Day 105, Phiyega, p 11361
604
Day 105, Phiyega, p 11361
603

397
13)

The Commission agrees with the evidence leaders submission605 that the
most reasonable conclusion is that the report which had been prepared for
the President and the Minister was deliberately amended when it was
reformulated into a media statement in order to obscure the fact that there
had been two shooting incidents, separate in time and space. This resulted
in a deliberate misleading of the public, who were brought under the
impression that all of the deaths had been caused at the confrontation as
scene 1 which they had seen on television.

605

Evidence Leaders Heads, para 891

398
CHAPTER 16

Brig Calitzs briefing to SAPS members at a parade on 18 August

1)

Before operations commenced on 18 August Brig Calitz addressed a parade

of SAPS members to brief them on the tasks they were to perform that day.
Although the briefing was recorded by the SAPS on videotape, the videotape
was initially not disclosed by the SAPS. It was not on the SAPS external
hard drive which was provided to the Commission, despite the fact that
videos in the same sequence before and after it were on the hard drive. The
indications are that it was deliberately concealed.

2)

Brigadier Calitz clearly did not want members of the media to record what he
said. He instructed police officials to take a camera from a member of the
media who was present, to check the recording that had been made and to
record over it if necessary.606

3)

The address he delivered contained the following:

I have seen yesterday afternoon and I see that again

this morning, the morale of the people is very high.
So from the management side thank you. I believe
most of you have listened to what the Minister have
said. Yesterday after we went from here we were

606

Exh JJJ82, Transcript of Brig Calitzs address, p3

399
addressed by the President himself.

Myself, the

National Commissioner and all the Lt Generals here

we were addressed by the President. We gave him
a full presentation then he announced that there
will be a board of inquiry. Some of you might wonder
what is now going to happen. Remember, after any
action, there is now a board of inquiry that will sit and
then take it frame by frame, minute by minute of what
happened
The police, we will give our 100% operation. Okay.
At this stage we did nothing wrong.

From the

planning to the execution was 110%. Exactly how

we plan it and it is not often that this happens in this
large group. I have to congratulate you. Exactly how
we planned it and we briefed the commanders,
exactly we executed in that line.

The force

continuum, we did the water cannons, we did the

stun grenades, we did the tear smoke, we did the
push-back, we tried.

When it was ineffective the

guys run back. N?

We tactically retreat, and you have to face the Nyala
in order to get in there. So it is right, your actions
was completely right. By retreating and going back
to your safe haven. Therefore we got over to the
second phase and that is where the TRT line and the

400
NIU line was formed. And when they become under
attack, that is where the command was given by their
Commanders as well as some of them act in selfdefence.

Alright?

nothing was wrong.

So on that, nothing, nothing,

Okay?

You acted?

It was

justified and that is exactly the commitment and cooperation that we are going to give the people. So
those people that still needs to fill the .and say
how many rounds.607

4)

While the Commission understands that he must have felt the need to
bolster the morale of the members present and does not criticise him for
that, many of the remarks he made were inappropriate.

5)

Paragraph 11(3)(a) of Standing Order (General) 262 contains the following:

(3)

If the use of force is unavoidable it must meet

the following requirements:

(a) the purpose of offensive actions are to deescalate conflict with the minimum force to
accomplish the goal and therefore the success of
the actions will be measured by the results of the
operation in terms of cost, damage to property,

607

Exh JJJ82, p2

401
injuries

to

people

and

loss

of

life.

[The

Commissions italics.]

6)

Using that measure one can see that the operation was not a success: it was
in fact a disaster of monumental proportions.

7)

When asked how he could have said from the planning to the execution was
110%. Exactly how we plan it, he said that he was aiming to motivate the
police who had to go into the field again and that what he meant was that the
wire was uncoiled, the vehicles had moved in a line and the dispersion line
and basic line were correctly formed. 608

8)

This explanation is clearly unacceptable.

The big question engaging all

minds at the time was whether the killings were justified. The statement that
from the planning to the execution was 110% would have conveyed to his
listeners that their conduct on 16 August at scenes 1 and 2 was in order and
that similar conduct, if repeated in the operation they might well have to
undertake that day, would also be in order.

9)

There is a further problem with his speech to the members.

Like the

speeches of the previous day by the Minister and the National Commissioner
it was likely to have the effect of a closing of the ranks and discouraging
SAPS members who knew of mistakes made from disclosing the truth to the
Commission.

608

D157, Calitz, pp 17829 - 17831

402
CHAPTER 17

The Roots Conference

1)

The call up instruction for the Roots Conference dated 25 th August 2012
states that it is a call up for debriefing and preparation for the judicial
commission of an enquiry.609 The conference was held between 27th August
and 8th September 2012 at Potchefstroom. Colonel Van Graan was
appointed as a convener of the conference. Colonel Scott was responsible
for collating all the video and photographic material and Colonel Visser
compiled the narrative, all of which subsequently became the presentation to
the Commission as Exhibit L.

2)

It is clear from the evidence that the conference was not a debriefing as
envisaged in Standing Order 262, but rather a preparation of the
presentation for the purposes of the Commission.610

3)

The SAHRC submitted that the failure to hold debriefings led to the SAPS
not engaging in the process of identifying the lessons that were learnt or the
mistakes that were made during the operation.611 They quote Mr Whites
comment that they were perhaps justified in foregoing a debriefing session in
order to avoid the appearance of collusion in advance of the Commission.

609

Exhibit GGG 3
SAHRC Heads of Argument paragraph 1.3.5.
611
SAHRC Heads of Argument Paragraph 1.3.4
610

403
However they submit that justification as not holding true in the light of the
meeting that was held in place of the debriefing.

4)

They submit that while the approach was not necessarily inappropriate, in
that the SAPS did need to collate material and present evidence to the
Commission, they level substantial criticisms against the manner in which
the meeting was held, and which might be perceived as an opportunity to
collude.612 They cite as an example that many of the statements of the
senior officers of the SAPS were compiled after or towards the end of the
Roots Conference.

5)

They submit that the SAPS did in fact use Roots as an opportunity to collude
in that various aspects of the case of the South African Police Services are
materially false and that the South African Police Services failed to comply
fully with its discovery obligation to discover vital documents relevant to the
process.

6)

They suggest that steps should have been taken to record and minute the
meetings at Roots and they should have invited independent parties and a
senior official from IPID to attend. This seems to be a most prudent
suggestion.

612

Heads of Argument paragraph 1.3.7

404
7)

The Evidence Leaders in their Heads of Argument set out in a crisp analysis,
their criticisms of the product of the Roots Conference.613 Many anomalies
only became known to the Commission after Colonel Scott made his hard
drive available to the Evidence Leaders in September 2013, a year after the
Commission had commenced hearing evidence. They submit:-

(a)

that there is a complete absence of any self-criticism in Exhibit L and

that Roots turned into an exculpatory exercise.

(b)

that the version constructed with regard to the strikers changing

direction towards the informal settlement on the 13th and which
resulted in the South African Police Services having to intervene to
prevent an attack, was sharply contradicted by the evidence before
the Commission.614

(c)

that in Exhibit L, the presentation was that the South African Police
Services plan had been carefully worked out in consultation with
POP officers and had been in place since Tuesday, 14 August 2012.
The evidence was, however, that the plan had been compiled by
Colonel Scott on the morning of 16 August 2012 without the
participation of any POP officers.

(d)

that the decision to move to the tactical phase of the plan was stated
as arising because of the escalation of the risk of violence on 16

613
614

Heads of Argument paragraphs 913 to 929

Heads of Argument paragraph 919

405
August, whereas the evidence was that the decision had already
been taken at a meeting of the NMF on the evening of 15 August
2012 without reference to those officers on the ground at Marikana.
Further, that the original tactical plan for encirclement of the koppie
was abandoned at the JOCCOM meeting at 13h30 on 16 August
2012.

8)

The evidence leaders submit that because of these constructed versions, the
South African Police did not disclose the full minutes of the JOCCOM
meetings on the 15 and 16 August 2012 and submitted instead tailored
versions which would be consistent with the versions constructed. They cite
as an example the failure to disclose the contemporaneous notes kept in the
JOC during the meetings of the JOCCOM on 16 August 2012 and the
manuscript notes taken by Captain Moolman where the 16 th was referred to
as D Day and which was not reflected in the the typed minutes.

9)

They also criticise the failure to disclose the holding of the extraordinary
meeting of the National Management Forum Meeting and the failure to
disclose the recording of Major General Mbombos meeting with Lonmin on
14 August 2012.

10)

The Evidence Leaders submit that there was a deliberate removal of

material from a draft of Exhibit L which inadvertently included footage of the

406
Provincial Commissioners statement at 09h30 on the morning of 16 August
to the effect that today they were ending this matter.615

11)

They submit that both the National and Provincial Commissioners had seen
the presentation prior to being submitted to the Commission and they would
have been well aware of some of the omissions and misleading information
contained therein.

12)

The Commission is in agreement with these various criticisms levied against

the SAPS.

We note that their failure to disclose much of the

abovementioned information caused inordinate delays and waste of time in

trying to establish the correct circumstances surrounding the events.

615

Heads of Argument Paragraph 926

407
CHAPTER 18

The Review panel headed by Brigadier Mkhwanazi

1)

The first call up notice signed by the National Commissioner on 27 August

2012 required Brigadier Mkhwanazi, Brigadier Hunter, Colonel Mokhari,
Colonel Twala and Colonel Siva to attend a work session on Operational
Response Service Policies for the period 29 August to 31 August 2012.616

2)

The second call up notice signed by the Deputy National Commissioner,

Operational services, Lieutenant General Masemola on 30 August 2012,
included Major General Geldenhuys from Legal Services, and the work
session was to continue from 3 September 2012 to 7 September 2012.617

3)

The third and fourth call up notices extended the periods of the work
sessions from 10 September 2012 to 16 September 2012 and from 16
September to 20 September 2012. They included Captain Percy Govender
and Mr Ally from the Secretariat of Police.618

4)

Each of the notices was copied to the Provincial Commissioners of Gauteng,

Kwa Zulu Natal and Northern Cape, as well as to the Divisional
Commissioner of Operational Response Services and the Executive Legal
Officer.

616

Exhibit JJJ203
Exhibit JJJ203
618
Exhibit JJJ203
617

408
5)

Brigadier Mkhwanazi did not disclose the existence of this work session to
the Commission when he testified, although he did comment extensively on
the plan and the incidents of the 13th and the 16th.

He specifically said

under cross examination that no review process had taken place, and there
was no document in existence to indicate the results of any such review
should it have taken place without his knowledge.619

6)

This evidence was tendered on 21 January 2013. The work sessions had
taken place between 29 August 2012 to 20 September 2012, some three
months prior to his testifying and would have been fresh in his mind. It is
remarkable that he chose to deny that any such process had taken place.

7)

Colonel Scott was the first witness to disclose that he attended what he
called the task team. He said that he thought that one of the purposes of the
work session was for the policies of SAPS to be analysed and for the
operation to be weighed up against the background of those policies. 620

8)

Brigadier Calitz testified that he attended this meeting where he was shown
a map which little wooden blocks to represent the vehicles and he was
asked to show where in relation to koppies 1,2 and 3 he and the various
vehicles were positioned. This exercise was not restricted to the 16 th but
included the events of the 13th as well. He was not told the purpose of the
exercise. He noticed that notes were kept while he was speaking. He was

619
620

Day 28, Makhwanazi, pp. 3540 to 3542

Day 136, Scott, p. 14510

409
also asked at what stage he moved his vehicles, where he moved them to
and why he made certain decisions.

9)

He was not told what the purpose of the meeting was. He said that the
members of the panel concentrated on what had actually happened during
the operation and not on the policies. He thought, at the time, that they were
going to draft a report as a result of these work sessions.621

10)

The National Commissioner denied any knowledge of these work

sessions.622 Provincial Commissioner Mbombo said that she attended the
work session on the first day and was told by the members present that the
National Commissioner had tasked them to ascertain whether the operation
had been in accordance with policies.623

11)

Major General Naidoo said that he came to know of the parallel process of a
policy review whilst he was at Roots and attended one of the sessions. 624

12)

Various other officers testified that they appeared before the task team.

13)

An undated document headed Final Interim Report625 was handed in as

being the product of these work sessions.

In the first paragraph, it is

specifically stated that the document does not represent the debriefing of
Marikana Operations as the full debriefing will be done after the commission
621

Day 155, Claitz, pp.17508-17519

Day 76, Phiyega, p.8100
623
Day 184, Mbombo, p.22146
624
Day 194, Naidoo, p.23696
625
Exhibit LLL 11
622

410
finalized its work. There appears to be no detailed analysis of any of the
policies and the content of this document does not assist the Commission at
all.

14)

It is not clear why the work sessions were originally not disclosed to the
Commission. The Commission requested the notes made by the members
of the panel but no notes were produced.

411
CHAPTER 19

MR CYRIL RAMAPHOSA

1)

During August 2012 Mr Matamela Cyril Ramaphosa, who is now the Deputy
President of South Africa, was a non-executive director of Lonmin, having
been appointed in July 2010. His appointment to the board followed the
acquisition by a company of which he was the founder and chairperson,
Shanduka Group (Pty) Ltd (Shanduka), through a wholly-owned subsidiary,
of 50.03% in another company, Incwala Resources Ltd, a black economic
empowerment company which owns an 18% shareholding in two Lonmin
subsidiaries, Western Platinum Ltd and Eastern Platinum Ltd. As a result
Shanduka Group (Pty) Ltd owns an effective 9% in Lonmin.
subsequently resigned from the board with effect from 31 January 2013.

He
626

In August 2012 he was also a member of the National Executive Committee

of the African National Congress. He was not, however, a member of the
government in 2012.

2)

During the period 11 to 15 August 2012 e-mails were exchanged between

Mr Ramaphosa and Lonmin personnel which formed part of the bundle of
documents relevant to phase 1 of the Commission which was submitted to
the Commission by Lonmin.

They recorded that Mr Ramaphosa had

conversations relating to the events at Marikana which are being

626

Exh FFF29, Statement by Mr Ramaphosa

412
investigated by the Commission with the then Minister of Police Mr Nathi
Mthethwa and with the Minister of Mineral Resources, Ms Susan Shabangu.

3)

Counsel for the Injured and Arrested Persons referred to some of these emails in his opening statement and characterised them as a long line of emails and said that they effectively encouraged so-called concomitant action
to deal with these criminals whose only crime was that they were seeking a
wage increase.

627

Subsequently, when he cross-examined Mr Zokwana,

the President of NUM, he said that he intended to argue that the e-mails
were evidence of concerted pressure that was being put, among others, on
the police well firstly on the government not to call the strike a strike or not
to call it labour related but to call it so-called criminal action and that was a
platform from which it would be easier to inflict violence on strikers.

628

When Mr Ramaphosa testified before the Commission counsel for the

Injured and Arrested Persons sought to show a causal connection between
Mr Ramaphosas intervention and the killing of strikers by the police on 16
August.

4)

In argument at the end of the hearings counsel for the Injured and Arrested
Persons submitted that Mr Ramaphosas intervention triggered a series of
events which determined the timing of the massacre. He knew exactly what
he was doing and he is the cause of the Marikana massacre, as we know it.
It was demonstrated that he has a case to answer on 34 counts of murder

627
628

Transcript, opening statement by counsel for Injured and Arrested Persons

Day 42, Zokwana, p 4806

413
and many counts of attempted murder as well as intent to do grievous bodily
harm.629

5)

Mr Ramaphosas counsel submitted that his testimony and the evidence

given by his interlocutors [the two ministers] to the Commission shows that
the accusations ... that were made against him on the strength of the e-mail
correspondence and his account of his interactions with the Ministers are
groundless.630

6)

Mr Ramaphosa first learnt on Saturday, 11 August, about the strike by the

RDOs at the mine when he received an e-mail from Ms Thandeka Ncube,
Shandukas representative on the Lonmin Executive Committee.

631

On

Sunday, 12 August 2012, at 13h16 he received an e-mail from Mr Albert

Jamieson, the Chief Commercial Officer of Lonmin, which was attached to
an e-mail Mr Jamieson had earlier sent to Mr Thibedi Ramontja, the Director
General of the Department of Mineral Resources, informing him that a
terrible and distressing situation had developed at Marikana which had
resulted in the violent deaths of two Lonmin security officers [Messrs
Mabelane and Fundi] with attacks and disruptions continuing. Mr Jamieson
told Mr Ramontja that at this stage it is clear that probably only a massive
police and possibly army presence will stop us having a repeat of recent past
experiences or nearby, we simply do not have the capability to protect life

629

Heads on behalf of Injured and Arrested Persons, para 772

Submissions on behalf of Mr Ramaphosa, para 8.2
631
Day 271, Ramaphosa, p 34410; Exh FFF29
630

414
and limb and I urge you to please use your influence to bring this over to the
necessary officials who have the resources at their disposal.

We need

help.632

7)

Mr Ramaphosa told the Commission that after he read this e-mail he felt it
necessary to respond to the concern [Mr Jamieson] was raising in his email, particularly in relation to the people who had either been injured or had
been killed. He said that he realised that Mr Jamieson was concerned that
this could result in more violence and more deaths. 633

8)

He accordingly sent a text message to Mr Mthethwa in the course of the

afternoon. Mr Mthethwa telephoned him back just over two hours later and
they had a conversation which lasted for just under five minutes. He testified
that during that conversation he raised the concern that Mr Jamieson had
raised, that people had died and were dying and that the situation was
getting worse.

He mentioned that Mr Jamieson had requested that the

police presence be increased so as to prevent further loss of life.

He

informed the Minister that the situation he had been told about on the ground
was such that they need help, they need more police presence on the
ground.

632
633

Exh JJJJ2, e-mail from Jamieson to Ramaphosa

Day 271, Ramaphosa, p 34418

415
9)

He then asked the Minister if he could do something about it. He did not,
however, suggest to the Minister what steps should be taken.

All he

communicated he said, was the concern Jamieson had raised and that they
needed more help and police presence on the ground would help. The
Ministers reply was that he would look into it, he would talk to his people on
the ground and hear for himself what was actually unfolding. 634

10)

Mr Ramaphosas evidence on the point was confirmed by the testimony of

Minister Mthethwa who said:

I spoke to ... Mr Ramaphosa, who had called earlier, or had left a

message and I then returned the call. He explained to me that the
situation in Marikana is bad. Im not quoting his exact words, but
he says hes concerned because people are dying there, property
is being damaged there and as far as he can see there are no
police, or adequate police on the ground.635

11)

Mr Ramaphosa said that he understood Mr Jamiesons reason for forwarding

to him his e-mail to Mr Ramontja, the Director General of the Department of
Mineral Resources, was to seek his assistance because, as he put it,

636

he

[i.e., Mr Jamieson] knew that I knew the Minister of Police and I knew some
of the people in authority and as he needed, as the manager on the
634

Day 271, Ramaphosa, pp 34418 - 34419

Day 255, Mthethwa, p 32079
636
Day 271, Ramaphosa, pp 34420 - 34421
635

416
ground, assistance he knew that I could communicate a message to the
Minister of Police, which I did.

12)

At 21h09 that evening Mr Mokwena sent to Mr Ramaphosa a press release

issued by Lonmin, which recorded the deaths of the two Lonmin security
officers, Messrs Mabelane and Fundi, and reported other criminal actions
which had taken place, including incidents of intimidation and violent action
against employees who wanted to report for duty.

637

Early the next morning,

at 02h34m, Mr Ramaphosa replied to Mr Mokwena, mentioning that he had

a further conversation with Mr Mthethwa, in which, he said, he stressed that
they should immediately take steps to ensure that they protect life and
property and bring those responsible for the terrible acts of violence and
deaths to book. H [i.e., the Minister] said that they were working on it. 638

13)

In his evidence before the Commission Mr Ramaphosa explained what he

had meant when he made this request:

When I said that they should be brought to book, I had

anticipated and expected that those who were responsible
would be identified and they would be arrested which is what
I expect the police to do normally in pursuing their tasks and
duties. It occurred to me that where these incidents had
occurred, one got the full details thereof, police presence

637
638

Exh JJJJ5, Media release, Lonmin condemns fatal attacks

Exh JJJJ4, e-mail, Ramaphosa to Bernard and others

417
was either absent or very minimal and that is why I felt these
people were being attacked and being killed in the way they
were.639

14)

He was then asked if the Minister conveyed anything more to him than that
the police were working on it. His reply was that the Minister did not convey
anything to him other than that and that he had just said that they were
working on it and were aware of the unfolding situation.640

15)

In his evidence Minister Mthethwa stated that during one of his two
conversations with Mr Ramaphosa on 12 August Mr Ramaphosa said that
he did not think that what was happening was pure industrial action in the
true sense of the word: It had criminality on it and violence.

641

The Minister

added that when Lieutenant General Mbombo spoke to him he tended to

understand where Mr Ramaphosa was coming from because industrial
action as you would understand it is that the Constitution and the Gatherings
Act allow people to picket, to march, to demonstrate and do all sorts of
things unarmed.

Now, if theres an action, a protest action or industrial

action, and lives of people are lost thats criminal so I understood where they
[Mr Ramaphosa] and Mr Zokwana, [who also spoke to the Minister on 12
August] were coming from.642

639

Day 271, Ramaphosa, p 34424

Ibid
641
Day 255, Mthethwa, p 32091
642
Day 255, Mthethwa, p 32092
640

418
16)

Mr Ramaphosa did not mention this detail in his testimony in respect of

either his conversations with the Minister but in an e-mail he sent to Mr
Jamieson at 12h18 on 15 August, which will be dealt with more fully below,
he said, all government officials need to understand that we are essentially
dealing with a criminal act. I have said as much to the Minister of Safety
and Security.643 This is clearly a reference to what he said to Minister
Mthethwa on 12 August because he had no further interaction with him
before the tragic events of 16 August.

17)

In her evidence Lieutenant General Mbombo said that she received a

telephone call from Minister Mthethwa on the evening of 12 August in which
the Minister told her that he had received a report from Mr Ramaphosa,
asking if he knew about what was happening at Marikana and stating this
appears to be a problem, he [the Minister] should please look carefully at
it.644

18)

In her conversation with Lonmin management on the afternoon of 14 August,

which was recorded without her being aware of it and which is dealt with in
the Chapter 9 above, she referred to this telephone call and said that the
Minister mentioned a name to me that is also calling him, that is pressurising
him Cyril Ramaphosa.

645

Lieutenant General Mbombo said that the word

pressurising was hers and not the Ministers.646

643

Exh BBB4.2, e-mail Ramaphosa to Jamieson

Day 178, Lt Gen Mbombo, p 21321
645
Exh JJJ192 bis
646
Day 178, Lt Gen Mbombo, p 21323
644

419

19)

At 14h48 on Monday 13 August Mr Ramaphosa received a further e-mail

from Ms Thandeka Ncube in which she summarised what had happened at
Marikana since the events of the morning of the previous day and mentioned
the killing of two more Lonmin employees which brings us to a total of four
dead employees.647

20)

On Tuesday, 14 August, at 16h28 Mr Roger Phillimore, the chairman of

Lonmin, sent an e-mail to, among others, Mr Ramaphosa attaching a note
from Ms Tanya Chikanza, the Head of Investor Relations at Lonmin, which
summarised the current situation at the mine.648 Mr Phillimore referred to the
massive police intervention which had a significant effect and added the
challenge will be to sustain it. He also said that his attempts to speak to the
Minister had not yet succeeded. It does not appear from the e-email to
which Minister he was referring but Mr Ramaphosa said that he thought that
it was the Minister of Mineral Resources.

21)

Later that day, at 18h35, Mr Ramaphosa had a telephone conversation with

the Minister of Mineral Resources, Ms Shabangu.

At 00h47 the next

morning Mr Ramaphosa sent Mr Phillimore an e-mail in which he

summarised this discussion. The summary reads as follows:

647
648

Exh JJJJ6, e-mail Ncube to Ramaphosa

Exh BBB41, e-mail Phillimore to Ramaphosa and others

420
Discussion with Minister Susan Shabangu I called her
and told her that her silence and inaction about what is
happening

at

Government.

Lonmin

was bad

for

her

and

the

She said that she was going to issue a

statement. She was going to be in Cape Town to attend a

Joint Parliamentary Session and would be back in
Johannesburg later today to attend to the Lonmin matter.
I told her that I would also be in Cape Town and
suggested that we should have a discussion and see what
she needs to do.649

22)

Mr Ramaphosas account in his evidence of this conversation reads as

follows:650

The discussions I had with Minister Shabangu who was

then the Minister of Mineral Resources, were that the
situation at Lonmin was deteriorating, more and more
people were getting killed and injured and that was a
matter of great concern to me because I knew how this
type of situation can just escalate into more and more
violence and I was saying that we need to make sure that
at a government level we sensitise people so that the

649
650

Exh BBB4.1, e-mail Ramaphosa to Phillimore

Day 271, Ramaphosa, pp 34431 - 34432

421
Minister of Police can be of assistance and deploy more
police who can protect life and property.

MR UNTERHALTER SC: Yes, it appears also from the

summary and point 1 [a reference to Mr Ramaphosas
email at quoted above], that you had indicated that
inaction and silence was not desirable. Did you raise this
matter with the minister?

MR RAMAPHOSA: Yes, I did because being the minister

responsible for these matters I felt that she needed to be
communicating a government view and I have said that to
her even on a number of occasions, whenever there are
mining accidents I am one of those who often say,
Minister, people have died on the mines, you as the
minister concerned need to be making a statement and
taking a position, it is your responsibility to be heard
because she is in a leadership position.

23)

At 09h43 the next day, 15 August, Mr Jamieson sent an e-mail

651

to Mr

Ramaphosa in which he thanked him for his help so far but mentioned two
areas of concern, viz.:

651

Exh BBB4.2, e-mail Jamieson to Ramaphosa

422

The Minister was on radio today saying shed been briefed

that this was a wage dispute and management and unions
should sit down and sort it out. Not sure whos briefed
her, we are waiting to talk to her (Roger), and although not
too damaging its also not too helpful.

Ive had two

discussions with the DG and in each case have

characterised this as NOT an industrial relations issue but
a civil unrest/destabilisation/criminal issue that could not
be resolved without political intervention and needs the
situation stabilised by the police/army.

I think on both

occasions he agreed with me and it reflected what was in

our letter but now Im not sure I have a call in to him this
morning.

We are grateful the police now have c.800 on site. Our

next challenge is sustaining this and ensuring they remain
and take appropriate action so we can get people back to
work.

It would be good to have some independent

confirmation the police have plans to sustain a presence

for at least a week and numbers dont wane by the
weekend.

If you can talk to the Minister please could you influence

these things with her and encourage her to make time to
talk to Roger?

423

24)

At 12h18 that day, before he had seen Minister Shabangu, Mr Ramaphosa

replied to this e-mail and sent an e-mail,

652

part of which has been quoted

above. The full text reads as follows:

Thank you for your email. I am currently in Cape Town

and will have a discussion with her.

I thank you for the consistent manner in which you are

characterising the current difficulties we are going through.

The terrible events that have unfolded cannot be

described as a labour dispute. They are plainly dastardly
criminal and must be characterised as such. In line with
this characterization there needs to be concomitant action
to address this situation.

You are absolutely correct in insisting that the Minister and

indeed all government officials need to understand that we
are essentially dealing with a criminal act. I have said as
much to the Minister of Safety and Security.

I will stress that Minister Shabangu should have a

discussion with Roger.

652

Exh BBB4.2, e-mail Ramaphosa to Jamieson and others

424

25)

Not long after sending this e-mail Mr Ramaphosa met with Minister
Shabangu and had a discussion with her after which, at 14h58 he sent
another e-mail

653

to Mr Jamieson, Mr Mokwena, Ms Ncube, Mr Phillimore

and Mr Farmer, the CEO of Lonmin, which read as follows:

I have just had a discussion with Susan Shabangu in

Cape Town.

She agrees that what we are going through is not a

labour dispute but a criminal act. She will correct her
characterisation of what we are experiencing.

She is going into Cabinet and will brief the President as

well and get the Minister of Police Nathi Mthethwa to act in
a more pointed way.

She will be in Johannesburg by 5pm and would be able

to speak to Roger.
Let us keep the pressure on them to act correctly.

653

Exh BBB4, e-mail Ramaphosa to Jamieson and others

425
26)

Mr Ramaphosa

654

testified that he saw her very briefly and more or less

repeated precisely what he had said to her the previous evening during their
telephone conversation. He said that Minister Shabangu said after hearing
the number of people killed, that she conceded that it was no longer just a
labour dispute but that there was criminal activity involved because why
would people just be targeted like this and be killed.655

27)

Mr Ramaphosa explained what he meant by his use of the phrase in a more

pointed way as follows:656

I meant that what we wanted to communicate to

government that were dealing with people who are
being killed and what we need to do is to prevent
further deaths occurring, and acting in a pointed way
would mean that those who are perpetrating those
acts should be arrested so that that comes to a stop
and does not carry on any further. That is acting in a
pointed way.

28)

He was then asked:

As far as continuing to contain the situation, did

you have anything else in mind as far as how the
654

Day 271, Ramaphosa, p 34432

Ibid
656
Day 271, Ramaphosa, pp 34443 - 34444
655

426
police should go about ensuring that there was no
further escalation?

29)

He replied:

No, I did not have anything further in mind except

that the police need to do their job and as I
understand it their job is to have a presence where
acts of criminality are taking place, to prevent further
acts of criminality and to arrest those who they know
have perpetrated such acts so that they do not carry
on perpetrating those acts. That is the sum total of
what I expect the police to do.

30)

In answer to a question as to whether the problem would have gone away,

without police intervention, if management and workers had got together and
sorted the matter out, he replied:657

if that track had been pursued it could have borne

some fruit, but what was of prime importance then
was that we were dealing with a situation that was
highly volatile where people were getting killed, and
for good or bad reason we felt that we needed to

657

Day 271, Ramaphosa, p 34594

427
stabilise the situation first, that we should prevent
further people from being killed and in my view that
does not exclude the fact that once the situation is
stabilised, or as you stabilise it you will be able to talk
to people and negotiate.

31)

In her evidence Minister Shabangu said that she met Mr Ramaphosa when
she was on her way to a meeting of a Cabinet Committee and that the
discussion they had lasted about five minutes. According to her, the meeting
was not in the early afternoon between 12h18 and 14h58, the times of Mr
Ramaphosas two e-mails, but in the morning before 10h30.

658

(Regard

being had to what Mr Ramaphosa said in the two e-mails it seems as if Mr

Ramaphosas recollection as to the time of the meeting is to be preferred to
Minister Shabangus, but nothing turns on the point.)

32)

She admitted that she told Mr Ramaphosa that she was going to raise the
matter with the President and the Minister of Police. As it turned out the
President was not available that day and the Minister of Police was not there
either.

659

(According to his evidence he was travelling around in KwaZulu

Natal in the course of his duties and he never got any message of that
kind.)660. She said that she had already decided to raise the violence at
Marikana with them and that Mr Ramaphosa did not raise the matter with

658

Day 278, Minister Shabangu, pp 35552 - 35554

Day 278, Minister Shabangu, pp 35582 35583
660
Day 255, Minister Mthethwa, p 32084 - 32371
659

428
her: on the contrary she raised it with him and told him that she intended
raising the issue with them.

661

She also said that she first raised the

question of a criminal element being involved with people dying and said that
Mr Ramaphosa agreed with her.

662

She denied that she said to him that she

was going to correct her characterisation of what was being experienced or

that he had persuaded her to do so. She also denied that she had said that
she would get Minister Mthethwa to act in a more pointed way or that she
had said that it was not a labour dispute.663 She agreed, however, that Mr
Ramaphosa shared his view that what was happening in Marikana could no
longer be characterised as a labour dispute. 664

33)

She agreed that in an earlier radio interview she had characterised the
matter as a labour dispute

665

and that only after her discussion with Mr

Ramaphosa was a statement made by her department in which it was said

that she was gravely concerned about what was happening at Marikana and
would engage the Minister of Police. 666

34)

Counsel for the Injured and Arrested Persons raised the contention quoted in
paragraph 3 above.

661

Earlier in his argument counsel submitted that Mr

Day 278, Minister Shabangu, p 35587 and pp 35590 - 35591

Day 278, Minister Shabangu, p 35593
663
Day 278, Minister Shabangu, pp 35592 - 35595
664
Exh CCCC5, statement of Minister Shabangu, para 11(b)
665
Day 278, Minister Shabangu, p 35592
666
Exh QQQQ1.3, statement by DMR
662

429
Ramaphosas intervention was, as he put it, infested with a litany of conflicts
of interest.

35)

667

During his cross-examination

668

the e-mail he sent to Mr Jamieson at 12h18

on 15 August was cited as indicating that he had wrongly referred to the

labour dispute as being dastardly criminal, and had said it had to be
characterised as such and had to be addressed by concomitant action. It is
clear that the terrible events to which Mr Ramaphosa referred were the
serious criminal offences, including murders which arose from attempts to
enforce the unprotected strike by violence and intimidation. These events
arose in the context of a labour dispute which resulted in the strike. But Mr
Ramaphosas reference to the terrible events that have unfolded cannot
reasonably be construed as a reference to the labour dispute or the strike.
As the evidence leaders correctly submitted the words plainly refer to the
murders and other acts of violence which had taken place. Those were
indeed criminal acts and they did indeed need to be addressed in that
fashion.669

36)

The Commission is in full agreement with the evidence leaders submissions

contained in paragraphs 972 to 981, as follows:

667
668

Heads on behalf of Injured and Arrested Persons, para 6421

Day 271, Ramaphosa, p 34762

669
ELs Heads, para 971

430
972. It is not in dispute that Mr Ramaphosa said to
Minister Shabangu that these events went beyond a
labour

dispute,

involved

criminal

conduct,

required the involvement of the police.

and

She then

expressed a similar point of view, and did so publicly

after the meeting. Not much turns on whether she
reached the view of her own accord or a result of Mr
Ramaphosas attempt to persuade her of this. It can
hardly be contended that the killings and damage to
property were not a police matter, or that it would
have been improper to attempt to persuade Minister
Shabangu of this. By this time, ten people had been
killed.

If one excludes for the moment the clash

between the strikers and the members of the SAPS

on 13 August, to which particular considerations
apply, five of the deaths had been the result of
murders committed during the course of the strike. It
cannot be contended that this was not a serious
criminal

matter,

or

that

it

was

improper

or

inappropriate to seek to persuade the government to

see the matter in that light.

973.

It is certainly true that the underlying labour

dispute also needed to be addressed.

It can be

contended that Mr Ramaphosa, as a non-executive

431
director, was insufficiently attentive to the underlying
labour dispute. His response to this contention was
that this was a matter for management (including
Shandukas

representative

on

the

committee, Ms Ncube) to deal with.

elsewhere

in

this

submissions

management
We submit
that

Lonmin

management did not respond adequately to the

violently conflictual situation which had arisen. It may
well be that the directors, and perhaps particularly Mr
Ramaphosa given his background, should have
appreciated the need for urgent action to address the
underlying labour dispute, and should have intervened
actively to ensure that management took such action.
While the matter had to be dealt with in part as a
policing matter, that was not likely to be sufficient. It
was also necessary to address the underlying labour
dispute.

There was certainly no reason to be

confident that if some strikers who had allegedly

committed the murders had been identified and
arrested, that would have brought an end to the
violence.

974. However, we submit that it cannot be fairly

suggested that the call for concomitant action to be
taken in respect of murders and violence, involves the

432
exercise of inappropriate political influence, or an
attempt to have the police brought in to break the
strike. In Mr Ramaphosas capacity as a director of
Lonmin, he may well have had a legal obligation to
take what steps he could to prevent the killing or
injuring of Lonmins employees, the damaging of its
property, and the damaging of its business.
975. It follows, we submit, the Mr Ramaphosas
intervention with the Ministers was not inappropriate
or

inadmissible.

We

deal

below

with

the

consequences of that intervention.

976.

We submit that it is self-evident why it was Mr

Ramaphosa, and not another Lonmin director or a

Lonmin executive, who made the call to the Minister of
Police on Sunday 12 August, and who met Minister
Shabangu on Wednesday 15 August. He was a senior
office-bearer of the African National Congress, and he
knew the Ministers and other key role-players in
government. As a result, he had access to them and
influence with them. Suggestions to the contrary, for
example that he had no greater access or influence
than ordinary members of the people, are plainly
fanciful. This is demonstrated by what happened in this

433
instance. Lonmins previous attempts to gain access to
Minister Shabangu, for example by approaching the
Director-General, had met with no success.

Mr

Ramaphosa was able to gain access by telephoning

her.

977.

The question which arises is whether it was

improper or inappropriate for Mr Ramaphosa, in his

capacity as a non-executive director of Lonmin, to use
his political influence, political access, and personal
connections in this manner.

978. It was suggested in cross-examination of Mr

Ramaphosa that he had a conflict of interests in this
regard. This was because he was wearing more than
one hat when he initiated the conversation.

979.

A conflict of interests arises when an individual

has more than one interest, and one of the interests is

incompatible with one or more of the others. In that
situation, it is not possible for the person concerned to
be loyal to both sides. The individual concerned must
either declare the conflict and say that he or she is
acting only in a particular capacity, or recuse himself
or herself from the matter.

434

980.

In this instance, Mr Ramaphosa wore the hats

of non-executive director or Lonmin, a significant

shareholder in Lonmin (through its shareholding
structures), and a senior member of the ANC, the
governing party. He also had personal connections
with some of those involved in government. If what
Mr Ramaphosa did was attempt to persuade the
Minister to ensure that there should be greater police
presence on the ground so as to prevent further loss
of life, there was no incompatibility in the interests
which he had in the matter. The interests of Lonmin,
the African National Congress, and the interests of
those with whom he had personal relationships, were
not incompatible: they all had an interest in putting an
end to the killings which had taken place. The only
people who had an interest in a continuation of the
killings were those who were carrying them out.

981.

The various interests might fairly be described

as a confluence or an overlapping of interests.

Mr

Ramaphosa was correct in saying that if someone is

trying to help solve a situation, which would save lives

435
or would advance the common purpose of everyone, it
should not be seen as a conflict of interests.

37)

The evidence leaders point out (in para 1004 of their heads) that the
objective evidence shows that Mr Ramaphosa was not aware of the decision
made on Wednesday, 15 August to move to the tactical option if the strikers
did not lay down their weapons and leave the koppie. They develop the
point further in para 1005 as follows:

However, it is likely that the precipitate (and still

unexplained) decision of 15 August, to move to the
tactical phase the following day if the strikers did not
lay down their arms and leave the koppie, was at least
partly the consequence of the senior police officials
feeling the need to act and be seen to act.

The

telephonic discussion which Mr Ramaphosa had with

the Minister, and the discussions which the Minister
then had with Mr Zokwana and with the National and
Provincial Commissioners, are likely well have been a
factor in that decision. Mr Ramaphosas call to the
Minister may be seen as the first in this chain of calls.
However, there is no evidence which suggests that Mr
Ramaphosa knew or should have anticipated that the
SA[P]S would act as precipitately as a result of his call
to the Minister, or that he should have anticipated that

436
the consequence of his call on the police to deal with
the murders and violence would be that they would kill
34 people. His evidence was that his concern was to
prevent a situation where more and more people
would be killed. There is nothing which he said or did,
which suggests the contrary. At the time of the Impala
strike, he had intervened by speaking to Minister
Mthethwa, and saying to him that the weak police
presence had resulted in deaths. That did not result in
events of the kind which took place at Marikana.

37)

While the Commission does not disagree with what is said by the evidence
leaders in this regard it must be borne in mind that there is no reason to
believe that the SAPS would have reacted to the events during the period 11
to 16 August any differently if Mr Ramaphosa (and for that matter Mr
Zokwana) had not contacted Minister Mthethwa.

In view of the serious

crimes committed by some of the strikers, the fact that they were not willing
to lay down their dangerous weapons, despite the fact that their continuing
possession thereof was an offence, and the daily coverage in the media of
what was happening at Marikana, it was inevitable that the SAPS would
bring in extra members in an attempt to bring the situation under control and
restore law and order.
Minister

Mthethwa

It was also inevitable in the circumstances that

would

have

been

in

touch

with

the

National

Commissioner and Lieutenant General Mbombo to keep himself informed as

to what was happening and to satisfy himself that the SAPS were adequately

437
dealing with the situation. The Commission is of the view that it cannot be
said that Mr Ramaphosa was the cause of the massacre.

38)

There is no basis for finding that Mr Ramaphosas evidence as to what he

did and said in his interaction with the Ministers was inaccurate.

It is

important to note in this regard that Mr Ramaphosa reported regularly by email to the management of Lonmin on the interactions and that his evidence
is entirely consistent with the e-mails sent by him.

39)

He had no reason to believe that the SAPS would launch the precipitate, ill
planned and poorly commanded operations, which caused the deaths of 34
strikers on 16 August. In fact he in his e-mail sent at 00h47

670

on 15 August

to Mr Phillimore he stated that he had spoken to Mr Zokwana, the President

of NUM, who said that he and Mr Frans Baleni, the Secretary General of
NUM, wanted to meet him and Mr James Motlatsi, a former NUM President,
on Friday, 17 August, to discuss what they should do as a union going
forward. This indicates that he did not envisage any sudden operation such
as in fact took place on 16 August.

This is also demonstrated by Mr

Jamiesons e-mail sent at 09h43 to Mr Ramaphosa where he said that it

would be good to have some independent confirmation the police have plans
to sustain a presence for at least a week and numbers dont wane by the
weekend.671

670
671

Exh BBB4.1, e-mail Ramaphosa to Phillimore

Exh BBB4.2, e-mail Jamieson to Ramaphosa

438
40)

There is no basis for the Commission to find even on a prima facie basis that
Mr Ramaphosa is guilty of the crimes he is alleged to have committed.

41)

The Commission agrees with the submissions by Mr Ramaphosas counsel

that the accusations made against him by counsel for the Injured and
Arrested persons are groundless.

MINISTER NATHI MTHETHWA

42)

Counsel for the Injured and Arrested Persons submitted that the
Commission should recommend to the National Director of Public
Prosecutions that he should consider prosecuting Minister Mthethwa for the
murder of the 34 strikers who were killed on 16 August at Marikana.

43)

Counsel for Minister Mthethwa submitted on the other hand that her client
cannot be held liable for the tragic loss of lives at Marikana and that no such
recommendation should be made.

44)

In order adequately to deal with the contentions raised in this regard it is

necessary to consider what the role of the Minister of Police is under our
Constitution and the relevant legislative provisions.

439

45)

The relevant section of the Constitution is Section 206, which is headed

Political responsibility. Subsection (1) reads as follows:

A member of the Cabinet must be responsible for policing

and must determine national policing policy after consulting
the provincial governments and taking into account the
policing needs and priorities of the provinces as determined
by the provincial executives.

46)

If follows from this that the Minister has two functions: to be responsible for
policing and to determine national policing policy. This implies that his or
her functions are not limited to purely policy matters.

47)

Section 207(2) of the Constitution deals with the functions of the National
Commissioner. It provides that he or she must exercise control over and
manage the police service in accordance with the national policing policy
and the directions of the Cabinet member responsible for policing.

48)

Thus the Minister is not only responsible for policy but may also issue
directions to the National Commissioner.

440
49)

As the evidence leaders submit,672 this scheme contemplates a division of

powers between the Minister and the National Commissioner. The Minister
has political responsibility, must determine national policing policy and may
issue directions. Operational and managerial control of the police falls within
the functions of the National Commissioner.

50)

The Commission also agrees with their further submissions

673

that it would

not be correct to assert that it would be improper or inappropriate for the

Minister to intervene in policing matters by making contact with the National
Commissioner (or for that matter a Provincial Commissioner), expressing
concerns about a particular situation which has come to his or her notice,
and instructing that the matter must be attended to. It would however be
improper and inappropriate for the Minister to issue directions as to how a
particular operation is to be carried out.

This does not fall within the

Ministers function and it is likely to be a matter in respect of which the

Minister has no experience of skill.

51)

Minister Mthethwa testified that he had three telephone conversations with

the Provincial Commissioner during the period in question. The first, which
lasted for just over five and a half minutes was at 18h47 on 12 August 2012,
after he had spoken on the telephone to Mr Ramaphosa and Mr Zokwana,
the then President of NUM, who both told him what had happened earlier
that day and that it appeared that there were not adequate police on the

672
673

ELs Heads, para 960

ELs Heads, para 962

441
ground. In his conversation with the Provincial Commissioner he sought to
ascertain whether the reports Messrs Ramaphosa and Zokwana had made
to him were correct and to find out what the SAPS were doing about the
matter.

Lieutenant General Mbombo confirmed the correctness of the

reports and told him what the SAPS was doing and what was happening.

52)

674

The Ministers second conversation with Lieutenant General Mbombo, which

took place the next day, 13 August, at 18h36, lasted just under six minutes.
She briefed him on the events of the day, told him what the SAPS was doing
and said that she did not consider the SAPS incapable of managing the
situation and that more members had been deployed to the area.

53)

675

His third telephone conversation with Lieutenant General Mbombo occurred

at 06h50 on the morning of 15 August: it lasted just under three minutes. He
asked whether there was anything he needed to be briefed on before he
commenced his duties that day and was told that the situation was still the
same.

54)

676

Minister Mthethwa also testified that during the period from 12 August to the
shootings on 16 August he had one conversation with the National

674

Day 255, Minister Mthethwa, pp 32078 - 32081

Day 255, Minister Mthethwa, p 32093
676
Day 255, Minister Mthethwa, p 32096
675

442
Commissioner.

677

This conversation, which last two minutes and 39

seconds, took place at 19h52 on 14 August. She told him what had been
happening and gave him the assurance that the SAPS had the required
capability to handle the situation. The next conversation he had with her
was on 16 August after the shooting, at 17h00, when she telephoned him
and briefed him about the tragedy. Subsequently that evening he had three
further conversations with her, when she provided further information about
what had happened. 678

55)

He repeatedly insisted that at no stage did he place any pressure on either

Lieutenant General Mbombo or the National Commissioner to take any form
of action. As regards his conversations on 12 August with Mr Ramaphosa
he said that he did not regard him as having endeavoured to put pressure on
him.679

56)

When the e-mail Mr Ramaphosa sent to his Lonmin colleagues at 14h58 on

15 August in which he reported on his conversation with Minister Shabangu
and said that she had said she would brief him, Minister Mthethwa, to act in
a more pointed way, he said that he was not in Cape Town that day but was
completing his ministerial work in KwaZulu Natal, which started three days
earlier and that no-one prevailed upon him on 15 August to act in a pointed

677

Day 255, Minister Mthethwa, pp 32094 - 32095

Day 255, Minister Mthethwa, pp 32097 - 32099
679
Day 255, Minister Mthethwa, p 32112
678

443
way.

680

According to his telephone records he did not have any

conversations with Minister Shabangu.681

57)

The National Commissioner, as the evidence leaders put it, 682 threw no light
on what role, if any, the Minister played in relation to the events of 16
August. Repeated attempts to get her to say what the Minister did before
the events of 16 August produced no satisfactory answer. Among other
things she said of the Minister, hes a political leader.
leadership in that space and support.

683

When asked what specific support

the Minister gave before the shootings on 16 August she said:

he is our political leader.

politic(al) support.

He gives us

684

He took, gave us

He gave us that leadership

because I do not have the responsibility of

communicating in that space or dealing with issues in
that regard, and that is the best answer I can give
you.

58)

680

Mr Madlanga SC, who was the senior evidence leader at the time, asked:

Day 255, Minister Mthethwa, p 32084

Exh CCCC para 85
682
ELs Heads, para 984
683
Day 65, Phiyega, p 6870
684
Day 65, Phiyega, p 6872
681

444
So must I take your best answer to be that you
cannot be specific on the political direction nor can
you be specific on the support the Minister gave
you?

59)

The National Commissioners answer was:

I have said he has given us leadership, he has given

us political support, and that enabled us to do our
work.685

60)

The evidence leaders correctly submit

686

that these answers were not only

unhelpful, they were distinctly evasive. It is not clear why she wished to be
evasive.

61)

The decision made on 15 August, allegedly by Lieutenant General Mbombo

and endorsed at the extraordinary session of the NMF that the tactical
option would be implemented the next day if the strikers did not lay down
their arms voluntarily remains inexplicable. No explanation was given as to
why it was necessary that it be implemented in the course of the day on 16
August, some time after 09h00 when it became clear that the strikers were
not prepared to lay down their arms, at a time therefore when the number of

685
686

Day 65, Phiyega, pp 6872 - 6873

ELs Heads, para 987

445
strikers on the koppie was likely to be at its highest. Four possible reasons
are suggested by the evidence: the desire to pre-empt intervention by Mr
Malema to defuse the situation (a motive suggested by Lieutenant General
Mbombo in her conversation with Lonmin management on the previous day);
or the rising costs of the operation (a factor mentioned by Lieutenant
General Mbombo when she saw Mr Mathunjwa before he went to the koppie
for the first time on 16 August); or to break the strike (as Lieutenant General
Mbombo said in her media conference at 09h30 on 16 August and in her
interview with eNCA shortly after); or pressure or guidance from the
executive; or a combination of two or all of these reasons.

62)

The fourth possible reason, pressure or guidance from the executive, was
suggested in the course of his evidence by Mr De Rover, the expert called
by the SAPS. After saying that he had heard of the meetings of the NMF as
a rumour 687in his first week in South Africa, he said:688

One thing I do know is that in no democratic country

an incident that doesnt only have national security
ramifications

but

definitely

serious

economical

dimensions, does a police force decide that it is time

for whoever is there to go. That decision comes and
originates from somewhere else and it may well be
that then becomes the subject for a discussion in a
687
688

Day 286, De Rover, p 37070

Day 286, De Rover, p 37071

446
management forum of the police but its an order that
comes from the executive and the police must
implement that order.

63)

The Chairperson then asked him:689

When you say that it was an order from the

executive, are you basing it on something you were
told at the time you heard the rumour or what is the
basis of your saying that?

64)

Mr De Rovers answer was:690

Now if you call that meeting, and with what I have

said about police forces in a democratic society, I
would be very surprised that SAPS would have been
permitted to make that decision on its own alone and
not guided or would not have actively sought the
guidance of the executive on this prior to doing it

689
690

Day 286, De Rover, p 37073

Day 286, De Rover, pp 37075 - 37080

447
You cannot have a police force essentially deciding
on issues that have such ramifications attached to it
and consequences as Marikana, on its own

[W]hat I maintain as my opinion is that I would expect

a political direction to a situation of this kind If its
an incident that puts at risk the interests of a big
international enterprise, that obviously is of economic
important to South African police, if it puts at risk lives
and communities and if it occasions now with
regularity death and injury, I cant imagine that just to
be policing questions and that directions and choices
that are made are not subject to political scrutiny or
political advice, at least to a National Provincial
Commissioner, and I remember at least from the early
days of the Commission that a lot of discussion was
held about who called whom, what phone calls were
made,

what

e-mails

were

sent,

who engaged

themselves on this issue I think the problem for me

is that it is less than transparent who involved and
engaged themselves because and its simply on my
expectation of having been in so many countries
around the world, that operations of this kind are not
left to the police to run there because the policy that
would underpin the action needs the sanctioning from

448
the executive and the judiciary. It cant be the police
alone.

65)

He said that he asked Lieutenant General Mbombo why the decision was
taken by the NMF to endorse her proposal and said she told him that after
the meeting a few of the members remained behind and then we had that
discussion. He stated that he had a problem accepting this as an utterance
of how modern democracies work because the ramifications of such an
action would invariably come back on the government as they did after
Marikana. So to imagine in reality that that was given a go-ahead or left to
go-ahead without the government having its say on it but still being
confronted now with the consequences of it I just cant imagine a reality
where that is par for the course.691

66)

He said that he put this problem to the SAPS officers who were instructing
him. He had lengthy discussions on the topic with Major General Mpembe
and Major General Annandale, who told him that they shared his view. They
were, however, not privy as eye-witnesses or witnesses of fact to any
information that helps in this regard. All that they said was that they shared
his view.

691
692

692

Day 286, De Rover, p 37082

Day 286, De Rover, p 37083

449
67)

He said that he also put this view to the National Commissioner, who gave
him a diplomatic answer.

When the Chairperson asked whether by

diplomatic he meant evasive, his reply was: Ja.693

68)

The evidence leaders made energetic but unsuccessful efforts to obtain the
original audio record of what was said at the NMF meeting. Mr Budlender
raised this matter in an open session of the Commission on 17 January
2014.

He said that the evidence leaders had been attempting to obtain

materials relating to the NMF meeting on 15 August 2012 from the SAPS for
the purposes of the evidence of Lieutenant General Mbombo. Among the
materials sought was the tape recording of the meeting. He said that they
were told that the meeting was recorded and that the recording had been
preserved. He stated that they had requested in on 17 November 2013 and
again since then but had not received it. He said that the legal team acting
for the SAPS had, so the evidence leaders believed, attempted to secure the
materials sought.

He added that they had tried to resolve this by other

means but these attempts had not succeeded. He asked the Commission to
intervene and address the matter.

The chairperson then asked Mr

Semenya, the leader of the SAPS team, to see to it that the evidence
leaders received the materials sought. He said that if the materials were not
made available he would expect the National Commissioner to appear
before the Commission in person, not to give evidence but to explain the
reason for this lack of co-operation. Thereafter the materials sought were
provided to the evidence leaders except for the original recording which it
693

Day 286, De Rover, pp 37083 - 37084

450
was said had been lost. A copy made on 21 August 2012 was furnished but
this did not contain a recording of the extra-ordinary session, which it was
said was not recorded. This is unlikely as the main part of the meeting was
recorded and the discussion thereafter was clearly regarded as part of a
meeting of the NMF because it was included in the draft minutes as a
discussion of item 7 on the agenda.

69)

According to the evidence of Major Gugulethu Lethoko, of the Section:

Executive Secretariat and Information Management in the office of the
National Commissioner, she attended the meeting of the NMF on 15 August
but left before the extraordinary session.

694

A memory stick on which the

proceedings were recorded was, she was told by Sergeant Cedrick Matthys,
of the South African Police Service Division: Supply Chain Management
(who was present at the meeting on 15 August), handed for safe-keeping to
Brigadier Ledile Sheile Malahlela, the head of the section: Executive
Secretariat Risk and Information Management, who took it to her home.

70)

695

On 17 August, Major Lethoko, while preparing the minutes, realised the need
to listen to the audio recordings. As the memory stick had not been brought
to the office she sent an e-mail to Brigadier Malahlela, asking for the memory
stick to be made available to her so that she could load it on to her computer
for compiling the minutes and filing (She stated that the original recordings
were generally filed in a locked cabinet in her office after their contents were

694
695

Day 270, Major Lethoko, p 34374

Day 270, Major Lethoko, p 34377

451
downloaded onto her computer.)696. She did not receive a reply until midday
on Sunday, 19 August, when she received an e-mail from Brigadier
Malahlela telling her she would leave it for her secretary, Kagiso Tlale to
collect from her house.697

As Major Lethoko had not received it by the

morning of Tuesday, 21 August, she sent an e-mail to Kagiso Tlale, asking

him to collect it if Brigadier Malahlela had not already given it to him. Major
Lethoko received the memory stick later in the day. 698 It appears that it did
not contain a recording of the discussions during the extraordinary session.

71)

According to Major Lethoko memory sticks containing recordings of meeting

of the NMF are generally kept in a file in a locked cabinet in her office. The
memory stick containing the recording of the NMF meeting of 15 August
2012 was not kept in the locked cabinet but given, after its contents had
been downloaded, to Brigadier Mahlahlelas secretary to be returned to her.
Major Lethoko said that she could not remember why she returned it to
Brigadier Malahlela but that she thought it was because it appeared to be the
property of Brigadier Malahlela or maybe it had other files.

72)

When the evidence leaders asked for the memory stick which was returned
to Brigadier Malahlela to have it examined to ascertain if it had contained a
recording of the discussions of the extraordinary session they were told that
the stick had been lost after being returned to her. As the stick contained

696

Day 270, Major Lethoko, p 34363

Day 270, Major Lethoko, pp 34379 34380
698
Day 270, Major Lethoko, pp 34382 - 34383
697

452
top-secret information it would appear prima facie that Brigadier Malahlela is
guilty of contravening section 4(1)(b)(dd) of the Protection of Information Act
1982 for neglecting or failing to take proper care of the memory stick. As far
as the Commission has been able to ascertain, no disciplinary or criminal
proceedings have been instituted against her arising from the loss of the
memory stick. She herself, the Commission was told, was not fit enough to
testify before the Commission because she was suffering from a stress
disorder. Major Lethoko said that Brigadier Malahlela had been off sick for
some time but had returned to work about a month before Major Lethoko
gave evidence before the Commission.699

73)

The Commission is satisfied that those who attended the extraordinary

session of the NMF should have been able to tell the Commission the
reason or the reasons why the decision to implement the tactical option on
16 August if the strikers did not lay down their arms was taken and the only
reasonable inference to be drawn from their failure to do so is that they are
hiding something. This inference is fortified to some extent at least by the
evidence relating to the missing memory stick.

74)

The Commission is not able to find that the fourth possible reason for the
decision to endorse Lieutenant General Mbombos alleged proposal,
namely what Mr de Rover called the guidance of the executive, was not one
at least of the factors on which the decision was based. If guidance of the
executive played a role, then it is probable that such guidance was conveyed
to the NMF by Minister Mthethwa.

699

Day 270, Major Lethoko, pp 34400 - 34402

453

75)

The Commission wishes to emphasise that it is not finding that such

guidance was given. It is, however, unable in the light of what has been
said above to find positively in Minister Mthethwas favour on the point.

Minister Shabangu

76)

Counsel for the Injured and Arrested Persons suggested in his heads of
argument that the Commission should recommend that the DPP should
consider prosecuting Minister Shabangu on charges of corruption and
perjury.

77)

The Commission does not agree with this suggestion. There is no basis on
which it can find that Minister Shabangu passed on to the President (who
was not available on 15 August), the Cabinet (which was not sitting) and
Minister Mthethwa (who was away on Departmental business in Kwazulu
Natal) what Mr Rhamaphosa had put to her. According to her evidence Mr
Ramophosas conversation with her was not the reason for the statement
she issued on 15 August in which it was said that the events at Marikana
had escalated into a security or policing matter.700 As the evidence leaders
submit701 nothing much turns on whether she reached that view of her own

700
701

Day 278 Shabangu pp 35637-35642

EL HOA paragraph 972

454
accord or as a result of Mr Ramaphosas attempt to persuade her of this.
This is because the killings, assaults and damage to property were serious
criminal matters requiring police action.

78)

In the circumstances, even if Mr Ramophosa did persuade her to change her

stance on the issue, it is difficult to see how any question of corruption can
arise. As far as the suggestion that she should be prosecuted fopr perjury is
concerned, it is not possible in the Commissions view to find that on the
issues where there were differences between her evidence and that of Mr
Ramophosa (if one accepts, as the Commission is inclined to do, that Mr
Ramophosaa version is the correct one) she was guilty of anything other
than faulty recollection. As has been said, nothing turns on the points where
her evidence differs from that of Mr Ramophosa.

79)

As far as concerns her statements702 as to whom she had in mind when

referring in a speech she made to a meeting of NUM shop stewards in May
2013 to forces determined to use every trick in the book to remove you from
the face of the earth703, the question as to whether she meant Lonmin or
AMCU is so far remote from the issues covered by the Terms of Reference
that the Commission does not consider it appropriate to make any
recommendations about it.

702
703

Day 178 Shabangu pp 35621 - 35625

Exhibit QQQQ1.8, paragraph 5

455
80)

In his oral submissions counsel for the Injured and Arrested Persons
submitted that she should be referred to the Ethics Committee of
Parliament.704 The Commission is satisfied that there is no substance in this
submission either.

704

Injured and Arrested Persons HOA para 566

456
CHAPTER 20

Lonmins inadequate protection of its employees

1)

As early as 20 December 2011, Mr Albert Kent, then acting manager of

mining security, addressed a letter to Mr Sinclair in which he raised a grave
concern about the safety of security officials and he highlighted how violent
unrest situations had become.705 He stated that Lonmin security personnel
are usually the first to arrive on a scene and have to manage a scene until
SAPS arrive. He stated that while Lonmin had issued their personnel with
riot helmets, bullet proof vests and riot shields this was usually not adequate
to protect employees should protestors decide to launch a full scale attack
on them. Mr Kent pointed out that they needed armoured vehicles in order
adequately to protect members.

2)

Mr Blou testified that in 2011 Lonmin had taken a decision to change its
approach to security from a paramilitary approach to a softer user-friendly
approach. This low-key user friendly approach required that Lonmin security
patrol in soft skin vehicles and not in armoured vehicles. Mr Blou stated that
the reduction in manpower coupled with Lonmins disposing of its armoured
vehicles limited Lonmin security in its ability to control unrest.706 Mr Blou
conceded that Lonmin had reduced its capacity to such an extent that it was
no longer able to deal with serious violence and unrest.707

705

Exhibit FFFF3
Exhibit RRRR1.4 para 35
707
Day 282, Blou, p. 36240
706

457
3)

With reference to an e-mail dated 25 August 2011 from Mr Blou, where he

enclosed a motivation for a Nyala to be acquired and where he said that the
security members remain extremely vulnerable specifically because the
vehicles that they were using were soft skin vehicles, Mr Sinclair said he
considered the request, had a discussion with Henry Blou and senior
managers and then forwarded the request to Mr Frank Russo-Bello.708

4)

He said the report back was very clear that Lonmin did not want to have hard
skin vehicles in their security fleet. He was told that if hard skin vehicles
were required, they could be obtained from the security service providers.
He said that he did support the acquisition of a Nyala in his personal
capacity and he did vocalise that. He said there was no reason forthcoming
from Lonmin management for their reluctance to acquire the hard skin
vehicles.709

5)

With regard to armoured vehicles provided by independent contractors, prior

to 12 August 2012, one of Protea Coins two armoured vehicles had caught
alight en route to Mooi Nooi. The second vehicle was riddled with
mechanical faults. These facts could not have gone unnoticed by Lonmin
and should have alerted them to a potential problem with their resources. Mr
Botes testified that on the 12th, when he got into the Protea armoured vehicle
in order to go to the assistance of Mr Mabelane and Mr Fundi immediately
after the attack, the driver could not get the armoured car into gear. When
asked whether he was aware whether these mechanical problems played

708
709

Day 268, Sinclair pp. 34046

Day 268, Sinclair, p. 34038

458
any role in why the Mamba was not there in the first place, Mr Botes said
that he could not confirm that but he expected that was the case.710

6)

Mr Blou said that even if there were more security officers, he did not think
that they would have been effective in being able to disperse a crowd of
3 000 because of a lack of capacity.711

7)

Mr Sinclair said that although there were various arrangements made to

patrol the areas, the areas were so vast that with their limited resources they
could protect some of their workers and some of their routes but not all. He
conceded that where there was a strike across the whole of the Lonmin
property, they did not have the resources to protect the whole of that
property.

8)

Mr Blou said that on the 10th and as the crowd were dispersing, he heard
threats from various people in the crowd with suggestions that this was not
the end of the matter and, whilst he could not point to any specific individuals
who uttered the threats, there were voices from the crowd with a level of
aggression which he had not previously heard expressed at the mine. The
number of people in the crowd was also unprecedented.

9)

Under cross examination, he agreed that there was clearly a significant

change of mood which required an appropriate response from Lonmin. 712 Mr
Blou said that for him that was a game changer at that point. He said that,

710

Day 265, Botes, p 33425

Day 281, Blou, p. 36225
712
Day 281, Blou, pp.36154 to 36155
711

459
although the crowd had dispersed, it had become apparent that there was a
need for Lonmin to establish a JOC which combined the efforts of Lonmin
security and the Emergency and Disaster Management to monitor all the
developments and to coordinate all the responses.713

10)

Mr Blou said that a JOC was set up on the afternoon of 10 August 2012 and
that this is an important facility which centralises all communications
pertaining to a specific event and where stratergic decisions are taken.714

11)

Under cross examination by counsel for NUM, Mr Blou agreed that it was an
alarming assessment that he and Mr Sinclair made at the time on the 10 th715
and that they did ensure that they brought in extra resources to manage the
unfolding events.

He said they had conversations with private security,

Protea Coin Security, and engaged with their counterparts at processing to

give them more security to manage the strike. He said that they would later
that evening have assessed the situation further and seen whether the
people had dispersed completely.

12)

Mr Blou said that after the strikers had dispersed, they received information
later that afternoon that they wanted to target employees that were not
participating in the strike. He had been informed of incidents at Rowland
Shaft of employees being intimidated and where security officers had to
intervene to protect these employees.

713

Day 281, Blou, p. 36176

Day 281, Blou, p.36142/3
715
Day 281, Blou, pp.36176
714

460
13)

Mr Blou said that on Friday evening, they had security deployments in the
area of Wonderkop, Rowland Shaft and Western Platinum Mine. They
believed that those deployments were sufficient to prevent intimidation and
to protect the employees who wanted to go to work and to protect their
property.

However, in spite of these arrangements, the people at

Wonderkop were intimidated and security was required to intervene.716

14)

Counsel for NUM referred to paragraph 8.1.3 of Exhibit XXX 8, where it is

required that all situations must be closely monitored in order to determine
the mood of the people taking part in the industrial action in order to predict
possible consequences which may lead to business interruptions or
disruptions, intimidation, injury to people, damage to property or disruption of
external services.717

Mr Blou agreed with counsel for NUM that what

seemed to be critical in terms of the protocol in this paragraph, was that the
mood of the people taking part in the action was a vital tool in order for the
security leadership to be able to predict possible consequences. He said
that the assessing of the mood included taking note of such things as
change of mood.718

15)

It was suggested by counsel for NUM that a strategic session of comparing

notes about the aggression of the crowd and their disturbing behaviour might
have produced an appreciation of the scenario that the crowd might take
action against people who continue to work and might take action against

716

Day 281, Blou, pp.36188 to 36199

Day 281, Blou, p. 36147
718
Day 281, Blou, p.36153
717

461
NUM, because NUM had expressed its opposition to the strike.719 Counsel
said that if there had been some sort of examination and discussion of what
had happened, then the march to the NUM office on the morning of the
following day might not have been that unexpected.720 Mr Blou said that they
did have the strategic session which lasted for about an hour or less, but
there appears to be no record of it in the Lonmin logbook.721

16)

With regard to their assessment of the mood of the crowd and a prediction of
what might happen, Mr Blou was asked what arrangements they put in place
to deal with a large gathering or another march wherever it might be
intending to go and whatever it might be intending to do.722 Mr Blou replied
that their security was at all times concerned with protecting the property and
the people of Lonmin and that whatever public gatherings would take place,
or what would flow out of that public gathering e.g. public violence, would be
a matter for the SAPS to deal with, and they had consistently engaged with
the police during that period.

17)

Mr Blou agreed that with regard to the place of SAPS in their planning, that
when they sought the intervention of the appropriate SAPS personnel, they
needed to be able to tell SAPS what it is that they expected. The scenario
planning was not only for Lonmin Security but also necessary to tell SAPS

719

Day 281, Blou, p.36179

Day 281, Blou, p.36181
721
Day 281, Blou, p.36183
722
Day 281, Blou, p.36203
720

462
what they expected would happen and what they expected SAPS should do
to deal with the situation.723

18)

Counsel for NUM gave an example to Mr Blou that on 10 August 2012, they
had information of a large gathering that would move to the LPD offices.
They communicated that definite prospect to SAPS, who were able to react
by providing four Nyalas, many soft vehicles and a large number of SAPS
members, which he said was a significant security presence.724

19)

He was asked whether he conveyed to SAPS in any meaningful way after

the dispersal of the march on 10 August 2012, that this was the largest
number of marchers that they had ever had, that the level of aggression was
the most intense, that they thought that they might attack Lonmin facilities or
the NUM offices in large numbers and that they might need the services of
the Public Order Policing unit. Mr Blou said that on the evening of the 10 th,
they were in conversation with members of SAPS giving them all the
necessary information to prepare.725

20)

Counsel for NUM specifically asked Mr Blou whether he and his colleagues
in Lonmin Security identified the possibility of another large gathering of
strikers in the course of the early morning of Saturday, 11 August 2012. Mr
Blou said that they had received information that the workers, when they
dispersed, were not going to go to work.

So he knew that they were

gathering in the form of a strike and that they would toi- toi, have a gathering
723

Day 281, Blou, p.36204

Day 281, Blou, pp.36205 - 36206
725
Day 281, Blou, p.36208
724

463
and they would march as well.

He agreed726 that the march would go

somewhere by definition. He was asked whether he and his colleagues had,

as at 10 August, in the afternoon or the evening, specifically planned for the
eventuality that they would have another large march on Saturday morning,
11 August.727 He eventually did concede that on the evening of the 10th, they
must have foreseen that there might be an unplanned march the following
morning.728

21)

He said that what was conveyed to SAPS was that while they anticipated the
strike to continue the next day, they would assess the seriousness of the
situation and would then communicate it to them. This in effect would mean
that they would monitor the situation and then communicate their
assessment to SAPS.729

22)

Under cross examination by Ms Baloyi who appeared for SAPS, Mr Sinclair

said that in one of the briefs that he sent to Mr Russo-Bello on the 10th of
August 2012, he stated that there was information that was filtering through
that employees would not be reporting for work on Saturday, 11 August
2012.730 He agreed that, if at the time of writing the brief, he had received
information that the strikers would be marching to the offices of NUM to
attack or to confront them, such information would have been contained in
the report.731

726

Day 281, Blou, p.36029

Day 281, Blou, p.36209
728
Day 281, Blou, p.36211
729
Day 281, Blou, p.36213
730
Exhibit FFF 6
731
Day 283, Sinclair, p.36519 and 36520
727

464

23)

Mr Blou agreed with counsel for NUM that in the last 10 years or so industrial
action in South Africa has very often been accompanied by quite high levels
of violence, and that a good deal of that violence is directed towards those
who do not participate in the strike.732

24)

Mr Blou also said that he was aware that on 8 August 2012, there was a
NUM mass meeting at Lonmin where NUM had spoken against participation
in that strike action and urged employees to go back to work. 733 Mr Blou said
he was aware that opposition by NUM to the strike might promote some antiNUM sentiments amongst those who were intending to embark on the strike
action.

25)

As to whether he was aware that there would be an attack on the NUM

office, Mr Blou734 answered that they had never before experienced any
attack specifically on NUM offices.

Their considerations were that they

would attack Lonmin property and intimidate people. Consequently, their

strategy was to protect their immediate areas in the vicinity like the power
stations and the hospital. He said that he had not been aware that the NUM
office at Impala had been attacked at some previous stage.

26)

With regard to the incidents at the NUM offices on 11 August 2012, Mr Blou
said that all the two security officers, Mr Dibakoane and Mr Motlogeloa,

732

Day 281, p.36151

Day 281, Blou, p.36169
734
Day 281, Blou, p.36182
733

465
could do on the morning was to go to the NUM offices and tell the occupants
to vacate the premises, but they could not protect them, nor could they
prevent any sort of burning of the buildings or vehicles. Mr Blou said that
this was the standing practice that if a large crowd was going towards a
building, they instruct the occupants to vacate the place for their own
safety.735

27)

The intelligence received on 11 August 2012 after the incident at the NUM
offices and where Mr Mabuyakhuku and Mr Dhlomo were shot is well
documented. There was a report by a Lonmin security guard who went
undercover to the meeting of the strikers and reported that the strikers had
used the services of an inyanga to help them with a planned retaliation
against NUM, and that they believed that after the rituals the bullets fired at
them would turn to water and the firearms would not be able to shoot bullets.
The information was that they were preparing for war. 736 Mr Sinclairs
briefing makes it clear that Lonmin security had intelligence available about
the serious risk posed by the strikers, and found it appropriate to increase
the security status to double red.

28)

Mr Blou said he was aware of the information about the group undergoing
traditional rituals and of the information that the rituals were in order to turn
bullets to water and in preparation for an attack.737 Nevertheless, there was
no anticipation on his part that there would be a repeat attack on the offices

735

Day 281, Blou, pp. 36218 to 36219

Exhibit RRR2.4 p2
737
Day 282, Blou, p.36301 and 36302
736

466
of NUM on 12 August 2012.738 He remained of that view until the killing of
Mr Fundi and Mr Mabalane on the 12th and never anticipated that such an
event might take place.

29)

His attention was drawn to an entry in the Lonmin Logbook where it reads
that there might be a fight between NUM and AMCU and where the
possibility of a conflict and a confrontation had clearly been anticipated and
identified. Mr Blou said that they underestimated the militancy of the strike
and therefore did not think that the action of the strikers would be on the
scale that happened during that weekend.739 He never anticipated that the
strikers would attempt to attack the NUM offices for a second time.

30)

Mr Blou was unaware that after the incident on the 11 th, there was a
debriefing session where it was discussed that there might be a possibility
of another move by the strikers on the NUM offices on 12 August 2012 as
retaliation for the shooting of two members of the crowd by members of
NUM.740

31)

Mr Sinclair said that it was a very important factor in scenario planning that
they had been aware at 07h30 in the morning on Sunday, even before the
group started to gather at the koppie, that there was a potential for a revenge
attack to take place. He could not explain why it was that Mr Blou was not
aware of this information. He agreed that indeed everyone in security ought
to have been aware of this information. He also could not explain why it was

738

Day 282, Blou, p.36295

Day 282, Blou, p.36297
740
Day 282, Blou, p.36301
739

467
that Mr Blou did not know about the double red security status. He said that
it should have been brought to the attention of all management and security
personnel.741

32)

Mr Sinclair said that he agreed that the revenge that had been planned
would have been more likely against NUM, considering the background to
the matter, rather than against Lonmin structures and key points as Mr Blou
said. He said that, practically, the deployments of security resources would,
as a result of the information, cater for the revenge factor.742

33)

Mr Sinclair743 agreed that what happened on the 12th was not a surprise
event, as the violence had started on the 10 th already and there was an
escalation of that violence over a few days and there was sufficient
intelligence to assess the extent of the threat. This was with particular
reference to the information supplied by the undercover agent that there was
a large number of strikers turning violent, preparing for war. Mr Sinclair said
that they did take cognisance of the information coming through and did their
very best to do what they could.

34)

Mr Sinclair agreed that there was a duty on Lonmin when they knew about
the attack on Mr Louw and Mr Vorster to inform Mr Mabelane, Mr Fundi and
other security personnel about what had happened so that they could make
a judgment based on the information placed before them. Mr Sinclair said

741

Day 283, Sinclair, pp.36549 - 36555

Day 283, Sinclair, p.36557
743
Day 283, Sinclair, p.36603 to 36604
742

468
that he did not know if they got the message but they should have got the
message.744

35)

He agreed that there was a lack of communication from the JOC to the
security personnel on the field on the 12 th. Mr Sinclair said that the crucial
warnings of Mr Louw and Mr Vorster conveyed to the JOC of the attack upon
them and that the strikers were very dangerous were not conveyed to the
members of the protection services on the ground to give them warning that
the strikers were aggressive and posed a threat to them. At page 36606, he
conceded that there was a breakdown in communication and that the
warnings of Mr Louw did not reach Mr Mabelane or any of the other security
personnel. He said that this should have been done and did not understand
why it had not been done.745

Lonmins call to employees to go to work

36)

In the Lonmin Logbook746 an entry on 12 August 2012 at 07h40 records

that a message was broadcast on Radio Mafisa and Radio North West FM
that employees should go back to work.

744

Day 283, Sinclair, pp. 36628 - 36629

Day 283, Sinclair, pp.36600 - 36601
746
Exhibit EEEE1.9
745

469
37)

In the security briefing that Mr Blou held at 06h00 on the morning of 12

August 2012, he emphasised that the personal safety of the security officers
was paramount and that they should not endanger their lives in order to
protect Lonmin property. He advised them that the strikers were dangerous
and they had attacked the NUM office on 11 August 2012. 747

He also

explained to them that since it was a Sunday they did not expect any
incidents but that they should be careful. He said that they had never
previously had any sustained or persistent strike action on Sundays. He
thought that the strikers, it being a Sunday, would gather, make a show and
then disperse.

38)

It was put to Mr Blou that, in circumstances where he had noticed an

alarming change of mood, an attack upon the NUM office and intimidation
the previous evening, he should, when he saw the gathering at the koppie,
have assessed the situation and discussed whether this might not perhaps
be preparation for another attack on the NUM office. Mr Blou conceded that
they should have, at the time, taken a different view but did not.748

39)

Mr Jamieson, the Chief Commercial Officer, and a member of EXCO, agreed

that Lonmin management was well aware from reports of widespread
intimidation that had come in of the dangers faced by its employees who
were trying to go to work during the strike. They were also aware of the
ongoing threat to the lives and safety of those reporting for duty. He agreed
that in view of this Lonmin would have been aware of the need to be very

747
748

Day 282, Blou, p.36314 to 36315

Day 282, Blou, pp. 36317 to 36319

470
careful about calling on workers to report for duty in view of this inherent and
serious risk.749

40)

He agreed that Lonmin should not have encouraged workers to come to

work if it had not been confident that it was safe for them to do so, and that
to encourage them to come to work in circumstances where Lonmin was
unable to adequately protect them would have been reckless.750

41)

Whilst that was the position early in the morning, even after the killing of Mr
Fundi and Mr Mabelane later that morning, Lonmin did not convey to the
employees that the violence had escalated since the last radio broadcast
and that it was not safe for them to come to work.

42)

In an e-mail dated 12 August 2012, Mr Jamieson, in documenting the

violence, attacks and disruptions that were taking place, remarked that the
situation can neither be described as stable nor under control. 751 He agreed
that this remark was made in the context of his describing the violence that
had occurred at Lonmin and the intimidation of workers who were reporting
for duty. This, he said, was his view as at midday on 12 August 2012.752

43)

Mr Jamieson said that he had no knowledge of the radio broadcast. He

agreed that because two security guards had been murdered already on the
12th, it was not at that stage safe for the employees to go back to work and

749

Day 287, Jamieson, pp.37295 - 37296

Day 287, Jamieson, p.37300
751
Exhibit VVVV 1.2
752
Day 287, Jamieson, pp.37293 - 37294
750

471
that the premises were not safe.

There was, he said, a heavy duty on

Lonmin to contact Radio Mafisa and Radio North West FM to say specifically
that employees should disregard their previous communications and not
come to work.753

44)

He said that any member of management who had caused the radio
message to have been broadcast early that morning requesting employees
to come to work should have after the violence of the morning of the 12 th
ensured that employees were told about the dangers and that they should
not come to work.754 Mr Jamieson agreed that it was reckless for Lonmin to
encourage workers to come to work and also not to discourage them from
coming to work.755

45)

With regard to whether the mine ought to have been closed,756 Mr Jamieson
agreed with the proposition that even if employees did not come to work,
essential service people could have been told to come and that the security
operation could have focused on protecting them, instead of the thousands
of employees who were encouraged to come to work.

46)

Mr Sinclair agreed that there was a deliberate campaign from Lonmin

encouraging its workers to go to work in circumstances where there were
specific threats made in relation to employees at Saffy, K4 and other

753

Day 287, Jamieson, p.37303

Day 287, Jamieson, p.37304
755
Day 287, Jamieson, p.37312
756
Day 287, Jamieson, p.37308
754

472
shafts.757 He said this was in spite of Lonmins being unable to protect all of
the workers and all the routes that employees would travel. He could not
explain why in the light of the information that the strikers were planning for
war and the realization that non-striking workers could be injured and
possibly killed, messages were sent out over the radio encouraging
employees to come to work.758

47)

Mr Sinclair said that the realisation that they did not have the capacity to
protect those workers who had been asked to come work had been
conveyed up the line in one of his briefs to management.759

48)

The Lonmin Logbook760 recorded intelligence coming through of intimidation

and possible attacks on K4 Shaft and Saffy Shaft on the 10 th and 11th.. No
specific action seems to have been taken by Lonmin Security based on the
intelligence reports.761 It was put to him that in spite of that not much was
done to double up the security at K4 Shaft. He agreed with the proposition
put to him762 that there was not a very effective focus on employee safety at
K4 Shaft and that a serious judgmental error was made by Lonmin security
in assessing the danger to K4 Shaft.

757

Day 283, Sinclair, p.36575

Day 283, Sinclair, pp.36580 to 36581
759
Day 283, Sinclair, p.36582
760
Exhibit EEEE 19
761
Day 283, Sinclair, p.36591
762
Day 268, Sinclair, p.34068
758

473
49)

Mr Sinclair said that the security at the shafts, including K4 shaft, was
outsourced to Protea Coin Security.763 The risk assessments of the access
control points to the shafts were done by Mr Henry Blou and his team but the
guarding of those access points was done by an independent contractor.
There was surveillance as well at the shafts and that was also done by an
independent contractor.

He said that co-ordination of all these various

aspects would have been done by a designated security manager, who

would in this case be Henry Blou.

50)

In the light of his broad risk assessment of double red at Lonmin Mines on
12 August 2012, he was asked whether an instruction was conveyed to
Protea Coin Security to increase the security measures in place at K4
Shaft.764 He was unable to answer the question and could not say whether
any of these dangers had been communicated to Protea Coin Security.

51)

765

Mr Sinclair agreed that in the light of the fact that their resources were
stretched and that they were not able adequately to protect the area around
K4 Shaft or the employees working there, they should have either closed the
shaft or not allowed the workers to come to work. He also agreed that Mr
Mabebe and other employees should have been told in advance that they
should not come to work.766

763

Day 268, Sinclair,p. 34050

Day 271, Sinclair, p.34570
765
Day 268, Sinclair, p.34070
766
Day 283, Sinclair, pp.36593 and 36595
764

474
52)

Mr Botes under cross examination about entries in the Lonmin Log Book 767
that indicated that an attack on K4 shaft was likely maintained that, despite
these indications, Lonmin did not anticipate that the K4 shaft would be
attacked.768 Mr Botes stated that it was a grave concern that security guards
were deployed at K4 shaft without firearms to protect themselves in the
event of an attack.769

53)

The attorney for the Mabelane, Mabebe and Langa families enquired of Mr
Sinclair why Lonmin had not informed the police that there was an
impending attack on K4 and why the K4 shaft was not determined to be a
hot spot. Mr Sinclair said that he expected that information would have been
passed on to the police and it should have been but because there are not
any minutes he could not categorically state that it had been passed on.770 It
seems unlikely that this happened as Lonmin themselves did not appreciate
the dangers to K4 shaft.

54)

With regard to the death of Mr Langa, Mr Sinclair was referred to reports

received at Lonmin on the 12th that the crowd would be mobilising to Saffy
Shaft on the 13th because the workers are still working there.771 He was
referred to a further entry at 14h22 where a report was received that when
the workers were going to work that night (the 12th) they would be shot. It
was put to him pertinently that even at this stage by the 12 th 772, and after the

767

See Exhibit EEEE19.2.

Day 265, Botes, pp 33459 - 33464
769
Day 265, Botes, pp 33464 - 33465
770
Day 283, Sinclair, pp 36621 - 36625
771
Exhibit EEEE 19 at 13h35
772
Day 283, Sinclair, p.36547
768

475
incidents of violence and murder, Lonmin was still encouraging employees to
come to work.773 Mr Sinclair conceded that these were very specific reports
which should have raised very serious concerns about employees who were
to report to duty at Saffy Shaft.

55)

Mr Blou774 said that the Counter Industrial Action Response Procedure

Document for Lonmin, which was signed off and put into operation,
contained a number of regulatory provisions about how security matters
were to be managed.775 Under cross examination by counsel for NUM776, Mr
Blou agreed that the procedures set out therein serve as a guideline for
managing industrial action as each individual type of incident warrants the
manager of mining security to apply his or her discretion on how effectively
to manage the situation.777 He also agreed that implicit therein is that each
industrial action situation will have individual characteristics, implications and
security requirements and are not to be treated as duplicates of one another.
He admitted that he is the person that must apply his discretion for the
proper management of the situation.778 As the manager of mining security,
he was responsible to conduct effective and detailed planning and briefing
sessions.

56)

Mr Blou agreed that someone with his seniority should have conveyed to the
members on the ground that people had been attacked and nearly killed,

773

Day 283, Sinclair, p.36573 and 36574

Day 281, Bou, p.36124
775
Exhibit XXX 8
776
Day 281, Blou, p.36128
777
Day 281, Blou, p.36128
778
Day 281, Blou,p. 36129
774

476
and that everyone should either back off or get out of the situation and wait
for SAPS to arrive. They should not, he said, have been required to respond
to the call for backup. Mr Blou agreed that that was a critical managerial
intervention which should have taken place in the JOC on the basis of the
information received. He said that it was critical that that call was made at
the JOC. It should have been escalated to everyone in management. He
agreed that that did not happen.779 Mr Blou said that even he did not receive
a call to say that Mr Louw and Mr Vorster had tried to contain this crowd and
were attacked and almost died.

57)

It was put to Mr Sinclair that there seemed to be a lack of contingency

planning and execution by Lonmin Security based on the specific intelligence
reports that were coming through and he agreed that if action had been
taken upon the intelligence received, then they would have been better
prepared for the events of 12 August 2012.780

58)

Mr Sinclair said that his guidance to his security personnel was that they had
at all times the right to withdraw immediately to a place of safety.781 It was
put to him782 that that right to withdraw could hardly apply when the security
members were under a full scale attack. He replied that often he would
notice that the manner in which the vehicles had been parked did not make
for an easy withdrawal from the scene of an incident. He did not ensure that

779

Day 282, Blou, pp.36345 - 36346

Day 283, Sinclair, p. 36590
781
Day 268, Sinclair, p.34040
782
Day 268, Sinclair, p.34042
780

477
any training followed upon these observations to assist the security officers
to correct what they had been doing.783

59)

Mr Motlogelwa testified that there was no planning before the incident of 12

August and there was no briefing as to what to expect.784 As a result, the
response of Lonmin security to the march on 12 August was haphazard and
disorganised. This left security officials vulnerable to attack when carrying
out their duties.

60)

Mr Masibi said in his statement that the manpower was not enough to
disperse the crowd. They were unprotected and the crowd could have
overpowered them. They needed armoured vehicles to deal with such a
crowd. In retrospect he thought that they should not have attempted to
engage the crowd but retreated until backup arrived.785

61)

Under cross examination by counsel for NUM, Mr Sinclair conceded that,

because of the rapid and changing conditions and the circumstances
surrounding the unrest at Lonmin, the scenario planning that was done was
not as comprehensive as it ought to have been.

He admitted that they

omitted to do quite a few things that they could have done.

62)

Paragraph 4.4.4 of the security protocols set out in Exhibit XXX 8 requires
that deployed members must be briefed on the latest situation when
reporting on duty and debriefed when reporting off duty. Mr Blou agreed that

783

Day 268, Sinclair, pp.34042- 34044

Day 264, Motlogelwa. pp. 33288 P33290
785
Exhibit AAA37
784

478
the important purpose of this was that when security members were
deployed and put into the field they must be fully briefed with what the latest
facts are concerning the situation and the security issues. Similarly, when
they come off duty, they need to be debriefed so that security management
can be aware of what their experiences have been and what the
observations have been and what their perceptions might be in respect of
the future developments of security and threats.786 This was clearly not
done.

63)

The witnesses from Lonmin security conceded that their management of the
situation, in the light of the circumstances prevailing, left much to be desired.
Mr Sinclair agreed that Lonmin was partially to blame for the deaths of their
employees.787

64)

The evidence leaders correctly, in the Commissions view, submitted that

Lonmin did not use the intelligence available, did not properly formulate
plans for dealing with the strikers, did not ensure that there were adequate
security resources at its disposal and did not properly brief members.

65)

The Commission agrees with their submissions that Lonmin had a duty to
ensure that it had adequate security arrangements in place at Saffy, K4, and
other shafts to protect workers. Their failure to insist on and ensure
heightened security arrangements in view of the intelligence information
available to them at the time is inexcusable.

786
787

Day 268, Blou, p. 36134

Day 267, Sinclair, p. 33985

479

66)

In the Commissions view, this duty is not confided to the shafts, but extends
across the board to all their employees. Lonmins reckless actions in urging
employees to come to work in circumstances where they were aware of the
potential dangers to them and in the full knowledge that they could not
protect them, falls to be condemned in the strongest terms. Lonmin must, in
the Commissions view, bear a measure of responsibility for the injuries and
deaths of its employees and those of its sub-contractors.

ICAM Report

67)

Lonmin commissioned an internal investigation in order to identify the

causes and contributing factors which led to the violence at the mine in
August 2012. The ICAM report788 identified some of the following factors
which contributed to the deaths of various employees of Lonmin during the
period 10 to 14 August 2012.

(a)

Inadequate intelligence network;

(b)

Lack of consideration of risk associated with supplier and contractor

equipment services;

788

Exhibit DDDD4

480
(c)

Ineffective contingency plan for this type of situation;

(d)

Absence of a system to ensure that training requirements are

managed so that employees and contractors are competent to meet
the risks applicable to their responsibilities;

(e)

Lack of awareness by employees to provide correct information

about incidents;

(f)

Lack of management commitment to safeguard employees from

industrial action related violence

68)

The extensive criticisms in the report do not require to be repeated here.

Suffice to say that they are detailed and require Lonmin to take steps to
address the shortcomings identified.

481
CHAPTER 21

LONMINS INTERACTION WITH SAPS

1)

Mr Blou, under cross examination by Ms Baloyi for the SAPS, and with
regard to his evidence that on the 10th he informed SAPS that he expected
that there would be another march on the 11th, said that this evidence was
not contained in any of the Lonmin documents nor any statement or the
Logbook and certainly not in Mr Sinclairs statement. He could not explain
why this was so.

2)

With regard to the meeting that took place at 14h00 on 11 August 2012,
which was actually a briefing by Mr Blou and Mr Botes, there was no
mention of the fact that one of the problem areas to look out for the following
day was the NUM office. He agreed that SAPS were not informed to look
out for an attack on the NUM offices on the 11th.789

3)

On the 12th, what he relayed to SAPS was what had happened the day
before, but also said that because of his assessment, he did not expect an
attack on the 12th and that they should do patrols. He agreed that what
would have been conveyed to SAPS was that they did not expect any
incidents because it was a Sunday and also because there was no history of

789

Day 282, Blou, pp.36402 - 36403

482
attacks on NUM according to him. He agreed that such communication to
SAPS would influence how they would allocate their resources.790

4)

He said he did not have any prior warning, that there would be a march to
the NUM on the 12th and he could not have therefore conveyed this to the
SAPS. Similarly with the attack on the security, this was not foreseen and
therefore could not have been conveyed to SAPS to be present to protect
them.791

5)

It was put to him that he said that the POP stationed at Rustenburg would
take about an hour to arrive on the scene, those stationed at Klipgat would
take about 30 minutes, and those stationed at Bethanie would take about
half an hour. It was put to him that on the 11th, when calls were made to
SAPS at Marikana, the expectation would be that VISPOL would respond.
He agreed with that as being the first line of communication. Ms Baloyi said
that if one phoned Marikana Police Station, what one would get would be
Vispol. And when one phoned Rustenburg, one would ask for POP, who
would respond in about an hour, similarly with Bethanie, the earliest
response would be about thirty minutes away. With reference to the entries
in the Lonmin Logbook and specifically that contact was made with the
police at 08h40, that there was no way that POP Rustenburg could have
been at Lonmin to assist to disperse the mob that were on their way to the
NUM offices in the time frame available.

790
791

Day 282, Blou, p.36405

Day 282, Blou, p. 36406

Mr Blou agreed with this

483
proposition put to him.792 He agreed that there were no telephone calls to the
police while the incidents were taking place on the 12th to attend the scene.

6)

Captain Govender, who was in charge of visible policing, said he was not
aware of the contingency plan of the 10 th of which a large component was
visible policing.

It is difficult to understand why a plan signed by senior

officers of POP and in existence from the 10th did not come to his attention.
There were no visible police from the 10th nor was the JOC set up as
detailed in the plan. It is not as though there were inadequate resources
because the deployment on the 10th was substantial.

7)

Brigadier Engelbrecht, having received intelligence from informers of

impending attacks on NUM and the workers reporting for duty at K4 shaft,
conveyed this information to Major General Mpembe, who, because he was
on leave, conveyed this to Major General Naidoo. The latter claimed not to
have received any such information or the request for visible policing. 793

8)

Major General Mpembe testified that he was disappointed at the lack of

visible policing deployed despite his request.

9)

It is submitted by the Evidence Leaders that adequate deployment of visible

policing might have prevented the situation at Marikana from spiralling out of
control.

They submit that the failure to attend to ensuring that the

information was communicated and that the looming threats were attended
792
793

Day 282, Blou, pp. 36393 - 36396

Day 198 Naidoo, pp 24275 - 24278

484
to is a matter that merits further investigation with a view to holding
disciplinary procedures.

10)

The Commissions agrees with these submissions and so recommends. It is

also recommended that the investigation should enquire into the protocols
surrounding the communication of these issues and if they are found to be
lacking, there should be strict measures put in place to ensure compliance.

485
CHAPTER 22

COULD NUM HAVE PREVENTED THE STRIKE?

To answer this question, it is necessary to look at some of the background to collective

bargaining and negotiations by NUM, a topic alreadt dealt with in Chapter 3.

1.

NUMs conduct in the handling of the RDO demand has been criticized on
various levels. Mr Setelele confirmed that at all times NUM was aware that
RDOs at Lonmin were being underpaid. They were aware that the RDOs
complaints were legitimate.794 Mr Setelele confirmed that NUM had tried to
address the plight of the RDOs within the bargaining system but were
unsuccessful in securing the kind of increases they demanded.795

2.

It will be recalled that clause 12.3 of the wage agreement,796 provides as

follows:

All proposals and demands on which agreement was not

reached, or which were withdrawn by the unions or the company,
are regarded as having been settled and may not be subject to
strike action until this agreement lapses on the 30th of September
2013.

794

Day 38 Setlele p 4123/12-22

Day 38 Setelele p 4124/1-5
796
Exhibit XX2 p19
795

486

3.

In terms of the wage agreement, NUM could not call on its members to go
on strike. However, there was a course of action that NUM could follow if it
wished to address the issues raised by the RDOs. NUM could have
approached Lonmin in a bid to open up talks on amending the wage
agreement. This course of action was open only to NUM given their position
at Lonmin at the time. This was however never done. Although an
agreement may have a two year period, Mr Gcilitshana confirmed that it was
nevertheless possible for the parties to amend it by agreement if necessary.
In fact, this had previously happened at Lonmin.797

4.

Mr Setelele, under cross examination, said that NUM could not have
approached Lonmin to open negotiations on a possible amendment of the
wage agreement because they did not have a mandate to do so, and argues
that the RDOs demand forR 12 500 excluded them.

5.

Mr Setelele testified that the RDOs refused to talk to NUM about their
demands. They were therefore not in a position to obtain a mandate from
the workers.798 He said that NUM had no access to the workers and could
neither discuss the demand with them nor obtain a mandate to take the
demand up on their behalf.799 The workers were adamant that they wanted
to raise the demand with the employer themselves.800

797

Day 36 Gcilitshana pp. 3951 3952

Day 38 Setelele, p 4134/16-25
799
Day 38 Setlele, p 4135/6-13
800
Day 38, Setlele, p. 4140/1-3
798

487

6.

Mr Mabuyakhulu confirmed that the position of the RDOs was, from the very
start, and at the latest from 21 June 2012, that they did not wish any unions
to be involved in their advancement of their demand for R 12 500. This
corresponded with his own experience of the attitude of the RDOs
throughout the period under discussion.801

7.

Mr Gcilitshana established that the decision of the RDOs to march to Mr Da

Costa at Karee in order to convey their demand for a basic wage of R12 500
was taken independently of NUM and that NUM was neither informed nor
involved.802

8.

Mr Mathunjwa testified that the demand came from the RDOs and not any
union. He said that AMCU had played no role whatsoever in it and that he
had first heard about it on 13 August 2012.803

9.

The evidence leaders and AMCU submitted that NUM did fall short in that it
incorrectly reported to workers that they could not raise the demand for
R12 500 because of the two year wage agreement. Mr Setelele testified that
this was conveyed to workers on 8 August.804 He also conceded that NUM
was wrong in conveying to the workers that it would be a breach of the
agreement for the fresh demands to be raised during the two year term of
the agreement.805

801

Day 48 Mabuyakhulu pp. 5322 5323

Day 35, Gcilitshana, pp.3820 3821; Day 37 Gcilitshana pp. 4020: 8 4021
803
Day 21 Mathunjwa pp. 2241 2243
804
Day 38 Setelele, p 4143
805
Day 38 Setelele, p. 4142
802

488
10.

Under cross-examination by counsel for AMCU, the witness agreed, when it

was put to him, that after what happened at Implats NUM knew that a very
similar thing was very likely to happen at Lonmin as it could in any of the
other mines.806 In those circumstances, she asked whether NUM should not
have approached Lonmin at that stage and said that there was a need to reopen the agreement, as RDOs at Lonmin had been and were being underpaid and that, as a result of what had happened at Implats, they should not
just have sat back and let the same thing happen at Lonmin but should have
revisited the agreement and reached some consensus with regard to an
amendment.

11.

Mr Gcilitshana said that they had discussions internally and their approach
was to discuss this with the captains of industry because they could not
reach it at the negotiations.807 When he was asked pertinently whether he
approached Lonmin and said lets amend the agreement in order to give
rock drillers a decent increase, he said that they had not.808 He was then
asked him whether there was there anything preventing him from doing that.
His answer was that there were still discussions within the organisations and
when pressed about what these discussions were, he said it was to engage
the captains of industry because it would not only be an issue for Lonmin,
but it could also have been raised by Anglo Platinum.

12.

He was again asked whether809 it was said to the captains of industry that
they needed to sit down and amend agreements and give RDOs an

806

Day 36 Setelele, p. 3963

Day 36, Gcilitshana, p. 3963
808
Day 36 Gcilitshana p.3963
809
Day 36 Gcilitshana p. 3964
807

489
increase. He said that he was not sure of what had happened because
those sorts of issues were normally handled by the General Secretary and
the President. He conceded that the General Secretary and or the President
may have done that. He agreed, that in principle, there was nothing wrong
with such an approach being made to management to amend the agreement
as necessary.810

13.

Counsel for AMCU put to Mr Gcilitshana that generally when bonuses or

allowances may need to be increased or altered, a task team is set up to
look at these matters and NUM would be represented on such a task
team.811 He agreed with this proposition. She then put to him that at the
very least what should have happened before Lonmin offered an allowance
to the rock drill operators was that a task team should have been set up on
which NUM would have been represented in order to consider and decide
upon the matter. He said that he did believe that Lonmin should have called
the stake holders who were involved in the agreement and put the proposal
forward for the intended allowance. He said that none of this had been done
in this case and Lonmin had simply acted unilaterally.

14.

Counsel said that in relation to the unilateral action by Implats, which

triggered the Implats strike, he had said that NUM had been outraged and
she put to him that NUM would have been similarly outraged about Lonmins

810
811

Day 36, Gcilitshana p.3965

Day 36 Gcilitshana p. 3877

490
unilateral action in this case.

He agreed with that as being a correct

proposition.812

15.

Counsel put it to him that it was difficult to understand that if NUM was
outraged by unilateral action on the part of management why there was no
objection from NUM.813 Mr Gcilitshana said that the matter was discussed
internally and they tried two terms of negotiations but failed but that was not
really an answer to the question put.

16.

Mr Budlender, in cross examination put to Mr Gcilitshana the following

proposition814: What would NUMs response have been if the police had sat
together with NUM and Lonmin on either the 15 th and the 16th and sought to
resolve the dispute about the RDO wages, in view of the fact that the RDOs
had said that they would leave the koppie if the management came and
talked to them.

Mr Gcilitshana said that as NUM had agreed that even

beyond the shootings to sit down and he had believed that they would have
agreed before the shootings to sit down with the company and see how they
could resolve the problem before the shootings. Mr Budlender specifically
put to him,815
Would you have agreed to an attempt being made to resolve the
dispute outside the NUM bargaining processes in mid-August
2012?

812

Day 37 Gcilitshana p. 3978

Day 37, Gcilitshana p. 3982
814
Day 35, Gcilitshana, p. 3775
815
Day 36 Gcilitshana p. 3876
813

491
and Mr Gcilitshana said that that was correct and that they would engaged in
a process of trying to resolve the problem.

17.

It is not clear whether if the workers had been advised that negotiations
could be re-opened, the strike could have been averted, given Lonmins
position about negotiating and the amount. What it might have done, would
have been to get management involved in talks with the union. Again,
whether the outcome of those talks would have appeased the workers and
prevented the strike is a matter on which the Commission is not able to
make a finding.

NUMs actions in encouraging the employees to go to work

18.

Mr Gcilitshana said that on 9 August 2012, NUM convened a mass meeting

at the Wonderkop Hostel, where NUM conveyed to the members who
attended, that NUM did not support the unprotected strike, and that workers
should report for work.

He said that if they experienced any difficulties

reporting for duty, they should report to the NUM office at Western Platinum
for assistance. He said that he had heard that NUM had in fact visited the
nearby village and other hostels and conveyed the same message to
employees.

492
19.

The Lonmin Log Book records that at 08h00 on 11 August 2012, NUM
requested intervention by Lonmin security to use a loudhailer around
Wonderkop to urge employees to go to work, while they did the same at
Wonderkop village. This request could not be carried out.

20.

He referred to various instances in the Lonmin Security Log Book of NUM

members having discussions with security about escorting employees to the
various shafts. He also said that during the evening of 10 August 2012 and
the early hours of 11 August 2012, NUM assisted numerous employees with
transport so that they could report to their workplaces in spite of the widespread intimidation.816

21.

He said on 14 August 2012, a meeting was convened by NUM at Eastern

Platinum where again NUM cautioned the workers on the issue of violence
that was prevailing and the intimidation at the time and also the ultimatum
issued by Lonmin that employees will be dismissed if they did not attend or
report to work.

22.

Under cross examination by Mr Budlender, Mr Gcilitshana said that on 16

August 2012, he attended a meeting at about 07h30 in the morning for the
purposes of ascertaining what measures were taken to protect those
persons who were going to work and also what the security situation was. 817

816
817

Day 35, Gcilitshana p. 3839

Day 36, Gcilitshana, pp. 3861 - 3864

493
23.

Very much like Lonmin, NUM encouraged employees to report to work with
the full knowledge of the intimidation and violence that prevailed during that
period. Members of NUM were present at many of the briefings by Lonmin
Security, as appears from the Log Book, and could not have been unaware
of the seriousness of the incidents of intimidation being reported. Whilst they
did attempt to protect and convey some of the employees to and from work,
it must have been abundantly clear to them that they did not have the
capacity to protect all the employees.

Their actions, were, in the

circumstances, reckless and ill considered.

Mathunjwa And Amcus Role In The Marikana Tragedy

1.

Mr Mathunjwa said that he first heard about the demands of the RDOs
relating to the wage increase towards the end of July 2012 when he was
telephoned by Mr Barnard Mokwena of Lonmin.

2.

Mr Mokwena informed him that there were rumours that there was going to
be a march by employees of Lonmin to bring a memorandum to the
management in respect of wage demands.818 He told Mr Mokwena that
arrangements for an urgent meeting for all stakeholders, namely AMCU,
NUM, Solidarity and UASA, should be made. Mr Mokwena responded that

818

Day 21, Mathunjwa, p. 2243-2244

494
he would communicate with the General Secretary of NUM, Mr Frans Baleni,
and revert to him. Mr Mokwena, however, did not revert to him.

3.

Mr Mathunjwa said that he received a further telephone call from Mr

Mokwena on 10 August 2012 when he was away from his office. During their
conversation Mr Mokwena informed him that the employees were going to
present a memorandum, to be received by SAPS. Mr Mathunjwa then
informed Mr Mokwena that it should be emphasised to the employees that
receipt of such memorandum by the police should not construed as
constituting a precedent and that its contents would have to be dealt with by
the structures within the company.

4.

After this conversation and on the same day Mr Mathunjwa wrote a letter to
Lonmin in which he repeated what he had said over the telephone, namely,
that:

(d)

Receipt of the memorandum by the police should not constitute a

precedent;

(e)

An urgent meeting of all the stakeholders should be called by

Lonmin;

(f)

The contents of the memorandum should be communicated by the

management to the respective recognised unions so that they could
be discussed at a meeting;

495
(g)

The management should not take extreme measures in addressing

the predicament of the employees by giving undue recognition to
these sinister forces, which he claimed were behind the situation.819

5.

As has been said Mr Mathunjwa was out of office on 10 August 2012. He

was informed by his office that Lonmin had served papers for an application
for an interdict in the Labour Court. He did not know anything about the
strike and only came to know of its details on 13 August 2012. AMCU did not
oppose to the application for an interdict. In any event, he could not have
done so as he was not in the office when papers were served.

6.

On Monday, 13 August 2012, he received a phone call from Mr Jomo Kwadi,

one of the senior managers of Lonmin, who wanted him to intervene at
Lonmin. Mr Kwadi stated that there was violence at the mine and that
something had to be done to stop it. He told Mr Mathunjwa that there were
leaders of the other organisations who had attended a meeting on 12 August
2012. Mr Mathunjwa was surprised that a meeting had been held to which
he was not invited as he had previously requested. He noticed, however,
that there was a text message which had been sent to him and which
referred to a meeting.

7.

After the telephone call from Mr Kwadi he requested the General-Secretary

and National Organiser of AMCU, Messrs Jeffrey Mphahlele and Dumisani
Nkalitshana, to proceed to Lonmin to investigate the situation.
following day, 14 August 2012, he received a report from them.

819

Day 21, Mathunjwa, pp2248-2250; Annexure 001

On the

496

8.

On the same day AMCU called a press conference and issued a media
release.820 The main point in the media release was that AMCU distanced
itself from the demands and the violence which was perpetrated by the
employees. Mr Mathunjwa appeared to blame NUM as being behind the
situation and referred to them as sinister forces. In that statement the
violence that took place near the NUM offices on 11 August 2012 was not
correctly reported. What was said was that the employees were proceeding
to the stadium where the memorandum was to be handed over and while
they were passing Wonderkop mine, people came out of the NUM office
wearing NUM tee-shirts. They opened fire on the marchers, killing one of
them on the spot and wounding others who were taken to hospital. He
claimed that it was that incident that led to the eruption of violence and more
deaths at the mine.821

9.

It is clear that this report was inaccurate and not in accordance with the
evidence heard in the Commission. As appears from the video footage of 16
August 2012 and exhibit 009 Mr Mathunjwa repeated the same accusation
about NUM but said that NUM killed two employees.

10.

As set out previously in this report, on 15 August 2012 Mr Mathunjwa and Mr

Zokwana, the President of NUM went, on the suggestion of Mr Xolani Gwala
of the SABC, to Marikana to address the strikers.

11.

After Mr Mathunjwa addressed the strikers on 15 August 2012 he requested

a meeting with the management at 08h00 the following day so that he could

820
821

Exhibit 001
Exhibit 001 paragraph 5

497
get an advice from the management that if the workers happened to agree
to return back to work, where are they supposed to report.822 He said that
the management agreed to this request. He stated that he was very much
optimistic.823 The police were very impressed and General Mpembe gave
him a salute for the work he had done.

12.

On the following day he was, however, late and arrived at Lonmin at 08h20.
He met Mr Kwadi in the foyer and reminded him that they had spoken the
previous night and that he wanted to know the response of the management.
Mr Kwadi responded by saying that he was still going to consult with the
management. According to Mr Mathunjwa there was no need for a
consultation. All what was needed was for him just to tell me where the
workers should report.824 He then saw Mr Mohammed Seedat, a director of
Lonmin at the time. Their conversation was limited to the incidents of
violence and the strike only. 825

13.

Mr Kwadi returned to him and reported that the management was no longer
prepared to engage with the strikers as they had the two year collective
agreement in place. Consequently they were not prepared to commit
themselves with the workers.826

14.

According to Mr Mathunjwa Lonmin management had committed themselves

the previous day to engage with the strikers grievances once they had

822
823
824
825
826

Day 22, Mathunjwa, p2328

Day 22, Mathunjwa, p.2328
Day 22, Mathunjwa, p.2332
Day 22, Mathunjwa, p.2334
Day 22, Mathunjwa, p.2335

498
renounced violence, left their arms and returned to work peacefully. 827
Accordingly management was, he said, now reneging from that commitment.
He felt betrayed.

15.

He stated also that Mr Mokwena came and handed him a cellphone, saying
that there was someone who wanted to speak to him. This person was the
North West Provincial Commissioner, General Mbombo, who was very much
agitated. She reminded him that he had promised the strikers that he would
report to them at 09h00 and that he had failed to do so. Mr Mathunjwa
explained to her that he was late because the management had reneged
from its commitment. General Mbombo informed him that she did not care
about that and pointed out that he should go to the mountain as promised.828

16.

He then spoke to General Mpembe, who told him that he was no longer in
charge and that the Provincial Commissioner was now in charge of the
operation. He went to the JOC and met the Provincial Commissioner, who
spoke to him and said that she did not like people who were not committed
and that he had failed to go to the koppie at 09h00. He stated that the
Provincial Commissioner confirmed that she was in charge of the operation,
which had to be finished that day and that he was late and she was not
interested in excuses. Major-Generals Mpembe, Annandale and Naidoo
were at the JOC. According to his statement she said that this thing must
end today it is costing the State a lot of money.829

827

Day 22, Mathunjwa, p.2335

Day 22, Mathunjwa, p.2338
829
Exhibit NN, Affidavit by Mr Mathunjwa, para. 8
828

499
17.

After some time he asked for transport to go to the koppie but could not get a
vehicle from the police. He then informed them that he was going to use his
own vehicle and that he only needed security. He and his colleagues waited
until they decided to go to the koppie on their own without security. 830 He
then proceeded to the koppie in his own vehicle and arrived there at about
12h00 in the company of Dumisani Nkalitshana.

18.

At the koppie they addressed the employees. Mr Dumisani Nkalitshana

addressed them first. He said This NUM. How are we going to kill it, this
NUM. We hate NUM.831 Mr Mathunjwa then addressed the strikers. The
strikers replied that they wanted the employer to come to the koppie to
address them there. The contents of the addresses are contained in exhibit
009.

19.

After addressing the strikers Mr Mathunjwa went back to the JOC and met
General Mpembe. He said that General Mpembe allegedly confirmed that
the Provincial Commissioner was still in charge but had left for an ANC torch
bearing ceremony in North West.

20.

Mr Mathunjwa then telephoned Mr Kwadi, who told him that management

was not prepared to meet with him. He then tried to contact Mr Seedat.
When he did so he was informed by Mr Seedat that he would try his best but
he was not in control.

21.

After all failed and in despair he sent a text message to Major General
Annandale, saying: since no person is available to give feedback to, we are

830
831

Day 22, Mathunjwa, p.2344

Day 22, Mathunjwa, p.2358; Exhibit OO9 Day 22, pp.2358-2359

500
going back to the employees to inform them no one is available. We have
tried our best without cooperation from anyone. Let peace prevail. Major
General Annandale replied that he was always available and the SAPS were
also available. He then proceeded to the koppie to report back to the
strikers.

22.

At the koppie he told the strikers that they were going to be killed by the
police and that they should leave the mountain. He gave the example of a
ram and said that when a ram retreats it is not that it is failing and being
defeated but it is just to get more energy. When it comes back it will hit hard.
The strikers were not prepared to accept his advice and told him that they
were prepared to be killed there at the mountain. They said they were not
going away from the mountain and that they wanted to talk to their employer.
Despite his attempts to persuade them to leave they would not listen.

23.

He concluded his evidence in chief by stating that he was one of the

signatories to what one may call the peace accord in September 2012.

24.

Mr Mathunjwa did not fare well under cross-examination. He was asked by

lead counsel for SAPS as to whether he told members of AMCU at the
mountain that they should disarm and put their weapons down on the ground
so that he could then talk to the employer. He replied that he did say this.832
The video clips and exhibit 009 do not bear him out in this regard. When he
was confronted with the fact that such utterances do not appear in the video
clips he stated that there were other video clips which were not shown.
When it was put to him that if he had said that they should disarm and put

832

Day 23, Mathunjwa, p.2419

501
their weapons down, then they had disobeyed him. His reply was that he did
not want to speculate.833

25.

Although in his evidence in chief he had testified that the essence of his
address at the koppie was that the strikers should return back to work and
hence to lay down, if theyve got any weapons with them,834 the request to
lay down any weapons is not apparent from the video clip as translated in
exhibit 009.

26.

He was confronted by the fact that one of the strikers threatened inhis
presence to finish the police coming from the homelands and that despite his
assertion that AMCU renounces violence he did nothing to correct or stop
the strikers from threatening violence. He failed to answer the question.

27.

His best answer was yes I was saying earlier on, that people they were
exchanging the platform or- as they were talking, different workers. It might
not, that Ive said it to a specific person, but I did renounce violence.835

28.

When he was cross examined by counsel for Lonmin, he was challenged to

explain the use of the phrase sinister forces. It was suggested that he was
referring to NUM. He denied that it was referring to NUM.836 He said he did
not know who the sinister forces were. If regard is had to exhibit 009
paragraph 7 it is clear that this is a reference to NUM.

833

Day 23, Mathunjwa, p.2420

Day 22, Mathunjwa, p.2301; Day 23, Mathunjwa, p.2469
835
Day 23, Mathunjwa, p.2470
836
Day 23, Mathunjwa, p.2482
834

502
29.

Counsel for NUM also tried without success to find out to whom he was
referring when he used the phrase rent a black837 It was also put to him that
there was a toxic relationship between AMCU and NUM in August 2012
hence a song sung by the National Organiser of AMCU, Mr Dumisani
Nkalitshani, as to how could kill NUM, they hate NUM. This he also
denied.838

30.

When it was put to him by counsel that he went to the koppie to incite the
workers in a volatile situation, he did not give a satisfactory explanation as to
why he accused NUM of oppressing the black nation.

31.

On the question of his wanting Lonmin to guarantee that he would get a

place to negotiate on behalf of the employees if he were to get the strikers
off the mountain, which emanated from the cross examination especially that
of counsel for Lonmin, he was not candid with the Commission on this
aspect in his evidence in chief. In his statement, exhibit NN Mr Mathunjwa
described his meeting with Mr Kwadi when he arrived at the Lonmin
premises at 8h20 on 16 August 2012, without mentioning the very material
fact that he had asked for an undertaking from the Lonmin management,
before he went to the koppie to try to persuade the strikers to go back to
work, that if the strikers went back to work and there was going to be a
discussion on wages, AMCU would be part of the discussion. When crossexamined by counsel for Lonmin it was put to him that he wanted this
undertaking from Lonmin management before he would go to the koppie. He
replied: Thats your opinion. When counsel then said to him, no, Im putting

837
838

Day 23, Mathunjwa, pp.2479-2481

Day 23, Mathunjwa, p.2420

503
it to you as a fact, he replied, That is not correct. Counsel then said to him,
And you said to management on the morning of the 16 th, dont be technical
with me, meaning dont refer me to bargaining structures. If these people get
off the koppie, I want a seat at the table. Mr Mathunjwa replied, Where is
that, Sir? Can you give it to me?839 When he was then shown the transcript
of the recording of his discussion with Mr Kwadi, he conceded that he had
indeed sought this undertaking from Lonmin. The transcript of the relevant
portion of the conversation with Mr Kwadi reads as follows: Mr Kwadi: okay,
Joseph I think it is clear to me what you are saying. You basically saying you
will go to the mountain on condition that you get some kind of a guarantee
that the company will negotiate with AMCU on the demands of the people
that are on the mountain. That is what you are saying; it is
Mr Mathunjwa: or whether AMCU will be part of the demand. I mean
according to those people whom they want to negotiate on their behalf,
yes.840

32.

Furthermore Mr Kwadi stated thus: Better word, okay. There has to be a

central forum to deal with the issues of RDOs across Marikana operations
and you are saying the only way you will go to the mountain is if you are
guaranteed a place there. Mr Mathunjwa: exactly.841

33.

SAPS genuinely believed him when he led them to believe that the strike
would probably be over on 16 August 2012 hence the agitation of the
Provincial Commissioner when he failed to go to the koppie in the morning.

839
840
841

Day 24, Mathunjwa, pp 2551-2552

Exhibit 0013 p.695 Day 24, Mathunjwa, p.2530
Exhibit 0013 p.696

504

34.

It is clear that he used the strike as a platform to recruit more members of

AMCU. He and the other officials of AMCU attacked NUM, using
inflammatory language, thus inciting strikers to believe that NUM had been
oppressing the black nation for 30 years and that it had to be killed;

35.

Mr Mathunjwa acquiesced in the inflammatory utterances of Mr Nkalitshana

who spoke first at the koppie.

36.

Although AMCU claimed that it knew nothing about the strike at tha Koppie
the speakers said they were behind it. The following was said:
Comrades, we will support you my brothers. We will be with you because
we are a trusted organisation at all times that will remain trustworthy to you
that will never lie to you...
Comrades you should not regret being here, because we do not get
anything from the money of this country.

As AMCU we have come to support you, as the national organiser has said,
that we will be with you in everything.842

37.

Though there were these points of criticism about his evidence it is to his
credit that at the end of his speech, at the risk of damaging his credibility with
the strikers, he pleaded with them to leave the koppie, telling them they would
be killed by the police. If the strikers had clearly indicated at that point that
they would accept his advice and left it is probable that the tragedy would not
have occurred.

842

Exhibit 009

505

CHAPTER 23

CAPITA SELECTA

TOXIC COLLUSION

1)

Counsel for the Injured and Arrested Persons submitted that the cooperation between the SAPS and Lonmin in dealing with the situation at
Marikana during the period under consideration by the Commission went
beyond acceptable legal limits and was causal of the massacre and
unlawful. Counsel described it as amounting to toxic collusion and said
that this was an extremely important topic.

The allegedly collusive

relationship to which he referred was, he said, manifested in many ways,

including:

(a)

SAPS using surveillance equipment set up by Lonmin and their

telephone lines and other equipment and resources;

(b)

Lonmin, transferring [its] own concerns for example about the

breakaway groups on 13 August, to the police and effectively egging
them on to intercept the group when it was both unnecessary and
inopportune to do so;

506
(c)

Lonmin participating directly in devising the plan and [playing] a

decisive and essential role therein. It was conceded that Sinclair
played a vital role in the production of the ultimate police plan;

(d)

The use of the Lonmin chopper by the SAPS;

(e)

Sinclair and Botes pairing up with SAPS members to hunt down the
breakaway group on 13 August;

(f)

Botes being posted permanently at the JOC with an alternate when

he went home;

(g)

The sharing of radios and information as indicated by Amanda van

der Merwe;

(h)

The best evidence of the collusion between SAPS and Lonmin and
the full extent of its toxicity is best demonstrated by a reading and
careful analysis of JJJ 192, dealing with the synchronisation of the
planning of the two entities, as well as the Ramophosa e-mails,
Exhibit BBB4; and

(i)

The collapsing of the Lonmin JOC into the SAPS JOC.

507
2)

Counsel conceded that the collusion may have been acceptable or neutral
on face value but he submitted the toxicity thereof stems from the fact that it
was intended to and did result in the massacre/ tragedy.

3)

The Commission does not agree that there was a toxic collusion between
SAPS and Lonmin.

4)

The situation confronting SAPS and Lonmin was, as the Commission has
found, that from the evening of 10 August the strikers, or at least some of
them, were enforcing their unprotected strike by violence and intimidation.
They were contravening section 2(4) of the Dangerous Weapons Act read
with Government Notice 1633 of 1 October 1996, by being in possession at
gatherings or in public places, of dangerous weapons, such as spears,
assegais knobkieries and pangas. Some of the strikers had used these
weapons to kill Messrs Mabelane, Fundi, Mabebe and Langa and Warrant
Officers Monene and Lepaaku and to inflict serious injuries on Lieutenant
Baloyi and Mr Janse Van Vuuren and 2 others at K4 Shaft . In addition,
they burnt seven vehicles at the K4 Shaft.

5)

Lonmin requested SAPS to come to its premises to restore law and order to
arrest those responsible for the crimes they had committed and to prevent a
recurrence.

6)

In order to do those things, which are all clearly functions to be performed by

the SAPS in terms of the South African Police Services Act 68 of 1998, the

508
SAPS required to be on Lonmin premises for the period required to finish the
job and they needed full co-operation from Lonmin and the use of some of its
facilities to do so.

7)

It would have been absurd for Lonmin to have declined the use of those of
its facilities which SAPS required.

It would have been unreasonable for

Lonmin to have said to SAPS: (1) you cannot use our JOC, where there are
closed circuit television facilities which will enable you to see what is going
on at various parts of our extensive premises; (2) our telephone lines, radios
and other equipment and resources, and (3) the helicopter we hire from
Protea Coin because that would mean we will be accused of colluding with
you to assist you to perform your functions as a police service.

8)

It would also have been unreasonable for Lonmin to have refused to have Mr
Botes, one of its Security Risk Managers, and an alternate on standby in the
JOC to provide the SAPS with information about the property and the
facilities available in order to deal with any problem that might arise and to
make available to the SAPS any information it had received which could be
of use to SAPS in carrying out its functions.

9)

It is not correct to say that Lonmin transferred its own concerns about the
breakaway group on 13 August to the police and egged them on to
intercept the group when it was both unnecessary and inappropriate to do
so. Seen against the background of what had been happening since the
evening of 10 August it was reasonable for the SAPS to infer that this group,

509
many of whom were armed with dangerous weapons and busy contravening
the Dangerous Weapons Act, had embarked on a mission to intimidate and
possibly assault workers they might find at the K3 Shaft who were not
participating in the strike. It cannot be said that it was unnecessary and
inopportune to intercept the group in an endeavour to prevent a recurrence
of what had happened the previous night at the K4 Shaft, nor can it be said
that there was anything untoward in the fact that Sinclair and Botes went
with the police on this operation.

10)

It is not correct to say that Sincalir played a vital role in the production of the
ultimate police plan, which on the evidence was produced by Lt Col Scott
virtually on his own.

11)

The Ramaphosa e-mails have been discussed under Chapter 18 and the
Commission has found that his conduct in endeavouring to get the police to
do their job to stabilise the situation and arrest those strikers who had
committed serious offences was not improper.

12)

The discussion between the Provincial Commissioner and the Lonmin

management on 14 August has been considered in Chapter 9 and the
conduct of the Provincial Commissioner and the National Commissioner has
been subjected to strong criticism. But as far as concerns, the relationship
between the SAPS and Lonmin, the desire of the Provincial Commissioner to
see to it that any action the police might take would not be inconsistent with
what Lonmin was doing can scarcely be described as collusion.

510

13)

The Commission is also unable to agree with Counsels contention that the
so called collusion between the SAPS and Lonmin was toxic because it
was intended and did result in the massacre/tragedy.

14)

Although the Commission is strongly critical (for reasons which appear

elsewhere in this report) of the decision by the Provincial Commissioner to
launch the tactical option on 16 August if the strikers did not voluntarily lay
down their arms, sight must not be lost of the fact that her main desire was
not for there to be a massacre or tragedy and for the strikers to be killed but
for the weapons to be laid down and for the strikers to leave the koppie.
This clearly appears from the evidence of Mr Mathunjwa that she berated
him for not going to the koppie and persuading the strikers to do what he had
confidently predicted the previous evening they would do.

15)

There is accordingly no substance in the contention that the SAPS and

Lonmin were guilty of toxic collusion.

EVENTS WHICH WERE ALLEGED TO BE GAME CHANGERS

1)

Counsel for the Injured and Arrested Persons contended that 3 events
during the period from 11 August 2012 onwards were what he called game
changers, which had a decisive influence on what followed. They were:

511
(a)

The shooting of strikers by the NUM members at the NUM offices on

11 August;

(b)

The confrontation between strikers and the SAPS members near the
railway line on 13 August and what he called the resultant revenge
motive on the part of members of SAPS; and

(c)

2)

the impact of political pressure.843

He submitted that if the first game changer had not occurred the strikers
would not have decided to gather at the koppie and to arm themselves with
dangerous weapons. He submitted further that these two decisions literally
set the stage for the massacre in that without them having been taken, the
massacre, as we know it, would definitely not have occurred.

3)

The Commission does not agree with the analysis of what happened at
Marikana over the relvant period. As appears from Chapter 6 above, it does
not accept that the strikers decided to arm themselves because of the
shooting of two strikers at the NUM offices on the morning if 11 August 2012.
The evidence indicates that contrary to their counsels submission, they were
not unarmed with some carrying traditional sticks. According to the evidence
of Mr Gegeleza, which the Commision accepts, he saw knobkieries, pangas
and spears in the possession of the approaching strikers.844 He also testified
that far from marching to the NUM offices in order to enquire why NUM had
prevented the employer from talking directly to the strikers (as the strikers
allege) the strikers who numbered between 2 000 and 3 000, were singing

843
844

Section E of the Injured and Arrested Persons Heads

Day 39, Gegeleza, pp 4233 - 4237

512
songs and moving fast, running and their mood was aggressive. The fact
that they were armed (and not unarmed as they alleged) gives the lie to their
allegation that they only decided to arm themselves after this incident in
order to protect themselves against NUM members.

4)

The Commission is of the view that the first game changer was another
decision by the strikers, to enforce the unprotected strike by violence and
intimidation. That decision had been made on 10 August 2012 and they had
started to implement it in the late afternoon or early evening of 10 August
2012. In Chapter 6 above, the Commission has given its reasons for finding
that the large group of between 2 000 and 3 000 strikers, some of whom
were armed with dangerous weapons, went on the morning of 11 August to
the NUM offices with violent intent. The strikers remained in possession of
their dangerous weapons and in fact bought more after their confrontation in
which two of their members were injured. That they remained in possession
of their weapons so that they could continue implementing their decision to
enforce the unprotected strike by violence and intimidation is confirmed by
the subsequent actions of some of them in murdering the two security
guards, Mr Mabelane and Mr Fundi, and Mr Mabebe and Mr Langa, who
were not participating in the strike.

5)

As far as the second game changer is concerned, the important factor there
was their refusal to comply with Major General Mpembes request that they
lay down their weapons, weapons which were clearly required for the
enforcement of the unprotected strike.

513

6)

It was their determination to hold on to their weapons and to continue

congregating on the koppie which set in motion the series of events which
culminated in the tragedy of 16 August.

The Commission has dealt

elsewhere in this report with the actions and omissions of some of the other
participants which also contributed to the tragedy but there can be no
escape from the conclusion that if the strikers had not decided to resort to
violence, no-one would have been injured and no property would have been
damaged.

The consequences of the SAPS attempt to mislead the Commission

1)

As appears from what is said earlier in this report SAPSs initial case as set
out in the opening speech by its counsel and Exhibit L, the presentation of its
case in writing accompanied by photographs and videos, was in so far as it
related to the killings on 16 August, that there was no prior intention to
implement phase 3 of its plan, the so called tactical option, on 16 August
but that it became unavoidable because of an escalation in violence in the
course of the morning.845 It was also part of its initial case that the plan which
was implemented had been meticulously developed on the afternoon of 14
August with input from commanders with extensive POP experience and the
approval of the full strength JOCCOM.

It became apparent during the

course of the Commissions proceedings that that version of events was

845

[ Exhibit L, slides 133 and 174, third bullet;

Day 82, Annandale, pages 8657 to 8663]

514
incorrect. What really happened was that the decision to launch phase 3 of
the plan was taken by Provincial Commissioner Mbombo before or during a
meeting of the NMF. In terms of the decision, the launching of phase 3 was
to take place on 16 August if the strikers failed to lay down their arms and
disperse from the koppie on or after 09h00 (as it was anticipated that they
might).

The implementation of the plan was not dependent on any

escalation but only on the strikers failure to lay down their arms and
disperse.

The Provincial Commissioner announced this at a media

conference at 09h30.

2)

This decision meant that, once it became apparent that the strikers might not
lay down their arms and disperse, the plan which had been developed on 13
14 August and approved by the JOCCOM could not be implemented and a
new plan had to be prepared. Unlike the earlier plan, which was relatively
risk free, the new plan, which had to be prepared in haste, did not benefit
from inputs from experienced POP commanders and contained serious
defects. It had moreover to deal with a very different situation from the one
for which the earlier plan had devised and there was a distinct risk of
significant bloodshed, which was in fact foreseen by some of the senior
SAPS commanders.

3)

At 13h30, when there was no sign of the strikers being willing to lay down
their arms and disperse, the Provincial Commissioner ordered Major General
Annandale to implement the tactical option. At that stage the new plan had
not been discussed by the JOCCOM.

The planner, Lieutenant Colonel

515
Scott, put the details before the JOCCOM, from which its POP members
were absent. There was no challenge process and Lieutenant Colonel Scott
and Brigadier Pretorius went to FHA 1 to brief the commanders. There was
no time to prepare the hard copies for the commanders and they were
shown an image based on the earlier plan on Lieutenant Scotts laptop
computer and orally given the details of the plan. The implementation of the
plan had catastrophic consequences which resounded all over the world.

4)

The leadership of the police, on the highest level, appears to have taken the
decision not to give the true version of how it came about that the tactical
option was implemented on the afternoon of 16 August and to conceal the
fact that the plan to be implemented was hastily put together without POP
inputs or evaluation. In order to give effect to this, the decision at the NMF
was not disclosed to the Commission. An inaccurate set of minutes for the
06h30 meeting was prepared and a number of SAPS witnesses testified
before the Commission in support of the incorrect version. There is at least
a prima facie case that the National Commissioner and the Provincial
Commissioner for the North West Province, who knew the true facts,
approved Exhibit L, SAPS presentation which contained the incorrect facts.

5)

In the circumstances, the Commission recommends that steps be taken in

terms of section 9 of the SAPS Act to inquire into their fitness to remain in
their posts and whether they are guilty of misconduct in attempting to
mislead the Commission.

516

D.

1)

Recommendation regarding the shooters at Scene 1

Earlier in this report it was said that none of the persons or bodies
participating in the proceedings of the Commission bears an onus to prove
or disprove any fact and there is thus no risk of non-persuasion but that
where a person or body has sole access to relevant information and does
not disclose it, an adverse inference could be drawn against such person or
body. This is particularly so in the case of the SAPS because the National
Commissioner gave an undertaking when the Commission was appointed
that the SAPS would give its full co-operation to the Commission.

2)

It was not practically possible for the 53 persons who fired R5 rifles at scene
1 to testify and the chairperson made a ruling that no adverse inference
would be drawn against any scene 1 shooter by reason of the fact that he
did not give oral evidence. This did not, of course mean that such shooters
were not expected to explain fully in affidavits the circumstances in which
they discharged their firearms. They could make such statements without
fear of incriminating themselves because of the provisions of Regulation 9(1)
of the Commissions Regulations. Statements were produced which were
made by 51 of the SAPS members who discharged their weapons at scene
1. Many were warning statements made to IPID investigators which insofar
as they incriminated the makers could also not be used against them in
criminal proceedings by virtue of the provisions of section 25(4) of the IPID
Act. Unfortunately it does not appear that the provisions of the subsection

517
were drawn to the attention of the persons making the statements because
the standard forms used for IPID statements do not refer to the subsection
and appear to be based on those used by SAPS when interviewing ordinary
suspects in criminal investigations.

3)

The Commission has considered all the statements made by the scene 1
shooters and agrees with Mr De Rovers comments thereon, which are as
follows:

They all sing much of a tune and they dont offer you much of a
clue. And where they do offer a clue Id actually want detail, the
same detail that you want.

So theyre a frustrating bunch of

statements in that sense and that is a given.

4)

Some of the statements, as Mr De Rover indicates, are better than others

but not one of them gives the details required to enable one to say that each
shot by the shooters was justified.

5)

The Commission has found that those members who fired at scene 1 had
reason to believe that they were facing an imminent attack.

There are

indications that some may well have exceeded the bounds of self or private
defence, in which event there is at least a prima facie case that they are
guilty of attempted murder (for the reasons given earlier in this report no rifle
can be linked with any specific death so there can be no question of there
being a prima facie case against any of the shooters on a charge of murder.)

518

6)

The Commission does not believe that it would be appropriate to draw an

adverse inference against all those fired their weapons at scene 1.

It

accepts that some in all probability did not exceed the bounds of self and
private defence. It is for this reason that it has decided to refer the whole
question as to whether any of the shooters at scene 1 exceeded the bounds
of self or private defence to the DPP of the North Western Province with the
recommendation that he cause investigations to be made by IPID under the
direction of a senior member of his staff as to whether there is a prima facie
case against any of the shooters and then for him to consider whether to
institute any criminal proceedings.

Proposed recommendations with regard to Compensation

1)

The evidence leaders and several other parties proposed that compensation
be paid by the State on the basis of loss without liability not only to the
dependants of the deceased who were killed by members of the SAPS and
to those strikers who were injured by shots fired by members of the SAPS
but also to the dependants of those people killed by the strikers and to those
injured by them.

2)

This proposal has much to commend it from the point of view of bringing
closure to a shocking chapter in our history since the advent of the

519
democratic era in 1994 and achieving the goals of truth, restoration and
justice for which the Commission was established.

3)

This proposal does, however raise complex and difficult issues.

The

Commission understands that actions have been instituted by many, if not

all, of the dependants of those killed by police gunfire during the period
covered by the Commissions investigations and by many, if not all, of those
injured by such gunfire. The Commission also understands that many, if not
all, of those arrested have instituted actions against the State.

4)

Some, if not all, of the dependants of those persons killed by some of the
strikers have endeavoured during the proceedings of the Commission to
establish that Lonmin is liable to them for failing to take sufficient steps to
protect their deceased bread-winners from being attacked by some of the
strikers. And for all the Commission knows, those persons who were injured
or suffered damages as a result of the actions of some of the strikers may
also be contemplating instituting claims against Lonmin.

5)

The representatives of Warrant Officer Lepeeku and Warrant officer Monene

who were killed by strikers on 13 August 2012 and of Lieutenant Baloyi, who
was also injured on 13 August have also endeavoured before the
Commission to establish that the SAPS are liable to compensate them.

6)

In the case of these workers and their dependants, there is the possibility
that they may have claims against the Commissioner under the
Compensation for Occupational Injuries and Diseases Act 130 of 1993.

520
7)

It is clearly desirable that the legal issues raised by the events at Marikana
should be resolved without further lengthy and expensive legal proceedings
but the finding of a satisfactory and just solution will not be easy.

8)

The Commission is not satisfied that its terms of reference are wide enough
to cover the question as to whether a compensation scheme of the kind
proposed should be implemented by the State.

The applicability of the McCann Principle

1)

The decision to make Thursday, 16 August, D Day meant as has been

seen, that the relatively risk-free encirclement plan, which was drawn up with
POP input and approved by the full strength JOCCOM with experienced
POP commanders present, had to be discarded and replaced by another
plan, which had to be prepared in haste without the benefit of POP input,
which was not approved by the full strength JOCCOM and was not
subjected, as it should have been, to a challenge process. The defective
nature of this plan has been explained in Chapter 13 above. It carried with it
a substantially heightened risk of bloodshed, which was a result of the
circumstances in which it had to be implemented.

2)

Even before it was drafted Major Generals Mpembe and Annandale warned
the Provincial Commissioner that proceeding to the tactical option that day

521
would involve bloodshed. She reconciled herself to the fact that this was so,
merely asking for an assurance that it would be kept to the minimum. In the
Commissions view this was not good enough.

3)

Section 13(3) (a) of the Police Services Act, 68 of 1998 recognises the basic
principle on which the use of force by members of the Police Services rests,
namely, that where force has to be used only the minimum force which is
reasonable in the circumstances must be used.

4)

The decision to make Thursday D-Day and the consequent replacement of

the encirclement plan which involved the use of minimum force to deal with
the situation, by the Disperse-Disarm-Arrest plan, which from the nature of
things was likely to require the use of more force, was therefore in conflict
with the basic principle to which the use of force by members of the SAPS is
subject. Put simply: a decision to implement a plan to use more force on
Thursday than would probably be required on Friday will, in the absence of
compelling circumstances requiring action on Thursday, be an illegal
decision.

5)

The McCann principle, which requires the planners of policing operations

where force may possibly be used to plan and command the operations in
such a way as to minimise the risk that lethal force will be used has
accordingly been breached.

522

CHAPTER 24

PHASE 2:

LONMINS HOUSING OBLIGATIONS IN TERMS OF THE SOCIAL

AND LABOUR PLAN

1)

It will be recalled that subparagraph 1.1.3 of the Terms of Reference enjoins

the Commission to inquire into, make findings, report on and make
recommendations concerning the following:

1.1

the conduct of Lonmin PLC, in particular:

1.1.3 whether it by act or omission, created an environment

which was conducive to the creation of tension, labour unrest,
disunity among its employees or other harmful conduct.

2)

It will also be recalled that the original Terms of Reference contained a

further subparagraph, 1.5, which enjoined the Commission to investigate the
role played by the Department of Mineral Resources or any other
government department or agency in relation to the incidents and whether
this was appropriate in the circumstances, and consistent with their duties
and obligations according to law.

523

3)

This subparagraph was subsequently deleted from the Commissions Terms

of Reference by Proclamation 30 of 2014, which was published in
Government Gazette 37611 of 5 May 2014.

4)

On 8 November 2012 the Commission gave a ruling in terms of which it

decided to investigate the matters referred to it in two phases, the first being
an examination of the events of 9 to 16 August 2012 at Marikana and the
second, being the remaining topics set out in subparagraphs 1.1.3 and 1.5 of
the Terms of Reference.

5)

The deletion of subparagraph 1.5 means that the Commission is still obliged
to give its attention to the topics raised in subparagraph 1.1.3, which were
not examined as part of phase 1.

6)

While the Commission was busy with Phase 1 its researcher Dr K Forrest
commenced doing detailed research in respect of the matters to be
examined in Phase 2. For this purpose Lonmin was asked to provide access
to its documents on a number of topics which were considered relevant to
Phase 2.

7)

On 25 August 2014, despite opposition by Lonmin, the Commission

withdraw its ruling of 8 November 2012. A copy of this ruling is set out in
Annexure K to this report.

524
8)

Lonmins opposition to the withdrawal of the earlier ruling was based on

three main propositions: (a) that the issue the Commission proposed to
examine in Phase 2, viz the housing obligations of Lonmin, was not covered
by the Terms of Reference, which required a causal link between any
conduct or omissions by Lonmin in respect of its housing obligations and the
events of 9 to 16 August 2012; (b) that Lonmins performance of its housing
obligations could not be examined without an examination of the
responsibility and performance of local authorities in the area to provide
housing; and (c) that an examination of the issue proposed to be canvassed
by the evidence leaders would in the time available be unfair to Lonmin.

9)

In the ruling given on 25 August 2014 the Commission dealt with and
rejected the first two propositions relied on by Lonmin for the reasons set out
in the ruling. As far as the third proposition is concerned the Commission
held that the question of fairness could only be answered at the end of the
inquiry.

10)

Now that that stage has been reached, the Commission is in a position to
decide the question of unfairness.

11)

What happened during the hearing on Lonmins performance of its housing

obligations in terms of the Social and Labour Plan submitted by it to the
Department of Mineral Resources and approved by it under the relevant
provisions of the Mineral and Petroleum Resources Development Act 28 of
2002 (the MPRDA), was that the evidence leaders put a large amount of

525
documentary material which had been received from Lonmin before the
Commission and a report prepared by Dr Forrest based on that material,
whereupon Lonmin led the evidence of one of its directors, Mr Mohamed
Seedat, who was then cross-examined.

12)

The case the evidence leaders seek to make against Lonmin on this branch
of the inquiry is based on what the Commission saw at its inspection in loco
at Marikana in October 2012 and on Lonmins own documents and
information provided and made available by Mr Seedat.

13)

The Commission is satisfied that an examination of the topic presently under

discussion on this basis cannot be regarded as unfair to Lonmin and that it is
obliged in order to carry out its mandate under the Terms of Reference to
conduct the enquiry on this topic.

14)

Lonmin contended that a consideration by the Commission of its

performance of its housing obligations would lead to unfairness, inter alia,
because it did not have the opportunity to cross-examine Dr Forrest on her
report. But this was not necessary because, as has been pointed out, the
case presented by the evidence leaders in respect of the inquiry rests, not
on her report as such, but Lonmins own documents and the evidence of its
own witness.

15)

It was also contended that the housing issue was not properly considered
because the responsibility of local government was not looked at and that

526
the impact of the 2008 financial collapse (on Lonmin and all other
companies) was not properly investigated. For the reasons set out in the
ruling of 25 August 2014 the responsibility and performance of the local
government in the area of housing is irrelevant because Lonmins obligations
were self-standing. The impact of the 2008 financial collapse is also strictly
speaking irrelevant, as will be shown later.

16)

It is common cause that in order for it to have its old order rights in respect of
the Marikana mine converted into a mining right under the MPRDA its Social
and Labour Plan (SLP) had to be approved by the Department of Mineral
Resources under sections 23(1)(e) and 25(2)(f) and (h) of the MPRDA.

17)

Because the Marikana mine was operating as a single mine Western

Platinum Ltd (WLP) and Eastern Platinum Ltd (ELP) submitted a joint SLP
with their conversion applications.

In terms of this SLP they committed

themselves to phasing out all existing single sex hostel accommodation,

converting most existing hostels into bachelor or family units and building an
additional 5500 houses for their migrant employees. It was made clear that
the house construction obligations would cater for the workers who had
previously been housed in hostels but would be rendered homeless by the
hostel conversion programme.

846

This was because of the existing 129

blocks, 15 were to be phased out and the conversion of the remaining 114
hostel blocks would generally turn hostel block accommodation for eight or
16 workers into single family or bachelor units, with a resultant loss of

846

Exh SSSS2, WLP SLP, pp 79 81; D 293, Seedat, p 38282

527
accommodation for approximately 87.5% of the workers previously
accommodated. 847

18)

The Department of Mineral Resources approved the proposed SLP and

WLP and ELP became legally obliged to comply with its terms, which could
only be amended with the written consent of the Department, which was
never given or even sought.

In the SLP WPL and EPL committed to

completing both the hostel conversion and the house construction processes
by September 2011.

19)

It is common cause that WLP and ELP built three of the 5500 houses which
should have been built.

20)

It is also common cause that large numbers of Lonmin workers live in

squalid informal settlements surrounding the Lonmin mine shafts. The living
conditions in these settlements are very poor and the people living there lack
basic social services. Mr Seedat conceded in his evidence that the living
conditions in Nkaneng and other informal settlements were truly appalling.
848

21)

Mr Seedat also conceded in cross-examination that there was a critical

shortage of decent housing for the employees of Lonmin and that the board
and executive of Lonmin understood that the tragic events at Marikana were

847

Ibid
D 292, Seedat, p 38274

848

528
linked to that shortage.

849

That link was clearly reflected in the public

statements of Lonmin in the immediate aftermath of the tragedy. Thus in his

address on 31 January 2013 at the first Lonmin AGM after the tragedy,
Lonmins chairman Mr Phillimore characterised the events that led up to the
tragedy as being linked to a breakdown of trust between itself and its
workforce.850 While in the Lonmin PLC annual report for 2012, which was
delivered with the address, it was recognised that Lonmin would not easily
build a relationship of trust with its employees as long as they were forced to
live in squalid conditions on its doorstep.

851

Mr Phillimore also said in his

address that Lonmin PLC committed itself to addressing the living conditions
of its workforce as part of its attempt to create a safe and sustainable
business.

852

Mr Seedat conceded that Lonmin had known about the critical

housing shortage at Marikana and the squalid conditions in Nkaneng for

years. 853

22)

Mr Seedat contended that the obligation assumed by WPL and EPL under
the SLP was not an obligation to build houses but merely an obligation to
broker an interaction between their employees and private financial
institutions in terms of which employees would be able to obtain mortgage
bonds to build their own houses.

854

The evidence leaders submitted that this

version of Lonmins obligations in respect of the provision of housing for its

employees must be rejected.

They contended that it was not only

implausible but inconsistent with:

849

D 292, Seedat, pp 38354 38355

Exh SSSS5, p 375; D 292, Seedat, p 38350
851
Exh SSSS2 at p 1455; D 292, Seedat, p 38353
852
Exh SSSS5 at p 375; D 292, Seedat, pp 383 38354
853
D 292, Seedat, p 37717
854
ELs Heads, para 14
850

529
a)

the terms of the SLP itself;

b)

the annual SLP reports which Lonmin furnished to the Department of

Mineral Resources under section 25(2)(h) of the MPRDA;

c)

the SLP close-out reports that Lonmin furnished to the Department

after the five year term of the SLP; and

d)

23)

Lonmins sustainable development reports.

As regards the contention that the version was implausible, the evidence
leader referred to what they called the obvious problem which the
Chairperson had put to Mr Seedat, viz:855

You go to the department and you say, look here, wed like
you to convert our old order mining rights to new order
mining rights and what we will do in order to make sure that
we get the new order mining rights is, we will agree to an
SLP. One of the things you agree to do is to convert the
hostels and see to it that theres housing. Now could it ever
have been envisaged by anybody that you could say, well all
we have to do as far as the housing is concerned is try to see
there are houses, get banks involved, get developers
involved, facilitate it, and if they dont provide the houses or
the banks walk away from it, well tough.
855

D 293, Seedat, pp 38293 38294

Its very

530
unfortunate. We did our best: we went through the motions
of facilitating; It didnt work out; There arent the houses. The
people are having to live in shacks in appalling conditions in
an informal settlement, but thats very sad, but nevertheless,
this was all we had to do in order to get the new order mining
rights.

Does that sound like a proposition that makes

sense?

24)

The evidence leaders correctly comment, Mr Seedat spent several pages

responding to this question but could not come up with any credible
answer.856

25)

The inconsistency with the terms of the SLP themselves in demonstrated by

the evidence leaders in their argument in the following passage:

16.

The Lonmin version is clearly inconsistent with the

terms of the WPL and EPL SLP. In this regard, the SLP
expressly stated that Employees will have the choice of a
number of tenure options (i.e. rental, instalment sale, rent-tobuy or full mortgage bonds) and will therefore be able to
select the option most suited to their financial circumstance.

17.

The tenure options other than outright purchase on full

mortgage

856

bond

would

inevitably

ELs Heads, para 15; D 293, Seedat, pp 38294 38298

have

required

the

531
involvement of WPL, EPL or some related party within the
Lonmin Group on a basis that went beyond the bland
facilitation role described by Mr Seedat. When this difficulty
was put to him, he suggested that the SLP may have
contemplated the creation of a special purpose vehicle for
the housing obligations, but maintained that Lonmin would
not have underwritten the obligations of that special purpose
vehicle and may not even have held a majority shareholding
in it. Mr Seedat referred in this regard to the Marikana
Housing Development Corporation (MHDC) as a special
purpose vehicle of the sort he had in mind. When it was put
to him in this context that the example of the MHDC did not
support his version because it was a wholly owned Lonmin
subsidiary, he denied this. That denial was wrong. The
MHDC was a wholly owned subsidiary of WPL as is reflected
in its financial statements and the financial statements of
WPL.

18.

Furthermore, the [SLP refers] to the financing of the

hostel conversion process and the house construction

process in identical terms. Mr Seedat conceded that Lonmin
had put its own money into the hostel conversion process.
He could not satisfactorily explain why this would not have
been intended in relation to the house construction process
when the SLP used identical wording to refer to the financing
of both processes.

532
26)

The evidence leaders contention as regards the inconsistency with the SLP
reports Lonmin furnished annually to the department is set out in the
following paragraph of their heads, with which the Commission is in
agreement:

19.

It is clear from the terms of Lonmins annual SLP

reports that it contemplated an obligation to build houses, as

opposed to an obligation to facilitate a series of marketdriven transactions between employee buyers and private
financial institutions and/or developers. Thus Lonmin referred
to these commitments in terms that did not hint at the version
now advanced, and that did not distinguish between the
nature of the commitment in relation to housing and the
nature of the commitment in relation to hostel conversion.

27)

There is a similar inconsistency in the close out reports WLP and ELP
furnished to the department after the five year term of the SLP, about which
the evidence leaders say the following:

20.

In the WLP and ELP close out reports on their SLP

they accounted for their failure to meet their housing obligation

in terms which are incompatible with the version advanced
through the mouth of Mr Seedat. In particular, the close out
reports refer to an unachieved financial commitment of

533
spending R665 million on house construction.

When the

relevant extracts of the close out reports were put to Mr

Seedat, he could not explain them and had to seek refuge in
the fact that he had played no part in their production or
approval.

28)

In their sustainable development reports Lonmin clearly indicated not only

that it understood that WPL and EPLs housing obligations went further than
Mr Seedat contended in his evidence but also that a failure to deliver on
these commitments could lead to the possible withdrawal of the mining
licenses.

The following

passages

in

Lonmins 2010

Sustainable

Development Report 857makes these two points abundantly clear:

Our commitment to affordable housing for our employees is

underpinned by a sound business imperative created by the
inclusion of housing provision in our SLP requirements. In
order to meet this commitment, we have to:

Convert a total of 114 hostel blocks into 2, 718

family and bachelor accommodation units; and

857

Exh SSSS2, p 1404

Construct 5,500 houses within the GLC.

534
Our principal risk is possible withdrawal of our Mining
Licences resulting from failure to deliver commitments made
in our Social and Labour Plan (SLP) regarding housing and
converting our hostel units.

29)

The evidence leaders deal with Lonmins breach and repudiation of its
housing obligations in paras 23 to 27 of their heads, with which the
Commission is in complete agreement. These paras read as follows:

23.

WPL

and

EPL

defaulted

consistently

in

the

performance of their SLP obligations in relation to hostel

conversion and house construction. By the end of the 2009
financial year they had built only 3 of the 3200 houses it had
undertaken to build in the first three years of the SLP, and
were 41 hostels behind their target for the conversion of 70
hostels over this three year period.

24.

In its 2009 SLP report Lonmin abandoned any

reference to the figures in its actual SLP and stated that:

The

financial

situation

of

the

company

impacted by the global economy on the price of

platinum resulted in a review of the housing and
hostel upgrade programme.

535
In accordance with this review, the new target

25.

for the 2009 financial year was reduced to the construction of

3 show houses. WPL awarded itself 100% in respect of the
achievement of this target. In terms of the review, what had
previously been an unconditional obligation to construct 5500
houses over five years with a capital budget of R665 million
was converted into a contingent obligation to build houses
only for workers who could obtain mortgages, and then only
when at least 50 applicants with approved home loans
approached WPL or EPL with a request to build them each a
home on the basis of their approved home loan.

26.

The revised obligation was not accepted by the DMR,

which noted in its audit and inspection report of 9 September

2009 that
The company committed to building 5500
houses to be sold to its employees. To date the
company should have built 3200 houses, but
only three show houses have been built at
Marikana Extension 2.

Hostel conversion in Marikana, to date the

company should have converted 70 hostels,
only 29 blocks of hostels have been converted.

536
27.

The

2009

review

amounted

to

unilateral

repudiation of the obligations assumed in the original WPL

and EPL SLP. In his evidence in chief Mr Seedat took issue
with the characterisation of the 2009 review as a unilateral
repudiation of the WPL and EPL obligations. However, in
cross examination he was obliged to concede that the step
that was taken in 2009 was one which was incompatible with
any belief that it may still be possible to ensure the
construction of 5500 houses by the end of the term of 2011.

30)

Lonmin attempted to justify its repudiation of its housing obligations on two

grounds:

(a)

it claimed that there were delays in proclamation which prevented it

from starting its house construction programme; and

(b)

it stated that in the wake of the financial crisis it could not afford to
construct houses for its employees.

31)

The evidence leaders demolished the first ground of attempted justification

as follows:

29.

The proclamation delay argument is a red

herring. Proclamation of Marikana Ext 2 took place on

537
10 February 2009 and it is common cause that
following proclamation of Marikana Ext 2 there was
available proclaimed land for the house construction
programme. In fact, proclamation was never a barrier
for the start of the house construction programme
because there were 780 serviced stands available at
the start of the SLP period as well as vacant land that
did not have to go through the proclamation process
because it was within the existing hostel complexes.

32)

The second ground of attempted justification, as the evidence leaders

submit,858 starts from a mistaken premise. The obligations of WPL and EPL
were legally binding under the MPRDA. It is common cause that WPL and
EPL did not apply to the department to vary their SLP obligations in relation
to house construction (and they realised that by not complying with their
obligations in that regard they ran the risk of losing their mining licence). If
the department had applied to court for an order directing that they comply
with their obligations they could not have relied on their alleged inability to
afford to comply.

It follows that this attempted ground of attempted

justification is irrelevant.

858

ELs Heads, para 30

538
33)

The evidence leaders also submit, correctly in the Commissions opinion that
the affordability argument is, on its own terms, incorrect. They motivate this
submission by pointing out:

31.1. Over the 2007-2011 period in which Lonmin

claims that WPL and EPL could not afford to
meet their housing obligations which were
budgeted at R665m, the two companies

31.1.1.

paid dividends of US$607 million

to Lonmin Plc and Incwala Resources

(Pty) Ltd, and

31.1.2.

paid more than R1.3 billion in

marketing commission payments to

Lonmin Plc (in the form of its SA branch
company Lonmin Management Services
(Pty)

Ltd)

and/or

its

Bermudan

registered subsidiary, Western Metal

Sales Ltd.

31.2. Over the period 2008-2011 alone, Lonmin

Management Services made an aggregate
profit of R 643,547,159 on these marketing
commissions paid by WPL and EPL.

539
34)

Counsel for Lonmin endeavour to deal with the fact that dividends of
US$607 million were paid over the 2007 2011 period by referring to the
fact that Lonmin shareholders, through Lonmin PLC in the form of two
significant rights issues had put more funds into the two operating
companies since 2007 than had been paid out to shareholders by WPL and
EPL in the form of dividends.

859

The provision of those funds by the

shareholders does not alter the force of the point made by the evidence
leaders because the shareholders who put in the funds received
consideration in exchange, viz the rights which were the subject of the rights
issue.

35)

Counsel for Lonmin also argued that Lonmins admitted failure to comply
with the housing obligations under the SLP would not have made a
difference because the failure to build 5500 houses would have had no effect
on the tragedy.

Advancing what he called a counterfactual he said:

860

Remember we employ 28 000 employees of the 28 000 weve

employed weve now built houses for five and a half thousand. What about
the other 20 and a half thousand [sic, the correct figure is 22 500]? Is that
going to take away their complaints? Is that going to create trust between
the employer and the employees? I wouldnt have thought so.

859
860

Lonmins Heads of Argument, dated 27 October 2014, para 295

D 296, Submissions by Burger SC, p 38993

540

36)

In reply Mr Chaskalson SC said that this was:861

quite a breathtaking argument for Lonmin to make.

It amounts to an argument that Lonmin has been so
neglectful of the housing needs of its workforce that
the 5500 houses in their SLP would have been no
more than a drop in the ocean of squalor in which
they expect their workers to live.

Thats what the

argument is.
Well, Lonmin may have been bad, but it wasnt that
bad. The figures that Mr Burger quoted to you are
actually incorrect for two reasons; first is they
conflate the total workforce with the number of
migrant workers in categories 4 to 9, which is the real
inquiry, migrant workers, and second they ignore the
houses that were already available for Lonmins
category 4 to 9 migrant workers either through hostel
conversion

process

or

through

housing

developments undertaken by Lonmin prior to 2000.

861

D 300, Submissions by Chaskalson SC, pp 39678 39680

541
Now weve prepared a table which shows the
correct figures on the basis of Lonmins own
documents with the sources, and there we see that
the total number of category 4 to 9 employees was
23044, not 28000 quoted by Mr Burger, that the total
number of these workers who were in decent housing
by 2012 was 5883, which is 25%, 1 in 4. The total
number not in decent housing by 2012 was 17161,
74.4%,three quarters.

We then look at what would have happened if Lonmin

had delivered. It would have created another 1130
on outstanding hostel conversions and another 5497
houses, thats the 5500 minus the three that they
managed to build.

That would have changed the

situation, so instead of 25% of the workers in decent

housing and 74% not in decent housing, you would
have had 54% in decent housing and 45% not in
decent housing.

Now in our submission it would have been a very

material difference. Its not just that more than half
the migrant workers would have been in decent
housing, its also that the remaining 45% would have

542
seen that their employer was in the process of
addressing their living conditions.

Instead three-

quarters of the migrant workforce was living in

squalor and Lonmin had done nothing about it for
more than a decade. In fact theyd compounded the
problem by pushing 7 out of every 8 hostel residents
into the informal settlements. So it very much would
have made a difference is our submission

37)

The Commission is satisfied that Lonmins failure to comply with its housing
obligations created an environment conducive to the creation of tension,
labour unrest, disunity among its employees or other harmful conduct.

543
CHAPTER 25

RECOMMENDATIONS

The Commission recommends that the following matters are referred to

the

Director

investigation

of
and

Public
to

Prosecutions,

determine

North

whether

West

there

are

for

further

bases

for

prosecution:

1)

10th August 2012

The attempted murder of Mr Mutengwane and Mr Dlomo.

(Marikana CAS 69/08/2012) refers.

2)

11th August 2012

The shooting by NUM officials of Mr Mabuyakhulu and Mr Ngema and the

subsequent attack on Mr Mabuyakhulu whilst he lay injured on the ground.
(CAS 67/08/2012) refers.

3)

12th August 2012

Where Lonmin, well knowing of the reports of intimidation and violence and
being fully aware of their inability to protect their employees, urged employees

544
to go to work and after the killings of security personnel by the strikers, failed
to inform employees of the dangers of coming to work and failed to withdraw
their call to work during the strike:

(a)

The assaults upon Mr Louw and Mr Vorster and the deaths of

Mr

Fundi and Mr Mabelane in confrontations with the strikers.

(b)

The death of Mr Mabebe at K4 Shaft. (CAS 109/8/2012) refers

(c)

The assaults upon Mr Janse Van Vuuren, Mr Andries and Mr Keyser

at K4 shaft. (CAS 111/08/2012) refers.

4)

13th August 2012

(a)

The killing of Mr Langa by the strikers in the early hours of the

morning of 13 August 2012

(b)

The killing of Mr Sokhanyile in circumstances where there are

conflicting versions of the allegations of the shooters acting in private
defence.

(c)

The killing of Mr Mati, where there is difference in opinion about

whether the fatal wound is a gunshot wound or a stab wound.

(d)

The killing of Warrant Officer Lepaaku and Warrant Officer Monene

and the assault on Lieutenant Baloyi.

545

5)

14th August 2012

The killing of Mr Twala (CAS 121/8/2012)

6)

16th August 2012

With regard to scene 1 and with regard to those members of the South African
Police Services, who in firing shots at the strikers may have exceeded the
bounds of self and private defence and the delay in conveying medical
assistance to scene 1, and with regard to scene 2, with regard to issues of
command and control, the failure to stop the operation after scene 1 and the
possible liability of senior officers in the South African Police Services, the
shooting of strikers by various members of the South African Police Services:

(a)

In terms of paragraph 5 of the Commissions terms of reference, the

Commission refers the circumstances surrounding the injuries and
deaths of all persons at Scene 1 and 2 to the Director of Public
Prosecutions of the North West Province, to exercise his powers in
terms of section 24(1)(c) of the National Prosecuting Authority Act 32

546
of 1998862, to supervise, direct and co-ordinate a specific
investigation into the events at scenes 1 and 2.

(b)

It is recommended that for the purposes of the investigation, a team

is appointed, headed by a Senior State Advocate, together with
independent experts in the reconstruction of crime scenes, expert
ballistic

and

forensic

pathologist

practitioners

and

Senior

Investigators from IPID, and any such further experts as may be

necessary. The Commission recommends a full investigation, under
the direction of the Director of Public Prosecutions, with a view to
ascertaining criminal liability on the part of all members of the South
African Police Services who were involved in the events at scene 1
and 2.

7) The period between 10th August 2012 and 16th August 2012

(a)

The offences in terms of the Regulation of Gatherings Act and the

Possession of Dangerous Weapons Act. The strikers can be seen very
clearly on videos and photographs in possession of dangerous
weapons at public gatherings or in public places, as were NUM
members after the attack on the NUM office on 11 August 2012.

862

NPA Act: Section 24(1)(c) Subject to the provisions of section 179 and any other relevant section
of the Constitution , this Act or any other law, a Director referred to in section 13 (1) (a) has, in respect
of the area for which he or she has been appointed, the power to supervise, direct and co-ordinate
specific investigations

547
(b)

The propensity in South Africa presently for the carrying of sharp

instruments and firearms and the associated violence even in service
delivery protests, require strict enforcement of the laws prohibiting such
conduct.

The Commission recommends with regard to Public Order Policing that

a panel as described in paragraph 8 below be established to perform
the tasks set out in paragraphs 8, 9 and 10.

1)

The experts were unanimous in their view that automatic rifles like the R5
have no place in Public Order Policing.

Mr De Rover testified that he

suggested an immediate withdrawal of R5 from POP operations. He said

that military assault weapons have no place in law enforcement and that he
was fully aware of the particular problems of violence in South Africa. 863 Mr
White also recommended an immediate withdrawal of R5 rifles and added
that any replacement weapon system should not be capable of automatic
fire mode.864

2)

The evidence before the Commission clearly indicates that the measures at
the disposal of Public Order Policing are completely inadequate for the
purposes of dealing with crowds, armed as they were, with sharp weapons
and firearms, at Marikana.

863
864

Page 36984
Exhibit ZZZ31.3 para 45

548

3)

Mr De Rover said POP capabilities are mainly reactive, they are mainly
static, set piece, aimed at containment and crucially, prefer a distance
between them and the crowd and the current configurations offer very limited
options to deal with such situations.865

4)

He said that the strikers on the 13th and more so on the 16th, appeared
confrontational, organised, mobile, armed, violent and volatile.866

5)

He said that the 13th, where POP members ran away from the scene during
the attack by the strikers upon their colleagues, was an abject failure of
Public Order Policing. He said POPS cannot deal with such situations. He
went so far as to say that none of the units in the SAPS has the ability to
stop a crowd with those characteristics if they decided to walk into the Union
Buildings.867

6)

Major General Mpembe said in a discussion with Mr Zokwana that no

amount of training enables him with a rifle to disarm someone with an axe,
without bloodshed. Mr De Rover said that the approach at Marikana has
never been field tested. It was such a dangerous situation and the members
of the South African Police Services were not trained for it.868

7)

The Commission is mindful of the dangers inherent in the situation when

Public Order Policing members are faced with a crowd armed with sharp

865

Page 37057
Page 37056
867
Page 37062
868
Page 37065
866

549
weapons and where non-lethal force is ineffective. However the use of R5 or
any automatic rifle is clearly untenable, not only because of the
Constitutional imperatives, but also because the effects seen at Marikana
are just too disturbing and devastating for South Africa even to contemplate
any recurrence.

8)

Bearing in mind Mr De Rovers comment that no unit in SAPS is currently in

a position to deal with such a crowd, it is recommended that a panel of
experts be appointed, comprising senior officers of the Legal Department of
the SAPS together with senior oficers with extensive experience in Public
Order Policing and

specifically including independent experts in Public

Order Policing, both local and international, who have experience in dealing
with crowds armed with sharp weapons and firearms as presently prevalent
in the South African context, to:

(a)

Revise and amend Standing Order 262 and all other prescripts
relevant to Public Order Policing;

(b)

Investigate where POP methods are inadequate, the world best

practices and measures available without resorting to the use of
weapons capable of automatic fire;

(c)

Having done so, to implement a training programme where all Public

Order Policing members are extensively and adequately trained in
such measures and methods; and

550
(d)

Consider and advise on the recommendations made by Mr Robert

David Bruce and Amnesty International.

9)

In addition to the above, the experts have made detailed and far reaching
recommendations.869 We recommend that the abovementioned panel
investigate and determine the suitability of each of the recommendations to
the South African situation, and, where found to be apposite, to authorize
and implement such recommendations, and to ensure that adequate and
appropriate prescripts, protocols and training are put into place to give
urgent effect to those decisions.

10)

The Commission has heard evidence of uncertainty as to the exact roles to

be played when tactical units are deployed together with Public Order
Policing Units in instances of crowd control. It is specifically recommended
that the above mentioned panel pay particular attention to the lacunae in the
standing orders and prescripts and identify, revise and amend the relevant
protocols with clearly defined roles for each tactical unit.

11)

It is recommended that the abovementioned panel be constituted as soon as

possible to enable urgent attention to be directed to these recommendations.

869

Exhibit ZZZ31.1 to 31.3

551
C

Recommendations by National Planning Commission

The National Planning Commission, in its report, which has been accepted as
Government policy, has made a number of important recommendations regarding
the need to demilitarise the SAPS and to professionalise the police.

These

recommendations must be implemented as a matter of priority.

Control over operational decisions

1)

While it is recognised and accepted that in large and special operations

there is a role for consultation with the Executive, in particular the Minister of
Police, the Commission recommends that the Executive should only give
policy guidance and not make any operational decisions and that such
guidance should be appropriately and securely recorded.

2)

The Commission recommends further that in Public Order Policing situations

operational decisions must be made by an officer in overall command with
recent and relevant training, skills and experience in Public Order Policing.

Police Equipment

1)

All radio communications should be recorded and the recordings should be

preserved. Plans for Public Order Policing operations should identify the

552
means of communication which SAPS members will use to communicate
with each other.

2)

A protocol should be developed and implemented for communication in large

operations including alternative mechanisms where the available radio
system is such that it will not provide adequate means of communication.

3)

The SAPS should review the adequacy of the training of the members who
use specialised equipment (eg water cannons and video equipment), and
ensure that all members who may use such equipment are adequately
trained to do so.

4)

All SAPS helicopters should be equipped with functional video cameras.

5)

The SAPS should review the procurement, servicing and training processes
which have had the result that expensive equipment purchased by the SAPS
cannot be used, either adequately or at all.

First Aid

1)

In operations where there is a high likelihood of the use of force, the plan
should include the provision of adequate and speedy first aid to those who
are injured.

553

2)

There should be a clear protocol which states that SAPS members with first
aid training who are on the scene of an incident where first aid is required,
should administer first aid.

3)

All police officers should be trained in basic first aid.

4)

Specialist firearm officers should receive additional training in the basic first
aid skills needed to deal with gunshot wounds.

1)

Accountability

Where a police operation and its consequences have been contraversial

requiring further investigation, the Minister and the National Commissioner
should take care when making public statements or addressing members of
the SAPS not to say anything which might have the effect of closing the
ranks or discouraging members who are aware of inappropriate actions from
disclosing what they know.

2)

The standing orders should more clearly require a full audit trail and
adequate recording of police operations.

554
3)

The SAPS and its members should accept that they have a duty of public
accountability and truth-telling, because they exercise force on behalf of all
South Africans.

4)

The staffing and resourcing of IPID should be reviewed to ensure that it is

able to carry out its functions effectively.

5)

The forms used by IPID for recording statements from members of the SAPS
should be amended so as to draw the attention of the members concerned
to the provisions of section 24 (5) of the IPID Act and thereby encourage
them to give full information about the events forming the subject of an IPID
investigation without fear that they might incriminate themselves.

Lonmins Housing obligations under the SLPs

1)

The Commission recommends that Lonmins failure to comply with the

housing obligations under the SLPs should be drawn to the attention of the
Department of Mineral Resources, which should take steps to enforce
performance of these obligations by Lonmin.

2)

In his letter to the chairperson dated 24 April 2014, when paragraph 1.5 of
the proclamation was deleted to enable the Commission to accelerate the
finalisation of the primary invesitigation, the President said: the investigation
relating to the role of the Department of Mineral Resources and other

555
departments or agencies pertaining to the tragic incidents as contemplated
in paragraph 1.5 of the terms of reference may be considered at a later
stage guided by the outcome of the Commissions findings and
recommendations with regard to the incidents of 9 - 12 August 2012. In
view of the fact that the Commission has found that Lonim did not comply
with housing obligations in the SLPs of its two Marikana subsidiaries, it is
recommended that the topics dealt with in the deleted paragraph, in
particular the apparent failure by the Department of Mineral Resources
adequately to monitor Lonmins implementation of its housing obligations,
should be investigated.

556

CHAPTER 26

RESPONSES TO QUESTIONS POSED IN TERMS OF REFERENCE

1)

The Commission has endeavoured to provide a narrative of important events

that took place at Marikana during the period covered by its Terms of
Reference.

2)

In what follows, it will give its responses to the questions posed in the Terms
of Reference.

3)

Lonmin PLc did not use its best endeavours to resolve the disputes that
arose between itself and the members of its work force who participated in
the unprotected strike and between the strikers and those workers who did
not participate in the strike. It also did not respond appropriately to the threat
and outbreak of violence.

4)

The Commission says this because it is of the view that Lonmin should in the
special situation created by Impalas action in unilaterally raising the wages
of its RDOs have negotiated with its RDOs and not initially sheltered behind
the two year agreement and thereafter insisted it would only negotiate with
NUM in which it knew the RDOs had no confidence.

557
5)

Lonmin also failed to employ sufficient safeguards and measures to ensure

the safety of its employees. In this regard it failed to provide its security staff
with the armoured vehicles they needed for their protection despite being
requested to do so. It also insisted that its employees who were not striking
come to work despite the fact that it knew that it was not in a position to
protect them from attacks by strikers.

6)

Finally, it created an environment conducive to the creation of tension and

labour unrest by failing to comply with the housing obligations undertaken by
its two subsidiaries in the SLPs on the strength of which it obtained new
order mining rights.

7)

Apart from Standing Order (General) 262, which requires amendment and
clarification, the standing orders, policy considerations, legislation and other
instruments which deal with the situation prevailing at Marikana during the
period covered by the Commissions investigation are in accordance with the
Constitution and world best practice.

8)

The facts and circumstances which gave rise to the use of all and any force
are set out in the report.

9)

As far as the events of 13 August 2012 are concerned, the initial firing of a
teargas canister and a subsequent stun grenade were unreasonable and
unjustifiable in the circumstances and was the spark which caused the
confrontation between the SAPS and the strikers.

558

10)

As far as the events of 16 August 2012 are concerned, the decision to

implement the tactical option on that day at a time when a large number of
armed strikers were present at the koppie was unreasonable and
unjustifiable. The plan put together on that day was defective. It appears
prima facie that some of the SAPS members who fired at the strikers at
scene 1 exceeded the bounds of self and private defence. The principle that
only the minimum amount of force reasonable in the circumstances should
be used was not complied with.

11)

The operation should have been stopped at the end of scene 1. There was
no proper command and control at scene 2. Numerous shots were fired
which were not justified by the principles of self and private defence.
Members of the TRT and one member of the POP fired all the shots at
scene 1. The shots fired at scene 2 were fired by members of the POP, K9
Unit, the NIU and the TRT.

12)

Officials of AMCU did not exercise effective control over its members and
those persons allied to it in ensuring that their conduct was lawful and did not
endanger the lives of other persons. They sang provocative songs and made
inflammatory remarks which tendered to aggravate an already volatile
situation.

The president of AMCU did his best before the shootings to

persuade the strikers to lay down their arms and leave the koppie.

13)

NUM did not exercise its best endeavours to resolve the dispute between
itself and the strikers. It wrongly advised the RDOs that no negotiations with
Lonmin were possible until the end of the 2 year agreement. It did not take

559
the initiative in endeavouring to persuade and enable Lonmin to speak to the
RDOs. It failed to exercise effective control over its membership in ensuring
that their conduct was lawful and did not endanger the lives of others. It
encouraged and assisted non-striking workers to go to the shafts in
circumstances where there was a real danger that they would be killed or
injured by armed strikers.

14)

Individual strikers and loose groupings of strikers promoted a situation of

conflict and confrontation which gave rise, directly or indirectly, to the deaths
of Lonmins security guards and non-striking workers and to the injuries
sustained by Lonmins security guards and non-striking workers and
endangered the lives of the non-striking workers who were not injured.

560

CHAPTER 27

CONCLUDING REMARKS

The Fear Factor

During the course of the hearings it was apparent to the Commission that what may
be described as a fear factor was operating.

For example, Lonmin refused to

disclose the name of the person who interpreted from Fanagalore into English during
the negotiations between Lieutenant Colonel McIntosh and the leaders of the
strikers. Some witnesses appeared reluctant to tell the Commission the full story for
fear of reprisals. This apparent fear was understandable in view of the fact that
several killings took place before and during the sittings of the Commission which
gave rise to a justifiable suspicion that the motive therefor was to prevent the
persons killed from giving evidence.

561
B

1)

Violence on the part of the strikers

This report would not be complete without a condemnation in the strongest

terms of the violent manner in which the strike was sought to be enforced,
and the brutality of the attacks upon those persons who suffered injuries and
who died prior to 16 August 2012. Whilst the strikers aver that they first took
up arms to protect themselves against the attack by NUM, a version which
the Commission has found to be untrue, as set out above, they have not
placed any evidence before the commission to explain why they found it
necessary to resort to violence to achieve any of their aims.

2)

The gratuitous violence of the attacks upon the deceased security officers
and Lonmin employees, Mr Fundi, Mr Mabebe, Mr Mabelane, and Mr Langa
and the number and types of injuries to their bodies as seen in the images
and as detailed in the post mortem reports, must be as distressing to their
families as to the families of the deceased who were killed on the 13 th and
the 16th in encounters with the Police.

3)

So too with the attacks upon employees who sustained injuries in

circumstances where they did nothing to provoke the situation but simply
reported for work as urged to do by their employer.

4)

In particular the burning of the vehicles on the 12 th and the 14th must, in the
Commissions view, have been premeditated, because of the unlikelihood

562
that on both days the strikers came upon the incendiary material at the
scene to start the fires.

5)

The fact that the strikers armed themselves with sharp weapons on the 12 th
both on their way to the NUM offices and on their way to K4 shaft, and did
not hesitate to use the weapons in unprovoked attacks upon Lonmin
Security officers and civilian employees, must point to an intention on their
part to use violence at every instance to promote their cause.

6)

While not detracting at all from the criticisms of the actions of the SAPS, the
taking up of arms and the use of violence by the strikers was an important
contributory fact to the situation at Marikana developing as it did. It alerted
the police to the type of criminal acts they were required to deal with and
precipitated a police presence in addition to Public Order Policing. It was
also an indication of the lengths the strikers to which were prepared to go, to
enforce their demands.

7)

It appears from the evidence that the taking up of arms and the violence
perpetrated by the strikers was partly responsible for the reluctance on the
part of the employer to engage in any manner whatsoever, whilst they
remained armed .

8)

Whilst there exist adequate mediation and negotiation channels to enable

issues to be resolved in matters of protests, strikes and stand offs, it might
be a

salutary lesson, for the citizens of this country to take away from

563
Marikana, that the taking up of arms and the resorting to violence is neither
constructive nor appropriate in protecting and enforcing ones rights.

Public perception of the SAPS

9)

In his concluding remarks at the end of the oral hearings of the Commission
Mr Budlender SC quoted the following passage from the Stonechild Report
at page 207 which reads as follow:

Certainly the Saskatoon Police Service must treat its

members with respect and dignity and observe the
procedural and substantive protections of the law.

If,

however, the Saskatoon Police Service becomes an

advocate for its members it assumes a role that is antithetical
to its responsibility to the public. In assuming such a partisan
rule the Saskatoon Police Service contributes to a public
perception that police cannot police themselves and that
complaints against the police are futile.870

10)

Mr Budlender submitted that this is a very telling observation which is very

much applicable to the response the SAPS adopted to the allegations
against it which is encountered in this Commission.

The Commisson

agrees.

870

Reports of the Commission of Inquiry into matters relating to the death of Neil Stonechild, 2004, p 207

564
11)

The recommendations of the Commission will, it is hoped, help the SAPS to

provide a policing service within the constraints of the Constitution and the
law.

10)

Hopes for the future

The Commission endorses the following comments in the Heads of

Argument submitted on behalf of SAPS:

South Africa should not have another Marikana. The loss of

lives of the strikers, the members of the police, security
personnel of Lonmin and employees of Lonmin is to be
deeply regretted.

The injuries sustained by some of the

strikers are also regrettable. Damage to property should not

follow expression of any civil disaffection.

Bearing arms

against a lawful authority should provoke widespread

outrage. A career in the police service should not be a death
warrant.

Those who are found to have been culpable in

relation to the criminal acts in the period 9 to 16 August 2012

in Marikana must bear the consequences of their conduct.

565

566
ANNEXURE A

RULING ON MR XS EVIDENCE

IN THE MARIKANA COMMISSION OF INQUIRY

(HELD AT CENTURION)

In re:

The application by SAPS to present certain oral evidence in camera and by

video link

RULINGS

The Chairman:-

Introduction

[1]

The South African Police Service (to which I shall refer in what follows as the
SAPS) has brought an application to present in camera and by video link
oral evidence to be given by a witness described as Mr X. Unsigned and
unattested copies of statements purporting to have been made by him have
been handed in as exhibits.

567
[2]

The evidence leaders supported the application in the main but suggested
that the rulings sought should be amplified in certain respects. As these
modifications have been accepted by the SAPS, I shall in referring to the
rulings sought deal with them as modified in accordance with the evidence
leaders suggestions.

[3]

The rulings which the SAPS requests me to make are as follows:-

1.

That the evidence of Mr X be presented in camera and by video link.

2.

That at all times during the testimony of Mr X, one of the evidence

leaders shall be present in the room from which Mr X testifies.

3.

That only the commissioners, legal representatives and accredited

media representatives shall be present in the auditorium during the
testimony of Mr X.

4.

That at least two weeks prior to the commencement of the testimony of

Mr X, the SAPS legal representatives shall -

(a)

disclose the name of Mr X to the evidence leaders and the legal

representatives of all the parties;

(b)

provide the evidence leaders and the legal representatives of

the parties with a photograph of Mr. X; and

568
(c)

indicate to the evidence leaders and the legal representatives of

the parties all points at which they have been able to identify Mr
X on video footage of the events during the period 13 to 16
August 2012.

5.

That the details in paragraphs 4(a) to (c) above shall be disclosed only to the
commissioners, the evidence leaders and to the legal representatives who
require
the information in order to obtain instructions from their clients.

6.

That neither the name nor any information that may reveal the identity of Mr X
shall be disclosed further by any party other than the SAPS save for the
purpose of obtaining instructions.

7.

That members of the public may listen to the audio transmission of the

testimony of Mr X in the overflow room.

8.

That members of the media may not publish the name of Mr X or any other
information which may reveal his identity.

9.

That all video recordings of the evidence of Mr X must be blurred or blacked

out so as to not disclose his identity.

The case sought to be made out by the SAPS

569
[4]

As is apparent from the supporting and replying affidavits filed by Mr. Frikkie
Pretorius, the attorney of record acting on behalf of the applicant, and further
confirmatory affidavits by Brigadier Van Zyl, the Co-ordinator of the Task
Team appointed to investigate cases reported since 8 August 2012 relating to
the unrest at Marikana, and Mr X himself the orders claimed are primarily
aimed at protecting the lives of Mr X and members of his family by withholding
his visual image and identity from the public.

[5]

According to Mr. Pretorius Mr. X will testify about the events at Marikana on
matters relating to -

(a)

the organizing and planning of the strike;

(b)

the intimidation and killing of employees who were unwilling to

participate in the strike;

(c)

the march to the offices of NUM on 11 August 2012;

(d)

the killing of the two LONMIN security employees on 12 August 2012;

(e)

the events of 13 August 2012 during which two members of the SAPS
were killed and one was seriously injured;

(f)

the killing of Mr Isaiah Twala on 14 August 2012;

570
(g)

participation in rituals in preparation for a confrontation with the Police;

(h)

a plan to attack the Police on 16 August 2012.

and

[6]

Mr Pretorius also states that Mr. X will refer to persons who are facing criminal
charges arising from the events in Marikana and who are presently on bail
and will also refer to persons who are still being sought by the Police relating
to criminal conduct of some individuals in such events. Mr Pretorius says that
he has been advised that some of the persons who will be referred to in Mr.
Xs evidence attend the proceedings of the Commission.

[7]

Mr. X is presently in a witness protection programme in terms of the Witness

Protection Act 112 of 1998 and is assisting the NPA in relation to the events
surrounding the killings and damage to property by the strikers during the
strike at the Lonmin Mine in August 2012.

[8]

The evidence shows that various potential witnesses have before and since
the appointment of the Commission on 26 August 2012 been murdered in
circumstances giving rise to a strong suspicion that it was done to prevent any
or all of them giving evidence before the Commission and in any possible
criminal proceedings.

[9]

These persons include

571

(a)

Mr. Isaiah Twala, a shop steward of NUM, who was hacked to death on
14 August 2012 near the koppie at Marikana where the strikers were
assembled; and

(b)

Mr Daluvuyo Bhongo, a NUM member and a potential witness before

the Commission, who pointed out relevant places during an inspection
in loco conducted by the Commission and who was killed in his room at
the Wonderkop Hostel on 5 October 2012

[10]

It is against this background that the SAPS and Mr. X fear that should Mr. X
be required to tender his evidence in open forum at the Commission, his life
and possibly also those of his family may be at risk. The SAPS avers further
that the criminal investigation and prosecutions arising from the events at
Marikana will in that event be undermined.

[11]

In addition to the killings to which Mr. Pretorius refers it is in my view relevant

to mention that it is common cause that two persons who appear to have
reported for work at the Karee shaft on the evening of 12 August 2012 and
thus have indicated an unwillingness to join in the unprotected strike in which
strikers were participating were murdered. It is thus clear that a reasonable
possibility exists that some of the strikers were prepared to go to the lengths
of murdering their colleagues in order to enforce the unprotected strike.

572
Opposition to the orders sought

[12]

The application is opposed on behalf of the Injured and Arrested Persons, the
amilies of the three mineworkers who were killed on 13 August 2012, the
families of the 34 mineworkers who were killed on 16 August 2012 and
AMCU.

[13]

Their opposition is mainly based on the following grounds, namely -

(a)

that permitting the testimony of Mr. X in camera will be inconsistent

with existing common law principles relating to procedural fairness and
the testing of evidence through full and effective cross examination;

(b)

that it will breach the principles of openness and transparency;

(c)

that it will infringe the rights of victims and members of the community
to participate in the proceedings;

(d)

that it will infringe the right of access to courts in section 34 of the

Constitution, which guarantees a public hearing and the principle of
open justice;

(e)

that it is inconsistent with international law; and

(f)

that it is in any event impractical and adverse to the mandate of the

Commission.

573
[14]

Most, if not all, of the principles on which these grounds of opposition are
based are well known and accepted both in our law and in international law.
They are subject, however, to exceptions where there are special
circumstances or where it is strictly necessary to have proceedings closed
(see, eg., section 153 of the Criminal Procedure Act 51 of 1977 and
section 16 of the Supreme Court Act 59 of 1959).

[15]

This is well illustrated in, eg., Independent Newspapers (Pty) Ltd v Minister
for Intelligence Services: In re Masetlha v President of the RSA 2008 (5)
SA 31 (CC) at 50A, para [45] where Moseneke DCJ said:

The right of the media or public to attend, receive and impart workings
of a courtroom may be attenuated by a court where it exercises its
inherent power to regulate its own process under s 173 of the
Constitution. If in so doing it impinges upon rights entrenched in ch 2
of the Constitution, [it must ensure that] the extent of the impairment of
rights is proportional to the purpose the Court seeks to achieve.

It

may be added that the right to an open court hearing and the right to
report on it do not automatically mean that court proceedings must
necessarily be open in all circumstances. There may be instances
where the interests of justice in a court hearing dictate that oral
evidence of a minor or of certain classes of rape survivors or
confidential material related to police crime investigation methods or to
national security be heard in camera. In each case, the court will have
to weigh the competing rights or interests carefully with the view to

574
ensuring that the limitation it places on open justice is properly tailored
and proportionate to the end it seeks to attain. In the end, the contours
of our constitutional rights are shaped by the justifiable limitation that
the context presents and the law permits.

In my view this exposition is also capable of application to commissions of inquiry.

Relevant legal provisions regarding the power of a chairman of a commission

to grant any or all the orders sought

[16]

Section 4 of the Commissions Act 8 of 1947 states that all the evidence and
addresses must be heard in public subject to this proviso:

Provided that the chairman of the commission may, in his discretion,

exclude from the place where such evidence is to be given or such
address is to be delivered any class of persons or all persons whose
presence at the hearing of such evidence or address is, in his opinion
not necessary or desirable.

[17]

Regulation 10 of the Regulations relating to the Commission reads as follows:

Where, at the time of any person presenting information to or giving

evidence before the Commission, members of the general public
[obviously in terms of section 4 of the Commissions Act, 1947] are or
have been excluded from attendance at the proceedings of the

575
Commission, the Chairperson may, on the request of such a person,
direct that no person shall disclose in any manner whatsoever the
name or address of such person or any information likely to reveal his
or her identity.

[18]

Also relevant in this regard, in view of the fact that Mr X is under witness
protection, are the provisions of sections 18 and 19 of Witness Protection Act
of 1998, which read as follows:

Publication of information concerning protected person

18.

Notwithstanding any other law, the presiding officer -

(a)

at any proceedings [which in terms of the definition of

proceedings in section 1 includes proceedings before a
commission] or at civil proceedings in which the protected
person is a party or a witness;

(b)

...........

must make an order prohibiting the publication of any information,

including any drawing, picture, illustration, painting, photograph,
whether produced through or by means of computer software on a
screen or a computer print-out as contemplated in the Films and
Publications Act, 1996 (Act 65 of 1996), or not, pamphlet, poster or
other printed matter, which may disclose

576

(i)

the place of safety or location where he or she is or has been

under protection or where he or she has been relocated in terms
of this Act;

(ii)

the circumstances relating to his or her protection;

(iii)

the identity of any other protected person and the place of safety
or location where such person is being protected; or

(iv)

the relocation or change of identity of a protected person,

unless the Director [for Witness Protection] satisfies the presiding

officer concerned that exceptional circumstances, which are in the
interest of justice, exist why such an order should not be made.
Protected person not obliged to disclose certain information

19.

Notwithstanding any other law, no protected person -

(a)

when giving evidence or producing any book, record, document

or object in his or her possession or under his or her control in
any proceedings or in any civil proceedings before a court;

(b)

.......... ,

shall be obliged to disclose any information referred to in section 18.

577
[19]

Relying on regulation 19 which provides for the Commission to determine its

own procedure, counsel for the SAPS submitted that the Commission is
empowered to direct, as a matter of procedure, that the evidence of Mr X be
presented from a remote location and through video link.

[20]

It was argued on behalf of the family of one of the mineworkers killed on 16

August 2012, relying on Phillips v NDPP 2006 (1) SA 505 (CC) and S v
Pennington 1997 (4) SA 1076 (CC), that the powers conferred in regulation
19 cannot be exercised to provide for the video link, as such a ruling would, it
was contended, circumvent section 4 of the Commissions Act. This
submission is in my view not supported by the decisions on which reliance
was placed. In those decisions it was held that the High Courts inherent
powers envisaged in section 173 of Constitution, were intended to meet
extraordinary procedural situations, usually where there was a legislative
lacuna in the process and as a special and extraordinary power and not
where a specific law directly provides for a given situation. This is not the
situation here. Section 4 of the Commissions Act is not a law which provides
fully and effectively for the power assigned. On the contrary section 1(1)(b) of
the Commissions Act provides for the promulgation of regulations in respect
of commissions to which the Act is made subject and section 19 of the
Regulations applicable to this Commission provides, as has been seen, for
the Commission to determine its own procedure

[21]

It was contended by counsel for the Injured and Arrested Persons, the
families of the three mineworkers killed on 13 August 2012, the families of 33

578
of the mineworkers killed on 16 August 2012 and AMCU that a direction or
order that a witness may so give evidence can not be regarded as a
procedural matter. I do not agree. It is apposite to refer to what Vieyra J held
in Ex parte Millsite Investment Co (Pty) Ltd 1965 (2) SA 582 (T) in relation
to the High Courts inherent powers to regulate its own procedure. At 585H he
said:

The inherent power claimed is not merely one derived from the need to
make the Court's order effective, and to control its own procedure, but
also to hold the scales of justice where no specific law provides directly
for a given situation ...... The outer reaches of the power do not have to
be explored now. All that matters at present is this. The power is wide
enough, it seems, to encompass directions concerning the search for
and collection of evidence that is needed in litigation.

[22]

I agree with the submission made by on behalf of the SAPS that it is

competent for the Commission to exercise its powers to determine its own
procedure by providing for the reception by it of evidence by video link in
appropriate cases. Such a determination would fall under the rubric of
procedure because, as counsel for the SAPS argued, it would deal with how
the evidence would be received by the Commission.

[23]

My fellow commissioners and I have decided to make the procedure set out in
section 158(2) and (3) of the Criminal Procedure Act 51 of 1977 applicable

579
mutatis mutandis in the proceedings of the Commission. These subsections
read as follows:

(2) (a) A court may, subject to section 153, on its own initiative or on
application by the public prosecutor, order that a witness or an
accused, if the witness or accused consents thereto, may give
evidence by means of closed circuit television or similar electronic
media.

(b) A court may make a similar order on the application of an accused

or a witness.

(3) A court may make an order contemplated in subsection (2) only if

facilities therefor are readily available or obtainable and if it appears to
the

court that to do so would -

(a)

prevent unreasonable delay;

(b)

save costs;

(c)

be convenient;

(d)

be in the interest of the security of the State or of public safety or

in the interests of justice or the public; or

580
(e)

prevent the likelihood that prejudice or harm might result to any

person if he or she testifies or is present at such proceedings.

[24]

It can, we think, scarcely be contended that an evidentiary provision that

applies in a criminal trial cannot appropriately be applied in a commission
such as this.

[25]

We were also influenced in coming to this decision by the consideration that

similar provisions exist in other countries whose laws of evidence closely
resemble ours (see in this regard what is said by the South African Law
Commission in its report: The use of Electronic Equipment in Court
Proceedings (Postponement of Criminal Cases via Audiovisual Link),
2003, at pp. 17 et seq, as well as Audio Links and Audio Visual Links in
Proceedings, a paper published by the New Zealand Ministry of Justice in
November 2008 at pp. 18 - 21 and section 105 of the New Zealand
Evidence Act 2006 and section 13(1) of the Criminal Evidence Act, 1992,
of the Republic of Ireland). See also the as yet unreported judgment of
Satchwell J in Uramin Incorporated in British Columbia trading as Areva
Resources Southern Africa v Carolyn Perie [2013] ZAGPJHC delivered on
11 December 2013 and available on the website of the Southern African
Legal Information Institute. In that case the learned judge granted an
application for the evidence of two witnesses, one in Paris and the other in
Dubai to be heard through video conferencing. She quoted with approval (at
paragraph 30 of her judgment) comments made by Lord Carswell in
paragraph 10 of his speech in Polanski v Conde Nast Publications [2005]
UKHL 10, a decision, as the citation indicates, of the House of Lords to the

581
effect that video conferencing is an efficient and an effective way of providing
oral evidence both in chief and in cross examination as that this is simply
another tool for securing effective access to justice.

[26]

The determination by the Commission to permit reception of evidence by

audio visual link renders it unnecessary for me to decide whether a power to
receive evidence in that way can be implied, as the evidence leaders
contended, from the empowering provisions set out in paragraphs [16], [17]
and [18] above.

[27]

I am accordingly satisfied that I have the power to grant all the rulings sought.

Merits

[28]

I now turn to consider whether the SAPS has succeeded in showing that the
relief they seek should be granted.

Evidence by way of a video link?

[29]

In my opinion a cogent case has been made out by the SAPS for the
evidence of Mr. X to be given by means of a video link.

[30]

If he has to travel to where the Commission is sitting from the place where he
is staying under witness protection and to return thereto when he has finished
testifying there is a real risk that his whereabouts may be discovered and that

582
he and/or members of his family may be harmed or even killed. I base this
finding on the history of assassinations set out in paragraphs [8] and [9]
above.

[31]

If he is permitted to testify by means of a video link it will be possible for his

demeanour to be observed. His evidence will be as effectively received as if
he were present in the auditorium. It is possible, however, that if he is
permitted to testify in this way he will be more inclined to provide false
evidence. According to the South African Law Commission Report to which I
have referred (in paragraph [25]) there are conflicting views as to whether a
witness who is permitted to give evidence from a remote location may be
more inclined to provide false evidence or whether the process of justice will
be facilitated rather than hampered where such a procedure is employed. In
the New Zealand Report it is stated (at p. 21) the New Zealand Law
Commission has indicated that there is no empirical evidence to support the
view that witnesses are likely to lie if confronted face to face by the accused
nor to suggest that alternative modes of giving evidence detract from the
rational determination of the facts or from procedural fairness. However,
research has only begun to be undertaken in this area and it remains
empirically uncertain as to whether remote witnesses are more or less likely to
tell the truth than witnesses who are physically present at court.

[32]

I think the uncertainty which exists on this point is not a reason to refuse as a
matter of principle to allow the use of audio visual links in judicial proceedings
or before a commission.

583

[33]

It is a reason, however, for a court or a commission to take this factor into

consideration when assessing the value to be attached to evidence given by
means of an audio visual link.

[34]

Another factor to be borne in mind when assessing evidence given in this way
is the absence of advantages which are present when evidence is given in
public. These were said by Wigmore (On Evidence (Chadbourn Revision
1976), vol 6, para 1834) quoted by Ackermann J in S v Leepile (1) 1986(2)
SA 333 (W) at 338A) to include the production in the witnesss mind a
disinclination to falsify; ..... by stimulating the instinctive responsibility to public
opinion, symbolised in the audience, and ready to scorn a demonstrated liar.
The same point was made by Blackstone (3 Commentaries at 373 (1768))
in a passage also quoted by Ackermann J in Leepile (at 338G) where he said
that a witness may frequently depose that in private,

which he will be

ashamed to testify in a public and solemn tribunal.

[35]

These disadvantages must be taken into account when the weighing up of the
conflicting rights and interests to which Moseneke DCJ referred in the
Independent Newspapers case, supra, takes place. In the present case
they are substantially outweghed by the positive advantage accruing from the
protection of the rights of Mr X and his family to life and physical security.

In camera hearing?

584
[36]

The principles to be applied by a chairman of a commission to which the

Commissions Act applies in deciding whether to exercise the power conferred
by section 4 of Act are not spelt out, but in my view it is appropriate to refer by
way of analogy to the principles applied by courts when dealing with
applications for in camera hearings in criminal trials in terms of section 153(2)
of the Criminal Procedure Act and section 16 of the Supreme Court Act.

[37]

The leading case on in camera hearings in England is Scott v Scott 1913 AC

417 (HL). This case has often been cited with approval in South Africa (see,
eg., S v Leepile, supra, and S v Manqina 1994(2) SACR 692 (C) and the
cases referred to therein).

[38]

In his speech in Scotts case, supra, the Lord Chancellor, Viscount Haldane,
referred (at p. 437) to what he called the broad principle .... that the Courts of
this country must, as between parties, administer justice in public (as section
4 of the Commissions Act enjoins commissions to which the Act applies to
do). He went on to say , however, that this principle must yield to a yet more
fundamental principle that the chief object of courts of justice must be to
secure that justice is done.

[39]

It follows then if a potential witness fears that he will suffer harm if he testifies
and there are good grounds for holding that his fears are realistic then he
ought to be protected against unlawful reprisal. Elementary considerations of
fairness, justice and humanity dictate this (see: Leepile, supra, at 340H). If
such protection is not forthcoming justice will not be able to be done.

585

[40]

The test for what I have referred to as good grounds for holding that the
witnesss fears are realistic was held to be a reasonable possibility of harm.
This was based on an interpretation of the wording of section 153(2) of the
Criminal Procedure Act. These words are not used in section 4 of the
Commissions Act, but in my view they provide a satisfactory test for
applications in cases such as this..

[41]

Ackermann J also held (at 340D) that the fact that the order granted may be
ineffective actually to protect the witness from harm is not in itself a reason to
refuse to make such an order. The ultimate object of the order he said (at
340E), is after all to ensure, as far as it is possible, that a witness will testify
free from the fear of reprisals, free from the inhibition that such fears may
bring and to ensure that his testimony is not distorted by such fear. The
degree to which the order (however ineffective it might be in the result to
actually protect the witness from harm) will alleviate the fear of the witness,
will vary from case to case. The fact that it alleviates such fear, although in the
result it may prove ineffective, is something which favours its granting.

[42]

In the present case I am satisfied that, if one has regard to the murders
committed since the unprotected strike began there is a reasonable possibility
that Mr. X and/or members of his family will be killed or at least suffer serious
harm if a ruling is not made excluding the public from the chamber where he
is testifying and preventing his identity and whereabouts while he is subject to
the witness protection programme from being revealed.

586

[43]

The extent to which the open court principle will be attenuated if the rulings
sought are granted is relatively minor because members of the public will still
be able to hear what Mr. X says and the media will be able to report it. Only
his identity and present whereabouts will not be revealed. Again in the
weighing up process referred to, the rights of Mr. X and his family upheld by
the exclusion of the public and restrictions on reporting far outweigh any rights
of the parties objecting which would be attenuated by the rulings.

Exclusion of the parties

[44]

Paragraph 3 of the rulings sought provides for a ruling that only the
commissioners,

the

legal

representatives

and

accredited

media

representatives (and not the parties) may be in the auditorium during Mr. Xs
testimony. Paragraph 7 provides for members of the public (which in this case
would include the parties) to be able to listen to the audio transmission of his
testimony in the overflow room. The parties are thus equated with the public.
Normally when an in camera order is made in a court the public are excluded
but not the parties. No evidential basis has been placed before the
Commission to justify the exclusion of the parties. When counsel for the SAPS
was asked how his client justified the exclusion of the families of the
deceased mineworkers his answer was that as this is a commission and not a
court they are not parties. While it may be technically correct that they are not
parties in the full sense of the word, that is not the way the matter has been
approached since the Commission began its work. In fact the ruling

587
suggested by the evidence leaders which the SAPS now seeks speaks of the
parties. The families and the injured and arrested persons have been
permitted, along with the SAPS, Lonmin and the trade unions and Lt. Baloyi, a
policeman injured on 13 August 2012 and other entities interested in the
matters covered by the Commissions terms of reference, to participate fully in
the proceedings by calling witnesses and cross-examining witnesses called
by others. The Commission has because of the way the terms of reference
are framed, adopted a quasi-adversarial procedure. To regard them now as
not being parties is to uphold the sort of technicality that gives lawyers a bad
name.
[45]

There is no sensible or realistic basis for excluding the injured and arrested
persons from the auditorium. If Mr. X is telling the truth it is overwhelmingly
probable that most of them already know who he is. This is because
according to his statements he played a significant role in some at least of the
events in which the strikers were involved. In addition the order sought
permits the legal representatives of the parties to disclose Mr. Xs name and
other information that may reveal his identity to their clients for the purpose of
obtaining instructions, As I see the matter, counsel for the injured and
arrested persons will be acting in accordance with his duty as their counsel if,
as he says he will, he reveals Mr Xs and photograph to all his clients requests
such information as they may have to enable him to cross-examine Mr X
thoroughly. If this happens it will enable the Commission properly to assess
his credibility and the truthfulness of his evidence, In the circumstances no
purpose will be served by excluding them from the auditorium.

588
[46]

As far as the families are concerned, the SAPS has not established facts to
show that no purpose will be served by not allowing them to see his face
when he testifies. As appears from what has been said above, it is for the
party seeking the exclusion to establish that it should be ordered and that
good reasons exist therefor. Counsels contention that they are not parties
must, as I have said, be rejected.

[47]

The possibility cannot be excluded that some at least of the family members
who attend the sittings of the Commission know Mr. X (who, for all we know,
may come from the same area as they do) and may be able to provide their
counsel with information that may reflect on his credibility. The SAPS have not
endeavoured in their affidavits to exclude this possibility, which accordingly
cannot be dismissed without more.

[48]

There is another factor which which must also not be lost sight of. Since this
Commission began its work it has been accepted that the families of the
deceased sgtrikers have an interest in learning the circumstances in which
their breadwinners died. The State has paid for their transport from the remote
areas where they live to enable them to attend the sittings of the Commission
and they have been accommodated at State expense, first at Rustenburg and
later at Centurion, while the Commission has been doing its work. To treat
them now simply as members of the public and not as parties with a special
interest in finding out what happened would be contrary to the spirit in which
they have been treated from the beginning.

589
Memorandum submitted by a large group of persons referring to themselves
as Concerned Members of the Community

[49]

Shortly after having heard final submissions on behalf of the applicant and the
parties on 1 April 2014, a fairly large group of persons gathered in the foyer in
front of the Commissions venue, singing and waving placards supporting the
opposition of this application.

[50]

Having been informed that they insisted on handing me a memorandum I

adjourned the proceedings, and approached the group of persons where a
memorandum purporting to be a memorandum of some Concerned Members
of the Community was handed to me, and I undertook to consider it carefully
before making my decision.

[51]

In accordance with the undertaking I gave I have considered the seven points
made in the memorandum. I now proceed to deal with them in the paragraphs
that follow. I wish to point out, however, that this is a most unusual procedure
and therefore that I am dealing with the memorandum, as I undertook to do,
must not be regarded as having seen as a precedent.

[52]

The first related to the issue of the witness called Mr X being given special
treatment [by] the Commission and called upon the Commission to reject
such special treatment.

590
[53]

The second was to the effect that the concerned members of the community
felt that Mr X must give his evidence in the same way as other witnesses who
were also afraid were not given such special treatment.

[54]

The third was that if he is telling the truth he has a right to testify.

[55]

The fourth was to the effect that some persons were subpoenaed by the
Commission and displayed in public against their will and that one of whom
committed suicide afterwards.

[56]

The fifth amounted to a complaint that it is not fair for the SAPS to be the one
who are looking after Mr X so that he can tell lies on their behalf.

[57]

The sixth indicated that there is no reason for Mr X to be scared of the people
who regularly attend the Commission as parties.

[58]

The seventh was that the people whose relatives were killed by Mr X want to
see him and to hear him explaining how their relatives were killed. As will be
seen from what I have said above I do not think that the families should be
prevented from seeing Mr. Xs face on the the television screen.

[59]

As regards the first point the question whether he should be given special
treatment, is a question (as is apparent from the extensive submissions
made for and against the application) that? has to be determined on the basis
of the legal principles with which I have set out and applied to the facts of the
present case.

591
[60]

As regards the second point it is true that no other witnesses have to date
been granted such treatment but this is because no request was received
from either the evidence leaders or the representatives representing any of
the parties that they be treated in this manner.

[61]

As regards the third point the question whether or not Mr X will be telling the
truth is a question which the Commission will have to decide after his
evidence has been weighed up against other evidence that may contradict
his.

[62]

As regards the fourth point the Commission was not told that witnesses who
were subpoenaed and requested publicly to return on a later date were called
before against their will.

[63]

As regards the fifth point there is no basis for the Commission to hold that the

SAPS intends to use Mr X to tell lies on their behalf.

[64]

I have dealt fully with the sixth point in what I have said above.

[65]

I make the following rulings:-

1.

THAT the evidence of Mr. X be presented in camera and by video link.

2.

THAT at all times during the testimony of Mr X, one of the evidence

leaders shall be present in the room from which he testifies.

592
3.

THAT only the commissioners, the parties, the legal representatives,

the evidence leaders and accredited media representatives shall be
present in the auditorium during the testimony of Mr X.

4.
of Mr

THAT at least two weeks prior to the commencement of the testimony

X, the SAPS legal representatives shall -

(a)

disclose the name of Mr X to the evidence leaders and the legal

representatives of all the parties;

(b)

provide the evidence leaders and the legal representatives of

the parties with a photograph of Mr. X; and

(c)

indicate to the evidence leaders and the legal representatives of

the parties all points at which they have been able to identify Mr
X on video footage of the events during the period 13 to 16
August 2012.

5.

THAT the details in paragraphs 4(a) to (c) above shall be disclosed

only to the commissioners, the evidence leaders and to the legal
representatives who require the information in order to obtain
instructions from their clients.

6.

THAT neither the name nor any information that may reveal the identity
of Mr X shall be disclosed further by any party other than the SAPS
save for the purpose of obtaining instructions.

593

7.

THAT, subject to the rulings made in paragraphs 4, 5 and 6 above, in

terms of sections 18 and 19 of the Witness Protection Act 112 of 1998,
the following shall be prohibited -

(a)

the publication of any information, including any drawing,

picture, illustration, painting, photograph, pamphlet, poster or
other printed matter in whatever form, which may disclose the
place of safety or location where Mr X is or has been under
protection or where he has been relocated in terms of this Act;

(b)

the circumstances relating to his protection;

(c)

the identity of any other protected person and the place of safety
or location where such person is being protected or the
relocation or change of identity of a protected person; or

(d)

any questioning of Mr X which can lead to a disclosure of any

the matters referred to in paragraphs (a), (b) and (c).

8.

THAT members of the public may listen to the audio transmission of

the testimony of Mr X in the overflow room.

9.

THAT members of the media may not publish the name of Mr X or any
other information which may reveal his identity.

594

10.

THAT all video recordings of the evidence of Mr X must be blurred out

so as not to disclose his identity.

11.

THAT leave be granted to any interested person to seek an

amendment of these rulings should circumstances show that any such
ruling may be impracticable or incapable of proper implementation or
circumstances may emerge which call for a reconsideration of these
rulings.

....................
I G FARLAM
CHAIRMAN : MARIKANA COMMISSION OF INQUIRY

595
ANNEXURE B

Legislation relevant to the Commission of Inquiry

In so far as the Commission is enjoined to investigate the conduct of the

SAPS with a view to, inter alia, the nature, extent and application of any
standing orders, policy considerations, legislation or other instructions in
dealing with the situation which gave rise to this incident, the following
orders, policies, legislation and instructions have been identified as being
relevant to the Commissions inquiry:-

Standing Order (General) 2621

(1)

In terms of paragraph 1 of the Order its purpose is to regulate crowd

management during gatherings and demonstrations in accordance
with the democratic principle of the Constitution and acceptable
international standards. It determines that its provisions must be
read in conjunction with the Regulations of Gatherings Act 205 of
1993. It emphasises the obligation on SAPS to act proactively in
attempting to identify and diffuse possible conflict before it escalates
to violence.

1.

Exhibit SS2

596
(2)

In paragraph 3 it deals, inter alia, with pro-active conflict resolution,

threat assessment based on information received, pre-planning of
operations, briefing of members and execution.

(3)

Other relevant sections include

(a)

threat assessment (para 7);

(b)

the appointment of a CJOC who takes overall responsibility for

an operation (para 8);

(c)

pre-planning (para 9);

(d)

briefing (para 10);

(e)

execution of a plan (para 11);

(f)

the use of force and provides that the use of force must be
avoided at all costs and members deployed must display the
highest degree of tolerance and the need for ongoing
negotiations between SAPS and the leadership element of
demonstrators (para 11);

(g)

the use of force if it is unavoidable to meet the purpose of the

offensive actions to de-escalate the conflict with the minimum
force to accomplish the goal, measured by the results of the

597
operation in terms of cost, damage to property, injury and loss
of life, to give warnings before the use of force and force to be
discontinued once the objective has been met (para 11(3));
(h)

the prohibition or restriction in crowd management operations

of the use of 37mm stoppers, the use of firearms and sharp
ammunition, the use of rubber bullets (para 11(4);

(i)

the use of force only on the command or instruction of the

CJOC or operational commander subject to common law
principles of self or private defence (para 11 (5) and (7);

(4)

(j)

reporting and record keeping (para 12);

(k)

debriefing (para 13).

As will be pointed out later in this report, there is a difference of

opinion amongst some of the officers as to the applicability of this
Order to the Marikana operation.

Standing order 251 (Use of firearms)2

(a)

This standing order deals with the circumstances under which a

member may use his or her firearm and the fact that members

2.

Exhibit ZZZ8

598
should

be

adequately

armed

to

deal

with

the

prevailing

circumstances.
(b)

Paragraph 251.2 provides that a member must not, when necessary,

hesitate to use his or her firearms.

(c)

Paragraph 251.8 provides that an officer (or senior member) on a

scene should give all his attention to supervising the members under
his command. He should not (except under extreme necessity) fire
himself, but should command a specific member to fire a specific
number of shots at a specific target.

(d)

Paragraph 251.9 provides that a commander shall cause members

to fire at the leaders of a mob. They must, however, take care that
an innocent person who is not identifying himself with the mob is hit.

(e)

Paragraph 251.15.1 provides that as soon as a weapon is

discharged or, if an officer instructed that a weapon be discharged,
the member concerned shall immediately report that fact to his
immediate commander.

(f)

Paragraph

251.15.5

deals

with

the

comprehensive shooting incident reports.

requirement

to

file

599
2.

Ministry of Police: Policy Guidelines: Policing of Public Protests,

Gatherings and major events3
(a)

This policy guideline was signed on 29 August 2011.

(b)

It aims to provide a framework with guidelines for police members in

reviewing and aligning operational strategies and instructions
applicable on policing of public protests and related major events.

3.

National Instruction of 2012 Crowd Regulations and Management

during Public Gatherings and Demonstrations

(a)

This is a draft national instruction.

(b)

Key provisions are the following:-

(i)

Paragraph 12 which deals with briefing of members and

emphasises the role of the overall commander or designated
officer on, inter alia, briefing, instructing all commanders to
furnish detailed written plans on their specific tasks, and
designating video camera operators.

3.

Exhibit R

600
(ii)

Paragraph 14 which deals with execution and the use of force

in the dispersal of crowds which must only be conducted by
those members of POP trained in crowd management an
equipped with relevant crowd management equipment and
dir\ects that, if dispersion is unavoidable, members must try to
disperse participants in the direction of a positive attraction
point - an area where participants would most likely be willing
to move to.

4.

POP Policy Document on Crowd Management4

(a)

According to the preamble to this document, the findings and report

of the Goldstone Commission as well as the provisions of the
Regulations of Gatherings Act were used to compile this document.

4.

(b)

Paragraph 2 describes the goals of public order policing.

(c)

Paragraph 3 describes the principles of crowd management.

(d)

The following paragraphs appear to be relevant:-

Exhibit FFF1

601
(i)

Paragraph 3.2 which deals with the legal aspects of crowd

management.

(ii)

Paragraph 3.3 which deals with appropriateness.

(iii)

Paragraph 3.4 which sets out the principle of optimisation

(optimal use of personnel and resources) and the necessity of
sufficient intelligence.

(iv)

Paragraph 3.5 which deals with proportionality, and the need

for proper planning and the use of less lethal means.

(v)

Paragraph 4 which deals with preparedness for crowd

management operations, levels of responsibility within SAPS
and pre-planning and, furthermore, emphasises the importance
of information and intelligence gathering and also incorporates
the need for threat assessment.

(vi)

Paragraph 4.3.2 which provides for the planning and

operational command of public order operations which must
always be entrusted to commanders of public order units, as
they are trained and usually experienced in such matters.

602
(vii) Paragraph 5 which deals with operation, highlights the need for
proper equipment and a detailed briefing, requires that SAPS
approach be a gradual build up from negotiation to the
implementation of defensive action to the adoption of offensive
action, emphasises the need for continuous contact with
organisers of the demonstration, deals with the requirement of
warnings, requires that the SAPS at all times make provision to
identify perpetrators during the course of action (by means of
video coverage, photographs or witness building), sets out the
need for record keeping and requires the operational
commander to appoint a record keeper and a video operator.

(viii) Paragraph 5.3 which deals with spontaneous gatherings.

(ix)

Paragraph 5.4 which deals with the use of force and highlights
that the use of force needs to be gradual, proportionate,
reasonable and minimal in order to meet objectives.

5.

Other SAPS prescripts include the following:-

(a)

the

Procedural

manual:

Public

Order

Management and Annexure A (Edition 1/2000);

Police

Information

603
(b)

the

Administrative

Directive:

Public

Order

(POP)

Division:

Operational Response Services;

(c)

the Divisional Directive XX/2012; POP Operational Standards;

(d)

the Use of force directive: Public Order Police (POP) Division:

Operational Response Services (ORS);

(e)

the Directive Guideline for armoured vehicles;

(f)

The operational Use and Maintenance of the BAT 4500 and 6000
water canon which regulates the use of water cannons during
operational deployment;

(g)

the Public Order Police (POP): Use of force during crowd

management - 3/1/5/1/174 dated 20 July 2012 which provides that
the use of force must be gradual, that it must be appropriate to the
situation and proportional to the threat, that it must also be
reasonable in the circumstances and minimal in order to accomplish
the intended objective.

It provides, furthermore, that the continuum of force is to consist of three phases,

namely

604
Phase 1

Physical presence

Phase 2

Soft skills/negotiation phase

Phase 3

Minimum force which includes tactical actions and the use of tonfa,
teargas; stun grenades, water cannons and shotgun rubber rounds
(blue and white).

605

ANNEXURE C

SUMMARY OF EVIDENCE OF MR X

---------------------------------------------

1)

Mr X a rock drill operator and member of NUM said that he was present at
the meeting on the 9th of August 2012 at Wonderkop. The purpose of the
meeting was to decide the issue of the R12 500, 00. At the time, he was
earning an amount of R6 500, 00 which he said was inadequate for the kind
of work RDOs did and the circumstances under which they worked.

decision was taken at the meeting on the 9th, that on the following day, all
the rock drill operators would come together at Wonderkop and they would
not go to work on the 10th but would march to the time office to demand the
R12 500,00.

2)

On the 10th he took part in the march to the time office. The demands, he
said, were written on a cardboard box. Five men were elected to represent
them, Bhele, Andries, a Tswana speaking and a Sotho speaking person. He
said the fifth person was himself. On their way to Roland Shaft, they came
across mine security. At that stage they were very peaceful and they were

606
not armed except that some people had some branches with them. A white
person from the employer spoke to Bhele and then went back to the office.
3)

They waited for about fifteen minutes and started proceeding towards the
offices. The police escorted them until they were right in front of the office
which was marked off with danger tape.

At that stage, the white man

emerged from the office and spoke to Bhele and to them and said that the
demand would be addressed by the union in 2013 because of the agreement
with the union and that they should all go back to work as their strike was
illegal. They did not accept this explanation and Bhele then said that this
white man was turning them into Popeyes which he understood to mean
stupid.

The person from the employer said that action would be taken

against people who were not going to go to work. Bhele then said that they
are making a decision that the night shift would not take place. He said that
they would implement the strike it by fighting and threatening and that they
were going to hit those going to work.

4)

On the 11th August 2012 and on their way to Wonderkop, they saw mine
security and NUM escorting people on their way to work at the Roland Shaft.
He was not armed at the time.

5)

At the Wonderkop stadium the decision was made that anyone that was not
armed should go and get a weapon and could buy them at Nkaneng.

607
6)

There was a discussion that NUM officials transporting people to work was
rendering the strike ineffective and weak. The decision was to go and get
weapons to arm themselves to go and kill NUM in their offices.

7)

He said once they had got weapons, they met again and made a song How
are we going to kill this NUM? We hate Zokwana. He said as they were
marching to the NUM office, they were all armed with pangas and assegais.
Some of their weapons they had brought with them and some were bought
from Ntshebe at Nkaneng. He said he bought a panga, bush knife and a
spear at Nkaneng.871

8)

He disagreed with the version of Mr Mabuyakhulu that the reason for going
to the NUM office was to ask the NUM members why they did not want the
employer to talk to them.872 He also disagreed with three reasons advanced
by Counsel for the injured and arrested persons that were put to Mr
Zokwana for comment viz. that they wanted to enquire why the union was
standing in their way; that strikers had been assaulted or forced to go to
work; and that if NUM was the only union through which could pass their
demands to the employer, then the NUM should do so even if the RDOs
were not NUM members.

9)

He said as they were proceeding to the NUM office, persons wearing

security clothes appeared from the side of the office. They heard two shots
being fired in their direction and they ran away to the mining area towards

871
872

Page 30962
Page 30963

608
the Teba offices and they went back to the place that they had originally
gathered. He saw that the people who were firing were wearing the uniform
worn by the security employed by Lonmin.873 Along the way he saw two
people who were lying there bleeding.

10)

When they gathered at Wonderkop, it was suggested that they should go to

near the koppie and this proposal was agreed to. One of the persons went
into a shack and got some water and put some intelezi into it and sprayed
the people who had walked past the place where the injured people were. 874
The purpose of the water and intelezi was to cleanse them and get rid of bad
luck since they had walked on the path of those people lying there injured.
The people had to undress their top garments, remain in their pants and
stand in a line and he sprinkled the water with intelezi on them. He said he
did not go to the line but went further up to where they were going to meet.

11)

At the koppie, Bhele said they should take off their dresses and that it was
time to get an Inyanga. The strikers agreed with the proposal. Kaizer came
up with the name of Nzabe, an Inyanga from Flagstaff. His understanding
that the Inyanga would make them brave like warriors that they were not
subject to being shot at. The Inyanga would make the firearms not to work 875
and the firearms would be locked or jammed if they were being shot at.

12)

Money was collected towards the Inyanga. Xolani and Kaizer were going to
get the transport to get the Inyanga. They went off and returned with two

873
874
875

Page 30967
Page 30972
Pages 30974 to 30975

609
boys of the Inyanga. They were told that each of the strikers was to have his
own razor blade and the men who were chosen to take off their dresses and
wear pants and be real men were the ones on whom the Inyanga was going
to work. The Inyanga wanted R 1 000,00 as a whole amount but each
person had to pay R 500,00. He said he contributed his R 500,00. It was
decided that they would look for a secluded place that was not accessible to
a car and a place was chosen on the top of the hill among the rocks and the
bushy area. The other reasons for choosing that spot was that it was not
easy to be seen and that they could see a car or the police approaching.

13)

A committee of fifteen were chosen that were going to be in charge of this

secluded place. Five were chosen from each hostel, that is eastern, western
and Karee. From the eastern hostel, there was Mbala??, Nama, Otto and
two Tswana speaking people. From the western hostel, there was Rasta or
Makhubane, Kaizer and Thusi. He could not remember the others. From the
Karee hostel there was Mambushe, Xolani, Anele and Bob. He said that
everything that was done on the koppie had to be done through this
committee of fifteen. The Inyanga would talk to the Committee and the
Committee would then convey this to the workers.

14)

They went to the secluded place and the Inyanga took out a trunk and some
rags that were in the trunk together with some bottles and the one rag had
the drawing of the lion on it. The Inyanga took out some red and yellow
ropes and tied it to the tree. There were also some spoons which were tired

610
onto these ropes.876 He referred to a photograph of a sheet that depicted
the heads of lions on it.877 He said they even composed a song about it
saying that this is the lion from Bizana that eats people.878

15)

He said that the lion was important because on the 12 th, there were two
security personnel who were killed at the bus stop, one of whom was burnt in
the car. He said that one security was pulled out of the car and tortured and
some piece of his flesh was taken from him to make the muti strong. He
said to go forward they had to be strong so the muti had to be laced with
human flesh. The Inyanga had said to them that if they went to the people,
they should try and get a part of the persons flesh.879

16)

He referred to photographs taken at an inspection in loco and described the

area as the place where the rags were tied and where two fires were made
and where the people were made to be strong and consumed the muti. He
points out the yellow and red ropes tied to the trees as well as some bottles
attached to the ropes. 880

He said the bottles were Ntoni, which contained

muti that was being used by the Inyanga. 881 He agrees that that there are no
bottles visible on the photograph but at the time there were bottles present
there.882

876

Pages 30978 to 30979

Exhibit AAAA11
878
Page 30980
879
Pages 30981 to 30982
880
Pages 31853-31854
881
Exhibit AAA12
882
Page 31857
877

611
17)

He said two sheep were obtained from the settlement. They were tied in
sheets and put on the fires by the Inyanga. At the time they were wrapped in
the sheets and put in the fire, they were still alive and he said from this
process some black water emerged and the water was going to be used on
the persons who had to undergo the rituals that were conducted there. He
left with about two hundred of them and one of the sons of the Inyanga to the
river to be washed and cleansed.883

18)

At the river, the Inyanga stood in front of them and poured the water from the
stream onto them to wash and he put muti into their mouths. They returned
to the place where the rituals were conducted and found that the mixture of
the burnt sheep and the water that emerged from the sheep and the blood
and the fat had been prepared. The Inyanga saw to it that each of them had
their own razor blades and he cut them on various parts of their bodies. The
mixture that had been made from the water, blood and muti was mixed
together and applied to the cuttings made on their bodies.884 At that stage in
the proceedings, he asked for a stand down to see his own sangomas
because he thought that the people were using muti against him.

19)

They were told the secrets on the mountain end there and that they were not
to be taken out of the mountains. They were told that rituals will be
conducted there and the people will be cut on their bodies. He said the rules
of the mountains were that they would have to abstain from being intimate
with a woman for seven days, they were not to point at a person but could

883
884

Pages 30997 to 30999

Pages 31008 to 31011

612
use a clenched fist, they were not have to keep a stick raised, they were not
to eat pork, sheep or fish, not to wear a watch or a golden tooth on any
necklace and not to carry any money that was silver. 885 The persons that
were required to participate in the muti were the strong people who would
keep the secrets in the mountain. The people who took part in the rituals
were called makarapas and their role was to kill people.886

20)

He said that they were warned not to fire or shoot before the police did so
because if that happened they would then be capable of being shot. The
Inyanga said that if they followed his instructions the police guns would not
be able to shoot them.887

21)

He was shown the video of the 13th when General Mpembe was talking to
the strikers when they were repeatedly clicking their weapons while
squatting. He said that that was the instruction given to them by the Inyanga
to hasten the effects of the muti so that the police would be in a hurry to
shoot them. He said the Inyanga told them that they were not to listen to the
police.888

22)

He said that between the 11th August 2012 and the 16th August 2012, they
were told by the Inyanga not to change their clothes because they were
supposed to wear the same clothes and wear a blanket so that they must

885

Pages 30999 to 31000

Page 31105
887
Page 31002
888
Pages 31002 to 31003
886

613
always be smelling of muti. They were instructed to sleep in the mountain
until they got the R 12 500,00 that they wanted.

23)

He said that the role of the Committee of fifteen was that everything that was
done at the mountain had to be passed through them first. After the rituals
had been conducted on them, they were told to select a person who was
strong and who was going to be the leader.

Mambushe was chosen

because he was brave and strong. Xolani was also a leader. Mambushe
was strengthened more than the others .The remains of the two sheep were
put into a hole that was dug up and Mambushe took a bath there because he
was going to be strengthened further to lead them.

24)

They were told not to kill any animal and when they were talking and wanted
to point at something, they should use their fist. They should not carry their
sticks pointing up but have them horizontal pointing to the ground and they
must not have a hat on their head and they could not be intimate with
women and should not wash for seven days and if they had wash it had to
be with green Sunlight soap.889

25)

He pointed out on photographs of the inspection in loco, the place where the
hole was dug and the ritual on Mambushe had been conducted. 890 He said
when he got there with the police to point it out, he found that the hole had
been opened. He said that the dog that had been with the police went
straight to that place and sat down but nothing was found relating to any

889
890

Page 31108 to 31109

Exhibit AAAA 16 photograph 13

614
sheep there. Strands of wool that were hanging from the trees were
recovered.891

26)

On the evening of the 11th, the strikers were convinced of the effectiveness
of the muti because the Inyanga had spread the muti on the box and the box
was shot at and the bullet could not penetrate the box. It just stuck to the
box. He said that some workers did not believe this but they did believe after
the security were killed because the security had tried to shoot at them and
they could not. He said that is when they also came in their numbers and
performed the rituals.892

27)

On Sunday, the 12th, they came down from the mountain. There was a
discussion that because NUM was the one that was fighting with them the
previous day, they were going to kill NUM. The strikers were armed with
pangas and spears. Mambushe, Obai and Anele were armed with firearms
and Mpele was carrying petrol. He described the firearms as pistols. The
one that he saw was red on top and was in possession of Bhele.893

28)

When they came to the hostel to the first gate, the security tried to talk to
them but they ignored them. The security tried to shoot at them, but their
guns did not work. Two security officers ran towards the car that was next to
the bus stop. Bhayi and Anele fired some shots at them. Bhele poured
petrol on the car and burnt the car with the security persons. Bhayi removed

891
892

893

Pages 31110 to 31114

Pages 31114 to 31115
Page 31116 to 31117

615
one of the security officers from the vehicle and put him down.

Rasta

stabbed him with a spear and Mr X said he also participated in the attack
when the security officer was on the ground.

29)

Bhele cut the chin and the tongue from the security personnel and put it in a
plastic.

Anele scoped the blood with a bush knife and poured into the

plastic. Anele took the firearm and the cell phone. Mambushe took a radio
and the cell phone. Bhayi took the firearm. He said they went past the NUM
offices but there were no one there and they went back to the mountain. By
that time, Bhele had poured the petrol, burnt the car and thrown the
container away. The pieces of meat were given to the Inyanga who burnt it
until it was ashes and it was mixed with some muti to be licked to strengthen
the men so that when they were going forward, they would not become
afraid and turn back. 894

30)

He identified in a photograph

895

a firearm that looked like the one he saw in

the in the possession of Bhele.896 In Slide L 163 he identifies Tholakela

Bhele as the person who was in possession of the firearm in the red.897

31)

With regard to the incident with the security personnel, he said that they
were firing with rubber bullets and aiming up in the air trying to scare them
but they did not retreat. They approached the security officers crouching as
instructed by the Inyanga. The security officers fired rubber bullets and then

894

Pages 31118 to 31119

Exhibit AAAA 20
896
Page 31120
897
Pages 31799 to 31801
895

616
ran away. He said that when Bhayi and Anele fired, they were aiming at
Fundi and another man in a private car and he thinks that Fundi was struck
on the left side of the forehead. He said he hit Mr Fundi with a panga on his
face while he was lying on the ground because he was not a spectator in a
fight and he could not say exactly where it was that he hit him.898

32)

He said that the bullets fired by the security persons did not do them any
harm because the Inyanga had told them that the guns would not work
against them because of the rituals they had undergone.899

33)

He said that the fire arms that were in the possession of the two security
officers were two pump action guns and these guns were taken to the
mountain.900 When they returned to the mountain, Mambushe and Xolani
reported that when they went to the NUM offices, there was no one there.
The security personnel had tried to fire at them and they had taken firearms
from them and they presented the firearms and that the muti was working.
The firearms were kept next to the Inyanga on the mountain.

34)

The killing of the two security personnel had the effect that those who did not
believe in the muti came in their numbers to undergo the rituals realising that
the guns of the security and the police were not working.

898
899
900

Pages 31126 to 31129

Page 31129
Page 31133

617
35)

These further rituals took place from the 12th until the 14th.901 He said that
Slide L 34 shows the strikers standing in a queue after taking off their clothes
to undergo the rituals where the muti was being consumed. He said that he
as present while the rituals were being conducted on the 12th and the 14th.
Those strikers who had undergone the rituals on the 11th were sprinkled with
intelezi to revive the muti on them.

36)

On the evening of the 12th they marched to K4 Shaft where they set seven
vehicles alight.

Before they did that, a meeting took place and the

discussion was that the people who consumed the muti and underwent the
rituals should go out and those who still had to undergo the rituals remained
in the koppie. It was said that they should go out and kill the people who
were going to work so that others should come and join the strike. The
meeting was held at about 4 o clock because they had to go to K4 Shaft
when it was a little bit dark.902

37)

He said about five hundred strikers went to K4 Shaft and they were armed
with firearms, pangas and spears. He had a panga and a spear. When they
arrived at K4 Shaft the people who saw them coming ran away. Bhayi cut
the wire fence with a pair of pliers. They gained access to the property
through that opening.

Others used the gate and Mambushe instructed the

security to give way which they did. He took the radio and the phones away
from the security personnel. Mr X said he and Bob were carrying 5 litre

901
902

Pages 31133 to 31134

Pages 31135 to 31136

618
containers with petrol. They set alight the seven cars as well as bikes at K4.
They killed one person who was wearing a white t-shirt who was in the
parking lot. He said he did strike the person who was found there because
he was not a spectator there watching the fight. He found this person lying
on the ground and he struck him on the right side of his stomach and
stabbed at him. He noticed workers standing in the parking area where the
cars were and they chased them but could not apprehend them. It was
Bhele who set the cars alight at J4 Shaft.903

38)

On the 12th, they had armed themselves and proceeded to the offices of
NUM because their issue was with NUM. He was asked why the group
engaged on this attack on the security guards whom they had outnumbered
and whose bullets had no effect on them. He said that the security guards
were stopping them from going to the NUM offices. He was asked whether
the attack on the security guards took place on the spur of the moment or if
that was something that was discussed in the meeting that was held prior to
embarking on the march to the NUM offices.

He said that there was

discussion about the security guards on the mountain and they had said that
they would kill anything in front of them until their demands were met.904

39)

After they left K4 Shaft, they went back to the mountain where Mambushe
and Xolani gave feedback. They were sprinkled with muti. Mambushe and
Xolani said that cars had been burnt, people had run away and that a cell

903
904

Page 31151
Page 31145

619
phone and radio were confiscated. The cell phone and radio were given to
Xolani.905

40)

They slept on the mountain on the night of the 12th. He said that there was
some six hundred of them that were sleeping on the koppie and that it was
mainly the group of makarapas, the people who had undergone the rituals.
The inyanga stayed with them on the koppie until the 16th.906

41)

At the mountain the makarapas and the committee members held a meeting
on the mountain where they decided that they should go and kill people at
Bob Mine to send a message to the people that there is a strike until their
demands are met. There was a discussion about what would happen in case
they encountered security personnel and it was decided to simply kill
anything on their way. He said they were all armed with spears, pangas and
firearms. He said the persons who had firearms were Mambushe, Bhele,
Baai and Anele and he remembers Mambushe, Makhubane, Anele, Bob,
Nido, Kaizer, Baai, Masinga, Xolani and Matetjisa all being part of the crowd
of strikers.

42)

When they came across Mr Langa, he was asked where he was going to
and he said he was going to work. They asked him how he could go to work
when he knew there was a strike going on. They then killed him. They
stabbed him and he took part in this attack with a panga.

905
906

Pages 31149 to 31150

Pages 31152 to 31154

620
43)

He was shown the post mortem report of Mr Langa907, where the injuries to
him are described as eighteen incised wounds to the front and back of his
body. He said they were consistent with the attack upon him. He was asked
why he participated in this brutal killing of Mr Langa with the others and he
said that they wanted to send a message to the people who were not aware
of the strike, that there is a strike. They killed him so that others would come
and join them and support the strike. The killing of Mr Langa took place at
about 04h00 in the morning. They went back to the mountain. Xolani and
Mambushe gave feedback. They arrived there at about 11h00 or 12h00 that
day.

When they arrived, they were told there is a group of people who had

marched to K3 and that they had to support those people. They then left for
K3.908

44)

Before embarking to the march on K3 shaft, there was a discussion about

what was going to happen upon arrival and about what would happen along
the way if they met the Lonmin security personnel. They said if they met the
security personnel, they would not listen, they would just kill them. When
they arrived, the people who had gone to check on the shaft came back and
gave a report that they could not find anyone at the shaft. They had gone
there with the security to check on the shaft. He could not remember who the
five persons where who had gone with the security towards the shaft. 909

45)

They met the security personnel where there were some water pipes where
they were told that they would not be able to pass the police carrying the

907
908
909

Exhibit AAAA 22
Pages 31165 to 31167
Page 31168

621
weapons that they had.

He said that they simply ignored the security

personnel because they knew that they were sissies. They had a meeting
where Mambushe said to them they were going to meet the police and they
should not all talk with the police and only three persons should speak to the
police because if they all did, they would be afraid.

910

The three people

chosen were Mambushe, Xolani and Mosotho. He said they selected them
because they believed and trusted in them.911

46)

With regard to Video HHH61 which shows the strikers at the water pipes, he
said that he was part of the group that is seen crouching clicking their
weapons. He was asked why the strikers did that and he said that they were
encouraging their muti to work fast, that they knew things were bad and that
people were going to be killed and they were hurrying things and they knew
that the guns would not work and they were not capable of being shot at. He
said they knew that their muti was such that the guns would not do any harm
to them. They were asked why the strikers were ululating. He said that their
blood had become hot at this stage and their blood was burning them and
there were encouraging the muti to act fast.

He explained that that the

intelezi in their blood was working in such a way that they did not listen to
anything. They just wanted the employer to come to them and give them
what they wanted. 912

910
911
912

Page 31169
Pages 31178 to 31179
Pages 31176 to 31177

622
47)

On the video, he points out himself as a person with a pinkish blanket

around him. He said at that stage they were going towards the spot where
Major General Mpembe was.

48)

At some stage on the video, he observes that the pace of the clicking on the
video picks up and he says that was because they were hastening the
operation of the muti and they wanted it to work fast and to annoy the police
for them to shoot at them.913

49)

He also said that they were singing a song and translated it said tighten
your balls young man, otherwise you wont come right. He said this was
because they were not capable of being shot at and the police could do
nothing to them.914

50)

At 11.13 on the video, he identifies Mambushe standing in front hold his right
hand with his fist clenched and he said this was in accordance with the
instructions given to them by the inyanga on the 11 th when the rituals were
being conducted.915 He said that the inyanga had said to them that if they did
not follow his instructions, the result would be that the guns of the police
would be effective and would work.916

51)

With regard to Mr Noki being heard on the video saying that is all we ask.
We are not fighting with you, he said they said that simply to fool General

913

Page 31182
Page 31183
915
Page 31184
916
Page 31185
914

623
Mpembe so that he would get angry and start shooting. He is asked why
they were fighting with the police because they had no quarrel with them and
he said that the police were stopping them from getting what they wanted
because they wanted the employer to come to them and give them what
they wanted.

He was asked why it was seen as the police that were

stopping the employer from coming to them and he said it was the police
who had not allowed them to proceed with the things that they had because
it was illegal.917

52)

He said that they all understood what Major General Mpembe was
conveying to them because he was speaking in Fanagalore and this is the
language that was mostly used at the mine.918

53)

On the video, Mr Noki is heard to say that the weapons would be handed
over at the koppie. He said that that would not have happened.919

54)

He was asked what would have happened if the police tried to disarm them
and he said that they were going to kill the police using their bush knives,
pangas and all the weapons that they had. He said that he was aware that
the police had firearms with them.920

55)

At 18:18, Noki was heard on the video saying that the employer should be
brought to the workers so that he could give them the response they wanted.

917

Page 31187
Pages 31188 to 31189
919
Page 31190
920
Pages 31194-95
918

624
He was asked what would have happened if the police succeeded in
bringing a representative of Lonmin to address the strikers and there was a
negative response about the demand of the strikers. He said that they would
have killed that white man.921

56)

He said that they did not obey the policemen because they wanted them to
shoot first but they seemed not to have been shooting.

As they were

moving, a single policeman appears to be pointing a firearm at them and he

was asked why that police officer was not attacked and the answer was that
he was not shooting and they were waiting for him to shoot first. They can
be heard ululating and he said that was to hasten their muti. They were
crouching and beating their spears, trying to hasten the medicine and for the
police to start action.922

57)

He said they were on their way to the settlement to look for the people who
were busy drinking beer there while they were striking and that they were
going to kill them.923

58)

He said at the time the tear gas and stun grenades were fired, they were
going towards the settlements towards the mountain to kill the people that
they had found there.

He said in the confrontation, they attacked three

policemen and described in detail how they attacked each of the persons
and took from them the short guns, the long guns and the cell phones and
radios. He said that the confrontation occurred because the police first fired
921
922
923

Pages 31195-96
Pages 31201 to 30202
Pages 31203 to 31204

625
the rubber bullets and after that firing, they attacked and killed one
policeman and left one policeman still moving who had not died. He said
that the firing that was done by the police was not effective and they did not
care about it because the Inyanga had worked on them. He said the
confrontation came because the police started shooting. He was asked
whether the confrontation came when the tear gas and the stun grenades
were deployed and he said first they shot the tear gas and thereafter the
fighting ensued. He said subsequently that fighting started after the rubber
bullets were shot and they knew that the guns had been blocked from
working. Then he gives a third reason for why there was the attack on the
police and that is because they were using real guns.924 He has given three
different reasons for why the attack on the police started.

59)

After describing the attack on each of the police officials, he said that they
returned to the koppie. They went through the settlement and returned to
the mountain.

Some of the people were injured and they arranged for

transport for them to be taken away and these people who had been injured
were people who had joined them along the way and who had not
undergone the rituals.925 At the koppie, it was decided that anyone wearing
a red shirt must take it off and tear and burn it because they did not want
NUM on the mountain. It was said that NUM is vehicle that is not moving
and is being left behind and they wanted to get into a vehicle that was
moving which he said he thought was AMCU. He said they had taken a
decision that NUM should be killed and they were killing it with bush knives
924
925

Pages 31205 to 31307

Pages 31215 to 31216

626
and pangas and that is why they mentioned they were going to kill Mr
Zokwana because they were stopping them from getting their demands of
R12 500,00. He thought that AMCU was together with them because it was
interested in their demand of R 12 500,00.

60)

He said he had been a member of NUM but at the mountain he joined

AMCU. There was a gentleman there who was one of the makarapas who
was handing out the forms to be filled to join AMCU and he joined AMCU for
two months before he went back to NUM.926

61)

He said that on the 14th a message was received from Mr Joseph Mathunjwa
that AMCU was the organisation that helped them to receive their demands
and that they would be coming to the mountain on the 15th together with Mr
Zokwana to address the strikers and they were told not to allow Mr Zokwana
to address the meeting.

He said it was the 14 th, Tuesday, that they were

told about this quite late in the evening. He said this was a message that
Xolani got on his cell phone

62)

On the 14th, at the koppie, there was a meeting and three people were called
before the meeting. They were Mr Twala, Mr Mawewe and another person
from Bizana who was working at Saffey Shaft and he did not know his name.
Questions were put to them. Mawewe being the first and then he was left to
leave. Then the second person was the person from Saffey Shaft. He was
also questioned and then he left.

926

Pages 31215 to 31220

627
63)

When Mr Twala was questioned, Xolani said that he knew Twala and that
Twala was a spy at work and he had caused people to be dismissed. He
searched him and in his pocket he found his cell phone and he asked him
what he was doing with his cell phone because nobody was allowed to carry
a cell phone on the mountain. He was accused of handing out information to
NUM people using this phone. Mr Twala, he said, was a shop steward at
Karee with NUM. Five of them took Twala around the mountain to the other
side.

Twalas gun was taken by Mambushe.

Of the five people, he

remembers Mambushe, Xolani and Anele. After they had gone to the other
side, he heard a gunshot. When he looked in that direction subsequently, he
saw that Anele took the skull of the beast and placed it on the chest of Mr
Twala.

64)

When they came back, Anele said they were through and finished with him.
The strikers started singing out very loud How are we going to kill this
NUM? We hate NUM. He said before this incident, there was a discussion
as to what should happen with Mr Twala among the committee and he was
part of the decision that was taken that Twala should be taken to the other
side and killed. He was in that committee of five persons. The persons who
left with Mr Twala had bush knives, pangas and spears. This incident took
place between 12h00 and 13h00 during the day.927

65)

He said that when the police arrived between 10h00 and 11h00 with a team
of negotiators, five young men proceeded towards the Nyala with Mambushe
and Xolani amongst them. Mambushe went right up to the hippo and they

927

Pages 31735 to 31741

628
spoke through a loud speaker. He said he could hear the discussion that
took place between those inside the Nyala and those outside and they
realised that there was trouble there. He said they could hear that there was
a request that the police should bring their employer to the mountain and the
police were begging and pleading with them to come off the mountain. The
strikers said that they were not going to move away from the mountain until
the police brought their employer to the mountain to come and tell them
about the R 12 500,00 that they were demanding.928

66)

He is shown Slides L93 and L86 and confirms that they were being sprayed
with muti by a person called Buccaneer who was one of the young traditional
leaders conducting the rituals on the scene. It was necessary for the muti to
be applied to be ready in case a fight broke out between the strikers and the
police and they needed to be ready to fight there because the police were
bringing the hippo closer to them.929

67)

He said that they had killed police on the 13th and the people then realised
that the guns were ineffective against them so they joined in bigger numbers
on the 14th. He said that even those who were previously scared, who did
not trust the muti were then convinced that the guns were not effective.
These rituals were not conducted in the same spot as previously and were
conducted in open veld.930

928
929
930

Pages 31742 to 31743

Pages 31743 to 31745
Pages 31745 to 31746

629
68)

He said this took place at about between 13h00 and 14h00 on the 14 th. He
was shown Slide L 90. He said it was still part of the rituals. There was a
big dish there with ntelezi. The people were being washed and this was
being done by two persons, Bucaneer and another person. He refers to a
belt being tired around the upper arm of one of the makarapas and said that
there was muti inside this belt.931

69)

He was asked how it was that the belief still prevailed after some strikers had
been shot on the 13th and why it was thought that the guns were still not
effective in relation to the strikers. He said that it was believed that the two
people that were injured and taken to hospital were people who had joined
them along the way and who had not undergone the rituals.932

70)

He said that Xolani received a message from the cell phone that Mr
Mathunjwa wanted to come to the koppie on the 14 th. Mr Mathunjwa was not
allowed to come to the koppie because he had not undergone the ritual so
the committee decided that they would meet him halfway. He said when Mr
Mathunjwa arrived, he said he was interested in membership and that he
would lead his organisation and that they had to kill the NUM. He said that
they were going to come the following day with Mr Zokwana and that they
should not allow Mr Zokwana to address them. He said the members of the
committee agreed with them. Then Mr Mathunjwa left the koppie. 933 He said
that he was present when he saw Mr Mathunjwa arrive in a silver motor

931
932
933

Page 31761
Page 31748
Pages 31764 to 31768

630
vehicle with another young person and he was standing about fifteen metres
away and had a good look at him.934

71)

With regard to a photograph that appeared in the Daily Maverick 935 he

confirms that that picture shows them caucusing and identifies Kaizer
speaking to them not to allow Zokwana to address them the following day.
He said that it was agreed that Zokwana would not be allowed to speak, he
was going to be challenged or he was going to leave as a dead person. He
said that he was part of the group and points himself out as a person
wearing what looks like a slightly frayed blanket with his back to the
camera.936

72)

On the 15th the negotiating team of SAPS met with the five committee
members and they were asked to put their weapons down. The five were
Mambushe, Xolani and three others.

The committee members told the

police to go and fetch their employer and that they were not going to lay
down their arms. The employer must come and agree to their demands. He
said that he was not aware if the negotiating team gave a report back to the
committee members.

73)

With regard to the arrival of Mr Zokwana, he said that Xolani was going to
call out to him but Mr Zokwana never alighted from the vehicle and they did
not allow him to talk.

Xolani had called out to Mr Zokwana and said

Zokwana come here. Had he gotten out of the hippo they had palnned to
kill him. They knew that the police were present but their firearms would not
934
935
936

Page 31769
(Exhibit AAAA 25),
Pages 31774 to 31776

631
work against them.937 Mr Mathunjwa arrived and he addressed them from
inside the koppie and he was told to come back the following day because
he was the one who listened and was supposed to go and demand their R
12 500,00 and get the money.

They did not make a promise to Mr

Mathunjwa that they were going to lay down their weapons. 938

74)

On the 16th, Mr Mathunjwa came back in the morning and he said that he
was going to get feedback from the employer. Thereafter the Bishop came
and had a discussion with five people but he does not know what the
discussion was about. Then the Bishop left. Even during the presence of
the Bishop, they were armed with pangas and spears.939 Mr Mathunjwa
returned to the koppie and he said that they should lay down their arms
because there would be bloodshed there. The strikers said that they were
not laying down the arms until the employer comes back to them about the
matter of the R 12 500,00. Mambushe said that there could not be two bulls
in one kraal. He understood this to mean that there would be a fight and that
the police who had the firearms which could not work would run away and
they would be the coward bulls and that the strikers would be the strong
bulls because they had the rituals performed on them.940

75)

Kaizer is heard to be saying on a video that they going to finish the police
there on the scene941. He understood that to mean that they were going to
fight with the police and going to kill them and that was a decision had been

937

Pages 31786 to 31788

Page 31789
939
Pages 31789 to 31791
940
Pages 31792 to 31794
941
Video Exhibit CC 18
938

632
taken a long time ago by the makarapas.942 He was asked why a decision
was taken to fight the police and he said that the police were saying that they
should lay down their arms and come off the mountain before they got the
money that they were asking for.943

76)

He said that Mr Mathunjwa said that there will be bloodshed and he was
pleading with them to go down from the mountain. They did not listen to him
and said that they were not going down from the mountain until he brought
the employer there. They said that they were prepared for whatever could
happen and they were even prepared to die but they were not moving away
from that place. Mr Mathunjwa then left.

77)

He then noticed the line formation of the Nyalas and the wire being
deployed. He said Mambushe went forward to the first Nyala and then came
back to them and said that they must go towards the Nyalas. A shot rang
out from his side because some of them had firearms like Bhele and Gwaai.
He said they did not follow the Inyangas instructions because the Inyanga
had said that they should not fire first.

He said there was also water

spraying at them and they ran away. Others fell down.

78)

He said it was the group of makarapas who went towards the group of police
that were unrolling the barbed wire and they were armed at this stage and
they were going to kill the police. They were going to fight with the police
because two bulls could not be in the same kraal and they going to kill and

942
943

Pages 31805 to 31807

Pages 31792 to 31797

633
finish the police.944 He said that as the makarapas approached the police he
was there in the middle of the group.He was carrying a panga and a spear,
others had firearms and he was armed because he knew that he was ready
for whatever would come and was ready to fight to the death.

79)

He described on slide L 198 the strikers carrying their weapons, knocking

them against the Nyala provoking the police to start shooting so that they
would end up having a fight.945 He said that they did not feel the things like
tear gas and rubber bullets and went there to fight with the police.946

80)

With regard to Slide L198, he said that as the Nyala proceed to the kraal, the
strikers were going towards the police. The police were shooting with rubber
bullets and that was not effective in dispersing the strikers because they
were interested in going to the police to attack them.947 With regard to Slide
L207 he said that they were attacking the police who were on foot as they
were proceeding towards them. The police were shooting rubber bullets and
tear gas which they did not feel and they kept on proceeding towards them
and went past them.

He said as they were attacking them during the

commotion the group that was in the front fell to the ground and some of
them turned around and ran away. He said that the crouching formation
seen on the photograph was in accordance with the Inyangas instructions.
He is not visible in that photograph.

944

Pages 31809 to 31811

Page 31813 to 31814
946
Page 31818
947
Pages 31821 to 31822
945

634
81)

He said that the muti had stopped functioning because the people in the
front had fallen when the police had started shooting with real bullets and it
meant that the muti had lost its power. He was some distance away from
the people that fell and realised that something was wrong and ran away.
They discovered later that the muti was not effective because one of them
had actually killed a hare and that was contrary to the instructions of the
Inyanga about the killing of animals.

He said he still believed in the

effectiveness of the muti provided they followed the directions.948

82)

On 10th Jnauary 2013, he opened a case at Bethanie under CAS number

48/01/2013. He said he reported a case against Mbala and Nzama because
he thought they were going to come kill him because he said he was going
to make a statement to the police. They wanted to know why he was wearing
an ANC beret and other kind of clothes when he had cancelled his
membership with NUM.949.

He was taken to the police by the security

personnel from the mines.950 At some stage he withdrew the case because
they came to him at the shaft and they said to him if he had to go to the
police things that were secretly done on the mountain would come out into
the open. He also had a discussion at some stage with the persons against
whom he had laid the case and it was decided that he should withdraw the
charge.951 He withdrew the charge on the 23rd of January 2013,

948

Pages 31822 to 31826

Pages 31834 to 31845
950
Page 31839
951
Page 31839 to 31840
949

635
83)

The docket comprises five pages with Mr X as the complainant. 952 His said
that his statement was made to Lieutenant Colonel Shonela who was talking
to him in English and Shangaan which he did not understand very well.953
Another policeman, whose name was Ngqoko was called who spoke in
Fanagalo.

84)

He said that there were inaccuracies in his various statements because of

language difficulties, and that the reference to two goats was a
misunderstanding as was where it refers to ashes being taken from the body
of the two security officers. He also said it was incorrect that it was said that
every time a person was killed their flesh and blood was mixed with muti and
they all licked it. He said he only referred to the one security officer from
whom these items were taken. He also said it was incorrect that he was
afraid for his life and was forced to join the strike and that he underwent the
rituals and licked the muti that was mixed with human tissue and blood
because he was afraid for his life. He said that he also needed the money
and that he was not forced to joint the strike.954

85)

Under cross examination by Mr Budlender, it was put to him that Mr

Mathunjwas phone records show that on the afternoon of the 14th up to the
morning of the 15th, he was in Johannesburg and Pretoria and Mpumulanga
but his cell phone was never shown to be anywhere near Marikana. Mr X

952
953
954

AAAA 26
AAAA 8,
Pages 31849 to 31851

636
could not explain except to say that he could have used someone elses
phone to call Mr Nzuza.955

86)

It was put to him that the phone records of Mr Nzuzas phones indicate that
he received thirteen phone calls on his phone but none from Mr Mathujwas
phone number and that all the calls that were made to him were made from
Marikana.956

The witness had no cogent explanation for this.

He also

agreed that he did not mention the phone calls or the visit by Mr Mathunjwa
on the 14th in his first statement in February 2013 and did add it in his
second statement that was taken in 2014. He said that the person who took
the first statement asked him half the questions but the person who took the
second statement asked him and so he explained it.957

87)

The transcript of the Forum at 8, Exhibit LL, was put to Mr X where it was
quite clear that the suggestion that the leaders of the unions go to the koppie
together was raised by Mr Gwala.958 There is no indication whatsoever that
there was any indication that the arrangement was made the day before. An
extract of the evidence of Mr Mathunjwa was put to him where Mr Mathunjwa
said that it was during the interview when Mr Gwala asked whether they
would be willing to go to Marikana and he said he was willing to go there.959

88)

With regard to the events on the 13th, It was put to him that if Mr Noki wanted
to make Major General Mpembe angry, he should have said to him we have

955

Pages 31897 - 31899

Page 31901 and 31905
957
Page 31911
958
Pages 31917-31918
959
Page 31919
956

637
come here to fight you and we are going to kill you and that would have
made him start shooting.

89)

With regard to his evidence that the police was stopping them from getting
what they wanted, Mr Budlender asked him if the police had ever stopped
him from talking to the employer. He agreed that the police did not stop them
on the 10th, but accompanied them on their march; on the 11 th when they
were marching to the NUM office; when they slept on the koppie on the night
of the 11th; on Sunday the 12th when they killed two security officers, stole
property and burnt vehicles. Thereafter the police did not disturb them or
stop them from sleeping on the koppie.960 He agreed that they enforced the
strike through violence and intimidation and the police did not stop them from
doing that. He agreed with Mr Budlender that the police did not stop them
when they went to the K4 shaft, when they killed Mr Mabebe and burnt
vehicles and when they killed Mr Langa on the morning of the 13 th. It is put
to him by Mr Budlender that the police never told the employer not to talk to
them.961 He was unable to answer the question.962Eventually he agreed that
the police never told the employer not to pay the R 12 500,00 per month that
they wanted.963

90)

With regard to the confrontation on the 13th of August when two members of
the police and three strikers were killed, it was put by Mr Budlender that if it
was true that the strikers intended to attack the police on the 13th of August,

960

Page 31930-31933
Page 31936
962
Pages 31927-31929
963
Pages 31936-31938
961

638
that that was very important information and that he did not include this in his
first statement to the police in February 2013 but only brought it to their
attention in 2014.

His response was that the person who took the first

statement did not ask him these issues thoroughly. 964

91)

With regard to his evidence that on the 13th when they were being escorted
by the police towards the settlement, they were going to kill the people there
that were busy drinking beer while they were on strike, it was put to him that
the strike started on the 9th and they did not attack any settlement between
then and he 16th. He agreed with that.

The improbability in his evidence

that the only time in that entire period when they tried to attack that
settlement was when they had armed policeman watching them could not be
explained by him.965

92)

It was also put to him that his statement in February in 2013 paragraph 19,
deals with what happened on the afternoon of the 13 th at the railway line but
does not mention anywhere that they were going in the direction of the
settlement to attack the people in the settlement when the shooting started
with the police.966

93)

It was put to him that he said on the 16th of August that the committee
decided that the police were a stumbling block to the attainment of his
demand. It was, however, not in his statement of February 2013 and again
he said that the policeman who was taking his statement did not ask him

964
965
966

Pages 31939
Pages 31940 - 31943
Pages 31944- 31945

639
questions extensively. It was put to him that the police were not a stumbling
block to the attainment for their demand for three reasons viz because the
police said they would speak to management and ask them to speak to the
strikers, the police said they would try to get the employer to speak to them
and the police never said to management that they should not pay the
strikers R 12 500,00 per month. He agreed with all the propositions. He
also agreed that the police interfered with their activities only on one
occasion, on the 13th of August, but on that occasion they actually did what
they were requested to do which was to accompany them towards the
koppie with their dangerous weapons.

94)

An examination of stills from the video of the 13 th where he had pointed

himself out wearing a pinkish blanket, was shown in cross examination to be
incorrect as the facial features of Mr X did not correspond with those of the
person in the photograph.967

95)

Mr Budlender also put it to him that he is incorrect when he says in his

statement968, that shots were fired whilst Major General Mpembe was
counting.969 It was put to him that what the video actually shows is that
Major General Mpembe did not count to ten, he counted to three and the
strikers stood up and walked away. His answer was again that the person
who took the statement did not understand what he was saying.

967

Day 254, Mr X, pp 31978-31979

Exhibit AAAA 1.2,
969
Day 254, Mr X, pp. 31982-31984
970
Day 254, Mr X, pp. 31983-31985
968

970

640
96)

The discrepancies in his statement and evidence with regard to whether he

was one of the five members that were nominated to represent the strikers
when talking to the employer about the demands on the 10th of August when
there was a march to the Time Office, were put to him.971 He was unable to
provide any satisfactory answer.

97)

With regard to the photograph of the committee caucusing in front of the

koppie on the 15th of August972, he said that he was one of the persons that
was therein position number 4. He was unable to explain when it was shown
to him in cross examination that the person he pointed out was not him.

98)

Mr X said that Mr Mathunjwas was responsible for the deaths at Marikana.

He persisted in this even when it was put to him that Mr Mathunjwa only
came to the Koppie on the 15th. E could not explain why he attributed the
killings prior to that date to him.973

99)

The improbabilities and unexplained contradictions in his evidence abound.

He was evasive whenever he was challenged about the differences in his
various statements.

100)

Some of his evidence, like Mr Mathunjwas calls to Xolani and arriving at the
Koppie on the 14th is plainly false. So too is his version that firing
commenced whilst Major General Mpembe was counting on the13th.

971
972
973

Up to 32010
Exhibit AAAA 25
Day 257, Mr X, pp. 32480 to 32488

641
101)

He placed himself as one of the members of the committee of fifteen to

indicate that he was part of the decision making and therefore able to testify
to the details of the decisions of the strikers, especially apropos the police.
However his evidence about deciding to fight the police from the outset, is so
fraught with contradictions, as set out above, that no reliance can safely be
placed thereon.

102)

What perhaps is more probable is his version that they decided to kill anyone
who came in their way. This would explain why they attacked and killed the
two security officers who posed no threat to them whatsoever on the 12th.

103)

An analysis of the evidence of Mr X indicates that there is corroboration for

his versions in respect of the following issues:

(a)

that parts of the tongue and chin of Mr Fundi were removed from his
body at the time he was killed. This mutilation does not appear ex
facie the post mortem report. It is confirmed by Mr Fundis brother
who saw the body prior to burial;

(b)

at the inspection in loco, the ropes that he said were used to tie up
the sheets and the sheep were present at the spot he pointed out, as
was the spoon that was used to lick the muti.

(c)

the firearm with the red on the top was recovered from Mr
Tholakhele subsequent to information provided by Mr X to the
Police.

642

104) It would appear that the only area in which any reliance can placed on Mr Xs
evidence is where it relates to muti. The use of intelezi is not disputed, and is
shown on various slides in Exhibit L. If his evidence about the removal of the
body parts of Mr Fundi is accepted, then it must be accepted that it was for
the purposes of making strong muti.

105) His evidence provides possible explanations for the crouching posture
adopted by the strikers and the clenching of their fists.

106) His evidence also provides a possible explanation for why all the strikers ran
away when shots were fired on the 11th, but were focussed, organized and
brave on the 12th after the rituals had been conducted on the afternoon of
the 11th. The 12th is also the first time that the crouching posture is noticed.

107) There is possible corroboration of Mr Xs version about muti in an article

published in the 21 August 2012 edition of the City Press quoting an
interview with a miner Bulelani Malwana about the Inyanga and the effects of
the muti.

Relying on the evidence of Mr X

108) The stringent test for relying on one portion of the evidence of a witness
where he is clearly untruthful on other important issues is enunciated by Sir

643
William Solomon in Rex v Kumalo 1916 AD 480 at 484 and quoted in R v W
and Another 1960(3)247 at 249 (ECD):

Now it is no doubt competent for a court while rejecting the one

portion of the sworn testimony of a witness, to accept another
portion; but, where a witness is clearly perjuring herself in matters
of great importance, there should be very good reasons to justify a
court in finding that in other respects she is speaking the truth.

109)

In Mnyanda v R 1941 (2) P.H. H.130 the principle was applied by Tindall J.
A.
it has been pointed out by this Court that, though it is competent
for a Court, while rejecting one portion of the sworn testimony of a
witness, to accept another portion, where a witness has already
perjured himself on a matter of great importance, the Court must
have very good reasons before it holds that in other respects such
witness is speaking the truth. A fortiori where a witness who has
given certain evidence is recalled and then tells the Court that his
previous evidence was false and he adheres to his retraction, the
Court is only justified in discarding the retraction and acting on the
witness original evidence of the other evidence (sic) or the
relevant circumstances suplly convincing reasons for holding that
he original statement was the truth. If the evidence of such a

644
witness were not treated with this extreme caution a grave
miscarriage of justice might result. Examination and consideration
of the record has satisfied the Court that such support is absent.

109)

We have already set out (in the first draft on Mr X )that while he was
contradictory and unreliable in many aspects, there is corroboration for
his evidence with regard to the removal of part of the tongue and chin
of Mr Fundi, as well as the finding of the strands of wool with spoons
attached to the trees at the pointing out by him.

110)

It is not disputed that intelezi was used. The removal of the body parts
at the request of the Inyanga points to the use of stronger muti.

111)

Mr X testified that one of the reasons for the use of the muti was to
make them brave and strong warriors and that they would not be
susceptible to being shot as the guns would jam and the bullets would
have no effect upon them.

112)

There are descriptions from various witnesses of the crowd of strikers

crouching, clicking weapons and behaving in a focussed manner under
the leadership of Mr Noki and others. This and the use of the clenched
fists are all explained by Mr X as being the instructions of the Inyanga.

113)

In particular, the uttering of threats to the Police and the display of

aggression towards the Police in full view of the media, and in the
presence of hundreds of heavily armed policemen, was foolhardy

645
behaviour which might have, in their minds, been understood to be
bravery.

114)

The strikers also carried out attacks and killings in broad daylight on
Lonmin property where they must have known of the presence of
cameras.

115)

There are also various reports in the media before us corroborating the
use of muti by the strikers, and their belief that they would not be shot
by any firearms.

116)

We are satisfied that there is sufficient corroboration of Mr Xs version

to satisfy the very stringent test set out above and which enables us to
accept his evidence only in this abovementioned regard.

646
Annexure F