Will Marikana’s Mr X be a game changer?
Retired Judge Ian Farlam, the chair of the Marikana Commission of Inquiry, made an insightful ruling on Tuesday that may have a massive impact on the Commission's performance and public acceptance.
Judge Farlam had to make a ruling on the police's spy within the striking miners' inner circle (during the Marikana strike in August of 2012) being able to testify in camera, from a remote location, as per the police's request.
The identity of the spy, thus far known only as Mr X, has been a hot topic in the shanties and taverns of Marikana for over a year. For some, it was the fear of what he might reveal about who among the striking miners killed two Lonmin security guards as well as two miners who refused to strike on 12 August 2012; who among the miners killed the two policemen on the 13th; who accused Isaac Twala of being a spy and then killed him on the 14th; who planned and executed the assassination of NUM official Daluvuyo Bhongo; and what the intentions were of the inner circle of the strike committee.
It is the police's contention that Mr X was a witness to all of these incidents. It is for this reason that Farlam believes Mr X has good reason to fear for his life, and that the Commission should afford him what protection it can.
Advocate Dali Mpofu, representing the injured and arrested miners, and who has had sight of Mr X's statement, says that Mr X is a multiple murderer - by his own admission in the statement submitted to the Commission.
In arguments before the Commission, Mpofu said that whatever the ruling, he would show his clients Mr X's photograph and name, as they were entitled to know who their accuser was, and thus defend themselves.
In the end, Farlam agreed with both the cops and Mpofu. He agreed to allow video testimony, with the face of Mr X blurred or blacked out, and audio able to be streamed live to the public - i.e. you. This would protect Mr X and his family, who are in the witness protection programme.
The reality is that Mr X is undoubtedly in danger from violent elements among the miners. Violence is very much a part of what these communities live with, and in this case the stakes are very high.
To the common man, the weird part of the ruling is that all parties to the Commission - including those accused by the police - would be able to sit in on the Commission and watch the video. They would also be able to see a photograph of the witness, and be given his name.
If Mr X's statement is even partially accurate, then the people he accuses of murder are those among Mr Mpofu's clients, and some of them regularly sit in at the Commission.
The strike leaders figure prominently on his list of those responsible for the murders. _Daily Maverick _contacted some of the miners involved, and they were unaware, or unbelieving, that Farlam had indeed granted them the right to know who their accuser was, and thus defend themselves adequately.
Sobopha Mthethwa said, "I am not happy, but there is nothing much we can do. We place all our hope in our lawyers and hope the application they will put forward for us to see Mr X will be accepted… we hope the lawyers will share his identity with us. It is painful for someone to be making such allegations against you and at the end of the day you are not allowed to see them."
Xolani Nzuza, who has become the public face of the strike committee, after the death of Mambush Noki at the hands of the police on that fateful day, said: "The decision by Farlam affirms the position we have always had, [that] there is no truth in this Commission, and now Farlam is showing us that he has no interest in the truth also. It is best that we all pull out of the Commission and he be left there with his police - it's their Commission, mos."
Of course, their scepticism was unfounded, since they will be given his name and photograph two weeks before he appears before the Commission, although - pointlessly - they will only be able to watch his testimony by video link with his face blurred. In fact, the media will not be allowed to reveal Mr X's name or show his image. This raises questions about the value of the 'in camera' hearing.
Farlam looked very carefully at the possible threats to Mr X's safety, and found they were credible, even likely. Yet Farlam does not reveal that he undertook any investigation into just what the prosecuting authority was doing to safeguard him in witness protection. If Mr X's version is true, he will be a hunted man forever.
Now, on that subject of truthfulness, it seems that Mr X's testimony is one that suits the police's version of the context of the strike. It paints the strikers as murderous and in thrall to morbid witchcraft practices - with ingredients made from body parts of those they allegedly killed on the 12th. He claims he is a key witness, and participant, to several murders, and plans to commit murder.
If Mr X's testimony is accurate, then he is risking a lot for the Commission. There is no indemnity provided for his testimony here that will hold water in any subsequent criminal case. Or, at least, no such guarantee has been made known to the Commission. He could still be charged with several murders. He also has no claim of protection from civil claims by the families of those he has admitted to assisting to murder.
So, what is Mr X's motivation?
We have seen (and reported on) many claims of police torturing detained strikers, even among the survivors arrested on the day of the massacre. We have published the stories of three miners who told, and showed, us how they were allegedly tortured. The police did not contest this. Many others have told _Daily Maverick _of similar treatment at the hands of police.
In fact, the only policeman charged with anything relating to the Marikana massacre is Major General William Mpembe, deputy commissioner for the North West Province. He was charged with assault for torturing/overseeing the torture of 44 arrested miners in various police stations across the North West. At the time these charges were laid, torture was not yet a crime in South Africa, and therefore he could not be charged with "torture".
Mpembe later sued the police for R1 million for that arrest, claiming it was unlawful. When approached about the status of the charges as well as his claim against his employer while the Commission was still sitting in Rustenburg, Mpembe refused to answer, and directed questions to his spokesperson that was alongside him. The spokesperson also refused to address the issue.
Given the history of police behaviour during and after the Marikana massacre, it is possible that Mr X's assistance to the police has been won through coercion. Evidence gained from torture has not historically proven to be accurate - the tortured tend to want to say anything to please their tormentors.
Despite this, should Mr X's statements be completely accurate, it in no way legalises or justifies the police's actions in shooting dead 34 miners and wounding 78 more.
With additional reporting by Thapelo Lekgowa.
This column appeared on Daily Maverick.
Below is the full statement released by the Marikana Commission:
Today the chairman of the Marikana Commission of Inquiry, Mr Justice I.G Farlam, gave his decision on the application brought by the South African Police Services to present 'in camera and by video link' the evidence of a witness described as 'Mr X'.
'Mr X', who is presently in a witness protection programme in terms of the Witness Protection Act, will, according to an affidavit made by Mr Frikkie Pretorius, the attorney for the police, testify about the organising and planning of the rock drillers' strike at Lonmin in August 2012, the intimidation and killing of Lonmin employees who were unwilling to take part in the strike, the events of 13 August 2012 during which two members of the police service were killed and one was seriously injured, the killing of a NUM shop steward on 14 August 2012 and the participation by some of the strikers in rituals in preparation for a confrontation with the police. He will also testify about a plan by the strikers to attack the police on 16 August 2012, the date on which 34 mineworkers were shot by the police.
Mr Justice Farlam granted the application for the presentation of Mr X's evidence by video link. He said that the Commission, which has the power in terms of the Commission Regulations to determine its own procedure, had decided to make the procedure set out in section 158(2) of the Criminal Procedure Act of 1977 applicable, with the necessary adoptions, in the proceedings of the Commission. This subsection provides for a criminal court to permit a witness to give evidence by means of a closed circuit television or similar electronic media. Mr Justice Farlam said that it could scarcely be contended that an evidentiary provision that applies in a criminal trial cannot appropriately be applied in a commission such as the Marikana Commission. He said that the Commission was also influenced in coming to this conclusion by the consideration that similar provisions exist in other countries whose laws of evidence closely resembles ours.
Mr Justice Farlam said that a cogent case had been made out by the police for the evidence of Mr X to be given by a video link. 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, so Mr Justice Farlam held that his whereabouts may be discovered and that he and/or members of his family may be harmed or even killed. This finding was based on the history of assassinations of potential witnesses and other mineworkers who were not willing to participate in the strike.
Mr Justice Farlam also ruled that Mr X's evidence could be presented in camera. In this regard he ordered that only the Commissioners, the evidence leaders, the parties, their legal representatives and accredited media representatives could be present in the auditorium during the testimony of Mr X, but that members of the public might listen to the audio transmission of the testimony of Mr X in the overflow room. He also ordered that members of the media were not to publish Mr X's name or any other information which may reveal his identity.
Mr Justice Farlam ordered the police to disclose Mr X's name to the evidence leaders and the legal representatives of the parties, to provide them with a photograph of Mr X and to indicate where he could be seen on video footage of the events during the period from 13 to 16 August 2012. He also ordered that Mr X's name and any information that may reveal his identity was not to be disclosed further by any party, other than the police, save for the purpose of obtaining instructions.
The police had asked that the injured and arrested persons and the families of the deceased mineworkers also be excluded from the auditorium during the testimony of Mr X but Mr Justice Farlam refused to equate them with members of the public. He rejected a contention advanced by counsel for the police that they could not be regarded as parties because the Commission was not a court. He said that they had been permitted along with the police, Lonmin and the trade unions, together with others interested in matters covered by the Commission's terms of reference, to participate fully in the proceedings. "To regard them now as not being parties is to uphold the sort of technicality that gives lawyers a bad name."
Mr Justice Farlam also said that there was 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 they already know who he is because according to his statements he played a significant role in some of the events in which the strikers were involved. In addition it was pointed out that the ruling sought by the police provided for the legal representatives of the parties to disclose Mr X's name and other information that may reveal his identity to their clients for the purpose of obtaining instructions.
"As I see the matter," said Mr Justice Farlam, "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 X's name and photograph to all his clients and 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."
As far as the families were concerned Mr Justice Farlam pointed out that since the Commission began its work it had been accepted that the families of the deceased strikers had a special interest in learning the circumstances in which their breadwinners died. The State paid their transport costs to and from their homes to the seat of the Commission and they had been accommodated at State expense first at Rustenburg and later at Centurion, while the Commission had 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."
ISSUED BY THE SECRETARIAT OF THE MARIKANA COMMISSION OF INQUIRY