James Nichol is a criminal lawyer based in London who specialises in cases involving the miscarriage of justice; these have included the ‘Bridgewater Four’ case, the UK miners’ strike of 1984-85, and the ‘Bloody Sunday’ inquiry. During the Farlam Commission, he has represented families of many of the miners killed in the Marikana massacre. This interview was conducted by Amandla! on 30 November 2014.
Amandla! (A!): There is often an impression that commissions of inquiry are used to contain political damage rather than for any real pursuit of justice. Is there reason to believe the Farlam Commission will defy this impression?
Jim Nichol: Part of the reason for having the commission was to avoid having to prosecute the police. When you see those images on television, it’s obvious there must be a murder investigation; people must be held to account. By setting up a commission, Zuma avoided that. Two years and three months, later no police officer has been held to account.
Judge Farlam said something on the last day of the commission that took my breath away: “Am I correct in thinking that it’s not contended by anybody that the strikers in this case were killed because they were striking?” Dali Mpofu was on his feet immediately and said (I’m paraphrasing from memory), “No, that is not true. We have argued throughout these proceedings that strikers were shot because they were strikers.” He recounted that the person who authorised the action that led to the killings – General Mbombo – gave a television interview on the morning of the 16th in which she said, “This strike stops today.” Not, “This violence stops today,” or “The public order situation will be resolved today.” She was crystal clear: “This strike stops today.” If Judge Farlam’s conclusion after two years and three months is that the strikers were not shot because they were strikers demanding a living wage, but exclusively as a botched-up operation, then that really is awful. It’s staggering.
A!: Is there any reason to be optimistic that the perpetrators of the massacre will be held accountable as a result of the Farlam Commission?
JN: I think you have to look at who the perpetrators are. Top of the list are people like Cyril Ramaphosa, Mthethwa and the government. It seems to me there can be no doubt they colluded in having the police heavily armed and brought into a public order situation, reasonably knowing that it was bound to lead to killings. To that extent it seems to me they’re culpable and should be prosecuted. Will it happen? I don’t expect so.
Next is Lonmin. There is a very good 40-page submission by the Legal Resources Centre (LRC), which simply goes through the collusion between Lonmin and the police and says that Lonmin are accomplices to what happened on that day. I think Lonmin will receive severe criticism but nothing that gets anywhere near a prosecution.
Next on the list are senior police officers in the chain of command: General Mbombo, General Mpembe, General Annandale, General Naidoo and Brigadier Kalitz. I think Farlam will recommend that the National Prosecution Authority investigate each of those people with a view to prosecution, probably for culpable homicide, possibly murder. In my view the case against them is phenomenally strong, without a shadow of doubt. First is a sort of negligence: The chain of command on that day was so appalling it was highly likely to lead to killing, and they knew that. All the indications were there: ordering four mortuary vans on the morning of the killings, each capable of dealing with four bodies. When the mortuary attendant asked the police officer, “Why do you need these mortuary vans at Marikana today?” he replied, “Because we are going to close down the miners.” So that’s pretty clear. Also, on the morning before the killings they ordered a further 4 000 rounds of machine gun ammunition to be brought into Marikana, just in case it was needed. So clearly these police officers knew that there was going to be some form of action that was highly likely to result in death.
The second part is much more direct. We’ve seen scene 1 on television, where 17 people were killed, but scene 2, about 500 meters away, was not shown on television, and a further 17 people died there – really they were executed. The senior officers could have prevented that. They could have said, “We’ve lost 17 at scene 1 – just stop this operation immediately.” I believe the commission will find that each of those officers lied to the commission when they said that they did not know; that they knew what was happening and turned a blind eye.
Next are the people who actually pulled the trigger. Staggeringly, not a single police officer who was involved in that scene you saw on the television – in some cases firing machine guns on automatic mode – not one of them gave evidence. In my view it is an utter scandal.
The evidence leaders – very senior advocates who advise the commission, independent of any party – wrote a 700-page document in which they concluded the police were not really being attacked, but that the police at scene 1 had reasonable grounds for believing that they were being attacked and therefore were entitled to fire in self-defence. That is astonishing. I’ve been a lawyer for decades, and it’s astonishing that a lawyer could second-guess evidence like that. I had clients in what was called the Bloody Sunday Commission in Northern Ireland in 1971 where 13 civilians were shot by, I think, nine ordinary soldiers. When the new commission commenced some 30-odd years later after a campaign, every single one of those soldiers gave evidence – of course they did. It is a blight on the commission that those police officers were never brought to testify.
Regarding National Police Commissioner Phiyega, the recommendation is that she should be separately brought before a disciplinary board, to decide whether she is fit to be the police commissioner. My guess is that they will do something about that. I think that she will be a sacrificial lamb together with Mbombo and a couple of others. But do I think anyone will ever stand trial in a court? No, I don’t think so.
A!: The police’s version of events was clearly contradicted by a tremendous amount of evidence that came before the commission. In your experience, is that discrepancy typical in a case like this?
JN: I’ve dealt with what are termed miscarriages of justice – often people who have been convicted for murder but who are innocent. Those convictions often arise because of police malpractice – covering up or fabricating evidence. I was involved in a major case – the Bridgewater Four – where there was a big cover up. Let me tell you, it was absolutely nothing compared with what I’ve seen in South Africa.
Immediately after the killings, the police pulled together a conference which lasted over two weeks in Potchefstroom. There they fabricate a case against the miners where the whole idea of acting in self-defence, and they produce a document, a PowerPoint presentation for the commission which is called Exhibit ‘L’, with slides, documents. It explains in considerable detail the police case: plans, minutes of meetings. It was given to the commission at the very outset in October 2012. In June 2013, the man responsible for the presentation was cross-examined, Colonel Scott, and it comes out that these plans were not original – they were ‘reverse engineered’. They were made up after the incident.
That was the breaking of the dam. From there, we found out there was a mass of documentation that had been fabricated, others that had been concealed. The commission had been lied to. For example, at six o’clock in the morning on the 16th of August there was a minute in handwriting which starts off with: “D-Day”. Now we all know what D-Day is because the commissioner went on television saying it stops today – D-Day. But that didn’t fit in with their plan; they couldn’t concede that that had happened at six o’clock in the morning; they said it happened at one o’clock in the afternoon. So they contrived to fabricate minutes for the six o’clock meeting. And the whole of the police case is like that.
That is the tip of the iceberg. One astonishing feature is the missing memory stick. On the evening before the killings, on the 15th, there was a meeting of the Extraordinary National Management Forum – every provincial commissioner in South Africa – that takes the decision to endorse what is going to happen the following day. That meeting was recorded and transferred onto a memory stick. All of the memory sticks of the National Management Forum exist from when it commenced, years ago, to now – except that one – it is ‘missing’. Of course, it’s not missing; someone has got it, but they’re not going to let people have it. I mentioned earlier that four mortuary vans were requisitioned; that was concealed. The 4 000 rounds of ammunition; that was concealed. The whole of the police case is one of concealment.
The evidence leaders deal with this part quite well in their summary: they really say the police should be prosecuted for contempt of court, for fabricating material. And I think there will be some action taken over that.
A!: To what extent did evidence come to the fore indicating Lonmin was assisting the police at the time of the massacre, or had assisted?
JN: I’ll put it in context. Lonmin knew that there had been a protracted strike at Implats – by rock drillers and relatively successful. Between June and July, Lonmin sought to head-off a similar strike by trying to impose quite a small allowance. But they knew that the strike was coming because the rock drillers were unhappy. Before the first march, there is evidence that Lonmin telephoned the special advisor to the North West premier, complaining that the rock drillers would march and that they have to help out. There was a similar call to the police. From the very outset, they are not negotiating – they want the police in and they want the strike stopped.
Lonmin supported the police in a number of ways. They provided accommodation, helicopters, buildings, food. They provided detention faculties for anyone arrested on the day. They provided a very senior executive to be part of the police management team; that is astonishing. They provided two Lonmin operators who would constantly monitor the police radio traffic. They provided all the television technical CCTV operations, and they briefed the police at least once a day, sometimes twice a day.
What is more significant is this: There was a meeting between the provincial police Commissioner Mbombo, and Lonmin executives, which the Lonmin executives secretly recorded. That’s another thing that was concealed from the commission, but eventually we got it. It shows a number of things. First, that there was political pressure from Ramaphosa and Mthethwa for the police to act. You can hear it; it’s absolutely clear: Ramaphosa’s name is mentioned, the pressure is mentioned, the sharehold, the fact that he is in the ANC.
Second, the police commissioner says, we can’t have this dispute here at Lonmin settled by Malema peacefully – peacefully, for God’s sake! – because Malema will take credit, because when Malema was in the ANC before his expulsion, he settled the Implats dispute, much to the credit of the ANC, and she was saying we can’t have that this time.
The next thing you hear is that unless the strike stops immediately, it will spread to other places, to other mines, other parts of the workforce and it will be contagious. Then there was a discussion about how they fit together, and it was a most remarkable discussion where the senior Lonmin security officer – and remember Lonmin have got 500 of their own personal security staff on site. He says: “Today we deployed 140 SAPS officers. Tomorrow we want to deploy the horse unit.” Now Lonmin doesn’t have horse units. So he’s talking about Lonmin deploying state resources.
And then you get the off-the-cuff comment where someone – I think it is a man called Mokwena who’s an executive on the board of directors – says to Mbombo: “You know, the ones I like are the ones to the side.” And the other person says, “What, the snipers?” And he says, “Yes, the snipers – they’re the ones I like.” It’s all on this recording.
A!: What lessons would you draw from your experience with the commission for South African politics? What are the most encouraging signs you’ve seen through the process? What are the most discouraging?
JN: One of the problems is that the commission was terribly underfunded. The evidence leaders were essentially good but underfunded and therefore a lot of the things were not uncovered. There was no investigation unit.
The second thing is that Farlam’s control over the first year and three months of this commission leaves a lot to be desired. People came who had nothing to say, no evidence to give.
Another problem that you have in any country, but that is exaggerated in South Africa, is that lawyers tend to be from the middle classes, and even when they’re critical of authority they’re really looking at the issues through the same eyes. You don’t get anybody looking at it through the eyes of a miner, a worker. And that’s wrong.
Let me just give you an example of what I mean by that. There was the most monumental mounted gun that was paraded for three days through Marikana – the sort of thing you use in the Afghan war or the Vietnam war to blow holes in houses. It was very, very frightening. Eventually it was raised at the commission and the police said, it was there to intimidate – it wasn’t real ammunition. But nobody told the miners that. How do you see it through the eyes of a miner? “They’re going to kill me if they use that.”
Again, when it comes to the killing of two miners who refused to go on strike, the commission approaches it almost as if the democratically elected strike committee, representing at the end of the day tens of thousands of workers, was somehow directing each detailed operation. If you come from trade union movement and you’ve been involved in strikes, you know that some workers will go off and do their own thing.
A positive thing is that we did get the evidence to show that the state was lying. So we prevented the cover up in that sense. And that’s some significant achievement to prevent a cover up. The efforts that they went to to cover up was quite staggering, and that just didn’t happen – so that is a really positive achievement.
SAPS had always tried to prevent the women, the families, from speaking at the commission, or said, “If they speak we’ll cross-examine.” Of course that would have been terrible. But towards the very end of the commission we did have an arrangement where the lawyer would read statements from each family. Then Farlam said, and this was off-script, “Is there anything you’d like to add?” And one of them turned and looked across to where Josepth Matunjwa was sitting, and said: “Mr Matunjwa, my husband died fighting for a living wage. These people will say things that are untrue against you, but I ask you to continue to fight for a living wage in his name.” There wasn’t a dry eye, at least not on our side.
Another woman addressed the miners who were there: “I want to address you, the miners, the strikers – you are the people who were left behind. We rely upon you to tell us what happened to our husbands. We rely upon you to fight for a living wage; do not give up.”
Of course the miners themselves learned a lot about being independent of the unions, independent of authority, being democratic. The strike was run by the most democratic process, with the election of strike leaders and the dismissal of strike leaders and re-election of new strike leaders. It was a very, very democratic process.
A final comment. My experience here in the UK dealing with commissions tells me this: There’s a lot more evidence out there, and it will come out. People will come forward; it’s not easy to kill someone and keep it under your belt. Police officers will come forward, because they are ashamed of what they have done and they will want to say. The recording of that meeting will somehow be found. I know that there are first-hand witnesses out there, because I can see them on the CCTV footage: journalists, camera operators, photographers. They will come forward. Whatever Farlam concludes, I am telling you that this issue is not going away. Over the months and the years and the decades ahead, new material will emerge. And it will embarrass South Africa.