ISS: Disgraced Phiyega is highly unlikely to survive the inquiry into her conduct


A little over a year after police officers shot 112 striking mine workers at Marikana, killing 34 of them, President Jacob Zuma spoke of the South African Police Service’s (SAPS) National Commissioner Riah Phiyega in glowing terms calling her, ‘absolutely wonderful, confident and competent.’

While his sentiment may have been the result of her personal loyalty to him, Zuma had no choice but to act against Phiyega once the report of Judge Ian Farlam’s Commission of Inquiry into the Marikana massacre was presented to him.

At a cost of R153 million to the taxpayer over two years, the inquiry sifted through thousands of hours of testimony and a mountain of hard evidence before reaching its findings and recommendations. It is because of these findings that Phiyega currently faces a board of inquiry into her fitness to hold office. In revisiting the Farlam Commission’s findings against her, it is difficult to see how this current board of inquiry into her fitness to hold office could end positively for Phiyega.

It is worth reflecting that the post of SAPS National Commissioner is immensely powerful. The person who holds this position is in command of over 198 000 people, of whom around 160 000 are armed police officials – with the remaining personnel providing administrative services. Police officers have powers to deny civilians their freedom; for example by making arrests and confiscating property if it is suspected to have been stolen or to be contraband. But for the police to do this effectively, they need the public to have trust that they will exercise their powers fairly, and in the interests of public safety. This can only happen if police leadership are seen to be honest and guided by the Constitution.

It is for this reason that the Constitution and the SAPS Act contain clauses that emphasise the importance of the principles of transparency and accountability with regards to the SAPS and its members. Moreover, these values are re-emphasised and expanded on in the official SAPS Code of Conduct, which states that police officers will ‘act impartially, courteously, honestly, respectfully, transparently and in an accountable manner.’ Indeed, having integrity is internationally recognised as a fundamental characteristic of effective police leadership.

As head of the SAPS, it was therefore expected that Phiyega would fully support the efforts of the Farlam Commission of Inquiry to establish the truth about what happened at Marikana. Phiyega spent 21 days on the stand presenting the SAPS version of events and giving her side of the story. After considering Phiyega’s evidence and all other available facts, the Farlam Commission made a number of damning findings against her – some of which are briefly summarised below.

The police version was that their decision to remove the striking mineworkers from the ‘koppie’ where they had been gathering each day, was taken by police commanders on the scene at around 13h00 on 16 August. It was claimed that this was in response to circumstances on the ground that required action from the police to stabilise the situation.

Importantly, the Farlam Commission found that there was prima facie case against Phiyega that she approved this version, despite knowing it contained incorrect facts. Simply put, the commission found the police version of events to be false.

Rather, the commission found that what had actually occurred was that the decision to disarm and disperse the striking mineworkers on 16 August had been taken by senior SAPS leaders, the day before. This happened at an ‘extraordinary session’ of the SAPS National Management Forum, at which Phiyega had been present, on the evening of Wednesday 15 August.

This finding is significant, since evidence before the commission showed how senior operational commanders had warned that ‘… proceeding to the tactical option that day would involve bloodshed…’ The commission found that rather than revisit the decision to disperse, disarm and arrest the striking mineworkers, top SAPS commanders – including Phiyega – accepted that bloodshed might follow and arguably, reconciled themselves with that likelihood. The police ordered four mortuary vans in addition to 4 000 rounds of ammunition for R5 automatic rilfes to be in place for the 16th.

The commission found that any decision by police commanders to use force, when in all probability such force would result in bloodshed and where there were alternatives less likely to have this consequence, could be considered an illegal decision. This is because it breached South African law, ‘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.’

The commission further found that, in an effort to distract from police failings at Marikana, the scene was set for a ‘cover up’ very early on. The day after the shootings, Phiyega released a statement to the media – one that she had amended from an earlier version she had sent to President Zuma the night of the massacre – in order to conceal facts so as to mislead the public about the nature of the shootings by the police.

Later that day, Phiyega addressed a police parade, stating that, ‘what happened represents the best of responsible policing. You did what you did because you were being responsible.’

The commission found that this statement was: ‘… singularly inappropriate because it set out what was from then on to be the official police line: that no blame at all attach to the police for what happened as they were being responsible in what they did.

Moreover, ‘This was calculated to effect the closing of the ranks, encouraging those who had participated in the operation to withhold 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 responsible policing.’

Indeed, the commission found that further coordinated efforts to construct a police version of events took place at a police meeting held from 27 August to 8 September 2012 in Potchefstroom. The commission agreed that this conference was used by the SAPS leadership as an ‘opportunity to collude’ in order to construct ‘tailored’ evidence, withhold certain damning evidence and provide other evidence that was ‘materially false’ to support the SAPS’s manufactured version of events at Marikana – both in the run-up to and during the massacre.

As a result of these findings, the Commission of Inquiry agreed with the argument that Phiyega ‘gave false evidence to the commission and her evidence before the commission was generally characterised by a lack of candour’. Moreover, it found that her ‘immediate response to the shootings was incompatible with the office of the head of a police service in a constitutional state.’

These official findings have raised public doubt about Phiyega’s integrity and her suitability to hold office, and have therefore arguably brought the SAPS as an organisation into disrepute.

It is for these very reasons that the Farlam Commission recommended Phiyega be subjected to a board of inquiry to determine her fitness to hold office. The Farlam Commission had to recommend this, as by law the only way that the SAPS National Commissioner can be removed, is on the recommendation of a board of inquiry established for this specific task.

Since her suspension, Phiyega has been making unsubstantiated claims through the media that there is a ‘witch hunt’ against her and oddly enough, that the inquiry is ‘a platform’ that she had ‘been aspiring to have’ in a bid to clear her name. However, this is highly unlikely to be the result. If anything, this inquiry is likely to reveal further details that can be used against her. No amount of obfuscation will shield her from the hard, cold facts, that reveal her role in the most shameful episodes of policing in post-apartheid South Africa.

Written by Gareth Newham, Head of the Governance, Crime and Justice Division, ISS

Republished with permission from ISS Africa. The original article can be found here.