The Marikana Commission has finally begun to hear from the miners who were at the heart of the strike last year. Terrifying testimony from Mzoxolo Magidiwana who says police went around finishing off wounded miners at scene one.
He said that after he had been wounded in the leg and fallen among several other injured and dead miners, “I could hear voices of policemen approaching the place where we had fallen. When they got to me, I was again shot several times from close range whilst I was on the ground.”
“I sustained further shots in my abdomen. The last shot caught my testicles and caused me some severe injury. I pleaded with the police to rather kill me.”
Magidiwana says that he was laughed at, and told that he would die anyway and the police would not bother to finish him off.
Police, on the other hand, say he was seen firing a pistol at the police, something he denies, saying he has never had a gun of any sort.
In building his case that police had deliberately set out to exact revenge for the deaths of two policemen three days previously, the wounded miner’s counsel, Dali Mpofu also presented a video clip of North West police commissioner Zukiswa Mbombo telling journalists that “I do not want to explain to you what we will do if they won’t move, but today we are ending this matter.”
On the ground, the police officers reflected the same, one isiXhosa speaking cop even told a ‘homeboy’ miner from the Eastern Cape that they had been given the authority to shoot the strikers. Other police officers referred to the 16th D-day, using the phrase that was the code name for the Allied forces landing on the Normandy beaches of occupied France and was the beginning of the end for the German Nazi forces of WWII. Within hours, the gunfire and bloodshed at Marikana was itself to resemble a war zone.
While Magidiwana’s testimony still has to be fully examined in the commission, it is seems unlikely that the video footage of the day will not determine the truth of either version. There is footage of the one miner at the initial scene who shot at police after the teargas and rubber bullets had been fired by the police. It should be a simple matter to determine if this was Magidiwana or not. On the other hand, if Madigwana fell wounded next to strike leader ‘Mambush’ Noki, and in the following minutes was shot at close range by police, this would have surely been witnessed or captured on camera by journalists at the scene. Perhaps the trauma of the day compromised his memory of actual events, though his wounds reflect that he indeed was shot several times.
These inexplicable failures of basic common sense in some of the discussions around the witnesses and evidence is not helping the nation get closer to what happened on the 16th Aug 2012. And it would seem that the legal counsel are trying to show the motivation(s) of the various players by way of events on the ground.
Yet behind the scenes of legal thrust, parry and fumble as the truth or other is being pursued in a Rustenburg hall, there are dark manoeuvrings afoot. The Commission was meant to be the sole legal avenue being pursued regarding the events before and during the Marikana Massacre, yet the police in North West have, for months now, been extremely busy arresting and charging people – mostly, but not exclusively, miners – from the communities around Marikana.
The Associate Professor of Law at Wits’ Centre for Applied Legal Studies (CALS) Bonita Meyersfeld says that “There was a strong call from all quarters, including parliament, that the Commission of Inquiry into Marikana be allowed to take it’s steps to operate without parallel processes.”
Despite this, other legal, and illegal, processes continue, but only against the miners and the communities they hail from. Recently, the 276 miners who had been initially arrested on the afternoon of the massacre of August 16 and charged with the murder of their own colleagues by the National Prosecuting Authority under the common purpose doctrine, had to appear in court again. While the NPA, under pressure from the public and Minister Jeff Radebe, withdrew the murder charges, it had not dropped the charges of public violence. Despite representations from the commissioners, the commission had to adjourn for two days as the hundreds of accused and their supporters travelled to the Garankuwa magistrate’s courts.
Here, the day was wasted as the men, in small groups due to the size of the courtroom, traipsed in simply to hear that the matter had been postponed until after the commission. It is not as if the justice system needed to check if the accused were still around – they have to appear three times a week at their local police station to ensure – most say they have to show themselves every Monday, Tuesday and Friday.
While the miners and supporters sang songs to bolster their courage on the bus ride in, many were clearly afraid. Some refused to be photographed for fear of being singled out by the police. Their fears are not without cause.
We have previously reported on the torture in detention of some strike leaders previously here http://www.dailymaverick.co.za/article/2012-11-02-marikana-police-torturing-their-way-to-intimidation, and the attempted intimidation of people who might be damaging witnesses against the police, yet arbitrary arrest and the violation of the constitution seems to continue.
Many of the strike leaders live in fear, some still bearing the scars of previous assault. As the crowd of Marikana residents made their way into the court grounds, these policemen were so brazen that they lined up to try and spot who among the miners supporters they still wanted to arrest. The courage of many of the men disappeared when they saw the faces of policemen they say were complicit in their torture over the last months. Some of those cops are known by name to the DM. These policemen, dressed in civilian clothes, were pointed out to DM as being the Crime Intelligence members who led raids on the miners, and arrested them. As the throng of miners and their supporters made their way into the court property, they were hungrily watched by these policemen, who were mostly dressed in Pep Stores-Rhinestone Cowboy fashion. They mostly wore blue jeans and brightly coloured shirts boasting decorative detail.
What is curious is why restraining orders have not been taken out by the miners’ lawyers against the SAPS to prevent these arrests, detentions and tortures. These attorney and advocates arrived at the Garankuwa Magistrates Courts seemingly oblivious that the tormentors of some of their clients were watching their splendid vehicular entrance with narrowed eyes.
Professor Meyersfeld, an expert on torture, responded to the claims “If it’s true, it takes us back to some of the darkest days of apartheid police brutality. Violence is absolutely not allows as a method of interrogation. This is in fact one of the most undisputed principles of international law.”
The Independent Police Investigative Directorate, the body empowered to root out abuse by the police, responded by saying ‘Kindly note that the IPID cannot comment at this stage, as doing so could jeopardise ongoing investigations.” Which is interesting, as they have previously said they cannot investigate unless a charge has been laid. To our knowledge, the assaulted miners have been too scared to lay a charge, and their attorneys had not responded to our queries as to charges being laid. If there is indeed an IPID investigation, it is curious that the alleged perpetrators are allowed to continue to intimidate people, especially in such a high profile matter. If IPID are hot on the trail of the torturers, it would be good for the people of Marikana, as well as the witnesses, to know this. They, and we, need to be assured that police brutality is not simply a given in our land once again.
It is not that the police should cease all of their work in an area like Marikana because of the Commission, but it be done according to our and international law, and that the commission be allowed to do its work unhindered by policing that seems to be more intimidatory than seeking to further the interests of justice.
One of those strike committee members fortunate enough to have evaded arrest by the police is Lungisane Nogwanya. He is surprisingly youthful, the father of two very young children, and he evades capture by sleeping at different places each night. “The police are looking for me. Those that are arrested are asked where I live, how they can find me. (Their heads) are put in a plastic bag, the door is closed, a pipe is taken, those white electricity ones. They say they are beaten with these. They come back red in the body. They are asked to take their clothes off and they are beaten on the cement.”
“How is it that we can be arrested, when it was said that nobody would be arrested until the end of the Commission. The Commission will tell who will be arrested.”
Nogwanya says that it is the police and the trade union NUM who are looking for him. He says this while wearing the green t-shirt of AMCU, the union that has replaced NUM in the platinum belt miners’ workplace and hearts. Nogwanya acknowledges he cannot escape the police for ever, “Even those that are arrested, they are asked where I live, how they can find me. They say the police are looking for me. My day is also coming. I am afraid.”
He relates that even as another of the strike leaders, Xolani Ndzuza, was arrested, he managed to run and escape. Ndzuza claims he was beaten while in detention after that arrest, and the matter was brought up with the commission by his legal counsel advocate Dali Mpofu. Yet it seems that little or nothing was done to stop the reign of terror that is happening out on Rustenburg way, where that suburban facade that the police are there to serve and protect has no resonance.
Even women who are not mine workers are being targeted. Primrose Nomzekelo Sonti is a middle-aged woman who is an ANC stalwart in the shanty settlement of Nkanini. Well, she was, until the events of the 16th and then a month later, her friend and ANC counsellor Paulina Musohlo http://www.dailymaverick.co.za/article/2012-09-20-marikanas-theatre-of-the-absurd-claims-another-life/ was shot by police. Public Order Policing members opened fire with rubber bullets at her and a group of women gathered outside the community hall in September. Two rubber bullets hit Paulina, one grazing her abdomen and the other embedding itself in her knee. She was operated on and due to be released from hospital when she inexplicably died. I won’t share the conspiracy theories of why she died after she was due to be discharged, but suffice to say that the community has nothing but anger and hatred for the police.
Of course, why no-one has been charged with her death is also odd. Rubber bullates are designed to be bounced off the ground, and are lethal under 50 metres, so when police fire willy-nilly into a group of woman at a women’s group meeting from the portholes of an armoured vehicle, it does not exactly shout out “In the interests of public order.” These same small, round rubber bullets easily penetrated the corrugated iron of the Nkanini shacks during that day.
Just three weeks ago Sonti was arrested for intimidation, she says, “They asked me why we were supporting the strikers. I said, our bothers and husbands are dead, so we are supposed to support them.” The police asked what they were there, Primrose answered that she was watching President Zuma and the ‘Kings from the Eastern Cape’, and Julius Malema. The police responded, she says, by asking “Where is that bladdy shit Julius Malema? How much money did Julius Malema donate to Wonderkop?”
Sonti says the police threatened to beat and jail her, but she remains unmoved “These police know that they themselves are guilty, but they want to blame the miners and the community for causing the death of these people, that is why they go everywhere, arresting us. But we know it is the police.”
Whilst it is unclear if these police actions are meant to further justice, or the interests of a narrow group, or the state. It is clear that they have lost the faith of the community. They have also managed to ensure the average person in Marikana feels abandoned, “The government don’t care about us, the government don’t care about us, never, more especially the ANC. I am angry with ANC,” says Sonti.
These people are not hardened criminals, they are workers who took part in a strike. Some them did indeed commit crimes, even murder. But collective punishment cannot be meted out by the police. Of course, not a single policeman has been arrested, suspended or even charged regarding the events of the 16th.
The submission by the police to the Farlam Commission admitted that police killed 34 people, and while it remains to be seen if these killings will later be termed murder or not, equality before the law seems a foreign concept at this moment. Prof Meyersfeld says, “If I’m not feeling safe, secure, if I’m not feeling like I can come forward and tell my story and somebody is going to listen to me and give me the space, without fear of further persecution, then I would not personally feel that that is the pursuit of justice. I don’t think that’s fair.”
Quite simply, the prosecuting authority and the police are not acting with due impartiality, when it is needed most. And as usual, it is poor who suffer most at the hands of these arms of the state.