Interview with James Nichol

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James Nichol is a criminal lawyer based in London. During the Farlam Commission, he has represented families of many of the miners killed in the Marikana massacre. This is an edited version of the interview conducted by Amandla! on 30 November 2014.

 Amandla!: 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. 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: 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. All the indications were there: ordering four mortuary vans on the morning of the killings, each capable of dealing with four bodies. 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.”

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.

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: 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 for the commission which is called Exhibit ‘L’, with slides, documents. 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.

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.

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: 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. 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.

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