Phiyega can be grilled on evidence beyond Farlam Inquiry - judge

3 May 2016

Pretoria – The chairperson of the inquiry into suspended police commissioner Riah Phiyega’s fitness to hold office on Tuesday granted a request to question her about more than just the evidence she gave at the Farlam Commission of Inquiry.

"If she [Phiyega] were to give evidence, we are of the view that the evidence leaders be entitled to refer to matters which have a direct relationship with what happened in the Farlam Commission," the inquiry’s chair Judge Cornelis Johannes Claassen said in Pretoria.

Evidence leaders, led by advocate Ismail Jamie, submitted that they be allowed to call witnesses who may not have testified during the Farlam Commission last year.

It would be absurd for the inquiry to limit its scope to only the evidence she gave during the commission, if she had acted in an objectively dishonourable manner outside it, he argued.

Ignoring her statements outside the commission, would be "like putting blinkers on your eyes", Jamie said.

He argued that during the commission, Phiyega had blatantly acted against retired Judge Ian Farlam by not allowing an expert witness, who was a member of the SA Police Service, to give evidence. In addition, she had described Farlam's report as malicious.

"For a public servant to accuse a Judge of the Supreme Court of Appeal of malice is a serious charge which is unwarranted. There is no basis for this unwarranted attack," Jamie said.

He said Phiyega had to be held to high standards and her conduct had to be in line with the Constitution.

Phiyega's lawyer, William Mokhari, submitted that extending the scope of the inquiry would open his client up to criticism for actions that lay outside the inquiry's terms of reference. These terms, set down by President Jacob Zuma, were specifically based on her conduct during the killing of 44 people in Marikana in August 2012.

He said Jamie and his colleagues had agreed to the original terms of reference and were now trying to change them to "augment or bolster a case that was never made before Farlam".

Only Zuma could change the terms of reference, he said.

Terms of reference

Claassen told Mokhari that an investigation into Phiyega's conduct and fitness to hold office needed to be broad in scope.

Zuma established the inquiry in September last year, following Farlam’s recommendations. They included the inquiry into Phiyega.

The inquiry was tasked with investigating the deaths of 44 people killed during strike-related unrest at Lonmin's platinum mine in Marikana, Rustenburg in August 2012. Police shot dead 34 striking miners on August 16, apparently while trying to disperse them and end the strike.

Zuma received the commission's final report on March 31. He released it to the public on June 25.

Zuma suspended Phiyega four months after receiving Farlam's recommendations, in October, over 14 allegations of misconduct.

The terms of reference included:

- Whether Phiyega and senior police officers misled the Farlam Commission by hiding the fact that they had decided on using maximum force against the striking platinum mine workers. This apparently happened at a national meeting of senior police leaders the night before the fatal shooting;

- Her remarks at a police parade held shortly after the shooting in which she praised police for their actions;

- Whether there was a cover-up of the killing of fleeing mine workers at Scene 2 in Marikana.

This article first appeared on News24, see here.