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Embattled former police commissioner is heading to court to challenge Farlam commission’s findings, which she says were simply a cut-and-paste job
With less than a month to go before the board of inquiry into her fitness to hold office begins, suspended national police commissioner Riah Phiyegahas begun another battle.
This time, Phiyega is set to launch an application in the North Gauteng High Court to have the findings of the Farlam commission of inquiry against her set aside.
Phiyega has instructed her lawyers to haul to court all the role players in the inquiry, held after the Marikana massacre in which 34 mine workers were gunned down by police, to challenge Farlam’s adverse findings against her.
Those Phiyega is citing as respondents in the case include President Jacob Zuma, Police Minister Nathi Nhleko and Justice Minister Michael Masutha, as well as Judge Ian Farlam and his evidence leaders, including advocates Matthew Chaskalson and
Geoff Budlender.
Speaking to City Press this week, Phiyega confirmed that she was challenging the findings against her.
“My lawyers are currently drafting the court papers and will soon approach the court. While that process continues, I want the board of inquiry to continue,” she said.
City Press understands that Phiyega’s legal team has been scrutinising the findings of the commission and comparing them with the heads of argument submitted by the evidence leaders.
“So far, they have found 113 instances where the retired judge copied the heads of arguments verbatim. This shows that he just copied and pasted the arguments and incorporated them into the report,” said a confidante of Phiyega, who spoke to City Press on condition of anonymity.
City Press has obtained a copy of a memorandum prepared by Werksmans Attorneys, which highlights the similarities of the submissions by evidence leaders and Farlam’s findings.
City Press understands that Phiyega’s lawyers last week wrote to Farlam about their concerns and their impending court challenge.
Last year, the presidency announced that a board of inquiry, chaired by Judge Cornelis Johannes Claasen‚ and assisted by advocates Bernard Sakhile Khuzwayo and Anusha Rawjee, would investigate allegations of misconduct against Phiyega.
The board has been tasked with establishing whether Phiyega and senior police officers under her leadership misled the Farlam commission by hiding the fact that they decided to implement the so-called tactical option – the decision to use maximum force against the hundreds of striking platinum mine workers – at a national management forum meeting of senior police leaders, which took place the night before the massacre.
Phiyega’s remarks at a police parade held shortly after the massacre in which she praised police for the action they took, as well as the cover-up of the slaughter of fleeing mine workers that occurred at Scene 2, will also be investigated by the board.
The inquiry was expected to start next month, but may be stalled because of Phiyega’s court challenge, despite the fact that she has asked for the inquiry to proceed regardless.
The Farlam commission of inquiry was critical of Phiyega’s role in the events surrounding the massacre.
A least 44 people were killed in Marikana during the wildcat strike by Lonmin workers, including two police officers and security guards, who were allegedly killed by striking mine workers.
Although 18 mine workers have appeared in court charged with those murders, no police officers have been investigated and charged for their roles in the massacre and the extrajudicial killings at Scene 2.
The Independent Police Investigative Directorate (Ipid) is investigating Phiyega, former North West provincial commissioner Zukiswa Mbombo, and senior provincial officers Major General Ganasen Naidoo and Brigadier Ledile Malahlela.
The charges against Naidoo relate to his alleged failure to “exercise command and control” at Scene 2, and Malahlela will be charged with defeating the ends of justice because he allegedly concealed a memory stick containing sensitive information in connection with the massacre.
Acting Ipid head Israel Kgamanyane told Parliament’s portfolio committee on police in February that the team tasked with implementing the Farlam commission’s findings had registered criminal charges against Phiyega and Mbombo in September. However, the team needed a R5 million budget allocation to complete the implementation of the Farlam findings, which included a thorough forensic investigation into what happened at Scene 2.
Kgamanyane said the charges against Phiyega and Mbombo have been sent to the National Prosecuting Authority for a decision to prosecute‚ and other charges could and would be formulated as investigations proceed.
