Phiyega ‘unfit for office’

Johannesburg - Suspended National Police Commissioner Riah Phiyega is not fit to hold office and should be dismissed, the board of inquiry into her fitness to hold office has found.

Phiyega will now become the third successive national police commissioner to leave under a cloud, and the first police officer to be held to account for the 2012 Marikana massacre, in which 34 mine workers at Lonmin’s platinum mine were killed while protesting for higher wages.

Her predecessor, Bheki Cele, was fired by President Jacob Zuma in mid-2012 after the Moloi Board of Inquiry found gross misconduct on his part when dealing with a property lease for police headquarters.

The career of Cele’s predecessor, Jackie Selebi, also ended in disgrace in 2009, when he was discovered to be in a corrupt relationship with convicted drug lord Glenn Agliotti – a crime for which he was convicted after he left the police service.

Now Phiyega also faces the prospect of being booted out, perpetuating the state of turbulence in police leadership.

Three sources with knowledge of the findings told City Press this week that the board of inquiry, headed by Judge Cornelis Claassen, also found that Phiyega lied to the Marikana Commission of Inquiry, headed by retired Judge Ian Farlam. Phiyega is challenging the findings of the commission.

It found that she failed to disclose that there were two crime scenes at which the 34 mine workers were gunned down in August 2012 – Scene 1, at which some of the mine workers were killed; and the infamous Scene 2, where police pursued and shot fleeing mine workers, many of whom were killed while hiding behind rocks.

The findings have not been communicated to President Jacob Zuma because the presidency is yet to provide a date on which the board can brief him about its findings and recommendations. The inquiry concluded on June 3 and the report was finalised on November 13.

City Press has also learnt that Phiyega only became aware of the findings “informally” – and she is already planning to have the report reviewed in court.

Two sources sympathetic to Phiyega, as well as one close to the Claassen inquiry, confirmed she was found unfit to hold office.

“Phiyega’s future as the commissioner has been cut short,” said one.

“She is also aware that she will not return to the police service again. But she is considering challenging the verdict and will only do so when she gets a report.”

Said another: “She is not going to go without a fight. She does not want a golden handshake; she wants to clear her name.”

City Press has learnt from two senior security cluster sources that the hunt for the next national police commissioner was already under way this week.

“The plan is that, when the president announces the findings, he will also appoint a permanent police commissioner,” said one highly placed police official.

After learning of the inquiry’s findings, Phiyega wrote to the board’s secretary, Advocate Liza Tsatsi, asking that the board comply with the SA Police Service Act, which stipulates that at the conclusion of an inquiry, the board must submit its report to the president, the national police commissioner, the commissioner concerned and the relevant parliamentary committee.

“In light of the above, kindly furnish us with the copy of the report,” Phiyega wrote.

City Press learnt that Tsatsi did not respond formally to the letter, but informed Phiyega that it would be unfair for her to receive the report while “other parties involved” had not yet received it.

A board insider told City Press this week that Phiyega’s case at the inquiry was badly damaged by her refusal to submit to cross-examination.

The case against her was also significantly strengthened by Claassen’s ruling that witnesses, who had not testified at the Marikana Commission before Judge Farlam, could be called to give evidence.

The most damning testimony, a board insider said, came from former police spokesperson Brigadier Lindela Mashigo, who told the inquiry that Phiyega instructed him to present the massacre as one incident and not two, and also to say that the police had acted in self-defence.

“Mashigo’s testimony was very direct, because it was first hand. He was directly implicating Phiyega in wrongdoing,” the insider said. “And she failed to dispute that. She made it difficult for the judge to believe her because she refused to take the stand.”

Mashigo told the Claassen inquiry that he made changes to the police’s media statement, issued after the massacre, because Phiyega had told him to.

“The changes came about through dictation by the national commissioner. The main changes were on the statement,” Mashigo testified.

Mashigo said Phiyega told him that, at a media briefing the day after the massacre, they should relay the Marikana shootings not as two scenes, but rather, as a single occurrence.

The changes, he testified, included “not differentiating between the two scenes” and “the ‘systematic withdrawal’ of the police. That, too, was dictated to me by the national commissioner.”

In the statement, police said that they “retreated systematically and were forced to utilise maximum force to defend themselves”.

“That is a line that was dictated to me by the national commissioner when we were compiling that media statement,” Mashigo testified.

The board insider told City Press that closing arguments by evidence leader Advocate Ismail Jamie SC were also “very strong and convinced the judge and his assistants”.

Zuma had asked the Claassen Board of Inquiry to investigate whether Phiyega misled the Marikana Commission by hiding a decision to implement a “tactical option”, taken at the national management forum meeting of senior police the day before the massacre.

He also asked it to investigate whether a catastrophic result should have been foreseen, and whether Phiyega’s speech to police officers the day after could have been construed as permission to frustrate the Marikana Commission’s work.

The board was also to investigate whether Phiyega lied about Scene 2, and about the police having acted in self-defence.

Jamie told the board of inquiry that anyone with a “slight” understanding of the situation at Marikana at the time would have foreseen that the tactical option would lead to disaster.

He said Phiyega was either incompetent or grossly negligent, and if she anticipated that mine workers would die, she could be guilty of murder or culpable homicide.

Jamie said Phiyega’s statement to police officers after the massacre, in which she said Marikana “represents the best possible policing”, was “breathtakingly inaccurate”.

“It was a disaster, for which the captain of the ship must take responsibility,” Jamie told the commission.

He also slammed Phiyega for staying silent, after what she had claimed was a “witch-hunt” against her.

“This was a specific inquiry focussing on the conduct of the national commissioner, precisely to get to the bottom of this sort of thing … and she chose not to testify. And we say, that says it all,” he said.

This week, police watchdog body the Independent Police Investigative Directorate (Ipid) confirmed it had listed Phiyega as a person of interest in its investigation into the massacre. “It does not mean that when she leaves the police service, we will not go after her,” said a senior official.

“We will still charge her if the need arises.”

In February, Ipid told Parliament it would recommend charges of defeating the ends of justice against senior members, including Phiyega, but no police officers had faced any formal charges resulting from the massacre.

At the time, Ipid told Parliament it still did not have enough evidence to bring formal charges against any officers.

Full report of board of inquiry into Phiyega's fitness to hold office by CityPress on Scribd