The Farlam Commission sits for its 99th day in the Rustenberg Civic Centre Auditorium
It was the afternoon of the 99th day of the hearings of the Marikana Commission of Inquiry and Judge Ian Farlam was at the end of his tether.
Seated on a raised platform on the stage of the Rustenberg Civic Center’s auditorium, he had just spent a frustrating day watching a game of legal cat and mouse in which the cat did not have claws and the mouse could not run. It had not been an edifying spectacle and Farlam had shifted about in his chair, sometimes placing his cheek on his fist and at others sitting ramrod straight and staring into the middle distance with the tips of his fingers touching beneath his raised chin.
To his right sat the Commissioner of Police, Riah Piyega, wearing a dark jacket offset by a white shirt and a red cravat and a pair of spectacles, which she sometimes removed to reveal closed eyes and a the brow of someone attempting to minimize the effect of a migraine.
To his left sat the representative of the injured and arrested Marikana protestors, Dali Mpofu, also in a dark suit with a white shirt, against which his luminescent lime green jersey and tie glowed in the stage lighting.
All around sat lawyers, translators and assistants – at times numbering as many as 35 – each enduring the unedifying spectacle in their own way. Some flicked through lever arched files, others flitted from one desk to another to pass on photocopied documents, which were immediately placed on piles of other photocopies documents, the detritus from previous unedifying spectacles.
For the entire day, Mpofu and Phiyega had been asking and answering the same question in a hundred – perhaps a thousand – different ways.
Mpofu’s line of questioning was aimed to establishing that the policeman, Major General William Mpembe, had been removed from his position of authority because he favoured a more reconciliatory approach with the protesting miners. He had been replaced, Mpofu was suggesting without ever actually saying so, by Major General Charl Annandale in order to change tack to a more confrontational approach.
The question went to the heart of police culpability. If it could be shown that a policeman who was encouraging union leaders to talk to the striking miners to defer violence was replaced by a more hard-lined officer, it would suggest a decision higher up in the police chain of command to take more repressive action or worse, that the shooting dead of the 34 protestors had been planned by the police hierarchy.
The problem was that Phiyega insisted that she was not aware of such a decision, a position she would not deviate from despite extensive provocation.
In one variety of the question, Mpofu referred to the attendance register of a police meeting in which Mpembe’s name appeared lower down on the list than that of Annandale. Mpofu asked if it was not the case that “number two is higher than number three”. Phiyega’s response was that the list was “in descending order” but that there was nothing to be read into one major general appearing lower than another on the list.
Then began the game of cat-and-mouse. Mpofu appeared unwilling to accept that Phiyega’s testimony that she had not been aware of these operational details.
Mpofu asked this question over and over again in different formulations and Phiyega gave the same answer over and over again. These, she said, were “operational issues” about which only those directly involved could give evidence. Farlam rested his cheek on his fist. Mpofu asked increasingly obscure questions, Phiyega gave the same dispassionate answers in the same tired monotone.
At one point, Farlam pointed out that the commission would be entering its 100th day the following day.
The commission had originally been asked to do its work in one month – January. It had obtained a four-month extension until the end of May and now it was about to ask for a further four-month extension, taking it through until the end of September. The current hearing is “Phase One” of the commission’s work. Phase Two, which will examine the “socio-economic” issues underpinning the violent confrontation, is yet to start.
The commission’s banners, which bracket Farlam and his assessors, include a logo – a rising sun, which appears to be emerging from a stylized flower. Underneath is a precise of its mission: “Committed to finding the truth in the interests of justice”, which suggests that it sees itself as doing far more than simply establishing the facts of what took place. It wishes to establish the facts, but also act as a mini truth and reconciliation commission. The danger of “mission creep” turning it into a never-ending “process” is real.
Four witnesses are already dead under unexplained circumstances: A National Union of Mineworkers official who pointed out where workers had been shot, an organizer for the rival AMCU, the Inyanga who was alleged to have given the strikers muti, to make them invincible and one of the strike leaders.
Back at the hearing, the cell phone of a television camera operator rang, filling the hall with the singing of a traditional song. It was some time before it was switched off. Farlam reminded all that phones had to be silent during the proceedings.
Judge Ian Farlam reads the riot act to Dali Mpofu
Dali Mpofu responds to the dressing down by Judge Ian Farlam
He tried to move things along, rephrasing Mpofu’s sometimes-clumsy questions in abrupt legal shorthand, and putting them to Phiyega, who replied with the same answer she had been giving all morning.
Once, during such a summation, Mpofu had intervened and Mpofu apologized and the tension appeared to have been lowered.
Then as the commission’s 4pm closing time came and went, Farlam could finally take it no more as Mpofu appeared to question a ruling he had made.
Farlam said that his experience from years spent at the bar was that it was a bad idea to show dissent at a presiding officer’s decisions. His finger was raised and his eyes appeared to bulge ever so slightly.
Mpofu responded that he was merely fulfilling “my professional obligation”.
This agitated Farlam further. What disappointed him was Mpofu’s “body language and a general air of respect or lack thereof”. It would seem to those observing, Farlam said, that he was not giving Mpofu a fair chance.
The commission adjourned for the 99th time.