analysisBy Sipho Hlongwane
Investigator Johannes Botha faced a heavy two days, as various advocates at the Marikana Commission of Inquiry questioned his evidence, a video shot from a helicopter on 16 August. It doesn’t show the massacre, and he couldn’t explain why. The lawyers did an excellent job of shrouding his testimony in 50 shades of doubt.
We’re at that stage of the Marikana Commission of Inquiry where expert witnesses are being called in to sift through vast amounts of evidence pertaining to the incidents in the middle of August at Lonmin. This process is often tedious, as lawyers carefully peer at each piece of evidence, turning it over and over again to establish exactly what they want. The opportunity to cross-examine witnesses is given to every advocate representing all the parties to the commission, meaning some witnesses could conceivably sit for several days, facing the grilling of their lives.
On Monday and Tuesday it was the turn of SAPS Lieutenant-Colonel Johannes Botha, a crime scene investigator who was first called in to investigate the murders that took place before 16 August and who was in the air in a police helicopter when the massacre happened. He was asked by the commander to take video footage of the operation. The video doesn’t show much at all as it started recording far too late and only records people running away from the scene of the shootings.
Various advocates asked Botha why his evidence was of such a poor quality. Dali Mpofu, acting for the 78 miners wounded in the massacre, said: “You knew people were on the koppie? And you knew people were not at the mine's operations. And you knew no one was at the mine hostels...
you knew people were not in the open veld? And yet your video devotes about 80 to 90 percent... to those areas just mentioned.”
Botha replied that the shooting was over by the time he started filming.
He also testified that he only knew that 34 people were dead after he landed on the ground.
Lonmin’s lawyer, Schalk Burger, said the helicopter had three functions: to record the events of 16 August; to act as an aerial command post; and crowd control. Botha only accepted the first, and said that he did not know that the other two were correct.
“I am not an operations person who can say the helicopter is used for crowd control,” he said.
Burger appeared to struggle to believe Botha on that point, and repeatedly asked him if the brigadier who flew with them did not issue instructions as to where he should be filming, which he denied.
The investigator also seems to have started recording the video far later than he was ordered to. He couldn’t explain why the helicopter took off some 30 minutes after it was supposed to.
Botha also testified that he could not see people hiding at the small koppie, which lawyers found problematic, especially since he said that two stun grenades were thrown from the helicopter. That testimony implies that the helicopter was low enough so that people on the ground could be seen.
After the shooting, the police held a nine-day debriefing session in Potchefstroom, and Botha’s video was apparently never discussed or requested. The colonel testified that even after he landed and was told that dozens of people had been shot, nobody seemed eager to see if he had caught the incident on camera.
Tembeka Ngcukaitobi of the Legal Resources Centre said they would be calling an expert witness who would testify that the type of helicopter used by Botha is fitted with a very powerful camera which would have done a much better job of recording the operation. He also asked the colonel if he was aware that the water cannons were also fitted with cameras – this after Botha said that he was only aware of his own video footage – and if such evidence was ever discussed at the debriefing session.
Botha had trouble remembering many things, including what was said in the helicopter, and what exactly was said at the debriefing session.
While we expected Botha to face a stiff line of questioning from the lawyers acting for the dead and wounded miners, perhaps the person who gave him the most difficult time was Lonmin’s Burger. He made sure to put as much distance as possible between the police and the company on the day. His line of questioning and reasoning may be prompted by opening statements made by Mpofu, who said he will show there was some kind of collusion between the company and police to the point where the police operation was run from company premises.
At this point of the report, let’s take a step back. We know most of the advocates think the video was rubbish. Their disappointment stems from the fact that it would have been the one piece of recorded video evidence that would have captured the operation in its entirety. We could have seen the police move into the big koppie, Scene 1, and how they then moved to Scene 2. It would have told a good story of how the operation happened. We might have been able to solve the dilemma of the divergent narratives of 16 August with this video alone.
Instead, we are left with a police officer with 26 years of experience who appeared to have carried out his duty in a strange and haphazard manner that meant that he got to the scene with his camera long after the action was over. His memory is also frustratingly poor – surely in his two decades of service he cannot have dealt with many such massacres requiring so many police to be involved? Surely the facts of what happened, or even a general idea, would stick in his memory? It was a very strange testimony in the sense that what was left out is exactly what we all came to the commission to hear.
Botha’s testimony will only truly make sense once it is viewed in context of what everyone else will say. But it isn’t good for him or the police that we are left with more questions after he has run the gauntlet for two days against some of the finest legal minds in the country.
Amid the finger pointing and jostling between the advocates, it was left to the commission chairman, Judge Ian Farlam, to make the point that everyone else seemed to be missing. He said: “It is less likely that people are going to commit atrocities if they are being filmed. Is that not so?”