The use of ‘weapons of war’ by the police in 16 August demonstrated an intent to kill, advocate Dumisa Ntsebeza told the commission on Monday. But proceedings stalled as lawyers representing miners who were subpoenaed to the stand secured Judge Ian Farlam’s agreement to no longer call witnesses without prior involvement of their legal representatives.
Advocate Dumisa Ntsebeza told the commission that the decision by the police to employ automatic rifles such as the R-5 on 16 August was improper. His argument was built on his cross-examination of police weapons expert Warrant Officer Albert Wessels on Friday and Monday.
Ntsebeza represents the families of 21 of the 34 men who were killed when the police opened fire on a group of protesting miners. (A further 78 were injured.)
According to testimony, R-1 pistols, and R-4 and R-5 assault rifles were used, and also shotguns (some of which fired rubber bullets) and teargas launchers.
“The R-5 calibre weapons are military weapons which are used in a war situation,” Ntsebeza put it to Wessels, after he testified that the weapon could discharge up to 700 rounds of ammunition a minute if the trigger was held down. It has a lethal range of up to 2km – almost double that of a pistol.
Wessels was not at Marikana on 16 August, and did not attend the debriefing meetings afterwards. He told the commission that the police did not use birdshot when firing at the 3,000 miners, which would have been a safer option. The police did not consider any ammunition to be non-lethal, but some options were more dangerous than others.
The police resorted to the use of assault rifles because one such rifle was allegedly stolen during an altercation between the police and a small contingent of miners on 13 August, Wessels said. The police therefore armed themselves similarly to be able to meet the threat head on.
Wessels was also asked to examine a photograph of one police officer who appears to have been shot at point-blank range with a gun.
Ntsebeza then said: “I am not pursuing you in regards to what happened at Marikana but you can agree with me that when you bring R5 rifles you are likely to incur fatalities because those firearms are intended to kill.”
“These are weapons issued to members of an infantry, they are weapons of war. I am not going to say weapons of mass destruction. By using R5 rifles in any intervention, the security forces or law enforcement agents would anticipate to kill the targets.
“These are weapons you bring with the intention of killing the target.
With the R1, R4 and R5s the intention there is to kill,” Ntsebeza said.
“Sir, it would be difficult to try and say they surely have the ability of killing. To say they were intended to kill would be difficult,” Wessels replied.
Under re-examination by police advocate Ishmael Semenya, the warrant officer said that if the intelligence received by the police was that the miners had with them one police-issued R-5 rifle, then the appropriate response would be to send in the special task force and national intervention units, or the tactical response team if the others were not available. They would be armed with the assault rifles to “put them on an equal footing”.
Crime scene investigators who have already testified, told the commission that on the morning of the operation, some six hours before the massacre, the commanders in charge said that the miners were only expected to surrender their weapons and then disperse.
The commission subpoenaed six miners who survived the massacre, but they did not come forward on Monday after their names were read out. Their advocate, Dali Mpofu, objected to his clients being called by the evidence leaders, as he was not aware that this would happen. The men wanted to be led in giving evidence by their own lawyers.
Mpofu represents about 275 miners who were either injured or arrested by the police on 16 August, and afterwards.
The commission chairman, Judge Ian Farlam, said that he was entitled to subpoena anyone. “If this commission wants the minister of police, or the premier of North West to appear and he or she is not willing to do so, they will be subpoenaed to come,” he said.
However, the commission agreed to no longer call witnesses without prior involvement of the relevant lawyers. The men will now appear on Wednesday, with the president of the Association of Mineworkers and Construction Union, Joseph Mathunjwa, scheduled to appear on Tuesday.