In its statement, the Commission indicated that it has obtained documents from the computer hard drives of SAPS members, which first, the SAPS claimed did not exist; secondly, the Commission believes the SAPS should have disclosed, but failed to do; thirdly, gave the impression that certain documents were “contemporaneous documents, but which appear in fact to have been constructed after the events to which they refer”; and fourthly, documents which, in the opinion of the Commission, “demonstrate that the [SAPS] version of the events at Marikana, as described in the police presentation to the Commission and in evidence of police witnesses at the Commission [was] in material respects not the truth”. 

If this proves to be true, constitutional and other legal implications are far reaching. 

First, serious questions must be asked about the state of accountability and transparency within the SAPS. In addition, the allegations raise serious concerns about the control and management of the SAPS at the highest levels.

Secondly, in terms of section 6 of the Commissions Act, any person summoned to attend and give evidence before a commission and who, after having been sworn or having made affirmation, without sufficient cause “fails to answer fully and satisfactorily any question lawfully put to him [or her], or fails to produce any book, document or object in his [or her] possession or custody or under his [or her] control, which he has been summoned to produce”, shall be guilty of a criminal offence. Moreover, any person who, after having been sworn or having made affirmation, gives false evidence before a commission on any matter, knowing such evidence to be false or not knowing or believing it to be true, shall be guilty of a criminal offence.

Thirdly and possibly most alarming, if proven accurate, these revelations may arguably imply a possible conspiracy apparently aimed at denying the Commission and the public the truth regarding the SAPS’s conduct – the reach of which and identification of those possibly involved are yet to be determined.

The aforementioned repercussions, but also the legitimacy of the Commission’s ultimate findings and recommendations, are obvious. The Commission hence rightfully stated that it was not making this statement lightly. The fact, however, that the Commission felt it necessary to issue a public statement instead of only addressing the matter during a sitting of the Commission, clearly reflects on the seriousness of matter. 

We agree with the Commission’s assertion that it is important that the SAPS be afforded the opportunity to provide an explanation regarding the allegations, but “absent a convincing explanation”, the material which the Commission has found will have “serious consequences for the further conduct of the work of this Commission”. In this regard, the Minister of Police and National Commissioner Phiyega are ultimately responsible for the conduct of the SAPS. As such, in terms of the constitutional values of accountability and transparency – but also their constitutional duty to effectively control and manage the SAPS – they must at once explain these revelations and – if proven true – take responsibility for the actions of those under their control and management.

by Adv Johan Kruger, Director: Centre for Constitutional Rights