The outcome of the Farlam Commission of Inquiry will have several limitations because it is not a court of law, Ishmael Semenya SC, for the SA Police Service (SAPS), said on Thursday.
“For my part, I will be surprised if the president receives your report which says ‘there are pointers of criminal wrongdoing on the part of the national commissioner of police, please have this investigated, and have the DPP prosecute’,” Semenya told the inquiry in Pretoria in his closing arguments.
“The president shouldn’t be interested in that. It must be correct that the president knows that there are instruments in this country whose primary statutory responsibility is to do that. They don’t need you to do that.”
He said the Independent Police Investigative Directorate (Ipid) had the responsibility to investigate all complaints of police culpability.
“Why should they wait for you, as a commission to make that recommendation?”
Semenya said it was “completely unnecessary” for the inquiry to venture into the terrain of prosecutions.
Commission chairman retired judge Ian Farlam intervened, stating that his terms of reference empower him to recommend matters for prosecution.
“Before you carry on, in the terms of reference we are enjoined, where appropriate, to refer any matter for criminal prosecution, further investigation, or the convening of a separate inquiry,” said Farlam.
“Clearly one of the things the president has told us to do is that if we think it is appropriate we should do the things I have listed. It is therefore not correct to say the question of possible prosecutions is a matter we may not consider.”
He said the commission was empowered to refer “any matter” for prosecution.
Semenya said Ipid was already investigating the complaints against the police, and the mandate of the commission was to investigate, not to adjudicate.
“The function of an inquest is to investigate, and if there is a finding of prima facie criminal wrongdoing, it takes the matter forward. It cannot make a finding of, for example, of murder,” said Semenya.
“You do not want to end up with an inquest finding that a person has been murdered and in the same case a criminal court finds the [accused] person is acquitted. You then have two structures with conflicting opinions. So I caution you in the same vein.”
He said the inquiry should be careful about finding certain parties “unlawful and the like”.
“The Constitution reposes judicial function on civil and criminal courts that are going to pronounce themselves on these issues.”
He said where the inquiry finds evidence for the killing of a person, the commission cannot pronounce it as murder.
“By that you would now be doing judicial functions, not an investigative function,” said Semenya.
Farlam said he had a problem with Semenya’s assertions.
“The terms of reference say the commission shall inquire and make findings. I thought you said we must not make findings but report on the recommendations.
“Imagine what would happen if we say to the president ‘thank you Mr president, we spent over two years and used so many million rands holding investigations. We are not going to make any findings because we must not’.”
The commission is investigating the deaths of 44 people during strike-related violence at Lonmin’s platinum mining operations at Marikana, near Rustenburg, North West.
Thirty-four people, mostly striking mineworkers, were shot dead in a clash with police, over 70 were wounded, and another 250 arrested on August 16, 2012.
Police were apparently trying to disarm and disperse them.
In the preceding week, 10 people, including policemen and two security guards, were killed. SAPA