Two former senior officers are each demanding R3 million after being wrongfully and maliciously prosecuted for failing to report the death in hospital of one of the 34 mineworkers killed in Marikana on August 16, 2012 by police. The officers were later acquitted of all the charges. Picture: File/Independent Newspapers
TWO former senior police officers acquitted on criminal charges relating to the 2012 Marikana massacre are each demanding R3 million from the SA Police Service and the National Prosecuting Authority for loss of income.
North West ex-deputy provincial commissioner responsible for operations at the time, William Mpembe, and Gideon van Zyl, formerly head of detectives in the province, want compensation for their prosecution following their arrest by the Independent Police Investigative Directorate (Ipid) for failing to report the death at Lonmin’s Andrew Saffie Hospital of mineworker Modisaotsile van Wyk Segalala on August 16, 2012.
In March 2018, Mpembe and Van Zyl were charged alongside Brigadier Dingaan Madoda and Lieutenant-Colonel Oupa Pule with defeating the ends of justice, contravening the Ipid Act for failure to report Segalala’s death in police custody to the directorate, and as well as the Commissions Act for lying to the Marikana Commission of Inquiry under oath.
However, in March 2021 they were acquitted on all three charges they faced by then North West High Court Deputy Judge President Ronald Hendricks. He discharged them as the State had failed to prove them guilty beyond a reasonable doubt.
Mpembe and Van Zyl have now told the North West High Court that the prosecution caused their right to dignity to be infringed upon, and each suffered damages including loss of income because of several court appearances to defend the indictment, the reasonable legal costs associated with their defence, and contumelia (injury, hurt, insult and indignity inflicted on a person).
According to the two ex-cops, each of them is claiming R3m in damages, including mora interest (charged when a payment is not made timeously and an interest rate has not been agreed upon between the parties) at the prescribed legal rate from the date of service of their summons, which were served in September 2022, until the date of payment and the costs of filing their action on an attorney and client scale.
They have hauled Police Minister Bheki Cele and National Director of Public Prosecutions Shamila Batohi to the North West High Court in Mahikeng, where they are arguing that Ipid wrongfully and maliciously (animo iniuriandi) set the law in motion by falsely implicating them on the charges.
Cele and Batohi, represented by the state attorney’s office, filed their notice of intention to defend in November 2022, requesting copies of Mpembe and Van Zyl’s identity documents and proof of their individual incomes.
Mpembe and Van Zyl complied with the request in February last year.
A month later, the two former police officers filed a notice of bar, to which Cele and Batohi were required to file a plea and respond within five days from receipt, failing which they would be barred from doing so.
Mpembe and Van Zyl refused to entertain Cele and Batohi’s plea, which was a day late, and the minister and NDPP then delivered their application for the upliftment of the bar, which was opposed.
They argued that Cele and Batohi were ipso facto (by the fact itself) barred from serving their plea.
The state attorney’s office blamed the delay on the exodus of five attorneys in December 2022, including the lawyer responsible for the matter, which resulted in a capacity shortage and adversely affected service delivery.
In court, the office of the state attorney added there was a small delay in which the matter would ultimately be capable of being enrolled and that it had shown good cause to have the bar against delivery of a plea removed.
North West High Court Judge Andrew Reddy agreed and granted Cele and Batohi’s application for the upliftment of the bar.
Judge Reddy gave Cele and Batohi 10 days from May 23 to file their plea.
”A date is to be arranged in conjunction with the Office of the Judge President (Hendricks) for the action to be heard,” he ordered.
Mpembe’s lawyer Jan Ellis told Sunday Independent that his client and other co-accused officers including Colonel Salmon Vermaak, Constable Nkosana Mguye, Warrant Officers Katlego Sekgweleya, Masilo Mogale and Khazamola Makhubela would tomorrow (MONDAY) ask the North West High Court to discharge them for the murders of three mineworkers and two police officers three days before the Marikana Massacre .
Semi Jokanisi, Thembelakhe Mati, and Pumzile Sokanyile as well as Warrant Officers Tsietsi Monene and Sello Lepaauku were killed on August 13, 2012 during a violent altercation in the premises of the mining company bought by Sibanye-Stillwater in 2019.
Ellis said the state closed its case and his clients would bring an application for their discharge in terms of the Criminal Procedure Act.
“The act states that if at the close of the prosecution’s case the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge sheet or any offence the accused may be discharged.”
loyiso.sidimba@inl.co.za
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