Phiyega this week filed her founding affidavit in her bid to have the Pretoria High Court review and set aside the findings of the board of inquiry into her fitness to hold office.
She is charging that the judge Neels Claassen-led board not only exceeded its mandate and made irrational findings‚ it even changed the findings of the Farlam report in an effort to find her guilty.
The board found her guilty on three of the five allegations President Jacob Zuma instructed it to look into when he announced its establishment in late 2015. It has since recommended that she be fired.
These were: – The decision taken to implement the “tactical option” ought reasonably to have foreseen the tragic and catastrophic consequences which ensued; – That Phiyega deliberately concealed from the President the fact that there were two shooting incidents on the day of the massacre. A press statement to this effect was also issued; and – Phiyega’s testimony at the commission was in keeping with the office which she holds.
She was found not guilty on allegations that she misled the commission on the SAPS decision to implement a tactical option at Marikana‚ and allegations that she publicly endorsed the police’s actions thus undermining the commission of inquiry.
She now wants the court to review the entire report‚ which she attached in her application‚ on the grounds the proceedings were designed to prejudice her. “In the report‚ the Board has drawn an adverse inference against me on the basis that I did not testify before the Board despite that I testified before the Farlam Commission. The Board shifted the burden of proof from the employer to me notwithstanding that it was the employer who bears the onus of proof and I only have a duty of rebuttal‚” she said.
Phiyega said the board finding her guilty of the first allegation shows how it ignored the Farlam Commission’s record that shows it was in fact North West province commissioner Zukiswa Mbombo who took the decision.
“The Board was bound by the Farlam Commission’s finding that the Provincial Commissioner took the decision to implement the tactical option. A finding which seeks to contradict the Farlam Commission’s finding on this particular issue and finding as made by the Board that I took the decision falls to be set aside on the following grounds‚” she wrote.
She also revealed‚ for the first time‚ that she refused to testify before the board because it failed to present any new evidence from what was available from the Farlam commission.
“The employer has placed no new evidence from what was already available from the Farlam Commission which required any rebuttal from me. The decision of the Board in this regard was not only irrational‚ but was also influenced by material error of law‚” she said.
Phiyega took issue with the fact that the board allowed the union AMCU and the Socio-Economic Rights Institute of South Africa to participate in the hearings‚ saying the decision was “unfair‚ unlawful‚ and fatally defective”.
She also claimed the board applied incorrect legal prescripts in determining her guilt‚ citing its reliance on the Public Service Act as well as regulations despite the fact that she‚ as national commissioner‚ was not bound by the provisions of the Act.
In September 2015 Zuma announced the establishment of the board of inquiry inline with recommendations made by the Farlam Commission of Inquiry into the massacre. This August will mark the 5th anniversary of the deaths of 34 protesting miners who were gunned down by police at Lonmin mine in Marikana near Rustenburg.
Nearly a month after making the announcement Zuma placed Phiyega on suspension with full pay.
Phiyega is also taking the Farlam inquiry’s findings on review.
– TMG Digital/Sunday Times