Suspended national police commissioner Riah Phiyega had no authority to interfere in the North West police’s handling of the Marikana strike in 2012, she argues in court papers.

North West police commissioner at the time, Zukiswa Mbombo, took the decision to use the “tactical” option to disarm the striking miners on the koppie at Lonmin in Marikana, North West, she says.

This is contained in papers she filed in the High Court in Pretoria on Thursday. She argues that the findings of the Claassen board of inquiry were irrational and based on an error in law.

She wants the court to set aside Judge Neels Claassen’s report.

To back up her claims, Phiyega submitted two affidavits by Mbombo which were put before the Farlam Commission of Inquiry. In them, Mbombo admits taking the decision to use the “tactical” option on August 14, and informing national police management on the 15th.

No Zuma instruction

Phiyega said no new evidence was presented to the Claassen inquiry to dispute Farlam’s findings.

She argued that the law does not give her power to intervene in provincial matters, unless the president instructs her to do so. President Jacob Zuma gave her no such instruction, she said.

“I submit that had I attempted to interfere in the manner suggested by the board, I would have been grossly irresponsible as I was not part of the operation and lacked real and concrete knowledge of the situation on the ground.

“It would have furthermore been an attempt to unlawfully usurp the powers of the provincial commissioners,” Phiyega says in her papers.

In 2016, she filed a review against the Farlam commission, established to probe the killings of 34 miners on August 16 2012, and the deaths of 10 other people, including two police officers and two security guards, the previous week. Farlam’s findings led to the Claassen inquiry.

Claassen found Phiyega guilty of deciding to use the “tactical” option to disperse striking miners in Marikana. He found she should have foreseen that this would cause the shooting in which 34 miners were killed.

He recommended that she should be dismissed. Phiyega was found guilty of misleading the public in a press statement police released the day after the shooting. She was acquitted of trying to mislead the Farlam commission.

President Jacob Zuma suspended her in October 2015.

Phiyega refused to testify during the Claassen inquiry, arguing that there was no new evidence stemming from the Farlam commission to rebut.

Phiyega has cited Zuma, Claassen and two others members of the board of inquiry - advocates Bethuel Sibusizo Khuzwayo and Anusha Rawjee - as respondents.