It followed therefore that history should have informed the police. Bizos quoted Spanish philosopher George Santayana, who said that those who cannot remember the past are condemned to repeat it. He then reminded Phiyega of the Sharpeville Massacre that took place on 21 March 1960 when police opened fire on a crowd, killing 69 people. After that incident, the state president Hendrik Verwoerd praised the police, something which Phiyega did herself hours after the 16 August killings. However, Phiyega said that the Sharpeville victims were not armed, whereas the miners at Marikana were. “With regard to those injuries, and the lack of any injury to any police officer, would you say the action of the police was proportional?” Bizos asked. Phiyega replied: “We are on record as saying indeed police were acting in self-defence.
On the issue of proportionality (of the police's action) I'm hoping that the debates from the experts,Home energy management commanders and the outcome of this commission will give a judgment on that. I am not qualified and I am not comfortable to give an answer on the proportionality.” Bizos then tried to get Phiyega to commit to an opinion, something she had steadfastly refused to do, often to her reputation’s detriment. He said: "Don't the figures mean anything to you, Commissioner? There was not a single scratch on any one of the few hundred police officers and so many [injured protesters]. Do you say that is proportional?
“How did they manage to have not a single scratch if there was a threat as they describe? Please come to terms with the question. Was it because of the intelligent hand of the police? Doesn't it sound strange to you?”
Phiyega said: “I do want to say the police are trained. The police do their work professionally and I believe it is such elements which assist them to do their work in that manner.”Bizos mentioned the 1985 massacre in Uitenhage as well, where the police shot and killed 20 protesters. The minister of law and order at the time said that the police were acting in self-defence, and had no alternative but to shoot. These are words that Phiyega also used to defend the actions of the police at Marikana. “So was that the information you based your support plan on; the fact that there were 3,000 protesters who were armed,” Bizos asked. Phiyega agreed, and said that there were other factors as well. “Do you agree with the allegation made by counsel for the police that the problem was that there were 3,000 belligerent protesters who were armed, resisting any effort to disarm?" After getting an affirmative answer, Bizos continued: “The South African police and their witnesses couldn't make up their minds regarding how many people there were. We have been told that there were 3,000 people. Elsewhere [police advocate Ishmael] Semenya put it to a witness that there were 200 to 300 protesters who were armed. There were others who were peaceful, unarmed, and were left.
Which of the two versions did you, as commissioner, operate... on?” Phiyega replied: “I would not speculate on those two versions because I have not seen alternative facts. As police, people who are armed are a concern to us. Any number of armed people, be it two or seven, concerns us. The Constitution does allow people to protest peacefully and unarmed.” Bizos then spoke about the impunity that Apartheid police enjoyed, and asked Phiyega if people could be killed with impunity in a democratic South Africa. No, came the reply. When he could not get an answer why the police had no apparent regard for history, he asked if the commissioner was using her lack of police experience as an excuse. Again, Phiyega answered with a denial.
The advocate then asked Phiyega to clarify that the tactical response team, national intervention unit and special task force units outnumbered the public order police (properly trained in crowd control) by two to one at Marikana on the day of the fatal operation, which she did. “Are you declaring war on this crowd or do you want to control it? Why are all these 'war-like' units invited to Marikana?” Bizos asked. Despite protests from Semenya, Bizos was adamant that the special units brought to Marikana, plus a deputy provincial commissioner’s description of 16 August as ‘D-Day’, meant that the operation was meant to kill people, not arrest or disperse them.
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