Almost three months after the Chair of the Marikana Commission of Inquiry delivered the final report to President Zuma, the report has been released. The context of the incident has been discussed before on this blog here. This post is the first of a two part series of posts and discusses the findings and recommendations in the Report.
The real issues for the stakeholders in these proceedings have always been about responsibility and reform. Would the Commission find the South African Police Service (and/or other role-players) responsible for the deaths and injuries? Would it recommend civil damages and criminal prosecutions? And what institutional reforms would it recommend to ensure that South Africa never has to experience such horrors again? Two years of proceedings, a substantial budget and a formidable team of Evidence Leaders created hope that the Commission would produce comprehensive and compelling findings and provide a basis for real truth and justice for the victims of Marikana.
In this post I discuss the major findings and recommendations made by the Commission. My next post will go on to examine its limitations.
In order to understand the Report, it is necessary to appreciate that there were two main scenes at which protesters were shot and injured or killed on 16 August 2012. ‘Scene 1’, which was captured by live television and broadcast across the world, involved a group of mineworkers moving through a gap in barbed wire, towards the Nkaneng informal settlement where they lived, and being confronted by a police line that opened fire with automatic weapons, killing 16 people. What was not captured by the television cameras was the killing of 17 people at ‘Scene 2’, when police surrounded a ‘koppie’ (rocky hill) where mineworkers had gathered during their strike and taken refuge while Scene 1 unfolded. Overall, more than 70 people were injured and over 250 protesters arrested at Marikana.
The Report makes a number of findings and recommendations, of which the following are significant:
- The finding that four protesters were killed by the South African Police Service (SAPS) at a substantial distance from the police line in circumstances where they “could not possibly have been perceived as presenting an imminent risk to the safety of anyone else” (p 262 para 52). The Commission has effectively ruled out any possibility that the killing of these four men could be justified as self-defence.
- The finding in respect of the remainder of the victims at Scene 1 that, although the police shooters had objective grounds to believe that they were in danger, the shootings at Scene 1 may have exceeded the bounds of self-defence (p 545 para a);
- The findings, in respect of Scene 2, that there was a failure of command and control and that the operation should have been stopped completely after the events at Scene 1 (p 558 para 11);
- The recommendation that the shootings by SAPS at both Scene 1 and Scene 2 be referred for investigation by the DPP to determine the criminal liability of the SAPS shooters and the SAPS senior officers (p 545 para 6).
- The finding that Lonmin plc (“Lonmin”) failed to comply with its housing obligations in terms of its Social and Labour Plan and that this “created an environment conducive to the creation of tension, labour unrest, disunity among its employees and other harmful conduct”. The Commission therefore confirmed the causal link between Lonmin’s failure to provide houses and the strike (p 542 para 37);
- The finding that Lonmin failed to protect its employees, instead recklessly urging them to come to work (p 479 para 66), and that it did not use its “best endeavours” to resolve the disputes with its employees and that it did not respond appropriately to the threat and outbreak of violence (p 556 para 3);
- The recommendation that the Department of Mineral Resources should investigate Lonmin’s failure to comply with its housing obligations;
- The recommendation that an inquiry be held in terms of Section 9 of the SAPS Act to inquire into whether the National Commissioner of Police and the Provincial Commissioner are fit to remain in office and whether they are guilty of misconduct in attempting to mislead the Commission (p 515 para 5);
- The recommendation that a range of reforms be introduced in relation to the conduct of public order policing, including the use of firearms, command and control and other key issues that must be addressed to ensure that such shootings do not happen again during protest situations;
- The recommendation that the SAPS should demilitarise and professionalise as a matter of priority (p 551).
While many of these findings and recommendations are far-reaching, in the next post I will discuss the findings and recommendations that the Commission did not make, and the impact of these gaps on the rule of law in South Africa.
Read Part II of this post here.