The Farlam Commission’s slow search for answers
As the Farlam Commission enquiry resumed last week, lawyers representing the 259 arrested and injured mineworkers continued to fight it out in court in the hopes of persuading government to pay for all legal costs for the affected families.
The Marikana Commission of Inquiry was established on the 23rd August 2012 by President Jacob Zuma, in terms of section 84(2) (f) of the Constitution of the Republic of South Africa.
Its mandate was to ‘investigate matters of the public, national and international concern, arising out of the tragic incidents at the Lonmin Mine in Marikana in the North West Province, which took place on about Saturday 16 August, 2012 which led to the deaths of approximately 44 people, more than 70 persons being injured and approximately 250 people being arrested’. The President appointed Honourable Judge Ian Gordon Farlam, a retired judge of the Supreme Court of Appeal as Chairperson of the Commission and advocates Bantubonke Regent Tokota and Pingla Devi Hemraj as its additional members.
The commission was on hold for several weeks due to a lack of funding for lawyers representing the mineworkers who were injured and arrested during the massacre. The Raith Foundation initially issued a six-month funding contract for lawyers but this ran out after the Farlam Commission was extended past a four-month period. It has now been running for over a year.
During the postponement of the commission, Advocate Dali Mpofu represented the affected mineworkers and submitted an application to the North Gauteng High Court to have the government pay for legal costs. The application was unfortunately turned down. He then approached the Constitutional Court (ConCourt) to resolve the matter but the ConCourt found no reason to overturn the High Courts’ ruling.
According to the Mail & Guardian’s Niren Tolsi, the court found that there were only three provisions in the Bill of Rights that ‘explicitly entitles someone to claim legal representation at state expense’ – none of which applied to the applicants.
“One provides that a child has the right practitioner assigned to him or her by the state at state expense in civil proceedings affecting the child, if the substantial injustice would otherwise result. Another is that everyone who is detained has the right to have a legal practitioner assigned to him or her by the state’s expense, if substantial injustice would result. The third is that every accused has a right to a fair trial, which includes the right to have a legal practitioner assigned to him or her by the state and at state expense, if substantial would otherwise result. These do not apply here.”
The court maintained that the Farlam Commission was not a civil or criminal trial.
Joseph Mathunjwa, the Association of Mineworkers and Construction Union (AMCU President), was defiant in his insistence that the legal fees for miners would be raised no matter what. He went on to question the government’s motive behind the refusal to provide funding for the arrested and injured miners: “Clearly government finds itself guilty, which is why it wants a half-baked truth to come out of the commission.”
The Marikana support group wrote an open letter calling on government to make funds available for the miners. In the letter, the group stated that: “Now that all the legal teams representing the victims have withdrawn in solidarity of the Mpofu team, the only interested parties that are left at the commission are the heavily resourced Lonmin, the National Union of Mineworkers (NUM), SAPS, the South African Human Rights Commission – which is operating on a strained budget and in accordance with its constitutional mandate to monitor the process and ensure the protection of human rights – and various other government departments. Without legal representation for the injured miners, there can be no level playing field. Should the hearings continue without the participation of the legal teams representing the victims, it would be a travesty of justice.”
A host of dignitaries, including Jackie Dugard (former director of the Social and Economic Rights Institute), Ebrahim Fakir (manager of Governance Institutions and Processes at the Electoral Institute for the Sustainability of Democracy in Africa) and Jacob van Garderen (national director of Lawyers for Human Rights) were signatories of the letter.In response to the state’s refusal to fund the lawyers, protesters marched on the Union Buildings.
The march was organised by Citizens4Marikana, a group of South Africans with no party affiliation. They have also started a fund to support the families of the victims and to meet their legal fees. They have raised R250 000 thus far.
The march started with groups from six political parties and numerous unions gathering on a field several blocks from the Union Buildings. Each party took a section of the field, dancing and singing, with their own marshals keeping them in check. This divided the field into a rainbow of colours – the red of the Economic Freedom Fighters, blue of the Democratic Alliance, white of Agang and yellow of the other opposition parties.
Speaking to news reporters who had gathered to cover the march, convenor Bishop Johannes Seoka said, “The government has failed to support the workers. We are marching in the hope that the government changes its decision to not support the victims with legal aid.”
Head of Congress of The People (COPE) Mosiuoa Lekota said that the marchers should heed the words of Nelson Mandela when he addressed workers in 1993, adding, “If the ANC does to them what the Apartheid government had done, they should do what they had done to the Apartheid government to the ANC.”
While complaints kept pouring in, arguably the most controversial of all was that the state sees no problem in funding ten of its own advocates with taxpayer money while showing reluctance to do the same for the miners who fell victim at the hands of protection forces employed by the state. These miners now have to rely on evidence leaders to represent them.
Julius Malema, head of Economic Freedom Fighters, was among the political leaders who attended the march and was the last person to speak. He directed subliminal accusations at other speakers and attacked the ANC by calling it ‘the manager of white supremacy’.
The commission is due to make its recommendations in October and after many delays is unlikely to meet its deadline as new information was discovered that led to another postponement of the enquiry.
Late last month, evidence leader Geoff Budlender sought a postponement of the public hearing to enable evidence leaders to study the new material made up of thousands of papers. He said: “In the past ten days, we have discovered that information not disclosed by the police seeks to suggest that the information was withheld to try and portray a certain approach to the commission in relation to what has been discovered.”
During Budlender’s submission on Wednesday, it was asserted that, in the opinion of evidence leaders, some of the documents demonstrated that the police version of events at Marikana, as well as the information from police witnesses, was not the truth. Police representatives at the Commission protested these damning statements.
Police representative Ishmael Semenya said that Budlender’s statement raised concerns as evidence leaders are an extension of the commission as they have been appointed by and work for the Commission. Semenya further invited the evidence-leading team to identify the documentation that informed their opinion. He also requested that evidence leaders identify which police witnesses the commission found to have been untruthful to the enquiry.
Granting the postponement sought, which neither of the representatives and parties present opposed, Commission Chairperson Judge Ian Farlam said it is appropriate to place on record that the police evidence to the commission is the only concern at the moment.
The Farlam commission has seen many witnesses cross-examined – from the Police Commissioner, trade union leaders and Lonmin management to the workers leading the protests on the day of the massacre.
One of the focal points of the commission was Police Commissioner Riah Phiyega’s tear-laden cross-examination by lawyers representing the mineworkers. She denied that she praised the police after the Marikana shootings despite being caught saying ‘well done’ to the police on tape.
Phiyega was not the only tearful member of SAPS. The North West Police commissioner William Mpembe also broke down at the commission. He claimed that the statements made by Michelle Le Roux for SA Right Commission during cross-examination ‘hurt him’.
Trade Unions AMCU and NUM have played a massive role in this commission. Unions are alleged to have failed to represent the mineworkers over the wage disputes. AMCU has become more popular during this commission and has gained lots of support from mineworkers. Lonmin promised to pay for all education costs of the children whose fathers were killed, but some parents claim they haven’t received anything from the company.
It’s been over a year since the massacre and South Africa seems little closer to learning how it happened or how to ensure it doesn’t happen again.
Sinethemba Gqoloma and Siya Mzantsi