Justice is a scarce resource
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The NPA has delayed in prosecuting police officers and officials yet has been diligent in prosecuting the Marikana miners
Khuselwa Dyantyi is a candidate attorney at the Socio-Economic Rights Institute of South Africa
SOUTH Africa’s criminal justice system is based on a few cardinal principles: that the accused is presumed innocent until proved guilty beyond a reasonable doubt, that all criminal accused have constitutionally protected rights and should be equal before the law, and that justice must be done and be seen to be done.
Despite this principled approach, law and access to justice, criminal or otherwise, has been described as a “scarce resource”.
The families, colleagues and comrades of the miners who were killed during the Marikana massacre in August 2012 illustrate just how scarce and unevenly dispensed justice can be.
On December 11 last year, more than four years after the massacre and nearly one and a half years after the Marikana Commission of Inquiry released its report, President Jacob Zuma released a statement on the steps taken by various government departments towards the implementation of the commission’s recommendations.
The statement included a report on the criminal prosecutions of some of the police officers responsible for the events in Marikana in August 2012. It is notable that the statement merely gave a brief description of the police officers and their actions under investigation for which they would be charged.
Nonetheless, the families of the miners, who were killed in Marikana between August 13 and 16, 2012, saw this as a first step towards justice. The fact that there were police officers being investigated or charged gave them hope that those responsible would be prosecuted.
Yet this is a far cry from justice being done or purportedly being seen to be done. There were many police officers in Marikana between August 13 and 16, 2012. On August 16, 2012, we saw police officers, on clear video footage, shooting miners as they crouched and ran for cover in what became known as “Scene One”. These pictures are etched traumatically into the minds of the families and the public.
The commission heard testimony on how the police hunted down miners who were fleeing from the koppie, in what became known as “Scene Two” and that some of them were shot with their hands up, indicating their surrender. Post-mortem reports showed that some of the deceased miners were shot in the back, suggesting that they were not posing a danger to the police.
A police officer was heard and seen on cellphone video footage praising himself for killing one of the miners.
If the criminal justice system functioned properly, and equitably, the police officers would have immediately been removed from their positions, pending investigations. Some of them would ultimately have been criminally prosecuted.
Yet here we are. A few months away from the fifth anniversary of the massacre and not a single police officer has appeared before a court. The best information that the Presidency can give us is a nameless list of the few who are under investigation and might be prosecuted for the cold-blooded murders that have been screened far and wide on the internet, in the documentary Miners Shot Down and during the commission’s proceedings. So much for criminal justice for police officers.
The survivors of the massacre, on the other hand, tell a different story about the efficiency of the criminal justice system. Some were arrested on August 16, 2012 on the scene as their comrades’ lifeless bodies lay on the ground.
Mzoxolo Magidiwana, one of the miners who was shot at Scene One and taken to hospital, was kept in ICU for weeks under 24-hour police guard. He woke up to news that he was one of the miners being charged for murder. He was not the only one. Some of the miners were charged for the murders of their comrades, albeit some of these charges were later dropped.
So relentless has the long arm of the law been when it comes to the prosecution of the miners that even while the inquiry was ongoing, the SAPS and the National Prosecuting Authority (NPA) were determined to prosecute the miners while the families of the deceased were told to await the findings of the commission.
On February 20, a group of 17 miners, supported by the deceased victims’ families and the Association of Mineworkers and Construction Union, appeared in court on charges ranging from murder and attempted murder to malicious damage to property and the unlawful possession of firearms and ammunition. The matter was postponed to July 31 when the State and defence teams will hold a pretrial hearing.
The massacre has meant many things to many people. To the injured miners it has meant that their ability to support their families was compromised. To others it has meant that they are facing a possible jail sentence for fighting for a salary increment and better working conditions. For the families who have lost breadwinners, they are left destitute in the absence of compensation.
The government has been in talks with the families’ legal representatives to settle some of their damages claims out of court and it has acknowledged liability for the losses suffered by the families. There has been no response from the government about a simple apology and acknowledgement of responsibility that was, and continues to be, demanded by the families.
Both the miners and police officers are accused of criminal conduct that occurred in August 2012. For the miners, the day of reckoning is fast approaching while the police might never face prosecution.
Despite a constitutional imperative that the NPA “functions without fear, favour or prejudice”, its delay in prosecuting police officers and officials and its simultaneous diligence in prosecuting miners creates a different impression.
As the Constitutional Court has said: “Like justice, equality delayed is equality denied”.
The clock is ticking and the families of the miners who were killed by police officers in plain sight, and the many others who were injured, are waiting for even a semblance of justice.