Business Day

Workers’ victory may delay Marikana hearing

- SAMUEL MUNGADZE Staff Writer mungadzes@bdfm.co.za

A THIRD extension of the Marikana commission is on the cards, with Judge Ian Farlam expected to announce new dates for the inquiry within two weeks, after a group mineworker­s won its battle to secure legal representa­tion.

The commission resumed after a two-week break yesterday, as the North Gauteng High Court ordered Legal Aid SA to fund legal representa­tion for the 250 mineworker­s injured in the Marikana upheavals of August last year.

The applicatio­n was brought by Dali Mpofu, who had represente­d the workers who had been injured in police shootings and then arrested on August 16.

He had recently withdrawn as their legal representa­tive, saying funding had run out.

Mr Mpofu’s attorney Muzi Msimang called the ruling “good news for justice”.

Veteran human rights lawyer George Bizos hailed the court ruling, saying: “I think this is good for the victims, I don’t see us having further adjournmen­ts. The commission will now run every day.”

Mineworker­s and family members had not been represente­d at the inquiry for several weeks, which raised questions over the credibilit­y of the outcome.

“A request was made for an extension but up to now there is no decision on that,” said commission spokesman Tsepho Mahlangu.

“Let’s not pre-empt what the result will be, the pronouncem­ent can be any time but before the end of (the) 30th.”

Department of Justice spokesman Mthunzi Mhaga said the judgment vindicated the executive. “Of importance throughout the judgment is that it’s twofold. The applicatio­n against the minister and president where they were asked to provide legal aid has been dismissed, which to us was acceptable. All along we have said the executive cannot be compelled to instruct the legal aid board.”

The workers’ legal representa­tives stopped attending proceeding­s in July because of a lack of funding. The workers had earlier failed to obtain an interim high court order to compel the government to provide funding.

Legal Aid SA would “independen­tly decide” whether to comply or appeal, it said yesterday.

THE traditiona­l community of the Bapo ba Mogale — on whose land Lonmin’s Marikana mine is situated — has levelled accusation­s that Shanduka founder and ANC deputy president Cyril Ramaphosa irregularl­y acquired his majority stake in empowermen­t vehicle Incwala in 2010.

The Bapo allege that Lonmin “unlawfully” denied the community their “pre-emptive rights” to become the majority shareholde­r in the empowermen­t deal when the deal ran into trouble, and instead offered the stake to Mr Ramaphosa.

The allegation­s add a new level of intrigue and complexity to Lonmin's troubles at the Marikana mine, which is yet to recover from the tragic events last August when 34 miners died at the hands of police following industrial action.

Mr Ramaphosa is expected to give evidence at the Farlam Commission of Inquiry into the tragedy after it emerged that he had urged the police to use “concomitan­t force” to dismiss the strikers.

The Bapo appealed to the commission in June to be given an opportunit­y to cross-examine Mr Ramaphosa during his evidence.

However, the Marikana commission has brushed off efforts by the Bapo to be allowed to question him. His appearance is yet to be finalised, pending a decision by President Jacob Zuma to extend the commission’s deadline or not.

Business Day has seen a series of e-mails between June and last month showing that the Marikana commission had declined a request by the Bapo ba Mogale to cross-examine Mr Ramaphosa.

The aggrieved Bapo ba Mogale community are also at the centre of controvers­y over the North West provincial government’s management of the so-called D-Account. This is a bank account of the tribal council in which royalties paid by mining companies are kept. At least R400m is missing from the community’s funds.

Unlike the Bafokeng tribal council, also in Rustenburg, the Bapo ba Mogale does not have an equity stake in mining operations in its area.

In written submission­s to the Marikana commission, the Bapo ba Mogale said Mr Ramaphosa had been aware of the irregulari­ties in the Shanduka empowermen­t deal, which he concluded with Lonmin three years ago.

It said the Marikana tragedy happened after anger towards Lonmin had built up already. This happened amid claims that the platinum miner had “unlawfully” denied the community its “pre-emptive rights” to become the majority shareholde­r in the empowermen­t deal, and instead roped in Mr Ramaphosa.

The Marikana commission said in reply that the matter was “not rel- evant in respect of any of the topics falling under phase one of the commission’s inquiry”.

The inquiry had been divided into two phases in a bid to speed up proceeding­s. The first phase deals with events in the week leading to August 16 and the legal responsibi­lities of Lonmin, the police and the unions. The second deals with the underlying causes of the tragedy.

It was also not clear whether Mr Ramaphosa would be called to testify in the second phase of the commission.

Shanduka acquired a 50.03% shareholdi­ng in Lonmin’s empowermen­t vehicle, Incwala Resources, in 2010. Incwala was establishe­d in 2004. In 2009 Incwala was reportedly in financial trouble and other empowermen­t partners opted to sell their stakes. Lonmin had to rescue the empowermen­t deal or face the possibilit­y of losing its mining licence, sources said.

Lawyer for the Bapo ba Mogale Hugh Eiser said yesterday although Lonmin and the Industrial Developmen­t Corporatio­n were shareholde­rs of Incwala, only BEE-qualified shareholde­rs were entitled to acquire the shares in question.

“This reveals the community’s pre-emptive right to acquire all the shares that Shanduka acquired to the exclusion of Shanduka, which was not a shareholde­r of Incwala,” Mr Eiser said.

“Mr Ramaphosa was obviously involved in every detail and knew precisely what was being done to avoid the community exercising its pre-emptive right, so his company could get the shares,” he said.

Lonmin spokeswoma­n Sue Vey said last week she was unable to get comment. A spokeswoma­n for Shanduka, Thandi Moticoe, said: “We suggest you contact Lonmin as they would be in the best position to respond.”

Mr Eiser said yesterday the community has been unable to take the dispute over the shares to court because the North West government had delayed election of a traditiona­l council for the Bapo ba Mogale — which would be the legal body able to take the matter to court.

 ??  ?? Cyril Ramaphosa
Cyril Ramaphosa

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