Farlam commission fails to disperse the fog of confusion

The Farlam inquiry has become bogged down in delays, postponements and increasing questions about the commission’s credibility.

THE KILLING on August 16, 2012 of 34 miners, who had embarked on an illegal and thus unprotected strike, by officers of the SAPS’s tactical response unit at Lonmin’s Marikana mine led to the most serious labour unrest South Africa had experienced in a generation. More than R10 billion was lost in mine production, South Africa suffered three sovereign credit ratings downgrades, its growth rate declined by 50 basis points last year and it posted a record current account deficit of 6 percent of gross domestic product (GDP).

This year, a plummeting currency, rising inflation and declining economic growth, now estimated at 2 percent, all carry the spectre of 1970s stagflation in the wake of the most deadly state-sanctioned use of lethal force since the advent of democracy.

Although President Jacob Zuma commendably (and quickly) appointed the Farlam Commission of Inquiry last September to investigate the causes of the shootings, this has become bogged down in endless delays, the withdrawal of parties’ legal representatives for funding and other reasons, postponements and increasing questions about the commission’s credibility.

While the commission’s term has been extended to the end of October, there is no prospect that its work will be completed by then, given that the SAPS, the first of four protagonists, is still on the witness stand. Likewise, there is no sign of the commission’s interim report, while the commission increasingly resembles a latter-day Jarndyce versus Jarndyce, memorably described by Charles Dickens in Bleak House.

Not a single police officer has been arrested, let alone charged, as a result of last year’s shootings, while nothing appears to have come of the Independent Police Investigative Directorate’s opening of 194 cases of assault and attempted murder against the police following the arrest and detention of about 200 mineworkers in the wake of Marikana.

Equally concerning, the “crack” task team, appointed by the government in October last year to address housing and infrastructure needs in key platinum belt local authorities as well as to “address institutional capacity”, appears to have made no progress. Seven municipalities, including Rustenburg, were targeted for special attention, yet none of them appears to have received any. Rustenburg itself has received five qualified audits from the auditor-general.

The squalid informal settlements in and around Marikana, bereft of proper sanitation, electricity and infrastructure, stand today as much of an indictment of evanescent local and provincial government as they did a year ago.

Where does that leave the country a year later? A continued deterioration in the economy, highlighted by 0.9 percent growth in the first quarter (versus the 5 percent needed to address joblessness and poverty), 25.6 percent unemployment (double that for young adults), declining bond prices and short-term capital inflows (to fund the current account deficit), sporadic labour unrest, fraught wage negotiations in the gold mining sector, inter-union rivalry between the National Union of Mineworkers (NUM) and the Association of Mineworkers and Construction Union (Amcu), appear finally to have spurred the government (and the ruling party) into some sort of action.

First, mainly driven by the Treasury, a framework agreement for a sustainable mining industry, under the auspices of Deputy President Kgalema Motlanthe who will convene quarterly meetings on it, was signed by the government, labour and business on July 3. Although Amcu promised to sign it after a three-week “consultation” with its membership, nothing has come of this.

Given that Amcu is now the dominant union in the platinum sector, with more than 120 000 members overall, its continued abstention could well undermine the framework agreement’s long-term sustainability. For all that, the agreement makes some important commitments to putting the mining industry on a different trajectory. Mindful of Marikana, law enforcement agencies are now obliged to act in a manner that is fair, impartial and objective, while respecting life and property.

In view of the criticism of the government’s perceived partiality towards the NUM, the government agrees to be fair, impartial and avoid any conflicts of interest in all matters relating to the mining industry. Likewise, the government undertakes to provide legislative predictability and certainty for the industry while enhancing an environment supportive of investment.

Given all that has gone on in the past year (and previously in relation to the regulation of the mining industry itself), these are important and welcome commitments. It remains to be seen how they will play out in view of the absence of effective enforcement provisions under the agreement, as much as the departure of Motlanthe from the political scene next May.

Next, on July 22, the ANC’s national executive committee announced the appointment of a presidential task team on the economy to address “sluggish” job creation as well as the decline in GDP growth. According to ANC secretary general Gwede Mantashe, the task team, which is yet to be appointed, will attempt to remove obstacles to growth, including in the mining sector, which is the country’s biggest foreign exchange earner.

This would be in parallel with the im- plementation “with speed” of the National Development Plan, approved by the cabinet in September last year and the ANC’s elective conference in December.

These are obviously positive recent developments which, if implemented, may go some way to addressing the country’s pervasive problems of poverty and unemployment.

A Gini coefficient of 63.1 (evidencing the world’s worst income inequality) nearly 20 years after democracy is clearly subversive of what the constitution proclaims in its foundational provisions: “human dignity, the achievement of equality and the advancement of human rights and freedoms.”

As to the Marikana commission itself, one is reminded of the opening lines of Bleak House: “Fog everywhere. Fog up the river, where it flows among green aits and meadows; fog down the river, where it rolls defiled among the tiers of shipping and the waterside pollutions of a great (and dirty) city. Fog on the Essex marshes, fog on the Kentish heights. Fog creeping into the cabooses of collier-brigs; fog lying on the yards…” Peter Leon is the head of the mining sector group at law firm Webber Wentzel.