Zuma’s Marikana changes upset critics
PRESIDENT Jacob Zuma’s decision to change the terms of reference of the Farlam commission of inquiry has caused consternation among critics, who say it could stymie a thorough investigation of the events at Marikana two years ago that left 44 people dead.
However, sources at the commission said that, at this stage, they did not believe their investigation would be completely compromised — and that much would rest on the commission’s chairman, retired Judge Ian Farlam, and his interpretation of the scope of its work.
On Friday, a proclamation deleting paragraph 1.5 from the commission’s terms of reference was gazetted. The proclamation, which was signed by Zuma on April 25, also requires the commission to complete its work by July 31 — a deadline lawyers said was unfeasible.
Paragraph 1.5 calls for an investigation into “the role played by the Department of Mineral Resources or any other government department or agency in relation to the incident and whether this was appropriate in the circumstances and consistent with their duties and obligations according to the law”.
Yesterday, Department of Justice spokesman Mthunzi Mhaga said this affected phase two of the commission’s work — to examine the socioeconomic issues that may have led to the killings — but did not have any bearing on phase one, which dealt with who was “directly responsible” for the police shooting miners on August 16 2012, and the deaths that preceded it.
A lawyer at the commission raised concerns about the interpretation of “directly responsible” and whether the decision would limit access to government documents, including cabinet minutes and memorandums. “These will now rest with what the evidence leaders and Farlam considers relevant and could, potentially, be a problem,” said the lawyer.
According to lawyers at the commission, evidence submitted suggests cabinet involvement in the decision-making leading up to the massacre at Lonmin’s Marikana mine.
It includes an e-mail from
All the evidence will not be led by July 31 and this could result in a miscarriage of justice
Lonmin director and ANC deputy president Cyril Ramaphosa to various Lonmin executives at 3pm on the day before the massacre.
In it, Ramaphosa stated he had “just had a discussion” with Mineral Resources Minister Susan Shabangu, who assured him that she was “going into cabinet and will brief the president as well as get the Minister of Police Nathi Mthethwa to act in a more pointed way”.
A source close to the commission’s investigation said that if, in accordance with the procla- mation, Shabangu could not be called to testify about matters related to mining, she could still be asked to testify about whether there was evidence linking her to decisions related to policing at Marikana.
Likewise, her telephone records and the minutes of the August 15 cabinet meeting could also be relevant.
Lawyers said Ramaphosa, who is set to become deputy president of South Africa, could be called to testify as a private citizen. Mthethwa could also be called because there is evidence before the commission that suggests he was in contact with national police commissioner General Riah Phiyega as well as North West police commissioner Lieutenant-General Zukiswa Mbombo.
Dumisa Ntsebeza, who represents the families of the dead miners, said there were con- tested elements in Phiyega’s statements to the commission that required clarification from Mthethwa. These were “critical” to understanding the police chain of command, who ordered the increasingly heavy presence of police to Marikana, as well as where the decisions to fire on the miners was taken.
In her initial testimony, Phiyega said she had received various orders from Mthethwa during telephone conversations. She later changed her testimony to say that she had merely been reporting back to the police minister, noted Ntsebeza.
According to the transcript of a meeting between Mbombo and Lonmin executives on August 15, the former said “when I was speaking to minister [Mthethwa], he mentioned a name to me that is also calling him, that is pressurising him. Unfortunately, it is politically high.”
She later said it was Ramaphosa who was pressuring the police minister and Phiyega.
Teboho Mosikili, director of litigation at the Socio-Economic Rights Institute of South Africa, which represents the dead miners’ families and the Association of Mineworkers and Construction Union, said the institute had written to the commission and the Presidency requesting reasons for the decision because of concerns that “all the evidence would not be led by July 31 and this could result in a miscarriage of justice”.