Deep Read: Commission Impossible
After the Hefer, Ginwala, Donen or Ngoepe inquiries, any hope of the Farlam Commission getting to the bottom of the Marikana tragedy is naive at best.
There are competing accounts of what happened at Marikana, and how it happened. Many seeking to understand the events have put their faith in the judicial commission of inquiry set up to uncover the facts behind the tragedy. Others, however, are skeptical of the impact such a commission will have.
Indeed, casting an eye back on the many commissions held in South Africa shows that such inquiries do little to fix the problems that situations like Marikana uncover.
Commissions of inquiry were used by the apartheid state to legitimise its actions – and to give the appearance that the government was taking an issue seriously.
The Cillié Commission of 1976, for example, investigated the circumstances of the Soweto riots. But its aim was not to establish what might have been done differently that day, but to see whether the actions of the police may have been justified. It provides an object lesson in the importance of the terms of reference for any commission.
The terms of reference announced by President Jacob Zuma for the commission of inquiry into the events at Marikana, headed by retired Supreme Court of Appeal judge Ian Farlam, have been met with approval from civil society. They've been described as broad enough to cover all the key players in the incident but not so broad that the work of the commission will be drawn out over many months.
Legal experts are waiting for the terms of reference to be gazetted, to see what powers Zuma will grant the commissioners, as this will have greatly affect how thorough the investigation will be.
Cooperation from the state
The 2003 Hefer Commission, meanwhile, showed that even the most well-meaning commissioners can be stymied if they do not have the full backing of the president.
The commission investigated allegations, made in the City Press newspaper, that the NPA head of the day, Bulelani Ngcuka, had been an apartheid spy.
The terms of reference were later broadened to investigate whether Ngcuka had abused his position in the NPA because of "past obligations to the apartheid regime".
The story came to the newspaper from Moe Shaik, then a special advisor to the minister of external affairs, and senior ANC member and former transport minister Mac Maharaj, via journalist Ranjeni Munusamy who was at the time a reporter for the Sunday Times.
Judge Joos Hefer faced an uphill battle in his efforts to get the cooperation of key witnesses in the case. Hefer eventually abandoned efforts to get Munusamy to give testimony when her lawyers threatened to fight against the injunction, and take the matter to the Constitutional Court if needed, as this would have delayed the inquiry indefinitely.
He then tried to call witnesses from the police, defence force, state intelligence, the security services and the NIA but complained in his report that "some of these prospective witnesses appeared, represented by counsel, but not a single one of them was willing to take the witness stand or to produce the documents which they had been subpoenaed to bring to the commission".
While crime intelligence offered Hefer its full cooperation in writing, Hefer noted in his report that "nothing came of this".
State intelligence officials, meanwhile, told him they would only cooperate "subject to the provisions of the legislation which prohibits both past and present members and/or employees of the Intelligence and Security Service from disclosing any information relating to the security".
This is a reference to the apartheid-era Protection of Information Bill, the successor to which is currently before Parliament. The so-called secrecy Bill has been sharply criticised by freedom of expression NGOs for providing loopholes with which the state may hide relevant state information that should rightfully be in the public domain.
Given the involvement of security agencies in the events at Marikana it seems likely that the Bill, or its predecessor, will be raised during the work of the Farlam Commission.
When Hefer issued subpoenas asking for information and documents to be produced, security officials simply told him they were classified.
At that point, Hefer described the situation as insufferable and the matter seemed to be headed for the courts.
When he complained to the presidency, he was told that the information he sought had been provided to the president, and that "there would be no point in the president appointing a Commission to pursue information to which the President already has access, in as much as the Commission's mandate is to report to the president".
Hefer was told to shift the focus of his investigation to the allegations made by Shaik and Maharaj, and his terms of reference were amended.
Next, Hefer tried to call on Jacob Zuma, then deputy president, to assist in the investigation, as he had headed the ANC's intelligence services in the late 1970s and the early 1980s.
But Zuma politely refused, saying that he had no right to discuss the matters outside of the ANC and that he would "not be of any assistance to the commission without the permission or instruction of [his] organisation".
Hefer opted not to call Zuma to testify but the two traded not-quite angry letters about the reasons why Zuma did not want to testify. In one of them, Zuma intimated that he would not be averse to ignoring a subpoena to testify and Hefer wrote that it would be a "sad day" if a subpoena from a presidential commission were to be ignored by someone of high office.
After the release of the report, Mbeki tried to assure Hefer that had he been called on, Zuma would have given evidence.
These events also raise questions about the degree of cooperation that Farlam and his colleagues will get from state officials who may have their own interests to protect.
No guarantee of accountability
The Ellis Park inquiry, headed by Justice Bernard Ngoepe, sought to uncover "whether there was any mismanagement on the part of anybody" in the events that led to a stampede at a Premier Soccer League match between Kaizer Chiefs and Orlando Pirates on April 11 2001, in which 43 people died.
But Ngoepe's findings amounted to broad recommendations for improving safety standards at stadiums and for preventing ticket scalping and unruly behaviour from fans.
In his book, Soccer and Disaster: International Perspectives writer Paul Darby said the report found no criminal or civil liability, and protected Premier League Soccer, Kaizer Chiefs and the Ellis Park management – who Darby believed shared responsibility for "disregarding spectator safety and maintaining a climate of disorder and unaccountability" – from prosecution. Although some families threatened a civil suit, this never came to pass.
Family members of those who died in the stampede also complained to Darby that their loss had faded from the public consciousness within just a few years and that the footballing world soon returned to business as usual.
There are no guarantees, either, that Marikana will prove to be a turning point in the country's history as many have suggested.
Cherry-picking the findings
The findings of commissions are given great public weight, but they are not unassailable, as shown by responses to the 2008 Ginwala Inquiry.
The Ginwala Inquiry, which was constituted in terms of the NPA Act and presided over by a politician, Frene Ginwala, rather than a judge or retired judge, is not directly analogous to the Farlam Commission but it shows how politicians have in the past cherry-picked the facts that are found by commissions.
The inquiry focused on finding whether Vusi Pikoli was fit for the role of national director of public prosecutions, but evidence given during the hearings would also later cast doubt on the suitability of his successor Menzi Simelane for the role.
Simelane, then a director general in the justice department, lied while giving evidence before the commission. In her final report Ginwala said his evidence was "contradictory and without basis in fact or in law" and that she found him to be arrogant and condescending.
Pikoli was removed but Justice Minister Jeff Radebe refused to take action against Simelane for his conduct before the commission, as was recommended. Simelane was later appointed deputy national director of prosecutions.
The DA later tried to have Simelane removed from the position saying he was unfit for the job and that Zuma had not applied his mind when appointing him.
The matter eventually went to the Constitutional Court. Defending the appointment, Radebe's lawyers argued that Simelane had not lied under oath in a court of law, but "in a commission chaired by a politician". They argued that the rules of evidence did not apply and that the commission had lacked credibility.
A dubious rubber stamp
The 2006 Donen Commission, meanwhile, shows how a commission can alleviate public pressure without fully resolving the concerns that lead to the inquiry.
The commission investigated the UN oil-for-food scandal, sometimes referred to as Oilgate. Deputy President Kgalema Motlanthe was alleged to have paid bribes to secure oil consignments for South African companies and a company that housing minister Tokyo Sexwale worked with allegedly paid kickbacks to land oil contracts.
The presidency claimed that both men had been exonerated by the inquiry but the M&G has argued that neither of the political elites had been fully investigated, as they had been dealt with as witnesses rather than suspects, and that the allegations remain unresolved.
The findings of the report were not immediately released. Independent Newspapers fought a protracted legal battle to have it made public. This eventually happened late last year but there are still questions about whether the version released was "doctored".
In recent weeks, the Farlam Commission has become a useful excuse for state agencies and officials not to comment or intervene in the ongoing troubles of the miners at Marikana.
But if South Africa's history with commissions of inquiry is anything to go by, it will likely not provide answers to all the questions we have, and that the answers they do provide may yet be subject to interpretation, political manipulation, and obfuscation.
And if anyone is hoping that the commission will ensure that individuals will be brought to book for their actions on the day, it may be best to adjust one's expectations now.