State's offer to Marikana victims finds little favour
Take the offer or go to court and wait years for the Marikana settlements to be resolved.
This was the offer presented by the state to the lawyers representing the Marikana victims’ families. The proposal, made at a meeting of the parties last week, has been a closely guarded secret, with the lawyers tight-lipped and the victims wary to speak about what they say they don’t know.
Nandipha Yona has prepared herself for a long, drawn-out process. She was left a widow after her husband was killed in the Marikana massacre four years ago. Today, she works for Lonmin and cares for her two young children.
“I don’t know what government wants to do with us yet, but I know there will never be a price we can put on our dead husbands,” she said. “I don’t think their deal is fair and I have already counselled myself that this process could take many years.”
The state handed over a proposal in which it sets out four possible responses to the civil claims filed in the high court in Pretoria last year. The meeting was attended by at least 15 representatives, including senior advocates Jeremy Gauntlett for the presidency, Dumisa Ntsebeza for the families of the deceased miners, and Dali Mpofu for the wounded and arrested miners.
The proposal states that the first response would be that the government defends the claim based on the argument that it is not liable for the deaths and injuries.
“The second is that government accepts liability in respect to all legitimate claims but requires that the claims continue to be pursued in the ordinary way, which is likely to entail a course of some years in achieving the completion of high court and any subsequent court proceedings.”
This goes against the narrative that the government, including the police, has always maintained – they shot and killed the miners in self-defence and therefore are not liable.
The third option is for the government to accept liability in respect of legitimate claims, and claimants agree to an expedited adjudicative process.
“The fourth is that, again on the premise that government accepts liability in respect to legitimate claims, the claims continue in the high court in relation to establishing quantum.”
The state is pushing for option three and, if the parties do not agree to it, the courts are the only way to resolve this matter.
“Government believes that the public interest as well as the interest of the claimants themselves require the speedy resolution of claims.
Should, however, it not be possible for the parties to reach agreement in relation to an expedited determination by alternative dispute resolution in terms of that option, government declares itself willing to pursue the fourth option,” the document reads
The state further elaborates in its proposal how the third option would work but the Mail & Guardian understands that the representatives of the victims have rejected it.
It is proposed that the minister of justice appoint an adjudicator from the ranks of retired judges to carry out the process to determine liability and fair compensation.
Mpofu, representing the wounded and arrested miners who have filed civil claims for more than R1-billion, said he could not comment on the details of the proposal.
“It was decided by the seniors including myself that we would not communicate outside the structures of the process. We made a statement with the lawyers of the state last week outside the meeting,” he said.
The lawyer for the miners, Andries Nkome, said they still had to talk to their clients.
“We need to explain to them what government’s proposal is and what it means for them. We will, of course, advise them and then respond once we have a directive from them,” he added.
The M&G understands that, during the two-hour meeting in Sandton, the state was grilled on how each option would be realised and told that the representatives were not amenable to the third option.
State attorney Ben Minnaar also refused to comment on the meeting but confirmed the four-page proposal.
“The next meeting will be on February 22 but, of course, there will be back and forth between the lawyers. We gave the proposal to all the parties and, for now, the representatives will have to take our proposal back to their clients and then we’ll get a response,” he said.
“But final decisions will be made after 22 [February],” he said.