(Madelene Cronje/M&G)
Lawyers representing the Marikana victims say their clients are deciding on a course of action following Judge Colin Lamont’s decision to recuse himself from a R1-billion civil suit against President Cyril Ramaphosa, the state and mining company Lonmin plc.
A complaint over the judge’s conduct is on the cards over what attorney Andries Nkome said was the unfair treatment of his clients. He said Lamont had been aware of a recusal application over his ownership of shares in Sibanye-Stillwater, which acquired Lonmin in 2019.
“We relied on the deputy judge president for a date, time has been wasted now. The judge knew about this matter on 9 August already and the hearing was the next day. So the clients believe they are being treated unfairly,” Nkome said.
Lamont recused himself from the class action case involving the families of victims and survivors of the Marikana massacre on Tuesday, after the application was lodged. He disclosed his shareholding two days before the matter came before him and sold the shares the day before. The shares were estimated to have been worth R200 000, according to the victims’ counsel, Dali Mpofu, during arguments in court.
In the recusal application, it was argued that Lamont’s shareholding was central to the perceived bias by the plaintiffs and this therefore constituted grounds for an automatic recusal.
The matter will now be heard by another judge.
Days before the recusal announcement and 130km away from the high court in Johannesburg, one plaintiff at Sibanye’s family hostel units in Wonderkop, Marikana, expressed a sense of defeat and hopelessness over the matter.
“How are we meant to find justice when even judges have shares in the same company we are fighting against? asked Mzoxolo Magidiwane. “Ramaphosa himself had shares in the same entity. This is the company that has me under it. Who am I against such a huge company that has its tentacles in government and judges? Where am I going to find justice?”
At the time Ramaphosa was a non-executive director of Lonmin. He was elected as ANC deputy president four months after the Lonmin strike in 2012 and subsequently resigned from his private sector interests. At the heart of his involvement in the class action case is a string of emails Ramaphosa sent to Lonmin before 34 miners were killed.
“I am saying to the government that what they did to us they will do it again because no one has ever been held to account,” said Magidiwane.
He still works for Sibanye but cannot go underground and do physical work because he was shot at Marikana and remained in hospital for weeks.
“Why am I the only one treated like this? I live in torture since 16 August. The police opened cases against me saying I killed people. I have been in and out of hospital all the time. I am constantly stressed by medication and the cases hanging over me with no evidence,” said Magidiwane.
In reply to questions in the National Assembly on 3 September, Ramaphosa said: “According to the records of the office of the state attorney, claims totalling more than R174.4-million have been paid to the families of those who died and to workers who were injured or detained.
He added: “There are still several claims that are not yet resolved and are still subject to negotiation and the exploration of possible offers of settlement. This includes further claims from 36 families for ‘general and constitutional damages’.
“There are a further 22 claims for unlawful arrest and detention, 13 claims for injuries and malicious prosecution and 40 claims for injuries that have not been settled either due to incomplete expert reports, outstanding records or disputed claims.”
Magidiwane said he is yet to receive an offer from the state.
“The government is lying when they say they have paid out the victims of the massacre. Speaking to you today I don’t have a single cent to my name. I haven’t even signed an offer or anything from the injuries caused by the police,” Magidiwane said.
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During his campaign to become the ANC’s president, Ramaphosa promised to visit the Marikana widows and apologise for the events of August 2012 but they are still waiting.
Pondering on the politics of it all, Magidiwane said those were mere empty promises.
“Our biggest problem is that the president does not care about what he did here in Marikana. When he wanted to be the president he promised the world that he would come here and apologise for what he did to the people here,” he said.
“When he said he would apologise it wasn’t about his humanity it was just politics. The saddest thing is that he is using politics over the bodies of dead mine workers.”
During his parliamentary question and answer session, Ramaphosa again promised to visit Marikana but emphasised the “complexity” of the matter.
“It has always been my intention to visit Marikana. This is a complex matter with many complex aspects to it. We are in discussions with various stakeholders, navigating various approaches. We are engaged with this process because it is important,” he said.
On Wednesday Ramaphosa’s acting spokesperson, Tyrone Seale, repeated the same sentiments when asked about the president’s promises.
In Ramaphosa’s responding affidavit to the civil claim against him for his role in allegedly inciting the violence that led to the deaths and injuries, his lawyers argue that, “the claims lack averments necessary to sustain a cause of action and are vague and embarrassing”.
They will argue that the emails did not constitute incitement of violence or other wrongful conduct and, consequently, do not disclose a cause of action while his liability as a former director for Lonmin has no basis in law.
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