The litigation trying to pin liability for the Marikana massacre on President Cyril Ramaphosa is not over, but the high court has found that 329 miners have failed to set out a case that he incited the murder of their colleagues a decade ago.
Justice Fritz van Oosten, in his ruling on eight pleas of exception raised by the president, upheld seven but dismissed one, namely that the plaintiffs had not met the legal test for causation to argue that Ramaphosa’s phone calls pressing the then ministers of police and minerals and energy to act against striking mine workers at Marikana translated into the harm that eventually transpired.
The court agreed with legal counsel for the plaintiffs, Dali Mpofu, that whether they would be able to prove the allegations was not relevant for the court’s present purposes. They have six weeks to submit further particulars of their claim.
The plaintiffs are trying to sue the state, Sibanye-Stillwater (formerly Lonmin) and the president, both in his personal capacity as well as that of non-executive director of the mining house where a strike ended in the police killing 37 miners on 16 August 2015.
The 329 miners were injured and arrested and are seeking to claim more than R1-billion in compensation and punitive damages for what transpired.
SIbanye-Stillwater raised 10 exceptions arguing, like Ramaphosa, that the plaintiff’s allegations are vague and that they fail to make statements that would sustain a cause of action and case to answer.
Since the miners’ claim against Ramaphosa is founded in delict, or a violation of the law, they are compelled to identify where he acted wrongfully, what harm they suffered and how it was caused by his conduct.
They rely on an exchange of emails between him and senior Lonmin managers to argue that by characterising the strikers as violent criminals and calling for “concomitant action” to be taken against them, he was saying “they ought to be similarly murdered in turn”.
The court ruling rejects this reading and notes that these words are nowhere to be found in the email correspondence between Ramaphosa and Lonmin chief commercial officer Albert Jamieson.
Ramaphosa said in an email sent on 15 August to Jamieson: “The terrible events that have unfolded cannot be described as a labour dispute. They are plainly dastardly, criminal and must be characterised as such. In line with this characterisation there needs to be concomitant action to address this situation.
“You are absolutely correct in insisting that the minister and indeed all government officials need to understand that we are essentially dealing with a criminal act. I have said as much to the minister of safety and security.”
In another email, he added that then mineral resources minister Susan Shabangu was about to join a cabinet meeting and would brief the president and the minister of police, Nathi Mthetwa, to “act in a more pointed way”.
Van Oosten said: “Counsel for the plaintiffs contended that the first defendant, in proposing concomitant action, was proposing that the workers be murdered. I do not agree.
“The argument assumes, without proferring the grounds in support thereof, that the proposal was made that the workers be murdered. Having carefully read and considered the email communications. I have not been able to find any support for the inference that the murder of the workers was intended or foreseen.”
He noted that it was Jamieson who first characterised the conduct of the workers as criminal.
Van Oosten found the miners failed to show that the mining house and the government acted in concert “in the collusion between the state and capital which resulted in the massacre which is at the centre of this action”.
The miners also allege that as a former trade union leader and a political leader, Ramaphosa owed them certain duties, among these being to protect them from state-sponsored violence. The court rejected this as unfounded in law and upheld the exception the president raised in this regard.
But the court dismissed Ramaphosa’s argument that the action taken and the pressure he may have exerted, as suggested by the content of the emails, is too remote from the harm that transpired for the plaintiffs to argue that there was a causal link or liability in law on his part.
“The third ground of exception must accordingly fail.”
This is the plea that the miners will now try to substantiate at trial.
They have argued in their papers that the action taken by him, the mining house and the state show that he “participated in, masterminded and championed the toxic collusion between Lonmin and the South African Police Service which resulted in the deaths, injury and detention of Lonmin workers”.
The presidency in a statement issued on Tuesday stressed that the court had made no finding that Ramaphosa had been the cause of the harmful conduct.
“The proceedings were not a trial and no evidence was led. The court was merely engaging in a legal debate.”
It said it was disturbing that “ongoing politicisation of this tragedy [was] leading to the unfair targeting and isolated allocation of responsibility to the president”.
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