/ 23 August 2012

Retired judge to chair Lonmin commission

Retired Supreme Court of Appeal judge Ian Farlam will chair the commission of inquiry into the Marikana tragedy.
Retired Supreme Court of Appeal judge Ian Farlam will chair the commission of inquiry into the Marikana tragedy.

Zuma appointed a commission of inquiry last week to establish the facts about violence at the mine that saw 250 people arrested, more than 70 people injured and 44 people killed in total. 

Clashes last week Wednesday between rival trade unions National Union of Mineworkers (NUM) and the newer Association of Mineworkers and Construction Union (Amcu) left 10 people dead. Thirty-four miners were killed the next day after a shootout between police and strikers at the mine.

The independent-minded Farlam is one of the country's most experienced judges and is highly regarded in legal circles.

He started practicing in 1968, and served as a judge in the Orange Free State Provincial Division (now the Free State High Court) and the Cape Provincial Division (now the Cape High Court) before serving in the Supreme Court of Appeal.

Farlam will be joined by Advocate Bantubonke Tokota, who has acted as a judge in the Eastern Cape Labour Court and Transvaal Provincial Division (North Gauteng High Court), and Advocate Pingla Hemraj, who has served as a judge in the high courts of Durban, Pietermaritzburg, Port Elizabeth and Grahamstown.

Hemraj, who is from the KwaZulu-Natal south coast, is well regarded and has experience leading evidence according to members of the province's legal fraternity.

Rajesh Choudree, the KwaZulu-Natal chairperson of Advocates for Transformation, said Hemraj was "an able and competent advocate".

Justice department spokesperson Mthunzi Mhaga told the Mail & Guardian late on Thursday night the decision on who would lead evidence and the budget for the inquiry was still to be made.

Though the commission is not specifically tasked with looking at what role the state security agencies played in the lead-up to the shootings, the terms of reference are broad enough that it could do so should it choose to. The commission will be looking at the role of "any other government department or agency", Zuma said at a media briefing at the Union Buildings on Thursday afternoon.

The terms of reference of the inquiry are far-reaching. The commission will probe Lonmin's conduct, and will focus on whether it did its best to resolve any disputes with the labour force, whether it responded appropriately to threats and the outbreak of violence that occurred, whether it created or permitted "an environment conducive to the creation of tension, labour unrest, disunity among its employees or other harmful conduct" and whether it took appropriate steps to ensure the safety of its employees and prevent the outbreak of violence.

Examination of policies
Zuma added the commission will also examine Lonmin's policies more generally, including the procedure, practices and conduct relating to its employees and organised labour.

In addition, the commission will probe the conduct of the South Africa Police Service and look at the nature, extent and application of any standing orders, policy considerations, legislation or other instructions in dealing with the situation at Marikana.

It will also assess the role played by government departments and agencies in the events leading up to the tragedy.

Zuma said the commission will probe the conduct of both NUM and Amcu members and officials but appeared to place extra emphasis on the larger trade union.

Individuals and "loose groupings" responsible for promoting conflict will also be investigated, he added.

The commission may refer any matter regarding the conduct of a person or group for prosecution, further investigation or the convening of a separate inquiry. It will be empowered to enter and search premises, secure the attendance of witnesses and compel the production of documents.

Zuma pointed out that the terms of reference may be added to, varied or amended from time to time and that the commission will submit interim reports and recommendations to him each month before presenting their final report.

The commission may find its deadlines tight.

"The commission shall complete its work within a period of four months and must submit its final report within a month of completing its work," he said.

These four months include December, featuring the dual disruptions of the ANC elective conference in Mangaung and the holiday season. It must then deliver its final report within another month. Assuming it is duly constituted by the end of next week, and can stick to that timeframe, that final report would be due at the end of January.

Zuma urged all of the affected parties to cooperate with the commission's investigation.