Quick out the gate: Marikana inquiry gets to work

While the emphasis on getting answers as soon as possible has been welcomed, questions remain over whether matters are moving too quickly to ensure a thorough investigation.

The investigation into incidents that led to the deaths of 44 people at the Lonmin mine in Marikana will begin at 9am in Rustenburg on Monday, five weeks after President Jacob Zuma announced the inquiry

The commission has been given just four months, dating from September 12, to complete its inquiry and the terms of reference require it to submit monthly progress reports to the president. The first of these is due in just two weeks' time on October 12.  

The parties involved in the commission include Lonmin, the South African Police Services (SAPS), the Association of Mineworkers and Construction Union (Amcu), the National Union of Mineworkers (NUM) and the departments of minerals and labour. 

The families of the miners will also be given an opportunity to make representations and, in addition, anyone who wishes to make a submission to the commission may request to do so.

Viewings and sittings
The hearings will begin with an in loco inspection at the site of the shooting. The commission will also visit other sites that may be referred to in evidence, including Wonderkop hill, mine shafts and the settlements around Marikana. 

There is a possibility that the inspection will continue on Tuesday.

It is rumoured that the commission will examine all available video evidence documenting events on the day of the shooting on Tuesday. Whether the evidence will be available in time remains to be seen.

Formal sittings begin on Wednesday. 

In a statement released on Friday, the commission said the first session would focus on the events immediately preceding August 16 – the day of the shooting – and each party would be given the opportunity to present an overview of these events from its point of view.

The commission has asked SAPS to provide an overview of events from the police's perspective and asked that the presentation include notes, photographs and plans with annotations.

Although the commission may call for some parts of the proceedings to be held in camera – in the interest of justice – the inquiry will be open to the public. 

Seating will be provided for on a first come, first serve basis and the family of those who died during the incident will be given preference. Additional viewing facilities will be made available outside the auditorium and at a community hall in Marikana.

Time pressure on proceedings
A source close to the inquiry told the Mail & Guardian that litigators, which include some of the best legal minds in the country, were having difficulty preparing themselves for oral submissions on such short notice.

"This is the biggest post-apartheid inquiry since the Truth and Reconciliation Commission. The implications of it are nothing short of historic. It's like being asked to participate in the biggest trial in your life on a week's notice, with the rules of court being published just the day before things are supposed to commence," he said.

The parties involved are waiting to hear what order they will be called on to make their submissions with – those who are called on later will have more time to prepare. 

Another source, who asked not to be named, told the M&G that some parties suggested to the commission that the hearings should be postponed for further evidence to be collected. It remains unclear whether the commission will grant this request.

"The only certainty is that there will be an in loco [inspection] on Monday and Tuesday, and on Wednesday they will sort out what the process will be going forward," he said.

There is also some speculation that, given the extent of the investigation required, and the number of parties involved, four months may be too little time to complete the inquiry and that the commission may need to request that the president grant an extension.

"It's a hell of a short time to do it – not only in four months but in four months that include the Christmas shut-down period," said the source.

Advocate Kevin Malunga, spokesperson for the commission, said he could not say whether certain parties would ask for a postponement. 

"That's something that may come up during the agenda [on Monday]. There's a requirement to complete the inquiry in four months, so any possible postponement wouldn't be substantial," he said.

Families out of the loop
Questions have also been asked about the extent of assistance offered to the families of the deceased miners. 

Amnesty International last week said it was uncertain whether the commission had the resources to properly support all those who wished to provide evidence to the inquiry, and pointed out that many potential witnesses may need financial support to engage with the commission, including for legal advice and transport. 

Jackie Dugard, executive director of the Socio-Economic Rights Institute – representing Amcu and the families of 19 of the deceased – said while the organisation had full faith in the commission and was very supportive of it, it was concerned about the apparent lack of support for the families.

"I'm not sure whether the commission has satisfied itself that every single deceased person's family has been offered legal representation," she said.

Dugard added that many of the families hail from the Eastern Cape, Lesotho and other far-flung places, and said: "As things stand, at the moment, the families are not aware of arrangements for transport for them."

"We look forward to getting clarity on some of these issues. What we'd like to see from the commission is putting families first, and we're hopeful that the commission will clarify this."

Public interest vs security interest
Meanwhile, retired judge Joos Hefer, who has worked on commissions of inquiry in the past, told the M&G the question of how the Marikana shooting came to happen would be a challenging one to unravel.

Hefer said one challenge was the question of state interests and state security. 

"The relevant minister may refuse to disclose information which is claimed to be contrary to the interests of the state," he said.

Hefer headed up the eponymous 2004 commission that investigated allegations that then head of the National Prosecuting Authority, Bulelani Ngcuka, had been an apartheid spy. 

During the inquiry, security officials told the commission that certain information they had sought was classified, which stymied the investigation.

"It happened to me, and years ago it happened to Judge [Louis] Harms."

In 1990 Harms investigated claims concerning the parliamentary hit squad of the apartheid era known as Vlakplaas.

"They closed ranks, they said it wasn't in the state interest to reveal certain things," said Hefer. "It would be no surprise if it happens again." 

'Political decision'
"What's necessary is for the minister of police to take a political decision and say, in this case we're going to play completely open cards."

Hefer said it was hard to say how this particular commission would unfold as every commission differed from the next; in some commissions the people involved were open and cooperative and in others they were difficult and obstructive.

Hefer said that while, in theory, one could charge an uncooperative witness with contempt of commission, he did not know of any cases where this had actually been done.

"My impression from the outside is that there are many people with many agendas here," he said, adding that if this was the case it could be a challenge to understand what each witness is trying to achieve through their testimony.

"This commission is of a rather special kind. It flows from violence and it flows from grievances. It's not an easy matter to handle. It will have to be a very thorough investigation," he said.


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