The Farlam commission is in danger of collapsing after lawyers said they couldn't proceed because of recent arrests and the withdrawal of funding.
Lawyers representing the Association of Mineworkers and Construction Union (Amcu), families of the deceased and the injured and arrested miners have declared that they cannot proceed with the commission for various reasons, including the withdrawal of funding for the families and the continued arrest of their clients which have rendered the commission a "virtual identity parade".
Advocate Tim Bruinders, who represents Amcu, told the commission before the tea adjournment last week that they had been asked by the evidence team to lead the evidence of the strikers. However, they needed to take instruction from the strikers in preparation of leading them but could not do so because the strikers were reluctant to participate. Bruinders said all four of the miners arrested last week shortly after they left the commission were Amcu members.
"The strikers are the only ones with a different version of the shooting than the police. [Amcu president Joseph] Mathunjwa left before the shooting on that day but of course Amcu members do know what happened." Bruinders said these workers were feeling hugely intimidated and could not give evidence as they felt there would be further ramifications. "It doesn't take a lot of adding to conclude that this is a campaign of intimidation. We feel we should stand down so we can conclude this matter … Arrest is the most extreme form of apprehending a suspect. We would have thought that police would have come to us and we could have helped them arraign suspects they think they needed for investigation. We don't want a guerrilla war between ourselves and the police."
The morning session had dealt with three urgent issues facing the commission, namely issues of legal aid facing some of the teams; the withdrawal of aid for families of the deceased; and the aforementioned arrest of the miners, apparently in connection with "mysterious murders" that have taken place in Marikana since the strike.
Last week, North West police spokesperson Brigadier Thulani Ngubane would not specify exactly which incident the miners were being arrested for, saying, "We don't want to come out with specific murders because then it gives the opportunities for others involved to flee."
Addressing the situation earlier on, advocate Dali Mpofu, representing the arrested and injured miners said the arrests were meant to thwart the participation of his clients. He added that the presence of the police officials filming the proceedings reduced the commission to a "virtual identity parade".
Evidence leader Mbuyiseli Madlanga told the commission that the department of justice and constitutional development said they were looking at making statutory amendments, which would allow them to be able to fund the accommodation and transport for the families of the deceased. Advocate Dumisani Ntsebeza, representing some of the families of the deceased, advocated the adjournment of the commission until such an amendment was promulgated.
He also lamented the issue of inadequate legal aid for legal teams not funded by the state, calling for an equal distribution of alms.