The commission seems to be skewed against its poorer participants
As police officers took the stand at the Marikana commission of inquiry this week, the South African Human Rights Commission's findings on the Andries Tatane murder were released. The two events highlighted the increase in police repression, signposted by human rights violations in Ermelo in 2011, the violent death of Tatane and the killing of 34 miners in Marikana.
The report, which found that the police used disproportionate force and violated Tatane's right to life, was released as Captain Jeremiah Mohlaki, a crime-scene expert who also worked at the Marikana sites, testified at the commission.
He appeared to waver on the Marikana witness stand, reluctantly admitting that the police's audiovisual material did not, in fact, capture the killings, but only the aftermath.He spoke of pistols being found among miners that had not been sent for ballistics tests. He also avoided discussing a police briefing that took place just before the August 16 shootings.
Besides a measure of timidity in which every third answer was prefaced with a "Thank you, chair", there was not much separating Mohlaki – the second police witness to spend a significant amount of time on the witness stand – from his predecessor, the chronic amnesiac Lieutenant-Colonel Johannes Botha.
The police's strategy of disclosing as little as possible was wearing thin and it was off-camera events that took centre stage. And although questions had been asked about the weight of retired judge Ian Farlam's moral authority and his discretion in using it, this week the judge seemed to be asserting himself to a degree.
The commission is already viewed as a skewed playing field, with several potential witnesses having been arrested and allegedly tortured, and alms being selectively distributed to those legal teams not funded by the state.
New scars
This week, six of the arrested men (four of whom were taken into custody last week) were released. Some were gaunt and others bore new scars on their faces. Speaking before the commission on Wednesday, advocate Dali Mpofu, representing the arrested and injured miners, said one of the potential witnesses was beaten until he soiled himself; another had lost the hearing in his right ear.
Mpofu's pronouncement drew criticism from the police's legal counsel, Ishmael Semenya, who said the matter should have been discussed off camera. The statement did, however, achieve the desired effect of drawing sympathy and a measure of outrage from Farlam, who said he took the allegations seriously and, if they proved to be well founded, they would not assist the police in their case.
Although that case falls within the Independent Police Investigative Directorate's jurisdiction, the fact that police did not show up to a planned identity parade of some of the miners on Wednesday suggests that they may be losing their grip on would-be witnesses.
Whereas Farlam's utterance may seem insignificant, it is of sizeable value to Mpofu and his associates, who are feeling pressure from every corner. They have to personally fund their own involvement in the commission, while what is being viewed as a collusion of government-aligned forces seems to gain traction with impunity.
Arrested Lonmin employees have independently verified to the Mail & Guardian that some are seeking transfers to other shafts as working conditions have become hostile.
Contemptuous
Again, it was Farlam's comments that mineworkers who were injured and arrested during the strike also deserved legal assistance that forced Legal Aid South Africa to reconsider its stance. However, the result was a rather ill-considered statement by Legal Aid in which it reiterated that "deceased miners had lost breadwinners" and therefore "had a substantial material interest in the outcome of the commission".
Legal Aid also held that the interests of the miners were adequately represented by the National Union of Mineworkers (NUM) and the Association of Mineworkers and Construction Union (Amcu).
This makes little sense, however, when one considers that the conduct of both Amcu and the NUM is under scrutiny, as spelled out by the commission's terms of reference.
Legal Aid has provided R1.2million to the legal team, briefed by the Socio-economic Rights Institute and led by advocate Dumisa Ntsebeza.
Although Farlam increasingly put his foot down on unfocused questioning by some legal representatives this week, he will need to stamp his authority on the commission to enhance its credibility.
So far, he has done so sparingly. As a result, the commission is taking place in an environment that appears contemptuous of its poorest participants.