The appointment of a commission of inquiry often represents an act of decommission. Submerged in legalese and overwhelmed by procedural niceties, the core social or political event that created the need for a commission swiftly disappears from the news. The arms inquiry appears to be an eloquent illustration of this.
In rare cases, a commission may respond to its mandate with speed and efficiency, providing an important basis on which the underlying problem is to be addressed. The recent announcement that the commission of inquiry into allegations of policing inefficiency in Khayelitsha, chaired by retired Constitutional Court justice Kate O’Regan, is now to hear argument after completing the gathering of evidence, represents such an exception. It also throws into sharp relief the glacial pace of the other important commission into policing, the Marikana commission, chaired by retired Supreme Court of Appeal judge Ian Farlam.
It was appointed in September 2012 and was to furnish its report by February 2013. The latest extensions to the life of the commission means that there will be no report until the second half of this year – two years after it was appointed.
The terms of reference of the commission required a report not only into the direct reasons for the death of the 34 miners who were killed by police fire but the causes of the protests at the mines that, in turn, gave rise to the events in which the police intervened, to tragic effect. The current strike on the platinum belt and the concomitant industrial unrest compels an expeditious but measured, impartial explanation coupled to clear policy recommendations.
The commission was given the benefit of hugely distinguished lawyers as evidence leaders and legal teams of considerable skill. Although it may cogently be argued that the tenacity with which the South African Police Service has defended its conduct on the fatal day, the complexity of the structure of the mining sector and the delays caused by lack of funds for certain lawyers, distinguishes this commission from the Khayelitsha commission.
Recent reports point to serious problems, which are of significant public concern. For starters, the government recently amended the terms of reference to exclude from consideration the role of government agencies in the overall inquiry into the structural and political causes of the unrest on the mines. This amendment could have the effect that the government’s role in the perpetuation of the migrant labour system, the marked inadequacy of a social wage for miners, including providing housing, healthcare and education for the children of miners, are all issues that no longer form part of the commission’s remit.
Regrettably, the conduct of the commission appears to constitute a further major problem in the achievement of expedition and efficiency. For more than a year, the commission, which elected to conduct its proceedings on the adversarial model of a criminal trial and in sharp contrast to the Khayelitsha commission, allowed the interminable cross-examination of a single witness, which lasted, in instances, for days.
Now, as the commission is confronted by a rapidly approaching deadline, strict time limits have been imposed. The record reveals that cross-examiners are now operating under a time limit of an hour (or less). Arguably, had this system been in place from commencement, we would have had a report already.
The problem, however, is that the commission does not sit for five days a week. The gaps are caused, apparently, by the nonavailability of the premises or the complications of flight arrangements on Fridays. Surely alternative arrangements could and should have been made to ensure the maximum utilisation of time? Unlike a court day, when there is one 15-minute break taken in the morning, the commission takes two – and, if the transcript is accurate, often for 20 to 40 minutes at a time. Ironically, after exceeding the adjournment, sometimes by 25 minutes, the chairperson then argues with counsel who wishes to have five more minutes to complete the cross-examination of a witness.
The commission has devoted almost all of its time to investigating allegations of police culpability in respect of the deaths of the 34. The broader role of Lonmin, the Association of Mineworkers and Construction Union and the National Union of Mineworkers, as specifically set out in the terms of reference, has received scant attention, save tangentially in the formal hearings and specifically in three seminars conducted on March 31 and April 9 and 16.
The seminars have been addressed by eminent academics, lawyers and some affected persons but they have come very late in the day. In addition, the transcripts of these seminars have not provided the same opportunity for public scrutiny as has the inquiry into police conduct.
As important as the finding about the role of the police is, the investigation into structural causes is surely of equal significance. The acknowledgement by the chairperson at the seminar in April that “we are running out of time” is disturbing.
The public needs a comprehensive and clear report on all issues pertaining to Marikana, and as soon as possible. The initial tardiness should not be an excuse for failing to address all the terms of reference with the greatest rigour in respect of both principle and detail.