Lonmin has objected to a submission that its witnesses be subjected to questioning on phase two issues, predominantly relating to housing, at the Farlam commission of inquiry.
The submission to merge phases one and two was made by the evidence leaders and presented to the commission by advocate Matthew Chaskalson on Tuesday. Phase one deals with investigating the events that took place at Lonmin’s Marikana mine between August 9 and 16 2012, while phase two examines the underlying socioeconomic causes that led to the 2012 strike.
The evidence leaders argued that it is not sensible to split the two phases, given that the next Lonmin witnesses to testify are qualified to deal with issues from both phases. Senior employees Albert Jamieson and Bernard Mokoena are due to testify at the commission in September. Jamieson was the chief commercial officer at the time of the strike and Mokoena the vice-president for human resources.
If the evidence leaders’ submission is accepted, the main phase two issue that Lonmin witnesses are likely to have to answer to are those relating to their social labour plan (SLP), which includes their obligation to build houses for their employees.
Unfair to Lonmin
Advocate Schalk Burger, who represents Lonmin, made three arguments against the submission. The first was that Lonmin’s housing obligations fall outside of the commission’s mandate. He argued that there is not a causal link between the housing issues experienced by Lonmin workers and the deaths in the week of the strike.
“We have for two years listened to this commission. I have not heard one party … suggesting that housing caused the shooting. I would’ve cross-examined him on that, but I haven’t heard that,” said Burger.
Burger’s second objection was that probing Lonmin’s SLP housing obligations in a vacuum would not be meaningful. “You can’t probe that without looking at the municipality, the province, the government,” Burger maintained.
“Could Lonmin provide houses if there was no sanitation, no water? It’s not an isolated inquiry. It’s a sophisticated, multifaceted inquiry, which falls outside your mandate.”
Thirdly, Burger argued that it would be unfair at this advanced point in the commission to expect Lonmin to answer questions about phase two issues. “It would be unfair at this stage – two years down the line, six weeks to go – to start inquiring into this issue and to expect Lonmin alone to address that at this stage of the game,” Burger said.
Burger added that he had not cross-examined any witness on these issues – another reason why incorporating phase two at this late stage would be unfair, according to him.
Burger stated however, that decent accommodation for all people living and working at Marikana is a priority to the mine. “Lonmin does not defend the unacceptable living conditions at Lonmin Marikana,” he conceded.
A convenient exclusion
But Chaskalson argued that it would be convenient for Lonmin to ignore phase two issues given that it “flagrantly breached obligations to build 5 500 houses for its workforce”. He added that Lonmin hasn’t given a reasonable explanation for their noncompliance.
“The main reason given was financial constraints during the financial crisis,” Chaskalson said. “But, they started defaulting before the financial crisis when the platinum industry was going through a boom and they continued to pay dividends to their shareholders.”
Chaskalson also pooh-poohed Burger’s argument about having to look at the state’s failure to deliver services. He argued that Lonmin’s SLP obligations were independent of the state and that part of the SLP agreement is that Lonmin would build houses as well as service the stands.
In relation to Burger’s argument that investigating housing does not fall within the commission’s mandate, Chaskalson argued that clause 1.1.3 of the commission’s terms of reference was unique to Lonmin. Namely, “whether it by act or omission created an environment which was conducive to the creation of tension, labour unrest, disunity among its employees or other harmful conduct”, Chaskalson said, quoting the clause.
“What the president wants to come out of this commission is policy recommendations that will prevent something like this happening again,” he added.
Chaskalson also chastised Lonmin for not co-operating with the evidence leaders and the commission’s phase two senior researcher Dr Kally Forrest in providing information and documentation when asked for it between November last year and July.
Chaskalson pointed out that Forrest was unable to complete her interim report to the commission as fully as she’d hoped because Lonmin only provided the relevant information at the end of July and beginning of August this year.
Most of the parties supported the evidence leaders’ submission, but advocate Dali Mpofu, who represents the injured and arrested miners pointed out that given the commission’s September deadline he did not believe there would be enough time to delve into phase two issues properly.
“We’d rather have the whole loaf [of bread] and have it done separately, without detracting from the important answers. The people we represent want answers … to what happened. We cannot compromise those answers to the wider answers that we need,” Mpofu said, suggesting that a separate forum be established to deal with phase two issues once the commission has concluded its work on phase one.
Chairperson of the commission, retired judge Ian Farlam has not said when he will give a ruling regarding the submission.