As the Farlam commission of inquiry wraps up its evidence this week, key lessons about the mining industry in general have emerged from its last few days of evidence.
The last day of evidence is Tuesday. The commission will then adjourn to allow time for the legal teams to prepare for final arguments.
What has emerged from the commission, but especially from the cross-examination of Lonmin leaders, dispels long-held misconceptions about the August 2012 strike at Marikana.
First, that the collective bargaining structures in place were not sufficient to facilitate negotiations at the mine. That Lonmin wanted to stick to these structures even when the majority union, the National Union of Mineworkers (NUM), had lost the confidence of many mineworkers at the koppie, meant that communication between employer and employee broke down.
Advocate Dumisa Ntsebeza SC called this approach by Lonmin “technocratic”, and said Lonmin’s former head of human capital, Barnard Mokwena, needed to “think outside of the box”.
Cross-examining ‘from the heart’
Secondly, that tension between the NUM and the Association of Mineworkers and Construction Union (Amcu) was not the key driver behind the strike; Amcu was not the key driver either. This was a remark made by Mokwena in discussions with police leading up to August 16. He had to apologise for these remarks at the commission this week.
These misconceptions were shared between Lonmin and the South African Police Service (SAPS) in the days preceding August 16.
These theories were being spurted while what was at issue was something else: the miners wanted to talk to Lonmin. They wanted to negotiate, but there were not structures in place to support this.
Ntsebeza, for the families of the deceased miners, quickly cut to the crux of the matter when he cross-examined Mokwena on Monday. He grilled Mokwena on the mine’s sensitivity to the needs of the miners.
Informally, a lawyer at the commission remarked that the effectiveness of Ntsebeza’s cross-examination was that he “cross-examined from the heart”.
Ntsebeza called up no exhibits on the screen, put down his pen and paper, leaned forward in his chair and looked Mokwena in the eye.
He wanted to know what Mokwena earned. Mokwena’s lawyers interjected, arguing that there was no relevance to the question. It was agreed that Mokwena earned substantially more than the rock drill operators (RDOs) who earned between R4 000 and R5 000 per month.
Ntsebeza asked Mokwena if he felt this was enough to feed a family, clothe children, send them to school and provide safe shelter. Many miners were also the sole breadwinners for their families and extended families.
These families were now “emotionally devastated”, Ntsebeza said, and were also suffering in severe poverty.
Yet despite promises by Lonmin after the events of August 16 that the families of the deceased would be looked after, they remained destitute.
Ntsebeza said Lonmin had provided food parcels, worth R1 700 per family, on only two occasions since then.
And despite Mokwena’s pleading that he sympathised with the plight of the poor miners, and that he agreed that they earned very little, he had failed to attend the hearings where the families had made representations to the commission.
Forced to apologise
Advocate Heidi Barnes, representing Amcu, also managed to elicit some key concessions from Mokwena.
Most importantly, Mokwena was forced to apologise for telling the police that it was “very clear” that Amcu leaders were behind the strike.
“And if they don’t get arrested …” Mokwena was recorded saying to the North West police commissioner.
Retired Judge Ian Farlam asked if this was a call for the Amcu leaders to be arrested. Mokwena admitted this was so, but said that it was based on information he had received from his juniors.
But the commission has heard extensive evidence that Amcu was not the driving force behind the strike. Instead, the strikers were RDOs, many of whom had rejected union association of any kind in that context.
So the assumption that the leaders of the strike had to be arrested to avoid violence, was a grave error.
And all the strikers desired as they gathered on the koppie was to be heard.
Amcu then tried to intervene and asked to negotiate on their behalf. But Mokwena understood this to be an attempt by Amcu to get a seat at the bargaining table, long-term, despite the fact that they were not yet the recognised majority union.
The miners wanted to be heard
Mokwena said he doubted talking to the miners would have changed anything because the RDOs wanted “R12 500 and nothing else”. But the crux of the point made over and over by the likes of Dali Mpofu and Ntsebeza is this: the miners wanted to be heard, to be engaged by management. Lonmin, although clearly aware that the union structures in place were not serving many miners’ needs, would not go to the koppie.
Lonmin said they would not talk to the miners for several reasons. Mainly, the mine thought negotiating would set a bad precedent in future strikes.
Mokwena said that he feared for his safety and so would not send any of his other managers.
Yet the police had begged Lonmin to talk to the miners, and had offered Lonmin’s top brass safety in a police Nyala if they agreed to go to the koppie. Additionally, Bishop Seoka had been to the koppie and had returned safely.
Farlam also wondered on Monday why Lonmin did not make a “once off” arrangement with Amcu: that it could represent the RDOs, but only in this instance, just to open lines of communication. This would not mean giving Amcu majority union status, but it would merely serve as an emergency intervention measure to reopen the channels of communication and avoid sending in the police.
Mokwena would not concede that talking to the miners would have averted bloodshed, but a somewhat less blunt concession was made: that talking may have resulted in a different outcome.
But he said that even thinking about going down to the koppie to talk to the miners could not have been done without “considering the implications for the rest of the organisation [Lonmin]”.
Advocate Ishmael Semenya SC, for the SAPS, asked Mokwena: “And if the situation were to replicate itself tomorrow, you would not just keep yourself within the tram lines …”
“That’s the kind of introspection I believe we need to do,” Mokwena replied.
Semenya said he needed an unequivocal answer from Mokwena.
“If the situation replicates itself tomorrow, Lonmin will go to the mountain?”
Mokwena fumbled, and Semenya interjected: “Then you have learnt nothing, Mr Mokwena.”