Andile Yawa’s bus leaves Queenstown in the Eastern Cape at 8pm. It reaches Johannesburg’s hustle and grime at six the next morning, and Pretoria by seven.
When the Farlam commission of inquiry starts in Centurion two hours later, Yawa is there, as he has been for almost every day it has sat over the past two years. He wants to find out who was responsible for the fatal shooting of his son Cebisile on August 16 2012 at Marikana.
Yawa’s wife Nosipho says that the time they now get to spend together at home in rural Cala is similar to when her husband worked as a miner.
There is repetition, too, in the journey into South Africa’s mineral-rich hinterland that Yawa first undertook by train in the 1970s, and since the 1980s, by bus.
The route is that of the “conscripted” that Hugh Masekela laments in Stimela, and which Cebisile followed when he succeeded his father after he was medically boarded with lung disease in 2008.
“There are similarities in these journeys,” he says of his travelling to the hearings, “but now [after these trips to the commission] I come back with nothing. Before, there was money and I was making a living for my family.”
Asked whether returning empty-handed includes a lack of answers about why his son died from gunshot wounds to the chest and abdomen, and who is responsible for his death, Yawa says: “There are some answers at the commission but they don’t give me any hope. The police don’t answer – they just pass through the questions.”
Retired judge Ian Farlam’s inquiry into the deaths of 44 people at Lonmin’s Marikana platinum mines during an unprotected strike in August 2012 completes its hearings this week. There are concerns that it has been undermined by the questionable credibility of witness testimony and whether all the relevant evidence has been made available to it.
Evidence leader advocate Geoff Budlender noted in closing arguments last week that the commission’s purpose was “hampered”, because there was “good reason to doubt the truthfulness of a large number of the witnesses … In an attempt to avoid accountability, many witnesses have avoided truth telling.”
“It has been, for me, one of the most dispiriting aspects of this commission,” said Budlender, a lawyer with a record of human rights and social justice litigation.
His view is felt profoundly by the family members of the 44 dead, the majority of whom believe that both Lonmin and the police have avoided accountability for the deaths of their fathers and brothers, husbands and sons, many of whom were the principal breadwinners for their extended families.
Survivors and families
But the surviving miners and family members have kept coming back to the commission, leaving their homes empty, rural fields untended and children in distant boarding schools.
They have returned despite the almost daily screenings of their loved ones’ final hours in the presentation of evidence. As they navigated the loss and trauma, they have watched husbands and brothers come alive and die, again and again.
They have weathered the apparent bad faith of individuals and institutions called to testify, in the hope of “some kind of truth”, as Betty Gadlela, the widow of Stelega, who was killed on August 16, said this week.
Yawa, a former National Union of Mineworkers member, says he knows former Lonmin nonexecutive director and trade unionist Cyril Ramaphosa to be a “stubborn man” and that he was “not going to admit to anything” in his testimony.
Advocate Dali Mpofu, acting for the miners injured and arrested on August 16, accused Ramaphosa, now South Africa’s deputy president, of putting political pressure on former police minister Nathi Mthethwa and the police hierarchy to order the crackdown that resulted in the 34 deaths on August 16.
Mpofu referred to a “toxic collusion” that undermined police impartiality and served the interests of international capital.
Strategic ‘drip feed’
Advocate Michelle le Roux, of the South African Human Rights Commission, described the police response to requests for information as a strategic “drip feed” that missed several deadlines. Le Roux said the police’s approach to accountability was a “deficient, deliberate and deplorable failure”.
National police commissioner Riah Phiyega appeared obstinate under cross-examination. She claimed not to remember vital information, including what she called the “pedantic detail” of whether a risk assessment of the police decision to move in on strikers on August 16 was carried out at a national management forum meeting of provincial police commissioners on the eve of the killings.
Judge Ian Farlam (left, standing) speaks to evidence leaders Geoff Budlender (left centre) and Matthew Chaskalson. (Photos: Paul Botes, M&G)
The forum had given the police at Marikana the go-ahead to encircle, disarm and disperse miners gathered at the koppie. On Wednesday, Farlam said he was staggered that, when the “catastrophic events” of August 16 unfolded, the national police commissioner would not have had the previous night’s discussion with the provincial commissioner “etched in her mind”.
Farlam also described as unsatisfactory the answers to questions he had sent to the provincial police commissioners about the national management forum meeting. In some cases, they had “deliberately evaded the questions”, he added.
The evidence leaders have argued that police provided the commission with false information, including a claim that they had twice come under attack by striking miners before the killings on August 16. In one case, a police Nyala, which the police claimed had come under fire from miners, was shown to have arrived at Marikana already holed by a bullet.
‘Key false claims’
Le Roux argued that it was one of five “key false claims” about August 16 that police manufactured to buttress their “proverbial blue wall of silence”.
The “bricks” of this wall, she said last week, were laid at a meeting of police about 10 days after the killings when, post facto, evidence seemed to have been “designed to be consistent and faithful to a self- and private defence case with no recognition of wrongdoing”.
According to Le Roux and others, the police’s alleged “collusion” during the gathering at Roots, a Potchefstroom hotel, extended to tailoring some of their submissions, including police officers changing their initial statements about a skirmish on August 13 that left three miners and two police officers dead.
After the Roots gathering, some police officers had inserted the claim that a sudden change in direction by striking miners marching from one of the Lonmin shafts to the koppie where they gathered to protest each day triggered the deadly skirmish.
This apparently vital information, which did not appear in police statements made in the days immediately after August 16, was later contradicted by video evidence showing miners walking at an orderly pace and in a single direction until police fired teargas canisters, sparking violent confrontation.
There have been no improvements to the Nkaneng informal settlement at Marikana.
Another claim contradicted by evidence was that police only resorted to lethal force at “scene one” – the widely televised killing of 17 miners near a kraal – after teargas, stun grenades and water cannons had failed to halt advancing miners before they allegedly attacked.
A video of all visuals captured on August 16 and placed in a timeline showed that the police use of non-lethal force was ineffectual and took place a few seconds before the tactical response team opened fire on miners.
Advocate Matthew Chaskalson said during the evidence leaders’ closing arguments that the commission’s terms of reference were broad enough to make recommendations for a deeper investigation into how Phiyega, and the South African Police Service as an institution, had responded to the commission.
In the two years since the massacre, nothing has changed at Marikana. The housing shortage and squalid conditions said to be behind the 2012 demand for a R12 500 wage still persist. On a Sunday at 10am, the shebeens in the New Stand informal settlement are already bubbling over with drunkenness.
Sixteen-year-old Nowile Nungu, the daughter of Jackson Lehupa, who died from gunshot wounds to the chest and abdomen at “scene one” on August 16, says that the selling of sex in the shackland remains rife.
Prostitution and sugar daddies are a problem and Nowile says one of her friends is pregnant by a miner.
Litter carpets the narrow dirt roads between shacks, crackling underfoot like brittle bones. Wires for illegal electricity connections crisscross one another under the detritus.
The government roll-out of drop toilets appears to be under way, but a hole in the ground remains the most common receptacle for human waste.
“Let me borrow your cherrie,” a drunken man slurs in Nowile’s direction from inside the Never Say Die tavern yard.
Nungu is on a weekend visit from boarding school in Rustenburg. Her mother, Zameka Nungu, still lives in Marikana when not at her home in the rural Eastern Cape. She rents out backyard shacks to support her family.
Lonmin’s social and labour plan obligations – on which its mining licence depends – appear as far from realisation as they were when Ramaphosa expressed surprise during cross-examination that the mining company had built only three show houses out of a promised 5 500.
Ramaphosa, as the face of Lonmin’s black economic empowerment partner and the chairperson of its transformation committee, was responsible for ensuring the fulfilment of the social plan’s objectives. He conceded that he had not read any progress reports on social and labour plans while a Lonmin non-executive director.
Lonmin said delays by local government in proclaiming the land for housing and the 2008 platinum price crash led to unfulfilled obligations. The evidence leaders, in their heads of argument, described the claim as “a red herring”, as land, including 780 stands, had been available, and the argument about affordability was, “on its own terms, incorrect”.
The evidence leaders noted that between 2007 and 2011, a period when Lonmin or its South African-registered subsidiaries, Eastern Platinum Limited and Western Platinum Limited, said it could not afford R665-million to build houses, it had paid dividends of $607-million to Lonmin Plc in the United Kingdom and its empowerment partner, Incwala Resources.
It had also paid more than R1.3-billion in “marketing commission payments” to Lonmin Plc through its South African branch, Lonmin Management Services (Pty) Ltd, “and/or its Bermudan registered subsidiary, Western Metal Sales Ltd” during the same period.
Lonmin was also criticised by evidence leaders, lawyers for the families of the deceased and the Legal Resource Centre for its drive to maximise profits during the strike of 2012.
Advocate Dumisa Ntsebeza, for the families of the deceased miners, noted in final arguments on Tuesday that it was important to “contextualise” the practice of migrancy and who the migrant mineworkers were.
“We are talking about people who could never earn enough to just sustain themselves and their families,” he said. “These conditions are self-perpetuating. If you are a mineworker, your child will be a mineworker.”
It is a perspective that Yawa shares, noting that he became a miner because it was the only opportunity available to someone “uneducated like myself”. “Which of my children do I condemn to the mines?” he asks.
It is a condemnation that appears unlikely to be rectified by Farlam’s recommendations, particularly given President Jacob Zuma’s amendment to the commission’s terms of reference, limiting it to an investigation of Marikana and Lonmin, rather than the industry as a whole.
But the events at Marikana on August 16 two years ago may precipitate deeper soul-searching about a system Ntsebeza described as “dehumanising” and “degrading”.
In what other industry is such terrible violence possible? On Tuesday this week, the commission was exposed to postmortem photographs of some of the dead miners, including Mgcineni Noki, the “man in the green blanket”.
His face was blown away. The majority of his fellow strikers where shot in the face, neck and upper body. The gruesome screening drew audible gasps and sighs.
Ntsebeza asked why police had used R5 rifle ammunition, when a single shot could cause a person’s face to be “shattered to smithereens”.
“Can that be justified in a democratic state?” he asked, adding that he could not justify police acting in this way in his defence.
“Not in my name. Not in our name as a society. Not in the name of this commission. Not in the name of our democracy. Not in the name of our Constitution. It should never have happened.”
Niren Tolsi is a freelance journalist and researcher at the Socio-Economic Rights Institute, which is representing the families of miners killed at Marikana and the Association of Mineworkers and Construction Union. This report does not reflect the views of the institute. It is part of a larger investigation into Marikana with Mail & Guardian chief photographer Paul Botes.