Judge Colin Lamont
“There’s no difference between yourself and [Cyril] Ramaphosa because he also disposed of his shares after the massacre,” said advocate Dali Mpofu. “But he is in a better position because he acquired them before. So if they [the applicants] have suspicion about Ramaphosa, can you imagine how they feel about you?”
Mpofu, who is representing 328 people affected by the events that unfolded in August 2012 at Marikana, was speaking to Judge Colin Lamont, who disclosed his shares in the lawsuit respondent, Sibanye Stillwater, two days before the first hearing into the R1-billion suit against Ramaphosa and Sibanye, formerly Lonmin Plc.
The application to have Lamont recuse himself was launched hours after the disclosure.
Mpofu told the high court sitting in Johannesburg that the application has been brought on the grounds of a perceived apprehension for bias by the applicants and not an actual bias.
He said Lamont disclosed and sold his R200 000 shares 20 days after he became aware that he would adjudicate the case, a move that has “flabbergasted” the applicants.
Lamont told Mpofu that the shares were acquired after the “so-called massacre” on advice from his financial broker.
Mpofu said he accepted that the shares purchase “anti-dates” the allocation of the case but that was “precisely” the problem.
He said “shareholding” in this particular matter was central to the circumstances of the case.
“Even if you had one share in that company, in law it is still your company and you cannot adjudicate your murderess or non-murderess company,” Mpofu said.
Ramaphosa, he said, was a non-executive director at Lonmin in 2012 when he emailed the mine to call for “concomitant action” against the miners, who he referred to as “criminals”.
“The minister of minerals went on radio that this was a labour matter and it should be resolved by negotiations. Ramaphosa went on to say, ‘this can’t go on, she can’t say this is a labour matter. I have just had a discussion with Susan Shabangu. She has agreed that this is a criminal act and will call it as such. They are plainly just criminal acts and in line with such a characterisation there must be concomitant action’,” said Mpofu, quoting the emails Ramaphosa had sent the mine.
Mpofu said that a day after Ramaphosa sent the email, 34 mineworkers were gunned down in Marikana, in the North West. Dozens of others were wounded and about 280 workers were arrested.
Mpofu said that while R200 000 shares may seem insignificant to Lamont, the case involves applicants who were earning as little as R4 000 and died asking for R12 000.
“If instigators of the looting an violence can be brought to court, how much more than should Ramaphosa be brought before the court,” he said, explaining that this was relevant even as the claims could be proved or disproved in trial.
The summons filed in 2015 by Nkome Incorporated, the lawyers for Sivuka and 328 others affected by the killings, cite Ramaphosa as the first defendant, Lonmin as the second and the government as the third.
“The first defendant is sued in his personal capacity and as a director of Lonmin … and in pursuit of his personal interests and those of Lonmin. On or about 21 October 2012, the plaintiffs were made, and became aware of, certain unlawful conduct and acts committed by the defendants acting individually and or collectively … alternatively negligently, further recklessly, in violation of the constitution and in pursuance of the collusion,” the papers state.
Ramaphosa, represented by Edward Nathan Sonnenberg, argues that his communication and emails did not constitute actionable incitement or wrongful conduct.
Mpofu said: “We are suing shareholders, at least until yesterday we were suing your lordship. This is an automatic disqualification.”
Proceedings are continuing virtually.