I’ve spent the twenty-four hours following the release of the Marikana Report sitting and reading it, making reader’s notes as I go, as a service to those who won’t have the time to spend going through the 600-page document. So having taken a massive nap asince, I want to just share a couple of thoughts on it – particularly on where I feel the commission has left important holes in its findings, as well as on the case of Ramaphosa being exonerated.

In the case of what was not covered, two issues have stuck with me after reading the full report. In the first instance, the commission had a good deal to say about what happened at scene one (the video all of SA saw), but distressingly little to say on what happened to scene two – the area behind the koppie where many others were killed. Only two of the deaths that happened at scene two are explained, both on the basis of police evidence and with no findings in terms of who, exactly, was responsible. In the case of one gentleman, despite a constable claiming to have shot at the man nine times with a pistol at a range of four feet, no 9mm rounds were found in his body, only R5 bullets.

Other than these two gentlemen, no findings could be made as to how exactly all of the other miners, hemmed inside a kind of cul de sac in the koppie, died. The closest the commission comes to pointing a finger is to observe that some testimony places one Maj. Gen. Naidoo emerging from the area where the miners died just after the shooting happened there. Naidoo was reluctant to hand his firearm over for ballistics testing, and changed his story after cartridges from his weapon were found on the rocks above the miners.

Other than this (indirect) suggestion that Naidoo and/or his unit were responsible for what was likely the most intentional killing of the day, the commission has nothing more to say on the deaths of all of those miners. This, in my view, is unacceptable, given that one of the commission’s key objectives was to provide an account of how these miners died. As regards the SAPS, the commission’s terms of reference include deciding:

“the precise facts and circumstances which gave rise to the use of all and any force and whether this was reasonable and justifiable in the particular circumstances;”

In at least the case of the men who died at scene two, this question has been grossly unanswered.

In the second instance, the commission did well, in my view, to uncover the fact that the decision to ‘go tactical’ was taken:

  1. the night before the massacre
  2. in the knowledge the casualties would likely occur
  3. as being committed to regardless of whether things improved the next day

The SAPS did absolutely everything they could to hide the contents of this meeting from the commission, once it became clear that the commission knew it had happened. In attendance were the National Commissioner (Phiyega), Lt Gen Mbombo (in charge of the Marikana operation), the Provincial Commissioners, the Divisional Commissioner for Operational Response Services, the Deputy National Commissioner for Operational Response Services and the Acting Divisional Commissioner for Crime Intelligence.

Not one of these individuals was able to inform the commission as to what happened at that meeting. This meeting was recorded, and the recording was on a memory stick given to Brigadier Malahlela, who ‘lost’ it – in violation of section 4(1)(b)(dd) of the Protection of Information Act – rather than hand it over to the commission.

The commission speculates – because this is all it can do in the absolute jail of ignorance about this meeting that the SAPS has left it in – that there would in all likelihood have been political input on how to deal with something like Marikana, given its political implications for the country at the time. But without the details of that meeting, there is no way of knowing what this influence might have been, or who might have brought it about. The commission (rightly, in my view) comments that such influence, if it existed, would have almost certainly left fingerprints at this meeting, and speculates that it would have likely come from the Minister of Police.

But that, sadly is all the commission can do. Which leaves us in the unsatisfying place that the commission has pointed us to a glaring black hole in what we know about how the massacre was decided on – a place where the connection between the political players and the SAPS would have in all likelihood shown itself. It has indicated where we would need to look for an answer, but the SAPS (specifically Phiyega, Brig. Malahlela and all those present at the meeting) have closed ranks spectacularly to hide this information.

So we know where the answer to the burning political influence question probably lies. But the commission could not get access to the evidence. Which should make you deeply angry. Not at the commission, but at the high level, quasi-political strata of the SAPS that is holding closed the gates to accountability.

To the issue of Ramaphosa, my reading of the evidence presented in the report makes his case seem like a red herring. There is this popular idea that because he was an ANC-connected mining fatcat, he influenced the minister to end the strike, so that Capital could continue to do what it does best – exploit miners’ bodies for private wealth accumulation. I am sympathetic to this view politically – but this thinking should really then extend culpability to the CEO of Lonmin and others who all used power (both political and hard, physical force) against the miners.

The commission, though, was not asking this question (illustrated not least by the lack of Marxist language in the report). The specific question was whether Ramaphosa had asked the Minister for Mining and/or Police to get the police to crush the strike, and whether (if he did so), he intended or could have anticipated the bloodshed that resulted. On the basis of the evidence before the commission, Ramaphosa did not ask for anything more than that the police bring the violence and killing (and there had been much of it) from the strikers to an end. There was no evidence that he proposed any specific course of action to either minister, or that he foresaw the bloodshed that resulted from the police action.

Nevertheless, there are repeated mentions by Gen Mbombo in the commission report, that indicate she was aware that Ramaphosa was making queries about the strike, and that this likely influenced her pushing through the tactical plan the night before, under contexts uncertain (see above). This is problematic, because if we accept that Ramaphosa is cleared by the evidence (and in my view, he is), it points to a situation in which South Africa’s political emperors don’t need to ask for certain things to be done (regardless of whether they want them to be), because the functionaries already perceive their interests and will act to protect them. Phrased more pointedly – even if Ramaphosa had wanted the strike crushed, he would not have needed to ask that it be crushed. A simple demonstration of concern to a minister would get his interests looked after.

This – and it is the unsatisfying truth – is not Cyril’s fault. It is the fault of a weird kind of ANC/public official nexus that has been put in place over years, in which public officials exist to safeguard their lords’ perceived interests, rather than waiting for actual, specific requests. In a normal, functioning public service (of any kind), officials would act in the public interest above all else, and powerful interests wanting to be accommodated would need to specifically *ask*. Which would place them in a position such that courts and commissions can unmask them and hold them to account.

Reform, then, needs to happen at exactly this level of commissioners and deputy commissioners, to create the public interest-oriented service that does not exist to look after the will of the powerful. That is not some ‘whitewash’, or exoneration of the powerful, it is probably the most important single change needed to take back (in the case of the SAPS) the apparatus of legitimate violence and give it back to the people, not the state/party amalgamation it currently serves.

  • dandan

    Also of interest is the legal challenge announced by the injured or families of decreased for a civil liability claim.

    The courts will have to test the evidence, lack of evidence, and this report.

    In any event the police officials did indeed kill protesters and financial compensation will likely succeed. There may be a finding of holding the minister personally responsible.

    What will really be interesting if the courts make a finding that requires them to recommend prosecutors hold police officers petsonally accountable. This could be the officers who were shooting or the general who lost the only evidence of what happened in the critical meeting.

  • I agree. I really hope the DPP proceeds aggressively with the mandate to investigate and prosecute that they have been given. More particularly against senior officers, in my view. If the SAPS wants to play the coverup game, then the senior officers who lied to the commission should be prepared to face the pressure of investigations and potential criminal liability. I would even go so far as to hold out the hope that if senior SAPS leaders were genuinely face with the possibility of jail time, the conspiracy might even begin to crack, and details of the night-before meeting where the decision to use violence was taken might even begin to leak out.

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