Marikana Commission: Move to Pretoria halts as Phiyega grilling continues

On Wednesday, Farlam announced that he was unable to meet justice and constitutional development minister Jeff Radebe to discuss moving the venue of the Commission to Pretoria, as was previously planned. This followed an application by the community where Lonmin operates to oppose the move.

Dali Mpofu, lawyer for the miners who survived the 16 August 2012 killings that saw 34 people die and 78 suffer injuries, applied in February to have the Commission moved closer to Johannesburg. He and several other advocates at the Commission are not being paid by the state, and have complained that their clients (not being the state, government departments or vastly wealthy mining companies) were running out of resources.

The Bapo ba Mogale tribe, which rents out the land which Lonmin mines, announced on Tuesday night via its attorney Karabo Kgoroeadira that it would seek to oppose Mpofu’s application. The Commission started late on Wednesday to accommodate the planned meeting between Farlam and Radebe.

Parties would be given an opportunity to file replying affidavits to the Bapo ba Mogale application, and oral arguments are scheduled for 16 April. After that, Farlam said that he and the minister would be in a position to decide on the application.

Last year, Mpofu said to the Commission that the travelling distances to Rustenburg were onerous on him and others representing clients without deep pockets. This was back when the Commission was supposed to have wrapped up in January. (Hearings are now scheduled to end in May.)

When he made the application, Mpofu said that he wasn’t holding out for May to be the end of the matter. “Already there has been one extension until the end of May 2013. Some of us are not optimistic that we will meet that second deadline,” he said.

“My legal team conservatively costs around R50,000 to run per day. This commission needs to be moved to Pretoria or to the Johannesburg area.”

Mpofu was supported by Dumisa Ntsebeza SC, who is representing the families of 23 deceased miners. He said that some lawyers were not getting paid at all. “We may not be able to represent the families for as long as it would be ideal for us to do so,” he said.

Last year, Kgoroeadira told the Commission that the community she represents was upset because its land was “infested” with migrant labourers, attracted by the prospect of work in the platinum mines.

“Lonmin had entered into a notarial lease with the Bapo Ba Mogale royal family .. Wonderkop is a sub-community of Bapo ba Mogale and falls in its jurisdiction,” she said.

“Sadly, the Bapo Ba Mogale traditional community is struggling for basic rights such as water and sanitation. These social struggles contributed to the boil which has been simmering around the mines.”

It is not just the lawyers that have travel concerns at the Commission. Funding for the families of the deceased was controversially dropped by the state – after Farlam said that the families must be provided for to attend – after it said that the rules did not give it that responsibility. After a meeting was held, the rules were amended.

Acting for the Human Rights Council, advocate Gcina Malindi questioned national commissioner Phiyega about her role in the planning of the 16 August operation. Like before, she replied and said that the police came with a good plan, which was disrupted.

“I will go on record to say it was regrettable, not disastrous. I have said that as police we did what we could to negotiate from the 8th to the 10th [of August]. We continued to do so because our thoughts were similar and we wanted a peaceful resolution,” Phiyega said.

Malindi responded: “We have a crowd control expert who said that the events that ended in 34 miners being shot dead and 10 other people being killed in the days prior to the main shooting were disastrous.

“He says it was disastrous because during the relevant period, 44 people were killed when the police could have minimised the deaths.”

Phiyega replied, “We had a plan and I can say it was a good plan. The plan was disrupted. The outcome was regrettable and unintended.”

When she began her testimony, Phiyega said to the Commission that “the protracted and ever-increasing violent protest at Marikana, which culminated in the catastrophic and unprecedented loss of life, is to me regrettable”. When questioned on Wednesday, she said that she would not equate the word “catastrophic” to the word “disastrous”.

She said, “I called it catastrophic because in 18 years, as SAPS we've never experienced this before.”

Lonmin advocate Karel Tip began questioning Phiyega on Wednesday. He put it to her that a page in her statement had been modified, as was shown by the fact that it was not initialled like all the others. He contended that someone had changed her script.

Mining companies are to conduct a ‘Marikana commission’ of their own. The chamber of mines has drafted the National Research Foundation to conduct a study identifying the socioeconomic drivers of the violence that led to the massacre. A similar report published by the Bench Marks Foundations last year found that mining companies are moving away from empowering local communities. DM

Photo: Judge Ian Farlam (Reuters)