Marikana massacre — Victims’ families receive R330-million from government 11 years later, claims still pending

Families of deceased miners on a commemoration stage in Marikana in 2021. Survivors and relatives of victims are still waiting for justice. (Photo: Shiraaz Mohamed)

By An Wentzel

18 Aug 2023

At a media briefing in Pretoria on Thursday, Solicitor General Fhedzisani Pandelani announced that the state had paid out R330-million to claimants for the Marikana mine massacre. Pandelani also said they were walking lightly around ‘the new concept of constitutional damages’.

At a briefing to update media “on the progress made regarding litigation cases related to the Marikana tragedy”, Solicitor General Fhedzisani Pandelani made it clear that he would speak only to claims made directly against the government:

“Ours is to update only on the issue of management and coordination of litigation in relation to Marikana litigation and nothing else and this press briefing is not about giving an update on the criminal prosecutions of any other person that might have been impacted by the Marikana incident… we are also not going to deal with reparations beyond the scope of what has been lodged with the offices of state attorney.”

He went on to say that solicitors “are creatures of instructions and we can only do so much that we are instructed” before taking a moment to touch on the actual reason for his instructions; “the Marikana incident of August 16, 2012... is painful, and remains a painful and solemn chapter in our nation’s history and it is something that we cannot actually downplay,” before launching into the detail on government’s payments to claimants.

Marikana wreath laying ceremony A wreath laying ceremony in Marikana on 16 August, 2021 to commemorate the 34 miners who were killed by police during a wage strike in 2012. (Photo: Felix Dlangamandla/Daily Maverick)

He also mentioned that while 44 people had died, only 34 of these deaths were brought to government and “no claims have been brought to government for that 10. There was no attribution to government for those deaths and they may have had settlements from other organisations”.

Pandelani then broke down the firms who were representing claimants, the numbers of claimants, and the amounts that have been paid out to claimants, as follows:

“Status of claims as lodged:

the Wits law clinic only lodged one claim and that claim had been finalised and this has been our stance since 2021, that we paid R3,995,121 plus costs in relation to that matter;

Seri [the Socio-Economic Rights Institute] has taken up the cause of families associated with 36 deceased miners with 34 families securing settlement for loss of support amounting to R71,230,491. Notably, Seri has introduced the novel concept of constitutional damages… and I think this is what we are going to be seized with. Because the residual issues that are actually being dealt with on behalf of Seri relate to these constitutional damages;

Maluleke Msimang attorneys — the total amount R77,034,643.70 — representing 15 claimants (claims relating to injuries, arrests and detentions), then

Tlhatlha Attorneys handled matters relating to assault… with certain claims still undergoing verification, but... R51,803,863.63 was paid out.

“The last law firm… Nkome Attorneys, R102,305,000,” said Pandelani. Nkome Attorneys represented 264 claimants who sought damages for arrests, injuries and detentions.

Pandelani stressed that “to address a spectrum of claims,” the total amount disbursed by the state is R330,445,630.37

He also said that at some point payout needed to be capped and raised the issue of constitutional damages — “which was not existing… what is this concept of constitutional litigation?”

In a statement, Seri said that victims are still waiting for justice, as, to date, only nine police officers have been prosecuted. Seri also said that government and ANC leaders have yet to take responsibility for the Marikana deaths.

10th marikana anniversary families Families of the deceased miners on a commemoration stage in Marikana in 2021. Survivors and relatives of victims are still demanding justice. (Photo: Shiraaz Mohamed)

Pandelani also mentioned that delictual damages — losses sustained due to wrongful acts of others — were clear and limited directly to for example an injured person as a victim. But in the case of constitutional damages — delicts linked to a violation of the Bill of Rights — the potential number of related claimants is much broader.

Pandelani said they were awaiting “as creatures of instruction” a mandate and information on how to proceed on constitutional damages and “residual considerations” on “the crossroads of the law and ethics.” DM

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