Marikana: Mourning families and their forgotten legal rights

A week of mourning, set in motion by President Jacob Zuma, ended on Sunday 26 August, as the inter-ministerial committee on the Marikana tragedy efficiently dispatched its duties. These duties included identifying the deceased, reporting that post mortems had been concluded, issuing death certificates and supporting grieving families with funeral arrangements. By Friday 24 August, six of the 44 people killed at Marikana (34 during the massacre, and another ten prior) had been buried.

The inter-ministerial committee stationed social workers at the mine, mortuary and in Marikana to offer trauma and bereavement counselling, but a spokesperson for the committee told Daily Maverick that counselling families on their rights was outside of the committee’s mandate.

When asked whether families had been told about their right to have an independent pathologist present at the post mortem, or to conduct an independent post mortem, spokesperson for the inter-ministerial committee Harold Moloka told Daily Maverick there wasn’t much be said about human rights. “I can’t speculate on that. I don’t know what ultimately is (sic). All I can say is that those are meant to be part and parcel of the enquiry. You will appreciate that the inter-ministerial committee was not established to do that work (counsel families on their rights), so I can’t comment on that. It (the committee) wasn’t created to support the judicial enquiry; it was only formed to support families. That’s all,” says Moloka.

“Go back to the President’s statement on Sunday. It doesn’t talk about any rights matter. It talks about meeting with all stakeholders. It talks about traditional leadership. It talks about religious leadership, helping the families with regards to burial assistance, providing social assistance and so on. That’s all it comes to,” Moloka said, and then added: “I don’t understand what you are saying with regards to rights – are you saying that government should prevent people from being buried? The issues that you are raising are not issues I can comment on. You must wait for the commission of enquiry so you can pose your questions to them.”

The state and Cyril Ramaphosa were quick to assist with burials for miners. Ramaphosa is the chairperson of Shanduka, which said it would donate R2 million to burials. Shanduka has a 50.03% shareholding in Incwala Resources, which in turn holds an 18% interest in Lonmin PLC’s operating subsidiaries, Western Platinum Limited and Eastern Platinum Limited.

IPID has opened a murder docket for the 34 deaths, but while the state rushed to assist families with burials, it is again uncertain if miners’ families were informed of their rights to have an independent pathologist present at the post mortems, or to have their own independent post mortems. 

“Once the state pathologist has conducted his or her investigation, he or she must sign a certificate stating that they have conducted the examination, and is happy that the body is no longer required in terms of the inquest act.” The body can then be released to the next of kin. “From there on in the next of kin or an agency acting on their behalf (like an undertaker or attorney) has every right to enquire, request or instruct the further involvement of other pathologists or parties, as long as everything from then on is conducted by the provisions of the legislation of the management of human tissues,” says Gert Saayman, professor of forensic pathology at the University of Pretoria’s department of forensic medicine.

“When someone dies, obviously non-natural causes or cases where the cause of death is not obvious or apparent, the body is referred to the state mortuary, where the state pathologist will conduct a medico-legal post-mortem examination. In some instances, either the family or some other interested party may appoint an independent pathologist. In other words, someone who is not specifically in the service of the state, or present at the autopsy on behalf of the state. This appointed doctor acts in what is called ‘watching brief’ capacity,” Saayman explains.

An independent pathologist was present at the post mortems on the miners who were killed, but Moloka was not able to confirm how these independent pathologists were selected, or whose interests they represented. Daily Maverick was referred to the department of health, whose spokesperson on Marikana wasn’t available for comment. The health department organised the autopsies.

“In most cases, once the autopsy has been conducted, the state pathologist signs a certificate stating that the body is now not required any further for the purposes of an inquest, the body may be released, and the body may be buried. Once the body has been discharged to the agency that acts on the family’s behalf (typically an undertaker) the family has jurisdiction over that body. If they feel they would like a second or a third opinion, nothing precludes them from appointing a pathologist from conducting a further autopsy in a private capacity,” Saayman says.

However, the obvious problem is that once a state autopsy is done, the body has been compromised. “Obviously if you are a pathologist dealing with a body that has already been dissected, the interpretation of the findings is in many cases difficult or more difficult than the body would have been in its initial state,” Saayman adds. 

And what if a body has been buried? “From the moment a person dies, there are autolytic and decomposition changes that set in that are progressive. There is decay of the body and that just continues, and the degree to which it sets in is the function of a variety of factors, the surrounding temperature and a whole host of other factors.

“All bodies begin to decompose from the moment that the person dies. That rate of decomposition is obviously a function of a multiplicity of factors which includes how well body was preserved, whether it was properly refrigerated, and a whole host of other factors, not least of which is the factor that a post-mortem examination has already been conducted, which, bluntly put, has disturbed the normal anatomy,” the expert in forensic pathology tells Daily Maverick.

Earlier, Daily Maverick was speaking to Peter Jordi, an Associate Professor in the School of Law at the University of the Witwatersrand, who does legal work for torture victims at the Wits Law Clinic, and is an expert on police brutality. According to Jordi, he knows the person who’s done the autopsies, but is loath to reveal their name, because this should be done by the health department (which is unavailable). 

“He (the pathologist appointed by the state) is very experienced. He is someone I used for my own cases against the police. I know that he is also appointed by the state occasionally, so he acts both in claims against the state as well as when the state needs a pathologist who is independent. So he clearly is an independent-minded person. It sounds to me like a proper effort has been made to ensure that the autopsies are not going to be highly questionable,” says Jordi.

But what are the rights of the family – can they expect justice to be done? “Any legal arguments that are going to be made will depend, on their reliability, for the evidence being properly collected right in the beginning. As far as the post-mortems are concerned, I would think that a proper effort has been made, from what I’ve heard, but I don’t know for sure,” says Jordi.

With reports of evidence being disturbed and allegedly destroyed by police at Marikana, the reliability of evidence is beginning to look increasingly shaky. But what happens next will be watched by the world. That, at least, is some small comfort. DM

Read more:

• Marikana, Selebi and the murder of SA's specialist policing skills in Daily Maverick 


• The End of South African Exceptionalism in The Atlantic 

Photo: Relatives and family members of miners killed during clashes at Lonmin's Marikana platinum mine are comforted ahead of a memorial service in Rustenburg, August 23, 2012. REUTERS/Siphiwe Sibeko.