Marikana report: The pain while President Zuma applies his mind

“The report could bring vindication or ignominy; resolution or anguish. Waiting for it, knowing that the president has it, but not knowing what it says, is almost unbearable. The families are in a state of nervous exhaustion,” wrote Socio-Economic Rights Institute (SERI) attorney Nomzamo Zondo in an affidavit to the North Gauteng High Court.

On Monday, the court heard an application calling on Zuma to immediately release the Marikana Commission of Inquiry's report over two months after he received it. Around 300 injured and arrested mineworkers, represented by Mzoxolo Magidiwana who was shot on 16 August 2012, demanded the report be released within two days arguing its irrational and damaging to continue to withhold it.

After suggesting the matter should instead be heard in the Constitutional Court, the president's legal counsel said Zuma is sensitive to the interest in releasing the report but under law has the right to release it when he is ready and does not want to release it without considering it fully, given the important implications involved. The lawyers denied the report would be tampered with, as then inquiry chairman Ian Farlam could object.

Lawyers for the mineworkers said they do not believe Zuma's promise to release the report by the end of the month and while Zuma's lawyers committed during the legal proceedings to release the report on 30 June to meet the demands of the relatives of the deceased, the date was later withdrawn as the president might want to release it earlier. It was suggested by the judge that regardless of whether an order is granted demanding the release of the report this week, the president give 48 hours notice to concerned parties.

Monday's confusion comes after years of waiting. SERI, which joined the court application, represents the relatives of 36 people killed in Marikana. It was represented on Monday by Advocate Dumisa Ntsebeza. In the limited time it had to consult its clients before going to court, SERI was able to contact 35 of those families for their views on the report's release. Their response is one of anguish and despair over the failure to make the report public and concern that the report could be released at any time, without time to prepare.

“For almost three years the families have lived in a state of abject grief. It is one thing to hear that your son, or husband, or father has been killed. It is another to be told that they were shot by the police, whose role it is to protect the public, not to kill them,” wrote Zondo. The families have been forced to relive the trauma at the commission. They've also been forced to sit through their loved ones be characterised as “violent muti-crazed outlaws, who attacked the police”.

But there's a competing narrative. “The police, it seems, were out for blood. They did not care how the Marikana strike ended, and were willing to commit murder to end it. The strikers were not attacking the police, but were rather running away from teargas and rubber bullets. Many of the miners were penned in by the police and then mowed down by semi-automatic machine-gun fire, before the survivors were pursued to whatever hiding places they could find, and then shot in cold blood,” Zondo added.

Whether the deceased are vindicated or held responsible, the commission's report will be the first official narrative of what happened, showing which side the state veers towards.

But the relatives' anguish has increased with Zuma failing to say when he might release the report. “It is not enough for the president to say that he will release the report before the end of June. The families need to prepare themselves, emotionally and practically, for its release. They need to plan where they will be when it happens,” wrote Zondo.

Those who work for Lonmin, given jobs to replace their relatives, need to arrange the day off. According to correspondence with SERI, Lonmin denied a past request to attend a Constitutional Court hearing but will consider giving its employees time off after the report's released “provided you provide a detailed motivation”. That requires a date. “Whilst we appreciate the goodwill behind such requests, we cannot accede to each one as the business still has to run efficiently, particularly in the current difficult economic environment,” wrote Lonmin.

Zuma is also fostering perceptions the state has something to hide. For example, Ntombekhaya Gwelani, sister of Thembinkosi Gwelani, heard during the commission her brother was shot in the back of the head, despite the police's argument he was attacking the SAPS, and feels the state has already taken sides by not releasing the report. If the report was released or if Zuma announced a release date, such suspicions could be avoided, said Zondo.

She argues the president's claim to withhold the Marikana report because he needs to consider its recommendations is invalid because he is required to consult the affected parties, including the families, before making his final decision on acting on the recommendations. For this there also needs to be a date for the report's release and with one not provided the families feel their right to be consulted may be limited.

Judgment was reserved on Monday. DM

Photo: Lonmin employees gather on a hill called Wonderkop at Marikana, outside Rustenburg, August 15 2012. (Greg Marinovich)