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Farlam finds against Lonmin, recommends enforced housing delivery

President Jacob Zuma

President Jacob Zuma

Photo by Duane Daws

25th June 2015

By: Martin Creamer

Creamer Media Editor

  

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JOHANNESBURG (miningweekly.com) – The Farlam Commission of Inquiry into the Marikana massacre has found against platinum-mining company Lonmin on five counts and has urged the Department of Mineral Resources to compel the London-listed company to provide housing for mineworkers in what arguably ranks as the inquiry's most forceful recommendation.

The commission has also set new benchmarks for public order policing, put new obligations on labour unions and drawn attention to the need to curb loose groupings and individuals during strikes.

President Jacob Zuma released the report of the judicial commission of inquiry into the events at Lonmin’s Marikana mine in Rustenburg in a national radio address from the Union Buildings in Pretoria on Thursday evening, five days ahead of the June 30 release deadline, and on the eve of the 60th anniversary of the Freedom Charter, the foundation stone on which the ruling African National Congress has built South Africa’s democracy.

“We should, as a nation, learn from this painful episode. We should use it to build a more united, peaceful and cohesive society,” Zuma said, adding that violence had no place in South Africa’s democracy.

He said that the commission had recommended that there must be an inquiry into the fitness to hold office of National Police Commissioner Riah Phiyega well as North West Provincial Police Commissioner Lieutenant-General Zukiswa Mbombo, in terms of Section 9 of the South African Police Service Act.

The commission's five findings against Lonmin were that:

• It did not use its best endeavours to resolve the disputes that arose between itself and its workers who participated in the unprotected strike on the one hand, and between the strikers and workers who did not participate in the strike on the other;

• It did not respond appropriately to the threat of, and the outbreak of violence;

• It failed to employ sufficient safeguards and measures to ensure the safety of its employees;

• It insisted that its employees who were not striking should come to work, despite the fact that the company knew that it was not in a position to protect them from attacks by strikers; and

• It failed to implement its undertakings under statutory Social and Labour Plans (SLP) and recommended that the Department of Mineral Resources be asked to take steps to force Lonmin to comply with the housing obligations under the SLP.

The accusations that Deputy President Cyril Ramaphosa, a former nonexecutive director of Lonmin, was the cause of the massacre were found by the commission to be groundless.

Appointed by the President on August 26, 2012, to investigate the killings of 44 people from August 11 to 16, the commission also found against the Association of Mineworkers and Construction Union (AMCU), the National Union of Mineworkers (NUM), the South African Police Services (SAPS) and individual strikers and loose groupings.

In addition to those who lost their lives, many others were injured, with murders after August 16 falling outside of the scope of the inquiry, in which Farlam was assisted by advocates PD Hemraj SC and BR Tokota SC.

The findings against AMCU were that its officials did not exercise effective control over members and supporters in ensuring that their conduct was lawful and did not endanger the lives of others.

AMCU members were also found to have sung provocative songs and made inflammatory remarks, which tended to aggravate an already volatile situation.

AMCU president Joseph Mathunjwa was found, however, to have done his best before the shootings to persuade the strikers to lay down their arms and leave the koppie.

NUM was found to have not exercised its best endeavours to resolve the dispute between itself and the strikers and wrongly advised rockdrill operators that negotiations with Lonmin were impossible until the end of the two-year wage agreement.

The union was also found to have failed to take the initiative to get Lonmin to speak to the workers and exercise effective control over members in ensuring that their conduct was lawful and did not endanger the lives of others.

NUM also encouraged non-striking workers to go to work at shafts where there was a real danger that they would be killed or injured by armed strikers.

Individual strikers and loose groupings of strikers were found to have promoted conflict and confrontation, which gave rise, directly or indirectly, to the deaths of Lonmin's security guards and non-striking workers ahead of the police shootings, and endangered the lives of the non-striking workers.

While the Counsel for Injured and Arrested Persons alleged that Ramaphosa must be held accountable for the death of 34 mineworkers, the commission found that the accusations against him were groundless in that he could not have been the cause of the massacre.

Former Police Minister Nathi Mthwethwa was exonerated in a far more qualified manner from the same accusations, with the commission finding nothing that could be said in his favour and Gareth Newham of the Institute for Strategic Studies casting doubt on the veracity of Phiyega's claim that she received no direction from him.

Although 34 deaths had occurred because police had implemented a wrong tactical option, the commission found that the police executive itself had played no role in deciding to implement that option on August 16, which had been taken on the basis of strikers refusing to lay down their arms.

The commission also found no grounds to prosecute former Mineral Resources Minister Susan Shabangu on charges of corruption and perjury.

The police strategy of encircling the strikers with barbed wire, and offering them an exit point through which they would need to move while handing over their weapons was found to be unsuitable in dealing with large numbers of strikers and the tactical option with which it was replaced was found to be defective in a number of respects.

Implemented at about 15h40 on August 16, the defective tactical option resulted in the death of strikers in so-called scene 1, which was shown on television, and scene 2, which was not and during which police armoured vehicles appeared to crush fleeing strikers and in other instances kill them out of sight of the cameras.

The commission has found that it would have been impossible to disarm and disperse the strikers without significant bloodshed and that the police should have waited until the following day, when the original encirclement plan, which was substantially risk free, could have been implemented.

The commission also found that the decision that the strikers would be forcibly removed from the koppie by the police on  August 16 if they did not voluntarily lay down their arms, was not taken by the tactical commanders on the ground.

The decision was instead taken by North West Police Commissioner Mbombo and was endorsed by SAPS leadership at an extraordinary session of the national management forum.

The commission also found that the operation should have been stopped after the shooting at scene 1 and that there was also a complete lack of command and control at scene 2.

The commission has also questioned the conduct of the police management during the inquiry.

The police leadership did not initially disclose to the commission, the fact that the original plan was not capable of being implemented on the first date and that it had been abandoned.

In addition, police leadership did not inform the commission that the decision to go ahead with the tactical option, if the strikers did not voluntarily lay down their arms and disperse, was taken at the national management forum meeting on August 15. Instead, they informed the commission that this decision was taken on August 16, and only after the situation had escalated.

The commission has also raised serious concern that there was a delay of about an hour in getting medical assistance to the strikers who were injured at scene 1, and asserts that at least one striker might have survived if he had been treated timeously.

The commission recommended that a panel of experts be appointed, made up of senior officers of SAPS’ legal department; senior officers with extensive experience in public order policing; and independent experts in public order policing, both local and international, who have experience in dealing with crowds, armed with sharp weapons and firearms, as presently prevalent in the South African context.

This panel should amend all prescripts relevant to public order policing and investigate the world's best practices and measures available for use, without resorting to the use of weapons capable of automatic fire, where public order policing methods are inadequate.

In public order policing situations, operational decisions must be made by an officer in overall command, with recent and relevant training, skills and experience in public order policing.

All radio communications should be recorded and the recordings should be preserved.

Plans for public order policing operations should identify the means of communication, which SAPS members will use to communicate with one another.

A protocol should be developed and implemented for communication in large operations including alternative mechanisms, where the available radio system is such that it will not provide adequate means of communication.
SAPS should also review the adequacy of the training of the members who use specialised equipment such as water cannons and video equipment.

All SAPS helicopters should be equipped with functional video cameras.

In operations where there is a high likelihood of the use of force, the plan should include the provision of adequate and speedy first aid to those who are injured.

The commission also emphasises that all police officers should be trained in basic first aid.

There should be a clear protocol, which states that SAPS members with first aid training, who are at the scene of an incident where first aid is required, should administer first aid.

Specialist firearm officers should receive additional training in the basic first aid skill needed to deal with gunshot wounds.

The commission adds that the recommendations by the National Planning Commission, for the demilitarisation and professionalising of SAPS, should be implemented as a matter of priority.

With regards to accountability, where a police operation and its consequences have been controversial, requiring further investigation, the Minister and the National Commissioner should take care when making public statements or addressing police.

They should not say anything which might have the effect of 'closing the ranks' or discourage members who are aware of inappropriate actions, from disclosing what they know.

The standing orders should more clearly require a full audit trail and an adequate recording of police operations.
SAPS and its members should accept that they have a duty of public accountability and truth telling, because they exercise force on behalf of all South Africans, the Commission states.

The staffing and resourcing of the Independent Police Investigations Directorate (IPID) should be reviewed to ensure that it is able to carry out its functions effectively.

The commission recommends a full investigation, under the direction of the Director of Public Prosecutions in North West, with a view to ascertaining criminal liability on the part of all police who were involved in the incidents at scene 1 and 2.

For the purposes of the investigation, a team should be appointed, headed by a senior state advocate, together with independent experts in the reconstruction of crime scenes, expert ballistic and forensic pathologists practitioners and

Senior Investigators from IPID, and any such further experts as may be necessary.

The commission also recommends that all the killings and assaults that took place between August 11 and 15 should be referred to the Director of Public Prosecutions, for further investigation and to determine whether there is a basis for prosecution.

The commission states that the propensity in South Africa presently for the carrying of sharp instruments and firearms and the associated violence even in service delivery protests, requires the strict enforcement of the laws that prohibit such conduct.

It pointed out that the Lonmin workers can be seen very clearly on videos and photographs in possession of dangerous weapons at the public gatherings or in public places.

The commission has thus called for a further investigation of offences, in terms of the Regulation of Gatherings Act and the Possession of Dangerous Weapons Act.

The President must ensure that affected Cabinet Ministers study the commission report and advise on the implementation of the recommendations.

President Zuma has ordered that the full report be published in the Government Gazette as well as the Presidency and Government Communication and Information Services websites to enable public access.

He condemned the Marikana incident was an horrendous tragedy that had no place in a democracy, where all citizens had a right to protest and where workers had the right to go on strike peacefully and negotiate working conditions with their employers, peacefully.

Breadwinners were taken away from their families in a brutal manner and untold pain and suffering befell the families and relatives.

The entire South African nation was shocked. The world was also shocked as nobody expected this to happen in a free and democratic South Africa.

Lonmin said in response that the commission’s findings that it had already placed particular emphasis on living conditions and employee indebtedness, two burning issues that it believed would make a profound impact on the wellbeing of its employees.

Lonmin CEO Ben Magara said that assistance had been rendered to the widows and children of the employees who died during that fateful week and that employment opportunities had been offered to their families.

Every child of school going age had become a beneficiary of the 1608 Education Trust in addition to benefiting from the statutory payouts from pension and life funds.

“While the report will generate painful memories for many people, it is all of our responsibility not to lose sight of our common humanity, not to destroy the good work already done, to conduct ourselves respectfully and with due restraint and empathy, and to provide support to those who need it,” Magara added.

The Chamber of Mines said the events at Marikana had reinforced its determination that the industry’s activities should not cause harm to any stakeholder and that the chamber should play its part in ensuring a safe and dignified co-existence for its employees and those living in mining communities.

As it needed time to analyse all the findings of relevance to the mining industry as a whole, it would provide more detailed perspectives as soon as possible.

“We remain saddened at the losses suffered by the families, friends and colleagues of those who died during those dark days and we hope that report plays a part in easing their grief easier and bringing a form of closure,” the chamber said in a statement.

Edited by Creamer Media Reporter

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