THE publication in the Government Gazette of the hard copy of the report of the Farlam Commission of Inquiry into the incidents at Marikana in 2012 presents a suitable opportunity to reassess the reams of commentary critical of the findings of the commission.
It seems that, in their understandable haste to respond to the publication of the report last month, many of those who have chosen to comment in public, both commentators and counsel in the matter, have not seen the wood for the trees.
Three aspects bear mentioning, if for no other reason than to afford comfort to both the bereaved, whose breadwinners lost their lives in the incidents investigated, and the injured, whose civil claims for damages are pending. First, the effect of the “McCann principle” on the findings; second, the liability of Lonmin for the consequences of havoc wrought by strikers who took the lives of or injured nonstrikers, security personnel and policemen; and, third, the inadmissibility of certain evidence against shooters in subsequent criminal proceedings that may eventuate.
Contrary to what was argued by counsel for the police, the McCann principle is a part of our law. It was referred to, in a civil case against the state, with approval by the then acting judge president in the Umtata High Court, now Judge Mbuyiseli Madlanga of the Constitutional Court. The principle holds that the state is liable if it negligently puts police or security personnel in a position in which they feel obliged to shoot in self-defence.
The thinking of the European Court of Human Rights, which developed the principle, is that it is wrong for the state to hide behind the “private defence” and “self-defence” justifications for killing in circumstances that, were they better managed and controlled, would not have arisen. This is what happened at Marikana. Madlanga incorporated this sensible notion into the law of SA as part of our national commitment to protecting human rights. The commission makes express reference to the principle in chapters 3 and 23 of its report. The significance of the carefully crafted observations of the commission appears to have been lost on many commentators.
The upshot of the findings on this aspect is that the state will have no valid defence to the merits of claims for damages arising out of the killing or injuring of miners in Marikana. A breach of the McCann principle is a sufficient basis for founding civil liability. The hard work put in by the commission and its evidence leaders on this crucial issue renders it unnecessary for the victims to engage in the arduous business of proving intention to kill or maim, despite the onus in civil proceedings being on the defendants to justify their actions.
Indeed, it is likely that the state will be well advised to accept civil liability and tender reasonable damages to all properly identified victims without delay. In litigation tactics, the sooner the tenders are made, the better. Claimants with good claims then run the risk of adverse costs awards, if the amounts tendered are sufficient. Legislation suggested by the Democratic Alliance to assist Marikana victims may not be needed if the state swiftly does the right thing and accepts civil liability on the basis of the McCann principle. This will have the effect, to the extent that this is possible, of saving face for the police involved in the decision making and in the firing of ammunition.
Miners would be well advised to rely on the McCann principle in order to achieve a concession of the merits of individual cases and to dispute, if necessary, only the quantum claimed by injured miners or the dependants of miners who were killed.
With regard to the liability of Lonmin, the commission has made findings that put Lonmin in a position in which it will be hard-pressed to defend the merits of cases in which the dependants of people killed by strikers (and those nonstrikers who were injured when the strike became violent) claim civil damages. This is because of the negligent manner in which Lonmin managed or responded to the strike and because of its failure, for years, to put in place the type of defence machinery and resources that would have made it possible for those not involved in the strike to go to work in safety while properly protected against violence while the strike was in progress. This aspect of the matter has again escaped the attention of those who have commented in haste on the findings of the commissioners. Lonmin ought to be proactively dealing with the quantum of claims of those nonstrikers, security personnel and police killed or injured in the run-up to the events of August 16 2012. Perhaps, when it has digested the full report properly, it will quietly do so.
For those who wish to see criminal convictions and the exacting of revenge against both Lonmin and the police, there is much cause for pause in the report as a whole. Quite apart from the impossibility of identifying individual shooters because of the fact that R5 ammunition disintegrates on impact, it is necessary in criminal proceedings to adduce proof beyond a reasonable doubt. Admissible evidence in such proceedings would not, as a matter of law, include the admissions made in statements presented to the commission nor those in statements taken by the Independent Police Investigative Directorate (Ipid) under section 24(5) of the Ipid Act. Ipid was invited to the scene by SMS immediately after the first incident occurred and before the killing at the second koppie took place.
In these circumstances, in which the admissibility of evidence of admissions made to the commission by individuals charged with crimes is determined by the law and the regulations created for the commission, not the commission itself, it would be highly inappropriate for commissioners to act as if the commission hearing was a preparatory examination in some or other criminal proceeding. The commission is a fact-finding exercise for the executive branch of government in which the commissioners are bound by their terms of reference and the law. It reports on its findings to the executive in public so that those who seek compensation and those from whom compensation is sought can be guided.
There is much for the comfort of victims in the Farlam report, despite the “bad press” it has been given. The legal advisers of the state and of Lonmin would do well to take notice of the subtleties of the finer aspects of the report highlighted above and to act swiftly and sensibly on their implications.
The prosecution service should put energy and effort into locating the recording of the fateful meeting of police top brass on the eve of the massacre. The meeting was initially concealed from the commission, a huge blunder, and the minutes taken at it are somewhat terse. The verbatim recording will surely show the extent of executive involvement and the culpability of those who are constitutionally tasked with the management and control of the police.
The commission report facilitates the proper exacting of accountability and the healing of our national Marikana trauma.
Hoffman is a director of Accountability Now