STAATSKOERANT, 12 SEPTEMBER 2012 No.35680

PROCLAMATION

by the President of the Republic of South Africa

No.50,2012

ESTABLISHMENT OF A COMMISSION OF INQUIRY INTO THE TRAGIC INCIDENT AT OR NEAR THE AREA COMMONLY KNOWN AS THE MARIKANA MINE IN RUSTENBURG, NORTH WEST PROVINCE, SOUTH AFRICA.

In terms of section 84(2)(f) of the Constitution of the Republic of South Africa of 1996, I hereby

(a) appoint a Commission of Inquiry to investigate matters of public, national and international concern arising out of the tragic incidents at the Lonmin Mine in Marikana, in the North West Province from Saturday 11 August to Thursday 16 August, 2012 which led to the deaths of approximately 44 people, more than 70 persons being injured, approximately 250 people being arrested and damage and destruction to property, with the terms of reference attached hereto; and

(b) appoint the Honourable Judge Ian Gordon Farlam the chairperson, and Adv Bantubonke Regent Tokota, SC and Advocate Pingla Devi Hemraj SC, as members of the Commission.

Given under my Hand and the Seal of the Republic of South Africa at Pretoria on this 26th day of August, Two thousand and twelve.

By order of the President - in - Cabinet

MINISTER OF THE CABINET

TERMS OF REFERENCE OF THE COMMISSION OF INQUIRY INTO THE TRAGIC INCIDENTS AT OR NEAR THE AREA COMMONLY KNOWN AS THE MARIKANA MINE IN RUSTENBURG, NORTH WEST PROVINCE, SOUTH AFRICA

A Commission of Inquiry ("the Commission") is hereby appointed in terms of section 84(2) (f) of the Constitution of the Republic of South Africa, 1996. The Commission is appointed to investigate matters of public, national and international concern arising out of the events at the area commonly known as the Marikana Mine in Rustenburg, North West Province from Saturday 09 August - Thursday 18 August, 2012 which led to the deaths of approximately 44 people, more than 70 persons being injured, approximately 250 people being arrested and damage and destruction to property.

1. The Commission shall inquire into, make findings, report on and make recommendations concerning the following, taking into consideration the Constitution and other relevant legislation, policies and guidelines:

1.1 The conduct of Lonmin Plc(Lonmin), in particular:

1.1.1 whether it exercised its best endevours to resolve any dispute/s which may have arisen(industrial or otherwise) between Lonmin and its labour force on the one hand and generally among its labour force on the other;

1.1.2 whether it responded appropriately to the threat and outbreak of violence which occurred at its premises;

1.1.3 whether it by act or omission created an environment which was conducive to the creation of tension, labour unrest, disunity among its employees or other harmful conduct;

1.1.4 whether it employed sufficient safeguards and measures to ensure the safety of its employees, property and the prevention of the outbreak of violence between any parties;

1.1.5 to examine generally its policy, procedure, practices and conduct relating to its employees and organised labour; and

1.1.6 whether by act or omission it directly or indirectly caused loss of life or damage to persons or property.

1.2 The conduct of the South African Police Services( SAPS), in particular:

1.2.1 the nature, extent and application of any standing orders, policy considerations, legislation or other instructions in dealing with the situation which gave rise to this incident;

1.2.2 the precise facts and circumstances which gave rise to the use of all and any force and whether this was reasonable and justifiable in the particular circumstances;

1.2.3 to examine the role played by SAPS through its respective units, individually and collectively in dealing with this incident; and

1.2.4 whether by act or omission it directly or indirectly caused loss of life or harm to persons or property.

1.3 The conduct of the Association of Mineworkers and construction Union (AMCU), its members and officials and in particular:

1.3.1 whether it had exercised its best endeavours to resolve any dispute/s which may have arisen(industrial or otherwise) between itself and Lonmin and/or NUM or any other parties;

1.3.2 the extent to which it exercised effective control over its membership and those persons allied to it in ensuring that their conduct was lawful and did not endanger the lives and property of other persons; and

1.3.3 whether by act or omission it directly or indirectly caused loss of life or damage to persons or property.

1.4 The conduct of the National Union of Mineworkers(NUM) its members and officials and in particular:

1.4.1 whether it had exercised its best endeavours to resolve any dispute/s which may have arisen(industrial or otherwise) between itself and Lonmin and/or AMCU or any other parties;

1.4.2 the extent to which it exercised effective control over its membership and those persons allied to it in ensuring that their conduct was lawful and did not endanger the lives and property of other persons; and

1.4.3 whether by act or omission it directly or indirectly caused loss of life or damage to persons or property.

1.5 The role played by the Department of Mineral Resources or any other government department or agency in relation to the incident and whether this was appropriate in the circumstances and consistent with their duties and obligations according to law.

1.6 The conduct of individuals and loose groupings in fermenting and/or otherwise promoting a situation of conflict and confrontation which may have given rise to the tragic incident, whether directly or indirectly.

2. The Commissions Act, 194 7 (Act No. 8 of 194 7) shall apply to the Commission, subject to such modifications and exemptions as may be specified by proclamation from time to time.

3. These terms of reference may be added to, varied or amended from time to time.

4. The Commission shall submit interim reports and recommendations to the President each month prior to the final report being presented to the President. The Commission shall complete its work within a period of four (4) months from the date hereof and must submit its final report to the President within a period of one (1) month after the date on which the Commission completes its work.

5. The Commission shall where appropriate, refer any matter for prosecution, further investigation or the convening of a separate enquiry to the appropriate law enforcement agency, government department or regulator regarding the conduct of a certain person/s.

6. Regulations will be made in terms of the Commissions Act, 1947 and shall apply to the Commission to enable the Commission to conduct its work and investigation in a meaningful and proper way and to facilitate the gathering of evidence by conferring on the Commission such powers as are necessary, including the power to enter and search premises, secure the attendance of witnesses and compel the production of documents.

Source: Department of Justice and Constitutional Development (see here - PDF)

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