THE SAHRC CLARIFIES ITS INVESTIGATION INTO THE MARIKANA TRAGEDY

The South African Human Rights Commission is an independent Chapter 9 institution subject only to the Constitution and the law. We are accountable to the National Assembly and report on our activities to the Assembly at least once a year.

It is in this context that we had our recent engagement with the Parliamentary Portfolio Committee on Justice on Tuesday where strong views were expressed by individual members of the committee on the SAHRC's intended inquiry following the events in Marikana.

The Parliamentary Portfolio Committee on Justice and Constitutional Development acknowledged our independence and their statements of concerns on our intended inquiry were in respect of that constitutional independence. Among some of its concerns, was the issue of conflict of interest, wasteful costs by duplicating investigation, scope of our investigation in relation to the Farlam Commission.

We however believe that:

1  The statement that our inquiry is a "waste of resources" has been answered in parliament that we are acting within our constitutional mandate. One of the committee members pointed out that in tems of section 184(2)(a) and (b) of the Constitution, the HRC has to investigate and to report on the observance of human rights; and to take steps to secure appropriate redress where human rights have been violated. The HRC is therefore far from wasting resources and and is quite surprised by this statement.

2  The concern that the HRC will damage the ability of witnesses to give evidence and that it wil possibly lead to conflicting versions, is in our view without foundation. We have indicated to the portfolio committee that we will present our findings beore the Farlam Inquiry and it is for the Inquiry to decide on the quality of the evidence before it. The current concern expressed is premature and should allow the Inquiry to fulfill its weighing of whatever evidence is placed before it.

3  The statement that the HRC will be interfering with the Farlam Commission and will be muddying the waters has also been answered in parliament. The Commission will focus on the possible human rights violations and will submit its findings to the Farlam Commission of Inquiry. Again, it is within the mandate of any commission of inquiry to decide what is interfering and what is not.

It should be remembered that, as the Commission, we launched an investigation into the Marikana incident after the request by an NGO to do so. The complainant contest that the right to life as guaranteed in our constitution, of those killed, were infringed upon. The SAHRC is obliged to take appropriate steps to address the complaint and the prima facie rights violation that it refers to.

We feel the objections are based on a misunderstanding of what the SAHRC is, in fact, doing in relation to the Marikana situation and a misunderstanding of its powers and mandate as provided for by the Act of Parliament.

As a matter of fact, the SAHRC is not conducting an independent investigation under section 9 of the Human Rights Commission Act. It will not be making a final, independent finding on whether rights were violated. Nor is it mediating or conciliating a dispute in terms of section 6.

Instead, it is bringing proceedings in its own name and/or on behalf of individuals whose rights were violated, which falls squarely within its powers, duties and functions.

The key provision is section 7 of the Human Rights Commission Act 54 of 1994, which provides that, in addition to any other powers, duties and functions conferred on or assigned to it by section 116 of the Constitution, this Act or any other law, the Commission-

(a) shall develop and conduct information programmes to foster public understanding of this Act, Chapter 3 of the Constitution and the role and activities of the Commission;

(b)shall maintain close liaison with institutions, bodies or authorities similar to the Commission in order to foster common policies and practices and to promote co-operation in relation to the handling of complaints in cases of overlapping jurisdiction;

(c) may consider such recommendations, suggestions and requests concerning fundamental rights as it may receive from any source;

(d) shall carry out or cause to be carried out such studies concerning fundamental rights as may be referred to it by the President and the Commission shall include in a report referred to in section 118 of the Constitution a report setting out the results of each study together with such recommendations in relation thereto as it considers appropriate;

(e) may bring proceedings in a competent court or tribunal in its own name, or on behalf of a person or a group or class of persons.

And all organs of state shall afford the Commission such assistance as may be reasonably required for the effective exercising of its powers and performance of its duties and functions. As such the SAHRC has the power to bring proceedings in a forum such as a Commission of Inquiry.

When doing so, by definition the SAHRC cannot be "neutral". Its mandate requires it to take appropriate steps to address violations of the rights of persons. If it identifies such violations, its mandate is to place the relevant evidence before the appropriate tribunal - in this case, the Farlam Commission of Inquiry. Ours is not to usurp the role of the Commission of Inquiry or conduct a parallel inquiry, but the SAHRC intends to support the Commission of Inquiry and assist it to perform its role, not to compete or duplicate its work.

We, however, believe that if the SAHRC, having received a complaint of rights violations in a matter of such great public interest and being aware of such allegations, declined to participate at all in the proceedings of the Commission of Inquiry, it would be failing to discharge its constitutional and statutory mandate.

On the question of possible double representation the commission's submission to the Farlam Commission will be led and represented by the Chairperson of the Commission, Adv. Lawrence Mushwana.

Statement issued by Isaac Mangena, Head: Communications, SAHRC, September 13 2012

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