IN THE MARIKANA COMMISSION OF ENQUIRY
Held at: Rustenburg
POINTS TO BE MADE IN THE OPENING ADDRESS ON BEHALF OF THE INJURED AND ARRESTED PROTESTORS
Introduction
1. As previously outlined on the record, we represent
1.1 The injured and arrested person referred to in the preamble to the Commission's term of reference (mainly the 272 persons were detained for an average of 20 days each and subsequently charged with, inter alia, murder and public violence).
1.2 The Lonmin Community Committee (which is an ad hoc Committee formed to look after the interests of the abovementioned persons and the broader community including civic organizations and traditional leaders operating in the affected community).
1.3 The family of the 46th victim of the Marikana Crisis, Councillor Pauline Masuhlo.
2. Apart from the deceased families, who are the primary victims, we represent the next important and numerically plenty categories of victims of the Marikana Massacre.
3. All the parties we represent have an obvious and direct interest in the identification of the underlying causes of the massacre, the perpetrators at all levels and whatever restorative justice may be available. In short they seek the truth for themselves and for their colleagues who passed away.
4. If there is going to be any reconciliation at the end, it is primarily these parties who must reconcile with the perpetrators, broadly defined.
5. There are two factors which place our parties in a unique position to assist the Commission, namely
5.1 They were obviously at the scene of the massacre on the 16 August 2012 and mostly on the preceding days.
5.2 In the course of their bail applications, some evidence was led which may shed some light into the main subject matter of the Commission. In this regard and better than any other party, they have had a head start into the issues under investigation.
5.3 They are willing to share their insights with the Commission if they are granted a fair opportunity to do so.
Broad Outline of theses guiding our participation in the Commission
6. Consultations with all our approximately 300 individual clients will obviously take months to complete. We have however been able at this stage to distill, at a broad level, the central theses of their version, namely
6.1 The main causes of the massacre are:-
6.1.1 The South African Police Services and where applicable the South African Defence Force; and
6.1.2 Lonmin.
6.2 Some of the contributory causes, include:
6.2.1 The sordid history of the mining industry in South Africa; and
6.2.2 To some extent, issues related to trade unions.
7. These topics will be elaborated upon at the oral presentation, during the evidence stage and at the closing arguments.
8. Due inter alia to the ongoing consultations, lack of resources and other impediments, these broad themes are not at this stage exhaustive and will in all probability be augmented in due course.
Specific themes likely to be followed during the leading-of-evidence stage
9. In amplification of the aforestated broad theses outlined in paragraph 6 above, we will pursue the following (also on-exhaustive list of 10 (ten) themes and sub-themes
9.1 The massacre could and should have been avoided;
9.2 The toxic collusion between the police and Lonmin or the state and capital was causative of the massacre;
9.3 The massacre exhibited a situation of premeditated murder of defenceless and powerless poor people; (There will be several sub-themes under this theme);
9.4 The claims of self-defence are baseless;
9.5 What happened in front of Groot Koppie are instances of unjustifiable murder?
9.6 What happened at Klein Koppie are cold blooded executions? (The majority of the death and all the arrests took place at Klein Koppie).
9.7 Who gave the orders, at all levels of government and the police chain of command?
9.8 The demeanour and behavior of the police showed that they were, inter alia, motivated by revenge and malice;
9.9 The underlying causes go deeper than the immediate parties present in the Commission, and
9.10 The decision to charge the protestors with the murder of their fellow protestors under the so-called doctrine of common purposes was callous, insensitive and form of using the poor as scape-goats.
The case of Masuhlo (Provisional submissions)
10. As already indicated to the Commission we have appealed to the President of the Republic to extend the terms of reference to include the events associated with the death of Ms Masuhlo. To date we have received no response except the acknowledgement of our letter.
11. Should the terms be ultimately so extended, (whether as a result of the President acceding to our request or as a result of the intended court action if he fails to do so) then the following additional themes will be advanced by us in the Commission:-
11.1 The decision to conduct police and army raids during the weekend of 14-16 September 2012 were uncalled for, unnecessary and harsh;
11.2 But for the decision to conduct these raids, Ms Masuhlo would be alive;
11.3 The said raids not only directly resulted in Ms Masuhlo's death but also in wide-scale state sponsored violence, damage to property, disrespectful confiscation of traditional weapons and Hollywood style law enforcement reminiscent of the shock-and-awe campaign of George Bush fame.
Conclusion
12. The emphasis of this opening address, while it touches on the other topics to be dealt with in the further, focuses on the first topic namely the responsibility which ought properly to be visited on the South African government and more specifically its agencies such as SAPS and the SANDF, either by commission or omission.
D.C. MPOFU
L.A. MMUSI
Counsel for the Injured and Arrested Protestors
Chambers, Sandton
19 October 2012
Instructing Attorneys
1. Maluleke Msimang Attorneys
2. Nkome Incorporated
3. Tlhatlha Attorneys
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