Guest Column

Marikana: NPA must explain

2012-09-02 09:45
Arrested Marikana miners at Ga-Rankuwa Magistrates' Court. Picture: Lucky Nxumalo, City Press

Arrested Marikana miners at Ga-Rankuwa Magistrates' Court. Picture: Lucky Nxumalo, City Press

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Mathatha Tsedu

I am not a lawyer, so I do not for a second pretend to be an expert on law or court procedures or the workings of the National Prosecuting Authority or complicated principles such as common purpose.

So I don’t know what basis lies behind the demand to President Jacob Zuma by the lawyers for the Marikana miners still being held in custody two weeks after being detained, that he ensures they are released forthwith.

The lawyers argued their case for bail in court, apparently lost, and are now calling for the head of the executive branch of the state to interfere in the judicial process that is supposed to be independent of the same executive.

But as I said, I am no lawyer and there should probably be some section of some law that allows for this. Equally, the use of the doctrine of common purpose to charge the survivors of a massacre by the police with the murder of their comrades baffles the hell out of me.

Like Minister Jeff Radebe, I want an explanation of the logic, not contrived excuses, of how whatever the marchers did that Thursday afternoon could be seen as common purpose with the police who pulled the triggers.

In my simple mind, common purpose presupposes acting in unison, having agreed beforehand on what needs to be done, and then face the consequences of their common action.

But also, indeed, if the miners are being charged with common purpose for the shooting, those they are then supposed to have been acting in concert or common purpose with, the police, should be their co-accused.

That has not happened. No police officer has been charged. Their action is a subject of the judicial commission which is probing the causes and culpability of numerous actors, the police included.

And that to me is the right approach. Until the commission rules, there is no reason for the NPA to plunge this country into a sense of judicial and systemic apartheid against the miners.

I am arguing that even if the NPA felt such a charge could/should stick, they didn’t have to charge the miners with murder now.

But then given what the surviving arrested miners have gone through, is it any surprise?

Not only were they arrested, but they were allegedly tortured and some left with swollen faces and closed eyes. While in jail, medical attention has been apparently minimal, with some on chronic medication going for days without. Some with bullet wounds have allegedly not been treated by any medical personnel.

They have been trucked to court in gumba gumbas and left in the burning sun for the whole day, allegedly without water, while prosecutors plead ignorance about the absence of medical treatment and at the same time argue for prolonged stay in over crowded police cells with inadequate facilities.

Buses for the 270 miners

This country that can provide its ministers with million a piece bling wheels, cannot organise buses for the 270 miners. They are society’s outcasts and are being treated by a state that professes to be pro poor as if they are not worthy of humane considerations.

The Human Rights Commission, which should protect their rights, says, almost two weeks post the massacre, that its officials “on the ground” are establishing the facts.

These miners, who started off by withholding their labour to push for better pay and working conditions, are being subjected to what at face value sounds and smells like second rate treatment not in accord with our human rights based Constitution.

Why is this so? The NPA that makes plea bargains with self confessed drug pushers, hired killers and coup plotters, throws the book at the poor and most probably mainly illiterate miners. Why?

What lies behind this seeming callous and hardegat treatment of the vulnerable? I know that the miners were armed, and that some of those on strike were apparently responsible for ten murders in the most gruesome of ways a week before the massacre. If those responsible for those murders are in the 270, by all means charge them with that.

But what cannot be condoned is state apparatus, angered by what happened at Marikana, doing what is being done to these miners. And I suspect it is this frustration that saw the lawyers turning to Zuma, who has correctly said he cannot intervene or interfere.

That however does not deal with the inhumanity of what is being done to the miners. The whole state and its entire apparatus cannot argue lack of manpower to ascertain 270 addresses in this country over a period of fourteen days.

For if that is true, we have an even bigger problem of a dysfunctional state.

- Mathatha Tsedu is a previous editor of The Sunday Times and City Press

Read more on:    npa  |  jacob zuma  |  jeff radebe  |  mathatha tsedu  |  lonmin unrest

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