Marikana commission can’t touch government

2014-05-11 15:00

Mineral Resources Minister Susan Shabangu and all other government officials and departments will probably escape all scrutiny at the Marikana Commission of Inquiry after the president this week amended the commission’s terms of reference.

President Jacob Zuma and Justice Minister Jeff Radebe signed an amendment, which appeared in the Government Gazette on Monday, that removes all mention of government from the terms except for the SA Police Service.

The removal of this key section has lawyers participating in the commission up in arms. Lawyers from the Socio-Economic Rights Institution (Seri), which represents mine workers’ union Amcu and the families of the 34 mine workers shot dead by police on August 16 2012, said they have written to retired Judge Ian Farlam demanding a reason for the removal of the section.

“We have written to the commissioner asking why 1.5 has been deleted, especially in light of all the evidence revealed pointing fingers at particular ministers.

“We know there was some influence from top to bottom and we need to know the extent of this. It is absolutely ridiculous that this has been removed and we will take it all the way to the Constitutional Court if need be,” said Seri’s Teboho Mosikili.

According to Advocate Phuti Setati, the secretary of the commission, the amendment was an imposition from the presidency after the commission had requested an extension of its deadline for completing hearings.

Besides extending the commission’s hearings to the end of July, it also included a single line removing section 1.5 from the terms (see excerpt).

This was “not what the commission requested”, Setati told City Press.

“The presidency are our instructors,” he added.

The section formed part of the list of role players to be investigated alongside Lonmin, the police and rival trade unions Amcu and the National Union of Mineworkers. It put the “role played by the department of mineral resources or any other government department or agency” inside the commission’s ambit.

In effect, this means the ultimate findings will now ignore any alleged actions by ministers or government officials outside the police.

Setati referred City Press to the presidency but the president’s spokesperson, Mac Maharaj, passed the buck to the justice department, which in turn referred City Press back to the commission.

The removal of section 1.5 is particularly jarring after it came to light early in the commission’s work that Cyril Ramaphosa, who was on the Lonmin board at the time of the massacre, had been bending the ears of Cabinet members about how they should respond to the strike.

Ramaphosa was subsequently elected as deputy president of the ANC in December 2012.

The so-called Ramaphosa emails, submitted as evidence to the commission, show that he met with Shabangu and at the very least tried to get her to stop calling the strike a “labour dispute” and instead characterise it as a “criminal action”.

In an email to other Lonmin board members on the day before the shootings, Ramaphosa indicated he’d received a commitment from Shabangu to meet with the rest of the Cabinet and “get [Police Minister] Nathi Mthethwa to act in a more pointed way”.

This made it likely the commission would have made findings on at least Shabangu and Mthethwa’s actions.

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