South Africa

South Africa

Marikana report: Coming to court

Marikana report: Coming to court

No one has gone to court demanding the release of the Marikana Commission of Inquiry report, not yet. When they do, it might force the presidency to explain why it has not yet released the document and offer a chance for sympathisers to rally for justice. By GREG NICOLSON.

The court application seeking an order for President Jacob Zuma to release the report from the Marikana Commission was delayed on Monday after lawyers representing the Association of Mineworkers and Construction Union (AMCU) and around 300 injured and arrested mineworkers received interest from other parties wanting to join their application.

Acting on behalf of the mineworkers and union, Andries Nkome said on Monday the decision was taken to delay filing the urgent application while those interested in joining the court action are consulted. Nkome would not disclose who he and his clients might be in discussion with, and said details of the application were being edited while the talks are under way. On Monday Daily Maverick could not establish whether any of the other parties who represented clients at the Marikana Commission would be headed to court to demand the report’s release.

Nkome said he hadn’t received any response to the letter sent to the president on Friday. In the letter on behalf of the union and mineworkers, Nkome said delaying the release of the commission’s report was “irrational, unreasonable and unlawful”, given “no rational connection between considering the recommendations and still informing the victims, the public and any other interested parties what the contents of the report are”. He said since Zuma received the report at the end of March, the time he is taking to “study” it is causing “deep-felt stress and anxiety” and violates the right to information.

“In any event, the undue delay undermines two of the important stated objectives of the Commission, namely bringing closure to the victims and ensuring accountability on the part of those found to be causally connected to the massacre and its consequences. Justice delayed is justice denied,” read the letter.

While he wouldn’t confirm whether the presidency had received the letter, on Monday Zuma’s spokesperson Harold Maloka rejected some of the reported claims. The letter claims the president is buying time for some of the accused, including North West Police Commissioner Zukiswa Mbombo, who retires this month, and National Police Commissioner Riah Phiyega, who according to news reports could be redeployed or given a diplomatic post. Lawyers representing the injured and arrested mineworkers at the inquiry suggested criminal charges be recommended against both Mbombo and Phiyega. “The failure to release the report is also calculated to let her off the hook,” the letter said regarding Mbombo.

“The president does not manage the careers of provincial police commissioners and as such has nothing to do with the reported retirement. Linking the president to this matter and insinuating that it could be linked to the Marikana report by the president is malicious and mischievous,” said Maloka in a statement. He also denied Zuma had offered Phiyega another post: “Reports of the said meeting and alleged discussions are a complete fabrication and have been refuted by the presidency. Anyone who repeats these allegations is perpetuating a lie.”

Zuma has said the Marikana report will be released but has given no indication of when it may happen. In the letter to the president, Nkome says soon it will be three years since the Marikana massacre, and his clients need to know the Commission’s recommendations to determine whether they will proceed with civil claims before the three-year window to institute them expires.

“The president has said we’ll release it in due course,” said Maloka later on Monday, offering no further details.

While there is no strict law requiring Zuma to release the report to the public, last week the Marikana Support Campaign, Right2Know and the South African History Archives submitted an application for access to the report through the Promotion of Access to Information Act. The presidency has to respond to the request within 30 days.

Applying to the courts for access to the report will be difficult, given that there are no strict laws compelling Zuma to release it, and in any case, he has promised to. But as one anonymous advocate told Mail & Guardian, “What you could do is bring an application to say the refusal by government to release the report is irrational… I doubt that application would succeed, but what you would do is force the government to go on oath and explain why they are not releasing it. And what on earth are they going to say?”

While their demands could change before or if the court application is submitted, the letter sent to Zuma on behalf of the mineworkers and union said they would request the report be released no later than 31 May, the day Mbombo is due to retire.

Not only will the application force the presidency to respond to the demands in more detail, it will increase pressure on the state for its release. There have been few public calls or demonstrations regarding the report, but the Marikana Support Campaign plan to rally should the matter go to court. Already, with just the threat of court action, the Marikana massacre is back in the headlines, along with calls for justice. DM 

Photo: Retired judge Ian Farlam speaks as the judicial commission of inquiry into the shootings at Lonmin’s Marikana mine gets underway in Rustenburg, October 1, 2012. (EPA)

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