The terms of reference of the Farlam Commission of Inquiry, appointed by President Jacob Zuma two weeks ago to investigate the deaths of 44 people at Marikana, was meant to be gazetted last Friday but was not done so due to a “minor glitch”. It will now be gazetted this Friday, according to Justice Department Spokesman Mthunzi Mhaga. The department has a 14-day deadline to appoint an evidence leader and investigators and also decide where the commission will be located. 

Mhaga said the hearings would in all probability be a public process, as has been the case with previous judicial commissions, such as the Hefer, Khampepe and Nicholson inquiries. When he announced the members of the commission, Ian Farlam, Bantubonke Tokota and Pingla Hemraj, and their terms of reference, Zuma said the inquiry should be completed within four months and must submit its final report within a month of concluding its work. 

But considering the scope of the work of the commission, as well as added dimensions such as the protracted detention and torture of the mineworkers and tampering with the crime scene, the inquiry looks set to be swamped with submissions from all the parties under investigation as well as a range of interest groups. 

According to the terms of reference, the conduct of the Lonmin mine, the National Union of Mineworkers (NUM), the Association of Mineworkers and Construction Union (Amcu), the police and the Department of Mineral Resources would all be under scrutiny by the commission to establish their roles in the events that led to the 44 deaths. On the conduct of the police alone, the commission would have to probe: 

• The nature, extent and application of any standing orders, policy considerations, legislation or other instructions in dealing with the situation which gave rise to this incidents;

• The facts and circumstances which gave rise to the use of force and whether this was reasonable and justifiable in the particular circumstances;

• The role played by SAPS through its respective units, individually and collectively in dealing with the incidents; and

• Whether by act or omission, it directly or indirectly caused loss of life or harm to persons or property.

“The Commission will also look into the conduct of individuals and loose groupings in fomenting and/or promoting a situation of conflict and confrontation which may have given rise to the tragic incidents, whether directly or indirectly,” Zuma said. 

While the terms of reference do not cover incidents in the aftermath of the massacre, some legal experts said they were broad enough for the commission to examine police treatment of the crime scene as well as the alleged assault of workers held in custody. 

However, a joint statement by civil society organisations said they were concerned that the terms of reference “do not adequately allow for an investigation into the complexity of the incident”, particularly in light of new evidence emerging. This includes an investigation by Daily Maverick showing that some of the mineworkers may have been executed by the police.    

Janet Love, national director of the Legal Resources Centre, one of the signatories to the civil society statement, said the commission has a huge task having to pull together evidence, submissions, independent investigations and testimonies of people’s knowledge to draw a composite picture of what transpired in Marikana on 16 August, as well as before and after the day of the massacre. 

“The commission will have to provide the nation with answers and a very sound basis to take matters forward. Beyond the parties clearly identified in the terms of reference, there are individuals and family members intent on getting the full picture. Beyond having closure, they may want to take the matter further,” Love said. 

She said how the process unfolded was critical. The first step would be for the commission to engage with all the parties and then encourage people to come forward to make representations and submissions. 

The civil society statement said the commission would need to “maximise transparency and seek ways to engage with extremely distressed, angry and skeptical community members to ensure that all voices are heard and trust is restored”. But Love said although public hearings would ensure greater credibility of the inquiry, the commissioners would have to decide how much of the proceedings would be televised, as some witnesses may be daunted by this prospect.  

Love said a number of civil society organisations are preparing themselves to make submissions to the commission and, increasingly, members of the community would want to come forward. “There is still so much happening in the area and it is very tense there so they would not have had the opportunity to focus on the commission yet because they are caught up in events,” Love said.  

Concerns are also arising that the commission’s hearings would be used to further political agendas and that witnesses may be manipulated into giving loaded evidence. On Wednesday, the inter-ministerial committee appointed by Zuma to assist the Marikana community after the massacre issued a statement denouncing “irresponsible and inflammatory statements made by some in our society”. 

“The committee wish(es) to condemn, in the strongest possible terms, statements that incite violence and causes unwarranted instability in our country. Those who issue irresponsible and provocative statements must realise the gravity of their actions and must take responsibility. These statements provoke emotions of people and do not assist the country in the process of healing after a national tragedy,” the ministers said. 

While the committee did not name him, they were clearly referring to statements by expelled ANC Youth League President Julius Malema, who since the massacre has been addressing groups of mineworkers in what appears to be leading towards a mass mobilisation campaign in the sector. 

Love said lawyers would be irresponsible to suggest to their clients that they should distort information they provide to the commission. “It would be really ill advised for people to think the commission could provide a political platform. Political agendas will carry on parallel to the work of the commission but should not impact on it,” she said. 

One of the biggest challenges for the commission would be how to receive evidence from the mineworkers and the Marikana community. One of the legal representatives of the 270 people who were kept in detention said they would continue to represent the men in the commission. 

“Our initial brief was the criminal case but that matter has now been linked to the commission of inquiry. So we are likely to represent the charged members as well as the broader community. We obviously cannot call each and every person we represent to testify so we would probably chose a representative sample of all the people affected,” the representative said.

This would include Lonmin employees, those who were not employed by the mine but were on the scene, those injured in the shooting, people assaulted by the police and family members, he said.

Practically therefore, the witness testimonies could take weeks to complete. Lonmin mine management, the police, the Department of Mineral Resources and the trade unions would probably have high-powered senior counsel representing them. It is not yet known whether the commission would subpoena individuals, such as members of the police tactical response unit and their commanders to testify. 

Like the TRC, the Farlam Commission looks likely to evoke pain and anger but it will also lift the lid on matters South Africans are rarely exposed to. This includes a mining industry fraught with inequality and exploitation, the secret world of police operations and how the wheels of government turn. It would take nothing short of a miracle to be able to conclude all this in four months. 

But however long it takes, the Farlam Commission is likely to expose some uncomfortable truths about post-Apartheid South Africa and what went wrong with the ANC government’s goal for “A better life for all”. DM

Photo: A local woman cries as she confronts a police officer during a protest against the killing of miners by South African police on Thursday, outside a South African mine in Rustenburg, 100 km (62 miles) northwest of Johannesburg, August 17, 2012.