South Africa

As Farlam returns, the truth about the massacre remains a distant, perhaps impossible goal

By Greg Marinovich 12 July 2013

As the Marikana Commission of Inquiry is about to return from its winter break on Monday, there is an urgent hearing underway in the North Gauteng High Court. The application itself, by Advocate Dali Mpofu, is interesting enough, but Mpofu’s move to get state funding for the surviving injured and arrested miners has exposed subplots that reveal the hand of many of the parties involved. And all along, even more fundamental issues regarding the commission itself still need to be resolved. By GREG MARINOVICH.

The basis of Advocate Mpofu’s application is that his clients (who obviously are unable to pay the high fees of advocates and attorneys) are entitled to have the counsel of their choice funded by either Legal Aid South Africa, the Minister of Justice and Constitutional Development or the president himself (the taxpayer, in other words), since President Jacob Zuma appointed the Commission.

The president and the minister have said there is no legal framework for paying these fees for a commission, but Mpofu has, rightly, argued there was no framework for the R70 million to run the Commission, but the president “maak-ed ’n plan” and should then similarly “maak ’n plan” to fund the 300 miners’ legal fees too. Mpofu also argued he has saved the state R500,000 a month by suggesting the move from Rustenburg to Centurion. He added that interested parties like the Department of Mineral Resources have two advocates on watching brief, and the police have seven advocates – this can be reduced and the money moved to legal aid for the victims.

Should the High Court not order that Mpofu and his legal team’s costs be met, then he has asked for the Commission to be halted until he can seek redress at a higher court.

Mpofu’s claim that his clients be afforded legal representation seems fair enough – essentially his clients are indigent or near-indigent people who have asked that their interests be protected during the course of the inquiry. One would hate to think that the victims of the Marikana Massacre go without a lawyer while Lonmin can clearly afford one of the countries’ best advocates to head its team, and the taxpayer has to foot the bill for the phalanx of lawyers, both great and less so, who represent the police as well as the Department of Mineral Resources.

The application by Mpofu also asks that the Commission cease its work until he and his attorneys get access to funding, which has been met with stiff resistance all round. Organisations like the Legal Resources Centre, led by George Bizos, have begged that should the overall application be unsuccessful, then interim funding be accessed until the matter is resolved.

The core of most of civil society’s concerns is that a delay to the Commission will further discriminate against the parties who most urgently want the truth of the matter to come out.

The president and the Minister of Justice have said that Mpofu and his clients are not eligible for legal aid as this is a commission of inquiry and not a litigation process. What that means is that a commission is inquisitorial and not adversarial or accusatorial – no one is going to jail on evidence given at the Commission.

Yet for Mpofu’s clients, there is a lot more than just information at stake. The police have arrested most of his clients, and wounded dozens of them. Their communal court case on charges of murder due to the common purpose doctrine (that states they were all responsible for their own comrades’ deaths) is postponed pending the outcome of the Commission. Others among his clients have been variously charged with the death of the two policemen as well as the two security guards and various other miners on the days leading up to the massacre. It is logical that any criminal cases or civil claims further along the road will be greatly impacted by the findings of the Commission, even if none of evidence or testimony can be used directly in those cases.

And while the Commission progresses at its glacial pace, not one of the policemen who discharged their weapons at Marikana have been charged or arrested, the police watchdog IPID says, because, you guessed it, they are awaiting the outcome of the Commission.

The Commission is clearly more than just an inquiry – its findings will have major implications for hundreds of miners, policemen and the families of the deceased, as well as the entire country.

Yet one of the sub-plots revealed by the high court hearing is that Mpofu actually has access to funding. Significant funding.

Mpofu had applied to the Raith Foundation for funding and was granted it. Until now, he and his team have accessed over two million rand in fees and disbursements (expenses to you and me). The foundation (which declined to be interviewed, referring us to the court papers) had apparently made between four-and-a-half to six million rand available to the survivors’ lawyers in tranches. For the second sum to be released, they wanted to have the previously funding properly accounted for, and a report on the way forward.

This has not, it seems, been forthcoming.

According to Mpofu’s own submission to the high court, he received funding for October, November and December. This was for two advocates and four attorneys. The sum that he received was R2.6 million. So Mpofu was not getting anywhere near the top money being paid out there, but he and his team were certainly getting handsomely recompensed. There is another two million from the foundation waiting for Mpofu and his team, if they can get their accounting and reporting in order.

This is not to say that Mpofu and team have been careless in their accounting or spent the funding in unsuitable ways. It may well be that they find the technical requirements of the Raith Foundation stringent or even onerous. In court on Thursday, Mpofu hinted that there were some ‘disagreements’ and that there ‘were issues of principle’ to be clarified. Of course, in accepting the funding, the lawyers were bound to the terms of that agreement, and should be able to fulfil their funder’s requirements to release the rest of the money.

Daily Maverick did approach Mpofu for comment, but none has yet been forthcoming, as the matter is before court.

Let’s step back here a bit – Mpofu and his team form one of 17 parties to the commission. That means 17 sets of counsel. All have advocates and all have attorneys. Lonmin have hired an advocate who is one of SA’s finest – Schalk Burger SC (there were an additional two seniors and two juniors at the start of the Commission), so his fees would comfortably eclipse that of others at the Commission. The police have a team of seven advocates led by Ishmael Semenya SC. The private rate for senior advocates like them is up to approximately R4,500 an hour, for ten hours a day. In a normal month, the Commission has sat for four weeks (20 days). Most counsels on such a long brief give discounts, or cap their fees, but that still means that the senior advocates on private rates are earning between R800,000 and a million a month – each.

A stroll through the underground car park at the previous Rustenburg location of the Commission spoke to the kind of fees being paid.

The Commission itself has nine evidence leaders – all lawyers of high calibre – and three investigators. Then there is judge Ian Farlam and his two assessors, as well as an administrative team.

The lawyers who are acting for the various civil society organisations, like the Legal Resource Counsel (LRC) and Socio-Economic Rights Institute of South Africa (SERI) and the Centre for Applied Legal Studies at Wits (CALS), all either use in-house advocates (like George Bizos for LRC) and attorneys or hire them on a reduced rate. The in-house rates are pretty low – a top class senior lawyer working for civil society full time gets between R25,000 and R30,000 a month.

The SERI submission tells us what the reduced rate for hiring in advocates is – R17,000 a day for senior and R8,000 a day for junior advocates. This is because SERI, representing the dead miners’ families, did indeed get funding from the Legal Aid, at the chairman’s discretion, to the tune of R2 million.

There seems to be no rational reason for the survivors not to get access to legal aid when the dead miners’ families have received it.

Lets look at what this energy, time and money is being spent on. The public understanding of the Commission is that it was constituted to get at the truth of what happened at Marikana, as well as to investigate the broader environment that allowed such an incident to happen.

It is almost as if the country has been pinning its hopes of a healthy society on the outcome of the Commission. Across South Africa, it is clear that if police are allowed to kill 34 striking miners with impunity, we are done for as a nation. This sentiment is reflected in the burgeoning of shantytowns all over South Africa bearing the name ‘Marikana’.

The Commission is seen as a last hope, and civil society and human rights watchdogs have drained their resources and savings to participate in it. Yet this might all be in vain.

In court papers submitted today by the President Jacob Zuma and the Minister of Justice Jeff Radebe, the Commission is not a vehicle of hope for establishing the truth. It was never meant to be:

“It is well established that the functions of a commission of inquiry are to determine the facts and advise the president through the making of recommendations. The president is bound neither to accept the commission’s factual findings nor is he bound to follow its recommendations. A commission of inquiry is an adjunct to the policy formulation responsibility of the president – it is a mechanism whereby he or she can obtain information and advice.”

There are many who believe that the Commission, like many before it, is a stalling device, a smokescreen. It has been running for ten months, and we have not yet heard from a single policeman who fired a shot. We have instead been treated to three top cops filibustering and lying their way through endless and sometimes inexplicable questioning by the array of lawyers. The national police commissioner Riah Phiyega herself sat for six weeks and failed to give the Commission a forthright answer on just about any question.

The most basic of basics, the autopsy and ballistics reports, have not yet been presented. Most cases like this would begin with forensic experts explaining how the deceased died, and linking those deaths to weapons, and the users of those weapons.

It is complicated and methodical work, but it is the basics of any case – who was killed by whom. We should long ago have seen a policeman on the witness stand explaining how and why he killed men hiding at Small Koppie, and just how his life was in danger.

Surely this should have been the starting point?

Why did we spend weeks on the police orders and what they meant, when one lowly police constable could easily have been on the stand explaining what he understood those orders to be, and what his commanders actually told him to do and what not to do?

How could Riah Phiyega then fail to accept that police bullets killed 34 men on August 16, 2012?

This, of course, would ordinarily be the work of the evidence leaders, who would lay the facts down in the Commission. These experienced lawyers would assemble the skeleton of the evidence. The lawyers representing the various parties would not be the ones determining the running of the Commission – far from it; they would be there in a watching role and be allowed to argue for findings using any evidence presented by the evidence leaders.

It is clear that the evidence leaders, however strong their activist and human rights credentials, are not the bulldog lawyers who are better suited to this kind of legal fray. The judge himself is a gentleman who is at pains to be extremely fair, and seems too mannerly to force obfuscating witnesses to spit out the truth, or get small-minded counsel to move on from insignificant points they feel they have to make, ad nauseum. An event of the magnitude of Marikana needs a commission run with vigour and steely determination to get to the truth out, with less regard for decorum.

Let us not forget how little politesse was shown to the miners massacred and wounded that day, of how the survivors were threatened, beaten and tortured by the police while this very same Commission was running.

While lawyers argue over their fees, and begowned gentlemen (and gentlewomen) thrust and parry, the children of murdered miners cannot eat a square meal at night, and wonder if they will be able to attend school. Not for these children a future at the bar, or a brand new Range Rover in the garage. DM

Photo: Police investigators show retired judge Ian Farlam (L) where bodies were found during a site inspection by the judicial commission of inquiry into the shootings at Lonmin’s Marikana mine October 1, 2012. REUTERS/Mike Hutchings

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"Take a chance, won't you? Knock down the fences which divide. Tear apart the walls that imprison you. Reach out. Freedom lies just on the other side." ~ Thurgood Marshall

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