‘It is regrettable that in fact we could still stand here and talk about matters that in fact had occurred 10 years ago,” said Solicitor-General Fhedzisani Pandelani, from the Department of Justice and Constitutional Development, during a media update in Pretoria on Wednesday on progress with the Marikana litigations. 

It has been a decade since the week-long strikes in Lonmin began, which culminated in the Marikana Massacre, where 34 miners who were striking for wage increases were shot by police.

Pandelani, who was appointed as Solicitor-General by Justice Minister Ronald Lamola in 2020, said the delays could be attributed to the Office of the Solicitor-General being newly established. The office has the power to engage with the public, unlike state attorneys who are bound by ethical practices and would face charges of misconduct if they informed the public on ongoing cases.

Since the Office of the Solicitor-General’s update on Marikana reparations in August 2021 — which Pandelani said was aimed “specifically to debunk the narrative that government has not been doing anything for the past nine years in relation to the settlement in these matters,” — the office has resolved to deal with the remaining litigation matters.

Pandaleni told Daily Maverick after the media briefing that the 370 total claims were divided into three categories.

The first was for loss of support (loss of life), where just under R76-million in reparations was awarded to 35 claimants — the families of the 35 miners killed in the massacre. This was settled and announced in Pandelani’s last public update in August 2021.

The reparations were paid through the Wits Law Clinic and the Socio-Economic Rights Institute (Seri) of South Africa. The first reparations of just under R4-million was paid to Wits university — through the Wits Law Clinic — in 2017, and the balance was later paid to Seri.

The second category is related to matters of malicious prosecution, arrest and detention, and some injury — just above R102-million in compensation to 287 claimants. 

More than R178-million has been paid to 322 claimants so far, and none of those matters went through the courts.

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The third category is the outstanding 48 claims, which includes all the matters that weren’t settled; mainly personal injuries, special damages, malicious prosecution against the state, actuarial calculations and related aspects.

These 48 claims were enrolled in bulk by a presiding judge and under judicial case management, and are being settled between 25 July and 19 August 2022.

As of now, Pandelani said half of the remaining 48 matters had been settled, and the rest would be settled before the month of August was up.

Pandelani said all 48 matters were eligible to receive some form of compensation, and explained that the issues with the settlements were to do with general damages (personal pain and suffering), as special damages (loss of income, medical expenses and so on) were all payable. 

“When it comes to general damages, that is where we couldn’t reach each other,” said Pandelani in the media briefing.

“So the issues have been narrowed down to general damages, pain and suffering. What is the extent of the pain and suffering that this particular person has suffered? These are issues that the teams are dealing with.”

Pandelani said he had instructed his office to finalise all these matters; “we cannot actually live forever and have any matter that is remaining.”

Delays ‘a thing of the past’

Pandelani said these cases have dragged on for a decade because there was never a policy to compel the state to embark on any settlement of matters, be it via mediation or arbitration. But, he said, the Office of the Solicitor-General had developed about five new policies that would be binding within state departments for early settlement of matters.

“It is not so much triggered by the Marikana incident,” said Pandelani, “but matters such as these… need to be dealt with at the earliest opportunity.”

For example, service delivery issues, which need to be dealt with at the earliest opportunity to make the state liable. DM