Defend Truth


Water fail: Farlam Commission bows to industry secrecy

Katherine Prudente and Alison Tilley from the Open Democracy Advice Centre, affiliated to the Right to Know Campaign.

Mining companies have run roughshod over regulations for years. The Farlam Commission’s rules and procedures thus far indicate that in the search for the truth at Marikana the giants are still having their way. 

The Farlam Commission of Inquiry into the Marikana killings has begun trying to determine whether Lonmin did enough to resolve the labour disputes at its mine, whether it responded appropriately to the violence and whether, “by act or omission”, it created an environment conducive to the creation of tension or labour unrest.

The Commission’s findings will be of enormous importance to communities in the area, families of the victims, the mining industry and the South African public. It has already run into controversy around how open and accessible its hearings are going to be. First came the announcement that journalists need special accreditation cards, which are determined by vetting by the Department of State Security.  Then came claims from the families of the dead that they had not been advised of the Commission starting its hearings. An application for a postponement to allow the families to be present and brief lawyers was refused by the Commission. 

Operating in the context of ongoing wildcat strikes in the platinum industry and violent strikes in other sectors, this Commission, more than any other, needs to be conducted in an open and transparent manner. The concerns of the community need to be dealt with in a way which puts its rulings above reproach with regard to transparency and accountability. The call for transparency in any investigation of the Marikana shootings was made immediately in the aftermath of the event by the Right2Know Campaign.

The mining sector is not known for its transparency. Subject in other countries to the Extractive Industries Transparency Index for exactly this reason, mining is frequently an area of controversy internationally because of concerns around its impact on the environment as well as on the people dependent on the mines for work. In a 2011 report, Unlock the Doors: How Greater Transparency by Public and Private Bodies Can Improve the Realization of Environmental Rights, the Centre for Environmental Rights (CER) assessed transparency in relation to environmental issues. It found it “could not have predicted the astonishing results of this project: with a few notable exceptions, both public and private bodies failed to give access to even the most basic environmental information, in violation of their obligations…”

As part of this research, the Open Democracy Advice Centre requested the proactive release by 30 of the biggest mining companies in South Africa of their authorisations granted in respect of the Mineral and Petroleum Resources Development Act, the National Environmental Management Act, and the National Water Act.

Twenty-two companies provided no answer at all to the written request or the follow up request. Seven companies refused to provide the requested documents, stating that these resources were available through other means or that the release of this information would result in the disclosure of confidential company strategy. One comment was that if the information “was dumped on the public it often tends to be misinterpreted or misused to the detriment for all involved.”

Two of the mining companies did better. Sentula Mining Ltd and Exxaro Resources Ltd agreed to put the information on their websites. They did not seem to feel it would compromise their company strategy or result on the public being confused. 

A case in point in this research, however, was Lonmin itself. Lonmin did not answer the request for information, and specifically did not answer the request for water use licences or authorisations in terms of the National Water Act. 

The Department of Water and Environmental Affairs requires companies that use water for irrigation, mining, industrial uses, feedlots or under the terms of a General Authorization, to register their water use. This is done in order to manage water resources, ensure that fair allotment of the water resources are dispensed, to protect the environment and to enable the Department to charge for water use. It is an offence not to register

In August, as a result of a Parliamentary Question, the Department of Water and Environmental Affairs disclosed information showing 46 mining companies did not have the required water authorisation needed in order to mine. One of these mines was Lonmin.

It is not acceptable in an open and transparent democracy for mining companies to ignore or refuse requests for information about licenses, especially when they don’t have them. It is not acceptable to require professional journalists attending a hearing of a Commission of Enquiry on killings in the mining industry to receive accreditation from the Ministry of State Security. It is not acceptable that the families of the dead were not told about the hearings in advance. 

If the current regulatory regime is not sufficient to ensure such transparency, and it should be, then more needs to be done on that front. However, we cannot rely on laws and judges to make good governance decisions for us. We need public and private bodies that will open themselves up to scrutiny, confident that if there are any mistakes or omissions in their conduct they will be open to having these pointed out, and that they will correct them. We cannot continue on a trajectory of ignoring people’s right to know.

The Right2Know Campaign has in fact been chanting a slogan for weeks which has nothing to do with Marikana, but which eerily presages these events: “No secrets, no lies, no power to the spies”. This Commission, and this industry are too important to allow them to deviate from the highest standards of transparency. DM

Katherine Prudente and Alison Tilley are from the Open Democracy Advice Centre, affiliated to the Right to Know Campaign.


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