The police are going to argue at the Farlam Commission that their actions in the Marikana massacre and its aftermath were prompted by extreme duress and extraordinary circumstances. But they might also try to argue that unlike ordinary civilians, a different set of laws applies to their actions. They simply cannot be allowed to get away with that. We are supposed to be a constitutional democracy, after all.
One of the difficulties in reporting on the Marikana massacre and its aftermath has been the confusion of events and incidents, and also the widespread use of violence by almost all the parties involved. How does one begin to try and apply the principles of justice in such circumstances? This is why the Marikana Commission of Inquiry is going to be the most important one since the days of the Truth and Reconciliation Commission. It should hopefully cement the concept of legitimate response in the public consciousness, because it appears that we are completely unfamiliar with it.
In his opening statement at the Marikana commission, George Bizos of the Legal Resources Centre said that the Constitution, legislature and common law do not permit murder in cases of revenge. And it appears to his team that the incident of 16 August was prompted by revenge for the deaths of their colleagues. He is also interested in the use of maximum force by the police (shown by his intention to talk about the training of the police involved and their experience in crowd control) where the law and standing orders prescribe minimum force.
“We are going to call in experts to prove that what the police did on August 16 is unheard of in the whole world. We are going to ask for permission to cross-examine those who gave permission,” Bizos said. “If you have 3,000 protesting people on one side, some of them armed, and you turn R5s and R6s on them, that is unique and historically that is incorrect.”
The point is that no matter what the miners did prior to 16 August, the police had no right to ignore the law in their own response. This cannot be emphasised enough.
It is the same principle that prevents a person who has been burgled from shooting the criminal dead if they are not doing so to save their lives. If someone were to break into a house, kill some people in it and in turn get killed while escaping and posing no threat to the survivors, then two people would be wanted for murder. Not just the burglar.
The police recently arrested Xolani Nzuza, one of the strike leaders at Marikana. He was supposed to be a key witness at the Commission. He allegedly has been charged with the death of Daluvuyo Bongo, who was the local secretary for the National Union of Mineworkers (NUM).
Nzuza’s trial continues next week. I have spoken to one source who places the accused in Matatiele, in the Eastern Cape, for the funeral of Paulina Masuhlo – the ANC councillor who was also killed in the aftermath of the massacre – at the time of Bongo’s death.
Last week on Wednesday, Zamikhaya Ndude, Sithembele Sohadi, Loyiso Mtsheketshe and Anele Xole were allegedly followed by the police from Rustenburg (where they had been attending the Commission) and were arrested. We last heard that the men had had the charges against them dropped and were then shipped off to a police station to be charged again. On Friday night, the attorney for the three men was still trying to find the station where this was happening.
We got eyewitness testimony from Thumeka Magwanqa, who was present when the arrests took place. It sounded more like the apprehension of deranged serial killers or terrorists. It will be crucial to find out what these men and their co-passengers have done to deserve this treatment.
In fact, the pattern continues into the conflict at Gold Fields in the West Rand, where several sources said that police (at the time when we interviewed them) were conducting night raids and arresting people. The same thing is happening at Anglo Platinum, where another wildcat strike is underway.
The police appear to be under the impression that the entire labour crisis is being centrally coordinated and that they can quash it by arresting the alleged ringleaders. How wrong they are.
The (just-resigned) CEO of Anglo American, Cynthia Carroll, put it crisply when asked why the strikes appeared to be so well-organised. “I don’t know. I don’t think anybody really knows. This is a very unusual set of illegal strikes that are happening. There’s got to be some element of politics at play,” she said.
The police do not seem to have a much better idea than Carroll as to what is causing the strikes. They tried to pin the Lonmin strike on Julius Malema by rather clumsily torturing some of the 272 men they arrested so to establish some kind of a link between the former ANC Youth League president and the strike committee before the massacre. That theory must have been flung out of the window rather abruptly by the other strikes that sprung up in places Malema never visited.
How the commission is supposed to deliberate properly when the key witnesses of at least one legal team are being routinely harassed by the police should be a question we all ask ourselves. It is nothing short of an outrage.
The conduct of the police is going to be one of the central themes of the Commission (if not the main one). Should the terms of reference extend to the way the police treated parties to the very commission investigating them?
The police are acting with increasing impunity because the government is not willing to rein them in. They are increasingly becoming a law unto themselves. Whatever the inspiration for this is, and no matter how badly they feel they are being treated, the simple matter of fact is that the same laws apply to them as do to the miners who have killed people.
The mining unrest has brought us the return of the police state. Can’t you feel it? DM
Sipho Hlongwane is a writer and columnist for Daily Maverick. His other work interests also include motoring, music and technology, for which he has some awards. In a previous life, he drove forklift trucks, hosted radio shows, waited tables, and was once bitten by a large monitor lizard on his ankle. It hurt a lot. Arsenal Football Club is his only permanent obsession. He appears in these pages as a political correspondent.
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