The emails sent by businessman and moonlighting politician, Cyril Ramaphosa, do not show that he ordered the Marikana massacre, nor that he tried to persuade his contacts in government and the ANC to shoot at the striking miners. But some of his defenders argue that there was nothing wrong with his using ANC connections to try to get the government to do what Lonmin wanted – and that’s a huge mistake.
In one email Ramaphosa writes: “You are absolutely correct in insisting that the minister [Susan Shabangu] and indeed all government officials need to understand that we are essentially dealing with a criminal act. I have said as much to the minister of safety and security.” In another email, Ramaphosa highlights his “interaction with some of the role-players”, including a proposed conversation with the ANC secretary general, Gwede Mantashe, to suggest that the party intervene. There was also a proposed meeting with Shabangu in Cape Town to discuss “what she needs to do”. Emails also show that Ramaphosa warned Police Minister Nathi Mthethwa to come down hard on striking miners.
Ramaphosa is a non-executive director of Lonmin and one assumes receives handsome compensation from the company for serving on its board.
The strike was an unprotected one. This means that Lonmin could dismiss all the workers who took part in the strike, as only protected strikes protect striking workers from immediate dismissal. But in South Africa it is not a criminal offence to take part in an unprotected strike. The strike was therefore not a criminal act.
Before the massacre, 10 people were killed in horrible violence associated with the strike. It is widely assumed that some of the strikers were responsible for some or all of these killings — although no one has yet been found guilty of any of the murders. If we assume that some strikers were responsible for the killings, this does not make the strike criminal, as our law does not recognise the notion of collective criminal guilt. Just as every member of the ANC is not a criminal because one of its members committed murder, every striking miner is not a criminal because one of its members committed murder.
Although the Regulation of Gatherings Act regulates the conduct of protestors, requires negotiations between the parties before a protest takes place and stipulates that organisers of gatherings who fail to comply with the provisions of the Act may be guilty of a criminal offence, it does not turn every person who takes part in a protest march, for which permission was not sought or given, into a criminal. Unlike during the Apartheid era, one cannot automatically charge and convict all participants of a protest march for which a permit was not granted for attending a so-called “illegal gathering”. In fact, section 12(2) of the Act explicitly states that one cannot be convicted of a criminal offence for having convened or taken part in a spontaneous gathering.
Ramaphosa and some of his defenders are therefore wrong by characterising the strike as a whole as a criminal act. This was a labour dispute — not a criminal act. Yes, the labour dispute was accompanied by violent criminal conduct. The task of the police is to investigate and secure prosecution of those involved in criminal conduct and to prevent or minimise criminal behaviour. It is not the task of the police to get involved in a private labour dispute.
The Regulation of Gatherings Act allows the police to prohibit a gathering, but only if “credible information on oath is brought to the attention?of a responsible officer” that a “proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property”, and then only after further consultations were held with organisers to try and find a solution to minimise the threat to persons or property.
Even more astounding is the fact that several pro-business commentators have argued that there was nothing wrong with Ramaphosa – a member of the ANC NEC – using his ANC connections to assist Lonmin in getting the government to deal with the strike and the accompanying protests in a way that reflected Lonmin’s interests and point of view. Although it is unclear whether Ramaphosa’s intervention was decisive in moving the government to use the police — funded by taxpayers — to break up the strike, it is clear that he sought to do so.
Given Ramaphosa’s role in trying to get the government and the ANC to “deal” with the strikers, it becomes clear why a company like Lonmin would want to appoint a person like Ramaphosa to its board of directors. Just as it became clear during his court case why Schabir Shaik entangled Jacob Zuma in a “mutually beneficial relationship”, bankrolling Zuma in the hope that Zuma would use his political connections and government position to assist Shaik, Lonmin’s appointment of an ANC NEC member to its board makes “business sense”.
But just because it is understandable — from a purely business perspective — why a company or individual would want to entangle a highly connected ANC politician and/or member of government in a mutually beneficial relationship, does not mean that it is morally acceptable for a company to do so.
I am not contending that big companies cannot plead their case with government and cannot try to win public support for their views. Neither am I arguing that the government did not have a duty to take appropriate action (through negotiations with the strikers and other role players, and ultimately the protective deployment of the police) to minimise the risks to persons or property posed by the strike. And a company’s CEO can surely publicly urge the relevant ministers to act. What becomes problematic is when a big company uses its political connections (purchased at a price) to gain special access to government and governing party leaders to try and influence the government’s response to a dispute with workers. Surely when a company gains such access to government ministers and the secretary-general of the ANC by appointing an ANC politician to its board or by financially rewarding such a politician, it engages in a practice that compromises both the company and the government.
Is there a fundamental difference between Schabir Shaik contributing funds to Jacob Zuma with the understanding that he would use his status and power as ANC leader and government member to open doors to Shaik and to help protect his business interests (as well as the interests of an arms company), on the one hand, and Lonmin appointing Ramaphosa to its board in the hope that he would also use his political connections to advance the interests of Lonmin, on the other?
Yes, in the latter case, the relationship is formalised through an official appointment of the ANC politician to the board of the company, but the expectation that the ANC politician would bring with him or her benefits related to his leadership position in the ANC is the same in both cases.
I am not arguing that it would be possible to prove beyond reasonable doubt that Ramaphosa and Lonmin are guilty of corruption in terms of the relevant legislation. This kind of formal and organised collusion between big business and the political elite is probably too widespread, and the formalised nature of the links would probably make it very difficult to prove the corrupt intention required for conviction.
But do we really want to endorse and defend business practices that implicate big companies in the buying of influence with politicians and members of the democratically elected government, people who are supposed to represent the interests of all South Africans – not only the rich, famous and well connected? Is there not a risk that this will create and/or perpetuate an unholy alliance between government and big business to the detriment of workers employed by such companies? And if we do, what does it say about our willingness to give the big (white-owned) companies a pass, while insisting that ANC politicians should be held accountable for corrupting the system?
Or should we rather accept that we live in a society in which who you know and to whom you have access counts far more in business than whether you actually run a good business? If we say yes to the latter statement, should we then not say that Schabir Shaik was wrongly convicted and sentenced to 15 years in jail and that Jacob Zuma should never have been charged with fraud and corruption?
And what do we tell ordinary workers and companies who are unable or cannot afford to buy the kind of political influence that a man like Cyril Ramaphosa can deliver? DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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