Opinionista Xhanti Payi 23 August 2013

Is there hope for the Marikana Commission?

It is usually easier to be dispassionate about the high drama which unfolds in South Africa almost on a daily basis. But the events surrounding the Marikana tragedy, and in particular, the decisions of our government in this regard, have left a bitter taste in my mouth and a sharp pain in my heart. It has been an emotional time for many, and being dispassionate has been impossible.

Some years ago I learnt that my late father, as a young rising star, worked in the mines in an effort to pay for his university education. By the time he died in his late twenties, he was working as a state prosecutor in the former Transkei, with a wife, a son, and one unborn child. The mining sector, which at the time represented the main hope for employment and economic wellbeing in that part of the world, did so for my father.

In my last year of university, the pension fund to which my father belonged while working in the mines in the Witwatersrand paid out to me some R6,000, which had over the years accumulated interest from whatever little sum it would have been when he left the mines.

My years at university were not always easy, with a single mother working as a domestic worker. Anyone who has made an attempt at a university education will tell you that it is not cheap. But my father, in his lifetime, worked hard, and in some small way that paid off. I used the money to pay off some of the fees, and to buy textbooks and a music player. It was a wonderful moment for me.

It is in this context that I’ve found the sting of the government’s decision not fund the legal fees of the Lonmin workers who were involved, killed or injured during that terrible time particularly unbearable. Those men were not just “miners”. They were human beings with hopes and dreams, and represented hopes, dreams and livelihoods of families. There are many lives affected by this tragedy, and many people want to know how and why. All of our country wants to know why and how this happened to us, and the hopes our nation carried through those men who were killed during that time.

The impasse in Marikana, whose aftermath was the end of many South African lives, represents fundamentally in my mind social problems which lie directly at the doorstep of government. I do not doubt that what we saw in Marikana was a result of the failure in the management of industrial relations, as well as the frustrations of many with regards to their aspirations and social conditions. It is the state’s job to protect human life, as well as to ensure that our people relate to each other in ways that are conducive to social order and prosperity for all. This failed in Marikana.

President Zuma appointed a commission of inquiry out of concern arising from the tragic incidents at the Lonmin mine in Marikana, as is clearly stated in the term of reference. In setting up the commission, the president suggested that we didn’t know the truth about what exactly happened. In that sense, he asked South Africans to be calm, and trust his resolve to get us the truth so that we may find some way to deliver answers, and ultimately the justice so many longed and were calling for.

It therefore seems a cruel twist that the government refuses to provide the “other side” funding for legal representation, while, as Minister Jeff Radebe states, it provides for those in the employ of government. How can he claim that evidence leaders in the commission are adequate for “the other side” but not so for those in the employ of government? How is this commission to be understood to be and fair and just if the government pays for one party, and not others? The minister made the assertion that the cycle of budgeting didn’t allow for planning of funding. Yet it did allow for the support of those in the employ of government.

By these statements, are the mine workers to believe that the commission, constituted by the government, is impartial to all, and wishes to deliver fairness to all?

Efforts to force the government failed, but the court made bold to say that, “ordinarily, a functionary setting up a commission has to ensure an adequate opportunity to all who should be heard by it.” The court went on to say that “This means that unfairness may arise when adequate legal representation is not afforded.”  Thus, the minister’s assertion that evidence leaders are adequate for the miners, but the state will pay for its employees out of budgets that are limited is unconvincing both logically and morally. As one legal analyst asserted, some of the miners appearing in the commission face criminal charges with respect to events of that period, and therefore need adequate legal representation so that their rights are protected and they do not prejudice themselves in the criminal cases which are likely to be pursued by the state against them.

Further, the minister celebrated that the court did not force the government to pay. It is a heartbreaking twist of history that save for a court order, the government would refuse to do whatever it can to make sure that justice and fairness is served.

This inquiry, in its simplest form, is based on the fundamental desire for truth. It seeks to find the facts of what happened during those very sad and dramatic days. It also seeks to find ways to make sure that we prevent a repeat. It is about building a good, safe, fair and just society.

Over the period over the past year, it occurred to many people that at the hands of the police, dozens of lives perished. Consider also that there are many people who died during the cruel years of Apartheid at the hands of the police. Many of those stories are still untold, and their families are still in the dark about why and how their loved ones were killed. That formed much of the cruelty of that system – that human lives went unaccounted for, and justice failed. The inquiry, to many of us, promised to deliver answers to such questions.

In our current dispensation, which in its womb is the hope and promise of a just society, it is a cruel shock that we may be expecting a stillborn. As former president Thabo Mbeki put it when he paid tribute to President Nelson Mandela, “…that the great masses of our country everyday pray that the new South Africa that is being born will be a good, a moral, a humane and a caring South Africa, which, as it matures, will progressively guarantee the happiness of all its citizens.” What of that prayer amidst these decisions by the government?

It is worth reasserting that any conflict in society, in cause or solution, is the responsibility of the government. In setting up this commission, it seemed that the government had understood this. Somewhere within these tensions, the government of the people failed to act in such a manner that the loss of human life would not occur. This comes from the notion that miners are more than just workers, they represent humanity and the hopes of a better society.

What happened in Marikana to those Lonmin miners and the effects on their families and the hopes of the children cannot be underestimated.

The question of funding the legal representation of the miners has placed to the test the decency and humanity of our government to the test – and it is wanting.

The question in my mind is: can we still hope for truth, fairness and justice from the Marikana Commission? Are we building a society in which all South Africans are served and protected by the state? DM

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