With malice aforethought
21 November 2017 12:14 (South Africa)
Opinionista Stuart Wilson

Judge Farlam’s Accidental Massacre

  • Stuart Wilson
    stuart-wilson-new.jpg
    Stuart Wilson

    Stuart Wilson is the Executve Director at Socio-Economic Rights Institute of South Africa (SERI) - a public interest law centre based in Johannesburg - and a practicing advocate.

We finally have the Marikana report. Six hundred and forty six pages, which were meant to tell us what happened and why. Real explanations, though, are thin on the ground. Much of the report is throat-clearing: a regurgitation of the Commission’s terms of reference here, a replication of evidentiary rulings drafted and handed down during the proceedings there.

We are told (mostly from the bland repetition of large sections of the evidence leaders’ heads of argument – see pages 233 to 247 – which is but one example) that the police “reasonably believed” that they were under attack at Scene One (the killings everyone saw on television), and that not much can be said about Scene Two (the killings that took place shortly after Scene One in a small rocky outcrop 200 metres away). Phrases like “inadequate command and control” (page 357) and “operational decisions” (page 366) abound. They read like place-holders for the facts that should be there: who did what to whom, and how each of the deaths occurred.

After spending millions of rands in public money, and putting the families of the deceased through a legalistic purgatory, the least that might have been expected is an individualised account of the massacre. But the report tends to treat both the living and the dead – especially the miners – in a highly generalised way. Intentions and motives are assigned to groups of people, not individuals. The police at Scene One are let off the hook en masse, without the Commission having heard the evidence of a single one of the Tactical Response Team officers, who fired the shots. The Commission excuses this gap in evidence, and lamely concludes that “the [police officers] who did not testify in all probability saw the situation as their commanders did” (page 252). But how can we know what anyone on the scene believed, let alone whether it was reasonable, if their evidence is nowhere to be found in the report?

The closest the Commission comes to a verdict is to say that “in the case of certain shooters there is prima facie evidence that the [police officers] concerned may well have been guilty of attempted murder, but it cannot be said that any shooter is guilty of murder because it cannot be shown which of the shooters actually killed anyone” (page 258). Some police officers may have “exceeded the bounds of self and private defence” (page 558).

In other words, there is no-one to blame. After 300 days of hearings (page 16) the Commission merely recommends “further investigations” (pages 545 and 546).

The report also reveals a structural bias. The miners who died on 16 August are treated most perfunctorily. What might have been expected is a body-by-body account of the deaths. But that is nowhere in sight. The information necessary to produce such an account was available to the Commission, because all of the miners’ post-mortems were handed in to it. At least fourteen of those post-mortems demonstrated that the miners were shot from behind. But the Commission showed little interest in this evidence during its proceedings, and this indifference is carried through into the report, in which the post-mortems are used for general illustrative purposes only.

On the other hand, attacks on the police are recounted in sometimes lurid detail. On pages 146 and 147, for example, we read about an assault on Lt. Baloyi, who, the report bizarrely claims, was “stabbed below the umbilical cord”. The report finds that he was “lucky to survive”.

Anatomical oddities aside, this is no doubt a true account of Lt. Baloyi’s experience.

But what the report substantially fails to do is step back from the police’s testimony, and evaluate the facts critically. On pages 261 and 262, in one of the few attempts to deal with the miners’ killings in any detail, we are told that four of the miners were shot at a distance of up to 250 metres while they were moving away from Scene One. Again letting the evidence leaders speak for them, the Commissioners conclude that “[a]t best for the SAPS these are victims who were accidentally killed in the TRT volley”. If there is a more accommodating way refer to the state killing four innocent people probably running away from the police as fast as they could, I cannot think of one. The Commissioners close off this incident by – again in the words of the evidence leaders – counselling against the use of machine guns in public order policing situations, as if the real problem is not with the people firing them.

One of the few things that the report does make clear is who wasn’t responsible. Not the Deputy President. Not the Minister of Police. (See Ranjeni Munusamy's story for a different view on the Commission's finding on Police Minister - Ed) Not the Minister of Minerals and Energy. They are exonerated. And that might be right. But I can’t help but notice that only those in power are vindicated. Everyone else has to make do with a slurry of bad decision-making, and hints at the influence of muti (pages 103 to 106).

Lonmin does come in for some well-deserved criticism. It handled the strike extraordinarily badly, and then ran for cover after the massacre. Its role in creating the conditions under which the police confronted the miners is acknowledged. It completely failed in its social obligations to provide housing and other goods to the local community. It also adopted a high-handed approach to the strike, refusing to negotiate when all the miners said they wanted was for Lonmin management to come to address them. Who knows what would have happened had Lonmin done so?

On the whole, though, the report is a poorly-written summary of some of the evidence the Commission managed to scrape together. That summary is clearly slanted towards power and the police.

The truth is that the families of the deceased are left no wiser as to their loved one’s deaths. That brute fact can only lead to the conclusion that the Commission has failed in its central task.

The whole truth about the Marikana massacre, if it is ever to emerge, is not to be found in this deeply flawed, but astonishingly expensive, document, which does more to recommend further investigations than anything else. Rather than any future government inquiry, we must now look to civil claims against the police and Lonmin (which will surely follow) and a more popular national debate on the causes and the consequences of the killings.

What Judge Farlam offers is an unsatisfactory narrative of faceless crowds and poorly-judged decisions, where responsibility, if it is apportioned at all, is doled out in the abstract. Plans went wrong. First aid kits weren’t available (see page 360). Water cannons were fired in the wrong direction (see page 230). But this can’t be anything approaching the whole story. Whatever Judge Farlam and his fellow Commissioners suggest, this was not an accidental massacre. DM

Stuart Wilson is the Executive Director of the Socio-Economic Rights Institute of South Africa (SERI). SERI acts for the families of 36 of the miners who were killed at Marikana on 13 and 16 August 2012, and the Association of Miners and Construction Union (AMCU).

  • Stuart Wilson
    stuart-wilson-new.jpg
    Stuart Wilson

    Stuart Wilson is the Executve Director at Socio-Economic Rights Institute of South Africa (SERI) - a public interest law centre based in Johannesburg - and a practicing advocate.

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