The Marikana Commission of Inquiry: The rule of law in post-apartheid South Africa

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In this piece, Sandra Wisner takes us to Johannesburg where she spent the year assisting the Marikana Commission of Inquiry, established as the result of one of the most violent Police acts in post-apartheid South Africa. Live video footage captured at the scene garnered international attention, leaving much for the South African Police Service to account for. Sandra is a lawyer practicing in Toronto.

On 16 August 2012, in Marikana, a town to the Northwest of Johannesburg, 34 protesting mineworkers were shot and killed, 78 wounded, and 250 arrested, all at the hands of the South African Police Service (SAPS). The protest arose as a result of a wage dispute between Rock Drill Operators and management at Lonmin Plc. mine. Live video footage captured at the scene was broadcast around the world. I arrived in Johannesburg two weeks later, just in time to sit amongst the crowd of mineworkers in Marikana as leaders announced their successful wage increase to what was termed a ‘living wage’ of Rand 12,500.

Various aspects of the incident heightened international scrutiny, including claims that the mineworkers were shot in the back by assault rifles and shotguns, many at short range, while running away from the police. Claims of collusion surfaced between Lonmin Plc. mine, the National Union of Mineworkers, and the government. Other revelations also came to light with regard to the socio-economic conditions of the miners living in the area as well as the lack of benefits provided to the community whose land is being mined.

The brutality of the assaults carried out by the SAPS garnered international attention as comparisons were made to apartheid-era massacres. The following day, President Jacob Zuma called for the establishment of a Commission of Inquiry into the tragic events. Far from the only foreigner in attendance at the Commission, I spent the next year assisting the Constitutional Litigation Unit of the Legal Resources Centre in their representation of families of mineworkers killed at Marikana.

The search for truth has been an arduous process fraught with countless barriers such as reports of the police withholding and distorting evidence, and a lack of funding for the victims’ representatives. Legal counsel for the 15 parties with standing at the Commission moved up to Rustenburg to attend the daily hearings, and within a year, the Commission had amassed over 15,000 pages of discovered documents, as well as more than 150 hours of video footage.

As the Commission continued to sit, the situation at the Marikana mine became increasingly volatile with violence between rival trade unions and worker protests. Delays at the Commission have meant more deaths among mineworkers; within the year, six protesters who were present on 16 August 2012 committed suicide and three potential witnesses were assassinated.

The Commission’s impressive grouping of experts and lawyers leaves room for hope that its findings will help to shape future national policing strategy. Policing experts from Belgium and Ireland have been called upon to shed light on the SAPS’ use of force policy, and the Commission itself is host to many of the country’s former anti-apartheid advocates. Most of my time was spent assisting Advocate George Bizos SC, senior counsel of our team, in preparation for lengthy cross-examinations of police witnesses. Advocate Bizos is one of the most renowned human rights lawyers in South Africa; he acted as counsel for the late Nelson Mandela during the Rivonia Trial, and was a member of the committee entrusted with the drafting of the Constitution of the Republic of South Africa.

The issues at play within this rural mining town are situated within a much broader context of massive unemployment, soaring poverty levels and dramatic income inequality, which characterize the current South African labour market. Service delivery protests are not uncommon in the country and the SAPS’ response to such protests as well as the country’s willingness and ability to hold them to account for that response will help to assess the effectiveness of the country’s adherence to the rule of law post-apartheid.

Mandela’s passing in early December underscores the need for the Commission’s findings and recommendations to embody the essence of truth, restoration and justice. The proceedings may indeed determine the direction and effectiveness of justice in South Africa in the years ahead.


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