IN THE MARIKANA COMMISSION OF ENQUIRY HELD AT CENTURION TABLE OF CONTENTS TO HEADS OF ARGUMENT ON BEHALF OF INJURED AND ARRESTED PERSONS Item number Heading Page Number SECTION A INTRODUCTION, THE ISSUES AND METHODOLOGY 7 A.1 Perspective 10 A.2 Witnesses 12 A.3 The issues 13 A.4 Unique contributions and areas of emphasis 19 SECTION B CONTEXT / BACKGROUND / CANVASS 20 B.1 The legal context 26 B.1.1 Constitutional provisions 20 B.1.2 Legislation 22 B.1.3 Common-law principles 23 B.1.4 Regulations, standing orders, etc 23 B.1.5 SAPS prescripts, regulations, etc 25 B.2 The historical context 26 2 B.3 The factual context and background (including the 31 version of the Injured and Arrested B.3.1 Karee – 2011 32 B.3.2 June / July 2012 : Da Costa talks 33 B.3.3 Prelude – 6 to 9 August 2012 36 B.3.4 10 August 2012 – March to LPD 37 B.3.5 11 August 2012 – March to NUM offices 38 B.3.6 12 August 2012 – Death of two Lonmin security officers 41 B.3.7 Killing of Mr Mabebwe and Mr Langa 42 B.3.8 13 August 2012 – Incident involving killing of 3 strikers 43 and 2 policemen B.3.9 Death of Mr Twala 47 B.3.10 Annandale takeover 48 B.3.11 Aftermath 49 SECTION C ANALYSIS OF THE EVIDENCE IN RELATION TO THE 51 TERMS OF REFERENCE C.1 The conduct of Lonmin 51 C.1.1 Clause 1.1.1 of the TOR: Lonmin’s best endeavours 136 C.1.2 Clause 1.1.2 of the TOR: Outbreak of violence 56 C.1.3 Clause 1.1.3 of the TOR: Tension, unrest, disunity 60 C.1.4 Clause 1.1.4 of the TOR: Safeguards and safety 61 C.1.5 Clause 1.1.5 of the TOR: Policy, procedures conduct 61 C.1.6 Clause 1.1.6 of the TOR: Loss of life or damage 62 C.2 The conduct of SAPS 63 C.2.1 Clause 1.2.1 of the TOR: Standing orders 63 C.2.2 Clause 1.2.2 of the TOR: Use of force 82 3 C.2.2.1 Self and private defence; putative self-defence; legal 82 principles C.2.2.2 The attack 94 C.2.2.3 The evidence of the strikers (re the “attack”) 98 C.2.2.4 The objective evidence (re the “attack”) 102 C.2.2.5 Was the force necessary? Did SAPS comply with the 104 prescriptions for minimum force as required in the common law, the SAPS Act and Standing Order 262 C.2.2.6 Was the force used proportional to the threat? 104 C.2.3 Clause 1.2.3 of the TOR: SAPS’ role in dealing with the 108 incident C.2.3.1 The necessity of so many units 108 C.2.3.2 The police leadership 114 C.2.3.3 The National Commissioner 114 C.2.3.4 Major General Annandale 122 C.2.3.5 Brigadier WS Calitz 142 C.2.3.6 General Naidoo 181 C.2.4 Additional and general indications of SAPS’ culpability 194 C.2.4.1 Exhibit L : (One of the police versions) 195 C.2.4.2 Pulling the wool over the eyes of the Commission 198 C.2.4.3 Tampering with evidence and concealment thereof 199 C.2.4.4 SAPS giving false information to the local and 200 international public C.2.4.5 Shifting responsibility for 13 August 2012 201 C.2.4.6 Foreseeability and actual foresight 202 C.2.4.7 Utterances indicating a (collectively) guilty mind 203 4 C.2.5 Clause 1.2.4 of the TOR: Self and private defence 204 (justifiability); legal principles C.3 The conduct of AMCU, its members and officials 205 C.4 The conduct of NUM, its members and officials 208 C.5 The role played by Department of Mineral Resources 211 C.6 The conduct of individuals and loose groupings in 215 fermenting and/or otherwise promoting a situation conflict SECTION D ANALYSIS IN TERMS OF THEMES RAISED IN THE 216 OPENING STATEMENT OF THE INJURED AND ARRESTED PERSONS D.1 The massacre could and should have been avoided 217 D.2 Toxic collusion 219 D.3 Murder of the poor 222 D.4 Self-defence claims are baseless 222 D.5 Scene 1 : Murder 222 D.6 Scene 2 : Cold blooded extrajudicial executions 222 D.7 Who gave the orders? 223 D.8 Police revenge / retaliation and malice 225 D.9 Deeper underlying (socio-economic) causes of the 225 massacre D.10 Arrest of and charges against protestors unjustifiable 225 Section E ANALYSIS IN TERMS OF THE IDENTIFIED GAME- 226 CHANGERS : WHY THE MASSACRE AND RELATED EVENTS HAPPENED E.1 Game-changer One : The shooting of protestors by 227 NUM members E.2 Game-changer Two : The role played by the events of 231 13 August 2012 and the resultant revenge motive on the 5 part of members of SAPS E.3 Game-changer Three : The impact of political pressure 233 E.4 The interconnectedness of the Game-changers 242 E.5 SAPS’ explanation of why the massacre happened: 244 muti/rituals, invisibility, etc SECTION F REINFORCEMENT : THE RELEVANT SUPPORTING 248 EVIDENCE OF SELECTED WITNESSES, VIDEOS AND PHOTOGRAPHS F.1 Mr X 248 F.2 General Annandale and General Mpembe 273 F.3 Da Costa, Jamieson and Mokwena 273 F.4 Mr Cyril Ramaphosa and Ms Susan Shabangu 273 F.5 The experts 286 F.6 Key Exhibits: Videos, photographs, etc 287 SECTION G SUMMARY OF PROPOSED KEY FINDINGS 287 G.1 SAPS 288 G.2 Lonmin 292 G.3 NUM 293 G.4 AMCU 293 G.5 Workforce 293 G.6 Individuals 294 SECTION H PROPOSED RECOMMENDATIONS 294 H.1 Recommendations (general) 294 H.2 Matters and persons to be referred for prosecution 295 H.3 Matters to be referred for further investigation 296 H.4 Matters to be referred for separate enquiry 298 6 SECTION I DISCLAIMER AND RESERVATION OF RIGHTS 299 SECTION J CONCLUSION 301 ANNEXURE TABLE OF CASES AND 304 BIBLIOGRAPHY 7 IN THE MARIKANA COMMISSION OF ENQUIRY HELD AT CENTURION HEADS OF ARGUMENT ON BEHALF OF INJURED AND ARRESTED PERSONS SECTION A : INTRODUCTION, THE ISSUES AND METHODOLOGY A.1 Perspective 1. The very first sentence and opening words of Thomas Piketty’s international bestseller, “Capital in the Twenty-First Century”, are: “On August 16, 2012, the South African Police intervened in a labor conflict between workers at the Marikana Platinum mine near Johannesburg and the mine’s owners, the stockholders of Lonmin, Inc, based in London. Police fired on the strikers with live ammunition. Thirty-four miners were killed. As often in such strikes, the conflict primarily concerned wages: the miners had asked for a doubling of their wage from 500 to 1,000 euros a month. After the tragic loss of life, the company finally proposed a monthly raise of 75 euros. This episode reminds us, if we need reminding, that the question of what share of output should go to wages and what share to profits – in other 8 words, how should income from production be divided between labor and capital? – has always been at the heart of distributional conflict.” 2. Further down, on the same page, Piketty poses a rhetorical question, again with reference to the Marikana massacre: “The Marikana tragedy calls to earlier instances of violence. At Haymarket Square in Chicago on May 1, 1886, and then at Fourmies, in northern France on May 1, 1891, police fired on workers striking for higher wages. Does this kind of violent clash between labor and capital belong to the past, or will it be an integral part of twenty-first century history?” 3. Although some of the issues raised in this analysis ostensibly go beyond the scope of the Marikana Commission of Enquiry, particularly Phase One thereof, it best illustrates the fundamentals of the approach adopted in these submissions, as was more elaborately elucidated in the opening statement made to the Commission on 23 October 2012. Unfortunately, and due to considerations of time and money, Phase Two of the Commission was virtually non-existent. Nevertheless, we still favour a root cause analysis over a simple analysis of who pulled the trigger(s). 4. In a nutshell, the massacre was the outcome of the toxic collusion between Lonmin and the South African Police Service at face value but that collusion represented a wider politically and ideologically determined partnership between the state and capital and against labour. This collusion is typical of the historical development, not only of the mining industry since 1867 but of the foundations of the very country called South Africa. 9 5. Without this perspective, it is impossible to understand the events under investigation and put them in their true historical, political and socio-economic perspective and context. One will otherwise be left asking unanswerable questions, like: Why did Lonmin not simply engage with the workers as common sense would otherwise dictate? Why was the Lonmin leadership (shareholders, board members and top management) so obsessed with changing the characterisation of the conflict from a labour dispute to purely criminal activity which could only be resolved by the police or, worse still, the army? Why did Lonmin target politicians and ministers of state, rather than police leadership? Why did the National Commissioner of Police and Provincial Commissioner both go to such extraordinary lengths to conceal the involvement of the Minister of Police and senior politicians, such as Mr Ramaphosa, until the previously undisclosed police hard drives came to light almost a year after the massacre? Did the police really “forget” about their constitutional and legal duties, which are clearly set out in the applicable prescripts, or were these expediently “suspended” in response to the political pressure from above? The million dollar question is: Would the massacre still have occurred had it not been for the political pressure, the “suspension” of logic and law on the part of Lonmin and SAPS respectively – in short, the collusion between these two powerful forces? In our view, and given the evidence, the answer to this last question must be an unequivocal NO.