On Wednesday 30 April, Judge Farlam casually announced that clause 1.5 of the Terms of Reference has been deleted by President Zuma. Let’s just remind ourselves what clause 1.5 refers to:
1.5 The role played by the Department of Mineral Resources or other government department or agency in relation to the incident and whether this was appropriate in the circumstances and consistent with their duties and obligations according to law.
This clause has now been deleted. There will be no questioning of Police Minister, Nathi Mthetwa, Mineral Resources Minister, Susan Shabangu, or any other government minister due to come before the commission.
At the same time there is clear evidence from Cyril Ramaphosa’s chain of emails that Cabinet was briefed the day before the massacre. Evidence leaders have requested that the minutes of the cabinet meeting that took place on the 15th August 2012 be presented before the commission. This vital evidence is yet to be provided. Now that section 1.5 of the Terms of Reference has been deleted, it seems, it never will. We will never be clear on what role the government played in the lead up to the massacre.
This raises a serious question. Can a police operation on the scale of Marikana, where 4000 rounds of ammunition and four mortuary vans were ordered in advance, take place without someone on high, at cabinet level, giving the nod? And if not, why has President Zuma at this point amended the Terms of Reference to prevent this part of the investigation?
After the massacre, President Zuma pretended that ministers would be called to account to placate public outrage. By removing clause 1.5 he is ensuring that no judicial finger will ever be pointed at culpable government ministers, and this amounts to a cover-up.
The President has also announced that the twenty month long commission of inquiry will conclude by the end of July 2014. A large proportion of the remaining three months will be taken up by Mr. X, who under the Witness Protection Programme will give evidence on how his colleagues planned to attack the police on the 16th. Mr. X has a statement that appears to be written by SAPs lawyers. He is being paid to give evidence and will be interviewed in camera. He will not have to face the families of the dead people he and the police are accusing.
Whatever little time remains after Mr. X has given evidence will be for Lonmin, the company that colluded with SAPS and with government to ensure that an unprotected strike in the platinum sector was crushed. After twenty plodding months, legal teams at the commission will have to rush through the evidence of Lonmin’s senior executives in order to conclude on time.
Without a serious examination of the role of the government or Lonmin, who worked closely with the police, in this massacre, the Marikana commission of inquiry will not have the evidence it needs to make any meaningful recommendations. This leaves the 270 injured and arrested mineworkers accused of killing their own colleagues, in jeopardy. A commission that was established to uncover the truth about a massacre will be remembered as an expensive, worthless exercise that buried the truth, a whitewash and a low point in South African justice.
There will be a joint Marikana Support Campaign and Right 2 Know Campaign press conference this coming Wednesday, 2.30pm. Notice will be sent out.