Quote of the week

[Venezuelan President Nicolás Maduro] possesses, however, few of his predecessor’s resources, lacking not just oil revenue but Chávez’s surplus of charisma, humour and political skill. Maduro, unable to end the crisis, has increasingly sided with the privileged classes against the masses; his security forces are regularly dispatched into barrios to repress militants under the guise of fighting crime. Having lost its majority in Congress, the government, fearing it can’t win at the polls the way Chávez did, cancelled gubernatorial elections that had been set for December last year (though they now appear to be on again). Maduro has convened an assembly to write a new constitution, supposedly with the objective of institutionalising the power of social movements, though it is unlikely to lessen the country’s polarisation.

Greg Grandin
London Review of Books
23 August 2012

Terms of Reference for Judicial Commission of Inquiry on the Marikana tragedy

Ladies and gentlemen of the media,

On the 17th of August I announced that I would appoint a commission of inquiry to establish the facts about what happened in Marikana where approximately 44 people were killed in about a week.

Today I hereby announce the Commissioners and the terms of reference of the Commission.

The Commission is appointed in terms of section 84(2) (f) of the Constitution of the Republic of South Africa, 1996.

It has been directed to investigate matters of public, national and international concern arising out of the events in Marikana which led to the deaths of approximately 44 people, the injury of more than 70 persons and the arrest of more than 250 people.

MEMBERS OF THE COMMISSION

The chairperson of the Commission shall be Judge Ian Farlam, retired Judge of the Supreme Court of Appeal.

He has served as a Judge in the Orange Free State Provincial Division, the Cape Provincial Division and the Supreme Court of Appeal.

Other members of the Commission are the following:

• Adv Bantubonke Tokota SC, who has acted as a Judge in the Eastern Cape Labour Court and Transvaal Provincial Division.
• Adv Pingla Hemraj SC. She has acted as a Judge in the High Courts of Durban, Pietermaritzburg, Port Elizabeth and Grahamstown.

THE TERMS OF REFERENCE

The commission will look into the following matters:

It will probe the conduct of Lonmin Plc, in particular the following:

• whether it exercised its best endeavours to resolve any disputes which may have arisen between Lonmin and its labour force on the one hand and generally among its labour force on the other;
• whether it responded appropriately to the threat and outbreak of violence which occurred at its premises;
• whether the company, by act or omission, created an environment which was conducive to the creation of tension, labour unrest, disunity among its employees or other harmful conduct;
• whether it employed sufficient safeguards and measures to ensure the safety of its employees and property and the prevention of the outbreak of violence between any parties;

The Commission will also examine Lonmin policies generally, including the procedure, practices and conduct relating to its employees and organised labour.

It will also investigate whether by act or omission, the company directly or indirectly caused loss of life or damage to persons or property.

Secondly, the Commission will probe the conduct of the South African Police Service, and will look at the following:

• the nature, extent and application of any standing orders, policy considerations, legislation or other instructions in dealing with the situation which gave rise to this incidents;
• the facts and circumstances which gave rise to the use of force and whether this was reasonable and justifiable in the particular circumstances;

 to examine the role played by SAPS through its respective units, individually and collectively in dealing with the incidents;
 whether by act or omission, it directly or indirectly caused loss of life or harm to persons or property.

Thirdly, the Commission will probe the conduct of the National Union of Mineworkers and the Association of Mineworkers and Construction Union, (AMCU), their members and officials.

The Commission will in ¬particular probe:

• whether the AMCU had exercised its best endeavours to resolve any disputes which may have arisen between itself and Lonmin or NUM or any other parties;
• the extent to which it exercised effective control over its membership and those persons allied to it, in ensuring that their conduct was lawful and did not endanger the lives and property of other persons and
• whether by act or omission it directly or indirectly caused loss of life or damage to persons or property.

Fourthly, the Commission will look into the conduct of the National Union of Mineworkers (NUM), its members and officials. It will in particular look into the following:

• whether the NUM had exercised its best endeavours to resolve any disputes which may have arisen between itself and Lonmin or AMCU or any other parties;
• the extent to which it exercised effective control over its membership and those persons allied to it in ensuring that their conduct was lawful and did not endanger the lives and property of other persons;
• whether by act or omission it directly or indirectly caused loss of life or damage to persons or property.

Fifthly, the Commission will look into the role played by the Department of Mineral Resources or any other  government department or agency in relation to the incidents and whether this was appropriate in the circumstances, and consistent with their duties and obligations according to law.

The Commission will also look into the conduct of individuals and loose groupings in fomenting and/or promoting a situation of conflict and confrontation which may have given rise to the tragic incidents, whether directly or indirectly.

The Commissions Act of 1947 shall apply to the Commission, subject to modifications and exemptions as may be specified by proclamation from time to time.

The terms of reference may be added to, varied or amended from time to time.

The Commission will submit interim reports and recommendations to the President each month prior to the final report being presented to the President.

The Commission shall complete its work within a period of four months and must submit its final report within a month of completing its work.

The Commission shall where appropriate, refer any matter for prosecution, further investigation or the convening of a separate inquiry to the appropriate law enforcement agency, government department or regulator, regarding the conduct of any person or persons.

The Commission will have the necessary powers, including the power to enter and search premises, secure the attendance of witnesses and compel the production of documents.

The terms of reference will be gazetted forthwith.

We urge all affected parties to cooperate with the Commission.

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