An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
I’ve always been a bit skeptical of commissions of inquiry, especially in the context of South Africa’s history. But, unusually, the possibilities for the Farlam Commission leave me pleasantly surprised, and reasonably optimistic.
During the Apartheid years prime ministers and state presidents often appointed judicial commissions of inquiry to help them manage difficult political situations and to buy time, in the hope that by the time the commission submitted its report, the (white) voters and the international critics of the regime would have moved on.
They also had a special knack for manipulating the outcome of the commission of inquiry by appointing judges loyal to the regime who would not ask too many difficult questions and, by limiting the terms of reference of the commission, thus prevent these commissions from uncovering facts that would embarrass the Apartheid government.
Perhaps those politicians had watched the episode of the hilarious BBC comedy series Yes, Minister! in which the permanent undersecretary, Sir Humphrey Appleby, teaches his bumbling minister, Jim Hacker, how to use commissions of inquiry to his own advantage to prevent embarrassment to the government:
Take an honorable retired judge, a doddering old fool, and put him in charge of the inquiry, with a sizable honorarium. Help him to arrive himself at the required conclusions. Feed him the appropriate facts and hint at a peerage. From there on, everything will work out as desired.
In 1978, in an effort to contain the fallout of a press conference where Judge Anton Mostert revealed that the government had financed The Citizen newspaper, then prime minister PW Botha appointed a judicial commission of inquiry into the whole affair and appointed Judge Roelof Erasmus as its chair. Erasmus, not generally known as a deep thinker, was widely perceived to be close to Botha.
Incidentally, Judge Erasmus was also famous for his ability to mangle the English language. He is alleged to have said of one witness: “He is a very well-travelled man – he has travelled all over the bulb”. Another witness was allegedly described as a very influential man because “he had a finger in every tart in town”.
The Erasmus Commission report was very critical of former prime minister John Vorster and Vorster, who had subsequently been appointed as state president, resigned his position. Connie Mulder, who had been narrowly defeated by PW Botha for the leadership of the National Party, was also conveniently forced to resign from the Cabinet, then from Parliament, and finally from the National Party, because of the findings of the Erasmus Commission.
In the early nineties, then-president FW de Klerk appointed Judge Louis Harms to head a commission of inquiry into the allegations made by Almond Nofomela and Dirk Coetzee (and published in the Weekly Mail and Vrye Weekblad newspapers) of the existence of police hit squads.
The subsequent inquiry turned into something of a farce. A parade of witnesses, some wearing ill-fitting disguises and testifying under false names, testified that they had no knowledge of Vlakplaas and of a hit squad operating within the police, and Judge Harms duly found that there was not sufficient evidence to prove the allegations of Nofomela and Coetzee. It was only after political pressure forced De Klerk to appoint Justice Richard Goldstone to investigate these claims further that the truth emerged.
Against this background, there might well be some skepticism in certain circles about the appointment of yet another judicial commission of inquiry by President Jacob Zuma, this time to investigate events surrounding the Marikana massacre.
Yet, despite my general misgivings about the manner in which presidents sometimes use (or misuse) judicial commissions of inquiry in order to avoid taking immediate responsibility for catastrophic events or scandals, I am impressed by the terms of reference of the commission of inquiry into the Marikana massacre, as well as the fact that Judge Ian Farlam will head the Commission.
Judge Farlam is a highly respected retired judge, who served for a long time on the Supreme Court of Appeal (SCA). Although judge Farlam cannot be described as young, he is no “doddering old fool”. He has vast experience, is highly intelligent and is very hardworking and efficient – as the impressive stream of reported judgments emanating from his pen attests.
It might well be that some union members might find fault with the fact that Judge Farlam, although progressive in outlook, has no Struggle record and is not closely associated with the liberation movement. However, this might well count in his favour, as he is not seen as being politically close to the president, a faction within the ANC or either of the unions whose activities will be probed by the commission.
The fact that President Jacob Zuma appointed him to head the commission of inquiry suggests that the presidency is alive to the fact that the inquiry must not only be fair and impartial, but must also be seen by reasonable South Africans to ensure that any findings made are not seen as a whitewash. One hopes that the Farlam Commission will do its work in an open and transparent manner and will conduct public hearings where all role players will get the chance to provide their version of events. The Commission should be alive to the words of US Supreme Court Justice Louis Brandeis, who famously said: “Sunlight is the best disinfectant”.
I was also pleasantly surprised by the Commission’s broad, yet suitably precise, terms of reference. The Commission will not only have to look into the specific events on the day of the massacre, but is required to look more broadly into the role played by Lonmin, NUM, AMCU, the department of mineral resources or any other government department or agency and the “conduct of individuals and loose groupings in fomenting and/or promoting a situation of conflict in this event”.
If one has to quibble about the terms of reference, it would be that there is no explicit mention in it of the need to look into the broader culture of violence and impunity within the South African Police Service (SAPS) and possible inadequacies in the training of members of the SAPS involved in situations of crowd control. Neither is there any explicit mention of the need to look into the question of whether the remilitarisation of the SAPS and the ever-belligerent statements by politicians encouraging members of the SAPS to shoot first and ask questions later, might have contributed to the manner in which the SAPS behaved on the day of the massacre.
Lastly, as with most commissions of inquiry, the big unanswered question is how President Zuma (and possibly the SAPS and the National Prosecuting Authority) will deal with the findings and recommendations of the Commission. Will the president implement relevant findings or will the recommendations be ignored?
It must also be remembered that a commission of inquiry is not a court of law and cannot find anyone guilty of any crime. However, its terms of reference authorises it to “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”.
If the Commission were to recommend criminal prosecution of anyone involved in the massacre, it would take extraordinary political leadership to ensure that the SAPS properly investigate such charges and that the National Prosecuting Authority (NPA) proceeds with prosecution if appropriate. Given the possible conflict that might arise if the Commission were to recommend the investigation of SAPS members by their colleagues, and given the politicisation of the NPA, it would be extraordinary indeed if such recommendations were actually implemented.BACK TO TOP