Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
18 August 2012

Some thoughts on the Marikana massacre

On Thursday at least 36 miners were killed by members of the South African Police Service (SAPS) in an ongoing labour dispute (apparently between rival Unions and between the Unions and management) at Lonmin’s Marikana mine. By the time Police opened fire on striking miners with automatic weapons, the dispute at the mine had already been dragging on for several days. Ten people (including two Police officers) had been killed before the massacre occurred on Thursday. This means that almost 50 people have been killed in the past few days in this dispute.

The Independent Police Investigative Directorate (IPID) has announced that it will investigate the killings and “will seek to establish if the police action  was proportional to the threat posed by the miners”. President Zuma has now also announced that he will appoint a Commission of Enquiry. Any investigation worth the time and effort will have to determine why the trouble started, why our government was so slow to respond appropriately to the crisis and why Police with automatic weapons were deployed to a volatile area and why they seemed so desperate to disperse the strikers.

But I am not sure that any investigation — no matter how thorough and impartial — will get to the bottom of these events and will provide us with some of the broader insights into why this happened and what it means for our country. This is because there are many lenses through which one could view the massacre and the events that led up to it and, depending through which ideological lenses one looked, one might well come to entirely different conclusions.

One might view the events through the eyes of a fearful, middle class, law and order, union basher and conclude that this was all the fault of the miners, who were armed with pangas and knives and threatened the lives of the Police Officers. On my Twitter timeline some people even suggested outrageously that the miners deserved to die and that they were taught a good lesson.

In my opinion this view is entirely without merit. First, it prejudges the issue. At this point we simply do not know for certain if the miners were indeed threatening the lives of the Police Officers when they were killed and if so, how serious this threat was. The eNCA report below suggests that the miners who were killed might have been fleeing from tear gas when they were gunned down.

But, second, even if this is not correct, the members of Police would seldom be legally entitled by either the common law or by section 49 of the Criminal Procedure Act to shoot indiscriminately into a crowd with their automatic weapons. As the Constitutional Court reminded us in the case of Ex Parte Minister of Safety and Security and Others v Walters: “[g]reater restriction on the use of lethal force may be one of the consequences of the establishment of a constitutional State which respects every person’s right to life”.

Police Officers are entitled to defend themselves and even to shoot and kill criminal suspects if they directly threaten the lives of anyone. However, a Police Officer may not shoot at anyone unless he or she believes and have reasonable grounds for believing that the suspects poses an immediate threat of serious bodily harm to anyone. Even then, as the Court stated in Walters, where force is necessary, only the least degree of force reasonably necessary to carry out the arrest or protect the lives of others may be used. The force used must be proportional to the threat posed.

In this case two questions will arise, namely: (i) was it reasonable for the Police to believe that their lives were in imminent danger and that they would be killed or seriously injured if they did not open fire; and (ii) did they use the minimum degree of force necessary to ward of the perceived threat. I would be surprised if a court were to find that the seemingly indiscriminate firing of automatic weapons into a crowd (who apparently was not armed with heavy weapons) by supposedly well trained Police Officers would ever constitute the minimum force necessary to ward of a perceived threat.

The situation would be different if the Police Officers had come under consistent fire from semi-automatic or automatic weapons from the crowd in which case they would have been entitled to use all reasonable force to defend themselves. Given that the crowd was not armed with heavy weapons, and given that 36 people were left dead by Police fire, I cannot see how one could say that the force used was reasonable or how it was proportionate to any danger posed by the miners.

I am not suggesting that the Police had no right to protect themselves against imminent attack. Neither am I saying that it will always be unlawful to shoot at protesters with live ammunition or even to kill a protestor in the process. But when 36 people are shot dead in a situation like this, it is difficult to conclude that the force use was reasonable in the circumstances. To hold otherwise would be to give the Police a blank cheque to shoot and kill as many citizens as they wish, if they can claim that they believed their lives were being threatened. Next stop Syria.

One might, of course, also view the events through a political lens. As Nic Borain has pointed out in a must read analysis, the events might well be viewed through the prism of Mangaung. There is militant and growing opposition to the hegemony of National Union of Mineworkers (Num) in certain sectors of the mining industry. Num – an important pillar of support inside Cosatu for Jacob Zuma’s re-election at Mangaung – has drifted towards representing white-collar workers. Now Num has successfully been portrayed as a sweetheart union, increasingly concerned with white-collar workers, and increasingly comfortably with the benefits that come from being romanced by management. Borain argues that the public and the press is likely to understand what happened yesterday through this political prism and concludes:

  • In this narrative Jacob Zuma will be portrayed as the villain, presiding over the gradual abandonment by the ANC of the most marginalised and vulnerable citizens. When political formations inevitably emerge to give voice to those disaffected groups, policemen armed for war will be ordered to use all necessary force to defend the support base of the incumbent political elite.
  • Expect anxiety about the breakdown of the political and social mechanisms that have traditionally allowed our society to negotiate the complicated disagreements and clashes of interest with which it is beset.
  • Finally, this incident is likely to be used against Jacob Zuma in the run-up to the political contest at Mangaung. It might not be strictly fair, but the narrative is compelling, and Zuma’s enemies and competitors will make everything they can of his vulnerability here.

There is yet another — perhaps related — dimension to the events, which have taken place at a time when the voices insisting on the need for a second transition and the need to speed up economic transformation are growing ever louder. In a recently published book, Lost in Transformation, Prof Sampie Terreblanche presents a scathing analysis of the way in which big business “bought off” the ANC during the first transition and how cosy arrangements between the new elite and the apartheid era big business have protected big business from paying its apartheid debt. One may well see these events as an illustration of what happens when the government of the day gets into bed with big business and when it abandons the most vulnerable and needy who might have voted for it in the past, all for short term commercial gain by the political elites associated with or inside the governing party.

In 1973 Conservative Party Prime Minister Edward Heath said about Lonmin that: “It is the unpleasant and unacceptable face of capitalism.” Questions will be asked about the behaviour of the Lonmin management and what it says about the attitude of big business in general to the plight of underpaid miners. Questions will also be asked about why the Police seemed to be more interested in protecting Lonmin’s profits than the lives of South African citizens. Does Lonmin donate money to any of the political parties in South Africa and if so to which ones and how much? Is Sampie Terreblanche correct when he asserts that apartheid era big business struck a deal with the governing party (a deal done far away from the limelight and outside of the constitutional negotiations) and that this agreement is contributing to the growing gap in income and opportunities between the “haves and have nots” in South Africa?

I fear that any enquiry will not be mandated (and will not have the skills) to ask and answer broader questions about how our society is structured and why so many miners, who are often paid as little as R4000 per month to do highly dangerous work, felt that neither the governing party nor the Union affiliated to it, truly represented their interests. Too many people with too much power probably have a vested interest in the status quo for these questions to be interrogated, let alone to have them answered.

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