After Scene 1, Brigadier Calitz stopped at the dry river bed to re-organise the operation. He then proceeded in a northerly direction to a position some one hundred and fifty metres north of Koppie 3 to supervise the arrest of strikers fleeing in that direction. At the same time, the NIU under Colonel Modiba approached Koppie 3 from the north east, the TRT under Captain Kidd approached Koppie 3 from the south west and Major General Naidoo with the K9 and other units approached the Koppie from the south. This led to the position where three separate units converged on Koppie 3 without informing either Brigadier Calitz or the JOC.
There was shooting from various members of each of these units in the direction of the koppie where the strikers had gathered. This resulted in 17 strikers being killed. There were 14 bodies found at Scene 2 and three strikers who were wounded subsequently died in hospital. Ten of them were killed in what can be described as a crevice in a rocky area inside the koppie where they appear to have sought refuge during the operation.
Brigadier Calitz has been criticised by the Evidence Leaders for failing to issue any warning to the strikers at the stage when they were surrounded in koppie 3. They argue that those strikers who wished to surrender peacefully were not given an opportunity to do so before steps were taken to disperse them which might include the use of force. Sections 9(2) (a) and (b) of the Regulation of Gatherings Act 205 of 1993 apply. The Commission agrees with this submission.
It is clear from the evidence that the overall commander Major General Mpembe had absolutely no command and control of Scene 2.
These are extracts from Chapter 12 of the Commission of Enquiry report on the violent confrontation between the South African police and striking workers at Lonmin’s Marikana mine in 2012. Long awaited, the Commission’s report has been extensively criticized for exonerating prominent politicians, passing too lightly over evident failings by Lonmin’s senior management and for failing to find anyone directly culpable for the violent deaths of 44 people as the Marikana tragedy unfolded between August 9th and August 16th.
Most reactions to the report have been shaped around particular aspects of this complex web of labour relations, trade union rivalries, police competence and political allegiances. Marikana unravelled against a broad canvas of South Africa’s history and circumstances: migrant labour; miners working deep underground for unconscionable pay; widening inequality. And Marikana was the worst police shooting of its kind since the Sharpville killings of 1960, making it a symbolic event that will punctuate this country’s historical narrative. Given that the main report is 565 pages of painstaking legalese, it’s not surprising that commentaries have homed in on headline issues. Those seeking proven culpabilities have been disappointed; this has been particularly distressing for the families of those killed.
But there’s another way of reading the Marikana Commission’s report. This is from beginning to end, like a screenplay framed by legal conventions of precedent and evidence and bound by specific rules of logic. This is particularly apt here because of the forensic value of the film archive from these eight days, and because the Commission’s report has been anticipated by Rehad Desai’s extraordinary documentary Miners Shot Down, now freely available online.
Read in this way, the report has two significant outcomes.
First, and because of the peculiar logic and emotions of legal expression, it prevents Marikana being bracketed off as an unfortunate incident that is now over. This is because the unfolding pages of detail reveal a police service that is comprehensively incompetent, armed with military assault weapons that it is ready to use and is unable to carry out public order policing. Given South Africa’s very high levels of unemployment and widening inequality, Marikana could become a syndrome. Understanding this is the first move towards mitigating future emergencies, by understanding what Hannah Ardendt called the “instrumentality” of violence. As always, such understanding is a necessary condition for prevention.
Second, and to a far greater extent than has yet been acknowledged in most media reports, the Commission has laid the ground for the future prosecution of senior police officers for their direct involvement in unlawful killings. A commission of inquiry cannot double up as law court, but it can establish a prima facie basis for criminal liability and refer the file to the public prosecutor. And this the Marikana Commission has indeed done.
How does the legalese of the Commission report play out as a parallel narrative to Desai’s documentary?
Firstly, both depend on the same film archive. The forcefulness of Miners Shot Down lies in its extensive use of police and journalists’ film sequences and this same material is the bedrock of the Commission’s evidence.
Secondly, where the film compels its viewer by means of its pace, authenticity and narrative voice-over, the Commission report slows everything down, testing the detail, probing the gaps and diverting into legally-important side issues. The documentary film runs for 53 tightly-edited minutes. The Commission sat, in public, for 300 days and produced 39 719 pages of evidence.
This slow time of the Commission’s public work is augmented by a form of emotional displacement. There’s plenty of described emotion, of course, in the submissions of the advocates leading evidence for the families of those who were killed. But the only time that the Commission itself seems seriously agitated is when it comments on the attempts by the police to obfuscate, mislead and – the Commission implies – actively conceal culpability; actions that disrespect the standing of the Commission and its work. In contrast – and appropriately – the report relies on the cold, analytic language of the law when it describes and analyses the instrumentality of violence. Here’s a passage that demonstrates this. It comes from Chapter 11, which deals with the events on Thursday 16 August, up to the first set of killings at “Scene 1”, and is part of an attempt to establish the intentions of miners who had been encircled by armed police, and whether the police were justified in using lethal force in self-defence:
The evidence indicates that R5 bullets tend to disintegrate when entering the body of a victim. This is what happened at Marikana. As a result it is not possible on the ballistic evidence to connect any member who shot at Marikana with any person who died. In the case of certain shooters there is prima facie evidence that the members concerned may well have been guilty of attempted murder but it cannot be said that any shooter is guilty of murder because it cannot be shown which of the shooters actually killed anyone. In the case of those shooters who exceeded the bounds of self- or private defence, the most they can be convicted of is attempted murder.
Expressed in the parallel genre of the documentary film, the Commission is saying that this group of miners, armed with sticks, spears and – possibly – one or two guns, was shot to death by several hundred rounds of high velocity bullets intended for military combat. These bullets are designed to break up inside the victim’s body causing the maximum possible damage to tissue and organs. The evidence indicates that this police action went well beyond justifiable self-defence but, because the bullets have disintegrated, forensic evidence cannot connect a specific victim to an identified shooter, making conviction impossible. By using the cold language of the law, the Commission teases out the mechanics – the instrumentality – of this incidence of violence, making it all the more stark and horrifying.
The combination of exhaustive detail, slowed down action and the emotional displacement of legal forms of expression serves to present Marikana both as a specific set of events over a defined time period and at a particular place, and also as a form of violent confrontation that could happen again, in a different context, anywhere. For example, there are increasing occurrences of township protests over persistent inadequacies in basic service provision, some of which have had a violent edge. The Commission has shown that, at the least, Marikana was the result of leadership failures on the ground, inappropriate public order policing strategies and the deployment of armaments designed for lethal military combat. What could happen if similar tactics were to be used elsewhere, anywhere? Revealing the detailed instrumentality of the Marikana killings points to ways of preventing future atrocities.
And what of the possibilities for future prosecutions for the Marikana killings? While the evidence may be missing at Scene 1, this is not necessarily the case elsewhere, and initial media reports have passed over the Commission’s list of files that will be passed to the Public Prosecutor to decide whether charges should be laid. These files include the events at Scene 2 later in the day on August 16th, and which are set out in detail in Chapter 12 of the report.
Scene 2 is the area a small way north of the first confrontation, to which surviving miners retreated after the first round of killings with the R5 assault rifles. The Commission dissects the comprehensive confusion of the police strategy and the lack of any coordination and control by Major General Mpembe as the officer in command. Several people lost their lives in this mêlée but the most controversial claim – and a key question raised by Rehad Desai in Miners Shot Down, is whether the ten miners who were killed while hiding in a crevasse in Koppie 3 were shot by the police in self defence or were, in effect, executed. Here, the Commission must be left to speak for itself:
The Evidence Leaders criticised Major General Naidoo for having participated in a chaotic free for all which cost sixteen people their lives without exercising any command and control and without taking any steps to stop the shooting and isolate the problems. We agree with these criticisms….
Apart from the evidence of a reconstruction of the scene by Mr De Rover, the South African Police Service provided no details of what happened with regard to the deaths of most of the deceased at Scene 2. Where it does provide evidence pertaining to the deaths of some of the deceased, their versions do not, in the Commission’s view, bear scrutiny when weighed up against the objective evidence…
Major General Naidoo is criticised for his failure to exercise control at Scene 2. It is submitted by the evidence leaders that as most senior officer at Scene 2, he did nothing to stop the firing of two hundred and ninety five rounds of ammunition at the strikers in the koppie. He failed to ascertain what the problems were and in so doing, completely failed to exercise any command and control at the scene. The Commission agrees….
The Evidence Leaders point out that Major General Naidoo’s version of the shooting in self-defence is contradicted by the statements of the occupants of Papa 11, namely, Warrant Officer Mamabolo and Constables Dzivhani, Zondi, Khosa, Malesa, Mathabha and Mokoyama. The version in these statements is to the effect that Major General Naidoo and other police officers were seen emerging on the top of the boulders from the direction from where the firing came. Warrant Officer Mamabolo says that he shouted at them to cease fire but the shooting continued. None of them noticed any shooting by the strikers. There is also no corroboration for Major General Naidoo’s version from Sergeant Harmse who was very close to him.
They also submit that his description in oral evidence of the shooting is different from the versions in his statement. They attribute this change in version to the belated finding by the ballistics expert that a cartridge case linked to Major General Naidoo’s firearm was found on top of the rocks, because at the time of making his statements he was not aware of this ballistics evidence. They also criticise that he only belatedly submitted his own firearm for investigation by the ballistics experts.
The Commission is satisfied that the anomalies in his evidence as well as the fact that his version is contradicted by other evidence, warrant the circumstances surrounding the shooting to be referred to the Director of Public Prosecution for further investigation.
It’s difficult to see how these statements can be dismissed as a cover-up. The question should rather be: what action will the Director of Public Prosecution take?
Rehad Desai (2014) Miners Shot Down: https://www.youtube.com/watch?v=fTSHk2LTdtw
Marikana Commission of Enquiry report, released June 2015: