Even if you have no hidden agenda, it is quite a feat to accurately and comprehensively summarise an intricate report of a commission of inquiry that extended over a few years.
So it is perhaps no surprise that more than a month after President Jacob Zuma read out his short summarised version of the 646-page Farlam report on the Marikana massacre, new revelations continue to emerge.
But had retired Judge Ian Farlam been mandated to deliver the findings himself, as would be the case in a court judgment, we may have got off to a slightly less contested start. Gaps and misinterpretations have arisen from Zuma’s summation, thus aggravating understandable anger, especially that the executive had been let off the hook.
One of the crucial gems buried in the fine print is the commission’s finding that the “McCann principle” is part of our law, despite the SA Police Service’s contention that it is not. The McCann principle, according to the commission, “requires the planners of policing operations, where force may possibly be used, to plan and command the operations in such a way as to minimise the risk that lethal force will be used.”
It is this critical principle that the commission found had “been breached” due to the “defective nature” of the plan that was carried out and which led to the deaths of 34 miners on August 16 three years ago. This plan was prepared “in haste” without the benefit of input from the Public Order Police unit. It was not approved by the full Joint Operational Committee and not subjected to a challenge process. “It carried with it a substantially heightened risk of bloodshed,” the commission found.
The upshot of this finding, according to Accountability Now director Paul Hoffman who shone a light on its significance and other fundamental aspects in an article last week, is that a breach of the McCann principle is a sufficient basis for civil liability. In effect, the state would have no valid defence “to the merits of claims for damages arising out of the killing or injuring of miners in Marikana”.
Hoffman advises the state to accept civil liability and tender reasonable damages to victims without delay.
If not, we will be faced with protracted and costly legal battles and unacceptable extended pain and suffering for the families and victims of those killed and injured at Marikana.
Zuma described events at Marikana as a “horrendous tragedy”. Yet he has come under fire for a sluggish start, with apparent inaction so far over the recommendations that he himself outlined in his June 25 summary. Besides dealing with these, he also needs to act on his blindspots. He should do the right thing by accepting civil liability on behalf of the state and fast-track the process of compensating the hundreds of victims who are currently agonisingly preparing civil law suits against the state.
Another blindspot is the fact that the commission had not cleared the executive entirely. The commission had an open finding regarding police minister Nathi Mthethwa and was unable to find positively in his favour due to lack of evidence. The report points to a mysteriously missing memory stick and Police Commissioner Riah Phiyega being “distinctly evasive and unhelpful” during attempts to get her to answer questions about the role Mthethwa played .
These revelations, which arise from a close reading of the report, are likely to be welcomed by the commissioners, who have been dodging bullets of a different kind in the past month. Unsatisfying as the outcome may be, their task was to delve, not to be arbitrators or prosecutors. It is up to Zuma to urgently pick up where they left off in the interests of the families - and the public.
This article first appeared in Media 24 print and online titles. City Press