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
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