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President Jacob Zuma on implementation of Farlam Commission recommendations

12 Dec 2016

Update by President Zuma on steps taken by departments to implement Farlam Commission recommendations

On 26 August 2012, I appointed a Commission of Inquiry to investigate matters of public, national and international concern arising out of the tragic incidents at the Lonmin Mine in Marikana, Rustenburg in the North West province, during 11 to 16 August 2012.

About 44 people lost their lives and many others were injured. Retired Judge Ian Farlam, assisted by Advocates PD Hemraj SC and BR Tokota SC, chaired the Commission.

I released the Commission’s report to the public in June 2015.

The progress to date on recommendations made by the Commission is the following:

The Department of Mineral Resources

The report from the inspection carried out on 25 June 2015 indicated that the company Lonmin had completed the conversion of all their hostels, namely 776 family units and 1908 single apartments by December 2014, as per the Mining Charter requirements.  

Prior to the Commission’s findings, Lonmin was directed to amend their Social and Labour Plan and the company submitted a revised Plan during October 2014, in which they have addressed the housing needs by committing to build Infill apartments, which apartments would replace the 5500 houses committed to, as the majority of employees indicated that they are interested in rental accommodation.

However, the revised SLP is broad and without clear timelines on building houses and Lonmin has been directed, on 23 September 2016, to revise this plan to address the living and housing conditions of mineworkers.

An inspection by the Department of Mineral Resources (DMR) Acting Director-General and delegation on 7 October 2016 revealed that Phase one at the Karee Housing Estate was completed and comprises 100 family units and 225 bachelor units built by Lonmin.

These apartments are not occupied yet, as final touches are being done and will be allocated by January 2017. The next phase is in progress and should be finalized by the end of 2017.

However, progress is slow, compelling the department to contemplate sterner measures. The Department of Mineral Resources intends to take further action.

A compliant housing plan will be requested from Lonmin, failing which immediate action in the form of suspension or cancellation of the mining right will be taken.     

Audit inspections many be conducted at the mine, on a bi-monthly basis to ensure compliance, and administrative action taken where necessary.

The department will be finalising a regulation compelling mining companies to immediately publicise their Social and Labour Plans, as well as their annual compliance reports and implementation plans, as well as evidence of holding meetings with stakeholders at least quarterly.

The department will continue to engage with Lonmin as part of monitoring progress and that capacity to this effect is being strengthened.

The Department of Labour

The current labour laws seek to address the historical adversarial nature of industrial relations in the country, which is unfortunately still persisting.

A number of interventions have been undertaken following the release of the Farlam Commission report.

The provision of financial resources and the training of shop stewards have been undertaken, to deal with glaring issues of their ineffectiveness in providing information to labour, evidenced by among others the proliferation of unprocedural industrial action. The Department of Labour also runs Workers Colleges to provide training to union leaders on various issues including dispute resolution procedures in line with the law.

The Labour Relations Indaba, which seeks to address the instances and the duration of strikes, in the process addressing employer/employee relations, seems to be making a positive impact.

Progress has been made, under the auspices of NEDLAC, to address strike related intimidation, usually arising when a minority union seeks to compel the majority to join the strike. Other initiatives include the Multi-stakeholder Rustenburg Peace Accord in the Platinum Belt.

Consultations have been made with the SAPS in relation to the NEDLAC discussions and will continue.

Furthermore, Amendments to section 150 of the Labour Relations Act gives the Commission for Conciliation, Mediation and Arbitration (CCMA) the right to intervene in industrial actions in instances of violence and where the public interest is negatively affected.

The CCMA has been given more latitude to assist parties to conclude picket rules and may even “impose” picket rules if parties fail to agree. This arose out of the tendency to disregard picket rules.

The recently amended Labour Relations Act, the Basic Conditions of Employment Act and the Employment Equity address the question of wage disparities of particularly rock drillers and other employees. The principle of equal pay for work of equal value is today part of the law.

In addition, the law now prohibits Labour Brokers from employing workers on terms and conditions that are less favourable than those applicable to the employees of the client to whom the Labour Broker employee renders services.

With regards to addressing wage disparities in the same sector, in 2012/13, the Ministers of Labour (Ms Mildred Oliphant) and Minister in The Presidency for Women (Ms Susan Shabangu) persuaded the platinum sector companies to test centralised bargaining as a model.

For the first time in 2013, collective bargaining in the platinum sector was centralised, meaning all platinum sector companies negotiated centrally. The elements of unification of working conditions and wages’ level emerged in the three-year platinum sector wage agreement concluded in 2014.

Regarding disparities within and across sectors, Deputy President Cyril Ramaphosa is leading the National Minimum Wage in South Africa process.

Regarding long protracted strikes, the recently amended Labour Relations Act empowers the CCMA to intervene if a strike threatens the national interest and/or if it carries the risk of becoming protracted, with or without the consent of the parties in dispute, as was the case in the past. The Deputy President also leads stakeholder engagements under the auspices of NEDLAC on how to prevent protracted strikes.

On the issue of the wage gap between the executives and ordinary workers, the Amended Labour Law strengthens collective bargaining as the platform through which this matter can be dealt with.

On the majoritarianism principle which posits that the majority union set the rules and can exclude other players if it so chooses by setting high entry requirements, the recently Amended Labour Law provides recourse for a union that feels unfairly excluded by the majority union. They can approach the CCMA to hear their case.

The protocol on majoritarianism has been developed by the CCMA but requires to be tested during strike action where there is a dispute around representivity. Such has not occurred as yet.

South African Police Service

The progress on the implementation of the recommendations A to G, Chapter 25 of the Marikana Report is as follows:

The Commission recommended with regard to Public Order Policing that a panel be established to perform the tasks set out in paragraphs 8, 9 and 10 of the Farlam commission report.

The Panel and the Ministerial Transformation Task team were set up and are fully operational. Interim recommendations are currently being drafted by the Panel of Experts for the attention of the Minister of Police with regard to Public Order Policing reforms.

With regards to the recommendation on the control over operational decisions, Standing Order 262 was repealed and was replaced with National Instruction 4 of 2014, which addressed the control over operational decisions within SAPS, as outlined by the Farlam Commission of Inquiry Final Report.

Regarding the recommendation that the operational decisions on police operations must be made by an officer with overall command, relevant training skills and experience in Public Oder Policing and that the Members of the Executive, in particular the Minister of Police should only provide policy guidance, the following has been done by the police service;

Police Equipment

Interim recommendations on police equipment are currently being drafted by the Panel of Experts. The SAPS has also procured equipment as required by the Farlam Commission of Inquiry Final Report, which mitigates the challenge experienced during the Marikana tragedy.

Those challenges included the following as mentioned in the report:

1) All radio communications should be recorded and the recordings should be preserved. Plans for Public Order Policing operations should identify the means of communication which SAPS members will use to communicate with each other.
2) A protocol should be developed and implemented for communication in large operations including alternative mechanisms where the available radio system is such that it will not provide adequate means of communication.
3) The SAPS should review the adequacy of the training of the members who use specialised equipment, such as water cannons and video equipment,
and ensure that all members who may use such equipment are adequately trained to do so.
4) All SAPS helicopters should be equipped with functional video cameras.
5) The SAPS should review the procurement, servicing and training processes which have had the result that expensive equipment purchased by the SAPS cannot be used, either adequately or at all.

With regards to First Aid, the Panel of Experts has extensively reviewed the First Aid requirements and the recommendations will be made to the Police Minister.
With regards to accountability, a Board of Inquiry was established chaired by Judge Claasen, to look into the fitness to hold office of Commissioner Riah Phiyega. The Commission has concluded its business and will present its report to the President.

Regarding the compensation for the Marikana victims, government is ready to pay. The SAPS has instructed its attorneys to make offers of payments in full settlement of claims for the claims where quantification were complete and are not under criminal investigation.

These quantified claims that can be carried forward include:

  • The majority of the loss of support claims in favour of the deceased.
  • The 275 unlawful arrest and detention claims are quantified, complete and ready for settlement. Only one of the claimants has charges pending, and the outcome is still awaited.

Personal injury claims - One action comprising personal injury claims in respect of 275 individuals and 81 separate actions relating to individual personal injury claims. The personal injury claims are still delayed by the fact that the Plaintiff attorney is still considering to agree on one set of medical experts, which will be efficient both for the process and with regard to costs.

With regards to healing, in August, 12 2015, North West Premier Mr Supra Mahumapelo established the Marikana Reconciliation, Healing and Renewal Committee to promote healing, cohesion and lasting peace among the communities in Marikana.

On 30 June 2014, the North West provincial government set aside over R460 million for housing projects in the platinum mining area of Marikana, as part of measures geared towards long-term stability in the country's mining industry.

The provincial government, in partnership with Lonmin committed to building 2 000 housing units over a period of three years.
On January, 6 2016 Premier Mahumapelo handed over two houses to Piet Stompie Tlou and Dorah Diremela on behalf of President Jacob Zuma.

Human Settlements Minister Lindiwe Sisulu handed over a R700 million Housing Project in Marikana, indicating that the Marikana Housing Project will yield 2 600 units upon completion. At that time, 544 housing units had been completed.

The Department of Justice and Correctional Services

On the part that certain matters and cases be referred to the Directorate of Public Prosecutions in the North West Province for further investigation and to determine whether there is a basis for prosecution, warning statements have been obtained from senior members of SAPS who were involved in the operation.

A criminal case was opened against a Major-General in the SAPS for allegedly defeating the ends of justice. He is accused of having failed to exercise command and control at scene 2 and belatedly submitted his own firearm for investigation by the ballistic experts, and that the paramedics under his protection were diverted to scene 2 instead of giving medical attention at scene 1.

A case was opened against a Brigadier for allegedly defeating the ends of justice by failing to secure recordings of the extra-ordinary meeting of SAPS management (January 2016).

An attempted murder case has been opened for some police officers for the miners who were hospitalised with gunshot wounds on the 13th August 2012, as per the directive from NPA).

The Independent Police Investigative Directorate (IPID) - recommended prosecutions of certain SAPS members for the offences of murder, attempted murder, defeating and/or obstructing the ends of justice, contravention of Section 33 (3) of the Independent Police Investigative Directorate Act 1 of 2011 (IPID Act), contravention of Section 28 read with Section 29 of the said Act, and contravention of Section 6 (2) of the Commissions Act 8 of 1947 by giving false testimony.

Investigations found a Major General who was responsible for overall command of the SAPS operation at Marikana, to have been remiss in his conduct when dealing with the incident of 13 August 2012, which led to the deaths of two police officers, namely, Warrant Officer Lepaaku and Warrant Officer Monene, as well as three strikers, Mr Mati, Mr Sokhanyile and Mr Jokanisi.

He also allegedly ignored the advice of experienced Public Order Police officers on dealing with the crowd control situation and contravened the SAPS Standing Order #262 relating to crowd control.

The officer faces four counts of murder for the deaths of two police officers and two of the strikers and six counts of attempted murder in respect of the five injured miners and one police officer.

He also faces charges of defeating and/or obstructing the ends of justice, as well as contravention of section 6 (2) of the Commissions Act by falsely testifying at the Farlam Commission and denying his role in ordering the police to fire teargas at the strikers.

A Brigadier heading the provincial detectives unit, another Brigadier who was in charge of detectives at the detention centre and a Major have been charged for defeating the ends of justice by concealing a death in police custody.

A Colonel, Warrant Officer and a Constable have all been charged for the murder of Mr Sokhanyile.

A recommendation has been made that the Colonel should further be charged with defeating and/or obstructing the ends of justice and contravention of 6(2) of the Commissions Act for falsely testifying at the Farlam Commission about Mr Sokhanyile’s death.

With regards to death from the delay in providing medical attention, reports indicated that a Major-General diverted medical personnel for the injured strikers at Scene 1. The Commission recommended investigations, which are still not yet concluded.

Forensic, ballistic and other evidence, including the authentication of incident footage are still outstanding. Also, indications are that the police might have tampered with the crime scene.

Lastly, charges for contravening Section 6(2) of the Commission Act, Act no 8 of 1947 for misleading the Commission are also under consideration. The matter has been handed over to the National Prosecuting.

Dr Bongani Ngqulunga
Cell: 082 308 9373

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