Marikana Commission: Riah Phiyega's impossibly hazy memory

National Police Commissioner Riah Phiyega appeared at the Marikana Commission on Wednesday to clarify questions on how decisions were made from the top. Instead, she further tarnished the SAPS position in the inquiry, painting top officers as uninterested in operational matters and effectively laying the blame at the feet of ground commanders. By GREG NICOLSON.

Riah Phiyega listened to chairman Ian Farlam. “You swear that the further evidence you give to this Commission will be the truth, the whole truth and nothing but the truth?” In a floral skirt, teal blouse and blazer, with matching pearl earrings and necklace, Phiyega agreed.

The national police commissioner appeared in front of the Marikana Commission again on Wednesday for the last time before the inquiry wraps up. As the top cop in August 2012, when 34 mineworkers were killed in a single day and 10 people were killed in the preceding week, Phiyega's testimony is crucial to the Commission's goal of pursuing truth and restorative justice. She is ultimately responsible for the police operations. She's also the link between alleged political influence and SAPS actions.

On Wednesday, however, Phiyega stonewalled Farlam who for most of her appearance quizzed her on issues that either hadn't been resolved or had come to light since Phiyega's previous lengthy appearance. To most questions, she simply said she doesn't remember what happened over two years ago. In her silence, she painted a picture of a leader unwilling to cooperate with the inquiry, senior police officers who failed to perform their duties, and an SAPS that has tried to mislead the Commission.

Farlam wanted to talk about the extraordinary meeting of the police management forum on 15 August when top provincial and national officers discussed Marikana. It was in this meeting when the decision was taken to implement the disperse, disarm and arrest plan the next day, which ultimately led to the massacre. Incredibly, the police didn't hand over any evidence of the meeting nor mention it when they made their submissions to the Commission. It only came out later.

“You're now seriously stating we would be in error if we find SAPS didn't cooperate [with the Commission]?” Farlam put to Phiyega. Only after a third party pointed them towards the meeting did the Commission find out about it. There was nothing untoward, she claimed, and when requested, they admitted the meeting took place. “It certainly appeared to us to be a secret when it came out at a later stage,” said Farlam.

Phiyega agreed the Marikana strike was the most challenging public policing situation during the democratic era, but she could not remember details of the meeting which approved the plan to tackle it. In the hour-long session on 15 August 2012, North West Provincial Commissioner Zukiswa Mbombo made a presentation for 10 to 15 minutes and the SAPS from different provinces also discussed sharing the necessary resources for the operation. Beyond that, Phiyega said she didn’t have a “photographic memory” and could not remember “pedantic details” about what happened in the meeting.

“It's very important for us to know why the decision was taken to proceed on Thursday morning,” said Farlam. “It's important for us to find out was exactly was said.” Phiyega didn't help, but she was clear about what didn't happen in the meeting. While most of the country's provincial police commissioners were present, some of whom come from policing backgrounds, Phiyega said no specific details of the plan to confront the mineworkers were discussed before it was approved.

“Are you seriously suggesting that the meeting endorsed the proposal without knowing what the details of the response were?” asked Farlam. Phiyega's response was that police know how to conduct disarming operations and they're are essentially the same. She said this despite two officers being hacked to death when a disarming operation went wrong on 13 August. Incredibly, reflecting on the meeting on 15 August, Phiyega could not recall any of the country's top police officers raising the fear of further bloodshed while they decided to approve the plan.

While shocking, it also seems extremely unlikely given the volatile situation in Marikana at the time and widely publicised problems with policing protests. Yet if Phiyega acknowledged they knew and spoke about the dangers, the next question is, so why did they implement the plan, or why this plan, and why wasn't greater precaution taken?

Farlam, however, seemed shocked. “The fact that the proposal was endorsed by the meeting, the fact that the people there all agreed to make resources available as required, surely means that they cannot evade responsibility and say, 'We knew about the plan. Sure go ahead. We'll make resources available. And if it goes wrong because it's managed badly or defective planning, that's nothing to do with us.' Surely there comes a time when responsibility must rest with those people in that meeting as well.”

He was equally surprised that Phiyega had no recollection of a conversation with SAPS expert witness Cees de Rover about political influence on police decisions at Marikana. “My questions have been straightforward on the issue; the answers have not been,” De Rover said last week, claiming Phiyega was evasive. Farlam said surely she would remember being asked if political pressure played a part in the death of 34 people in a day. Phiyega said she couldn't remember and refused to engage the chairman's questions.

Already evasive and difficult, the national police commissioner's credibility was shot when Farlam brought up the review panel. When Phiyega had appeared at the Commission before, she was asked whether the SAPS had established a review on certain issues related broadly to Marikana and Phiyega said she had not. But when a police hard drive was analysed, it emerged a review panel had been established and Phiyega's signature was on the call up instructions. No evidence the panel existed was voluntary handed to the Commission by the police despite their commitment to do so with all relevant information at the start of the inquiry.

It is impossible to look at Phiyega's cross-examination on Wednesday and believe she's being honest.

While she plays the amnesia card and tries to distance the country's top officers from the details of the plan to confront the miners, she opens up herself and other officers to allegations of incompetence and dereliction of duty. But by doing so she shifts the greater responsibility to the commanders on the ground who she says the SAPS relied on.

Phiyega is also putting a wall between the police and the politicians who got involved in Marikana. Last week, De Rover, a policing expert who has worked in over 60 countries, said he couldn't fathom a situation where politicians were not involved.

If there was any doubt that Phiyega was untruthful, Advocate Dali Mpofu showed her the transcript between the SAPS's Mbombo and Lonmin's Bernard Mokoena on 14 August 2012. In relation to the police ending the strike, the two speak of Cyril Ramaphosa, Julius Malema, the pair's relationship in the ANC disciplinary committee, problems with Malema potentially ending the crisis, and nationalisation of the mines. Asked about the political nature of the discussion and whether it is legal for the SAPS to use policing operations to influence party politics, Phiyega responded, “What's political about this?”

“They could have used different words, but what I hear is people who are interested in ending a protest.”

Let us say it once more: It is impossible to look at Phiyega's cross-examination on Wednesday and believe she's being honest. DM

Source: Daily Maverick

Limpopo's fierytale: the people vs. the police, Armageddon style

On the day Robert McBride secured a nod in Parliament to lead police watchdog Ipid – and while more denials were heard by the Farlam Commission – news broke that officers in Limpopo shot dead two more protesters in a chaotic stand-off. This brings to eight the number of protesters killed this month alone. ALEX ELISEEV asks what it will take to make the police realise that its relationship with communities across South Africa is in a fiery tailspin.

The numbers are as mad as the story is startling: One satellite police station in the Relela village outside of Tzaneen, Limpopo. Twenty officers defending the outpost. Between 1,500 and 2,000 protesters “attacking” the station with stones and petrol bombs. Some 2,050 rounds of rubber bullets fired before the switch-over to live ammunition. Fifteen officers injured in the battle. Three of them left in a critical condition. Nineteen police cars damaged or destroyed. Two protesters shot and killed during the clash.

The images flooding your mind right now are probably closer to what South African soldiers endured in the Central African Republic rather than what police officers should be dealing with in a war-free, democratic country.

The question that pierces through all those figures is: how angry does a community have to be – what kind of hatred must be festering – for hundreds of people to come together and overrun, by force, their local police station? To try to obliterate the place that houses men and women who’ve taken an oath to protect you. We know too well the evil that lurks inside a mob, but this was an outright storming of a sacred castle.

Unlike with the Marikana bloodbath, there were probably few or no cameras filming the latest clash. The details still have to be investigated by the same organisation that Robert McBride – one of the country’s most controversial policemen – will soon be leading. But even on the police’s own version, what happened in Relela does not belong in post-Apartheid South Africa.

Granted, what happened there was not a routine service delivery protest over water or electricity that spiralled out of control. The circumstances were different. A local woman was killed and mutilated and the community wanted those responsible to be arrested. Police took a couple of suspects in for questioning but when they were released, their neighbours went on the rampage, burning down their homes. When the police intervened, a teenage boy was shot and killed. His death, in turn, became the magnet that drew the crowd to the Relela police station on Tuesday night.

Limpopo police claim that anyone in the same situation (the situation the officers were in) would have done the exact same thing. The crowd had broken through into the station’s courtyard and were out for revenge. Judging by the damage, there’s every reason to believe that the officers may have been genuinely terrified and thought their lives were in danger. They probably were. Those attacking the station were committing a criminal act. There’s also evidence that the police officers did their best to push back the mob, using thousands of rounds of rubber bullets.

But the issues here run much deeper, the main one being: how did it get to this? How did we reach a crisis which the police, and police minister Nathi Mthethwa, think they can talk their way out of? (Which, of course, they can’t).

Too much blood has been spilled. Too much horror witnessed. The list has been mentioned over and over again: Marikana, Tatane, Macia, Mothutlung, Durban Deep… For way too many people the police have become the enemy.

The cold, hard truth is that the level of violence we are seeing now is the consequence of earlier decisions. Decisions which ranged from bad to catastrophic. Remember the “shoot to kill!” and “maximum force” rhetoric spewing out of Bheki Cele’s mouth (which went viral). Or the decision by Jackie Selebi to reconfigure the Public Order Policing, leaving it in shambles. And, as a show of force, the re-introduction of military ranks.

But worst of all have been the decisions, one after the next, to send in civilians (political appointments) to lead the police. The latest, by President Jacob Zuma, was Riah Phiyega, who has so far had a disastrous run (some of it was not her fault, and some of it was).

The Institute for Security Studies – the think tank which the police loves to ignore – says all indicators show that police brutality is rising, public trust in the service is deteriorating and there doesn’t seem to be any real plan to reverse either of these trends.

Asked whether we can expect more bloodshed, the ISS’s Gareth Newham says: “I hope not. But we will continue to see growing anger and discontent and a breakdown of the relationship.”

He adds: “Warnings were ignored and now we’re seeing the consequences.”

The reality on the ground is complex. The balance between crushing violent crime or policing tense protests while respecting human rights is a delicate one. No one is saying it’s easy. Then there’s the politics, corruption, shadowy alliances and the unholy mess in units like Crime Intelligence (which Phiyega is now trying to clean up).

The time has come for drastic action. Possibly a complete overhaul of the Public Order Policing (POP). The unit needs an injection of officers and strong, accountable commanders. A message needs to cascade through the ranks that says that anyone who steps out of line, who loads up their shotgun with buckshot or fires without an order, will be punished. Officers need to be better trained. And all of this needs to be communicated to the public so that perceptions can begin to change. Maybe even hold a public commission of inquiry into the POP, diagnose the problem and fix it.

It’s time for Mthethwa to go beyond sending out media statements and praying with families of victims. He needs to take meaningful action. It’s time for President Jacob Zuma to step up. If he can find the time to congratulate Ladysmith Black Mambazo on a Grammy or the Bantu Church of Christ on its centenary, spur on the Matrics or defend eTolling, he can get stuck into this crisis. And by that we mean do something more than establish a task team. After all, the storming of a police station is about as close as you can come to true lawlessness.

Newham describes what happened in Relela as a “new development”. It’s much more than that. It’s a wake-up call, a short in the circuit of democracy. A signal that the relationship between police and civilians can’t be that of a state of war or a violent occupation. History teaches us how people, countries, respond to that.

When Phiyega visited the community on Wednesday, angry residents were shouting at her, demanding to know who gave the order to kill? She did her best to restore calm to the area, but she was up against a hostile crowd.

The police may be under attack, but they have to start earning back the trust. Showing the public that they are not the enemy. When what happened in Relela becomes a reality, you’ve waited too long to act. DM

Source: Daily Maverick

Marikana funding case hints at larger problems with gaining access to justice

Most South Africans do not have effective access to justice. Without adequate legal representation, which few people can afford, not many litigants or criminal defendants will truly savour the sweet taste of justice. While banks, other large corporations, the very wealthy and organs of state will have the funds to employ an army of lawyers to exploit every legal loophole and to pursue every legal argument to win their case, most ordinary persons of moderate means will not. Unless the legal system is substantially reformed or the state pumps billions of rands into the Legal Aid system, this will not change – despite the quixotic court victory of the survivors of the Marikana massacre to legal representation at state expense.

The Marikana massacre, in which the South African Police Service (SAPS) killed 34 striking mine workers, may well turn out to have been a watershed moment in South African politics. From where I sit, it looks suspiciously as if the ruling elite (ab)used its control of the SAPS (or its political access to those who control the SAPS) to teach miners taking part in a violent and unprotected strike a “lesson”, because these striking miners threatened its financial and class interests. As a result, 34 striking and protesting miners were killed by the SAPS and more than 78 people were injured.

The Farlam Commission of Inquiry into the massacre, and the events that led up to it, may not come to the same conclusion. Commissions of Inquiry – even Commissions that do a good job – are usually better at determining the small truths than at uncovering the larger political truths of a tragic event like this. It is also not yet clear to what extent the alleged SAPS cover-up of the event and the possible protection of political principals and mine company executives will succeed.

This does not mean that the work done by the Farlam Commission is not important. Like the Truth and Reconciliation Commission it might uncover at least part of the truth, creating a factual matrix within which, over time, we will come to understand the political significance of the events on 16 August 2012. For that reason it is essential that the Commission must be seen to be acting fairly: if its findings are not trusted by everyone, it will be difficult to rely on these findings as a springboard for more searching analysis of the political import of the Marikana massacre.

The Commission’s legitimacy was threatened by the withdrawal of the legal teams representing the families of the killed miners as well as of the injured and arrested miners because of a dispute about the funding of the lawyers of the injured and arrested miners (led by Adv. Dali Mpofu). It therefore came as a great relief when the North Gauteng High Court (in a legally daring judgment by Makgoka J) in the case of Magidiwana and Another v President of the Republic of South Africa and Others ordered Legal Aid SA to fund Adv. Mpofu and his team.

I am delighted that Legal Aid SA has now agreed to fund Adv. Mpofu’s team. However, Legal Aid SA may still appeal the judgment because of the potentially far-reaching consequences the judgment poses to the continued financial viability of Legal Aid SA and it will not at all be surprising if such an appeal succeeds.

The bulk of the judgment focuses on the right of surviving miners to be represented by legal representatives and does an admirable job of showing why section 34 of the Constitution – which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing – entitles miners to such legal representation.

What the judgment fails to do convincingly, in my opinion, is to show that this right must translate into a right to have those lawyers funded at state expense through Legal Aid SA.

As Legal Aid SA eventually conceded, its CEO does have the general discretion to fund the lawyers of interested parties who appear before a Commission of Inquiry. In fact, Legal Aid SA funded the lawyers of families of the deceased miners in accordance with this general discretion. The question is whether its decision to fund the lawyers representing the families of deceased miners (but not the injured and arrested miners) could be declared unconstitutional on the basis that it was irrational to fund the former but not the latter.

The court found that the injured and arrested miners did have a right to state funded legal representation in general, given their substantial and direct interest in the outcome of the commission; their vulnerability and financial position; the complexity of the proceedings and the capacity of the applicants to represent themselves; the procedures adopted by the commission; the need for an “equality of arms” between the parties; and the potential consequences of the findings and recommendations of the commission for the injured and arrested miners.

In a wonderful passage that could easily apply to the vast majority of litigants and accused persons of modest means who need legal representation in South Africa, the court stated:

The fact that they [the miners] are poor should never be a basis to summarily dismiss their potential substantial prejudice. It is unthinkable and deeply offensive to basic fairness and the rule of law in a democratic state that the poor and vulnerable be left to their own devices, in a manner that will deny them exercise of their constitutional right in terms of s. 34 of the Constitution.

Moreover, the court pointed out that the SAPS legal team is said to comprise five advocates (three senior counsel and two senior-junior counsel). In addition, the SAPS also use the services of a private firm of attorneys in Rustenburg, instead of State Attorney. Furthermore, the Minister of Police, whose interests should ordinarily coincide with those of SAPS, for some reason maintains a separate legal team on a so-called “watching brief” at the Commission (a fact that raises its own set of questions about the possible political involvement in the events of 16 August 2012).

According to the court, the State parties’ legal representation costs approximately R2 million to R3 million per month.

The judgment therefore concludes that considerations of fairness and the need for “equality of arms” between the parties require the state to fund the legal representatives of the miners. The interests of justice and the rule of law would be undermined by a failure to fund their lawyers.

It would be difficult to argue with the court that it would be fundamentally unfair for one party to be represented by lawyers to the cost of up to R3 million a month while another party with a direct interest in the outcome of the Commission have no legal representation at all. After all, those involved in the killing and injuring of the miners are represented by an army of lawyers, ever alert to protect the interest of their clients, who would obviously like to pin the blame for the massacre on the miners themselves in order to absolve the SAPS and its political principal from any blame. It seems extremely unfair that the one side is so well protected while one of the other parties is not.

However, apart from the profound political importance of the case, this situation is not fundamentally different from that faced daily by many litigants or potential litigants who wish to go to court to enforce their legal rights or to challenge the abuse of power or the flouting of the law by big banks, other large corporations, wealthy individuals or the state. Legal Aid SA very seldom provides funding for such litigants due to an acute shortage of Legal Aid funds. It is mandated by its rules and by the Constitution to fund lawyers for indigent criminal defendants “if substantial injustice would otherwise result”, but the Constitution does not explicitly impose a duty on the state (and hence Legal Aid SA) to fund civil matters (nor matters relating to Commissions of Inquiry).

Because of a lack of funds to pay good lawyers capable of taking on the “big boys” (and the difficulty of securing the services of such lawyers, given the financial interests many lawyers have in representing the “big boys” instead), ordinary people – both poor people and middle class people – often face insurmountable hurdles in securing justice in court.

There are no quick fix solutions to secure better access to justice for most South Africans. It would help if the state pumped additional billions of rands into the legal aid system – but that is not going to happen. Funds are needed for other “important” state matters – like upgrading the private residence of the president.

Establishing a system in which recent law graduates do one year of community service – similar to medical graduates – to assist indigent litigants may also help to secure better access to justice, but that would require a gargantuan administrative effort from the Department of Justice. The Department currently probably does not have the financial and human resources to pull this off successfully.

Simplifying legal rules and moving away from the absurdly rigid application of these rules by some courts, will also help. Many procedural rules unnecessary complicate litigation and increase costs – often to the advantage of those litigants with the deepest pockets and hence the best lawyers. It goes without saying that litigants without lawyers are often unfairly disadvantaged by these rules or are precluded from benefiting from access to the legal system at all because of their lack of knowledge of the rules.

But because of the formalistic legal culture – often inculcated and perpetuated by untransformed legal training provided at Law Schools – and because lawyers often benefit financially from the complicated and formalistic legal rules, there seems to be little appetite among elites in the legal profession to champion the streamlining and simplification of procedural rules.

It is judged against this background that the ultimate decision of the court in the Marikana case gets to look a bit shaky. This is so, not because it would have been fair to deny the injured and arrested miners legal representation at state expense, but because it is not clear that the decision of Legal Aid SA not to fund the lawyers can be said to have been irrational, given its many other commitments and the almost infinite demands on its limited funds.

Legal Aid SA provided three reasons for funding the legal team representing the families of the killed miners but not the legal team of the injured and arrested miners. First it claimed that the former group had a “substantial, proximate, and material interest in the outcome of the commission” to a degree that the latter did not. Second, it claimed that the latter group’s interests would be adequately protected by labour unions, NUM and AMCU. Third, it claimed that due to budgetary constraints it could not fund both parties.

The court (seemingly confusing or conflating the requirements for legality contained in section 1 of the Constitution and the test for a breach of section 9(1) of the Constitution) affirmed, correctly, that the exercise of public power by the executive and other functionaries should not be irrational. The court, more controversially, concluded that the refusal by Legal Aid SA to provide legal aid to the injured and arrested miners was not rationally related to the purpose of the Legal Aid Act, (as far as I can tell) because it found that this was not done to pursue a legitimate purpose.

The court did not really explain why this was the case. If the purpose of the decision was to manage Legal Aid SA’s funds properly, it is unclear why it would be irrational for Legal Aid SA to fund the one group but not the other. There is also clearly a difference in the position between the two groups: the loved ones of one group were killed, while the members of the other group are still alive.

Rationality review does not allow the court to set aside a decision of a public body because that body acted unwisely or because another decision would have resulted in a fairer outcome. It only allows the court to interfere if it can be shown that there was no rational reason for its decision: in other words, when the decision is arbitrary or capricious. In this case one can argue about the wisdom of the Legal Aid SA decision, but I am not sure one can say with confidence that it was irrational. To hold otherwise would have potentially catastrophic consequences for the financial viability of Legal Aid SA.

Despite the shaky legal argumentation, the judgment must be welcomed. Hopefully the clear injustice illustrated by the case may well spark a broader debate about the lack of access to justice and about what steps can be taken by the government and by the legal profession to provide ordinary people with a better chance to access the skills of competent lawyers.

Source: Constitutionally Speaking

Mamphela Ramphele launches new party political platform

DR MAMPHELA Ramphele on Monday announced the formation of a “party political platform” whose first order of business would be to call for reform of South Africa’s electoral system and with the aim of contesting the 2014 national elections.

Speculation had been rife for weeks that the activist and doctor — a former MD of the World Bank — would enter the country’s political space through forming her own political party.

She will challenge the 2014 election, although she admits to having a staff of just five people, and expects funding, always an elephant in the room for political parties, to come largely from “supportive” South Africans.

On Monday, she delivered a hard-hitting speech on how the dream of a democratic South Africa had been derailed by poor governance, corruption, nepotism, poverty and powerlessness.

“Our country is at risk because self-interest has become the driver of many of those in positions of authority who should be focused on serving the public,” she said.

The platform — to be called “Agang” in Sesotho, meaning “Build SA” — will embark on a 1-million-signature campaign to ensure that electoral reform is the “first order of business” for Parliament after the 2014 election.

“I am here today to invite you, young and old, to reimagine the country of our dreams and to commit to building it into a reality in the lives of every South African,” Dr Ramphele said at the historic Women’s Gaol at Constitutional Hill in Johannesburg.

“I have said that I am no messiah. No single individual acting on their own can build our nation into the country of our dreams. But I am willing to be a bridge between my generation — those of us who fought for freedom who remember not only with their minds but also with their hearts — and that of my children. For us the dream remains alive as a link between those who sacrificed their lives for freedom to be born and those who live in the hope of seeing the reality of the dream come alive in their own lifetime.”

She said South Africans were being denied the right to govern by the current electoral system, and bemoaned the deployment of people to government by parties and the impact of being beholden to party leaders on their performance.

“We should be able to vote for the person in our own area we want to represent us in Parliament, so we can hold them accountable for the electoral promises they make,” she said. “We want an MP for Marikana, an MP for De Doorns and an MP for Sasolburg, so if the people are unhappy and the MP is not responsive enough, they will be voted out at the next election.”

The new party political platform would give citizens who stood on the sidelines an opportunity to become actively involved in building a South Africa to be proud of, Ms Ramphele said.

She blamed a passive citizenry for the direction South Africa had taken, saying she wanted to ignite South Africans to help pull the country back on track. This would be accomplished through “consultation” with those in villages, townships and suburbs, which would feed into her party’s policies.

An active citizenry would also aid in the party’s “war” against corruption. “If we operate as vigilant, active citizens, we can tackle corruption. We too are part of the problem,” Dr Ramphele said.

She added that the decision to enter party politics had not come easily. “I have never been a member of a political party nor aspired to political office. I however feel called to lead the efforts of many South Africans who increasingly fear that we are missing too many opportunities to become that which we have the potential to become — a great society.

“I have no illusions about the difficult road ahead. Bridges get trampled on. But I trust my fellow South Africans’ capacity to come together at critical times to do what others believe is impossible. I believe in our potential for greatness. I believe that greatness is within our grasp if only we can reach out across divisions and self-interests and put the country first.”

Dr Ramphele also said Marikana and De Doorns underscored the urgent need for South Africa to restructure its economic system — but such a restructuring should also focus on job satisfaction and a sense of fulfilment for workers.

Since last year, South Africa has seen a surge in violent and sometimes deadly industrial protests, often with demands for higher wages.

“What we want is an economy that works for all South Africans,” Dr Ramphele said.

She said Agang did not have a preferred economic policy at this stage as it was a work in progress and would be developed as consultation continued. She added, however, that the current economic structure undermined the country’s growth prospects.

News of Dr Ramphele’s political plans have created a buzz in opposition circles, though she made it clear on Monday that she was not joining any other political party, but consulting them widely with. “I am not a joiner,” she said.

The Democratic Alliance (DA) said on Monday that it took note of Dr Ramphele’s intention “to engage South Africans about the formation of a new political party”.

“Dr Ramphele shares the DA’s core values of nonracialism and constitutionalism, and her move is another step in the long process of realigning South African politics around these values,” said DA spokesman Mmusi Maimane, adding: “We will continue to engage Dr Ramphele in the coming months.”

Smaller parties such as the Congress of the People (COPE) can be expected to seize the opportunity of jumping on the bandwagon.

COPE leaders have said they are mulling ways to work with Dr Ramphele. While this could give her initiative a boost, it could also raise credibility questions, as COPE has battled with internal squabbles that have all but eroded its credibility.

Political analyst Susan Booysens said Ms Ramphele’s announcement on Monday was “odd and bizarre”.

Ms Booysens said she did not see Agang taking off as an imagination-grabbing political party. “I cannot even say refreshing because I cannot see how it fits into party politics,” said Ms Booysens.

Aubrey Matshiqi, political analyst and research fellow at the Helen Suzman Foundation, said Ms Ramphele’s first handicap was that she started with a party political platform. However, Mr Matshiqi said he was not surprised with the move as it appeared that Ms Ramphele and her team were “not able to settle for a very clear way of defining themselves”.

“But when you are consulting a broad range of people, defining yourself can be a problem,” Mr Matshiqi said.

Related files

PDF: Dr Mamphela Ramphele's full speech delivered at the launch of her new party political platform

Source:

Reaction to FNB advert like Lady Macbeth’s guilty rants

It is never a good sign when an organisation or individual completely overreacts to perceived criticism. As the simmering discontent of South Africa’s underclass boils over into open revolt and violence and as corrupt shoot-to-kill cops are increasingly deployed in places as far flung as Marikana, De Doorns and Sasolburg to protect the old and new elites from the wrath of the dispossessed, some politicians are increasingly resembling Lady Macbeth, driven by their guilt and shame to commit ever more heinous misdeeds. The hysterical and often undemocratic response of various ANC and SACP structures to the silly First National Bank (FNB) advertising campaign is a case in point.

In Shakespeare’s “Macbeth”, Lady Macbeth urges her husband to kill Duncan, the king, to allow Macbeth to satisfy his ambitions of becoming king. She overrides all of her husband’s objections by challenging his manhood and he relents and kills Duncan. Later Lady Macbeth becomes racked with guilt and sleepwalks through the palace, haunted by the murder of the former king. In this trance she tries to wash off imaginary bloodstains from her hands, shouting: “Out, damned spot! Out, I say!—One, two. Why, then, ’tis time to do ’t. Hell is murky!—Fie, my lord, fie! A soldier, and afeard? What need we fear who knows it, when none can call our power to account?—Yet who would have thought the old man to have had so much blood in him.”

The response of the ANC, the ANC Youth League and the SACP to the FNB campaign resembles the attempts of Lady Macbeth to clean imaginary bloodstains from her hands.

“What need we fear who knows it, when none can call our power to account?”

The FNB campaign includes videos of young South Africans apparently speaking their minds. In one of the videos a participant says: “Stop voting for the same government in hopes for change – instead, change your hopes to a government that has the same hopes as us.”

The ANC Youth League and SACP joined the ANC in slamming the campaign, with the league saying it was “deeply angered and disappointed” by the bank’s “treacherous” campaign. On Sunday, Youth League spokeswoman Khusela Sangoni-Khawe said FNB had failed in trying to “recreate an Arab Spring of some sort in South Africa” and said it “uses children to make unproven claims of a government rife with corruption. We call upon South Africans to close ranks against what is a treacherous attack on our country.”

ANC spokesperson Jackson Mthembu said the ANC (who is never directly mentioned in any of the videos) was “appalled” by the campaign in which the ANC, its leadership and government were “under attack” the campaign was an “undisguised political statement that makes random and untested accusations against our government in the name of discourse. While we believe that people are entitled to their views, we don’t accept that young kids should be used as proxies to articulate political views espoused, as in the case of the FNB advertisement.”

“Out, damned spot! Out, I say!”

These vehement reactions to what appear to be rather mild criticisms of the government and platitudes about one’s right to vote for the party of one’s choice (widely accepted in any functioning democracy) are curious for several reasons.

First, whatever one might think of FNB and its advertising campaign (and I am not a fan of the campaign or of the lily-livered manner in which the bank caved in to political thugs), the manner in which several ANC and SACP spokespersons conflated the ANC with the state and with the country is worrying. The ANC is not the state. Neither is it the sole representative of the South African people. South Africa, in the words of the Freedom Charter, belongs to all who live in it – it does not belong to the ANC. Like any political party, the ANC deserves to be praised when it does something well and deserves to be criticised when it abandons the poor that it professes to love and serve.

Second, the statement that the FNB campaign is treacherous and tries to recreate the Arab Spring, is anti-democratic and – I am sorry to have to use such an emotive term – proto-fascist. There is nothing wrong with telling people that they should refrain from voting for the governing party. Voting for whomever one pleases is at the heart of political freedom in a democratic state. Every democratic election is based on a fair and free contestation between political parties in which we are all allowed to express our preferences.

We are also all free to try and convince others to vote for the ANC, to vote for the DA, or to vote for the TP (Tender Party), for that matter. It is probably not a great business model for a Bank to get involved in an advertising campaign that might alienate the majority of voters, but if it does, there is nothing treacherous about it. If FNB had not pulled the adverts I might even have lauded the bank for putting its principles (which one may agree or disagree with) before naked profits.

The Arab Spring refers to various uprisings organised by oppressed populations in countries where citizens did not enjoy political rights and where democratic contestation and free and fair elections could not be held. To refer to an advertising campaign in which a teenager urges people in South Africa to vote for the party of their choice as an attempt to recreate an Arab Spring, suggests the ANC Youth league believes that South Africa is not a democracy, that its citizens are oppressed and do not enjoy political rights and that they will never be allowed to change the government by using their vote. Like Lady Macbeth wandering in a trance and trying to wash off imaginary bloodstains from her hands, the ANC Youth League is revealing rather more than it intended about its own undemocratic tendencies. Pity Jackson Mthembu will not display the same sense of outrage about this full-frontal attack on our democracy.

Whether one is a staunch ANC supporter or a supporter of the right wing Freedom Front Plus, if one supports democracy one will not be appalled by the fact that an institution has dared to criticise a political party. Only proto-fascists would be appalled by the fact that a bank has dared to broadcast statements criticising the government.

One might, of course, disagree with the sentiments expressed by the youngsters in the FNB produced videos, and the ANC has every right to express its disagreement with some of the statments made by the youngsters. But claiming that the sentiments are treacherous or that it is not legitimate to criticise the party displays the kind of undemocratic intolerance that cannot be associated with a party who supports democracy.

Personally I find that it is better to ignore attacks that are far-fetched or motivated by racism, hatred or a complete lack of information. That is what I do when I am criticised for something I have written. “Don’t feed the trolls,” I tell myself every time I read the unhinged invective of faceless loonies on my Blog. If the criticism is serious, one either responds to it by pointing out why and how it is wrong, or one takes it on board and changes one’s behaviour. Just a thought: use it, don’t use it.

One does not tell those who criticise that they are committing treason or that they are attacking the state merely because one happens (for the time being) to be the party of government.

I was reluctant even to enter this discussion, not because I am fearful of repercussions, but because what I have written here is so obvious and because all this fuss about a bank’s advertising campaign detracts attention from the far more important social and economic issues facing the country.

Maybe that is why the campaign has attracted such hysterical responses from the ANC and its partners. Like Lady Macbeth, whose paranoid dreams symbolises the fact that she is haunted by her guilt, the ANC reaction is perhaps a symptom of the fear and guilt that stalks the political class in South Africa. As Marikana, De Doorns and Sasolburg have shown, the poor, economically excluded and marginalised members of society have not benefited as handsomely from the end of apartheid as the members of the old (mostly white) and emerging (mostly black) middle classes.

While those in the chattering classes squabble about silly adverts made to promote the commercial interests of a big bank and argue whether these adds exploit children, many of those same children are dropping out of school or receiving a third rate education because of the cowardice of politicians who are too scared to take on a powerful union. While I write about the nature of democracy, members of social movement are harassed and tortured by the police. While Helen Zille spends her days on twitter, blaming the poor for the lack of services in their communities in Cape Town, millions of South Africans go to bed hungry, wondering whether this wonderful democracy will ever guarantee them a full stomach.

Source: Constitutionally Speaking

Sharp divisions on the Constitutional Court about the right to strike

In the aftermath of the Marikana massacre, the rights of striking workers and the unions they might belong to have once again come under the spotlight. Judging from the letters pages of middle brow newspapers, blog comments and callers to phone-in programmes, many middle class South Africans are about just as sympathetic to strikers and their constitutionally protected rights as they are to Julius Malema. Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.

Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.

In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.

Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.

For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.

As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:

The point of departure in interpreting section 64(1)(a) [and, one assumes, section 64(1)(b)] is that we should not restrict the right to strike more than is expressly required by the language of the provision, unless the purposes of the Act and the section on “a proper interpretation of the statute … imports them.” The relevance of a restrictive approach is to raise a cautionary flag against restricting the right more than is expressly provided for. Intrusion into the right should only be as much as is necessary to achieve the purpose of the provision and this requires sensitivity to the constraints of the language used.

It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.

This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:

to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process.

The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.

In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:

if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees’ demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules?

The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”

The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.

The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.

The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.

Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.

Source: Constitutionally Speaking

In the wake of Marikana, ANC pushing a self-destruct button

As police raided the hostels of Lonmin miners it looked like the ANC had once again chosen force over discussion. It’s nothing new, but this specific raid will be what we remember as the beginning of the party’s decline. By GREG NICOLSON.

This weekend’s crackdown on the settlement of Nkaneng should come as no surprise. In the last few years, as service delivery protests have engulfed townships and informal settlements across the country, the ANC government has stood behind the state-sponsored violence and intervened only when absolutely necessary.

The tale feels like a cliché. Something triggers a store of long-held grievances and the community fortifies its thoroughfares with burning tyres. After the police arrive they eventually decide the protest cannot continue and attack the toyi-toying group. In their nyalas, the cops first teargas the community in a drive-by and then conduct a series of arbitrary arrests that follow a hail of rubber bullets.

The smell of teargas, stab of rubber bullets and the humiliation of violent raids further enrages the angry mob. The stakes are raised and the more violent and disaffected members of the community remain, seeking ever more destruction.

Between police and protestors lies a dark silence. The cops don’t care why people are on the streets, burning the little they have access to while government officials are too scared or don’t care enough to mediate promptly. When they finally arrive and offer the slightest semblance that they give a damn about the community’s concerns, the protest often subsides.

It seems obvious that a leader should immediately attempt to listen. But in the silence of a community on fire, before government officials are forced to react, lies a deafening reality of the disconnect between our most marginalised and their elected leaders, usually from the ANC.

These protests, similar in root cause to the ongoing Lonmin strike, regularly occur because of poverty, corruption and unmet expectations. People are tired of living without adequate shelter. They know it’s unfair they can’t access decent health services. They want electricity and water plumbed into their homes and they want an effective and transparent billing system. They are tired of the forced humiliation that latches onto poverty. Worst of all, they’re disheartened seeing their children grow up to live in exactly the same desperate conditions.

Law and order needs to prevail in Marikana and no more deaths can be added to the toll. But this weekend’s move by the police and army into Nkaneng is all too reminiscent of the response to service delivery protests over the years. All too often the ANC has let police shoot first before even asking why protests are occurring, let alone engaging in meaningful discussion (however long, risky or arduous it need be).

It’s symbolic of a larger problem. The ANC aims to “end Apartheid in all its forms” and “fight for social justice and eliminate the vast inequalities created by Apartheid”, but too many examples show that it’s no longer the party of the people. A litany of betrayals and failures stain the party’s successes (which primarily include a massive service delivery rollout and making a dent into transforming the system of racial exclusion) while its internal power plays and the venality of members erode the foundations established by some of the most inspiring leaders of the 20th century.

The ANC’s June policy conference proved the party knows what’s hurting South Africans – poverty, inequality, unemployment and the ills flowing from the combination. We’re sure its members also care deeply – who wouldn’t when the stories of many South Africans are tragedies?

But the party is too distant from those we expect it to represent. President Jacob Zuma’s insulting and incredulous comments about visiting a township and realising there are poor people struggling to survive is testament to the disconnect. ANC MP Rose Sonto confirmed this last week when he disagreed with opposition parties in the Parliamentary Portfolio Committee on Mineral Resources, saying, “We can’t go and talk to a crowd with suicidal tendencies.”

Dangerous, yes, but strikes and protests are messages sent when other avenues of communication fail. Instead of provoking miners with further police antagonism, the ANC needed to work with union leaders and mine management to increase engagement until leaders trusted them. Zuma has sent an inter-ministerial force, made a visit and established a judicial inquiry, but it’s not enough. ANC leaders aren’t giving Marikana the attention it deserves. Simply, they have failed to lead when the country was wailing, desperate and distraught, for leaders.

The problem the party faces, however, is that even if it had the resolve to provide leadership it’s so removed from disaffected communities it would have struggled to get a platform. The miners have been too hostile, and like many others across the country seem to believe the party has broken too many promises, its members too corrupt to trust.

Instead of proving them wrong, the party has distanced itself from the workers and failed to show it understands their concerns (at the same time it has lambasted the capitalist miners it has been so happy to accommodate all these years).

So in an attempt to control the situation the ANC offered the same response it has to service delivery protests: it sent in the police. That response is nothing new, but while the party hides, the Marikana massacre will go down in history as the moment everybody knew the ANC was no longer a party of the poor, no longer a party of the working class and no longer a party that could claim to represent the majority of South Africans.

The National Executive Committee has discussed Marikana at length, said Secretary General Gwede Mantashe. It’s looking at ways to address the causes of the disaster and may come up with creative solutions involving partnering with mining companies to improve the living conditions of workers.

One can only hope the party can, but one has to fear it has once again stoked unrest and it might be too late. The ANC may still be in power. It may still have the votes, but things change. They always do. And it’s moments like these the historians will remember.

Source: Daily Maverick

South Africa: NPA still wrong in Lonmin matter

Despite the withdrawal of the charges on Sunday by South Africa’s National Prosecuting Authority (NPA) to charge 270 arrested mine workers for the killings of their colleagues, the initial decision to charge them in respect of the doctrine of common purpose is a perverse application of the law and that may have had the consequence of exacerbating tensions at Lonmin Mine in Marikana, North Western Province.

The tragic scenes of August 16, 2012, when police opened fire and killed 34 miners who were part of a group protesting against low wages, sent shockwaves throughout the world. Many reacted with horror at a display of police force that was reminiscent of apartheid South Africa.

Irrespective of what the Judicial Commission of Inquiry - established by President Zuma to investigate the killings and those responsible - may find once it conducts its investigation, there can be no doubt that the actions of the police can at best be described as extremely heavy handed.

While police may have overreacted, what happened in Marikana was a result of a Molotov cocktail of extremely angry miners (many of whom were armed with machetes and spears), a recalcitrant employer that seemed reluctant to negotiate to resolve the labour dispute, and an absent political and union leadership.

As a result of the killings and cognizant of the broader context in which the killings occurred, Human Rights Watch called on the South African government to ensure that the Commission is established speedily and for its terms of reference to include a fact-finding mission on the background and underlying events leading to the violence in Marikana.

It is a perversion of the doctrine to suggest that whatever common crime it is alleged the miners were pursuing, that the killing of their colleagues by the police was a foreseeable outcome on their part of achieving that goal.

The creation of the Judicial Commission of Inquiry and the appointment of retired Judge Farlam to head it, is therefore a welcome step. Farlam is a highly respected judge who served many years on the Supreme Court of Appeal. The Commission will have four months in which to conduct its investigation and to submit its final report a month thereafter.

However, the actions by the NPA to add the doctrine of common purpose to the initial charge of public violence could have undone all the good efforts to address the situation. According to the doctrine, where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design.

In other words, there was a common purpose to commit a crime. It is a perversion of the doctrine to suggest that whatever common crime it is alleged the miners were pursuing, that the killing of their colleagues by the police was a foreseeable outcome on their part of achieving that goal.

This nonsensical decision by the NPA to charge the miners in this manner may have led many to conclude that these charges were politically motivated and an attempt to prevent further protests.

The terms of reference of the Judicial Commission of Inquiry include an investigation of all the parties involved and mandate the Commission to refer any matter regarding the conduct of any person or group for prosecution. In addition, the South Africa’s Independent Police Investigative Directorate (IPID) has also initiated an investigation into the conduct of the police that led to the tragedy.

It is therefore very worrisome that there is very little complementarity between these investigations. As the Judicial Commission of Inquiry has been specifically established to conduct an independent and impartial investigation, it is more prudent for entities to work collaboratively with the Commission.

The decision by the NPA to charge the miners in terms of the doctrine of common purpose seems shortsighted for at least three reasons: Firstly, in the context of the establishment of the Judicial Commission of Inquiry, it should await the results and recommendations of the investigation before deciding the appropriate course of action.

Secondly, the requirement of active association upon which it seems to rely is a misapplication of the doctrine which could lead to the unintended consequence of limiting human rights in other contexts. Lastly, its decision could have exacerbated the already tense situation and set off another Molotov cocktail.

Cameron Jacobs is the South Africa Director at Human Rights Watch

Source: Human Rights Watch

Marikana murder charge withdrawal: the first glimmer of sanity

The NPA seems to have regained a small sprinkling of sanity – it looks like the charges of murder against 270 protesting Lonmin miners will be withdrawn. Yet a number of so-called experts and scholars are still claiming, although feebly, that the charge could have held water. Let’s not kid ourselves – the law is perfectly clear.

The decision by the National Prosecuting Authority (NPA) preliminary to withdraw charges of murder against 270 Marikana miners for the killing of 34 of their colleagues by the police was the only remotely rational course of action to take. It is probably too late to save the NPA from becoming the laughing stock of most South Africans and people across the rest of the world, but the decision seems like a glimmer of rationality in a sea of madness.

Yet it is more than surprising that the NPA is maintaining its original decision to charge the miners was legally sound. It’s like a child denying that he ate his mother’s chocolate cake when he has chocolate icing smeared all over his face. Even more surprising is that a legal academic from Wits has argued that, theoretically at least, the miners could be convicted of murder under the common purpose doctrine.

According to these defenders of the NPA, the decision was legally sound because the state would only have to prove that the miners were present at the scene of the killing and aware of an attack on the police; that the miners intended to associate with those attacking the police and had manifested their sharing of the common purpose by some act; and lastly that the miners had the intent, in the form of dolus eventualis, by showing the miners foresaw the (reasonable) possibility that someone may be killed by the actions of those in the crowd who provoked the police to shoot and kill some of them.

Could these views have been animated by a blinding animosity towards the miners; or by a fear of the protesting (black) hordes; or by an unexamined belief that the miners deserved to be punished collectively because one or more persons who took part in the strike had allegedly killed two police officers? Or have those who made this decision to prosecute or defended it – even if only on theoretical grounds – not studied the relevant legal materials properly?

The leading Criminal Law textbooks (quoted approvingly by the Constitutional Court in its judgment on the common purpose doctrine) illustrate that the doctrine is used to impute the criminal conduct of some members of a group to the whole group who had the common purpose to commit a crime. Burchell and Milton define the doctrine as follows:

Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.

Similarly, the other Criminal Law guru, Snyman, points out in his textbook that:

the essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.

This means that the 270 miners could only be convicted of murder if the conduct of one of its members could be shown to have caused the death of the 34 miners and if all the other requirements for common purpose had been met. Given the fact that the police actually shot the 34 miners, it is unclear how the conduct of any of the miners could have cause the death of their comrades.

For a successful prosecution, the state would have to prove that the miners made common purpose with the police with the intention to have their fellow workers killed. It is only where the miners can be shown to have had a common purpose with the police that the conduct of the police (who actually killed the miners) could be imputed to them. As none of the miners actually killed anyone on the day of the massacre, it would help little to prove they had a common purpose to protest or even to attack the police, because none of them were involved in the killing of the 34 miners.

That is why the Constitutional Court confirmed in the Thebus case that a group of people who are not co-perpetrators could only be found guilty of a crime with assistance of the common purpose doctrine if they were aware the crime was being committed and must have intended to make common cause with those who were actually perpetrating the crime. The crime in this case being the killing of 34 miners by the police, it would be impossible to prove that the miners made common purpose with the police to kill their fellow miners.

In any case, even if this was not so, and even if the state only had to prove that the miners acted with a common purpose with one another by walking in a group towards the police and that this led to the shooting that killed 34 of their comrades, the state would never have been able to prove the involvement of the 270 miners in this common purpose. As the Constitutional Court warned, it is the

duty of every trial court, when applying the doctrine of common purpose, to exercise the utmost circumspection in evaluating the evidence against each accused person. A collective approach to determining the actual conduct or active association of an individual accused has many evidentiary pitfalls. The trial court must seek to determine, in respect of each accused person, the location, timing, sequence, duration, frequency and nature of the conduct alleged to constitute sufficient participation or active association and its relationship, if any, to the criminal result and to all other pre-requisites of guilt. Whether or not active association has been appropriately established will depend upon the factual context of each case.

How would the state ever prove that the 270 actively associated with the one person in the crowd who allegedly shot at the police? Merely being proven to have been in the crowd might have been sufficient to be convicted of murder by one of the members of the crowd during the Apartheid years, but those days are long gone. The Constitutional Court decision makes this abundantly clear. More is required now, and the state would never have been able to meet this more stringent evidentiary burden.

But apart from the evidentiary problems, there is still the problem that none of the miners had actually set out to kill their comrades. Neither had any of the miners killed any of their comrades. The police did that.

To overcome this problem, those who argue that the decision to charge the miners with murder was legally plausible say that all the miners could be guilty of murder if one of them had shot at the police because the person who shot at the police could be found guilty of murder and his guilt could be ascribed to all of them via the common purpose doctrine. But this argument conflates the requirements for common purpose with the requirements for intention.

Those who defend the NPA (as well as the NPA itself) wrongly invoke the 1981 judgment of the Appellate Division in S v Nhlapo and Another, where a guard was shot and killed – possibly by a fellow guard – in a gun battle with robbers. The court stated that the robbers – who were ready to use their guns to overpower the guards – must have reasonably foreseen that someone could get killed in the robbery and therefore possessed the necessary intention for murder (in the form of dolus eventualis). The court therefore convicted the robbers of the murder of the guard – even though the state had not proven that any of them shot the guard.

The problem is that this scenario is entirely different from what the police claimed happened at Marikana. The Nhlapo case did not deal with the common purpose doctrine because all the robbers were co-perpetrators: they all had guns, were prepared to use them, and then reasonably foresaw that someone would be killed. The actions of one robber were not imputed to other robbers via the common purpose doctrine: they were all charged because they had taken part in the shootout. Their actions caused the death of the guard and they reasonably foresaw that it could.

But the actions of all 270 miners did not cause the death of the 34 victims. At most, the actions of one miner who shot at the police could arguably be said to have caused the death of others. To hold otherwise would be to criminalise the behaviour of every member of a crowd of protestors, where the behaviour of one of the protestors might have contributed to the death of someone and where that protestor had reasonably foreseen the possibility that his actions would lead to the death. It would, in effect, abolish most of the requirements for criminal liability for anyone taking part in a protest march and would be so invasive not only of the right to protest freely but also of the right to be presumed innocent until proven guilty, that it would undermine the very essence of our Bill of Rights.

Unlike those robbers, all of the 270 miners were not armed with guns. They had not all taken part in a shooting match with the police. They were not co-perpetrators going out to overpower the police. Arguably, one of those in their midst had a gun and shot at the police. They could therefore not have been guilty of murder because they had no intention to kill their comrades. To hold otherwise would be to use the common purpose doctrine in a situation for which it has not been designed and for which has not (and never will be) approved by our courts.

In any case, even if this was not so, no court in South Africa is ever going to find that the miners should reasonably have foreseen the possibility that the police would start shooting at them with live ammunition and would kill 34 of their comrades because one among them had a firearm.

We live in a democracy. We have a right to expect the police to obey the law and use minimum force, as they are required to do by the Police Act. We cannot and should not ever accept that it is reasonable to foresee that the police would use maximum force and would shoot and kill 34 protestors because one of them happened to have been armed with a gun. For a court to hold otherwise would be for it to hold that it is reasonable for the police at best to be untrained, bumbling, and bizarrely incompetent or, at worst, to be malicious, vengeful, law-breaking thugs.

It is a pity that some in the NPA seem to have forgotten (or might never have noticed) that we indeed live in a democracy now, and that we can reasonably expect the police to obey the law.

Source: Constitutionally Speaking

South Africa after the Marikana massacre

The police massacre of striking miners at Marikana is a watershed for post-apartheid South Africa and for the international class struggle.

It demonstrates in the starkest form imaginable that the perspective of “black empowerment” and the “National Democratic Revolution” providing the basis for overcoming economic and social oppression has failed utterly. The central lesson of Marikana is that the fundamental division within society is class, not race.

The African National Congress, having come to power in 1994 as a result of immense sacrifice and revolutionary struggle by millions of workers, has revealed itself to be every bit as ruthless as its white predecessors in enforcing the most brutal exploitation on behalf of the major global corporations.

The ANC sent in the police to shoot, kill and maim striking workers whose sole crime was to fight for the right to live as human beings and not beasts of burden. Now, after the police have killed 36 and wounded another 78, some 270 imprisoned strikers are being charged with the murder and attempted murder of their colleagues under Apartheid-era “common purpose” laws designed to blame the victims for “provoking” police violence.

The Marikana miners are paid less than $500 a month for living in squalid communal huts and working in hazardous, back-breaking conditions for the UK-based Lonmin, extracting platinum that sells for over $1,400 an ounce. Their fate, worse still, is shared by millions in what has now become the most unequal country in the entire world.

Meanwhile the ANC has spawned a grasping layer of black bourgeois, with a reputation for unparalleled corruption and repression. It is synonymous with terms like Black Economically Empowered (BEE) companies and “tenderpreneurs”—those who have enriched themselves by acting as front-men for the transnational corporations or who have used their control of the state apparatus to secure a direct role in exploiting the working class.

Even as charges were being brought against the arrested miners, South African Minister of Mining Susan Shabangu was reassuring “our investors, incumbent and prospective” at a gathering of mining executives in Perth, Australia, that President Jacob Zuma is “determined to isolate bad elements in our society.”

The ANC in turn relies upon its partners in the Tripartite Alliance—the South African Communist Party and the COSATU trade union federation—to impose the dictatorship of global capital and the South African bourgeoisie upon an increasingly restive population.

The Stalinist SACP insisted throughout the struggle against apartheid that black majority rule of a capitalist South Africa was a necessary stage in an eventual transition to socialism. It has portrayed COSATU as a bastion of working class power within government that would guarantee this transformation.

Events have proceeded in an entirely opposite direction. For services rendered, SACP leaders were granted key roles in the post-apartheid regime and a share in the spoils of office. COSATU and its affiliated unions have functioned as an industrial police force and a mechanism for the self-enrichment of the bureaucracy.

Philip Hirschsohn, Professor School of Business and Finance at the University of the Western Cape, pointed out last year how the trade unions have taken on “oligarchic characteristics.”

The position of shop steward has become a mechanism for securing management positions, as part of the “emergence of entrepreneurial and career unionists,” with SACP membership a favoured “stepping stone” for “access opportunities in managerial ranks or in government.”

Former NUM leader and high-ranking ANC politician, Cyril Ramaphosa is now the 34th richest man in the whole of Africa, with a net worth of $275 million. One of his many companies has a contract to supply labour at Marikana in a form of indentured slavery. He is paid R12 000 ($1500) per worker per month by Lonmin, but only pays his workers R4000 ($500) per month.

Its role as an adjunct of management has meant that NUM membership has declined to less than 50 percent of employees in many mines; most of these are skilled white collar and surface workers. The strikers at Marikana are either members of the breakaway Association of Mineworkers and Construction Union (AMCU) or not unionized at all.

The NUM, COSATU and the SACP have all called for police to clamp down on the strikers, defending the massacre and urging the suppression of the AMCU. NUM General Secretary Frans Baleni said of the Marikana massacre that, “The police were patient, but these people were extremely armed with dangerous weapons.”

This has not prevented the pseudo-left groups internationally from opposing the necessary break from COSATU and its affiliated unions, without which any struggle against the ANC is impossible.

The South African affiliates of the Committee for a Workers International, the Democratic Socialist Movement, instead urge “workers in both unions to demand united solidarity action, beginning with a local general strike” and ending in a “national general strike”—all presumably led by the NUM and COSATU.

The Socialist Workers Party in the UK is more despicable still, writing on August 17, “Whatever its intentions, AMCU has sometimes been used to introduce disunity at a time when workers face big challenges. It would have been better for the workers who formed the rival union to fight among the NUM rank and file and shift its policies from below.”

Support for the NUM and COSATU is support for the ANC and the Tripartite Alliance government. It is support for the continuation of capitalism and imperialist oppression.

The theory of Permanent Revolution provides the political basis for the workers and youth of South Africa to conduct the life-and-death struggles that lie ahead. The evolution of the ANC is a graphic confirmation of Leon Trotsky’s insistence that bourgeois nationalist movements, tied as they are to capitalism and organically opposed to ending the brutal exploitation of the workers and poor farmers, are incapable of carrying through the struggle for democracy and liberation from imperialist domination.

The working class, mobilising all the oppressed rural and urban layers, must break with the ANC and its defenders in the SACP and the trade union apparatus and build their own socialist party.

A workers government must be established to take the entire economy into social ownership and utilise the vast natural wealth presently monopolised by the super-rich to meet the needs of all for decent jobs, housing, education and health provision. This revolutionary struggle must be extended throughout Africa and internationally through the construction of a section of the International Committee of the Fourth International, the world party of socialist revolution.

Chris Marsden

Source: World Wide Socialist Web Site

The unions, the pseudo-left and the South Africa massacre

The massacre of 34 striking workers at Lonmin’s Marikana mine in South Africa has cast into sharp relief the role of the official trade unions, in South Africa and internationally, amid a global upsurge of the class struggle.

A river of blood now separates the miners from the National Union of Mineworkers—the central component of the Congress of South African Trade Unions (COSATU), which is closely aligned with the African National Congress (ANC) government. The NUM has revealed itself as a tool of state repression and murder.

The eruption of working class anger against the giant mine owners has put workers in direct conflict with the organizations that supposedly represent them. After the massacre, NUM General Secretary Frans Baleni demanded that “all workers to go back to work and for the law enforcement agencies to crack down on the culprits of the violence and murders”—which, according to the NUM, are the workers themselves.

The conflict between the working class and the NUM does not stop at Marikana. The mining industry site mineweb.com wrote recently, “What is particularly worrying here is that the miners are bypassing the NUM, suggesting a total lack of trust in the traditional mining union setup. The NUM appears to be being seen as a vassal of the ruling African National Congress political party—i.e., part of the new South African establishment.”

This alignment of forces—in which the unions fall in behind the corporations and the government—is international in scope. So too is the growing rebellion of workers against these right-wing, pro-corporate institutions, as the ruling class carries out an international program of social counter-revolution.

In Europe, wherever struggles have escaped from the confines of actions officially sanctioned by the unions, the unions have collaborated with the government in repressing them. During the strike of Spanish air traffic controllers in 2010, the government called out the military to break the strike, with the support of the unions and their political allies.

In the United States, a series of significant struggles have erupted over the past two years in opposition to the AFL-CIO, as workers have sought to fight the corporate attack on jobs and benefits now spearheaded by the Obama administration.

In 2010, workers in Indianapolis, Indiana overwhelmingly rejected a 50 percent wage cut backed by the United Auto Workers, driving out union executives from a local meeting. A section of workers formed an independent rank-and-file committee to organize a fight to defend jobs and wages. A few months before, auto workers erupted in a near-riot against UAW officials supporting the closure of the NUMMI plant in Fremont, California.

Just last week, workers at the Chrysler Dundee Engine plant in Michigan, angered by forced overtime and two-tier wages, voted overwhelmingly against a local contract, to the surprise and anger of management and the UAW. Where struggles have broken out under union control—as in the strike of Caterpillar workers in Joliet, Illinois—workers quickly came up against the fact that the union works for their isolation and defeat.

These events powerfully confirm the analysis made by the International Committee of the Fourth International of the nature of the trade unions. In 1993, the Workers League, the predecessor of the Socialist Equality Party, explained that the degeneration of the trade unions was rooted in their nationalist and pro-capitalist perspective, which was undermined by the globalization of production and the breakdown of the post-war social order: “The role of these bureaucratic apparatuses in every country has been transformed from pressuring the employers and the state for concessions to the workers, to pressuring the workers for concessions to the employers so as to attract capital.”

At Marikana, the unions have moved from pressuring workers to open, violent repression. When circumstances require it, they will act the same way in Europe, the United States and beyond.

Workers’ efforts to break free of these institutions provoke the outrage not only of the corporate elite, but also of middle class organizations that posture as “left” or even socialist.

Typical is an article on the South Africa massacre published on August 21—after four days of silence—by the International Socialist Organization in the US. After cynically feigning sympathy with the workers and criticizing the NUM, the ISO makes clear that it is adamantly opposed to any attempt to break the stranglehold of this institution. The ISO even criticizes the NUM’s rival union, the more militant Association of Mineworkers and Construction Union (AMCU).

“Without a doubt, the mining bosses are overjoyed at the sharpening discord between different wings of South Africa's labor movement,” the ISO writes. “And at times, AMCU leaders have been drawn into maneuvers that exacerbate the divisiveness that the mine bosses have hoped to foment.”

In fact, the mine companies are not “overjoyed” by “sharpening discord” between the unions, but desperately afraid that their NUM allies will lose control over the workers. The ISO makes clear that it too is determined to prevent “divisiveness”—i.e., working class opposition to the NUM.

A companion article, reprinted by the ISO from the South African journal Amandla!, denounces the AMCU for advancing “unrealistic demands” and “failing to condemn the violence of its members.” That is, the workers are themselves to blame for their deaths because they have the temerity to desire a decent wage.

Amandla!, closely aligned with the Democratic Left Front of South Africa, writes elsewhere that the “union’s role, once wage negotiations are complete, is to transmit the decision to the rest of the workforce.” And workers are supposed to accept this “transmission” without complaint.

The ISO and its international co-thinkers speak for privileged, complacent and reactionary sections of the upper middle class. For them, the unions are both a source of potentially lucrative careers and a mechanism to maintain organizational and political control over the working class—and thereby prevent any struggle against capitalism.

Whatever the hopes of the trade union executives and their allies, however, the objective crisis is driving millions of people along a different path—towards the formation of new organizations of struggle and towards socialist politics. The bloody events in South Africa have exposed the class lines, and they must become a strategic experience for the entire international working class.

Joseph Kishore

Source: World Socialist Web Site

Deep chasm between leaders and society in SA

ONE of the disconcerting features of South Africa’s democracy is the growing disconnect between political leadership and the rest of society. The underprivileged, in particular, suffer a severe form of neglect, with underdelivery of services defining their daily existence.

Theirs is an existence marked by the silent violence waged on them by political authorities in the form of indifference and the plundering of public coffers. It is a reality compounded by rising social inequalities and growing unemployment, with no serious leadership or functioning institutions to address their plight.

The only time their situation comes to the attention of politicians is when they take to the streets with violent eruptions on sites like the Marikana killing fields and shapes like the deadly service delivery protests in Khayelitsha. Worryingly, we seem to have reached a cul de sac as a country. There is a colossal leadership void.

The disconnect between political leadership and society is manifest in the growing intensity of service delivery protests. According to a study published by the Centre for the Study of Violence and Reconciliation last year, the dramatic upsurge of violent protests in various underprivileged communities began in 2009, triggered by corruption, the indifference shown by officials and the lack of service delivery. Communities no longer trust political leaders, and see them as part of the problem rather than the solution. Political leaders treat underprivileged communities with suspicion and disdain. One explanation for this disconnect is that political leadership is seen by those holding office as more about self-preservation, with a short-term horizon, than the pursuit of a worthy and multigenerational vision.

The distance between government leaders and the public has also been widened by a political culture that establishes a hierarchical relationship between the governing elite and the governed in a way that privileges politicians. As such, politicians see themselves as hovering above society, accountable to no one. Even when they visit communities, they create an aura around themselves and are found shielded by a wall of bodyguards and gatekeepers that ensure they remain inaccessible to ordinary people. They can’t even see the writing on the wall: that our sociopolitical framework is disintegrating, with mistrust multiplying.

Political leaders brush away warnings of an impending social revolution over inequality and the deepening strains of unemployment with rhetoric that the quality of life of ordinary citizens has improved in absolute terms since 1994. While this is true, it is the sustained progress and credibility of political leadership that shapes perceptions about the future. For many, it looks grim.

Before the recent revolution in Tunisia, that country had been making progress in reducing social inequalities. Tunisia was counted among Africa’s four most advanced and diversified economies, with impressive educational reforms. However, perceptions of a yawning gap between a small elite and the rest of society abounded. The image of the president and his family living a life of obscene affluence amidst a sea of poverty dealt a violent blow to the underprivileged. They returned it in kind.
It is a easier to manage expectations and perceptions when political leaders conduct themselves responsibly, consistently deliver services and work hard to improve the country’s economy and social structure.

There are a few things that can be done to prevent further damage.

The first is that leaders generate a sense of urgency accompanied by action. It is important, for example, that the government establishes a mechanism for quick response to concerns raised by citizens. Action against officials, including underperforming or corrupt Cabinet ministers, should be taken swiftly to reassure the public. That is how public leadership values are established.

Second, since the mid-1990s the government has devised economic policies that correctly identify our socioeconomic challenges. Now that there is an overarching plan, put together by the National Planning Commission, our leadership should act faster, especially on improving socioeconomic conditions; building capability among citizens to enhance their participation in political life; and building partnerships with business leaders to generate solutions for inclusive development. A sense of purposeful action will be likely to secure the country’s future.

The government needs to develop a sense of responsibility towards its citizens. Such political leadership can direct the efforts of individuals, communities and other critical sectors of society towards positive action. When political leadership is disconnected from society and dispenses with all sense of responsibility, this can blunt faith in the future and weaken self-belief among citizens.

Source: Business Day

The Massacre of Our Illusions...and the Seeds of Something New

The story of Marikana runs much deeper than an inter-union spat. After the horror of watching people being massacred on television, Marikana now joins the ranks of the Bulhoek and Sharpeville massacres, and the images evoked by Hugh Masekela’s Stimela, in the odious history of a method of capital accumulation based on violence.

But this is not just a story of violence and grief. To speak in those terms only would be to add the same insult to the injury perpetrated by the police on the striking workers, as many commentators have done - seeing the striking miners as mere victims and not as agents of their own future and, more importantly, as the source of a new movement in the making.

The broader platinum belt has been home to new upsurges of struggle over the last five years. From the working class community activists of Merafong and Khutsong to the striking workers of Angloplat, Implat and now Lonmin, these struggles, including the nationwide “service delivery” revolts, are a sign that a new movement is being forged despite the state violence that killed Andries Tatane and massacred the Lonmin workers. Rather than just howl our outrage, it is time to take sides and offer our support.                      

After Marikana, things will never be the same again.   

Firstly, the killings mark the end of the illusion that the ANC has not been transformed into the party of big capital. For some while now the ANC could trade on its liberation credits in arguing that all criticism came from those trying to defend white privilege. The DA was perfect to be cast in this role because it always attacked the ANC for not being business-friendly enough.

But Marikana was an attack on workers in defence of white privilege, specifically the mining house, Lonmin. Lonmin epitomises the make-up of the new elite in South Africa: old white capital garnished with a sprinkling of politically connected Blacks.  

In this, the ANC steps squarely into the shoes of its predecessor, apartheid’s Nationalist Party, acting to secure the profits of mining capital through violence.
                                                   
Secondly, the strike and the massacre also mark a turning point in the liberation alliance around the ANC – particularly COSATU. Whereas the community and youth wings of what was called the Mass Democratic Movement became disgraced after 1994 by their association with corrupt councillors, and eclipsed by the service delivery revolts of today, COSATU’s moral authority was enhanced. Within what is called “civil society”, COSATU continued to be a moral voice. So anyone who had a campaign sought out COSATU as a partner. This moral authority came because COSATU was simply the most organised voice amongst the working class.   

Today COSATU’s links with the working class are only very tenuous.

It is almost intuitive that we consider the notion of a worker as someone working for a clear employer, on a full-time basis, in a large factory, supermarket or mine. Indeed classical industrial trade unions were forged by workers in large factories and industrial areas. This was the case in many countries where such unions won the right to organise and was also the case in South Africa, when a new wave of large industrial unions emerged after 1973’s Durban Strikes.

Going along with this structure were the residential spaces of townships. From the 1950s the apartheid regime increasingly came to accept the de facto existence of a settled urban proletariat and built the match-box brick houses in the townships of the apartheid era: the Sowetos, Kathlehongs, Tembisas.

So the working class was organised by capitalism into large industrial sites and brick houses in large sprawling townships.

Since the 1980s, the neo-liberal phase of capitalism has changed this.
 
Neo liberalism has not only been about privatisation and global speculation. It has also been about restructuring work and home. Today casualisation, outsourcing, work from home, labour brokers and other forms of informalisation have become the dominant form of work and shack dwelling the mode of existence of the working class. The latter is in direct proportion to the withdrawal of the state from providing housing and associated services.

Twenty years ago the underground workers of Lonmin would have lived in a compound policed by the company. Today the rock drill workers live in a shantytown near the mine.   

Also, mining itself has changed. Much of the hard work underground is now done by workers sourced from labour brokers. These are the most exploited workers, working the longest hours with the most flexible arrangements. Today it is even possible to own a mine and not work it yourself but to contract engineering firms like Murray and Roberts to do the mining for you. Into the mix can be added so-called “illegal miners” who literally mine with spades and their own dynamite and then sell on to middlemen with links to big businesses.

Lonmin has exploited these divisions – using the old mining industry strategy of recruiting along tribal divisions. The rock drill workers are Xhosas who are railed in from the Eastern Cape to heighten the exploitation at the coalface.

Add to this the toxic mix of mine security, barbed-wire enclosures and informal housing, as identified by the BenchMarks Foundation, and a picture of institutionalised violence emerges.      

By way of contrast the dominant trade unions in South Africa have largely moved up upscale towards white-collar workers and away from this majority. Today the large COSATU affiliates comprise of public sector white-collar workers, like the South African Democratic Teachers’ Union. The lower level blue-collar workers are now employed by labour brokers and are in services that have been outsourced, like cleaning, security and so on. They don’t fall within the bargaining units of the Public Sector Bargaining Council.

The Lonmin strike was the second in the last three months to hit the platinum sector. It was preceded by a strike at Implats. Both involved the Association of Mining and Construction Workers’ Union (AMCU) as workers sought an outlet for their frustrations.

The mining trade journal Miningmix published this story in 2009:

(A) gradual change had taken place in the profile of the NUM membership over the last 15 years; one that nobody had taken notice of. The NUM was originally borne out of the lowest job categories of South African mineworkers, mainly from gold mines. More than 60% of its members were foreigners, mostly illiterate migrant labourers.

Nowadays that number has dropped to below 40%. On the other hand, an increasing portion of the NUM’s membership comes from what can be described as white-collar mining staff, who had previously been represented exclusively by Solidarity and UASA. The local NUM structures in Rustenburg, like the branch office bearers and the shop stewards, are dominated by these skilled, higher level workers. They are literate, well spoken and wealthy compared to the general workers and machine operators underground.

So while the NUM remains the largest affiliate of COSATU, it is changing from a union of coalface workers to a union of above ground technicians. It is these developments that led to the formation of a breakaway union. Whatever the credentials of AMCU, its emergence is a direct challenge to the hegemony of NUM and of COSATU. As such, the federation has embarked on a disgraceful campaign of slandering the striking workers and their union.

In this they have been joined by the media.
        
With the notable exception of the Cape Times, the media’s culpability in demonising the striking workers has been reprehensible. In addition to only quoting NUM sources for information, or focusing on Malema, there have been no attempts to dig beneath the idea of manipulated workers and inter-union rivalry.

They all depicted the rock drillers as uneducated, Basotho or Eastern Cape Xhosas, whilst flogging the idea of an increase to R12 500 as “unreasonable”.

Then there is the notion that workers went to AMCU because they were promised R12 500. This fiction is repeated endlessly by the media. Journalists are of course happy to source this from “unnamed” NUM sources. The slander here is that workers are so open to manipulation that they will believe any empty promises. This plays to the prejudice repeated by Frans Baleni of NUM from his Nyala that rock drill workers are uneducated, and it bolsters the idea that AMCU is some kind of slick willy operation that must take responsibility for the massacre.

Anyone with any experience of organising knows that trade unions don’t come to workers like insurance salesman. In the main, workers form their own committees and then send a delegation to the union office demanding that an organiser come and sign them up. Or, they simply down tools forcing their employer to contact a union organiser.

Nor is any strike decision, let alone a strike such as this one - unprotected, under the umbrella of an unrecognised union, in a workplace with mine security and where the workers themselves are far from home in a strange region - ever taken lightly. Wildcat strikes are probably the most conscious act of sacrifice and courage that anyone can take, driven by anger and desperation and involving the full knowledge that you could lose your job and your family’s livelihood.

In normal times trade unions can be as much a huge bureaucratic machine as a corporation or a state department with negotiations conducted by small teams far from the thousands of rank-and-file members. Strikes change all that…suddenly unions are forced to be conduits of their members’ aspirations.

Whatever the merits of AMCU as a democratic union or as one with any vision of transformation; whatever the involvement of the Themba Godis, the workers of Marikana made their choice:  to become members of AMCU and risk everything, including their lives, for a better future.

For that we owe them more than just pious sympathy. There is a job of mobilisation and movement-building to be done.
                         
Almost 40 years ago, in 1973, workers from companies around Durban came out in a series of wildcat - then really illegal - strikes. Today this event is celebrated by everyone as part of the revival of the anti-apartheid movement and the birth of a new phase of radical trade unionism, culminating in the formation of COSATU.

But in 1973, the media highlighted the threat of violence and called for the restoration of law and order. The apartheid state could not respond with the kind of killings that happened at Marikana because the strikes were in industrial areas, but they invoked the same idea of ignorant misled workers (then they were seen as ignorant Zulus) and had homeland leader Mangosutho Buthelezi send his emissary, Barney Dladla, to talk to the workers.

While in exile, the SACP questioned the bona fides of the strikes, invoking the involvement of Buthelezi to perpetuate the fiction of “ignorant Zulus” because they were not called for by the liberation aligned union body, SACTU. Some in SACTU circles raised the spectre of liberals and CIA involvement in the new worker formations with an agenda to “sideline the liberation movement”. This separation of the ANC and its allies from the early labour movement was to lead to the divisions between the “workerist unions” and the “populist unions” in the labour movement and was to continue within COSATU.
                                              
How easily people forget this when workers forge new movements today.

For a long time now the ongoing service delivery revolts throughout the country have failed to register on the iPads and Blackberries of the chattering classes. This is because of the social distance of the middle classes to the new working classes.

Now the sight of the police shooting striking workers on TV has brought the real world of current struggles right into the lounges and bedrooms of public opinion.

So far the strikers have stood firm not only against the police and Lonmin, but also against the media labelling their strike “illegal”. Strikes are not illegal in South Africa; they are only protected or unprotected. Meanwhile NUM and COSATU are rallying behind their ally, the ANC, to stigmatise the strikers and their union as “paid by BHP Billiton and the Chamber of Mines”.   

In the midst of our outrage at this brutality let us acknowledge that a new movement is emerging. Such early signs do not as yet indicate something grand and well organised. Movements are notoriously messy and difficult to assign to some kind of predetermined ideological box. We do not know what ups and downs people will go through but when the seeds of a new movement are being planted it is time to ask what the rest of us can do to help it to grow.

Gentle is the director of the International Labour Research and Information Group (ILRIG), an NGO that produces educational materials for activists in social movements and trade unions.

Read more articles by Leonard Gentle. 

 

Source: SACSIS