Messages of hope

It is more than 15 years since the Marikana Commission produced its report. I am not going to attempt to summarise the findings of the Report. I would only note that the Enquiry revealed a sickness in the South African Police Service, going to the very top.

Now, evidence has emerged of what looks like further very serious sickness in the SAPS. Justice Madlanga, who was initially the senior evidence leader in the Marikana Commission, is now heading a Commission of Enquiry into the truth of the serious allegations and counter-allegations that are flying around, and into disputes and failings in the SAPS. The Marikana experience demonstrates how difficult it is to establish the full truth when people at the highest levels attempt to conceal it. We must all hope that he will be successful in his task.

So I am not going to talk about what the Marikana Commission found. Rather, I am going to reflect on what I think are two important lessons which emerge from this history.

The first lesson is about what the Marikana Commission did not investigate and what it could not tell us. The Commission was structured and functioned as a traditional legal process – 44 people had died, so who was responsible for their deaths? Who was guilty, and who was innocent, who did what unlawfully? That was obviously very important because that’s what the public, and those who had lost their loved ones, wanted and needed to know. And there needed to be prosecutions of people who had committed crimes, and dismissals of those who had failed to carry out their duties. We investigated this as fully as we could.

But on reflection, I now think we failed in a fundamental respect: we did not look into the underlying causes of what happened. We planned a second phase of the enquiry which could have looked into this but we ran out of time for it. We ran out of time because we were busy trying to find out who was guilty and who was innocent. We were able to do only a small part of phase two.

To me, the most shocking part of what I learned as an evidence leader, and what we needed to investigate, was not only the killings which took place. It was the level of alienation and anger on the part of the rock drill operators, who were at the heart of the strike. They seemed to be so alienated and angry that they felt entitled to do whatever it took to achieve what they wanted. One of the results was the brutal conduct which followed, some of it directed at their co-workers. The police response was to treat this as acts of war.

Thirteen years later, I keep asking myself: what was it about the working and living conditions of the rock drill operators that led them to believe that they were effectively at war with their employer and the law enforcement authorities?

It is difficult for someone like me to imagine the conditions under which the rock drill operators work – hour after hour, shift after shift, day after day, week after week, month after month, year after year, endlessly until you are exhausted and no longer able to work. It’s difficult to imagine what that is like. We should have gone underground to get at least some sense of the conditions and operations there. And we should have asked what realistic prospect the rock drill operators had of ever escaping from this life. Anecdotally, we heard that they had none. I don’t know whether that is true.

These are people whose work is at the heart of the mining enterprise – they are the people without whom, no mining can take place.

We should have asked how this relates to how work is valued and rewarded. We should have asked what, if anything, could be done about that.

Perhaps this is all inevitable in the mining enterprise. I don’t know. Whatever the answers, I suspect that they may go some way to explaining the anger, alienation and perhaps desperation that we saw. If this is indeed the case, these are questions that should concern all of us, and all of those in the mining industry.

If I were in the mining industry, what I would have taken away from Marikana was a deep concern that people who were working on the mines every day, living and working there for years, were in a state of undeclared hostility with their employer and the law enforcement authorities. They seemed to consider themselves entitled to do anything, anything at all, that would advance their interests, no matter the consequences for them and for others. That’s a very serious state of affairs.

If you have people living on your property and working for you, to have those people in that state of mind should give you cause for reflection. We really heard nothing of this – not from the rock drill operators, and not from those who ran the mine. We were all mainly doing what lawyers mainly do, trying to find out who was guilty and who was innocent.

But what we must have learnt from the Commission is the need for employers who are in those situations to be able to listen very carefully to those who work for them, and to make it possible for that anger to be expressed in other ways than violence, so that it can be heard and addressed.

Speaking as an outsider, it seems to me that that there are likely no shortcuts to finding solutions to these problems. It requires patience, open mindedness and a willingness to listen and to innovate.

The second lesson I draw is related to this.

The Bapo ba Mogale community are the historic owners of the land on which platinum-bearing farms in the North-West near Rustenburg, including Marikana, are situated. The community had a right to royalties in respect of the minerals extracted from the land. But Lonmin had a problem: the 2004 Mining Charter required it to have 26% black ownership. And so Lonmin proposed the conversion of those royalties to shares, in order to enable it to reach the target of 26%.

There were negotiations between Lonmin and people who purportedly represented the Bapo ba Mogale. An agreement was reached, which enabled Lonmin to reach the 26% black ownership level. But there were large numbers of people in that community who were effectively excluded from the process, and who were deeply dissatisfied by it and its outcomes.

Lonmin’s attitude seemed to be that they would reach an agreement with the statutory traditional council. They bent their backs to achieving that. But there were real disputes about who in fact represented the community, and whether the traditional council represented all who had an interest. The authors Gavin Capps and Stanley Malindi, in a detailed article based in part on Malindi’s research for his Masters thesis, refer to “the diverse settlements that make up the 40,000-strong Bapo community”. One should not be surprised that there are different views, and different representative bodies, within a community of that size and nature. Lonmin’s attitude was that it had to deal only with the traditional council.

On 20 July 2014 a portion of the community attended a meeting organised by the traditional council. 779 of those present voted in favour of the proposal, and 51 voted against it. The meeting passed a resolution authorising the traditional council to conclude the deal with Lonmin.

The next morning, Lonmin signed the deal with the Rangwane and two other community representatives. The full details of the deal were never made public.

We will never know how large a part of the community knew about the deal and supported it.

There were a lot of questions about the legal validity of the traditional council, and its power to conclude an agreement of this sort. But I’m not concerned here with questions of legality. To focus solely on legality is to miss the point. This was not an ordinary commercial deal. It was about the right to land held by a community for generations, and to the benefits that accrue from the land. It seems to me that the exclusive focus on (supposed) legality was a fundamentally flawed way of dealing with the matter. In this situation, it’s necessary to open the dispute up, to expose the contested claim and to address them. If you supposedly resolve a dispute such as this through a closed and limited process, you invite trouble in the future.

I hope that the present owners of the mine are aware of the limitations of the deeply contested process that was undertaken by Lonmin. I do not make a judgment about the rights and wrongs of the traditional council and the deal that was made – what I point out is that there was dispute, and that as a result of how the matter was dealt with, it would be surprising if the dissatisfactions do not continue.

This of course does not just apply to Marikana. I think a far-sighted mining company would say: I’d better engage with everybody. It doesn’t help to engage only with the officially recognised traditional leaders, because that may leave many people dissatisfied.

As it happens, the legal landscape has changed fundamentally since that deal was done.

When I was a young lawyer, a highly skilled property lawyer explained to me: South Africa is a mining economy. Property law is structured to recognise and facilitate this. Mining rights therefore trump all other rights.

For many years we all proceeded on this basis. Then three things happened.

First, in 1996 the Interim Protection of Informal Land Rights was passed. It was called IPILRA. IPILRA protects people’s land rights under customary law. They can’t be deprived of those rights except in accordance with the procedures set out in IPILRA.

Second, in 2006 the Mineral and Petroleum Resources Development Act was passed – the MPRDA. Section 5 of the MPRDA says that the holder of a mining right can go onto the land to which the right relates and mine it. That seemed to confirm what has always been the case – mining rights trump other rights.

Then third, in 2019 the Constitutional Court handed down judgment in the Maledu case. The Court noted that IPILRA provides that no person may be deprived of an informal right to land without his or her consent. Where land is held on a communal basis, a person may be deprived of the land or a right in the land in accordance with the custom or usage of the community. All affected persons must be given notice and given a reasonable opportunity to participate at any community meeting where a decision to dispose of their rights is to be taken. Such a decision requires the support of the majority of the affected persons who are present at the meeting.

The Court held that the MPRDA does not abolish these rights.

That has changed things fundamentally. Now, where land is held communally, all of the people living on it and using it have a right in at least part of that land. They all have to be consulted before any decision is made by them, or by someone they have authorised, to dispose of their rights. If the holder of a mining right wants to mine the land, it must go through a dispute resolution process with them as set out in the MPRDA.

The mining industry is faced with a new situation: where it wants to mine communal land over which it has a mining right, it must enter into a consultation process with the members of the customary community (not the traditional council) and obtain their consent. When all else fails, it can ask the Minister to expropriate the land or the rights in the land.

This requires mining companies to respect rural people’s land rights and to deal with the people properly. It requires what should always have been the case – a recognition that all of the people living on the land have rights to it and that those rights must be treated respectfully.

Mining companies can no longer say, as they did in the Maledu case, that the granting of a mining right expropriates the rights of the people living on communal land.

The rights of the members of traditional communities have to be respected. And it will be necessary to obtain their consent to mining on their land, by dealing with them directly or through their properly authorised representatives. Quick-fix deals with traditional councils – the method used in the past – will not be a solution.

It is now thirteen years after Marikana. We have to reflect on the lessons of Marikana.

One of them, of course, is to ensure that the police act like police in a democratic state, dealing with people as citizens – not like an army dealing with an enemy force.

But I suggest that there is a need also to address the underlying issues. I have addressed two. First, what is it like for people to spend their working lives underground drilling rocks, with no prospect of change or advancement and what are its consequences; and second, the need to recognise that people who occupy or use land, including land that is held communally, have rights that are protected under the Constitution.

These are not easy matters. But in my opinion, it is only if we address these matters that our mining industry will be able to thrive, to the lasting benefit of those who work on the mines, those who own them and our country.