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South Africa: Marikana Perspectives, 2
AfricaFocus Bulletin
June 30, 2015 (150630)
(Reposted from sources cited below)
Editor's Note
"President Jacob Zuma's response to the Marikana Report is
underwhelming, to say the least. He was allowed to avoid being
forced to act in a more pointed way following what happened at
Marikana because Judge Ian Farlam's recommendations are legally and
socially conservative, and morally weak. The recommendations that
essentially pass the buck to other state agencies to re-investigate
will have left most the victims and families of victims of the
killing spree in August of 2012 feeling cheated." - Greg Marinovich
Although the report met with widespread criticism inside the country
from the families of victims and their supporters, as well as other
commentators, it gained little attention outside South Africa. For
many, the police violence in August 2012, and the close
collaboration between the mining company and state officials in
repressing a strike by the lowest-paid workers, has made Marikana an
emblematic symbol for an era of post-apartheid plutocracy, as did
Sharpeville for the apartheid era in the decades following 1960. But
neither the South African political and economic establishment nor
world public opinion seems to regard accountability or reform in
policing or in the mining industry as calling for more than proforma
banalities.
For those who want to dig deeper, the 2014 documentary film "Miners
Shot Down" (http://www.minersshotdown.co.za/)is by far the best and
most powerful introduction. Fortunately, it is now available on
YouTube, including interviews, police footage, and evidence made
available to the Commission. See https://www.youtube.com/watch?v=EN199WpXBmU&index=2&list=PLWcjCoSExivT1o4x_bESBv265leXn2UXB (note, there are other
versions available on-line, but this one has captions and the best
technical quality). [link updated September 2016]
This AfricaFocus Bulletin includes a "takeaways" summary
by AfricaFocus of a report by Dick Forslund of the Alternative
Information and Development Centre in Cape Town, documenting how
profit shifting within the British company Lonmin and subsidiaries
in South Africa and Bermuda hid the fact that the company could have
easily paid the demands of the strikers for a living wage, and that
neither the South African tax authorities nor the South African
Department of Labour carried out their duties to monitor and
regulate company actions.
It also includes a detailed commentary by Greg Marinovich, the
photographer and writer who covered in depth the strike and the
killings at the time.
Another AfricaFocus Bulletin sent out today, and available on the
web at http://www.africafocus.org/docs15/mar1506a.php, contains text
excerpts from a Mail & Guardian report featuring photos and
narrative on two key points: the killings at "scene 2," where miners
were hunted down and shot by police away from the media cameras
which recorded "scene 1," and on the housing promised by Lonmin to
workers as part of a social responsibility plan that was never
implemented.
Other recent commentaries include:
"Commission Makes 'Devastating' Findings Against Police"
AllAfrica.com, June 26, 2015
http://allafrica.com/stories/201506261379.html
"Marikana Report: The continuing injustice for the people of a
lesser God", Ranjeni Munusamy, Daily Maverick, 26 Jun 2015
http://tinyurl.com/pnt9mjv
The full Commission of Inquiry report is available at:
http://tinyurl.com/pdkkoow
A concise summary is available at: http://tinyurl.com/nbgut3e
For previous AfricaFocus Bulletins on Marikana, including links to
multiple other sources, see
http://www.africafocus.org/docs12/saf1209a.php,
http://www.africafocus.org/docs12/saf1209b.php, and
http://www.africafocus.org/docs13/mar1308.php
++++++++++++++++++++++end editor's note+++++++++++++++++
The Bermuda Connection: Profit shifting, inequality and
unaffordability at Lonmin 1999-2012
Dick Forslund
Alternative Information and Development Centre (AIDC), June 2015
AfricaFocus "takeaway" points from the 84-page report, with
additional links to news coverage
Full report available at http://aidc.org.za - direct URL:
http://tinyurl.com/neb6fwp
[Note: while AfricaFocus normally reposts excerpts from an original
document rather than summarizing, sometimes that is very difficult
to do despite the importance of the document. Thus the wording of
the text below is the responsibility of the AfricaFocus editor.]
- The report, an earlier version of which was prepared and presented
to the Marikana Commission in September 2014, provides extensive
technical detail, based on independent research and on testimony to
the Commission, to evaluate Lonmin's contention that it could not
afford to pay the wage increases demanded by the rock drill
operators (RDOs), the lowest paid mine workers who do the hardest
and most dangerous work underground.
- The RDOs were asking for a monthly base pay of 12,500 Rand
(approximately $1,500), an increase of more than double the previous
rate of 5,405 Rand.
- In comparison, the former chief operating officer Lonmin, Mohamed
Seedat, was brought in during the strike as a consultant at a rate
of 25,000 Rand a day, reverting to his previous rate of 11,700 Rand
a day in October 2013. That is, he was paid twice as much per day
as the RDOs were asking for as a monthly rate.
+++++++++++++++++++++++++++++++++++++++
"Lonmin under a scorching spotlight," September 15, 2014
http://tinyurl.com/n9wslmn
"One of the biggest criticisms of Lonmin has been the appalling
conditions that their lower/lowest earning employees live in. The
Commission had documents before them that 84% of Category 3 to 9
earn R4,336 per month (this was before the pay rise from the latest
2014 strike). This accounts for over 20,000 of Lonmin�s employees.
On top of that, those who choose not to live in the hostels receive
R1,850 a month as a housing allowance. Workers earning so little
will more than likely use a sizable portion of the housing allowance
to help feed, clothe and school their families, and that is exactly
what every interviewee I have spoken to over the last two years
does.
For this reason, they either rent a room in a 'ma-line� compound, or
erect their own shack on rented land, enabling them to use part of
the housing allowance elsewhere. But it is not exactly as if they
could incrementally improve their living conditions by spending the
full amount of the allowance - as in any mining town, rental
accommodation is scarce, and prices are high."
++++++++++++++++++++++++++++++++++
- In addition to low wages, the most obvious failure of Lonmin
management was to fulfill commitments under its "Social Labour Plan"
to provide decent housing for workers. Despite commitments made in
2006 to build 5,500 houses, and inclusion of this obligation in
funding provided by the World Bank's International Finance
Corporation (see http://tinyurl.com/q8mebgt), six years later only
three "show" houses had been built.
- While Lonmin was in financial difficulty in 2012 because of the
crash in platinum prices in 2008, its previous practices of profit
shifting among subsidiaries (within South Africa and in Bermuda) and
with its parent company in London, show massive and questionable
diversion of funds from the mining operating companies that employ
the workers and manage the mines. The AIDC report, reviewing
financial reports from 1999 to 2012, provides calculations showing
that these funds would have been adequate to pay the strikers'
demands and make the investments in housing. At the same time the
operating company Western Platinum was paying some 7 billion Rand in
dividends to the parent company in London (82%) and to the Black
Economic Empowerment company Incwala Resources (18%).
- The precise mechanisms for these transfers included (1) "marketing
fees" paid to the Bermuda subsidiary of the company (Western Metal
Sales Limited), although there is no evidence that this was other
than a paper transaction in an office in Bermuda, and (2)
"management fees" to a subsidiary with offices both in South Africa
and London, but considered an "external company" in South Africa
(Lonmin Management Services).
- Bermuda is a British overseas territory and a well-known tax
haven, with no income tax for corporations or individuals. Although
the Lonmin parent company in London is theoretically liable for
taxes, it in fact paid no taxes in UK from 2000 to 2013. Income
subject to tax in South Africa was therefore reduced by the amounts
transferred as payments for "marketing" or "management" to Bermuda
or London (see also http://tinyurl.com/nqk8cw5).
- The rates for these "non-goods" transfers are determined within
the company and not by "arms-length" markets. Such mechanisms are
common and may or may not be illegal (and thus classified as
"illicit financial flows" by reports such as those by Global
Financial Integrity and the Mbeki Commission - see
http://www.africafocus.org/intro-iff.php for backgrouond).
- However, it is clear that even if legal, such arrangements remove
resources not only from taxation by the South African state but
also from resources available for the company to meet its
obligations to its workers. The South African state, whether through
the South African Revenue Services or through the Department of
Labour, has continued the cozy relationship with Lonmin, as with
other mining companies, rather than sought to implement substantive
reforms that could increase benefits to the workers and to South
African society.
- This is apparent, the AIDC report notes, even in the official
reports that Lonmin and other companies are required to file under
the Employment Equity Act of 1998, in which Section 27 requires
reports on remuneration and benefits and plans to address
"disproportionate income differentials." The Department of Labor
form collects data on income differentials by race and gender
"within" each level of the occupational hierarchy. However, there is
no attention given to income differentials between the different
levels, including the vast disproportion between upper management
and the lowest paid workers, who are almost entirely Black.
In the shadow of Marikana, a lost opportunity for justice
Greg Marinovich
Daily Maverick, June 29, 2015
http://tinyurl.com/oswafju
President Jacob Zuma's response to the Marikana Report is
underwhelming, to say the least. He was allowed to avoid being
forced to act in a more pointed way following what happened at
Marikana because Judge Ian Farlam's recommendations are legally and
socially conservative, and morally weak. The recommendations that
essentially pass the buck to other state agencies to re-investigate
will have left most the victims and families of victims of the
killing spree in August of 2012 feeling cheated.
The president's statement on the Marikana Commission's report was
marked by a complete lack of emotion or compassion. The president
did not dwell on the negative, and instead chose a bland path that
concentrated on the technical aspects of Farlam's report. Most of
these were calls for prosecution teams to investigate miners and
certain cops, and inquiries to be made into the national and North
West provincial commissioners' fitness to hold office. And contrary
to speculation, Deputy President Cyril Ramaphosa was not found to
have been the instigator of the massacre.
The report's recommendations are a great disappointment to the
families of victims, as well as to anyone who believes that
accountability goes hand in hand with power. There are, startlingly,
no clear findings in the report.
The apparent lack of finding more individuals directly responsible
was frustrating to a lawyer with one of the legal teams at the
Commission, whose identity is known to Daily Maverick but who
preferred not to be named publicly. According to this lawyer, the
Commission "seems to have thought it was not its job to decide on
the culpability of individuals, but instead to push the question on
to other agencies. If that was the case, why spend two years
considering all the facts and details?"
The director of the Centre Applied Legal Studies at Wits, Prof.
Bonita Meyersfeld, says, "The report does no justice to the pain and
scarring that is the legacy of Marikana. Farlam could and should
have gone much further. He lost an opportunity to leave a legacy of
justice regarding Marikana."
A dry as the findings are, the detail and evidentiary discoveries of
the report are nowhere near as bland as they might seem. Three
hundred days of actual hearings over two and half years paint a
clear picture of many of the events, and of the attitudes of those
involved.
It is clear that among the thousands of striking miners, there was a
small group prepared to take other's lives to achieve higher wages,
including some of the leadership. Some should face murder charges.
It is clear that Lonmin's executives had no interest in finding
common ground with their workers, whom they knew were underpaid.
Management's only interests were company profits and the
shareholders' financial well-being, and so they exposed many workers
to danger, some fatally: "Lonmin's reckless actions in urging
employees to come to work in circumstances where they were aware of
the potential dangers to them and in the full knowledge that they
could not protect them, falls to be condemned in the strongest
terms. Lonmin must, in the Commission's view, bear a measure of
responsibility for the injuries and deaths of its employees and
those of its sub-contractors."
It is clear that Lonmin has failed to fulfil its legal obligation to
the government to provide decent housing, clean water and dignified
toilets for the communities around their operation. They must do so
or lose their license.
It is clear Cyril Ramaphosa used his political power to bully two
government ministers to act in the narrow interests of Lonmin, in
which he had a 9% shareholding. Despite this, Farlam found little
fault in his behaviour.
It is clear organs of state favoured the interests of the capitalist
elite over that of the workers.
It is clear NUM had no interest in promoting the interests of the
rock drill operators at Lonmin; they preferred to keep their cushy
relationship with management intact: "Very much like Lonmin, NUM
encouraged employees to report to work with the full knowledge of
the intimidation and violence that prevailed during that period�
Their actions, were, in the circumstances, reckless and ill
considered."
It is clear AMCU was desperate to displace NUM as the dominant
mining union, yet despite their president, Joseph Mathunjwa, playing
a role in trying to save lives in the last hour before the massacre,
he cynically exploited the opportunity offered by the strike to
incite the workers against NUM, and get his union's foot in the door
at Lonmin.
It is clear, and irrefutably demonstrated by various parties to the
Commission, that there was no attack by the miners on the police
before the fusillade of gunfire left the first 17 men dead and dying
at Scene 1. There was no need for the police to open fire with
assault rifles.
It is clear that R5 assault rifles should not be standard police
issue. "One of those who died was shot hundreds of metres from where
the police TRT opened fire on running miners. Mr Gwelani, who was
unemployed, was not a striker� he went onto the koppie on 16 August
to take food to his uncle, who was a striker. His body was found on
the path to Nkaneng, north of the koppie, more than 250 metres away
from the TRT line, but within the funnel of fire� He was shot
through the back right hand side of the head and would have been
immediately incapacitated and dead almost immediately after he was
shot� Mr Gwelani's case provides the clearest illustration (if any
are needed) of why the use of military assault rifles should be
banned in public order situations."
It is clear that the police had no intention of fulfilling their
constitutional obligation to protect the lives of citizens above all
else when they embarked on a ridiculously improbable �plan'.
The abovementioned lawyer, as a member of one of the legal teams,
commented, "Many of the findings are positive and support the clear
conclusion that the police are culpable for 34 deaths on 16 August
2012. [The report] places responsibility on those who were in charge
of the decision-making at the highest level of the SAPS. And
contrary to the president's statement last night � it concluded that
the Executive may have been involved in the key decisions."
For many others, that there was obviously, but not explicitly,
untoward and covert interference by Cabinet members in policing
decisions. Advocate Dali Mpofu, representing over 300 surviving
miners, says, "Although I welcome some of the findings which we
proposed, such as the Section 9 inquiry against General Phiyega, we
share the initial view of our clients that the Commission did not go
high up enough in the chain of command in finding accountability.
The biggest problem with Phiyega and Mbombo was their proven
succumbing to political pressure and their taking into account
political considerations in determining the rushed timing of the
operation. If indeed the politicians are absolved, it should follow
that Phiyega and Mbombo did nothing wrong. These findings are
incongruous."
Further down the police hierarchy, it is clear that all the
responsible commanders, and especially Brig. Adriaan Calitz, who was
the field commander, were wilfully blind and deaf to the killings as
they happened. What does this mean? They either covertly conspired
that many miners be killed, or were content to let the operation
continue, knowing full well that the policemen were spiralling out
of control on a shooting spree.
While the Commission's disappointing report does not go that far, it
does excoriate Maj. Gen. Ganasen Naidoo, who "participated in a
chaotic free-for-all which cost sixteen people their lives, without
exercising any command and control and without taking any steps to
stop the shooting and isolate the problems". In particular, Farlam
agreed with the evidence leaders that "firing from the K9 members
under the command of Major General Naidoo and the NIU members from
the east is most likely to have caused the death of those strikers
killed in the area among the crevices and rocks."
Among these was Henry Mvuyisi Pato, initially known as Body N, the
miner Daily Maverick contended back in 2012 was executed by police.
The commission's evidence shows that Pato was among several men
police killed, most likely in "an unlawful manner". We called those
murders; we still do. The Commission has recommended that Naidoo be
investigated by the Director of Public Prosecution. The sheer number
of police who fired their weapons means that other than Naidoo, not
a single person suspected of shooting a miner was cross-examined.
It is clear most, if not all, police written statements in the
aftermath were false or couched to obfuscate their role.
It is clear there were concerted and consistent efforts by the upper
levels of police management to obliterate any footprints that might
lead from the massacre back to the ministers or the president. That
began the day after the shootings, when the police released a
purposefully misleading statement, "The Commission agrees with the
evidence leaders' submission that the most reasonable conclusion is
that the report which had been prepared for the president and the
Minister was deliberately amended when it was reformulated into a
media statement in order to obscure the fact that there had been two
shooting incidents, separate in time and space. This resulted in a
deliberate misleading of the public, who were brought under the
impression that all of the deaths had been caused at the
confrontation at Scene 1 which they had seen on television."
In spite of what the Commission's work uncovered, the CALS' Bonita
Meyersfeld says, "The report is disappointing in its lack of any
findings. The referral to 'investigation' makes a mockery of the
last two years of investigation. It seems a robust position as taken
vis-a-vis the police but it appears that the top police and
political officials -- all of whose actions do warrant investigation
-- will remain insulated from any inquiry, with the exception of
Phiyega.
The Commission, under Farlam's chairmanship, has been negligently
timid in its most crucial finding, as the lawyer intimate with the
Commission states. "The Commissioners ducked most of the difficult
questions they were asked. [The Commission] seems to have thought
that it was not relevant to decide whether the strikers at Scene 1
were intending to attack the police. Given that all the evidence
suggests that the strikers were not intending to attack, one
suspects the families of the victims feel differently. It seems to
have thought it was not its job to decide on the culpability of
individuals, but instead to push the question on to other agencies.
If that was the case, why spend two years considering all the facts
and details? And it decided it was not in its remit to make
recommendations on compensation, thus forcing the families of the
victims to endure many more years of legal processes to secure the
justice they deserve."
Much as all interested parties tuned in to watch the president
release the report, those with the most at stake -- the widows and
families of the dead miners -- were given just a few hours' notice
of the release. In Marikana, the power outage ran until just after
7PM, as the speech was broadcast. Thapelo Lekgowa, a researcher and
activist, was with them. "We ended up listening to the president on
a cell phone radio. The widows and miners there missed almost
everything and spoke very little during the president's speech," he
said.
Let it not be forgotten that little has changed in her attitude
since the National Commissioner Riah Phiyega addressed a police
parade on 17 August, telling those who had just the day before
killed 34 men: "Whatever happened represents the best of responsible
policing. You did what you did because you were being responsible."
AfricaFocus Bulletin is an independent electronic publication
providing reposted commentary and analysis on African issues, with a
particular focus on U.S. and international policies. AfricaFocus
Bulletin is edited by William Minter.
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