On the first day of the Farlam Commission of Inquiry in October 2012, advocate Dumisa Ntsebeza, senior counsel for the families of the deceased miners, stood up, acknowledged the rows of empty seats at the Rustenburg Civic Centre, and asked where those families were.
“These are not just figures,” said Ntsebeza. “These are people. These are people who lost their loved ones.
"The commission is about dead people ... it should be about justice done to the families of those who died," he said, emphasising that the presence of the miners’ families was integral to the humanity of the proceedings.
He then warned: “Let this commission never go down in history as a commission that never cared.”
Judge Ian Farlam postponed the sitting until arrangements were made by government to transport families from as far afield as the Eastern Cape, Lesotho, and Swaziland to Rustenburg to bear witness.
But the initial absence from the commission of the people most affected by the massacre at Marikana spoke of how they were seen by those with power – in government, at Lonmin and at the commission – as a mere afterthought to the more political question of why 34 miners were killed by police on August 16 2012.
The families became unwanted baggage on the subsequent journey either to obfuscate or to clarify that answer.
It was the first in a litany of experiences for the families that further cast them – chillingly – as nothing more than anonymous poor blacks, relations of allegedly violent criminals – uneducated, lazy rural folk lacking in intelligence and sentience.
This contempt is displayed when the state makes unilateral decisions for the families and when government funds for miners’ funerals appear to be siphoned off.
Local municipalities were tasked with the disbursement of the R25 000 government provided for each family to bury its dead.
When Xolelwa Mpumza asked a government official why the family had received only R5 000 of the R25 000 for her brother Thobile’s funeral, she was told she “must understand how politics works”.
“I was told that they didn’t have a budget for this [funeral] because they didn’t know people will die. I was told I must not put pressure on government because there is nothing to be done about it,” said Mpumza, who has yet to receive any information about the outstanding money from the Alfred Nzo municipality in the Eastern Cape.
Rural funerals are expensive communal rituals where cows (costing between R8 000 and R12 000 each) are slaughtered, along with sheep (about R3 000 each) to feed mourners, and the renting of tents, chairs and public address (PA) systems tests household budgets that are already stretched.
While in some cases the full payout was received, in others loved ones are sceptical about whether – not having been given cash in hand – they received the full value.
Families have raised questions about whether state-chosen funeral service providers and government officials may have skimmed the top off their grief. They have talked of inadequate numbers of chairs and portable toilets for mourners, of no PA systems and of whether the groceries bought by government officials and delivered to families really cost as much as they have been told.
Nandipha Yona says she was too grief-stricken to remember much about her husband Bonginkosi’s funeral, but her relatives had given government officials a shopping list: “They didn’t get everything from the list, they just bought what they thought was good for the family and I don’t have any receipts so I don’t know if they spent all the money or not,” she said.
Mongezi Pato, who paid for his son Mvuyisi’s funeral and only learnt later from his lawyers that government had promised to cover it, is still waiting for the R8 000 owed to him. He also spoke of receiving packages of food for the funeral that had evidently been opened and pilfered.
Such disdain, say families, is replicated when they seek assistance from government departments or Lonmin for social assistance or to formalise documents.
Makopano Thelejane said she received hampers from the department of social development containing rotten food and when she inquired was told her husband was a “criminal” and government would not help her.
When Betty Gadlela questioned officials at Lonmin and the Masakhane Provident Fund about why she and her five children had to share her husband Stelega’s provident fund with a woman she considered to have been his mistress, she was told “not to bring my Swazi ways to South Africa – the rules are different in this country”.
At a meeting in June with the department of social development in Lusikisiki, in the Eastern Cape, all the families present said they were treated like freeloaders and a “nuisance” by government officials who are unable to comprehend what the death of their breadwinners actually means for their survival.
Families say they have not been consulted on what programmes the government plans to initiate to sustain their livelihood and are cynical about those proposed – mainly vegetable-growing and sewing schemes – because they include broader community involvement.
Andile Yawa, whose son Cebesile is one of the dead, echoed the view of the majority of the Eastern Cape families when he said he had seen “too many government projects fail because too many people get involved”.
“It becomes about self interest,” he said. “If the government wants to start a project for the community, they must. But don’t put my son’s name to it because his family have no control over it, yet will take the blame when it fails.”
When the Socio-Economic Rights Institute, which represents the families of the dead miners, wrote to President Jacob Zuma on their behalf in June, asking for assistance of R1 500 a month until the commission is concluded, all they received was a letter confirming receipt.
The general feeling among the fathers, mothers and widows of Marikana is that they are being treated this way because they are perceived as “the families of criminals”.
It is a perception that appears to fit the state’s version of Marikana, which constructs what happened there around the use of muti, of armed, violent miners with a bloodlust and, significantly, of its police having acted in self-defence.
But it robs families of their dignity and raises questions about whether government has the political will to ensure the Farlam Commission is granted the wherewithal to do its job: Find the truth.
A lawyer involved in the commission, who asked to remain anonymous, said the commission has been characterised by “cluelessness” since its inception: “The department of justice and the commission started this investigation with no idea whatsoever about what it would take to do the job properly.”
The lawyer said this was evident from the “supine response of the commission to the police arresting and torturing witnesses”.
Another lawyer, who worked on the Truth and Reconciliation Commission (TRC) and is familiar with the current application to the Constitutional Court to rule on whether government should cover the legal costs of arrested miners, said there were more explicit provisions in the TRC’s Promotion of National Unity and Reconciliation Act to ensure that victims were treated with care and compassion and that witnesses were protected.
“In some instances, witnesses were held outside of the country to ensure their safety. There appears neither the money, nor the will to ensure witnesses at the Farlam Commission receive adequate protection,” said the lawyer, describing the commission as “politically charged”.
A source at the commission said there were concerns that a key witness who had been present at one of the murders that preceded the massacre would not testify “because he is known to police and he is still working underground, where ‘accidents’ can happen”.
This undermines the legitimacy of the commission – especially in the eyes of the Marikana families who are feeling increasingly traumatised by what they saw at the hearings.
The Farlam Commission lawyer said the rules of procedure, especially around cross-examination – which has been criticised for being random, meandering and prolonging the process – should have been firmer. Instead, the commission has been allowed to drag on for months after its initial four-month period.
This would suit the lawyers for Lonmin and the police, where pockets are deep, but not the lawyers of victims and their families – as evidenced by the application for state funding by those representing the miners arrested by police at the koppie, which is being opposed by government.
In papers filed with the Constitutional Court the estimated legal spend on advocates representing the different parties at the Farlam Commission recreates a David versus Goliath scenario.
The police, based on state attorney rates of R150 000 per day, retain seven advocates, costing government R3-million per month. Lonmin employ five advocates at commercial rates that are estimated at R2-million per month, while the single advocate for the arrested miners is on an actual rate of R340 000 per month.
It is understood that other public interest law firms involved at the Farlam Commission have slashed their legal rates because of constrained funding exacerbated by the commission’s extension.
“What is it about Marikana that prevents the government from doing the right thing?” asked the lawyer who worked at the TRC.
The lawyer working at the commission would not commit himself to speculating about whether government was acting nefariously or whether the “ineptitude” of the justice department in dealing with problems arising at the commission was “malice by negligence”.
As the commission stutters on, children are left unsupervised at home while mothers attend its hearings, job hunts are stalled, lives are in flux, crops go untended and hunger pangs grow sharper.
Ntsebeza’s question – “Where are the families?” – is ignored.
This shames the Farlam Commission, Lonmin, the government and the rest of the country.