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Marikana Commission Report raps security management

The Marikana Commission Report on the Lonmin Mine strike and massacre, has several implications for social and security management.

This post contains some extracts from the report submitted to president Zuma on 31 March, by Justice Ian Fralam, PD Hemraj, and BR Tokota, and released in June 2015.

EXECUTIVE SUMMARY OF THE MAIN FINDINGS MADE BY THE MARIKANA COMMISSION
After an unprotected strike accompanied by violence and intimidation, Impala Platinum decided in April 2012 to grant significant wage increases to its Rock Drill Operators (RDOs). This decision was made outside the recognised collective bargaining structures.

As a result of this, the RDOs at the Karee shaft at Lonmin approached Mr MG Da Costa, a Lonmin vice president responsible for mining at the Karee mine, and requested that their nett wages be increased to R 12 500 per month. The executive committee of Lonmin considered this request and decided instead to grant allowances to its RDOs as follows: R 750 per month to unassisted RDOs, R 500 per month to assisted RDOs and R 250 per month to assistant RDOs.

This increase was not acceptable to the RDOs. They had a meeting on 9 August 2012 at which they decided to embark on an unprotected strike in support of their demand and to march the following day to the Lonmin Platinum Division (LPD) to present their demand.

When it was informed of the RDOs’ plans, the Lonmin management decided not to speak with the RDOs but to tell them to present a memorandum containing their demands to members of the SAPS. On 10 August 2012, the RDOs, who did not carry any arms except traditional sticks, marched to the LPD. When asked to present a memorandum they replied that they could not do so because they could not write.

The strikers were told that their conduct amounted to serious misconduct and they were instructed to report for duty. They were also told that failure to comply with this instruction would lead to the termination of their employment. The strikers then left. That night the strikers set about enforcing the unprotected strike by violence and intimidation directed against those workers who were not participating in the strike.

NUM assisted some of the workers who wished to report for duty to go to the shafts. Lonmin security engaged with strikers who were intimidating workers on their way to the shafts and fired rubber bullets at them.

The next day, on Saturday 11 August, a group of approximately 3 000 strikers, some of whom were armed with dangerous weapons, such as assegais and spears, marched to the NUM office with violent intent.

Armed miners on strike (Photo; ENCA, Lanyaro Sello).
Armed miners on strike (Photo; ENCA, Lanyaro Sello).

Members of Lonmin security, who had received information as to the strikers’ intentions, went to the NUM office and warned the NUM officials there about what the strikers intended and advised them to leave the office. They did not accept this advice and decided to defend their office.

As the strikers approached, one or more NUM officials fired shots and two of the strikers were injured. The strikers ran away and one of the injured strikers was further assaulted by NUM members. The injured strikers were taken to the Andrew Saffy Hospital at Marikana.

Some strikers thereafter bought dangerous weapons and the strikers decided to occupy a koppie (hillock) at Wonderkop (referred to in the evidence as ‘koppie’) and did so.

In the course of the afternoon the strikers decided to call in the assistance of a sangoma to provide them with muti to make them strong and brave. Mr Xolani Nzuza, who was described as the deputy leader of the strikers went with other strikers to fetch the sangoma, who returned with them to the koppie where rituals were conducted which were seen by members of the SAPS. The local SAPS decided to set up a Joint Operations Centre (‘JOC’) at Marikana to deal with the situation. A plan was drawn up but nothing appears to have been done at that stage to implement it.

On the morning of 12 August a group of about 3 000 strikers proceeded to the NUM office in order to attack it. On the way, they met Lonmin security and attacked them, injuring Messrs Louw and Vorster. The members of Lonmin security managed to escape except for Messrs Mabelane and Fundi, who were attacked by the strikers and murdered. Their bodies were set alight as was the motor car which they were using. Mr Fundi’s tongue was cut out to be used for making very strong muti. The strikers also attempted, without success, to gain access to the NUM office. Further rituals were observed on the koppie

After the attack on their office the NUM officials went into hiding. Mr Zokwane, the president of the NUM, came to Marikana to ascertain what happened. He thereafter telephoned Minister Mthethwa, the Minister of Police, to inform him that in his view more members of SAPS were required at Marikana. Mr Ramaphosa, who was then a non-executive director of Lonmin, was informed about what had occurred and he also telephoned Minister Mthethwa and informed him that the situation at Marikana was such that a greater police presence was required and asked the Minister if he could do something about it.

Despite the security situation at Marikana, and the danger that workers reporting for work might be assaulted by strikers, Lonmin arranged for calls for workers to come to work to be broadcast.

That evening strikers went to the K4 shaft, where Mr Mabebe, a worker who had come to work, was murdered. In addition, three workers who reported for work were injured and several vehicles were damaged.

Early the next morning, Mr Langa, another worker who was on his way to work, was murdered by strikers. Later that morning Major General Mpembe, a Deputy Police Commissioner for the North West Province and Brigadier Calitz, the North West Province Head of Operational Services, accompanied Lieutenant General Mbombo, the Provincial Commissioner for the North West Province, to Lonmin, where they were briefed by Lonmin management.

Lieutenant General Mbombo appointed Major General Mpembe as the Overall Commander of the operation and Brigadier Calitz as the Operational Commander of the Police operation at Marikana.

While they were there a group of strikers were seen on CCTV on their way to the K3 shaft. They were armed with dangerous weapons and had gone to see if anyone was working at K3 shaft. On their way there they were met by members of Lonmin security who told them that no one was working at K3. They then turned back and proceeded along a railway line on their way back to the koppie. When they were seen on the CCTV Lieutenant General Mbombo instructed Major General Mpembe to disarm and disperse them.

He took a group of about 80 members to the place where the strikers were. He spoke to them and asked them to lay down their weapons. They were unwilling to do so. He said he would count to ten to give them a chance to lay down their weapons. When he reached three, they stood and started walking away. He decided not to attempt to engage with them but to escort them back to the koppie. Because he was afraid they might attack a nearby informal settlement, he ordered Nyalas to move to a position near the settlement in order to protect it.

As the strikers proceeded under police escort towards the koppie, a member of the SAPS, without being ordered to do so by Major General Mpembe, discharged a teargas canister and another fired a stun grenade. The strikers then turned on the police and attacked them.

In the ensuing meleé one SAPS member was killed on the spot and another fatally injured. A striker was killed by police fire. Two other strikers were also killed thereafter, one was shot by police gunfire on the other side of a nearby stream, the other was fatally injured and died in front of a house in the informal settlement. It is not clear whether he was killed by police action. Another SAPS member was injured and taken to hospital.

That evening the National Commissioner, General Phiyega arrived at Marikana accompanied by the Provincial Commissioner for Gauteng, Lieutenant General Petros, Major General Annandale, Brigadier Fritz and Lieutenant Colonel Scott, all from the SAPS head office.

A JOC was established at Marikana. Lieutenant Colonel Scott together with POP members then drew up an operational plan. This plan provided for the encirclement of a relatively small group of strikers who would be on the koppie early in the morning.

The plan could not be implemented early on the morning of Tuesday, 14 August, either because none of the commanders came to the JOC early in the morning or because there were not enough SAPS members available at that stage. More members were expected from other provinces. The plan was further refined during the day and accepted by the full Joint Operations Center Committee (‘JOCCOM’), which included several experienced POP commanders.

It was decided to try to persuade the strikers, who were on the koppie in possession of dangerous weapons and were opening flouting the law by contravening section 2(4) of the Dangerous Weapons Act, to lay down their arms and leave the koppie.

Negotiators were called in who conducted negotiations with the strikers, explaining that their concern was the weapons and that they were not involved in the dispute between the strikers and Lonmin regarding their wage demand. The strikers told the negotiators that they wanted their employer to come to the koppie to talk to them about their wage demand.

While the negotiations were proceeding it was reported that there was a dead body behind the koppie. The police, with permission from the strikers’ leaders, went to the body and removed it. The body was that of Mr Isaiah Twala, a NUM shop steward, who had been on the koppie with the strikers. He had been murdered, obviously by strikers.

While these events were taking place Lieutenant General Mbombo was holding discussions with Lonmin management. She wanted the police operation to deal with the situation to take place the next day. She said she realised that it would involve bloodshed. She wanted Lonmin to send an ultimatum to the strikers to return to work and said that if they did not do so police action would follow. She gave as a reason why police action was required the next day the need to pre-empt action by Mr Julius Malema, who, it was thought, might come to Marikana and defuse the situation.

Lieutenant Colonel McIntosh, the chief SAPS negotiator, returned to the JOC and he and Major General Mpembe tried to persuade Lonmin to agree to the strikers’ request that a senior person from Lonmin should go to speak to them about their wage demand. The Lonmin managers refused to do so saying that in terms of the collective agreement in place wages could not be increased until after the two year period covered by the agreement came to an end.

The police action of which the Provincial Commissioner had spoken did not take place on the morning of Wednesday, 15 August, for two reasons. First, it was realised that it would be a breach of faith to launch the encirclement action while negotiations were still proceeding and, secondly, a new development took place. On the suggestion of Mr Xolani Gwala, the presenter of the SAFM programme, ‘The Forum at 8’, it was agreed that Mr Zokwana, the President of NUM, and Mr Mathunjwa, the President of the Association of Mineworkers and Construction Union (AMCU), would go to the koppie and try to persuade the strikers to lay down their arms and leave the koppie.

Mr Zokwana had to abandon his address as the strikers refused to listen to him. Mr Mathunjwa fared better. He advised the strikers to go back to work so that if negotiations broke down they could approach the CCMA and get a certificate for a protected strike. As it was getting dark, the strikers ask him to come back at 09h00 the next morning so that the discussion could continue.

On his return to the JOC Mr Mathunjwa overconfidently predicted that the strikers would agree the next day to lay down their arms and disperse. Mr Mathunjwa had been told by the Lonmin management that if the strikers laid down their arms and returned to work they would discuss their wage demands with their leaders through the usual structures.

That evening, at a meeting of the National Management Forum (NMF) of the SAPS, attended by the National Commissioner, the nine Provincial Commissioners and senior police officials from head office, Lieutenant General Mbombo, on being informed of Mr Mathunjwa’s prediction, decided that if the strikers did not lay down their arms the next morning they would be forcibly dispersed, disarmed and arrested.

The matter was discussed for about an hour at an extraordinary session of the NMF and, according to the minutes, her ‘proposal’ was ‘endorsed’ by the forum and the Provincial Commissioners undertook to provide extra resources if required. By that time reinforcements had already come from other provinces to Marikana, including members of the Special Task Force (STF), the National Intervention Unit (NIU) and the Tactical Response Team (TRT).

A meeting of the JOCCOM was held at Lonmin at 06h00 on the morning of Thursday 16 August at which it was announced that that day was ‘D-Day’, and that the strikers would be disarmed and dispersed if they did not voluntarily lay down their arms and leave the koppie. At 09h30 the Provincial Commissioner held a media conference at which she announced that if the strikers did not lay down their arms voluntarily, the police would end ‘this matter’ that day. She also spoke of ‘ending the strike’.

Mr Mathunjwa did not go to the koppie at 09h00 as had been intended. Instead he went to the Lonmin office and sought to obtain an undertaking that in the wage talks that were to take place after the strikers left the koppie AMCU would have a place at the negotiating table. Lonmin refused to agree to this. Lieutenant General Mbombo subsequently spoke to him, berating him for not going to the koppie timeously to persuade the strikers to lay down their weapons and disperse.

According to him, she said that the police operation was costing a lot of money. He told her that Lonmin had reneged on the undertaking it had given the previous evening. Eventually Mr Mathunjwa went to the koppie and spoke to the strikers. He said that he would go back to Lonmin and speak to them again to get them to co-operate. He returned to Lonmin but was still unable to get what he wanted. While he was at the Lonmin offices, Bishop Seoka spoke to the strikers and at their request went to ask Lonmin to speak to them.

Meanwhile at 13h30, a second JOCCOM meeting was held. Lieutenant General Mbombo said that the so-called ‘tactical option’ to disarm and disperse the strikers had to be implemented. The problem the police had at that stage was that the encirclement plan could not be implemented because by that time there were too many strikers at the koppie. Lieutenant Colonel Scott had drafted another plan in haste. He did not have the benefits of POP input and the plan he devised was not subjected to any challenge process from the JOCCOM, from which all the POP commanders were absent.

The plan he presented was defective in a number of respects. One was the fact that it required barbed wire barriers to be uncoiled between the police area and the strikers simultaneously from six Nyalas pulling wire trailers, so that the strikers could not advance into the police area and attack the police. Another defect was that the initial dispersal and disarming of the strikers was to be done by POP members, who were mostly armed with less than lethal weapons and who would be obliged to take refuge in Nyalas if they came under attack from the strikers, in which event a line of TRT members armed with R5 rifles would deal with the strikers.

After the JOCCOM meeting Lieutenant Colonel Scott and Brigadier Pretorious went to Forward Holding Area 1 to brief the commanders. He had not had time to prepare hard copies of the plan and briefed the commanders from an image on his laptop from the encirclement plan which had had to be abandoned. The TRT commander who was to be in charge of the TRT line behind the POP members described the briefing as inadequate. The requirement that wire barriers be uncoiled simultaneously was not practicable but Lieutenant Colonel Scott was not informed of this.

Mr Mathunjwa returned to the koppie and addressed the strikers. In a passionate speech, on his bended knees he pleaded with them to leave the koppie, saying that the police were going to kill them. They told him that they would not leave the koppie and they were prepared to die there.

Shortly after he left at about 15h40 the wire barriers were rolled out from four of the Nyalas consecutively because they could not be rolled out simultaneously. The exercise took about ten minutes. As Lieutenant Colonel Scott had feared, when this happened, the militant group of strikers, about 400 in number, who were armed with dangerous weapons, moved forward to the police area. On the eastern side of the wire barrier was a small kraal and to the east of that was a passageway between the kraal and a fenced area. The strikers who were unable to move past the wire barrier to the west of the kraal went around the kraal and started moving down the passageway.

The POP members took refuge in and behind the Nyalas when the strikers approached. One of the strikers fired one or two shots. A TRT line consisting of over 50 members had in the meantime formed up on the southern side of the passageway.

The members of this line believed that the advancing strikers were going to attack them, a belief which the Commission found to be reasonable. In order to defend themselves, they fired 328 shots over a period of between eight to twelve seconds at the strikers, killing 16 of them on the spot and fatally wounding another who subsequently died in hospital. The place where these shots were fired was called ‘scene 1’ in the evidence before the Commission.

Some of the strikers attacked Nyalas at the northern end of the small kraal by firing shots and striking at the Nyalas with their sharp weapons.

In the 20 second period before the shots were fired at scene 1 tear gas and stun grenades were fired and water cannons sprayed columns of water. The lead group of the advancing strikers was already ahead of the points at which the tear gas and stun grenades landed and the water was sprayed. As a result the members of the lead group were unable to retreat back up the passageway and were pushed forward.

The remaining strikers turned around and fled in the direction of a second koppie which is to the east of koppie 1. Thereafter they took refuge in a third koppie, described as ‘koppie 3’. Some were in possession of firearms and they fired a few shots in the direction of the SAPS members who pursued them. Brigadier Calitz and a number of POP Nyalas took up their positions on the western side of koppie 3 and a number of strikers were arrested.

Unbeknown to Brigadier Calitz, three other units of SAPS members converged on the koppie from different directions. The NIU from the north east, a dog squad (K9 unit) from the south and a TRT unit from the south west. Members of these units fired their R5 rifles and pistols towards the strikers, who, they thought, were firing shots at them.

Because shots were being fired by police units from three different directions without each of them knowing of the presence of the others, they thought that the shots were fired by the strikers. In all, 268 shots were fired from various directions, resulting in the deaths of 14 strikers on the scene and three subsequent deaths of strikers who were fatally injured at the koppie and who died in hospital.

The Commission found that the operation should not have taken place on 16 August because of the defects in the plan and the fact that it was not possible at 15h40 in the afternoon to conduct a successful disarmament and dispersal operation without significant bloodshed and that the police should have waited till the following day when the original encirclement plan, which was substantially risk free, could have been implemented.

It also found that the operation should in any event have been stopped after the shootings at scene 1 which, it found, were known to the commanders. It found that there was a complete lack of command and control at scene 2.

The Commission criticised the police leadership (1) because, so it found, they originally did not disclose to it the fact that the original plan was not capable of being implemented on that day and had been abandoned and (2) because they did not inform the Commission that the decision to go to the tactical option, if the strikers did not voluntarily lay down their arms and disperse, was taken at the NMF meeting on 15 August but instead informed the Commission that this decision was taken on 16 August and only after the situation had escalated.

For the purpose of advancing this version, inaccurate minutes of the 06h00 JOCCOM meeting were prepared and incorrect evidence was given in support.

The Commission also criticised the police because there was a delay of about an hour in getting medical assistance to strikers who were injured at scene 1 and at least one striker might have survived if he had been treated timeously.

The Commission also made findings criticising Lonmin, NUM, AMCU and individual strikers and these findings are set out in Chapter 25. The recommendations made by the Commission are set out in Chapter 24 of the report.

Chapter 20; Lonmin’s inadequate protection of its employees
As early as 20 December 2011, Mr Albert Kent, then acting manager of mining security, addressed a letter to Mr Sinclair in which he raised a grave concern about the safety of security officials and he highlighted how violent unrest situations had become.705 He stated that Lonmin security personnel are usually the first to arrive on a scene and have to manage a scene until SAPS arrive.

He stated that while Lonmin had issued their personnel with riot helmets, bullet proof vests and riot shields this was usually not adequate to protect employees should protestors decide to launch a full scale attack on them. Mr Kent pointed out that they needed armoured vehicles in order adequately to protect members.

Mr Blou testified that in 2011 Lonmin had taken a decision to change its approach to security from a paramilitary approach to a softer user-friendly approach. This low-key user friendly approach required that Lonmin security patrol in soft skin vehicles and not in armoured vehicles.

Mr Blou stated that the reduction in manpower coupled with Lonmin‟s disposing of its armoured vehicles limited Lonmin security in its ability to control unrest.706 Mr Blou conceded that Lonmin had reduced its capacity to such an extent that it was no longer able to deal with serious violence and unrest.

With reference to an e-mail dated 25 August 2011 from Mr Blou, where he enclosed a motivation for a Nyala to be acquired and where he said that the security members remain extremely vulnerable specifically because the vehicles that they were using were soft skin vehicles, Mr Sinclair said he considered the request, had a discussion with Henry Blou and senior managers and then forwarded the request to Mr Frank Russo-Bello.

He said the report back was very clear that Lonmin did not want to have hard skin vehicles in their security fleet. He was told that if hard skin vehicles were required, they could be obtained from the security service providers. He said that he did support the acquisition of a Nyala in his personal capacity and he did vocalise that. He said there was no reason forthcoming from Lonmin management for their reluctance to acquire the hard skin vehicles.

With regard to armoured vehicles provided by independent contractors, prior to 12 August 2012, one of Protea Coin‟s two armoured vehicles had caught alight en route to Mooi Nooi. The second vehicle was riddled with mechanical faults. These facts could not have gone unnoticed by Lonmin and should have alerted them to a potential problem with their resources. Mr Botes testified that on the 12th, when he got into the Protea armoured vehicle in order to go to the assistance of Mr Mabelane and Mr Fundi immediately after the attack, the driver could not get the armoured car into gear. When asked whether he was aware whether these mechanical problems played any role in why the „Mamba‟ was not there in the first place, Mr Botes said that he could not confirm that but he expected that was the case.

Mr Blou said that even if there were more security officers, he did not think that they would have been effective in being able to disperse a crowd of 3 000 because of a lack of capacity.

Mr Sinclair said that although there were various arrangements made to patrol the areas, the areas were so vast that with their limited resources they could protect some of their workers and some of their routes but not all. He conceded that where there was a strike across the whole of the Lonmin property, they did not have the resources to protect the whole of that property.

Mr Blou said that on the 10th and as the crowd were dispersing, he heard threats from various people in the crowd with suggestions that this was not the end of the matter and, whilst he could not point to any specific individuals who uttered the threats, there were voices from the crowd with a level of aggression which he had not previously heard expressed at the mine. The number of people in the crowd was also unprecedented.

Under cross examination, he agreed that there was clearly a significant change of mood which required an appropriate response from Lonmin. Mr Blou said that for him that was a game changer at that point. He said that although the crowd had dispersed, it had become apparent that there was a need for Lonmin to establish a JOC which combined the efforts of Lonmin security and the Emergency and Disaster Management to monitor all the developments and to coordinate all the responses.

Mr Blou said that a JOC was set up on the afternoon of 10 August 2012 and that this is an important facility which centralises all communications pertaining to a specific event and where stratergic decisions are taken.

Under cross examination by counsel for NUM, Mr Blou agreed that it was an alarming assessment that he and Mr Sinclair made at the time on the 10th and that they did ensure that they brought in extra resources to manage the unfolding events. He said they had conversations with private security, Protea Coin Security, and engaged with their counterparts at processing to give them more security to manage the strike. He said that they would later that evening have assessed the situation further and seen whether the people had dispersed completely.

Mr Blou said that after the strikers had dispersed, they received information later that afternoon that they wanted to target employees that were not participating in the strike. He had been informed of incidents at Rowland Shaft of employees being intimidated and where security officers had to intervene to protect these employees.

Mr Blou said that on Friday evening, they had security deployments in the area of Wonderkop, Rowland Shaft and Western Platinum Mine. They believed that those deployments were sufficient to prevent intimidation and to protect the employees who wanted to go to work and to protect their property. However, in spite of these arrangements, the people at Wonderkop were intimidated and security was required to intervene.

Counsel for NUM referred to paragraph 8.1.3 of Exhibit XXX 8, where it is required that all situations must be closely monitored in order to determine the mood of the people taking part in the industrial action in order to predict possible consequences which may lead to business interruptions or disruptions, intimidation, injury to people, damage to property or disruption of external services.

Mr Blou agreed with counsel for NUM that what seemed to be critical in terms of the protocol in this paragraph, was that the mood of the people taking part in the action was a vital tool in order for the security leadership to be able to predict possible consequences. He said that the assessing of the mood included taking note of such things as change of mood.

It was suggested by counsel for NUM that a strategic session of comparing notes about the aggression of the crowd and their disturbing behaviour might have produced an appreciation of the scenario that the crowd might take action against people who continue to work and might take action against NUM, because NUM had expressed its opposition to the strike.

Counsel said that if there had been some sort of examination and discussion of what had happened, then the march to the NUM office on the morning of the following day might not have been that unexpected.720 Mr Blou said that they did have the strategic session which lasted for about an hour or less, but there appears to be no record of it in the Lonmin logbook.

With regard to their assessment of the mood of the crowd and a prediction of what might happen, Mr Blou was asked what arrangements they put in place to deal with a large gathering or another march wherever it might be intending to go and whatever it might be intending to do.

Mr Blou replied that their security was at all times concerned with protecting the property and the people of Lonmin and that whatever public gatherings would take place, or what would flow out of that public gathering e.g. public violence, would be a matter for the SAPS to deal with, and they had consistently engaged with the police during that period.

Mr Blou agreed that with regard to the place of SAPS in their planning, that when they sought the intervention of the appropriate SAPS personnel, they needed to be able to tell SAPS what it is that they expected. The scenario planning was not only for Lonmin Security but also necessary to tell SAPS what they expected would happen and what they expected SAPS should do to deal with the situation.723

Counsel for NUM gave an example to Mr Blou that on 10 August 2012, they had information of a large gathering that would move to the LPD offices. They communicated that definite prospect to SAPS, who were able to react by providing four Nyalas, many soft vehicles and a large number of SAPS members, which he said was a significant security presence.

He was asked whether he conveyed to SAPS in any meaningful way after the dispersal of the march on 10 August 2012, that this was the largest number of marchers that they had ever had, that the level of aggression was the most intense, that they thought that they might attack Lonmin facilities or the NUM offices in large numbers and that they might need the services of the Public Order Policing unit. Mr Blou said that on the evening of the 10th, they were in conversation with members of SAPS giving them all the necessary information to prepare.

Counsel for NUM specifically asked Mr Blou whether he and his colleagues in Lonmin Security identified the possibility of another large gathering of strikers in the course of the early morning of Saturday, 11 August 2012. Mr Blou said that they had received information that the workers, when they dispersed, were not going to go to work. So he knew that they were gathering in the form of a strike and that they would toi- toi, have a gathering and they would march as well.

He agreed726 that the march would go somewhere by definition. He was asked whether he and his colleagues had, as at 10 August, in the afternoon or the evening, specifically planned for the eventuality that they would have another large march on Saturday morning, 11 August.727 He eventually did concede that on the evening of the 10th, they must have foreseen that there might be an unplanned march the following morning.

He said that what was conveyed to SAPS was that while they anticipated the strike to continue the next day, they would assess the seriousness of the situation and would then communicate it to them. This in effect would mean that they would monitor the situation and then communicate their assessment to SAPS.

Under cross examination by Ms Baloyi who appeared for SAPS, Mr Sinclair said that in one of the briefs that he sent to Mr Russo-Bello on the 10th of August 2012, he stated that there was information that was filtering through that employees would not be reporting for work on Saturday, 11 August 2012.

He agreed that, if at the time of writing the brief, he had received information that the strikers would be marching to the offices of NUM to attack or to confront them, such information would have been contained in the report.

Mr Blou agreed with counsel for NUM that in the last 10 years or so industrial action in South Africa has very often been accompanied by quite high levels of violence, and that a good deal of that violence is directed towards those who do not participate in the strike.

Mr Blou also said that he was aware that on 8 August 2012, there was a NUM mass meeting at Lonmin where NUM had spoken against participation in that strike action and urged employees to go back to work.733 Mr Blou said he was aware that opposition by NUM to the strike might promote some anti- NUM sentiments amongst those who were intending to embark on the strike action.

As to whether he was aware that there would be an attack on the NUM office, Mr Blou734 answered that they had never before experienced any attack specifically on NUM offices. Their considerations were that they would attack Lonmin property and intimidate people. Consequently, their strategy was to protect their immediate areas in the vicinity like the power stations and the hospital. He said that he had not been aware that the NUM office at Impala had been attacked at some previous stage.

With regard to the incidents at the NUM offices on 11 August 2012, Mr Blou said that all the two security officers, Mr Dibakoane and Mr Motlogeloa, could do on the morning was to go to the NUM offices and tell the occupants to vacate the premises, but they could not protect them, nor could they prevent any sort of burning of the buildings or vehicles. Mr Blou said that this was the standing practice that if a large crowd was going towards a building, they instruct the occupants to vacate the place for their own safety.

The intelligence received on 11 August 2012 after the incident at the NUM offices and where Mr Mabuyakhuku and Mr Dhlomo were shot is well documented. There was a report by a Lonmin security guard who went undercover to the meeting of the strikers and reported that the strikers had used the services of an inyanga to help them with a planned retaliation against NUM, and that they believed that after the rituals the bullets fired at them would turn to water and the firearms would not be able to shoot bullets.

The information was that they were preparing for war.736 Mr Sinclair‟s briefing makes it clear that Lonmin security had intelligence available about the serious risk posed by the strikers, and found it appropriate to increase the security status to double red.

Mr Blou said he was aware of the information about the group undergoing traditional rituals and of the information that the rituals were in order to turn bullets to water and in preparation for an attack.

Nevertheless, there was no anticipation on his part that there would be a repeat attack on the offices of NUM on 12 August 2012.738 He remained of that view until the killing of Mr Fundi and Mr Mabalane on the 12th and never anticipated that such an event might take place.

His attention was drawn to an entry in the Lonmin Logbook where it reads that there might be a fight between NUM and AMCU and where the possibility of a conflict and a confrontation had clearly been anticipated and identified. Mr Blou said that they underestimated the militancy of the strike and therefore did not think that the action of the strikers would be on the scale that happened during that weekend. He never anticipated that the strikers would attempt to attack the NUM offices for a second time.

Mr Blou was unaware that after the incident on the 11th, there was a debriefing session where it was discussed that there might be a possibility of another move by the strikers on the NUM offices on 12 August 2012 as retaliation for the shooting of two members of the crowd by members of NUM.

Mr Sinclair said that it was a very important factor in scenario planning that they had been aware at 07h30 in the morning on Sunday, even before the group started to gather at the koppie, that there was a potential for a revenge attack to take place. He could not explain why it was that Mr Blou was not aware of this information.

He agreed that indeed everyone in security ought to have been aware of this information. He also could not explain why it was that Mr Blou did not know about the double red security status. He said that it should have been brought to the attention of all management and security personnel.

Mr Sinclair said that he agreed that the revenge that had been planned would have been more likely against NUM, considering the background to the matter, rather than against Lonmin structures and key points as Mr Blou said. He said that, practically, the deployments of security resources would, as a result of the information, cater for the revenge factor.

Mr Sinclair743 agreed that what happened on the 12th was not a surprise event, as the violence had started on the 10th already and there was an escalation of that violence over a few days and there was sufficient intelligence to assess the extent of the threat. This was with particular reference to the information supplied by the undercover agent that there was a large number of strikers turning violent, preparing for war. Mr Sinclair said that they did take cognisance of the information coming through and did their very best to do what they could.

Mr Sinclair agreed that there was a duty on Lonmin when they knew about the attack on Mr Louw and Mr Vorster to inform Mr Mabelane, Mr Fundi and other security personnel about what had happened so that they could make a judgment based on the information placed before them. Mr Sinclair said that he did not know if they got the message but they should have got the message.

He agreed that there was a lack of communication from the JOC to the security personnel on the field on the 12th. Mr Sinclair said that the crucial warnings of Mr Louw and Mr Vorster conveyed to the JOC of the attack upon them and that the strikers were very dangerous were not conveyed to the members of the protection services on the ground to give them warning that the strikers were aggressive and posed a threat to them.

He had conceded that there was a breakdown in communication and that the warnings of Mr Louw did not reach Mr Mabelane or any of the other security personnel. He said that this should have been done and did not understand why it had not been done…

Mr Sinclair said that the security at the shafts, including K4 shaft, was outsourced to Protea Coin Security. The risk assessments of the access control points to the shafts were done by Mr Henry Blou and his team but the guarding of those access points was done by an independent contractor.

There was surveillance as well at the shafts and that was also done by an independent contractor. He said that co-ordination of all these various aspects would have been done by a designated security manager, who would in this case be Henry Blou.

In the light of his broad risk assessment of double red at Lonmin Mines on 12 August 2012, he was asked whether an instruction was conveyed to Protea Coin Security to increase the security measures in place at K4 Shaft.764 He was unable to answer the question and could not say whether any of these dangers had been communicated to Protea Coin Security.

Mr Sinclair agreed that in the light of the fact that their resources were stretched and that they were not able adequately to protect the area around K4 Shaft or the employees working there, they should have either closed the shaft or not allowed the workers to come to work. He also agreed that Mr Mabebe and other employees should have been told in advance that they should not come to work.

Mr Botes under cross examination about entries in the Lonmin Log Book that indicated that an attack on K4 shaft was likely maintained that, despite these indications, Lonmin did not anticipate that the K4 shaft would be attacked. Mr Botes stated that it was a grave concern that security guards were deployed at K4 shaft without firearms to protect themselves in the event of an attack.

The attorney for the Mabelane, Mabebe and Langa families enquired of Mr Sinclair why Lonmin had not informed the police that there was an impending attack on K4 and why the K4 shaft was not determined to be a hot spot. Mr Sinclair said that he expected that information would have been passed on to the police and it should have been but because there are not any minutes he could not categorically state that it had been passed on. It seems unlikely that this happened as Lonmin themselves did not appreciate the dangers to K4 shaft.

With regard to the death of Mr Langa, Mr Sinclair was referred to reports received at Lonmin on the 12th that the crowd would be mobilising to Saffy Shaft on the 13th because the workers are still working there. He was referred to a further entry at 14h22 where a report was received that when the workers were going to work that night (the 12th) they would be shot. It was put to him pertinently that even at this stage by the 12th 772, and after the incidents of violence and murder, Lonmin was still encouraging employees to come to work. Mr Sinclair conceded that these were very specific reports which should have raised very serious concerns about employees who were to report to duty at Saffy Shaft.

Mr Blou said that the Counter Industrial Action Response Procedure Document for Lonmin, which was signed off and put into operation, contained a number of regulatory provisions about how security matters were to be managed. Under cross examination by counsel for NUM, Mr Blou agreed that the procedures set out therein serve as a guideline for managing industrial action as each individual type of incident warrants the manager of mining security to apply his or her discretion on how effectively to manage the situation.

He also agreed that implicit therein is that each industrial action situation will have individual characteristics, implications and security requirements and are not to be treated as duplicates of one another. He admitted that he is the person that must apply his discretion for the proper management of the situation.778 As the manager of mining security, he was responsible to conduct effective and detailed planning and briefing sessions.

Mr Blou agreed that someone with his seniority should have conveyed to the members on the ground that people had been attacked and nearly killed, and that everyone should either back off or get out of the situation and wait for SAPS to arrive. They should not, he said, have been required to respond to the call for backup.

Mr Blou agreed that that was a critical managerial intervention which should have taken place in the JOC on the basis of the information received. He said that it was critical that that call was made at the JOC. It should have been escalated to everyone in management. He agreed that that did not happen.779 Mr Blou said that even he did not receive a call to say that Mr Louw and Mr Vorster had tried to contain this crowd and were attacked and almost died.

It was put to Mr Sinclair that there seemed to be a lack of contingency planning and execution by Lonmin Security based on the specific intelligence reports that were coming through and he agreed that if action had been taken upon the intelligence received, then they would have been better prepared for the events of 12 August 2012.

Mr Sinclair said that his guidance to his security personnel was that they had at all times the right to withdraw immediately to a place of safety.781 It was put to him782 that that right to withdraw could hardly apply when the security members were under a full scale attack. He replied that often he would notice that the manner in which the vehicles had been parked did not make for an easy withdrawal from the scene of an incident. He did not ensure that any training followed upon these observations to assist the security officers to correct what they had been doing.

Mr Motlogelwa testified that there was no planning before the incident of 12 August and there was no briefing as to what to expect.784 As a result, the response of Lonmin security to the march on 12 August was haphazard and disorganised. This left security officials vulnerable to attack when carrying out their duties.

Mr Masibi said in his statement that the manpower was not enough to disperse the crowd. They were unprotected and the crowd could have overpowered them. They needed armoured vehicles to deal with such a crowd. In retrospect he thought that they should not have attempted to engage the crowd but retreated until backup arrived.

Under cross examination by counsel for NUM, Mr Sinclair conceded that, because of the rapid and changing conditions and the circumstances surrounding the unrest at Lonmin, the scenario planning that was done was not as comprehensive as it ought to have been. He admitted that they omitted to do quite a few things that they could have done.

Paragraph 4.4.4 of the security protocols set out in Exhibit XXX 8 requires that deployed members must be briefed on the latest situation when reporting on duty and debriefed when reporting off duty. Mr Blou agreed that the important purpose of this was that when security members were deployed and put into the field they must be fully briefed with what the latest facts are concerning the situation and the security issues. Similarly, when they come off duty, they need to be debriefed so that security management can be aware of what their experiences have been and what the observations have been and what their perceptions might be in respect of the future developments of security and threats.786 This was clearly not done.

The witnesses from Lonmin security conceded that their management of the situation, in the light of the circumstances prevailing, left much to be desired. Mr Sinclair agreed that Lonmin was partially to blame for the deaths of their employees.

The evidence leaders correctly, in the Commission‟s view, submitted that Lonmin did not use the intelligence available, did not properly formulate plans for dealing with the strikers, did not ensure that there were adequate security resources at its disposal and did not properly brief members.

The Commission agrees with their submissions that Lonmin had a duty to ensure that it had adequate security arrangements in place at Saffy, K4, and other shafts to protect workers. Their failure to insist on and ensure heightened security arrangements in view of the intelligence information available to them at the time is inexcusable.

In the Commission’s view, this duty is not confided to the shafts, but extends across the board to all their employees. 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 it’s employees and those of its sub-contractors.

Lonmin’s ICAM Report on Marikana
Lonmin commissioned an internal investigation in order to identify the causes and contributing factors which led to the violence at the mine in August 2012. The ICAM report identified some of the following factors which contributed to the deaths of various employees of Lonmin during the period 10 to 14 August 2012.

(a) Inadequate intelligence network;
(b) Lack of consideration of risk associated with supplier and contractor equipment services;
(c) Ineffective contingency plan for this type of situation;
(d) Absence of a system to ensure that training requirements are managed so that employees and contractors are competent to meet the risks applicable to their responsibilities;
(e) Lack of awareness by employees to provide correct information about incidents;
(f) Lack of management commitment to safeguard employees from industrial action related violence.

The extensive criticisms in the report do not require to be repeated here. Suffice to say that they are detailed and require Lonmin to take steps to address the shortcomings identified.

Marikana EVENTS WHICH WERE ALLEGED TO BE GAME CHANGERS
Counsel for the Injured and Arrested Persons contended that 3 events during the period from 11 August 2012 onwards were what he called „game changers‟, which had a decisive influence on what followed. They were:

(a) The shooting of strikers by the NUM members at the NUM offices on 11 August;
(b) The confrontation between strikers and the SAPS members near the railway line on 13 August and what he called „the resultant revenge motive on the part of members of SAPS‟;
(c) „the impact of political pressure‟.

CHAPTER 25; Marikana Commission RECOMMENDATIONS
The Commission recommends that the following matters are referred to the Director of Public Prosecutions, North West for further investigation and to determine whether there are bases for prosecution:

10th August 2012; The attempted murder of Mr Mutengwane and Mr Dlomo.

11th August 2012; The shooting by NUM officials of Mr Mabuyakhulu and Mr Ngema and the subsequent attack on Mr Mabuyakhulu whilst he lay injured on the ground.

12th August 2012; Where Lonmin, well knowing of the reports of intimidation and violence and being fully aware of their inability to protect their employees, urged employees to go to work and after the killings of security personnel by the strikers, failed to inform employees of the dangers of coming to work and failed to withdraw their call to work during the strike:
(a) The assaults upon Mr Louw and Mr Vorster and the deaths of Mr Fundi and Mr Mabelane in confrontations with the strikers.
(b) The death of Mr Mabebe at K4 Shaft. (CAS 109/8/2012) refers
(c) The assaults upon Mr Janse Van Vuuren, Mr Andries and Mr Keyser at K4 shaft.

13th August 2012
(a) The killing of Mr Langa by the strikers in the early hours of the morning of 13 August 2012
(b) The killing of Mr Sokhanyile in circumstances where there are conflicting versions of the allegations of the shooters acting in private defence.
(c) The killing of Mr Mati, where there is difference in opinion about whether the fatal wound is a gunshot wound or a stab wound.
(d) The killing of Warrant Officer Lepaaku and Warrant Officer Monene and the assault on Lieutenant Baloyi.

14th August 2012; The killing of Mr Twala (CAS 121/8/2012)

16th August 2012
With regard to scene 1 and with regard to those members of the South African
Police Services, who in firing shots at the strikers may have exceeded the bounds of self and private defence and the delay in conveying medical assistance to scene 1, and with regard to scene 2, with regard to issues of command and control, the failure to stop the operation after scene 1 and the possible liability of senior officers in the South African Police Services, the shooting of strikers by various members of the South African Police Services:

(a) In terms of paragraph 5 of the Commission‟s terms of reference, the Commission refers the circumstances surrounding the injuries and deaths of all persons at Scene 1 and 2 to the Director of Public Prosecutions of the North West Province, to exercise his powers in terms of section 24(1)(c) of the National Prosecuting Authority Act 32 of 1998862, to supervise, direct and co-ordinate a specific investigation into the events at scenes 1 and 2.

(b) It is recommended that for the purposes of the investigation, a team is appointed, headed by a Senior State Advocate, together with independent experts in the reconstruction of crime scenes, expert ballistic and forensic pathologist practitioners and Senior Investigators from IPID, and any such further experts as may be necessary. The Commission recommends a full investigation, under the direction of the Director of Public Prosecutions, with a view to ascertaining criminal liability on the part of all members of the South African Police Services who were involved in the events at scene 1 and 2.

The period between 10th August 2012 and 16th August 2012
(a) The offences in terms of the Regulation of Gatherings Act and the Possession of Dangerous Weapons Act. The strikers can be seen very clearly on videos and photographs in possession of dangerous weapons at public gatherings or in public places, as were NUM members after the attack on the NUM office on 11 August 2012.

(b) The propensity in South Africa presently for the carrying of sharp instruments and firearms and the associated violence even in service delivery protests, require strict enforcement of the laws prohibiting such conduct.

The Commission recommends with regard to Public Order Policing that a panel as described in paragraph 8 below be established to perform the tasks set out in paragraphs 8, 9 and 10.

The experts were unanimous in their view that automatic rifles like the R5 have no place in Public Order Policing. Mr De Rover testified that he suggested an immediate withdrawal of R5 from POP operations. He said that military assault weapons have no place in law enforcement and that he was fully aware of the particular problems of violence in South Africa. Mr White also recommended an immediate withdrawal of R5 rifles and added that any replacement weapon system should not be capable of “automatic fire” mode‟.

The evidence before the Commission clearly indicates that the measures at the disposal of Public Order Policing are completely inadequate for the purposes of dealing with crowds, armed as they were, with sharp weapons and firearms, at Marikana.

F First Aid
In operations where there is a high likelihood of the use of force, the plan should include the provision of adequate and speedy first aid to those who are injured.

There should be a clear protocol which states that SAPS members with first aid training who are on the scene of an incident where first aid is required, should administer first aid.

All police officers should be trained in basic first aid. Specialist firearm officers should receive additional training in the basic first aid skills needed to deal with gunshot wounds.

Marikana accountability
Where a police operation and its consequences have been controversial requiring further investigation, the Minister and the National Commissioner should take care when making public statements or addressing members of the SAPS not to say anything which might have the effect of „closing the ranks‟ or discouraging members who are aware of inappropriate actions from disclosing what they know.

The standing orders should more clearly require a full audit trail and adequate recording of police operations.

The SAPS and its members should accept that they have a duty of public accountability and truth-telling, because they exercise force on behalf of all South Africans.

The staffing and resourcing of IPID should be reviewed to ensure that it is able to carry out its functions effectively.

The forms used by IPID for recording statements from members of the SAPS should be amended so as to draw the attention of the members concerned to the provisions of section 24 (5) of the IPID Act and thereby encourage them to give full information about the events forming the subject of an IPID investigation without fear that they might incriminate themselves.

Lonmin’s Housing obligations under the SLP’s

The Commission recommends that Lonmin‟s failure to comply with the housing obligations under the SLP‟s should be drawn to the attention of the Department of Mineral Resources, which should take steps to enforce performance of these obligations by Lonmin.

In his letter to the chairperson dated 24 April 2014, when paragraph 1.5 of the proclamation was deleted to enable the Commission to accelerate the finalisation of the primary invesitigation, the President said: „the investigation relating to the role of the Department of Mineral Resources and other departments or agencies pertaining to the tragic incidents as contemplated in paragraph 1.5 of the terms of reference may be considered at a later stage guided by the outcome of the Commission‟s findings and recommendations with regard to the incidents of 9 – 12 August 2012‟.

In view of the fact that the Commission has found that Lonim did not comply with housing obligations in the SLP‟s of its two Marikana subsidiaries, it is recommended that the topics dealt with in the deleted paragraph, in particular the apparent failure by the Department of Mineral Resources adequately to monitor Lonmin‟s implementation of its housing obligations, should be investigated.

CHAPTER 27
CONCLUDING REMARKS

The Fear FactorDuring the course of the hearings it was apparent to the Commission that what may be described as a fear factor was operating. For example, Lonmin refused to disclose the name of the person who interpreted from Fanagalore into English during the negotiations between Lieutenant Colonel McIntosh and the leaders of the strikers.

Some witnesses appeared reluctant to tell the Commission the full story for fear of reprisals. This apparent fear was understandable in view of the fact that several killings took place before and during the sittings of the Commission which gave rise to a justifiable suspicion that the motive therefor was to prevent the persons killed from giving evidence.

Violence on the part of the strikers
This report would not be complete without a condemnation in the strongest terms of the violent manner in which the strike was sought to be enforced, and the brutality of the attacks upon those persons who suffered injuries and who died prior to 16 August 2012.

Whilst the strikers aver that they first took up arms to protect themselves against the attack by NUM, a version which the Commission has found to be untrue, as set out above, they have not placed any evidence before the commission to explain why they found it necessary to resort to violence to achieve any of their aims.

The gratuitous violence of the attacks upon the deceased security officers and Lonmin employees, Mr Fundi, Mr Mabebe, Mr Mabelane, and Mr Langa and the number and types of injuries to their bodies as seen in the images and as detailed in the post mortem reports, must be as distressing to their families as to the families of the deceased who were killed on the 13th and the 16th in encounters with the Police.

So too with the attacks upon employees who sustained injuries in circumstances where they did nothing to provoke the situation but simply reported for work as urged to do by their employer.

In particular the burning of the vehicles on the 12th and the 14th must, in the Commission‟s view, have been premeditated, because of the unlikelihood that on both days the strikers came upon the incendiary material at the scene to start the fires.

The fact that the strikers armed themselves with sharp weapons on the 12th both on their way to the NUM offices and on their way to K4 shaft, and did not hesitate to use the weapons in unprovoked attacks upon Lonmin Security officers and civilian employees, must point to an intention on their part to use violence at every instance to promote their cause.

While not detracting at all from the criticisms of the actions of the SAPS, the taking up of arms and the use of violence by the strikers was an important contributory fact to the situation at Marikana developing as it did. It alerted the police to the type of criminal acts they were required to deal with and precipitated a police presence in addition to Public Order Policing. It was also an indication of the lengths the strikers to which were prepared to go, to enforce their demands.

It appears from the evidence that the taking up of arms and the violence perpetrated by the strikers was partly responsible for the reluctance on the part of the employer to engage in any manner whatsoever, whilst they remained armed .

Whilst there exist adequate mediation and negotiation channels to enable issues to be resolved in matters of protests, strikes and stand offs, it might be a salutary lesson, for the citizens of this country to take away from Marikana, that the taking up of arms and the resorting to violence is neither constructive nor appropriate in protecting and enforcing one‟s rights.

Hopes for the future
The Commission endorses the following comments in the Heads of Argument submitted on behalf of SAPS:

„South Africa should not have another Marikana. The loss of lives of the strikers, the members of the police, security personnel of Lonmin and employees of Lonmin is to be deeply regretted. The injuries sustained by some of the strikers are also regrettable. Damage to property should not follow expression of any civil disaffection. Bearing arms against a lawful authority should provoke widespread outrage. A career in the police service should not be a death warrant. Those who are found to have been culpable in relation to the criminal acts in the period 9 to 16 August 2012 in Marikana must bear the consequences of their conduct.‟

• Source; Marikana Report, via Parliamentary Monitoring Group. Note that this post contains extracts from the very long and detailed report.
• See a post on a Marikana case study book, titled Between the rainbow and the rain, on Sheqafrica.com.

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