GEOFF BUDLENDER: Thirteen years on, these are two lessons from the Marikana tragedy

It is now 13 years since the terrible events of those six days in August 2012 at Marikana, when 44 people lost their lives. It is important that we remember those tragic events. It is also important that we learn from them. 

It is about a decade since the Marikana Commission, for which I was senior evidence leader, produced its report. I am going to reflect on what I think are two important lessons which emerged. 

The first lesson is about what the Marikana Commission did not investigate. The commission investigated who was responsible for the 44 deaths. But I now think we failed in a fundamental respect: we did not look into the underlying causes of what happened. We planned a second phase of the enquiry for this, but we ran out of time.   

Besides the 44 deaths, what shocked me most was the level of alienation and anger on the part of the rock drill operators who were at the heart of the strike. They felt entitled to do whatever it took to achieve what they wanted. One of the results was brutal conduct, some of it directed at their co-workers. The police response was to treat this as acts of war. 

It is difficult to imagine the conditions under which the rock drill operators work — hour after hour, shift after shift, day after day, week after week, month after month, year after year, until you are exhausted and no longer able to work. We should have gone underground to get at least some sense of the conditions and operations there. And we should have asked what realistic prospect the rock drill operators had of ever escaping from this life. We should have asked what, if anything, could be done about that. 

If I were in the mining industry, what I would have taken away from Marikana was a deep concern that people who were working on the mines every day were in a state of undeclared hostility with their employer and the law enforcement authorities. We heard nothing of this and its causes — not from the rock drill operators, and not from mine management. 

Employers who are in such a situation need to listen carefully to those who work for them, and make it possible for anger to be expressed in other ways than violence, so that it can be heard and addressed. It requires patience, open mindedness and a willingness to listen and to innovate. 

The second lesson I draw is this: the Bapo ba Mogale community members are the historic owners of the land on which Marikana is situated. The community had a right to royalties in respect of the minerals extracted from the land. The 2004 Mining Charter required Lonmin to have 26% black ownership. So Lonmin proposed the conversion of those royalties to shares, to enable it to reach the 26% target.   

There were negotiations between Lonmin and people who purportedly represented the Bapo ba Mogale. But large numbers of people in that community were in effect excluded from the process and were deeply dissatisfied by it. Lonmin’s attitude seemed to be that they would reach an agreement with the statutory traditional council alone.

However, there were real disputes about who in fact represented the community, which consists of diverse settlements of about 40,000 people. Some of them attended a meeting organised by the traditional council. Altogether 779 of them voted in favour of the proposal, and 51 voted against it. And so the deal was done. We will never know how large a part of the community knew about the deal and supported it. 

There were questions about the legal validity of the traditional council and its powers. But to focus solely on legality is to miss the point. This was about the land rights rural people had held for generations, and their right to benefits that accrue from the land. In this situation it is necessary to open the dispute up, to expose the contested claims, and to address them. If you supposedly resolve a dispute such as this through a closed and limited process, you invite trouble in future. 

This of course does not apply only to Marikana. Any far-sighted mining company would say, “I’d better engage with everybody. It doesn’t help to engage only with the officially recognised traditional leaders, because that may leave many people dissatisfied.” As it happens, the legal landscape has changed fundamentally since that deal was done. 

In 2019 the Constitutional Court handed down judgment in the Maledu case. The court noted that the 1996 Interim Protection of Informal Rights Act provides that no person may be deprived of an informal right to land without his or her consent. All affected persons must be given notice, and given a reasonable opportunity to participate at any community meeting where a decision to dispose of their rights is to be taken. 

Such a decision requires the support of the majority of the affected persons present at the meeting. The court held that the Mineral & Petroleum Resources Development Act (MPRDA) does not abolish these rights. That has changed things fundamentally.   

The mining industry is faced with a new situation: where it wants to mine communal land over which it has a mining right, it must respect the affected people’s land rights. It must consult with the members of the customary community (not just the traditional council) and obtain their consent. When all else fails it can ask the minister to expropriate their land rights. 

Mining companies can no longer say, as they did in the Maledu case, that the granting of a mining right expropriates the rights of the people living on communal land. One of the lessons of Marikana is to ensure that the police act like police in a democratic state — not like an army dealing with an enemy force. 

These other two issues I have raised are not easy. But it is only if we address them that our mining industry will be able to thrive, to the lasting benefit of those who work on the mines, those who own them and our country. 

 • Budlender is an advocate. This is an excerpt from his keynote address at Sibanye-Stillwater’s annual Marikana Commemoration lecture.