The evidence leaders and several other parties proposed that compensation be paid by the State on the basis of “loss without liability” not only to the dependants of the deceased who were killed by members of the SAPS and to those strikers who were injured by shots fired by members of the SAPS but also to the dependants of those people killed by the strikers and to those injured by them.
This proposal has much to commend it from the point of view of bringing closure to a shocking chapter in our history since the advent of the democratic era in 1994 and achieving the goals of truth, restoration and justice for which the Farlam Commission was established.
This proposal does, however raise complex and difficult issues.
The commission understands that actions have been instituted by many, if not all, of the dependants of those killed by police gunfire during the period covered by the commission’s investigations and by many, if not all, of those injured by such gunfire.
The commission also understands that many, if not all, of those arrested have instituted actions against the State.
Some, if not all, of the dependants of those killed by some of the strikers have endeavoured to establish that Lonmin is liable to them for failing to take sufficient steps to protect their deceased bread-winners from being attacked by some of the strikers.
And for all the commission knows, those persons who were injured or suffered damages as a result of the actions of some of the strikers may also be contemplating instituting claims against Lonmin.
The representatives of Warrant Officer Lepaaku and Warrant Officer Monene who were killed by strikers on August 13, 2012 and of Lieutenant Baloyi, who was injured on August 13 have also endeavoured before the commission to establish that the SAPS is liable to compensate them. In the case of these workers and their dependants, there is the possibility that they may have claims against the commissioner under the Compensation for Occupational Injuries and Diseases Act 130 of 1993.
It is clearly desirable that the legal issues raised by the events at Marikana should be resolved without further lengthy and expensive legal proceedings but the finding of a satisfactory and just solution will not be easy.
The commission is not satisfied that its terms of reference are wide enough to cover the question as to whether a compensation scheme of the kind proposed should be implemented by the State.
Sunday Tribune