George Bizos, for the Legal Resources Centre during the public hearing of the Marikana Commission of Enquiry to investigate the Marikana tragedy at which 44 people were killed and scores injured. Picture: Dumisani Sibeko.

There was a lot of finger-pointing at the Marikana Commission of Inquiry on Monday where the South African Police Service and Lonmin took much of the blame for the deaths of 34 striking miners who were shot dead on August 16.

While the police service said in its opening statement that the 34 who were killed were either charging at police or resisting arrest‚ representatives of the families‚ the two labour unions and the Legal Resources Centre questioned the explanation proffered by the police service.

Lonmin was also blamed for negotiating with workers outside of the collective bargaining platforms when it suited it and later ignoring those workers.

Counsel for the police service Ishmael Semenya SC said this tragedy could have been avoided if all parties had played their roles to avert the deaths.

“Evidence will show that in July‚ Lonmin struck a deal with workers outside the bargaining processes.” Semenya said when the engagement between the workers and Lonmin reached a breaking point‚ Lonmin refused to negotiate with the workers on their wage demands.

“This inconsistent approach must have sent mixed messages to protesters.”

Semenya said Lonmin created a beast that it later found impossible to tame.

Schalk Burger‚ for Lonmin‚ said the area in which the shooting occurred was under the control of the SAPS.

Karel Tip SC‚ for the National Union of Mineworkers‚ said Lonmin's action - of unilaterally negotiating with workers outside the bargaining process – undermined the agreed processes.

Tim Bruinders SC‚ for the Association of Mineworkers and Construction Union (Amcu)‚ said its president Joseph Mathunjwa had tried to arrange a meeting between Lonmin and striking workers‚ at the request of the workers‚ without success. Bruinders said on August 16‚ Mathunjwa informed the striking workers that Lonmin was not prepared to negotiate with them at their gathering place at the koppie. After leaving the striking workers‚ Bruinders said the shooting took place.

George Bizos SC‚ for the Legal Resources Centre‚ said the force used by the police on August 16 was not sanctioned by any of the country's laws‚ or the Constitution.

“We have not seen any evidence of any policeman being shot at on the August 16‚” said Bizos.

He also asked who had taken the decision to use live ammunition.

Dumisa Ntsebeza‚ who represents 21 families of those killed in Marikana‚ said it would invite the commission to make a finding that those who were killed were unlawfully killed by the police service.

He said before the shooting on August 16‚ there appeared to be no direct order issued by the police and nor was there any ultimatum issued.

“After what was described as a show of force‚ the SAPS sought to encircle and entrap workers and block the miners' likely dispersal route to the Nkaneng informal settlement. It was this event and this event alone which precipitated the movement of strikers off the mountain.

“They had no choice but to move down the mountain‚” said Ntsebeza.

Ntsebeza said in these circumstances‚ death and injury was predictable.

“Less predictable is that some of these miners were shot in the back while they were charging at the police. The use of automatic rifles is surprising‚ especially despite lack of evidence that workers were carrying heavy arms.”

Ntsebeza asked the commission to place evidence to show that the timing and the manner of the SAPS response to the gathering at the mountain was aggressive‚ misguided‚ disproportionate‚ unreasonable and unlawful.

Ntsebeza said although Lonmin said this was not the time to apportion blame‚ the families believed that Lonmin must take blame. He said Lonmin consistently refused to have that meeting even when there were indications that there could be violence.

“Whether or not meeting with Lonmin would have averted the deaths‚ we will never know‚” he said.

Ntsebeza said that after the massacre‚ Lonmin did agree to negotiate with the workers and ultimately reached a settlement that ended the strike.

The inquiry continues. - I-Net Bridge