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ABSTRACT
This article examines the Farlam Commission of Inquiry’s official discourse on violence within the context of the Marikana mine massacre. The commission was established in 2012 to investigate the killing of 34 mine workers during a wage strike at the Lonmin platinum mine in South Africa. The commission was tasked with scrutinising the actions of the police, mine management and labour unions involved in the incident. By employing the concept of legalism, this paper analyses the commission’s report and argues that it adopted a legalist perspective on violence, which served to legitimise the prevailing legal framework for collective bargaining while delegitimising the strike action itself. The study highlights Phase Two of the commission’s investigation, which was aimed at examining the underlying sociological causes of the conflict within the mining sector. This phase provided an opportunity to delve into the structural factors that fuelled the dispute. However, despite the potential for a more nuanced exploration of structural violence, the final report of the Farlam Commission ultimately embraced a narrative form and simulacrum of legality that reflected implicit moral and political biases concerning specific forms of violence and social action. The commission struggled to assimilate critiques of the collective bargaining framework into its report, instead maintaining a fidelity to legalism, with practical implications for the type of “truth” and “justice” the commission could promote. The paper contributes to a broader understanding of the complex dynamics between legal frameworks, violence and social justice in contexts of labour disputes and collective action.
Acknowledgements
I thank the anonymous reviewers who provided insightful feedback on the previous draft of this article. I also thank the editorial team at the SARS journal. Lastly, I thank Prof. John Comaroff for his valuable feedback on the first draft of this manuscript.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 In 2019 Lonmin was acquired by Sibanye-Stillwater.
2 Coincidentally, the more recent mass killing of the striking workers took place on the 25th anniversary of another historic mine workers strike involving 300 000 mine workers in 1987 (Battersby Citation1987). This strike, which occurred in the dying days of the Apartheid regime, was led by NUM, with Cyril Ramaphosa at the helm, and it was this same Ramaphosa who was, in 2012, a shareholder and director of Lonmin Plc. when the shooting took place.
3 I acknowledge that for some it may be considered limited to conceptualise the “product” of a lengthy and complicated process like the Farlam Commission solely as the final report. Yes, legal processes related to attaining financial compensation for victims and their families, as well as court proceedings surrounding responsibility for the killing of the mineworkers, have continued after the publication of the final report (see Ferreira Citation2022). However, I analyse the final report as that which was produced by the commission of inquiry as its official interpretation of events and its enumeration of recommendations for a way forward. As such, the report is the final product produced by the commission, which was presented to the president.
4 Sitze (Citation2013) presents the Jamaica Royal Commission set up following the Morant Bay Rebellion in 1865 as the archetypal tumult commission and enumerates some 24 of these in South Africa. Examples of tumult commissions, according to Sitze (Citation2013), include the inquiries established after the Bulhoek massacre occurring in 1921, Bondelswarts in 1923, Witieshoek in 1951, Sharpeville in 1960 and the violent police response to the Soweto Uprisings in 1976.
5 Another prominent iteration of official commissions seen in the twenty-first century is the emergence of truth commissions as transitional justice instruments. Within early debates, truth commissions tend to be presented as alternatives to the retributive justice model offered by the post-war legal tribunals of Nuremberg and Tokyo. Nonetheless, even among truth commissions that have sought explicitly to eschew practices of truth recovery associated with courts, scholarship has noted the dominance of legalism in transitional justice processes, including truth commissions, due to law remaining a dominant discourse (McEvoy Citation2007, 412). For an interrogation of the distinction between truth commissions and generic commissions of inquiry, see Lester (Citation2017, 22–35).
6 A key concept here is that of official truth, and official commissions. There have been numerous unofficial truth-seeking commissions established to investigate past political violence. These have been set up by entities like non-governmental organisations or church groups, like commissions seen in Brazil (1979–85), Paraguay (1984–90), Uruguay (1986–89) and Bolivia (1990–93), and these have produced unofficial truth reports. Bickford (Citation2007) refers to these as unofficial truth projects—bodies that aim to find out the truth concerning past violence and even, in many cases, simulate the investigative mode of official inquiries by hearing witness testimony in a public forum, evaluating evidence and producing a report. The distinction between official and unofficial truth commissions is that when a commission is authorised by the state, at the very least the commission can claim its findings as “official history,” even though the findings may remain contested socially.
7 An example here is the Ralushai Commission, established in 1996 to investigate witchcraft violence and ritual murders in what is now called the Limpopo province of South Africa (Ralushai et al. Citation1996).
8 For example, the TRC distinguished among four types of truth: (1) factual or forensic truth, (2) personal or narrative truth, (3) social or dialogue truth, and (4) healing or restorative truth. It explicitly sought to create an environment of hearings unlike that of a courtroom which might have exposed victims to cross-examination and further traumatisation. But, nonetheless, the TRC was framed within an international human rights discursive and legal framework and made its findings around the legacy of Apartheid’s political violence and its victims accordingly (see du Toit Citation2005, 439; see also Buur Citation2002).
9 This was consonant with the role of official commissions seen in South Africa, Britainct and other British colonies historically, which would investigate state violence in the mining sector.
10 The legalistic approach of prior commissions of inquiry investigating state violence in the mining sector is detailed in Lester (Citation2021), where the resemblances between the official discourse on violence in the Witwatersrand Disturbances Commission of 1913 and the Marikana Commission of Inquiry are assessed.
11 Expert participants in Seminar One included Les Kettledas, the deputy Director General of the Department of Labour; Ian Macun, the Director of Collective Bargaining from the Department of Labor; and Professor Sakhela Buhlungu, who was at the time the Dean of the Humanities faculty at the University of Cape Town. Experts in Seminar Two included sociologists Peter Alexander and Gavin Hartford and Professor Francis Wilson. In Seminar Three, individuals who made presentations included Crispen Chinguno, Professor Eddie Webster, and Gareth Newham.
12 The Wiehahn Commission was established in 1979 in response to the upsurge in strike action beginning in Durban in 1973, and the Soweto Uprisings of 1976. The commission recommended the amendment of the LRA to permit the formation of “black” trade unions. See Ashforth (Citation1990).
13 Much like the scenario aptly described by Weber (Citation1919) when analysing the professionalisation of politics, we see union functionaries who “live from” their position, whilst weakening democratic representation and severely fragmenting labour.
14 The issue had been one of contestation between unions and capitalist corporations for some time. It was an issue discussed at the National Economic Development Labour Council (NEDLAC) in 2009, with the main trade union federations, Cosatu and the National Council of Trade Unions (NACTU) asserting their favour for a legislative ban on labour brokers (Englert and Runciman Citation2019; Van Eck Citation2010).
15 Sections 1.1.3–1.1.4 of the commission’s terms of reference tasked it to investigate “whether it by act or omission, created an environment which was conducive to the creation of tension, labour unrest and disunity among its employees or other harmful conduct” and “whether it employed sufficient safeguards and measures to ensure the safety of its employees, property and the prevention of the outbreak of violence between any parties.”