Commission of despair

The Farlam Commission of Inquiry was intended to explain the tragedy of Marikana, in which 45 people lost their lives.

A year later it has ground to a halt, leaving the families of the dead fearing that they will never know why their husbands and brothers were killed.

The fears are not only that there will be no answers, but that those responsible will not be held to account, that nothing will be done to ensure proper policing, that multibillion-rand industries will not be held accountable for worker abuse, that warring trade unions will not be stopped and that "third forces" will be able to continue to wreak havoc and create chaos.

For Andile Yawa, the commission was meant to bring justice.

On Friday, his son, Cebisile, will have been dead for a year. The commission was meant to have long ago completed its work but all Yawa has is a year's worth of unanswered prayers and questions.

"I want to know why my son died. Why has this [killing] not stopped?" he said.

Few of the top legal minds who have taken an interest in the case believe that he will ever get his answers, least of all from the commission.

Professor Richard Calland, head of the University of Cape Town's democratic governance and rights unit, said commissions of inquiry could deliver justice through public accountability forums, and strong and effective recommendations.

"Commissions that distinguish between political responsibility and political accountability are vital," he said.

"It's important that a commission makes findings of fact about who is responsible, and recommendations about who is accountable, so that those who are accountable can be held to account.

"But for this to be done those establishing a commission have to be serious . funding must be resolved . there must be proper legal representation for victims so that those responsible are asked the tough questions.

"The government's failure to provide legal funding for legal representation suggests that it is not taking the matter seriously enough."

Dali Mpofu, the advocate representing miners and their families, has withdrawn from the inquiry temporarily because of the lack of funding. He has launched a Constitutional Court application for an order that would compel the state to help pay his clients' costs. Lawyers representing the Association of Mineworkers and Construction Union have withdrawn in solidarity with him.

The Legal Resources Centre, also temporarily out, has said public confidence in the effectiveness and credibility of the inquiry will suffer because of the repeated postponement of the hearings.

Calland said that if a commission's recommendations were to be implemented it had to do its work well.

"This commission is clearly serious about uncovering the truth. It has some of the country's finest lawyers leading the evidence and cross-examining but there is grave concern about the witnesses who are or, in this case, not appearing. In the end, justice will come down to witnesses."

Nicole Fritz, executive director of the SA Litigation Centre, said: "Given the extent of the issues surrounding Marikana, how far the commission's eventual findings will go is in question . broader considerations need to be [taken into account] in terms of the role of mining companies, labour and union rivalry.

"A commission is not necessarily a sufficient response, especially in terms of the enormity of Marikana. You need a panel whose expertise goes beyond the law so that the consideration is not given solely to [legalities] but involves broader economic and social questions.

"Forums [must] take into account and address the huge inequalities within our society."

Political analyst Aubrey Mashiqi said: "The families of the miners, police and security guards who died still do not have closure.

"There is a loss of hope. It was hoped that the commission would provide families with answers . that the nation would reflect on what must be done to avoid another Marikana. But this cannot be achieved by the commission alone."