Keynote address by the Judge President Mr. John Hlophe at the inaugural Marikana Massacre Commemoration Memorial Lecture at the Sandton Convention Centre, 15 August 2018.
I thank the programme director for the kind introduction. I am honoured to be invited as a guest speaker to give a keynote address regarding the Marikana Massacre that occurred six years ago.
Marikana Massacre 16 August 2012, why? In an attempt to navigate my way through my speech, I will refer to two similarly ugly massacres in South African history. The first being the Sharpeville massacre of 21 March 1960. The second being the Soweto Uprising of 16 June 1976 and the third being the Marikana masasacre of 16 August 2012.
The Sharpeville Massacre
It took place as a result of protest action, against pass laws, and was masterminded by the PAC. The pass laws in question were the Natives (Abolition of Passes and Coordination of Documents) Act of 1952. This forced black South African to carry a range of documents, including a photograph, place of birth, employment records, tax payments and criminal records if any. This enabled the government to further restrict the movement of Africans. So, it was therefore illegal to be without a Pass, the penalty for which was arrest and jail. The Natives (Prohibition of Interdicts) Act of 1956 removed all legal recourse of objecting to the removal of black people from certain residential areas. The Urban Areas Act limited black people to 72 hours in an urban area without permission from a specific municipal order. As result, black people in urban areas had to be checked by authorities and this caused constant humiliation and monitoring and intense anger in black communities.
The PAC proposed an anti-Pass campaign which was to commence on the 21 March 1960. Sobukwe even wrote a letter to then commissioner of South African Police, Major General C.I Rademeyer and said:
Sir: My organisation, the Pan Africanist Congress, will be starting a sustained, disciplined, non-violent campaign against pass laws on Monday, 21 March 1960. I have also given strict instructions, not only to the members of my organisation but also to the African people in general, that they should not allow themselves to be provoked into violent action by anyone. In a press statement I am releasing soon, I repeat that appeal and make one to the police.
I am now writing to you to ask you to instruct the police to refrain from actions that may lead to violence. It is unfortunately true that many white policemen, brought up in the hothouse of South Africa, regard themselves as champions of white supremacy and not as law officers. In the African they see an enemy, a threat, not to ‘law and order’ but to their privileges as whites.
I, therefore, appeal to you to instruct your men not to give impossible demands to my people. The usual mumbling by a police officer of an order requiring the people to disperse within three minutes, and almost immediately ordering a baton charge, deceives nobody and shows the police up as sadistic bullies. i sincerely hope that such actions will not occur this time. If the police are interested in maintaining ‘law and order’ they will have no difficulty at all. We will surrender ourselves to the police for arrest. If told to disperse, we will. But we cannot be expected to run helter-skelter because a trigger-happy, African-hating young white police officer has given thousands or even hundreds three minutes within which to remove their bodies from his immediate environment.
Hoping you will co-operate to try and make this a most peaceful and disciplined campaign.
See Benjamin Pogrund’s “Robert Sobukwe, how can man die better”. Page 123-124.
Protestors were urged to leave their passes at home and surrender themselves for arrest at the nearest police station. They would ask for no bail, no defence and no fine. After serving the expected jail sentences, PAC members would again offer themselves for arrest. The whole plan behind this move was to ensure that people would get arrested and that would have a ripple effect on their employers. Employers would then put pressure on the government to abolish the pass alas amongst other things.
It was around 13h30 when thousand of protestors gathered outside the Sharpeville police station. The people were told to disperse. No order was given to fire. One or two policemen opened fire and then a full volley from revolvers, rifles, and stun-guns followed. The shooting went on for at least 40 seconds. Several policemen reloaded and fired again. It was an unprovoked attack. It was carnage. There was blood everywhere.
Fleeing men, women and children were mercilessly mowed down. Some people thought police were firing blanks, but they thought wrong as bodies were falling behind and among them. The toll was 69 dead and 186 injured. Medical evidence revealed that more than 70% of the victims were clearly shot from the back. The Sharpeville Day is officially called Human Rights Day. It is known as a public holiday in South Africa.
Soweto Riots in 1976
It took about 16 years before yet another horrible tragedy of a similar nature occurred. The events that triggered the uprising can be traced back to policies of the Apartheid government that resulted in the introduction of the Bantu Education Act in 1953. The Bantu Education system was designed to train and fit Africans for their role in the Apartheid society. The role was one of labourer, worker and servant only. As H.F Verwoerd, the architect of he Bantu Education Act (1953) conceived it:
“There is no place for [the African] in the European community above the level of certain forms of labour. It is to no avail for him to receive a training which has ist aim, absorption in the European community”. http://See https://www.sahistory.org.za/article/pass-laws-south-africa-1800-1994
He went further and said:
“Natives (blacks) must be taught from an early age that equality with Europeans (whites) is not for them”.
Deputy Minister Andries Treunitcht sent instructions to the schools’ boards, inspectors, and principals to the effect that Afrikaans should be put on an equal basis with English as medium of instruction in all schools. These instructions immediately drew negative reaction from various quarters of the community. Teachers raised objections to the government announcement. Some teachers, who were members of the African Teachers Association of South Africa complained that they were not fluent in Afrikaans. Students were conscientized and influenced by national organisations such as the Black People’s Convention, South African Students Organisation and by the black consciousness philosophy. Students rejected the idea of being taught in the language of the oppressor. On the 16 June 1976, not all students who were participating in the march knew about it in that morning. It was an ordinary school day for many. But by this time students were feeling very frustrated and dissatisfied with the Bantu Education System in general and the introduction of Afrikaans as the medium of instruction. It was exam time for the senior students and many were scared that they would fail the exams if they had to write in Afrikaans.
Nonetheless the march that was planned by the action committee of the Soweto Students Representative Council was well organised and was to be a conducted in a peaceful way. The leaders of the march came from two high schools, Naledi High in Naledi and Morris Isaacson in Mofolo. The students were to meet at a central point and proceed peacefully together to the Orlando Stadium. The first students to gather were at Naledi High School and the Chairperson of the action committee, Tepello Motoponyane addressed them and informed them that discipline and a peaceful march will be the order of the day. Meanwhile at Morris Isaacson students also gathered. They were addressed by one of the leaders of the action committee, Tsietsi Mashinini and set out. Between 3000 and 10 000 students mobilized by the South African Students Movement’s Action committee supported by the Black Consciousness Movement marched peacefully to demonstrate and protest against the government’s directive. As the march was proceeding and sensing that the situation was getting tense, Tsietsi Mashinini climbed on a tractor and said:
“Brothers and sisters, I appeal to you-keep calm and cool. We have just received a report that the police are coming. Don’t taunt them, don’t do anything. Be cool and calm. We are not fighting”.
Despite the tense atmosphere the students remained calm. On their pathway they were met by heavily armed police who fired teargas. People ran out of there smoke-dazed and coughing. The crowd retreated slightly but remained facing the police, waving placards and singing. A white policeman drew a revolver. A single shot rang out. There was a split silence and pandemonium broke out. Children screamed. More shots were fired. Official figures were that 23 people had been killed but some reports estimated that it was at least 200. It is hard to know how many people had been killed because of police efforts to cover up the number of people who died. But thousands of students went missing.
This triggered the Bethal treason trial which began in December 1977 also known as State vs Mothopeng and seventeen others. The defendants faced two main charges under the terrorism act and a number of alternative counts under other legislation. Zephaniah Mathopeng, who was also an internal leader of the banned PAC, was tried along with seventeen other suspects in the Bethal eighteen secret trial. They were convicted and jailed for their alleged role in fermenting the revolution and for being behind the Soweto uprising. Similarly, June 16 is now officially a public holiday known as the Youth Day.
During the course of the Bethal treason trial, four of those awaiting prosecution died in police custody. Vusumzi Johnson Nyathi, a detainee in the Bethal Trial of the State vs. Mothopeng miraculously survived after he was allegedly thrown out of the window during an interrogation session. Nyathi, who suffered spinal injuries was later charged and found guilty of trying to escape custody. He later sued the minister of police without success.
It is clear from the above that the two incidences, were organised, masterminded and executed by the apartheid regime. Put bluntly it was white on black violence intended to preserve the apartheid regime. The Marikana incident was a totally different kettle of fish. It happened on 16 August 2012 under the nose of the current dispensation. For South Africa it was a special kind of nightmare since it revived images of massacres by the state in the old apartheid with one brutal difference. This time it was predominantly black policeman, with black senior officers who were doing the shooting. There had initially been a series of violent incidents between the SAPS, Lonmin Security and members of the National Union of Mineworkers on the side and strikers themselves on the other side. It started as a Wildcat strike at a mine owned by Lonmin in the Marikana area. While they were on 4000 to 5000 rand per month, respectively, the employees demanded 12,500 rand and agreed that they would not turn up for work the next day.
Right to Dignity. Section 10 of the Constitution of the Republic of South Africa, 1996 (the Constitution) provides:
“everyone has inherent dignity and the right to have their dignity respected and protected”
Right to life. Section 11 of the Constitution provides:
“Everyone has the right to life”
The importance of the right to life and dignity were emphasised in the case of S vs. Makwenyane 1995 (3) SA 391 (CC) at paragraph 144 where CHASKALSON P held:
“The right to life and dignity are the most important of all human rights, and the source of all other personal rights in chap 3. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others”
Langa J further states at paragraph 218 stated that:
“The emphasis I place on the right to life is, in part, influenced by the recent experiences of our people in this country. The history of the past decades has been such that the value of life and human dignity have been demeaned. Political, social and other factors created a climate of violence, resulting in culture of retaliation and vengeance. In the process, respect for life and for the inherent dignity of every person became the main causalities. The State has been part of this degeneration, not only because of its role in the conflicts of the past, but also by retaining punishments which did not testify to a high regard for the dignity of the person and the value of every human life”.
Sachs J goes on and states at paragraph 348 and 351
“Decent people through the world are divided over which arouses the greatest horror: the thought of the State deliberately killing its citizens, or the idea of allowing cruel killers to co-exist with honest citizens. For some, the fact that we cold-bloodedly kill our own kind taints the whole of our society and makes us all accomplices to the premeditated and solemn extinction of human life”.
In the vivid phrase used by Mahomed J in the course of argument, the right to life is not subject to incremental invasion. Life cannot be diminished for an hour, or a day, or ‘for life’. While its enjoyment can be qualified, its existence cannot. Similarly, death is different. It is total and irreversible. Just as there are no degrees of life, so there are no degrees of death (though, as well shall see, there were once degrees of severity in relation to how the sentence of death should be carried out) a level of arbitrariness and the possibilities of mistakes that might be inescapable, and therefore tolerable in relation to other forms of punishment, burst the parameters of constitutionality when they impact on the deliberate taking of life. The life of any human being is inevitably subject to the ultimate vagaries of the due processes of nature; our Constitution does not permit it to be qualified by the unavoidable caprices of the due processes of law.
Right to decent living
Right to safe working conditions
Freedom of expression
There is no reason in my mind, why the Marikana Day should not be made a public holiday, given the scale of violence and senseless killing.
There is no freedom without a struggle (President Nelson Rolihlahla Mandela)
No struggle without casualties
Never again should we allow race discrimination to dictate the pace of change in our country
Police brutality is not a solution to disputes of this nature
Wage disputes should enlist the services of mediators
Push mediation as a solution, e.g political disputes, family disputes, neighbourly disputes.
The struggle for economic emancipation is not over. As long as the fat cats continue to exploit workers there will always be a need for unions to organise the workers to fight for better wages and for better working conditions. Remember my brothers, my comrades, together we stand. Amandla ngawethu!