Pandelani questions constitutional damages in the Marikana matter

Government has so far paid out more than R330m towards the victims of the Marikana massacre. 

Solicitor-general Fhedzisani Pandelani told the media yesterday that the state had paid out R330,445,630 to more than 200 people who were arrested during the 2012 wage strike in the North West mining town. The beneficiaries include those who were injured and 34 families of Lonmin mineworkers who perished when the police clashed with mineworkers in the historic strike. 

Wits Law Clinic, Socio Economic Rights Institute of SA, Kgatla Attorneys, Maluleka and Msimanga Attorneys and Nkome Attorneys represented some of the claimants for loss of support, pain and suffering and medical expenses.

However, Pandelani said, where a new concept was introduced such as constitutional damages – which did not exist when the incident happened – his office needed to get instructions from the police and everybody else involved.

“We are having to deal with this issue. Why was it not pleaded when the matter started? Until and unless there are new developments, I think we have done enough. The question is how long is a piece of string?” Pandelani asked.

Pandelani said his mandate was the management and co-ordination of litigation relating to the Marikana incident.

“The introduction of constitutional damages concept is something we do not have instructions for. Papers have not been amended such that we [can] go to our principals and say, ‘Here is a novel issue you need to budget for’,” he said. 

Pandelani said these matters have been “with us for 11 years”. “At some point we need closure. Just imagine, the government paying R330m, 11 years down the line people still flock back, the same claimants, stating that 'this is not enough'. It is not legally permissible.” 

Pandelani said the events of 2012 remain a significant chapter in SA’s history and should not be downplayed. He said many people are still impacted and them [as government officials] have a duty to acknowledge legal demands that are put before them. 

He added that the litigation is not only focused in compensating the mineworkers who died. 

“The resolution of numerous claims stands as a testament to our unwavering commitment to justice and due process,” he said.

He said the remaining two mineworkers’ families have not reached a settlement amount with the state. He said there are more than 320 family members who have come forward to lodge a claim.

Meanwhile, the National Prosecuting Authority (NPA) said it was still studying the docket on the shooting of 34 miners and has not yet taken a decision on whether police officers will be prosecuted.

Ipid spokesperson Robbie Raburabu told Sowetan’s sister publication TimesLIVE that the docket was handed to the NPA on May 13 2022 and was not sent back to the investigators for further investigations.

NPA spokesperson Henry Mamothame said it was too “early” to say when the decision would be taken as a team of prosecutors was still engaging with the docket. “The determination will only be made when the engagement with the docket is completed. It is still early for us to say [when the decision will be taken], we do not want to put ourselves under pressure,” said Mamothame.