NUM neglected its duty, says lawyer

Pretoria - The National Union of Mineworkers (NUM) failed to properly represent rock drill operators (RDOs) prior to the unprotected strike at Lonmin [JSE:LON] in Marikana in August 2012, the Farlam Commission of Inquiry heard on Tuesday.

"There's a large section of NUM's heads of argument which are devoted [to] an attempt to say that it should bear no responsibility because it had no mandate to take up [what]... RDOs were raising, being R12 500," Anthony Gotz, for the Association of Mineworkers and Construction Union (Amcu), told the commission in Pretoria in closing arguments.

He was referring to the minimum salary being demanded at the time.

He said the NUM argued that since workers had rejected their involvement in raising their demands, the NUM had no mandate to take up their demands, therefore they were not responsible for the events that followed.

"The attempt to suggest that it [NUM] bore no responsibility to subsequent events because it did not have a mandate from the RDOs should not be accepted," Gotz said.

Gotz said the NUM was fully aware that RDOs were underpaid, and had indicated before the strike began that the situation was a "ticking time bomb".

"NUM took an incorrect and largely indefensible position in key meetings just prior to the commencement of the strike."

When probed by commission chairman retired judge Ian Farlam as to what kind of responsibility the NUM should then bear, Gotz said the NUM had failed in its responsibility to its members and all RDOs.

"NUM officials who articulated that position improperly, and possibly negligently, articulated that position which [had] the effect of foreclosing any prospect that the demands of the RDOs would be taken up by the NUM," Gotz said.

"That indeed created an irresponsibility not only to its own members but to all of the RDOs at Lonmin because it alone had the right to bargain."

It further constituted a failure to properly represent the RDOs in circumstances which were acknowledged to be very volatile.

Gotz said he did not submit that the NUM was criminally responsible for the events that followed during the strike, but the NUM had to bear responsibility for their failure to represent RDOs in those circumstances.

The NUM should have instead made representations to the RDOs that they could take up their cause with management.

Gotz also focused on the action of NUM officials when their offices at Lonmin's platinum mining operations at Marikana, North West, were approached by a group of striking workers.

He said a rumour had gone round, with the source unidentified, that the strikers were on the way to the NUM offices with violent intent.

The 30 officials at their offices armed themselves "to the teeth" to protect their property, Gotz said, even though their offices were the property of Lonmin.

"We do accept that it may have contained contents that belong to NUM... The essential question, given the fact their stated intent to go out and confront the strikers, what are the legal principles that are at play in these sort of circumstances?"

Taking action that could potentially lead to the deaths of others in defence of property was only justified in very exceptional circumstances, with the NUM officials being in possession of a firearm at the time, he said.

The subsequent pursuit of the strikers by NUM members could not be seen as something that fell under the rubric of self-defence either.

"We do submit that there is a prima facie case that the person or persons involved were not acting in self-defence," Gotz said.

He said the NUM officials involved in the pursuit were possibly liable to charges of attempted murder and assault to do grievous bodily harm.

The commission is investigating the deaths of 44 people at Lonmin's platinum mining operations in Marikana, in the strike-related unrest in August 2012.

Thirty-four people, mostly striking mineworkers, were shot dead in a clash with police on August 16 2012.

More than 70 people were wounded and more than 200 were arrested. The police were apparently trying to disarm and disperse them.

In the preceding week, 10 people, including two police officers and two Lonmin security guards, were killed.