THEJUDICIALCOMMISSIONOFINQUIRYINTOTHEEVENTSATTHE

MARIKANAMINEINRUSTENBURG,NORTHWESTPROVINCE,SOUTH
AFRICADURINGAUGUST2012
REPLYINGSUBMISSIONSONBEHALFOFMRCYRILRAMAPHOSA

1.

These submissions focus on certain of the arguments that have been

advanced in respect of Mr Ramaphosas role in the events under
investigation.

2.

Therearetwoprincipalthemestothosearguments:
2.1

Mr Ramaphosa was a nonexecutive director of Lonmin between

July2010and31January2013.Inthiscapacity,heissaidtobear
some responsibility for the relevant actions and omissions of
Lonmin.

2.2

Mr Ramaphosa intervened with, in particular, the Minister of

PoliceandtheMinisterofMineralResourcesduringtheperiod12
15 August 2012. This intervention has been said to have had a
causalroletoplayinthedeathsthatoccurredon16August2012,
moreparticularly:
2.2.1

Theaimoftheinterventionhasbeensaidtobe,inconcert
withLonmin,tolobbyandcolludewiththeSAPStobreak
thestrike.1

Submissionsonbehalfoffamilies,pp414420.

2.2.2

Mr Ramaphosas intervention is said to have had the

consequence of introducing an element of political
pressureintothesituationthatinfluencedthesubsequent
events.Moreparticularly:
2.2.2.1 According

to

the

evidence

leaders,

Mr

Ramaphosas call to Minister Mthethwa on the

evening of Sunday 12 August 2012 was probably
the reason for subsequent calls made by the
Minister to the police commissioners. These calls
may have been a factor in the decision ultimately
taken by the provincial commissioner to move
precipitately to the tactical phase of the police
operationon16August2012.2
2.2.2.2 On behalf of the arrested and injured, the more
extreme claim is made that Mr Ramaphosas
intervention entailed the deliberate setting in
motion of a chain of political pressure with the
intention of ensuring a violent solution to the
strike.3

Evidenceleaderssubmissions,p549,para1005.

Submissionsonbehalfofinjuredandarrestedpersons,p223,para598;p239,para640.

3.

We make the following brief submissions in reply in respect of each of

thesearguments.

THE LIMITS OF MR RAMAPHOSAS KNOWLEDGE OF AND INFLUENCE OVER

LONMINSCONDUCT
4.

TheevidenceleadersarecriticalofLonminsresponsetothestrikeof9
August 2012 and to the conflict that followed from it. That response
couldbecharacterisedasfocusedonsecuringthepresenceofthepolice
and policeactionto deal with the violenceand attacks on persons and
property and declining to pursue the option of negotiation with the
strikersontheissueoftheirwagedemand.Itisinthiscontextthatthe
evidence leaders submit that [i]t may well be that the directors, and
perhaps particularly Mr Ramaphosa given his background, should have
appreciatedtheneedforurgentactiontoaddresstheunderlyinglabour
dispute,andshouldhaveintervenedactivelytoensurethatmanagement
tooksuchaction.4

5.

This submission largely accords with Mr Ramaphosas own conclusions

expressedduringhistestimony.5

6.

That said, Mr Ramaphosas evidence also emphasised the limits of his

knowledgeof,involvementinandinfluenceoverthemanagementofthe

Evidenceleaderssubmissions,p535,para973.

Record,p34454,lines1924;p34466,line3to34467,line11;p34471,line21to34472,
line10.

companythatwereattendantonhisroleasanonexecutivedirector.6It
should thus be kept in mind that, while an intervention by Mr
Ramaphosa along the lines postulated by the evidence leaders was
possible, there is no certainty that it would necessarily have had any
effectonthelinethathadbeendecideduponandthatwasbeingtaken
bythecompanysmanagement.7
THEALLEGEDCONSPIRACYTOBREAKTHESTRIKE
7.

Astothesecondthemesetoutabove,whatevercriticismsarelevelledat
Lonminsfocusonthecriminalconductthatattendedthestrikeandon
securingpoliceactiontopreventitandstabilisethesituation,thereisno
direct evidence to justify the conclusion that Lonmin intended to
influencetheSAPStouseforcetobreakthestrike.Thetranscriptof
themeetingbetweenLonminmanagementandGeneralMbombowhich
isreliedoninsupportofthisconclusion,8isequallyconsistentwiththe
interpretationthatLonminagreedtoissueanultimatumtothestrikers
attheurgingofGeneralMbombo.

Record,p34534,lines1020;p34559,lines421.

Seerecord,p34566,line21to34567,line3:Allyoucaneverdoistobringthingstothe
noticeofothers,forinstancewhenitcametotheissueofsayingdismissalofworkersI
didsaythatdismissalofworkersisnotanoptionthatshouldbeconsidered,theextent
towhich,whetherthatwasdoneornotissomethingthatobviouslycanbeexamined.
Sothepowerandtheauthoritythatyousayonehadissimplynotthecase.Youwork
withotherpeople.

ExhibitJJJ192.

8.

ThereisnoevidenceatallthatMrRamaphosaparticipatedinamission
tohavetheSAPSbreakthestrike.Hischaracterisationoftheeventsthat
were taking place as criminal was a reference to the acts of violence
andmurderthathadtakenplaceandisobjectivelyjustified.Hisphrase
actinamorepointedwaywasfullyexplainedbyhim.9Thecasethat
heparticipatedinanallegedLonminconspiracytobreakthestrikeis,we
submit,builtonlittlemoreonaninterpretationofthatphrasethatseeks
toimputeamoresinistermeaningtoit.

THEALLEGEDCHAINOFPOLITICALPRESSURE
9.

The case made out in this respect by the evidence leaders is made
tentativelyandwithdueappreciationofthefactthatitismadeonthe
basis of hypothesising about the likelyimpact of theMinisterscalls on
subsequent decisions of the police commissioners, particularly General
Mbombo.ThereisnoevidencethattheMinisterdidanythingmorethan
what he said he did in these calls, which was to convey what he had
been told about the situation at Marikana by Mr Ramaphosa and Mr
Zokwanaandaskwhatthepolicemanagementwasdoingaboutit.The
evidence leaders do not suggest that either Mr Ramaphosas or the
Ministersinterventionwasimproper.Nodirectcausallinkissuggested

Record, p 34443, lines 1521: (we wanted to communicate to government that were
dealingwithpeoplewhoarebeingkilledandwhatweneedtodoistopreventfurther
deaths occurring, and acting in a pointed way would mean that those who are
perpetrating those acts should be arrested so that that comes to a stop and does not
carryonanyfurther.Thatisactinginapointedway).

between Mr Ramaphosa engaging the Minister and the subsequent

decisionstakenbytheprovincialcommissioner.
10. Suchalinkishoweverallegedinthesubmissionsonbehalfofarrested
andinjuredpersons.Theargumentis,withrespect,somewhatdifficult
tofollowbutseemstoproceedasfollows:
10.1 Mr Ramaphosas intervention entailed a conflict of interest
betweenhisroleasashareholderanddirectorofLonminandhis
politicalinvolvementsandconnections.
10.2 AsaresultofMrRamaphosascall,theMinisterhadinformedthe
National Commissioner of political pressure from a politically
highindividual,whowasashareholderofLonmin.The(political)
nature and source of the pressure and the (shareholder) capacity
in which it was exerted were therefore clearly understood by all
theplayers,includingtheleadershipofbothSAPSandLonmin.10
10.3 The national and provincial commissioners then reached a
consensusthatanopportunitytodefusethetensionsandavoid
further violence ought to be avoided, or presented purely and
simply because, apart from resolving the violence (as had

10

P234,para632.2.

happenedbefore),itwouldresultinpoliticalcreditgoingtoarival
politiciantotherulingANC,MrJuliusMalema.11
10.4 Thetimingofthepoliceoperationwasthereforedecideduponon
thebasisofthesepoliticalconsiderations.12
10.5 Had the timing of the operation been different, then the specific
deceasedvictimswhoperishedwouldprobablybealivetoday.13
10.6 The political pressure was therefore directly and causally
connectedtothe34deaths,theinjuriesandarrestsofthespecific
victimswhosufferedthesecalamitieson16August2012.14
11. Wepointoutthefollowingflawsinthisargument:
11.1 There is no conflict of interest in Mr Ramaphosa seeking, in his
capacity as a Lonmin director, to intervene with the Minister in
ordertodirecttheattentionofthepolicetothecriminalactivities
thatweretakingplaceandseektohavethemstopped.Lonmins
interests, those of the ANC and of the government were not in
conflictinthisregard.

11

P238,para634.

12

Submissionsonbehalfofinjuredandarrestedpersons,p238,para636.

13

Ibidp239,para638.

14

Ibidp239,para639.

11.2 Inanyevent,eveniftherewasaconflictofinterest,itcouldhave
nobearingonthecausalsequenceofthesubsequentevents.At
itshighest,itwouldmakeMrRamaphosasinterventionimproper
orinappropriatebutitwouldnotimplicatehiminliabilityforthe
seriesofeventsthatfollowed.
11.3 ItwasnotimproperfortheMinistertocallthecommissionersor
totellthemthathehadspokentoMrRamaphosa.TheMinister
denied that he was pressured or that he placed any pressure on
anyone else. There is no causal link established between the
Ministersinterventionandthetacticseventuallydecideduponby
thepolice.
11.4 The concern about Mr Malemas possible involvement was
certainly irrelevant, but the extent to which it influenced the
provincial commissioners decision is not definitively established
bytheevidence.Assetoutabove,theevidenceleadersgoonlyso
far as suggesting that the calls from the Minister are likely well
havebeenafactorinthatdecision.Itisclear,however,thatto
theextentthattheconsiderationspertainingtoMrMalemamay
have motivated the provincial commissioner in arriving at that
decision, such considerations were not introduced by Mr
RamaphosaortheMinister.
DNUnterhalterSC
IBCurrie
4November2014