On 17 August 2023, Solicitor General Fhedzisani Pandelani provided an update on the civil claims paid to the victims of the Marikana Massacre in a media briefing. It is unfortunate that in the briefing he made various factually inaccurate comments concerning the claims of the deceased miners’ families. The briefing further characterised the families as unreasonable and opportunistic. Such misrepresentation undermines SERI’s ongoing attempts to constructively engage with the Office of the Solicitor General.
The Solicitor General appears either to be unaware of the nature and process relating to the families’ long outstanding claims or is unfortunately wilfully misrepresenting the position.
The Solicitor General stated that, having settled their loss of support claims, the families are now claiming further damages from the state belatedly, violating the ‘once and for all rule’. This is simply false. A single civil claim was submitted on behalf of 36 families in August 2015. The original claim always included not only loss of support, but also: an apology from the state; compensation for loss of support; provision for future medical expenses for treatment necessitated by the death of their loved ones; general damages for emotional shock and psychological damage caused by the trauma suffered in the immediate aftermath of the massacre and in the years that have followed; and constitutional damages for emotional suffering and grief together with the loss of family life, which includes the loss of parental care for the children of the deceased and spousal support for the widows of the deceased.
The Solicitor General also intimated that the number of claimants has belatedly increased. This, too, is simply false. The original claim was submitted on behalf of 36 families comprising 320 claimants from families that range in size from two to 19 members. These include the families of three miners killed on 13 August 2012 and 33 miners killed on 16 August 2012.
The Solicitor General incorrectly noted that in relation to the ten people who were killed prior to 16 August 2012, his office “has no claim whatsoever that has been lodged against government […] the other ten that died – there was no causation on death […] that was attributable to government or the state.” This is also factually inaccurate because six police officers are currently standing trial for the deaths of three miners and two police officers who were killed on 13 August.
The Solicitor General correctly confirmed that to date the state has settled the claim for loss of support for 34 families and paid out just over R70 million. This includes the families of the three miners killed on 13 August. The amounts paid out to each family were calculated by actuaries chosen by the state and were distributed in three tranches in August 2018, November 2018 and September 2019. Individual families received payments for loss of support ranging from approximately R100 000 to R3 million. The figures were derived from actuarial assessments based partly on the duration of the deceased miner’s prospective employment up until pension age at the time of death.
Regarding the 35th family, SERI received an offer in 2019, however, this offer excluded a family member. This individual claim remains unresolved, mainly due to delays by the state. Regarding the 36th family, until the briefing, the state’s position has been that it would not provide compensation for loss of support as it believed that the deceased miner did not have a duty to support his unemployed siblings and their children. We welcome the update from yesterday’s briefing that the state now considers this 36th family’s claim as “capable of settlement”. We look forward to settling the loss of support claims for the remaining two families.
It is imperative to differentiate the claims for loss of support from those of constitutional and general damages, as well as future medical expenses. General damages transcend monetary evaluation, encompassing loss or harm suffered by a person, such as pain and suffering, emotional harm and loss of amenities of life. The families’ pursuit of general damages aims to ameliorate the grief, shock and trauma they suffered due to the violent manner in which they lost their loved ones.
Constitutional damages stem from a breach of constitutional rights caused by gross state failure. This form of compensation serves as a rectifying mechanism and as a vindication of the constitutional rights breached. Without consequences, constitutionally guaranteed rights have no meaning. Constitutional claims aim to give meaning to constitutional rights, in this case the right to family life, by compensating the claimants, in monetary terms, for the destruction of their families. The widows have lost their husbands and life partners and children have lost a parent.
Claims for loss of support aim to afford the claimants the same standard of living they had when they were being supported by the deceased. We reject the state’s assertion that compensation for loss of support, without more, is sufficient, considering the gross human rights violations characterised by the Marikana Massacre and the impact that it had on the families of the miners. Under international law, these families are recognised as victims due to their immediate familial ties or dependence on individuals who were killed by the state.
The Solicitor General’s briefing was disconcerting in its reflection of the state’s view of what is due to the families. In his own words,
“I think we have done enough. The question that needs to be asked, ‘how long is a piece of string from where we are?’ […] Remarkable strides have been realised in the strategic orchestration and harmonisation of the Marikana litigation. The resolution of numerous claims stands as a testament to our unwavering commitment to justice and due process. However, the introduction of the constitutional damages concept is something that we do not actually have instructions for […]”
The attempt to minimise the families’ claims as driven by opportunism and the insinuation that the families are exaggerating the number of dependents fails to take into account the reality of family dynamics in South Africa that have been shaped by migrant labour, as well as the reliance on the remittances of working family members due to high levels of unemployment.
Furthermore, it is concerning that the Solicitor General was not able to provide an update regarding an apology, a critical facet of the families’ 2015 civil claim. The families have consistently emphasised the need for a direct and sincere apology from the state in facilitating their healing. SERI was compelled to approach the office of the Deputy Judge President this year to manage the court proceedings after efforts to engage the Solicitor General’s office and the State Attorney yielded no progress.
The expeditious resolution of the outstanding damages claims is in the interests of all involved. SERI reaffirms its readiness to engage constructively with the state to hasten the conclusion of the families’ claims. We reaffirm our conviction that justice delayed is justice denied. We remain committed to our pursuit of justice and reparation for the victims of the Marikana Massacre.
- Nomzamo Zondo, SERI executive director: Nomzamo[at]seri-sa.org; 071 301 9676
- Asenati Tukela, SERI attorney: Asenati[at]seri-sa.org.
- Download the press statement here.