“There’s a contradiction between the suggestion that the law and constitutional democracy should be respected and on the other hand, impose on Lonmin to negotiate with strikers outside the legal framework,” Schalk Burger. for Lonmin, told the commission in final arguments.
“It is not fruitful to ask us now, how one should have exercised our best endeavours with the benefit of hindsight. We must test best endeavours with the knowledge available at the time.”
Burger said Lonmin was governed by the Labour Relations Act.
“Lonmin could not simply cancel the NUM [National Union of Mineworkers] agreement and commence wage agreements with the RDOs [rock drill operators],” he said.
Burger referred to the evidence of Barnard Mokwena, who was Lonmin’s executive president of human capital and external affairs at the time of the August 2012 strike.
Mokwena testified that Lonmin’s response to the strikers’ demand for a R12,500 wage had already been communicated by Michael da Costa, the then manager of Lonmin’s Karee mine.
Additionally Lonmin had already approved an allowance which brought the RDO wages on par with those at Impala and other mines.
“Had Lonmin engaged with the striking mineworkers on the 10th of August, we would’ve immediately blurred the two types of strike and that would’ve had far reaching implications for the industry and country,” Burger quoted Mokwena as having said.
Burger added that security managers were unable to speak to the striking workers on August 10, as the strikers had merely ignored them.
He said the strikers had also not handed over a memorandum to security management to give to Lonmin management as required by their security protocol because the strikers claimed that they were illiterate.
Burger said that had Lonmin decided to negotiate with the strikers outside of the legal framework, questions such as when to negotiate, what to negotiate about, and what would happen if an agreement couldn’t be reached, would have to be answered.
Burger also argued it was not in the commission’s mandate to inquire into individual accountability.
Earlier, Louis Gumbi, for the family of police officer Sello Lepaaku who was killed during a clash with striking miners on August 13, recommended that the strikers responsible for his death be prosecuted.
“It’s our recommendation to the commission [that] those strikers that were identified that were carrying dangerous weapons must be identified, must be prosecuted, and must face the full might of the law.”
The commission is investigating the deaths of 44 people at Lonmin’s platinum mining operations in Marikana, North West, 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 policemen and two Lonmin security guards, were killed.