Almost eleven years after Solomon Nyirenda, Yvonne Mnisi and Pretty Nkambule were entombed underground at Lily Mine, their families are no longer asking the State to prosecute on their behalf.
The State has already declined to do so.
The families now seek to exercise the remedy available to them in law: private prosecution. Yet obtaining the nolle prosequi certificates necessary to proceed has itself become another exercise in administrative referral and delay.
On 7 August 2026, ActionSA President Herman Mashaba, acting under powers of attorney granted by the next of kin, formally requested the certificates following the decision of the Acting Director of Public Prosecutions in Mpumalanga to decline prosecution arising from the October 2023 Lily Mine Inquest Judgment.
The legal position is important because it demonstrates how narrow the issue before the NPA now is. The essential requirements underpinning the section 7 request have been met:
- The State has declined to prosecute. The Acting DPP in Mpumalanga has already taken that decision.
- The families have standing. Section 7 of the Criminal Procedure Act recognises qualifying next of kin where a death is alleged to have been caused by an offence, and the next of kin have authorised President Mashaba to act on their behalf.
- The certificates have formally been requested. That request was made on 7 August.
This is therefore not a request for the NPA to decide whether these families deserve justice, nor an attempt to compel the State to prosecute.
That prosecutorial decision has already been made. What the families now require is the statutory certificate necessary to pursue private prosecution themselves.
Yet on 3 September, the Office of the National Director of Public Prosecutions advised that the request had been referred to the DPP in Mpumalanga for a decision. President Mashaba was consequently required to write again on 4 September asking when that decision can be expected.
The question for the NPA is therefore straightforward: What substantive legal question remains to be determined? If the State has declined prosecution, the next of kin have standing, representation has been authorised and the certificates have formally been requested, what remains outstanding before they can be issued?
ActionSA accepts that the law determines which office within the prosecuting authority is competent to issue the certificates. What we will not accept is jurisdiction becoming a merry-go-round or administrative referral becoming indefinite delay.
This is particularly important because, once issued, the law places a limited period on the prospective private prosecutor to institute proceedings. The families will be expected to move expeditiously. The State should demonstrate the same urgency in enabling them to do so.
If another lawful requirement must be met, tell us what it is and we will meet it. If another document is required, identify it and we will provide it. If the Mpumalanga DPP must issue the certificates, then the matter must now be dealt with. No administrative hoop or bureaucratic rigmarole will deter these families from pursuing justice.
South Africans should also remember how we arrived here.
For years, the DMRE maintained that the container containing the three miners was irretrievable. The families refused to accept this conclusion and sought the assistance of Herman Mashaba, who committed considerable personal resources and assembled a legal team to interrogate the basis of the State’s assertion.
His legal team ultimately resorted to PAIA to obtain the documentation underpinning the Department’s position. When interrogated, those documents did not contain the professional assessment necessary to support the supposed finding that the container could not be retrieved. The families had effectively been told to abandon hope on a proposition for which the State could not produce the professional evidential basis it claimed existed.
It took their persistence and considerable legal expenditure to expose this. ActionSA subsequently pursued access to Lily Mine at its own cost to enable suitably qualified mine-rescue specialists to pursue retrieval.
That history reveals a troubling pattern: when the families accepted the State’s word, nothing moved. When they challenged it, the evidence told a different story. Now that they seek private prosecution after the State itself declined to prosecute, they face another administrative process.
This is why Minister Gwede Mantashe’s repeated refrain of “sizabakhupha” (we will retrieve them) can no longer substitute for action. Almost eleven years later, the obvious response is: When?
This saga also gives painful meaning to retired Justice Mbuyiseli Madlanga’s warning at this week’s Rabinowitz Lecture about the gulf between our constitutional promise and the lived reality of accessing justice. He spoke of the prohibitive cost of legal services and the resulting “inequality of arms” between those able to vindicate their rights and those without the resources to do so. Lily Mine is that inequality made real.
Had these families not persisted, sought outside assistance and found the resources to challenge the State, how much of what we now know would ever have come to light?
There can be little meaningful equality before the law when a grieving family’s ability to obtain justice depends upon its stamina, resources and capacity to fight the State for years merely to exercise rights that already exist in law.
The families of Solomon Nyirenda, Yvonne Mnisi and Pretty Nkambule have fought long enough simply to reach the starting line of justice. No administrative hoop will exhaust them. No referral will deter them. No delay will make them disappear.
The State has declined to prosecute. Issue the nolle prosequi certificates and allow these families to exercise their rights in law.
ActionSA will not relent until Solomon, Yvonne and Pretty are brought home and the pursuit of justice has run its full course.
LILY MINE: The State Has Declined to Prosecute, Delaying the Families’ Right to Do So Must Now Stop
Almost eleven years after Solomon Nyirenda, Yvonne Mnisi and Pretty Nkambule were entombed underground at Lily Mine, their families are no longer asking the State to prosecute on their behalf.
The State has already declined to do so.
The families now seek to exercise the remedy available to them in law: private prosecution. Yet obtaining the nolle prosequi certificates necessary to proceed has itself become another exercise in administrative referral and delay.
On 7 August 2026, ActionSA President Herman Mashaba, acting under powers of attorney granted by the next of kin, formally requested the certificates following the decision of the Acting Director of Public Prosecutions in Mpumalanga to decline prosecution arising from the October 2023 Lily Mine Inquest Judgment.
The legal position is important because it demonstrates how narrow the issue before the NPA now is. The essential requirements underpinning the section 7 request have been met:
This is therefore not a request for the NPA to decide whether these families deserve justice, nor an attempt to compel the State to prosecute.
That prosecutorial decision has already been made. What the families now require is the statutory certificate necessary to pursue private prosecution themselves.
Yet on 3 September, the Office of the National Director of Public Prosecutions advised that the request had been referred to the DPP in Mpumalanga for a decision. President Mashaba was consequently required to write again on 4 September asking when that decision can be expected.
The question for the NPA is therefore straightforward: What substantive legal question remains to be determined? If the State has declined prosecution, the next of kin have standing, representation has been authorised and the certificates have formally been requested, what remains outstanding before they can be issued?
ActionSA accepts that the law determines which office within the prosecuting authority is competent to issue the certificates. What we will not accept is jurisdiction becoming a merry-go-round or administrative referral becoming indefinite delay.
This is particularly important because, once issued, the law places a limited period on the prospective private prosecutor to institute proceedings. The families will be expected to move expeditiously. The State should demonstrate the same urgency in enabling them to do so.
If another lawful requirement must be met, tell us what it is and we will meet it. If another document is required, identify it and we will provide it. If the Mpumalanga DPP must issue the certificates, then the matter must now be dealt with. No administrative hoop or bureaucratic rigmarole will deter these families from pursuing justice.
South Africans should also remember how we arrived here.
For years, the DMRE maintained that the container containing the three miners was irretrievable. The families refused to accept this conclusion and sought the assistance of Herman Mashaba, who committed considerable personal resources and assembled a legal team to interrogate the basis of the State’s assertion.
His legal team ultimately resorted to PAIA to obtain the documentation underpinning the Department’s position. When interrogated, those documents did not contain the professional assessment necessary to support the supposed finding that the container could not be retrieved. The families had effectively been told to abandon hope on a proposition for which the State could not produce the professional evidential basis it claimed existed.
It took their persistence and considerable legal expenditure to expose this. ActionSA subsequently pursued access to Lily Mine at its own cost to enable suitably qualified mine-rescue specialists to pursue retrieval.
That history reveals a troubling pattern: when the families accepted the State’s word, nothing moved. When they challenged it, the evidence told a different story. Now that they seek private prosecution after the State itself declined to prosecute, they face another administrative process.
This is why Minister Gwede Mantashe’s repeated refrain of “sizabakhupha” (we will retrieve them) can no longer substitute for action. Almost eleven years later, the obvious response is: When?
This saga also gives painful meaning to retired Justice Mbuyiseli Madlanga’s warning at this week’s Rabinowitz Lecture about the gulf between our constitutional promise and the lived reality of accessing justice. He spoke of the prohibitive cost of legal services and the resulting “inequality of arms” between those able to vindicate their rights and those without the resources to do so. Lily Mine is that inequality made real.
Had these families not persisted, sought outside assistance and found the resources to challenge the State, how much of what we now know would ever have come to light?
There can be little meaningful equality before the law when a grieving family’s ability to obtain justice depends upon its stamina, resources and capacity to fight the State for years merely to exercise rights that already exist in law.
The families of Solomon Nyirenda, Yvonne Mnisi and Pretty Nkambule have fought long enough simply to reach the starting line of justice. No administrative hoop will exhaust them. No referral will deter them. No delay will make them disappear.
The State has declined to prosecute. Issue the nolle prosequi certificates and allow these families to exercise their rights in law.
ActionSA will not relent until Solomon, Yvonne and Pretty are brought home and the pursuit of justice has run its full course.