The dawn of South Africa’s democracy in 1994 signalled a new hope for a better nation. A nation full of hope and promise. A new sovereign and democratic Republic founded on non-racialism, human dignity, and adherence to constitutionalism and the rule of law. However, 27 years into democracy, racial tensions in the country have become increasingly high, primarily as a result of persistent racial inequality, and certain political parties using race as a differentiating strategy to win the hearts and minds of those for whom they purport to advocate.
Many South Africans believe that the idea of the restoration of human dignity is a pipe dream as they continue to live under inhumane conditions in squatter camps otherwise known as informal settlements across the country without access to basic services. Worse still, recent attempts to undermine the Constitution of the Republic of South Africa were seemingly designed to flout the rule of law and cast doubt on the spirit and intent of the supreme law of the land.
What have been dubbed the “nine wasted years” of former president Jacob Zuma as the head of state did not bode well in advancing the building of a thriving developmental state. Instead, the country was said to be headed toward a deformed realisation of the developmental state, where corruption, maladministration and misuse of state resources set the country on a collision course of chaos and increasing incidents of lawlessness.
At the same time, Zuma’s interference with the administration of justice crippled law enforcement agencies as he sought to protect those believed to be beneficiaries of corrupt government dealings under his command.
This study explains how South Africans overtime have come to undermine the rule of law exacerbated by the nine wasted Zuma years. I argue that the deterioration of our collective social consciousness, poor attitudes, and mistrust of our law-enforcement agencies have progressively led to the collapse of South Africa’s criminal justice system. A desktop analysis of the events that followed the collapse of Lily Mine that occurred on 5 February 2016 was conducted to assert this point.
On 05 February 2016 at about 08:10am three young miners were left trapped underground after the surface ground, along with a shipping container that the miners used as a lamp room caved into old underground mine workings at Lily Mine in Louisville, east of Barberton in Mpumalanga Province.
A portion of the crown pillar on Level 4 of the main mine failed, collapsing at the upper western portion adjacent to the mine entrance. Tragically three surface employees Pretty Nkambule (22); Yvonne Mnisi (30); and Solomon Nyirenda (37) were buried in the sinkhole while the container they were in during the collapse, disappeared underground.
Shortly thereafter two rescue attempts by Mine Rescue Services, a Lily Mine rescue team, as well as mine employees were undertaken between February and March 2016 starting underground at Level 4 of the mine.
The First Rescue Operation (6 – 16 February 2016)
The rescue team’s attempt to move through underground Levels 4 and 5 using a “trapped persons locating device” to detect the exact location of the three trapped miners was unsuccessful. During the attempt, two further surface collapses occurred subsequently leading to the temporary suspension of the rescue operation. Independent rock engineers were then appointed to investigate the conditions of the underground workings of the rescue operations.
The engineers declared that the area was unsafe to continue rescue operations and it was therefore agreed that retrieval activity would be suspended to establish an alternative emergency outlet. Earlier between 17 and 29 January 2016, rock engineers had advised that preparations at the drilling site be undertaken to create an emergency escape-hole. A total of 660 millimetres was drilled for this purpose.
Second Rescue Operation (1 – 3 March 2016)
On 3 March 2016 during the second attempt to retrieve the trapped miners, various representatives from the South African Department of Mineral Resources & Energy (DMRE), Mine Rescue Services (MRS), the Association of Mineworkers & Construction Union (AMCU), as well as Lily Mine management represented by the Chief Executive Officer, Operations Director, General Manager, and rock engineering consultants went underground to determine the conditions of the rescue focus areas at Levels 4 and 5. The outcome was that any further attempts at rescuing the miners would be too dangerous as there was significant deterioration of the rock-walls at both Levels.
DEPARTMENT OF MINERAL RESOURCES REPORT / DMRE REPORT
On 28 June 2016, 4 months after the accident, an investigation into the collapse of Lily Mine in terms of section 60 (1) of the Mine Health and Safety Act, 1996 (Act No. 29 of 1996) (MHSA) was conducted. The report criticised Lily Mine management, finding that it had failed to comply with the provisions of section 86 (1) of the MHSA having failed to install an effective support system on the roof of Level 4. Effectively concluding that mine management had acted negligently resulting in the collapse of the crown pillar, backfill material, and ultimately the lamp room container with the three miners trapped inside.
A subsequent inquiry revealed that all the pillar collapses which occurred on the weak western part of Lily Mine prior to the day of the collapse were documented and known by the employer at Lily Mine. These pillar collapses or falls of ground were then understood to be precursors to the crown pillar collapse. However, Lily Mine management chose to ignore these warnings.
Furthermore, there had been no rational reasons given at the inquiry as to why the provisions of the Mine Works Programme (MWP) were not adhered to in relation to the development of the main entrance from a position 100 metres south of the western extremity of the main open pit. Had the mine adhered to the provisions of the MWP, the lamp-room container would not have been placed at that vulnerable location on the day of the collapse.
The DMRE Report does not support the finding that it was ever unsafe to commence rescue operations at the Mine. The evidence led during the inquiry was for purposes of establishing reasons which led to the collapse of the Mine. There was no supporting evidence to the assertion that the Mine is unsafe for the retrieval of the lamp room container, nor possibly live miners or their remains if found deceased subject to time spent underground without good ventilation, food, and water.
CURRENT STATE OF AFFAIRS AT LILY MINE
Shortly after the collapse of the container, Makonjwaan Imperial Mining Company Proprietary Limited (MIMCO), a Vantage Goldfields Proprietary Limited company who own Lily Mine went into a business rescue process (BRP) bringing official mine operations to a complete standstill.
However, almost immediately after the collapse of the lamp room container, former miners reported that illegal mining had started at the mine without consequences. Sparking outrage among former miners who then sought to retrieve the container themselves.
The BRP has been the subject of litigation since 2019 due to the lack of scientifically substantiated claim that the lamp room container with the trapped miners is irretrievable. On 29 July 2021, business rescue practitioners were found to be in contempt of two court orders for failure to conclude the BRP that will allow the retrieval process to commence.
TRAGEDY UPON TRAGEDY
Following delays in the BRP, the affected families of the three trapped miners decided to stage a campaign in an attempt to retrieve the container themselves. However, mine management frustrated their efforts by obtaining a court order prohibiting them from going ahead. On 30 April 2019 a day before Worker’s Day (1 May), the Lily Mine families as well as former miners erected a campsite at the foot of the mine in protest of BRP delays as well as perceived government inaction in compelling the owners of the mine to have the lamp room container retrieved.
At the heart of their grievance is the fact that they wish to perform proper traditional burial rights for Pretty Nkambule, Yvonne Mnisi, and Solomon Nyirenda invoking their rights to have proper resting places where their families can pay homage to them whenever they wish to do so. A freedom of religion and cultural practice enshrined in the Constitution of the Republic.
On 7 April 2021, the protest settlement where the families have been camping for 3 years was set alight destroying all of their personal belongings, food, and mementos accumulated over many months since the tragedy. The families’ right to protest and to ensure that their plight continues to be a going concern in the country’s socio-political discourse was violated when a group of about 50 men tried to intimidate them into giving up their mission. Despite the assailants being known by the community, the South African Police Service (SAPS) at Low’s Creek in Barberton dragged their feet in arresting the suspects adding salt to the affected families’ injuries. Eventually, 6 assailants were arrested in relation to the arson case.
On Thursday, 29 July 2021 the Lily Mine arson accused appeared at the Low’s Creek Periodical Court in Barberton, Mpumalanga. However, of the 6, accused number 1, Kaizer Gwebu, a convicted murderer and serial criminal failed to appear. The result of which was that his actions would be viewed to be in contempt of his bail conditions (in relation to the arson case) and set his imminent arrest in motion. Instead, the case docket was allegedly said to have gone missing, only to mysteriously reappear when its disappearance was reported to the media.
In January 2003, Gwebu was convicted of murder, armed robbery, and illegal possession of a firearm and ammunition, for which he had been sentenced to 30 years imprisonment, and whose parolee status for previous crimes remains in force until 2033.
INQUEST INTO THE LILY MINE DISASTER
The formal inquest into the collapse of Lily Mine was set to begin on 30 June 2021 but was postponed to September instead. The Senior Magistrate at Mbombela, Annamarie Van Der Merwe stated in communication to the lawyers representing the Lily Mine families (Mkhabela Huntley Attorneys) dated 20 August 2021 that she had been met with numerous dead ends in respect of the search for an assessor with geotechnical expertise. However, that the search was ongoing. To this end, the inquest proceedings set to commence on the initial date of postponement between 06 – 17 September 2021 was to also be postponed to 01 – 12 November 2021. It appears, following these developments that justice for the families of the 3 miners trapped in the lamp room container that caved underground since February 2016 remains elusive.
LESSONS FROM FAR AFIELD: COMPARISONS BETWEEN LILY MINE AND SAN JOSE
While global mining disasters have decreased in the 21st century, the loss of an average of 12 000 lives annually warrants attention.
According to the International Labour Organisation (ILO), mining employs around 1% of the global labour force and generates about 8% of fatal accidents.
Put in context, one might argue that 1% of the global workforce is minimal, however, in countries comparable to South Africa with a significant mining workforce relative to the country’s population, a different picture emerges. Contributing over 8% of South Africa’s GDP, the mining industry cannot be discounted as one of the major contributors to the national economic output.
On 5 August 2010, 5 years prior to the Lily Mine collapse, the San Jose mine-collapse in Chile captured the imagination of the world. Miners were trapped about 700m underground and a mine rescue operation lasting 69 days immediately ensued. The Chilean President, much of his cabinet, and the international community, including South African Mine Rescue Services (MRS) camped outside the mine lending their support to the eventual rescue of the Chilean miners.
Conversely, the Lily Mine rescue operation that had been initiated, was called off on 3 March 2016, only 30 days after the collapse, never to be reinitiated.
Both in Chile and at Lily Mine, families of the trapped miners set up camps outside the mines hoping that their family members would be brought back to the surface, alive. In Chile they called it Camp Hope set up shortly after the mine collapsed. At Lily Mine they call it the Lily Mine Family Camp set up three years after the container collapsed.
Having known about the Chilean collapse, the Lily Mine families believed that the South African government would respond as expeditiously as the Chilean government. They initially had trust in the formal processes that followed the collapse at Lily Mine. Unfortunately, it gradually became clear that none of what followed was going to expedite justice for their families.
As one of the miners recalled, South Africa’s Deputy President David Mabuza who was then Premier of Mpumalanga, assured the families that South Africa had more than enough expertise to ensure that the Lily Mine container would be retrieved. However, 5 years on, nothing has been done. The DMRE are seemingly satisfied with a report that is not based on scientific evidence to prove that the lamp room container is irretrievable.
What then is the fundamental difference between Lily Mine and the Chilean San Jose Mine rescue operations? How was it possible for the Chilean miners who fell about 700 meters underground to be rescued but not the Lily Miners who are trapped in a container reported to have dropped only 70 meters underground?
A surviving miner asserts that in their view, the difference between San Jose and Lily Mine is that the Chilean government had political will, was more caring, valued the lives of their people who were trapped underground and thus were determined to bring them back to the surface, alive.
They believe that the South African government was more preoccupied with procedural compliance instead of working tirelessly to rescue the Lily Mine three. Where the Chilean government acted with compassion, South Africa was uncaring and made many promises they did not intend to keep. They wonder whether the government would be as lax had the trapped miners been politically connected.
KEY MILESTONES LEADING TO THE COLLAPSE OF CRIMINAL JUSTICE SYSTEM
Law played a pivotal role in the apartheid state. Racial discrimination and political repression were not practiced outside the law in an arbitrary and unregulated manner. On the contrary, racial injustice was perpetrated in accordance with legal rules, and was administered according to carefully defined legal procedures. Therefore, the fact that South Africa has seen increased political interferences in law enforcement, particularly during the Zuma years is not at all a new phenomenon. Zuma simply perfected the art of doing so in the post-apartheid era. However, I would be remiss to assert such a claim without tracking the origins of the collapse of South Africa’s criminal justice system.
In June 1999 former president Thabo Mbeki announced that a ‘special, adequately resourced and equipped investigative unit’ would be established to deal with all national priority crimes, including police corruption. In September 1999 the Directorate of Special Operations (DSO or the ‘Scorpions’) was established
In their investigations into the infamous ‘Arms Deal’ soon after its establishment, the Scorpions went after high-ranking politicians within the ruling African National Congress (ANC). Headed by a Deputy National Director of Public Prosecutions or NDPP and governed by the National Prosecuting Authority Act, 32 of 1998, the DSO was provided wide-ranging investigative powers.
With these powers and the DSO’s success in dealing with high profile cases, positive public sentiment toward law enforcement and the criminal justice system grew in the right direction. Albeit much to the dismay of the politically connected elite whom its investigations sought to bring to book, including former president Jacob Zuma who was Mbeki’s deputy at the time. By February 2004, the DSO had completed 273 investigations and 380 prosecutions of which 349 had resulted in successful convictions. An average conviction rate of 93.1%.
Nevertheless, with success, came increased political scrutiny and criticism of the Scorpions. Many felt that the DSO was set up to specifically target those who were in conflict with former president Mbeki. The perception was further fuelled by Mbeki firing Jacob Zuma as deputy president after his ‘self-appointed’ former financial advisor, Shabir Shaik was found to have benefited from various irregular, corrupt government dealings and fraud implicating Zuma, and further implicated in the Arms Deal. Among others equally implicated being former transport minister, Mac Maharaj and his wife who were said to have received gifts worth more than R500 000 also from Shabir Shaik.
THE 52ND NATIONAL CONFERENCE OF THE AFRICAN NATIONAL CONGRESS
The infamous 52nd National Conference of the ANC in December 2007 or Polokwane Conference must always be remembered as a key milestone that would mark the beginning of the end of the Scorpions. Its powers would be stripped and the whole unit dissolved as Zuma ascended to the highest office in the ruling party, and soon thereafter, Office of President of the Republic. Public and media outcries would do nothing to reverse the dissolution of the Scorpions. Zuma’s grip on power was to be entrenched by a new unit created to undo the work of the Scorpions and ensure complete control over law enforcement agencies who would do his bidding by protecting the politically connected elite in his corner.
ZUMA ESTABLISHES THE HAWKS
On 6 July 2009 Zuma established the Directorate for Priority Crime Investigation (DPCI), or the Hawks, to be located within the SAPS as a special unit to investigate high crimes. It was not long before legal challenges ensued following the placement of the Hawks within the SAPS questioning the independence of the unit.
On 17 March 2011, a Constitutional Court ruling held that Chapter 6A of the South African Police Act of 1995, as amended, was inconsistent with the Constitution of the Republic of South Africa. The court asserted that it did not fulfil the standards required for adequate independence from political interference in carrying out its ‘mandate’.
POLITICAL INTERFERENCE AND SOUTH AFRICAN PERCEPTIONS TOWARD THE CRIMINAL JUSTICE SYSTEM
It follows from the above discussion that by and large, and as a result of these developments, the South African public slowly began to lose faith in the fair administration of justice. It was laid bare for all to witness that those who were closely related or somehow connected to the political elite, particularly to the ruling ANC were somehow above the law undermining the right to equal protection and benefit of the law for all South Africans, irrespective of social, political, or economic standing.
It is not difficult to ascertain then, that gradually over time, ordinary citizens would also feel entitled to being treated with kit gloves when they broke the law. After all, why should they adhere to the rule of law and be subjected to its punitive measures to “correct” their behaviour when the “elite” were otherwise not held to the same standards? Today, many ordinary citizens defy traffic signs, pay bribes to public officials to avoid legal consequences and generally have poor perceptions about law enforcement and the criminal justice system.
Reverting to the case of the Lily Mine arson accused and convicted murderer, Kaizer Gwebu mentioned earlier, who was initially out on parole after having served 10 of his 30-year sentence for murder, robbery, and possession of a firearm and ammunition finds no difficulty flouting his parole conditions and continuing to be involved in crime. Public perception in the communities surrounding Lily Mine where Gwebu is known believe that he enjoys political protection by those hellbent on frustrating the efforts to bring Lily Mine management to book, be it through the state or private prosecution. They believe that by now and in the normal order of things if the criminal justice system was fair, Lily Mine management would be criminally charged for the unnatural deaths of Pretty Nkambule, Yvonne Mnisi and Solomon Nyirenda.
Similarly, their perception is exacerbated by the South African government’s failure to apply positive political pressure to compel accounting authorities to have the BRP concluded. The unending postponements of all matters related to the Lily Mine disaster work to delay justice for the families who long to see Lily Mine management held criminally liable for their negligence.
Adherence to the rule of law is a critical component of maintaining a stable democratic order. To undermine this principle is to undermine a country’s ability to regulate and manage otherwise adverse effects of negative human behaviour such as violent crime, corruption, and other manifestations of non-compliance to the rules of the state. For the rule of law to prevail, there must be the subordination of all political authorities and state officials to the law setting limitations to their power, guaranteeing civil rights, liberties, and principles of due process.
In the case of South Africa, many would argue that the post-apartheid state’s obsession with ‘undoing’ the injustices of the past has only served to perpetuate them, albeit under a different guise, but with the same result. When the oppressed population sought to defy apartheid laws by protesting and staging mass boycotts of state services, the poverty-stricken masses in the democratic era have equally voiced their dissatisfaction through public demonstrations, rising shutdowns of public spaces, including the recent mass lootings in the name of the #FreeJacobZuma campaign in July 2021.
Ultimately, to restore public faith in the criminal justice system, the South African government would have to muster the political will necessary to restore the rule of law. It would have to fortify the criminal justice system and enable it to deal with the backlog of cases waiting for court adjudication, especially those in the public interest such as those relating to state corruption emanating from the Zondo Commission of Inquiry into State Capture. To do so would gradually restore the South African public’s faith in law enforcement and the criminal justice system, as during the time of the Scorpions.