25 January 2013
Adv. Dali Mpofu, on behalf of the injured and arrested, commenced with his cross-examination. ‘Did the attitude of the police harden during your de-briefing meetings towards the 15th and the 16th?’ ‘Yes’, replied Mr Gcilitshana. The Lonmin chief negotiator mentioned that on the 15th General Mpembe said the strikers have to be disarmed. The two police officers were killed on the 13th. Mr. Gcilitshana confirmed that after the killing of the two guards, Lonmin started labelling the striking workers as criminals.
Unprotected strikes still occur even though this is with less frequency than before 1994. Mr Gcilitshana said that workers have a right to strike, even unprotected, as long as there is no violence. If there is a union involved, it will be given an ultimatum by the company concerned and will have to bear the brunt of the loss of production. Mr Gcilitshana further agreed that rock drill operators are some of the hardest working and least paid of all miners. A majority of the striking workers were RDO’s.
“We persuaded Lonmin to extend their ultimatum so
as to dissuade them from their hard stance. But we failed to change
Lonmin’s stance.” Mr Gcilitshana says he was the primary source
of information for Num president Senzeni Zokwana, but he never
told him that there were no Num members at the koppie.
Adv. Dali Mpofu said that one of the quickest ways for a union to lose members is to lose the credibility and trust of the workers and one of the reasons that would make workers to lose trust is when members perceive a union as being a ‘sweetheart union towards the employer’.
Mr Gcilitshana said that he is aware that RDO’s wanted to ‘push their agenda’ without the assistance of any union. He further confirmed that he knew that some of the injured and arrested were Num members, but could not explain why Num did not visit them in jail or hospital. Some of the injured or arrested were on the koppie because they were intimidated to be there. The difficulty was that some of the strikers said they wanted nothing to do with Num.
The 10 deaths that occurred by the 15th of August 2012 were enough to justify negotiations outside the normal collective bargaining process. The Num has traced the two people who had been shot on the 11th outside Num offices but Mr Gcilitshana said that he neither knows their names nor the extent of their injuries.
24 January 2013
When Eric Gcilitshana was questioned by Advocate Budlender SC, one of the evidence leaders, he said that he attended a meeting with Lonmin, Solidarity and Num leadership on 16/08/2012 about work attendance and the security situation at the Lonmin mine. After the meeting, Mr Gcilitshana testified that he went to Middelkraal and waited for branch leadership. He says he spent the whole day there. Mr Gcilitshana says that he was receiving updates about the gathering at the koppie from the radio. There was supposed to have been a 14:00 meeting but it was postponed because some Lonmin officials were attending other issues.
Mr Gcilitshana said he left the koppie after 17:00 and that he first heard about the shooting on the radio and it was further explained in detail the following day. He called Jomo Kwadi to ask about the shooting and Mr Kwadi confirmed its occurrence. There was a wage negotiation meeting in September 2012, which Mr Gcilitshana confirmed that it was outside the normal Collective Bargaining Process. An agreement was made to resolve the issue outside the collective bargaining process because not all parties were represented.
In August 2012, Gcilitshana confirmed that there was a loss of trust towards the Num and that Num President, Senzeni Zokwana was denied access to speak to the strikers and that Num had requested the police to stop the violence. “Num would have agreed to negotiations outside the normal collective bargaining process because this would have averted a loss of life.”
Before the shooting on the 16th, Mr Gcilitshana said he does not
recall there being a proposal to negotiate outside the collective
When asked by Lonmin legal representative Mr Schalk Burger, Mr Gcilitshana explained that the strike action in Karee mine started in May 2011 after Mr Khululekile Steve, Num branch chairperson was suspended. Mr Gcilitshana said that the intimidation and violence that ensued was caused by some people who were close to the branch leadership.
He revealed that the conversion to Amcu’s majority was marred by many incidents of violence. During that time Mr Gcilitshana said he did not have constant contact with the karee mine. The violence resulted in a number of deaths of Num members. Mr Gcilitshana refused to confirm that these deaths were a result of union rivalry.
Between May 2011 and June 2012 Num did its best to avoid unprotected strikes and violence and there was an effort to ask workers to go back to work including calling for meetings for these purposes. Lonmin is reported to have obtained a court interdict on the 10th of August 2012. “Some Num officials accompanied employees to work in order to protect them from intimidation,” said Mr Gcilitshana. He further said he doesn’t know why it was Num members who were typically assaulted during the violence marred strike.
During Mr Gcilitshana’s cross-examination by Amcu legal representative,
Ms Barnes, he said that Amcu had no presence in Karee mine in May
2011 during the unprotected strike. Mr Gcilitshana further revealed
that once employees of a mining company have been fired, then the
company has the power to let the employees union membership to
continue or not after reinstatement. But in the case of re-employment,
then the employee would have to re-join the union.
Mr. Gcilitshana agreed that Num is committed to negotiating in good faith.
Rockdrill operators first request to be moved from category 4 to 7 was made in 2009. If at the annual bargaining conference it was felt that this demand was unrealistic, then it would have been adjusted. Mr Gcilitshana agreed that RDO’s were grossly underpaid and that their demand was realistic, as approved by Num’s market research department. The increase was going to amount to more than R 2000.
“After the issue with Impala RDO’s, why didn’t Num approach Lonmin to discuss these in order to avoid a similar situation,” asked Ms Barnes. Mr Gcilitshana responded by saying that Num did not approach Lonmin because it was in talks with captains of industry. He said, however, he is not sure if captains of industry were specifically asked to increase RDO’s salaries.
23 January 2013
Num’s Lonmin chief negotiator, Mr Eric Gcilitshana was called to the stand by National Union of Mineworkers legal representative Karel Tipp. He testified that he started working underground in 1985 and that he joined NUM in 1987. He started working full time in NUM offices in 2001.
Mr Gcilitshana testified that in Karee mine NUM lost a lot of members after there was a dispute after the branch chairman and secretary were sacked. Amcu therefore gained from this and had a majority of members in Karee mine while NUM had a higher number of members in Lonmin. Mr Gcilitshana further explained the consultative process followed by Num and how it goes about receiving a mandate from all its members. Mr Karel Tipp SC, quizzed Mr Gcilitshana to explain the Collective Bargaining Process followed and the exhaustive process, including looking at the company’s financial records and inflation, so as not to create an unreasonable expectation among the workers.
According to Mr Gcilitshana, Lonmin refused to upgrade Rockdrill Operators (RDO’s) from category 4 to 7 because they were busy developing local youth to be trained as RDO’s since this was a scarce skill. An agreement was reached in 2011 for RDO’s to get 10% and 9% the following year, but they still remained in category 4. Lonmin gave their RDO’s and their assistants varying allowances without Num’s knowledge. Mr Gcilitshana said he feels unhappy over this exclusion. Mr Gcilitshana’s statement was read out by Mr Tipp SC, and he (Mr Gcilitshana) later confirmed it.
22 January 2013
Ms Jele asked why did Lt Col Scott draw up a plan for the SAPS when he is not a POP’s member and Brigadier Mkhwanazi agreed that Scott’s plan may have been insufficient. Adv. Ishmael Semenya, on behalf of the SAPS interjected and said that Scott did not draw up the plan alone. Ms Jele lamented the fact that not enough information had been obtained for the SAPS plan. The information obtained for drawing up the plan was not updated and this, according Ms Jele, is a fundamental flaw.
“Only less than a quarter of the police in Marikana were Public Order Policing members, was this not a fundamentally insufficient number?” According to the police, there were only 98 POP members at the main area with 3000 protestors, and the rest were at the holding area. Brigadier conceded that this was an insufficient number. “There is no formal ratio for POP members to protestors but there should be sufficient personnel to man the protestors. The threat posed should determine the numbers of POP members.”
Ms Jele further asked whether South Africa has enough POP members. She further said that some members of the National Intervention Unit (NIU), the Special Task Force (STF) and the Tactical Response Team (TRT) were brought in from as far as Mthatha and Durban. Ms Jele said there were 1314 POP members in Limpopo and Gauteng and this figure is more than double the NIU, STF and TRT called in at Marikana. “Not having called these POP’s was a fundamental flaw,” said Ms Jele. Brigadier Mkhwanazi agreed but said that it should be borne in mind that there may have been service delivery protests in these provinces. ‘But if they were available, then it was wrong for them not to have been called.’
Adv. Thami Ncobane, on behalf of the Bapo Ba Mogale community,
asked about the aspect of community involvement in crowd management
control. Brigadier Mkhwanazi confirmed that community and traditional
leaders are usually consulted but said he doesn’t know if this
was done in the Marikana labour unrest.
Adv. Ishmael Semenya asked what would have the traditional leaders done to quell the situation in the Marikana protests since most of the protestors were migrant labourers from Pondoland and other places outside South Africa. Adv. Ncobane insisted that the involvement of the traditional leaders would have had a meaningful impact in the Marikana protest.
21 January 2013
Brigadier Mkhwanazi agreed with Ms Jele, who represents the South African Human Rights Commission (SAHRC), that as part of his duties as a skills development facilitator, he had to monitor changes in local and international policies.
Brigadier agreed that spontaneous gathering was a challenge to the police, since they cannot plan properly, but they also offer an opportunity for the police to learn from these.
He said he is not familiar with international instruments with regards to crowd management, etc. He however said that the South African Police usually uses benchmarks from other countries to see if they cannot be applied to the South African context. Brig revealed that platoon members go for a platoon members training for three weeks and there is usually a refresher course, which is shorter and a rehearsal or practicals. Ms Jele submitted that the training received by POP members is insufficient.