On Thursday 25 June, the President of South Africa, Jacob Zuma, released the Report of the Marikana Commission of Inquiry. The Marikana Commission sat for 300 days between October 2012 and November 2014 to investigate the killings of 44 individuals at a mine in the North West Province of South Africa in August 2012. 34 of those killed were shot dead by police on the afternoon of 16 August 2012.
The Commission found that those killed by police were killed unlawfully. In so doing, they accepted a submission advanced on behalf of the South African Human Rights Commission (‘SAHRC’) that the principle established by the European Court of Human Rights in McCann v UK (1995) 21 EHRR 97 is applicable in South African law. This is an unprecedented – and welcome – finding. Henceforth, deaths caused by inadequate planning and/or command and control of law enforcement operations will be unlawful, even in circumstances where the individual law enforcement officer was justified in using lethal force.
The Commission also accepted the expert evidence presented on behalf of the SAHRC. Its factual findings were based largely on the meticulously prepared video analysis prepared by the SAHRC’s expert witness, and its findings in respect of police accountability relied heavily on the evidence of the SAHRC’s public order policing expert, Gary White MBE.
Toby Fisher represented the South African Human Rights Commission for the duration of the Inquiry.