A Narrative of Marikana Tragedy Against Right to Life and Right to Human Dignity Under the South African Constitution

The School Progression Policy is an intervention strategy to decrease unnecessary, high dropout rates in the South African Education system. It allows learners to move from one grade to another and thus advance in their careers and exit the basic education school system with a qualification. However, due to this intervention, some learners have experienced social and emotional problems at school, which may affect their well-being. This study explored the effects of the School Progression Policy on the progressed Grade 12 learners’ well-being in schools. It adopted a qualitative research methodology within a constructivist paradigm and used a case study research design. Thirty-seven learners (23 females and 14 males) and fifteen teachers and SMTs were purposively selected from four schools in the Motheo Education District. Semi-structured interviews were employed for data collection. Thematic results revealed that this policy implementation positively and negatively affected progressed Grade 12 learners’ well-being. This study recommended constant empowerment and motivation for the progressed learners and comprehensive orientation at the beginning of the year to prepare and capacitate them to handle the expectations and challenges of Grade 12.


INTRODUCTION
The Marikana massacre occurred on 16 August 2012, during a six-week wildcat strike at the Lonmin platinum mine at Marikana near Rustenburg in South Africa's Northwest region.The killings constituted the deadliest use of force by personnel of the South African Police Service and Lonmin Security.The killings echoed the 1976 Soweto uprising and have been linked to the 1960 Sharpeville Massacre. 1 Thirty-four miners were killed by the South African Police Service (SAPS).The violence and confrontation that occurred in the days leading up to the fatalities on August 16th, 2012, were connected to a conflict that had been raging at the Marikana mine.This conflict was related to a group of miners' unprotected strike that had begun on August 10, 2012, on a Thursday.The then-president of the Republic, President Zuma, declared he would create a Commission of Inquiry relating to the events at Marikana on August 17, the day following the horrific killings.On August 23,  2012, a week after the massacre, a presidential proclamation announced the commission's appointment and its terms of reference (ToRs). 2 This paper assesses the tragedy of Marikana against fundamental rights of the victims such as the right to life and human dignity.Inclusive of these fundamental rights is the upliftment of the standard of living of the community, the lack of employment opportunities for local youth, the squalid living conditions of the miners, high unemployment, and growing inequalities.
The authors argue that other issues, such as miners' distrust of unions evolved because of the government's inability to take necessary action to relieve surrounding bad circumstances.Equally, it is the conviction of the authors that if there had not been a collapse in trust between unions and miners, the wage strike would not have turned violent, and the massacre would not have taken place.In light of the sown mistrust, there were dire consequences, the South African Police had to use live ammunition on the protestors.Lonmin security officials resorted to the use of rubber bullets.There was too much emphasis on profit by the mine owners and dire ignorance of Ubuntu in the workplace.The loss of control of the situation by those in police leadership exacerbated the tensions and regrettably resulted in the massive killings in Marikana.This incident gave contrary views to the South African claim that it possesses the best constitution on the continent as it embraces human rights.As a result of that view, the Marikana killings and the measures taken by the state or business against the protestors, the narrative that the South African constitution is supreme seemed to have fallen short of its founding values.This paper tests the events in Marikana against the claims of a purportedly great Constitution and a government committed to making good the promises in the Bill of Rights.The paper is divided into four parts, the first part introduces the issues to be addressed in this paper.The second part focuses on miner's rights to life.Part three will deal with the issue of human dignity while part four will attempt to weigh these rights against corporations' drive for profits or their rights to make profit as business.Part five is the conclusion.

METHODOLOGY
The study's methodology is based on a qualitative approach.To begin, an explanatory literature review was conducted, encompassing scholarly papers, points of view, principles, and Farlam Commission findings.The key sources used were commission conclusions, study findings, and newspaper stories from prominent publications that documented eyewitness descriptions of the massacres and protests.Furthermore, secondary research was carried out using both primary and secondary sources.Secondary sources in this study contained books, internet sites, and documents containing descriptive articles and commentaries.

Miner's rights to life.
"In certain respects, the right to life transcends all other rights protected by the Constitution.It would be difficult to execute or be the bearer of rights without life in the sense of existence.But the right to life was enshrined in the Constitution for more than just expressing it.The Constitution cherishes not life as mere organic objects, but the right to human life: the right to live as a human being, to be a part of a larger community, to take part in the experience of humanity."3This concept of human life speaks to the core of South Africa's constitutional values.The Constitution explicitly gives the right to life to everyone despite their status or origin.Equally, the Constitution encapsulates equal protection to the right to life and the enjoyment of all rights and freedoms. 4n general, any employee in South Africa has the liberty to strike and to join a trade union of their choice5 and every employee has a right to join a trade union of their choice. 6The main objective of trade unions is to protect the rights and interests of their members.Their mandate includes negotiating salary, benefits, and working conditions. 7Many strikes in South Africa are launched by trade unions during the collective bargaining process when trade unions and employers struggle to come to an agreement on matters of mutual interest.It was not the case in Marikana.Miners felt that the unions compromised their members' interests because of the inter-union rivalry, unions compromised the importance of their members' basic demands. 8That propelled miners to attempt to negotiate with the employer directly, without the involvement of the unions. 9What happened in Marikana outside the miners' unions was an unprotected strike.The Marikana Massacre took place on August 16, 2012, at the Marikana plant of Lonmin PLC mines, which primarily produces platinum metals.The strike was a direct consequence of societal unrest centered on labour and better housing conditions.This was an unlawful and unprotected strike, and it was not represented by the National Union of Mine Workers (NUM), which is part of the Congress of South African Trade Unions' major trade union (COSATU). 10Between the unions in the Marikana mine, there was a huge trust deficit resulting in the conflicts prior to the blood bath.
The miners felt the scourge of poverty as they observed the lack of success of unions and believed that their rights were severely violated.Durojaye believes that poverty remains one of the greatest challenges facing humanity. 11He defines poverty as the denial of the choices and opportunities necessary for the enjoyment of an adequate standard of living and as a violation of human dignity. 12To deny someone's human dignity is to "treat her story as if it did not exist, her point of view as if it were literally beneath the worth of any respect. 13That was the miner's cry that their story be heard and recognised by those in power.What followed is the tragedy that is now known as the Marikana tragedy.The Marikana incident contradicted with adequately protected section in the Bill of Rights to protect people from violent acts, which provides that "everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources." 14In essence, after the tragedy, it suffices to say that section 12(1)(c) of the Bill of Rights was infringed since the violence had already been inflicted on the miners and many were declared dead in the hands of the State.The State itself infringed the rights of the citizens it was meant to protect.
Section 11 of the Constitution provides this right (right to life) to all people living in South Africa.The Constitution implies a social contract between the state and its citizens. 15The Constitution aims to shape South Africa's social and political system in order to foster a society free of tyranny, inequality, poverty, and violence, in which people are permitted to fulfil their full potential. 16he Constitution's founding provision has noted that South Africa is a sovereign, democratic state founded on the values of human dignity, equality, human rights, non-racialism and non-sexism, the supremacy of the constitution, and the rule of law.It continues that any law or action that is inconsistent with it shall be deemed to be null and void. 17Because of the unequal character of the relationship, the Constitution regulates the vertical relationship between the individual and the state. 18The State is empowered to protect life from all criminality and fear.Magistrate Schoeman illustrated the lack of protection of human rights (particularly the right to life) which occurred during the apartheid period.
To this day, there are more questions than answers about what unfolded in Marikana.Will justice be administered to the victims of such violence and infringements on the right to life?Courts must create fundamental rights in terms of a unified set of ideals that are ideal for an open and democratic society. 19To this end, common values of human rights protection the world over and foreign precedent may be instructive.

Right to Human Dignity 20
"The central concept is that of the human person as a dignified entity who shapes his or her own life in collaboration and reciprocity with others, rather than being passively formed or pushed around by the world in the manner of a 'flock' or 'herd' animal.A human life is one that is shaped by these human powers of practical reasoning and sociability throughout." 21e concept of human dignity has been omnipresent in everyday speech and deeply embedded in political and legal discourse. 22Human dignity is a universal phenomenon.South Africa is not isolated from the rest of the world.Peter G. Kirchschlaeger opines that the universality of human rights underpins the need for an ethical justification of human rights because human beings demand reasons why human rights are also applicable to them. 23The Constitution gives the right to Human dignity to all humans.All other rights emanate from the observance of the right to life and dignity.Chaskalson points that, "The right to life and dignity is the most important of all human rights, and it serves as the foundation for all other personal rights in the Bill of Rights.By committing to a society based on the respect of human rights, we have an obligation to elevate these two rights above all others." 24hat South Africa witnessed in the Marikana killings was the total opposite of the democracy all citizens envisaged when they welcomed the new constitutional order that embraced all humans and their rights. 25t was a total catastrophe to the life and dignity of a worker.Dignity is not only a founding value of the Constitution but an enforceable right. 26Twala views the Marikana killings as a traumatic and tragic event that raised several questions among commentators and activists in the labour movement. 27Chaskalson warns in Makwanyane that the killing of an escaping suspect by a police officer who intends to convict that person, should not be equated with execution.However, he indicated, that one of the consequences of the establishment of a constitutional state which respects every person's right to life is that tighter restrictions on the use of lethal force in making an arrest may have to be introduced. 28In Makwanyane, Chaskalson posited that the law may legitimately permit killing in self-defence. 29Additionally, the lethal force may legitimately be applied by the state to kill a hostage taker to save the life of an innocent hostage whose life is in real danger. 30ght to fair labour practices 31 The employer is empowered by the legislation to enforce laws while employing people.Equally, the Constitution protects employees' rights.It gives a right to a fair labour practice 32 The Constitution plays an integral part in dismantling the apartheid damage to employment relationship which was introduced by colonial architecture.Conradie M enlightens: To comprehend the true nature and meaning of the constitutional right to fair labour practices, it is imperative to consider the historical development of unfair labour practices. 33ection 186(2) of the Labour Relations Act 34 defines an unfair labour practice as an unfair act or omission by an employer towards an employee.An example is the case between the National Entitled Workers Union (NEWU) v Commission for Conciliation, Arbitration, and Mediation (CCMA) 35 where a NEWU union official resigned without giving the required three months' notice.The issue was whether a trade union, as an employer, can claim that the resignation of an employee, a union official, is an unfair practice.The court held that, no, the resignation of an employee was not embraced as an unfair labour practice committed by an employee vis-à-vis the employer in the definition of unfair labour practices.While in Apollo Tyres SA (Pty) Ltd V CCMA & Others 36 the employee was refused early retirement in terms of a scheme initiated by the employer.In this case, the court held that there was no acceptable, fair, or rational reason why the employee was not allowed to participate in the scheme.The employer had committed an unfair labour practice by not allowing the employee to go on early retirement.
Many people, both locally and internationally, are still haunted by the Marikana massacre.Mineworkers in South Africa, in the authors' opinion, are excluded from the benefits of social justice by design.While they were exploited as low-wage workers, their safety was a real issue, and as a result, the deaths unfairly silenced and terminated voices for fairness, a plight that the government was failing to aid and abet prior to the bloodbath.

Right to freedom of expression and right to join a trade union of choice 37
Sachs has underscored the significance of these rights.He underlined that the right to freedom and the right to join a trade union, bargain collectively, and strike are the most important elements of the right to freedom of association.He stated: The key fundamental rights of workers are those enabling them to fight for and safeguard their rights.The first group of rights encompasses these rights.This particular group of rights incorporates three rights: the right to establish and join trade unions, the right to collective bargaining, and the right to strike.
When there was an impasse in Marikana, the state ought to have intervened and resolved the conflicts between the employer and employee before it escalated to so many human rights violations and deaths.The Constitution mandates the state to uphold and safeguard the people's constitutional rights in the employment industry.Workers' rights are human rights.The Constitution upholds the democratic values of humanism, equality, and liberty for all.Comparably the Labour Relations Act 66 of 1995 (LRA)'s purpose of advancing the development of the economy, social justice, labour peace, and workplace democratic transition by fulfilling its primary objectives, which include the promotion of employee participation in workplace decision making, is strictly forbidden by the nature of several of its provisions.Under the disguise of encouraging orderly collective bargaining. 38Kruger and Tshoose argue that several sections of the LRA benefit majority unions inordinately, while minority trade unions often find themselves faced with insurmountable obstacles that prevent them from being able to engage in collective bargaining. 39This view sends a rather appalling stance and violation of the constitutionally entrenched human rights in section 23 of the Constitution.The Constitution does not give majority or minority numbers for employees to qualify for these rights in the Bill of Rights.
Thus, the right to life incorporates the right to dignity.The rights to life and to human dignity are so entwined.The right to life is a lot more than the right to exist; it includes the right to be treated with dignity as a human being.Human life suffers greatly when it lacks dignity.There can be no dignity if there is no life. 40As soon as considering the constitutionality of the death penalty, the Hungarian constitutional court stated: 'It is the untouchability and equality contained in the right to human dignity that results in a man's right to life being specific right to human life (over and above animals' and artificial subjects' right to being on the other hand, dignity as a fundamental right does not have meaning for the individual if he or she is dead...Human dignity is an essential quality of human life' (Decision No 23/1990, (X.31.)AB, George Feher translation). 34Labour Relations Act 66 of 1995. 35National Entitled Workers Union v Commission for Conciliation, Arbitration, and Mediation (2003) 24 ILJ 2335 (LC). 36Apollo Tyres SA (Pty) Ltd V CCMA & Others 2013 34 ILJ 1120 (LAC). 37As per section 23(2)(a) of the Constitution. 38Section 1(d)(i) of the LRA. 39J. Kruger

Labour Relations Act 41
Picketing is allowable according to Section 69 of the Labour Relations Act.Similarly, Section 17 of the Republic's Constitution safeguards that right.A violent strike, it is suggested, is not undoubtedly an effective collective bargaining strategy.That, as stated by Budeli, is not conducive to good faith bargaining. 42These kinds of occurrences, however, must be peaceful, and participants must be unarmed. 43In essence, being able to strike does not allow striking employees authorisation to engage in obnoxious or criminal behaviour. 44Strike violence is an abuse of the right to strike. 45Aside from the right to strike, the LRA permits protesters to picket peacefully in support of a protected strike.In Picardi Hotels Ltd v Food & General Workers Union & Others, the court ruled that employees on strike are entitled to carry around, display, and wave placards, but what they write on the placards may not constitute a criminal offense.Such employees are now similarly restricted in their ability to wave sjamboks. 46n early 2000, the Constitutional Court emphasised the centrality of the question of human dignity in our constitutional democracy in a landmark ruling of Grootboom. 47The Court took the view when Yacoob stated that "……….. in short, I emphasise that human beings are required to be treated as human beings."

Social Justice Imperatives
The State has a duty to foresee the social justice issues pioneered and implemented in the workplace.Social justice is not just a set of principles the authorities must entertain when they feel like doing so, but rather human rights imperatives that the State ought to implement to uplift the standard of living of all humans, especially taking into cognisance of the past inequalities.The miners too deserved the upliftment of standard of living from a variety of issues such as historically neglected infrastructure, hospitals, proper roads, proper sanitation, and accessible running water.When these pressing social issues are addressed, the lives of Marikana miners and the surrounding communities will be transformed.These would restore the dignity of Marikana residents and their families, making life more pleasant and conducive to living in a dignified manner in an enabling environment.The state ought to address the critical issues of homelessness and embrace humanity.When one is housed in a dignified manner, he not only has a place to call home, but it also recognizes a variety of healthdamaging features.In a nutshell, having a place to live is also a requirement for the right to health, 48 though that may not be enough, it may give one dignity and the State may also extend its services of social security having achieved the housing disparities. 49 similar view is shared in the case of Dawood v Minister of Home Affairs.50 While it remains the government's duty to uplift the lives of people and to protect their human rights, the state had agreed and signed a Social Labour Plan (SLP) 51 with Lonmin as part of the condition for a mining license.SLP is a requirement in terms of Regulation 46 of the Mineral and Petroleum Resources Development Act, No. 28 of 2002 to give the effect of s 100 (2) (a) of the Act and Section 9 of the Constitution to harmonise the Government's transformation policies.Representatives testified in the Marikana Commission, that Lonmin was aware of the prevailing living conditions and housing shortages but turned a blind eye.52 Failure by the state to hold Lonmin accountable undermines the objectives of South Africa's Mining Charter.53 The miner's living conditions remained the same, and to a large extent deteriorated, while mine owners made excessive profits for their bosses. Reearch done by Benchmarks Foundation on the miners' living conditions estimated that around 30,000 people lived in those gruesome conditions at Marikana.54 While the miners made profits for the mine bosses, the Foundation described the situation in Marikana as despicable.The rhetorical question one might want to ask in this case is, are they less human?Or their lives simply do not matter.
Amongst the findings by the Farlam Commission 55 was that Lonmin created a condition conducive to labour discontent by failing to meet the housing necessities undertaken by its two subsidiaries in the Social and Labour Plan (SLP), on the strength of which it obtained new order mining rights. 56The State's duty to see the fruition of all the SLP objectives and delivery should not be compromised.When the SLP is not fulfilled, it interprets the government's inability to deliver its promises to its own people.The State's aims ought to grant equal opportunities and equal protection of the law to everyone and maintain the trust of people. 57The State is obligated to provide health care, food, water, and social security. 58The State failed to provide these essentials to the Marikana community.Nonetheless, the miner's dignity and human rights were violated by the brutal killings.SAPS officers exceeded the bounds of self-defence and similarly violated the Constitution. 59'I just told guys that we need to act such that we kill this thing'. 60This was part of the evidence on audio records presented to the Farlam Commission where SAPS was heard as they planned to disperse striking miners.According to O'Regan: Recognising a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern.This right therefore is the foundation of many of the rights that are specifically entrenched in the Bill of Rights. 61wever, the state continues to drag its feet to fulfil its role and right to human dignity which is the central value of the 'objective, normative value system' 62 established by the Constitution, perhaps the preeminent value to escalate the socio-economic fundamental issues in the society such as a strike.

Rights versus Profits
The Marikana miners, like all South Africans, hoped to attain social justice and the improvement of the quality of life.The preamble to the Constitution records such a commitment.The Grootboom 63 case grapples with the realisation of the state's constitutional obligations to housing and the right to dignity.The key to the improvement of the quality of life is vested in the state.Marinovich describes the conditions Marikana miners live under as utterly inhumane. 64The employer has the obligation to provide good working conditions and in this instance, miners get a dwelling place.Starving people of clean water violates the Constitution, which declares that the primary foundations of society are "human dignity, equality, and the advancement of human rights and freedoms." 65Such violations are an extension of inequalities in society.Yacoob states: "Our Constitution defends both civil and political rights together with social and economic rights.All the rights enshrined in our Bill of Rights are interconnected and mutually beneficial.There is no disputing that those who have food, clothing, or shelter are denied human dignity, freedom, and equality, all of which are the foundational principles of our society.Ensuring everyone has the same socioeconomic rights permits them to enjoy the other rights established in Chapter 2. The realization of these rights is also crucial to the expansion of race and gender equality, and it also impacts the evolution of a society in which men and women can achieve their full potential." 66ior to the current constitutional dispensation, South Africa's history was defined as the ugliest, brutal, and dominated by unequal standards.People especially the black population had no rights to be free from any discrimination.The Bill of Rights must therefore be able to reverse such a legacy of deep inequality so that democratic South Africa must be realised by all human beings.However, the State seems to be wrestling with the most powerful document, the Constitution, without adequate means to implement it.Chaskalson describes this in Soobramoney: 67 We live in a society with significant income disparities.Millions of people live in horrible conditions and extreme poverty.There is a high rate of unemployment and inadequate social security, and many people lack access to clean water and proper health care.These conditions existed before the adoption of the Constitution, and an eagerness to address them and transform our society into one of human dignity, freedom, and equality is at the heart of our new constitutional system.That aspiration will have a hollow ring as long as these conditions continue. 68uth Africa is part of the international community and abides by the treaties it has ratified. 69The Constitution regulates the application of international law in detail.This Covenant is crucial in comprehending the positive duties generated by the Constitution's socio-economic rights.According to Article 11(1) of the Covenant, "The States Parties to the present Covenant recognises the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, as well as the right to continuous improvement of living conditions.The State Parties will take appropriate actions to guarantee the realisation of this right, recognising the critical relevance of international cooperation based on free consent in this regard." According to Ngcukaitobi, social or economic challenges are the reason why structural violence occurs. 70He further explains that structural violence refers to a form of violence wherein some social structure or social institution may harm people by preventing them from meeting their basic needs. 71Equally, he likened the Marikana killings to that of structural violence.That was due to the mine's reluctance to listen to the miners and to implement the SLP effectively.The inequalities in socio-economic factors must therefore be considered when dealing with the limitations of the right to strike.He, however, opined that there should be conformity to legislation as this could curb violent strikes.Jaichand suggests the series of "service delivery" protests are not matters of "service delivery" but violations of the socio-economic rights by "organs of the state.He states that the state is complicit in the violation of human rights when it fails to implement the socio-economic rights promised in the Constitution. 72art of the profits such as lucrative bonuses and increases made in the mine could have impacted the lives of those who live in Marikana if the prevailing conditions the miners and the Marikana community were faced with daily were confronted. 73They only cared about how much their profits were.The selfish and selfcentred decisions let the industry down.He comments below that: "If these guys expected workers to accept a 0% raise, the first thing they'd do is take a salary decrease.That is what it means to lead by example -from the front.Instead, many of these 'leaders' received raises and bonuses.And, given the magnitude of the massive and frequent weight-downs we've been witnessing, resignations, firings, and jail time should be carefully considered.It's terrible." 74 and C. I Tshoose, "The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective," Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 4 (January 16, 2014): 284, https://doi.org/10.4314/pelj.v16i4.7.