The Operation of the Criminal Justice System in Dealing with the Violence at Amplats

by

David Bruce

Research report written for the Centre for the Study of Violence and Reconciliation, April 2001.

David Bruce is a Senior Researcher in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.

Acknowledgements

Thanks are due to all of those who, in one way or another, assisted with this report including members of the staff at CSVR and other members of the CRC, all of the interviewees, and others who assisted in relation to requests for data. Particular thanks to Inspector Chomela and other members of the SAPS for assisting with the collection of data regarding the final progress made with cases.

Abbreviations
BMEAWU	Building Motor Engineering and Allied Workers Union
CIG	Crime Intelligence Gathering (section of SAPS)
CIS	Criminal Investigation Section (units of SAPS based at police stations)
CJS	Criminal Justice System
ICD	Independent Complaints Directorate
JIC	Joint Intelligence Committee
NIA	National Intelligence Agency
NUM	National Union of Mineworkers
POP	Public Order Police (part of SAPS)
SACP	South African Communist Party
SANDF	South African National Defence Force
SAPS	South African Police Service
WMPU	Workers Mouth Peace Union
WPP	Witness Protection Programme

 

Contents Executive Summary and Recommendations    The violence in the affected area    The nature of the problem and the investigative response required    The establishment of an investigative unit    Witness intimidation and protection    Informal policing systems and the involvement of community members    in providing community safety    Public Order Policing    Involvement of the private sector (mining industry)    General governance of area Section 1: Introduction    Methodology and limitations of the report Section 2: The Violence at Amplats    The Nature of the Violence    Definition of the Violence    Background to the Violence       i) The Transkei origins of sections of the Amplats workforce       ii) The mushrooming of informal settlements       iii) Vigilante organisations in the Transkei area       iv) The "traditional" character of Xhosa miners       v) The National Union of Mineworkers       vi) The provident fund issue       vii) The 5 Madoda and the mass dismissal of workers       viii) The People's Assurance Brokers – Workers Mouth Peace link    Affected Areas    Chronology and Periodisation of the Violence Section 3: Current Manifestations of the Violence    The Fragmentation of WMPU    WMPU Violence on Other Mines    The General Socio-Economic and Crime Situation in the Area    Displacement of Traditional Authority    The Continuation of the Violence    The Cases Section 4: Progress Made with Investigations and Prosecutions       i) Investigation and prosecution regarding "clashes"       ii) Investigation and prosecution regarding planned killings or "hits"       iii) Investigation and prosecution regarding other incidents of violence       and intimidation and other criminal cases    The Suspects    Other Links Between Cases    The Motivation for and Planning of the Killings       i) The selection of victims       ii) Identifying ringleaders       iii) Retaliatory violence Section 5: Issues in the Process of Investigation and Prosecution    The Investigative and Prosecutorial Functions in the Affected Areas    Intelligence Gathering and Dissemination    Coordination and Cooperation    The Conduct of the Investigation    From Information to Evidence    Witness Intimidation    The Witness Protection Programme and the Management of Witnesses       i) General problems with the Witness Protection Programme       ii) Witness safety       Preventing disclosure of the identity of the witness       Providing long term safety to witnesses       iii) Other measures to protect witnesses and counteract intimidation    Witness Intimidation and Protection: Concluding Comments    General Problems and Accusations and Suspicions Against Persons Involved in the CJS Section 6: The Provision of General Police Services in the Affected Areas    Policing the Hostels and Informal Settlements    Crime Prevention Patrols and Cordon and Search Operations    Satellite Stations    Community Cooperation Section 7: Conclusions and Recommendations       i) The violence in the affected area       ii) The link between the violence and vigilante/organised crime groupings or networks       iii) The nature of the problem and the investigative response required       iv) The establishment of an investigative unit       v) Witness intimidation and protection       vi) Policing services in the informal settlements       vii) Informal policing systems and the involvement of community members       in providing community safety       viii) Public Order Policing       ix) Involvement of the private sector (mining industry)       x) General governance of area Sources of Information    A. Documents consulted    B. Other books and reports    C. Interviews conducted Appendix A: Rough Chronology of Incidents of Violence and Related Events Appendix B: The Clashes Appendix C: Planned Killings or "Hits" Appendix D: Other Incidents of Violence and Intimidation and Other Criminal Cases

Executive Summary and Recommendations

Section 1 introduces the report. The report examines the operation of the criminal justice system, specifically the process of crime investigation and prosecution, in relation to the violence (and other acts of criminality) which have occurred at the Amplats mines in the North West and Northern Provinces and in some of the informal settlements which are situated nearby. Some related incidents of violence have also occurred in the Eastern Cape.

In Section 2 the paper discusses the nature of the violence focusing on the planned killings or "hits" which occurred primarily in the 1996 to 1998 period. A definition of the violence is put forward in terms of which the violence is understood not as "conflict" but as being related to the efforts of a particular group of people associated with the Workers Mouth Peace Union (WMPU) to establish their authority as a union on the Amplats mines as well as to establish their authority more generally particularly in the informal settlements in the areas in which the mines are situated. This section also looks at the background to the violence, gives an outline of the areas affected, and provides a chronology and periodisation of the violence. This chronology is based on the list of incidents of violence and other key events which is provided in Appendix A.

Section 3 looks at current manifestations of the violence. From 1999 onwards the union power structure has fragmented into a number of different unions and the organisation is therefore no longer a significant force on the labour relations terrain. While it has been suggested that the union has also been involved in promoting violence in other localities there does not seem to be significant evidence for this. However the power system of which the union was a part continues to exist primarily in the informal settlements in which it has become established. In these areas it exists through a system of vigilante committees which exert control in particular informal settlements. The emergence of this vigilante system can partly be explained in relation to the "power vacuum" which existed in these settlements as the formal criminal justice system was not operating properly in them. However the vigilante system has not simply filled a "vacuum" but has also begun to challenge and displace the older traditional authority system in the areas.

Section 4 starts by examining progress that has been made with investigating and prosecuting the cases related to the violence. These incidents include:

• Four major "clashes" in which 14 people died and 87 were injured (these are listed in Appendix B);
• A series of 27 incidents, many of which appeared to have been planned killings or "hits" in which 33 people were killed. Most of these incidents occurred during the period July 1996 – December 1998 (these are listed in Appendix C);
• A number of other incidents including particularly incidents of intimidation and attempted murder (these are listed in Appendix D);

The section continues with a discussion which focuses primarily on the planned killing or "hits" many of which have been the focus of investigations conducted by two investigators from the Phokeng Murder and Robbery Unit. Of the cases which have been investigated by this and other units, eight have finally been disposed of in court with two of these resulting in convictions and six in acquittals. While there has been little success in terms of obtaining convictions in relation to these killings a large number of suspects have been identified as linked to the killings. Amongst these are a group of 17 individuals who, according to information received by the police, have been linked to two or more killings or other incidents. Only one member of this group of 17 is amongst the four people who have been convicted and are currently in prison in relation to the killings. Another two are however deceased. While some of the people in this group are likely to have been key perpetrators involved in the killings one of the difficult issues which emerges and around which there is a need for greater clarity is the issue of the role played by "ringleaders" in orchestrating the killings. In particular there is evidence that a number of those who were killed were people who were named at meetings of the WMPU or whose names were placed on alleged hit lists. While "perpetrators" have to some extent been identified, it appears that the "ringleaders" were persons involved in the committees through which the WMPU maintained its power. These may have included some of the perpetrators as well as other persons.

Section 5 looks in more depth at issues which emerge relating to the operation of the criminal justice system in investigating and prosecuting persons responsible for the violence. These include:

• The violence has been manifested through a large number of acts of criminality including acts of murder, attempted murder, assaults, intimidation and extortion. While there has been a centralised unit focusing on the violence it has only focused on incidents of murder. Effectively therefore, in so far as the violence and related criminal activities have been investigated, this has been done through a wide number of different units. This is exacerbated in that the violence falls not only within the North West but also the Northern Province and the Eastern Cape. There is therefore no central unit which is involved in coordinating the investigation of the violence. These issues are also reflected in, and complicated by issues of jurisdiction in the court system.

• While the police have taken steps to coordinate their activities in relation to the violence, this coordination has not directly complemented the investigative effort but rather reinforces a situation where the intelligence structures operate separately from the investigative units involved.

• In general the manner in which the police investigation was conducted was based on the standardised approach to murder and robbery investigations reflecting a lack of flexibility on the part of the CJS in adapting its approach to the needs of the situation. This was reflected in relation to various issues including: the exclusive focus on murder cases, the "case by case" approach followed and language issues.

• While the intelligence mechanisms have enabled the police to put together a picture of who is involved in the violence they have not been able to turn this information into evidence which can be used in prosecuting the perpetrators. A key problem here has been that witness intimidation has been a major problem in the areas affected.

• A number of the issues raised regarding the Witness Protection Programme (WPP) relate to aspects of the programme which may contribute to demoralising or demotivating people on the programme. While these issues need to be attended to, the key issues of concern are issues of witness safety. Potentially measures which may be of use in preventing the identity of witnesses from being discovered by hostile parties may be of benefit. However it appears that preventing the identity of witnesses from being disclosed is not viable in relation to cases which actually go to trial. This therefore implies that, if there is likely to be a threat to the safety of witnesses after the trial is completed, steps must be taken to provide safety to the witness after the trial is completed. However options other than the traditional "relocation and change identity" formula may need to be explored particularly in relation to witnesses whose families are rooted in a specific geographical and cultural context. While there are not easy solutions to this problem what is necessary is an approach in which there is a detailed focus on clarifying issues to do with providing protection to the witness at the point of his or her entry into the programme. This includes exploring whether the potential exists for suitable protection to be provided. Providing suitable protection is likely to require that options outside of the existing framework of the WPP be examined. Furthermore what is also fundamentally important is the need to tackle the issue of intimidation and witness protection at a more general level. This includes identifying intimidation as a priority crime, taking steps to ensure that it is reported, and taking investigative steps to follow up on reports.

• In addition to the specific problems identified above numerous other allegations have been made against the police and other components of the CJS. These include allegations and complaints relating to complaints not being followed up, to alleged perpetrators being released without action having been taken against them, and allegations of corruption. Problems of this kind are widespread in the Criminal Justice System and strategies need to be put in place to tackle them. However these allegations and complaints also reflect a lack of understanding on the part of many members of the public of the legal and constitutional framework within which the CJS operates.

Section 6 examines more general issues to do with the provision of policing services in the affected areas and particularly in the informal settlements. This is a particular challenge for the police as these areas are geographically dispersed. However the existing police services which which are based on occasional crime prevention patrols and cordon and search operations do not represent an adequate response to the problem. While many have motivated that satellite stations should be established there are also difficulties in relation to this proposal. An additional problem is the lack of community cooperation. In particular in settlements which fall under the control of the vigilante committees it appears that the committees have obstructed efforts by the police to establish Community Police Forums and that community members may place themselves in danger if they are seen to cooperate with the SAPS. The difficult task of building cooperation between the police and communities in these areas however needs to be approach with some caution in these areas as key community "representatives" appear to be the leaders of the vigilante structures who are themselves in one or other way implicated in criminal activities and are associated with the informal network which was behind the killings which occurred in the 1996-1998 period.

Conclusions and recommendations are put forward in Section 7. Key aspects of these conclusions and recommendations are summarised below:

The violence in the affected area

1. While there are a range of factors which contribute to violence in the affected areas this should not obscure the fact that particular groupings and role-players have played a prominent role in the violence that has taken place. These groupings are therefore in themselves a factor which contribute to the problem of violence.

The link between the violence and vigilante/organised crime groupings or networks

2. The available evidence suggests that the system of vigilante committees, particularly in the Rustenburg Section area, is related to the network of persons who were the key protagonists in the violence of the 1996-1998 period. This means that this grouping or network continues to be a key contributing factor to violence in the area even though the series of "hit" style killings does not appear to be continuing.

The nature of the problem and the investigative response required

3. The implication is that one is dealing with a type of criminal network and the type of investigative approach that is appropriate is that appropriate to investigating organised crime or what Osterburg and Ward (1992) call "enterprise crime". Such an investigative approach is different in a number of ways from ordinary criminal investigations. Inter alia it "involves greater coordination and cooperation than for the more traditional forms of crimes". Furthermore components of the criminal justice system "must be well-trained and prepared to be flexible, innovative, and committed to joint efforts". In addition to "standard investigations" and "surveillance and undercover and informant operations" the investigation may also involve "the establishment of task forces or teams from several departments or agencies".

The establishment of an investigative unit

4. A dedicated investigative unit should therefore be established to focus on remaining cases related to the series of killings discussed as well as other criminal activities which the network referred to above is associated with. The unit should be staffed, equipped and structured in such a way as to best equip it to conduct the investigation. Particular issues of difficulty such as the geographically dispersed nature of the violence will have to be addressed. It may be worthwhile for this unit to work in cooperation with other investigative units such as the Asset Forfeiture Unit which falls under the National Prosecuting Authority.

Witness intimidation and protection

5. Tackling the problem of witness intimidation requires first of all that intimidation of witnesses be prioritised as a crime in the affected area. This would include: Motivating members of the public to report instances of intimidation; Familiarising investigative personnel with aspects of the law to do with intimidation; Implementing a policy of taking investigative steps in relation to all reported cases of intimation, and where possible implementing prosecutions; Implementing a policy whereby complainants and witnesses are requested to notify the investigating officer or other designated person of all cases of intimidation.

6. Where there are threats to the life of a witness it will be necessary to consider whether to place the witness on the Witness Protection Programme. There are a number of issues which should be evaluated in relation to each person who is being considered for the Witness Protection Programme in order to clarify the nature of the protection that needs to be provided. These issues should be clarified with the witness so that, where witnesses do enter the programme, they have a clear understanding of what the implications for them will be.

7. Furthermore, it may not be possible to provide appropriate protection in some cases unless new ways can be found to deal with the issues of providing long-term protection to witnesses in selected cases whether this is through relocation or other measures. The alternative in cases where threats to the witness are likely to continue after the trial is to prevent disclosure of the witness's identity. However where cases go to court it is likely that many such measures would be likely to be held to be in conflict with the provision of the Constitution in terms of which accused persons have the right to "adduce and challenge evidence". Nevertheless the potential to implement steps to prevent disclosure of the identity of the witness should also be explored particularly in relation to situations where the witness is not already known to the accused and his or her associates. Measures which are effective in the latter type of situations may have the greatest potential to conform to the provisions of the Constitution.

8. The effectiveness of efforts to obtain witness cooperation and the potential for the Witness Protection Programme to be used effectively will also be enhanced if measures are implemented to prevent witnesses becoming demoralised particularly if they are on the WPP. This may imply giving more attention to specific needs of witnesses on the programme but is motivates "fast-tracking" cases through the system particularly in cases where witnesses are on the WPP.

9. If there is more confidence that intimidation and witness protection are being tackled properly, this will encourage others to come forward and contribute to community cooperation more generally.

Policing services in the informal settlements and the issue of community cooperation

10. In addition to the investigative unit referred to above a task team should be established within the SAPS police to deal with the provision of policing services in the informal settlements and to tackle issue of community participation and cooperation.

11. There is a need for adaptation in relation to recent changes in population settlement patterns in the area. What is first of all needed is an analysis of the distribution of settlement and of likely settlement patterns in the coming period as well as an identification of settlements with key security problems. This analysis should be used as a guideline for building new police stations in the area at one or more "forward" location in this area so as to dramatically enhance public access to the police and the police presence in these areas. Appropriate resources will need to be made available for this purpose.

12. The issue of community cooperation presents a general problem which is an obstacle to effective policing in the area. However the issue is not simply one of winning community support and cooperation but also of taking appropriate steps against those who have been responsible for violence and other forms of criminality in the area. The vigilante committees are not only the key obstacle to community cooperation but are also associated with a network of persons who have played a key role in contributing to violence in the area. The establishment of the investigative unit referred to above therefore needs to be seen as complementary to the general strategy of establishing CPFs or other mechanisms for consultation and communication.

13. In addition public cooperation with the CJS will be enhanced by:

• Public information about the Criminal Justice System.
• Improved structures and mechanisms for communication.
• The establishment of proper channels for complaints to be lodged, whether these are complaints of "inefficiency" or corruption.
• The need for effective systems to deal with these complaints including both an understanding of how to "mediate" service delivery complaints and to investigate allegations of corruption.

Informal policing systems and the involvement of community members in providing community safety

14. The SAPS faces limitations including limitations of resources and is unlikely single handed to be able to provide effective policing services in all of the informal settlements. If it is possible to begin to establish structures or mechanisms for community consultation (such as CPFs) one initiative which may be undertaken through these mechanisms is to explore ways of involving community members in supporting the police in providing community safety. However this issue needs to be approached with care as any such measures need to be implemented in such a manner as to ensure that they occur within the legal framework.

Public Order Policing

15. While the issue has not been explored in detail in this report it appears that there is a need for improvements to be made in relation to the Public Order Policing units. These would appear to include a need for improve planning and use of intelligence in relation to public gatherings, as well as for improved leadership.

Involvement of the private sector (mining industry)

16. In addition to addressing issues of environmental safety on the mine hostels the private sector, and particularly the mining industry, should be requested to offer other assistance including resources for the improvement of police services and assistance with relocating or otherwise assisting in providing safety to witnesses.

General governance of area

17. Effectively informal systems of control have established themselves in the absence of a concerted initiative by government to deal with the issues in the area. This reflects not only the need for changes and innovations in the investigation of crime and the provisions of policing services but also the need for the broader system of governance to adapt to the demands imposed by changing circumstances.

Section 1: Introduction

The Centre for the Study of Violence and Reconciliation (CSVR) is an independent South African non-governmental organisation. This report is one of four which are being produced by CSVR as part of the work of the CRC (Conflict Resolution Consortium). The other three reports look at:

• The patterns of victimisation during the conflict;¹
• Environmental safety in the mine hostels;²
• Informal justice systems in the area and their relationship to the conflict.³

The purpose of this report is to examine the operation of the criminal justice system, specifically the process of crime investigation and prosecution, in relation to the violence (and other acts of criminality) which have occurred at Amplats.⁴

The original brief was to examine:

(a) To what extent the process of crime investigation and prosecution has operated effectively in identifying and proceedings against people involved in criminal acts associated with the conflict at Amplats; and
(b) Whether there are particular factors which can be identified which have obstructed effective crime investigation and prosecution;
(c) What solutions are there which may assist in dealing with these obstacles?

It should be noted that, for reasons, which are outlined in Section 2, this report refers to "the violence" rather than "the conflict".

The report is structured as follows:

• The following section discusses the violence which has affected the Amplats mines and examines various issues to do with the violence including whether it should be understood as a "conflict", the background to the violence, its geographical distribution

• Section 3 examines the system of vigilante justice in the area as the key current manifestation of the violence.

• Section 4 looks at the cases which have been investigated by the SAPS relating to the violence, the progress which has been made with prosecutions focusing on 14 key suspects who are apparently linked to 2 or more cases. Following this it looks at what is known about how the killings were planned and what this says about whether there are a group of people who orchestrated the violence who are potentially untouched by investigations which focus on the perpetrators.

• Section 5 looks at how the Criminal Justice System has approached the task of dealing with the violence. It looks at how the investigation of he violence has been structured, issues to do with coordination and cooperation within the CJS, how the investigation has been conducted, and the difficulties faced in generating evidence. Issues to do with witnesses and the witness protection programme are also examined here. The section concludes by discussing various allegations that have been made against the CJS relating to the violence.

• Section 6 looks at the general policing services provided in the informal settlements and the issue of community cooperation.

• Conclusions and recommendations are provided in Section 7.

The attached appendices present a chronology of the violence and contain details of cases related to the violence.

Methodology and limitations of the report

The methodology for this report involved the following:

• The design and creation of a MS Access database intended as a means of collecting data concerning killings and other incidents of violence including information regarding progress with investigations and prosecutions relevant to these incidents. Sources of data included various lists of killings and other incidents deriving from inter alia the SAPS and other sources. At the end of the research process letter of inquiry were also sent to the main investigating officer in order to obtain up to date details (as of mid- February 2001), regarding progress that had been made with these cases. The database was used firstly to put together a chronology of the violence providing details of the key incidents. It was also used to collect details as to progress that had been made in the investigations.

• Initially it was unclear as to what was the scope of the research to be conducted. In particular mines in the Rustenburg area have also been affected by killings that are believed to be related to, Mfelandawonye, a vigilante type organisation originating in the Transkei, which employs methods similar to those that were used in the violence at Amplats. However following clarification of the scope of the project by the CRC the number of cases was narrowed down in consultation with Janine Rauch who has been responsible for conducting the analysis of patterns of victimisation. During the course of completing this work the main Investigating officers and members of Amplats Protection Services were also consulted;

• In addition to the above a series of interviews were conducted over July and August 2000 primarily with members of the SAPS and prosecutors and a magistrates involved with Amplats violence related cases. Interviewees also included members of Amplats Protection Services and a former member of the Network of Independent Monitors which had earlier conducted research into the violence. All interviews were conducted on a confidential basis and so the source for specific quotes is not reflected anywhere in the report. Permission for interviews with members of the SAPS was granted by Commissioner Beetha, the Provincial Commissioner for North West Province.

• Other documents consulted included an earlier report on the violence by the Network of Independent Monitors as well as reports relating to the violence put together as part of research associated with the CRC. Some of the consortium and stakeholder meeting were also of relevance to the issues covered in this report and have also been drawn on, partly through notes collected by the author when attending the meetings but also by way of minutes of meetings distributed by the CRC.

• The Internet was also used to find news stories related to the killings as well as information about Amplats mining operations.

While it was initially hoped that the research process would include an analysis of police dockets relating to the violence this did not prove to be possible. The docket analysis would potentially have been useful in gaining more information relating to the exact nature of the evidence available as well as in evaluating to what extent investigations, and perhaps prosecutions, have been carried out effectively. The obstacles to the docket analysis, including difficulties in clarifying which were to be regarded as relevant cases. In addition difficulties in securing approval for analysis of the dockets reflect the problems of jurisdiction referred to in the report.

The report then is an overall analysis of the functioning of the Criminal Justice System (understood primarily as the policing and prosecutorial system) in relation to the violence at Amplats and does not evaluate the investigation and prosecution of individual cases.

Section 2: The Violence at Amplats

The nature of the violence

The work of the CRC (as is implied by its name) was initially understood to be focused on a "conflict" involving the Workers Mouth Peace Union (WMPU) and the National Union of Mineworkers (NUM) at Amplats. Persons familiar with the history of the "conflict" may agree that this term does not necessarily fully capture the nature of the violence which has occurred at Amplats.

While there was a conflict between the two unions this was only one aspect of a broader process which took place during the period in question (1996 to the current period) in the affected areas. This process may be described as one in which persons associated with the WMPU (initially the 5 Madoda) were involved in establishing their power and authority in some of the mine hostels and informal settlements in the Rustenburg area and in areas of the North West and Northern Provinces around Amandelbult and Union Section/Swartklip. This system of power and authority is partly based on a system of informal (or vigilante) justice and also serves certain economic interests.

What is then usually described as "the conflict" is actually then a broader process in terms of which the WMPU power system established itself in areas that are inhabited by employees of the Amplats mines. Thus one of the obstacles to the establishment of the system of power was the NUM and thus members of the NUM came under attack from the WMPU and were involved in retaliatory violence. But the victims were not restricted to persons who were involved in "the conflict" between the two unions. Any person who was seen to obstruct the WMPU in establishing its power was liable to become a victim. Thus, for instance, the first people who were killed by persons associated with the 5 Madoda (the structure out of which the WMPU developed), were not members of the NUM, but were a security guard and headman, who for different reasons incurred the anger of 5 Madoda members.

It needs to be emphasised that what we are talking about here is therefore the establishment of a type of criminal organisation (or network). This criminality potentially takes a number of forms:

• Firstly, as reflected in "the conflict" and other incidents of violence which took place, the WMPU was associated with a whole string of murders and other incidents of violence which appear to have been undertaken so as to eliminate and intimidate opponents of the WMPU as well as with the purpose of intimidating people in the affected area into being afraid of, and obeying the authority of, the WMPU.

• Secondly the WMPU operates a system of informal (or vigilante) justice in the areas in which it has established itself. This system has been able to establish itself because the formal Criminal Justice System does not operate effectively in the area in question. This system therefore is in some ways functional to the area as it is the de facto system in terms of which order is maintained in particular settlements. At the same time this informal justice system is an unlawful system that operates by intimidation, extortion and physical violence and is often highly arbitrary in the way in which it functions.

• Thirdly it appears clear that the MPWU system of power supports and is supported by certain economic interests. On the one hand it appears that the WMPU is based on membership fees received by members (who are often coerced into becoming members). On the other hand it appears likely that the WMPU also receives income from other sources some of which may be irregular. It may be the case that these types of income are not declared in terms of official procedures.

Definition of the violence

The violence which we are concerned with here is specifically

Violence and acts of intimidation which affected employees of the Amplats mines, and other persons, following the unbundling of JCI in 1995, and which was related to the establishment of Workers Mouthpiece Union (WMPU) as a recognised union on the mines, and the establishment of WMPU authority in mine hostels and surrounding informal settlements. This would includes retaliatory violence which was engaged in by people who saw themselves as being threatened by the WMPU and includes incidents of public violence and disorder (known as 'clashes') as well as violence occurring in other circumstances.

Following from the definition it should therefore be emphasised that the violence which we are dealing with did not occur exclusively on the Amplats mines and did not only affect Amplats employees.

Background to the violence

In section four this report will explore in more detail issues to do with the nature of the relationship between the system of committees established in informal settlements in the area by the WMPU and the perpetrators of the violence. However while the purpose of this report is not to explain the violence it is worthwhile to make note of a number of factors which help to explain why this violence happened where and when it did, in the way that it did.

i) The Transkei origins of sections of the Amplats workforce

The labour force on the Amplats (or RPM) mines, as well as other mines in the North West Province, had for many years been recruited from the Transkei. According to one of the interviewees, previously, while the Amplats mines had been part of JCI, recruitment was conducted by the TEBA (The Employment Bureau of SA). But in about 1975 JCI decided to establish its own recruitment arm making use of De Lange and Company as recruiting agents in the Transkei. There were also traditions in terms of which, for example when a person retired, his son would take his job.

ii) The mushrooming of informal settlements

With the end of influx control, and particularly during the early 1990s, workers also started bringing their wives to live with them. A number of informal settlements sprang up, often situated very close to mine hostels though just outside of mine property As the informal settlements grew larger, they also began, increasingly, to accommodate people from the Transkei who were not Amplats employees (or their wives) but lived within the broader economy of these settlements. Thus by the mid-1990s, not only sections of the hostels, but also important sections of the informal settlements, were predominantly Xhosa in character. Prior to the emergence of these settlements, the main areas inhabited by the mineworkers had been the hostels, which had at least a rudimentary form of policing in the form of the mine security. However the emergent settlements had no established policing system. Furthermore the formal policing structures of government essentially failed to adapt to this new development, with the result that, initially at least, these settlements had no formal policing structures. The proximity of the settlements to the hostels, and the low level of security maintained in the hostels, also meant that the settlements could serve as a type of springboard for attacks on persons staying in the hostels. The violence when it emerged therefore affected both the hostels and the informal settlements.

iii) Vigilante organisations in the Transkei area

One factor which seems particularly important to recognise is the social background of the Xhosa speaking people who worked on the mines and inhabited these settlements. It appears that these people most came from areas of the rural Transkei, which until the early 1990s had operated as an "independent homeland" within South Africa and which is now part of the Eastern Cape. One characteristic of the rural areas of the Transkei was the existence of various vigilante type organisations, often formed in relation to concerns about stock theft. While the emergence of WMPU is in some ways a unique phenomenon, the practise associated with WMPU, such as the use of hit men and assassinations, is more general to the vigilante organisations of the Trankei area. Thus similar killings have also occurred on the Lonrho mines which lie to the east of the Amplats mines around Rustenburg, which also have a large Xhosa element in their workforces, even though the WMPU has not established a presence on the Lonrho mines. It appears that another aspect of the Transkei is the presence of former members of the "homeland" defence forces and Self Defence Units, many of whom may not be in formal employment, and who may have links to the vigilante associations (though it should be noted that of the suspects allegedly linked to the Amplats killings only one, now deceased, is specifically identified as having been a former member of the military). What this seems to suggest therefore is that the areas where many of the Amplats workforce come from are relatively militarised in the sense that firearms are available and there is a familiarity with their use and a tendency for power and authority in the area to be based on the willingness to assert authority through force.

iv) The "traditional" character of Xhosa miners

Not only is the area in some ways characterised by its vigilante militarist nature but these appear also to be areas which maintain a "traditional" character. Thus one characteristic of the WMPU violence is that people who an interviewee described as "traditional" appear to have played a significant role with "'muti' being used to make guys invincible". This "traditional" element in the workforce (according to one of the reports they were known as "Amaqaba" meaning "uneducated members")⁵ was potentially more accessible to persons who spoke to them from within their own traditions rather from a more "modern" perspective. Thus one of the interviewees suggested that those who supported the 5 Madoda were seen as "illiterate" and thus their concerns were not taken seriously by the union leadership. This factor appears to be relevant to understanding how it was possible to mobilise these people around what might be seen as "irrational" demands. Furthermore aspects of identity, language and culture also feed into a situation where, for instance, communication within the group takes place to the exclusion of outsiders.

v) The National Union of Mineworkers

By the early 1990s the National Union of Mineworkers had established itself as the strongest union in the mining sector. While it was initially excluded from organising on the Amplats mines in the (then) Bophutatstwana by 1995 (apparently it had signed a recognition agreement with Amplats in 1989) the NUM had established itself as a major force on these mines. Historically the NUM had been the major opposition to employers and it appears that, when an alternative force emerged within the workforce, sections of Amplats management and/or Amplats security services may have interpreted this as an opportunity to undermine the power of the NUM. At the same time however, by the mid-1990s the NUM, which was established in 1982 and had been involved directly in militant opposition to the apartheid system, operated within, and accepted the procedures of the formal collective bargaining framework. It seems that the NUM may therefore have failed to recognise that a grouping of people who did not have a proper understanding of this framework or how to operate within it, could pose a challenge to it on the labour terrain. The NUM may therefore have failed to engage properly with the whole provident fund issue as the miners understood it.

vi) The provident fund issue

Apparently some years prior to these events there had been a change of ownership at the mines in question where the settlement involved retrenchment and the pay out of everything owed to employees. During 1995, JCI, the company under which the Amplats mines had fallen was involved in an unbundling process (date is 15 May 1995) with Amplats being established as the Platinum arm. The unbundling may have been understood by elements in the workforce as similar to the change of ownership. According to an interviewee when the unbundling process started, members of the workforce, many of who were NUM members, started saying that the same thing would happen. The senior NUM members were however saying that it was just a name change and didn't engage with the issue.

vii) The 5 Madoda and the mass dismissal of workers

Initially there was a demand for the payment of provident fund contributions at Amandelbult though the first strike was at Union Section. Management then paid out the provident fund and then more mines went on strike and the provident fund was paid out on these mines. Whatever the motives for the provident fund payout by management might have been, its result was likely to have been that it gave enormous credibility to the 5 Madoda group, the people who were leading the strike action. The Five Madoda were described by an interviewee as the "natural leaders" of the more traditional element of the workforce. The 5 Madoda then initiated a strike over further demands including the payment of: death benefit payouts; long service bonuses; platinum bonuses; PAYE contributions; and UIF contributions. The conflict ended with the dismissal, and eviction from the hostels, of 28 000 workers. While some returned to the Transkei, many however remained in the informal settlements. Most of these workers were re-employed though it is claimed that an effort was made to identify those who had been involved in intimidation. According to one of the participants in one of the stakeholder meetings, when they were reinstated employees were re-instated as non-union members. Therefore by mid-1996 the entire workforce was effectively "up for grabs" and not affiliated to any specific union.

viii) The People's Assurance Brokers – Workers Mouth Peace link

The final contributing factor was the involvement of a group of people associated with a Carletonville based company called "People's Assurance Brokers" (PAB). Thus it appears that the formation of WMPU in early 1997 represented an attempt by persons associated with the PAB, in cooperation with persons associated with the 5 Madoda, to take advantage of the fluid and volatile situation on the Amplats mines. The link with PAB was reflected in the fact that a number of the people who became executive members of WMPU, including the Joubert brothers and Peter McLeod were all members of PAB while Caesar Bungane, the union's lawyer, was also the lawyer for PAB.⁶ Furthermore the PAB and WMPU had their head offices, apparently at shared premises, in Carletonville. According to one report on the violence "the Joubert brothers claim that their insurance brokerage, the People's [Assurance] Brokers was selling insurance polices to mine workers and that during the 1996 strike, dismissed workers … approached them seeking advice. The Joubert brothers then referred these workers to their family friend and attorney Caesar Bungane who then took up their case".⁷ According to an article in the Mail and Guardian⁸ following the mass dismissal of workers "Amplats rehired most workers, but those who remained sacked found a helper in Bungane, whose legal work for the NUM ended when the union decided he was charging too much. Bungane knew the Jouberts and McLeod, the Five Madoda became the Workers Mouthpeace, and the organisation began to recruit". It is not entirely clear what was the relative contribution of the 5 Madoda and the PAB group to the formation of the WMPU. Thus at least one interviewee suggested that while the initial success of the 5 Madoda was based on their "tribal roots and influence", once the conflict erupted it was the PAB group, who lead the formation of the WMPU. Another interviewee suggested that McLeod and the Joubert were effectively the main people in charge of the union while Mpiyakhe was appointed as President "to make cover – so that guys on ground wouldn't know what was happening". Whatever the truth might be about the relative contribution of the two groups it would appear that the influence of the PAB members would not have been primarily focused on taking forward the interests of workers on the Amplats mines. Thus according to the Mail and Guardian article WMPU was selling insurance policies to new recruits, but allegedly cancelling the policies while still collecting premiums. "The men are said to tie recruits into policies with a mixture of strong-arm tactics and extravagant promises of future benefit pay-outs. A "disciplinary tribunal", headed by McLeod, imposes fines. "Unusually for a trade union" the article continues, "recruits must pay R500 to join, a higher-than-normal subscription fee, and take the insurance polices". In the words of one interviewee then "These people saw the gap – said lets form a union – it became stronger and stronger – because of its militancy but also through relying on intimidation. If someone gave someone lip they'd say I'll put you on the hit list". While the link with the PAB was therefore important to the formation of WMPU what is not entirely clear is quite what the relationship was between the formal structures and processes of the union and the actual acts of violence. (This issue will be discussed further in Section 4).

South African society is currently plagued by crime and an understanding of factors that have contributed to these high levels of criminality is no doubt of relevance to understanding the violence at Amplats. These factors include South Africa's history of apartheid as well as the influence of factors associated with the period of transition from apartheid to democracy. Nevertheless the eight factors listed above provide a substantial part of the explanation for the origins of the specific violence which originated on the Amplats mines.⁹

Affected areas

A rough outline of the "geography of the violence" needs to be based on an understanding of the geography of the Amplats mines in the North West and Northern Provinces. Amplats (now Anglo Platinum) has mines situated in North West, Northern and Mpumalanga provinces. The mines affected by the violence were however the Rustenburg, Union and Amandelbult Sections of Rustenburg Platinum Mines (RPM). These are the three mines that produce the majority of the Anglo Platinum Group mill feed tons:

• Rustenburg Section lies on the north and northeast side of the town of Rustenburg in North West Province. It is the largest of the mines being spread over 19000 hectares and the reef is exploited via eight shafts that include Townlands shaft, Turffontein Shaft, Frank Shaft 1 and 2, Paardekraal Shaft (also known as Siza mine), and Brakspruit.
• Amandelbult section covers an area of over 7 500 hectares in the vicinity of the town of Northam. Northam is situated approximately 100 kilometres north of Rustenburg and is in the Northern Province;
• Union Section lies near the town of Swartklip which lies roughly 20—30 kilometres to the West of Northam in the Northern Province near the border with North West. Union Section covers over 5000 hectares.

The main settlements, hostels and mine shafts which have been affected are set out in Table 1.

Mine hostels are therefore situated on mine property usually in the vicinity of one of the mine shafts. The informal settlements are often situated close to the hostels, but tend to be situated outside of mine property.

The incidents of violence which are discussed in this report have therefore occurred in all of the above three "sections" in hostels, informal settlements and mine facilities (such as change rooms) as well as at other places on the mines. In addition it has also occurred in the Transkei region of the Eastern Cape province, primarily in the Mquanduli district which lies roughly 35 km south of Umtata.¹⁰ One of the incidents, the killings of WMPU hit man Sipho Dlulani, occurred in the Hammanskraal area in North West Province more than 100 km northeast of Rustenburg.

Table 1: Rough outline of Amplats hostels and settlements affected by the violence

Settlement (informal settlements are indicated "IS")	Adjacent hostel	Nearby location on mine (RS – indicates Rustenburg Section)	Present Control of IS
Zondela IS (aka Jabula Sun – latter is actually adjacent area)	Jabula Hostel	Townlands shaft (RS)	MP
Zakhele IS	Entabeni Hostel	Frank Shaft 1 & 2 (RS)	MP
Nkanene/Nkaneng IS	Bleskop	Turffontein shaft (RS)	MP
Ndelele (aka Popo Molefe) IS	Kanana Hostel	Paardekreal Shaft (aka Siza Mine) (RS)	MP
Shasalasa IS (aka Chachalanga)/Kanana Stad (IS is actually an "informal" suburb of Kanana Stad village).		Between Zakhele and Zondela (RS).
	Phula Hostel	Brakspruit Mine (Shaft) (RS)
Sefikile (an area where a number of villages are located)	There are three main hostels and shafts (2 in NP)	Next to Union Section
Smasha Block (aka Snatch Block, Skilpads Nest)		At Amandelbult Section	Now majority BMEAWU

Chronology and periodisation of the violence

A rough chronology of key events is attached in Appendix 1. It should be noted that any attempt to provide a chronology of the WMPU violence is inherently difficult. This is particularly because the incidents identified are selected from a much broader "family" of violent incidents in the area. This list has been compiled using documents provided by the SAPS and other persons involved in dealing with the issue. In relation to some of the killings there appears to be no substantial evidence as to who carried out the killings or what their motives were. However the killings fall in with a pattern in terms of the modus operandi ("hit squad assassinations") and/or the identity of the victims (e.g. by reason of their being union members of office bearers) and/or well as the timing of the killing and/or other factors. Thus, ultimately the fact that particular killings have been included here is based on an assessment on the part of SAPS investigators, or their intelligence sources, that the particular incidents are part of the pattern of violence associated with WMPU or are retaliatory or defensive actions in response to it. It remains possible that cases which should have been included are not listed, and vice versa.

According to the chronology the violence may be periodised roughly as follows:

• Shortly after the mass dismissal of workers in early July 1996 two killings, apparently involving people associated with the 5 Madoda, occurred in the Sifikile area on 31 July and 15 August, The initial killings were related to the fact that, following the dismissal, a group of 5/600 people had stayed on in the Sifikile area which was under the jurisdiction of the Pilane tribe. This caused a problem partly as Chief Pilane apparently was concerned by the fact that they had "more or less taken over" the area. Initially a security guard who was observing the group, but then Chief Pilane himself, were killed. In a subsequent crime prevention operation conducted in the area, the police encountered armed resistance from the new residents and a number of people were killed.

• Thereafter, in a context of a wide range of acts of intimidation 13 people were killed in 9 incidents in a 3 month period starting on the 18 June 1997 and culminating on the 5 September. The initial killings occurred at Union Section, Amandelbult, and in the Transkei with the first killing at Rustenburg Section occurring on 12 July. According to one interviewee NUM members initially waited for intervention from the police but then "realised this was futile" and began to retaliate though it is not clear whether this was authorised by the union leadership.

• After a break of two months a further 8 people are killed in 6 incidents over a 7.5 month period starting in early November 1997 and ending late in June 1998. With two exceptions (including the elimination of one of the hit men who has apparently indicated a willingness to give state evidence) the killings are all at Rustenburg Section.

• After a quiet period of 6 weeks the pace of killings intensifies again with 2 people killed in early August and a total of 8 people being killed in 8 separate incidents in the four month period ending on 4 December 1998.

• From the beginning of 1999 onward, and possibly related in some way to the trial of Kaizer Mpiyakhe in early 1999 (he is convicted and sentenced on the 25 April) there are only occasional assassination type killings (one in August 1999 and one in May 2000) all of them at Rustenburg Section. The major death toll in this period is related to two clashes, one apparently involving WMPU and NUM near Rustenburg Section, and one involving WMPU and BMEAWU members at Amandelbult. According to one interviewee it was also once Mpiyakhe went to jail that conflict erupted within the union leadership, leading to the splintering of WMPU into different unions.

• In terms of the chronology of incidents, depicted in the table that follows, there is no documented violence since the last clash and killings (in March and May 2000 respectively). However committees associated with WMPU now control a number of the informal settlements in areas surrounding the Amplats mines. People associated with the WMPU have therefore now established their authority over these areas. The violence which they are associated with therefore now primarily takes the form of vigilante "justice" which is dispensed in these communities. Most of this violence is entirely undocumented probably because the victims in general fear that worse consequences will follow if this violence is reported to the police.

It needs to be acknowledged then that this attempt at periodising the violence raises questions that are unanswered as to the reasons for specific trends. Thus it appears relatively clear that the initial killings were directed at persons perceived to threaten the 5 Madoda group in one way or another while the intensification of the violence after over the June – September period in 1997 was related to efforts by WMPU to establish itself on the mine. However why the violence then declined in pace and then re-intensified in the latter part of 1998 is not at all clear.

Finally it needs to be noted that the small number of "hits" or assassinations subsequent to the end of 1998 seems to reflect, not the "end of the violence" but rather that WMPU had now established its authority in certain areas with the result that the status quo which currently prevails is based on the fact that people in the affected areas live in fear of the WMPU related structures.

Section 3: Current Manifestations of the Violence

The Fragmentation of WMPU

During the more recent period there has been something of a decline in WMPU in terms of its role as a union on the mines. One aspect of this has been the fragmentation of WMPU into a number of unions including Tofusa, BMEAWU and another union called CUSA.

Associated with the emergence of these new unions have been "new" forms of violence (or conflict) in the form of violence between WMPU members and these breakaway unions. One case of this violence was a major clash in March 2000, apparently between WMPU and BMEWAU, in which four people were killed.¹¹

A key factor in the fragmentation of WMPU, and possibly in the apparent decrease in killings apparently involving hit-squads or at least "hit-men" is likely to have been the arrest and imprisonment of Kaizer Mpiyakhe, the WMPU National President who in terms of available evidence was linked to as many as 5 of the killings. When Mpiyakhe's conviction was overturned and he was released in August 2000, some anticipated that this would lead to a resurgence of the violence. These concerns once again dissipated when Mpiyakhe died in a car accident soon after his release.

In speculating about the link between Mpiyakhe's arrest and imprisonment and the decline of killings by hit-men in the area it should be noted that this does not necessarily imply that Mpiyakhe was the only person orchestrating the killings. What appears to be important is that, prior to Mpiyakhe's imprisonment, the WMPU operated with a sense of their own invulnerability. Once Mpiyakhe was imprisoned this illusion was shattered. Furthermore the persons associated with the killings were aware that the killings were attracting attention to them. Thus one of the interviewees observed that once they started contacting persons associated with MPWU as part of the peace process, the killings have declined.

The death of Peter McLeod in 1999 (also apparently in a road accident), another one of the key role-players in WMPU, may also have been a factor in the unions loss of status as a union on the Amplats mines. Thus as one interviewee put it, the loss of these key figures means that WMPU no longer has a "communicator to give force to the union in talks with management or to appease workers".

However the interviewee suggested that the beginning of the decline of WMPU predated Mpiyakhe's death. He suggested that tensions initially emerged within the union due to the fact that Mpiyakhe was enriching himself at the expense of other senior union members and that persons linked to the union might have even been responsible for disclosing Mpiyake's whereabouts enabling him to be arrested by the police.

Another factor that has contributed to the loss of status by WMPU may be that the NUM has taken the initiative to regain the support of the workforce. Thus the NUM led industrial action in the latter part of 2000 would appear to reflect an attempt by NUM to regain the support of workers through a more militant style of unionism.

WMPU violence on other mines

Some of those who have been affected by the violence or have been involved in one way or another in efforts to investigate or address it have suggested that WMPU has been linked to violence on other mines, with particular mention being made of mines in the Free State (apparently at Welkom) and the mines around Carletonville, the town where WMPU has its head office.

Thus for instance in one of the stakeholder meetings reference was made to the various killings which have occurred on mines in the Carletonville area. However, one person who was contacted, and who worked in the Carletonville area during the period during which one of these killings occurred suggested that in this case the killing appeared to point to internal conflicts within the NUM and did not appear to be related to the WMPU who did not appear to have a significant presence in the area at the time.

Thus, while it is not implausible that the WMPU related violence has been carried over to other mines, this is something that at the very least cannot be confirmed by this report, particularly as no substantial evidence in this regard came to our attention.

The general socio-economic and crime situation in the area

Any discussion of the current manifestations of the violence needs to confront the problem of how to distinguish these from the general problems of crime and violence in the area. In fact the current manifestations of the WMPU related violence cannot be directly distinguished from the general situation in the area but rather needs to be understood as intricately related to it.

Thus the informal settlements, which are at the heart of the current problem where described by one interviewee as "no roads, electricity, sewage, refuse removal, nothing". According to the interviewee the biggest crime problems in these areas are assaults, which are often connected to shebeens and which sometimes "snowballs to murder". Another serious problem in the area is rape. The problem of rape, including the rape of young girls, was also acknowledged to be a problem by participants in one of the stakeholder meetings. Other problems identified by them were housebreaking, prostitution, cattle theft and "the stealing of fences and gates and cutting of telephone poles to erect shacks".

Another characteristic of life in the informal settlements which itself feeds into violence appears to be the proliferation of an informal micro-loan industry and other money making schemes relying on fraud and extortion. Thus in one relatively recent (June 2000) murder case the deceased person was apparently running a type of money making scheme where people would pay to get jobs, but then failed to deliver on the jobs as promised.

A further aspect of the problems in the area is that tensions often appear to play themselves out on ethnic lines. Not only are there a large number of Xhosa speaking people in this, originally Tswana, area but, due to the use by the mining industry of migrant labour, there are also a large number of people from other ethnic/language groups. Thus any dispute between two people from different ethnic groups has the potential to play itself out in terms of "clash" or other conflict between such groups.

As one interviewee expressed it however the problem in the informal settlements is not simply a by-product of the social conditions. It is "not from poverty" he said, "but from a lack of policing and the need for people to show power and have impact and a controlled environment".

Informal settlements controlled by persons aligned to the WMPU¹²

While there has been a decline in the status of WMPU as a union, the violence continues to manifest itself in the informal settlements through the vigilante committees and warlords who control these settlements. Many of these informal settlements are under the control of vigilante committees, which are formed of Xhosa speaking people who are associated with the WMPU system of authority.

Informal settlements that were identified by one interviewee as being under the control of people associated with WMPU included Nkanene (by Bleskop), Ndelela (by Siza Mine); Zakhele (next to Entabeni); and Sondela (next to Jabula). In addition to these settlements in the Rustenburg areas another interviewee also identified areas in the Amandelbult, Northam, Swartklip and Sifikile areas as being under the control of people or committees associated with WMPU.

It appears that these settlements are controlled by a type of committee that is constituted by Xhosa speaking people who are aligned to the WMPU system of power and authority in the area. While these committees may be structured fairly informally one interviewee indicated that in a number of cases the people who head these committees, in addition to being WMPU members are also persons who have been identified as suspects by the police.

It appears that the vigilante committees play a dual role in the settlements that they control. Thus on the one hand they maintain some form of order in these communities, establishing their own system of rule and punishing rule-breakers. Thus one aspect of the rule imposed by vigilante is the maintenance of curfews, in the informal settlements, which have been instituted since 1998. As a result many of the informal settlements, which are controlled by WMPU associated persons, are in many ways highly regulated. It appears for instance that this regulation extends to a strong intolerance of immigrants. One police interviewee commented for instance that when the police do go for a search in these settlements "if you arrest 3 illegal immigrants that's strange".

On the other hand it appears that these groups also control what might be described as the informal economy of these settlements. Thus a number of interviewees indicated that it is people associated with these committees who control the shebeens and thus the trade in liquor, and apparently dagga, in these settlements.

An understanding of this "dual nature" of the WMPU aligned power structure is necessary in order to understand the way in which these committees represent a type of organised crime. Thus on the one hand these committees form a type of vigilante authority structure and their criminality is associated with steps that they may take to maintain order and their own system of authority in the informal settlements that they control. Thus where people are involved in breaking "the law" (as defined by the committees) they may be called before an informal court and fined or alternatively physically punished (caned).

The other type of criminal activity associated with these committees relates to their involvement in the "informal economy" of the settlements. On the one hand they generate income through imposing fines on community members and others. As indicated it has been suggested that the committees are linked to the control of trade in liquor and possibly in dagga as well. It has also been suggested that the committees may also be linked to other aspects of the "informal economy" such as prostitution and the informal micro-loan industry.

These committees therefore potentially represent a form of organised crime firstly in the sense that the type of "justice" which they enforce represents a form of criminality but also potentially in the sense that their links to the informal economy involves forms of criminal activity. This type of organised crime is therefore mainly based on exercise of power and control of the economy of the settlements rather than on activities outside of the settlements.

The extent of their authority is also reflected in the fact that people are afraid to challenge them. Thus the committees may be seen as in some ways keeping the areas, which they control, relatively crime free. At the same time people who have been victimised by them are unlikely, to lay charges with the police against committee members, as this may lead to even more severe consequences for them.

Thus the power structure which is represented by MP represents a form of racketeering which, was initially based on selling insurance to the miners, but now is based primarily on the extraction of fines from community members, the "informal economy" of the settlements and possibly on the micro-loan industry.

It is important then to understand how the present power structure is related to the violence that occurred in the area primarily during the years 1997 and 1998. Firstly the violence, which took place during that period, enabled the power structure to establish its authority in the area and thus its control over the informal economy.

Secondly however the power structure is only able to maintain its ongoing authority through its willingness to continue to carry out acts of violence where this is seen to be necessary. Generally it may be imagined that such violence is not "necessary" due to the fact that people living in these areas already regard these power structures with fear. However in certain instances individuals may fail to "cooperate" despite the reputation of the vigilantes for being willing to resort to violence. While in many cases such violence is likely to take the form of beatings/canings or other physical punishment, if we consider the recent history of these power structures, it is reasonable to believe that in certain circumstances such violence may extend to more severe actions including killing.

One problem which the police have pointed to is that in a sense there appear to be no clear cut grounds for action against the vigilante power structures. This is partly because there is no clear indication of dissatisfaction with the committees from within the communities that they rule over. Ultimately while they may generate a level of orderliness within communities and thus residents are not necessarily unhappy with the state of affairs in these communities, the extent of grassroots support cannot be ascertained, as there is no space allowed for grassroots expressions of dissatisfaction.

Displacement of traditional authority

Informal settlements that have been established have often been established on land that formally falls under the authority of the traditional power structures. Effectively traditional land is "occupied" by people establishing informal settlements. While the traditional authorities have expressed their dissatisfaction with regard to this issue in relation to the fact that they receive little compensation or payment from people living on their land, it appears that the primary issue here is simply the fact that the traditional authorities are powerless to do anything about the situation.

Thus the participants in one of the stakeholder meetings observed that the squatters are now moving into Bafokeng villages and it is very difficult to remove them as "the law affords protection to people against evictions as alternate housing must first be provided.

At its worst the problem extends to people "being chased out of their houses by people living in their backyards" as well as the problem of cattle theft where it is believed that the people primarily responsible are from the informal settlements.

Thus the minutes of the stakeholder meeting note that "the squatters that are settled on Bafokeng grazing fields, slaughter Bafokeng cattle and then sell the meat in these squatter camps. As these squatter camps are situated far from the business area, the people buy this meat for convenience and because it is cheap."

While they are opposed to the informal settlements the traditional authorities feel powerless to do anything about the problem. As stated at the stakeholder workshop "Although there is a tribal court in place, it is ineffective, as it cannot arrest people and bring them before the tribal court. They need the assistance of SAPS for that."

Thus it is no longer the traditional authorities but those who run the informal settlements who now have authority in the area. This was acknowledged at the stakeholder workshop where it was stated that while the tribal court is ineffective "Bafokeng people are being tortured at kangaroo courts in the squatter camps".

Thus the key current manifestation of the violence which occurred during 1997 and 1998 is that it has enabled a new system of authority, that of the vigilantes, to be established in the area.

While there is effectively a major conflict between the traditional authority structure and the new vigilante authority system, this conflict has not been manifested in violence. This appears to be primarily because of the reluctance of the traditional authorities to respond to the aggression of the vigilantes in similar terms. The new authority system, which has been established in the area, is therefore one that operates because of the fear that it inspires in those who oppose it. It is only when people directly challenge the authority of the new power structure that this is likely to lead to violence.

The continuation of the violence

At the beginning of Section 2, the violence, which is the focus of this report, was defined in part as,

Violence and acts of intimidation which affected employees of the Amplats mines, and other persons .. which was related to the establishment of Workers Mouth Peace Union (WMPU) as a recognised union on the mines, and the establishment of WMPU authority in mine hostels and surrounding informal settlements.

During the 1996-1998 a large number of incidents of violence occurred, some of which involved "clashes" but most of were killings that were apparently carried out by "hit-men". Through this process, a particular system of power, associated with the WMPU, established itself in the area where the Amplats mines are located. Currently this structure of power no longer operates primarily through the formal structures of the WMPU but through the "informal" vigilante committees that are based in a number of the informal settlements.

As one interviewee said "it is possible that the violence is reduced because one side has won". While there continues to be a problem of clashes between WMPU members, or members of one of the unions which splintered from WMPU, the currently violence which occurs in the area which is related to these informal structures does not primarily take the form of "conflict" between the WMPU and other groups. Rather the violence which occurs (in the form of various steps taken to "discipline" people) is primarily an expression of the authority of the WMPU in these areas, and is how the WMPU related structures maintain their authority. However there are no groups who are in open conflict with these WMPU related structures due to the fact that other groups fear the violence which may be unleashed against them if engage in challenges to it.

Section 4: The Investigation and Prosecution of Persons involved in the Violence

The cases

In its previous sections this report has provided an outline of the violence which, very roughly, may be understood as having occurred over two main periods:

• In the 1996-1998 period high levels of violence occurred apparently related to the emergence of the WMPU and its attempts to establish itself as a recognised union, and to establish the domination of its system of power in the area;

• In he second period, which may be understood to have started in early 1999, the WMPU begins fragmenting as a union, but the power system associated with WMPU is established, and continues to operate in a number of the informal settlements.

It needs to be emphasised that the cases, which have been the focus of police investigations related to the violence, are primarily related to the first period. Thus in the second period it appears that, apart from "clashes" where a number of people have been killed, and one or two other "hit" style killings, the violence associated with the WMPU is not really documented and is not the focus of a centralised investigation. There would appear to be two contributing factors which underpin this.

On the one hand, the new status quo that has emerged, is one where the authority of the WMPU power system is not challenged in the areas where it has established itself. Even those who are opposed to the system are too afraid to do anything that might be seen to challenge it. The power of the system is maintained largely because of the level of fear in the area, but also through the vigilante justice system. However this justice system operates in a way where the type of violence that is used usually falls short of killing. It appears that those who were involved in the killings have realised that the killings were drawing a lot of attention to them. Thus they appear to have adapted their style of operation in a way that enables their actions to avoid police attention.

On the other hand police investigations relating to the violence have been focused almost exclusively on incidents where people have been killed. Thus the present investigative focus doesn't engage with the forms of criminal behaviour that are currently occurring. Furthermore where people are victimised by the people associated with the WMPU related power system they are generally unlikely to report this to the police as they fear further victimisation. Most of the incidents of victimisation, which are currently occurring, are not recorded by the police. Thus even if the police extended their focus to all forms of criminality associated with the vigilante power system, many of these incidents would still not be recorded by them.

The cases, which are the focus of this section, are therefore primarily cases, which occurred during the 1996-1998 period. As discussed in Section 2 in discussing these cases it needs to be emphasised that, even if we can agree on a common understanding of the violence and its current manifestations we will not be able to necessarily achieve clarity on which incidents or activities are related to them. Thus the list of cases which is the focus of this section is based primarily on various lists of cases which have been compiled by the SAPS, which include only instances of murder and do not record non-murder related cases

While information from other sources has been used there is however no single source of data that may be seen to provide a comprehensive list of cases that formed part of the violence. Furthermore many of the cases that are included are included not for substantial reasons that are known to the authors of this report, but merely because, those involved such as the SAPS, or Amplats Protection Services, believe that these cases form part of the violence. These cases may be seen to fall into three categories:

1. The clashes – four major clashes have occurred related to the conflict with, one between the police and residents of an informal settlement in August 1996, one between WMPU members and both the NUM and police at a roadblock in July 1997, one between WMPU and NUM members in June 1999, and one between WMPU and BMEAWU members in March 2000. In these incidents a total of 14 people have died and 87 people (including two SAPS members and an SANDF member) have been injured. These are listed in Appendix B.

2. Planned killings or "hits" – 33 people have died in 27 incidents most of which resembled planned killings or "hits". These are listed in Appendix C.

3. Other incidents of violence and intimidation and other criminal cases – 16 other incidents, which include amongst them other incidents of "mob" violence, incidents of malicious damage to property, incidents of assault, incidents of incitement (to murder), and incidents of attempted murder. These are listed in Appendix D.

Section 4: Progress made with investigations and prosecutions

i) Investigation and prosecution regarding "clashes"

The status of investigations and prosecutions relating to the clashes is summarised in Table 2.

In relation to the cases regarding clashes it should be noted that in the one case where convictions were obtained a large number of people (22 or 23) were apparently convicted. Furthermore there appears to be a reasonable prospect that prosecutions will be instituted in 2 of the other cases.

Table 2: Status of investigations and prosecutions regarding "clashes"

Status	No of cases
Convictions obtained	1
Details of prosecution still to be finalised	2
Case withdrawn against accused	1
Total	4 cases

ii) Investigation and prosecution regarding planned killings or "hits"

The status of investigations and prosecutions regarding the planned hits or killings is summarised in Table 3

Table 3: Status of investigations and prosecutions regarding planned killings or "hits"

Status	No. of cases	Database no.
Case filed undetected	10	43, 44, 48, 28, 56, 30, 68, 33, 35, 72
Case closed (suspect deceased)	1	49
Investigation still in progress	1	81
Awaiting decision of DPP	2	46, 73
Prosecutions instituted but case not finalised	2	34, 76
Case withdrawn at court	1	21
Acquitted	4	65, 32, 70, 71
Acquitted on appeal (Conviction obtained but overturned)	2	15, 18
Conviction obtained	2	67, 22
Unclear	2	16, 86
Total	27

In relation to the cases regarding planned killings or hits, it should be noted that:

• Of the 27 cases the status of two is unclear. (These are both Transkei cases. The investigating officer is still to reply to queries regarding the outcome of these cases). This means that we have 25 cases in relation to which we have information on the final disposal.

• Of these 25 cases, 19 (76%) have been finally disposed of in one way or another. Of the remaining 6 cases: there is one where the investigation is apparently still in progress; 2 cases are with the director of public prosecutions and in 2 cases are on the court role. The remaining case is one where the case was withdrawn at court. This may mean that the case has been closed and therefore added to the list of final disposals (bringing the total to 22 or 88%) or that the investigation is still continuing.

• Of the 19 cases that have been finally disposed of, 10 (or 40% of the total of 25 cases) have been filed undetected. While this may seem to be a high number these figures are not substantially higher than those for South Africa as a whole. According to Schönteich (1999) for instance the national figure for murder cases filed undetected in 1998 was 34% with another 9% being withdrawn at court. Thus in many cases which the police have to deal with there are simply no leads. Even where there are witnesses present, for instance, these witnesses cannot necessarily identify the killers or provide the police with other useful evidence (this appears to have been the case for instance in Temba CR 228/06/98). However the cases which were closed in this way where not necessarily cases where there were no significant leads. Thus in Tlhabane MR 22/08/98 for instance it is stated that the witness "declined to give a statement and to testify as the suspects are known to him". While this may point to the effect of intimidation it also suggests that full use has not necessarily been made of witness evidence in all cases where it might have been possible. Similarly in relation to Rust CAS 471/10/98 the investigators have noted that the witness evidence was contradictory in relation to the identity of the suspects. What is not clear however is whether one of the witnesses' evidence appeared to be more reliable than the other. Effectively therefore while there may be difficulties which may mean that they are not good cases to take to court, a number of the cases which have been closed are cases where there are leads.

• A further 1 case has been closed because the sole suspect has died.

There are therefore 8 cases which have gone to court and been completed at court. For these cases, 2 (25% of cases completed in court) have resulted in a conviction and 6 (75% of cases completed in court) have resulted in acquittal.¹³ These cases are summarised in Table 4.

In relation to Table 4 it may be noted that:

• It would appear that the two cases in which convictions have been obtained, and four of the cases which have resulted in acquittals, have all been investigated by the Phokeng Murder and Robbery Unit. The two cases on which a conviction was initially obtained, but which were overturned on appeal were investigated by the Thabazimbi Murder and Robbery unit and were prosecuted simultaneously;

• All cases that resulted in acquittals have been heard in the jurisdiction of the Transvaal Director of Public Prosecutions in Pretoria. However these have in fact been heard in three different courts located in Rustenburg, Pretoria and Thabazimbi. The two cases that were heard in Thabazimbi formed part of a combined charge sheet and a conviction was initially obtained. However this was overturned on appeal in the Pretoria High Court.

• The two cases that have been heard in the jurisdiction of the Director of Public Prosecutions in Mmabatho have resulted in convictions. They have however, it appears, been heard in two different courts.

Table 4: Cases finally disposed of by means of conviction or acquittal

Database no.	Outcome	Police Jurisdiction	Specialised unit	Court	DPP jurisdiction
65	Acquitted	Boitekong	Phokeng M&R	Rustenburg High Court	Pretoria
32	Acquitted	Rustenburg	Phokeng M&R	Pretoria High Court	Pretoria
70	Acquitted	Boitekong	Phokeng M&R	Pretoria High Court	Pretoria
71	Acquitted	Boitekong	Phokeng M&R	Rustenburg High Court	Pretoria
15	Acquitted on appeal	Northam	Thabazimbi M&R	Thabazimbi Regional Court	Pretoria
18	Acquitted on appeal	Northam	Thabazimbi M&R	Thabazimbi Regional Court	Pretoria
67	Convicted	Mogwase	Phokeng M&R	Mogwase High (Circuit) Court	Mmabatho
22	Convicted	Tlhabane	Phokeng M&R	Mmabatho Supreme Court	Mmabatho

While the cases have not been examined in detail to ascertain the reasons for the high proportion of acquittals in relation to case 70 (Boitekong CR 110/02/98) the investigators have noted that "the witness refused to testify in fear of their lives in open court after court declines application for case to be heard in camera". In relation to 65 (Boitekong CR 103/10/98) the investigators have noted that while "the evidence was convincing for conviction", the case failed on a "technicality on inspection in loco".

While issues to do with witnesses and witness intimidation are clearly a problem, this suggests that other issues, to do with the "technical" aspects of evidence, have also contributed to problems in achieving successful prosecutions.

iii) Investigation and prosecution regarding other incidents of violence and intimidation and other criminal cases

Available information regarding the status of the investigations and prosecutions regarding the 16 other incidents is summarised in Table 5.

Table 5: Status of cases relating to other incidents of violence and intimidation

Status	No. of cases
Case withdrawn	2
Unclear	14
Total	16

The absence of clear information about other cases related to the violence points very clearly to one of the key failings of the approach that has been taken to dealing with the violence by the SAPS. This is that the focus of investigative efforts has been purely on killings.

However the type of investigative approach that is required is one that attempts to make maximum use of available evidence in order to develop as much leverage as possible relative to persons who have information about the violence. While issues of obtaining cooperation from the community need to be addressed in diverse ways it is clear that one way through which this needs to be done is through making optimum use of related cases so as to generate as much information as possible relating to the cases.

The suspects

In discussing the issue of suspects it is important to note that this report is not assuming that the evidence linking particular individuals is strong in all cases. Thus in some cases people may, for instance, have been identified as suspects by people who are trying to mislead the investigators.

A number of suspects have been identified in relation to at least 3 of the "clashes" with a number of them having been convicted in one of the cases.

If we exclude the "clashes" from our analysis then it would appear that there are in the region of 58 different persons who have been identified as suspects, or at least implicated in some way, in 24 of the cases relating to the violence. This means that suspects were identified in:

• At least 16 of the 27 cases involving planned killings or "hits"; while
• There appear to be identifiable suspects in at least 9 of the 16 cases of "other violence and intimidation".

Most of the suspects have only been linked to a single case but at least 17 of them have been linked to more than one case. These suspects are listed in Table 6.¹⁴

A number of the cases to which the above suspects were linked have gone to trial. Thus:

• Six of the seven (excluding Suspect N) suspects listed above as linked to case 65 (Boitekong CR 110/02/98) were acquitted in November 1999 (due to the witness refusing to testify);

• One of the accused in case 65, Suspect B, was also acquitted with Suspect F, in relation to case 32 (Rustenburg CAS 117/08/98) in August 2000. Suspect H, and two other suspects, were not brought to trial in this case;

• The available information does not make it clear if Suspect N or Suspect P were either amongst the two one of the two (of a total of 6 identified suspects) who were eventually brought to trial and acquitted on case 70 (Boitekong CR 103/10/98) in November 2000;

Table 6: Suspects allegedly linked to 2 or more cases

Suspect	Database number of planned killings or hits to which suspect allegedly linked	Database number of other (Appendix D) cases to which suspect allegedly linked	Cases in relation to which individual has been prosecuted
Suspect A	46, 65		65 - acquitted
Suspect B	46, 65, 32	50	65 - acquitted, 32 - acquitted
Suspect C	46, 22
Kaizer Mpiyakhe (deceased September 2000)	15, 16, 18, 49, 43 (87)		15, 18, (87) – conviction overturned on all three cases
Mgcineni Sokhase	18, 22		18 – conviction possibly overturned, 22 – sentenced to 55 years
Suspect F	32	50	32 - acquitted
Suspect G	22, 33
Suspect H	32, 46, 65	50	65 - acquitted
Suspect I	65	50	65 - acquitted
Suspect J	34	41
Suspect K	76	13, 20
Sipho Dlulane (deceased)	18, 22		18 – conviction apparently overturned; 22 – apparently indicated willingness to give state evidence but was killed.
Suspect M	65, 46	50	65 - acquitted
Suspect N	65, 46	50	(70? – not clear if suspect N was one of two suspects acquitted in this case)
Suspect O	46, 65	50	65 - acquitted
Suspect P	70, 32
Suspect Q	34, 35

• It proved fairly difficult to establish on which cases exactly Kaizer Mpiyakhe (who died in a car crash after being released from jail in August 2000) was convicted, and subsequently had his conviction overturned. According to Inspector Minnaar of Thabazimbi Murder and Robbery Unit, Mpiyakhe was convicted on 3 counts of murder relating to the deaths of Eric Rixi (case 18), Roadwell Diale (case 15) and Morriat Blayiyo (CR 40/11/97).¹⁵ According to Minnaar the dockets are unclear but it appears that Mpiyakhe received 10 years each on 2 of the cases and 8 years on the third of which three years were suspended. The docket also appeared to indicate that Mgcineni Sokhase and Sipho Dlulane were also convicted for the murder of Eric Rixi (case18) and both received 10-year sentences. However Sipho Dlulane was murdered roughly 10 months prior to the date in April 1999 when this case was apparently finalised so this particular piece of information appears also to be inconsistent.

Of the group of suspects listed above therefore only one Mgcineni Sokhase, has been convicted and is currently in jail. In addition to receiving a sentence, apparently of 10 years imprisonment, for the murder of Eric Rixi, Sokhase was also subsequently convicted for the murder of Simon and Vuyisa Tshalane (case 22) and sentenced to 55 years imprisonment on this case.

It is not entirely clear whether, in overturning Mpiyakhe's conviction for Eric Rixi's murder, the court also overturned Sokhase's (and Dlulane's) convictions. It is therefore not altogether clear whether Sokhase current imprisonment relates purely to the Tshalane case or whether it also relates to the Rixi case.¹⁶

The other 3 people who are apparently also currently serving prison sentences are not included in the above list. They are:

• Wiseman Wachala who was tried separately from Sokhase on the Tshalane case (case) 22 and received a sentence of 30 years imprisonment.

• T-man Mdiki and Sam Skhumba who both received sentences of life imprisonment for the murder of Chief Pilane (case 67).

Of the other cases to which the above 17 suspects are linked, it may be noted that:

• Case 46 (Boitekong CR 123/08/97 – the murder of Zibongile Mtebelexi), to which six of the above are apparently linked, has been sent to the Director of Prosecutions for a decision as to whether to proceed;

• Case 34 has been set for trial on the 8th and 9th of March 2001. However in the latest police documents only one suspect is listed as arrested and charged while another suspect is listed as "outstanding". Suspect J Michael is therefore apparently not amongst those being prosecuted on this case.

In addition to Mpiyakhe (who died in a car crash), two other suspects are now deceased. As indicated in the remarks regarding the cases on which Mpiyakhe was convicted, Sipho Dlulane (one of those apparently convicted on case 18 and a suspect in case 22) is also deceased. He had apparently indicated a willingness to give state evidence in case 22 and it is assumed that he was killed to prevent him from giving state evidence, an indication of the seriousness of the threats against witnesses in the WMPU related cases. As indicated above, his case, which is recorded as case 68 in Appendix C, is amongst those which have been closed.

A further suspect who has been killed is Zuzile Mnyaka who was killed on the 1st of May in Rustenburg. Mnyaka was at one point regarded as a suspect in case 54 (the murder of Daniel Maramba, Grace Sekurwane and Patrick Teke) another one of the cases that has been filed undetected. However the fact that the case has been closed appears to not be related to Mnyaka's death as the case was closed prior to Mnyaka's death on the 15^th of March 1999.

Mnyaka's death (database number 85) is not regarded by the police as one of the violence related cases and is not being investigated by the Phokeng Murder and Robbery Unit, but by the Tlhabane CID. According to Captain Reyneke at the CID the suspect in Mnyaka's murder was arrested and received bail of R3000 but has subsequently skipped bail. Captain Reynecke says that according to the docket, which appears to summarise a statement made by the accused, the accused sold a firearm to Mnyaka but then Mnyaka did not pay him. The accused then went to get the firearm back and after a fight he got it back but then Mnyaka again retrieved the firearm from him. Accused then went back with a firearm, and he was afraid of Mnyaka and ended up shooting him. The docket makes no mention of this killing being related to the other (WMPU related) violence.

Other links between cases

In addition to being linked by suspects a number of cases are also linked by other circumstances that are summarised in the right hand column of Appendix C and D. Thus for instance:

• A number of the people who were killed had been victimised previously by persons associated with the WMPU (see cases 11, 27, 50, 36 in Appendix D). In particular a number of those who were suspects in the malicious damage to property case brought by Mkosana and Somasethi (case 50) were subsequently charged with the murder of Mkosana (case 65) while one of them, Suspect B was also charged for the murder of Somasethi (case 32).

• In a number of cases people were targeted to be killed by name at meetings (see case12, 17)

• While at another WMPU meeting a person was abducted and forced to state that one of the people killed had been killed by the NUM (see case 19);

• Firearms are a link between some cases (the documentation is confusing about whether case 41 and 27 in Appendix D appear to be linked to case 18 – the Eric Rixi murder).

The motivation for and planning of the killings

It appears reasonably clear that many of the killings that took place, particularly in the June 1997 to December 1998 period were related to efforts to establish the authority of WMPU as a union. Thus on the one hand it appears that some of the victims may simply have been targeted because they were not willing to join the union or were seen as obstacles to the establishment of WMPU authority.

Thus an interviewee said that Missionary Chawe Mpeni (case35) "was seen as a stumbling block to WMPU workers receiving their demands from management. There were meetings and a decision was taken for him to be eliminated, and he was eliminated. That's how it was told to us".

Sometimes killings might have followed allegations that a particular person had been making critical comments about the WMPU. As one interviewee put it "Possibly you'd get information that it was said person was to be eliminated: and then person would be killed; or he'd be called to a meeting (kangaroo court) and fined or if he didn't pay he'd be killed or; he'd be called to a meeting but fail to attend and then be killed.

Many of the killings seem to have been highly arbitrary with people being shot apparent 'disloyalty' of an exceptionally petty kind. Thus Sigwayi Maxini (case 71) was apparently shot because he attended a funeral of a person belonging to Mpheni. It is alleged that the people involved in planning of Maxini murder were involved in carrying out Mpheni murder.

While some of the murders may have been quite arbitrary it appears clear that some of the victims were selected specifically because they were part of the NUM leadership and therefore represented opposition to the WMPU. However the killings appear not to have been simply about removing particular "obstacles" but also sending out a message to people that any opposition was not going to be tolerated. Thus from the beginning the murders were carried out in a manner for what one interviewee described as "intimidation purposes" with the victims being shot a large number of times.

It therefore appears that the killings in some way formed part of an orchestrated programme of violence intended to both remove opposition and intimidate all those who might have been doubtful about compliance with the union.

i) The selection of victims

One aspect of the killings that supports the idea that the killings were part of an orchestrated programme of violence is the belief that many of those who were killed were people whose names had been put on a "hit list" (or one of a number of lists) of people to be killed. Thus according to one of the interviewee's "there was this thing of a hit list – but we never got a glimpse of it. Every time they told you so and so is the next one to be eliminated it happened just like that".

While it is clear that there was talk of "hit lists" but not clear that the killings occurred in terms of any particular list.

Thus a police report of February 1998 refers to a meeting addressed by Suspect C (see Table 6) where he allegedly listed 17 people who were to be killed. The list included the Minister of Labour, the North West Premier, the President and General Secretary of the NUM and a number of NUM members from the North West Province. Of the people named in the report, at least two and possibly three of them, were subsequently killed. Frances Rixi was killed in September 1998 and Missionary Mpheni was killed in October 1998. It appears likely that the reference to Nicholas Zonkla is probably a reference to Nicholas Zondela who was killed in August 1998.

But while there is some evidence that indicates that the victims who were targeted were people who had been listed on formal "hit list" it appears that this was not necessarily the case in relation to all the killings. As one interviewee put it "I think that as they went along they identified people". Once a person was "identified" however he was effectively "on the list".

Thus the "hit lists" and therefore the "targets" may have emerged in a fairly ad-hoc, manner rather than reflecting a calculated selection of targets. As one interviewee put it "They would normally hold a meeting. Once they decided you're a sell-out they would put you on a hit list with a price tag to your name".

ii) Identifying ringleaders

Along with the lack of clarity around the significance of "hit lists" in the killings is a lack of clarity as to whether the killings were orchestrated by a central group of people or not. Thus one interviewee emphasised that the murders were the work of a network of people. "They have good networks which are quite organised," he said. "Thy identify people and follow them and kill them".

Associated with the WMPU, are a number of committees based at various hostels and informal settlement. According to an interviewee "Each community used to call meetings out of the blue. They were just calling meetings within their squatter camps. Most decisions which resulted in killings were just taken by the community and the committee itself".

The meetings might have included the "committee" or all WMPU members at the informal settlement. According to one interviewee it was therefore at this type of meeting that "I think this is where the whole thing was discussed of who is the enemy and what should be done with him. It was rare that Head Office would come down and say this is what should be done".

Thus, while the WMPU President, Kaizer Mpiyakhe appears clearly to have been linked to a number of the killings, and while other members of the senior leadership may have been linked to planning the killings, it is not clear that the WMPU head office formally orchestrated the killings. As an interviewee stated "We couldn't link them to murders – we can't say they were issuing instructions for crimes to be committed on ground".

Similarly another interviewee suggested that even though some of the senior union leadership might have been involved in the union with a view to the opportunities it presented for financial enrichment "but the killings I'm not sure – I don't know that [they] said – kill this and that person".

It therefore appears that, in so far as the killings were orchestrated, this was in some way linked to the meetings of one or more committees of the WMPU. The people leading the meeting would probably have been the key persons involved in making decisions about killings. However the interviewees with whom this question was discussed did not appear to have clarity on whether there was a single "central" committee that took these decisions, or whether these decisions were taken fairly randomly within a number of different committees that might have included committees based in the hostels and informal settlements as well within the central WMPU structure.

Thus of the two persons who appear to be most clearly indicated as "ringleaders" Mpiyakhe was apparently running the branch in Swartklip and on the NEC and one of the WMPU "principals". On the other hand Suspect C was apparently one of the key members of a branch committee in the Rustenburg area.

The interviewees, who included key members of the intelligence and investigative agencies involved in dealing with the violence, appeared unable to clarify whether the persons responsible for orchestrating the violence might be from within a single central group, or a number of different "committees". Asked if a Mafia Scenario (involving "bosses" and "hit men") could be applied one interviewee replied that "if you talk like that it sounds structured. They are structured informally. That's the way things happen there".

In relation to this issue another interviewee suggested that the "Mafia scenario" couldn't always be applied. All that known was that there were meetings, and that soon thereafter there were often killings, but there was no clear information that instructions were given. However the implication appears to be that some type of system of delegation or hiring was in operation. Another interviewee said that all that could be established was that "meeting has been called". It was to be presumed that "some people would then go and secretly speak to people to do the dirty work" and that they had received information that these people were paid.

Again there was a lack of clarity as to how the process from "identification" to killing might have worked. Thus one interviewee suggested that 'it was not necessarily the case therefore that specific individuals are hired to do the job" and that it was "more to do with how important you are deemed to be". Killings might have been carried out, he suggested, by self-appointed gunmen on the basis that a particular "price" was being offered for the killing. Similarly another interviewee pointed out that that not all of the killings had been carried out by "hit men". Sometimes, as in the case of Mpiyakhe, they would "do the stuff themselves".

However there was some level of agreement from interviewees that there were specific persons such as Suspect C who was "believed to be one of those who would identify people" while others would go and do the killings.

Similarly while at least one of the interviewees listed the names of a group of four key people (one of whom was Suspect C) who he said were implicated as being the key persons behind the killings another interviewee said that "You know truly speaking we cannot say who those people are".

Thus while the available information points to fact that the violence involved not only "hit men" but also a number of people who in one way or another directed the violence those who were interviewed were divided as to whether there was clarity on who the "bosses" or "ringleaders" were and did not express confidence that prosecution could be made to succeed against these 'real perpetrators'. As one interviewee said "its normally very difficult to build a case against the person who gave the instructions. We have a lot of names and information regarding the activities of Mouthpiece – but mainly don't have the evidence to prosecute".

Similarly a senior police member said that there was no clear evidence that those orchestrating or conducting the current vigilante violence were the same people as those people who had been involved in the orchestrating or carrying out the killings.

Thus while there is a network of committees associated with the WMPU, and these committees are believed to have been linked to the killings, and known to be in control of the current system of vigilantism, current police information is unclear as to what the link may be between the persons who orchestrated and conducted the series of killings, and those who are responsible for the current vigilante violence.

iii) Retaliatory violence

One issue has not been explored in much depth in the research conducted thus far has been the contribution of retaliatory violence by the NUM. Thus while this analyses rejects the idea of the violence as having been essentially a "conflict" between the two unions but, based on the evidence, sees the violence as overwhelmingly having been generated by the WMPU, it is still acknowledged by a number of people that there was violence by members of the NUM, though this may be seen as primarily defensive or retaliatory in nature.

While no arrests were made, one example of a case, which is believed to have been retaliatory in nature, is Tlhabane CR 160/7/97 (Case 42 in Appendix D) in which four people were injured when shots were fired and a hand grenade thrown at four WMPU members at Nkanene informal settlement.

But while retaliatory violence appears to have played a role the available evidence appears to indicate that the bulk of violence was generated by the WMPU. Thus even in a number of the cases where WMPU members were killed the available evidence appears to indicate that this was done by other WMPU members. This appears to be the case for instance both in relation to the death of Zibongile Mtebelexi (case 46 in Appendix C) in August 1997 and the death of Gunshayikali Mquewuka (case 49) in November of the same year.

Section 5: Issues in the Process of Investigation and Prosecution

The investigative and prosecutorial functions in the affected areas

The Rustenburg area, and other areas of North West which have been affected by the WMPU violence, fall mainly into the Marico Policing area whose headquarters are situated at Tlhabane, just outside Rustenburg. This includes the Sifikile area (scene of a number of the earlier incidents of violence and killing) which is situated close to Union section but falls physically in North West province. Union Section itself, and Amandelbult, on the other hand, are located in the Bushveld policing area of Northern province.

The Phokeng Murder and Robbery Unit which has been dealing with most of the murder investigations relating to the WMPU violence is therefore based at the Phokeng police station near Tlhabane. However the unit has only been involved in investigating murders related to the violence, which have occurred in the Marico area.

The investigation of murders that have occurred in the Northern Province on the other hand have mainly been conducted by different investigative officers at the Thabazimbi Murder and Robbery Unit (a satellite of Nylstroom Murder and Robbery).¹⁷

This lack of coordination in the investigation function is reflected for instance in the police documents on the k