Zama zamas can't expect food to be brought to them 'while evading arrest'

Miners' rights 'not being violated and they are not trapped underground': lawyer

It is unreasonable for illegal miners in Stilfontein to expect medical treatment and food to be brought to them while they remain underground to avoid arrest — and none of them have complained about their constitutional rights being violated, the Pretoria high court heard on Thursday.

The court heard the organisation Society for the Protection of Our Constitution's application seeking an urgent interdict to prevent police from barring the supply of food, water and medical treatment to more than 4,000 illegal miners in a disused gold mine in Stilfontein.

The miners had been stuck for weeks in a 2km-deep shaft when police pounced on them at exit points during Operation Vala Umgodi, which aims to combat illegal mining.

The organisation was granted an interim interdict on Saturday that ordered police to allow the illegal miners to be rescued. The matter returned on Thursday where the respondents, made up of the ministers of police, co-operative governance and traditional affairs, mineral resources and health, made their representation.

Representing the respondents, advocate Bonginkosi Lukhele said the applicant failed to bring evidence to support their claim that the miners' rights to life, dignity and health were violated. The thousands of miners were not trapped but were evading arrest, Lukhele said.

“You must differentiate between human rights and criminality. We have individuals in the mine who are not supposed to be doing what they are doing and were given an exit but do not want to come out,” Lukhele argued.

“You can’t sit there and not want to be arrested but you want your right to life and dignity to be respected. You want doctors to be brought to you and when you want groceries you want them brought to you because you don’t want to come out. These illegal miners ... as it stands now, are not in the custody of the police. Once you are in the custody of the police, it’s a different story. Those who are [underground] are evading arrest and are frustrating the operation of police.”

However, the police operation stripped the miners of methods to resurface that they previously used with the help of the communities, said the organisation's legal representative Yasmin Omar. 

Omar argued that police instead used brutal tactics to remove the miners such as refusing to rescue them while depriving them of food, water and medical treatment.

“The view of the [government] that this is a matter of law and order is simply not true. To detain people underground in that fashion and use tactics like starvation is not policing. We must give it its true name — this is brutality. This kind of policing is not welcome in a democracy like ours.”

She said it was contradictory to the actions of the country’s government, which went to the International Court of Justice (ICJ) to fight for humanitarian aid for Palestinians.

“Our country told the ICJ that [Israel] is blocking entries to Palestine and food is not allowed and is using starvation as a tactic. What is happening here is the same strategy ... It’s sad to make this announcement in public yet in our country people are oppressed by sanctions of police,” Omar said.

Lukhele said while the applicant brought no evidence to back claims of police violating the bill of rights, it also failed to bring any evidence that police acted outside their mandate in terms of the constitution. 

Instead, it was the police and the government that took steps such as issuing pamphlets and holding meetings with the community to alert them to use the Margaret Water Company shaft as a safe exit point. 

He argued that the application should be dismissed as Omar had relied on media reports and statements by unions, organisations and political parties to bring the application. 

“There is no affidavit from [the miners] saying that the police were refusing to give them food, were torturing them or treating them in an inhumane way, and their right to life was affected. There is no evidence,” said Lukhele.

“What stopped [the applicant] from driving [to Stilfontein] and interviewing the illegal miners, or their families? But there were no steps taken to get the direct facts from the people but an order must be taken against the government. There is absolutely no basis for this application.”

Judge Brenda Neukircher reserved judgment.

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