The Commission of Enquiry headed by retired judge Ian Farlam into the deaths in August of approximately 44 people at Marikana and the injury and arrest of scores more has not got off to a good start.

In the first few days of its existence, the Commission appeared to have scant regard for those most affected by these events, proceeding in spite of the fact that family members of the deceased were not present. The fact that Farlam subsequently saw sense and postponed the Commission is to be welcomed.

The Commission will probe the immediate circumstances surrounding the deaths and injuries, to determine which of the main protagonists was to blame for the massacre. While the Commission can consider any act or omission that led to the violence, it is unlikely that it will reflect on the deeper causal factors that propelled the miners into a life and death clash with the mine and the state, as the terms of reference are narrowly constructed.

In order to understand what made workers bear arms, for instance, it is necessary to understand the build-up of conflict in the mines. The Democratic Socialist Movement (DSM) has noted a pattern of clampdowns on workers’ struggles over several years. According the DSM’s Mametlwe Sebei, ‘Workers have been killed around mines at Rustenburg for a very long time now. [The perpetrators"> have been used to getting away with it. This is part of the background. [As things stand">, the Commission won’t even tell half of the story’.

Furthermore, Municipalities such as Rustenburg’s also have a track record of frustrating and even prohibiting gatherings to protect powerful mining interests. According to the Secretary of the Bafokeng Landbuyers’ Association, Thabo Rapoo, ‘…[There are"> barriers for people to demonstrate against government and the mining companies, and attempts [by the Municipality"> to bar people from exercising their fundamental rights.

‘We represent communities in Rustenburg and can attest to the fact that a number of applications have been turned down. Written reasons are not forthcoming. It has become a nightmare for communities, who are sent from pillar to post to seek “permission” to march against the very people who they want to protest against…[The"> strategy has worked well for the perpetrators, in that they delay the authorisation of “permission” until once people’s immediate frustrations are over, and they think that after a week or two the frustration will have dissipated’.

The Association has been required to comply with a checklist of letters they need to obtain before the ‘section four’ meeting with the Municipality and the police to discuss the march. The checklist includes a permit to use a public road, an authorisation letter for the venue, a permission letter from the tribal council, and an acknowledgement letter from the intended recipient of the memorandum of demands that s/he will be available to receive the memo to be served.

The Association has pointed out to the Municipality and the South African Human Rights Commission that this checklist is unlawful as it places obligations on the convenors that are simply not required by the Regulation of Gatherings Act, but the practices continue.

In effect, the checklist means that the intended targets of the protest action can squash the protest simply by refusing to accept the memorandum. The insertion of the tribal council requirement subverts a fundamental principle of the Act, whereby the convenors merely need to notify the local authority of their intention to march, and not seek permission.

On one occasion, a community falling under the Association notified the Municipality of their intention to march, and then ignored the checklist arguing that it was unlawful and that they had met the requirements of the Act. They were stopped by the police and, according to Rapoo, ‘…were lucky to be only arrested’.

In spite of the fact that the Municipality’s checklist is clearly unlawful, it is still in force if a march held recently by the Wonderkop Community Development Association is anything to go by. The march was organised to protest against police violence after a councillor, Paulinah Masutlho was shot dead, allegedly by the police, in the wake of the Marikana massacre.

The Association experienced innumerable problems with the notification process, and the Municipality eventually prohibited the march on spurious grounds. Luckily, their reasons were put in writing, and included the reason that ‘the purpose of the march does not meet the requirements of the Gatherings Act’. The Act does permit gatherings to be regulated based on their purpose, as this would allow the authorities to censor protests that are critical of their conduct.

The prohibition was overturned during a court review. The Association’s attorneys, the Centre for Applied Legal Studies, inferred from the conduct of both the Municipality and the police that they were instituting a blanket ban on gatherings as they flouted the law so insistently.

What made this possibility stronger is that another protest, to be held outside the Farlam Commission by the Marikana Support Campaign, was also prohibited in spite of correct legal procedures having been followed, but was also allowed after Section 27 appealed to Farlam directly.

Cabinet’s security cluster has warned that it will clamp down on any illegal protests. But they are also making it increasingly impossible to hold legal protests either. Blanket bans have emerged at other times under Jacob Zuma’s administration, particularly when the government feels that the country’s national security or international image is threatened.

In 2010, all gatherings in the Vaal were prohibited by the MEC for Community Safety ‘due to the volatile situation in the townships’. This prohibition was then extended to cover the period before and during the World Cup. Many cities hosting World Cup matches also prohibited gatherings. In the wake of the soldiers’ march to the Union Buildings, evidence emerged of a blanket ban on gatherings to the seat of government. Blanket bans of protests are only possible under a State of Emergency, and no State of Emergency has been declared, either then or now.

Unsurprisingly, many who have been engaged in struggles against often mutually reinforcing public and private abuses of power in mining areas, have developed a profound mistrust of anything relating to officialdom. After all, they have had long exposure to how the powerful repeatedly and cynically flouted the law to protect their own interests.

Understandably, these bitter experiences have led to suspicions about the bona fides of Farlam Commission as well, which some see as an extension of the state, and anything to do with the state is no longer trusted.

In spite of its inherent shortcomings, it would be incorrect not to support the Commission and its work. It is the only formal mechanism of redress available to the miners and their families at the moment, and should allow for the immediate events surrounding the massacre to be probed and culpability established.

In this climate of deep suspicion, the Commission must accept that it will have to build trust and ensure that those most affected - namely the miners, their families and surrounding communities - have a voice. In this regard, it did itself no favours in its opening moments.

But there are strong indications that the enabling environment for this voice to be heard properly is absent. Holding a Commission in a climate where the only participants to enjoy the democratic freedoms to meet, discuss and organise around their contributions are the government and the police, will make it difficult for even the limited terms of reference to be achieved.

The Commission cannot be allowed to fail. It is too important. But, undeniably, an undeclared State of Emergency over the period of its life weakens its prospects for success.

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* Professor Duncan is Highway Africa Chair of Media and Information Society, School of Journalism and Media Studies at Rhodes University. This article was first published by Sacsis.