Having already forked out R330 million to settle claims lodged by victims of the 2012 Marikana massacre, the State is now battling a new headache after the issue of constitutional damage has been raised.
The new legal fight was brought to the public's attention on Thursday by Solicitor General, Fhedzisani Pandelani when he gave an update on the progress the state has made regarding litigation cases and settlements related to the tragedy.
The Marikana tragedy happened on August 16, 2012, on the mountain of Kopi in the North West, where the police killed 34 striking Lonmin miners.
The workers were demanding a minimum wage of R12,500 from the British mining giant.
Prior to that, 10 other people were killed during the widespread violence that raged in the area before police moved into the mountain to disperse the striking workers and ended up killing 34 of them.
According to Pandelani, the settlement government has made is for loss of support by family members of the killed miners, the killing incidents, police assaults, gunshots, arrests, and detention related to the Marikana incident.
In the main, Seri (Socio-Economic Rights Institute of South Africa) represented 36 families, the Wits Law Clinic represented one family, and the rest were represented by different private law firms.
Out of the 36 represented by Seri, two families are yet to be settled because they have not been located.
Despite all this, Pandelani said the state was facing a new challenge as Seri now wants to claim for constitutional damage, something they had never heard of in South African law.
"The aggregate total amount is three hundred and thirty million, four hundred and forty-five thousand, six hundred and thirty rands and thirty-seven cents (R330,445,630.37)."
"And these has been disbursed to the legal representatives mentioned above, that is the figure that in fact appears on record, that is the figure that has been audited, that’s the figure as we speak right now,"; he said.
Coming to the new battle with Seri, he said what they are claiming for is something new in South Africa, and it may have to be determined by courts as if they settle, they could be accused of abusing taxpayers' funds.
"A new concept, as the matter stands now, has been introduced, which is constitutional litigation, which was not existing at the time when the incident happened.
"We are finding a situation where you are applying the law retrospectively, and we need to get instructions from the South African Police Service and everybody.
"And we are actually having to deal with this issue of what is this issue of constitutional litigation, why was it not pleaded when the matter started," he added.
Pandelani stressed that until the court has dealt with the matter, their hands are tied, and he believes that they have done enough to settle the Marikana claims.
Later during the press briefing, he said Seri was even bringing in new people who are now claiming that they were dependants of those who died in Marikana, and that it is not easy for them to even verify that claim.
"Having settled R71 million and those cents, and this is what SAPS says, it’s a second bite of the cherry, this is what we are told.
"So, what are you doing? You hoodwink us to pay R71 million, and after we have paid R71 million, you come back and say the 34 families are saying we must pay more.
"This is a very serious issue," he said.
IOL Politics