Law as an Aesthetic Response to Truth-finding: Resistance at the Marikana Commission of Inquiry

This paper contends that the Marikana Commission of Inquiry can be considered a post-transitional justice moment for South Africa, following a historic pattern of heavily legalised truth-finding mechanisms in South Africa. Such legalistic truth-finding mechanisms historically prioritise fact-finding, evidence-gathering and deeply individualised (as opposed to structural) findings; critics and commentators have observed that this provides a particularly narrow kind of justice, and in some cases, very little justice at all. While law is often seen as the enabler of such narrow attempts at truth-finding after atrocity, this paper attempts to reconsider the role of law in truth-finding after atrocity. This paper will suggest that law could be viewed as an aesthetic, rather than legalistic, act. By viewing law in this fashion, law becomes more than an agent of repressive legalism – it can be seen as a tool of subversive resistance. Taking cognisance of law-as-resistance from South Africa’s historical record (including instances such as the 1956 Treason trial and the 1963 Rivonia trial), this paper suggests ways in which law-as-aesthetic resisted the legalistic restraints imposed by the Marikana Commission of Inquiry, and exposes gaps and silences that legalistic procedure conceals. This paper investigates how law-as-aesthetic could become a subversive force countering law-as-legalism in the pursuit of truth-finding after atrocity.