Advocate Dali Mpofu.
Despite the Constitutional Court dismissing a leave to appeal application by lawyers representing the 259 arrested and injured Marikana miners at the Farlam commssion of inquiry for state funding, Association of Mineworkers and Construction Union president Joseph Mathunjwa was defiant that money would be raised, if need be.
Speaking on the steps of the Constitutional Court in Braamfontein, Johannesburg, Mathunjwa told the Mail & Guardian that, if need be, "we will take second bonds on our houses" and go to the streets to raise money to ensure workers are represented at the Farlam commission.
"We will not fold our arms and allow this commission to give us a half-baked truth [without the miners' being represented]," he said. "This is a democracy and we – the miners and the rest of the country – deserve the truth."
A potential donor was still deciding whether to fund lawyers, the Farlam commission heard on Monday.
"The final decision of the possible donor will be made tomorrow [Tuesday]," commission chairperson retired judge Ian Farlam said.
Farlam said this was not the end of the road in terms of the funding issue.
The M&G understands that collections for the legal fees have already begun with buckets for donations being passed around at Friday's one-year anniversary memorial service for the 34 miners who were killed by police at Marikana on August 16.
Funding
Mathunjwa was scathing of government's decision not to provide funding for the arrested and injured miners – several of whom have alleged torture by police during their detention – and questioned its motives to obfuscate the truth in doing so: "Clearly government finds itself guilty which is why it wants a half-baked truth to come out of the commission," he said.
Radebe's department had refused to pick up the costs as it could find "no legal framework through which government can contribute to the legal expenses of any of the parties who participate in the commission of inquiry".
The Legal Aid Board had denied funding to the miners' lawyers on the grounds that its policy documents did not provide for it to fund legal expenses incurred at commissions of inquiry and that it was "under severe budgetary constraints".
The Constitutional Court ruling follows on the North Gauteng High Court's July decision not to order President Jacob Zuma, Justice Minister Jeff Radebe and the Legal Aid Board to cover the legal costs of the miners. While the high court had dismissed the application for interim relief, a main application to review the decisions by the Legal Aid Board and the minister is still pending in the high court.
Lawyers acting for the miners had initially secured a six-month funding from the Raith Foundation but this had run out after the Farlam commission was extended past its initial four-month period. It has now been running for eight months.
Noting that it was not well equipped to deal with urgent matters in general, a unanimous Constitutional Court also underlined that "this difficulty" becomes "more acute" when the appeal relates to a temporary order.
The court found that there were only three provisions in the Bill of Rights that "explicitly entitles someone to claim legal representation at state expense" – none of which applied to the applicants.
Not a criminal trial
"One provides that a child has the right to have a legal practitioner assigned to him or her by the state at state expense in civil proceedings affecting the child, if substantial injustice would otherwise result.
"Another is that everyone who is detained has the right to have a legal practitioner assigned to him or her by the state at state expense, if substantial injustice would otherwise result.
"The third is that every accused has a right to a fair trial, which includes the right to have a legal practitioner assigned to him or her by the state and at state expense, if substantial injustice would otherwise result. These do not apply here."
The court also said that the Farlam commission was not a civil or criminal trial.
The applicants also alleged infringements on the constitutional rights to access courts (section 34 of the Constitution) and equality (Section 9) "and by relying on general considerations of fairness" with regard to the Farlam commission proceedings.
The court found that Section 34 deals with disputes "that can be resolved by the application of law". The commission's findings, according to the judgment "are not necessarily to be equated to a resolution of legal disputes by a court of law".
Struggling
Noting that the state and Lonmin "are able to afford the huge legal fees involved", while the miners' lawyers have struggled with funding as the commission has dragged on, the court ruled that "it is open to the president to search for the truth through a commission. The truth so established could inform corrective measures, if any are recommended, influence future policy, executive action or even the initiation of legislation."
"A commission's search for truth also serves indispensable accountability and transparency purposes. Not only do the victims of the events investigated and those closely affected need to know the truth: the country at large does, too. So ordinarily, a functionary setting up a commission has to ensure an adequate opportunity to all who should be heard by it. Absent of a fair opportunity, the search for truth and the purpose of the commission may be compromised.
"This means that unfairness may arise when adequate legal representation is not afforded. But this does not mean that courts have the power to order the executive branch of government on how to deploy state resources.
"And whether the desirable objective of 'equality of arms' before a commission translates into a right to legal representation that must be provided at state expense is a contestable issue," the court ruled.
The court also noted that provisions of the Legal Aid Board Act "have not been challenged as constitutionally invalid, nor has the refusal by Legal Aid South Africa to grant the applicants legal aid been challenged on review".