A lawyer has told the Farlam commission that the surviving miners and the families of the deceased should have a fair chance to present their cases.
The families of the miners who died in Marikana last year need to know the truth about what happened, the high court in Pretoria heard on Wednesday.
This would never happen if their surviving colleagues did not get an equal opportunity to put their case to the Farlam commission of inquiry, lawyer Dumisa Ntsebeza said.
The miners wounded and arrested at Marikana have brought an application for state-funded legal representation at the Farlam commission of inquiry into the circumstances surrounding the deaths of 44 people there last August.
The police shot dead 34 mostly striking workers, wounded 70 and arrested 250 at Marikana on August 16 2012. In the preceding week, 10 people died, including two police officers and two security guards.
The application is supported by the families of the deceased and the Association of Mineworkers and Construction (Amcu).
Dali Mpofu, for the wounded and arrested miners, has temporarily withdrawn from the inquiry because of a lack of funding, pending a review application to set aside the minister of justice and Legal Aid Board's decision to refuse state funding to the miners.
Dead entitled to dignity
In July, the high court dismissed an urgent application by the miners for interim funding so they could be represented at the inquiry pending the outcome of their review application.
On August 19, the Constitutional Court refused them leave to appeal this ruling because the main issue had not yet been decided.
Ntsebeza, for the families of the deceased, submitted on Wednesday that the decision not to grant state-funded legal aid to the survivors was irrational and an affront to the rule of law.
He said even the dead were entitled to dignity and had the right not to be maligned in their character.
Ntsebeza said some of those killed on August 16 last year had been maligned by a so-called Mr X – a key witness in the state's case at the inquiry – in a sworn statement.
The surviving miners and the deceased's families should have a fair chance to put their version for the commission to weigh up if the allegations were true, he contended.
"The victims who were killed should be allowed to state their case through those who are still alive. Without them, the families will be kept in the dark about what had really happened to their loved ones," he said.
He submitted that President Jacob Zuma should have made provision for the indigent and poor miners to fully participate and to be legally represented when he established the commission.
'If they win the lottery'
Mpofu said the miners had been denied the right to a fair public hearing and that the decision was therefore unconstitutional.
"The only reason why the applicants have one unpaid representative is because they can't afford more.
"Given half a chance, if they win the lottery or something, they might be in the same position [as the police]," he said.
"The only distinction between them and the police is their class. The court will be given a plethora of justifications ... but inequality is inequality.
"This is a matter that necessitates the president to act in the national importance," he said.
Mpofu said that without the miners' input, the commission's only function would be to "whitewash the police".
"The applicants want legal representation, but they can't afford it because they are semi-literate and poor.
"If this was a football game, the applicants are being asked to play off the field, with one person on one side and seven on the other side.
"What's the point of spending R120-million on something that's not worth the paper it's written on because it will become a one-sided sham?" Mpofu asked.
The application continues on Thursday before Judge Tati Makgoka. – Sapa