A high court ruling ordering Legal Aid SA to pay the legal fees of Marikana massacre victims sets a precedent for future commissions.
Monday's high court judgment ordering Legal Aid South Africa to pay the legal costs of the Marikana massacre victims' representation at the Farlam commission of inquiry is an encouraging read that affirms the rights of vulnerable groups affected by commissions or courts.
It also reveals insights into the state's mindset, in that it views commissions of inquiry as exercises that are merely investigative in nature that present no immediate danger to the rights of those before it.
The high court in Johannesburg found on Monday that the state, through Legal Aid SA, has a constitutional obligation to provide legal assistance to the families of the miners killed at Marikana and the injured and arrested miners.
The court dismissed the case against the president and the minister of justice, and called the state's case "insensitive and heavy handed".
The court was at pains to point out that poor and vulnerable parties cannot simply be left to fend for themselves in "quasi-adversarial" situations such as the Marikana commission.
The outcome is likely to bring stability to the commission of inquiry, if Legal Aid SA does not appeal the judgment. The inquiry proceeded absent the families of the deceased and the injured and arrested miners while their fight for state funding played out in court.
'Heavy-handed and insensitive approach'
Judge TM Makgoka was cautious to point out on Monday that this finding did not apply to all commissions of inquiry, and that each inquiry should be viewed in its own context.
The court found that in this case – where the president, the minister of justice and Legal Aid SA had rejected the application for funding by the injured and arrested miners' lawyer, Advocate Dali Mpofu – the applicants were indeed entitled to state assistance.
In response, the state "downplayed" the importance of the applicants' participation in the commission, Makgoka said.
"Reduced to its bare essence, the totality of their argument is this: the applicants may participate if they wish – legally represented or not." The state said there are evidence leaders to assist the applicants and, if they don't participate voluntarily, they can be forced to testify by subpoena.
"This is an unfair, heavy-handed and insensitive approach concerning alleged victims of a police shooting," Makgoka said.
He compared the commission with the Truth and Reconciliation Commission (TRC), in that it is concerned mainly with the rights of the vulnerable.
Makgoka said the commission is investigating an incident, "which captivated the collective consciousness of our nation ... The shooting incident on August 16 2012 is the single most lethal use of force by the police against civilians of our country since the Sharpeville massacre in 1960 … Like the TRC, the Marikana commission is concerned, mainly, with the rights of the poor and the vulnerable". The participation of all those involved in the incident is therefore "essential".
'The search for truth'
"At the heart of the commission's mandate is the search for truth," Makgoka said. And like the TRC, the commission has committed itself to the values of truth, restoration and justice.
Therefore, Makgoka reasoned, the applicants' claim to state-funded legal representation should not be considered in the abstract, "but in its proper context.
"This is a state-appointed commission, tasked to investigate, among others, the conduct of the applicants, who admittedly cannot afford legal representation.
"The state, on the other hand, has marshalled a formidable team of experienced legal representatives. The consequences arising from the commission's findings include possible criminal prosecution for, among others, murder [with the concomitant possibility of life or long-term imprisonment]".
These factors call for fairness and equality of arms, locating the commission "squarely" within the ambit of section 43 of the Constitution, which gives everyone the right to access the courts and a fair trial.
The state argued that section 34 was not applicable to this case. It relied on Zondi vs MEC for Traditional and Local Government Affairs and Others, which held that section 34 "is an express constitutional recognition of the importance of the fair resolution of 'social conflicts' by partial and independent institutions".
Emasculate the commission
The state said there was no such dispute to be resolved by the commission, and went on to argue that the commission does not legally determine rights or impose any liability.
Instead, it sought to emasculate the commission by calling it "merely investigative in nature", as it is not a quasi-judicial tribunal or a court of law, and none of its findings can affect or threaten the rights of any individuals involved.
But Makgoka disagreed. He said the commission was "quasi-adversarial" and said its findings had enormous consequences for everyone concerned, even though the president was under no obligation to make its ultimate findings public.
And the "general proposition" (by counsel for the state) that the commission falls outside the scope of section 34 of the Constitution was "an over-simplification of a complex situation involving constitutional rights and a distinct possibility of those rights being adversely affected by the outcome of the commission".
Makgoka rejected the state's view that the applicants did not have a substantial interest in the outcome of the commission. Instead, their interest was twofold.
The applicants firstly sought to ensure that the criminal charges being pursued against them – the charges, including murder, were provisionally withdrawn pending the outcome of the commission – do not succeed. Secondly, the applicants want to protect their right to claim damages from the police.
"Considering the fact that it is common cause that it is the police who shot and injured them, the applicants' interests and those of the state are diametrically opposed."
An adverse finding against them would harm the applicants and so the implications of the commission's findings should not be regarded as inconsequential, Makgoka said.
The judge went on to affirm that the applicants are indigent, and dismissed out of hand any suggestion that they "should be left to their own devices".
"The fact that they are poor should never be a basis to summarily dismiss their potential substantial prejudice. It is unthinkable and deeply offensive to basic fairness, and the rule of law in a democratic state, that the poor and vulnerable be left to their own devices, in a manner which will deny them exercise of their constitutional right in terms of section 34 of the Constitution."
But the president and the minister were right in their submission to the court that no legal framework exists to allow them to fund the miners' case.
While Mpofu argued that the president and minister could fund the miners' case and could amend the commission's regulations to provide for state-funded representation, these were new arguments introduced in oral evidence, and the state did not have to answer these, Makgoka said.
Turning to Legal Aid SA, Makgoka said that while it already provided funding to the families of the deceased miners, the only question arising was whether its decision to differentiate between the two sets of victims was fair. Legal Aid SA granted funding to the families of the deceased miners, but did not do the same for the arrested and injured miners.
Legal Aid SA said in response to Mpofu's request for funding that the families had a "substantial proximate and material interest in the outcome of the commission".
This implied that the applicants did not have the same interest in the commission's outcome. "There is no merit to this assertion," Makgoka said.
Legal Aid SA said the applicants' unions would see to their interests, but Makgoka said it was "unjust" to assume that all the applicants belonged to either union. And Legal Aid SA said evidence leaders would assist the applicants at the commission.
But Makgoka said, "I do not think this submission is helpful. The evidence leaders, who are all admittedly competent and able counsel, have a particular role to play in a neutral manner. The evidence leaders cannot be expected to present the partisan interests of any party being investigated by the commission."
The case so far
Judge Joseph Takalani Raulinga dismissed "part A" of the application on July 30, which comprised the applicants bringing an urgent application for temporary relief for interim funding of their legal representation before the commission.
"The duty of determining how public resources are to be drawn upon and reordered lies in the heartland of executive government function domain. I can only grant such an [interim] order if there is proof of unlawfulness or fraud or corruption. I do not find any in this case. Therefore, I will not interfere with the power and the prerogative to formulate and implement policy on how to finance public projects and even how the applicants must be funded," said Raulinga.
They approached the Constitutional Court for leave to appeal that finding. On this "narrow" issue, and bearing in mind that it was not dealing with the merits of the applicants' case but only with the application for leave to appeal the dismissal of the urgent application, the court found that the applicants had not demonstrated why the high court's decision – that there was no unlawfulness on the state's part – should be overturned.
The Constitutional Court cautioned that its dismissal of the application for leave to appeal was not an attempt to usurp the role of a review court, or to anticipate the outcome of the main review application, which succeeded in the high court on Monday.
Mpofu's team amended this main application on September 5. In the event that the court found that Legal Aid SA was not obliged to provide funding in commissions of inquiry, the applicants wanted the court to find Legal Aid Act 22 of 1969 unconstitutional and invalid.
Legal Aid SA initially opposed this, but it later did an about-turn, conceding that there was no impediment in the act to Legal Aid SA providing funding in commissions of inquiry.
But the state still opposed the amendment to the applicants' notice of motion. The court granted the amendment, because "substance must triumph over form".