Mineworkers are angry that they have had to resort to the courts to try to persuade the state to pay for their independent legal representation at the Farlam commission of inquiry, which they describe as a "sham".
An urgent interdict was heard this week after it was brought by about 300 mineworkers who were injured and arrested in Marikana on and around August 16 last year, when police shot dead 34 striking mineworkers.
Angry mineworkers interviewed by the Mail & Guardian this week said the state has not contributed a cent toward their legal representation, but it has footed the bill for a heavyweight legal team to represent the police.
The M&G was informed that the team of lawyers representing the victims at the commission have received no funds from the Legal Aid Board or from the state since the commission started in October last year. Instead, they had to rely initially on limited funding from the Raith Foundation, which provides assistance to those seeking social justice but are no longer able to retain their legal team.
The case was set down for two days this week in the North Gauteng High Court in Pretoria. A ruling had not been made at the time of going to press.
In their court application, the mineworkers claim the state paid for the services of legal representatives at the commission for police commissioner Riah Phiyega, Police Minister Nathi Mthethwa and the South African Police Service.
Mthethwa's spokesperson, Zweli Mnisi, confirmed that the state is paying for the minister's legal representative to be present on a watching brief at the commission, and advocate Ishmael Semenya has been hired to represent the police.
Before the court case got under way, one of the affected miners, Tholakele Dlunga, told the M&G that the government is playing a game and hiding "under the same blanket as the National Union of Mineworkers".
"If they want to disband the commission, they must just come out in the open and disband it, because their [the government's] one-sidedness is blatant," said Dlunga.
He was one of the miners arrested and allegedly tortured by police last year after the Marikana massacre. Although he is still expected to testify at the commission, he recently moved house as he fears for his life.
The government wants the mineworkers, and not the police, to be held culpable for the killings, as it is concerned about the upcoming elections, said Dlunga.
The mineworkers' interdict was lodged against President Jacob Zuma, Justice Minister Jeff Radebe, Legal Aid South Africa and the Farlam commission of inquiry, but the state opposed the matter, which has fuelled the discontent of the miners.
Another mineworker, who asked not to be named for fear of victimisation, said it is hard to see any resolution coming from the commission. Miners are concerned that police implicated in the murder and torture of mineworkers have not been suspended. "Government wants the lawyers to throw in the towel at a point where nothing has really been discovered," said the miner.
Mzoxolo Magidiwana (24), the face of the mineworkers' class action, outlined in his affidavit to the court why it is imperative for the mineworkers to have their own legal representation at the commission.
A Lonmin miner, Magidiwana said many of the workers who were arrested or injured following the Marikana massacre will face murder and related charges after the commission wraps up in October.
Three legal firms have teamed up to represent the miners in both the commission proceedings and the criminal proceedings that will follow, he said. Attorneys have also been instructed to initiate civil proceedings for damages the workers claim to have suffered, such as bodily injuries, unlawful arrest and detention, and assault in custody – claims that are directly linked to the outcome of the commission.
Most applicants in the class action are poor migrant workers with average monthly earnings of R4 000.
The miners dispute Phiyega's version that the police acted in self- defence and that they were legally entitled to use maximum force.
"It is essentially the resolution of these contrasting versions of the police and the victims which lie at the heart of the task facing the commission," said Magidiwana. "If either one of these versions is not properly and professionally asserted at the commission, its intended purpose will be rendered nugatory."
As well as paying for senior counsel to represent the police commissioner and the police minister, he claimed the state had also picked up the tab for legal representation for the families of slain police officers and for the department of minerals and energy.
Attorney Muzi Msimang, who is part of the legal team that represents the mineworkers alongside advocate Dali Mpofu, said claims that lawyers were seeking financial gain were unfortunate. "You just have to look around at all other legal teams at the commission to see how unfair it is," said Msimang. "The way these people expect poor people to go without legal representation is not right. I cannot go and get another advocate because we have no money. When Dali [Mpofu] was robbed and viciously attacked, during that period we were left without an advocate. Most of the other teams have three advocates, and they just bring in another one. Why would the minister of police, when he is not even there, get a senior advocate to do a watching brief if it was not necessary?"
Although the commission has an impressive line-up of evidence leaders, the fact that the mineworkers' legal team might have to withdraw if it does not get funding is causing enormous stress to the victims. This is understandable, said Msimang, as the state is "pouring in" money for other parties, including the police.
The life span of the commission, headed by retired judge Ian Farlam, was recently extended until October and may have to be extended again.
Commission spokesperson Tshepo Mahlangu denied that the integrity of the commission is at stake. "We live in a democratic society where everybody has the right to legal representation," said Mahlangu. "But our legal team of evidence leaders is there to represent the interests of all parties. The commission will abide by the court's ruling on the matter."
Dlunga and the other miners said it is imperative that they have the protection of their own lawyers as they face a nightmarish legal and emotional battle.
"How can they not fund our lawyers when they pay all the police lawyers?" Dlunga asked. "They just want them [the miners' lawyers] to give up. We've been thinking about a plan, that maybe they can draw money from our salaries because we are all employed. So we still have hope. But if the government abandons us, they must not think they can enter any mine.