Legal Aid: Marikana funding not constitutional imperative

Lawyer Dali Mpofu, who brought the urgent application, has argued that the miners are entitled to legal representation at the State's expense. (Skyler Reid, M&G)

Lawyer Dali Mpofu, who brought the urgent application, has argued that the miners are entitled to legal representation at the State's expense. (Skyler Reid, M&G)

This is according to a lawyer for the Legal Aid Board.

"The Legal Aid Board does not receive funding for commissions. The general policy of the Legal Aid Board is not to [give funding in the case of a commission]," Lukas van der Merwetold the High Court in Pretoria on Friday.

Lawyer Dali Mpofu, who brought the urgent application, has argued that the miners are entitled to legal representation at the State's expense.

Mpofu, who is representing the miners at the hearings of the Farlam Commission of Inquiry, wants President Jacob Zuma and Justice Minister Jeff Radebe to approve payment for the mineworkers' legal team.

The Farlam Commission is investigating the circumstances surrounding the deaths of 44 mineworkers in strike-related violence in Marikana, North West, in August.

Van der Merwe said on Friday that exceptions could and had been made before, but only in particular circumstances. These exceptions were a deviation from policy.

Particularly vulnerable
One of those exceptions was when the board gave money to the families of those who died at Marikana.

They were a particularly vulnerable group which had, in most cases, lost a breadwinner and the funding was for only a limited time, he said.

Van der Merwe said this exception did not make the practice a constitutional right.

"It is not an issue which can entitle the applicant to the same constitutional rights."

On Thursday, Mpofu proposed that, as the court proceedings were unlikely to conclude by the end of the week, interim relief be granted, so as not to interfere with the commission, which is due to resume on Monday.

Van der Merwe argued that the request be dismissed.

He said if it was granted and it was then later decided not to grant the application, there would be no way to get the money back.

Substantial injustice
He also said Mpofu and his team did not deal with the interim relief in the court papers.
It was added as an amendment on Thursday.

He said if the request for interim funds was granted, it would have a final effect.

"There would be no manner in which the parties can be restored to where they were before the order."

He said the Legal Aid Board could give funds only where substantial injustice would result if it did not, as in criminal cases.

However, a commission did not have a final binding effect. It had to make recommendations, but could not convict anyone.

He said he understood that the findings of a commission could prejudice people.

"But a commission cannot result to substantial injustice on an individual," Van der Merwe said. This could happen only in court.

The Legal Aid Board said it had to refuse the miners' application because of the statutory mandate within which it had to act.

"It is acting within its statutory mandate in refusing the application," Van der Merwe said.

The matter was postponed until 3pm on Saturday. – Sapa

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