Farlam commission on hold as miners take funding request to ConCourt

Retired Judge Ian Farlam. (Gallo)

Retired Judge Ian Farlam. (Gallo)

Judge Ian Farlam's decision to stand down was in order to allow for lawyers representing the injured and arrested miners to file papers at the Constitutional Court. 

Lawyers for the miners, represented by advocate Dali Mpofu asked Farlam to suspend the commission's proceedings pending the application on Monday, arguing that the issue of funding needed to be resolved before the commission could proceed. Mpofu wanted the commission to postpone until August 19. 

But advocate George Bizos of the Legal Resources Centre, which represent the Benchmarks Foundation, told the Commission that the issue could be resolved as early as Thursday. Farlam agreed to that postponement. 

The Marikana injured want the state to fund their legal representation at the commission. 

The state is already funding the police’s legal representation at the commission, and lawyers for the injured miners have argued that, as indigents, they are unable to compete with the millions of rands available to the state and Lonmin for legal representation.

The commission is investigating the events leading up to and including the murder of 34 miners at Marikana last year.

Last Thursday, the North Gauteng High Court dismissed an application brought by the injured and arrested miners, to force Zuma and Radebe to compel Legal Aid South Africa to fund their application.

The Mail & Guardian understands that the applicants are still waiting for a written version of Judge Joseph Raulinga’s judgment to be provided to them, so that they can file papers at the Constitutional Court.

Adjournment
Meanwhile, the Farlam commission will be asked to adjourn until the Constitutional Court application is heard.
If Farlam decides not to adjourn the commission, the status quo is likely to remain, with the families of the injured and deceased miners and their legal teams absent from the commission’s proceedings.

During last week’s application, Legal Aid SA argued that it was not compelled by policy to fund victims represented at commissions of inquiry. Additionally, it said, if it were to fund the victims appearing at commissions of inquiry as well as indigents who are charged in criminal cases, it would be doing so at the expense of other cases.

But the applicants argued this was a moot point: the R70-million set aside to finance the Farlam commission was not available until the Marikana massacre necessitated that it be made available, for example.

The application included the witness statement of a 24-year-old miner at Lonmin who was shot seven times on August 16.

The applicants provided the court with his medical records, which prove that he was shot once in the back, and that he was treated for hypothermia shortly after the shooting.

Victim testimony
The miner’s startling version of events includes his arrest and hospitalisation under police guard:

“The gunfire stopped for a while. Shortly thereafter, I could hear the voices of policemen approaching the place where most of us had fallen.

“When they got to me, I was shot again several times from close range while I was on the ground. I sustained further shots in my abdomen. The last shot caught my testicles and caused some severe injury.

“I pleaded with the police to rather kill me and I told them my name so that they could help my relatives to identify my body.

“One of the policemen said I was going to die anyway and there was no further need to finish me off. The policemen were busy laughing at us and taking pictures with their cellphones. Others were kicking the bodies.”

The miner said he was saved by a policeman who took pity on him, telling the other policemen that “this is a child”, and called an ambulance. The miner remained, in a coma, in hospital, under police guard, for several weeks.

New developments
Several new developments were revealed in the application:

  • That the Farlam commission of inquiry is highly unlikely to complete its work by October 31 this year. The applicants estimated that at the commission’s life will need to be extended by at least one or two more terms;
  • That the witness list is likely to be extended to include more witnesses from among the injured to rebut some of the police witnesses’ testimony; 
  • Several witnesses still have to be called, including government ministers and ballistics experts.
  • The extension of the commission is likely to severely hamper the legal teams representing the miners, who have already depleted their available funds.

But the court application was filed as a last resort, lawyers for the injured argued in court papers.

Said the applicants: “Despite being repeatedly requested to do so, the South African state, in its various guises … has failed and/or refused to assume any responsibility for the legal costs and fees association with the presentation of the victims at the commission.”

Lawyers for the injured miners first approached government for funding in October last year. A timeline of their communication with government reveals that on:

  • October 10 2012: The applicants wrote to Zuma and the Justice Minister asking for state funding.
  • October 15 2012: The applicants wrote to the Legal Aid Board, requesting financial assistance.
  • October 18 2012: Legal Aid South Africa responded, rejecting the application.
  • December 2012: A follow-up letter was sent to the president and the justice minister. Receipt of both letters was acknowledged, but they were not responded to.
  • March 14 2013: Radebe responded to the request. Essentially, the request was rejected because there was no “framework” allowing for it.

Application dismissed
Raulinga dismissed the application for funding – but placed the ball back in government’s court, noting that “nothing prevents the parties from settling this out of court”.

Centrally, Raulinga said it was the prerogative of the executive to decide how to fund commissions. 

Additionally, he said there were outstanding issues, related to the private funding of the applicant's legal team, which had prejudiced their argument. But the team, represented by Mpofu, said the private funding obtained had only covered a fraction of the costs incurred thus far. Additionally, the application did not ask the State to cover the private funding obtained thus far. 

Raulinga also said the miners' right to legal aid was not absolute. While they were entitled to legal representation, Raulinga said he remained unsure about whether or not this should necessarily be at the state's expense. 

Sarah Evans

Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics.  Read more from Sarah Evans

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