Judge Joseph Takalani Raulinga last week dismissed an urgent application for funding brought by the legal team representing over 270 injured and arrested miners at the Farlam commission of inquiry.
The missing judgment, handed down in the North Gauteng High Court on July 18, hampers the miners' continued participation in the commission as their attempts to file a speedy appeal with the Constitutional Court have been curtailed.
The Farlam commission is looking into the deaths of 44 people during a strike at the Lonmin platinum mine in Marikana between August 9 and 16.
Last week, Raulinga dismissed the application brought by advocate Dali Mpofu's legal team on behalf of his clients, on the basis that the right to state funding was not absolute, regardless of the fact that the mineworkers were genuinely indigent. Mpofu leads the legal team representing the arrested and injured miners at the commission.
The application was primarily opposed by the presidency and minister of justice and constitutional development.
Interim funding hasn't materialised
Mpofu's team has been further hamstrung by the fact that no interim funding has materialised, despite the expectation, which resulted in a three-day postponement of the commission earlier this week. The miners' lawyers were not party to the proceedings when they resumed on Thursday.
Andries Nkone, an attorney on Mpofu's team, said they were told by Raulinga's clerk that the judgment was not ready and Raulinga was currently in Venda. "Constitutional Court judges cannot express themselves until such time, as they have observed his judgment and can analyse how he reached the conclusion he did."
Nkone and his colleagues had initially launched an application for the commission to be postponed until August 19 while they appealed Raulinga's high court judgment. The application was not successful.
On July 18, the day Raulinga's judgment was handed down, Mpofu expressed the urgency with which his team sought a copy of the judgment. When Raulinga explained that he needed to finalise the judgment before disseminating it, Mpofu asked for a transcript in the interim – but the team has not been able to access it.
Teboho Mosikili, director litigation at the Socio-Economic Rights Institute of South Africa – representing the Association of Mineworkers and Construction Union and some of the deceased's families – said they had pulled out of the commission in solidarity, pending interim funding for the miners or a successful Constitutional Court appeal.