Advocate Dali Mpofu and his legal team appeared to be at their wits’ end this week, pleading with the Marikana commission of inquiry not to proceed without them – the legal representatives of injured and arrested mineworkers.
He warned the investigation would centre around “Money-kana” if it was not postponed to allow time for the team to secure further funding.
The protracted inquiry has seen costs run into tens of millions of rands and the state and Lonmin appear to have deep enough pockets to keep on funding top-notch lawyers. But Mpofu’s team has run out of funds and explored nearly every avenue – from applying to Legal Aid South Africa to requesting both the high and Constitutional courts to compel the government to foot the bill – with no success.
At the moment, the commission is continuing without representation for the injured and arrested mineworkers. Representatives of the families of the deceased and the Association of Mineworkers and Construction Union (Amcu) have also withdrawn in solidarity. At present, any witness called to testify is done on the basis of a detailed written statement and short oral evidence.
Mpofu told the commission on Thursday that a group called Citizens for Marikana would try to help to raise money. He also said that, at a Rustenburg ceremony marking the first anniversary of the Marikana massacre on August 16, miners passed around a bucket for contributions towards their legal fees. The money was mostly in coins and came to a total of R17 201.
But the involvement of Mpofu and his team and the issue of their legal fees has recently been criticised.
In an opinion piece on the matter that was published on several platforms, Nathan Geffen, editor of the community journalism project GroundUp, firstly criticised Mpofu for somehow placing himself at the forefront of media attention covering the commission and, secondly, found it “striking” that Mpofu has not worked free of charge for the miners.
“We were approached during the criminal cases to represent the injured and arrested miners,” said Henry Msimang, a partner of the legal firm Maluleke Msimang and Associates, which is representing the 270 arrested and injured miners and whose team is led by Mpofu. “No one envisioned there was going to be a commission of inquiry.”
The firm took on the criminal cases pro bono and, when the commission came into being, the miners asked that they continue to represent them, he said. It was at this point they realised they would need to seek funding, which has not been easy.
First, they turned to Legal Aid South Africa, which opposed their application for funding as “both the Legal Aid Act and the Legal Aid Guide provide for legal aid in respect of criminal and civil court proceedings … As commissions are not provided for in our enabling legislation, we are not funded to provide such services,” it said in a press statement.
The legal firm later received R2.8-million emergency funding from the Raith Foundation for the period October 1 until December 31 2012. The foundation, which also funded the Legal Resources Centre (LRC) and the Socio-Economic Rights Institute of South Africa (Seri) to a lesser extent, did not respond to repeated requests for comment but has previously said its grant stipulated “rates for advocates and attorneys comparable to those approved by Legal Aid South Africa”.
Legal Aid South Africa said these rates were between R11 000 and R17 000 a day for a senior advocate.
Mpofu said this was in line with what the foundation had stipulated.
The LRC, which has also pulled out of the commission’s proceedings until the mineworkers are represented, provided the hours billed by its advocate, George Bizos, to the Mail & Guardian, showing a total of 724 hours since October 1 last year, with a total amount of R239 342 (about R330 an hour).
Mpofu and his team have often said they had to dig into their own pockets to fund the case before and after funding from the foundation and “I could never be fighting to be paid legal aid rate”, Mpofu told the M&G. “I could be sitting in my office and earning more than that.”
He also said fees would be open to negotiation should a funder come forward.
The other issue is the number of advocates, he said. “We are down to one advocate. The other side, the police and Lonmin, have 12.”
Msimang said the question of funding has thrown so many things into the mix.
“At the end of the day we have been called names for coming in to help … If any other person thinks they can represent the miners, approach them, stop pointing fingers at me, who has at least helped.”
Teboho Mosikili, the director of litigation of Seri, which represents Amcu and 34 families at the commission and is a co-applicant in the request for a postponement, said those representing the injured and arrested miners could not also represent the families of the deceased as there would be a conflict of interest.
“Are there advocates out there who are prepared to work for a year for free? No one has done that, no one has said I’m prepared to take over,” Mosikili said.