/ 20 September 2013

The price of justice puts Marikana lawyers in a tight spot

Advocate Dali Mpofu.
Advocate Dali Mpofu.

Last week, the nation's pre-eminent political cartoonist and commentator drew an excoriating depiction of Dali Mpofu SC, in effect accusing him of greed in refusing to continue his representation of a significant group of persons affected by police conduct at Marikana. This cartoon, which condemns Mpofu to history (such is the reputation of Zapiro cartoons), prompted a barrage of virulent criticism of the cartoonist by those supporting Mpofu.

The debate about legal fees for lawyers representing interested parties at the Marikana commission of inquiry has illustrated deep divisions. Nathan Geffen, one of the heroes of the struggle for proper treatment of those living with HIV and a doyen of progressive civil society, questioned the conduct of lawyers such as Mpofu in an op-ed piece, which in turn elicited much Facebooking and Twittering critiques as well as an exchange in the pages of Business Day between Geffen and Jackie Dugard of the Socio-Economic Rights Institute about the fees charged by lawyers.

This controversy raises important questions of public interest, although none of these exchanges would have taken place if the government had acted by respecting the victims of the Marikana tragedy and ensuring adequate funding for their legal representatives.

But government's unforgivable intransigence, lack of respect for the victims and mean-spiritedness aside, what is the ethical responsibility of lawyers faced with a problem of lack of funds midway through so important a process? That is, given that funds have dried up midway through the Farlam inquiry, is it preferable to withdraw from the inquiry and campaign for funds or soldier on as the inquiry progresses, thereby ensuring that a critical constituency has a voice?

The answers to these questions requires some context. The inquiry is not a criminal trial. Critics of its slow progress to date have correctly pointed out that Judge Ian Farlam could have adopted an inquisitorial model, which would have removed much of the long-winded cross-examination by endless teams of lawyers. He would then rely on his very experienced and able team of evidence leaders to achieve the objective of the commission, which is primarily to determine the cause of the deaths at Marikana.

That would reduce the role of the balance of the lawyers present at the inquiry and hence meet the argument used by Mpofu's defenders: that his clients are dependent on his cross-examination to ensure the truth. Commissions are different to criminal or civil trials. They are designed to produce a set of findings that can serve the public interest in a vital issue – in this case policing and responsible police conduct.

It follows from this objective that society's overall interest is fulfilled when findings emerge speedily. It is surely not in the interests of society at large or the victims that a comprehensive evaluation of police conduct on that fatal day remains unavailable to the country.

The other important fact is that the Mpofu team was granted R2.8-million by a foundation, with the possible extension of a further R2-million. It is said, correctly, that the lawyers briefed by the mining houses and the police have been able to access vast sums of money and that it is unfair that the victims' lawyers have been the subject of "starvation legal wages". Yet a fee of R17 000 a day is hardly a major sacrifice. How many earn R340 000 a month in this country?

There is something deeply disturbing about the absence of any debate about fees, in the context of the low incomes earned by most South Africans – including the miners whose desperate economic lot was at the root of the protests at Marikana. How can one complain about the huge salaries earned by the chief executives of mining houses compared with the wages of miners, but turn a blind eye to someone earning so significant an amount as a lawyer?

The defence against this critique concerns the fairness of the allocation of resources between the legal teams – and there is merit in it. But the precedent set by the struggle lawyers of the apartheid era is illuminating. A distinguished line of lawyers worked for, and defended, activists and civil society organisations through our racist past, and they were up against the limitless resources of the state.

Lawyers such as Arthur Chaskalson, Pius Langa, Zac Yacoob, George Bizos and Dullah Omar, to name but a few, did not stop working for their clients when the money dried up.

Defending people in rural places before aggressive magistrates and with security police harassment, over long periods, was part of the job – and because it was done with such dedication we have inherited a proud tradition. Sadly, today, that tradition counts for little.