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12 Sep 2014 00:00
Miners' families protest at a Marikana site inspection by the Farlam commission. The families now have legal representation. (Delwyn Verasamy, M&G)
It should have been a day spent arguing important principles involved with ensuring equality in legal representation before the Marikana commission. But this week’s hearing at the Supreme Court of Appeal was aborted: five judges due to hear the matter declined to consider the case that raised the problem.
Though the appeal was dismissed – the court will give reasons later – the issues at the heart of the dispute remain: how to ensure that the voices of poor people, directly affected by a commission of inquiry, will be properly heard; and who should be responsible for providing the money when legal representation is required.
The dispute began when Legal Aid South Africa, faced with applications for assistance with representation at the commission, decided to make an exception to normal policy and fund representation for the families of miners killed in the massacre.
Other members of the miners’ community were refused Legal Aid-funded representation, however, mostly on the grounds that the commission’s mandate was to “investigate”.
If prosecutions or civil action arose from the commission, affected miners could apply for funding at that point, said Legal Aid.
Unhappy with this decision the miners approached the high court, claiming that it was unfair and irrational for legal aid to be granted to some of the affected community but not others.
Unfair discriminationJudge Tati Makgoka of the Pretoria high court found in October last year that it had indeed been arbitrary and unfairly discriminatory for Legal Aid to distinguish between the groups that applied for legal representation before the commission.
Legal Aid has since structured a contract with the miners’ lawyers to fund legal representation for the rest of the commission’s term.
At the start of the appeal proceedings this week Legal Aid counsel Gilbert Marcus SC said there were important principles at stake on which the organisation needed clarity from a higher court. But, he assured the judges, his client had “no intention of closing the tap” of legal funding, regardless of the outcome of the appeal.
Among those resisting the appeal is the family of John Ledingoane, a miner killed by the police at Marikana. His family, represented by the Legal Resources Centre, supported the claim by miners to be represented at the commission, but made the point that historically the poor were not enabled to play a meaningful part in commissions of inquiry in South Africa.
During the apartheid years some commissions were intended to justify aspects of state behaviour, perhaps how the police acted against particular sectors of society. And although the police were represented at such inquiries through lawyers paid for by the state, no provision was made for the other side of the dispute to be represented. Certainly there was no thought that the state should pay for them to be heard.
Ongoing challengesThe nature of commissions has changed since then, but important challenges remain. The poor and vulnerable “continue to be left to their own devices”, said the Legal Resources Centre. Organs of state still wield enormous influence in commissions through “overwhelming firepower” provided at the expense of taxpayers. And the whole structural design of commissions of inquiry in South Africa continues to be stacked against the poor and vulnerable and weighted significantly in favour of the rich and powerful.
The centre cites the Canadian guide for judges appointed to head commissions of inquiry: commissioners may recommend to Cabinet that funding be provided to ensure that any person granted standing at the inquiry can participate appropriately, if the commission is of the opinion that the person would not otherwise be able to participate.
How should South Africa enable “poor and vulnerable” people with a crucial role to play in a commission to participate? Should there be a process in terms of which they can ask government directly for a legal representation grant?
Should the government setting up a commission provide enough funds to the inquiry so the commission can itself ensure legal representation? Or should the state make an extra grant to the national legal aid body so it can make the arrangements?
Clearly these questions were not in the mind of government when it appointed the Marikana commission.
Public fundsThe team of advocates representing the police at Marikana costs the taxpayer R3-million a month, and that’s without the private attorneys’ firms on the police team who are also paid by the public. But at the time of last year’s high court application on funding, the state told families they shouldn’t knock at the door of the executive. Instead they should ask Legal Aid for help.
According to an affidavit by Patrick Hundermark, chief legal executive of Legal Aid, however, their budget was cut by R64-million in the 2012-2013 financial year.
He says Legal Aid’s priorities are children affected by civil and criminal cases where substantial injustice would otherwise result, detained persons and people charged with crimes, and women, especially those involved in family cases.
Hundermark said Legal Aid receives no special funds for commissions of inquiry. If Legal Aid pays for representation at commissions the money must be diverted from other cases.
Legal Aid is squeezed on both sides: the clients it serves with its annual budget are poor and vulnerable, yet so are those who seek legal representation at Marikana.
Compromise has been reached about funding legal representation for miners and families of those killed by the police, but, said Hundermark, Legal Aid is concerned about the consequences if the high court judgment is allowed to stand.
Legal certaintyMarcus told the court it should agree to hear the appeal because Legal Aid needed certainty: the high court’s interpretation of the Constitution would open the way for many other applicants who want funding for matters other than trials.
He said representation could well be sought for other forums – at inquests or inquiries held under mining laws, for example – and the organisation should not be obliged to fund legal representation in such cases.
Legal Aid is still considering whether to take the matter to the Constitutional Court for a final decision. But whether the matter makes its way there or not, the problem of who should fund “community” representation on commissions won’t go away.
There’s an additional conundrum for Legal Aid: Hundermark said if the high court judgment was allowed to stand, with its broad interpretation of the constitutional right to representation, it means the courts are permitted “to determine how we can spend our budget at Legal Aid”.
“Then if we have made no provision for unforeseeable, additional expenses ordered by a court, the organisation becomes unsustainable. And we are accountable for exceeding the budget, though through circumstances beyond our control.”
ModificationsHe said that Legal Aid’s 2014 guide book has been modified in the wake of the Makgoka judgment and now includes a clause with a procedure rather like that in Canada: where the authority establishing a commission provides funding for representation, Legal Aid will administer it.
He also speculated about possible amendments to legislation under which commissions were established.
Given the appeal court’s decision not to hear the matter, the central question still remains: Is there indeed a constitutional obligation for legal representation, when appropriate, at commissions of inquiry? And if so, then on whom must this obligation fall?
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