SCA orders Legal Aid to pay fees of Marikana miners
The Supreme Court of Appeal (SCA) gave reasons on Friday as to why it dismissed an earlier appeal by Legal Aid SA against a high court ruling ordering that it pay the legal fees of Marikana miners.
Judge Visvanathan Ponnan said in his judgment that, at the outset of the hearing of the appeal, counsel were required to address the argument related to a section of the Superior Courts Act 10 of 2013 on whether the appeal would have “any practical effect or result”.
After the SCA considered the argument on this issue, Legal Aid’s appeal was dismissed on September 8 2014 in terms of that section and each party was ordered to pay its own costs of the appeal.
“It was intimated then that reasons would follow. here are those reasons,” Ponnan said in the judgment.
The SCA found that since Legal Aid and the other parties had agreed to a settlement where it would provide the required funding for the full duration of the unfunded period of the commission, the outcome of the appeal would “be a matter of complete indifference” to Legal Aid.
On October 14 2013, Judge Tati Makgoka of the High Court in Pretoria set aside Legal Aid’s refusal to pay for representation for miners at the Farlam commission of inquiry.
He ordered it to take immediate steps to provide legal funding for their participation before the commission, and also to pay their costs. The court also granted Legal Aid leave to appeal the ruling.
Legal Aid told the SCA that when the injured and arrested miners applied for funding, their application had been declined on the basis that it had previously granted funding to 23 families who had lost breadwinners during the Marikana incident, and that the Legal Aid CEO had applied her discretion.
According to Legal Aid, the high court usurped the CEO’s discretion through its ruling, and it now “opens the floodgates” to claims on its resources.
The SCA found that there was no discrete legal issue in that argument and it was “precluded from exercising its discretion and entering into the merits of that matter”.
“Because of the highly unusual nature of the Marikana incident, and the small probability of it being repeated, any future such matter would have to be decided on its own peculiar facts,” the judgment said.
“Accordingly, any decision in the instant matter would be unlikely to be relevant or applicable in a future matter. The uniqueness of this matter will thus in all likelihood distinguish this case from any other that [Legal Aid] and, in turn, a court is likely to be confronted with in the future.”
The Farlam commission is probing the deaths of 44 people at Lonmin’s platinum mining operations in Marikana, near Rustenburg, North West.
On August 16 2012, 34 people, mostly striking miners, were shot dead and 78 people were wounded when police fired on a group gathered at a hill near the mine while trying to disarm and disperse them.
In the preceding week, 10 people, including two policemen and two security guards, were killed in the strike-related violence. – Sapa