Who will get legal aid after Marikana inquiry?

The Marikana Commission of Inquiry visits the scene. (Delywn Verasamy, M&G)

The Marikana Commission of Inquiry visits the scene. (Delywn Verasamy, M&G)

Legal Aid South Africa says a judgment by the high court in Pretoria, ordering it to fund the legal representation of the injured and arrested Marikana miners at the Marikana commission of inquiry, has far-reaching implications for how the Legal Aid board decides who to grant funding to.

Legal Aid SA applied for leave to appeal the judgment in the Constitutional Court on Thursday.

It was common cause on Thursday that, should the Constitutional Court overturn the high court judgment, it would have no practical effect. This is because Legal Aid SA has already provided funding for the injured and arrested, and, in any event, the commission has completed its work.

President Jacob Zuma has received a copy of the commission’s report but has yet to release it publicly.

At the Constitutional Court on Thursday, Legal Aid SA, represented by Gilbert Marcus SC, argued that the high court’s decision had set a legal precedent that had to be addressed, even it had already paid the miners’ legal costs.

Legal Aid SA had previously agreed to fund the legal representation of 23 families of those who died at Marikana, but initially refused to fund the legal representation of the 270 injured and arrested miners.

In October 2013, the high court in Pretoria overturned a previous decision which found in Legal Aid SA’s favour, and ordered it to provide funding for the injured and arrested miners.

Legal Aid SA appealed to the Supreme Court of Appeal, but it lost that appeal on the grounds that the case was, at that point, merely academic. This was because, by that stage, Legal Aid SA had agreed to pay the legal fees of the injured and arrested miners.

The chief executive of Legal Aid SA has discretion over whether to grant funding to those who apply for it. Dali Mpofu SC, for the injured and arrested, argued that amendments to the Legal Aid Act and the Legal Aid Guide now specifically provided for funding during commissions of inquiry.

In any event, he said, the chief executive had to be guided by the relevant, overarching constitutional framework, which, in this case, would be Section 34 of the Constitution.

The section states: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

He also said that the source of the chief executive’s powers was her ability to legally use her discretion when granting funding, and that in this case, she had used her discretion irrationally.

Marcus argued that Section 34 did not apply to this commission specifically. Legal Aid SA initially distinguished between the families of the deceased miners and the injured and arrested miners; it felt that the families had lost a breadwinner and had no information about what happened to their loved ones, and so their participation in the commission was vital.

But Legal Aid SA felt the injured and arrested miners could be represented by their unions at the commission, and that they already had knowledge of the events of August 16 2012, and the days leading up to it.

Mpofu said this distinction was irrational; the high court also held that the chief executive’s decision had unfairly impeded on the rights of the injured and arrested to equality before the law.

Mpofu said the distinction made by Legal Aid SA was unfair.

“The nub of the matter is: what Legal Aid SA is saying to these people is that if you did not die, then tough luck. We will fund those of you who died. If by the grace of god the bullet did not enter your skull, then, sorry,” he said.

Legal Aid SA also argued that the high court’s “eyes were closed” to its financial constraints.

Marcus also argued that the subsidiarity rule applied: litigants who felt they did not have fair access to the courts should use the Equality Act to take the matter up with the Equality Court.

Marcus said the cost of the high court order was R19 530 800 and that 3 800 applicants were denied funding as a result.

Mpofu countered that if Legal Aid SA’s funding problems had been their only argument, that would have been the end of the matter.

But, he said, Legal Aid SA had advanced that argument amid the other arguments.

He said that the high court judgment referred specifically to the Marikana commission, and so it did not have implications for all other commissions of inquiry in the future.

Deputy chief justice Dikgang Moseneke said Marcus needed to convince the court that the high court judgment affected how the chief executive of Legal Aid SA could use his or her discretionary power in the future.

Judgment was reserved.

Sarah Evans

Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics.  Read more from Sarah Evans

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