ConCourt dismisses Legal Aid’s leave to appeal

A final bid to overturn a high court judgment compelling Legal Aid SA to give representation to the injured and arrested Marikana miners has failed in the Constitutional Court. 

The high court in Pretoria previously directed Legal Aid SA to provide funding for the miners’ appearances at the Marikana Commission of Inquiry.  Legal Aid SA appealed to the Supreme Court of Appeal SCA), but before the appeal was heard, Legal Aid reached an agreement with the miners to provide funding until the commission ended. 

The SCA dismissed Legal Aid SA’s appeal on the grounds that it was moot. But the court unanimously said that if it had discretion to deliberate on the merits of the appeal, its discretion would be exercised against Legal Aid SA.  Legal Aid then applied to the Constitutional Court for leave to appeal. 

Legal Aid SA said the application to the ConCourt raised constitutional issues, and said the high court judgment had laid down incorrect principles of law. For example, Legal Aid SA pointed to the finding that the Constitutional right to access to justice and the courts extended to commissions of inquiry.    

Moot case
In a majority judgment handed down on Tuesday, Justice Leona Theron, with seven other justices concurring, granted Legal Aid SA the right to file a replying affidavit.  But the Court dismissed Legal Aid SA’s leave to appeal with costs. On the issue of mootness, Theron wrote that the Court had previously considered moot cases where it would be in the interests of justice to decide on the matter. In this instance, the Court said it was common cause that Legal Aid SA’s funding scheme guidelines had been updated since the high court judgment, to include commissions of inquiry.  Theron said it might be possible that because of this, the high court’s judgment might be irrelevant.  But she said it was not for the ConCourt to decide. 

The Court instead dealt with Legal Aid SA’s contention that the high court judgment applied now to all cases involving commissions of inquiry.  But the Court said this was “unpersuasive”. 

“The high court was careful to circumscribe the application of the judgment to the singular circumstances surrounding the Marikana Commission. Thus the extent to which the findings could bind Legal Aid in future cases would be very narrow and indeed so rare as to be negligible,” the Court said. 

And the Court said that the high court had made it clear, that the right to representation would depend on the context of each commission in the future.  Theron said there were no compelling circumstances that would persuade the ConCourt to grant leave to appeal.

Nkabinde: appeal should be upheld
Justice Bess Nkabinde wrote a dissenting judgment, in which she agreed with the decision to grant Legal Aid SA leave to file its replying affidavit, and she agreed that the matter was moot.  But Nkabinde said leave to appeal should have been granted to Legal Aid SA, and that the appeal should be upheld.

Nkabinde said that while the high court decision might apply to this specific instance, its implications would have far-reaching implications for Legal Aid SA and those who apply for funding. 


She said the high court judgment set a legal precedent, based on a “novel and expansive” interpretation of Section 34 of the Constitution, the right to access the courts, tribunals “or other applicable forum”.  And it was this interpretation of Section 34 that Legal Aid was mainly concerned, especially given its severe budgetary constraints. 

Nkabinde said the practical effect of the high court judgment on Legal Aid SA had to be taken into account.  “In my view, contrary to the position taken by the main judgment, the principles are extensive and by no means apply to the Commission alone.”

She also said that the high court judgment laid out principles which “find no direct support in our jurisprudence”. 

The high court found that it was irrational for Legal Aid SA to agree to give funding to the families of the deceased miners and not the arrested and injured miners. But Nkabinde said that was not relevant to the application of Section 34. 

“The high court did not set out to determine an issue related to differential treatment,” she wrote. 

Impact on future funding
Nkabinde also said it was not correct that the judgment would have no impact on the Legal Aid SA’s chief executive’s discretion to grant funding to applicants.  “I do not agree,” Nkabinde. “Indeed, this is precisely what is problematic for Legal Aid: the high court judgment stands for the proposition that, where Section 34 applies to commissions of inquiry and provides the right to state-funded legal representation, it [Legal Aid] has no discretion to exercise.”

The Socio-Economic Rights Institute (Seri) of South Africa, who had represented Amcu and the families of the miners welcomed the main judgment.  

Bhavna Ramji, the Seri attorney who acted for Amcu and the families, said: “The effect of the Constitutional Court’s decision is to leave the high court judgment unchallenged. The High Court decision was a beacon of fairness in the midst of the highly compromised proceedings of the Commission – where the multiple state departments spent millions on extensive legal teams paid to justify the state’s actions at Marikana, while the miners were left with next to no resources to make out their case. The high court judgment provided at least some corrective to this deep injustice.”

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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. 

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