South Africa

The issue of Marikana commission funding could go to Constitutional Court

By Greg Nicolson 19 July 2013

Advocate Dali Mpofu’s application to get the state to cover the legal costs of the injured and arrested mineworkers at the Marikana commission was rejected on Thursday. It’s a setback that could have wide-ranging consequences to the inquiry into the bloody events at Marikana last August. By GREG NICOLSON.

Judge Joseph Raulinga dismissed Mpofu’s application in the North Gauteng High Court for the state to pay his legal costs while representing the injured and arrested mineworkers of Marikana in the ongoing inquiry into last year’s violence. According to EyeWitness News, Raulinga found the application had no chance of succeeding. Mpofu says he can no longer represent the mineworkers pro bono.

Raulinga said it was up to the executive rather than the judicial system to determine how commissions are funded and agreed with the state that the application could not continue. As the applicant’s advocate, Mpofu could not comment on the issue, except to say, “We will appeal directly to the Constitutional Court.”

Muzi Msimang, one of Mpofu’s attorneys in the application, told Daily Maverick he thinks a Constitutional Court application has a “strong” chance of succeeding. The North Gauteng High Court agreed their clients are indigent, he said, suggesting their costs should be covered. “Virtually everyone who is on the side of the victims has pulled out [of the Marikana commission] and we’ve been instructed to not return until this issue has been solved,” Msimang said on Thursday.

“If you only have the police and no strikers or protesters you’ll only hear one side of the story,” he added.

Legal teams representing the mineworkers have now provisionally withdrawn from the commission, leaving the inquiry running without their input. “We’ll do everything to make sure the victims of the Marikana tragedy do get representation,” said Msimang.

Stuart Wilson, executive director of Socio-Economic Rights Institute of South Africa (SERI), who has provisionally withdrawn from the inquiry in solidarity with Mpofu’s clients and is representing the families of 36 mineworkers killed in the violence, said they are studying the decision and consulting their clients on how to proceed. “We’re very disappointed at the outcome [of Mpofu’s application]. We feel the arrested and injured miners should be able to participate in the commission,” he told Daily Maverick.

Kathleen Hardy, from the Centre for Applied Legal Studies (CALS), which represents the South African Human Rights Commission, said her clients are assessing the ramifications of the decision, particularly in relation to the participation of the miners’ legal teams. CALS has not withdrawn from the commission but said her clients will wait to see what the other lawyers decide to do next. They hope all the parties are present because the South African Human Rights Commission “believes the work of the commission is important”.

In his dismissal, Raulinga said “nothing prevents the parties from settling this matter outside the courts”, suggesting President Jacob Zuma and Justice Minister Jeff Radebe could solve the issue by engaging Mpofu and coming to an arrangement. Department of Justice spokesman Mthunzi Mhaga was not available for comment on Thursday. DM

Read more:

  • The truth endangered: Miners’ representatives withdraw from Farlam Commission in Daily Maverick.

Photo: Dali Mpofu (Werner Beukes/SAPA)

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"Take a chance, won't you? Knock down the fences which divide. Tear apart the walls that imprison you. Reach out. Freedom lies just on the other side." ~ Thurgood Marshall

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