On Monday, the North Gauteng High Court ruled that the approximately 300 mineworkers who were injured and arrested at Marikana last year should have their legal costs covered by Legal Aid SA. As opposition parties rushed to laud the judgment, it’s not yet clear whether the State intends to appeal. Let’s hope not: with this sideshow out of the way, perhaps the Farlam Commission will be finally able to get down to the central business of actually figuring out what happened at Marikana last August. REBECCA DAVIS took a look at the judgment.
It’s chastening to remember that when the Farlam Commission was set up by President Jacob Zuma on 26 August 2012, it was with the intention that it would have concluded its work by 31st January 2013. Eight months past that deadline, we don’t seem much closer to the truth about Marikana. In August, retired judge Ian Farlam attributed the delays to issues of translation, the number of witnesses, and – most controversially – the funding problems related to the lawyers representing the wounded and arrested mineworkers.
It’s possible that at least one of those issues may no longer serve as a delaying factor. As of Monday, the State has been ordered by Judge Tati Makgoka to fund the legal costs of those mineworkers who survived the attack. This was the third legal attempt to compel the State to do so, with both prior cases unsuccessful.
In August, though the Constitutional Court did not find in favour of the mineworkers, the Court did note that the outcome of the Farlam Commission might be rendered less just if the workers were not granted adequate legal representation. “Absent a fair opportunity, the search for truth and the purpose of the Commission may be compromised,” read the judgment. Judge Makgoka appears to concur.
One of the major arguments of the State against funding legal representation for the miners was that the Farlam Commission was not a court of law, and that its findings did not therefore have the power to threaten the rights of the miners. Makgoka disagreed, pointing out that the commission had the power to “make far-reaching findings and recommendations, which carry potential prejudice to rights of individuals and corporations”.
If the commission found that the police did not act in self-defence, for instance, this would very likely encourage the settlement of civil claims from the miners.
Furthermore, one of the aspects the commission is looking into is whether the miners should be found criminally responsible for the deaths of their fellow protestors. If the commission’s findings supported this version of events, the workers might well be criminally prosecuted for murder after the commission wrapped up. As such, there’s a lot at stake for both sides – and to have just one side afforded legal representation seems unbalanced.
Makgoka summed up the stakes succinctly in his judgment. “It appears to be common cause that the police want the commission to find that the applicants [the mineworkers] are the source of the violent environment in which they and others got shot,” he wrote. “The applicants, on their part, want the commission to find that the police unjustifiably shot them and those who died. It is, therefore, unjust that the applicants be unable to present their version of the events, whilst their adversaries, the police, are afforded legal representation, at state expense, to present theirs.”
Makgoka noted too that potential criminal or civil cases following the commission weren’t the only meaningful possible repercussion. The Farlam Commission’s findings will likely stand as “the authoritative historical record” of Marikana. The families of miners killed at Marikana need that record to be truthful “in the hope that the truth will bring them some measure of healing, closure and restoration”. In order for the truth to be arrived at, the commission requires the full participation of eye-witnesses, which is the role that the surviving mineworkers can play.
Judge Makgoga suggested that the nation, too, needs to be able to place its faith in the findings of the Farlam Commission to aim for a wider catharsis. “The events being investigated by it have captured the collective consciousness of our nation and have drawn widespread interest of the international community,” he wrote. “It is therefore absolutely vital that the integrity and credibility of its findings and recommendations (if any), are beyond reproach.” If the 300 Marikana survivors were to pull out of the commission, who could definitively state that its findings were unimpeachable?
The State had argued that the miners’ legal representation could be adequately covered by “evidence leaders”. Makgoga dismissed this, saying that it was quite clear from what had transpired at the commission already that the nature of the inquiry was extremely legalistic. Witnesses were kept in the witness box for extended periods and cross-examined, he pointed out. Some of the evidence was highly technical. In essence, the commission is operating much like a normal court. While evidence leaders were “competent”, Makgoga wrote, by virtue of their position they have to act neutrally and not advance the interests of any particular party.
This would be particularly unfair given the heavyweight legal teams the miners are up against. The SAPS legal team has contracted five advocates and a private attorney firm in Rustenburg, instead of using the State Attorney. Despite the fact that the Minister of Police should presumably have the same interests as the SAPS, Mthethwa apparently has his own separate legal team. As has been widely reported and not denied, the State’s legal representation costs approximately R2 to R3 million per month: a hefty bill given how long the commission has been dragging on for already.
One argument made by Legal Aid, and which has also been rehearsed frequently by social media commentators, is why unions NUM and AMCU should not be responsible for taking care of the legal representation of the miners. Makgoga pointed out that this idea is based on the assumption that all the workers belonged to one of the two unions, which is known not to be the case. (Indeed, more than a few were not even Lonmin employees.) But there’s another good reason why the legal representation of the miners and the unions should be split, and that’s because the commission will also investigate whether the unions themselves should be held responsible for what happened to the miners. As such, the interests of the two aren’t necessarily aligned at all.
Makgoga did say, however, that the President and the Police Minister were correct to instruct the miners that Legal Aid was their only recourse for state funding for their legal fees. Advocate Dali Mpofu had sought to make the case that if the State wished to, it could make additional funds available at the stroke of a pen. Not so, ruled Makgoga, reinforcing the earlier High Court ruling that it was not in the remit of a court to instruct the Executive how to dispense resources. Legal Aid SA, in such cases, is the only available framework for funding.
As for Legal Aid, their initial reluctance to fund legal assistance for the inquiry was based on the fact that the Legal Aid guide doesn’t provide for the funding of commissions of inquiry. But nonetheless, Legal Aid agreed to fund the representation of the dead miners’ families at the discretion of its CEO – though it would not extend this coverage to those miners who were merely injured in the attack, but did not die. Makgoga ruled that this was “arbitrary”, and that it was unfair to negatively discriminate against the two groups purely based on who survived the shooting.
Legal Aid had also said throughout that they didn’t have the budget to represent the injured and arrested miners. It’s less clear how this will be resolved. The Daily Maverick asked Legal Aid spokesperson Mpho Phasha what steps the body would be able to take to adjust its budget to accord with the judge’s ruling, but we hadn’t heard back by the time of writing. The official response from Legal Aid to Monday’s judgment was that they were “studying it”.
It’s worth noting that even though Judge Makgoga has ruled that Legal Aid must fund the miners’ representation, they still won’t achieve anywhere near the same legal firepower as the State. Makgoga suggested it would be “commendable” to allow for two counsel and a firm of attorneys, which is the way things were operating before funding dried up. “The principle of equality arms does not mean equal representation on the same scale as the state parties,” the judge noted.
But Dali Mpofu told the Daily Maverick that this was expected and accepted. “The case we brought to court was for adequate funding, not necessarily the same as for the police or Lonmin,” he said. “Hopefully Legal Aid SA and our team will hold a round table and agree on what exactly is ‘adequate’ in these particular circumstances.”
It was reported in July that Legal Aid restricts payments to senior advocates to between R11,000 and R17,000 per day, far less than what top-flight private firms would charge. Mpofu says there’s no problem there. “That is the rate we were asking for, and it is the rate we received when we were paid last year between October and December,” he said. Mpofu said that he did not have a sense of whether the State would appeal Monday’s judgment or not.
Since August’s Constitutional Court ruling against Mpofu and the miners, a private campaign to raise money for the legal fees by the Citizens 4 Marikana group has gathered pace. Organiser Kay Sexwale told the Daily Maverick that the group has raised around R300,000 thus far, with pledges for further funds. “We will use the collected money towards assisting the victims, as is our secondary objective,” she said. Citizens 4 Marikana called on President Zuma and Justice Minister Jeff Radebe to waive their right to an appeal and “finally come to their senses” by conceding the case.
Injured mineworker Mzoxolo Magidiwana told journalists in September that they felt “treated as nobodies”.
“[The government] shouldn’t be paying the lawyers for the police and not the lawyers that represent us because we are the people who produce wealth in the mines,” Magidiwana said.
On Monday, he expressed his delight at the court’s ruling to eNCA. “I feel like I have the strength to go on,” he said.DM
Photo: Dali Mpofu is seen outside the Johannesburg High Court on Tuesday, 24 June 2008 Picture: Werner Beukes/SAPA
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