Opinionista Wayne Duvenage 30 August 2013

The Marikana Commission funding farce: An injustice to citizens

The Marikana enquiry is a government-initiated judicial process. Why is there not equal funding to ensure due process for all parties so that the eventual outcome is just? Especially since government is so willing to go to court at taxpayers’ expense when challenged on the legality and rationality of its administrative decisions on other matters of public interest?

A major and constant struggle facing civil activism in this country is that of the unequal playing field when it comes to accessing legal and advisory expertise. Having a just case with strong humanitarian and public interest grounds is very necessary, but for justice to prevail, litigation and dispute resolution needs money, and very often, lots of it.

Government departments’ exorbitantly resourced legal teams are promptly propped up by the endless coffers of taxpayers’ funds, whilst the civil action bodies who rightfully raise challenges must dig into their own pockets or rely on the generosity of the public, or pro-bono legal expertise, to fund their cases. This has always been the case, be it the Department of Safety and Security defending the police in the Marikana massacre, the department of transport when defending the e-toll irrationality, the presidency defending the disbanding of the Scorpions, or the Department of Education defending textbook delivery failure in Limpopo. The list goes on.

In the e-toll matter, OUTA has been fortunate to have thousands of citizens and a few brave business entities on its side to help raise the funds for a matter close to their hearts, but it’s been an endless struggle. In many other cases, such as Hugh Glenister’s Scorpions challenge, much of Terry Crawford-Browne’s Arms deal matter and others, the cases are funded from their own pockets. Whichever way one looks at it, society pays all the way: one side (government’s) without consent and the other, with begrudging consent.

Citizens know this reality all too well, and while civil activists try not to decry the need to cough up, they most certainly groan under the weight of their funding challenges, wishing that this curse in their role were taken care of. This does beg the question: Wouldn’t we be a better nation if our government could act in a mature manner and offer to cover the legal expenses of their opponents – from the same taxpayer’s pot – especially in legitimate cases that are necessary to raise (the legitimacy test of which could be verified by an independent dispute management body)?

Many a civil action entity has struggled to fund good causes and challenges, with the sad consequence of dissipation and closure, and the country’s citizens are the ultimate losers. A well-balanced democracy requires a healthy and thriving civil action sector, one that will keep an eye on matters that protect society from the abuses of maladministration, and irrational policies and practices. To remain healthy, civil activism should not be wasting its energy and time in search of donations to fund legitimate challenges.

What makes the Marikana Commission an absolute farce is that government itself has called for the enquiry, in response to the lambasting from society. It is audacious to expect society to accept the Commission’s results, when one half of the party (the citizens), is left out in the cold when it comes to resource requirement to protect itself. It is like two parties being asked to take part in a contest across the Antarctic, where the one half is given the all the necessary thermal clothing, food and equipment, and the other half is handed a packet with a T-shirt, shorts, sandals and sandwiches. The have-not’s have no chance and in such a situation, would be wise not even to participate – to simply walk away.

If the right to affordable justice is to be assured, due process has to be apportioned. “Due process does not exist if it is not shared among adversaries. It must be apportioned,” says US civil litigation specialist Elizabeth Cabraser. “Each side may feel affronted, or deprived, of perfect due process if it does not receive all of the process that it wishes in a given case. But if there is a shortage of judicial resources, as indeed there is, and if the time and money of each side is finite, which it is, then due process must be allocated so that all have some, lest many have none.”

This is precisely what should be happening at the Marikana Commission, and if it is not to be, the miners’ best option for their protection is to simply walk away and refuse to participate in the process. This action will then give rise to two possible outcomes: the Commission will have to level the playing field by providing equal funding of resources required by all parties, or its findings will not be worth the paper they are recorded on, and the Commission will simply fail in achieving its goal. DM



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