Why are the Marikana miners out in the cold?

The Marikana miners injured and arrested in the violence last year have approached both the High Court and the Constitutional Court in recent days, seeking an order for interim funding of their legal representatives at the commission of inquiry. The interim order would operate until the issue of funding had been finally decided. Both courts refused to come to their assistance.

Many have asked me why the courts did not assist the miners to participate in the commission on a fair footing with the other parties? In a society where it is often a case of “how much justice one can afford”, has the law once again gotten in the way of justice?

The state parties to the commission have the benefit of access to the public purse to finance their legal representation. The miners indicated that they did not expect to receive the same level of funding that the state was spending on its own representatives – but they did require sufficient funds to take part in the commission meaningfully via their advocate.

At the heart of the matter, the courts were of the view that a commission of inquiry is something very different from most legal proceedings. There have been several cases where the courts have been happy to grant orders requiring the state to fund legal services for indigent litigants in cases of public interest. The Richtersveld Land Claim is one high profile example of such a case. A commission of enquiry is not a court case, however. It is something set up by the President of the country for fact-finding purposes. 

However, the commission has in fact been operating very much like a court case – with the parties clearly in opposition to one another, and their advocates’ arguments dominating proceedings. 

The courts pointed out that, although the commission was practically proceeding like a court case, the fact was that it was something very different, and they had to be careful not to overstep the boundary between their role and the government’s role. They could neither decide for the government how to spend its money, nor could they force the lawyers involved to work for free, even if it was conceded that the miners were being placed in an unfair position. 

The courts also pointed out that the miners had erred in seeking an order forcing the state to provide funding. It was not the appropriate remedy. They should instead have taken on review the state’s decision not to assist. If necessary, they could also have challenged the laws which did not extend the guarantee of state-funded legal assistance to indigent witnesses at a commission of inquiry.

Finally, the courts pointed out that by granting an interim order for legal funding, a final order would effectively be made. It would not be correct for any order to be made having a final effect when the main application for a final order for funding had yet to be dealt with. The question of state funding would still be capable of being decided in future, even though the interim order had been refused.

The miners have provisionally withdrawn from the commission. If a private donor comes forward, they will no doubt return to the commission. Alternatively, they may proceed with the main argument for state funding, or adapt their challenge to rather review the state’s decisions to refuse assistance and/or challenge the applicable legislation. In any event, it is hoped that a solution will be found without undue delay, so that the commission can proceed on a credible basis, with meaningful participation by the miners themselves.