IN THE CONSTITUTIONAL COURT OF

CASE NO: 188/2014 In the matter between:

LEGAL AID SOUTH AFRICA Appellant and

MZOXOLO MAGIDIWANA 1st Respondent

INJURED AND ARRESTED PERSONS 2nd and Further Respondents

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 3rd Respondent

THE MINISTER OF JUSTICE & CONSTITUTIONAL DEVELOPMENT 4th Respondent

THE MARIKANA COMMISSION OF ENQUIRY 5th Respondent

PARTIES TO THE MARIKANA COMMISSION OF ENQUIRY 6th to 19th Respondents

FIRST, SECOND AND FURTHER RESPONDENTS’ HEADS OF ARGUMENT

A. INTRODUCTION

1. This is an application for leave to appeal brought in terms of Rule 19 of the Rules

of this Honourable Court. 2

2. Should leave be granted, then the court will be called upon to decide the appeal

itself.

3. In turn, the appeal involves a preliminary point of mootness / ripeness which may

be dispositive of the matter. Only if the court, in its discretion, decides to hear the

appeal in spite of its mootness will there be a need to determine the merits of the

appeal. A separate but related preliminary point relates to the subsequent

promulgation of a new Legal Aid Act and Legal Aid Guide dealing specifically with

legal aid in respect of commissions of enquiry.

4. Accordingly and in short, the board issues in this matter can be summarised into

the following three-stage enquiry facing the court, namely:

4.1. whether to grant leave to appeal; and, if so,

4.2. whether to dismiss the appeal on the grounds of mootness (and the matter

being only of academic importance); and, if not,

4.3. whether to grant or dismiss the appeal on the merits.

5. The matter of mootness and the interests of justice are interlinked. Also, the

question of prospects of success is linked to the evaluation of the merits.

Accordingly, the issues will be dealt with in the following order:

5.1. The preliminary point(s)

5.2. The merits of the appeal

5.3. Leave to appeal. 3

6. The background facts have been repeatedly canvassed in several documents

before the court so it would serve no useful purpose to repeat them in this

document. Insofar as it is necessary, the facts relevant to each topic discussed

below will be referred to in the course of the submissions related to such topic(s).

7. Furthermore, and in view of the multiple respondent parties and with the leave of

the court, each such respondent will be allocated (a) specific area(s) of focus and

oral presentation so as to avoid unnecessary repetition. As the main

respondents, the first, second and further respondents, otherwise referred to as

“the Miners”, will deal with all the topics herein but will refrain from going too

much indepth into those topics allocated to the other respondent parties. We

propose to discuss this matter with the Chief Justice prior to the commencement

of the hearing.

8. In spite of an objection raised thereto, the applicant has annexed a confidential

funding agreement when it is clearly irrelevant to the current proceedings. This

step could only be activated by malice, moreso in the light of the fact that the

conclusion of the said agreement is common cause and its contents add nothing

to the issues on appeal. This question will also be raised in relation to the

question of costs.

B. PRELIMINARY ISSUE

9. The respondents intend to raise and/or re-raise two preliminary points which

ought to be dispositive of the appeal without the necessity of canvassing the 4

merits. Although these points may be viewed as mutually related, they are raised

separately as they may also be considered as separate stand-alone preliminary

objections.

B.1 Mootness / Ripeness

10. In relation to the issue of mootness, the applicant has carefully avoided dealing

with the key issue of the agreement reached between the primary parties, namely

the Miners and Legal Aid South Africa (“LASA”), on or about 10 July 2014, which

is referred to at paragraph 19 of the judgment of the Supreme Court of Appeal

(SCA), as follows:

“Prior to the hearing of the appeal, the parties entered into an agreement of settlement. According to counsel for the respondents:

‘Since the delivery of the appellant’s supplementary heads of argument and following their meeting on 10 July 2014, the primary parties have resolved all their differences. It was further agreed that this development would be brought to the attention of the court in these heads of argument, as we hereby do.

The essence of the agreement reached was that the appellant would provide the required funding for the full duration of the unfunded period of the Commission, ie from 11 March 2013 to the end date of the Commission. This removed any outstanding dispute or controversy, resulting in the disposal by agreement of this leg of the enquiry.’

From the bar in this court, counsel for LASA confirmed that to be the position. We were further advised that the work of the Commission will be completed well within the next two months” (emphasis added). 5

11. It is now common cause that:

11.1. the Commission completed its work on 14 November 2014;

11.2. in December 2014, the primary parties concluded a written agreement in

line with their July oral agreement; and

11.3. still in December 2014, LASA paid the Miners’ legal fees in full and as

agreed.

12. What is clear from the agreement is that “whatever the outcome of the appeal, it

will have no effect whatsoever on .. the position of the parties inter se”.1

13. Accordingly and self-evidently, the mootness of the appeal is currently even of a

higher degree than the situation which obtained in front of the SCA. The

question of mootness per se can hardly be contested. The applicant seemingly

relies on the exercise of a discretion in its favour, despite such mootness. It is

readily conceded that mootness is not an absolute bar to a hearing. However, no

convincing grounds have been advanced to justify a hearing in the present

matter.2

14. Even assuming in the applicant’s favour that this is a situation in which the

discretion of the court is competent, insufficient grounds exist for the exercise of

that discretion in favour of hearing the appeal.

1 Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA) at para 7 2 AAA Investments (Pty) Limited v Micro Finance Regulatory Council and Another 2006 (11) BCLR 1255 (CC) at para 27 6

15. According to the cases relied upon by the SCA, the three issues which are

relevant to the exercise of that discretion, one way or the other, are:

15.1. whether or not there is a discrete question of law;

15.2. public interest; and

15.3. the avoidance of opening the floodgates in respect of similar matters.

16. With the greatest respect, not even one of these criteria apply in the present

appeal:

16.1. As to the first issue, the SCA held correctly that there is no discrete question

of law raised in the present appeal.

16.2. As to the public interest (which may coincide with the notion of the interests

of justice), none can validly be contended to exist or, worse, to operate in

favour of hearing the appeal. On the contrary, the public interest would be

better served by refusing to hear the appeal and not sending the message

that our courts will easily allow themselves to be fora for giving theoretical

and speculative legal opinions and advice. It has been correctly held that:

“Courts of appeal often have to deal with congested rolls. They do not give advice gratuitously. They decide real disputes and do not speculate or theorise … Furthermore, statutory enactments are to be 7

applied to or interpreted against particular facts and disputes and not in isolation.”3

16.3. As to the floodgates argument, the appeal must also fail because it is highly

unlikely that the facts and context of the will repeat

themselves and that LASA would again discriminate among the victims

thereof, granting funding for some and refusing it in respect of others. For

the present matter to constitute precedent, then both of these factors must

exist.

17. In the circumstances and in addition to the submissions of other respondents, it is

respectfully submitted that the appeal ought properly to be dismissed as ill-

conceived and with no prospects of success on this ground alone.

B.2 Subsequent legislative changes

18. Under this section, the court will be implored to take into account not only the

new provisions to the Legal Aid Guide, which has been raised and will be dealt

with by counsel for the families, but also the fact that a new Legal Aid Guide 39 of

2014 has since been promulgated and come into effect.

3 Radio Pretoria v Chairman, Independent Communications Authority of South Africa 2005 (1) SA 47 (SCA) at para 44; see also National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) at para 21 fn 18 8

19. Before dealing with the relevant new provisions of the new Act, it is appropriate to

put the matter into perspective by making reference to the statements made by

and on behalf of the Minister of Justice in March 2013 that:

“The Legal Aid Board of South Africa (sic) is the only existing framework through which the State can provide legal assistance in legal proceedings (which) … do not include representation before commission (sic) of inquiry.

[The Minister] has advised that there are considerations to effect amendments to the Commissions Act No 8 of 1947 with a view to providing a legal basis for legal assistance to be given (sic) parties who appear before Commissions of Inquiry where this is desirable. As is (sic) the position currently, legal assistance may only be provided to a person who appears before a Commission as a witness.

It must be noted that this is a matter that may take some time to complete well beyond the terms (six) of the Marikana Commission.”4

20. No such amendments have been effected to the Commissions Act. Instead, the

issue has been dealt with directly in the new Legal Aid Guide and, in our

submission, indirectly in the new Act.

21. The relevant provisions of the new Act include:

21.1. Section 3(b) thereof, which provides that:

“The objects of Legal Aid South Africa are to provide legal representation to persons at state expense.”

4 Record volume 3 p 240 9

21.2. Section 4(1)(f) thereof, which provides that:

“The Board may do all that is necessary or expedient to achieve the objects referred to in section 3, including (to) provide legal representation at state expense as envisaged in the Constitution and this Act, where substantial injustice would otherwise result and render or make legal aid and legal advice available” (emphasis added)

21.3. Section 5 thereof, which provides that:

“Legal Aid South Africa, its directors, employees and agents must serve impartially and independently and exercise their powers and perform their duties in good faith and without fear, favour, bias or prejudice” (emphasis added).

22. The provision of legal representation at state expense, as envisaged in the

Constitution (or the Act, which includes the Legal Aid Guide), is what this matter

is all about. Viewed differently, the central question is whether sections 9 and 34

and/or as the principle of legality would envisage legal assistance to the Miners in

the present circumstances. If so, then the matter falls squarely within the

provisions of the Constitution, the Act and the new Legal Aid Guide.

23. Put differently, were a similar application for funding to be made today, then it

would be liable to be dealt with in terms of the new legislative framework and no

reference to the High Court judgment would be necessary. 10

24. The matter has also become moot from the point of view that it can never arise

again in the same legislative context dealt with by the applicant, by the High

Court and/or the SCA.

25. In interpreting the phrase “as envisaged in the Constitution and this Act”, it must

be noted that the previous reference to sections 28(1)(h), 35(2) and 35(3) of the

Constitution5 have been omitted from the new Act. This omission marks a

fundamental departure from the situation which prevailed when this court made

the remarks contained at paragraph 12 of the first Magidiwana appeal, in which

some emphasis was placed on the fact that the Miners were “neither children nor

detained persons and the proceedings that are the subject matter of this

application are to a civil or criminal trial”.6

26. In short, the Act no longer confines legal assistance to children and detained

persons but to situations envisaged by the Constitution broadly. Neither does the

Legal Aid Guide still confine itself to civil or criminal trials but it now expressly

provides for legal assistance in commissions of enquiry. Any future and similar

application would thus be met with a new legal regime and a new concrete reality

on the ground. This fact is also a complete answer to the floodgates argument

discussed at paragraph 16.3 hereinabove.

27. For these additional reasons, the present appeal can only be of academic value

and ought to be dismissed on that ground.

5 These sections of the Constitution were specified in section 3A(3) of the Legal Aid Act 22 of 1969, which was operational at the time of the High Court application and which has since been repealed by the new Act 6 Magidiwana and Others v President of the Republic of South Africa 2013 (11) BCLR 1251 (CC) at para 12 11

C. THE MERITS

28. In the event that this court is nevertheless inclined to entertain the merits of the

appeal, we now proceed to deal therewith.

29. In this regard, the issues which arise on the merits will be discussed in the

following sequence:

29.1. The pleadings

29.2. Fairness

29.3. Section 34

29.4. Section 9 and the PEPUDA objection

29.5. The general irrationality enquiry

29.6. Separation of powers

29.7. Substitution.

30. We now proceed to deal with these issues.

C.1 The pleadings

31. It is difficult to comprehend the applicant’s submissions in respect of the

pleadings. This is, with respect, a typical example of clutching at straws.

32. In the first place, LASA made two important concessions in the High Court,

namely that: 12

32.1. it (LASA) was not legally precluded or prohibited from granting funding in

respect of commissions of inquiry; and

32.2. it (LASA) was abandoning its objection to the application to amend the

pleadings to include a prayer to review its decision. (That application was

expressly brought on the basis that the averments in the papers were

sufficient to support the amended prayer.)

33. It can therefore not lie in the mouth of the appellant that the review prayer was

incompetent or wrongly considered by the High Court.

34. Nor is it true that the Miners’ attack was only directed at the President and the

Minister to the exclusion of the appellant. At paragraph 32 of the founding

affidavit, quoted at paragraph 49 of the applicants’ heads, the expression “the

South African state, in its various guises and as represented by the first to third

respondents”, clearly covers the applicant as it was the third respondent in the

High Court application.

35. Furthermore, paragraph 83 of the replying affidavit does not reinforce the case of

the applicant as alleged. On the contrary, the applicant has deliberately excluded

the heading to that paragraph, which clearly refers to “The relevance of funding

given to state parties” (emphasis added).

36. In the context of this matter, the word “parties”, as used in that heading, refers to

parties or participants in the Commission, whom, unlike the Miners, had money at 13

their disposal, such as the police and . The papers clearly separate out

the alleged irrationality / discrimination among the parties to the Commission

from the alleged irrationality / discrimination among the victims. The applicant is

only implicated in the second issue since it was clearly neither a “party” nor a

“participant” in the Marikana Commission.

37. Any reading of the founding papers will vindicate these submissions.

38. The submissions of the applicant on the pleadings and in respect of PAJA must

be rejected in that they also suffer from a deficiency caused by the inability to

differentiate between irrational differentiation, as it pertains to unfair

discrimination in terms of section 9 of the Constitution, on the one hand, and the

general rationality test which derives from the principle of legality and the rule of

law, a la the Pharmaceutical case, on the other. This confusion on the part of

the applicant will be dealt with later below.

C.2 Fairness

39. These submissions will concentrate on the over-arching issue of fairness, as

inherently concomitant in the fundamental rights to a fair trial (under sections 34

and 35 of the Constitution) and the prohibition against unfair discrimination

(under section 9 of the Constitution). The determination of the issues in this

matter revolves centrally around the constitutional notions of fairness and

equality or, conversely, the twin constitutional mischiefs of unfairness and 14

inequality. This will be followed by submissions in respect of the question of

separation of powers vis-à-vis the supremacy of the Constitution.

40. As alluded to above, these two issues cannot be separated from other

constitutional rights, values and concepts, such as human dignity, the rule of law,

security of the person, life and privacy. These matters will, however, not be

discussed in much detail in these submissions, with the view that other relevant

respondents will do more justice thereto. Each one of the respondent parties,

however, wish to reserve their right to argue these points should it become

necessary to do so and insofar as all the issues are somewhat inextricably

connected.

41. It has been tritely and correctly stated that fairness is essentially a matter of

intuitive determination and a value judgment.

42. The South African Constitution is littered with references to the constitutional

standard of fairness in different contextual settings. For example:

42.1. in the Bill of Rights, one will find references to unfair discrimination (section

9), free and fair elections (section 19(2)), the right to fair labour practice

(section 23(1)), the right to administrative action that is procedurally fair

(section 33(1)), the right to a fair public hearing (section 34) and the right to a

fair (criminal) trial (section 35); 15

42.2. in the rest of the Constitution, there is the requirement for a procurement

process which is fair, etc (section 217(1)), as well as notably the requirement

that in the public administration, services must be provided impartially, fairly

and without bias (section 195(1)(d)).

43. Other constant references in the Constitution to “equitability”, “impartiality”,

“justice”, etc also incorporate the notion of fairness.

44. It can therefore hardly be contested that the Constitution places a high premium

on fairness. In a nutshell, the “injustices of our past”, which are given recognition

in the first sentence of the preamble to the Constitution were characterised by the

unfair treatment of South Africans. To the extent that the constitutional goal of an

egalitarian society is unquestionably far from being realised, they remain also

“the injustices of the present”.

45. What needs to be emphasised from the outset is that this matter is primarily

concerned with substantive fairness as opposed to procedural fairness. The

latter is dealt with in section 33 of the Constitution and PAJA. It is the confusion

of the two notions of fairness which was responsible for the misplaced

submission that this matter had to be brought under PAJA. Insofar as the

decisions in question are reviewable, this is done on the basis of irrationality,

legality and the rule of law.

46. In essence, therefore, and broadly speaking, this matter concerns justice, the rule

of law, or class discrimination and, above all, fairness. 16

Fairness is the common thread which runs between the two main constitutional

rights on the table. On the one hand, section 9 prohibits unfair discrimination

based on class, while section 34 guarantees the right to a fair public hearing.

These are two distinct but related notions of fairness. This is a crucial distinction.

In the section 9 context, fairness relates to “equality before the law” whilst, in the

section 34 context, it is related to the concept of “equality of arms”.

47. Suffice at this stage to mention that the relevant respondents have, in the

circumstances, established an entitlement to these rights, viewed separately or

compositely.

48. It must also not be forgotten that while, at face value, we are dealing with civil or

political rights to justice and equality, in the particular circumstances of this

matter, the underlying socio-economic issues and disparities cannot be ignored.

The genesis of the issues at play here is undeniably socio-economic, particularly

insofar as it occurs within a setting of industrial strikes for wages, migrant labour

system and other historical injustices fully recognised in the very first line of the

preamble to the South African Constitution, which says:

“We, the people of South Africa, recognise the injustices of our past … respect those who have worked to build and develop our country … (We therefore adopt this Constitution so as to) … improve the quality of life of all citizens and free the potential of each person.” 17

49. The primary defence adopted by the state was that no rights of the relevant

respondents were affected by the issues raised in this matter because:

49.1. no rights of theirs are implicated (since a commission is not a court of law

and is investigative and inquisitorial in nature, etc); and

49.2. it is only the President (and not the individual respondents) who has a vested

interest in the Commission.

50. It will be amply demonstrated that these arguments are ill-conceived.

51. Firstly, and by its very nature, a commission such as the Marikana Commission,

which is not only empowered to make findings in terms of its terms of reference

but also to refer matters for prosecution and other further investigations, cannot

be said to be of indifferent consequence merely because it is not a court of law

and is “only” destined to make recommendations. The mere recommendation for

someone’s criminal prosecution is prejudicial. Surely, the test is not so much the

finality or reversibility of such findings but the potential prejudice it is likely to

have on the rights and interests of the relevant respondents as bearers of various

fundamental constitutional rights, such as privacy and reputational rights. 18

“Die toets vir die aanwending van die reels van natuurlike geregtigheid … is nie of ‘n gesagsliggaam se bevinding voorlopig of finaal is nie. Wat beproef moet word, is die benadelingspotensiaal.” 7

52. In coming to the above correct conclusion, the court relied with approval on the

following words of Lord Denning MR, who said:

“It is true, of course, that the inspectors are not a court of law. Their proceedings are not judicial proceedings … They are not even quasi-judicial, for they decide nothing; they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings: … They do not even decide whether there is a prima facie case …

But this should not lead us to minimise the significance of their task. They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions. It may bring about the winding up of the company, and be used itself as material for the winding up. … Even before the inspectors make their report, they may inform the Board of Trade of facts which tend to show that an offence has been committed. … When they do make their report, the Board is bound to send a copy of it to the company; and the Board may, in their discretion, publish it, if they think fit, to the public at large.

Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly. This is a duty which

7 Per Conradie AJ in Grundling v Van Rensburg NO 1984 (4) 680 (W) at 689B 19

rests on them, as on many bodies, even though they are not judicial, nor quasi-judicial, but only administrative …” 8

(Emphasis added)

53. This passage was also quoted with approval by the Appellate Division (as it then

was) in the Du Preez case,9 per Corbett CJ, who significantly added that:

“I am of the view that likewise in the present case the Commission and the Committee are under a duty to act fairly towards persons implicated to their detriment by evidence or information coming before the Committee in the course of its investigations and/or hearings. As I have indicated, the subject matter of inquiries conducted by the Committee is ‘gross violations of human rights’. Many of such violations would have constituted criminal conduct of a serious nature, or at any rate very reprehensible conduct. The Committee is charged with the duty of establishing, inter alia, whether such violations took place and the identity of persons involved therein. The Committee’s findings in this regard and its report to the Commission may accuse or condemn persons in the position of appellants. Subject to the grant of amnesty, the ultimate result may be criminal or civil proceedings against such persons. Clearly the whole process is potentially prejudicial to them and their rights of personality. They must be treated fairly.” (Emphasis added)

54. The significance of the last dictum of the AD is that it is undisputed in the present

case that:

8 Re Pergamon 1970 (3) All ER 535 (CA) 9 Du Preez and Another v Truth and Reconciliation Commission 1997 (4) BCLR 531 (A) at 543I-544B 20

54.1. the crimes allegedly committed in the killings of policemen, security guards

and workers are serious and analogous to the gross violations of human

rights referred to by Corbett CJ;

54.2. in this case too, “the ultimate result may be criminal or civil proceedings

against (the first applicants)” (collectively or individually) is borne out by the

common-cause fact that the Acting National Director of Public Prosecutions

ipse dixit linked the potential reinstatement of the provisionally withdrawn

common-purpose murder charges proffered against the vast majority of the

first applicants directly to the completion of inter alia the Marikana

Commission of Enquiry. Indeed, the criminal trial(s) involving the remaining

charges (including the possession of dangerous weapons, attending of illegal

gatherings and public violence) have been remanded pending the outcome of

the Commission;

54.3. self-evidently, the reputational or privacy rights of those respondents who

have been or may still be mentioned by name by other witnesses as alleged

perpetrators of any wrongdoing are at stake and at risk.

55. It is accordingly plainly erroneous to argue, as the appellant does, that no rights

of the relevant respondents are at issue and therefore that there is no legal duty

to act fairly, both from a procedural and a substantive point of view. The duty to

act fairly arises directly from the potential prejudice likely to befall the relevant

respondents, not from the formal description of the proceedings giving rise

thereto. 21

56. Further support to this approach is found in the case of Bongoza v Minister of

Correctional Services and Others,10 in which Jafta AJP, as he then was,

remarked as follows:

“[21] … I agree with the submission by respondents’ counsel that fairness can be observed and applied outside the well-known court procedure.

[22] Indeed, our Constitution … makes the point abundantly clear in sections 33 and 34. Section 33 provides that every person has the right to lawful, reasonable and procedurally fair administrative action. On the other hand section 34 provides:

‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’

[23] The provisions of section 34 plainly show that the Constitution does not regard courts of law as having an exclusive competence to act fairly. Nor are they considered as having an exclusive entitlement to independence and impartiality. …”

(Emphasis added)

57. In respect of the question of fairness, generally in commissions of enquiry, the

following is stated in Wade and Forsyth:11

“An inquiry is generally inquisitorial in character, and often takes place in a

blaze of publicity. Very damaging allegations may be made against

10 2002 (6) SA 330 TkHC at paras 21-23 11 Administrative Law 10th edition by HWR Wade & CF Forsyth at p 826 22

persons who may have little opportunity of defending themselves and

against whom no legal charge is preferred.

A royal commission (chaired by Salmon LJ) reviewed the whole procedure in 1966 and made fifty recommendations.

In order to minimise the risk of injustice to individuals the Commission identified six ‘cardinal principles’ that all tribunals established under the 1921 Act should observe. In summary these are: (1) that the tribunal should be satisfied that each witness called was really involved; (2) that every witness should be informed of any allegations, and the substance of the evidence, against him; (3) that he should have an adequate opportunity of preparing his case and of being assisted by legal advisers (normally to be paid for out of public funds); (4) that he should have the opportunity of being examined by his own solicitor or counsel; (5) that all material witnesses a witness wishes to be called should, if reasonably practical, be called; and (6) every witness should have the opportunity of testing any evidence which might affect him by cross-examination conducted by his own solicitor or counsel. ” (Emphasis added)

58. It is respectfully submitted that the Salmon principles, although not universally

applied in England, provide a sufficient guideline and reference point for what

would be considered fair in a case such as the present.

59. The position in South Africa has been summarised as follows in LAWSA:12

“The argument that the recommendations of a commission do not prejudicially affect existing rights because they decide nothing in themselves has been rejected. It is now accepted that serious repercussions can flow

12 LAWSA Vol 2 Part 2 para 169 23

from the report of a commission. For example, very damaging findings of fact could be made in respect of people who are named. In addition, a commission’s report may accuse or condemn persons who may then be subject to civil or criminal proceedings. The whole process, it has been held, is potentially prejudicial to a person’s rights of personality.”

60. In the result, and if the constitutional standard of fairness is contextually invalid,

then the only conclusion which may be reached is that sections 9 and 34 of the

Constitution are directly implicated.

61. This court has already unanimously pronounced itself on the centrality of fairness

in respect of the issues raised in the present matter, as follows:

“[15] It may be that it would be fairer to the applicants that they be afforded legal representation all at state expense in circumstances where state organs are given these privileges and where mining corporations are able to afford the huge legal fees involved … Absent a fair opportunity, the search for truth and the purpose of the Commission may be compromised.

[16] This means that unfairness may arise when legal representation is not afforded ….”13

(Emphasis added)

C.3 Does or can section 34 of the Constitution apply to commissions of enquiry?

62. This specific issue will be dealt with more in-depth by counsel for the seventeenth

respondent, who is represented by the Legal Resources Centre. Suffice to state

13 Magidiwana v President of the RSA (No 2) (supra) at paras 15 and 16 24

that as the Marikana Commission was conducted along quasi-adversarial lines,

the approach adopted in both the Mbebe14 and the Bongoza15 matters applies in

the present matter. In this regard, reference can also be made to Regulations 5,

8 and 9(3) of the Regulations to the Marikana Commission.

63. Section 34 applies to the present situation exactly because there is plainly:

63.1. a dispute

63.2. which can be resolved by the application of law

63.3. at a hearing

63.4. held before an independent and impartial tribunal (other than a court).

C.4 Section 9 of the Constitution: The equality clause and the PEPUDA defence

64. Turning to the crucial matter of equality, it must first be mentioned that equality is

both a constitutional value and a right. Given our history, from which our

Constitution expressly marks a decisive break, the right to equality (or, viewed

negatively, the constitutional prohibition to unfair class discrimination) is

sacrosanct. As Mahomed DP once put it:

“there can be no doubt that the guarantee of equality lies at the very heart of the Constitution. It permeates and permeates and defines the very ethos upon which the Constitution is premised.” 16

14 supra 15 supra 16 Fraser v Children’s Court, Pretoria North 1997 (2) SA (CC) at para 20 25

65. Insofar as this matter concerns unfair discrimination in terms of section 9(3) of

the Constitution, counsel for the seventh and eighth respondents (“the families”)

will deal with the issues arising out of the appeal.

66. What we do deal with here is yet another misapprehension of the issues on the

part of the applicant. The main application under Part B of the notice of motion

rested not only on section 9 but on the general rationality test, which derives not

from the equality clause but from the principle of legality and the rule of law, ie

the so-called constitutional review.

67. An appreciation of this fact will simultaneously dispose of two grounds of appeal

raised by the applicant, namely the PAJA point and the PEPUDA point.

68. Simply put, and even assuming the applicant’s PAJA and PEPUDA points were

valid, which is denied, the judgment would still remain intact in that the impugned

decision would still be vulnerable to a general rationality attack, for which no

adequate answer has been provided.

69. More specifically, it must be stated that the 180-day requirement does not apply

outside of PAJA. Also, the unfair discrimination point is raised in terms of section

9(3) and not 9(4) of the Constitution. PEPUDA originates from section 9(4).

70. The following dictum, which basically sums up both the nature and the effect of

the rationality test, will be resorted to in argument to answer most, if not all, of the

remaining grounds of appeal: 26

“Rationality is thus the minimum threshold requirement applicable to the exercise of all public power. Action that fails to pass that threshold is inconsistent with the requirements of our Constitution and therefore unlawful. Thus, whilst the courts should not substitute their opinions as to what is appropriate for those of the persons in whom the power vests, where a decision is held to be objectively irrational, a court would have the power to intervene and set it aside.”17

71. As to separation of powers, the dictum makes it clear that Makgoka J was correct

in that, once he held as he did, if the decision of the applicant in refusing to grant

funding was irrational, then he was entitled and empowered to intervene as he

did. Irrationality provides one of the exceptions to the doctrine of deference or

separation of powers. In any event, it has been correctly observed that “the

principle of the separation of powers has never been absolute in the sense that

each branch of government can intrude on the terrain of other branches, with

appropriate checks and balances”18 (emphasis added).

72. It is respectfully submitted that no rational or logical basis for the decision was

suggested, as was the case in the Pharmaceutical case:

“(I)t would be strange indeed if a court did not have the power to set aside a

decision that is so clearly irrational.”19

17 Legal Aid Board v S 2011 (1) SACR 166 SCA at para 48 18 Y Nkabinde v Judicial Services Commission 2014 (12) BCLR 1477 (GJ) at para 115 19 Pharmaceutical Manufacturers Association of South Africa: In re ex parte President of the Republic of South Africa 2000 (3) BCLR 241 (CC) at para 90 27

73. As to substitution, there has never been an irrefrangible rule against substitution.

It is indeed so that, both at common law and in terms of section 8 of PAJA,

substitution of the requisite decision by the court, as opposed to referral back to

the decision-maker, is permissible in special / exceptional circumstances.

74. There is no need to traverse all the possible special circumstances which have

been recognised by our courts. Suffice to state categorically that the underlying

determinant principle is fairness. As Cora Hoexter succinctly summarises the

legal position:

“Fairness to both sides has always been and will almost certainly remain an

important consideration. Three important common-law principles emerge

from the judgment of Hiemstra J in the well-known City

Council case.20 These are that the court will be prepared to substitute the

decision where the end result is a foregone conclusion, and it would be a

waste of time to remit the decision to the original decision-maker, where

further delay would cause unjustifiable prejudice to the applicant; and where

the original decision-maker has exhibited bias or incompetence to such a

degree that it would be unfair to ask the applicant to submit to its jurisdiction

again”21 (emphasis added).

20 Johannesburg City Council v Administrator, Transvaal 1969 (2) SA 72 (T) at 76D-E 21 Cora Hoexter, Administrative Law in South Africa, Juta (2007) p 489; see also Masamba v Chairperson, Western Cape Regional Committee, Immigrants Selection Board 2001 (12) BCLR (C) at 1259-1260; University of the Western Cape v MEC for Social Services and Others 1998 (3) SA 124 (C) at 131D-J 28

75. It is respectfully submitted that considerations of fairness, discussed

hereinabove, clearly weigh in favour of a substitution order. This is so whether

one looks at fairness from the point of view of “equality before the law” (section 9

of the Constitution) or “equality of arms” (section 34 of the Constitution).

76. Further, it is respectfully submitted that this is a classical case in which it can be

truly said “the result (was) a foregone conclusion and it would (have been) a

waste of time to remit the decision to the original decision-maker” for two

reasons:

76.1. As evinced by the relevant correspondence, the decision-maker was not

prepared to budge even after being appraised of the true facts and the

illogicality of its decision, not only by these victims against whom the

Funding Decision was made but even those in whose favour it was

apparently made. The latter stated clearly in their own answering affidavit

that if the Miners were not funded, then their own participation in the

Commission would in effect become “largely redundant” and meaningless.22

None of this convinced the applicant to reconsider its decision. The position

of the families was never challenged.

76.2. Although the applicant has already settled the issues originally in dispute

between the parties, in that it has agreed to and indeed paid the legal fees

incurred by the Miners, and although it has been conceded that nothing in

law precludes the applicant from providing funding in commissions of

22 Record volume 4 pp 320-321 29

enquiry, the applicant nevertheless holds the view that the court decision

was wrong. Such recalcitrance and intransigence as exhibited by the

applicant would serve to demonstrate that it would have been a mighty

waste of time to remit the decision back to it and expect a different result.

The outcome would have been, in the truest sense of the word, a foregone

conclusion.

77. In all the circumstances, it is respectfully submitted that this was a classical case

in which a substitution order was competent.

78. In any event, the applicant has not presented any countervailing considerations

of fairness in respect of which the substitution order applied for would have been

refused.

79. Even if the affidavits of the applicant’s representatives, which were attested to

subsequent to the court decision appealed against, were liable to be considered

at this stage, which is highly denied and contested, the gravamen of the

allegations contained therein amounts to a non sequitur: the mere fact that

granting legal aid to the Miners would deprive other deserving applicants to legal

assistance thereof, is the logical consequence of granting legal assistance in an

environment of finite resources. If this argument were to be followed to its logical

conclusion, then legal aid, or any other government services, such as housing,

etc, should never be granted to anyone because, in so granting them,

automatically another deserving person is being deprived thereof. When the

applicant granted legal aid to the accused, as ordered by the court 30

and in a trial which lasted for several years, surely millions of other deserving

indigent persons were thereby “deprived” of legal assistance which they would

otherwise have received.

80. Accordingly, the substitution ground of appeal ought properly to be rejected.

D. LEAVE TO APPEAL

81. While it is self-evidently so that the appeal involves a plethora of constitutional

issues, the element of interests of justice is clearly missing. This is also related

to the discussion on mootness. The application for leave to appeal ought to be

rejected for want of the interests of justice ground alone. Nor can it be

convincingly argued that the applicant has demonstrated any prospects of

success on the merits.

E. COSTS

82. Although this court does not ordinarily award costs, it is respectfully submitted

that, in view of the admitted poverty and indigence of the Miners, the history of

this matter, the clear-cut judgment of the SCA and the onerous cost order of the

SCA, this is an appropriate case for this court to grant a cost order in favour of

the Miners. Even in the unlikely event that it could be said that the applicant was

acting in good faith in respect of the SCA appeal, the present appeal ought to be

viewed as spurious and intransigent and bordering on the vexatious. Further

argument will be advanced in this regard. 31

F. CONCLUSION

83. In the result, it is respectfully submitted that it may please the court to grant an

order:

83.1. dismissing the application for leave to appeal with costs; alternatively

83.2. dismissing the appeal with costs.

DC MPOFU SC M QOFA

Counsel for the 1st, 2nd and Further Respondents Duma Nokwe Group

2 April 2015

32

TABLE OF AUTHORITIES

1. AAA Investments (Pty) Limited v Micro Finance Regulatory Council and Another 2006 (11) BCLR 1255 (CC)

2. Bongoza v Minister of Correctional Services and Others 2002 (6) SA 330 TkHC

3. Du Preez and Another v Truth and Reconciliation Commission 1997 (4) BCLR 531 (A)

4. Fraser v Children’s Court, Pretoria North 1997 (2) SA (CC)

5. Grundling v Van Rensburg NO 1984 (4) 680 (W)

6. Johannesburg City Council v Administrator, Transvaal 1969 (2) SA 72 (T)

7. Legal Aid Board v S 2011 (1) SACR 166 SCA

8. Magidiwana and Others v President of the Republic of South Africa 2013 (11) BCLR 1251 (CC)

9. Masamba v Chairperson, Western Cape Regional Committee, Immigrants Selection Board 2001 (12) BCLR (C)

10. National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC)

11. Pharmaceutical Manufacturers Association of South Africa: In re ex parte President of the Republic of South Africa 2000 (3) BCLR 241 (CC)

12. Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA)

13. Radio Pretoria v Chairman, Independent Communications Authority of South Africa 2005 (1) SA 47 (SCA)

14. Re Pergamon 1970 (3) All ER 535 (CA)

15. University of the Western Cape v MEC for Social Services and Others 1998 (3) SA 124 (C)

16. Y Nkabinde v Judicial Services Commission 2014 (12) BCLR 1477 (GJ)

33

PUBLICATIONS

17. Administrative Law 10th edition by HWR Wade & CF Forsyth

18. Cora Hoexter, Administrative Law in South Africa, Juta (2007)

19. LAWSA Vol 2 Part 2