IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO.: 188/14

In the matter between:

LEGAL AID SOUTH AFRICA Applicant

and

MZOXOLO MAGIDIWANA First Respondent

INJURED AND ARRESTED PERSONS Second and Further Respondents

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third Respondent

THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Fourth Respondent

THE MARIKANA COMMISSION OF INQUIRY Fifth Respondent

PARTIES TO THE MARIKANA COMMISSION OF INQUIRY Sixth to Nineteenth Respondents

APPLICANT’S WRITTEN SUBMISSIONS

2

TABLE OF CONTENTS

INTRODUCTION...... 3

OVERVIEW OF SUBMISSIONS……………………………………….………………….4

BACKGROUND FACTS…………………………..…………………….………………….6

The establishment of the Marikana Commission……...... 6

The Miners’ request to the Minister…………………………………………………...7

The Miners’ request for funding from Legal Aid SA…….…………………………...8

THE STATUTORY SCHEME……………………………………………………………9

The Legal Aid Act and the requirement of “substantial injustice”……….…………11

Relevant provisions of the Legal Aid Guide……………………………………...... 12

The discretion of the CEO to waive the conditions of the Legal Aid Guide………..15

THE MINERS’ PLEADED CASE………………………………………………………...17

THE REASONING OF THE HIGH COURT……………………………………………19

THE REASONING OF THE SCA………………………………………………………..21

FIRST CONTENTION: THE APPEAL WILL HAVE PRACTICAL EFFECT……...21

SECOND CONTENTION: THE RELIEF GRANTED TO THE MINERS WAS NOT PLEADED…………………………..……………………………………….....26

THIRD CONTENTION: SECTION 34 OF THE CONSTITUTION DOES NOT APPLY TO THE COMMISSION……….………………………..………….…..….27

FOURTH CONTENTION: IMPERMISSIBLE DIRECT RELIANCE ON SECTION 9 OF THE CONSTITUTION……….…………………………………………31

FIFTH CONTENTION: THE ORDER OF SUBSTITUTION VIOLATES THE SEPARATION OF POWERS……………………………..………………………...34

LEAVE TO APPEAL………………………………………………………………………39

LEAVE TO FILE LEGAL AID SA’S REPLYING AFFIDAVIT………………………40

CONCLUSION……………………………………………………………………………..41 3

INTRODUCTION

1 Legal Aid SA is a statutory body, established under section 2 of the Legal Aid Act 22

of 1969 (“the Legal Aid Act” or “the Act”). The First, Second and Further

Respondents (“the Miners”) were involved in the well-known tragedies that took place

at the Lonmin mine in August 2012 (“the Marikana Incident”) as either victims or

alleged perpetrators. The nature of their involvement is contested before the

Commission. However, it is not relevant to the merits of this application for leave to

appeal.

2 On 18 October 2012, Legal Aid SA declined the Miners’ application for funding

(“the Funding Decision”).1 The Miners took issue with this.2 Legal Aid SA had

previously granted funding for a similar purpose to 23 families who had lost

breadwinners in the Marikana Incident, but who, unlike the Miners, had no knowledge

of the events that had taken place at that time (“the First Decision”).3 The Pretoria

High Court (“the High Court”) granted an order, inter alia, setting the Funding

Decision aside.4

3 The High Court granted the above relief despite the fact no review of the decision in

terms of PAJA had been instituted (and was expressly disavowed). The High Court

held that the Funding Decision was irrational and unconstitutional.5 Having done so, it

substituted the Funding Decision for its own, directing Legal Aid SA to provide

1 Annexure MM11, pages 245-6 of Record 2 Annexure MM12, pages 247-50 of Record

3 Paragraphs 13.1 and 13.4 of Legal Aid SA’s Answering Affidavit, pages 453 and 454, respectively. 4 High Court Judgment at para 1, Vol 2, page 104 of the Record 5 Id at para 101, Vol 2, page 149 of the Record 4

funding to the Miners’ legal team forthwith.6 Moreover it did so notwithstanding the

fact that there was no evidence before it as to the impact of such an order.

4 Legal Aid SA appealed this decision with the High Court’s leave.7 Legal Aid SA did

not oppose the Miners’ Rule 49(11) application for leave to execute the judgment of the

High Court pending the outcome of Legal Aid SA’s appeal. The SCA then dismissed

Legal Aid SA’s appeal on the express basis that the appeal was academic, inasmuch as

the agreement as to funding had been reached between Legal Aid SA and the Miners’

legal team. In fact, this was not the case. The effect of the SCA’s decision to dismiss

Legal Aid SA’s appeal leaves the judgment and reasoning of the High Court

unchanged.

5 In stark terms, the effect of the High Court’s decision to order Legal Aid to provide

funding (and based on the projected costs of such funding) until April 2014 is that

Legal Aid will be unable to provide funding for at least 3800 poor and indigent persons.

OVERVIEW OF SUBMISSIONS

6 These submissions address the following contentions:

6.1 First, this appeal will have practical effect for the ongoing work of Legal Aid

SA. The High Court decision lays down principles of law, particularly the

application of section 34 of the Constitution to funding commissions of

inquiry, which will continue to impact on the work of Legal Aid SA unless

corrected;

6 Paras 3 and 4 of the High Court Judgment, Vol 2, page 104-5 of the Record 7 Notice of Appeal, Vol 1, pages 75-9 of the Record 5

6.2 Second, the High Court erred in granting the applicants relief which was not

pleaded;

6.3 Third, the High Court erred in holding that section 34 applied to Commissions

of Inquiry;

6.4 Fourth, the applicants impermissibly relied on section 9 of the Constitution

instead of proceeding in terms of the Promotion of Equality and Prevention of

Unfair Discrimination Act 4 of 2000; and

6.5 Fifth, even if it is held that there was a proper basis to entertain the application,

the order of substitution was inappropriate.

7 Before addressing these contentions we set out:

7.1 the relevant facts;

7.2 the statutory framework;

7.3 the case pleaded on the papers;

7.4 the reasoning of the High Court; and

7.5 the reasoning of the SCA. 6

BACKGROUND FACTS

The establishment of the Marikana Commission

8 The Marikana Incident took place from 11 to 16 August 2012. The incidents that

transpired on that date led to the deaths of 44 people, injuries to more than 78 people

and the arrests of 259 people.8 The Miners in this application are those miners who

were arrested and charged with the murders of the 34 deceased persons.9

9 The Commission was appointed by the President.10 It is an investigative tribunal. The

purpose of its work is set out in its Terms of Reference, which make clear that its task is

to investigate what occurred.11

10 In terms of paragraph 4 of the Terms of Reference, the Commission is enjoined to

“submit interim reports and recommendations to the President each month”. It is

provided that the Commission’s work will be concluded upon the delivery to the

President of a “final report”.

11 Paragraph 6 of the Commission’s Terms of Reference makes provision for the

promulgation of regulations (“the Regulations”).

12 The President first promulgated the Regulations on 28 September 2012.12 Regulation 8

concerns the rights of persons appearing before the Commission to the assistance of a

legal representative. The proceedings before the Commission were conducted in a

8 Ibid at paragraph 12, Vol 2, page 108 of the Record 9 Ibid at paragraph 44, Vol 2, page 122 of the Record 10 Proclamation No 50, GG 35680, 12 September 2012 11 See the second preambular paragraph of the Commission’s Terms of Reference, Vol 5, page 429 of the Record 12 Proclamation No 59, GG 35730, 28 September 2012 7

largely quasi-adversarial manner, and Regulation 8 provides that “[a]ny person

appearing before the Commission may be assisted by an advocate or an attorney”.

13 The Commission designated seven advocates to lead evidence before it (“the Evidence

Leaders”). The Evidence Leaders were assisted by a team of investigators. The

Evidence Leaders and investigators were remunerated from State funds. State funds

were also utilised for the purpose of funding the legal representation of other State

organs who were present before the Commission.

14 The Regulations were amended on 14 November 2012.13 The amendments provided,

inter alia, for State funding for the reasonable costs of the transport and accommodation

of families of victims. However, no amendment was made to the Regulations to

provide for state-funded legal representation.

The Miners’ request to the Minister

15 On 10 October 2012, the Miners sought funding for their legal representatives from the

Minister. They recorded their view that it was “unconscionable to utilise state

funding budgeted for the Commission only for the state parties and Commission

itself without allocating a portion thereof for the benefit of the victim parties”.

The Miners went on to allege that they were being “discriminated against by being

excluded from the pool of parties which enjoy state funding for their participation

in the Commission. … .”.14

16 In the same letter, the Miners recorded that, in the event that the Minister declined their

request, or in the event that the matter was not “resolved soon and amicably”, the

13 Proclamation No 66, GG 35875, 14 November 2012 14 Paragraph 8 of the Miners’ letter to the Minister on 10 October 2012, Vol 3, page 238 of the Record 8

Miners were willing to take “whatever steps … necessary to ensure a positive

outcome”. These steps included, but were “not limited to” the institution of “urgent

court proceedings to compel the South African government to treat them

equitably vis-à-vis other parties in the Commission”.15

17 The Minister declined the request, inter alia, on the basis that “the Legal Aid Board of

South Africa is the only existing framework through which the State can provide

legal assistance in legal proceedings to persons who meet the requirement for such

an assistance [sic].”

18 After receiving the letter above, no further correspondence was directed to the Minister.

The Miners’ request for funding from Legal Aid SA

19 The Miners wrote to Legal Aid SA on 15 October 2012, requesting funding for the

Miners for the purposes of legal representation before the Commission.

20 Legal Aid SA responded to the Miners’ letter on 18 October 2012.16 In its reply, Legal

Aid SA stated that:

20.1 While no express provision for funding commissions of inquiry was contained

in the Guide as at 2012, a decision was taken to fund the families of the

deceased victims, in terms of the discretionary power vested in Legal Aid SA;

20.2 There was no indication that the Respondents would benefit substantially from

separate representation at the Marikana Commission, over and above the

representation already provided for them by the trade unions;

15 Paragraph 11 of the Miners’ letter to the Minister on 10 October 2012, page 239A of the Record 16 This response is attached as annexure MM13 to the Miners’ founding affidavit in the High Court, Vol 3, pages 251-3 of the Record 9

20.3 Given the severe budgetary constraints limiting Legal Aid SA’s ability to

provide funding as a function of its discretionary power, Legal Aid SA

declined the Respondents’ request.

21 The Miners sent a reply to this letter on 5 November 2012. In the letter, they recorded

their dissatisfaction with Legal Aid SA’s position. However, they expressly stated that

they did not seek to impugn the exercise of the CEO’s discretion as unlawful.17

22 Legal Aid SA sent a response to the latter correspondence on the following day. For

the avoidance of doubt, Legal Aid SA repeated the reasons for the CEO’s decision not

to fund the Miners. The Miners did not respond to this letter. The Miners instead

sought to bring an application against Legal Aid SA mid-way through the following

year, way beyond the 180-day period required by PAJA.

THE STATUTORY SCHEME

23 The point of departure in the judgment of the High Court, as we shall explain further

below, is that section 34 of the Constitution is applicable to the proceedings before the

Commission.18 We submit this was a misdirection. Section 34 of the Constitution

concerns the right of access to courts for the purpose of the resolution of legal

disputes.19

24 Under the Commissions Act, commissions of inquiry are investigative by definition.

The long title of the Commissions Act provides that the purpose of the enactment is to

“make provision for conferring certain powers on commissions appointed … for

17 Paragraph 14 of the Miners’ correspondence dated 5 November 2012, Vol 3, page 249 of the Record 18 Para 67 of the High Court Judgment, Vol 2, page 132 of the Record 19 Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) at para 22 10

the purpose of investigating matters of public concern, and to provide for matters

incidental thereto.” This investigative role is borne out by section 1 of the

Commissions Act in explicit terms.

25 The Commission has been appointed for the purpose of “investigating a matter of

public concern”. It will not resolve a dispute, nor dispose of the rights of any of its

participants. As the President and the Fourth Respondent (“the Minister”) attested,20

the Commission will not even issue findings or recommendations that are dispositive of

any of its participants’ rights.

26 Regulation 8 permits any person appearing before the Commission to avail themselves

of the assistance of “an advocate or attorney”. Regulation 11 reinforces the

investigative (as opposed to dispositive) nature of the Commission’s task.21

27 The recommendations of the Commission, furthermore, will not bind the President,

who himself appointed the Commission.22 We submit that the Funding Decision must

be viewed in this light. One of several threshold requirements for funding under the

Legal Aid Act and Legal Aid SA’s policy framework, as we explain below, requires

that the absence of legal aid must give rise to “substantial injustice”. In the

circumstances, the Funding Decision found, lawfully it is submitted, that the Miners

had not met that requirement.

20 Answering Affidavit of the President and the Minister at paras 8 to 10, Vol 5, pages 350-69 of the Record 21 Para 11of Annexure JS1, Vol 5, pages 426-7 of the Record, provides as follows: “Whenever the Commission is satisfied upon evidence or information presented to it that the Commission’s inquiry may adversely affect any existing, instituted or pending legal proceedings or any inquiry instituted in terms of any law, evidence which is relevant to such legal proceedings or inquiry shall be dealt with by the Commission in such a manner as not to affect adversely such legal proceedings or inquiry.” 22 Answering Affidavit of the President and the Minister at para 8.3, Vol 3, pages 201-2 of the Record 11

The Legal Aid Act and the requirement of “substantial injustice”

28 All indigent persons in South Africa are potential clients of Legal Aid SA.23 The

“objects and general powers” of Legal Aid SA, as provided in section 3 of the Legal

Aid Act, are “to render or make available legal aid to indigent persons” and to

provide legal representation “at State expense as contemplated in the Constitution”.

29 In order to achieve its mandated objectives, Legal Aid SA is provided annually “with a

specific and finite amount of money”24 from the National Revenue Fund in the form

of a budget, which is approved by Parliament under section 213 of the Constitution read

with section 9(1) of the Legal Aid Act. The reality, however, is that it does not have

sufficient financial resources to meet every indigent person’s needs.

30 It is in the light of this reality that Legal Aid SA is expressly vested inter alia with the

following powers:

30.1 Pursuant to section 3(d) of the Legal Aid Act, to fix conditions subject to which

legal aid is to be rendered;25 and

30.2 Pursuant to section 3(dA) of the Legal Aid Act, to provide legal representation

at State expense if “substantial injustice would otherwise result”, as

contemplated in section 25(1)(c) read with section 33(2) of the Constitution,

now regulated respectively under sections 35(2) and (3) and section 36 of the

Constitution of the Republic of South Africa.26 Section 28(1)(h) also requires

23 Supporting Affidavit of Patrick Hundermark, at para 9, Vol 1, pages 69-70 of the Record 24 Supporting Affidavit of Patrick Hundermark, at para 5, Vol 1, page 68 of the Record 25 Id at para 4.1 26 Id at para 4.2 12

the assignment of a legal practitioner to a child at state expense “if substantial

injustice would otherwise result”.

31 The requirement of “substantial injustice” is thus a necessary condition for Legal Aid

SA’s funding of the legal representation of any given person who applies for it. The

phrase is not defined in the Legal Aid Act, or the Constitution. Sections 35(2) and (3)

of the Constitution concern the rights of “[a]rrested, accused or detained persons” in

respect of criminal proceedings launched against them while section 28(1)(h) relates to

the interests of children. They do not concern the rights of persons who appear as

witnesses before commissions of inquiry.

Relevant provisions of the Legal Aid Guide

32 In terms of section 3A of the Legal Aid Act, the promulgation of the Legal Aid Guide

is a statutory duty. The provisions therein are expressly imbued with statutory force.

Section 3A(1)(a) requires Legal Aid SA to publish the Legal Aid Guide and to provide

legal aid to the public in accordance therewith. Section 3A(1)(b) then renders the

provisions of the Legal Aid Guide legally binding upon Legal Aid SA and, subject to

the discretion of the CEO,27 constrains Legal Aid SA from acting outside of its bounds.

33 Legal Aid SA’s financial capacity to discharge its mandate is limited. The budget

allocated to it for the period covering the Funding Decision was committed in

accordance with a policy that it had formulated in respect of all programmes, which

included, inter alia, the salaries of Legal Aid employees, as well as the fulfilment of

Legal Aid SA’s contractual obligations.28

27 Clause 10.2.3 of the Legal Aid Guide 2012 28 Supporting Affidavit of Patrick Hundermark, at para 6, Vol 1, page 68 of the Record 13

34 The Legal Aid Guide itself expressly recognises the reality of Legal Aid SA’s resource

constraints. They are acknowledged in Judge President Mlambo’s foreword, where he

states that “it is not possible to provide legal aid in all instances due to budgetary

and resource constraints.”29

35 In any given year, the funding for which Legal Aid SA is responsible is subject to the

competing interests of thousands of people, before a number of fora, on an ongoing

basis.30 It follows that the manner in which Legal Aid SA allocates its resources must

be sustainable, and it must simultaneously have proper regard for the appropriate

balancing of competing rights, as limited by Legal Aid SA’s available resources. This,

too, is recognised in the Legal Aid Guide.31

36 In our submission, the balancing exercise required to achieve a “sustainable scheme”

is a complex polycentric issue. Given the reality that even criminal and civil cases

serving before courts may not be capable of accommodation within Legal Aid SA’s

allocated budget,32 priority is given for the provision of legal aid to those identified in

the Constitution in sections 35 and 28 and women, particularly in family related cases,

but only where the other party is legally represented.33

29 Pages iii-iv of the Legal Aid Guide 30 Legal Aid Answering Affidavit, at para 10.2, Vol 6, page 447 of the Record

31 Page iv of the Legal Aid Guide provides that “the poor and vulnerable can only realise their socio- economic rights and have such rights protected and enforced if there is a sustainable legal aid scheme. This guide sets the foundation for such a sustainable scheme. This then ensures that the rule of law is respected which in turn aids good governance, which is essential for sustainable economic development”. (Our emphasis) 32 Supporting Affidavit of Patrick Hundermark, at para 7, Vol 1, page 69 of the Record

33 Id at paras 7.4 to 8, Vol 1, page 69 of the Record 14

37 Aside from the “means test” requirement, each of these priorities is subject to the

additional gateway requirement of the prevention of “substantial injustice”. The

definitions section of the Legal Aid Guide defines “substantial injustice” as follows:

“When a person without legal aid would experience significant injustice by being sentenced, or having the possibility of being sentenced, to direct imprisonment of more than 3 months in a criminal case, or where his/her constitutional or personal rights are affected in a civil matter.”34

38 The Legal Aid Guide provides further illustration as to the circumstances in which legal

aid will be granted in civil disputes:35

“A litigant who is indigent in a civil matter will only be granted legal aid if the matter has prospects of success on a balance of probabilities. This depends on the availability of resources where substantial injustice would otherwise result.” (Our emphasis)

39 A “civil matter” does not cover proceedings like those before the Commission. The

concept of “prospects of success” is inapposite in the context of the proceedings before

the Commission. The proceedings before the Commission cannot be said to give rise to

an apprehension of “substantial injustice” on the definition above. The Commission’s

recommendations, whatever they may ultimately be, will not even bind the President,

let alone a court or tribunal that may subsequently be seized of a related issue.

40 The Legal Aid Guide makes clear that what is contemplated is that Legal Aid must

allocate its resources primarily in respect of disputes that serve before courts. The

Legal Aid Guide moreover provides that legal aid is generally “not available for any

34 Page 18 of the Legal Aid Guide 2012

35 Page 38 of the Legal Aid Guide. See also the Legal Aid Answering Affidavit, at para 47, Vol 6, page 468 of the Record 15

non-litigious matter, including any arbitration or mediation”.36 No legal aid is

generally provided for CCMA or bargaining council proceedings.37 It is similarly

unavailable for the purposes of hearings held before administrative tribunals.38

41 On the present facts, then, the funding being provided to the Miners pursuant to the

order of the court below is unbudgeted expenditure. This bears emphasis, because any

funding provided by Legal Aid SA for the purposes of the Commission constitutes

funding that must necessarily be foregone in respect of legal representation for indigent

people facing criminal and civil trials, or for domestic and custody matters concerning

the rights of women and children.

The discretion of the CEO to waive the conditions of the Legal Aid Guide

42 Notwithstanding the limitations set out in the Legal Aid Guide, a discretion reposes

with the CEO of Legal Aid SA to deviate from them in appropriate circumstances.

This is what happened in the First Decision. Clause 10.2.3(a) of the Legal Aid Guide

provides as follows:

“Discretion of CEO

The CEO may exercise a general discretion to:

 Waive any condition, procedure or policy set out in this Guide as long as this is within the overall authority of the Legal Aid Act  Provide for any issue not covered in this Guide. However, when the CEO exercises this discretion, he/she must report on it to the Board Executive Committee at its next regular meeting.”39

36 Clause 4.9.1(l) at page 54 of the Legal Aid Guide 2012. “Non-litigious” matters are defined at page 14 of the Legal Aid Guide as matters “that do not go to court, but may be solved in other ways”. 37 Clause 4.10.12 at page 56 of the Legal Aid Guide 2012 38 Clause 4.9.1(l) at page 55 of the Legal Aid Guide 2012

39 Page 140 of the Legal Aid Guide 2012 16

43 The CEO’s discretion is exercised within the context of Legal Aid SA’s budgetary

constraints and the competing demands for its limited resources. The circumstances

relevant to each of Legal Aid SA’s First and Funding Decisions included the following:

43.1 In respect of the First Decision, although no specific budgetary provision had

been made for Legal Aid SA to fund commissions of inquiry, the CEO

exercised her discretion in favour of the applicants for legal aid on the basis

that they “consisted of women, children and elderly persons who are all

recognised as vulnerable groups”, and whose “vulnerability was further

exacerbated by the loss of their bread winners in circumstances unknown

to them”.40 She also exercised her favourable discretion for the practical

reason that “these families”, not having been present at the Marikana Incident,

“would not be in a position to provide their attorneys with instructions in

any civil claim as to how the events of the tragic day unfolded as they were

not present”.41

43.2 The Funding Decision was made after the First Decision had been made. Thus,

having allocated resources to the limited number of people in the First

Decision, Legal Aid SA was called upon to allocate further resources for which

no budgetary provision had been made. It was moreover asked to provide

funding to the 270 Miners, who were far larger in number. The 270 Miners

were all present at the Marikana Incident and could all themselves testify as to

the events that took place there. None of the 270 Miners were elderly persons,

women, or children. They were also represented by their trade unions.

40 Legal Aid SA’s Answering Affidavit, at para 13.1, Vol 6, page 453 of the Record 41 Ibid 17

44 In our submission, the Funding Decision was therefore legally unimpeachable and was

never challenged under PAJA.

THE MINERS’ PLEADED CASE

45 The Miners did not institute litigation immediately after the Funding Decision was

made. The Miners made their application in the High Court on 21 June 2013, more

than eight months after the Funding Decision.

46 The application was in two parts. Part A of the application initially sought, inter alia, to

interdict the Marikana Commission from proceeding with its functions pending the

determination of Part B. Part A failed in both the High Court and this Court.

47 In dismissing the Miners’ subsequent appeal in respect of Part A, this Court stated:

“[W]hether the desirable objective of ‘equality of arms’ before a commission translates into a right to legal representation at state expense is a contestable issue. A consideration that comes into play is that it is the object of the Legal Aid Act to render or make available legal aid to indigent persons and to provide legal representation at state expense as contemplated in the Constitution. Its provisions have not been challenged as constitutionally invalid, nor has the refusal by Legal Aid [SA] to grant the applicants legal aid been challenged on review.”42 (Our emphasis)

48 We emphasise the underlined portion of the quote above because it is that aspect of the

dictum that foreshadows what we consider to be one of several insuperable difficulties

for the Miners in respect of Part B. In short, the difficulty is this: in the papers that

served on behalf of the Miners in the original application, there is no case made out for

a review of the Funding Decision either on its own or with regard to Legal Aid SA’s

affirmative funding decision to fund the bereaved families. That is not the basis for the

42 Para 16 of this Court’s judgment in Part A (cited as Magidiwana and Others v President of the Republic of South Africa and Others 2013 (11) BCLR 1251 (CC)). 18

Miners’ allegation of a violation of section 9 of the Constitution. The basis for the

alleged section 9 violation was instead that the State had been the perpetrator thereof,

since it had permitted and actively funded certain entities appearing before the

Commission, but it had failed to fund the legal team of the Miners. This is captured in

clear terms at paragraphs 31 and 32 of the Miners’ founding affidavit.43

49 After citing examples of funding and financial allocations made by the government of

the Republic of South Africa, the Miners’ founding affidavit then avers as follows:

“Despite being repeatedly requested to do so, the South African state, in its various guises, and as represented by the first to third respondents, has failed and/or refused to assume any responsibility for the legal costs and fees associated with the presentation of the version of the victims at the Commission. This is the main subject matter of the present application.” (Our emphasis)

50 The Miners made clear that the reference to the State in its various guises, excluded

Legal Aid SA.44 The Funding Decision of Legal Aid SA was entirely unrelated to the

above. Moreover, the Miners make no allegation of unequal treatment by Legal Aid

SA in funding the bereaved families and then subsequently refusing the Miners’ own

requests.45

51 This is reinforced by the Miners’ clarification of their position at paragraph 83 of their

replying affidavit. There, the Miners make clear that the Miners’ equality challenge is

directed elsewhere:

“The issue of ‘inequality’ and ‘unfair discrimination’ is, by definition, an exercise in comparison. The nub of the inequality leg of the application is

43 Founding Affidavit, Vol 2, pages 173-4 of the Record 44 Miners’ Replying Affidavit, Vol 6, at para 169, page 571 of the Record 45 Miners’ Founding Affidavit, Vol 2, at para 73, page 189 of the Record 19

the position of the applicants in relation to other Commission parties or participants, notably the police and to some extent Lonmin.”46

52 It is apparent, then, that the Miners’ founding affidavit never actually asserts an

irrational or unfairly discriminatory differentiation in respect of the Funding Decision

as against the CEO’s decision in respect of the bereaved families. This, in our

submission, is fatal to the Miners’ case. We will discuss this point further below.

THE REASONING OF THE HIGH COURT

53 The High Court’s reasoning, in summary, was as follows:

53.1 First, it held that the application had “always been a review application” and

should be treated as such;47

53.2 Second, the court held that section 34 of the Constitution was applicable to the

proceedings before the Commission;48

53.3 Third, the court held that section 34 of the Constitution subsumed the principle

of “equality of arms” which, when applied in the context of the Commission,

gave rise to a constitutional obligation to ensure that the applicants were legally

represented before the Commission;49

53.4 Fourth, because the applicants could not afford to pay their legal

representatives themselves, the court held that the entitlement flowing from

section 34 of the Constitution included an entitlement to the funding of their

46 Miners Replying Affidavit, Vol 6, at para 83, page 547 of the Record 47 High Court Judgment, Vol 2, at para 10, page 107 of the Record 48 High Court Judgment, Vol 2, at para 67, page 132 of the Record 49 High Court Judgment, Vol 2, at para 66, page 132 of the Record 20

legal team at the State’s expense50 and, moreover, that such funding could only

be provided by the State through Legal Aid and no one else;51

53.5 Fifth, viewed against Legal Aid SA’s First Decision (the decision to fund the

legal representation of the 23 families who had lost breadwinners in the

Marikana Incident), the court held that the Funding Decision violated the

Miners’ equality rights under section 9 of the Constitution, in that it was both

irrational and unfairly discriminatory;52 and

53.6 Sixth, notwithstanding the public nature of Legal Aid SA’s resources and the

polycentric nature of its decisions concerning resource-allocation and the

enormous adverse consequent impact on Legal Aid SA’s ability to provide

legal aid to other indigent persons (the latter of which was not considered in the

judgment), the court held that the unlawfulness of the Funding Decision was

sufficient, in the circumstances, to justify an order that Legal Aid “provide

legal funding to the applicants” for their participation in the proceedings

before the Commission;53 and

53.7 Finally, the court held that Legal Aid should pay the Miners’ costs.54

54 We deal below with the reasons why we submit that the High Court erred in all of these

findings.

50 High Court Judgment, Vol 2, at para 68, page 132 of the Record 51 High Court Judgment, Vol 2, at paras 78 and 101, pages 137 to 149 of the Record, respectively 52 High Court Judgment, Vol 2, at para 96, page 147 of the Record 53 High Court Judgment, Vol 2, at para 101, page 149 of the Record 54 Ibid. 21

THE REASONING OF THE SCA

55 The majority judgment of the SCA dismissed Legal Aid SA’s appeal on the basis that a

judgment from the latter court would have no practical effect. It purported to do so on

the basis of its conclusions that –

55.1 Since Legal Aid SA had accepted its liability to fund the Miners, there was thus

no dispute or lis between them (in respect of which the SCA is unanimous);

55.2 that being so, the SCA has no discretion to decide such issues (in respect of

which the court splits 3 to 2); and

55.3 even if the SCA had such a discretion, the case presented no discrete legal issue

of public importance.

56 In our submission –

56.1 In the first instance, the SCA was incorrect at the level of fact in finding that

there was no lis between the parties; and

56.2 In the second instance, the SCA was incorrect at the level of law: it failed to

consider whether it would be in the interests of justice to entertain Legal Aid

SA’s appeal, in spite of its finding that there was no live controversy before it.

The circumstances of this case strongly indicate a pressing need for this

enquiry to have been undertaken.

FIRST CONTENTION: THE APPEAL WILL HAVE PRACTICAL EFFECT

57 The SCA dismissed the appeal in terms of section 16(1)(a)(i) of the Superior Courts

Act 10 of 2013 (“the Superior Courts Act”) on the basis that the judgment or order

would have no practical effect or result. 22

58 We respectfully submit that the SCA erred in this regard both factually and legally.

Although we address these errors below, it is not strictly necessary to do so because this

Court derives its jurisdiction from the Constitution and not the Superior Courts Act.55

59 This Court has frequently exercised its appellate jurisdiction in cases which were moot

as between the parties but where the interests of justice nevertheless justified on appeal.

This is so even where this Court’s order would have no practical effect.56

60 The only respect in which it could be said that the issue is now moot is that the

Marikana Commission has run its course (save for the Report) and the Miners have

received their funding. By contrast, the High Court decision, if allowed to stand, will

be authority for the following propositions:

60.1 Section 34 of the Constitution binds Legal Aid SA.

60.2 A court may order a departure from Legal Aid SA’s funding policy in

execptional circumstances, even where to do so has major implications for

Legal Aid SA’s budget and constitutional obligations;

60.3 Not only may a court order a departure from Legal Aid SA’s funding policy,

but it may also substitute Legal Aid SA’s decisions in the absence of any

enquiry as to the financial implications of so doing.

61 It is submitted that these are precisely the kind of factors which justify an appeal to this

Court.

55 Khumalo v Holomisa 2002 (5) SA 401 (CC) at para 7-8 56 MEC for Education, KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC) at para 32, referring, inter alia, to Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11 and AAA Investments (Pty) Limited v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) at para 27 23

62 To the extent necessary, it is submitted that the majority of the SCA erred in the

interpretation of section 16 of the Superior Courts Act, in light of its own jurisprudence

dealing with section 21A(1) of the Supreme Court Act (which, for practical purposes is

to the same effect). Thus, for example, the SCA has previously exercised its discretion

to hear an appeal in a matter that had become moot in order to provide “future

guidance” in a matter involving important questions of law on which there is little

authority.57 It has also entertained an appeal which had been perempted in the

“broader interests of justice”.58 There are several other examples.59

63 In any event, it is submitted that the SCA failed to approach the issue on the correct

facts.

64 Legal Aid SA, as set out in the Stated Facts, sought, and was granted, leave to appeal.

Concurrently with its application to do so, the Miners brought an application in terms of

Rule 49(11) of the Uniform Rules of Court. The Miners sought to have the court

permit the execution of the High Court’s order pending the determination of any

appeal. Legal Aid SA did not oppose the Miners’ Rule 49(11) application. The High

Court thus ordered Legal Aid SA to take steps to provide funding to the Miners in the

interim, notwithstanding Legal Aid SA’s appeal. Pursuant to this order, Legal Aid SA

negotiated and concluded an agreement with the legal representatives of the Miners

(“the Funding Agreement”).60 None of this precluded an appeal. In R (on the

57 Midi Television (Pty) Limited t/a e-tv v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) at para 4 58 Minister of Defence and Others v South African National Defence Union [2012] JOL 29606 (SCA) at paras 22-23 59 See, for example, Road Accident Fund v Faria 2014 (6) SA 19 (SCA) at paras 18 and 19; Natal Rugby Union v Gould 1999 (1) SA 432 (SCA); Land & Landbouontwikkelingsbank van Suid- Afrika v Conradie 2005 (4) SA 506 (SCA) at paras 6-7 and 14; Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 1273 (SCA) at paras 31-4 60 Legal Aid SA’s Stated Facts, Vol 1, at para 58, page 20 of the Record 24

application of Humberstone) v Legal Services Commission,61 the Legal Services

Commission in England did precisely the same thing pending an appeal on an issue of

principle, and the Court lauded the decision to do so:

“Before the hearing of this appeal, it was contended for the respondent that the appeal was now moot and we should not hear it. At the outset of the hearing, we rejected that submission. It seemed to us that the Commission took a responsible attitude towards Ms Humberstone’s position. It was naturally a matter of some concern that the inquest had been delayed by the refusal of the funding application and the judicial review proceedings. The Commission took the view that it should reserve its position by appealing so that any matter of principle could be determined by this court, without causing further delay to the inquest. It would be quite wrong, in our view, to deprive the Commission of its right of appeal (for which it has obtained permission) simply because it took a pragmatic and helpful approach to the conduct of this particular inquest.”62 (Our emphasis)

65 The Funding Agreement, on its own terms, is not a settlement agreement. Legal Aid

SA concluded the Funding Agreement because, at that time, the Marikana Commission

was threatened with disruption, and it was thought best to avoid this from happening, in

the general public interest.

66 The Funding Agreement was concluded on 11 December 2014,63 over two months after

the SCA handed down judgment.

67 The Funding Decision was made pursuant to the discretion of Legal Aid SA’s CEO.

That discretion arises from the provisions of the Legal Aid Guide, which provisions are

binding on Legal Aid SA. It is a discretion whose proper exercise is essential to the

discharge of Legal Aid SA’s statutory mandate. Taking into account the swathe of

indigent persons who might call on Legal Aid SA for representation, the discretion of

61 [2010] EWCA Civ 1479 62 Ibid at para 8. 63 Legal Aid SA’s Stated Facts, Vol 1, at para 56, page 19 of the Record 25

the CEO as a function of Legal Aid SA’s governance framework is, naturally,

frequently called into play.

68 For Legal Aid SA, the ‘practical effect’ of an order on the merits of the present case

goes further than the immediate financial impact of the order given in the court below.

The exercise of the CEO’s discretion is a key function in the regulation of Legal Aid

SA’s affairs, and we submit that this Court’s interpretation of the limits of that

discretion will mitigate the risk and cost of Legal Aid SA’s involvement in litigation

such as the present.

69 One ready example of this is the fact that, since the judgment of the High Court, Legal

Aid SA has been asked to provide funding for the purposes of representation for the

families of the bereaved at inquest proceedings pertaining to the Rheenendal bus

tragedy.64 The applicants for the legal funding in the above matter argue that their

request was wrongly refused based upon the “profound impact” that funding would

have “on similar matters throughout the country”.65

70 Inquests are primarily the purview of the National Prosecuting Authority, and there

have been as many as 44 993 inquest dockets sent by the South African Police Service

to the National Prosecuting Authority in the 2013/2014 financial year alone.66

71 The judgment of the High Court leaves Legal Aid SA with no certainty as to the

funding that it may be required to allocate in respect of the latter number. Whatever the

64 Legal Aid SA’s Founding Affidavit, at para 46, in this application for leave to appeal 65 Annexure PRH12 to Legal Aid SA’s application for leave to appeal to this Court 66 Legal Aid SA’s Founding Affidavit, at para 46.3, in this application for leave to appeal 26

number, however, Legal Aid SA’s budget could not bear the load without sacrificing

funding allocated for the purposes of vindicating other indigent persons’ rights.67

72 In our submission, the practical effect of a clarification of the correct position in law

regarding the legal duties of Legal Aid SA is necessary to regulate future decisions by

Legal Aid SA and to give effect to its statutory mandate. We submit that this is pre-

eminently a case in which the interests of justice call for this Court’s intervention.

SECOND CONTENTION: THE RELIEF GRANTED TO THE MINERS WAS NOT

PLEADED

73 The High Court, purportedly elevating substance above form, treated the Miners

application as if it were a review. It is submitted that it erred materially in this regard.

The Miners expressly disavowed reliance on PAJA. This Court had already found that

“the refusal by Legal Aid South Africa to grant the applicants legal aid” had not

“been challenged on review”.68 Even if the application was in substance a review, it

had been brought outside of the 180 day period stipulated in PAJA unaccompanied by

any application for condonation. It was thus not permissible for the application to be

treated as if it were a review.69

74 The Miners’ pleadings, as we have set out further above, also did not impugn the

rationality or constitutionality of the Funding Decision. Because the allegation was

never made, Legal Aid SA was not afforded the opportunity to respond to it. In our

67 Legal Aid SA’s Founding Affidavit, at para 46.4, of this application for leave to appeal 68 Para 16 of this Court’s judgment in Part A (cited as Magidiwana and Others v President of the Republic of South Africa and Others 2013 (11) BCLR 1251 (CC)). 69 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Laser Institute 2014 (3) SA 481 (CC) at para 83 27

submission, it is fatal to the entirety of the Miners’ claim. In SAPS v Solidarity,70 this

Court held as follows:

“The bid to review and set aside the decision of the National Commissioner is not properly before us. If he were not to be prejudiced, the National Commissioner was entitled to a proper notice of the review relief now sought. This would be in accordance with the principle of legality and also, if applicable, the provisions of the Promotion of Administrative Justice Act … . Another consideration relates to the common law time limits for bringing review proceedings as well as the PAJA 180-day rule, if applicable. We have no explanation that would entitle us to overlook the delay. This belated attempt to seek the review and setting aside of the National Commissioner’s decision must fail. Even if I were benevolently to entertain the review, it is without merit.”71 (Our emphasis)

75 In our submission, instead of granting relief in respect of Legal Aid SA’s Funding

Decision, a decision that was not pleaded on the papers before it, the High Court should

have dismissed the Miners’ application.

THIRD CONTENTION: SECTION 34 OF THE CONSTITUTION DOES NOT

APPLY TO THE COMMISSION

A finding that section 34 applies was unnecessary

76 The High Court found that section 34 bound Legal Aid SA and applied to the funding

of the Commission. It is submitted that this finding was entirely unnecessary because it

was clear that in terms of Clause 10.2.3(a) of the Legal Aid Guide, the CEO enjoys a

general discretion to depart from the Guide in appropriate circumstances, and had in

fact done so to fund the families who had lost breadwinners.

70 2014 (6) SA 123 (CC) 71 Ibid at para 60. 28

77 The search for a different source in which to locate an obligation to provide funding

was thus entirely unnecessary. The proper focus of the enquiry ought to have been

whether the CEO had properly exercised her discretion to refuse funding to the Miners.

But that decision was never the subject of a review.

The Commission presents no “dispute” that can be “resolved by the application of law”

78 In support of its conclusion that section 34 of the Constitution applied, the High Court

held that, although investigative in its purpose, the Commission had, in fact, taken on

“a decidedly adversarial nature”.72 It was this factor, together with others, that

located the Commission proceedings “squarely within the purview of s 34 of the

Constitution”.73 But the learned judge reached this conclusion despite finding, during

the course of his judgment, that —

78.1 the proceedings before the Commission were “not of a judicial or

quasi judicial nature”;74 and

78.2 the President was “not obliged to act on the recommendations (if any)” of

the Commission.75

79 We submit that he was incorrect to do so. Section 34 finds no application to

commissions of inquiry. The threshold requirement for the application of section 34 is

that there must be “a dispute that can be resolved by the application of law”. As we

have indicated, by definition, a commission of inquiry under the Commissions Act is of

72 High Court Judgment, Vol 2, at para 65, page 131 of the Record 73 High Court Judgment, Vol 2, at para 66, page 132 of the Record 74 High Court Judgment, Vol 2, at para 37, page 119 of the Record 75 High Court Judgment, Vol 2, at para 50, page 125 of the Record 29

a fact-finding nature, and the outcome thereof can only result in non-binding

recommendations.

80 The Commission is not a court.76 In the President of the Republic of South Africa

and Others v South African Rugby Football Union,77 this Court held that a

“commission of inquiry is an adjunct to the policy formation responsibility of the

President. It is a mechanism whereby he or she can obtain information and

advice”.78 The Court held unequivocally that —

“In the case of the appointment of commissions of inquiry, it is well-established that the functions of a commission of inquiry are to determine facts and to advise the President through the making of recommendations. The President is bound neither to accept the commission’s factual findings nor is he or she bound to follow its recommendations.”79 (Our emphasis)

81 If the Commission is not a court, then it follows, in our submission, that the Funding

Decision could never deny the Miners their rights in respect of access thereto. Because

of the fact that there is neither a “dispute” nor something which is “resolved” by the

Commission,80 on a proper interpretation, we submit that section 34 of the Constitution

did not apply.

76 This Court, in Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces 2014 (2) SA 321 (SCA) at para 18, held that legal representation was not required before the Commission for Conciliation, Mediation and Arbitration (“CCMA”) on the basis that the right to legal representation in that tribunal, notwithstanding its adjudicative nature, did not give rise to a right of legal representation. In their nature, as we have set out above, the powers of the Commission are less dispositive than those of the CCMA and, accordingly, the reasoning applies, if anything, with stronger force. 77 President of the Republic of South Africa and Others v South African Rugby Football Union 2000 (1) SA 1 (CC) 78 Id at para 147 79 Id at para 146 80 Section 34 of the Constitution 30

Section 34 does not give rise to a right to state-funded legal representation

82 The High Court’s conclusion that section 34 of the Constitution was applicable appears

to have led the learned judge to conclude that the applicants had a constitutional right to

be legally represented in the Commission. This latter conclusion then led the court to

hold that Legal Aid SA was the only functionary tasked with funding legal aid for the

indigent and, accordingly, that the Funding Decision not to fund the applicants’

participation was “arbitrary” and “not rationally related to the purpose of the Legal

Aid Act”.81

83 In doing so, we submit that the court misinterpreted the case law concerning the

conduct of commissions of inquiry and the legal requirements of rationality review.

There is no doubt that commissions of inquiry must be conducted fairly. This,

however, does not translate into an obligation to provide legal representation for

commissions of inquiry at Legal Aid SA’s expense. In this regard, we submit that the

judgment of this Court in the present matter is instructive:

“There are only three provisions in the Bill of Rights that explicitly entitle someone to claim legal representation at state expense. One provides that a child has the right to have a legal practitioner assigned to him or her by the state at state expense in civil proceedings affecting the child, if substantial injustice would otherwise result. Another is that everyone who is detained has the right to have a legal practitioner assigned to him or her by the state and at state expense, if substantial injustice would otherwise result. These do not apply here. The applicants are neither children nor detained persons, and the proceedings that are the subject matter of this application are not a civil or criminal trial.”82 (Our emphasis)

81 High Court Judgment, Vol 2, at para 68, page 132 of the Record

82 Magidiwana (supra) at para 12. See also Commission for Conciliation, Mediation and Arbitration and Others v The Law Society of the Northern Provinces (supra) at para 19. Leave to appeal to this Court was refused. 31

84 If section 34 of the Constitution gives no general right to state-funded legal

representation, then the Funding Decision, logically, could not violate the Miners’

section-34 rights. The entitlement to state-funded legal representation simply did not

arise.

FOURTH CONTENTION: IMPERMISSIBLE DIRECT RELIANCE ON SECTION 9

OF THE CONSTITUTION

The Miners failed to rely upon the Equality Act

85 In our submission, the Miners’ equality argument was still-born. They were not

entitled to rely directly on section 9 of the Constitution. The Promotion of Equality and

Prevention of Unfair Discrimination Act 4 of 2000 (“the Equality Act”) has been

specifically enacted to give effect to that provision.83

86 It is now clearly established that where legislation has been enacted to give effect to a

constitutional right, an applicant cannot bring a constitutional challenge directly in

terms of the Constitution. Such a challenge must be brought in terms of the legislation

which gives effect to the right in question.

“This Court has held in the context of both administrative and labour law that a litigant cannot circumvent legislation enacted to give effect to a constitutional right by attempting to rely directly on the constitutional right. To do so would be to ‘fail to recognise the important task conferred upon the legislature by the Constitution to protect, promote and fulfil the rights in the Bill of Rights’. The same principle applies to the Equality Act.”84

83 MEC for Education, KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC) at para 39 84 Id at para 40; referring with approval to SA National Defence Union v Minister of Defence and Others 2007 (5) SA 400 (CC) at para 52. See also Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) at para 73; and Bato Star Fishing (Pty) Limited v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) at paras 22 to 26. 32

87 It follows from the above that, absent reliance upon the Equality Act, the Court should

not have entered into the analysis required by section 9 of the Constitution at all.

The High Court erred in its application of section 9 of the Constitution

88 Even if it had been appropriate to enter into the balancing exercise required under

section 9, which is denied for the reasons set out above, no section-9 violation was

properly established on the facts. The test has been laid down in Harksen v Lane

NO,85 and it has been consistently followed.

89 In the present case, the High Court had “no difficulty” in concluding that the Funding

Decision, made by the CEO of Legal Aid SA “pursuant to clause 10.2.3 of the 2012

Legal Aid guide”,86 was unfairly discriminatory.87 It concluded that the Funding

Decision had the effect of limiting the applicants’ equality rights.88

90 We have already explained why the Miners had no right to claim state-funded legal

representation before the Commission. However, assuming for present purposes that

they did, and assuming that the Funding Decision differentiated between the Miners

and the 23 families that benefited from the First Decision, the High Court’s conclusion

that the Funding Decision was irrational misconceives the nature of the rationality

enquiry in any event:

“It is clear that the only purpose of rationality review is an enquiry into whether the differentiation is arbitrary or irrational, or manifests naked

85 Harksen v Lane NO and Others 1998 (1) SA 300 (CC) at paras 47, 50 and 54. This case was decided under the Interim Constitution, but the Constitutional Court has held that the same test applies under the final Constitution. See National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) at para 15; and Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC) at para 42 86 High Court Judgment, Vol 2, at para 18, page 110 of the Record 87 High Court Judgment, Vol 2, at para 96, page 196 of the Record 88 Ibid 33

preference and it is irrelevant to the enquiry whether the scheme chosen by the Legislature could be improved in one respect or another. Whether an employee ought to have retained the common law right to claim damages, either over and above or as an alternative to the advantages conferred by the Compensation Act, represents a highly debateable, controversial and complex matter of policy. It involves a policy choice which the Legislature and not a court must make. The contention represents an invitation to this Court to make a policy choice under the guise of rationality review, an invitation which is firmly declined.”89

91 No naked preference is present to the Funding Decision. Furthermore, having regard to

Legal Aid SA’s policy objectives and the availability of resources, or lack thereof, for

the purposes of commissions of inquiry, we submit that the reason for the

differentiation in the First and Funding Decisions was clearly rational.

92 We submit, accordingly, that instead of reaching the conclusion that the Funding

Decision was irrational, the High Court should instead have held:

92.1 First, that section 9(1) was not violated, because Legal Aid SA’s exercise of its

discretion was rationally related to its legitimate government purpose under

section 3A(3) of the Legal Aid Act 22 of 1969, to ensure funded legal

representation where “substantial injustice would otherwise result” and

taking account of the limited financial resources at its disposal; and

92.2 Second, that no discrimination was established, in that the differentiation in

respect of the decision to fund the families of the deceased miners, and not to

fund those that had survived was not a distinction that, in the context of a

commission of inquiry, was based upon attributes or characteristics which have

the potential to impair fundamental human dignity, and therefore that no unfair

discrimination could possibly have been established.

89 Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC) at para 17; referred to with approval in Weare and Another v Ndebele NO and Others 2009 (1) SA 600 (CC) at para 46 34

93 Had the High Court applied the analysis above, there would have been no need to enter

into the third enquiry under section 36 of the Constitution. The court would have

dismissed the Miners’ application, as we submit that it should have done.

FIFTH CONTENTION: THE ORDER OF SUBSTITUTION VIOLATES THE

SEPARATION OF POWERS

94 The High Court ordered Legal Aid SA “forthwith to take steps to provide legal

funding to the applicants for their participation in the [fifth] respondent”. In the

circumstances, however, we submit that the court was not competent to do so.

95 The High Court’s order was made despite the absence of any evidence as to the costs

that would be entailed by such order and, more importantly, the impact of such order on

the finite resources of Legal Aid SA and the consequent impact on its ability to meet its

statutory and constitutional duties.

96 The lacuna in the evidence has now been provided in the affidavit of Patrick

Hundermark,90 the Chief Legal Executive of Legal Aid SA in the application for leave

to appeal. This evidence was admitted without objection. He confirms what we have

stated in respect of Legal Aid SA’s budget, the already-limited available resources and

Legal Aid SA’s policy in respect of the provision of funding. He also states the

following:

96.1 In order to comply with the court order, funds previously allocated for the

designated purposes will necessarily need to be drawn upon. No additional

funds have been made available to Legal Aid SA from the National Treasury.

90 Supporting Affidavit of Patrick Hundermark, Vol 1, pages 65 to 73 of the Record 35

96.2 For every R1 000 000 expended on the provision of legal funding in the

Marikana Commission, Legal Aid SA will be required to refuse to provide

legal assistance to approximately 200 applicants who would otherwise qualify

for such assistance.

96.3 The projected cost of the court order is R19 530 800.91 (This was in fact an

underestimate). At this cost, there are approximately 3800 poor and indigent

persons for whom Legal Aid SA will be unable to provide assistance. Those

3800 people will be forced to have their rights determined before a court of law

without any legal representation whatsoever.

97 The High Court’s eyes were closed with respect to the impact of its order. It is

respectfully submitted that in the absence of evidence of this sort, the order of court

should simply not have been made. Orders of this sort fundamentally trespass on the

separation of powers. In effect, the court has not only distorted the priorities set by

Legal Aid SA but it has also fundamentally interfered with its budget.

98 The Supreme Court of Canada has decisively rejected such an approach. This occurred

in British Columbia (Attorney-General) v Christie.92 In that case, the Social Service

Tax Amendment Act imposed a 7% tax on the purchase price of legal services. The

purpose of the tax was said to be to fund legal aid in the province. However the tax

collected was put into general revenue and it was difficult to ascertain how much, if

any, of the tax collected was put towards legal aid or other initiatives aimed at

increasing access to justice. The imposition of this tax was constitutionally challenged.

The challenge failed. In the course of the judgment, the Court stated the following:

91 We note, in this regard, that the total cost to Legal Aid SA for the funding of legal representation before the Commission being in the amount of R24 251 450.78, as set out at paragraph 63.2 of Legal Aid SA’s stated facts. 92 2007 SCC 21 36

“14. The Court is not in a position to assess the cost to the public that the right would entail. No evidence was led as to how many people might require State-funded legal services, or what the cost of those services would be. However, we do know that many people presently represent themselves in court proceedings. We also may assume that guaranteed legal services would lead people to bring claims before Courts and Tribunals who would not otherwise do so. Many would applaud these results. However, the fiscal implications of the right sought cannot be denied. What is being sought is not a small, incremental change in the delivery of legal services. It is a huge change that would alter the legal landscape and impose a not inconsiderable burden on taxpayers.”

99 The SCA has itself recently confirmed that the appropriate approach with respect to

decisions of the Legal Aid Board must reflect “a judicial willingness to appreciate the

legitimate and constitutionally-ordained province of administrative agencies; to

admit the expertise of those agencies in policy-laden or polycentric issues; to

accord their interpretation of fact and law due respect; and to be sensitive in

general to the interests legitimately pursued by administrative bodies and the

practical and financial constraints under which they operate”.93 In the present

matter, it is respectfully submitted that the High Court failed to accord Legal Aid SA

the appropriate discretionary remit:

“We need hardly remind ourselves that courts do not control the public purse, nor do they have the power to conscript the legal profession to render services without reward. It is for the other arms of government to ensure that adequate provision is made for legal representation at State expense. Here they have chosen to do so through [Legal Aid]. Demands other than legal aid on the public purse may limit the availability of funds. Courts should be slow to attribute superior wisdom to themselves in respect of matters entrusted to other branches of government. As O’Regan J puts it: ‘A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Courts.’ [Legal Aid] is undoubtedly one such institution.”94

93 Legal Aid Board v S (supra) at para 44; referring with approval to Bato Star Fishing (supra) at para 46 94 Id at para 45 37

100 Moreover, in the present matter, this Court has already specifically cautioned that

courts do not “have the power to order the executive branch of government on how

to deploy state resources”.95

The order of substitution was inappropriate

101 Substitution as a remedy does not follow axiomatically from a finding of unlawfulness.

Rather, the general principle under the common law is that courts are reluctant to

substitute their decisions for those of statutorily-designated decision-makers such as

Legal Aid SA.96 Under PAJA (which was not invoked by the Miners) substitution is

only possible in exceptional circumstances. We submit the same applies to section 172

of the Constitution.

102 The Funding Decision was made by Legal Aid SA, in its statutorily-mandated

discretion, within the context of a number of competing considerations. It was for

Legal Aid SA, in the first instance, to weigh up the competing considerations and not

for the High Court to usurp that function.

103 The mere fact that a court considers itself as qualified to substitute an administrator’s

decision is not, in itself, a sufficient basis for it to do so.97

104 In the present matter, no inquiry as to the suitability of the substitution of the Funding

Decision was even entered into by the High Court. With no inquiry into the question of

exceptional circumstances, the High Court could not have begun to establish whether

the Funding Decision, if unlawful, did indeed constitute an exceptional case justifying a

95 Magidiwana (supra) at para 16 96 Bato Star Fishing (supra) at para 48

97 See Makhanya NO v Goede Wellington Boerdery (Pty) Ltd and Another [2013] 1 All SA 526 (SCA) at para 44, albeit in the context of the Promotion of Administrative Justice Act 3 of 2000 38

departure from the ordinary rule. We submit, accordingly, that no order of substitution

was justified.

105 From all of the above, it follows that, even if the High Court had been correct to find

that —

105.1 section 34 of the Constitution was relevant or applicable;

105.2 section 34 of the Constitution gave rise to an entitlement to legal representation

at state expense;

105.3 the Funding Decision was irrational and unfairly discriminatory; and

105.4 the Miners could avoid the Equality Act,

all of which are denied, the court ought nevertheless to have declined to make the order

sought by the Miners. The order of the High Court is a clear case of an order to the

executive branch of government on how to deploy state resources98 which, absent

relevant facts (and therefore, necessarily, exceptional circumstances), should not have

been made.99

LEAVE TO APPEAL

106 This Court will grant leave to appeal if a constitutional issue is raised and it is in the

interests of justice to grant leave, or, alternatively, if an arguable point of law of general

public importance is raised.100

98 DPP, Transvaal v Minister of Justice and Constitutional Development 2009 (4) SA 222 (CC) at para 183; Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) at para 37; and Legal Aid Board v S 2011 (1) SACR 166 (SCA) at para 45 99 Premier, Province of Mpumalanga 1999 (2) SA 91 (CC) at para 50; and Johannesburg City Council 1969 (2) SA 72 (T) at 76D-G 100 Constitution Seventeenth Amendment Act of 2012 39

107 In our submission, the present application for leave to appeal should qualify on both

grounds. That the appeal raises constitutional issues concerning the proper application

of sections 9 and 34 of the Constitution is clear. Even the question of the SCA’s

interpretation of the Superior Courts Act entails a constitutional issue because it

concerns the powers of the courts.101 The High Court order also directly implicates the

separation of powers.

108 We further submit that the proper interpretation of section 34 of the Constitution raises

an arguable point of law of general public importance which ought to be considered by

this Court in terms of section 167(3)(b)(ii) of the Constitution. We submit that the

interpretation of section 34 advanced in these submissions is certainly tenable and will

affect all cases where discretionary funding by Legal Aid SA arises.102

109 For the reasons advanced in these submissions, we further submit that Legal Aid SA

has reasonable prospects of success.

LEAVE TO FILE LEGAL AID SA’S REPLYING AFFIDAVIT

110 The respondents to Legal Aid SA’s appeal have raised a new argument that was not

previously raised before the Courts below. They contend that this Court should dismiss

Legal Aid SA’s application because the Legal Aid Guide has now been amended in

order to make provision for the funding of commissions of inquiry. Whilst it is true

that the Legal Aid Guide 2014 makes such provision, it takes the respondents’

argument no further, because it is likely that the Miners would still fail to qualify under

the latter Guide’s provisions.103 On the facts of the Miners’ case, funding would only

101 Bannatyne v Bannatyne (Commission for Gender Equality as amicus curiae) 2003 (2) SA 363 (CC) at para 17 102 Paulsen and Another v Slip Knot Investments 777 Ltd [2015] ZACC 5 at para 16-30 103 See paragraph 5 of Legal Aid SA’s replying affidavit in this application for leave to appeal. 40

be permitted in the event that the CEO exercised her discretion to provide funding

outside of the prescripts of the Legal Aid Guide 2014.

111 On 11 February 2015, the Chief Justice issued directions in regard to the admission of

Legal Aid SA’s replying affidavit. These directions provide that –

“[t]he applicant’s replying affidavit is provisionally admitted, with its final admissibility to be determined after oral submissions on the issues at the hearing of the application for leave to appeal”.

112 The Rules of this Court do not expressly permit the filing of replying affidavits.

However, this Court’s inherent power permits it to do so where required by the interests

of justice. Legal Aid SA seeks this Court’s leave to file this Replying Affidavit in order

to respond to a new argument relied upon by the Respondents in this application for

leave to appeal.

113 We submit that, in the circumstances, the interests of justice favour the admission of

this affidavit in order properly to assess and determine Legal Aid SA’s application for

leave to appeal. As pointed out in the affidavit, the amendment of the Guide does not

advance the respondents case. We rely on the argument set out in the affidavit. In

summary the argument is as follows:104

113.1 Paragraph 4.20 of the Legal Aid Guide 2014 only provides that funding

“should” to be made available by Legal Aid SA only where the commission of

inquiry in question has made “funds available” for that purpose, and no such

funds have been available in respect of the Commission in this case;

104 See paragraph 17 of Legal Aid SA’s Replying Affidavit in this Court 41

113.2 Where such funding is not made available, paragraph 4.20 of the Legal Aid

Guide 2014 provides that Legal Aid SA will only make such funding available

in “exceptional circumstances”, which have arguably not been satisfied by the

Miners in the present case, and, even then, only where Legal Aid SA is “able

to allocate the necessary funding”.

114 In short, then, whilst the Legal Aid Guide 2014 does make provision for the funding of

legal representation in respect of commissions of inquiry, provision is made for such

funding only in exceptional circumstances which would not apply here. If this is so,

then, even under the Legal Aid Guide 2014, the funding requested by the Miners would

still be subject to the discretion of Legal Aid SA’s CEO.

CONCLUSION

115 For all of the reasons set out above, we submit that Legal Aid SA’s appeal should be

upheld.

GILBERT MARCUS SC

MKHULULI STUBBS Counsel for the Applicants Chambers, Sandton 27 March 2015 42

TABLE OF AUTHORITIES

1. AAA Investments (Pty) Limited v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC)

2. Bannatyne v Bannatyne (Commission for Gender Equality as amicus curiae) 2003 (2) SA 363 (CC)

3. Bato Star Fishing (Pty) Limited v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC)

4. British Columbia (Attorney-General) v Christie 2007 SCC 21

5. Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC)

6. Commission for Conciliation, Mediation and Arbitration and Others v Law

7. Society of the Northern Provinces 2014 (2) SA 321 (SCA)

8. DPP, Transvaal v Minister of Justice and Constitutional Development 2009 (4) SA 222 (CC)

9. Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC)

10. Harksen v Lane NO and Others 1998 (1) SA 300 (CC)

11. Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC)

12. Johannesburg City Council 1969 (2) SA 72 (T)

13. Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC)

14. Khumalo v Holomisa 2002 (5) SA 401 (CC)

15. Land & Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA)

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

17. Makhanya NO v Goede Wellington Boerdery (Pty) Ltd and Another [2013] 1 All SA 526 (SCA)

18. Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC)

43

19. MEC for Education, KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC)

20. MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye and Laser Institute 2014 (3) SA 481 (CC)

21. Midi Television (Pty) Limited t/a e-tv v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA)

22. Minister of Defence and Others v South African National Defence Union [2012] JOL 29606 (SCA)

23. National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC)

24. Natal Rugby Union v Gould 1999 (1) SA 432 (SCA)

25. Paulsen and Another v Slip Knot Investments 777 Ltd [2015] ZACC 5

26. Premier, Province of Mpumalanga 1999 (2) SA 91 (CC)

27. President of the Republic of South Africa and Others v South African Rugby Football Union 2000 (1) SA 1 (CC)

28. R (on the application of Humberstone) v Legal Services Commission [2010] EWCA Civ 1479

29. Road Accident Fund v Faria 2014 (6) SA 19 (SCA)

30. SAPS v Solidarity 2014 (6) SA 123 (CC)

31. SA National Defence Union v Minister of Defence and Others 2007 (5) SA 400 (CC)

32. Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 1273 (SCA)

33. Van der Merwe v Road Accident Fund and Another 2006 (4) SA 230 (CC)

34. Weare and Another v Ndebele NO and Others 2009 (1) SA 600 (CC)

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

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 Marikana massacre 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 Lonmin. 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, economic inequality 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 Johannesburg 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 Boeremag 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 SANDTON

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 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case No. 188/14

In the matter between:

LEGAL AID SOUTH AFRICA Applicant and

MZOXOLO MAGIDIWANA First Respondent

INJURED AND ARRESTED PERSONS Second Respondents

PRESIDENT OF THE REPUBLIC OF Third Respondent SOUTH AFRICA

THE MINISTER OF JUSTICE AND Fourth Respondent CONSTITUTIONAL DEVELOPMENT

THE MARIKANA COMMISSION Fifth Respondent OF INQUIRY

PARTIES TO THE MARIKANA Sixth to Nineteenth Respondents COMMISSION OF INQUIRY

EIGHTH AND NINTH RESPONDENTS’ WRITTEN SUBMISSIONS

1

A INTRODUCTION

1 The applicant (“Legal Aid SA”) seeks leave to appeal to this Court

against a High Court decision1 that it “take steps” to provide

funding to enable the first and second respondents (“the miners”)

to be legally represented at the Marikana Commission of Inquiry

(“the Commission”). The Supreme Court of Appeal (“SCA”)

dismissed Legal Aid SA’s appeal as moot.2 Legal Aid SA now

seeks the intervention of this Court.

2 The eighth respondent (“the families”) and the ninth respondent

(“AMCU”) oppose the application for leave to appeal because the

determination of the appeal would have no practical effect. It is

accordingly not in the interests of justice to grant the application.

3 If leave to appeal is granted, the appeal should nevertheless be

dismissed, because Legal Aid SA’s decision to refuse funding to

the miners manifested an arbitrary distinction between the families

and the miners, which offended section 9 (1) of the Constitution

and the constitutional principle of legality.

4 In the High Court, the miners argued that the refusal to extend

legal aid to them breached sections 34 and 35 of the Constitution.

1 Record, volume (vol) 2 page (p) 103. 2 Record, vol 1, p 83.

2

AMCU and the families make no submissions on these issues, but

they support the submissions made by the miners and the

eighteenth respondent (“the Ledingoane family”).

Overview of Submissions

5 The primary question before the High Court was whether it could

direct Legal Aid SA to fund the miners in circumstances where its

own funding policy (“the Legal Aid Guide” or “the Guide”) precluded

it from providing money to parties to commissions of inquiry, unless

its Chief Executive Officer (“CEO”) exercised her extraordinary

discretionary powers to make an exception to the requirements of

the Legal Aid Guide. The High Court found that, since the CEO

had already exercised her powers to except the families from the

requirements of the Guide, Legal Aid SA had to establish a rational

basis for refusing to do the same for the miners. This, the High

Court found, Legal Aid SA had failed to do.3 It accordingly directed

that the miners be provided with funding as well.

6 We submit that the High Court judgment was correctly decided on

that basis.

3 Record, vol 2, p 147, para 97.

3

7 However, the issue is now academic, as both the facts established

before the High Court, and the policy that was applicable to them,

have fundamentally changed.

8 Legal Aid SA has now satisfied the High Court judgment. Funding

has been extended to the miners. The Commission itself has been

wound up, and its report has been submitted to the President.

9 In other words, the controversy that animated the parties before

the High Court is now at an end. A decision in Legal Aid SA’s

proposed appeal will make no practical difference to any of the

parties to the Commission.

10 Nor will it make a difference to Legal Aid SA, because it disavows

any right to claim the money back if its appeal is successful,4 and it

has changed its funding policy since the proceedings in the High

Court were determined.5 The provision of funding to parties to

commissions of inquiry is no longer dealt with in terms of the

CEO’s discretion. It is addressed under a comprehensive and

detailed amendment to the Legal Aid Guide.6

4 AMCU and the families’ answering affidavit in this Court, pp 8 and 9, para 8. Not disputed in reply. 5 AMCU and the families’ answering affidavit, pp 11 – 13, paras 15 – 20. 6 AMCU and the families’ answering affidavit, p 12 and annexure “A”.

4

11 There is accordingly nothing left of the case as it was pleaded and

argued in the High Court. All of the issues of practicality and

principle that arose there have now been resolved.

12 Nonetheless, Legal Aid SA persists in its application because it

wishes to challenge the propositions that section 34 of the

Constitution binds Legal Aid SA; that a Court may order a

departure from Legal Aid SA’s funding policy; and that a Court may

substitute Legal Aid SA’s decisions in the absence of a financial

enquiry into the consequences of doing so.7

13 This Court does not issue advisory opinions on abstract questions

of law such as these.8 Where it is in the interests of justice to do

so, however, it will decide an appeal that is moot between the

parties. Normally, a party seeking the determination of a moot

appeal will have to show that a decision will have some practical

effect in future.9

14 But that is not the case here. The facts as they existed when the

matter was argued before the High Court have changed. The

policy that applied to those facts has also changed. Instead of

7 Legal Aid SA, written submissions, para 60. 8 JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC), para 17. 9 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC), para 11.

5

waiting for judicial intervention, Legal Aid SA has amended the

Legal Aid Guide to provide a proper basis on which to consider

applications for funding support from parties to commissions of

inquiry. Its new policy is detailed, context sensitive and multi-

factored. It will no doubt be engaged by people seeking support for

participation in commissions of inquiry in future.

15 It is far from clear whether, as Legal Aid SA now claims,10 its new

policy would not have assisted the miners. In our submission, that

is an open question. But it is in any event beside the point. There

can be no dispute that the existence of the new policy, and its

application in any future case, will fundamentally change the issues

to be decided by any court seized with a challenge Legal Aid SA’s

future funding decisions. Even if, as Legal Aid SA speculates, an

application from the miners in terms of its new policy would fail, the

very existence of the new policy would materially influence the

exercise of the CEO’s discretion. That changes the factual and

legal matrix in which any future evaluation of Legal Aid SA’s

decisions will occur.

16 What Legal Aid SA asks for is a decision on a dead dispute, in

terms of a provision of its policy that is no longer applicable. It is,

10 Legal Aid SA, written submissions, para 113.

6

we submit, not in the interests of justice for this Court to render

such a decision.

17 In the event that this Court entertains the merits of Legal Aid SA’s

appeal, we submit that the appeal cannot succeed.

18 Legal Aid SA’s decision to fund the families but not the miners

plainly manifested an irrational differentiation. All of the reasons

that Legal Aid SA originally gave for funding the families apply

equally to the miners. None of the reasons Legal Aid SA gave for

not funding the miners was rationally connected to the established

facts. At the time it refused the miners’ application for support,

Legal Aid SA said that the miners –

18.1 had not shown that they had a “substantial, proximate and

material interest”11 in the outcome of the Commission’s

inquiry; and/or

18.2 had not shown that they would receive “a substantial and

identifiable benefit”12 from participating in the Commission

separately from “their” unions – namely AMCU and the

twelfth respondent (“NUM”).

11 Record, vol 3, p 245, line (l) 30. 12 Record, vol 3, p 246, l 1-2.

7

19 As should have been clear to Legal Aid SA at the time, neither of

these reasons were rationally connected to the established facts.

19.1 The suggestion that the miners had not shown an interest in

the proceedings before the Commission is, with respect,

astonishing. Apart, perhaps, from the police, the miners had

the most intimate interest possible in the Commission’s

proceedings. They are identified in the very first paragraph of

the Commission’s terms of reference.13

19.2 The assertion that the miners were being represented by

AMCU or NUM was wholly inaccurate. The miners’ attorneys

were quick to explain that the miners were not members of

either the NUM or AMCU. Some were not even striking

employees.14 They plainly had a “substantial, proximate and

material interest” in the Commission’s proceedings separate

and distinct from that of AMCU or the NUM. That explanation

fell on deaf ears.15 But Legal Aid SA has never disputed it.

20 After it made its decision to refuse the miners’ funding application,

Legal Aid SA’s reasons evolved. In its papers before the High

Court and in heads of argument filed in the SCA, new reasons

emerged. These were that –

13 Record, vol 3, p 233, l 10 – 13. 14 Record, vol 3, p 249 para 12. 15 Record, vol 3, p 251, l 24 and 25.

8

20.1 The families’ interest in the Commission arises from the

possibility of future claims for loss of support resulting from

the death of “their breadwinners in circumstances unknown

to them”. In addition, “these families, not having been

present at [the killings] would not be in a position to provide

their attorneys with instructions in any civil claim as to how

the events of the tragic day unfolded as they were not

present.”;16 and

20.2 granting legal aid to the miners constituted a “greater

financial constraint for Legal Aid considering its prior funding

allocation”.17

21 We submit that the rationality of Legal Aid SA’s decision must be

evaluated in terms of the reasons proffered for it at the time. It is

those reasons which weighed with the decision maker. Courts are

generally reluctant to accept ex post facto rationalisations of

administrative or other decisions by organs of state.18

22 However, even the new reasons given in the High Court and the

SCA are manifestly without substance. We say so because –

16 Legal Aid SA’s written submissions, pp 20 and 21, para 38.1. 17 Legal Aid SA’s written submissions, p 21, para 38.2. 18 National Lotteries Board v South African Education and Environment Project 2012 (4) SA 504 (SCA), para 27.

9

22.1 The miners clearly have potential damages claims arising

from unlawful arrest and the injuries they sustained during

the Marikana massacre. The first respondent (“Mr.

Magidiwana”) was shot seven times.19

22.2 Refusing legal aid to the miners was not rationally consistent

with the reason Legal Aid SA now gives for granting it to the

families. If legal aid had to be extended to the families

because they had the right to know what happened at the

Marikana massacre, refusing it to the miners – and

effectively precluding them from being able to participate in

the Commission – undermines that goal. Preventing the

miners from participation in the Commission would have

meant that their version of the facts would have gone

unheard.

22.3 The mere fact that the miners’ application for funding raised

additional resource constraints is, in itself, irrelevant. In any

event, the one thing Legal Aid SA has never said, is that it

cannot afford to provide at least some support to the miners.

23 Accordingly, whether evaluated in light of section 1 (c) or 9 (1) of

the Constitution, Legal Aid SA’s decision was irrational, and was

correctly set aside.

19 Record, vol 2, p 160, para 4.1.

10

24 Legal Aid SA relies on two technical defences which, it says,

should have precluded the miners from challenging the rationality

of its decision. It is alleged that the miners’ case was not pleaded

and argued under the Promotion of Administrative Justice Act 2 of

2000 (“PAJA”) or the Promotion of Equality and Prevention of

Unfair Discrimination Act 4 of 2000 (“PEPUDA”).

25 We submit that neither of these defences has any merit. Quite

simply –

25.1 the miners’ case was pleaded and argued in terms of PAJA.

An amendment to their notice of motion seeking a review of

Legal Aid SA’s decision was sought and granted in the High

Court. Legal Aid SA consented to the amendment. It cannot

be heard to complain about non-compliance with PAJA now.

Although, given the urgency of the case, the miners’ papers

did not genuflect to every possible ground of review, the

case Legal Aid SA had to meet was clear from the papers.

25.2 PEPUDA does not apply to claims under section 9 (1) of the

Constitution. As is clear from its Preamble, PEPUDA gives

effect to section 9 (4) of the Constitution, and regulates

claims under section 9 (3) of the Constitution.

11

26 Regardless, the High Court relied explicitly on section 1 (c) of the

Constitution.20 There was no bar to it considering the rationality of

Legal Aid SA’s decision in terms of section 1 (c). Both this Court21

and the SCA22 have confirmed their residual power of review under

that provision.

Structure of these submissions

27 In the remainder of these submissions, we will address the

following –

27.1 First, we shall develop our submissions on mootness. We will

submit, with respect, that there is nothing left of this dispute

that this Court might usefully decide.

27.2 Second, we will show that the High Court was correct to

characterise Legal Aid SA’s refusal to fund the miners as

irrational, and to set it aside.

27.3 Third, we will deal with Legal Aid SA’s technical arguments

based on subsidiarity.

27.4 Finally, we will demonstrate that the High Court’s order

directing Legal Aid SA to “take steps” to fund the miners was

properly made.

20 Record, vol 2, p 147, para 97. 21 Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC), para 12. 22 Legal Aid Board v S and Others [2011] 1 All SA 378 (SCA), paras 46 to 49.

12

B MOOTNESS AND THE INTERESTS OF JUSTICE

The Test

28 There is no real dispute that the matter is moot. Legal Aid SA has

now provided funding to the miners. It will not seek to be

reimbursed if it succeeds in overturning the High Court’s

decision.23

29 Regardless, this Court has made it clear that, when it is in the

interests of justice to do so, it may hear and determine a dispute

that has become moot.24

30 The discretion to decide a moot appeal is tightly circumscribed –

30.1 It does not extend to “issues that are wholly academic . .

.exciting no interest but a historical one”;25 and

30.2 The prerequisite for the exercise of the discretion is that any

order will “have some practical effect either on the parties or

on others”.26 In other words, despite being moot between the

parties, a matter should not be moot relative to society at

23 AMCU and the families’ answering affidavit, pp 8 and 9, para 8. 24 Minister of Mineral Resources and Others v Sishen Iron Ore Co (Pty) Ltd and Another 2014 (2) SA 603 (CC) at para 104 and the cases cited therein. 25 JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC), para 17. 26 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) para 11.

13

large. There must be compelling public interests that require

a court to reach a conclusion.27

30.3 Any determination of a moot issue will be fact specific.

Merely because this Court has determined one moot issue

arising in an appeal does not mean that “it is obliged to

determine all other moot issues.”28

30.4 Where an organ of state changes its policy between a

decision at first instance and an appeal before this Court,

and the issues between the parties become settled as a

result, it will not be in the interests of justice to decide the

challenge as initially framed. However, nor will it be in the

interests of justice for this Court to act as a Court of first and

last instance on the application of the new policy.29

31 If it can be demonstrated that deciding an appeal would have a

practical effect, a range of contextual factors become relevant.30

27 President of the Ordinary Court Martial v Freedom of Expression Institute 1999 (4) SA 682 (CC), para 16 – 18. 28 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) para 11. 29 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC), especially para 34. 30 These include: the importance and complexity of the issue and the fullness or otherwise of the argument advanced; whether hearing the appeal would resolve disputes or conflicting judgments in different courts; the extent to which the determination of the issue is fact-dependent and without precedential value; whether the resolution of the dispute is in the public interest; whether the failure to decide the matter may spawn further prolonged and costly litigation, or where the determination of the current issue will have a bearing on further claims between the parties; the extent to which the applicants still have an interest in the adjudication of the dispute; whether the applicants' rights were infringed and whether they continue to be threatened; whether the Court has received the benefit of argument from the parties or amicus curiae; whether the issues are crucial to important aspects of government, as well as the rights contained in the Bill of Rights; and the attitude of the parties to the appeal.

14

Deciding the Appeal Would Have No Practical Effect

32 We submit the Legal Aid SA has not met the threshold test set out

above. It has not demonstrated that a decision on the appeal

would have any practical effect.

32.1 In Part B of their application in the High Court, the miners

sought:

32.1.1 A review of the decision of Legal Aid SA to refuse

them funding;31

32.1.2 An order compelling Legal Aid SA to take reasonable

steps to provide legal and aid to the applicants in

respect of the future proceedings of the Commission

including all reasonable costs incurred to date.32

32.2 After the judgment in the High Court –

32.2.1 Legal Aid SA provided an undertaking that legal aid

would be provided to the miners and that there was

no prospect of Legal Aid withdrawing legal aid from

the miners at any future state of the Commission.33

31 Record, vol 2, p 107, para 10. 32 Record, vol 2, p 152, prayer 2. 33 AMCU and the families’ answering affidavit, para 8.1.

15

32.2.2 Legal Aid agreed that whatever the outcome of the

appeal in the SCA, it would not ask for any of the

money it had provided to be repaid.34

32.2.3 Legal Aid SA concluded a Memorandum of

Agreement35 with the miners in which it agrees to pay

R16 million including VAT for “services to be

rendered” during 10 March 2013 to 15 November

2014.36The services constitute the legal

representation of the miners at the commission.37

32.2.4 The Commission completed its work.

33 Accordingly, the relief sought by the miners – to obtain funding

from the state for their legal representation before the Commission

- has been achieved. They have nothing to lose or to gain from a

judgment in this Court.

34 Neither, we submit, has Legal Aid SA. It has abandoned the right

to withdraw the miners’ funding or to pursue the miners for

34 Ibid para 8.2. 35 Record, vol 1, p 24. 36 Record vol 1, p 26, clause 2.1. See also Record, p 25, clause 1.2.4. 37 Record vol 1, p 30, clause 7.1, p 30 and p 26 clause 1.2.6.

16

repayment of any money disbursed on their behalf.38 Overturning

the High Court judgment will afford it no financial benefit.

35 Nor will this Court’s decision provide guidance for future cases,

because -

35.1 Legal Aid SA’s decision not to grant assistance to the

applicants was taken in terms of the 2012 Legal Aid Guide.

35.2 The 2012 Guide made no provision for legal aid to

participants of commissions of inquiry.39 There was no

section under which the miners could apply for funding for

commissions of inquiry, and no clear criteria for when and if

funding could be provided to them.

35.3 Legal Aid SA’s decision to grant legal aid to the families was

therefore taken under section 10.2.3 which confers upon the

CEO of Legal Aid SA a general discretion. The provision

provides:

“10.2.3 General Discretion

(a) Discretion of the CEO

The CEO may exercise a general discretion to:

Waive any condition, procedure or policy set out in this Guide as long as this is within the overall authority of the Legal Aid Act.

38 AMCU and the families’ answering affidavit para 9. 39 Record, vol 1, p 7 and 8, para 18. See also Record vol 3 pp 245 and 246.

17

Provide for any issue not covered in this Guide.

However, when the CEO exercises this discretion, he/she must report on it to the Board or Board Executive Committee at its next regular meeting.”

35.4 Legal Aid SA’s refusal to grant legal aid to the miners was a

refusal to apply this provision.

35.5 However, a new Legal Aid Guide was ratified by Parliament

on 12 November 2013.40

35.6 The 2014 version of the Legal Aid Guide makes provision for

legal aid to be extended to participants in commissions of

inquiry.41 Item 4.20 of the Guide provides as follows –

“4.20 Commissions of Inquiries Where funds are made available by the establishing authority of the commission, legal aid should be provided for the purpose of legal representation at commissions for persons appearing before a commission of inquiry where the commission has certified that they have standing before the commission.

Where such funding is not made available, then legal aid will only be made available in exceptional circumstances such as where a person has a substantial and material interest in the outcome of the commission and which could materially influence the outcome of any potential civil claim, provided that:

(a) such person/s are indigent and qualify in terms of the means test;

(b) such person/s has/have been certified by the Commissioner that they have a proper standing before the commission;

40 Record, p 22, para 63.3. 41 The relevant pages of the 2014 Legal Aid Guide are attached as Anexure A to the AMCU and the families’ answering affidavit.

18

(c) the prospect of hardship to the person/s if assistance is declined;

(d) the nature and significance of the evidence that the person/s is/are giving or appears likely to give;

(e) the extent to which representation is required to enable the inquiry to fulfil its purpose;

(f) whether the interests of a person will be advanced by any other person/association certified to appear before the commission;

(g) any other matter relating to the public interest.

Subject to Legal Aid South Africa being able to allocate the necessary resources / funding. Subject further that funding shall be provided subject to compliance with unsolicited proposals dealt with under National Treasury Practice Note 11 of 2008/ 2009, where such persons seek to use/appoint practitioners of their own choice.

Judicare tariffs as set out in Annexure F will apply where a legal practitioner in private practice is instructed.”

35.7 Any application for legal funding by a person who is a party

to a commission of inquiry must now be made in terms of

item 4.20 of the new Guide. Legal Aid SA would have to

consider, accept or reject the request on the criteria set out in

item 4.20. These factors make provision for the various

factors to be balanced in any case.

35.8 But the new factors guiding Legal Aid SA’s decision were not

before the High Court. No decision on the merits of the High

Court’s judgment will provide any guidance on how to apply

the Guide as it now stands.

19

36 In its replying affidavit, Legal Aid SA contends that –

36.1 The miners’ request for funding would have been “likely to

fail” in terms of item 4.20 of the 2014 Guide.42 They contend

– with no factual basis and without conducting the necessary

enquiry – that there are “no exceptional circumstances” to

grant the miners separate legal representation.43

36.2 On this basis, even in terms of the 2014 Guide, the miners’

request would only be granted in the discretion of the CEO.44

36.3 Since the provisions of the Guide which govern the CEO’s

discretion are identical in the 2012 and 2014 Guides, this

Court’s decision will be relevant to the exercise of the CEO’s

discretion under the 2014 Guide.45

37 This argument misconstrues the question. The question is not

whether or not the miners would have been successful in their

application for funding under item 4.20, but rather whether that

section would have application to them and whether it would

regulate the decision of Legal Aid SA to accept or refuse the

request. It is clear that the miners would have been able to make a

request under item 4.20, and the section provides clear guidelines

42 Legal Aid SA’s Replying Affidavit, para 17. 43 Legal Aid SA’s Replying Affidavit, para 17.2. 44 Legal Aid SA’s Replying Affidavit, para 5. 45 Legal Aid SA’s Replying Affidavit, para 21.

20

on what factors and criteria would be taken into account. It is a

completely different legal scheme to that faced by the miners when

they made their original request in October 2012.

38 Item 4.20, as Legal Aid accepts, carefully circumscribes the

circumstances under which funding may be provided to individuals

before a commission of inquiry. Where a person does not meet

those requirements, their request will be rejected under that

section.

39 Any discretion subsequently exercised by the CEO would be a

discretion to waive a condition contained in item 4.20 of the Guide

itself after the necessary enquiry under the relevant item has taken

place. That fundamentally changes the nature of the issues facing

any future court. Nothing this Court can usefully say about Legal

Aid SA’s role in relation to funding participation in commissions of

inquiry will provide any guidance for that future court.

40 In any event, the most natural interpretation of the Guide is that

item 4.20 applies to the exclusion of the CEO’s discretion. A

decision to grant or refuse legal aid in terms of item 4.20 is final,

and must stand until it is reviewed and set aside.46 It is not open to

46 Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA), para 26.

21

the CEO to intervene once a decision has been taken to refuse

legal aid under item 4.20.

41 Assuming, for the sake of argument, that the CEO could be

requested to exercise her discretion to grant legal aid after a

refusal under item 4.20 of the Guide, the question then becomes

whether a condition contained in the new amendment to the Guide

can be waived. That is a fundamentally different question to the

one that faced the High Court.

42 There is accordingly nothing that this Court could say, on the facts

established on the record, that would provide any guidance to

Legal Aid SA in future. The High Court’s decision – at least as it

related to the rationality of Legal Aid SA’s conduct and policy as it

existed at the time – was fact dependent and of little precedential

value. Given the changes in Legal Aid SA’s policy and attitude

since the High Court decision, a decision on the merits of any

appeal against it will not assist any of the parties to regulate their

conduct in future. These factors clearly militate against deciding

the appeal. 47

47 Masethla v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) at para 26. See also Executive Officer, Financial Services Board v Dynamic Wealth Ltd and Others 2012 (1) SA 453 (SCA) paras 43 – 44 the SCA held that the issue before it was an important one as it involved the “proper construction of an important provision in the regulatory armoury of the registrar.” This is not the case here.

22

43 Indeed, we submit that attempting to do so would create no small

degree of confusion, as this Court’s decision would be

inappropriately grafted on to new facts and new policy with which

the High Court was never concerned.

44 Accordingly, any decision on Legal Aid SA’s appeal would have no

practical effect. That renders it unnecessary to consider whether

the other factors enumerated in the jurisprudence militate in favour

of hearing the appeal.

Other Arguments Raised By Legal Aid SA

45 For the sake of completeness, however, we deal with Legal Aid

SA’s further arguments relating to mootness below.

The effect of the High Court judgment

46 Legal Aid SA makes much of the order of the High Court. It

contends that the reasoning of the High Court “sets a precedent

which is highly likely to impede Legal Aid SA’s ability to discharge

its statutory functions in the future”48 and that a “clarification of the

correct position in law regarding the legal duties of Legal Aid SA is

necessary to regulate future decisions by Legal Aid SA and to give

48 Legal Aid SA, Founding Affidavit, para 7.

23

effect to its statutory mandate.”49 It also says that the precedent of

the High Court judgment in reviewing and setting aside, and

substituting the decision of Legal Aid SA, “creates a precedent with

an enormous impact upon Legal Aid SA’s ability to discharge its

statutory duties.”50

47 However, the High Court’s judgment is entirely consistent with the

legal framework in which Legal Aid SA normally exercised its

powers at the time. The High Court did not require Legal Aid SA to

provide funding to parties before commissions of inquiry in future.

Nor did it require Legal Aid SA to depart from the Legal Aid Act 22

of 1969 (“the Legal Aid Act”) or the Guide.

48 The true basis of the High Court’s decision is this: if Legal Aid SA

exercises its discretionary powers to provide legal aid in

extraordinary circumstances, then it must exercise those powers

rationally. It may not, as it did in this case, draw arbitrary

distinctions between similarly situated groups of people. It must

treat like cases alike. That is the confined effect of the High Court

judgment, and it is a salutary one. It is also now irrelevant, since an

entirely new framework governs the grant of legal aid to parties to

commissions of inquiry.

49 Legal Aid SA, Founding Affidavit, para 8.2. 50 Legal Aid SA Founding Affidavit, para 12.

24

49 What happened in the High Court was entirely unremarkable. A

decision of an organ of state was reviewed, set aside and

substituted on the facts as they existed at the time. This is a

common occurrence against the background of well-established

principles governing judicial review and substitution. The mere fact

that one of its decisions has been reviewed does not change the

regulatory field in which Legal Aid SA operates.

50 Nor does High Court’s judgment presage future decisions requiring

Legal Aid SA to “depart” from its funding policy. It simply requires

that the policy, whatever it is, be applied rationally.

Peremption?

51 Legal Aid SA argues that it agreed to provide funding to the miners

pending the appeal as a result of the court order and Rule 49(11)

application 51 and in order to prevent the “threatened … disruption”

of the Commission in the general public interest.52 On this basis,

Legal Aid SA contends that the fact that it agreed to continue the

funding should not detract from its right to appeal.

52 This, however, misconceives the position. It is not our submission

that Legal Aid SA’s right to appeal was perempted by its conduct in

51 Legal Aid SA’s written submissions, para 64. 52 Legal Aid SA Founding Affidavit, para 32.2.

25

providing funding to the miners. Rather, we submit that the dispute

between Legal Aid SA and the miners has become moot as a

result of that conduct, coupled with an undertaking not to seek

repayment of the funding already granted to the miners if the High

Court judgment is overturned, and Legal Aid SA’s change in policy

in relation to commissions of inquiry.

53 The reasons Legal Aid SA gives for agreeing to grant the miners

the relief they sought (whether pragmatic or principled) are

irrelevant for the purposes of determining whether this appeal

would have practical effect.

Settlement Agreement?

54 Legal Aid SA further contends that the funding agreement is not a

settlement agreement.53

55 A formal settlement is not a prerequisite for a matter to be moot.

The parties’ conduct or the passing of time may well render a

matter moot. It is therefore not open to Legal Aid SA to argue that

the fact that the funding agreement is not a “settlement agreement”

has an impact on the determination of whether the matter has

become moot. The funding agreement evidences the fact that

53 Legal Aid SA’s written submissions, para 65.

26

Legal Aid SA has provided the miners with the relief they sought in

the High Court.

56 For all of these reasons, it is not in the interests of justice to hear

the appeal.

C THE APPEAL SHOULD NONETHELESS BE DISMISSED

57 In the event that this Court entertains the merits of Legal Aid SA’s

appeal, we submit that the appeal cannot succeed. The decision

of Legal Aid SA to refuse to fund the miners, having already

decided to fund the families, was patently irrational.

The Rationality requirement

58 It is trite that the exercise of all public powers, including the

exercise of, or refusal to exercise, a discretion of the nature set out

in section 10.2.3 of 2012 the Guide, must be lawful. 54 To be

lawful, the exercise of public power must, at the very least, be

rational, and consistent with the Constitution. The principle of

rationality is an incident of the rule of law. As explained in

Affordable Medicines Trust and Others v Minster of Health and

Others 2006 (3) SA 247 (CC) the constitutional principle of legality

54 Hoexter (2012) “Administrative Law in South Africa” 2nd ed at p356.

27

requires that a decision-maker exercises the powers conferred on

him lawfully, rationally and in good faith.55

59 In Pharmaceutical Manufacturers Association of SA and

Another: in re ex parte President of the Republic of South

Africa and Others 2000 (2) SA 674 (CC), Chaskalson P laid down

the test for rationality in the exercise of public power as follows:

“It is a requirement of the rule of law that the exercise of public power by the Executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement. It follows that in order to pass constitutional scrutiny the exercise of public power by the Executive and other functionaries must, at least, comply with this requirement. If it does not, it falls short of the standards demanded by our Constitution for such action.”56

60 Rationality requires that a decision be objectively capable of

furthering the purpose for which the power was given and for which

the decision was purportedly taken:

“The question whether a decision is rationally related to the purpose for which the power was given calls for an objective enquiry. Otherwise a decision that, viewed objectively, is in fact irrational, might pass muster simply because the person who took it mistakenly and in good faith believed it to be rational. Such a conclusion would place form above substance and undermine an important constitutional principle.”57

55 Pharmaceutical Manufacturers Association of SA and Another: in re ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC), paras 48 – 49. 56 Ibid. para 85. Emphasis added. 57 Ibid. para 86. See also Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) at para 51

28

61 Rationality also prohibits the state from irrationally differentiating

between different groups of similarly situated people.58

62 Where a decision is objectively irrational, a Court has the power to

intervene and set aside the irrational decision.59

Legal Aid SA’s decision was irrational

63 The miners wrote to Legal Aid SA on or about 15 October 2012

requesting funding from Legal Aid SA for the miners for the

purposes of legal representation before the Commission.60

64 Legal Aid SA refused the request in a letter of 18 October 201261

and provided the following reasons:

64.1 Firstly, that the Legal Aid Guide 2011/12 made no provision

for the funding of legal representation before commissions of

inquiry;62

64.2 Secondly, that Legal Aid had already “committed to funding

the legal team of the families of the deceased who have lost

a breadwinner” as the families had “a substantial, proximate

58 Harksen v Lane 1998 (1) SA 300 (CC), para 42. City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (2011 (4) SA 337 (SCA), paras 62 to 66. 59 Ex parte President of the Republic of South Africa and Others, In re: Pharmaceutical Manufacturers Association of SA and Another 2000 (2) SA 674 (CC) at para 90 60 Record, vol1, p 43, para 23. 61 Record, vol 1 pp 7 – 8, para 18. 62 Record, vol 1, p 44, para 24.1.

29

and material interest” in the outcome of the Commission’s

inquiry. This was in essence a reason based on budgetary

constraints63;

64.3 Thirdly, that the miners had not shown that they would

receive “a substantial and identifiable benefit” from

participating in the Commission separately from their unions

– namely AMCU and the twelfth respondent, NUM.64 The

implication in this reasons is that the interests of the miners

would be protected at the Commission by the trade unions,

NUM and AMCU.65

65 Legal Aid SA repeated its reasons in a letter the following day.66

66 On 19 October 2012 Legal Aid SA granted legal aid to the families

of people killed at Marikana on 16 August 2012.67 It is common

cause that the CEO exercised her discretion under Item 10.2.3(a)

of the 2012 Guide in favour of granting funding for the families of

the deceased.68

63 Record, vol 1, p 44, para 24.4. 64 Record, vol 1, pp 7-8, para 18. 65 Record, vol 1, p 44, para 24.3. 66 Record, vol 1, pp 7 – 8, para 19. Record, pp 245 – 246. 67 Record, vol1, p 44, para 26. 68 Record, vol 1, p 10, para 27.

30

67 The primary question before the High Court was whether, on these

facts, Legal Aid SA’s decision to assist the families, but not the

miners, had any rational basis. The High Court found that there

was none. It held that the distinction Legal Aid SA drew between

the families and the miners was irrational. In particular, it held that

-

67.1 There was no logical basis for the differentiation between the

miners and the families;69

67.2 The decision was arbitrary and not rationally related to the

purpose of the Legal Aid Act and its constitutional mandate

of providing legal funding to the indigent;70 and

67.3 The decision violated the miners’ right to equality guaranteed

by section 9 of the Constitution. 71

68 Recognising that both the constitutional principle of legality72 and

the fundamental right to equality73 forbid the state from drawing

arbitrary distinctions between groups of people, the High Court set

Legal Aid SA’s decision aside.74 The families and AMCU submit

69 Record, vol 2, p 146, para 96. 70 Record, vol 2, p 147, para 98. 71 Record, vol 2, p 147, para 98. 72 Section 1 (c) of the Constitution. 73 Section 9 (1) of the Constitution. 74 Record, vol 2, p 149, paras 101 – 103.

31

that the High Court’s findings and order are, in these respects,

unassailable.

69 At the heart of Legal Aid SA’s decision is the distinction it draws

between the families and the miners. Understandably, having

already granted legal aid to the families, it considers itself bound to

distinguish the families’ situation from that of the miners. Yet it has

failed to identify any rational basis for doing so.

70 The CEO of Legal Aid SA differentiated between the families and

the miners for purposes of exercising her discretion under Item

10.2.3(a).

71 The differentiation appeared to be based on –

71.1 The fact that the families had a substantial, proximate and

material interest in the outcome of the inquiry; and

71.2 The miners’ interests before the Commission would be

adequately represented by AMCU and NUM.

72 The reasons provided by Legal Aid SA for this differentiation are

patently irrational. They fail to have regard to the Commission’s

terms of reference. They fail to have regard to the actual situation

32

of the miners. They amply demonstrate that Legal Aid SA did not

apply itself to the decision with any diligence. This is so because -

72.1 The miners were not uniformly members of AMCU or NUM.

Many were members of neither union. Some were not even

employees of Lonmin. These unions held no brief for them

26 before the Commission. The miners’ interests were, in any

event, separate and distinct from those of AMCU and NUM.

AMCU and NUM were not facing criminal charges. Nor were

they injured or arrested after the killings. They were

concerned with whether they had an institutional role in the

events leading up to the killings, and whether their actions

rendered them responsible for loss of life or damage to

persons or property. This interest differs fundamentally from

that of the miners.

72.2 A cursory examination of the Commission’s terms of

reference discloses that the miners’ conduct leading up to

the killings is an issue under direct consideration at the

Commission. The miners are clearly identified as a group in

the very first paragraph of the Commission’s terms of

reference. They are the “70 persons” injured and

“approximately 250 people” arrested referred to there.75 It

75 Record, vol 3, p 233, l 10 – 13.

33

cannot seriously be contended that the miners’ interest in the

Commission’s proceedings was not “substantial, proximate

and material”. In one sense, the miners – what they did and

what was done to them – were the Commission’s primary

focus.

73 All of these facts were pointed out, or should have been plain, to

Legal Aid SA at the time it was asked to grant the miners legal aid.

No rational decision-maker apprised of these facts would have

refused to grant the miners legal aid, if she had already granted

legal aid to the families.

74 Later, in its papers before the High Court and SCA, Legal Aid SA

advanced two additional reasons:

74.1 The families’ interest in the Commission arises from the

possibility of future claims of loss of support resulting from

the death of breadwinners;

74.2 The families were not present at the killings and would not be

in a position to provide their attorneys with instruction in any

civil claim; and

74.3 Granting legal aid to the miners constituted a greater

financial constraint for legal aid considering its proper

funding allocation. 34

75 In the first instance, Legal Aid SA is bound by the decisions it gave

for the refusal of legal funding. It cannot now rely on new and

different reasons to justify its decision.76

76 Even if one were to accept the new reasons, these attempts to

rationalise the decision after the fact are insufficient, because -

76.1 The mere fact that the families are contemplating civil claims

does not distinguish them from the miners. The High Court

found, that this was a “simplistic and fallacious

generalisation, which, without empirical evidence, cannot

logically be made”.77 The High Court’s finding in this regard

is undoubtedly correct.

76.2 In any event, the available “empirical evidence” undermines

the distinction drawn on this ground still further. The miners

clearly have potential claims for damages, arising out of

injuries they sustained during the killings, unlawful arrest and

unlawful detention. Mr. Magidiwana was shot seven times.78

None of this is disputed.

76.3 If the purpose of granting legal aid to the families was to

enable them to give instructions in future civil claims, then

76 National Lotteries Board v South African Education and Environment Project 2012 (4) SA 504 (SCA) at para 27. 77 Record, vol 2, p 146, para 94. 78 Record, vol 2, p 160, para 4.1.

35

the participation of the miners in the Commission was

essential. The police were hardly likely to voluntarily lead

evidence advantageous to the families in any future civil

claim which will be brought against them. The miners

themselves were the parties with the information most

valuable to the families, and the families could not effectively

participate in the Commission unless the miners could. In

refusing legal aid to the miners, Legal Aid SA undermined

the very purpose it now gives for extending aid to the

families.

76.4 The mere fact that the miners’ application for funding raised

additional resource constraints is, in itself, irrelevant. Legal

Aid SA does not say that its resources are insufficient. It says

that the resource implications of granting legal aid to the

miners differ from those of granting it to the families. That

may be so, but the rational course in that event would have

to grant legal aid to the miners in a sum to be determined,

possibly after engagement with their legal team. It is not, in

itself, a reason to refuse the request outright. In any event, it

must be emphasised that the High Court did not direct Legal

Aid SA to grant a specific sum to the miners. The amount to

be granted and the terms to be attached were left subject,

quite properly, to the CEO’s discretion. They still are.

36

77 In light of the above, Legal Aid SA’s decision to refuse legal aid to

the miners was without rational justification, whether it is evaluated

in light of the reasons given for it at the time it was taken, or the

new reasons provided later.

D THE TECHNICAL ARGUMENTS

Pleading and PAJA

78 Legal Aid SA makes much of the fact that the miners’ case in the

High Court was not instituted, or initially framed, as a PAJA review.

79 In reality, nothing turns on this, because –

79.1 The miners sought and were granted an amendment to their

notice of motion in Part B of the application before the High

Court. The amended prayer sought to review and set aside

Legal Aid SA’s refusal to provide funding to the miners.79

79.2 Legal Aid SA consented to that amendment.80 There can

accordingly be no suggestion that Legal Aid SA did not know

the case it had to meet, or that it was prejudiced by the

amendment.

79 Record, vol 2, p 106, paras 7 -10. 80 Record, vol 2, p 106, para 7.

37

79.3 The miners’ papers, reasonably construed, clearly constitute,

amongst other things, an attack on the rationality of the

decision to refuse them legal aid. It is trite that averments in

papers must be reasonably construed. If it is reasonably

clear what the pleader’s case is, then technical objections will

not be upheld.81 The pleadings are made for the court, not

the court for the pleadings.82 No-one, least of all Legal Aid

SA, could have been in any doubt that the miners’ case was

that it had acted irrationally in refusing them legal aid.

79.4 In any event, it was always open to the miners to rely directly

on section 1 (c) and 9 (1) of the Constitution in impugning the

rationality of Legal Aid SA’s decision. Rationality review,

based on the Constitution, rather than PAJA, is a regular

exercise in this Court,83 and in the SCA.84

Subsidiarity

80 Our courts have held that where legislation has been enacted to

give effect to a right, a litigant should rely on that legislation in

order to give effect to the right or alternatively challenge the

81 See LAWSA (3 ed) vol 4, para 157, footnotes 15 and the cases cited there, especially Joubert v Impala Platinum Ltd 1998 1 SA 463 (B). 82 Shill v Milner 1937 AD 101. 83 Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC), para 12. 84 Legal Aid Board v S and Others [2011] 1 All SA 378 (SCA), paras 46 to 49.

38

legislation as being inconsistent with the Constitution.85 A litigant

cannot ordinarily “go behind” the legislation and rely on the

constitutional right itself.86 That is the principle of “subsidiarity”.

81 Legal Aid SA submits that, even if the decision to refuse legal aid

was in breach of section 9 of the Constitution, the miners are non-

suited because they did not comply with the principle of subsidiarity

by bringing their challenge in terms of PEPUDA.

82 However, the principle of subsidarity is not engaged on the facts of

this case. As is clear from its Preamble, PEPUDA gives effect to

the right not to be unfairly discriminated against in terms of section

9 (3) of the Constitution. It does not purport to give effect to, or

regulate claims under, section 9 (1). This is corroborated by

section 9 (4) of the Constitution itself, which prohibits unfair

discrimination and requires that national legislation “be enacted to

prevent or prohibit unfair discrimination”.

85 See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at paras 22-6 (in the context of the Promotion of Administrative Justice Act 3 of 2000 which gives effect to the constitutional right to administrative justice in section 33 of the Constitution); MEC for Education, KwaZulu Natal and Others v Pillay 2008 (1) SA 474 (CC) at para 40 (in the context of section 9 of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the Equality Act); South African National Defence Union v Minister of Defence and Others [2007] ZACC 10; 2007 (5) SA 400 (CC) at para 52 (in the context of labour legislation and the labour rights protected in section 23 of the Constitution). 86 Minister of Health v New Clicks (Pty) Ltd 2006 (2) SA 311 (CC), paras 94 to 97.

39

83 In short, PEPUDA does not purport to give effect to the right not to

be subjected to irrational or arbitrary differentiations in terms of

section 9 (1) of the Constitution. Nor does section 9 of the

Constitution require legislation of that kind to be passed.

84 It would be strange indeed if it were not possible to rely directly on

section 9 (1) of the Constitution, as the enquiry it sanctions is

simple and fact dependent. Either a differentiation is rational or it is

not. Subordinate legislation is not necessary to give effect to rights

against irrational treatment.

85 Properly analysed, Legal Aid SA’s decision to refuse legal aid to

the miners manifested an irrational differentiation between the

miners and the families, in breach of section 9 (1) of the

Constitution. As set out above, it is unnecessary to consider

whether the decision also amounted to unfair discrimination. The

principle of subsidiarity would only become relevant if it were

necessary to go that far.

86 Accordingly, the principle of subsidiarity does not assist Legal Aid

SA.

E THE RELIEF GRANTED IN THE HIGH COURT

40

87 The High Court ordered Legal Aid SA to “forthwith take steps to

provide legal funding” to the miners.87

88 Legal Aid SA complains that this relief violated the separation of

powers, because it was granted in the absence of any evidence of

the costs involved in implementing such an order. It relies on

evidence it introduced after the High Court gave its judgment, to

which it says no objection has been taken.

89 We submit that -

89.1 the relief granted in the High Court was perfectly consistent

with the separation of powers; and that

89.2 the evidence upon which Legal Aid SA seeks to rely is not

properly before this Court, and is in any event irrelevant.

90 These submissions are developed below.

The High Court’s Order

91 The High Court’s order directed Legal Aid SA to “take steps” to

provide funding to the miners. It did not say how much. It did not

say on what terms. It did not direct Legal Aid SA to embark upon

87 Record, vol 2, p 149, para 103, l 23 – 24.

41

any specific re-allocation of its budgets. Precisely how to comply

with the order was left to Legal Aid SA.

92 This struck the right balance. As this Court held in the TAC case –

“Even simple declaratory orders against government or organs of state can affect their policy and may well have budgetary implications. Government is constitutionally bound to give effect to such orders whether or not they affect this policy and has to find the resources to do so.”88

93 However, court orders should not “be formulated in ways that

preclude the Executive from making legitimate choices”.89

94 In this case, Legal Aid SA had every opportunity to present

evidence of its budgets and resources to the High Court. Indeed, if

it sought to rely on a budgetary defence, the onus was on it to

present this evidence. It chose not to do so. Legal Aid SA could

even have claimed that it had no resources available to provide

legal aid to the miners. It did not, and still does not, make that

claim.

95 In these circumstances, the High Court cannot be faulted for failing

to have regard to evidence Legal Aid SA could have presented but

chose not to. The relief it granted permitted Legal Aid SA to decide

precisely how to give effect to its obligations, by making such

88 Treatment Action Campaign v Minister of Health (No. 2), 2002 (5) SA 721 (CC), para 99. 89 Ibid, para 114.

42

“legitimate choices” as it sees fit. In doing so, the High Court

showed the appropriate respect for the separation of powers.

The New Evidence Tendered on Appeal

96 The new evidence contained in the affidavit of Patrick Hundermark

filed in support of the application for leave to appeal90 is not

properly before this Court. The families and AMCU object to its

introduction. No application to introduce new evidence has been

brought. No explanation for why the evidence it contains could not

have been brought to the attention of the High Court has been

tendered. The affidavit is not tendered to show that Legal Aid SA’s

policy has changed or developed in any way.91 The affidavit is

tendered for the sole reason that Legal Aid SA thinks that it would

have enhanced its case in the High Court. Accordingly, none of the

conditions for receiving new evidence on appeal has been met.92

The affidavit ought to be disregarded.

97 It does not matter that the evidence was not objected to at the time

it was introduced, because it was never suggested that it would be

sought to be admitted on appeal. It was tendered in support of the

90 Record, vol 1, pp 65 to 73. 91 Evidence is generally admissible for this purpose in social rights cases. See Mazibuko v City of Johannesburg 2010 (4) SA 1 (CC), paras 40 and 41. 92 Rail Commuters Action Group v Transnet LTD ta/ Metrorail 2005 (2) SA 359 (CC), paras 41 to 43.

43

application for leave to appeal, which the families and AMCU did

not oppose. That notwithstanding, the proper course would have

been for Legal Aid SA to bring an application to admit the new

evidence on appeal.

98 The families and AMCU furthermore point out that their agreement

on the content of the record in the SCA was not sought. Had it

been sought, the inclusion of Mr. Hundermark’s affidavit would

have been objected to earlier.

99 The information contained in the affidavit is, in any event,

irrelevant, for at least the following reasons –

99.1 It is almost certainly out of date. Since the judgment of the

High Court was handed down, two new financial years have

commenced. New budgets may have been drawn up,

additional resources may well have been allocated. Mr.

Hundermark’s affidavit leaves us none the wiser as to Legal

Aid SA’s true financial situation.

99.2 The affidavit proceeds on the assumption that the High Court

ordered Legal Aid SA to re-allocate its budget in a specific

way, or to provide a finite amount of money to the miners.

That is simply not what happened. The High Court directed

44

Legal Aid SA to “take steps” to provide the miners with

funding. In doing so, Legal Aid SA is entitled to make such

“legitimate choices” as it sees fit.

99.3 Mr. Hundermark’s affidavit is not tendered in support of the

proposition that Legal Aid SA’s decision to refuse the miners

legal aid was rational. It is tendered to support the argument

that the High Court ought to have referred the decision on

whether to fund the miners back to Legal Aid SA. However,

in the High Court, the miners applied for and were granted

an order directing Legal Aid SA to provide them with legal aid

pending this appeal. The miners’ application was not

opposed, and the interim execution order has already been

implemented. Legal Aid has “taken steps” to provide the

miners with legal aid.

99.4 The money has now been disbursed. Accordingly, to set

Legal Aid SA’s decision aside, but nonetheless refer the

matter back to it, or the High Court would be an exercise in

futility.

100 Accordingly, the form of order granted by the High Court was

sound, and remains so.

45

F CONCLUSION

101 For all of these reasons, we submit that Legal Aid SA’s application

for leave to appeal alternatively its appeal must be dismissed.

102 AMCU and the families do not ask for costs.

STUART WILSON FRANCES HOBDEN Counsel for the 8th and 9th Respondents

Chambers, Johannesburg, 2 April 2015

46

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CC Case No. CCT 188/14 SCA Case No. 1055/13

In the matter between:

LEGAL AID SOUTH AFRICA Applicant and

MZOXOLO MAGIDIWANA First Respondent

INJURED AND ARRESTED PERSONS Second Respondent

PRESIDENT OF THE REPUBLIC OF Third Respondent SOUTH AFRICA

THE MINISTER OF JUSTICE AND Fourth Respondent CONSTITUTIONAL DEVELOPMENT

THE MARIKANA COMMISSION Fifth Respondent OF INQUIRY

PARTIES TO THE MARIKANA Sixth to Nineteenth Respondents COMMISSION OF INQUIRY

HEADS OF ARGUMENT ON BEHALF OF THE EIGHTEENTH RESPONDENT: THE LEDINGOANE FAMILY

2

TABLE OF CONTENTS

INTRODUCTION ...... 3

THE HISTORICAL CONTEXT ...... 6

THE APPLICATION OF SECTION 34 IN THIS MATTER ...... 9

THE RIGHT OF ACCESS TO COURTS APPLIES TO COMMISSIONS ...... 12

Ordinary meaning of the language of s 34 ...... 14

Purposive and generous interpretation of s 34 ...... 16

Fairness of commission proceedings at common law ...... 17

Foreign law on fairness in commission proceedings ...... 19

THE RIGHT REQUIRES LEGAL REPRESENTATION WHERE UNFAIRNESS WOULD

OTHERWISE RESULT ...... 21

International law on the right to legal aid in civil proceedings ...... 23

Foreign law on the right to legal aid in civil proceedings ...... 30

Factors relevant to whether legal representation is required ...... 33

The Legal Aid Act and Legal Aid Guide ...... 35

Is the refusal of legal aid justifiable in terms of s 36 or otherwise ...... 37

THE RULE OF LAW AND LEGALITY REQUIRE LEGAL REPRESENTATION IN THE

CIRCUMSTANCES ...... 39

Objectives of the Commission ...... 41

Requirement to hear and support the victims ...... 43

The context of the specific Commission requires victim legal representation ...... 45

CONCLUSION: REMEDY & COSTS ...... 47 3

INTRODUCTION

1. The 18th respondent is the family of the late John Kutlwano Ledingoane. Mr.

Ledingoane was one of the striking miners shot dead on 16 August 2012 at

Marikana. 1 The 18 th respondent (“the Ledingoane family”) is a party to the

Marikana Commission of Inquiry (“the Commission”).

2. In these written submissions, the parties are referred to as follows: the

appellant as “ LASA ”; the first and second respondents as “ the miners ”; the

eighth and ninth respondents, as “ the families ” and “ AMCU ” respectively; and

the Ledingoane family and the families are referred to collectively as “ all the

families ”.

3. The Ledingoane family supports the order granted by the High Court and

resists the appeal. The Ledingoane family focuses its submissions on the right

of access to courts in s 34 of the Constitution and the requirements of the rule

of law in the light of the purposes of the Commission.

4. The Ledingoane family does not seek funding relief for themselves in this

matter; however they nonetheless have a direct and substantial interest in the

relief sought. The Ledingoane family has standing in the interest of the

1 LASA’s statement of facts Vol 1 p 3 para 3.6. 4

miners, 2 in its own interest and in the public interest 3 in terms of s 38 of the

Constitution.

5. The Ledingoane family has an interest in establishing the responsibility of the

South African Police Service (“SAPS”) and rebutting the claim that the police

acted in self-defence in shooting the protesting miners on 16 August 2012, in

particular the late John Ledingoane. A finding by the Commission that the

police acted in self-defence is likely to undermine the prospects of the

Ledingoane family being awarded damages for the wrongful killing of their

breadwinner.

6. A negative finding will also have significant consequences for the desire of

the Ledingoane family to see justice done in respect of the killing of their

loved one, since it will severely erode the prospects of a prosecution of those

responsible for the killing. Should prosecutions not be recommended or

2 In the High Court proceedings the Ledingoane family supported the relief sought by the miners, subject to a qualification in respect of the rate at which legal representation should be funded. This background has been set out in the answering affidavit of Bongumusa Sibiya, the Ledingoane family’s attorney of record at the time of the High Court proceedings. See Ledingoane family AA Vol 4 pp 291-293 paras 6, 8.2 and 9.

3 While the Ledingoane family does not stand to benefit any actual or direct funding relief that may arise from this appeal, it nonetheless asserts the public interest in establishing the principle that in a democratic South Africa, the poor and the vulnerable are entitled to legal support in commissions when their rights are threatened. 5

referred by the Commission, 4 there is little prospect that such prosecutions

will take place. A finding which holds the police responsible will significantly

boost the prospects of civil suits as well as criminal prosecutions.

7. The Commission is likely to be the most intensive investigation into the

tragedy of Marikana. It has a budget running into the tens of millions of

rands; is overseen by skilled and respected jurists as well as competent

support staff; has sat for approximately two years; is likely to gather and

consider more evidence, both oral and on sworn affidavit, than any other

forum, including a court. The findings, as well as the evidence generated in

the Commission are likely to be relied upon by a range of decision makers.

8. Institutions such as the SAPS, the Independent Police Investigative

Directorate (“IPID”) and the National Prosecuting Authority (“NPA”) are

waiting for the Commission’s findings and recommendations before taking

further action.

9. The following issues are addressed:

9.1. the historical context in which the Commission is taking place;

4 See paragraph 5 of the Commission’s Terms of Reference, Proclamation No. 50, 2012 (“Terms of Reference”). 6

9.2. the right of access to courts in s 34 of the Constitution, including:

9.2.1. the application of the right to commissions of inquiry;

9.2.2. the content of the right, which includes a right to legal assistance at

state expense where the failure to provide it would render

proceedings unfair and result in substantial injustice;

9.3. the requirement of legal representation on the basis of the rule of law and

legality;

9.4. remedy and costs.

THE HISTORICAL CONTEXT

10. It is appropriate to place the issue of legal support in commissions of inquiry

within the broad context of the history of commissions in South Africa. This

Court has recognised that the ‘ never again ’ principle should be “ one of our

guides to interpretation ”. 5

11. The Truth and Reconciliation Commission (“TRC”) in its final report noted

that “[t]he story of apartheid is, amongst other things, the story of the

5 Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) para 46. See also SATAWU v Garvas 2013 (1) SA 83 (CC) para 63. 7

systematic elimination of thousands of voices that should have been part of the

nation’s memory. The elimination of memory took place through censorship,

confiscation of materials, bannings, incarceration, assassination and a range

of related actions ”.6

12. The history of commissions of inquiry in apartheid South Africa is replete

with examples of the systematic silencing of the voices of victims.

Commissions were “ often instituted either to justify actions taken against

opponents of apartheid or to provide the government with justification for

acting against its opponents. ”7 For example, the ‘Commission of Inquiry Into

the Riots at Soweto and Other Places in the Republic of South Africa During

June 1976’ 8, known as the ‘Cillié Commission’, has been accused of

distorting the truth as it related to the victims of police violence.9

6 TRC Report, Volume 1, ch. 8, para 1.

7 Aluka ‘Struggles for Freedom: South Africa’, Commissions of Inquiry, South Africa online digital library of scholarly resources, including government commissions of inquiry.

(http://www.aluka.org/action/showCompilationPage?doi=10.5555/AL.SFF.COMPILATION.COLLECTION -MAJOR.COMENQ&)

8 Pretoria: Government Printer, 1980.

9 Helena Pohlandt-McCormick, “ I Saw a Nightmare … Doing Violence to Memory: The Soweto Uprising, June 16, 1976 ”, Columbia University Press & Gutenberg-e at ch 4 p 1 (http://www.gutenberg-e.org/pohlandt- mccormick/index.html), reporting:

8

13. In apartheid South Africa no provision was made to support victims before

commissions of inquiry. While the nature of commissions in post-apartheid

South Africa has changed substantially, certain challenges associated with

commissions still persist. The poor and the vulnerable continue to be left to

their own devices. State organs still wield enormous influence in such

mechanisms through overwhelming legal ‘firepower’ provided at taxpayer’s

expense.

14. It is submitted that whether LASA has a duty to provide support to enable the

miners to be meaningfully and adequately represented at the Commission

must be considered in the context of the colonial and apartheid era structural

biases against poor and marginalised people in commissions. The

“The student participants could do little to prevent the disastrous treatment their experiences received at the hands of the South African state in the Cillié Commission Report … the students had neither a single institution speaking for them nor the power to produce a single authoritative version of what happened on that day. ”

See also Testimony of Murphy Morobe before the Human Rights Violations Committee of the TRC, 23.07.1996, Case – Soweto, (http://www.justice.gov.za/trc/hrvtrans/soweto/morobe.htm), testifying:

“The Cillié Commission was then put in place and used to try and find justification for what the police did in Soweto and other townships. They interrogated us at John Vorster Square, they tortured us to get statements from us, statements that would implicate other people … So they used the Cillié Commission to try to find a place where to put blame on and they pulled us out of our detention cells at John Vorster Square, they took those same statements that were extracted from us under torture and they forced us to read them before that Cillié Commission. ” 9

interpretation of the right of access to courts in s 34, which is considered in

the next section below, must also be approached in the light of this history.

THE APPLICATION OF SECTION 34 IN THIS MATTER

15. 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. ”

16. In refusing leave to appeal in respect of the urgent interim relief sought in

Part A of the application, this Court nevertheless suggested (in obiter dicta ) a

number of principles:

16.1. For purposes of s 34, the Commission’s proceedings are not necessarily

to be equated to a resolution of legal disputes by a court of law; 10

16.2. A functionary setting up a commission has the power to ensure an

adequate opportunity to all who should be heard by it; 11

10 Magidiwana and Others v President of the Republic of South Africa and Others 2013 (11) BCLR 1251 (CC) para 14.

11 Magidiwana at para 15. 10

16.3. However, unfairness may arise in commission proceedings if legal

representation is not afforded; 12

16.4. It is a contestable issue whether the principle of ‘equality of arms’ gives

rise to a right to legal representation in commission proceedings at state

expense; 13

17. Although it did not decide the issues, it is submitted that this Court therefore

recognised that:

17.1. Section 34 may include a right to representation at state expense in

commission proceedings – that this is a “ contestable issue ”;

17.2. The central question will be whether the failure to provide representation

results in unfairness;

17.3. It would be necessary to challenge the Legal Aid Act 22 of 1969 if it

does not provide for legal representation at state expense in commission

proceedings.

12 Magidiwana at para 16.

13 Magidiwana at para 16. 11

18. LASA has conceded that it has the power to provide legal aid to parties to a

commission of inquiry (including the Marikana Commission) in terms of the

Legal Aid Act and the Legal Aid Guide. However, LASA argues that the

right of access to courts is not applicable in this matter at all. 14 LASA

advances two main arguments in respect of s 34:

18.1. First, LASA argues that s 34 is never applicable to commissions of

inquiry, or at least is not applicable to merely investigative commissions

that are not “ dispositive ”; 15 and

18.2. Secondly, even if s 34 may be applicable to commissions (including the

Marikana Commission), LASA argues that the right does not include

state-funded legal representation in any circumstances. 16

19. It is submitted that s 34 is applicable to commissions of inquiry and that,

where necessary to secure a ‘fair hearing’, s 34 requires the provision of legal

representation at state expense in commission proceedings. In the next two

14 LASA’s written submissions p 38 para 105 (denying that s 34 was relevant and applicable) and p 28 para 77 (arguing that it is unnecessary to consider s 34 at all, but only whether CEO properly exercised her discretion).

15 LASA’s written submissions pp 9-10 paras 23 and 25; and pp 28-29 paras 79-80.

16 LASA’s written submissions pp 30-31 paras 82-84, especially para 84 (arguing that s 34 gives “ no general right to state-funded legal representation ”). 12

sections below, the two questions of the application of the right to

commissions and whether the content of the right may include state-funded

legal representation are addressed.

THE RIGHT OF ACCESS TO COURTS APPLIES TO COMMISSIONS

20. LASA argues, in sweeping terms, that “ Section 34 finds no application to

commissions of inquiry .” 17

21. It is submitted that there is no basis to conclude that the proceedings of

commissions of inquiry fall outside the application of the s 34 right at the

outset. In the next section, the question whether s 34 requires legal

representation in commission proceedings (that is, the content of the right) is

considered, accepting that this may differ from when it is required in criminal

proceedings and in civil proceedings before a court. However, whether s 34

applies at all to commission proceedings is a different question to the content

of what s 34 requires, when it is applicable.

22. Apart from the disputed right to free legal representation, 18 the content of the

right of access to courts includes at least the following:

17 LASA’s written submissions p 28 para 79.

18 The question whether the content of the right includes state-funded legal representation is considered below. 13

22.1. A right of access to a hearing, which offers protection in respect of

restrictions such as ouster clauses, 19 prescription, 20 res judicata ,21

procedural rules, 22 the requirement of security for costs 23 and

‘champertous’ agreements; 24

22.2. A public hearing; 25

22.3. A fair hearing, which includes the right to:

22.3.1. Equality of arms; 26

22.3.2. Independence and impartiality; 27

22.3.3. Notice and hearing requirements. 28

19 Chief Lesapo v North West Agricultural Bank & Another 2000 (1) SA 409 (CC), 1999 (12) BCLR 1420 (CC).

20 Mohlomi v Minister of Defence 1997 (1) SA 124 (CC), 1996 (12) BCLR 1559 (CC).

21 Bafokeng Tribe v Impala Platinum Ltd and Others 1999 (3) SA 517 (B), 1998 (11) BCLR 1373 (B).

22 Giddey NO v JC Barnard and Partners 2007 (2) BCLR 125 (CC) para 16.

23 Giddey at para 30.

24 Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd 2004 (9) BCLR 930 (SCA).

25 South African Broadcasting Corp Ltd v National Director of Public Prosecutions 2007 (1) SA 523 (CC), 2007 (2) BCLR 167 (CC) para 32.

26 Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) fn 154.

27 De Lange v Smuts NO 1998 (3) SA 785 (CC), 1998 (7) BCLR 779 (CC). 14

23. On the argument of LASA, not only is there no right to free legal

representation, but none of the components of s 34 set out above ever applies

to commissions of inquiry. Although what the right requires will vary, s 34 is

applicable to commissions of inquiry, having regard to:

23.1. The ordinary meaning of the language of the provision;

23.2. A purposive and generous interpretation of the right;

23.3. Consistency with the pre-constitutional position at common law;

23.4. Relevant foreign law, which supports such an interpretation.

24. These interpretive considerations are addressed in turn.

Ordinary meaning of the language of s 34

25. Two aspects of the text of s 34 support the conclusion that the right does apply

to the proceedings of commissions of inquiry.

25.1. First, s 34 applies to “any dispute that can be resolved by the application

of law ”. It is submitted that the issues covered by the terms of reference

of the Commission include disputes that can be resolved by the

28 De Beer NO v North-Central Local Council & South-Central Local Council and Others (Umhlatuzana Civic Association Intervening) 2002 (1) SA 429 (CC), 2001 (11) BCLR 1109 (CC) para 11. 15

application of law, in particular (from the perspective of the Ledingoane

family) the responsibility of the SAPS for the deaths of Mr John

Ledingoane and the other miners who died at Marikana.

25.2. Secondly, and even more decisively, s 34 refers to such disputes being

“decided in a fair public hearing before a court or, where appropriate,

another independent and impartial tribunal or forum” (emphasis added).

It is submitted that a commission of inquiry constitutes “ another

independent and impartial tribunal or forum ”. LASA overlooks this

entirely in making the submission that “[i]f the Commission is not a

court, then it follows, in our submission, that the Funding Decision could

never deny the Miners their rights in respect of access thereto ”. 29

26. This court has already held that s 34, including the requirement of a fair

hearing, applies to private arbitration proceedings under the Arbitration Act

42 of 1965 30 and to the mediation, conciliation and arbitration proceedings of

29 LASA’s heads of argument p 29 para 81.

30 Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC); 2009 (6) BCLR 527 (CC) paras 72-74. 16

the CCMA. 31 The High Court has found that a commission of inquiry also

falls within the application of s 34. 32

27. An investigative commission of inquiry of the nature of the Marikana

Commission falls within the ordinary meaning of an “ independent and

impartial tribunal or forum ” that resolves disputes by the application of law.

Purposive and generous interpretation of s 34

28. When interpreting a right in the Bill of Rights, the courts are enjoined to adopt

a construction that is generous and purposive. 33 Such an interpretation is

achieved by adopting a broad construction of the language of the right to

enable its protection to apply in respect of the full range of disputes that may

be resolved by the application of law in a court or other tribunal or forum. 34

29. The interpretation contended for by LASA, that s 34 does not apply at all to

commissions of inquiry, is the most restrictive interpretation that could be

31 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) paras 111-112 (majority per Navsa AJ), 123-124 (per O’Regan J, concurring), para 158 (Sachs J, concurring) and para 209 (Ngcobo J, dissenting but concurring on this point).

32 Mbebe and Others v Chairman, White Commission and Others 2000 (7) BCLR 754 (Tk); Bongoza v Minister of Correctional Services and Others 2002 (6) SA 330 (TkH).

33 S v Mhlungu 1995 (3) SA 867 (CC) para 8.

34 See Lufuno Mphaphuli at paras 73-74, holding that a generous interpretation of s 34 is required and that on a generous interpretation s 34 applies to private arbitration proceedings. 17

adopted. It is not contended that s 34 should be interpreted to impose

identical requirements in all respects on the proceedings of commissions as

apply in courts. However, in considering the application of the right at the

outset, it is submitted that it must be interpreted to apply to the proceedings of

commissions. The content of the right and what it requires in particular

circumstances will vary depending on the context.

Fairness of commission proceedings at common law

30. Even at common law, the courts recognised that the requirement of ‘fairness’

– now embodied in s 34 of the Constitution – did not apply only to court

proceedings, but also to the proceedings of commissions of inquiry and other

statutory investigative or fact-finding bodies.

31. An example of the application of this duty is Du Preez and Another v Truth

and Reconciliation Commission ,35 which concerned the activities of the

Committee on Human Rights Violations of the TRC. The function of the

Committee was to undertake a fact-finding inquiry, and submit a report to the

TRC on its activities and findings. This report was to, inter alia , contain

recommendations on measures to prevent the future violation of human rights.

35 1997 (3) SA 204 (A). 18

32. The Appellate Division (per Corbett CJ) held that because of the potential

prejudice flowing from the allegations which could be made at the hearing and

from the findings and recommendations of the Committee, the Committee had

a duty to treat the applicants (who were allegedly implicated in crimes)

fairly.36

33. The courts have recognised a duty to act fairly in the context of various other

fact-finding or statutory bodies and processes. 37 In all of these matters,

involving a wide variety of circumstances, the court found a duty to act fairly,

as well as a duty to give a hearing to persons affected. This was so even

though in each instance, the report was only fact-finding or advisory, with the

power to make recommendations.

36 At 230.

37 See, for example, Chairman, Board on Tariffs & Trade & Others v Brenco Inc & Others 2001 (4) SA 511 (SCA), where the Board of Trade was to investigate “dumping” in the Republic and to report and make recommendations to the Minister of Trade & Industry; Van der Merwe and Others v Slabbert NO and Others 1998 (3) SA 613 (N), where the fact-finding body was a commission of inquiry investigating complaints against certain persons; Absa Bank Limited v Hoberman and Others NNO 1998 (2) SA 781 (C), where a commissioner was conducting an enquiry in terms of s 417 of the Companies Act; Re Pergamon Press Ltd [1970] 3 All ER 535 (CA), where inspectors carried out a statutory fact-finding enquiry under the English Companies Act; R v Lord Savell [1999] 4 All ER 860 (CA), where the tribunal was carrying out a fact- finding enquiry into the “bloody Sunday” massacre. 19

34. LASA concedes that “ [t]here is no doubt that commissions of inquiry must be

conducted fairly ”, 38 but provides no authority for the proposition or the source

of the obligation. LASA leaves commissions of inquiry in a legal black hole.

35. The requirement of fairness, as developed at common law, is now rooted in

the right to a fair hearing in terms of s 34. 39 To conclude that s 34 is never

applicable to proceedings of a commission of inquiry would be to adopt an

interpretation of the right that would be inconsistent with a long line of

common law authority requiring fairness in proceedings of commissions of

inquiry and analogous bodies.

Foreign law on fairness in commission proceedings

36. The position is similar in foreign jurisdictions, particularly common law

jurisdictions. The position in Canada and New Zealand is illustrative in this

regard.

38 LASA’s heads of argument p 30 para 83.

39 De Beer NO v North-Central Local Council & South-Central Local Council 2002 (1) SA 429 (CC) para 11, confirming that the requirement of fairness is now rooted in s 34 and the constitutional principle of the rule of law. In Pharmaceutical Manufacturers Association of South Africa: Ex part President of the Republic of South Africa 2000 (2) SA 674 (CC), Chaskalson P confirmed at para 44 that:

“There are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control. ” 20

37. In Canada (Attorney General) v Canada (Commission of Inquiry on the

Blood System) ,40 the Canadian Supreme Court considered the extent to which

requirements of procedural fairness in judicial proceedings were applicable in

a commission of inquiry. The Commission sent out confidential notice to the

parties that the Commission may reach a finding of misconduct. The parties

challenged the adequacy of notice. In review proceedings, the court

determined that while a commission of inquiry is not required to follow all of

the procedures of a formal court, certain Charter requirements of procedural

fairness are applicable, despite the fact that the findings of the commissioner

do not result directly in criminal or civil consequences. 41

38. Mahon v Air New Zealand is a Privy Council decision that is often cited in

the UK, Australia, and New Zealand as authority for the proposition that the

rules of natural justice apply even in proceedings that do not follow the formal

rules of evidence applicable in courts. The court set aside the findings of the

commission on the basis that the presiding judge violated the rules of natural

justice. 42

40 Canada (Attorney General) v Canada (Commission of Inquiry on the Blood System) , [1997] 3 S.C.R. 440.

41 Ibid at para 56.

42 Mahon v Air New Zealand [1984] AC 808 at 821. The commission of inquiry was formed to investigate a plane crash over Antartica. 21

39. Foreign law, too, therefore supports an interpretation that s 34 is applicable, in

principle, to the proceedings of commissions of inquiry.

40. It is therefore submitted that s 34 does apply to commissions of inquiry,

including the Marikana Commission. The question of what a ‘fair hearing’ in

terms of s 34 requires in a particular context – and specifically whether it

requires legal representation at state expense – is addressed next.

THE RIGHT REQUIRES LEGAL REPRESENTATION WHERE

UNFAIRNESS WOULD OTHERWISE RESULT

41. If the proceedings of commissions of inquiry are not excluded at the outset

and in all cases from the scope of s 34, the next question that arises is

whether, and if so when, s 34 requires the provision of legal representation at

state expense in commission proceedings.

42. In Bernstein , this Court observed that substantive fairness can never be

secured without ‘equality of arms’.43 While the Court in Bernstein made this

statement in apparently absolute terms, it is conceded that the s 34 right does

not require legal representation at state expense for all participants in all

commissions of inquiry, nor in all civil matters.

43 See Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) fn 154. 22

43. It is necessary to consider what ‘fairness’ requires in the circumstances of

each case. Fairness in the civil context requires consideration of factors

different to those that apply to determining whether ‘substantial injustice’ will

result in the criminal context. These factors can be gleaned from case law.

44. In Nkuzi Development Association v Government of South Africa , the Land

Claims Court held that the Constitution does confer a right to legal

representation at state expense in civil suits, at least in respect of land tenants

in the circumstances of that case. 44 The court held that there is no logical basis

for distinguishing between criminal and civil matters, as civil matters are

equally complex. 45 The court held that persons who have a right to security of

tenure under the Extension of Security of Tenure Act, 46 whose security of

tenure is threatened or infringed, have a right to legal representation or legal

aid at state expense if substantial injustice would otherwise result, and if they

cannot afford the cost of representation. 47 The court held that substantial

injustice would result where the potential consequences of the matter are

44 2002 (2) SA 733 (LCC).

45 Ibid at 737.

46 Act 62 of 1997.

47 Order at para 1.1. 23

severe and the person concerned is not likely to be able to present their case

effectively without representation. 48

International law on the right to legal aid in civil proceedings

45. In terms of s 39(2) of the Constitution, read together with ss 7(2) and 233 of

the Constitution, international law has an important interpretative function to

play when interpreting s 34.49

46. There are three categories of international law instruments that are relevant:

(i) treaties; (ii) declarations and resolutions of the African Commission on

Human and Peoples’ Rights (“African Commission”) and the United Nations;

and (iii) the reports of the committees of treaty bodies. The second and third

categories do not contain binding obligations, but are nevertheless relevant.50

47. The right to legal aid has been explicitly recognised in certain conventions,

including treaties that have been ratified by South Africa.

48 Order at para 1.3.

49 Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) paras 201-202.

50 Glenister at para 187. 24

47.1. Article 14 the International Covenant on Civil and Political Rights

(“ICCPR”) 51 contains an explicit guarantee of a right to free legal

assistance. 52

47.1.1. As appears from the wording of article 14, similarly to the

Constitution, the ICCPR expressly guarantees a right to free legal

assistance in criminal matters where the interests of justice so

require. However, the ICCPR has been authoritatively interpreted

to guarantee a right to free legal assistance in other legal

proceedings as well. In the decision of in Currie / Jamaica ,53 the

Human Rights Committee held that art 14 required the provision of

51 South Africa ratified the ICCPR on 16 December 1966, and acceded to the Optional Protocol to the ICCPR on 28 August 2002.

52 Article 14 of the ICCPR reads in relevant part as follows:

“(1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ...

(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; … ”

53 Currie / Jamaica Human Rights Committee communication no. 377/1989 (25 October 1989) paras 8, 10 and 13. 25

legal aid not only in the criminal proceedings, but in a constitutional

motion. In addition, the Human Rights Committee’s general

comment on article 14 expressed the view that art 14 also requires

the provision of legal aid in some civil matters, for the purpose of

securing a fair hearing. 54

47.1.2. Significantly for the purposes of the present matter, art 14(1) right

has been interpreted to apply not only to courts and tribunals, but

that it must also be respected “ whenever domestic law entrusts a

judicial body with a judicial task ”; this has been held to include, for

instance, disciplinary proceedings against a civil servant and

extradition proceedings. 55 On this interpretation, art 14(1) right

applies to commissions of inquiry.

47.2. Article 8 of the Protocol to the African Charter on Human and Peoples’

Rights on the Rights of Women in Africa 56 provides that state parties

must take measures to ensure “ effective access by women to judicial and

legal services, including legal aid ” and “ support to local, national,

54 General Comment No. 32: Article 14 “Right to equality before courts and tribunals and to a fair trial”, CCPR/C/GC/32 (23 August 2007) para 13.

55 General Comment 32 at para 7.

56 South Africa ratified the Women’s Protocol on 17 December 2004. 26

regional and continental initiatives directed at providing women access

to legal services, including legal aid ”. 57

47.3. Article 6(1) of the European Convention on Human Rights refers to a

“fair and public hearing ”, in similar language to s 34 of the Constitution

which guarantees a “ fair public hearing ”. The European Court of Human

Rights has interpreted art 6 to include a right to representation in some

civil cases. 58

47.3.1. In Airey v Ireland , the European Court held that the Irish

government’s failure to provide Mrs Airey with free representation

for the purpose of securing a judicial separation violated her right of

access to court in Article 6(1). 59 Research presented as evidence

could not provide a single instance in which a decree of judicial

separation had been obtained in Ireland without legal

representation. 60 The effect of Airey is that a fair civil hearing may

require the provision of legal representation at state expense.

57 Emphasis added.

58 Airey v Ireland (1979) 2 EHRR 305.

59 Ibid at para 28.

60 Ibid at para 24. 27

Article 6 of the European Convention is almost identical to s 34 of

the Constitution. This provides strong grounds for interpreting s 34

to impose a similar duty on government in circumstances where a

litigant is unlikely to be able to obtain relief without representation.

47.3.2. In a line of subsequent cases, the European Court has reaffirmed the

principle that a fair hearing in terms of art 6 requires the provision

of legal aid in certain civil matters. 61

48. The second category of international law instruments consists of declarations

and principles that are not binding, but are important interpretive tools. There

are three instruments that are of particular relevance:

48.1. Firstly, the Dakar Declaration, adopted by the African Commission in its

Resolution on a Right to a Fair Trial and Legal Representation in Africa.

Art 9 refers to both accused and aggrieved persons, which contemplates

criminal and civil proceedings, and places a duty on government to

provide legal assistance to indigent persons generally. 62

61 Tabor v Poland, Application no. 12825/02, ECtHR (2006) paras 31 & 39; Bertuzzi v France , Application no. 36378/97, ECtHR (2003) paras 21, 24 & 31; McVicar v UK , Application no. 46311/99, ECtHR (2002) paras 33, 40, 47, 48, 49, 50, 52 & 53; P, C, and S v UK , Application no. 56547/00, ECtHR (2002) para 89; Steel and Morris v UK, Application no. 68416/01, ECtHR (2005) paras 53,55, 59 60, 61 & 63.

62 Article 9 provides:

28

48.2. Secondly, in terms of the Basic Principles on the Role of Lawyers,

adopted by the United Nations Congress on the Prevention of Crime and

the Treatment of Offenders, states should ensure the provision of

“sufficient funding and other resources for legal services to the poor

and, as necessary, to other disadvantaged persons ”. 63

48.3. Thirdly, in 2002, the United Nations General Assembly passed a

Resolution on Human Rights in the Administration of Justice, which

affirmed the duty of states to adequately fund legal aid in order to

promote and protect human rights. 64

49. Importantly, the instruments mentioned above do not restrict the provision of

free legal assistance to criminal matters; rather, the provision of free legal

“Access to justice is a paramount element of the right to a fair trial. Most accused and aggrieved persons are unable to afford legal services due to the high cost of court and professional fees. It is the duty of governments to provide legal assistance to indigent persons in order to make the right to a fair trial more effective. The contribution of the judiciary, human rights NGOs and professional associations should be encouraged ”.

63 Article 3 of the Basic Principles. The Basic Principles do not stipulate the type of proceedings for which these legal services must be provided; the only qualifier is that the persons must be poor and/or disadvantaged.

64 The resolution noted that the right of access to justice as contained in various international human rights instruments forms an important basis for strengthening the rule of law through the administration of justice. To this end, the resolution called on states to “ allocate adequate resources for the provision of legal aid services with a view to promoting and protecting human rights ”. (Emphasis added.) 29

assistance is contemplated in the context of the promotion and protection of

human rights.

50. Lastly, the third category of international law instruments consists of reports

of committees of treaty bodies that have given guidance on the provision of

free legal aid for civil matters. Three treaty bodies have recognised an

obligation on state parties to provide free legal aid in civil matters

(notwithstanding there being no express requirement in the treaties

themselves to provide this).65 South Africa has ratified all three of the relevant

treaties – the ICESCR, 66 CERD 67 and CEDAW. 68 In all of these treaties,

including the ICCPR, the relevant committees have come to expect from the

state, in varying degrees, the provision of legal aid in civil matters in

appropriate circumstances.

65 The Committee on Economic, Social and Cultural Rights (“CESCR”) in its May 2006 review of Canada’s fulfilment of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”); the United Nations Committee on the Elimination of Racial Discrimination in its 2007 review of Canada’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”); and the United Nations Committee on the Elimination against Women in its 2008 review of Canada’s compliance with the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”).

66 South Africa ratified the ICESCR on 12 January 2015.

67 South Africa ratified CERD on 10 December 1998.

68 South Africa ratified CEDAW on 15 December 1995. 30

51. Section 34 of the Constitution must be interpreted in light of the international

law instruments mentioned above. On a proper interpretation, read together

with the requirement in s 7(2) of the Constitution to take reasonable and

effective steps to respect, protect, promote and fulfil the rights in the Bill of

Rights, 69 the right to a fair hearing may require the provision of legal aid in

certain civil matters. This interpretation is consistent with the approach

adopted by this Court in Glenister .70

Foreign law on the right to legal aid in civil proceedings

52. Comparable foreign law also supports an interpretation of s 34 that recognizes

that fairness may require state-funded legal representation.

52.1. The Canadian Supreme Court in New Brunswick (Minister of Health

and Community Services ) v G (J) confronted the question of a right to

free representation in civil suits in the context of article 7 of the

Canadian Charter of Rights and Freedoms.71 Article 7 reads: “Everyone

has the right to life, liberty and security of the person and the right not to

69 Glenister at para 189.

70 Glenister at para 195, where the Court held that “[t]his is not to incorporate international agreements into our Constitution. It is to be faithful to the Constitution itself, and to give meaning to the ambit of the duties it creates in accordance with its own clear interpretive injunctions ”.

71 New Brunswick (Minister of Health and Community Services) v G (J) 66 CRR (2 nd ) 267 (1999). 31

be deprived thereof except in accordance with the principles of

fundamental justice .”72 The Court held that the consequences that might

result from a custody suit are sufficient to constitute a restriction of

security of the person. 73 In deciding whether ‘fundamental justice’

necessitated the provision of legal representation in a particular case, the

Court referred to the interests at stake, the complexity of the proceedings

and the capacities of the parent. 74 In the circumstances of the case, the

Supreme Court held that the government was under an obligation to

provide the appellant with state-funded counsel. 75 It is worth noting that

art 7 of the Canadian Charter, dealing with threats to ‘life, liberty and

security of the person’, is significantly narrower than s 34, which

encompasses all civil matters.

52.2. LASA relies on the decision in British Columbia (Attorney General) v

Christie 76 for the proposition that there is no general right to legal

72 Canadian Charter of Rights and Freedoms, Constitution Act 1982.

73 New Brunswick at 289.

74 Ibid at 292-293.

75 Ibid at 296.

76 2007 SCC 21. 32

representation at state expense in Canadian courts in all cases. 77

However, the case did not overturn the New Brunswick decision nor

foreclose the possibility of a right to counsel in specific situations under

article 7 of the Canadian Charter of Rights and Freedoms.

52.3. Accordingly, contrary to the incomplete account provided by LASA

relying only on the Christie decision, the legal position in Canada is

analogous to that contended for by the Ledingoane family. Although

there is no general requirement that the state provide legal representation

to every party in all proceedings, the Canadian Charter does require this

where the failure to provide representation would violate article 7 or

another Charter right.

52.4. In relation specifically to proceedings of commissions of inquiry, the

‘Reference Guide for Judges Appointed to Commissions of Inquiry’

adopted by the Canadian Judicial Council in April 2011 notes at page 9

77 The Canadian Bar Association argued for a general right to legal counsel in Canadian Bar Association v British Columbia 2006 BCSC 1342, 59 B.C.L.R. (4th) 38, [2006] B.C.J. No. 2015 (S.C.). The case was dismissed for lack of standing, therefore the substantive issue was not decided. The issue of access to justice has come up more recently in Vilardell v Dunham 2013 BCCA 65. The British Columbia Supreme Court held that hearing fees imposed an unconstitutional impediment to access to justice. On appeal, the British Columbia Court of Appeals agreed that the fees posed an impediment to justice but held that the definition of indigency that allows an exemption to the payment of hearing fees should be changed rather than eliminating the fees entirely. The case is currently on appeal to the Supreme Court of Canada. 33

that authority is provided under various Orders-in-Council for

commissioners to inter alia :

“recommend to the Clerk of the Privy Council that funding be provided, in accordance with terms and conditions approved by the Treasury Board, to ensure the appropriate participation of any person granted standing at the Inquiry under subparagraph (ix), to the extent of the person’s interest, if the Commissioner is of the view that the person would not otherwise be able to participate in the Inquiry ”.78

53. Accordingly, international and foreign law support the interpretation of s 34

that is contended for: that a fair hearing may, in appropriate circumstances,

require the provision of state-funded legal assistance for civil proceedings,

including the proceedings of a commission of inquiry.

Factors relevant to whether legal representation is required

54. It is submitted that the factors relevant to determining whether ‘fairness’ in

terms of s 34 requires the provision of legal representation at state expense in

commission proceedings include:

54.1. the capacity of the litigant to represent herself,

54.2. the complexity of the proceedings; and

78 Ledingoane family AA Vol 4 p 295 para 18. 34

54.3. the potential consequences of the commission of inquiry.

55. These factors would have to be weighed together to determine whether a

failure to provide representation would render commission proceedings

unfair. This would not be the case in all commissions or for all commission

participants.

56. In the present matter, these factors require the provision of legal aid to the

miners, for the following main reasons:

56.1. The capacity of the litigant to represent herself: there is no evidence of

any party to the Marikana Commission participating effectively without

legal representation. (This was a key consideration in Airey , discussed

above.)

56.2. The complexity of the proceedings: the proceedings are high-profile and

extremely complex, involving substantial evidence, including evidence

of an expert nature. No lay person could reasonably represent herself in

proceedings of such complexity.

56.3. Potential consequences of the commission of inquiry: as explained above

in addressing the interest of the Ledingoane family and of all the victims, 35

the findings and recommendations that Commission may make will have

vital consequences for the rights of victims.

The Legal Aid Act and Legal Aid Guide

57. In order to give effect to the State’s constitutional obligations in respect of

legal aid, as embodied in s 28(1)(h), 79 34 and 35(3)(g) 80 of the Constitution,

Parliament has enacted the Legal Aid Act, which establishes LASA as the

primary state provider of legal aid services in criminal and civil proceedings,

including proceedings affecting children.

58. LASA argues that it does have the power in terms of the Legal Aid Act and

the Legal Aid Guide to provide legal aid to the families and AMCU for the

purposes of the Commission. It relies upon a discretionary power of the

CEO. 81 However, in exercising such a power, the CEO and LASA are

constrained – as they accept that they are – to act in terms of the powers

79 Section 28(1)(h) of the Constitution provides that “[e]very child has the right to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result ”.

80 Section 35(3)(g) of the Constitution provides that “[e]very accused person has a right to a fair trial, which includes the right to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly ” (emphasis added).

81 LASA’s heads of argument pp 15-16 paras 42-43. 36

conferred by the Act and the Guide. In terms of s 3 of the Act, the object of

LASA is to render or make available legal aid “ at state expense as

contemplated in the Constitution ”.

59. As LASA accepts, the Legal Aid Act and Guide do provide for legal aid to be

granted in civil matters. They interpret these instruments to mean that legal

aid will not “ generally ” be provided by LASA to participants in commissions

of inquiry. 82 Although legal aid will not “ generally ” be provided in

commissions, LASA’s own interpretation of its empowering instruments is

that it has the power to render legal aid to participants in a commission.

60. This power does not entail a free or unconstrained discretion, but must be

exercised to pursue the object in terms of s 3 of the Legal Aid Act – that is, to

provide legal aid as contemplated in the Constitution. This is precisely what

LASA, through its CEO, did in granting legal aid to the families and AMCU.

It recognised that, in order to ensure a fair hearing as required in terms of s

34, it was necessary to provide legal aid, failing which substantial injustice

would result.

82 LASA’s heads of argument p 14 para 40. 37

61. LASA accordingly correctly recognised that the fair hearing requirement of s

34, which must inform the interpretation of the ‘substantial injustice’ criterion

in the Act and the Guide, required the provision of legal aid.

Is the refusal of legal aid justifiable in terms of s 36 or otherwise

62. It is competent in principle for the State to limit the rights to legal aid in s

28(1)(h), 34 and 35(3)(g) of the Constitution by way of a law of general

application that survives scrutiny under the limitations clause of s 36 of the

Constitution. It may do so in terms of the Legal Aid Act or, as it has done

subsequent to the decision in issue in the present matter, in the Legal Aid

Guide. However, the State had not excluded the provision of legal aid in

terms of a law of general application prior to the decision refusing legal aid to

the miners.

63. The primary justification now advanced for LASA’s refusal to provide legal

aid to the miners is reliance on the limited budget of LASA.83

64. It is submitted that LASA has not adduced evidence to demonstrate that it

would not be feasible to include legal aid for commissions of inquiry (in

appropriate circumstances) in the budget of LASA. There is no evidence in

83 LASA AA Vol 6 p 449 para 10.6. 38

the appeal record 84 to establish that this would deprive persons currently

entitled to legal aid in criminal or civil proceedings of that right.

65. This Court in its decision in relation to Part A of this matter correctly

recognised that courts do not have the power to “ order the executive branch

of government on how to deploy state resources ”. 85 However, this Court has

also rejected the proposition that, where a policy or practice limits

constitutional rights, the state may simply invoke its budget as a complete

defence to the constitutional challenge.

66. In Blue Moonlight ,86 this Court held that the court’s “ determination of the

reasonableness of measures within available resources cannot be restricted

by budgetary and other decisions that may well have resulted from a mistaken

understanding of constitutional or statutory obligations. ” Van der

Westhuizen J explained that “ it is not good enough for the City to state that it

84 The contents of the affidavit in support of the application for leave to appeal do not constitute evidence in the appeal. In any event, this material does not lead to a different conclusion.

85 Magidiwana at para 16.

86 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 039 (Pty) Ltd and Another 2012 (2) SA 104 (CC). 39

has not budgeted for something, if it should indeed have planned and

budgeted for it in the fulfilment of its obligations .” 87

67. In the present matter, the miners do not seek an order directing LASA on how

it is to allocate resources or determine its budget. Instead, the specific

decision to refuse to provide legal aid to the miners is challenged. The

Ledingoane family has, from the outset, asserted that it is for LASA to

determine the tariffs at which legal aid is provided (in the absence of a

constitutional challenge to the tariffs). This issue is addressed in the final

section on ‘Remedy and Costs’ below.

THE RULE OF LAW AND LEGALITY REQUIRE LEGAL

REPRESENTATION IN THE CIRCUMSTANCES

68. Even if there is no right to legal assistance at commissions in all

circumstances arising from s 34, an interested party seeking such assistance

has a right to have his or her application “considered and decided upon

rationally, in good faith, [and] in accordance with the principle of legality ”.88

87 Blue Moonlight at para 74.

88 Minister for Justice and Constitutional Development v Chonco and Others 2010 (1) SACR 325 (CC) para 30; President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU) 2000 (1) SA 1 (CC) para 148; and Fedsure Life Assurance Ltd and Others v Greater Johannesburg

40

It is submitted that the rule of law and the principle of legality require the state

to provide legal aid to the miners. This would be so even if LASA had not

decided to provide legal aid to the families and AMCU. 89

69. This Court has held that it is “ now axiomatic that the exercise of all public

power must comply with the Constitution, which is the supreme law, and the

doctrine of legality, which is part of the rule of law ”. 90 Accordingly the

‘discretionary’ power to grant or refuse legal aid or support must be exercised

rationally.

70. While this Court has held that the Executive has “ a wide discretion in

selecting the means to achieve its constitutionally permissible objectives ” and

that courts “ may not interfere with the means selected simply because they do

not like them ” or because there are better methods available, it has held that

courts are obliged to “ examine the means selected to determine whether they

are rationally related to the objective sought to be achieved ”. 91

Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) paras 56-58. (Three cases are cited in relation to this proposition because the cases articulate different aspects of the principle of legality.)

89 The argument advanced is therefore distinct from the argument advanced on behalf of the families and AMCU that the decision was irrational because it drew an irrational distinction.

90 Albutt v Centre for the Study of Violence & Reconciliation 2010 (3) SA 293 (CC) para 49.

91 Albutt at para 51. 41

71. The President is empowered in terms of s 84(2)(f) of the Constitution to

establish a commission of inquiry. The President established the Commission

in terms of its Terms of Reference and made regulations 92 under the

Commissions Act 8 of 1947 that provide for legal representation but without

any financial assistance. 93 LASA, as the organ of state responsible for the

provision of legal aid, received the funding request in this context. Its decision

to refuse legal aid must satisfy the constitutional principle of legality. 94

72. The question for this Honourable Court’s consideration is whether the

decision(s) to exclude legal aid or support at state expense, from those

participating in the Commission process, who are not state organs, was

rationally related to the objectives that the President set out when he

established the Commission.

Objectives of the Commission

73. When the President proclaimed the establishment of the Commission, he

announced that the purpose of the Commission was “ to investigate matters of

public, national and international concern arising out of the tragic incidents

92 Proclamation No. 59, 2012.

93 Ibid at regulation 8.

94 Fedsure at para 58; and Affordable Medicines at para 49. 42

at the Lonmin Mine in Marikana … ”95 He enjoined the Commission to

“inquire into, make findings, report on and make recommendations ”

concerning the conduct of various role-players, including the police and

members and officials of various trade unions. 96 The Commission, for its part,

has interpreted its objectives to include “ truth, restoration and justice ”, as

reflected in the slogan accompanying the Commission’s logo. The

Commission’s objectives can be summarised as establishing the truth,

accountability, as well as restorative justice for the survivors, their families

and the families of the deceased (“the victims”).

74. In the light of these objectives, the participation of victims was absolutely

fundamental to the Commission process. The process required victims,

particularly survivors to come forward and contribute towards the discovery

of the truth. The process also offered the victims an opportunity to receive

individual and collective recognition of the wrongs they had suffered, an

element of restorative justice. 97

95 Para (a) of the Terms of Reference.

96 Para 1 of the Terms of Reference.

97 Le Roux v Dey (Freedom of Expression Institute & Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) paras 197 and 202. 43

Requirement to hear and support the victims

75. In order to establish the facts the Commission must hear from all relevant

role-players, including the police and the victims of the police shootings. The

Commission cannot establish the truth without hearing from the surviving

victims of the shootings. 98 In order for the survivors to be meaningfully heard

at the Commission they must be legally represented. Without funding from

the State (or other source) the miners cannot be adequately and meaningfully

represented at the Commission.

76. A process which enables only the police, other state organs and a multi-

national corporation to be legally represented to the exclusion of the surviving

miners is not rationally related to the purposes for which the Commission was

established. Such an approach “ is entirely inconsistent with the principles and

values that underlie our Constitution ”. 99 Failure to enable the victims to be

legally represented before the Commission is not rationally related to the

Commission’s objectives of accountability, truth, justice and restoration. 100

98 Ledingoane family AA Vol 4 p 297 paras 28-28.2.

99 Albutt at para 71.

100 Albutt at para 71. 44

77. The need to ensure that victims of crime receive appropriate legal assistance

has been recognised in South Africa and internationally:

77.1. The Service Charter for Victims of Crime in South Africa which was

formally adopted by the Ministry of Justice in order to, inter alia ,

eliminate secondary victimisation in the criminal justice process. This

charter provided for the right to assistance, which includes “… the right

to request assistance and, where relevant, have access to available

social, health and counselling services, as well as legal assistance which

is responsive to your needs ”. 101

77.2. The UN Declaration of Basic Principles of Justice for Victims of Crime

and Abuse of Power (“the UN Declaration”) provides for access to

justice for victims through judicial and administrative mechanisms

which must be “ fair, inexpensive and accessible ” and allow victims

views and concerns to be heard, especially where their interests are

affected. 102

101 Service Charter at para 5, available at (http://www.npa.gov.za/files/Victims%20charter.pdf)

102 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly resolution 40/34 of 29 November 1985 paras 4-6, available at (http://www.justice.gov.za/vc/docs/international/1985%20Declaration%20of%20Basic%20Principles%20of %20Justice%20for%20Victims%20of%20Crime%20and%20Abuse%20of%20Power.pdf). See also UN

45

78. The context, which is consistent with the government’s obligations under the

Victims’ Charter and the UN Declaration, supports the conclusion that the

victims have a right to participate in the Marikana Commission proceedings

and to be supported to do so where appropriate.

The context of the specific Commission requires victim legal representation

79. It is not the Ledingoane family’s submission that it would always be irrational

for the state to establish a commission of inquiry without providing legal

representation to participants in the inquiry.

80. The requirement to afford the miners support to be represented at the

Commission “ is implicit, if not explicit ”,103 in the specific context of the

Marikana Commission. This context demands, “ as a matter of rationality ”,

that the surviving miners be supported to be meaningfully represented in order

to be “ given the opportunity to be heard ” so that the Commission can properly

determine the facts. 104 In the circumstances, the decision not to enable the

General Assembly Resolution 60/147: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147 (2006), recognizing the right of victims to the ascertain the truth.

103 Albutt at para 72.

104 Albutt at para 72. 46

victims to be meaningfully represented at the Commission was irrational. If

we are correct on this point, there is no need for this Honourable Court to

interrogate whether s 34 directly requires the provision of legal aid.

81. The right or opportunity be heard in a Commission, and to be supported at

state expense for such purpose, depends on context. In this particular context

the rule of law demands that the applicants be financially supported in order to

be represented. 105 This does not mean that all those participating in

commissions are entitled to such support and there is no need for the Court to

predict in advance all the possible circumstances that would justify such

support. 106

82. Froneman J noted that the historical context contributes to a “ deeper

understanding and acceptance of the rule of law ” where it “… finds

resonance, not only in our recent history, but also in pre-colonial history and

in our own conception of democracy ... ”107 We submit that the relevant

historical context in this matter includes the manner of operations of

commissions in the colonial era and the apartheid era, as described above, as

105 See also the concurring judgment of Froneman J in Albutt at para 88 regarding what the rule of law requires.

106 See, for example Albutt at para 76; Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) at paras 113-114; and SARFU at para 219 and cases cited therein.

107 Albutt at para 89. 47

well as the immediate antecedents of the Marikana Commission. This

context, seen in the light of the nature of the Commission, requires that

fairness be upheld and that the dignity of victims be respected.

83. The specific objectives for which the President decided to establish the

Commission cannot be achieved unless assistance is provided to the miners to

be meaningfully represented at the Commission. The rule of law and the

principle of legality require the provision of legal aid in the circumstances.

CONCLUSION: REMEDY & COSTS

84. Therefore, the decision of LASA in failing and/or refusing to grant legal aid /

assistance to the miners is unlawful and invalid for two reasons:

84.1. First, it constitutes a violation of the right of access to courts in s 34 of

the Constitution, as given effect in the Legal Aid Act and Legal Aid

Guide. In the circumstances of the Marikana Commission, the failure to

provide legal representation at state expense to the Miners deprives them

of a fair hearing and would result in substantial injustice.

84.2. Secondly, the decision falls to be reviewed for failure to comply with the

constitutional requirement of legality. The decision is irrational in the 48

light of the purposes of the Commission, which are frustrated – rather

than being achieved – by the failure to provide legal aid to the miners.

85. It is submitted that the order of the High Court was the only appropriate order

in the circumstances and that there is no basis to remit the matter to LASA to

reconsider its decision not to provide legal aid to the miners. The effect of the

order was to require LASA to provide legal aid but to leave it to determine the

precise basis and rates on which it will do so. From the outset, this was the

order proposed by the Ledingoane family.

86. An order directing LASA to take steps to provide legal aid (at levels and rates

to be determined by LASA) is appropriate in matters concerning the rights of

participants in proceedings to be provided with legal aid. The courts have

made such orders in the past where legal aid was ordered to be provided. 108

There is no principled reason to adopt a different approach if the entitlement

to legal aid arises from s 34 and/or the principle of legality.

87. As concerns the level and rate of legal aid to be provided, the High Court

order appropriately left these matters to be determined by LASA. It was

contended in the answering affidavit on behalf of the Ledingoane family that

108 Legal Aid Board v Msila and Others 1997 (2) BCLR 229 (E). 49

the constitutional principle of the equality of arms does not mandate the

provision of legal aid on the same basis as the representation afforded to the

SAPS and other organs of state participating in the Marikana Commission –

both in terms of numbers of legal representatives and their rates of

remuneration. Instead, it was contended that the applicable threshold is that

the support must be “ sufficient for legal practitioners to adequately represent

their clients in the particular circumstances of the matter ”. 109 It was

submitted that it is not justifiable in the circumstances for any of the parties at

the Marikana Commission – including the state parties and the victims,

including the miners – to receive state-funded legal representation at

“ordinary” or “commercial” legal rates, but that reduced rates are

appropriate. 110 The LASA tariffs provide the appropriate rates of

remuneration.

88. If the appeal fails, it is submitted that the appellant should bear the costs of the

application. However, at the outset the Ledingoane family indicated that it

would not seek costs in these proceedings and it persists with that position. 111

109 Ledingoane family AA Vol 4 p 308 para 56.4.

110 Ledingoane family AA Vol 4 pp 307-308 para 56-56.4.

111 Ledingoane family AA Vol 4 p 294 para 14. 50

89. In the event that the appeal is upheld, there is no basis to require the miners,

the families or AMCU to pay costs. The parties originally seeking relief,

including the Ledingoane family, pursue these proceedings in the public

interest, in the interest of the victims and in good faith reliance on the rights in

the Bill of Rights. 112

Jason Brickhill

Counsel for the eighteenth respondent (the Ledingoane family)

Legal Resources Centre

2 April 2015

112 Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC). 51

LIST OF AUTHORITIES

Legislation

1. Arbitration Act 42 of 1965

2. Commissions Act 8 of 1947

3. Constitution of the Republic of South Africa, 1996

4. Extension of Security of Tenure Act 62 of 1997

5. Legal Aid Act 22 of 1969

South African case law

1. Absa Bank Limited v Hoberman and Others NNO 1998 (2) SA 781 (C)

2. Albutt v Centre for the Study of Violence & Reconciliation 2010 (3) SA 293 (CC)

3. Bafokeng Tribe v Impala Platinum Ltd and Others 1999 (3) SA 517 (B), 1998 (11) BCLR 1373 (B)

4. Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC)

5. Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC)

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

7. Chairman, Board on Tariffs & Trade & Others v Brenco Inc & Others 2001 (4) SA 511 (SCA)

8. Chief Lesapo v North West Agricultural Bank & Another 2000 (1) SA 409 (CC), 1999 (12) BCLR 1420 (CC)

9. City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 039 (Pty) Ltd and Another 2012 (2) SA 104 (CC)

10. De Beer NO v North-Central Local Council & South-Central Local Council 2002 (1) SA 429 (CC) 52

11. De Lange v Smuts NO 1998 (3) SA 785 (CC), 1998 (7) BCLR 779 (CC)

12. Du Preez and Another v Truth and Reconciliation Commission 1997 (3) SA 204 (A)

13. Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC)

14. Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC)

15. Giddey NO v JC Barnard and Partners 2007 (2) BCLR 125 (CC)

16. Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC)

17. Le Roux v Dey (Freedom of Expression Institute & Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC)

18. Legal Aid Board v Msila and Others 1997 (2) BCLR 229 (E)

19. Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) ; 2009 (6) BCLR 527 (CC)

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

21. Mbebe and Others v Chairman, White Commission and Others 2000 (7) BCLR 754 (Tk)

22. Minister for Justice and Constitutional Development v Chonco and Others 2010 (1) SACR 325 (CC)

23. Mohlomi v Minister of Defence 1997 (1) SA 124 (CC), 1996 (12) BCLR 1559 (CC) 53

24. Nkuzi Development Association v Government of South Africa 2002 (2) SA 733 (LCC)

25. Pharmaceutical Manufacturers Association of South Africa: Ex part President of the Republic of South Africa 2000 (2) SA 674 (CC)

26. President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU) 2000 (1) SA 1 (CC)

27. Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd 2004 (9) BCLR 930 (SCA)

28. S v Mhlungu 1995 (3) SA 867 (CC)

29. SATAWU v Garvas 2013 (1) SA 83 (CC)

30. Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC)

31. South African Broadcasting Corp Ltd v National Director of Public Prosecutions 2007 (1) SA 523 (CC), 2007 (2) BCLR 167 (CC)

32. Van der Merwe and Others v Slabbert NO and Others 1998 (3) SA 613 (N)

33. Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC)

International treaties and declarations

1. Convention on the Elimination of All Forms of Discrimination against Women, 1979 (“CEDAW”)

a. United Nations Committee on the Elimination against Women 2008 review of Canada’s compliance with the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”): Conclusions and recommendations of the Committee on the Elimination of All Forms of 54

Discrimination against Women, Canada, U.N. Doc. CEDAW/C/CAN/CO/7, 2008

2. Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (known as the “European Convention on Human Rights”)

3. International Covenant on Economic, Social and Cultural Rights, 1966 (“ICESCR”)

a. Committee on Economic, Social and Cultural Rights (“CESCR”) May 2006 review of Canada’s fulfilment of the ICESCR: Consideration of reports submitted by states parties under articles 16 and 17 of the Covenant: Concluding observations of the Committee on Economic, Social and Cultural Rights, Canada, E/C.12/CAN/C0/4, E/C.12/CAN/C0/5, 22 May 2006

4. International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”)

a. United Nations Committee on the Elimination of Racial Discrimination 2007 review of Canada’s compliance with the CERD: Committee on the Elimination of Racial Discrimination Seventieth session 19 February - 9 March 2007, CERD/C/CAN/CO/18, 25 May 2007

5. International Covenant on Civil and Political Rights, 1966 (“ICCPR”)

a. General Comment No. 32: Article 14 “Right to equality before courts and tribunals and to a fair trial”, CCPR/C/GC/32, 23 August 2007

6. African Charter on Human and Peoples’ Rights, 1979

7. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

8. UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Adopted by General Assembly resolution 40/34 of 29 November 1985 55

(http://www.justice.gov.za/vc/docs/international/1985%20Declaration%20of%20 Basic%20Principles%20of%20Justice%20for%20Victims%20of%20Crime%20an d%20Abuse%20of%20Power.pdf)

9. UN General Assembly Resolution 60/147: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147 (2006)

Foreign and international case law and legislation

1. Airey v Ireland (1979) 2 EHRR 305

2. Bertuzzi v France , Application no. 36378/97, ECtHR (2003)

3. Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System) , [1997] 3 S.C.R.

4. Canadian Bar Association v. British Columbia 2006 BCSC 1342, 59 B.C.L.R. (4th) 38, [2006] B.C.J. No. 2015 (S.C.)

5. Canadian Charter of Rights and Freedoms, Constitution Act 1982.

6. Currie / Jamaica Human Rights Committee communication no. 377/1989 (25 October 1989)

7. Mahon v Air New Zealand [1984] AC 808

8. McVicar v UK , Application no. 46311/99, ECtHR (2002)

9. New Brunswick (Minister of Health and Community Services) v G (J) 66 CRR (2 nd ) 267 (1999)

10. P, C, and S v UK , Application no. 56547/00, ECtHR (2002)

11. Re Pergamon Press Ltd [1970] 3 All ER 535 (CA)

12. R v Lord Savell [1999] 4 All ER 860 (CA) 56

13. Steel and Morris v UK, Application no. 68416/01, ECtHR (2005)

14. Tabor v Poland, Application no. 12825/02, ECtHR (2006)

15. Vilardell v Dunham 2013 BCCA 65

Books, Reports of Commissions of Inquiry and other materials

1. Aluka ‘Struggles for Freedom: South Africa’, Commissions of Inquiry, South Africa online digital library of scholarly resources, including government commissions of inquiry.

(http://www.aluka.org/action/showCompilationPage?doi=10.5555/AL.SFF.COMP ILATION.COLLECTION-MAJOR.COMENQ&)

2. Commission of Inquiry Into the Riots at Soweto and Other Places in the Republic of South Africa During June 1976’Pretoria: Government Printer, 1980

3. Helena Pohlandt-McCormick, “ I Saw a Nightmare … Doing Violence to Memory: The Soweto Uprising, June 16, 1976 ”, Columbia University Press & Gutenberg-e

(http://www.gutenberg-e.org/pohlandt-mccormick/index.html)

4. ‘Reference Guide for Judges Appointed to Commissions of Inquiry’ adopted by the Canadian Judicial Council in April 2011

5. Service Charter of National Prosecuting Authority

(http://www.npa.gov.za/files/Victims%20charter.pdf)

6. Testimony of Murphy Morobe before the Human Rights Violations Committee of the TRC, 23.07.1996, Case – Soweto

(http://www.justice.gov.za/trc/hrvtrans/soweto/morobe.htm)

7. Truth and Reconciliation Commission of South Africa Report