Brief Summary

Legal Aid — Class action — Application for state-funded legal aid for participants in the Marikana Commission of Enquiry — Applicants, survivors of the Marikana incident, sought urgent relief for legal representation at state expense — Court to determine if refusal of legal aid infringed constitutional rights to access justice and equality — Application certified as a class action; interim legal aid ordered pending final determination of the matter.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an urgent application in the North Gauteng High Court, Pretoria, brought by Mzoxolo Magidiwana (first applicant) together with other injured and arrested persons associated with the Marikana events (second to further applicants), seeking relief connected to their participation in the Marikana Commission of Enquiry.

The principal respondents were the President of the Republic of South Africa, the Minister of Justice and Constitutional Development, Legal Aid South Africa, and the Marikana Commission of Enquiry, together with various other parties participating in the Commission. The “state respondents” opposed the application; most other respondents abided the court’s decision, and one respondent supported the application in part. The Black Lawyers Association was admitted as amicus curiae, provisionally and only in relation to Part B.

The procedural history was marked by urgency and amendment. The matter was brought in two parts: Part A sought immediate, interim relief (including urgent procedural dispensation, class action certification, and interim legal aid), pending Part B, which sought final declaratory and mandatory relief regarding the alleged unlawfulness and unconstitutionality of refusing legal aid. The case was consolidated with another matter, but the companion case was postponed due to time constraints. During the hearing, the applicants changed course from initially seeking to halt the Commission’s proceedings to seeking interim legal aid pending Part B, a change that drew objection because respondents had answered the original form of relief and had limited opportunity to supplement papers in an urgent timetable.

The dispute concerned whether, and on what basis, legal aid at state expense could and should be provided to the applicants for purposes of meaningful participation in the Commission, and whether interim relief compelling funding was competent and appropriate pending determination of the wider constitutional and administrative-law challenges foreshadowed for Part B.

2. Material Facts

The court accepted as material background that the applicants fell within a category described in the Commission as “injured and arrested persons”, being survivors of the events commonly referred to as the Marikana massacre/incident occurring between 9 and 16 August 2012, culminating in the deaths of 34 people on 16 August 2012. The Commission commenced on 1 October 2012, had sat for more than 100 days, and had been extended to sit until 30 October 2013.

A significant subset of the applicants (approximately 270 people) faced pending criminal proceedings in the Garankuwa Magistrates’ Court, which had been postponed (by agreement) to 22 October 2013, in anticipation that the Commission would be finalised around September 2013. The applicants had also instructed attorneys to initiate civil proceedings arising from injuries and/or arrests.

The applicants were represented by a consortium of attorneys and participated in the Commission. The court noted that the applicants’ legal team had previously received a retrospective “emergency grant” of R2.6 million for the period 1 October to 31 December 2012, and that a further R2 million had reportedly been approved by a funder but had not yet been received, allegedly earmarked for a specified period in 2013. The court treated the availability and timing of funding, and the applicants’ inability to secure sustained funding, as part of the context for the urgency enquiry.

The Commission’s procedure was described on the papers as largely quasi-adversarial, with cross-examination by “opposing” counsel dominating. It was common cause that state entities participating in the Commission were represented by experienced counsel, and the applicants contended that they were comparatively under-resourced in representation.

On urgency, there was a dispute. The respondents argued that the applicants should have acted earlier, particularly after a letter of 14 March 2013 in which the State Attorney conveyed that the Minister could not find a legal framework permitting such funding. The applicants’ explanation was that they sought to avoid disrupting the Commission, attempted to raise private funding, and only launched once it became clear the funding problem would persist.

A further factual feature material to the outcome of Part A was the late amendment to interim relief: the applicants originally sought an interdict halting the Commission pending Part B, but later sought an order compelling interim legal aid. The court treated this as having caused forensic prejudice to respondents, given the urgent timetable and the inability to file supplementary evidence.

3. Legal Issues

The court was required to determine, in Part A, whether the application was urgent under the Uniform Rules, whether it should be certified as a class action under section 38 of the Constitution, and whether interim relief compelling state-funded legal aid pending Part B was competent and justified.

The central legal questions were framed as follows: whether the applicants had established at least a prima facie right to legal aid at state expense to enable meaningful participation in the Commission; whether any constitutional rights (particularly access to courts/justice and equality) grounded such entitlement in the Commission context; and whether the court could grant the interim relief sought without impermissibly intruding into executive control over public resources, given separation of powers considerations.

The dispute required the court to address questions of law (the reach of constitutional rights and the statutory scheme for legal aid; the appropriate procedural route to challenge administrative action; the nature of commissions), application of law to fact (urgency, interim interdict requirements, and the character of the interim relief), and an element of value judgment inherent in balancing separation of powers concerns against asserted fairness and participation interests.

4. Court’s Reasoning

On urgency, the court accepted that the applicants had not brought the application as early as they could have, and that respondents suffered prejudice from the compressed timetable. However, the court assessed the circumstances cumulatively. It accepted, for purposes of urgency, that the applicants were indigent and that consulting a diverse group took time, that their representatives were effectively carrying some costs, that the applicants attempted to raise funds from donors, and that the matter raised issues of human rights, equality, and dignity. In that cumulative context, the delay was treated as justified, and the matter was held to be urgent.

On class action certification, the court recognised that certification is ordinarily sought before, or at least early in, the main litigation, but held that urgency could justify an exception. Applying the criteria drawn from Supreme Court of Appeal authority on class actions, and emphasising a constitutional orientation towards facilitating access to courts, the court rejected respondents’ objections that the class was already identified, that opt-out arrangements were not addressed, and that there was insufficient commonality. The court held that the class was sufficiently numerous to make joinder impracticable and that there were common issues of law and fact arising from shared circumstances such as participation in the strike/presence at the “koppie”, collective arrest, and related criminal and civil matters. The court stressed that certification requirements should not be elevated into rigid prerequisites in a manner that defeats access to justice, and it certified the class action in the interests of justice.

The court then turned to the substantive interim relief sought in Part A, namely an order compelling interim legal aid at a specified scale pending Part B. The court’s reasoning proceeded from the nature of the Commission and the constitutional and statutory structure of legal aid and public funding.

First, the court accepted that commissions must act fairly, and that fairness obligations can apply even to bodies that are not courts. However, it emphasised that a commission of enquiry remains primarily an investigative body that reports to the President and does not generally resolve disputes or finally determine rights. In this framing, the court took the view that section 34 of the Constitution is concerned with the fair public hearing of disputes resolved by application of law before a court or appropriate independent tribunal or forum, and it concluded that the Marikana Commission was not engaged in resolving disputes but in investigating and making recommendations.

Secondly, the court distinguished between an entitlement to legal representation (or to seek it) and an entitlement to legal representation at state expense. It accepted that persons before a commission may be entitled to legal representation, but treated the claim for state-funded representation as a different question requiring a legal basis. The court held that, on the basis of the arguments and the structure of constitutional rights invoked, the applicants had not shown that they were entitled to legal representation at state expense in the Commission proceedings.

Thirdly, the court placed strong reliance on separation of powers and the constitutional allocation of responsibility for public resources. It treated an order compelling interim funding as an intrusion into the executive domain of allocating public funds, which involves policy-laden, polycentric decisions and competing priorities. Drawing from Constitutional Court authority emphasising the caution required when courts issue orders that affect government’s ordering of public resources, the court held that it could only grant such relief where there was proof of unlawfulness, fraud, or corruption, and it found none on the papers for purposes of Part A. It further relied on appellate authority warning that courts do not control the public purse and should be slow to assume superior wisdom in matters entrusted to other branches of government.

Fourthly, the court treated the applicants’ position within the Commission as significant. It emphasised that the constitutional text expressly provides for legal aid at state expense in certain contexts (including under sections 28 and 35, subject to substantial injustice), and it held that section 35 was directed at persons who are arrested, detained, or accused. For purposes of the interim relief, the court accepted the state respondents’ contention that the applicants were appearing before the Commission as witnesses, and not in the Commission in their capacity as arrested/detained persons. On that footing, the court found the section 35-based route to be unavailable in Part A.

Fifthly, the court reasoned from the statutory framework for legal aid. It referred to the Legal Aid Act 22 of 1969, the statutory status of the Legal Aid Guide, and provisions relating to legal aid directions in criminal matters. It accepted the submission that funding legal representation at the Commission (save in exceptional circumstances) could be ultra vires the powers conferred by that framework as it stood, and it emphasised that the legislative scheme had not been declared invalid. In substance, the court viewed the interim relief as requiring a change in policy and funding allocation that could not be achieved in Part A without first reaching the constitutional invalidity issues reserved for Part B.

Sixthly, the court addressed the procedural posture of the challenge. It accepted the state respondents’ point that administrative decisions generally stand until set aside on review and that legislation giving effect to constitutional rights must ordinarily be used as the route of challenge before direct reliance on the constitutional provision. It considered that the applicants could have pursued review-type relief under the constitutional right to just administrative action and its implementing legislation, and it noted the availability of equality legislation as well. The court treated Part A as ill-suited to determine constitutional invalidity or to compel changes to legal aid policy, because those issues properly arose in Part B (where section 172 invalidity relief was sought).

Finally, the court evaluated the interim relief as sought in the amended notice of motion through the lens of interdictory requirements and the true nature of the order. It held that, although framed as interim, the relief would operate with final effect because once funds were paid, the “clock can never be turned back,” and recovery would be difficult. On this approach, the court concluded that the relief was not a mere preservation of the status quo pending Part B, but would materially affect the final determination. The late change of course also counted against the applicants: the court held that the amended relief was not properly grounded in the founding affidavit, that respondents were prejudiced in their ability to investigate and answer, and that they were effectively “ambushed” in an urgent setting.

On balance of convenience and alternative remedies, the court held that no irreparable harm had been demonstrated for Part A, that the Commission would continue its investigative mandate, and that the applicants could approach the Commission itself for a postponement. The court stated that it could not direct the Commission on procedure, and it noted endeavours by the state respondents aimed at future commission funding. These considerations supported refusal of the interim order.

5. Outcome and Relief

The court made an order declaring the application urgent and granting certification of the class action. However, it dismissed Part A of the main application, thereby refusing to compel interim legal aid (and, in the posture of the amended relief, refusing the interim funding relief pending Part B). The court made no order as to costs, noting that respondents did not seek costs.

Cases Cited

Trustees for the Time Being of the Children’s Resource Centre Trust v Pioneer Food (Pty) Ltd 2013(3) BCLR 279 (SCA); Ismail Mukaddam v Pioneer Foods (Pty) Ltd and Others CCT 131/12 (2013) ZACC 23; Gründling v Van Rensburg NO 1984 (4) SA 680 (W); Bongoza v Minister of Correctional Services and Others 2002(6) SA 330 (TKH); Mbebe and Others v Chairman, White Commission and Others 2000(7) BCLR 754 (TK); President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC); S v Pennington 1997 (4) SA 1076 (CC); National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012(6) SA 223 (CC); Legal Aid Board v The State 363/09 (2010) ZASCA 112 (21 September 2010); Hlantlalala v Dyanti NO 1999(2) SACR 541 (SCA); Legal Aid Board (Ex parte) v Pretorius and Another 2007 (1) SA 458 (SCA); Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004(4) SA 490 (CC); BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W); National Gambling Board v Premier, KwaZulu-Natal 2002(2) SA 715 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 9, 28, 33, 34, 35, 36, 38, 172, 173, 213); Legal Aid Act 22 of 1969 (including sections 3A and 3B); Public Finance Management Act 1 of 1999; Promotion of Equality and Prevention of Unfair Discrimination Act No 2 of 2000 (as referred to in the judgment); Promotion of Administrative Justice Act 3 of 2000 (referred to in the judgment in the context of legislation giving effect to section 33); Promotion of National Unity and Reconciliation Act 34 of 1995.

Rules of Court Cited

Uniform Rule of Court 6(12)(a).

Held

The court held that the matter warranted urgent enrolment, and that the applicants satisfied the requirements for class action certification in the interests of justice despite the procedural compression associated with urgency. However, the court held that the interim funding relief sought in Part A could not be granted. It concluded that the applicants had not established an entitlement, for purposes of interim relief, to legal aid at state expense for participation in a commission of enquiry; that compelling such expenditure would improperly implicate separation of powers and executive control over the allocation of public resources absent proof of unlawfulness, fraud, or corruption; and that the amended interim relief functioned in substance as final relief. Part A was accordingly dismissed, with no costs order.

LEGAL PRINCIPLES

The judgment applied the principle that, although a commission of enquiry is not a court, it is required to act fairly, and procedural fairness requirements may apply flexibly depending on context. However, fairness obligations do not, without more, translate into a right to state-funded legal representation for participants in commission proceedings.

The court applied the principle that section 34 is concerned with the fair determination of disputes by application of law, and it treated an investigative commission making recommendations as not ordinarily resolving disputes or finally determining rights in the manner contemplated by section 34. It also applied the distinction between the right to seek or have legal representation and the claimed right to obtain such representation at state expense, treating the latter as limited and context-dependent, including by the textual indications in sections 28 and 35 of the Constitution.

On interim relief, the court applied the principle that an interdict styled as “interim” may nonetheless be refused where, in substance, it operates with final effect and is not directed at preserving or restoring the status quo pending final determination. In this connection, the court emphasised that funding orders compelling expenditure are difficult to reverse and may effectively pre-empt the merits.

The court applied separation of powers principles to the effect that the allocation and ordering of public resources lie primarily within the executive domain, involving policy-laden and polycentric choices, and that courts should be slow to intrude into this domain by mandatory funding orders absent clear proof of unlawfulness or cognisable constitutional invalidity properly determined.

The judgment further proceeded from the principle that where legislation gives effect to a constitutional right, litigants should ordinarily rely on the statutory scheme (and review mechanisms where applicable) rather than invoking the constitutional right directly, with constitutional invalidity challenges being addressed through appropriate proceedings and remedies.

Magidiwana and Another v President of the Republic of SA and Others (37904/13) [2013] ZAGPPHC 220; [2014] 1 All SA 61 (GNP) (18 July 2013)