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[2013] ZAGPPHC 264
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Baloyi v National Commissioner of the South African Police Services-General Phiyega and Others (40732/13) [2013] ZAGPPHC 264 (16 August 2013)
NOT
REPORTABLE
THE
NORT H;GAUTENG HIGH COURT, PRETORIA
(THE
REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 40732/13
DATE:16/08/2013
In
the matter between:
LIEUTENANT
SHITUMO SOLOMON
BALOYI
.............................................................
APPLICANT
and
NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICES-GENERAL MANGWASHI
VICTORIA
PHIYEGA
......................................................................................
FIRST
RESPONDENT
MINISTER
OF POLICE IN SOUTH
AFRICA
..........................................
SECOND
RESPONDENT
MARIKANA
COMMISSION OF
ENQUIRY
...................................................
THIRD
RESPONDENT
PARTIES
TO THE MARIKANA COMMISSION
OF
ENQUIRY
....................................................................
FOURTH
TO NINETH RESPONDENTS
JUDGMENT
RAULINGA
J.
[1] This is an urgent application in
which the applicant seeks an order:
1.1
Declaring the decision of the first respondent not to fund separate
legal representation for him at the Marikana Commission
of Enquiry,
as unlawful, invalid, unethical and unconstitutional.
1.2
Interdicting the first and second respondents from appointing the
SAPS legal team to represent him at the Commission.
1.3
That the first and second respondents be ordered to pay all the
applicants necessary costs including legal costs, incurred and
to be
incurred, in representing him at the Commission.
[2]
In essence, the applicant does not only assert a right to legal
representation, funded by SAPS, but also the right to have
representatives of his choice funded by the SAPS.
[3]
The events in this matter took place between the 9 and 16 August
2012. On 16 August 2012 police shot and killed 34 mine protesters
at
Marikana Lonmin Mine. Prior to that incident a number of other people
were injured or killed bringing the number of fatalities
to 44 people
killed. Seventy protesters were injured and approximately 272
protesters were arrested.
[4]
On the 13 August 2012, as a response to a volatile mine strike, the
applicant and other police officers were deployed to Rustenburg,
Marikana, in the North West Province. While patrolling the area under
the command of Major General William Mpembe, the police confronted
a
group of protesters who were marching and armed with dangerous
weapons along the railway line. The Commander, General William
Mpembe
requested the protesters to surrender their weapons to the police.
The armed protesters breached the police line and even
an attempt to
disperse the protesters could not deter them. The protesters brutally
attacked and stabbed the applicant. Two other
police officers,
Warrant Officer Mosese and Warrant Officer Lepaaku were shot and
hacked to death by the armed protesters.
[5]
After the Commission was established, the first and second
respondents appointed a team of three senior counsel and private
attorneys as legal representatives to represent them at the
Commission of Enquiry. The first respondent further appointed another
team of attorneys and a junior counsel to represent the family of the
late Warrant Officer Mosese who was hacked to death on 13
August
2012. The second respondent further appointed another senior counsel
and a junior counsel on a "watching brier.
[6]
The applicant alleges that the first and second respondents informed
him that he was a "risky and conflicted witness"
to be
called on behalf of the first and second respondents in the
Commission. As a consequence, he was never consulted by the legal
representatives of the first and second respondents to hear his
version of the incident of the 13 August 2012. He was therefore,
never included in the initial list of witnesses to be called to
testify, on behalf of the first respondent in the Commission.
[7]
The Police and Prisons Civil Right Union (Popcru) of which the
applicant is a member, intervened and appointed a firm of attorneys
and a counsel to represent the applicant and the family of the late
Warrant Officer Lepaaku. The applicant's legal representatives
were
funded by Popcru since October 2012 until 31 May 2013.
[8]
As matters stand, the first respondent has already testified before
the Commission. She was led and assisted by her legal representatives
and cross- examined by parties in the Commission and re-examined by
her legal representatives. It is also intimated by the applicant
that
he is willing to testify before the Commission about the incident of
the 13 August 2012, and has engaged and instructed his
legal
representatives to assist since the commencement of the Commission.
[9]
This matter must be decided on the backdrop that the Commission is an
investigative fact finding body. Its mandate is to report
and to make
recommendations. The Commission promulgated its own regulations in
terms of the Commissions Act 8 of 1947. Regulation
9(3) provides that
a witness testifying before the Commission can only be cross-examined
if the chairperson permits such examination
because the chairperson
deems it necessary in the interests of the functions of the
Commission. In Bongazo v Minister of Correctional
Services and others
2002(6) SA 330(TKH) para 18, the court held that this is a
distinguishing feature of the functions of the commissions
and
constituted "a fundamental distinction between the commission
and a court of iaw wherein the right to cross-examine witnesses
does
not depend on permission by the presiding officer, I agree with
counsel for the first respondent that a commission of enquiry
deals
with matters of public interest and not individual witnesses".
"An
enquiry before a Commission is not a proceeding in which there are
interested individual parties who are entitled to a
hearing and a
verdict of the evidence. A commission of enquiry deal with matters of
public interests, frequently matters which
have already been publicly
ventilatedS v Sparks 1980(3) SA 952(T).
[10]
Regulation 8 provides that any person who appears before the
Commission may be assisted by an attorney or advocate. Regulation
8
does not give the applicant the right to appear as witness. It is a
matter entirely within the discretion of the Commission as
to whether
the applicant is called as a witness or not. Regulation 8 does not
create a right for the applicant to be represented
by an attorney or
counsel at the expense of the State in the instant case. The
assertion that the applicant will suffer irreparable
harm does not
arise.
[11]
In the case of Mzoxolo Magidiwana and others v The President of the
Republic of South Africa and others, case no 37904/2013,
which was
consolidated with this case, I intimated that the relief sought by
the applicants can be justified by a sound argument
on constitutional
and statutory rights. Such an argument can be premised on access to
justice in terms of section 34 of the constitution,
the prohibition
against unfair discrimination in terms of the equality clause;
section 9 of the Constitution; and the right to
legal representation
both as an adjunct to sections 34 and 35 of the Constitution, but
also as a right recognised in the regulations
of the Commission and
in the actual conduct of the proceedings. Section 9 prohibits unfair
discrimination based on class while
section 34 guarantees the right
to a fair trial. In section 9 context, fairness relates to "equity
before the law" whilst,
in section 34 context, it related to the
concept of "equality of arms".
[12]
I must reiterate that it does not seem to me that there is a dispute
on the applicant's right to legal representation per se,
but whether
a claim to have legal representation at state expense and that legal
representation must be of his own choice, must
be granted. It also
does not seem to me that there is a dispute that persons appearing
before a Commission of enquiry have the
right to legal
representation. The distinction though, between these two cases is
that in the instant case the applicant is entitled
to legal
representation at the state expense i.e as funded by SAPS. I do not
agree that applicant is entitled to a legal representative
of his
choice, as the applicant claims "a right to be represented by a
non-conflict legal representative". It can be
discerned from the
submissions of the first respondent that there is no intention by the
first respondent to appoint any legal
team to represent the applicant
contrary to his wishes and without his agreement.
[13]
While one agrees that fairness applies in this case, one must also
examine whether any right under section 9 of the Constitution
has
been breached and whether discrimination on one or more of the
grounds listed in 9(3) of the Constitution, is unfair and whether
there is discrimination at all. The question is whether the applicant
can have a legal representative of his own choice, at the
expense of
the South African Police Service.
[14]
In the first place, the applicant cannot access his right on the
bases of section 34 and secondly on section 35 of the Constitution
which provides that:
"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 in another independent and impartial tribunal
or forum"
This
was confirmed in S v Pennington 1997(4) SA 1076 (CC) in which the
court noted that, section 34 does not apply to criminal proceedings
since criminal proceedings are not ordinarily referred to as
disputes. Section 35, on the other hand, does not apply to disputes
governed by section 34 or the administrative proceedings governed by
section 33. The Marikana Commission is not involved in resolving
disputes. Further, in the event that the applicant is called as a
witness, he will appear in the Commission as such and not as
an
arrested or accused person - section 35 does not cover him.
[15]
Section 3(4) of the Commission Act supra provides that:
"any
person who has been summoned to attend any sitting of a commission as
a witness or who has given evidence before a commission
shall be
entitied to the same witness fee from public funds, as if he had been
summoned to attend or had given evidence at a criminal
trial in a
superior court held at the place of such seating”.
The
Act does not provide for payment to or for witness by the SAPS. The
Commission Act does not bestow on the applicant a right
to the relief
claimed.
[16]
It appears to me that the applicant in his notice of motion seeks a
review of the decision of the first respondent without
complying with
the requirements of PAJA. The application must fail on that ground
alone.
[17]
The applicant contends that he was informed by the first and second
respondent that he was a "risky and conflicted witness"
and
as a consequence he was not consulted by the legal representatives of
the first and the second respondents. In the first place,
the
applicant chose to be represented by the legal representatives funded
by Popcru who in turn had consulted with him. In the
second place,
there is no obligation on the first and second respondents to consult
with him. The Commission is the one that has
a prerogative to call
witnesses. The argument of the applicant cannot stand, because the
first respondent was prepared to assign
a legal representative of its
choice, but the applicant instead wants a legal representative of his
own choice.
[18]
I wish to revert to the issue of joint-representation, which gave
rise to the objection by the applicant that, this will amount
to a
conflict of interest on the part of the legal representatives of the
first and second respondents. On the 21 July 2013, the
first
respondent directed a letter to the attorneys of the applicant with
an offer that the legal team led by Advocate Semenya
SC, should
represent the applicant. The applicant rejected this offer on the
basis that the legal representative must render a
conflict free legal
representation. The applicant also claims that he will suffer
irreparable harm and prejudice since the issue
of perjury may ensue.
[19]
On page 183 of the record, paragraphs 23.11 to 23.14 the first
respondent in her answering affidavit gives guarantee of the
absence
of conflict of interest and any possibility of irreparable harm or
prejudice that maybe suffered by the applicant should
he be called as
a witness. In paragraph 47 page 208 of the record, in reply to
paragraphs 23.14 and 23.15, the applicant is silent
on the aspect of
conflict. He simply noted the content thereof. The first respondent
emphasises that "no conflict of interest
will ensue if the
applicant is represented by Advocate Masevhe who is representing
other members of the South African Police Service'.
[20]
Contrary to the assertions made by the applicant that he was never
consulted by the legal representatives of the first respondent,
there
is evidence that the evidence leaders (who are not necessarily
representatives of the first respondent) consulted with the
applicant
at one stage or another. It would appear that the applicant had no
interest whatsoever on the outcome of the consultation.
An
altercation arose which culminated in the attorneys of the applicant
withdrawing certain assertions made in an earlier correspondence.
This was apparently done on the 8 July 2013. It is in this
correspondence that the allegations about the conflict of interest
were withdrawn.
[21]
Based on the above reasoning, I have reached a conclusion, that while
the applicant is entitled to legal representation funded
by the first
respondent, he is however not entitled to a legal representative of
his choice. The SAPS is not bound by the applicant's
choice. In the
result the application must fail.
[22]
I make the following order:
(a)
The application is dismissed.
(b) There is no order as to costs.
TJ
RAULINGA
JUDGE
OF THE HIGH COURT NORTH GAUTENG HIGH COURT