Magidiwana and Another v President of the Republic of South Africa and Others (37904/2013) [2013] ZAGPPHC 292; [2014] 1 All SA 76 (GNP) (14 October 2013)

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[2013] ZAGPPHC 292
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Magidiwana and Another v President of the Republic of South Africa and Others (37904/2013) [2013] ZAGPPHC 292; [2014] 1 All SA 76 (GNP) (14 October 2013)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 37904/2013
DATE:14/10/2013
In
the matter between;
MZOXOLO
MAGIDIWANA
…................................................................................
First
Applicant
INJURED
AND ARRESTED PERSONS
...........................
Second
to Further Applicants/Class
…
.........................................................................................................................
Action
Participants
and
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
.................................
First
Respondent
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.............................................................................................
Second
Respondent
LEGAL
AID SOUTH
AFRICA
..............................................................................
Third
Respondent
THE
MARIKANA COMMISSION OF
ENQUIRY
...............................................
Fourth
Respondent
PARTIES
TO THE MARIKANA COMMISSION
OF
ENQUIRY
…............................................................................
Fifth
to Eighteenth Respondents
JUDGMENT
MAKGOKA,
J:
[11
This application concerns the right of the applicants to state-funded
legal representation in proceedings before the fourth
respondent, a
commission of inquiry established by the first respondent (the
President), The first applicant acts in his personal
capacity and as
a member of a class of people
1
known as ‘the injured and arrested persons’, consisting
of approximately 300 survivors of a shooting incident on 16
August
2012 in Marikana, Northwest Province. The latter group is cited as
'the second to further applicants’. They were either
injured
during that incident or subsequently arrested and prosecuted in
various magistrate courts in the Northwest Province.
[2]
This is part B of the application. Part A, which was brought on
urgency, was disposed of in this court, where Raulinga J, on
30 July
2013, dismissed the applicants' relief for interim funding of their
legal representation before the commission. An application
for leave
to appeal against that finding was dismissed by the Constitutional
Court on 19 August 2013.
2
In
their amended notice of motion
3
the applicants seek an order setting aside as unconstitutional, the
respective decisions taken by the President, the second respondent

(the Minister) and the third respondent (Legal Aid SA), to refuse
them legal aid in the proceedings of the commission. They also
seek
an order compelling such respondents to provide them with Legal aid.
[3]
The relief sought by the applicants is opposed by the President and
the Minister (whom I shall collectively refer to as ‘the

State’) and Legal Aid SA. The latter is a statutory body whose
function is described in s 3 of the Legal Aid Act 22 of 1969
as
being, to "render or make available legal aid to indigent
persons and to provide legal representation at State expense
as
contemplated in the Constitution,’ Where I refer to the
President, the Minister and Legal Aid SA collectively, I use ‘the

opposing respondents’. I shall refer to the commission as such,
or the Marikana commission, depending on the context.
[4]
The commission does not take part In these proceedings, and neither
do the ninth, tenth, eleventh, twelfth, thirteenth, fourteenth,

fifteenth and eighteenth respondents, who are parties admitted as
such in the commission. The fifth respondent (South African Police

Service) and the sixth respondent (Lonmin) have each filed a notice
to abide the decision of this court. Lonmin’s notice
was
accompanied by a short answering affidavit, joining issue with the
first applicant on the factual correctness of some of the
contents of
the tatter's affidavit.
[5]
The seventh respondent comprises 36 families of the deceased miners
(families of the deceased). The eighth respondent is a labour
union,
Association of Mining and Construction Union (AMCU). The sixteenth
respondent is the South African Human Rights Commission
(HRC). The
seventeenth respondent
4
is tie family of the late John Kutiwano Ledingoane
5
(Ledingoane family). All of the respondents mentioned in this
paragraph make common cause with the applicants and support the
relief sought. I refer to these respondents collectively as ‘the
supporting respondents’.
Preliminary
issues - application for a further amendment
[6]
In terms of a notice of amendment dated 5 September 2013, the
applicants sought an amendment to their amended notice of motion,

which entailed an alternative prayer, in the event it is found that
Legal Aid SA is not authorised to provide funding in commissions
of
inquiry, declaring the Legal Aid Act 22 of 1969, to that extent,
unconstitutional and invalid. The applicants also sought to
include a
prayer for the reviewing and setting aside the impugned decisions of
the opposing respondents.
[7]
The opposing respondents initially objected to both the proposed
amendments. At the commencement of the hearing, I was informed
from
the bar that the amendment concerning the constitutionality of the
Legal Aid Act was no longer in issue, as Legal Aid SA had
conceded
that there is no impediment in the Act to funding legal
representation before commissions of inquiry. As a result this
part
of the proposed amendment was no longer pursued by the applicants.
Legal Aid SA also abandoned its objection to the ‘review'

amendment.
[8]
The State, however, persisted with its objection to that amendment.
In the light of the view I take of the matter, and given
Legal Aid
SA’s abandonment of its opposition to the amendment, it Is not
necessary to consider the matter in any detail,
save to state
briefly, the general principles, which are trite and well-settled.
The general approach when a court considers an
amendment is that an
amendment will readily be allowed unless the application to amend is
mala fide or unless such amendment would
cause an injustice to the
other side which cannot be compensated by costs, in other words,
unless the parties cannot be put back
for the purposes of justice in
the same position as they were when the pleading which it is sought
to amend was tiled.
6
[9]
A court considering an application for an amendment has discretion
whether or not to grant it, which discretion must be exercised

judiciously. The primary object of allowing an amendment is to obtain
a proper ventilation of the dispute between the parties,
to determine
the real issues between the parties, so that justice may be done.
7
I am satisfied, in the circumstances, that the applicants’
proposed amendment would not result in prejudice to any of the

respondents.
[10]
In any event, part B of the application has always been a review
application in substance, as prayer 1 of the amended notice
of motion
in part B seeks to declare the Legal Aid SA's decision unlawful and
invalid. It follows that should I come to that conclusion,
the result
would be the reviewing and setting aside the decision, in these
circumstances, substance must triumph over form.
8
I therefore conclude that the amendment should be granted.
Factual
background and establishment of the commission
[11]
The events giving rise to the establishment of the commission have
been widely reported in local and foreign media, both in
print and
electronic. Although there is no common understanding, yet, of what
took place, for purposes of this application, and
without
pre-emptying the findings of the commission, it can broadly be stated
that the events were triggered by an unprotected
strike for wage
increases involving mainly employees of Lonmin Platinum Mine in
Marikana, near Rustenburg, between 9 and 16 August
2012. On 12 and 13
August 2012, respectively, 10 people, including mine workers, mine
security officers and police officers, were
killed.
[12]
On 16 August 2012, during a police operation, 34 striking and
protesting miners were shot and killed by SAPS. More than 78
people
were injured, and 259 were arrested, and subsequently charged
criminally. The tragic events of those days, especially the
one on 16
August 2013, captured national and international headlines. On 26
August 2012, the President, acting in terms of s 84(2)(f)
of the
Constitution of the Republic of South Africa Act, 108 of 1996 (the
Constitution), proclaimed the establishment of a commission
‘to
investigate matters of public, national and international concern
arising out of the tragic incidents at Lonmin Mine
in Marikana.’
The Commissions Act 8 of 1947 was made applicable to the commission.
[13]
The terms of reference enjoin the commission to 'Inquire into, make
findings, report on and make recommendations' concerning
the conduct
of various role- players, namely Lonmin; the police; trade union
Association of Mining and Construction Union (AMCU)
and trade union
National Union of Mineworkers (NUM); the role played by the
Department of Mineral Resources or any other government
agency, as
well as ‘the conduct of individuals and loose groupings in
fermenting and/or otherwise promoting a situation of
conflict which
may have given rise to the tragic incident.’
Composition
of the commission and its work
[14]
The commission is chaired by a retired Judge of Appeal, assisted by
two senior advocates as commissioners. The commission has
since
appointed seven evidence leaders, comprising 4 senior and 3 junior
advocates. The sitting of the commission commenced on
1 October 2012.
It was supposed to conclude its work by 31 January 2013. However, its
duration has been extended twice already,
and it is now expected to
conclude its business on 31 October 2013. The commission has divided
its work into two phases. In broad
terms, the first phase deals with
the events which took place from 11 to 16 August 2012, and the second
phase is meant to deal
with underlying causes of those events.
[15]
According to a letter dated 2 July 2013 by the commission’s
secretary to the registrar of this court, as of the date
of launching
of this application, the commission had dealt only with the first
phase, and has conducted in loco inspections on
three days. The
transcript of the commission’s hearings is reported to run to
11816 pages, with approximately 340 exhibits
received into evidence.
A substantial number of witnesses are still to testify in the first
phase.
The
applicants’ funding issues
[16]
The applicants received funding from Raith Foundation, a private
South African foundation for over R2.6 million for the period
1
October - 31 December 2012. On 16 March 2013 the foundation approved
in principle, an additional grant of R2 million in respect
of the
legal costs of the applicants for the period 18 March - 31 May 2012.
Due to certain issues between the legal representatives
of the
applicants and the foundation that need further discussion and
finalisation, no funding agreement has yet been concluded
between the
parties, nor have the funds been disbursed.
[17]
The applicants’ first request to the State for legal funding
was made through their attorneys of record to the Minister
on 10
October 2012. On 15 October 2012 they made a similar application to
Legal Aid SA, which promptly responded on 18 October
2012, and
pointed out that the Legal Aid guide of 2011/2012 made no provision
for the funding of proceedings before commissions
of inquiry.
However, Legal Aid SA disclosed that it had already decided to fund
legal representation for the families of the miners
who were killed
by the police.
[18]
This was done by its chief executive officer (CEO) pursuant to clause
10.2.3 of the 2012 Legal Aid guide, which gives her a
general
discretion to waive any condition, procedure, or policy set out in
the guide, as long as this is within the overall authority
of the
Act. The discretion provides for any issue that is not covered in the
guide. The all-inclusive budget allocated by Legal
Aid SA to the
families would cover the cost of a senior counsel and two junior
counsel, to the maximum of R1 219 800.00.
[19]
The reason to fund only the legal representation of the families of
the deceased miners was stated by Legal Aid SA to be the
families5
‘substantial, proximate and material interest in the outcome of
the inquiry.’ In respect of the applicants,
it was concluded,
in light of the considerations stated above, and ‘severe
budgetary constraints' that Legal Aid SA was not
in a position to
provide the applicants with legal aid funding. The letter from Legal
Aid SA was met by a response from the applicants’
attorneys,
contesting the basis on which it was implied that the applicants did
not have a ‘substantial, proximate and material
interest’
in the outcome of the commission, and the logic of distinguishing
between the injured and the deceased miners.
[20]
The Minister, through the State Attorney, responded on 14 March 2013,
as follows:
‘
2.
After careful consideration of your request, we find no legal
framework through which government can contribute to the legal

expenses of any of the parties who participate in the commission of
inquiry.’
3.
The Legal Aid Board of South Africa (sic) is the only existing
framework through which the State can provide legal assistance
in
legal proceedings to persons who meet the requirement (sic) for such
an assistance (sic). As you are aware, the Legal Aid system
is
intended for criminal proceedings and certain civil proceedings
before court and do not (sic) include representation before

commission of inquiry.
4.
Our client (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 (to)
parties who appear before Commissions of Inquiry where
this is
desirable. As is the position currently, legal assistance may only be
provided to a person who appears before a Commission
as a witness.’
The
issues
[21]
From the outset, I must mention that it is not in dispute that there
is a right to legal representation before the commission.
Regulation
8 of the commission’s own regulations (proclamation No. 59,
2012) permits legal representation but is silent on
the question of
legal assistance. However, the fact that the right to legal
assistance has not been specifically provided for,
does not mean it
is not permissible. The State however, asserts that the applicants do
not have a constitutional right to legal
representation in the
proceedings before the commission to be provided at state expense.
[22]
Thus, the primary and crisp issue for determination is whether the
applicants are entitled to state-funded legal representation
for
their participation in the proceedings of the commission. Flowing
from that, two constitutional rights are contended by the
applicants.
First, the right to equality In terms of s 9 of the Constitution, and
the right to access to the courts (s 34). The
applicants argue that
these two rights have been infringed by the conduct of the opposing
respondents in refusing to afford them
state-funded legal
representation. Against Legal Aid SA, it is further contended that
its differentiation between the deceased
and injured miners,
considered in the light of s 9, is irrational.
[23]
Before consider the contentions of the parties, I need to make two
preliminary observations, which set the tone for this judgment.
The
first concerns the remarks in the judgment of the Constitutional
Court refusing the applicants’ leave to appeal. The
second
relates to the necessity for the applicants to fully and meaningfully
participate in the proceedings of the commission.
Constitutional Court judgment
[24]
in my view, the Constitutional Court lit the path regarding the
framework within which this matter should be considered, in
its
customarily lucid judgment refusing leave to appeal:
9
‘
[15]
It may be that it would be commendable and fairer to the applicants
that they be afforded legal representation 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. The power to appoint a commission of inquiry is mandated by
the Constitution. It is afforded to the President as
part of his
executive powers, it is open to the President to search for the truth
through a commission. The truth so established
could inform
corrective measures, if any are recommended, influence future policy,
executive action or even the initiation of legislation.
A
commission’s search for truth also serves indispensable
accountability and transparency purposes. Not only do the victims
of
the events investigated and those affected need to know the truth:
the country at large does, too. So ordinarily, a functionary
setting
up a commission has to ensure an adequate opportunity to all who
should be heard by it. 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 adequate legal
representation is not afforded. But this does not mean that courts

have the power to order the executive branch of government on how to
deploy state resources. And whether the desirable objective
of
'equality of arms’ before a commission translates into a right
to legal representation that must be provided 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 South Africa to grant the
applicants legal aid been
challenged on review.’
(Footnotes
omitted)
Necessity
of the applicants’ participation
[25]
All parties seem to agree that the applicants' participation is
necessary, but differ on what the nature and content of such

participation should be. St can safely be accepted from the outset,
however, that the absence of legal representation, effectively
means
the exclusion of the applicants in the proceedings of the commission.
In fact, the applicants have withdrawn their participation,
following
the withdrawal of their legal representatives. It is common cause,
and has not been seriously disputed that the applicants
cannot afford
legal representation, due, entirely, to their poverty.
Is
s 34 of the Constitution implicated?
[26]
I now consider the parties’ contentions. Section 34 provides
for the right to have any dispute that can be resolved by
the
application of the law decided in a fair public hearing before a
court or, where appropriate, another independent and impartial

tribunal or forum. The purpose of the section is—
‘
to
emphasise and protect generally, but also specifically for the
protection of the individual, the separation of powers, particularly

the separation of the Judiciary from the other arms of the State.
Section 22 achieves this by ensuring that the courts and other
fora
which settle justiciable disputes are independent and impartial. It
is a provision fundamental to the upholding of the rule
of law, the
constitutional State, the ‘regstaatidee’, for it prevents
legislatures, at whatever level, from turning
themselves by acts of
legerdemain into 'courts’. One recent notorious example of this
was the High Court of Parliament Act.
By constitutionalism the
requirements of independence and impartiality the section places the
nature of the courts or other adjudicating
fora beyond debate .. ,'
10
(Footnote
omitted.)
In
Zondi v MEC for Traditional and Local Government Affairs and Others
11
held that s 34 ‘is an express constitutional recognition of the
importance of the fair resolution of social conflicts’
by
impartial and independent institutions.'
[27]
The State argues that the ‘dispute’ referred to In the
section must be justiciable and its adjudication must bring
an end to
the dispute. It is contended that there is no such dispute to be
resolved by the commission, and neither does it legally
'determine’
rights, nor can it impose any kind of liability. The commission is
merely investigative in nature, with a view
to make recommendations
to the President. Counsel for the State submitted for that reason,
that the commission is neither a quasi-judicial
tribunal nor a court
of law, and no finding of fact or recommendation by the commission
can affect or even threaten any of the
rights of the individual
applicants, which rights will remain intact.
[28]
On this premise, it was contended that s 34 does not find application
in the present case. Counsel for the State placed reliance
for this
argument, on, among others, Islamic Unity Convention v Minister of
Telecommunications,
12
There, the Constitutional Court found it unnecessary to express a
firm view on the applicability of s 34 to the proceedings before
the
Broadcasting Monitoring Complaints Committee (BMCC), established
under the Independent Broadcasting Authority Act, 153 of 1993.
The
court expressed doubt whether the section was implicated in that
matter. This' was based on the fact that even if a complaint
before
it could be characterised as a ‘dispute’, the commission
did not resolve it. The BMCC’s function of investigating
and
adjudicating the complaint was but the first of a two-stage process.
It was a higher authority, namely the independent Communications

Authority of South Africa (ICASA) which took the final decision.
[29]
Counsel further relied on the minority judgments in Sidumo v
Rustenburg Platinum Mines Ltd,
13
where Ngcobo and O' Regan JJ concluded that the Commission for
Conciliation, Mediation and Arbitration (CCWIA) is an independent
and
impartial tribunal within the contemplation of s 34, since its task
was ‘adjudicative in character’. Obviously,
reliance on
the minority judgments was sought to distinguish it from the Marikana
commission, which, it was contended| did not
have that attribute.
[30]
The State also criticised the applicants’ reliance on Mbebe and
Others v Chairman, White Commission and Others
14
and Bongoza v Minister of Correctional Service and Others
15
In Mbebe, a commission appointed by the President in terms of s 236
of the interim constitution, had found that the promotions
of the
applicants, who had been members of the Transkeian police force, just
before the advent of democracy, had been irregular
and either set
them aside or altered them. The applicants sought to have the
findings of the commission set aside for various reasons,
among
which, the constitutionality of s 236 as being inconsistent with s 34
with the final constitution.
16
[31]
in rejecting this argument, the court observed, among others!’
that the procedures adopted in that commission were largely

consistent with those employed in an ordinary court of law. The
applicants had been given the right to cross-examine the witnesses,

the right to give evidence and to call witnesses. As such, the
applicants were afforded the same rights as those enjoyed by a
litigant in ordinary civil proceedings. The court concluded on that
basis, that the commission was compliant with s 34.
[32]
In Bongoza the court reached the same conclusion in respect of the
same commission of inquiry as that considered in Mbebs.
The court
confirmed that the rules of evidence applicable to the commission
differed from a court of law in that the commission
could have regard
to a wider range of evidence, such as hearsay, and was not obliged to
allow cross-examination of witnesses. The
court further confirmed
that the requirements of fairness are flexible. Though not a court of
law, that commission qualified as
an 'independent and impartial
hearing'.
[33]
Counsel for the State sought to distinguish the White Commission (the
subject in both Mbebe and Bongoza) on the basis that
that commission
exercised ‘judicial’ function in that it had the powers
to finally determine the rights of the parties.
I agree. But, as I
demonstrate below, the fact that the Marikana commission only
investigates and reports, possibly with recommendations,
is not in
and of itself, the reason for s 34’s non-applicability. This is
also the context in which counsel relied on the
dicta in Islamic
Unity Convention and the minority judgments, in Sidumo, to press
their central argument that the findings and
recommendations of the
commission would not affect or even threaten any of the rights of the
applicants.
[34]
That proposition was not accepted in Grundling v Van Rensburg NO
17
,
where Conradie AJ recognised the potential prejudice to rights as a
basis for requiring fairness in commission proceedings. Du
Preez and
Another v Truth and Reconciliation Commission,
18
concerned the activities of a committee on human rights violations of
the Truth and Reconciliation Commission (TRC) whose function
was to
undertake a fact-finding inquiry, and submit a report to the TRC on
its activities and findings. The report was to include,
among others,
measures on how to
prevent
violation of human rights. 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 people
who could be
so implicated, fairly. At 543I-544B, the Chief Justice said:
The
committee is charged with the duty of establishing, inter alia,
whether such violations (of human rights) 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 the 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’
[35]
The Chief Justice cited with approval a passage by Lord Denning MR in
the English case of Re Pergamon Press Ltd,
19
which was concerned with procedures in an investigative inquiry
conducted by inspectors in terms of the Companies Act. The directors

of the company concerned claimed that the inspectors should conduct
the inquiry much as if it were a judicial inquiry in a court
of law.
Lord Denning MR said of this (at 539a-f):
‘
It
seems to me that this claim on their part went too far. This inquiry
was not a court of law. It was an investigation in the public

interest, in which all should surely co-operate, as they promised to
do. But if the directors went too far on their side, I am
afraid that
counsel for the inspectors went too far on the other... he did
suggest that in point of law, the inspectors were not
bound by the
rules of natural, justice ... He submitted that when there was no
determination or decision but only an investigation
or inquiry, the
rules of natural justice did not apply .... I cannot accept (counsel
for the inspectors1) submission. It is true,
of course, that the
inspectors are not a court of law. Their proceedings are not judicial
proceedings ... They are not quasi-judicial,
for they decide nothing;
they determine nothing. They only investigate and report. They sit in
in private and are not entitled
to admit the public to their
meetings: ... They do not even decide whether there is a prima facte
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. The report may expose
persons to criminal prosecutions or to civil actions...’
[36]
Of course, all of these were in the context of procedural fairness
inside the proceedings of committees or commissions, which
is not the
case in the present application. However, I can see no reason why
they should not be applicable with equal force, to
a case such as the
present, where, similarly, the rights of persons, including those of
the applicants, are potentially in danger
of infringement. The common
denominator is the recognition that, committees and commission like
the Marikana commission, have the
power to make far-reaching findings
and recommendations, which carry potential prejudice to rights of
individuals and corporations,
the bearers of which are entitled to
protect, even at that investigative stage. In LAWSA vol. 2 part 2
para 169, the position is
neatly summed up as follows:
The
argument that the recommendations of a commission do not affect
existing rights because they decide nothing in themselves has
been
rejected. It is now accepted that serious repercussions can flow from
the report of a commission. For example, very damaging
findings of
fact could be made in respect of people who are named, tn 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’
[37]
In the context of the present application, It is of no consequence
that the commission is not of a judicial or quasi-judicial
nature.
That does not, in my view, place the Commission outside the scope of
s.34 of the Constitution. At conceptual level, the
general
proposition that the proceedings of commissions of inquiry fall
outside the scope of s 34 at the outset, is, to my mind,
an
over-simplification of a complex situation involving constitutional
rights and a distinct possibility of those rights being
adversely
affected by the outcome of the commission. A preferable view is that
the right to legal representation at commissions
is not an absolute
one, but depends on the context. Counsel for Ledingoane family
asserted that the right arises in the following
circumstances:
(a)
when the nature and type of inquiry demands that some or all
interested parties be legally represented;
(b)
when the interests of justice and the rule of law would be undermined
by a failure to uphold the right;
(c)
when the constitutional rights of parties or witnesses appearing
before a commission are implicated or potentially threatened.
[38]
I find the above proposition both attractive and persuasive as a
basis for a general framework, in each commission regard would
be had
to the context-specific factors of the commission to determine
whether s 34 finds application. It is therefore not feasible,
nor
desirable, to fay down an inflexible list of such considerations. For
the present purposes I take the following into consideration:
(a)
substantial and direct interest of the applicants in the outcome of
the commission;
(b)
the vulnerability of the applicants as participants in the
proceedings of the commission;
(c)
the complexity of the proceedings and the capacity of the applicants
to represent themselves;
(d)
the procedures adopted by the commission;
(e)
Equality of arms
(f)
the potential consequences of the findings and recommendations of the
commission for the applicants.
[39]
I briefly consider the above issues, in turn.
The
applicants' interests in the outcome of the commission
[40]
Apart from seeking the truth as to how their colleagues died, the
applicants have a direct and substantial interest in the
outcome of
the commission. The commission’s investigation is not limited
to the 44 deaths that occurred during the week of
9 to 16 August
2012, but extends to the 70 persons who were injured and
approximately 250 persons who were arrested on 16 August
2012. Those
are the applicants, in this regard, it is well noting that in its
ruling on the scope of the first phase of its investigation,
the
commission has decided to include:
'An
investigation into whether participants in the crowd of protestors at
Wonderkop on 16 August 2012 should be held criminally
liable for the
death of 34 of their fellow protestors and/or in respect of the
alleged attempted murder or assault of SAPS members
at the scene; and
The
direct causes of, and legal responsibility of any party for the
deaths and injuries to any persons and damage to property during
the
period 9 to 16 August 2012.’
[41]
The reference to ‘participants in the crowd of protesters’,
is to the applicants. Regard being had to the above,
it admits of no
debate of the applicants’ direct and substantial interest in
the outcome of the commission. That interest
is two-fold. Firstly, it
is to ensure that the criminal charges preferred against many in
their class, are not proceeded with.
Secondly, it is to safeguard
their potential right to claim damages from the police. Both these
aspects are intrinsically linked
to, and are dependent on, the
findings and recommendations of the commission. Considering the fact
that it is common cause that
it is the police who shot and injured
them, the applicants’ interests and those of the state are
diametrically opposed.
[42]
It appears to be common cause that the police want the Commission to
find that the applicants are the source of the violent
environment in
which they and others got shot. The applicants, on their part, want
the Commission to find that the police unjustifiably
short them and
those who died. It is, therefore, unjust that the applicants be
unable to present their version of the events, whilst
their
adversaries, the police, are afforded legal representation, at state
expense, to present theirs.
[43]
All of the other parties specifically named in the commission’s
terms of reference are participating in the commission
proceedings to
avert adverse factual findings against them. Similarly, the
applicants are entitled to prevent even the possibility
of criminal
prosecutions against them being proceeded with. They are furthermore
entitled, to ensure that their right to claim
damages is not negated
by an adverse finding against them, As a result, there can be no
doubting the implications of the commission’s
findings. The
temptation to dismiss the potential prejudice likely to be suffered
by the applicants as inconsequential, should
be resisted. The fact
that they are poor should never be a basis to summarily dismiss their
potential substantial prejudice. It
is unthinkable and deeply
offensive to basic fairness and the rule of law in a democratic state
that the poor and vulnerable be
left to their own devices, in a
manner that will deny them exercise of their constitutional right in
terms of s. 34 of the Constitution.
The
vulnerability of the applicants
[44]
Of all participants before the commission, the applicants are the
most vulnerable. Primarily, their indigence renders them
unable to
participate on an equitable footing with all other participants. As
already stated above, some in their class have already
been
criminally charged with the death of their 34 colleagues. The very
fact of the commission specifically investigating the applicants
(who
were part of ‘the crowd of protesters’) for possible
criminal liability, places beyond doubt, their vulnerable
position as
a group, before the commission.
The
complexity of the proceedings
[45]
The applicants say they need legal representation. From what has
appeared in the media about the proceedings of the Commission,

including how long witnesses have been kept in the witness box, and
the technicality of some of the evidence, there is no doubt
that the
conduct of the Commission’s proceedings is beyond the scope of
the applicants. That is why they withdrew when their
legal
representatives withdrew.
The
procedures adopted by the commission
[46]
It was contended on behalf of the State that there are no ‘parties’
before the commission, and that the applicants'
reference to
‘parties’ is an attempt to turn the commission into
‘litigation’, which it is not. I do not
think much turns
on this aspect. Whether one refers to 'parties’ or
'participants’ is immaterial, and does not alter
the nature of
the commission. It should follow from the events giving rise to the
commission, and its terms of reference (where
specific parties are
specifically cited for investigation) that there would be partisan
contestation between some of those parties
identified for
investigation.
[47]
Correctly in my view, the proceedings of the commission have been
described as quasi-adversarial. But it is a fact that the
commission
has adopted and implemented procedures largely similar to and
consistent with those applied in ordinary courts of law,
in which
adversarial elements like cross-examination of witnesses, tend to
dominate the proceedings. Indeed, the nature of the
issues referred
to in the terms of reference and the provisions of the regulations
all point to recognition of the reality that
in respect of some of
the key issues, e.g. the assertion of self-defence by the police,
would only be resolved by application of
the law. I therefore agree
with the contention of the applicants and the supporting respondents
that the commission bears the hallmarks
of an adversarial inquiry. Of
course, this does not mean that the proceedings before the commission
are litigious.
Equality
of arms
[48]
Equality of arms is a jurisprudential principle issued by the
European Court of Human Rights (ECHR) and is a part of the right
to a
fair trial written in the European Convention for human and
fundamental freedoms. The principle requires each party to be
given a
reasonable opportunity to present his or her case under conditions
that do not place him or her at a substantial disadvantage
vis-a-vis
his or her opponent.
20
Given the common cause fact that it is the police who shot and
injured them, their interests and that of the State are diametrically

opposed. The State seeks to persuade the commission that the shooting
by the police was justifiable. To this end, it has marshalled

formidable forensic and legal skills to prevent even a possibility of
an adverse finding from arising.
[49]
The SAPS legal team is said to comprise five advocates (three senior
counsel and two senior-junior counsel). In addition, SAPS
also use
the services of a private firm of attorneys in Rustenburg, instead of
State Attorney, Furthermore, the Minister of Police,
whose interests
should ordinarily coincide with those of SAPS, maintains a separate
legal team from that of SAPS. Apparently, the
Minister of Police’s
legal team has been on the so-called ‘watching brief. The
applicants have alleged that the State
parties’ legal
representation costs approximately R2 million to R3 million per
month. This has not been denied, and accordingly,
the allegation
should be accepted as factually correct. All other participants are
adequately resourced. From these observations,
lack of equality of
arms, as far as the applicants are concerned, is patent. Our society
is premised on the constitutional values
and principles of social
justice, fairness, equality and justice. A process which enables only
the police, other State organs and
a multi-national corporation to be
legally represented to the exclusion of the survivors of the police
shooting is ‘entirely
inconsistent with the principles and
values that underlie our Constitution’.
21
Consequences
of the commission s findings and recommendations
[50]
The commission is a public inquiry, operating under considerable
local and international scrutiny and the outcome thereof will
have
potentially massive ramifications for individual and institutions.
The implications of the commission’s findings and

recommendations will be far-reaching. The evidence before the
commission is likely to stand as the authoritative historical record

of what took place in Marikana during August 2012. There will be
reputational, moral, criminal and civil repercussions on those
in
respect whom adverse findings are made by the Commission. It is true
that the President is not obliged to act on the recommendations
(if
any) of the commission.
[51]
However, that does not mean there will be no consequences. It is to
be borne in mind that some in the class of the applicants
have
already been charged criminally, with among others, common-purpose
murder. The latter charges have been provisionally withdrawn.
The
criminal proceedings concerning the remainder of the criminal charges
(including possession of dangerous weapons, attendance
of an illegal
gathering and public violence) have been remanded pending the outcome
of the commission), A finding that the police
acted in self-defence
would no doubt encourage the prosecuting authority to pursue those
charges, in this regard, it bears mention
that the then acting
National Director of Public Prosecutions has provisionally withdrawn
the criminal charges against pending
among others, the completion of
the commission’s work.
[52]
Once criminal proceedings resume, the applicants face a distinct
possibility of imprisonment, including life or long-term
imprisonment. It is cold comfort for the applicants that they will be
entitled to state-funded legal representation for their criminal

trials when that happens. They are entitled, like all other parties
before the commission, to present (and rebut) evidence before
the
commission, to prevent even the possibility of criminal proceedings
against them being proceeded with or resumed.
[53]
As far as civil claims are concerned, a finding that the police acted
in self- defence, would discourage the applicants from
pursuing civil
claims against the police. Although the evidence of the commission
would not necessarily be admissible in subsequent
civil proceedings,
a finding in this regard is likely to influence the course of action
adopted by either the applicants or the
state, and is most likely to
encourage settlement of civil claims (in the event it is found that
the police did not act in self-defence.
[54]
The applicants’ rights are therefore as important as those of
SAPS and Lonmin, who stand to suffer considerable reputational
harm,
and possible civil claims, in the event of adverse findings against
them. This explains the massive resources deployed by
them to ensure
that such a possibility does not even, arise. Not only are the rights
of the applicants implicated, but those of
the supporting
respondents, which I consider briefly, below.
The
supporting respondents
The
families of the deceased miners (including Ledingoane family)
[55]
At conceptual level, the families’ unquestionable interest in
the commission finds support in international law. Principle
11 of
the United Nations Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions

provides:
‘
Families
of the deceased and their legal representatives shall be informed of,
and have access to any hearing as well as to all.
information
relevant to- the. investigation,-and shall be entitled to present
other evidence.'
[56]
Practically, that interest arises from the commission’s terms
of reference, in particular the conduct of SAPS in relation
to the
death of their loved ones. The families seek to know the truth about
the incidents at Marikana on 13 and 16 August 2012
for three primary
reasons: (i) in the hope that the truth will bring them some measure
of healing, closure and restoration; (ii)
in order to safeguard their
rights in relation to possible civil claims against SAPS following
the alleged unlawful killing of
their loved ones; and (iii) in the
hope that those criminally liable for their loved ones’ death
are brought to justice.
[57]
Needless to say, none of the above goals can be achieved without the
full and effective participation of the applicants, who
are the eye
witnesses of the shooting incident that resulted in the death of
their loved ones. The families argue that the consequences
of the
applicants being unable to participate effectively in the commission,
are that their own participation would be rendered
meaningless. That,
in turn, they contend, would violate their loved ones’
fundamental right to life under s 11, and their
own rights to dignity
under s 10, of the Constitution.
[58]
The families’ contention concerning s 11 similarly finds
support internationally. In McCann v United Kingdom
22
the ECHR held that the right to life includes an effective
investigation into deaths that resulted from the use of force by the

State, in Jordan v United Kingdom
23
the ECHR held further in this regard that an effective investigation
includes the right of the victim’s next-of-kin to be
involved
in the procedure to the extent necessary to safeguard their
interests, Jordan's case concerned the death of the applicant’s

son who was shot and killed by the police. The applicant had alleged
that his son had been unjustifiably shot and killed by a police

officer and that there had been no effective investigation into, or
redress for, his death.
At
para 109 the following was stated:
‘
[There
must be a sufficient element of public scrutiny of the investigation
or its results to secure accountability in practice
as well as in
theory, The degree of public scrutiny required may well vary from
case to case. In all cases, however, the next-of-
kin of the victim
must be involved in the procedure to the extent necessary to
safeguard his or her legitimate interest...'
[59]
As to the families’ right to dignity, Mr Ntsebeza SC, counsel
for the families,
referred
to the following apposite and poignant extracts from the Report of
the Truth and Reconciliation Commission:
‘
By
providing the environment in which victims could tell their own
stories in their own languages, the Commission not only helped
to
uncover existing facts about past abuses, but also assisted in the
creation of a narrative of truth. In doing so, it also sought
to
contribute to the process of reconciliation by ensuring that the
truth about the past included the validation of the individual

subjective experiences of people who had previously been silenced or
voiceless ... These principles constituted the essence of
the
Commission’s commitment of restorative justice. The Act
required the Commission to help restore the human and civil dignity

of victims by granting them an opportunity to relate their own
accounts of the violations of which they were victim.
24
These remarks were quoted with
approval by the Constitutional Court in Albutt v Centre for the Study
of Violence and Reconciliation,
25
which then concluded as follows at para [61]:
‘
Excluding
victims from participation keeps victims and their dependants
ignorant about precisely happened to their loved ones; it
leaves
their yearning for the truth effectively unassauged; and perpetuates
their legitimate sense of resentment and grief. These
results are not
conducive to nation-building and national reconciliation.’
AMCU
[60] AMCU’s interest in the
commission arises out of paragraph 1 read with paragraph 1.3 of the
commission’s terms of
reference in terms which provide:
‘
1.
The commission shall inquire into, make findings, report on and make
recommendations concerning the following, taking into consideration

the Constitution and other relevant legislation, policies and
guidelines:
1.3
The conduct of the Association of Mineworkers and Construction Union
(AMCU), its members and officials and in particular:
1.3.1
whether it had exercised its best endeavours to resolve any dispute/s
which may have arisen (industrial or otherwise) between
itself and
Lonmin and/or NUM or any other parties;
1.3.2
the extent to which it exercised effective control over its
membership and those persons allied to it in ensuring that their

conduct was lawful and did not endanger the lives and property of
other persons; and
1.3.3
whether by act or omission it directly or indirectly caused loss of
life or damage to persons or property’
[61]
Amcu, like the families of the deceased, relies on the eye-witness
evidence of the applicants to protect its reputation, in
the absence
of meaningful participation of the applicants, adverse factual
findings may be made against it. The consequences would
be
far-reaching. For example, if it is found that it directly or
indirectly caused loss of life, it could face massive and fatal
civil
damages proceedings. Reputationaily, the consequences might prove
devastating, in order for it to prevent that eventuality,
Amcu is
dependent on the evidence of the applicants.
Discussion
and conclusion on the applicability of s 34
[62]
Counsel for the opposing respondents down-played the importance of
the applicants' participation in the commission. Reduced
to its bare
essence, the totality of their argument is this: the applicants may
participate if they wish - legally represented
or not in any event,
the evidence leaders are there to assist them, if they do not
participate voluntarily, they may be subpoenad
and be forced to
testify. This is an unfair, heavy-handed and insensitive approach
concerning alleged victims of a police shooting.
[63]
The Marikana commission is not just an ordinary commission. The
events being investigated by it have captured the collective

consciousness of our nation and have drawn widespread interest of the
international community. The shooting incident on 16 August
2012 is
the single most lethal use of force by the police against civilians
in our country since the Sharpeville massacre in 1960.
It is
therefore absolutely vital that the integrity and credibility of its
findings and recommendations {if any), are beyond reproach.
Like the
TRC, the Marikana commission is concerned, mainly, with the rights of
the poor and the vulnerable. For it to fulfill its
terms of
reference, the full participation of all involved, including the
applicants, is therefore essential.
[64]
At the heart of the commission's mandate is the search for the truth.
Apart from its clear terms of reference, it is worth
noting that,
like the Truth and Reconciliation Commission, the Marikana commission
has committed itself to the values of truth,
restoration and justice
26
.
It is doubtful whether, without the participation of the applicants,
the commission will achieve its goals. They will not have
the
opportunity to state their version of the events and possibly
exonerate themselves. It follows that it is to the benefit, not
only
of all the participants in the commission, but also of the President
and the- country at large, that the truth emerges from
all available
and authentic sources, such as the applicants will be if their
versions or portions thereof are accepted by the Commission.
[65]
To sum up, the applicants' claim to State-funded legal representation
before the commission should not be considered in the
abstract, but
in its proper context, which is this. This is a State-appointed
commission, tasked to investigate among others, the
conduct of the
applicants, who admittedly cannot afford to fund their own legal
representation. The State, on the other hand, has
marshalled a
formidable team of experienced legal representatives. The commission
has adopted a decidedly adversarial nature. The
consequences arising
from the commission's findings include possible criminal prosecution
for, among others, murder (with the concomitant
possibility of life
or long term imprisonment.
[66]
These factors, in my view, call for fairness and equality of arms,
which in turn, locates the commission squarely within the
purview of
s 34 of the Constitution, i find the interpretation contended for by
the State too rigid, formalistic and inconsistent
with the ethos of
our Constitution. Section 34 has to be interpreted purposively and
expansively. Apart from its primary purpose
of separation of powers,
it carries with it the constitutional values of justice and fairness.
Ours, as noted by the Chief Justice,
is a “never again’
Constitution: never again will we allow the right of ordinary people
to freedom in a!l its forms
to be taken away.'
27
[67]
For all of the above considerations, i conclude therefore that s 34
finds application to the Marikana commission of inquiry,
and
therefore a constitutional right to legal representation before the
Marikana commission. Having reached that conclusion, it
remains to be
determined whether that right translates into a right for
State-funded legal representation. Differently stated,
does the State
bear an obligation to fund the applicants’ legal
representation?
[68]
I am of the view, taking into account the considerations referred to
above, and the fact that the rights of indigent and vulnerable

persons are implicated, that the State is, in the circumstances,
constitutionally obliged to provide legal assistance to the
applicants.
I agree with the applicants1 and the supporting
respondents1 contention that the interests of justice and the rule of
law would
be undermined by a failure to uphold the applicants’
right, especially in light of my conclusion that the constitutional
rights of the applicants are not only implicated in the proceedings
of the commission, but may possibly be threatened by its findings.
[69]
To state the obvious, this finding is no authority for the
proposition that in all commissions of inquiry, there is a right
for
State-funded legal representation. It depends on the context, having
regard to nature of the issues under investigation before
a
particular commission. As noted by the Constitutional Court (in the
context of legal representation before the Commission of
Conciliation
Mediation and Arbitration (CCMA))
28
that right is not an absolute one. With regard to context, the
Constitutional Court has held that:
‘
Reasonableness
and procedural fairness are context specific. What is reasonable and
procedurally fair in one context is not necessarily
reasonable or
procedurally fair in a different context. In R v Secretary of State
for the Home Department, Ex parte Daly Steyn
LJ referred to an
observation by Laws LJ emphasising that 'the intensity of review in a
public law case will depend on the subject-matter
in hand'. Steyn LJ
went on to say ’(t)hat is so even in cases involving convention
rights. In law context is everything.”
29
(footnotes
omitted)
[70]
Having established that there is a right to legal representation
before the Marikana commission, and that there is a duty on
the State
to provide funding for such legal representation, I must now
determine whether the respective decisions of the opposing

respondents, in refusing to provide State-funded legal
representation, infringed that right. In this instance it is
important
to keep in mind, and consider separately, the applicants’
case against the State and Legal Aid SA, respectively.
The
case against the State
[71]
(t is perhaps prudent to set out what the applicants’ case
against the State is not i formulate it in this manner because,
in
their written submissions and in oral argument, counsel for
Ledingoane family, introduced new argument, seeking to impugn the

President’s decision to appoint the commission without
providing for State-funded legal representation for the indigent,
in
the commission regulations, as being irrational and thus,
unconstitutional. But that is not the case the President had to meet

on the papers. This issue was not pertinently raised in the founding
affidavit of the applicants, and was never a cause of action
of the
applicants, nor was it even contemplated in the family’s own
answering affidavit, it is not part of the relief sought
against the
State in the amended notice of motion, nor in the applicants’
notice of intention to further amend their notice
of motion.
[72]
What has been the target of the applicants’ attack, is the
decision of the President and the minister to refuse legal
funding to
the applicants for their participation in the commission, ! therefore
agree with the State’s counsel that the
introduction of this
issue in this manner, would be unfair and prejudicial to the State,
in particular to the President. Our courts
have repeatedly warned
against the danger of seeking to raise issues not properly canvassed
on the papers. See for example, Minister
van Wet en Orde v Mashaba
30
in Albutt v Centre for the Study of Violence and Reconciliation,
31
Ngcobo CJ sounded the following caution:
‘
Sound
judicial policy requires us to decide only which is demanded by the
facts of the case and necessary for its proper disposal.
This is
particularly so in constitutional matters, where jurisprudence must
be allowed to develop incrementally. At times it may
be tempting, as
in the present case, to go beyond that which is strictly necessary
for a proper disposition of the case. Judicial
wisdom requires us to
resist the temptation and wait for an occasion when both the facts
and the proper disposition of the case
require an issue to be
confronted ... There may well be-cases, and they are very rare, when
it may be necessary to decide an ancillary
issue in the public
interest.
[73]
As mentioned earlier, the State’s impugned decision is
contained in the letter of the State Attorney dated 14 March 2013.
it
is that decision, and it alone, which must be considered in
determining whether the applicants’ rights have been infringed

by the State, To recap on that decision, the State’s reason for
refusing to provide legal aid to the applicants is the absence
of a
legal framework to do so. The State, correctly, in my view, suggested
to the applicants to look to the Legal Aid SA for legal

representation. However, it misconstrued the powers of Legal Aid SA
when it stated that the latter does not provide legal aid in

commission proceedings. But that does not mean the President and the
Minister’s decision is irrational.
[74]
If anything, that decision is a sound one. its correctness lies in
the rule of law, and its offspring, the doctrine of legality,
because
constitutionally, the only framework within which legal aid for
indigent people is provided, is in terms of Legal Aid Act.
Thus, the
only channel through which such funding can be accessed is Legal Aid
SA, which is a separate juristic person with its
own legislative
mandate established for that purpose under the Legal Aid Act. Simply
put, the only State agency charged with the-responsibility
to provide
legal aid to the indigent, is Legal Aid SA. That should have been the
applicants’ first port of call, and not
the President or the
minister, Of course it would have been a different case had the
President, in the commission regulations,
made specific provision for
State-funded legal representation, which he did not, and his decision
in that regard, has not been
challenged.
[75]
The upshot of al! the above, is that the decision of the President
and the Minister in March 2013, cannot be faulted on any
ground. This
conclusion makes it unnecessary to consider the residual submissions
by Mr Mpofu, counsel for the applicants, relating
to the availability
of resources at the disposal of the State. However, for completeness
sake, I make brief comments on them. Mr
Mpofu pointed out that the
resources are available, only that the State lacks ‘the will’
to make them available for
the applicants’ legal funding.
[76]
In this regard, counsel pointed to two occurrences to buttress his
argument. The first is that when the applicants and the
families of
the deceased miners complained to the State that they were unable to
attend the proceedings of the commission for lack
of resources, the
President immediately, and benevolently, amended the commission’s
regulations and made provision to accommodate,
feed and transport the
families, Counsel suggested that by the same stroke of a pen, the
President can amend the regulations to
provide State-funded legal
representation for the applicants. The second is that the commission
has saved the State millions of
rands through the applicants'
successful application for the relocation of the seat of the
commission from Rustenburg to Centurion,
which revenue, so was the
argument, should be made available for the applicants’ legal
funding.
[77]
The short answer to the above submissions lies in the principle of
separation of powers, in National Treasury v Opposition
to Urban
Tolling Alliance
32
the Deputy Chief Justice, with customary elegance and scholarly
eruditeness, said:
The
harm and inconvenience to motorists, which the High Court relies on,
result from a National Executive decision about the ordering
of
public resources, over which the Executive Government disposes and
for which it, and it alone, has the public responsibility.
Thus, the
duty of determining how public resources are to be drawn upon and
re-ordered lies in the heartland of Executive Government
function and
domain. What is more, absent any proof of unlawfulness or fraud or
corruption, the power and the prerogative to formulate
and implement
policy on how to finance public projects reside in the exclusive
domain of the National Executive subject to budgetary
appropriations
by Parliament...
Another
consideration is that the collection and ordering of public resources
inevitably calls for policy-laden and polycentric
decision making.
Courts are not always well suited to make decisions of that order.
[51]
To conclude on this aspect, from the point of view of the doctrine of
legality, the State is undoubtedly correct in its assertion
that no
legal framework exists within which the President and the Minister
can lawfully, or are authorised to, fund the legal representation
of
the applicants in the proceedings before the commission. This
reinforces the rule of law and the doctrine of legality, as being

just as foundational to our Constitution as considerations of
fairness, equality and freedom. The State’s decision is
therefore
unassailable. That brings me to the role of Legal Aid SA.
The
case against Legal Aid SA
[52]
Given the concession by Legal Aid that the Legal Aid Act does not
impede the provision of funding in commission proceedings,
and that
it has in fact provided such funding to the families of the deceased
miners, the only question which arises is whether
or not the
differentiation between the two sets of ‘victims’ is
rational and fair.
I
earlier set out the reasoning proffered by Legal Aid SA, which is
that the families of the deceased miners have a ‘substantial,

proximate and material interest in the outcome of the commission’.
In the penultimate paragraph of the letter, dated 18 October
2012,
the following was stated on behalf of Legal Aid SA: ‘We are not
able to determine from your funding request- that there-
will' be- a;
substantial and identifiable benefit to your clients from being
separately represented at the Commission, especially
as the interests
of ail the miners will be protected at the Commission of Inquiry by
their respective unions, namely NUM and AMGU,
who are legally
represented.
[80]
From that letter, two reasons for refusing legal aid to the
applicants, are discernable. The first is that the applicants,

impliedly, do not have a ‘substantial, proximate, and material
interest in the outcome of the commission, There is no merit
in this
assertion. I have demonstrated the applicants' indubitable, direct
and material interest in the outcome of the commission.
The second is
that the applicants’ interests would be adequately protected by
labour unions, NUM and AMCU.
[81]
This is an unjustified assumption that all of the applicants belong
to either of the two unions. But in any event, in terms
of the
commission’s terms of reference, both unions are themselves to
be investigated as possible perpetrators of the injuries
suffered by
the applicants, and there is therefore no room for the assumption
that their interests would necessarily coincide.
Legal Aid SA’s
reasons were met, comprehensively by Maluleke Msirrtang &
Associates, the applicants' attorneys, in their
letter to Legal Aid
SA, dated 5 November 2012. The relevant paragraphs of the letter
read:
The
first unfortunate and rather insensitive statement made in your
letter is the insinuation that that our clients do not have
a
‘substantial, proximate and material interest in the outcome of
the inquiry’, coupled with the arbitrary discrimination
between
the deceased victims on the one hand and those maimed, injured and/or
arrested, on the other.
You may be aware by now that the
chairman of the Commission. Judge Farfam, found your distinction
between the victims to be illogical.
This is because it is clearly
based on the failure to read or appreciate the terms of reference ...
It
should accordingly be clear that apart from identifying potential
perpetrators, the terms of reference postulate at least three
types
of victims in the same breath, namely those killed, those injured,
and those arrested.
There
is accordingly no legal or logical basis for Legal Aid SA to
disqualify and question the interests of our clients in the outcome

of the Commission.’
[82]
In respect of the second reason given by the Legal Aid SA for
refusing to fund the applicants, the attorneys stated:
‘
Your
second reason for declining assistance, that ‘the interests of
all the miners will be protected at the commission by
their
respective unions, namely NUM and AMCU, who are legally represented’,
equally defies logic.
As
you may know it is well documented that almost half of the 272
arrested protestors were not even Lonmin employees, let alone
members
of AMCU or NUM. Even those who are Lonmin employees are not
necessarily members of either AMCU or NUM, hence their stance
to
represent themselves directly at the subsequent negotiation process.
In
any event, and as can be gleaned from the terms of reference, the
unions are cited in the commission as possible perpetrators
or causes
of the injuries and arrests suffered by our clients. For example,
when we brought the plight of our clients (who have
recently been
rearrested) to the attention of the commission, the legal
representative of NUM stated that on record that they were
opposed to
their proposed release. Legal Aid SA however insists that these
opposed interests coincide.’
[83]
I need not say more on this aspect. The contents of the letter
referred to above, are trenchant, and self-explanatory. During

argument, Mr. Notshe SC, counsel for Legal Aid SA, argued that,
despite their non-legal representation, the applicants’ full

and meaningful participation could be ensured through the evidence
leaders; I do not think that this submission is helpful. The
evidence
leaders, who are ail admittedly competent and able counsel, have a
particular role to play, in a neutral manner. They
cannot be expected
to present the partisan interests of any party being investigated by
the commission.
[84]
As pointed out earlier, the applicants have been succinctly
identified for investigation in the first phase of the commission's

investigations for possible criminal liability arising from the death
of their colleagues, and the attempted murder of the police.

Naturally, the evidence leaders have to necessarily, cross-examine
the applicants. St is common cause that the first applicant
was
cross-examined by the evidence leaders. As a result, I do not see
how, under those circumstances, the evidence leaders can
be expected
to safeguard the Interests of the applicants.
[85]
Another contention by the opposing respondents is that the
applicants' application (through their attorneys) was not compliant

with Legal Aid SA’s procedures, as none of the applicants had
individually submitted a separate application to be assessed
on the
basis of the so-called ‘means test'. This is a disingenuous
argument. First, this point was never raised as a ground
for refusing
legal aid to the applicants. I have fully set out in full the reasons
for that refusal. Second, the families of the
deceased miners were
not required to comply with this requirement. Their application
(through their attorneys) was dealt with in
the very manner that
Legal Aid SA now seeks to refute in respect of the applicants.
[86]
There was no requirement that there be individual applications, nor a
suggestion that a joint application by the attorneys
on behalf of the
families was not acceptable. There is no plausible reason why the
applicants were treated differently. What is
more, it appears that
the application on behalf of the families was made, and accepted,
orally. In her Setter to SERI dated 19
October 2012, the CEO of Legal
Aid SA stated the following:
‘
We
refer to your te
lephone discussion
with our Legal Development
Executive... when you sought legal assistance for the families of the
deceased at the Marikana inquiry.
The Legal Aid Guide does not make
provision for the funding of such a matter. However as CEO, I have
exercised my general discretion
in consultation with the Board to
approve legal aid for the families of the deceased
(my
underlining)
Equality
[87]
I turn then to the applicants’ equality contention, based on s
9 of the Constitution. The applicants’ argument
is that the
conduct by Legal Aid SA in differentiating between them and the
deceased miners, is irrational, and infringes their
constitutional
right to equality in terms of s 9(3) of the Constitution, which
provides:
The
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex,

pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.’
[88]
In Harksen v Lane NO
[1997] ZACC 12
;
1998 (1) SA 300
(CC) the Constitutional Court
laid down the stages of an enquiry into a violation of the equality
clause, along the following lines:
(a)
Does the challenged law or conduct differentiate between people or
categories of people? If so, does the differentiation bear
a rational
connection to a legitimate government purpose? If it does not, then
there is a violation of s 9(1). Even if does bear
a rational
connection, it might nevertheless amount to discrimination;
(a)
Does the differentiation amount to an unfair discrimination? This
requires a two- stage analysis:
(i)
Firstly, does the differentiation amount to ‘discrimination’.
If it is on a specified ground, then discrimination
will have been
established. If it is not on a specified ground, then whether or not
there is discrimination will depend upon whether,
objectively, the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity
of persons as human
beings or to affect them adversely in a comparably serious manner
(ii)
Secondly, if differentiation amounts to ‘discrimination’,
does it amount to ‘unfair discrimination’?
If it has been
on a specified ground, then unfairness wiil be presumed. If on an
unspecified ground, unfairness will have to be
established by the
complainant. The test of unfairness focuses primarily on the impact
of the discrimination on the complainant
and others in his or her
situation.
If,
at the end of the enquiry, the differentiation is found not to be
unfair, then there will be no violation of s 9(3) and (4).
(b)
If the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified
under
the limitation clause.
[89]
At para [46] the-court held that differentiation on grounds that,ace.
analogous.to. those listed in s 9(3) will constitute
discrimination.
An analogous ground is one that is ‘based on attributes or
characteristics which have the potential to impair
the fundamental
dignity of persons as human beings, or to affect them seriously in a
comparably serious manner. The court further
enumerated the following
factors to be taken into account in determining whether the
discrimination has an ‘unfair impact':
33
(1)
The position of the complainants in society and whether they have
been victims of past patterns of discrimination. Differential

treatment that burdens people in a disadvantaged position is more
likely to be unfair than burden placed on those who are relatively

well off;
(2)
The nature of the discriminating law or action and the purpose sought
to be achieved by it. An important consideration would
be whether the
primary purpose of the law or action is to achieve a worthy and
important societal goal.
(3)
The extent to which the rights of the complainant have been impaired
and whether there has been an impairment of his or her
fundamental
dignity.
[90]
In President of the Republic of South Africa and Another v Hugo
34
the Constitutional Court contextualised the philosophical nature of
unfairness contemplated In s 8 of the interim Constitution
(the
predecessor to s 9 of the Constitution) as follows:
The
prohibition on unfair discrimination in the interim Constitution
seeks not only to avoid discrimination against people who are
members
of disadvantaged groups. It seeks more than that. At the heart of the
prohibition of unfair discrimination lies a recognition
that the
purpose of our new constitutional and democratic order is the
establishment of a society in which all human beings will
be accorded
equal dignity and respect regardless of their membership of
particular groups. The achievement of such a society in
the context
of our deeply inegalitarian past will not be easy, but that that is
the goal of the Constitution should not be forgotten
or overlooked.’
[91]
The applicants contend that the conduct of Legal Aid SA discriminates
against them on the grounds of ‘social origin’
or ‘social
class’, in that it distinguishes between the deceased miners
and those who were injured. I do not agree
with this classification.
The basis for their differentiation is clearly that they have
survived the shooting. Of course, they
are, as a class, poor and thus
have a common social origin. But that is not the basis on which they
have been differentiated by
Legal Aid SA. This has nothing to do with
their social origin or class. Their differentiation is on the basis
of their survival
of the shooting. However, that basis is not one of
the specified grounds contained in s 9(3). However, is clear from s
9(3) that
it does not contain an exhaustive list of prohibited
grounds of unfair discrimination. In Hoffman v South African Airways
the Constitutional
Court held that ‘at the heart of the
prohibition of unfair discrimination is the recognition that under
our Constitution
all human beings must be accorded equal dignity’.
35
To be considered an analogous ground of differentiation to those
listed in s 9(3) the classification must, therefore, have an adverse

effect on the dignity of the individual, or some other comparable
effect.
36
[92]
Therefore, that it is not specified does not mean that such
differentiation cannot constitute unfair discrimination in terms
in
terms of s 9(3). It simply means that s 9(5) does not assist the
applicants. That clause provides for the presumption of unfair

discrimination on prima facie proof of discrimination on any of the
specified grounds.
As
a result, the applicants will first have to establish that the ground
upon which differentiation has been effected is one which
gives rise
to-unfair discrimination, in interpreting s 9(3), the primary
question is always whether the conduct complained about
constitutes
'unfair discrimination’. In Brink v Kitshoff NO,
37
the Constitutional Court explained the primary purpose of s 8 of the
interim Constitution:
‘
Section
8 was adopted then in the recognition that discrimination against
people who are members of disfavoured groups can lead
to patterns of
group disadvantage and harm. Such discrimination is unfair: it builds
and entrenches inequality amongst different
groups in our society.
The drafters realises that it was necessary both to proscribe such
forms of discrimination and to permit
positive steps to redress the
effects of such discrimination. The need to prohibit such patterns of
discrimination and to remedy
their results are the primary purposes
of s 8 and, in particular, ss (2),(3) and (4)/
[93]
The applicants are a vulnerable group in the context of this case.
They are visited with disadvantages, solely because they
have
survived a police shooting. It is the argument of Legal Aid SA that
the families of the deceased, as a group, differs in standing
from
the applicants In that they require representation to know the facts
upon which their loss had occurred. This, it is the argument,
in the
event that the families intend to pursue civil claims for loss of
support, for example. The irony of this submission is
that it is not
supported by the families of the deceased, who argue that for them to
exercise those rights mentioned by Legal Aid
SA, they require, and
rely on, meaningful participation of the applicants.
[94]
It seems to me that the differentiation between the families of the
deceased and the injured miners is based on the assumption
that the
deceased miners have left behind destitute widows and orphans, while
the injured miners are still able to work and provide-for
their
families. This is a simplistic and fallacious generalisation, which,
without empirical evidence, cannot logically be made.
Take this
analogy. A deceased miner might have left no spouse, children, or any
dependants, while a surviving one, who has dependants,
has been
rendered unemployed because of the injuries he sustained during the
shooting. In .the result I find no logical basis for
this
differentiation.
[95]
Although the basis of differentiation in this case is not a ground
specified in s 9(3), I consider it, in the light of the
above
considerations, a ground which can give rise to the concerns
contemplated in s 9(3). Having regard to the disadvantages brought

upon the applicants by the differentiation on the basis of having
survived the shooting, I conclude that the applicants have
established
discrimination as contemplated in s 9(3). I turn now to
consider whether that discrimination is an unfair one. To determine
that
question, I have to consider the impact of the discrimination on
the applicants.
38
[96]
For that determination, it is necessary to look at the applicants as
a group affected by the discrimination, and the nature
of the
interests which have been affected by the discrimination. In this
regard, I need look no further than the Legal Aid SA’s
letter
to the institute which represents the families of the deceased
miners. The letter is dated 19 October 2012, in which it
is stated
that ‘legal representation afforded to the families will
protect their rights to dignity, justice and ultimately
fair
compensation.’ That is significant, as the converse is true:
absent legal representation, the applicants would not be
able protect
the same rights. The adverse impact on the applicant is self-evident.
I therefore have no difficulty in concluding
that the discrimination
is unfair.
[97]
In any event, I am also of the view that Legal Aid SA’s conduct
would not pass a general rationality requirement, stemming
from the
rule of law in s 1 of the Constitution, as developed by the
Constitutional Court in in Pharmaceutical Manufacturers Association

of South Africa: In re ex parte President of the Republic of South
Africa
39
.
At para [85] the court held that all exercises of public power,
whether they take the form of Jaw or conduct, must be rational:
‘
[l]t
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, it falls short of the standards
demanded by our
Constitution for such action.’
[98]
I conclude, therefore, that the refusal by Legal Aid SA to provide
legal aid to the applicants 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 It therefore
violated the
applicants right to equality guaranteed by s 9 of the Constitution,
it is not necessary to consider whether this violation
was justified.
That consideration does not arise as I am not dealing here with a law
of general application
40
,
and in any event it being common cause now that the Legal Aid Act
does not prohibit the provision of funding in commission proceedings.

It now remains to consider the remedy to which the applicants are
entitled.
[99]
Legal Aid SA argue that its decision not to fund, the, applicants-’
legal, representation should be approached with deference,
as it was
taken after consideration, among others, of the available budgetary
constraints. In my view, that is not a bar to an
effective remedy.
The Constitutional Court has repeatedly reaffirmed the need for
courts to provide an effective remedy for infringement
of fundamental
rights. This applies even where the remedy would impact upon policy
and/or have budgetary implications
41
.
[100]
Mr Notshe urged me, in the event I am inclined to order any relief
against Legal Aid SA, to, at the very least, order it to
‘consider’
granting legal aid to the applicants. Counsel made this submission
relying on Legal Aid SA v S
42
.
There, the Supreme Court of Appeal set aside an order of the High
Court which ordered Legal Aid ‘to provide each of the

respondents with two advocates in private practice to be remunerated
at the maximum of the legal aid tariff. The SCA found that
the court
did not have such powers, based among others, on the separation of
powers. Having arrived to that conclusion, Ponnan
JA said the
following at para [46]:
‘
Finally,
nothing here stated should be construed as being emasculatory of a
court’s legitimate power of review. It is now
well-established
that the control of public power through judicial review is a
constitutional matter. Courts have a duty to fmaliy
determine whether
public power has been lawfully exercised and they would be failing in
that duty were they to hold that the validity
of the exercise of
public power is beyond its jurisdiction. The Constitution places
significant constraints on the exercise of
public power through the
Bill of Rights and the founding principle enshrining the rule of
law.’
[98]
In my view, the present case fails within the ambit of circumstances-
referred: to above, especially in light of my finding
that Legal Aid
SA’s decision to fund legal representation of the families of
the deceased miners, and not the applicants,
cannot be justified on
any rational basis. Public power has not been lawfully exercised by
Legal Aid SA. As a result, I am inclined
to order Legal Aid SA to
provide funding for the applicants’ legal representation in the
proceedings of the Marikana commission.
The application against the
President and the Minister has to be dismissed for reasons stated
earlier. The parties are agreed that
there should not be any costs
flowing from that dismissal. However, Legal Aid SA should be ordered
to pay the applicants’
costs.
[99]
Just to make it clear about the nature and content of the applicant’s
legal funding. So far the applicants have been
represented by two
counsel, one senior junior and a junior counsel and a firm of
attorneys. Without being prescriptive to Legal
Aid SA, it would be
commendable for that legal team to be maintained. I mention this in
order to clarify that the principle of
equality arms does not mean
equal representation on the same scale as the State parties.
[100]
In the result I make the following order:
1.
The application for amendment of the applicants’ notice of
motion is granted in terms of paragraph 2 of the notice of amendment

dated 5 September 2013;
2.
The application against the first and second respondents is
dismissed;
3.
The third respondent’s decision refusing legal funding to the
applicants for their participation in the fourth respondent,
is
reviewed and set aside;
4.
The third respondent is ordered to forthwith take steps to provide
legal funding to the applicants for their participation in
the fourth
respondent;
5.
The third respondent is ordered to pay the applicants’ costs;
6.
Save for the costs order between the applicants and the third
respondent referred to above, there shall not be any costs order

between any of the parties.
T.M
MAKGOKA
JUDGE
OF THE HIGH COURT
DATES
OF HEARING : 25 & 26 SEPTEMBER 2013
JUDGMENT
DELIVERED : 14 OCTOBER 2013
FOR
THE APPLICANTS: ADV DC MPOFU
INSTRUCTED
BY : MALULEKE MSIMANG & ASSOCIATES,
PRETORIA
FOR
THE 1st AND 2nd RESPONDENTS : ADV. M.M. OOSTHUIZEN SC
ADV.
H.O.R MODISA ADV. K.F. MAGANO
INSTRUCTED
BY:STATE ATTORNEY, PRETORIA
FOR
THE 3rd RESPONDENT : ADV. V.S. NOTSHE SC
ADV.
T.J. MACHABA
FOR
THE 7th RESPONDENT : ADV. D. NTZEBEZA SC
:
ADV. NX LEWIS
INSTRUCTED
BY: SOCIO-ECONOMIC RIGHTS INSTITUTE
FOR
THE 8th RESPONDENT: ADV. H.L. BARNES
INSTRUCTED
BY : SOCIO-ECONOMIC RIGHTS INSTITUTE
FOR
THE 17th RESPONDENT: ADV. J. BRICKHILL (Heads of argument co­
signed
with ADV. H. VARNEY)
INSTRUCTED
BY : LEGAL RESOURCES CENTRE
1
The
class action has been certified in terms of s 38 of the Constitution
by this court during the hearing of part A of the application.
See
Magidiwana and Others v President of the Republic of South Africa
and Others (No. 1) [2013] ZAGPPHC 220 para 27
2
Magid'mana
and Others v President of the Republic of South Africa and Others
(No. 2)
[2013] ZACC 27).
3
The original notice of
motion was amended without objection during the hearing of part A.
4
Legal
Resources Centre has been erroneously cited as the seventeenth
respondent It is not a party to the
commission.
It is a public interest law firm that represents the Ledingoane
family in phase 1 of the inquiry and the Bench Marks
Foundation, a
non-governmental organisation, in phase 2.
5
Mr. Ledingoane was one of the striking and protesting miners shot
dead by the police on 16 August 2012. The . Ledingoane family
was a
party to the commission until they withdrew pending the resolution
of the applicants’ funding issue. The family withdrew
in
solidarity with the applicants.
6
Mooiman
v
Estate
Moolman
1927 CPD 27
at 29.
7
Affordable
Medicines Trust
v
Minister
of Health
2006 (3) 247 (CC) at 261C).
8
See
Municipal
Manager: Ouakeni Local Municipality and Another v FV General Trading
CC
2010 (I) SA 356 (SCA) para 26.
9
Magldmana v
President of the Republic of South Africa & Others
(No. 2) paras 15 and 16.
10
Bernstein and
Others
v
Bester
and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) para 105.
11
2005
(3) SA 589
(CC); 2005 (4) BCLR para 61
12
[2007] ZACC 26
;
2008 (3) SA 383
(CC)
para 55
13
2008(2)
SA 24 (CC)
14
2000 (7) BCLR 754
(Tk)
15
2002(6) SA 330 (TkH).
16
Item 24 of schedule 6 to
the final constitution, which deals with transitional arrangements,
preserved s 236(6) of the interim
constitution ‘subject to
consistency with the new Constitution’.
17
1984
(4) SA 680
(W) at 689B.
18
3997
(3) SA 204 (A).
19
[1970]
3ALL LR 535
20
Niderost-Huber v
Switzerland
[1997] ECHR 18990
para 23 (18 Febrauary 1997).
21
AI butt
v
Centre for
the Study of Violence
&
Reconciliation
2010
(3) SA 293
(CC) para 71.
22
[1995] ECHR 31
;
[1996] 21 EHRR 97
para 161
23
Judgment delivered on 4 May 2001
24
2010 (3) SA 293
(CC)
para 58.
25
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC).
26
Adopted in
its official logo.
27
SA TA WU & Another v Garvas and Others
20 i 2 m BCLR 840 (CC): 2013 HI SA 83
(CO
para 63.
28
In
Sidumo
v
Rustenburg
Platinum Mines Ltd
2008 (2) SA
24
(CC) para 85.
29
F
irst National
Bank of SA Ltd t/a Wes bank
v
Commissioner,
South African Revenue Service and Another; First National Bank of SA
Lid i/a Wesbank
v
Minister
of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC) Ackermann J referred with approval to this
passage,
30
1990 (1) SA 280
(A) at 285E-1.
31
Above at para S2
32
2012(6) SA 223 (CC).'
33
Barksen
v Lane NO, paras 50 and 51
34
1997
{4} SA 1 {CC}
[1997] ZACC 4
;
(1997 (6) BCLR 708)
para 41
35
2001 {1} SA 1 (CC) para
27.
36
President of the
Republic of South Africa v Hugo
1997 (4) SA 1
(CC) paras 41-43.
37
[1996] ZACC 9
;
1996 (4)) SA 197
(CC) para 42.
38
Harksen
(above) paras 51 and 53
39
[2000] ZACC 1
;
2000
(2) SA 674
(CC)
40
Sae August and
Another v Electoral Commission and Others
[1999] ZACC 3
;
1999
(3) SA 1
(CC);
1999 (4) BCLR 363
(CC) ■ para 23.
41
See
for example
Minister
of Health and Others
v
Treatment
Action Campaign and Others
(No .2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC) paras 98-99;
42
[2011] All SA 378
(SCA)