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[2013] ZACC 27
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Magidiwana and Others v President of the Republic of South Africa and Others (CCT 100/13) [2013] ZACC 27; 2013 (11) BCLR 1251 (CC) (19 August 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 100/13
[2013] ZACC 27
In the matter between:
MZOXOLO MAGIDIWANA AND OTHER INJURED
AND ARRESTED PERSONS
.....................................................................
First
Applicant
FAMILIES OF DECEASED PERSONS
.................................................
Second
Applicant
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION
........................................................................
Third
Applicant
LEDINGOANE FAMILY
.........................................................................
Fourth
Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
......................
First Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.................................................................................
Second
Respondent
LEGAL AID SOUTH AFRICA
..............................................................
Third
Respondent
MARIKANA COMMISSION OF INQUIRY
.......................................
Fourth
Respondent
NATIONAL COMMISSIONER OF POLICE
.........................................
Fifth
Respondent
LONDON MINING COMPANY PLC
....................................................
Sixth
Respondent
SA HUMAN RIGHTS COMMISSION
..............................................
Seventh
Respondent
and
BLACK LAWYERS ASSOCIATION
.........................................................
Amicus
Curiae
Decided on : 19 August 2013
CORAM: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and
Zondo
J
JUDGMENT
THE COURT
:
[1] The
first applicants (applicants) are members of a class of persons who
were arrested or injured after the shooting of a number
of people by
members of the South African Police Service at the Marikana mine
during August 2012. The Marikana Commission of
Inquiry (Commission)
was established by the President to investigate and report on
“matters of public, national and international
concern arising
out of the tragic incidents at the Lonmin Mine in Marikana”.
1
The Commission commenced its work on 1 October 2012 and at the time
when the applicants approached the North Gauteng High Court,
Pretoria (High Court) its term had been extended to 30 October
2013.
[2] To
cover the legal and other expenses incurred by their participation
in the Commission’s proceedings, the applicants
procured
funding from a non-governmental entity, the Raith Foundation.
However, this funding was only secured for the six-month
period
from October 2012 until March 2013. The applicants have been unable
to secure funding for the period April 2013 until
October 2013.
Neither have they been able to secure contingent funding should the
Commission’s term be extended once again.
2
[3] The
record before us indicates that the applicants approached the
Minister of Justice and Constitutional Development (Minister)
to
fund the costs of their continued participation in the Commission’s
proceedings. The request was declined on the basis
that the Minister
could 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.”
[4] The
applicants also sought funding from Legal Aid South Africa, a
statutory body whose function is to “render or make
available
legal aid to indigent persons and to provide legal representation at
State expense as contemplated in the Constitution”.
3
This request was also denied, on the bases that (a) Legal Aid South
Africa was under severe budgetary constraints and (b) its
policy
documents did not make provision for it to fund legal expenses
incurred at commissions of inquiry.
[5] The
applicants brought an urgent application before the High Court
seeking relief in two parts: urgent temporary relief in
Part A of
the notice of motion and final relief in the main application in
Part B. The relief sought in both parts was of the
same nature,
namely that the first, second and third respondents – the
President, the Minister and Legal Aid South Africa
– must
provide or ensure legal aid at state expense to the applicants in
the proceedings before the Commission. Initially,
an order was also
sought to interdict the Commission from proceeding with its work
pending final determination of the relief
sought in the main
application, but this was abandoned and the notice of motion was
amended to seek for the temporary provision
of legal aid at state
expense instead.
[6] What
was at issue in the High Court was the first part of the relief
sought. Raulinga J dismissed the urgent application for
temporary
relief. The applicants now seek leave to appeal urgently and
directly to this Court “against those portions of
the judgment
and order . . . which dealt with the merits of Part A and/or Part B
of the relevant application”. This is
a rather strange way of
putting things. What may be appealed against is the order made by
the High Court. The only relevant part
of the order that needs
consideration is the dismissal of the application for the temporary
relief sought in Part A.
4
[7] The
application for leave to appeal must be refused for the reasons that
follow.
[8] This
Court is not well-equipped to deal with urgent matters in general.
5
Where an appeal relates to a temporary order, this difficulty
becomes even more acute. In
National Treasury and Others v
Opposition to Urban Tolling Alliance and Others
,
6
Moseneke DCJ stated:
“
It is
so that courts are rightly reluctant to hear appeals against interim
orders that have no final effect and that in any event
are
susceptible to reconsideration by a court when the final relief is
determined. That, however, is not an inflexible rule.
. . .
This Court has granted leave to
appeal in relation to interim orders before. It has made it clear
that the operative standard
is ‘the interests of justice’.
To that end, it must have regard to and weigh carefully all germane
circumstances.
. . .
A court must also be alive to
and carefully consider whether the temporary restraining order would
unduly trespass upon the sole
terrain of other branches of
government even before the final determination of the review
grounds. A court must be astute not
to stop dead the exercise of
executive or legislative power before the exercise has been
successfully and finally impugned on
review. This approach accords
well with the comity the courts owe to other branches of government,
provided they act lawfully.
Yet another important consideration is
whether in deciding an appeal against an interim order, the
appellate court would in effect
usurp the role of the review court.
Ordinarily the appellate court should avoid anticipating the outcome
of the review, except
perhaps where the review has no prospects of
success whatsoever.
. . .
A court must carefully consider
whether the grant of the temporary restraining order pending a
review will cut across or prevent
the proper exercise of a power or
duty that the law has vested in the authority to be interdicted.
Thus courts are obliged to
recognise and assess the impact of
temporary restraining orders when dealing with those matters
pertaining to the best application,
operation and dissemination of
public resources. What this means is that a court is obliged to ask
itself not whether an interim
interdict against an authorised state
functionary is competent but rather whether it is constitutionally
appropriate to grant
the interdict.”
7
(Footnotes omitted.)
[9] The
High Court, in rejecting the applicants’ claim for relief,
referred to these principles:
“
Although
in this case, the court dealt with a temporary restraining order,
the principle applied is the same. I need therefore
to ask myself
not only whether an interim interdict against an authorised state
functionary is competent, but rather whether
it is constitutionally
appropriate to grant the interdict. The funds allocated to the
second and third respondents is a result
of an executive decision
about ordering of public resources, over which the government
disposes and for which it, and it alone
has the public
responsibility. The duty of determining how public resources are to
be drawn upon and reordered lies in the heartland
of executive
government function domain. I can only grant such an order if there
is proof of unlawfulness or fraud or corruption.
I do not find any
in this case. Therefore, I will not interfere with the power and the
prerogative to formulate and implement
policy on how to finance
public projects and even how the applicants must be funded. That
power resides in the exclusive domain
of the national executive
subject to budgetary . . . inevitably call for policy-laden and
polycentric decision making. Courts
are not always well suited to
make decisions of that order –
National
Treasury
supra. There are also other competing interests, such as,
food-security, education, health and human-settlement.”
8
[10] This
was a prudent and appropriate course to adopt. There is indeed no
fraud or corruption claimed here and the High Court’s
finding,
that there was no unlawfulness either, is a conclusion that must be
treated with deference in an appeal against an interim
order. As
stated in
National Treasury
, “another important
consideration is whether in deciding an appeal against an interim
order, the appellate court would
in effect usurp the role of the
review court. Ordinarily the appellate court should avoid
anticipating the outcome of the review,
except perhaps where the
review has no prospects of success whatsoever”.
9
[11] With
that caution in mind, we nevertheless consider it appropriate, in
the light of the clear countervailing public interest
in the
Commission’s work and the outcome of this matter, to consider
the High Court’s finding that the respondents’
refusal
to provide legal aid did not justify the granting of the interim
relief sought by the applicants. Our consideration of
the High
Court’s finding must not, however, be seen as anticipating the
outcome of the main review application and the
final relief sought
there.
[12]
There are only three provisions in the Bill of Rights that
explicitly entitle someone to claim legal representation at state
expense. One provides that a child has the right to have a legal
practitioner assigned to him or her by the state at state expense
in
civil proceedings affecting the child, if substantial injustice
would otherwise result.
10
Another is that everyone who is detained has the right to have a
legal practitioner assigned to him or her by the state at state
expense, if substantial injustice would otherwise result.
11
The third is that every accused has a right to a fair trial, which
includes the right to have a legal practitioner assigned to
him or
her by the state and at state expense, if substantial injustice
would otherwise result.
12
These do not apply here. The applicants are neither children nor
detained persons, and the proceedings that are the subject-matter
of
this application are not a civil or criminal trial.
[13] The
applicants sought further succour for their claim for state-funded
legal representation by alleging infringements of
section 34 (access
to courts)
13
and section 9 (equality)
14
of the Constitution, and by relying on general considerations of
fairness. It suffices for the limited purpose referred to above,
to
state that none of these arguments warrants our intervention in the
order granted by Raulinga J.
[14]
Section 34 deals with disputes “that can be resolved by the
application of law”. The Commission’s findings
are not
necessarily to be equated to a resolution of legal disputes by a
court of law.
[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.
15
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 closely 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
16
to render or make available legal aid to indigent persons and to
provide legal representation at state expense as contemplated
in the
Constitution.
17
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.
[17] In
the result the application for leave to appeal should be dismissed,
both because there are no reasonable prospects of
success in
relation to challenging the dismissal of the application for interim
relief in the High Court, and because it is not
in the interests of
justice to grant leave in the particular circumstances of this case
where the disputed issues still have
to be determined in the main
review application.
[18] It
hardly needs stating that a costs order is not called for.
Order
[19] In
terms of rule 19(6)(b) the application for leave to appeal is
dismissed.
.
1
Proclamation
50 of 2012, published in
Government Gazette
35680 of 12
September 2012. The details regarding the appointment and terms of
reference are available on the Commission’s
website,
http://www.marikanacomm.org.za/.
2
The
Commission was originally intended to run for four months.
3
Section
3 of the Legal Aid Act 22 of 1969.
4
The
full order reads:
“
(a) The application is
urgent.
(b) The class action is certified.
(c) The main application in Part A is dismissed.
(d) There is no order as to costs.”
5
Ramakatsa
and Others v Magashule and Others
[2012] ZACC 31
;
2013 (2) BCLR
202
(CC) at para 39.
6
[2012]
ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) (
National
Treasury
).
7
Id
at paras 24-6 and 66.
8
Magidiwana
and Another v President of the Republic of SA and Others
[2013]
ZAGPPHC 220 at para 44.
9
National
Treasury
above n 6 at para 26.
10
Section
28(1)(h) of the Constitution.
11
Section
35(2)(c).
12
Section
35(3)(g).
13
Section
34 provides:
“
Everyone has the right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
14
Section
9 provides:
“
(1) Everyone is equal before
the law and has the right to equal protection and benefit of the
law.
(2) Equality includes the full and equal enjoyment of
all rights and freedoms. To promote the achievement of equality,
legislative
and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair
discrimination may
be taken.
(3) 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.
(4) No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in terms of
subsection (3).
National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed
in subsection (3) is unfair unless it is established that the
discrimination
is fair.”
15
Section
84(2)(f) provides:
“
The President is responsible
for appointing commissions of inquiry”.
16
22
of 1969.
17
Id
at section 3.