About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2015
>>
[2015] ZACC 28
|

|

Legal Aid South Africa v Magidiwana and Others (CCT188/14) [2015] ZACC 28; 2015 (6) SA 494 (CC); 2015 (11) BCLR 1346 (CC) (22 September 2015)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 188/14
In the matter
between:
LEGAL AID SOUTH
AFRICA
Applicant
and
MZOXOLO
MAGIDIWANA
First Respondent
INJURED AND
ARRESTED PERSONS
Second
and Further Respondents
PRESIDENT OF THE
REPUBLIC OF
SOUTH
AFRICA
Third Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Fourth Respondent
MARIKANA
COMMISSION OF
INQUIRY
Fifth Respondent
PARTIES TO THE MARIKANA
COMMISSION OF
INQUIRY
Sixth to Nineteenth Respondent
Neutral citation:
Legal Aid South Africa v Magidiwana and Others
[2015] ZACC 28
Coram:
Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ.
Judgments:
Theron AJ (main): [1] to [30]
Nkabinde J (dissenting): [31] to [123]
Heard on:
14 May 2015
Decided on:
22 September 2015
Summary:
Mootness — no practical effect —
not in the interests of justice — context specific
Interpretation — section
34 of the Constitution — right
of access to courts or another independent and impartial tribunal or
forum — right to
legal representation at state expense before
commissions of inquiry — no obligation on Legal Aid South
Africa to fund legal
representation
ORDER
On appeal from the Supreme
Court of Appeal (hearing an appeal from the Gauteng Division of the
High Court, Pretoria per Makgoka
J):
1.
Leave to file a replying affidavit is
granted.
2.
Application for leave to appeal is dismissed.
3.
The applicant must pay the costs of the first, second and further
respondents.
JUDGMENT
THERON AJ (Moseneke
DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Molemela AJ and
Tshiqi AJ concurring):
Introduction
[1]
The applicant, Legal Aid South Africa
(Legal Aid),
[1]
seeks leave to appeal against an order of the
Supreme Court of Appeal which dismissed an appeal against a decision
of the Gauteng
Division of the High Court, Pretoria (High Court).
The High Court ordered that it “take steps” to
provide
funding to enable the first, second and further respondents
(miners) to be legally represented at the Marikana Commission of
Inquiry
(Marikana Commission or Commission).  They are people
arrested or injured during or after the tragic events that occurred
at the Lonmin Plc Mine in Marikana during August 2012.  The
Supreme Court of Appeal dismissed Legal Aid’s appeal on the

basis that it was moot.
[2]
The miners oppose the application,
contending that the determination of the appeal will have no
practical effect.  The eighth
respondent, the families of
persons who were killed during the shootings at Marikana (families),
and the ninth respondent, the
Association of Mineworkers and
Construction Union (AMCU), as well as the eighteenth respondent, the
family of John Kutlwano Ledingoane,
a miner killed at Marikana
(Ledingoane family), also oppose the application.
[3]
The President of the Republic of South
Africa (President), the Minister of Justice and Constitutional
Development (Minister), and
the Commission, the third, fourth and
fifth respondents, respectively, did not participate in the
proceedings in this Court.
Factual background
[4]
On 26 August 2012, the President
established the Commission with the mandate “to investigate
matters of public, national and
international concern arising out of
the events at the area commonly known as the Marikana Mine”.
The events were prompted
by a strike for wage increases by
employees of Lonmin Plc Mine in Marikana, located near Rustenburg,
from 9 to 18 August 2012.
The events “led to the deaths
of approximately 44 people, more than 70 persons being injured,
approximately 250 people being
arrested and damage and destruction to
property”.
[2]
[5]
The Commission was mandated to inquire into
and make findings and recommendations on, amongst others: (a) the
conduct of Lonmin,
the South African Police Services (SAPS), AMCU and
the National Union of Mineworkers (NUM); (b) the role of the
Department of Mineral
Resources or any other government departments
or agencies; and (c) the conduct of individuals and loose groupings
in promoting
a situation of conflict and confrontation which may have
given rise to the tragic incident.
[6]
The nature of the miners’ involvement
in the incident was an object of inquiry before the Commission.
On 15 October
2012, the miners requested that Legal Aid fund their
legal representation before the Commission.
[3]
By the time of the miners’ request, the CEO
of Legal Aid, in the exercise of her discretion, had already
committed to funding
legal representation for the families.  She
declined to grant the subsequent request.
[7]
Legal Aid supported its CEO’s
decision to fund the families and not the miners on various bases.
It cited severe budgetary
constraints; that the families had a
substantial and material interest in the outcome of the inquiry,
while there would be no substantial
and identifiable benefit for the
miners to be separately represented.  Moreover, the families
consisted of women, children
and elderly persons who are all
recognised as vulnerable groups.  Legal Aid was also of the view
that the miners’ interests
would be protected at the Commission
by their respective unions.  In addition, Legal Aid contended
that the families’
representation at the Commission was
essential as they, unlike the miners themselves, were not present
during the events at Marikana,
and thus could not brief legal
representatives to further any legal claims.
[8]
The miners received interim private funding
from the Raith Foundation for legal representation before the
Commission from October
2012 to March 2013. After this period, the
miners were unable to secure further private funding.
Litigation history
[9]
The miners filed an application in the High
Court, comprising two parts.  Part A was brought on an
urgent basis and sought
interim funding for the miners’ legal
representation before the Commission.  The High Court dismissed
Part A on 30 July
2013.  This Court dismissed the
application for leave to appeal that decision on 19 August 2013.
[4]
Part B, the subject of this application,
challenged the failure or refusal of the President, the Minister and
Legal Aid to provide
the miners with state funded legal
representation.
[10]
The High Court concluded that “no
legal framework exists within which the President and the Minister
can lawfully, or are
authorised to, fund the legal representation”
of the miners
.
[5]
But the Court found that Legal Aid’s
decision to refuse legal assistance was irrational and inconsistent
with sections 9 and
34 of the Constitution.
[6]
It found that the decision to fund the families’
representation, and not the miners’, irrationally and unfairly
distinguished
between the two groups.  Legal Aid was therefore
obliged to fund the miners’ legal representation.
[7]
Legal Aid appealed to the Supreme Court of Appeal.
Before the hearing of the appeal, Legal Aid reached an
agreement with the
miners to provide funding for the remainder of the
Commission.
[8]
[11]
The Supreme Court of Appeal dismissed the
appeal on the basis that, under section 16(2)(a)(i) of the Superior
Courts Act,
[9]
the appeal and any order granted would not have
any practical effect or result because “however the appeal
turns out, the
position of the respondents will remain unaltered and
the outcome, certainly as far as this case is concerned, will be a
matter
of complete indifference to Legal Aid”.
[10]
The Court concluded that no
discrete legal
issue of public importance arose which, despite the mootness,
justified a consideration of the merits.
[11]
The Court split on whether it did have a
discretion to enter into the merits of the appeal.
[12]
But it unanimously found that, if it had a
discretion, it would exercise it against Legal Aid.
Leave to file a replying
affidavit
[12]
Legal Aid sought to file a replying
affidavit, in response to allegations raised by the participating
respondents in their answering
affidavits, regarding the developments
in the legislative framework governing Legal Aid’s funding
decisions since the High
Court’s decision.  The changes in
the legislative framework speak to the mootness of the application.
Legal Aid
ought to be granted an opportunity to respond.  It is
therefore in the interests of justice to grant leave to file the
replying
affidavit.
Leave to appeal
[13]
Legal Aid submits that this application
raises constitutional issues as well as arguable points of law of
general public importance,
and that it is in the interests of justice
for this Court to hear the appeal.  It contends that the High
Court judgment lays
down incorrect principles of law – in
particular, that the right embodied in section 34 of the Constitution
applies to commissions
of inquiry,
[13]
and that the content of the right includes state-funded legal
representation to parties before a commission.  Legal Aid

argues that this principle will be of general application to future
analogous cases.  It contends that the principle will
impact the
work of Legal Aid and its CEO’s exercise of discretion in
funding decisions related to other commissions and investigative

tribunals, like a request for funding of an inquest.
[14]
The respondents
[14]
concede that the matter raises constitutional issues but argue that
it is not in the interests of justice for this Court to hear
the case
as it is moot.  They point to the following developments after
the Supreme Court of Appeal heard the appeal: first,
that the
Commission completed its work on 14 November 2014; second, that
in December 2014, Legal Aid and the miners concluded
a written
agreement in accordance with their earlier agreement, which finally
determined the funding issue; and third, that in
December 2014, Legal
Aid paid the miners’ legal fees in full, as agreed, and
disavowed any right to claim the money back
if this appeal is
successful.
Is the matter moot?
[15]
This Court has exercised its appellate
jurisdiction in cases that were moot between the parties but where
the interests of justice
nevertheless justified deciding an
appeal.
[15]
[16]
It is common cause that the legislative
scheme governing Legal Aid’s funding decisions has changed
since the proceedings in
the High Court.  Section 3A(1)(a) of
the 1969 Act required the board of Legal Aid, in consultation with
the Minister, to publish
a Legal Aid Guide which includes the
particulars of the scheme under which legal aid is made available and
the procedure for its
administration.  The decision of the CEO
of Legal Aid, which was considered by the High Court, was made
pursuant to item 10.2.3(a)
of the Legal Aid Guide 2012
(Guide).
[16]
[17]
In 2014, and after the decision in the High
Court, the Guide was amended to include item 4.20 (2014 Guide).
[17]
This specifically made provision for funding legal
representation at commissions in two scenarios.  These were
where
funding was made available by the establishing authority; and,
where not, for Legal Aid to provide funding in certain circumstances

set out in the Guide.  Decisions on funding commissions of
inquiry were no longer to be dealt with in terms of the CEO’s

discretion but rather under a comprehensive amendment to the Guide.
The 2014 Guide has again been amended, this time,
by the
deletion of those provisions relating to the scenario where funding
is not provided by the establishing authority.
[18]
[18]
Save for requests pending under the old
statute, any funding requests similar to that of the miners will be
dealt with in terms
of the new legislative framework.  This may
render the High Court judgment irrelevant.
[19]
In any event, it is not for this Court to speculate on the
practical impact of the legislative amendments on Legal Aid.
It
is also unnecessary to decide this point for the purposes of this
matter.
[19]
The Supreme Court of Appeal recorded the
argument advanced by Legal Aid on why the matter was not moot:
“
[
Legal
Aid
]
accepts
that the decision of the High Court was made in the context of the
specific circumstances of this case and that, as the
High Court made
plain, its judgment was not to be construed as ‘authority for
the proposition that in all commissions of
inquiry, there is a right
[
to
]
state-funded legal representation
’.
[Legal Aid] contended, however, that in ordering it to provide legal
funding to the applicants for their participation
in the Commission,
the High Court had usurped the discretion of the CEO in what is
essentially a complex polycentric enquiry, and
supplanted its
decision for that of [Legal Aid].  That decision, so the
contention proceeded, potentially opens the floodgates
to claims on
[Legal Aid’s] scarce resources and leaves its decision to
refuse applications for funding vulnerable to judicial
scrutiny in
the future.  Accordingly, so we were urged, this is an
appropriate matter for the exercise of this court`s discretion
to
allow the appeal to proceed.”
[20]
(Emphasis added.)
[20]
At the hearing, Legal Aid contended
somewhat differently.  It now argued that the High Court
judgment is indeed authority that
section 34 includes the right to
state funded legal representation in commissions of inquiry in
certain instances.  However,
it did not suggest that the Supreme
Court of Appeal was inaccurate in capturing its original argument.
This represents a
distinct change of tack.
[21]
The argument that the High Court judgment
lays down principles applicable not only to the Marikana Commission
but also to other
inquiries and investigative tribunals is
unpersuasive.  The High Court was careful to circumscribe the
application of the
judgment to the singular circumstances surrounding
the Marikana Commission.
[21]
Thus the extent to which the findings could bind Legal Aid in future
cases would be very narrow and indeed so rare as to
be negligible.
[22]
The High Court stated that the possibility
of constitutional rights being adversely affected by the outcome of
the Commission means
that section 34
could
apply.  The Court concluded that the preferable view is that
the
right to legal representation at commissions is not absolute but
depends on context
:
“
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 section 34 of the Constitution.  At
[a] conceptual level, the general proposition that
the proceedings of
commissions of inquiry fall outside the scope of section 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 the 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.
.
. . in each commission regard would be had to the context-specific
factors of the commission to determine whether section 34 finds

application.”
[22]
(Emphasis added.)
It is clear from the
judgment that whether the right to representation arises will depend
on the context of each commission and
would only be granted in
exceptional and rare circumstances.
[23]
The High Court was at pains to confine the
effect of the judgment to the Marikana Commission and the particular
set of circumstances
with which it was confronted:
“
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.”
[23]
[24]
The High Court emphasised that its decision
was based on the facts of this solitary matter.  It carefully
spelled out that
the decision found only that the miners involved in
the Marikana Commission ought to be provided with state-funded legal
representation
under section 34.  Previous cases have already
delineated where this section does apply to commissions.
[24]
[25]
Significantly, the High Court’s
decision on legal representation funded by Legal Aid was not based
solely on the conclusion
that section 34 applies to the Commission.
The conclusion on the reach of the section was one of the building
blocks towards
the outcome at which that Court arrived.  Having
found that section 34 applies and that parties that appeared
before
the Commission were entitled to be represented by lawyers, the
High Court proceeded to determine whether the miners should be
granted
legal representation at state expense.
[25]
The High Court made a decision based on the unique
circumstances of the Marikana Commission, in the context of the
reasons
advanced by Legal Aid not to fund the miners, on the one
hand, and to fund the families, on the other.
[26]
It must be emphasised that the entitlement to legal representation
for parties appearing before the Commission was not in
dispute before
the High Court.  All other parties, except the miners, had legal
representation including representation that
was funded by Legal Aid.
[26]
Therefore, the construction the High Court
assigned to section 34 to the effect that the section applies to
commissions like the
Marikana Commission, imposes no obligation on
Legal Aid to fund legal representation.  The decision and the
discretion remain
with Legal Aid.  The decision of the High
Court will have no practical effect on any of the parties – in
particular
on Legal Aid and its future decisions in respect of
funding.
[27]
If in future parties that appear before a similar commission require
legal representation at state expense, they will have
to apply to
Legal Aid which will consider the application in terms of the
relevant law and regulations.  If the application
does not meet
the requirements for funding, Legal Aid will be free to decline it,
regardless of the fact that section 34 applies
to the matter before
the commission.  This is so because even in criminal cases, the
Constitution does not guarantee legal
representation at state expense
in all matters.  The right to claim legal representation at
state expense is limited to cases
where substantial injustice would
occur.
[28]
Even where this right is available to an applicant, Legal Aid may
still refuse to fund legal representation, if for example
the
applicant is a person who indisputably can afford to pay for legal
representation.
[27]
That similar dramatic facts will be
replicated in a future analogous case is unlikely and would, in any
event, provide a live factual
matrix for this or another court to
properly determine the application and scope of section 34.  The
present case is not the
appropriate vehicle for engaging in this
exercise.
[28]
There ought to be compelling public
interest considerations to cause this Court to entertain a matter
that is moot between the parties.
There are none in this
matter.  Legal Aid has not advanced any exceptional
circumstances why this Court should exercise
its discretion to hear
the matter anyway.
[29]
Costs
[29]
There are no exceptional circumstances that
justify a departure from the ordinary position that costs follow the
result.  The
families, AMCU and the Ledingoane family do not
seek to recover their costs.  Thus Legal Aid is ordered to pay
the costs of
the miners only.
Order
[30]
The following order is made:
1.
Leave to file a replying affidavit is granted.
2.
Application for leave to appeal is dismissed.
3.
The applicant must pay the costs of the first, second and further
respondents.
NKABINDE J:
Introduction
[31]
I have read the judgment by my sister
Theron AJ (main judgment).  I agree that leave to file a
replying affidavit should be
granted and that the dispute between the
parties is moot.
[30]
However, I am of the view that it is in the public interest for this
Court to decide the matter.  As a result, I am
unable to agree
with the conclusion the main judgment reaches.  I would grant
leave to appeal, uphold the appeal, set aside
the order of the
Supreme Court of Appeal and substitute its order with an order
dismissing the application in the High Court.
[32]
The High Court judgment stands for the
proposition that section 34 of the Constitution provides in at least
certain cases for the
right, to which Legal Aid is obliged to give
effect, to legal representation before commissions of inquiry, and
delineates the
considerations according to which that right and
corresponding obligation will arise.  To the extent I could
ascertain, that
proposition has no direct support in our
jurisprudence.  It may well be that the decision of the High
Court pertains to a
particular set of facts.  However, its
implications for Legal Aid and those who seek to benefit from
its assistance are,
in my view, potentially of great significance.
[33]
Under the rubric of leave to appeal I
address various topics.  I set out in detail how the High Court
judgment sets a legal
precedent, demonstrating in particular that,
contrary to the main judgment, the High Court judgment rested on a
novel and expansive
interpretation of section 34.  I then
describe why that Court’s findings, regarding the scope and
meaning of section
34, cannot be confined to this particular case but
will have important future implications for Legal Aid’s
statutory mandate
as well as indigent and vulnerable people who would
otherwise benefit from the fulfilment of that mandate.  After
determining
that it is in the interests of justice to decide the
matter, I consider the merits.
Factual background and
relevant legislative provisions
[34]
As my analysis will benefit from a greater
exposition of the facts than is provided by the main judgment, it is
necessary to describe
the background to this application in some
detail.  The miners launched an application in the High Court.
They are members
of a class of approximately 300 people some of whom
were arrested and injured during an unprotected wage strike by
employees of
Lonmin Plc (Lonmin), while working at its Platinum Mine
in Marikana, North West Province in August 2012.  The events
surrounding
the miners’ strike resulted in the deaths of
44 people including 34 miners, injuries to more than 78
people and
the arrests of 259 people.
[35]
On 12 September 2012, the President
appointed a commission to investigate matters of public, national and
international concern
arising out of the events, and to inquire into
and make recommendations on them (Commission).
[31]
Regulation 8 of the regulations adopted pursuant to the Terms of
Reference provided that “[a]ny person appearing before
the
Commission may be assisted by an advocate or an attorney”.
However, the President did not make specific funds available
to the
participants for the purpose of obtaining legal representation.
[36]
In light of their indigent status, the
miners sought funding for their legal representatives from the
Minister.  The request
was refused on the basis that there was
no legal framework through which government could contribute to the
legal expenses of any
of the parties who participated in the
Commission.  In his response, the Minister said that Legal Aid
is the only existing
framework through which the State can provide
legal assistance to those who meet the requirements for the
assistance.  He
specifically said that Legal Aid is not intended
to provide funding for representation before commissions of
inquiry.
[32]
The miners made a similar request for funding to Legal Aid.
[37]
On 18 October 2012, Legal Aid informed the
miners that although the Guide
[33]
made no provision for the funding of commissions of inquiry, “mindful
of the tragic loss of life arising out of the incident
at Marikana”
and through the exercise of the CEO’s discretion, it had—
“
already
taken the decision to fund the legal representation for the families
of the deceased who have a substantial, proximate and
material
interest in the outcome of the inquiry.  We are therefore
already committed to funding the legal team for the families
of the
deceased who have lost a breadwinner.
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 all the miners will be protected at the Commission
of Inquiry by
their respective unions . . . .
In
light of the above and severe budget constraints, we regret to inform
you that we are not in a position to provide your clients
with legal
aid funding at the Marikana Commission of Inquiry.”
[38]
The miners wrote to Legal Aid that they did
not seek to alter Legal Aid’s decision which, they said, was
Legal Aid’s
privilege and entitlement, but to correct its
“glaring misconceptions” that there was no legal or
logical basis for
Legal Aid to disqualify and question the interest
of the miners in the outcome of the Commission.  They maintained
that contrary
to Legal Aid’s assumption, the interests of the
miners and the unions involved in the Commission did not align and in
certain
respects were in fact opposed.  Legal Aid replied and
reiterated its refusal of the request.
[34]
[39]
From 1 October 2012 to 31 December 2012,
the miners secured funding from a private source, the Raith
Foundation.  On 16 March
2013 the Foundation approved, in
principle, additional funding to cover the miners’ legal costs
from 17 March 2012 until
31 May 2012.  However, certain
complications prevented a final agreement being reached.
[40]
Section 3 of the Act
[35]
provided that the objects of the Board “shall be to render or
make available legal aid to indigent persons and to provide
legal
representation at State expense as contemplated in the
Constitution”.
[36]
Section 3A(1)(a) of the Act further provided that the Board, in
consultation with the Minister, shall “include
particulars of
the scheme under which legal aid is rendered or made available and
the procedure for its administration in a guide
called the Legal Aid
Guide.”  Section 3A(1)(b) provided that the Guide is
binding upon the Board.  The Guide
is designed to regulate
funding for criminal and civil litigation.  However, pursuant to
item 10.2, the CEO has discretion
in respect of certain matters.
Important for our purposes is item 10.2.3, which provides:
“
The
CEO may exercise a general discretion to:
•
Waive any condition, procedure or policy set out
in this Guide as long as this is within the overall authority of the
Legal Aid
Act.
•
Provide for any issue not covered in this Guide.”
High Court
[41]
Unable to secure further funding from
private sources, the miners launched an application in the High
Court, challenging the President,
the Minister and Legal Aid in
respect of the refusal of funding.  They said that the refusal
infringed their rights under
sections 9 and 34 of the Constitution.
The application was in two parts.  Part A was brought on urgency
and sought interim
funding of the miners’ legal representation
before the Commission; Part B sought an order declaring the conduct
of the President,
the Minister and Legal Aid unlawful,
unconstitutional and accordingly invalid, and an order that they
“take all reasonable
steps to provide adequate legal and
equitable aid to the applicants”.  Part A was dismissed.
The miners sought
leave to appeal to this Court.  On 19 August
2013, this Court dismissed that application.
[37]
The miners then pursued Part B.  That application is the subject
of this application.
[42]
The “primary” issue for
determination was whether the applicants were “entitled to
state-funded legal representation
for their participation in the
proceedings of the commission”.
[38]
The High Court determined whether section 34 applied to the
Commission.  It noted, in this respect, the contention of
the
state parties that the Commission is only investigative in nature,
with a view to making recommendations to the President and
lacking
the power to determine legal rights or impose liability on any
participants.
[39]
[43]
The High Court considered both domestic and
foreign case law in determining the ambit of the application of
section 34 to non-court
forums like commissions.  It held that
these cases, which were in the context of procedural fairness, shared
a common denominator
with this case, namely that the interests
protected by section 34 are engaged in respect of
—
“
committees
and commissions 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[ion], even
at that investigative
stage.”
[40]
[44]
In light of this conclusion, the Court held
that for the purposes of the application of section 34, “it is
of no consequence
that the Commission is not of a judicial or
quasi judicial nature”.
[41]
In determining the application of the section to commissions of
inquiry, the Court held that regard must be had to certain
contextual
factors, which included: (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;
and (f) the potential consequences
of the findings and recommendations of the Commission for the
applicants.
[42]
[45]
The High Court considered each of these
factors in some detail.  It found that the possibility that
criminal charges may be
proceeded with against the miners and their
interest in safeguarding potential claims of damages against the
police gave them a
substantial and direct interest in the
Commission’s outcome;
[43]
the miners’ indigence meant that they were the most vulnerable
of the participants before the Commission, particularly as
they were
the specific focus of the Commission;
[44]
the length of witness testimony and technicality of some of the
evidence made the proceedings sufficiently complex to require the

help of legal representation;
[45]
the proceedings were “quasi adversarial”, with
procedures similar to those applied in ordinary courts of law;
[46]
the fact that the state participants and Lonmin were legally
represented was inconsistent with the equality of arms principle;
[47]
and that although the President is not obliged to act on the
recommendations (if any) of the Commission, there would be
reputational,
moral, criminal and civil repercussions on those in
respect of whom adverse findings were made.
[48]
[46]
The application of these factors to the
context of the Commission, the High Court concluded, called for
fairness and equality
of arms, which in turn “locate[d] the
Commission squarely within the purview of section 34 of the
Constitution”.
[49]
The High Court then, relying on the factors it considered in
determining the ambit of the application of the section, held
that it
provided the miners with the right to legal representation before the
Commission
[50]
and that the State is constitutionally obliged to fund that legal
assistance.
[51]
It said that Legal Aid, being the only state agency charged with the
responsibility to provide legal aid to the indigent,
was the organ of
state on which that responsibility rested.
[52]
Having determined that Legal Aid was constitutionally obliged to fund
the miners’ legal representation before the Commission,
the
Court considered whether its refusal to do so was rational and fair;
whether, in funding the families but not the miners, Legal
Aid had
infringed the latter’s right not to be discriminated against
pursuant to section 9(3) of the Constitution; and finally
whether
Legal Aid’s refusal to fund the miners’ legal
representation could be justified under section 36 of the
Constitution.
[47]
The High Court said that Legal Aid’s
decision “would not pass a general rationality requirement,
stemming from the rule
of law in section 1 of the Constitution”.
[53]
Regarding section 9(3), the Court held that the basis of
differentiation between the families and the miners was the survival

of a shooting.
[54]
It further held that although survival of a shooting is not a
specified ground in that section, it is an analogous ground,
having
regard to the disadvantages brought upon the miners by the
differentiation.
[55]
Thus, the Court said, there was discrimination, and because the
discrimination affected the miners’ rights to dignity,
justice
and fair compensation, that discrimination was unfair.
[56]
The Court held that because Legal Aid’s refusal to fund the
miners was a decision taken pursuant to the CEO’s
discretion
and not a law of general application, it could not be justified under
section 36.
[48]
Finally, having determined the case in the
miners’ favour, the High Court found that a substitution order
requiring that Legal
Aid take steps to fund the miners’ legal
representation in the Commission’s proceedings was
appropriate.  The
Court remarked that “it would be
commendable for [the miners’ current] legal team to be
maintained.”
[57]
In doing so, it dismissed Legal Aid’s submission that deference
ought to be afforded it due to its budgetary constraints
as no bar to
what it considered an effective remedy.  It also awarded costs
against Legal Aid.
[49]
Legal Aid sought and was granted leave to
appeal to the Supreme Court of Appeal.  The grounds of appeal
included that the High
Court erred in holding: that section 34
applied to the Commission and provided the miners with the
constitutional right to funding;
that Legal Aid was obliged to give
effect to that right; and that its refusal to do so was irrational or
contrary to section 9(3).
Legal Aid contended, in particular,
that should the High Court order be permitted to stand, its findings
regarding Legal Aid’s
obligations to fund participants in
commissions of inquiry would have a significant impact on the
fulfilment of its statutory mandate
and the interests of indigent
litigants whose rights would be subject to final determination.
Supreme Court of Appeal
[50]
The Supreme Court of Appeal held that in
terms of section 16(2)(a)(i) of the Superior Courts Act
[58]
there would be no practical effect or result in deciding the appeal.
The Court held that the High Court judgment did not
give rise to any
discrete legal issues of public importance.  The Marikana
incident was a “highly unusual occurrence,
the likes of which,
hopefully, will not recur in our lifetime”.
[59]
It said that “it was primarily the differential treatment
between the 23 families who had lost breadwinners on the
one hand,
and the respondents on the other, that prompted the High Court
application in the first place and provoked the rationality
enquiry
undertaken by that Court”.  The Court added that it was
unlikely that decisions by Legal Aid in the future would
be reviewed.
[51]
The Supreme Court of Appeal further found
that, should it have a discretion, it would not exercise its
discretion to hear the appeal.
It found that there was no
longer a dispute between the parties as Legal Aid had agreed to fund
the miners’ legal representation
for the duration of the
unfunded period of the Commission, and that this, in fact, removed
the discretion it would otherwise have
had to hear the appeal.
[60]
Accordingly, it dismissed the appeal without considering the merits,
but ordered each party to bear its own costs.
It is worthy to
mention that in the Supreme Court of Appeal, Legal Aid challenged the
High Court’s decision on the same grounds
it does before this
Court.  The Supreme Court of Appeal considered none of those
grounds.
In this Court
[52]
Legal Aid submitted that it is in the
interests of justice for this Court to decide the appeal to clarify
the correct position regarding
its legal duties.  It argued that
the High Court judgment will impact on its future operations.
[61]
In particular, it submitted that the High Court’s findings
regarding section 34 will necessarily impact Legal Aid’s

“polycentric budget allocation decisions” because of
the applicability of those findings to other inquiries and

investigatory tribunals as well.  It emphasised the importance
of this for its future operations and contended that the judgment

will “fundamentally alter the manner in which Legal Aid
operates” by directing that its limited resources, which would

otherwise be allocated to fund legal representation for indigent
people whose rights will be finally determined as a matter of
law, be
used before commissions where no rights will be finally determined.
[53]
The miners, the families, and AMCU made
common cause in opposing the application.  I refer to them
collectively as respondents.
They contended that the High Court
judgment rested principally on the finding that Legal Aid’s
decision was irrational.
The respondents argued that the
judgment is context-specific and that it will have no impact on
future decisions of Legal Aid,
which must be analysed in light of
their own particular facts.  In this respect, the families and
AMCU urged this Court not
to overestimate the importance of the High
Court judgment, in that it amounted to no more than requiring that an
administrative
decision be made rationally.
[54]
Regarding section 34, the respondents
argued that the findings were made in the unique factual
circumstances of the events at Marikana
and the Commission, and are
of no material relevance to future cases.  The Ledingoane
family, in addition, provided extensive
submissions to the effect
that the High Court’s judgment regarding section 34 was
correct, both in terms of its application
and its finding that, in
certain circumstances, it can give rise to the right to state-funded
legal representation.
[55]
The respondents submitted that amendments
to the Guide have altered the “legal matrix” from what
existed at the time
of Legal Aid’s decision and the High Court
judgment.  Before oral hearing, certain amendments that had been
made
earlier were removed.  The result of the amendment is that
the only material change to the Guide is the inclusion of a provision

that reads:
“
4.20 COMMISSION OF INQUIRIES
Where
funds are made available by the establishing authority of the
commission, legal aid should be provided for the purpose of
legal
representation at commissions for persons appearing before a
commission of inquiry where such person/s have been certified
by the
Commissioner as having proper standing before the Commission.”
[56]
The families and AMCU argued that this
amendment was material because the Guide now caters specifically for
commissions and because,
where money is not provided by the
establishing authority, the CEO’s discretion is no longer
engaged to determine whether
to provide funding for something not
covered by the Guide, but rather whether to waive a policy set out in
the Guide.
Leave to appeal
Jurisdiction
[57]
There is no doubt that this is a
constitutional matter.  In addition, the High Court
judgment raises an arguable point
of law which, in my view, ought to
be considered by this Court.  The question remains whether the
interests of justice warrant
granting leave to appeal.
Interests of justice
[58]
Mootness is no bar to deciding an appeal if
it is in the interests of justice to do so.
[62]
As this Court said in
Van Wyk
,
[63]
relevant considerations are whether the order that the Court may make
will have any practical effect either on the parties or on
others,
whether it is in the public interest for the Court to exercise its
discretion to resolve the issues and whether the decision
will
benefit the larger public or achieve legal certainty.
[59]
In
Pillay
,
this Court summarised certain factors a court ought to consider when
determining whether it is in the interests of justice to
decide a
matter that is moot:
(a)
the nature and extent of the practical
effect that any possible order might have;
(b)
the importance of the issue;
(c)
the complexity of the issue;
(d)
the fullness or otherwise of the argument
advanced; and
(e)
resolving disputes between different
courts.
[64]
[60]
As I demonstrate later, all of these
factors support deciding the appeal on its merits.  It is
important to undertake the interests
of justice analysis aware of the
context of the application.  Legal Aid is an organ of state
charged with making legal representation
available to indigent people
whose rights are at stake.  It accepted that it has nothing to
gain directly from the matter
being decided on its merits, in that it
would not seek repayment from the miners, but has consistently
asserted that the High Court
judgment sets a precedent that will
impact its ability to fulfil its statutory mandate of providing legal
assistance to those in
need as contemplated or envisaged by the
Constitution.  There is nothing to suggest that Legal Aid is
before us now in anything
other than what it considers the public
interest.
[61]
The evidence shows the financial resources
available for the achievement of Legal Aid’s objectives are
“stretched to
the limits of their capacity”, strained
further by recent budgetary cuts.  Where it is obliged, as it
was by virtue
of the High Court judgment, to direct funds to a
recipient to which it had not allocated them, those limits mean that
the impact
of that obligation will be felt by indigent and vulnerable
people in criminal and civil proceedings.
[62]
Put in statistical terms, the implications
are stark.  Legal Aid averred that for every R1 000 000
expended on the
provision of funding in relation to commissions of
inquiry, it will be obliged to refuse to provide legal assistance to
approximately
200 applicants who would otherwise be entitled to
that assistance and whose rights would be finally determined.
Thus
in this case, in which Legal Aid projected that it would be
required to re-direct R19 530 800 to fund legal
representation
before the Commission, approximately 3 800
applicants involved in civil and criminal proceedings would be denied
state-funded
legal representation as a direct result of the High
Court judgment.
Practical effect
[63]
Legal Aid’s primary concern lies in
the High Court’s findings regarding section 34 and what
they mean for its future
operations.  It acknowledged that the
Act is legislation that gives effect to that provision and contended,
in particular,
that the High Court has interpreted it in a manner
that will necessarily impact its ability to discharge its mandate
under the
Act.  It is in this impact that the practical effect
must therefore be grounded.
[64]
The main judgment dismisses the contention
that there will be any impact, finding that “[t]he argument
that the High Court
judgment lays down principles applicable not only
to the Marikana Commission but also to other inquiries and
investigative tribunals,
is unpersuasive.”
[65]
It is necessary, therefore, in deciding the extent, if any, of the
practical effect to determine what principles the High
Court does in
fact set out.  In my view, contrary to the position taken by the
main judgment, the principles are extensive
and by no means apply to
the Commission alone.
[65]
Before addressing the substance of the
principles set out in the High Court judgment, two points need to be
disposed of speedily.
The contention by the families and AMCU
that instead of exercising discretion to depart from the Guide, the
CEO is now, by virtue
of the amendment, exercising discretion to
waive a policy covered by the Guide surely misses the point.
Firstly, the distinction
does not appear accurate: there is no policy
for funding unfunded commissions and thus no policy to waive.
Secondly, for
the purposes of an issue that entails consideration of
whether section 34 obliges Legal Aid to fund legal representation
before
a Commission, whether the CEO is exercising discretion to
depart from the Guide or waive a policy in the Guide is immaterial,
as
in either case it would be an exercise of discretion that is, in
my view, subject to the Constitution.
[66]
Does Legal Aid’s argument regarding
section 34 represent a “distinct change of tack”?
[66]
The main judgment relies, in particular, on the statement to the
effect that Legal Aid—
“
accepts
that the decision of the High Court was made in the context of the
specific circumstances of this case and that, as the
High Court made
plain, its judgment was not to be construed as ‘authority for
the proposition that in all commissions of
inquiry, there is a right
[to] state-funded legal representation.’”
[67]
[67]
The main judgment finds that this reflects
a material difference in Legal Aid’s submissions before this
Court that the High
Court judgment is authority that section 34
provides the right to legal representation at state expense before
commissions
of inquiry in certain circumstances.  I do not
agree.  There is nothing inconsistent about a position that
accepts that
the High Court judgment is not an authority for the
proposition that the right exists in respect of all commissions of
inquiry,
but still maintains that it is an authority for the
proposition that it will do so in respect of some similar
commissions.
Legal Aid did not contend that the High Court
judgment will oblige it to fund the legal representation of indigent
people before
all commissions of inquiry.  Its contention is
that it will do so where the applicants can show that the legal
principles
articulated in the High Court judgment apply with similar
force to a particular commission of inquiry or similar body.
[68]
In the Supreme Court of Appeal Legal Aid
challenged the High Court’s findings regarding section 34,
contending that they are
“likely to have far-reaching
implications for [Legal Aid], not only in this case, but in future
cases”.  It emphasised
“the practical difficulty of
the provision of funding for legal representation before commissions
of inquiry on the broad
basis that is required by the [High Court
judgment]”.  These are precisely the grounds on which
Legal Aid’s submissions
rest in respect of section 34 before
this Court.  Therefore, a change of tack does not, in my view,
arise.
[69]
As shown below, the High Court lays down
legal principles that are not only novel but also find no direct
support in our jurisprudence.
To this end, there is a practical
effect to deciding the matter.
First principle
[70]
The High Court held that “it is of no
consequence that the commission is not of a judicial or even
quasi-judicial nature”
as this “does not . . . place the
Commission outside the scope of section 34”.
[68]
None of the previous cases the Court relied upon held that section 34
applies in respect of a commission that was not performing
at least a
quasi-judicial function.  Those that considered the issue most
extensively expressly tied the application of the
provision to the
judicial nature of the commission.
[69]
Second principle
[71]
The High Court held that it is not
necessary that a commission have the power to determine legal rights
to fall within the scope
of section 34.
[70]
Although related to the finding that not even a quasi-judicial
function is necessary, it is nevertheless distinct in that
it is
often a factor that is considered separately, and there is no uniform
manner to the way in which courts have determined the
function of a
commission.
[71]
Similarly, no previous case has found section 34 to apply to a
commission that lacks the power to determine legal rights.
[72]
Third principle
[72]
The High Court said that in determining
whether section 34 applies to a commission of inquiry, regard ought
to be had to a number
of contextual factors.
[73]
It developed what is necessary to establish the presence of those
factors in a given case.
[74]
Needless to say, earlier cases reflect a variety of approaches to the
issue of how one ought to determine whether section
34 applies to a
particular commission.
[75]
None of them set out the same factors, or developed the factors in
the same manner, as did the Court.
Fourth principle
[73]
The Court held “that section 34 finds
application to the Marikana Commission of [I]nquiry, and therefore a
constitutional
right to legal representation”.
[76]
To the extent I could ascertain, no previous decisions have held that
section 34 provides the right to legal representation
before
commissions of inquiry: where it has been found to provide a right to
legal representation, that right has been expressly
tied to the
nature of civil proceedings before courts.
[77]
Fifth principle
[74]
The High Court found that section 34 may
provide a right to legal representation at state expense.
[78]
The Ledingoane family argues that this proposition is supported by
the case of
Nkuzi
.
[79]
However
Nkuzi
does not assist the respondents.  In that case, the Land Claims
Court found that the labour tenants in that case had a right
to legal
representation at state expense.  However, although that Court
made reference to section 34, the decision was based
on the right
under section 25(6) of the Constitution, and not section 34.
[80]
[75]
The legal basis relied on by the High Court
for the holding that section 34 may provide a right to legal
representation at
state expense before commissions of inquiry is
where the factors that bring the commission within the scope of the
provision are
established and its proceedings implicate the rights of
indigent and vulnerable people.
[81]
This too is novel and, to the
extent I could establish, finds no support in our jurisprudence.
Our courts have consistently
denied any entitlement to legal
representation as of right in fora other than courts of law.
[82]
Even in
Nkuzi
,
the right to legal representation at state expense was based on the
fact that the litigants were involved in proceedings in a
court.
[83]
[76]
At risk of repetition, the legal principles
espoused by the judgment of the High Court rested on a novel and
expansive interpretation
of the right in section 34.  They
pertain to a right to which Legal Aid is statutorily mandated to give
effect by providing
legal assistance as contemplated by the
Constitution.  The principles impact directly on Legal Aid’s
ability to fulfil
that mandate.  The decision of this Court, as
the guardian and final arbiter of the Constitution, confirming or
setting aside
the decision of the High Court, will have a practical
effect.  In my view, that effect will not be limited to Legal
Aid alone,
but will extend also to those whose interests it is
mandated to protect.
Narrow impact
[77]
The main judgment holds that the High Court
judgment will have a “very narrow and . . . so rare” an
impact on Legal
Aid’s mandate “as to be negligible”.
[84]
In support of this finding, the main judgment relies in particular on
paragraphs 38 and 69 of the High Court judgment,
[85]
respectively: that the right to legal representation is not an
absolute one, but depends on the context,
[86]
and that section 34 provided the miners with the right to
state-funded legal representation—
“
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 the nature of the issues
under investigation before a particular commission.”
[87]
[78]
In my view, the error in the main
judgment’s holding that the High Court’s findings
regarding section 34 are confined
to the Commission lies in its
conflation of the interpretation of the provision with its
application.  It is true that the
High Court judgment’s
conclusion that Legal Aid was constitutionally obliged to fund the
miners’ legal representation
before the Commission required the
High Court to apply law to their particular factual context.
Its statements at paragraphs
38 and 69 acknowledge this fact.
In fact, that is true of all rights litigation: whether a claimant
will benefit from the
protection of a particular right will depend on
the context, and thus whether that right applies in any specific case
will depend
on the facts of a particular case.
[79]
What does not depend on the facts is the
scope and meaning of the right and the conditions of its
application.  The factual
context may have determined whether
section 34 applied but the law that was applied to that context
rested not on the particular
set of facts, but on an interpretation
of the right.  That interpretation constitutes findings of law
and stands alone from
the particular context in which they have been
applied.
[80]
Contrary to the main judgment’s view,
the High Court in fact acknowledged that the legal principles on
which its decision
rested could find application in future cases.
Indeed, that is the import of its statement in paragraph 69: that
whether
there will be a right to state-funded legal representation in
respect of other commissions of inquiry “depends on the
context,
having regard to the nature of the issues under
investigation before a particular commission”.  That
holding, that there
are contexts in which section 34 can provide a
right to state-funded legal representation before a commission of
inquiry, is precisely
the practical effect on
Legal
Aid’s operations.
[81]
If left standing, the principles set out in
the High Court judgment will have a bearing on future
decision-makers.  The main
judgment posits that we need not be
concerned that such a result will occur because the High Court
judgment was based on the “unique
circumstances” of the
Commission.  We may indeed hope that these circumstances are
unique.  However, I doubt that
it is correct to proceed on that
basis when dealing with legal principles.  Moreover, there is no
reason to speculate that
those circumstances are indeed so unique as
to have no relevance to future cases.  We need only consider
commissions of the
past to see that this is not so: the Ledingoane
family’s submissions on the role of commissions in apartheid
South Africa
are apposite in this respect.  As noted in its
submissions, the history of commissions in South Africa is “replete
with
examples of the systematic silencing of the voices of
victims”.
[88]
And although the nature of commissions in South Africa may have
changed since the end of apartheid, challenges persist, in
that
“[t]he poor and the vulnerable continue to be left to their own
devices”, while “[s]tate organs still wield
enormous
influence in such mechanisms through overwhelming legal ‘firepower’
provided at taxpayer’s expense”.
[82]
The notion that the context of this
Commission is so unusual as to have no relevance to future cases is
further belied by the extent
to which the High Court relied on
earlier decisions, in particular those of
Mbebe
and
Bongoza
(both of which are contextually distinguishable), to support its
reasoning.
[89]
It is difficult to understand why, if the context of this case was
sufficiently similar as to make relevant the application
of prior
cases, it will not be similarly applicable in respect of future
cases.
[90]
[83]
Attempts to confine the judgment to this
“solitary” matter not only appear to be incorrect in law
in so far as they
ignore the legal principles that the High Court
judgment sets out but result in further confusion of an important
issue, especially
where the Constitution itself expressly stipulates
instances where legal representation at state expense would be
provided.
[91]
If the approach adopted by the main judgment is correct, one wonders:
how, in light of that judgment’s finding that
the High Court
judgment will have no practical effect and only bind Legal Aid in
cases so rare as to be “negligible”,
are future
applicants, Legal Aid or even courts to understand the import of
those legal principles?  Is it the case, for example,
that the
judgment of the High Court cannot be relied upon for the proposition
that section 34 can apply to bodies that do not determine
legal
rights or perform a quasi-judicial function?  Nor for the
principle that section 34 will oblige Legal Aid to fund the
legal
representation of participants before commissions of inquiry when the
same factors are established?
[84]
Our system of precedent and the principle
of equality before the law would suggest that this cannot be so.
These principles
will remain intact if not dealt with because future
decision-makers and litigants are likely to rely upon them.
Casting them
in doubt without resolving any of the important issues
they raise is likely to be a source of uncertainty and confusion
about the
content and meaning of the section 34 right.
[85]
For the same reasons advanced above, I find
that the Supreme Court of Appeal erred in dismissing the appeal
without dealing with
the discrete legal issues.  Before I deal
with the merits, I dispose of further points on rationality, the
CEO’s discretion
and factors in
Pillay
.
Rationality
[86]
According to the main judgment, the High
Court judgment will have no practical effect because it was decided
in the context of the
reasons advanced by Legal Aid not to fund
the miners while having already decided to fund the families.
In my view,
that context was not relevant to the High Court’s
findings regarding section 34 and its application to the
Commission,
[92]
and therefore will not detract from the practical effect of deciding
the matter.  The High Court said of the issue it had
to
determine: “the primary and crisp issue for determination is
whether the [miners] are entitled to state-funded legal
representation for their participation in the proceedings of the
commission.”
[93]
It thus did not set out to determine an issue relating to
differential treatment.
[87]
The High Court held that section 34 applied
to the Commission and that the responsibility for giving effect to
that right lay with
Legal Aid exclusively.  The import of these
findings is significant.  As the High Court rightly noted later
in the judgment,
Legal Aid could not justify its infringement of the
miners’ constitutional rights because it was not pursuant to a
law of
general application but merely the exercise of
discretion.
[94]
Accordingly, having found that section 34 gave the miners the right
to state-funded legal representation and that Legal Aid
was obliged
to give effect to that right, the rationality or otherwise of not
doing so was simply irrelevant.  Put another
way, if Legal Aid’s
refusal to give effect to the miners’ right to funding was
rational, could that have excused the
infringement notwithstanding
that section 36 is inapplicable?  The answer must be that it
could not.  And as it could
not, the rationality of the decision
was strictly irrelevant to the High Court’s determination of
the issue, and thus properly
obiter.
[95]
Is the CEO’s
discretion still intact?
[88]
The main judgment asserts that the High
Court judgment will have no practical effect on Legal Aid’s
future operations.
By inference, this would mean that the CEO
would, as was the case before the judgment of the High Court, have a
discretion to refuse
to fund commissions of inquiry despite the
presence of the High Court factors.  I do not agree.  The
High Court held
that section 34 obliged Legal Aid to fund the miners,
that is to say, Legal Aid has no discretion to exercise.
Indeed, this
is precisely what is problematic for Legal Aid: the High
Court judgment stands for the proposition that, where section 34
applies
to commissions of inquiry and provides the right to
state funded legal representation, it has no discretion to
exercise.
Factors in Pillay
[89]
Pillay
involved
circumstances highly similar to those at issue in this application.
It arose out of a challenge by a student to a
school’s decision
to preclude her from wearing a nose ring at the school on the basis,
inter alia
,
that it infringed her right to equality under section 9 of the
Constitution.  By the time the case reached this Court, the

student had graduated and thus, as the Court found and the parties
agreed, the matter was moot.  There were also contentions
that
the “legal landscape” had been altered in light of
amendments to guidelines that related to the issue.
Nevertheless, this Court determined that deciding the appeal on the
merits was in the interests of justice on the basis of the importance

to administrators of clarity on constitutional rights.  In
certain respects, there was even less reason to decide that appeal

than there is reason to decide this application in that in
Pillay
the Department sought to withdraw its application because the matter
was moot.  Thus, unlike in this case where the administrator
is
seeking clarity, in
Pillay
this Court determined that such clarity was in the public interest
even though the administrator no longer sought it.
[90]
Pillay
is
distinguished on the basis that the guidelines that had been amended
did not have the force of law and there was therefore a
danger of
schools in the future implementing constitutionally invalid
policies.
[96]
It is difficult to reconcile this point with the consequential
inference that the discretion of the CEO of Legal Aid remains

intact.  If the issue of whether to fund participants before
commissions of inquiry is at the CEO’s discretion, surely
the
situation is the same as it was with the schools in
Pillay
:
there is no legal instrument governing the issue.  In fact,
unlike the schools, the CEO does not even have guidelines to
assist
her, as the question that she faces is whether to depart from policy
in the Guide, with the only condition that it be “within
the
overall authority of the [Act]”.
[97]
Accordingly, the concern that the CEO will exercise her discretion,
if indeed the Constitution permits her any, contrary
to section 34
is at least as valid in this case as it was in
Pillay
.
Furthermore, unlike in
Pillay
,
where granting the individuals the protection of the right did not
deprive others of benefits, Legal Aid’s limited budget

necessarily means that providing a right to its resources will
deprive others of the protection that those resources could provide.

This lack of protection, given the nature of Legal Aid’s
constitutional and statutory mandate, could translate into indigent

people being unable to enforce other clear constitutional rights.
[91]
Pillay
then,
speaks to the importance of providing clarity to administrators on
their constitutional obligations, even where the particular
issue
that engaged those obligations is no longer live.  That
principle applies all the more in this case where those obligations

touch upon the interests of some of our society’s most
vulnerable.
[92]
In considering just how important it is for
courts to provide clarity in this context, a comparable foreign
jurisprudence also sheds
light.  The Canadian Supreme Court in
New Brunswick
[98]
determined whether the refusal by Legal Aid New Brunswick, the
Canadian provincial equivalent of Legal Aid, to provide legal
assistance
to an indigent mother involved in a custody application by
the provincial Minister of Health and Community Services infringed
the
mother’s right to equality and security of the person in a
manner inconsistent with the principles of fundamental justice.

Although relying on different constitutional rights in the Canadian
Charter of Rights and Freedoms (Charter), the Court characterised
the
issue as essentially the same as is now before us: “[a]t issue
is whether the Government of New Brunswick was under an
obligation to
provide state-funded counsel to the appellant in the circumstances of
[the] case”.
[99]
[93]
The Court found that this issue was moot
because, ultimately, the mother was represented by counsel at the
custody hearing, and
because the custody order had expired and the
mother had regained custody of her children by the time the case
reached the Court.
[100]
Nevertheless, the Court determined that it should exercise its
discretion to decide the appeal.  It did so on the basis
of
several factors.  In particular, it found that the—
“
question
of whether a parent has a right to state-funded counsel at a custody
hearing is undoubtedly of national importance.
Similar cases
may arise in the future, and the Court has an opportunity to clarify
the law and provide guidance to the courts below.
This is a
particularly important factor.”
[101]
[94]
The Court relied on the fact that “[w]hile
similar cases may arise in the future, they are by nature evasive of
review”,
in part because—
“
it
is unlikely that appellants will be able to retain counsel for an
appeal if they were unable to retain counsel at the initial
hearing.
As a result, few cases will ever be appealed to this Court,
since the assistance of counsel is almost invariably
required in
negotiating the appeal process.”
[102]
[95]
Finally, the Court noted that it—
“
is
not overstepping its institutional role in deciding this case. . . .
the appellant is not requesting a legal opinion on the interpretation

of the
Charter
in the absence of legislation or
other
governmental action
which would
otherwise bring the
Charter
into play.  While the issue in this case is moot, it is not
abstract”.
[103]
(Emphasis added.)
[96]
It is true that in that case the Court was
dealing with the issue of state-funded legal assistance in the
context of custody applications
rather than commissions of inquiry,
which are generally less common and thus can be expected to give rise
to the issue less frequently.
However, by the same token,
commissions of inquiry are typically much larger in scale.  This
case is evidence of that fact:
it involved the funding of 300
individuals, not merely one; and required the deprivation, on
Legal Aid’s evidence, of
thousands of others who would
otherwise have received that funding.  I do not, therefore,
consider the difference in context
a basis on which to distinguish
the two cases for our purposes.
[97]
Given the analysis above, the interests of
justice in this case turn primarily on the practical effect of
deciding the matter, and
the remaining considerations listed in
Pillay,
may therefore be dealt with briefly.  All, in my view, similarly
support deciding the matter.
The importance of the
issue
[98]
At issue, properly speaking, are the
interests of those in need of legal assistance but are unable to
retain it on their own means.
They are thus among society’s
most vulnerable.  Whether, as was found in this case, there is a
possibility that
the Constitution will require, where it does not do
so expressly, that some receive that assistance at the expense of
others is,
in my view, an important issue.
The complexity of the
issue
[99]
The issue whether section 34 obliges Legal
Aid to fund legal representation is undoubtedly complex.  This
Court has said that
“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.”
[104]
The issue involves consideration of a host of factors, constitutional
and otherwise.  These include what the right to
a fair hearing
means; what demands can be placed on the resources of the State; and
how best to balance the competing claims of
a range of seemingly
worthy recipients of the State’s assistance.
The fullness or
otherwise of the argument advanced
[100]
The issues have been canvassed extensively
on the papers and in oral submissions.  In addition to Legal
Aid’s and the
miners’ submissions, this Court has had the
benefit of submissions from the families and AMCU as well as the
Ledingoane family.
The latter, in particular, provided
extensive written submissions regarding section 34.
Resolving disputes
between different courts
[101]
The principles regarding section 34,
enunciated in the High Court judgment, are novel and appear to be
incompatible with our jurisprudence
regarding the content and meaning
of the right under section 34 in that it finds that the right extends
in application to commissions
of inquiry and, more radically, in
content to state-funded legal representation.  No other courts
have made similar findings,
and in that sense, although perhaps not
properly a dispute, the import is the same, namely a lack of clarity
on a point of law.
[102]
Another factor may be added to those listed
in
Pillay
:
the likelihood that this Court will have the opportunity in the
future to pronounce on the issues now before it.  In my view,

the less likely the opportunity to make a future pronouncement, the
greater the importance of providing the clarity in the case
at hand.
Lest confusion as to the scope and meaning of section 34 continue.
[103]
As in
New
Brunswick
, cases involving legal aid
are “by nature evasive of review”.
[105]
Legal Aid cannot challenge the precedent unless a case is brought
against Legal Aid’s failure to comply with it; and
those who
might bring such a case are highly unlikely to be able to do so,
lacking, as they would, the requisite funding, and having
had their
application to Legal Aid denied.  Perhaps more importantly,
those who are denied, should Legal Aid comply with the
precedent, are
even more unlikely to bring a challenge, in their instance lacking
not only resources but a probable case, given
that Legal Aid would be
acting pursuant to a court ruling.
[104]
I conclude that the interests of justice
warrant the granting of leave to appeal.
Merits
[105]
The High Court made a series of important
findings regarding the scope and meaning of section 34.
However, in considering
the merits of the appeal, we must first
address the dispositive issue, which was the finding that section 34
entitled the miners
to funding from Legal Aid.  Only should
we find that the High Court was correct in that finding need we
proceed to consider
its other findings in respect of section 34.
[106]
The starting point in considering whether
section 34 is capable of affording the right to legal representation
before commissions
of inquiry is this Court’s decision in
respect of Part A of the miners’ application.  The Court
said:
“
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.
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 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.
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.”
[106]
(Footnotes omitted.)
[107]
These remarks capture the considerations
that must inform our analysis of this issue.  It is true that
the failure to provide
funding for legal representation to those in
need may compromise the capacity of a commission to fulfil its
truth-finding function.
However, that concern is not one that
engages the protection of section 34.
[108]
It is important to consider the
implications of finding that section 34 affords the right to legal
representation at state expense
in the first place.  There are
many indigent and vulnerable people involved in legal proceedings,
and it is an unfortunate
reality that the funds to finance their
legal assistance are not sufficient to provide for them all.
While that is hardly
an issue that is unique to South Africa,
[107]
it means that Legal Aid, the only organ of state tasked with the
general obligation of ensuring that indigent people are not deprived

of legal representation where substantial injustice would otherwise
result, operates on a limited budget.  Legal Aid thus
must
strive to give effect to its statutory mandate by implementing
policies that identify those most in need of the assistance
and
directing its available funds to those individuals.  The effect
of recognising that certain claims are entitled by virtue
of the
Constitution to the funds that Legal Aid has to allocate ought
therefore to be obvious.  It deprives not only Legal
Aid of the
ability to engage in the “polycentric budget-allocation”
that is inherent to the task of allocating finite
resources amongst
many indigent and vulnerable claimants by prioritising the claims of
some over others, but it deprives other
claimants of the assistance
to which they would otherwise be entitled.
[109]
It bears repeating that in certain cases,
the Constitution does dictate that result.  It expressly
provides for the right to
legal representation at state expense in
three instances: Section 28(1)(h) provides a child with the right to
have a legal practitioner
assigned to him or her by the State at its
expense in civil proceedings affecting the child; section 35(2)(c)
provides that everyone
who is detained has the right to have a legal
practitioner assigned to him or her by the State at its expense; and
section 35(3)(g)
provides every accused the right to have a
legal practitioner assigned to him or her by the State at its
expense.  In each
case, that right arises only where
“substantial injustice would otherwise result”.
[110]
That the Constitution expressly provides
for the right to legal representation at state expense in a limited
number of circumstances,
is telling.  It was open to the
drafters to provide for it in more circumstances, or even in all
circumstances if substantial
injustice would otherwise result.
The fact that they did not do so ought to make us cautious to find
that it is implied in
other rights.  That is not to say that the
Constitution, or section 34 specifically, may not provide for the
right to legal
representation at state expense outside of the
circumstances in which it is expressly provided for.  It is to
say that it
will only do so in exceptional circumstances.  In my
view, those circumstances do not extend to the Commission.  As
this
Court made clear in
Magidiwana I
,
“[s]ection 34 deals with disputes that can be resolved by the
application of law” and “[t]he Commission’s

findings are not necessarily to be equated to a resolution of legal
disputes by a court of law.”
[108]
This is correct.  The Commission was not empowered to finally
determine legal rights.  Its Terms of Reference limited
its
powers to making findings of fact and recommendations.
[111]
In this regard, it is useful to consider
the foreign jurisprudence to which we were referred in support of the
respondents’
contentions that section 34 may provide the right
to legal representation at state expense.  None of them found
that the right
arises in respect of a body that has no power to
determine legal rights.  On the contrary, they relied on the
fact that the
applicant’s rights were not merely implicated,
but subject to determination.
[109]
Furthermore, international law similarly ties the right to
state-funded legal representation to the determination of legal

rights.
[110]
Thus in
Airey v Ireland
,
[111]
the European Court of Human Rights found that the right of access to
courts, provided for in article 6(1) of the European Convention
of
Human Rights,
[112]
may provide the right to legal representation at state expense in
certain circumstances in relation to
civil
proceedings
.  It did so in part on
the basis that the outcome of the proceedings at issue was, as is
required for article 6(1)’s
application, “decisive for
private rights and obligations”.
[113]
Subsequent cases have yet to extend the right beyond civil
proceedings.
[114]
[112]
It must be recalled that whether section 34
applies in the first place to tribunals that are not empowered to
finally determine
legal rights is itself a contestable issue.
The provision refers to disputes “that can be resolved by the
application
of law”.  That wording does not obviously lend
itself to being applied to a body whose purpose and powers are
inquisitorial.
If section 34 did find application to a
commission of inquiry, extending its meaning to include the right to
state-funded legal
representation would prioritise the interests of
participants in inquiries above those whose rights are to be finally
determined.
This is particularly germane when one considers the
scale of commissions and the broad range of individuals whose
interests they
may engage.
[113]
None of this is to downplay the importance
of the Commission or its findings regarding the events at Marikana.
The High Court
was quite right to emphasise the importance of its
task, as well as the vital importance of ensuring that the miners’
participation
was meaningful and that they were not unfairly
disadvantaged by their indigence.  However, it must be borne in
mind that although
section 34 may not provide the right to legal
representation at state expense before commissions of inquiry, there
may be other
constitutional provisions and principles that ensure
fairness and equality in such circumstances, but that would not come
at the
expense of those whose rights will be finally determined.
In this case, it is notable that the Ledingoane family made
persuasive
submissions to the effect that the establishment of the
Commission without ensuring the miners’ legal representation
before
it infringed the principle of legality under section 1(c) of
the Constitution.  They argued that the failure to do so bore
no
rational relationship to the objective of the President in
establishing the Commission.
[114]
However, those submissions are properly
aimed not at Legal Aid’s decision but at the President, whose
power was being exercised
in establishing a commission without
providing funding for legal assistance.
[115]
The Ledingoane family had in fact attempted to direct this contention
at the President before the High Court, but had been
denied the
opportunity on the basis that it was a “new argument”.
Whether it would have been successful against
the President does not
fall to be determined now.  The argument, however, demonstrates
that merely because section 34 does
not provide the miners with the
right to state-funded legal representation, participants before a
commission are not necessarily
without the protection of our
Constitution in this regard.  That protection should not
however, come at the expense of those
who are even more vulnerable.
[115]
Section 34 did not, therefore, oblige Legal
Aid to fund the miners’ legal representation before the
Commission.  I need
not thus consider the issues relating to the
application of section 34 to the Commission.  Instead, I deal
with the other
two bases in respect of which the High Court found in
favour of the miners, namely section 9(3) and the principle of
rationality.
Both may be disposed of relatively briefly.
[116]
The respondents have not pursued the
section 9(3) claim before this Court.  That was correct because
the argument is unsustainable.
It rested on the High Court’s
finding that survival of a shooting constitutes an analogous ground.
That, of course,
must be wrong: the appropriate comparator was
not the deceased miners, who obviously cannot benefit from funding,
but the families,
who
also survived the
shooting
.  More importantly,
though, the finding rests on a fundamental misunderstanding of the
nature of analogous grounds,
[116]
which according to the
Harksen
test must
as grounds
be “based on attributes or characteristics which have the
potential to impair the fundamental dignity of persons as human

beings, or to affect them adversely in a comparably serious
manner”.
[117]
Survival of a shooting, in contrast, would typically be regarded as a
benefit
,
and certainly cannot be seen to be based on any similar attributes or
characteristics as are contemplated by the
Harksen
test.  Accordingly, I find that
the High Court erred in finding that Legal Aid infringed the miners’
right not to be
unfairly discriminated against under section 9(3).
[117]
The final issue to address is that of
rationality.  The only conclusion made by the High Court on
rationality was in respect
of section 1(c) of the Constitution and
was thus grounded on the principle of legality.  However, its
analysis focused on
the differential treatment afforded to the miners
relative to the families, which would seem more properly undertaken
in respect
of the miners’ right to equal protection of the law
under section 9(1).  Yet that section is never relied upon by
the
High Court in its analysis.  In either case, however, the
reasoning was deficient.  It both relied on reasons that were

not in fact the basis of Legal Aid’s decision and, more
importantly, failed to consider the primary basis of that decision,

which provided the context in which any other bases must be
understood.
[118]
Firstly, the High Court relied on a
misinterpretation of the reasons that Legal Aid provided for
treating the miners differently
from the families.
Specifically, it relied on two reasons that it said Legal Aid had
given: that the miners did not have
a “substantial, proximate
and material interest” in the Commission’s outcome; and
that their interests would
be adequately protected by the labour
unions.  The first of these, the High Court said, was implied by
Legal Aid’s statement
that it had decided to fund the families
of the deceased “who have a substantial, proximate and material
interest in the
outcome of the inquiry”.  I do not read
that statement as implying any such damaging remark as to the miners’
interest, which would be to impute a remarkable degree of ignorance
to Legal Aid, but simply as serving the descriptive purpose
of
identifying the particular families that Legal Aid had decided to
fund.
[119]
Regarding the second purported reason,
Legal Aid’s statement was in fact that it was unable to
determine a substantial benefit
to the miners being represented
separately, particularly as the interests of the miners are protected
by their respective unions.
Legal Aid’s assertion
regarding the alignment of interests with the unions was merely made
to bolster the general point regarding
separate representation, and
was not to be dispositive of it.  The question that the High
Court ought to have considered in
relation to this statement was
whether there would be a substantial and identifiable benefit from
separate representation.
It did not.
[120]
More importantly – even more than its
mischaracterisation of the reasons relied on by Legal Aid for its
differential treatment
– was the High Court’s failure to
consider the primary basis for that treatment: Legal Aid’s
budgetary constraints.
Legal Aid explained its decision in both
of its letters to the miners as being attributable to budgetary
constraints.  In
the second of those letters, which amounted to
only two paragraphs, it referred to those constraints twice.
They provide,
of course, the context in which Legal Aid’s
decision must be examined.  This is so because it is only those
constraints
which can explain the refusal.  Yet at no point in
its rationality analysis did the High Court refer, even indirectly,
to
these as a basis for the decision.  It is a remarkable
omission and one that, in my view, stresses the incorrectness of the

High Court’s conclusion.
[121]
It may be true that the presence of bad
reasons amongst good may be enough to render an administrative
decision irrational.
However, for those reasons to do so, they
must play an “appreciable or significant role in the
outcome”.
[118]
Without having considered the primary basis for the decision, and
thus the context in which the other reasons were proffered,
there was
no basis for the High Court to have determined whether the reasons it
did have regard to played an “appreciable
or significant role”
in the decision not to fund the miners after having decided to fund
the families.  The High Court
was not entitled, I consider, to
cherry-pick the reasons it would have regard to, without a basis on
which to conclude that those
it had regard to played an appreciable
or significant role and without considering the primary reason put
forward as justification.
[122]
I conclude that the High Court erred in
finding that section 34 provided the miners with the right to legal
representation before
the Commission, that Legal Aid’s
differential treatment of the miners compared to the families
infringed section 9(3), and
that Legal Aid’s decision not to
fund the miners was irrational.
[123]
I would have granted leave to appeal,
upheld the appeal, set aside the decision of the Supreme Court of
Appeal and replaced the
High Court’s decision with an order
dismissing the application.
For the
Applicant:

G Marcus SC, M Stubbs and E Mahlanga
instructed
by Legal Aid South Africa.
For
the First, Second and Further Respondents:

D Mpofu SC and M Qofa instructed by Maluleke Msimang and Associates.
For
the Eighth and Ninth Respondents:

S Wilson and
F Hobden
instructed by
Socio-Economic Rights Institute Law Clinic.
For the Eighteenth
Respondent:

J Brickhill instructed by the Legal Resources Centre.
[1]
Legal Aid is an autonomous statutory body
established pursuant to section 2 of the Legal Aid Act 22 of 1969
(1969 Act).
When the proceedings were instituted in the High
Court, Legal Aid was governed by that statute, which established the
Legal Aid
Board (Board).  This statute was repealed by the
Legal Aid South Africa Act 39 of 2014 (Legal Aid Act).
The objects of Legal Aid,
as provided in section 3 of the Legal Aid Act, are to “render
or make available legal aid and
legal advice”; to “provide
legal representation to persons at state expense”; and to
“provide education
and information concerning legal rights and
obligations, as envisaged in the Constitution and this Act”.
[2]
Establishment of a Commission of Inquiry into the
Tragic Incident at or near the area commonly known as the Marikana
Mine in Rustenburg,
North West Province, South Africa GN 35680
GG
50, 26 August 2012 (Terms of
Reference), second pre-ambular paragraph.
[3]
Prior to their request to Legal Aid, the miners
made a similar request to the Minister which was refused on the
basis that there
was no legal framework under which the Minister
could provide the funding sought.  The President was copied in
the request
to the Minister.  Regulation 8 of the Regulations
issued by the Commission concerned the rights of persons appearing
before
the Commission to be assisted by a legal representative.
According to that provision, “[a]ny person appearing before

the Commission may be assisted by an advocate or an attorney”.
[4]
Magidiwana and Others v President of the
Republic of South Africa and Others
[2013]
ZACC 27
;
2013 (11) BCLR 1251
(CC) (
Magidiwana
I
).
[5]
Magidiwana and other injured and arrested
persons v President of the Republic of South Africa and Others (No
2)
[2013] ZAGPPHC 292;
[2014] 1 All SA
76
(GNP) (High Court judgment) at para 78.
[6]
Section 9(1) of the Constitution provides:
“
Everyone
is equal before the law and has the right to equal protection and
benefit of the law.”
Section 34 of the
Constitution 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.”
[7]
High Court judgment above n 5 at paras 93-5.
[8]
Legal Aid claims that this agreement was not
final by the time of the hearing before the Supreme Court of Appeal
and was only
finalised after the Court dismissed the appeal.
Regardless of the timing of these events, by the time the matter
came before
this Court, funding had been irrevocably advanced to the
miners.
[9]
10 of 2013.  This section provides that
“[w]hen at the hearing of an appeal the issues are of such a
nature that the
decision sought will have no practical effect or
result, the appeal may be dismissed on this ground alone”.
[10]
Legal Aid South Africa v Magidiwana and Others
[2014] ZASCA 141
;
2015 (2) SA 568
(SCA);
[2014] 4
All SA 570
(SCA) (Supreme Court of Appeal judgment) at para 18.
[11]
Id at para 15.
[12]
The majority found that in light of the funding
agreement, there was no
lis
(dispute)
between the parties and, at para 22, concluded that “where the
parties have by agreement settled all disputes
between them, as a
matter of principle there is no discretion for this court to
exercise under section 16(2)(a)(i)”.
The minority
disputed this finding, holding, at para 30, that “courts have
the discretion, which must be applied sparingly,
to hear disputes in
appeals which are academic between the parties if there is a good
reason in the public interest for doing
so”.
[13]
See n 6 above.
[14]
The respondents participating in these
proceedings, namely the miners, families, AMCU and the
Ledingoane Family.
[15]
In
MEC for
Education: KwaZulu-Natal and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC)
(
Pillay
),
this Court was faced with an issue that was not only moot between
the parties, but the impugned guidelines also changed.

However, a major factor that influenced the Court’s decision
to hear the matter, at para 34, was that the guidelines
in that
case did not have the force of law and were not binding on schools.
Thus there was a danger of schools in the future
implementing these
potentially constitutionally invalid policies.  Since the Legal
Aid guidelines do have the force of law
and have been changed, this
danger does not arise.
[16]
Item 10.2.3(a) of the Guide provided:
“
The
CEO may exercise a general discretion to:
•
Waive any condition, procedure or policy set out
in this Guide as long as this is within the overall authority of the
Legal Aid
Act.
•
Provide for any issue not covered in this Guide.
However,
when the CEO exercises this discretion, he/she must report on it to
the Board or Board Executive Committee at the next
regular meeting.”
[17]
Item 4.20 of the 2014 Guide provided, in relevant
part:
“
Where
funds are made available by the establishing authority of the
commission, legal aid should be provided for the purpose of
legal
representation at commissions for persons appearing before a
commission of inquiry where the commission has certified that
they
have standing before the commission.  Where such funding is not
made available, then legal aid will only be made available
in
exceptional circumstances such as where a person has a substantial
and material interest in the outcome of the commission
and which
could materially influence the outcome of any potential civil claim,
provided that:
(a)
such person/s are indigent and qualify in terms of the means test;
(b)
such person/s has/have been certified by the Commissioner that they

have a proper standing before the commission;
(c)
the prospect of hardship to the person/s if assistance is declined;
(d)
the nature and significance of the evidence that the person/s is/are

giving or appears likely to give;
(e)
the extent to which representation is required to enable the inquiry

to fulfil its purpose;
(f)
whether the interests of a person will be advanced by any
other
person/association certified to appear before the commission;
(g)
any other matter relating to the public interest.”
[18]
Item 4.20 of the Legal Aid Guide, February 2015,
now reads:
“
Where
funds are made available by the establishing authority of the
commission, legal aid should be provided for the purpose of
legal
representation at commissions for person/s appearing before a
commission of inquiry where such persons have been certified
by the
Commissioner as having proper standing before the commission.
Subject
further that where such funding is made available, such funding
shall be provided subject to compliance with unsolicited
proposals
dealt with under National Treasury Practice Note 11 of 2008/2009,
where such persons seek to use/appoint practitioners
of their own
choice.  Judicare tariffs as set out in Annexure F will apply
where a legal practitioner in private practice
is instructed”.
[19]
While the latest version of item 4.20 does not
provide a framework in which to guide funding decisions in the
scenario where the
establishing authority does not provide funding,
the amendment may still affect the nature of the CEO’s
decision to fund.
It could, for example, affect whether the
discretion exercised is to “waive a condition” in the
Guide or to “provide
for any issue not covered in the Guide”.
It may influence how Legal Aid’s role in funding legal
representation
at commissions is understood, possibly clarifying
that the duty is primarily on the establishing authority and should
be determined
in conjunction with the particular inquiry’s
terms of reference.  It is unnecessary to definitively decide
these points
but they indicate a shift in emphasis for these types
of funding decisions.
[20]
Supreme Court of Appeal judgment above n 10 at
para 13.
[21]
High Court judgment above n 5 at para 38, the
Court held:
“
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 section 34 finds
application
.  It is therefore not
feasible, nor desirable, to lay down an inflexible list
of such considerations.
For the present
purposes
I take the following into
consideration”.  (Emphasis added.)
[22]
Id at paras 37-8.
[23]
Id at para 69.
[24]
In
Mbebe and Others
v Chairman, White Commission and Others
2000 (7) BCLR 754
(Tk) (
Mbebe
),
the Court had to determine whether section 236(6) of the Interim
Constitution – which empowered the President to appoint
a
Commission, presided over by a judge, to, amongst others, review the
conclusion or amendment of a contract in respect of the
appointment
or promotion of certain civil servants – was inconsistent with
section 34 of the Constitution.  The Court
found, at 773H-I,
that a commission established in terms of section 236(6), while not
a court of law, was a
sui generis
(in a class by itself) entity with the characteristics of a
commission, but with the power to make final decisions affecting
the
rights of persons.  The Court considered it relevant that—
“
[i]n
the instant matter the procedures that were adopted by the
[Commission] were largely consistent with those employed in an

ordinary court of law.  The applicants were given the right to
legal representation, the right to cross-examine the witnesses
who
were called by the official appointed by the commission to perform
such function and the right to give evidence and to call
witnesses.
In practice therefore the applicants were afforded the same rights
as those enjoyed by a litigant in ordinary
civil proceedings.”
The
Court concluded, at 775J-776D, that the Commission was an
independent and impartial tribunal as envisaged in section 34.

In
Bongoza v Minister of Correctional
Services and Others
2002 (6) SA 330
(TkHC) (
Bongoza
),
the Court stated, at para 23, that the “provisions of section
34 plainly show that the Constitution does not regard courts
of law
as having an exclusive competence to act fairly.  Nor are they
considered as having an exclusive entitlement to independence
and
impartiality”.  In
Sidumo v
Rustenberg Platinum Mines
[2007] ZACC
22
;
2008 (2) SA 24
(CC);
2008 (2) BCLR 158
(CC)
(
Sidumo
),
the concurrence of O’Regan J concluded, at
para 124, that the functions performed by the Commission for
Conciliation, Mediation
and Arbitration (CCMA) fell within the terms
of section 34.  In the dissent, Ngcobo J held, at para 207,
that a dispute
before the CCMA could have been litigated in a Labour
Court but for the Legislature’s desire for a speedy and less
costly
dispute resolution process.  Ngcobo J held, at para 208,
that the function of the CCMA was judicial in nature and not
administrative.
He further held, at para 209, that
arbitrations provide independent and impartial tribunals as
contemplated in section 34.
It is
true that in
Mbebe
and
Sidumo
the adjudicative nature
of the Commissioner’s powers was important to the finding that
section 34 applied, while in this
case, the High Court found that
whether the Commission was judicial or quasi-judicial was not
relevant.  However, the label
“quasi-judicial” is
of little significance if read in the context of the judgment as a
whole because in
Mbebe
and
Sidumo
, the meaning of
“adjudicative” or “judicial” indicated the
extent to which rights were determined or
affected by the
Commissioner’s decision.  This too was part of the test
employed by the High Court in this case.
[25]
High Court judgment above n 5 at para 67 stated:
“
For
all of the above considerations, I conclude therefore that section
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?”
[26]
This Court has not considered the merits of the
decision of the High Court and makes no pronouncement in that
regard.  The
only inquiry presently before the Court is the
future impact, if any, of the judgment.
[27]
In
Independent
Electoral Commission v Langeberg Municipality
[2001]
ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) (
Langeberg
)
at para 11, this Court held that it may be in the interests of
justice to hear a matter even if it is moot if any order it “may

make will have some practical effect on the parties or on others”.
[28]
Section 35(3)(g) provides:
“
Every
accused person has a right to a fair trial, which includes the
right
to
have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly”.
[29]
AAA Investments (Pty) Ltd v Micro Finance
Regulatory Council and Another
[2006]
ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) (
AAA
Investments
) at para 27.
[30]
The Commission’s proceedings have been
concluded and Legal Aid has agreed that it will not seek repayment
should it be successful
on appeal.
[31]
The Commission’s Terms of Reference, above
n 2, stated:
“
The
Commission is appointed to investigate matters of public, national
and international concern arising out of the events at
the area
commonly known as the Marikana Mine in Rustenburg, North West
Province from Saturday 09 August – Thursday 18 August,
2012
which led to the deaths of approximately 44 people, more than 70
persons being injured, approximately 250 people being arrested
and
damage and destruction to property.”
Further,
the Terms of Reference provided that the Commission had to “inquire
into, make findings, report on and make recommendations
concerning”
the conduct of Lonmin, the SAPS, AMCU, NUM, the role of the
Department of Mineral Resources or any other government
entity
implicated in the events, and “[t]he conduct of individuals
and loose groupings in fermenting and/or otherwise promoting
a
situation of conflict and confrontation which may have given rise to
the tragic incident”.
[32]
The Minister’s letter, in relevant part,
stated:
“
The
Legal Aid Board of South Africa is the only existing framework
through which the State can provide legal assistance in legal

proceedings to persons
who meet
the
requirement for such . . . assistance.  As you are aware, the
Legal Aid system is intended for criminal proceedings and
certain
civil proceedings before court[s] of law and do not include
representation before commission[s] of inquiry.”
[33]
In the Legal Aid Act (2014), n 1 above, reference
is made to the Legal Aid “Manual” instead of the
Legal Aid “Guide”.
For our purpose, we
refer to the latter because the Act was in force at the relevant
time. However, the provisions of the guide
relating to the manual
are substantially consistent.
[34]
Legal Aid said:
“
The
decision was taken in the context of making an exception to the
general rule to fund the 23 bereaved families represented
by [the
Socio-Economic Rights Institute] due to our shared concern over the
tragic events of Marikana that have shocked the nation.
The
decision was also taken in the context of our funding constraints.
As was previously communicated to you in our letter
of 18 October
2012 . . . the reality is that our funding constraints do not permit
us to consider your request for funding.”
[35]
See 1969 Act above n 1.
[36]
The Constitution expressly provides for legal
representation at State expense in only three instances as provided
in section 28(1)(h),
section 35(2)(c) and section 35(2)(g).
The Constitution provides in section 28(1)(h):
“
Every
child has the right—
to
have a legal practitioner assigned to the child by the state, and at
state expense, in civil proceedings affecting the child,
if
substantial injustice would otherwise result”.
The
Constitution provides in section 35(2)(c):
“
Everyone
who is detained, including every sentenced prisoner, has the right—
to
have a legal practitioner assigned to the detained person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of the right promptly”.
The
Constitution provides in section 35(3)(g):
“
Every
accused person has a right to a fair trial, which includes the
right—
to
have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly”.
[37]
Magidiwana I
above
n 4 at paras 14-6.
[38]
High Court judgment above n 5 at para 22.
[39]
Id at para 27.
[40]
Id at para 36.
[41]
Id at para 37.
[42]
Id at para 38.
[43]
Id at paras 40-3.
[44]
Id at para 44.
[45]
Id at para 45.
[46]
Id at paras 46-7.
[47]
Id at paras 48-9.
[48]
Id at paras 50-4.
[49]
Id at para 66.
[50]
Id at para 67.
[51]
Id at para 68.
[52]
Id at para 74.
[53]
Id at para 97.  However, the Court did not
draw any ultimate conclusion regarding the rationality of the
refusal, nor did
it consider all of the reasons proffered by Legal
Aid.
[54]
Id at para 91.
[55]
Id at para 95.
[56]
Id at para 96.
[57]
Id at para 102.
[58]
Above n 9.
[59]
Supreme Court of Appeal judgment above n 10 at
para 1.
[60]
Although the Supreme Court of Appeal was
unanimous that deciding the appeal would have no practical effect,
the Court was divided
on the question of whether it retained
discretion even where there was no
lis
(dispute) between the parties.  The majority held that it did
not.
[61]
Legal Aid explained that it is allocated a finite
amount of money from the National Revenue Fund, which it must
allocate in pursuit
of the objects of the Act and in accordance with
the Constitution.  In addition to the recipients whose legal
representation
Legal Aid is constitutionally obliged to fund, the
budget is committed in accordance with Legal Aid’s policy on
all programmes.
[62]
Van Wyk v Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) (
Van
Wyk
) at para 29.  See also
AAA
Investments
above n 29 at para 27;
Radio Pretoria v Chairperson,
Independent Communications Authority of South Africa and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para
22;
Langeberg
above
n 27 at para 9; and
President, Ordinary
Court-Martial and Others v Freedom of Expression Institute and
Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999 (11) BCLR 1219
(CC) at para 13.
[63]
Id
Van Wyk
.
[64]
Above n 15 at para 32.
[65]
Main judgment at [21].
[66]
Main judgment at [20].
[67]
Supreme Court of Appeal judgment above n 10 at
para 13.
[68]
High Court judgment above n 5 at para 37.
[69]
The High Court in
Mbebe
above n 24 at 775-6, in finding that
section 34 applied to the White Commission, which had been
established to review the promotions
given to members of the
Transkeian police force, held that it was accepted “for the
purposes of this judgment that the
decision of the [White
Commission] to reverse the applicants’ promotions was judicial
in nature”.  In
Bongoza
above n 24, the High Court again
considered section 34’s application to the White Commission.
It provided, however,
no independent analysis as to whether section
34 applied to the White Commission, but appears to have proceeded
from the assumption
that it did (see paras 22-3).  It certainly
did not expressly differ from the finding in
Mbebe
as to the White Commission’s nature.  In
Sidumo
above n 24, at paras 208-9, Ngcobo J,
who in his dissenting judgment, but concurring on this point,
considered the application
of section 34 to the CCMA at the greatest
length, grounded his finding that it did apply in the fact that
“CCMA arbitrations
bear all the hallmarks of a judicial
function”.  Similarly, in the concurring judgment by
O’Regan J, at paras
124-5, she held that the CCMA’s task
is “adjudicative in character” and therefore falls
within the scope of
section 34.  The majority judgment, which
considered section 34 only briefly, referred to the CCMA as
exercising a
“quasi-judicial” function (at paras 84, 88
and 111-2).
[70]
High Court judgment above n 5 at para 36.
[71]
The judgments of Ngcobo J, O’Regan J and
Navsa AJ in
Sidumo
,
above n 24, for example, all adopted different approaches to the
question of how to characterise the function of the CCMA (see
paras
111-2, 124-5 and 208-18).
[72]
See
Mbebe
above n 24 at 775-6;
Bongoza
above n 24 at para 25;
Sidumo
above n 24 at paras 84, 124, 139 and 208.
[73]
High Court judgment above n 5 at para 38.
[74]
Id at paras 40-54.
[75]
See
Mbebe
above n 24 at 774-6;
Bongoza
above n 24 at paras 23-5;
Sidumo
above n 24 at paras 111-2, 124-5 and 208-18.
[76]
High Court judgment above n 5 at para 67.
[77]
See for example,
Bangindawo
v Head of the Nyanda Regional Authority
1998
(3) SA 262
(Tk) at 277E.  There the High Court held that—
“
I
accept Mr Trengove’s submission that, even though there be no
specific mention of the right to legal representation in
civil
cases, the right of access to court and of having justiciable
disputes settled by courts would be rendered entirely nugatory
if,
in respect of civil proceedings
,
it were to be held that there is no constitutional right to legal
representation.”  (Emphasis added.)
[78]
High Court judgment above n 5 at para 68.
[79]
Nkuzi Development Association v Government of
the RSA
2002 (2) SA 733
(LCC) (
Nkuzi
).
[80]
Id at para 6.
[81]
High Court judgment above n 5 at para 68.
[82]
See
De Lange v
Presiding Bishop, Methodist Church of Southern Africa and Another
[2014] ZASCA 151
;
2015 (1) SA 106
(SCA) at para 26;
Commission for Conciliation, Mediation
and Arbitration and Others v Law Society of the Northern Provinces
[2013] ZASCA 118
;
2014 (2) SA 321
(SCA) at para 19; and
Hamata
and Another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee, and Others
[2002] ZASCA 44
;
2002 (5) SA 449
(SCA) at
para 5.
[83]
Nkuzi
above n 79
at para 6.
[84]
Main judgment at [21].
[85]
Id at [22] and [23].
[86]
High Court judgment above n 5 at para 38.
[87]
Id at para 69.
[88]
To illustrate the point, the Ledingoane family
points to the transcripts of various commissions of inquiry in South
Africa stored
on JStor “Struggles for Freedom: South Africa”
Commissions of Inquiry, South Africa
online digital library of scholarly resources
,
available at https://www.aluka.org/struggles/collection/COMENQ.
[89]
High Court judgment above n 5 at paras 30-4.
[90]
Interestingly,
the main judgment at [24]
endorses the delineation of the right in section 34 as adopted in
Mbebe
and
Bongaza
without properly considering whether
those High Court decisions were correct in law and dealing with the
scope of that right
as outlined by the High Court in this matter.
In view of what this Court said in
Gcaba v Minister for Safety
and Security and Others
[2009] ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) at paras 58-62 regarding the sound
jurisprudential basis for the doctrine of precedent ‒ to stand
by decisions and
not disturb settled matters (
stare decisis et
non quieta movere
), the endorsement by this Court may, in
future, frustrate legal certainty.
[91]
See above n 36.
[92]
This follows from the fact that the findings were
dispositive of the issues in the High Court and made before any
consideration
of rationality.
[93]
High Court judgment above n 5 at para 22.
[94]
Id at para 98.  Although this statement was
made in the context of section 9 and the rationality enquiry, it is
equally applicable
to the right to legal representation which the
High Court found in section 34.
[95]
The rationality basis of the decision is also
belied by the manner the Court treated the issue.  The only
express conclusion
drawn by the Court regarding whether Legal Aid’s
decision met the rationality standard, frames that finding in para
97
in the alternative: “In any event, I am also of the view
that Legal Aid’s conduct would not pass a general rationality

requirement”.
[96]
See above n 15.
[97]
See above n 16.
[98]
New Brunswick (Minister of Health and
Community Services) v G (J)
[1999] 3
SCR 46
(
New Brunswick
).
[99]
Id at para 42.
[100]
Id.
[101]
Id at para 46.
[102]
Id at para 47.
[103]
Id at para 48.  The Court’s reasoning
is worth setting out in full, as it demonstrates the nature of the
similarities
in the legal principles on which the Court relied to
those of South African law.  The Court reasoned as follows at
paras
41-8:
“
A
moot case is one in which a decision of the court “will not
have the effect of resolving some controversy which affects
or may
affect the rights of the parties”.  As a general rule,
the Court will not decide moot cases.  However,
the Court may
exercise its discretion to decide a moot case in certain
circumstances.  . . .
There
can be little doubt that the present appeal is moot, and that the
response to the first question is affirmative.  At
issue is
whether the Government of New Brunswick was under an obligation to
provide state-funded counsel to the appellant in
the circumstances
of this case.  The appellant, though, was in fact represented
by counsel at the custody hearing, the custody
order has expired,
and she has since regained custody of her children.
Consequently, there is no ‘live controversy’
in this
appeal.  The tangible and concrete dispute has disappeared, and
the issue has become academic.
Nevertheless,
the Court has decided to exercise its discretion to decide this
case.  In
Borowski
, Sopinka J identified three criteria
relevant to the Court's exercise of discretion: the presence of an
adversarial context,
the concern for judicial economy, and the need
for the Court to be sensitive to its role as the adjudicative branch
in our political
framework.
Applying
these criteria to this appeal, I am satisfied that there was an
appropriate adversarial context.  The appeal was
vigorously and
fully argued on both sides by the parties and the interveners.
Turning
to the second factor, this Court has held on a number of occasions
that an expenditure of judicial resources is warranted
in cases
which raise important issues but are evasive of review.
The
present appeal is a case in point.  The question of whether a
parent has a right to state funded counsel at a custody
hearing
is undoubtedly of national importance.  Similar cases may arise
in the future, and the Court has an opportunity
to clarify the law
and provide guidance to the courts below.  . . .
While
similar cases may arise in the future, they are by nature evasive of
review.  This is so for two reasons.  First,
the custody
order will ordinarily have expired by the time the matter comes to
this Court, rendering the controversy moot.  The
Court will
therefore likely have to decide a moot case if it ever wants to
address this issue.  . . . Second, it is unlikely
that
appellants will be able to retain counsel for an appeal if they were
unable to retain counsel at the initial hearing.  As
a result,
few cases will ever be appealed to this Court, since the assistance
of counsel is almost invariably required in negotiating
the appeal
process.
Finally,
the Court is not overstepping its institutional role in deciding
this case.  Unlike
Borowski
,
the appellant is not requesting a legal opinion on the
interpretation of the
Charter
in the absence of legislation or other governmental action which
would otherwise bring the
Charter
into play.  While the issue in this case is moot, it is not
abstract.”  (References omitted.)
[104]
Magidiwana I
above
n 4 at para 16.
[105]
New Brunswick
above n 98 at para 47.
[106]
Magidiwana I
above n 4 at paras 14-6.
[107]
See, for example,
British
Columbia (Attorney General) v Christie
2007 SCC 21; [2007] 1 SCR 873.
[108]
See above n 4.
[109]
See
New Brunswick
,
above n 98 at paras 57, 61 and 66.
[110]
See article 45(i) of the Charter of Organisation
of American States which provides that states must provide “adequate
provisions
for all persons to have due legal aid in order to secure
their rights”.
Additionally,
article 14 of the International Covenant on Civil and Political
Rights (999 UNTS 171) (ICCPR) provides that “in
the
determination of any criminal charge against him” he has the
right “to have legal assistance assigned to him,
in any case
where the interests of justice so require, and without payment by
him”.
See finally principle 1 of
the United Nations Principles and Guidelines on Access to Legal Aid
in Criminal Justice Systems that
recognises legal aid as an
“essential element of a functioning criminal justice system”.
(UN Doc. A/C.3/67/L.6
(New York, 3 October 2012).)
[111]
Airey v Ireland,
no 6289/73,
§ 24, ECHR 1979.
[112]
Article 6(1) provides:
“
In
the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair
and
public hearing within a reasonable time by an independent and
impartial tribunal established by law.  Judgment shall
be
pronounced publicly but the press and public may be excluded from
all or part of the trial in the interests of morals, public
order or
national security in a democratic society, where the interests of
juveniles or the protection of the private life of
the parties so
require, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity
would prejudice the
interests of justice.”
[113]
See above n 111 at 21.
[114]
For example,
Tabor
v Poland
, no
12825/02, § 31 and
39, ECHR 2006
;
Bertuzzi
v France
, no
36378/97, § 21, 24 and
31, ECHR 2003
;
McVicar
v UK
, no 46311/99,
§ 33, 40,
47-52, ECHR 2002
;
P,
C, and S v UK
,
no 56547/00, §
89, ECHR 2002
; and
Steel
and Morris v UK,
no
68416/01, § 53, 55, 59-61 and
63 ECHR 2005.
Similarly, article 14 of
the ICCPR, which provides in part that “[a]ll persons shall be
equal before the courts and tribunals”
has been interpreted to
require the provision of legal aid in certain
civil
matters,
but is engaged “whenever domestic law entrusts a
judicial
body with a
judicial
task” (Human Rights Committee,
General Comment no 32, article 14: Right to equality before courts
and tribunals and to
a fair trial, UN Doc. CCPR/C/GC/32 (2007).)
(Emphasis added.)
[115]
See in this regard the remarks by this Court in
Magidiwana I
above
n 4 at para 15.
[116]
The strangeness of the High Court’s
understanding of this issue is underscored by its statement at para
93 that the miners
“are visited with disadvantages, solely
because they have survived a police shooting”.  It is
true that had
they not survived the shooting they would not have
been visited with these disadvantages, but their survival can hardly
be said
to be the cause of those disadvantages.
[117]
Harksen v Lane and Others
[1997]
ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(
Harksen
)
at para 47.
[118]
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration and Others
[2006]
ZASCA 175
;
2007 (1) SA 576
(SCA) at para 34.