Cold collusion?

2013-08-05 10:00

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Mukaddam and Marikana: no connection, or intricately linked? Paul Hoffman examines the parallels.

Coming as it does, hard on the heels of the already famous bread cartel “Mukaddam decision” in the Constitutional Court, the decision of Judge Joseph Raulinga in the North Gauteng High Court is of interest.

It was delivered orally in the matter of the question of state financing for the Marikana miners who have been represented at the Marikana Commission of Inquiry into what is variously called the tragedy or the massacre at the Lonmin mine near Rustenburg.

The result is bound to be disappointing to the miners and those who would prefer to see access to justice expanded.

The typed judgment is not yet available, but the judge read into the record his full reasons for sending the miners away empty-handed.

At the core of the case are the right to just administrative action and the right to access to courts.

The Bill of Rights is easy to follow on these topics.

Everyone is entitled to administrative action that is lawful, reasonable and procedurally fair.

Everyone also has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing – either in court or in an independent and impartial forum.

The penniless miners, some wounded by police bullets, some facing serious criminal charges, were unsuccessful in their quest for funding for the lawyers who have been representing them at the commission thus far.

Their urgent application was partially successful in that the court, relying on the Mukaddam ruling, certified their class action for the substantive relief claimed.

But they failed on the merits as the court did not help them beyond encouraging the numerous parties to the dispute over funding for lawyers to settle among themselves.

It is difficult to foresee Lonmin offering to pick up the tab, or even half of it, and the attitude of state players is that they are not obliged to pay anything at all.

An appeal to the Constitutional Court looms, despite the fact that the decision of Legal Aid SA not to come to the miners aid has not been taken on review yet.

The matter bristles with interesting and novel points.

The judge deserves sympathy for having to wrestle with them under severe time constraints.

The new human rights culture that emerges from the Bill of Rights guarantees to all that the state will respect, protect, promote and fulfil the rights to access to courts and to just administrative action.

The learned judge correctly points out that the commission is not a court of law.

It is a fact-finding body brought into existence essentially to get to the bottom of last year’s Marikana incident.

The commission is taking an inordinately long time to get its work done. This is due in part to the large number of interested parties who have been allowed to be represented.

The pertinacity on display has added to the life of the commission, which has been at pains to be scrupulously fair to everyone, sometimes under trying circumstances.

The new chief of police, Riah Phiyega, occupied the witness box for about six weeks and was taken through an extensive process of cross-examination.

The court in refusing to come to the aid of the applicants points to the prerogative of the executive to come up with means of helping the indigent to have legal advice and assistance.

The duty of the executive to govern in a way that is open, accountable and responsive to the needs of the applicants has apparently not been given the amount of weight that the applicants would prefer to see.

Legal Aid SA is the body tasked with finding some sort of funding for accessing justice by the indigent and the poor.

The rules relating to its functioning do not make provision for legal representation at commissions of inquiry.

And, at least in theory, the commissions appointed as an executive tool to investigate in matters such as that of Marikana are not determining disputes formally declared, pleaded, placed in charge sheets or defined in other ways.

Nevertheless, the terrain covered thus far indicates that there are indeed disputes as to who is to blame for the miners’ deaths.

One in which a new union was in the process of replacing an old one and the issue of wages was hotly contested not only with the employer, Lonmin, but also between the competing unions.

There will be an appeal to the Constitutional Court where greater sympathy was encountered by the bread distributors represented by Mr Imraahn Ismail Mukaddam, who had lost his novel case both in the high court and in the Supreme Court of Appeal.

The cases are not on all fours, but the principle of access to justice is common to both.

It is also possible that the structure and operations of Legal Aid SA will be examined, perhaps even reviewed, with a view to finding better ways to achieve the elusive access to legal representation that the poor currently lack.

When a commission that is considering contentious issues conducts its work in the style of a court, it is a little difficult to understand why it should be treated any differently to a court of law adjudicating disputes between contesting parties.

The miners and the police are in a seriously heavy conflict over what exactly happened and who is responsible.

The playing field is not level for them for so long as the police are able, at public expense, to tap into the best legal talent available, while the miners are unfairly made to do without representation.

A proper result fairly arrived at out of the crucible of good cross-examination of the versions presented, could lead to a report that will eliminate later cases, or at least curtail them, and could thereby prevent the frittering away

of resources on all manner of subsidiary claims arising from the goings-on at Marikana.

What Mukaddam and the Marikana miners have in common is the losses in the lower courts. It remains to be seen whether the miners are able to reverse their fortunes on appeal.

»?Hoffman is a director of the Institute for Accountability in Southern Africa

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