ConCourt to hear Marikana funding application

2015-05-13 21:23


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Johannesburg - The Constitutional Court will on Thursday hear an application for leave to appeal a ruling which compelled Legal Aid SA to fund the legal representatives of miners at the Marikana Commission of Inquiry.

The miners, approximately 300 of them, secured private funding for legal representation for only the first few months of the commission.

They then applied to Legal Aid to fund them for the rest of the inquiry, but, this request was refused on the grounds that the legal aid system was not intended to cover commissions of inquiry.

However, it had previously agreed to fund the legal representatives of 23 families of the miners who were killed.

Legal Aid said because of budget constraints it could not also fund the miners.

Thirty-four people were killed near Lonmin's platinum mine near Marikana, North West, when police tried to disperse striking miners on August 16, 2012. More than 78 people were injured.

Ten people, including two police officers and two Lonmin security guards, were killed in the previous week.

In June 2013, Mzoxolo Magidiwana approached the High Court in Pretoria on behalf of the miners to compel the president, the justice minister and Legal Aid to provide the miners with state-funded legal representation for the rest of the commission.

The high court granted the application and found that Legal Aids decision not to help the miners was irrational and constitutionally invalid as it violated their rights to equality before the law.

Legal Aid appealed the decision at the Supreme Court of Appeals.

Prior to the SCA hearing it reached an agreement with the miners to provide the funding needed regardless of the outcome of the appeal.

The SCA dismissed the appeal on the basis that the decision would have no particular effect because of the agreement.

Legal Aid has approached the Constitutional Court because it contends that while the matter might have no effect on the parties it is in the interest of justice to hear the matter because the high court decision set a precedent that other courts could interfere with the discretion of Legal Aid regarding the allocation of funding.  

Legal Aid maintains that the right to a fair public hearing does not include the right to state-funded legal representation at commissions of inquiry and that its decision not to fund the miners was rational and valid.

The respondents, argue that the Legal Aid guide on the basis of which the earlier decision was made. had been amended since the high court judgment. The present one now contained specific provisions for funding for commissions of inquiry in certain instances.

They further argue that the right to access to a fair public hearing imposed a duty on Legal Aid to provide state-funded representation to the miners at the commission.

Read more on:    marikana inquiry

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