SCA says why aid board appeal dismissed

2014-09-27 14:41

Johannesburg - The Supreme Court of Appeal gave reasons on Friday as to why it dismissed an earlier appeal by Legal Aid SA against a high court ruling that it had to pay the legal fees of Marikana miners.

Judge Visvanathan Ponnan said in his judgment that at the outset of the hearing of the appeal, counsel were required to address argument related to a section of the Superior Courts Act 10 of 2013 on whether the appeal would have "any practical effect or result".

"After hearing argument on this issue, the appeal was dismissed on 8 September 2014 in terms of that section and each party was ordered to pay its own costs of the appeal. "It was intimated then that reasons would follow. These are those reasons," he said in the judgment.

The SCA found that since Legal Aid and the other parties had agreed to settlement where it would provide the required funding for the full duration of the unfunded period of the commission, the outcome of the appeal would "be a matter of complete indifference" to Legal Aid.

On 14 October, Judge Tati Makgoka of the Gauteng North High Court in Pretoria set aside Legal Aid's refusal to pay for representation for miners at the Farlam commission of inquiry.

He ordered it to take immediate steps to provide legal funding for their participation before the commission, and also to pay their costs. The court also granted Legal Aid leave to appeal the ruling.

Legal Aid told the SCA that when the injured and arrested miners applied for funding, their application had been declined on the basis that it had previously granted funding to 23 families who had lost breadwinners during the Marikana incident, and that the Legal Aid CEO had applied her discretion.

According to Legal Aid, the high court usurped the CEO's discretion through its ruling, and it now "opens the floodgates" to claims on its resources.

Unusual nature

The SCA found that there was no discrete legal issue in that argument and it was "precluded from exercising its discretion and entering into the merits of that matter".

"Because of the highly unusual nature of the Marikana incident, and the small probability of it being repeated, any future such matter would have to be decided on its own peculiar facts," the judgment said.

"Accordingly, any decision in the instant matter would be unlikely to be relevant or applicable in a future matter. The uniqueness of this matter will thus in all likelihood distinguish this case from any other that... [Legal Aid] and in turn a court is likely to be confronted with in the future."

The Farlam commission is probing the deaths of 44 people at Lonmin's platinum mining operations in Marikana, near Rustenburg, North West.

On 16 August 2012, 34 people, mostly striking miners, were shot dead and 78 people were wounded when police fired on a group gathered at a hill near the mine while trying to disarm and disperse them.

In the preceding week, 10 people, including two policemen and two security guards, were killed in the strike-related violence.

  • sxp - 2014-09-27 15:35

    Basically the court decided that the taxpayer has to pay for the miners who all on their own decided to go on a murdering rampage? This is theft.

  • Phil Galpin - 2014-09-27 17:10

    Pro's. Court has shown that the government cannot decide who gets funded at courts and thereby undermining the cases that are politically inconvenient. Also read PP's funding. Cons. Certain lawyers gets oodles of money to buy red hardhats (or Breitling watches).

  • Mpho David Rambuda - 2014-09-27 17:16

    That is what legal aid is there for, to pay for legal representation of all those who face criminal charges and are without their own financial means to a avoid a kangaroo court setup. The state is also spending our taxes to represent the other side.

      Matome Lucky - 2014-09-27 17:20

      Commission of enquiry is not a criminal court. It is a fact-finding exercise sort of.

  • Michael Ndalama Mwale - 2014-09-27 19:40

    Shame on you Legal Aid Board for trying to deny the the dead and injured miners the right to fight for justice. It's indeed a shameful act part because you are trying to deny them what you stand for. Isn't that hypocricy on your part?

  • Mpho David Rambuda - 2014-09-27 20:09

    The miners were arrested after the massacre and charged with the murder of their colleagues. These charges were dropped very recently. How did people expect the same people to participate in a commission without legal representation and possibly incriminate themselves.

  • El'roy Dave - 2014-09-28 06:45

    That's the things that law stand on the side till they die, you saw them maybe, all officials that side they do kill some animals for their pockets and they did know they never gonna find nothing, just like the others. Every officials their cases is dismissed or wrongfullness and you can't do nothing About it the has spoken.

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