ConCourt lets Marikana legal aid ruling stand

23 September 2015 - 09:50 By Nomahlubi Jordaan

A 2013 high court order compelling Legal Aid South Africa to provide legal representation for mine workers injured or arrested at Marikana does not oblige the state-funded body to supply similar funding for all commissions of inquiry in the future. Instead‚ the decision to provide legal aid depends on the circumstances in every application.This was the ruling by eight judges of the Constitutional Court‚ who on Tuesday dismissed Legal Aid SA’s application for leave to appeal against the Pretoria High Court's order and the Supreme Court of Appeal's (SCA's) subsequent dismissal of its appeal.The Constitutional Court‚ just like the SCA before it‚ dismissed the application because it was moot and a judgment would have no impact on the parties' positions.The Marikana Commission of Inquiry was established in 2012 by President Jacob Zuma to investigate the events leading up to police opening fire on striking Lonmin mine workers at Marikana in North West on August 16‚ 2012. The shootings left 34 people dead‚ while 10 people died in the violence linked to the wildcat strike in the week before the shootings.Mine workers who were injured or arrested initially secured private funding for legal representation at the commission but when their funds dried up‚ they applied for funding from Legal Aid.Legal Aid refused‚ saying that the legal aid system was not intended to cover commissions of inquiry. It was‚ however‚ funding representation for families of the killed mine workers.The Pretoria high court found that Legal Aid's refusal was irrational and inconsistent with the right to equality before the law. It ordered the body to take steps to provide funding for the miners to be represented at the Marikana Commission of Inquiry.Legal Aid appealed to the SCA but reached an agreement with the miners to represent them at the commission‚ prompting the SCA to rule that the matter was moot.In its application for leave to appeal before the Constitutional Court‚ Legal Aid argued that matter was not moot because the high court order laid down principles that could apply to commissions of inquiry and investigative tribunals in future.Acting Constitutional Court Judge Leona Theron‚ in a judgment supported by seven judges‚ found that Legal Aid’s argument was “unpersuasive”.“The High Court was careful to circumscribe the application of the judgment to the singular circumstances surrounding the Marikana Commission. 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‚” Theron said.In a dissenting judgment‚ Justice Bess Nkabinde said though the matter was moot‚ it was in the public interest for the Constitutional Court to decide it."[The high court judgment's] implications for Legal Aid and those who seek to benefit from its assistance are‚ in my view‚ potentially of great significance‚" she said.Nkabinde said she would have granted leave to appeal and upheld the appeal in order to set aside the high court's decision.She said an obligation for Legal Aid to provide representation at such commissions will limit its budget to represent indigent and vulnerable claimants in other matters. - TMG Courts and Law..

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