Marikana Commission: more questions than answers

The South African Bill of Rights does not provide anyone with a right to legal representation in all cases where their rights or interests are affected. Section 35(3)(g) of the Bill of Rights does state that 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.

However, the Marikana Commission is not a criminal court, and although it will make findings of fact as well as recommendations of how to avoid a similar disaster in future, these are not legally binding on the president (whom it was appointed to advise), nor on the Prosecuting Authority. Those who have withdrawn from the proceedings are therefore not accused persons entitled to legal representations in terms of this section of the Bill of Rights.

Of course, section 33 of the Constitution guarantees for everyone a right to administrative action which is lawful, reasonable and procedurally fair (a right that is given effect to in the Promotion of Administrative Justice Act), while section 34 states that 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”.

With substantial interpretative footwork, I suspect one could possibly make out an (almost) plausible case that the Commission cannot be said to engage in a constitutionally valid fair process where the legal representation of the most vulnerable and marginalised individuals affected by its work are not funded by the state. The fact that the Commission chose to conduct its hearings in a semi-judicial manner – with expensive lawyers taking up days and even weeks to cross-examine witnesses – might help to bolster the argument.

Given the fact that the findings of the Commission of Inquiry might have drastic consequences for those who were directly or indirectly involved in the massacre and that the police and the mine owners are generously funded by the state and by shareholders respectively, it is also clearly unfair, even unjust, that some affected parties have their interests vigorously protected by well-paid lawyers while others may now not have that protection.

But I would be surprised if a court finds that these provisions, read separately or in conjunction with one another, guarantees for anyone whose interests are potentially affected by the work of a Commission of Inquiry, the right to state-funded legal representation. The absence of a clear constitutional right in this regard, and the fact that procedural fairness is not generally regarded in South Africa as requiring state funded legal representation, would make it difficult to convince a court of the constitutional (as opposed to the moral) correctness of such an argument.

This does not mean that it is not imperative for the success of the Commission that the state provide reasonable funding to pay for the legal representation of those parties who cannot afford to pay for it. This obligation does not fall on the Legal Aid Board, but on the state, represented by the president – who set up the Commission in the first place and must ensure the success of the Commission in order to prevent a monumental wastage of money.

If some role players – including the police whose members committed the massacre – are generously funded by the state, but others – including the miners, the union who represented the miners at the time of the incident and the families of those killed during the massacre – are not similarly funded, the credibility of the process as well as the outcome will be called into question.

It is inconceivable that the miners and the families of the deceased will accept any adverse findings made by the Commission against the miners in such circumstances. Instead, they will argue – with some force and with some justification – that their interests were not protected by lawyers and that the adverse findings thus stem from a completely unfair and discredited quasi-legal process.

I would argue that such a process would be akin to a rugby match in which one side had the money to pay for the best players, the best coaching staff and the best training equipment, while the members of the other side had no training, no money to buy new players and no training equipment and, to boot, were required to play the game with their hands tied behind their backs. (The same kind of argument can be used in defence of constitutionally valid redress measures.)

Of course, this problem reminds us of the much larger problem relating to access to justice in South Africa. If you happen to be the President or the Police Commissioner or some other state functionary fighting corruption charges against you, your legal fees will be liberally funded by the state. If you happen to be a gangster, tenderpreneurs or CEO of a large company (and there is often not much difference between these categories of people – as Brett Kebble so neatly illustrated) you will also be able to afford to pay for the best legal representation available.

But if you happen to be an ordinary person who are unfortunate enough to have gotten entangled in a legal dispute, or who wish to pursue justice through legal means, you will almost never have access to state funded legal representation and will also find it hard to fund your own legal fees. Who of us have R45 000 a day to spend on a top-notch advocate appearing on our behalf in court?

This is all rather trite. A much more difficult question to answer is what should be done to provide more people with the real possibility of gaining access to justice through the formal legal processes. I am not sure the state can afford to provide every potential litigant or accused in a criminal case with funds to pay for a good lawyer. And besides, how would the state decide whose cases are worthy of funding and whose cases are frivolous?

Perhaps all attorneys and advocates can be required to do a certain percentage of work for indigent or worthy clients at a radically reduced rate. (Why some of the Marikana lawyers are insisting on charging their full fee, when their clients clearly cannot afford this and the interest of justice seems to require them to take at least a moderate cut in pay, is beyond me.)

But even the most public spirited attorney or advocate has expenses to pay and financial commitments to meet, and cannot always work for free or at a reduced rate. In any case, even at reduced rates most South Africans would not be able to afford the services of an attorney or advocate.

I really do not have the answers.

NS: This post was slightly amended to indicate that it was only the lawyers representing the arrested and injured miners who withdrew due to lack of funding. Lawyers for AMCU and the families of the miners killed withdrew in solidarity.

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