Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
Issued by: Socio-Economic Rights Institute of SA (SERI)
8 September 2014
SCA dismisses Legal Aid SA’s appeal in Marikana funding case
Today the Supreme Court of Appeal (SCA) dismissed Legal Aid SA’s appeal against the High Court’s decision inMagidiwana v President of the Republic of South Africa handed down last year. In that case, Judge Makgoka directed Legal Aid SA to provide legal aid to around 270 arrested and injured miners represented at the Marikana Commission of Inquiry. SERI represents the Association of Mineworkers and Construction Union (AMCU) and the families of 36 of the deceased miners killed at Marikana, in the legal proceedings.
The SCA today indicated that it will give full reasons for its decision at a later stage. It made its ruling after asking the parties to address it solely on whether the appeal would have any practical effect or result. This was partly because Legal Aid SA had promised to fund the miners’ representation at the Marikana Commission whether or not it won the appeal. Section 16 of the Superior Courts Act 10 of 2013 permits the SCA to dismiss an appeal if its outcome would have no practical effect. Legal Aid SA argued that the appeal would have practical effect, as it would guide it in future situations in which it may be asked to fund participants in Commissions of Inquiry.
The injured and arrested miners, together AMCU and the families of the deceased, disagreed. Their counsel argued that Legal Aid SA’s promise to fund the miners meant that the appeal would have no practical effect. They further argued that the circumstances surrounding the High Court’s decision and the Marikana Commission were unique, so that there would be no value in giving judgment in a situation that was unlikely to arise again.
Adv Stuart Wilson, appearing on behalf of AMCU and the 36 families represented by SERI at the Commission, also submitted that the essence of Judge Makgoka’s decision in the High Court was to instruct Legal Aid SA not to draw irrational distinctions between the families of those who died at Marikana, and the miners who were arrested and injured there. Both were in need of legal aid, and in granting legal aid to the families, but not the miners, Legal Aid SA acted irrationally. There would be no point in a judgment from the SCA telling Legal Aid SA to do what it knew it must do all along: treat like cases alike.
Nomzamo Zondo, attorney for 36 families of the deceased said: “Today’s decision is an important affirmation of Judge Makgoka’s principled and compassionate judgment last year, which restored the credibility of the Marikana Commission at a crucial moment in its work. We feel that there was no useful purpose to be served in seeking to overturn a decision which was made in truly exceptional circumstances, and was the right decision to make at the time.”
Nomzamo Zondo, director of litigation at SERI: firstname.lastname@example.org / 011 356 5868 / 071 638 6304
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