An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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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