In the wake of the Marikana tragedy, during which 40 striking mineworkers were shot and killed by the South African Police Service (“SAPS”), the Commission of Inquiry subsequently established by the President has been marred with problems.
On 1 October 2012, its very first day of operation, the Inquiry continued with its proceedings despite the fact that the families of those killed were not present – the Commission and the government that had caused their loved-ones’ deaths had failed to invite them. Almost a year later, the socio-economic disparity that arguably led to the ill-fated protest in the first place again surfaced when the legal representatives of the injured and arrested miners were forced to withdraw from the proceedings due to a lack of funding. The legal representatives of the family members of the deceased withdrew in solidarity. Meanwhile, SAPS and Lonmin, the mining corporation at which the strike occurred, continued to be represented by adequate legal teams that cumulatively consist of twelve advocates.
To continue with an Inquiry aimed at uncovering the truth behind the largest use of force by South African police against civilians ‘since the Sharpeville massacre of 1960’ in the absence of key participants smacks of unfairness. Not only were those injured and arrested directly affected by the incident, but the Inquiry’s findings can have serious repercussions for their future criminal liability or any claims for civil damages they may wish to institute against the SAPS. The fact that the blatant inequality of such a state of affairs stems directly from their indigence and socio-economic vulnerability renders their exclusion from the Inquiry even more untenable. The recent decision by the Pretoria High Court, ordering Legal Aid SA to fund the legal representation of the injured and arrested miners, is therefore to be wholeheartedly welcomed.
The Court embarked on a thorough examination as to the implications of government’s refusal to fund legal representation for the injured and arrested miners’ rights of access to courts and equality. With regards to the former, the Court held that the surviving miners’ direct and substantial interest in the proceedings and findings of the Inquiry, their vulnerability as an indigent group facing possible criminal liability, and the complex nature of the proceedings, all pointed to the possible infringement of their right of access. Moreover, the Court acknowledged the doubt cast on the ‘equality of arms’ of the situation when it stated:
Our society is premised on the constitutional values and principles of social justice, fairness [and] equality … A process which enables only the police, other State organs and a multi-national corporation to be legally represented to the exclusion of the survivors of the police shooting is ‘entirely inconsistent with the principles and values that underlie our Constitution’.
Furthermore, the Court found that Legal Aid SA’s decision to fund legal representation of the families of the deceased, but not if the injured and arrested miners, was irrational and infringed their constitutional right to equality. Significantly, the Court held that the fact that its decision would have budgetary implications could not constitute a bar to an effective remedy where fundamental rights were infringed.
The Court’s judgment is even more commendable in that it follows the Constitutional Court’s earlier dismissal of an application for interim relief in the funding saga. Whereas the Constitutional Court’s previous judgment has been subject to criticism, the High Court’s decision heralds a victory for justice, fairness and equality.