The Meaning of the Marikana Judgment

Background

On 19 August 2013, the Constitutional Court (CC) unanimously dismissed an urgent appeal against a decision of the High Court to not compel the Ministry of Justice, or Legal Aid South Africa, to underwrite the costs of legal representatives of indigent miners at the Marikana Commission [1].

The CC only concerned itself in this decision with the urgent aspect of the application seeking to obtain relief on an interim/temporary basis. It did not deal with the other aspect of the application, namely the merits, which is yet to be determined by the High Court as the subject of a judicial review.

The miners (injured and deceased) and their families are being represented at the Commission, instituted by President Zuma and chaired by retired judge Ian Farlam, which aims to investigate and bring closure to those affected by the tragic events of 16 August 2013 which occurred at the Lonmin mine, north of Johannesburg. The legal representatives were previously funded through a grant of the Raith Foundation, which lapsed in March 2013, despite the Commission’s terms of reference being extended up to and including October 2013.

While the legal battles pertaining to fees has continued, legal representatives of the miners and their families, as well as those of concerned NGOs who are also represented at the Commission, have at various times withdrawn and called for the suspension of the Commission’s activities while the funding issue remains unresolved.

Their argument is persuasive: in the absence of an ‘an equality of arms,’ the Commission suffers from a lack of legitimacy given that the miners, and their families, have arguably borne the brunt of police action on that day, resulting in the death of 34 miners. It is inconceivable, so the argument goes, that the Commission will enjoy any credibility if the miners do not have access to money which can buy them legal representation which can ensure that their rights are guarded.

However, neither the High Court judgment, nor the judgment of the CC on appeal, should come as a surprise. Much as our Constitution places a significant emphasis on the rights of the people, it places an equal importance on the separation of powers. The CC decision reaffirms this and illustrates how, barring a maladministration of justice being evident, it (as the apex court in South Africa) will be hesitant to overstep that separation in a hurry.

High Court Judgment

In dismissing the application, Raulinga J stated that:

“I need therefore to ask myself not only whether an interim interdict against an authorised state functionary is competent, but rather whether it is constitutionally appropriate to grant the interdict.  The funds allocated to the second and third respondents is a result of an executive decision about ordering of public resources, over which the government disposes and for which it, and it alone has the public responsibility.  The duty of determining how public resources are to be drawn upon and reordered lies in the heartland of executive government function domain.  I can only grant such an order if there is proof of unlawfulness or fraud or corruption.  I do not find any in this case.  Therefore, I will not interfere with the power and the prerogative to formulate and implement policy on how to finance public projects and even how the applicants must be funded.  That power resides in the exclusive domain of the national executive subject to budgetary . . . inevitably call for policy-laden and polycentric decision making.  Courts are not always well suited to make decisions of that order – National Treasury supra.  There are also other competing interests, such as, food-security, education, health and human-settlement.” (Emphasis added)

Not only is the High Court bound by the CC’s previous decision in the ‘OUTA’ case concerning the government’s decision to implement the e-tolling system, it is also bound by precedent that existed well beyond that.

In Bato Star, for example, the CC cautioned that where matters are of a polycentric nature and involve policy decisions that are legitimately within the parameters of the government, a court must be slow to assume that it has superior judgment or ability to make the decision better than the government may have. Thus, even where a court disagrees with the justification for a decision, or condemns its outcome, but the decision itself is legally justifiable and free from “unlawfulness or fraud or corruption,” then the court must defer to the decision of the government [2].

Our Constitution does create a system of checks and balances whereby the Constitutional Court specifically, and the judiciary more generally, is identified as the ultimate guardians of the supremacy of the rule of law, however, it equally designates power in such a way that where bona fides decisions are taken that do not violate the law, the courts have no business involving itself in such decisions. Policy choices are one such area.

Constitutional Court Judgment

Hence, even though the CC seems to directly address the better position, namely providing funding for the miners to be represented, it nonetheless, correctly, exercised judicial restraint and did not order the government to pay the costs of the miners.

It may be that it would be commendable and fairer to the applicants that they be afforded legal representation at state expense in circumstances where state organs are given these privileges and where mining corporations are able to afford the huge legal fees involved...  The truth so established could inform corrective measures, if any are recommended, influence future policy, executive action or even the initiation of legislation.  A commission’s search for truth also serves indispensable accountability and transparency … Not only do the victims of the events investigated and those closely affected need to know the truth: the country at large does, too … Absent a fair opportunity, the search for truth and the purpose of the Commission may be compromised.

This means that unfairness may arise when adequate legal representation is not afforded.  But this does not mean that courts have the power to order the executive branch of government on how to deploy state resources.  And whether the desirable objective of ‘equality of arms’ before a commission translates into a right to legal representation that must be provided at state expense is a contestable issue.  A consideration that comes into play is that it is the object of the Legal Aid Act  to render or make available legal aid to indigent persons and to provide legal representation at state expense as contemplated in the Constitution. Its provisions have not been challenged as constitutionally invalid, nor has the refusal by Legal Aid South Africa to grant the applicants legal aid been challenged on review.” (Emphasis added, footnotes omitted)

The CC’s decision, however, is technical in nature and does not rule out the prospects of a future challenge as indicated. Under the status quo however, it is clear that any such challenge cannot stand.

It is also interesting to note that the CC took a narrow view of the provisions in the Bill of Rights which allow foe state funding for the purposes of litigation. The miners’ case (relating to a Commission) was deemed as falling outside the remit of the specific provisions relating to the administration of justice before a court of law; the legal representation of children in specific circumstances; nor are the miners accused persons awaiting trial .  

Conclusion

While many have correctly questioned the common sense fairness of the outcome, especially considering the significant access to resources that the state has to justify its actions, for example, the legal position that the CC has adopted is correct. As constitutionalists, we must respect the division and curtailing of power that the Constitution enjoins us to observe. To circumvent its limitations, even for a noble or justifiable outcome, is inimical to the rule of law.  One hopes, however, that the Government will provide some funding to the miners so that the legitimacy of this process and its outcome can start to heal the wounds that were inflicted on a ‘koppie’ at the Lonmin mine.

References
[1]    http://www.saflii.org.za/za/cases/ZACC/2013/27.html. This Brief is based on the judgment of the CC.
[2]    http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/2004/15.html&query=%20bato%20star

06 September  2013

Kameel Premhid – kameel.premhid@gmail.com
Former Intern
Helen Suzman Foundation