Business Day

Marikana workers ‘are not different’

- ERNEST MABUZA mabuzae@bdfm.co.za

THE government yesterday defended its decision not to grant legal funding to the arrested and injured Marikana mineworker­s, arguing in the North Gauteng High Court that they were not victims of unfair discrimina­tion and were not treated unfairly.

The more than 250 workers stopped their participat­ion in the Marikana commission of inquiry in July, citing the lack of funding for their legal team. Their efforts to obtain interim funding in July failed when their urgent court applicatio­n to compel the government to fund them was dismissed. An appeal to the Constituti­onal Court was dismissed last month.

The workers want the court to review and set aside the decisions of President Jacob Zuma, Justice Minister Jeff Radebe and Legal Aid SA, in refusing to grant them legal representa­tion at state expense. The mineworker­s believe that if they are not allowed to participat­e meaningful­ly before the commission, their version of what happened on August 16 last year, when police shot dead 34 striking workers and injured more than 70 others, would not be presented to the commission.

But Marius Oosthuizen SC, for the government, argued that the mineworker­s’ experience before the commission was no different from every private person’s experience before the commission.

He said the general rule was that state-funded legal representa­tion was reserved for criminal trials. Mr Oosthuizen said this case was about whether there was a constituti­onal right to statefunde­d legal representa­tion.

“In essence, our argument is that there is no such constituti­onal right,” Mr Oosthuizen said. A distinctio­n had to be made between the right to legal representa­tion, and the right to have legal representa­tion at state expense.

“We dispute that there is such a right to funding at state expense,” Mr Oosthuizen said, adding that the constituti­on drew a distinctio­n between the right to have legal representa­tion and the right in certain instances to have it funded by the state.

“Where (the constituti­on) contemplat­es state-funded legal representa­tion, it says so,” Mr Oosthuizen said.

He further argued that the Marikana commission was not performing a judicial function, such as granting amnesty.

“The commission is in search of the truth, but that is not the end in itself. That is the means to the true purpose of the commission, to make findings and make rec- ommendatio­ns (to the president). The findings are not in the nature of dispute resolution,” Mr Oosthuizen said.

Heidi Barnes, for the Associatio­n of Mineworker­s and Constructi­on Union (Amcu), said it was important for the union to participat­e in the commission to ensure that no adverse findings were made against it.

“Amcu cannot do this on its own if applicants are not available at the commission,” she said.

Viwe Notshe SC, for Legal Aid SA, said the mineworker­s’ claim that their evidence would not be put before the commission if they did not get financial assistance, was a fallacy. Mr Notshe said the Commission­s Act authorised the head of the commission to summon anyone to give evidence before the commission.

The court reserved judgment.

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