Marikana workers ‘are not different’
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.