Marius Oosthuizen SC, for President Jacob Zuma and Justice Minister Jeff Radebe, asked the High Court in Pretoria to dismiss an application by the miners for state-funded private legal representation before the Farlam Commission of Inquiry.
The miners contended they were being denied the right to a fair public hearing. They argued they were unfairly discriminated against when the government refused to provide state funds to pay for their lawyer Dali Mpofu at the commission.
The state provides the funding to enable the families of the men who died at Marikana to attend the hearing.
Zuma established the commission, which is chaired by retired Judge Ian Farlam, to investigate incidents at the Lonmin Platinum Mine in Marikana, North West, between August 11 and 16 last year. Forty-four people were killed more than 70 were injured.
Mpofu earlier withdrew from the inquiry because of a lack of funding, pending a review application to set aside the minister of justice and the Legal Aid Board’s decision to refuse state funding to the miners.
Oosthuizen argued that the decision was neither discriminatory nor irrational. He said the miners were the authors of their own misfortune because they did not properly apply for legal aid.
As a general rule, no private person was legally entitled as a matter of right to any public funding for his legal representation before a commission and no provision was made for it.
Oosthuizen pointed out that the president did not have to accept the commission’s factual findings or follow its recommendations and that the commission therefore operated within the executive branch of government.
The miners could also not refuse to testify before the commission, he said. “For the applicants it is a simple comparison between poor ‘us’ and rich ‘them’ before the Marikana Commission, but that is an over-simplification and ignores the statutory framework in which the spending power of the state is regulated.
“This is not an issue within the narrow scope of public funding only before the Marikana Commission, but an issue within the broader scope of public funding before any commission that brings the whole system of public finance management into play,” he said.
The applicants were not the victims of unfair discrimination, he said.
“… Their own subjective perspective and the blatant attempts to gain the sympathy of the court are not a key to the national purse, which has been entrusted by the Constitution to the elected holders of high public office.
“Public financial resources are not there for the asking nor can a relatively small group of people ask for preferential treatment when those public financial resources are to be carefully allocated to, and balanced between, the various pressing needs and challenges facing a developing country such as ours,” Oosthuizen said.
Viwe Notshe, for Legal Aid SA, argued that the court could at most order the Legal Aid Board to consider legal aid for the miners.
He said everyone in court had been “dancing around the elephant in the room” and it was a fallacy that the version of the miners would not be placed before the commission if they did not get financial assistance.
He said their cause would be taken up by the unions and their evidence would be led by the evidence leaders before the commission. “The Commissions Act authorises the commission to summons witnesses, but it cannot summons the widows of the deceased.
“The function of the evidence leaders is to assist the commission. Their role is more important than the applicants make out. They’re there to assist everyone,” he said.
Judge Tati Makgoka reserved judgment.