Legal Aid South Africa v Magidiwana and Others

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
• Judgment Date: 22 September 2015
• Citation: 2015 (6) SA 494 (CC)
• Docket Number: CCT 188/14 [2015] ZACC 28
• Hearing Date: 14 May 2015
• Counsel: G Marcus SC (with M Stubbs and E Mahlanga) for the applicant, instructed by Legal Aid South Africa. D Mpofu SC (with M Qofa) for the first, second and further respondents. S Wilson (with F Hobden) for the eighth and ninth respondents, instructed by Socio-Economic Rights Institute Law Clinic. J Brickhill for the eighteenth respondent, instructed by Legal Resources Centre.
• Court: Constitutional Court

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Molemela AJ and Tshiqi AJ concurring):

Introduction

[1] The applicant, Legal Aid South Africa (Legal Aid), [1] seeks leave to D appeal against an order of the Supreme Court of Appeal which dismissed an appeal against a decision of the Gauteng Division of the High Court, Pretoria (the High Court). The High Court ordered that it 'take steps' to provide funding to enable the first, second and further respondents (the miners) to be legally represented at the Marikana Commission of Inquiry (the Marikana Commission or Commission). They are people arrested E or injured during or after the tragic events that occurred at the Lonmin plc Mine in Marikana during August 2012. The Supreme Court of Appeal dismissed Legal Aid's appeal on the basis that it was moot.

[2] The miners oppose the application, contending that the determination F of the appeal will have no practical effect. The eighth respondent, the families of persons who were killed during the shootings at Marikana (families), and the ninth respondent, the Association of Mineworkers and Construction Union (Amcu), as well as the eighteenth respondent, the family of John Kutlwano Ledingoane, a miner killed at Marikana (the Ledingoane family), also oppose the application. G

[3] The President of the Republic of South Africa (the President), the Minister of Justice and Constitutional Development (the Minister), and the Commission, the third, fourth and fifth respondents, respectively, did not participate in the proceedings in this court. H

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Molemela AJ and Tshiqi AJ concurring)

Factual background A

[4] On 26 August 2012 the President established the Commission with the mandate 'to investigate matters of public, national and international concern arising out of the events at the area commonly known as the Marikana Mine'. The events were prompted by a strike for wage B increases by employees of Lonmin plc Mine in Marikana, located near Rustenburg, from 9 – 18 August 2012. The events —

'led to the deaths of approximately 44 people, more than 70 persons being injured, approximately 250 people being arrested and damage and destruction to property'. [2]

C [5] The Commission was mandated to inquire into and make findings and recommendations on, amongst others:

•

the conduct of Lonmin, the South African Police Services (SAPS), Amcu and the National Union of Mineworkers (NUM);

•

the role of the Department of Mineral Resources or any other D government departments or agencies; and

•

the conduct of individuals and loose groupings in promoting a situation of conflict and confrontation which may have given rise to the tragic incident.

[6] The nature of the miners' involvement in the incident was an object E of inquiry before the Commission. On 15 October 2012 the miners requested that Legal Aid fund their legal representation before the Commission. [3] By the time of the miners' request, the CEO of Legal Aid, in the exercise of her discretion, had already committed to funding legal representation for the families. She declined to grant the subsequent F request.

[7] Legal Aid supported its CEO's decision to fund the families and not the miners on various bases. It cited severe budgetary constraints; that the families had a substantial and material interest in the outcome of the inquiry, while there would be no substantial and identifiable benefit for G the miners to be separately represented. Moreover, the families consisted of women, children and elderly persons who are all recognised as vulnerable groups. Legal Aid was also of the view that the miners' interests would be protected at the Commission by their respective unions. In addition Legal Aid contended that the families' representation

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Molemela AJ and Tshiqi AJ concurring)

at the Commission was essential as they, unlike the miners themselves, A were not present during the events at Marikana, and thus could not brief legal representatives to further any legal claims.

[8] The miners received interim private funding from the Raith Foundation for legal representation before the Commission from October 2012 to March 2013. After this period the miners were unable to secure B further private funding.

Litigation history

[9] The miners filed an application in the High Court, comprising two C parts. Part A was brought on an urgent basis and sought interim funding for the miners' legal representation before the Commission. The High Court dismissed part A on 30 July 2013. This court dismissed the application for leave to appeal that decision on 19 August 2013. [4] Part B, the subject of this application, challenged the failure or refusal of the President, the Minister and Legal Aid to provide the miners with state-funded legal representation. D

[10] The High Court concluded that 'no legal framework exists within which the President and the Minister can lawfully, or are authorised to, fund the legal representation' of the miners. [5] But the court found that Legal Aid's decision to refuse legal assistance was irrational and inconsistent E with s 9 and s 34 of the Constitution. [6] It found that the decision to fund the families' representation, and not the miners', irrationally and unfairly distinguished between the two groups. Legal Aid was therefore obliged to fund the miners' legal representation. [7] Legal Aid appealed to the Supreme Court of Appeal. Before the hearing of the appeal Legal Aid reached an agreement with the miners to provide funding for the F remainder of the Commission. [8]

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Molemela AJ and Tshiqi AJ concurring)

A [11] The Supreme Court of Appeal dismissed the appeal on the basis that, under s 16(2)(a)(i) of the Superior Courts Act, [9] the appeal and any order granted would not have any practical effect or result because —

'however the appeal turns out, the position of the respondents will remain unaltered and the outcome, certainly as far as this case is B concerned, will be a matter of complete indifference to [Legal Aid]'. [10]

The court concluded that no discrete legal issue of public importance arose which, despite the mootness, justified a consideration of the merits. [11] The court split on whether it did have a discretion to enter into the merits of the appeal. [12] But it unanimously found that, if it had a discretion, it would exercise it against Legal Aid.

Leave to file a replying affidavit C

[12] Legal Aid sought to file a replying affidavit, in response to allegations raised by the participating respondents in their answering affidavits, regarding the developments in the legislative framework governing Legal Aid's funding decisions since the High Court's decision. The changes in D the legislative framework speak to the mootness of the application. Legal Aid ought to be granted an opportunity to respond. It is therefore in the interests of justice to grant leave to file the replying affidavit.

Leave to appeal

[13] Legal Aid submits that this application raises constitutional issues, E as well as arguable points of law of general public importance, and that it is in the interests of justice for this court to hear the appeal. It contends that the High Court judgment lays down incorrect principles of law — in particular, that the right embodied in s 34 of the Constitution applies to commissions of inquiry, [13] and that the content of the right includes F state-funded legal representation to parties before a commission. Legal Aid argues that this principle will be of general application to future analogous cases. It contends that the principle will impact the work of Legal Aid and its CEO's exercise of discretion in funding decisions related to other commissions and investigative tribunals, like a G request for funding of an inquest.

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Molemela AJ and Tshiqi AJ concurring)

[14] The respondents [14] concede that the matter raises constitutional A issues but argue that it is not in the interests of justice for this court to hear the case, as it is moot. They point to the following developments after the Supreme Court of Appeal heard the appeal: first, that the Commission completed its work on 14 November 2014; second, that in December 2014 Legal Aid and the miners concluded a written agreement B in accordance with their earlier agreement, which finally determined the funding issue; and third, that in December 2014 Legal Aid paid the miners' legal fees in full, as agreed, and disavowed any right to claim the money back if this appeal is successful.

Is the matter moot? C

[15] This court has exercised its appellate jurisdiction in cases that were moot between the parties but where the interests of justice nevertheless justified deciding an appeal. [15]

[16] It is common cause that the legislative scheme governing Legal D Aid's funding decisions has changed since the proceedings in the High Court. Section 3A(1)(a) of the 1969 Act required the Board of Legal Aid, in consultation with the Minister, to publish a Legal Aid Guide which includes the particulars of the scheme under which legal aid is made available and the procedure for its administration. The decision of the CEO of Legal Aid, which was considered by the High Court, was made pursuant to item 10.2.3(a) of the Legal Aid Guide 2012 (the E Guide). [16]

[17] In 2014, and after the decision in the High Court, the Guide was amended to include item 4.20 (the 2014 Guide). [17] This specifically made provision for funding legal representation at commissions in two F

Theron AJ (Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J...