Legal Aid South Africa v Magidiwana and Others

• Jurisdiction: South Africa
• Citation: 2015 (6) SA 494 (CC)

Legal Aid South Africa v Magidiwana and Others
2015 (6) SA 494 (CC)

2015 (6) SA p494

Citation	2015 (6) SA 494 (CC)
Case No	CCT 188/14; [2015] ZACC 28
Court	Constitutional Court
Judge	Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
Heard	May 14, 2015
Judgment	September 22, 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.

Flynote : Sleutelwoorde D

E Constitutional law — Human rights — Right of access to courts — Right to legal representation before commission of inquiry — No obligation on Legal Aid South Africa to fund such legal representation — Constitution, s 34.

Headnote : Kopnota

During August 2012 employees of Lonmin plc Mine in Marikana, Rustenburg, F went on strike for wage increases. The respondent miners were amongst those who had been injured or arrested during the strike in which a number of people were killed. The President subsequently established the Marikana Commission of Inquiry (the Commission) to investigate and make recommendations on the role and conduct of various state and private parties in promoting the conflict which gave rise to the incident.

G The miners, whose conduct was under scrutiny, secured private funding for legal representation but only for a limited period. They turned to the applicant, Legal Aid South Africa (Legal Aid), to fund legal representation for the remainder of the Commission. Legal Aid refused the application because its funding-scheme guidelines made no provision for commissions of inquiry. It also cited severe budgetary constraints as it had already H committed to funding legal representation for the families of the deceased.

The miners took the matter to the North Gauteng High Court, Pretoria, seeking to compel Legal Aid to provide the requisite funding. The High Court found for the miners, holding that Legal Aid's refusal was irrational and in violation of their constitutional right to equality before the law, right against unfair discrimination and right to access to a fair public hearing (s 34 of the I Constitution). Legal Aid appealed to the Supreme Court of Appeal (SCA) but reached an agreement with the miners to provide the required funding before the hearing. The SCA dismissed the appeal on the basis that the matter was moot.

Legal Aid then applied to the Constitutional court for leave to appeal. There it contended that the High Court had laid down incorrect principles of law J which would impact upon the future work of Legal Aid and its discretion in

2015 (6) SA p495

funding decisions in analogous cases. The respondents pointed to A developments after the High Court decision, including the updating of the funding-scheme guidelines to include funding of legal representation at commissions of inquiry in certain instances. Any decision on the matter, they argued, was therefore irrelevant to future cases.

Majority judgment (per Theron AJ; with Moseneke DCJ, Cameron J, B Froneman J, Jafta J, Khampepe J, Molemela AJ and Tshiqi AJ concurring)

Legal Aid's application for leave to appeal fell to be dismissed on the basis that it was moot: the decision of the High Court would have no practical effect on any of the parties. Further, the High Court's interpretation of the right to a fair public hearing did not affect Legal Aid's discretion to make future C funding decisions and imposed no obligation on Legal Aid to provide legal representation at future commissions of inquiry. (Paragraphs [25] – [27] at 505A – 506G.)

Minority judgment (per Nkabinde J)

While the matter was indeed moot, it was nevertheless in the public interest for D the court to decide it. In her view the High Court's judgment rested on a novel and expansive interpretation of the right in s 34 which would have a practical effect on Legal Aid's operations and those whose interests it was mandated to protect. She would have found that the provision did not oblige Legal Aid to fund the miners' representation before the Commission. She also considered that the High Court had erred in finding that Legal Aid E had acted irrationally or infringed the miners' right to equality. (Paragraphs [31], [76] and [122] at 507D – F, 520E – G and 534I – 535A.)

Cases Considered

Annotations

Case law F

Southern Africa

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another2007 (1) SA 343 (CC) (2006 (11) BCLR 1255; [2006] ZACC 9): dictum in para [27] applied

Bangindawo v Head of the Nyanda Regional Authority and Another; G Hlantlalala v Head of the Western Tembuland Regional Authority and Others1998 (3) SA 262 (Tk) (1998 (2) SACR 16; 1998 (3) BCLR 314): considered

Bongoza v Minister of Correctional Services and Others 2002 (6) SA 330 (Tk): discussed

Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces2014 (2) SA 321 (SCA) ([2013] ZASCA 118): referred to H

De Lange v Presiding Bishop, Methodist Church of Southern Africa and Another2015 (1) SA 106 (SCA) ([2014] ZASCA 151): referred to

Gcaba v Minister for Safety and Security and Others2010 (1) SA 238 (CC) (2010 (1) BCLR 35; [2009] 12 BLLR 1145; [2009] ZACC 26): considered

Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee, and Others I 2002 (5) SA 449 (SCA) ([2002] ZASCA 44): referred to

Harksen v Lane NO and Others1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): considered

Independent Electoral Commission v Langeberg Municipality2001 (3) SA 925 (CC) (2001 (9) BCLR 883; [2001] ZACC 23): dictum in para [11] applied J

2015 (6) SA p496

Legal Aid South Africa v Magidiwana and Others2015 (2) SA 568 (SCA) ([2014] 4 All SA 570; [2014] ZASCA 141): considered A

Magidiwana and Other Injured and Arrested Persons v President of the Republic of South Africa and Others (No 2) [2014] 1 All SA 76 (GNP) ([2013] ZAGPPHC 292): considered

Magidiwana and Others v President of the Republic of South Africa and Others B (Black Lawyers Association as Amicus Curiae) 2013 (11) BCLR 1251 (CC) ([2013] ZACC 27): considered

Mbebe and Others v Chairman, White Commission and Others 2000 (7) BCLR 754 (Tk): considered

MEC for Education, KwaZulu-Natal, and Others v Pillay2008 (1) SA 474 (CC) (2008 (2) BCLR 99; [2007] ZACC 21): distinguished

Nkuzi Development Association v Government of the Republic of South Africa and Another2002 (2) SA 733 (LCC): distinguished C

President, Ordinary Court Martial, and Others v Freedom of Expression Institute and Others1999 (4) SA 682 (CC) (1999 (11) BCLR 1219; [1999] ZACC 10): dictum in para [13] considered

Radio Pretoria v Chairperson, Independent Communications Authority of South Africa, and Another D 2005 (4) SA 319 (CC) (2005 (3) BCLR 231; [2004] ZACC 24): dictum in para [22] considered

Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration and Others2007 (1) SA 576 (SCA) ((2006) 27 ILJ 2076; [2006] 11 BLLR 1021; [2007] 1 All SA 164): considered

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others2008 (2) SA 24 (CC) ((2007) 28 ILJ 2405; 2008 (2) BCLR 158; [2007] 12 BLLR 1097; [2007] ZACC 22): considered E

Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae)2008 (2) SA 472 (CC) (2008 (4) BCLR 442; [2007] ZACC 24): dictum in para [29] considered.

Canada F

British Columbia (Attorney General) v Christie2007 SCC 21 ([2007] 1 SCR 873): referred to

New Brunswick (Minister of Health and Community Services) v G (J)[1999] 3 SCR 46: considered.

European Court of Human Rights G

Airey v IrelandECHR case No 6289/73 (1979): referred to

Tabor v PolandECHR case No 12825/02 (2006): referred to

Bertuzzi v FranceECHR case No 36378/97 (2003): referred to

McVicar v UKECHR case No 46311/99 (2002): referred to

P, C and S v UKECHR case No 56547/00 (2002): referred to

Steel and Morris v UKECHR case No 68416/01 (2005): referred to. H

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, s 34: see Juta's Statutes of South Africa 2014/15 vol 5 at 1-30.

Case Information

G Marcus SC (with M Stubbs and E Mahlanga) for the applicant, instructed by Legal Aid South Africa. I

D Mpofu SC (with M Qofa) for the first, second and further respondents.

S Wilson (with F Hobden) for the eighth and ninth respondents, J instructed by Socio-Economic Rights Institute Law Clinic.

2015 (6) SA p497

J Brickhill for the eighteenth respondent, instructed by Legal A Resources Centre.

An appeal from the Supreme Court of Appeal (hearing an appeal from the Gauteng Division of the High Court, Pretoria, per Makgoka J).

Order B

1.

Leave to file a replying affidavit is granted.

2.

Application for leave to appeal is dismissed.

3.

The applicant must pay the costs of the first, second and further respondents. C

Judgment

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...