Legal Aid South Africa v Magidiwana and Others

• Jurisdiction: South Africa
• Judge: Ponnan JA, Maya JA, Swain JA, Zondi JA and Fourie AJA
• Judgment Date: 26 September 2014
• Citation: 2015 (2) SA 568 (SCA)
• Docket Number: 1055/13 [2014] ZASCA 141
• Hearing Date: 08 September 2014
• Counsel: GJ Marcus SC (with M Stubbs and E Nahlangu) for the appellant. DC Mpofu (with M Qofa) for the first and second respondents. S Wilson for the eighth and ninth respondents. J Brickhill for the eighteenth respondent.
• Court: Supreme Court of Appeal

Ponnan JA (Swain JA and Fourie AJA concurring):

D [1] In this appeal counsel were, at the outset of the hearing, required to address argument on the preliminary question of whether the appeal and any order made thereon would, within the meaning of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 (the Act), [1] have any practical effect or result. After hearing argument on this issue the appeal was dismissed on 8 September 2014 in terms of that section and each party was ordered E to pay its own costs of the appeal. It was intimated then that reasons would follow. These are those reasons.

[2] Courts should not and ought not to decide issues of academic interest only. That much is trite. In Radio Pretoria v Chairman, Independent Communications Authority of South Africa and Another 2005 (1) SA 47 (SCA) F this court expressed its concern about the proliferation of appeals that had no prospect of being heard on the merits, as the order sought would have no practical effect. It referred to Rand Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA) para 26 where the following was said:

G 'The present case is a good example of this Court's experience in the recent past, including unreported cases, that there is a growing misperception that there has been a relaxation or dilution of the fundamental principle . . . that Courts will not make determinations that will have no practical effect.'

[3] Section 16(2)(a)(i) provides:

H 'When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.'

Of its predecessor, s 21A of the Supreme Court Act 59 of 1959, [2] this court stated in Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Others I 2001 (2) SA 872 (SCA) para 7:

Ponnan JA (Swain JA and Fourie AJA concurring)

'The purpose and effect of s 21A has been explained in the judgment of A Olivier JA in the case of Premier, Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad 1998 (2) SA 1136 (SCA). As is there stated the section is a reformulation of principles previously adopted in our Courts in relation to appeals involving what were called abstract, academic or hypothetical questions. The principle is one of long standing.' B

[4] The primary question therefore, one to which I presently turn, is whether the judgment sought in this appeal will have any practical effect or result. It arises against the backdrop of the following facts: On 26 August 2012 and by virtue of the powers vested in him by s 84(2)(f) C of the Constitution, [3] the President of the Republic of South Africa (the President) appointed what has come to be as described as the Marikana Commission of Enquiry (the Commission) to:

'(I)nvestigate matters of public, national and international concern arising out of the tragic incidents at the Lonmin Mine in Marikana . . . D from Saturday 11 August to Thursday 16 August, 2012 which [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.' [The Marikana incident.]

According to the terms of reference of the Commission, it is required to E inquire into, make findings, report on and make recommendations concerning five discrete matters, namely:

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The conduct of Lonmin plc (Lonmin).

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The conduct of the South African Police Services (Saps).

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The conduct of two unions, namely the Association of Mine Workers F and Construction Union (Amcu) and the National Union of Mine workers (NUM).

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The role played by the Department of Mineral Resources or any other government departments or agencies in relation to the incident and whether this was appropriate in the circumstances and consistent with their duties and obligations according to law. G

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The conduct of individuals and loose groupings in formenting and/or otherwise promoting a situation of conflict and confrontation which may have given rise to the tragic incident, whether directly or indirectly.

[5] The Commission was required to submit interim reports and H recommendations to the President each month prior to the final report being presented to him, and was to have completed its work within the period of four months from the date of its establishment. But not having completed its task, the life of the Commission has been extended by the President from time to time. In terms of s 1 of the Commissions Act 8 of 1947 the President — I

Ponnan JA (Swain JA and Fourie AJA concurring)

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A declared the provisions of that Act to be applicable to the Commission;

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promulgated regulations with reference to the Commission. [4]

[6] Depending on which of the competing contentions ultimately carry B the day, the first, second and further respondents, in all some 300 of them (the respondents), were involved in the incident that gave rise to the establishment of the Commission as either victims or perpetrators. The nature of their involvement, which is contested before the Commission, does not have to be resolved for the purposes of determining the issues raised by this appeal.

C [7] Contending that the South African state in its various different guises had failed and/or refused to assume responsibility for the legal costs and fees associated with the presentation of their case before the Commission, the respondents applied to the North Gauteng High Court, Pretoria, for an order against the President, the Minister of Justice and Constitutional Development (the Minister) and Legal Aid South Africa (Lasa) D for, inter alia, an order that they —

'take all reasonable steps to provide adequate legal and equitable aid to the applicants in respect of the future proceedings of the Commission, including all reasonable costs incurred to date less any amount previously received from third parties, on the same or equitable basis as E those provided for the state parties'.

[8] The application failed in respect of the President and the Minister but succeeded in respect of Lasa. The high court (per Makgoka J) ordered Lasa to 'forthwith take steps to provide legal funding to the applicants for their participation in [the Commission]' and 'to pay the F applicants' costs'.

[9] The appeal by Lasa against that order is with the leave of the high court. The respondents have not sought to prosecute a cross-appeal against the dismissal of their application against the President and the G Minister. The President and the Minister have accordingly filed a notice with the registrar of this court intimating that they will abide the decision of this court. The Commission and various other parties to the Commission were also cited as respondents — some of them filed affidavits and participated in the proceedings before the high court. Of those, the eighth respondent, described as the Families of the Deceased, the ninth H respondent, Amcu, and the eighteenth respondent, the Ledingoane Family, filed heads of argument with the registrar of this court and participated in the appeal. As all three aligned themselves with the respondents' contention that the appeal was moot and none sought any costs on appeal, nothing further need be said about any of them.

I [10] In terms of s 2 of the Legal Aid Act 22 of 1969 there is established a board to be known as the Legal Aid Board (the LAB). Section 3 of that Act sets out the objects and general powers of the LAB, of which the more relevant are 'to render or make available legal aid to indigent persons and

Ponnan JA (Swain JA and Fourie AJA concurring)

to provide legal representation at state expense as contemplated in the A Constitution'. To that end the LAB has the power to —

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obtain the services of legal practitioners (ss (a));

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fix conditions subject to which legal aid needs to be rendered (ss (d)); and

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provide legal representation at state expense as contemplated in B ss 25(1)(c) and (3)(e), read with s 33(2), of the Constitution, where substantial injustice would otherwise result (ss (dA)).

In terms of s 3A the LAB must in consultation with the Minister include the particulars of the scheme under which legal aid is to be rendered and the procedure for its administration in a guide called the Legal Aid Guide C (the guide). The provisions of the guide are binding on the LAB, its officers and employees.

[11] The respondents took issue with Lasa's decision to decline their application for funding principally on the basis that it had previously granted funding to 23 families who had lost breadwinners during the D Marikana incident. According to Lasa its CEO had exercised her discretion in favour of the survivors of the deceased miners primarily on the basis that they consisted of women, children and elderly persons who are all recognised as vulnerable groups and whose vulnerability, so it was suggested, 'was further exacerbated by the loss of their breadwinners in circumstances unknown to them'. She also exercised her discretion for E the practical reason that those families, not having been present at the time of the occurrence, 'would not be in a position to provide their attorneys with instructions in any civil claim as to how their events of tragedy unfolded as they were not present'.

[12] The high court held that Lasa's decision was irrational and unconstitutional. F Its conclusion appears to have rested on two pillars. First, it held that s 34 of the Constitution was applicable to the proceedings before the Commission. That, so the reasoning proceeded, carried with it the constitutional obligation to ensure that the respondents were legally represented before the Commission. And, as the respondents G could not afford to pay their legal representatives themselves, the high court held that the...