Advocate Dali Mpofu would launch an urgent application at the Constitutional Court, he said, after the high court in Pretoria had dismissed an application for the state to fund legal representation for the victims of the Marikana shootings.
“I agree with the state that the application cannot succeed,” Judge Joseph Raulinga said today.
“The application is dismissed. I need to say that nothing prevents the parties from settling this matter outside the courts.”
Mpofu, acting for the wounded and arrested Marikana miners at the hearings of the Marikana Commission of Inquiry, brought the urgent application for the state to fund their legal representation.
He wanted President Jacob Zuma and Justice Minister Jeff Radebe to approve state payment of the mine workers’ legal team.
Miners and their families packing the courtroom grunted in disapproval when Raulinga made his ruling.
The judge found the application was urgent and “class action” for the case was certified.
There was no cost order.
“They (the applicants) say the separation of powers is not implicated in this matter. I disagree,” he said.
“The duty of determining how public resources are to be drawn upon … lies in the heartland of the executive.”
He said he could only grant such an order if there was proof of unlawfulness, fraud, or corruption.
“I do not find any in this case,” he said.
Raulinga said it was the prerogative of the executive to decide how to fund commissions.
After Raulinga read the judgment into the record, Mpofu asked him to indicate when the typed judgment would be available so that he could launch an urgent application at the Constitutional Court.
The application was urgent as it would have implications for the commission.
Raulinga said he would try his best to make sure it was available “as soon as possible”.
Last Thursday, Mpofu told the court the miners wounded and arrested at Marikana last year were entitled to legal representation at the state’s expense.
He told the court the legal team had not received any funding from June to October, and that the commission was unlikely to finish its work by its extended deadline of October 31.
The commission is investigating the deaths of 34 striking mine workers, shot by police at Marikana in North West on August 16 last year, and the deaths of 10 people in strike-related violence the previous week.
On Monday, Mpofu provisionally withdrew from the commission pending the outcome of the court case.
Two other parties participating in the commission – the Legal Resources Centre and the families of the miners killed – also provisionally withdrew.
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