ON October 1 last year, the Marikana Commission of Inquiry held its first day of hearings into the events of and before August 16 of that year, during which 45 people were killed. The commission’s chairman, Judge Ian Farlam, asked his colleague, advocate Bantubonke Tokota, to read the names of those who died and for the family members present to stand as the names of their loved ones were called out.
No one stood up. There were no family members in the auditorium because neither the commission nor the government had contacted them or invited them. Yet this evident absence did not cause Farlam to pause, and the commission trundled forward regardless.
Indeed, when advocate Dumisa Ntsebeza (counsel for the families of 36 dead mineworkers) called for a postponement to ensure the attendance of the families, this was denied, until a media outcry appeared to shift the position and there was an adjournment to ensure the families did attend the hearings.
Eleven months later, it is clear that the overly bureaucratic and insensitive way in which the commission began had set the tone for an inquiry that has been continually hampered by problems.
The most recent setback is the issue of the lack of funding for the legal team representing the 270 mineworkers who were injured (but not killed). This has been sharpened by the government’s announcement last month that it would not provide funding for the injured mineworkers’ legal team.
In the media frenzy that has followed these decisions, the injured mineworkers’ lawyer, Dali Mpofu, has been unfairly characterised as a money-grubbing carpetbagger. He has often been unfavourably contrasted to a romanticised class of heroic white public-interest lawyers, whose fabled victories came at a modest fee by comparison.
It is hard to ignore the implied racism in this comparison. Mpofu has acted for 270 mineworkers for more than a year — not only before the commission, but during the criminal proceedings ahead of it, as well as the recent high court and Constitutional Court actions to try to secure funding for the work before the commission. He has been paid, at Legal Aid rates, for less than a third of that time. Surely someone who has devoted nine months of legal support, free, or nearly free, cannot be characterised as a stranger to pro bono public-interest legal practice?
Mpofu requires detailed instructions for each of his clients. This takes time. Any lawyer working at the commission in a similar capacity must, of necessity, work on the commission and virtually nothing else. On the other hand, “ordinary” public-interest work usually takes up no more than a few days of an advocate’s time. None of this is to criticise the work done by other advocates at the public-interest bar. But if Mpofu is to be compared with them, the comparison must be fair.
Instead, the crass attacks on the injured mineworkers’ legal team have diverted attention from other questions, which should raise real concern, if not outrage. Is it acceptable that the state pays for the police’s legal team at top legal rates (in the order of R30,000 a day), while the legal teams for the victims receive Legal Aid rates at best and no support at worst? Should we not rather advocate for a position in which the parties to a presidential commission of inquiry accept state funding at Legal Aid rates?
And what of the suggestion that, in the absence of their lawyers, the evidence leaders at the commission can now represent the injured mineworkers’ interests? Unlike any police officer involved in the massacre, the injured face criminal charges. Is it acceptable, midway through an inquiry that has been highly accusatorial and has operated like a criminal trial, to suggest the mineworkers can be adequately represented by lawyers who ultimately hold no brief for them? What does this arrangement do for the principle of fairness and equality?
These questions suggest the need for serious reflection on how to manage future commissions of inquiry. If the process so far has taught us anything, it is that we need to place victims at the centre of such inquiries. We also need to spend enough time planning and establishing appropriate procedures, ensuring funding arrangements (including possibly excluding lawyers), clarifying the role of evidence leaders and meticulously managing the evidence and testimony. If justice is to be served effectively and sensitively, we cannot afford to repeat these mistakes.
• Dugard is a senior researcher at the Socioeconomic Rights Institute of SA.
