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Magidiwana & Other Injured and Arrested Persons v President of the Republic of South Africa and Others ('Magidiwana')

Marikana Commission - Commissions Act - Legal Aid SA - North Gauteng High Court - Supreme Court of Appeal

SERI represents the families of 36 of the deceased miners killed at Marikana, as well as the Association of Mineworkers and Construction Union (AMCU). On 16 July 2013 the families of the deceased and AMCU provisionally pulled out of the Marikana Commission of Inquiry’s proceedings, in solidarity with the arrested and injured miners who were denied state funding for their representation at the Commission. The families and AMCU were a party to the legal proceedings to secure this funding.

On 30 July 2013, the North Gauteng High Court dismissed the urgent application by the injured and arrested miners. Their legal team then made an application for leave to appeal against the judgment and order to the Constitutional Court. The families of the deceased and AMCU supported this application. On 19 August 2013, the Constitutional Court dismissed the application.

On 14 October 2013, the North Gauteng High Court ordered Legal Aid SA to fund the legal representation of the arrested and injured miners at the Marikana Commission. The court recommended to Legal Aid SA that that the miners’ current legal team – consisting of two counsel and a firm of attorneys – be maintained. The court found that Legal Aid’s decision to fund the legal representation of the families and not the miners “cannot be justified on any rational basis” and refusal to provide funding to the miners was unlawful. Legal Aid SA issued a statement that it would abide by the judgment and provide funding to the miners, but would seek legal opinion on appealing the judgment on certain matters of principle concerning the scope of its mandate. On 4 November 2013, it applied for leave to appeal the High Court's funding decision. On 11 November 2013, the injured and arrested miners applied for the lifting of the suspension of Legal Aid SA's funding, which automatically occurs once it seeks leave to appeal.

In light of the High Court's decision, the lawyers for the families of the deceased miners and AMCU continued to participate at the Commission from 15 October 2013.

On 17 July 2014 the families and AMCU filed their heads of argument in the appeal against the High Court judgment. The families and AMCU argue that the appeal should be dismissed and the High Court decision upheld. They argue that there is no rational justification to distinguish between funding the legal representation of the families and the injured and arrested miners as both groups have a "substantial, proximate and material interest" in the outcome and findings of the Commission. A failure to fund the injured and arrested miners would be irrational and infringe the constitutional right to equality. The families and AMCU argue that Legal Aid SA's claim that funding the legal representation of the injured and arrested miners would impact severely on its financial resources was unfounded as it does not claim that it has insufficient resources.

The matter was heard in the Supreme Court of Appeal on 8 September 2014. The SCA dismissed Legal Aid SA’s appeal, after asking the parties to address it solely on whether the appeal would have any practical effect or result. This was partly because Legal Aid SA had promised to fund the miners’ representation at the Marikana Commission whether or not it won the appeal. On 26 September the SCA handed down judgment, providing reasons for its ruling.

In October 2014, Legal Aid SA filed an affidavit in its application for leave to appeal the SCA decision to the Constitutional Court. In April the families and AMCU filed their heads of argument. They oppose the application for leave to appeal because the determination of the appeal would have no practical effect, and it is accordingly not in the interests of justice to grant the application.

The matter was set down for hearing on 14 May 2015. On 22 September 2015 the Constitutional Court ruled that Legal Aid SA’s appeal would have no practical effect, and dismissed it on that ground.

  • SERI press statement (22 September 2015) here.
  • Constitutional Court judgement (22 September 2015) here.
  • Families and AMCU heads of argument (2 April 2015) here.
  • Answering affidavit filed on behalf of the families and AMCU (30 October 2014) here.
  • Legal Aid SA application for leave to appeal (16 October 2014) here.
  • SCA judgment (26 September 2014) here.
  • SERI press release (8 September 2014) here.
  • SERI press statement on media inaccuracies around Marikana legal funding (20 July 2014) here.
  • Heads of argument of the families and AMCU in the Supreme Court of Appeal (16 July 2014) here.
  • Injured and arrested miners' notice of application and founding affidavit (11 November 2013) here.
  • Legal Aid SA application for leave to appeal (4 November 2013) here.
  • SERI press release (15 October 2013) here.
  • Legal Aid SA press release (15 October 2013) here.
  • SERI press release (14 October 2013) here.
  • High Court judgment (14 October 2013) here.
  • Memorandum from the victims of the Marikana massacre to President Jacob Zuma (12 September 2013) here.
  • Heads of argument of the families and AMCU in the North Gauteng High Court application (6 September 2013) here.
  • "Money issues bedevil Marikana" by Lisa Steyn, Mail and Guardian (20 August 2013).
  • Constitutional Court judgment (19 August 2013) here.
  • Supporting affidavit of the families of the deceased in Constitutional Court application (2 August 2013) here.
  • Supporting affidavit of AMCU in Constitutional Court application (2 August 2013) here.
  • High Court judgment (30 July 2013) here.