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Pretoria - ‘Where there is a will there is a way, and if the government really wanted to afford the injured and arrested during the Marikana massacre the opportunity to be represented before the Farlam Commission’s hearings, it would have made a plan.
“The government is not as shackled as it claims,” advocate Dali Mpofu argued in the Pretoria High Court on on Wednesday during his bid to obtain funding for the 270 mineworkers arrested after the Marikana shooting on August 16 last year in which 44 people died.
The court earlier this year turned down an application by Mpofu for an order securing state funding in the interim for the arrested mineworkers to be represented before the commission.
This was pending a main application (which is now before court) to compel the state to pay the legal fees.
The application for an interim order was turned down. Mpofu then turned to the Constitutional Court and was also blasted there.
On Wednesday, in arguing the main application, Mpofu told Judge Tati Makgoka that Justice Minister Jeff Radebe, the National Director of Public Prosecutions (NDPP) and Legal Aid South Africa were interpreting the legal framework pertaining to legal aid far too rigidly.
He said this right should be seen against the constitution, which said everyone had the right to legal representation, that nobody should be discriminated against and that everyone was equal before the law.
The main question, he said, was whether the government’s conduct in refusing these people representation at state cost was fair.
According to Mpofu, it would be a hollow promise to say everyone was equal and had a fair right to be represented if those people could not afford legal representation.
He said because his clients were poor, they were being denied the right to fight for their rights and to be represented in the commission. He said many of his clients had been charged with murder and other counts.
Although the charges were provisionally withdrawn, the NDPP made it clear this was subject to the commission’s recommendations.
Mpofu said his clients stood to be severely prejudiced if not represented at the commission, as their liberty could be at stake if it was recommended that they face trial.
He argued that it was of the utmost importance that they stated their version of events before the commission, through their counsel.
The government’s stance that they could be represented by their unions was absurd and irrational.
Mpofu said it was common cause that the question before the commission was whether the police acted in self-defence that day, as they maintained, and were allowed to use the maximum force by shooting.
“There must be a fair public hearing to determine this,” he said.
Mpofu told the court that while Lonmin Mine also had some questions to answer before the commission, it could exercise their rights in this regard, as it could afford the best legal representation, while his clients were poor.
“If they won the Lotto, they could also experience that right.
“We have a situation where the State does not want to assist us. They don’t want the truth to come out. We want the truth to come out, whether it is for or against us.
“We want answers.”
Mpofu noted that the families of the dead miners were being represented at the commission, but that the injured and arrested miners were not.
“The dead can’t tell their version, only the applicants can,” he said.
The government will present its case today.