14/07/2014. Former police minister, Nathi Mthethwa during the Farlam commisiion of inquiry in Centurion. Picture: Thobile Mathonsi

Johannesburg - Lawyers representing hundreds of miners injured and arrested by police during the Marikana massacre have received about R5.13 million in legal fees. And Legal Aid SA now estimates that the R5.13m paid to the lawyers could have helped up to 1 000 people who qualify for legal assistance.

According to Legal Aid SA chief legal executive Patrick Hundermark, for every R1m spent by the entity in providing funding for legal representation before the commissions of inquiry, 200 applicants who would otherwise qualify for assistance are refused help.

The figure is revealed in papers filed by families of the dead miners and the Association of Mineworkers and Construction Union (Amcu) in their response to Legal Aid SA’s Supreme Court of Appeal application for leave to appeal North Gauteng High Court Judge Tati Makgoka’s October judgment.

They cite correspondence from Legal Aid SA dated July 2, this year.

Makgoka ordered Legal Aid SA to provide funding to injured Lonmin rock drill operator Mzoxolo Magidiwana, who was shot seven times, and his 352 colleagues injured and arrested during and after the massacre.

Legal Aid SA previously claimed that it would need R17m to pay the miners’ lawyers, and that it would be at the cost of about 3 800 poor people needing legal assistance.

Legal Aid SA says its average cost is R5 189 for each finalised civil matter.

By March, Legal Aid SA had paid more than R2m to the lawyers, who include Dali Mpofu for the injured and arrested miners, and Dumisa Ntsebeza, on behalf of the dead miners’ family members, who are also funded by Legal Aid SA.

According to counsel for the dead miners’ relatives and Amcu, Socio-Economic Rights Institute of SA executive director Stuart Wilson, the families’ interest in the commission arises from the possibility of future claims for loss of support resulting from the death of their breadwinners in circumstances unknown to them.

Other players at the commission headed by retired Judge Ian Farlam, such as the police, the National Union of Mineworkers and Lonmin, have their own legal teams.

In its supreme court papers detailing its grounds for appeal, Legal Aid SA says Makgoka erred in finding that the Farlam commission had taken an adversarial nature, and that it was not inquisitorial and investigative in nature.

Legal Aid SA also says Makgoka was wrong in finding that the commission was empowered to make legally adverse findings and not legally determinative findings of fact.

It says the Farlam Commission was only empowered to make recommendations.

Legal Aid SA further says Makgoka was wrong in not finding that Magidiwana and his colleagues failed to demonstrate that substantial injustice would result if it did not fund their legal team.

While Legal Aid SA says it may well be desirable to fund legal representation for poor or indigent persons before commissions of inquiry, it insists that this must be done on a sustainable basis and with proper regard for the appropriate balancing of competing rights as limited by available resources.

According to Legal Aid SA, its financial resources are already stretched to the limit.

It says its budget of R1.4 billion helped 434 844 clients and provided legal assistance to another 297 835, and claims its budget was cut by R64m in 2012/13 owing to the government’s reprioritisation in a difficult economic climate.

However, National Treasury budget documents show that, while Legal Aid SA’s 2012/13 allocation was R1.25bn, it increased to R1.375bn in 2013/14.

In the current financial year (2014/15), the entity has been allocated R1.465bn, and the average annual growth rate of its allocation was 7.2 percent between 2010/11 and 2013/14.

National Treasury estimates Legal Aid SA’s budget allocation to increase by an average of 5.8 percent between 2013/14 and 2016/17.

Legal Aid SA says it requested additional funding for the Marikana commission from National Treasury, but did not receive any.

But Wilson says the information provided by Legal Aid SA was for the previous financial year, and that Hundermark’s affidavit leaves them none the wiser about Legal Aid SA’s true financial situation.

This past Friday was the 258th day of the commission’s sitting since it was set up on August 23, 2012.

Its last hearing is expected to be on September 30, and Farlam must submit his final report to President Jacob Zuma within six weeks after completing its investigation.

Legal Aid SA’s Supreme Court appeal will be heard on September 8. - The Sunday Independent