Retired judge Ian Farlam speaks as the Marikana Commission of Inquiry into the shootings at Lonmin's Marikana mine.

Johannesburg - The extension of the Marikana Commission of Inquiry has left lawyers for the families of slain miners as well as those representing injured and arrested miners concerned about a lack of funding for their cases.

Muzi Msimang, who represents the more than 300 mineworkers who were arrested or injured in the protest along with Advocate Dali Mpofu, says he and his legal team have had to depend on good will for funds, and are not sure how they will continue now that the inquiry has been extended.

Msimang told The Sunday Independent he had written to Justice Minister Jeff Radebe more than once, but that no money was allocated.

The issue of who would pay the legal fees of the families and miners was brought before the commission when it began in October last year. Retired Judge Ian Farlam, who is chairing the inquiry, said the groups should approach Legal Aid SA.

Legal Aid SA said a R1.2million allocation was provided at the discretion of the chief executive, because the Legal Aid Guide did not allow for it to fund representation at a commission of inquiry. Legal Aid SA said the National Union of Mineworkers and the Association of Mineworkers and Construction Union “have the mandate to protect their members’ interests”. The families were funded because they “represent a vulnerable group”, it said.

However, Msimang believes the commission should be able to allocate funds from its own budget to pay legal teams who do not have government funding, to ensure access to justice.

He said that while the team had reported their financial woes to the commission, they “don’t want to be cry babies as if this is about money”.

“There is prejudice to our clients. If you go to battle half-armed and you are going to meet people who are well-armed, that isn’t an equal battle… If we pull out, what is going to happen to the poor people? If we do well, the entire legal profession will be praised.

“Why should we carry the burden for the whole profession?”

Msimang said the miners had no way of paying the fees for the commission, because “some people who survived can’t even return to work”.

“We have been requesting funding from the Minister of Justice and the Legal Aid Board and we have not received any joy. The minister has simply said ‘we have received your application’. So far we are not funded at all,” Msimang said.

He added that a donor, who he did not wish to name, had “pledged some amount”.

Msimang said the donation, while well received, would only cover some of the fees relating to the commission itself, but not the prior bail application for the arrested miners. “It does affect our ability to prepare. The police have a huge team compared to ours. Our team should be bigger than that but we would not get advocates who would work for free,” he said.

“It also affects our practices. If you are out of your practice for some time and you are not being paid for all the hours that you work, it is close to receiving a stipend. You can’t make ends meet,” he said.

Jackie Dugard, of the Socio-Economic Rights Institute, which represents the families of the 34 slain miners, says that while the group had not asked Legal Aid SA for additional funding, the R1.2m will not cover all aspects of the litigation.

Dugard told The Sunday Independent that the agreement with Legal Aid SA was that the funding covered 30 days to pay for one senior counsel and two juniors.

This meant that if the money was for 30 days where advocates attended the inquiry, no preparation time would be funded.

Dugard said this meant the team, which is lead by senior Advocate Dumisa Ntsebeza, had to “plan carefully and make sure that people are not (at the commission) unnecessarily” .

However, with the commission being extended from the initial four months to May, the legal team could encounter problems.

“In a case like this which is sitting for months, no one can offer their services for free… It is a serious issue, but we didn’t want to make this a stumbling block… It’s a tricky thing. You can’t rely on pro bono. We have settled on particular rates and no doubt this is nowhere near the rates that the state team is charging,” she said.

At a conservative estimate, if police pay R25000 each for two senior advocates a day and around R18000 each for three senior juniors, their legal fees could come to R104000 a day.

Some senior counsel have been known to charge as much as R40000 a day for an appearance.

This is excluding the separate legal team representing Police Minister Nathi Mthethwa.

The government is also paying for lawyers for the Department of Mineral Resources.

“It’s a big question. The police shot dead 34 people and there is a dispute about the level of justifiability of their actions. You have a state organ which mowed down people – we believe wrongly – and they get the state to pay for top lawyers to defend their actions,” Dugard said.

Justice Department spokesman Mthunzi Mhaga says the law only provides for the state to pay for witnesses’ legal fees. He said this would be changed.

Commission spokesman Phuti Setati could not be reached. - Sunday Independent