While the Court held that it did not have a power to order the executive branch of government on how to deploy state resources, it recognised that “it would be commendable and fairer to the applicants that they be afforded legal representation at state expense in circumstances where state organs are given these privileges and where mining companies are able to afford the huge legal fees involved”. The Court went on to note that “a functionary setting up a commission has to ensure an adequate opportunity to all who should be heard by it. Absent a fair opportunity, the search for truth and the purpose of the Commission may be compromised. This means that unfairness may arise when adequate legal representation is not afforded.”

The SAHRC and CALS considers that there is a real risk of unfairness, and a real risk that the purpose of the Commission will be compromised, if adequate legal representation is not afforded to the injured and arrested miners of Marikana. With this in mind, the SAHRC and CALS remains hopeful that funding will be secured so that the Marikana Commission will resume and remain inclusive, providing a voice to some of those most affected by the tragedy at Marikana. Once again, the SAHRC and CALS calls on the Commission, government and all parties to the proceedings to find a funding solution that will allow those injured and arrested at Marikana on 16 August 2012 to continue to take part in the Commission process.

Issued by the South African Human Rights Commission

For more information

Isaac Mangena
Tel: 071 884 8273
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