While the Constitutional Court, in its decision on Monday, held that it did not have the 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 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. Looking ahead, however, the SAHRC welcomes the application made today by the evidence leaders of the Commission for a decisive change in the procedures to be followed there. The evidence leaders called for the Commission of Inquiry to move from the current adversarial, party-led approach to a more inquisitorial, Commission-led approach. The SAHRC supports this move wholeheartedly and called on the Commission to rule on the application urgently. A move to an inquisitorial, rather than adversarial approach, will achieve two ends. First, the move would indicate an intention to address the serious problem caused by the absence of the injured and arrested miners from the Commission process. For an adversarial process to continue in the absence of key adversaries would be unjust and unfair. While an inquisitorial process will not eliminate the unfairness of the Commission proceeding in the absence of the injured and arrested miners, it will go some way towards mitigating that unfairness. Irrespective, it also will ensure the efficient progress of the Commission in fulfilling its terms of reference within a reasonable period of time and at a reasonable cost. The current pace of proceedings -- in which only four police officers have given evidence in six months due to the adversarial nature of the proceedings -- cannot continue. This procedural change is necessary regardless of the number of parties able to participate directly in the Commission. Finally, given the delays occasioned by the lack of funding for the injured and arrested miners, and given the hugely important work ahead on both Phase One and Phase Two, the SAHRC calls on the Presidency to extend the deadline for the completion of the Commission’s work beyond the October 2013 deadline. Issued by the South African Human Rights Commission For more information Isaac Mangena Tel: 071 884 8273 Email: This email address is being protected from spambots. You need JavaScript enabled to view it. For comments email This email address is being protected from spambots. You need JavaScript enabled to view it.