Following the August 2012 Marikana shootings, the President established the Marikana Commission of Inquiry to investigate events leading to the deaths, injuries and arrests of mineworkers. The first, second and further respondents were miners who were injured or arrested during the events and whose conduct was itself under investigation by the Commission. They requested state-funded legal representation before the Commission. Legal Aid South Africa agreed to fund legal representation for the families of deceased miners but refused to fund the miners’ representation, citing budgetary constraints, vulnerability of the families, and the view that the miners’ interests were protected by trade unions. The miners obtained interim private funding, which later ceased, and then approached the High Court. The High Court found Legal Aid’s refusal irrational and inconsistent with sections 9 and 34 of the Constitution and ordered Legal Aid to fund the miners’ legal representation. Legal Aid appealed. Before the appeal was heard, Legal Aid and the miners concluded an agreement in terms of which Legal Aid funded the miners’ representation for the remainder of the Commission, which subsequently concluded its work.
Leave to file a replying affidavit was granted. The application for leave to appeal was dismissed. Legal Aid South Africa was ordered to pay the costs of the first, second and further respondents.
The case clarifies that disputes concerning state-funded legal representation at commissions of inquiry are highly context-specific and that section 34 of the Constitution does not automatically confer a right to such funding. It reinforces the Constitutional Court’s approach to mootness, confirming that even constitutional issues will not be decided where no practical effect remains and where the interests of justice do not justify intervention. The judgment also underscores judicial restraint in not laying down broad principles in a changing legislative context.