Legal Aid South Africa v Magidiwana and Others

Following the tragic Marikana mining strike events in August 2012 (which resulted in 44 deaths, over 70 injuries, and approximately 250 arrests), the President established the Marikana Commission of Inquiry. The miners (first, second and further respondents), being indigent arrested and injured persons, requested state-funded legal representation before the Commission from both the Minister and Legal Aid South Africa. The Minister declined on the basis there was no legal framework for such funding. Legal Aid's CEO, exercising her discretion, had already committed to funding the families of deceased miners but declined the miners' request, citing budgetary constraints and that the miners' interests would be protected by their unions. The miners received interim private funding but when this ceased, they challenged Legal Aid's refusal in the High Court (Part B of their application - Part A having been dismissed). The High Court found that Legal Aid's refusal was irrational and inconsistent with sections 9 and 34 of the Constitution, ordering Legal Aid to fund the miners. Legal Aid appealed to the Supreme Court of Appeal. Before the appeal was heard, Legal Aid and the miners reached a funding agreement. The Supreme Court of Appeal dismissed the appeal as moot without deciding the merits. Legal Aid then sought leave to appeal to the Constitutional Court.

• Whether the matter was moot and, if so, whether it was in the interests of justice to hear the appeal despite mootness
• Whether section 34 of the Constitution (right of access to courts or another independent and impartial tribunal or forum) applies to commissions of inquiry
• Whether section 34 provides a right to state-funded legal representation before commissions of inquiry
• Whether Legal Aid South Africa has a constitutional obligation to fund legal representation before commissions of inquiry
• Whether Legal Aid's differential treatment of the miners compared to the families constituted unfair discrimination under section 9(3)
• Whether Legal Aid's refusal to fund the miners was irrational

Application for leave to appeal dismissed with costs against Legal Aid South Africa in favour of the first, second and further respondents (the miners).

MAJORITY: (1) A matter that is moot between the parties will only be decided if it is in the interests of justice, considering whether any order will have practical effect on the parties or others. (2) Where a lower court judgment is carefully circumscribed to the particular facts of a case and the court expressly states it is not authority for general propositions, and where the circumstances are unique and unlikely to recur, there is no practical effect warranting a decision on the merits despite mootness. (3) Even where section 34 of the Constitution applies to a particular forum, it does not automatically impose an obligation on Legal Aid South Africa to fund legal representation - Legal Aid retains discretion in its funding decisions subject to constitutional and statutory constraints. DISSENT: (1) Courts should exercise discretion to decide moot matters where: the issue is of public importance; the matter is complex; arguments are fully developed; and particularly where future cases are likely to be "evasive of review" (e.g., indigent applicants are unlikely to be able to appeal denials of legal aid). (2) Section 34 of the Constitution, which provides for the right to have disputes "that can be resolved by the application of law" decided before a court or other independent tribunal, does not extend to commissions of inquiry that lack power to finally determine legal rights. (3) Section 34 does not provide a right to state-funded legal representation before commissions of inquiry - the Constitution expressly provides for such a right only in limited circumstances (sections 28(1)(h), 35(2)(c), 35(3)(g)), and courts should be cautious to find it implied in other rights given the impact on finite resources for indigent litigants.

MAJORITY: (1) The latest amendments to the Legal Aid Guide may affect how the CEO's discretion is exercised regarding funding for commissions of inquiry, possibly clarifying that the duty to fund is primarily on the establishing authority. (2) The High Court was correct that the right to legal representation at commissions is not absolute but depends on context. (3) This Court has not considered the merits of the High Court's decision and makes no pronouncement in that regard. DISSENT: (1) Other constitutional provisions and principles (such as the principle of legality under section 1(c)) may ensure fairness and equality before commissions of inquiry without coming at the expense of those whose rights will be finally determined. (2) The establishment of a commission without ensuring participants' legal representation may infringe the principle of legality if it bears no rational relationship to the commission's objectives - but such a challenge should be directed at the President who establishes the commission, not at Legal Aid. (3) The failure to provide adequate legal representation may compromise a commission's truth-finding function, but this concern does not engage the protection of section 34. (4) The High Court's finding that survival of a shooting constitutes an analogous ground for discrimination purposes represents a fundamental misunderstanding of the nature of analogous grounds under the Harksen test. (5) Where bad reasons for an administrative decision exist alongside good reasons, they will only render the decision irrational if they play an "appreciable or significant role in the outcome" - a reviewing court cannot cherry-pick reasons without considering the primary basis for the decision.

This case is significant for: (1) Clarifying the approach to mootness in South African constitutional litigation - courts will not decide moot matters unless there are compelling public interest considerations and practical effects on parties or others. (2) The interaction between mootness doctrine and the doctrine of precedent - the majority found the High Court's findings were so context-specific as to have negligible precedential value. (3) The scope of section 34 of the Constitution and whether it can provide a right to state-funded legal representation before commissions of inquiry (left undecided by the majority but strongly addressed in the dissent). (4) The proper interpretation of Legal Aid South Africa's constitutional and statutory mandate and the limits on judicial interference with its budgetary allocation decisions. (5) The dissent provides important guidance on when it is in the interests of justice to decide moot cases, particularly where: (i) novel legal principles are established; (ii) the issue affects vulnerable persons; (iii) future cases are likely to be "evasive of review"; (iv) an administrative body seeks clarity on its constitutional obligations. (6) The tension between ensuring fairness and equality of arms before commissions of inquiry versus protecting the resources available for indigent litigants whose rights will be finally determined. The case demonstrates judicial restraint by the majority in declining to pronounce on important constitutional questions where there is no live controversy, while the dissent emphasizes the need for legal certainty on novel constitutional interpretations affecting vulnerable persons.