Mzoxolo Magidiwana and Other Injured and Arrested Persons v President of the Republic of South Africa and Others

The applicants were members of a class of persons arrested or injured after the shooting of mineworkers by the South African Police Service at the Marikana mine in August 2012. The President established the Marikana Commission of Inquiry to investigate the tragic incidents. The applicants secured funding from the Raith Foundation (a non-governmental entity) for their legal representation at the Commission for October 2012 to March 2013, but could not secure further funding. They requested funding from the Minister of Justice and Constitutional Development, which was declined on the basis of no legal framework. They also approached Legal Aid South Africa, which refused on grounds of budgetary constraints and policy limitations. The applicants brought an urgent application to the North Gauteng High Court seeking temporary and final relief requiring the President, Minister and Legal Aid South Africa to provide legal aid at state expense. Raulinga J dismissed the application for temporary relief.

• Whether the applicants had a right to state-funded legal representation at a commission of inquiry
• Whether sections 34 (access to courts) and 9 (equality) of the Constitution entitled the applicants to legal representation at state expense before the Marikana Commission
• Whether it was appropriate for this Court to grant leave to appeal against an interim order
• Whether courts can order the executive on how to deploy state resources in the context of legal representation at commissions of inquiry
• Whether the interests of justice warranted granting leave to appeal in circumstances where the main review application was still pending

The application for leave to appeal was dismissed in terms of rule 19(6)(b). No order as to costs was made.

The binding legal principles established are: (1) The explicit constitutional rights to state-funded legal representation in sections 28(1)(h), 35(2)(c) and 35(3)(g) do not extend to proceedings before commissions of inquiry. (2) Courts should be reluctant to grant leave to appeal against interim orders that have no final effect and are susceptible to reconsideration when final relief is determined, applying the interests of justice test. (3) In appeals against interim orders, appellate courts must avoid usurping the role of review courts and should not anticipate the outcome of reviews except where prospects of success are non-existent. (4) Courts must exercise restraint in granting interim restraining orders against state functionaries, particularly regarding allocation of public resources, which lies in the heartland of executive function. (5) Section 34 of the Constitution (access to courts) applies to disputes that can be resolved by application of law, and a commission's findings are not necessarily equated to resolution of legal disputes by a court of law.

The Court made several non-binding observations: (1) It may be commendable and fairer that applicants be afforded legal representation at state expense in circumstances where state organs have these privileges and mining corporations can afford huge legal fees. (2) The power to appoint commissions of inquiry is a constitutional executive power that enables the President to search for truth, which can inform corrective measures, future policy, executive action or legislation, and serves indispensable accountability and transparency purposes. (3) Ordinarily, a functionary setting up a commission must ensure adequate opportunity to all who should be heard by it, as absent a fair opportunity, the search for truth and the purpose of the commission may be compromised. (4) Unfairness may arise when adequate legal representation is not afforded before a commission. (5) Whether the desirable objective of 'equality of arms' before a commission translates into a right to legal representation at state expense is a contestable issue. (6) The provisions of the Legal Aid Act had not been challenged as constitutionally invalid, nor had the refusal by Legal Aid South Africa been challenged on review.

This case is significant in South African jurisprudence as it clarifies the limits of the right to state-funded legal representation, confirming that such rights are explicitly limited to the three categories set out in the Bill of Rights (children in civil proceedings, detained persons, and accused persons in criminal trials) and do not automatically extend to commissions of inquiry. The judgment reinforces the principle of separation of powers, particularly that courts should not ordinarily interfere with executive decisions on the allocation of public resources absent proof of unlawfulness, fraud or corruption. It also establishes important principles regarding appellate review of interim orders, emphasizing judicial restraint and the need to avoid usurping the role of review courts. The case highlights the tension between the constitutional imperative of fairness in commission proceedings and the practical limitations on judicial power to compel state funding, leaving such determinations to be resolved through the main review application process.