I enjoy lawyer jokes, but in my time with the Treatment Action Campaign (TAC) the lawyers I worked with didn't fit the stereotype. They often represented TAC pro bono or at reduced fees. They put money aside to fight for justice, especially for poor people. They were also modest. In our high profile cases, the TAC's lawyers were not the centre of attention. Nevertheless, TAC won most of its cases and all the key ones. We were very ably represented.
In TAC's litigation, people living openly with HIV, like Hazel Tau and Zackie Achmat, were the main focus of media attention. That was achieved through deliberate effort and made strategic sense.
So in the grim aftermath of Marikana, I would have expected that in the public mind the salient names of the tragedy would be surviving miners or the widows and children of the dead miners.
But it's not. Instead it's been Advocate Dali Mpofu. Somehow, he has placed himself at the forefront of media attention covering the commission of inquiry.
Recently, Mpofu's remuneration for representing the miners at the commission has attracted notice. Not what the police did at Marikana. Not the lives of the family members of the deceased. Not the post-traumatic stress and anguish of the survivors. No. Instead it has been Mpofu and his fees.
A Business Day editorial said, "What is most certainly undermining the inquiry's credibility is the tussle over whether the Legal Aid Board should be obliged to pick up the tab for Mr Mpofu's not inconsiderable fees." It also says, "The legal issues are complex, and it is by no means certain that Mr Mpofu will win. But the government should relent -- it is common knowledge it has already paid the police's legal team as much as R7m."
The lawyers for the miners brought an urgent application before the North Gauteng High Court. They asked for urgent temporary relief compelling the state to pay their legal fees and, ultimately, final relief. The High Court has ruled only on the claim for interim relief. It dismissed the case "on the basis that it was constitutionally inappropriate for a court, in interim proceedings, to direct the Executive on how to expend public resources in the absence of proof of unlawfulness, fraud or corruption."
On 19 August, the Constitutional Court dismissed an appeal by the miners on very much the same basis.
Nevertheless, perhaps the Business Day editorial is correct. Maybe the state should pay Mpofu's "not inconsiderable" fees - even if the law doesn't compel it to. The issues are complex.
But what is striking is this. Mpofu has not worked free of charge for the miners. From October 2012, he and his "team" have received more than R2.5 million from the Raith Foundation to represent the miners. They have also been offered R2 million more since. This was to pay Mpofu, his junior counsel and three attorney firms working on the case.
The lawyers are not working solely on the Marikana Commission. It is reasonable to assume that a large chunk of the money has gone to Mpofu personally. Now it's true that some lawyers make considerably more money than Mpofu would have earned in the months that he has worked on the Commission, a point that raises troubling questions about legal fees generally. But, by any standards, Mpofu has nevertheless received a very large amount of money.
By contrast, lawyers representing TAC seldom earned more than a few tens of thousand rands in fees for a case -- and certainly never millions, not even close. Although the Marikana Commission may be more time-consuming than the average court case, Mpofu is being very well paid.
Representing the Marikana miners should be seen as a great honour where the fees are secondary. Advocate Mpofu's remuneration should not have taken centre stage.
This article first appeared in www.groundup.org.za
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