Media statement on the funding of commissions of inquiry

22 Aug 2013

There has been much debate in the public domain relating to the funding of legal representation at Commissions of Inquiry and I deemed it necessary to address this issue to provide clarity. The President's power to institute a Commission of Inquiry is derived from section 84(2)(f) of the Constitution. Commissions of Inquiry are established in terms of the Commissions Act No. 8 of 1947. 

Commissions are set up as independent entities for the duration of their existence. The purpose of a Commission of Inquiry established as above sets out to establish the facts of a particular incident or series of events where it is in the public interest to do so. It has the power to make recommendations to the President who may or may not follow such recommendations.

It cannot find a person guilty of an offence arising out of the incident or events being investigated. Neither can it awards or orders in respect of civil claims. Once the President has proclaimed the establishment of a Commission, the Department of Justice and Constitutional Development then assumes responsibility for ensuring that the Commission is funded and operational.

The Department is accountable for the financial arrangements and sustainability of the Commission. Given the fact that both the Marikana and Arms Procurement Commissions were established outside the government budgeting cycle, the funding for the Commissions had to be borne by the Department from its existing allocation. The impact of this is that the Department had to shift funds from its existing programmes to enable it to fund the work of the Commissions.

Our country, as is the rest of the world, is experiencing serious financial constraints arising from the economic downturn of 2008. This has resulted in government having to manage its budgets more prudently and to spend cautiously. The budget allocations made to Departments have been cut, however the demand for services has increased considerably. The Department of Justice and Constitutional Development is not any different from other departments in terms of the expectations to spend its resources prudently throughout its operations, including the operations of the Commissions.

Marikana Commission

It is in this context that I wish to address the issue of funding the legal representation by the State for the injured and arrested miners in the Marikana Commission of Inquiry. Government's legal representation is mandated through the State Attorney Act, 1957, which mandates the State Attorney to provide legal representation to government. The attorneys representing the injured and arrested miners requested government to pay for legal representation for their clients.

The request for funding by the said attorneys was considered, but could not be granted, as the legal framework of the State Attorney Act and the Commissions Act do not provide for legal representation for witnesses who are not in the employ of the State when the incidents or events being investigated, happened.

Legal Aid South Africa (LASA) was also approached by the legal representatives of the said miners for funding of legal representation. This request was denied on the basis that LASA was under severe budgetary constraints and that its policy does not make provision for it to fund legal expenses incurred at Commissions of Inquiry. It is important to understand that LASA applied itself fully and rationally in making a decision not to fund the injured and arrested miners, after following its internal processes and policies. A question has arisen as to why LASA funded the families of the deceased and not the injured miners.

The families legal representatives were funded to assist the families to understand the proceedings in the event of civil liabilities arising from the tragic events at Marikana. This decision was motivated by the fact that these were families had lost bread winners and were without support to access the Commission. The application of the families of the deceased was considered after their individual applications were placed before LASA.

The North Gauteng High Court dismissed an urgent application that was brought before it to force the State to pay for the legal representation of the injured and arrested miners. The North Gauteng High Court endorsed the principle that it is not generally within the domain of the courts to determine how the State utilises public funds. This duty lies with the executive arm of government. The Constitutional Court subsequently refused the injured and arrested miners leave to appeal against the High Court judgment.

As government, we are not unsympathetic to the cause of the injured miners. Our duty is to expend public funds within the legal framework which sets the parameters for spending public funds and how the said funds can be spent. Government's responsibility is to set up a Commission supported by evidence leaders. The evidence leaders have a particular responsibility to gather evidence, analyse it and present it to the Commission impartially and without bias, to enable the Commission to determine the facts and to make the necessary findings and recommendations. In this regard, the evidence of the injured miners could be ably dealt with by the evidence leaders.

Government Departments are represented by private legal practitioners at this Commission. The basis of this legal representation is because the officials of these Departments are entitled to legal representation at State expense, as employees of government. These Departments are accountable for their expenditure for legal representation of their officials from the budgets allocated to them.

The Arms Procurement Commission

It has been communicated by the Arms Procurement Commission that several government Departments and its officials, former Ministers and former President, Thabo Mbeki, have been subpoenaed to appear as witnesses at the public hearings of the Commission. The work of the Commission has been divided into phases, with phase one having commenced on 5 August 2013, but postponed to 19 August 2013. Phase one will deal with the rationale for the Strategic Defence Procurement Package. Witnesses called during phase one may be recalled during other phases and the list of witnesses that has been released may be added to.

The government Departments that feature in the list are the Department of Defence and Military Veterans, the Department of Trade and Industry and National Treasury. The former Ministers who have been subpoenaed to appear are Ronnie Kasrils, Mosiuoa Lekota and Alec Erwin. In addition Minister in the Presidency, Trevor Manuel, as the then Minister of Finance, will also be called as a witness.

It is clear that the work of the Commission will span many months which will require much resources being put into the Commission. This is because of the different phases, number of witnesses and volumes of documents that must be perused. In this regard, a decision was taken that government, when it appears before the Commission, will not be utilising different legal teams made up of different private attorneys and many private counsel. The rationale for this decision is two-fold.

Firstly, government acted as a single entity during the Strategic Defence Procurement Package. It is therefore unnecessary for different teams of private legal practitioners to be appointed to represent individual Departments, Ministers, both current and former, and the former President. Secondly, utilisation of State resources must be done in a cost effective and efficient manner.

The decision to utilise one legal team, assisted by expert resources, where such is deemed by the State Attorney to be necessary, applies to all individuals who will be called as witnesses for government to give evidence before the Commission. As the former President and former Ministers also fall into this category, the approach in relation to legal representation will apply to them as well.

We must add that the State Attorney, as mandated by legislation, will be carrying out their legislative functions in rendering its services for government at the Commission, as it has been doing on a daily basis over many years. A single team led by the State Attorney will consist of its own internal resources supplemented by outside expertise as deemed necessary. This team will provide co-ordinated and coherent legal services to government when it appears before the Commission for its entire duration. As such, no attorney in private practice will be instructed to appear before the Commission after the handover process to the State Attorney.

Naturally there may be those who wish to be provided with private legal representation outside of or in addition to the State Attorney team. This is perfectly permissible in terms of the regulations, however under these circumstances, the costs for such legal representation shall be borne by the person requesting such additional support.

This approach, we believe, will assist government in managing the costs of this Commission, which costs include the costs of setting up the Commission; appointing the evidence leaders; forensic investigators and other specialists that are needed from time to time; the production of voluminous documentation and the overall administration of the Commission, which is already a huge strain on our financial resources.

In this regard therefore, each government Department and former Ministers and the former President who had requested that the State fund the employment of legal representation by private practitioners, have been requested to terminate such mandates and to hand over to the State Attorney as soon as possible.

The withdrawal of the firm Boqwana Burns has created an impression that government has refused to fund the former President's legal representation in the Commission. This is indeed not true. The former President is being offered legal representation which will be provided through the State Attorney, duly supported by expert resources, as deemed necessary by the State Attorney.

The approach on legal representation before the Marikana Commission and the Arms Procurement Commission differs. In the Marikana Commission, different departments fulfilled different responsibilities independently and apart from each other. In this regard the Department of Mineral Resources is responsible for regulating the mining sector and its cause of action would have preceded the dates of the tragic incidents. The responsibilities of the South African Police Service and its members were exercised on the days in question. Therefore, there was no single event or cause of action. Each legal team would have to deal with its separate cause of action or those mandated areas falling under its responsibility.

The approach on legal representation in the Arms Procurement Commission is necessitated by the fact that there was a single procurement transaction by government through Cabinet, and its successors in title, acting as a single entity. Therefore, a single legal team was deemed most appropriate to represent the whole of government regardless of the different roles each Department played during the procurement process and afterwards in the implementation of the outcome of the process.

In concluding, let me reiterate the established principle of our law that Commissions of Inquiry are investigative in nature and are aimed at establishing the facts and making recommendations to the President based on the facts established. It is important that legal representation as a right be viewed in the context of the distinction between judicial proceedings before an independent court of law at which the President is not involved, and a Commission of Inquiry which is a mechanism whereby the President has sought to obtain information and advice on a subject matter being investigated.

I thank you.

Issued by the Department of Justice and Constitutional Development, August 22 2013

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