Citizens4Marikana: Crowdfunding for fees

The representation at the Farlam Commission of more than 200 miners who were arrested and charged with the murder of their colleagues after the Marikana massacre still hangs in the balance. Thus far, the courts have dismissed the idea that the government should foot the bill for their legal fees. Platinum miner Lonmin says they won't do it either. Now a group called Citizens4Marikana, frustrated by the lack of support for the Marikana victims, is setting up a trust for the public to make contributions.

As is so often the case these days, the idea for Citizens4Marikana grew out of interactions on social media. In August 2013, a year after the Marikana massacre, funding for the legal representation of Marikana victims at the Farlam Commission appointed by the government to investigate the killings appeared to be in jeopardy. High-profile lawyer Dali Mpofu, representing 270 of Marikana's striking miners, had lost two court attempts to compel the state to pay his legal fees. The Marikana miners could not afford to pay their lawyers.

Spoken-word artist Ntsiki Mazwai posted a tweet saying, "We can't let Dali Mpofu do this alone". Discussions began among a group of concerned South Africans, and the plan for Citizens4Marikana was hatched. The campaign believes that the work of the Farlam Commission in uncovering the truth about the Marikana massacre is essential, and that this truth cannot be reached unless all the parties involved are given fair representation.

"We believe that all sides should be given an equal opportunity to represent their views of the events that culminated in the massacre, and also have the opportunity to question the version of events presented by other parties," Citizens4Marikana's Kay Sexwale told the Daily Maverick on Tuesday.

In order for this to happen, they maintain, the miners need lawyers. Since the Marikana massacre was carried out by police acting on behalf of the state, many believe that the state should foot the bill for these lawyers. The state disagrees. In a statement last week, Justice Minister Jeff Radebe advanced several reasons why the government wouldn't be paying for the miners' legal fees.

Firstly, Radebe said, because the Farlam Commission was set up outside of existing budgets and the Department of Justice is already having to dig deep in its pocket for that, "shift[ing] funds from its existing programmes". Secondly, because the government should only fund the legal fees of its own employees. And thirdly, because since the Farlam Commission isn't a real criminal trial, state-funded "evidence leaders" would be a satisfactory replacement for lawyers for the miners.

These arguments ring hollow on a number of levels. For one thing, writing in the Mail & Guardian last week, the Socio-Economic Rights Institute's Stuart Wilson argued that though the Farlam Commission is not a criminal trial, the evidence collected during the course of it, and the findings of the commission itself, will no doubt become important in any future civil or criminal trials in which the miners might be involved.

For another thing, despite the state's claim that evidence leaders are perfectly sufficient substitutes for lawyers at a commission of inquiry, they are in no hurry to extend this principle to their own employees. The government is reportedly sponsoring a team of lawyers for the police and a team for the Department of Minerals and Energy, families of the slain policemen and Popcru (the police union). In a court application from the miners' lawyers, they claimed that the state may end up spending almost R60 million on legal fees. This may be hyperbolic, but it's believed that the government has already shelled out around R6,7 million for legal representation.

"How can [Minister Radebe] claim that evidence leaders in the commission are adequate for "the other side" but not so for those in the employ of government?" asked Xhanti Payi in a Daily Maverick column last week.

But thus far the courts have backed the state on this one. Last Monday, the Constitutional Court dismissed an attempt to compel the state to pay for the legal fees of those miners arrested and injured at Marikana last year who are participating in the Farlam Commission. The High Court had previously dismissed the application on the grounds that it wasn't within a court's remit to instruct the Executive on how to spend public resources "in the absence of proof of unlawfulness, fraud or corruption". The Constitutional Court found no reason to overturn this, even though it recognised that "it may be commendable and fairer to the applicants that they be afforded legal representation at state expense".

If the state won't pay for Mpofu and his legal team, who will? Some say that Lonmin should consider stepping up. In mid-August, Lonmin was approached by an NGO called the Hola Bon Renaissance (HBR) Foundation to help pay the legal fees of the miners. (The HBR Foundation had been in the news some weeks previously due to their claim to own the trademark to the name 'Agang'.)

Lonmin said no. The company acknowledged that all relevant parties should have a voice at the commission, but refused to contribute to the miners' legal fees on the grounds that this might look like an admission of liability. "Given the conflict inherent in Lonmin providing financial assistance to a party with whom it may be in opposition and the negative perceptions this could raise, we cannot accede to your requests," Lonmin replied.

Others have suggested that unions NUM and AMCU should take responsibility for their members. So far, there's been little practical indication of this happening, although AMCU President Joseph Mathunjwa said last week: "We will make sure that Dali Mpofu gets funding. Even if it means taking out a second bond on our houses, we will do so."

In the absence of these avenues coming to fruition, Mpofu's team's legal fees were funded for some time by the Raith Foundation, a private grant-making foundation operational since 2001 which focuses on social justice. In a letter in June, director Audrey Elster explained that the decision to fund the legal representation at the Farlam Commission was made because "we feel that the differential levels of financial support available to those affected by and involved in the Marikana crisis is unfair and unjust. This is particularly the case in relation to those groups with the least resources, who were witnesses to the events".

Should those parties not be able to be involved in the Farlam Commission, Elster wrote, "the Commission and its findings will be the poorer for it". In November 2012, Raith gave the Mpofu legal team an emergency grant of R2,819,962. In late January Raith approved in principle an additional grant of R2 million, though this has not been disbursed.

In a recent op-ed, activist Nathan Geffen wrote that the manner in which Dali Mpofu had inserted himself front and centre in the story of the Marikana miners was inappropriate. Moreover, Geffen wrote, thanks to the Raith Foundation's grant, Mpofu had actually received "a very large amount of money" for his work for the Marikana miners thus far.

"Representing the Marikana miners should be seen as a great honour where the fees are secondary," Geffen wrote. "Advocate Mpofu's remuneration should not have taken centre stage."

Citizens4Marikana disagree. "We're not certain on what basis Mr Geffen made the assertion that the fees charged at the commission are excessive nor whether he has any factual basis for such a submission," Sexwale says. She points out that the fees charged by the lawyers representing Lonmin and the police have not come in for any such criticism. "Papers submitted to [the High Court and the Constitutional Court] indicate that the fees of Advocate Mpofu amount to approximately 5% of the fees charged by representatives of the police."

Notwithstanding the court rulings thus far, Citizens4Marikana haven't given up hope that the government may yet be compelled to pay for the miners' lawyers. "The Constitutional Court has not yet ruled on whether the door to state funding has been permanently closed, and we, like the rest of South Africa, do not yet know if funding will be found from other donors, nor whether the workers' legal representatives team will be in a position to continue to act on behalf of their clients without further funding," Sexwale said. "We want to assist in providing funding if possible."

Since the group's fundraising campaign began on 16 August, they have received contributions from the public ranging from R50 to R1,000. Citizens4Marikana has also directly approached certain individuals for contributions. Sexwale says that they'll give a public update on their fundraising at the end of the week.

What would the group's response be to ordinary citizens who say 'The government was responsible for the Marikana massacre, so why should I now have to donate to pay the miners' legal fees'?

"The legal fees paid for the private representation of the police officers and, in fact, for the administrative and running costs of the commission itself, are funded by the taxpayer," Sexwale points out. "So, ordinary citizens are paying for the legal fees of the police, to the tune of R3 million per month, but not for the workers. The SAPS representatives are the highest paid legal representatives at the commission."

This column appeared in The Daily Maverick.