“Marikana is probably the lowest point in democratic South Africa,” said Advocate Dumisa Ntsebeza at a Marikana memorial seminar at Rhodes University last Friday 16 August.
“Marikana is probably the lowest point in democratic South Africa,” said Advocate Dumisa Ntsebeza at a Marikana memorial seminar at Rhodes University last Friday 16 August.
The panel discussion, hosted by Dean of Humanities, Professor Fred Hendricks, was aimed at interrogating transformation of the judicial system in South Africa. Ntsebeza is the founder of the South African Black Lawyers Association and was a commissioner in the Truth and Reconciliation Commission (TRC).
He now represents families of the deceased at the Farlam Commission of Inquiry, which is investigating the killing of 43 Marikana mineworkers in August 2012.
Addressing an audience of peers, academics and students, Ntsebeza questioned the ever-increasing disparity in access to legal representation, and showed concern for the judiciary’s independence. He said the SAPS legal team at the inquiry consists of five members, with legal costs amounting to R180 000 a day.
Additionally, Minister of Safety and security Nathi Mthetwa insisted on separate legal representation. Mining company Lonmin too has extensive representation. But lack of funding is frustrating legal recourse for victims and their families.
Advocate Dali Mpofu, who represents the 270 miners injured and arrested in the wake of the massacre, went to the Pretoria High Court to force the state to pay legal costs of the miners. The application was rejected, a decision subsequently upheld by the Constitutional Court.
According to News24, Mpofu has provisionally withdrawn from the commission. The miners and their families are now waiting for funding from a donor who wants to remain anonymous.
Another concern Ntsebeza raised is class disparity in access to information. When speaking about the families of the victims in the Transkei, he discussed how senior advocate George Bizos pushed for a speedy commencement of the commission. Ntsebeza, however, insisted that the families be present. According to him, the state’s assumption that everyone knew about the massacre was wrong.
“My instructing attorney went to the Transkei and found that there are areas where there weren’t even radios,” he said. It was President Jacob Zuma who appointed the Farlam Judicial Commission of Inquiry in September 2012. “And president Zuma is well within his right to do so,” said Ntsebeza.
But this does blur the line in the separation of powers – the government is essentially investigating itself. “Is this consistent with the values of the Constitution?” said Ntsebeza.
He also commented on the evolution of the legal profession, emphasising that “most of us are functions of the society the apartheid state gave to us”. Ntsebeza stressed that progress on the judicial system’s transformation is still defined along race and gender divides.
In 1994, there were 165 judges countrywide. Three were black men and two were white women: the rest were white men. It appears that Section 174 of the Constitution, which deals with the appointment of judicial officials, still hasn’t been satisfied. Only two out of the 11 judges on the Constitutional Court are women.
“Sometimes law is not justice,” said Ntsebeza in his closing remarks.
The lifelong appointment of judges means a permanent commitment of judicial service. He mentioned corrupt and drunk judges and stressed that the job comes with huge responsibilities. And at the end of the day, he said, this not just a problem for lawyers and judges, it’s a problem for society.
