Radebe details funding for Marikana, arms commissions

(Image: GCIS)

Radebe said the two commissions were established outside the government budgeting cycle, which meant that his department had to shift funds from its existing programmes to enable it to fund the work of the commissions.

The department has projected spending to the tune of R101m for the Commission of Inquiry into the Strategic Defence Procurement Package, led by Supreme Court of Appeal Judge Willie Seriti. The commission was set up by President Jacob Zuma in October 2011 to look into allegations of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement Package.

On the other hand, the department projects it will spend R83m on the Farlam Commission in the next financial year. The commission was set up to investigate the circumstances surrounding the deaths of 44 people - who were mostly miners - in strike related violence in Marikana next year.

Regarding funding for the legal representation of the injured and arrested miners in the Farlam Commission, Radebe said the request was duly considered but could not be granted.

"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 does not provide for legal representation for witnesses who are not in the employ of the state when the incidents or events [that are] being investigated happened," Radebe told a media briefing on Thursday.

He said that Legal Aid South Africa (LASA) was also approached by the legal representatives of the said miners and they were 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.

The state has received public criticism for not funding the injured and arrested miners in the commission. Questions have arisen from some quarters as to why LASA funded the families of the deceased, but not the injured miners.

Radebe said 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 who had lost breadwinners 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 Constitutional Court last week turned down a request for leave to appeal brought by lawyers representing the injured and arrested miners in the Farlam Commission.

The Marikana mineworkers wanted to secure funding from the state for their legal representation at the commission.

Last month, the North Gauteng High Court also refused to order the President and the Justice Minister to fund the mineworkers' legal representation.

The Constitutional Court dismissed the appeal on a technicality, saying that it found that the applicants did not have sufficient information on the High Court judgement to judge the merits of the case.

Although the state cannot fund the injured miners, Radebe said it should not be seen as government being 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.

Radebe said the evidence of the injured miners could be dealt with by evidence leaders as opposed to their own lawyers

With regards to why the police are funded by the state, the minister explained that this was because they are employees of government and their particular departments are accountable for their expenditure for the legal representation of their officials from the budgets allocated to them.

Arms commission

Switching focus to the Commission of Inquiry into the Strategic Defence Procurement Package, also known as the arms deal, Radebe said due to the possible extended timeframe of the commission, a decision was taken that government will use a single legal team - led by a state attorney - that will consist of internal resources, which will be supplemented by outside expertise, as deemed necessary.

This means that former President Thabo Mbeki and former ministers, who have been called as witnesses in the commission, will fall into this category.

Radebe said the rationale behind using one legal team was that government acted as a single entity during the Strategic Defence Procurement Package and it was 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.

This approach, Radebe believed, would assist government to manage the costs of the commission, including the costs of 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 he said has already had a huge strain on the financial resources.

The minister went on to address the withdrawal of the firm Boqwana Burns, which he said created an impression that government had 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 to legal representation before the Farlam Commission and the Arms Procurement Commission differs.

In the Farlam Commission, Radebe said different departments, such as the Police and Mineral Resources, fulfilled different responsibilities independently and apart from each other. This means that 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," said the minister.

While in the case of the Arms Procurement Commission, a single procurement transaction by government - through Cabinet and its successors in title - acted 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.