Today the families of 36 of the deceased miners killed at Marikana and the Association of Mineworkers and Construction Union (AMCU), who are represented by SERI, filed their Heads of Argument in the Magidiwana & Other Injured and Arrested Persons v President of the Republic of South Africa and Others. The families and AMCU provisionally withdrew from the Marikana Commission of Inquiry on 16 July 2013 in solidarity with the arrested and injured miners when the miners were denied state funding for their representation at the Commission. The families and AMCU then became party to the legal proceedings to secure this funding as they believed the legitimacy of the Commission was dependant on the participation of the injured and arrested miners.
On 14 October 2013, the North Gauteng High Court ordered Legal Aid SA to fund the legal representation of the arrested and injured miners at the Marikana Commission finding that Legal Aid’s decision to fund the legal representation of the families and not the miners “cannot be justified on any rational basis” and refusal to provide funding to the miners was unlawful. As a result, the families and AMCU returned to the Commission.
On 4 November 2013, Legal Aid SA applied for leave to appeal the High Court's funding decision. In their Heads of Argument, the families and AMCU argue that the appeal should be dismissed and the High Court decision upheld. The families and AMCU argue that there is no rational justification to distinguish between funding the legal representation of the families and the injured and arrested miners as both groups have a "substantial, proximate and material interest" in the outcome and findings of the Commission. A failure to fund the injured and arrested miners would be irrational and infringe the constitutional right to euality. The families and AMCU argue that Legal Aid SA's claim that funding the legal representation of the injured and arrested miners would impact severely on its financial resources was unfounded as it does not claim that it has insufficient resources to fund the injuerd and arrested miners' representation.
The matter will be heard in the Supreme Court of Appeal on 8 September 2014.