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2.1 Although every citizen does not always come into direct contact with the justice system, it seems fair to state that a country's citizens are empowered by the knowledge that the laws and institutions that form the basis of their system uphold the rights and enforce the responsibilities of every member of their community. The certainty of this foundation should not be compromised by the cost or complexity of the system or by any other factor placing it beyond the reach of any section of the community. Justice, and the ability to enforce it, should be available equally to every member of the community, regardless of means and without discrimination.
2.2 In the context of the criminal justice system access to justice comprises many facets. Tthe Constitution of the Republic of South Africa, Act 108 of 1996 acknowledges the right of every person to equality before the law and to equal protection of the law. Furthermore, the acknowledgment of individual rights by the Constitution implies the greatest possible access to the law and its institutions, to all available legal services and to full information about the nature and contents of the rights involved. In the criminal justice system access to justice should, therefore, not be restricted to access to the criminal courts and legal advice/representation after the alleged commission of an offence, but it should be defined so as to benefit every citizen even before the need arises to assert his or her rights. In order to address the problem of access to the criminal justice system a number of aspects should be reviewed including the law, the institutions and the ability of citizens to assert their rights.
2.3 The Commission is of the opinion that a detailed exposition of the problem is not necessary for the purpose of this discussion. It would suffice to say that the South African legal system is presently experiencing a legitimacy crisis and that law reform is uppermost in the minds of many South African jurists. That this is true is witnessed by the Minister's request in this regard. The essence of the legitimacy crisis lies in the historical superimposition of a foreign legal system with its concomitant western jural postulates upon those of Africa. It is closely connected to the complex interaction between the dominant Western legal system and other prevalent intuitive legal systems. These latter systems include the servient indigenous African Legal systems which are accorded limited recognition.
2.4 In South Africa legal pluralism has been exploited. The dominant law was not only implemented as an agent of change and so called development by either replacing or adopting the indigenous legal systems, but also used as a political tool to subjugate the indigenous African community. Over the years a legal order was created which primarily suited the needs of that section of the community whose traditions and way of life may be classified as western capitalist. This system is inadequate to explain contemporary facts in South Africa.[1]
2.5 In South Africa, many of the peculiar problems facing the community stem from the largely ineffective administration of the criminal justice system in the lower courts. The lack of confidence in the system is of particular importance. Western dispute settlement procedures are regarded as not suited to solve legal problems as well as problems of social adjustment encountered by urban blacks. It is therefore natural that urban blacks resorted to self - help in the form of unofficial or folk institutions such as at first the Makgotla and later the people's courts.[2]
2.6 The general public's perception of the administration of justice (particularly the criminal justice system) is not flattering. In recent times numerous newspaper reports emphasised and criticised the criminal justice system's inability to curtail the booming criminal industry. The following report appeared in the Financial Mail of 15 December 1995:[3]
The message - and indeed the fact - is that crime does pay in SA. It pays because many, if not most, criminals escape capture. Many of those who are caught walk free because of poorly prepared police dockets, weak prosecutions or the failure of witnesses to appear in court.
2.7 For the purpose of this discussion the Commission deems it sufficient to state that the inability of the criminal justice system to protect our citizens inhibits access to justice and it enlarges the already existing legitimacy crisis.
2.8 Knowledge of rights and legal aid or legal representation is central to the achievement of access to justice, particularly in the criminal justice system. The effectiveness of our present legal aid services and the possibility of expanding the availability of legal advice and assistance in criminal cases should be considered in the light of criticism levelled against the system.
2.9 The regulation of the legal services market and of the legal profession raises issues that are of central importance to access to justice, for example, if the legal profession is regulated in a manner that impedes the freedom of lawyers to compete with each other, legal services will not be provided efficiently and users of legal services will pay the additional costs. Similarly, if the structure of the profession is such that users are required to pay for duplication of legal work the cost of legal representation will be increased and access to justice diminished. If the exclusive right of lawyers to perform legal services is framed too broadly, usuers are likely to be denied the chance to purchase services from providers. In South Africa there is much debate on how the structure of the legal services market inhibits access to justice. Much criticism has been levelled against problems with obtaining legal representation in criminal cases in particular.
2.10 The right to legal representation in criminal cases is a basic norm of fairness as reflected in a number of international legal instruments. The International Covenant on Civil and Political Rights states, for example, that:
14(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equality:
...
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right and to have legal assistance assigned to him, in cases where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.
2.11 The same attitude is reflected by article 6(3)(c) of the European Convention on Human Rights. In South Africa emergency legislation produced a system of criminal justice weighted significantly against the accused and the right of an accused person to legal representation was cruelly bruised as some people were detained without trial and without access to defence counsel.
2.12 The right to legal representation has been recognised in South Africa as a common law right and was entrenched by statute.[4] However, before 1988, the right was expressed more as a privilege than a right in that no obligation was placed upon judicial officers to inform the unrepresented accused of their right to legal representation or of the availability of legal aid. This, however, changed after the decision in S v Radebe, S v Mbonani.[5] The importance of the right to legal representation was again emphasised in a number of subsequent decisions.[6]
2.13 The right to legal representation is now entrenched in the Constitution. Section 35(3)(g) recognises the right of every accused to a fair trial which includes the right to a legal representative of his or her own choice or to be provided with a representative at the state's expense where the absence of a legal representative would otherwise result in an injustice.
2.14 The efficiency of our legal aid services in criminal cases should be evaluated with the aim of improving the service to all members of the community.
2.15 From the exposition above it appears that there are three main problems in the criminal justice system which inhibit access to justice. These problems, however, relate to many aspects within the criminal justice system for example the structure of the courts, the composition of the bench, the efficacy of the courts, the accessibility of the courts, confidence in the system, the application of the law, legal representation, the structure of legal aid services, legal education, legal literacy, training programs etcetera.
2.16 In order to address the problem of access to justice we need a strategy geared towards resolving conflicts before they become legal problems, reforming key legal institutions and strengthening access and equity across the legal system. In his opening address at the Legal Forum on Access to Justice, held in Durban on 17-19 November 1995, the Minister of Justice stated that democracy is about empowering citizens and enabling them to take decisions about controlling their own lives. Access to justice is an essential component of empowerment and in order to increase access to justice we need to begin, not from the perspective of members of the legal profession, but from the perspective of the user of law and justice, namely the individuals and groups that form civil society. After all, it should be the primary function of the Courts to protect the rights of individuals and it is their needs and aspirations that should be considered to make justice real for them.
2.17 With this in mind the Commission has identified a number of aspects which are in need of reform in order to improve access to the criminal justice system. The purpose of this issue paper is therefore merely to stimulate deliberations and to obtain the input of the users of law and justice in order to make legitimate proposals for reform.
[1] Compare G G van Niekerk "People’s courts and people's justice in South Africa - New developments in community dispute resolution" 1994 De Jure Vol 1 19- 20.
[2] G G Van Niekerk "People's Courts and People's Justice in South Africa" 1988 De Jure 292 at 293.
[3] "Why the crooks are winning".
[4] Section 73(2) of the Criminal Procedure Act 51 of 1977.
[5] 1988 1 SA 191 (T).
[6] S v Khanyile 1988 3 SA 795 (N); S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk 1989 3 SA 368 (E); S v Mabaso and Another 1990 3 SA 185 (A).
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