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5.1 Legal aid/representation for accused persons has been problematic in South Africa for a number of years. It is estimated that on overage more than 80% of all accused persons appear in our lower courts without legal representation. Section 35(3)(g) of our Constitution 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.
5.2 The concept "fair trial" should not, however, only imply a fair trial in the minds of the professionals adjudicating the question, but the accused who is afforded the right must at least perceive his trial to be a fair one. The well known principle "justice must be seen to be done" in particular, is applicable as far as the general public is concerned. Against this background legal aid and legal representation in criminal cases is of critical importance.
5.3 At the Consultative Legal Forum on Access to Justice held in November 1995 in Durban, Nadel made a number of proposals for reform which are the basis for proposals on improved legal representation in criminal cases. These include:
5.4 It is essential that the Legal Aid Board be restructured to improve its role in regard to access to justice in criminal cases. There is a clear need for restructuring of the services it provides in regard to criminal cases.
* Proposal for comment
5.5 How should the Legal Aid Board be restructured to improve legal representation and the quality of representation in criminal cases?
5.6 While we know that the majority of criminal defendants go unrepresented and that a vast number of civil claims are prejudiced by the lack of legal representation, there are no standardised data available to indicate the nature and extent of the demand for legal aid. Such information will make an evaluation possible of how equitably and effectively the system is working.
* Proposal for comment
5.7 An accurate system for collecting information on the demand for legal aid should be developed in order to evaluate the effectiveness of the legal aid system.
5.8 A comprehensive assessment must be made of all the human resources available, including paralegal's, candidate attorneys, law students, legal practitioners and ADR practitioners with a view to developing an integrated system incorporating primary and secondary, formal and informal legal services. We need a survey of all existing service providers, an objective evaluation of their role and definition of the role that different service providers should play, in particular with reference to the services provided in criminal cases.
* Proposal for comment
5.9 A comprehensive assessment of human resources available should be made and the role of different service providers in the criminal justice field should be identified.
(d) The role of the legal profession in expanding legal services in criminal cases
5.10 We currently lack the sheer number of lawyers needed to service our community. We have the anomalous situation that although universities are providing twice as many law graduates as can be accommodated by the profession of attorneys and advocates, we have less than 13 000 legal practitioners for more than 30 million South Africans. In respect of criminal cases in particular, there is a need to take steps to improve access to legal representation. It has been suggested that consideration should be given to a system requiring all legal practitioners to contribute either financially or by providing unpaid legal services - towards the legal aid for the indigent.
* Proposal for comment
5.11 The legal profession should take steps to improve its role and responsibilities as a service provider and develop access to the profession in accordance with the needs of our society. The question is what steps should be taken.
5.12 In order to ensure efficient and equitable allocation of resources, there must be informed consideration - and, in some cases, explicit policy debate and justification - of matters of allocation policy including the economic and substantive restrictions on legal aid and the distribution of resources as between criminal and civil cases. Attention must also be given to other factors which effectively limit access to legal aid. Information is needed about why many people who are eligible for legal aid do not apply for it. Close examination is required of the factors inhibiting legal aid applications by different groups.
* Proposals for comment
5.13 The following aspects of accessibility to legal services are submitted for comment:
(i) Means to improve public awareness of the availability of legal aid, its purpose and how to apply for it;
(ii) establishing public perceptions on the efficacy and legitimacy of the legal aid system;
(iii) the availability of legal aid application centres for all South Africans, urban and rural;
(iv) facilitation of legal aid applications by ensuring that the procedure to be followed is comprehensible, and that adequate assistance is available.
5.14 At the Consultative Legal Forum on Access to Justice the Paralegal National Movement submitted that their clientele have experienced difficulties in trying to gain access to justice. The mere existence of the movement is proof of inaccessibility of justice in our country. Their understanding of access to justice is being able to use legal mechanisms of reparation available or provided in the country. Every individual is entitled to these mechanisms and the interim constitution and other legislation guarantees this. However this has not been the case in reality. It was submitted that:
1. Legal information is available mainly for legal practitioners.
2. Communities are intimidated from using the legal system, because of lack of knowledge of how it works.
3. Legal representation is inadequate, discriminatory against the disadvantaged e.g. women, children, prisoners, rural people etc.
4. Legal aid has not been able to serve its intended purpose.
5. The justice system's inaccessibility has led to it being perceived as illegitimate, ineffective, unfriendly, resulting in people resorting to other means of resolving disputes whether legal or illegal.
6. Unnecessary complexities brought into access to justice and the mystifying language used.
5.15 The movement defined a paralegal as a person trained to provide primary legal service to the community and accountable to it. Primary legal service is that which none of the practising lawyers, magistrates, prosecutors have provided except by way of advice offices and public interest legal service organisations. Some of the public interest legal organisations have their own problems in accessing their services to the communities. This is the broadest, primary area where legal services are needed - but has no state budget, no private sector involvement and very few academics interested. The service provided by paralegals involves:
1. ADVICE WORK: general guidance, casework, counselling, referral, dispute resolution (mediation and negotiation).
2. COMMUNITY LEGAL EDUCATION: re constitution and bill of rights, democracy, legal rights, new legislation etc.
3. MONITORING AND LOBBYING: they monitor state delivery and lobby jointly with the community for improvement or changes.
4. BRIDGING: Providing a link between the community and the State, by informing people of State services available to them and encouraging those hesitant but in need of assistance, to apply appropriately.
5. COMMUNITY DEVELOPMENT: They are involved in continuous community empowerment and development programmes and projects, simplifying RDP provisions and helping communities with procedures to access the RDP.
5.16 There is diversity in primary legal service depending on the circumstance and needs of the community being assisted. The service provided by paralegals is the first tier of legal services, the first point of call. It is community based, versatile, adaptable and flexible. Lawyers and legal graduates are not orientated towards performing this service, in spite of the street law programme experience.
* Proposals for comment
(i) There should be a formal and legal recognition of this primary legal service currently provided by paralegals.
(ii) There should be standardized and accredited training supported by all stakeholders within the legal fraternity.
(iii) The state should take full responsibility for providing funding for this primary legal service.
5.17 Community legal centres can be a responsive and flexible method of providing legal advice and assistance to the public. They can be cost effective service providers that draw upon volunteer solicitors and community representatives, as has been proved in Australia. Such centres can provide services in areas of concern to all South Africans, especially in the areas of human rights and criminal matters.
* Proposals for comment
5.18 In South Africa accessible community based legal services in rural and regional centres can go a long way towards improving access to justice. Comments are invited on the establishment of such centres.
5.19 In South Africa the Association of University Legal Aid Institutions represents Legal Aid Clinics at 21 Universities. Some universities have more than one clinic or centre as well as mobile clinics. These clinics assist approximately 80,000 people each year with a variety of legal issues including criminal cases which represent approximately 25% of the work done. These clinics already provide legal aid services to a great number of people but they can hardly handle the increasing workload. There is clearly a need for the expansion of these services. Such clinics can possibly form the basis of the establishment of community legal centres. At present these clinics are largely funded by non-governmental organisations.
* Proposals for comment
5.20 Comments are invited on the following proposals:
(i) formal recognition of the importance of these clinics;
(ii) what role can university legal institutions play in improving access to justice?;
(iii) governmental funding of these clinics;
(iv) the expansion of these services;
(v) the establishment of an umbrella body representing all interested parties to structure and regulate funding, services rendered and work done by clinics, centres, advice offices and other agencies rendering legal aid and involved with access to justice.
5.21 A system of legal advice by telephone can provide immediate access to information, immediate delivery of advice and where appropriate immediate referral to counselling. Telephonic legal advice services already exist in South Africa and the service is offered by several companies. There is, however, uncertainty as to whether a telephonic legal advice service on a commercial basis contravenes existing legislation (Attorneys Act 53 of 1979) in the light of the structure of present legal services.
* Proposal for comment
5.22 A telephonic legal advice service, properly structured, could go a long way in making the system more accessible and affordable to the public at large. Comments are invited on the viability of such a service.
5.23 All South Africans, regardless of means, should have access to quality legal services and effective dispute resolution mechanisms to protect their rights or interests. This is particularly necessary in the criminal justice system and the cost of legal services should therefore be reviewed in order to improve access to justice.
* Proposal for comment
5.24 What steps can be taken to bring down the costs of legal representation?
5.25 Community legal education can play a central role in the effort to demystify the law. It can be an important mechanism for improving access to justice. With an understanding of their legal rights and obligations, people can make informed choices. Workshops, pamphlets about the law, information provided via the media and other educational tools can assist in achieving a more complete understanding of the legal system.
* Proposals for comment
5.26 Comments are invited on the following proposals:
(i) Providing access to justice through legal literacy.
5.27 Access to the law and to justice by the greatest possible number of the members of our society, lies in the inherent potential of a general legal literacy. Therefore the broadest and most inclusive education agent, that is the primary and secondary school system, should be employed in this regard. We should develop high quality teaching resources in the education system to ensure that education on our legal system is entrenched as a fundamental and effective part of the curriculum of our schools and other learning institutions.
(ii) Holding of workshops.
(iii) Providing pamphlets about the law.
(iv) Using the media and all the available educational tools to assist in achieving legal literacy.
(aa) Victim compensation and witness protection
5.28 At present the criminal justice system is under pressure to contain the increasing crime rate and the concomitant increase in the rate of victims. Victims of crime in South Africa are not only victimised by criminal offenders, they are also victims of an archaic criminal justice system. The scales of justice are weighted on the side of the offender through a large body of law and provisions in the Bill of Rights. There is, however, an international movement towards recognizing the victim as having rights alongside those of the accused. The new Promotion of National Unity and Reconciliation Act, 34 of 1995 is a victory for victims of gross violations of human rights in South Africa and it is also a manifestation of the new trend in South Africa.
5.29 One of the fundamental issues pertaining to the treatment of victims of crime is to provide adequate and effective protection for them. All too often in the past the criminal justice system has failed in its obligations to victims of crime. Professional training and professional codes of conduct of individuals and organisations working in the criminal justice field have ignored the effects of crime on victims, and how these effects are exacerbated by insensitive comments and negligent behaviour.
5.30 Another aspect in need of reform is the protection of witnesses through the various stages of the criminal process. In this regard the provision of compulsory or voluntary detention of witnesses in terms of section 185 and 185A of the Criminal Procedure Act, 51 of 1977, as a means of protecting witnesses from intimidation or being tampered with or where their personal safety is threatened, is deemed to be inappropriate.
5.31 It is generally accepted that the law with regard to victims of crime and the protection of witnesses should be improved. To do so will improve their access to the criminal justice system.
* Proposals for comment
5.32 The following proposals are submitted for comment that-:
(i) the existing provisions relating to victims and witnesses be reviewed with a view to effecting adequate protection of these participants in the system;
(ii) such protection laws be directed towards:
(aa) the direct victim;
(bb) the indirect victim i.e the dependants, family members or close associates of the direct victim or any other person who suffered harm or loss as a result of intervening to assist the victim;
(cc) the witnesses i.e any person who has given or has agreed to give evidence on behalf of the state or any person who has made a statement to the police pertaining to the offence committed;
(dd) protecting the rights and privacy of the victims and witnesses;
(ee) protecting the safety and security of the victims and witnesses in the criminal processes;
(ff) establishing safe havens;
(gg) special protection for vulnerable groups, i.e children, women, the aged, or disabled.
(iii) the general needs of victims be addressed in a holistic manner;
(iv) appropriate steps be taken to reduce secondary victimization;
(v) a specialized court that can provide special protection to victims and witnesses of serious violent crimes be considered;
(vi) a National Victim and Witness Protection Services Unit be established within the Office of each Attorney-General, to coordinate a victim and witness protection program and provide the necessary support to victims and witnesses;
(vii) the United Nations Declaration of Basic Principles of Justice for the Victims of Crime be adopted as a step towards the formal recognition of the needs of victims.
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