4.3 Brief critical analysis of the South African legal
aid system
It is axiomatic throughout the world that the majority of
needy people cannot afford to retain private counsel. This sad state of affairs
is worsened by inefficient and underfunded government programmes that render
hollow the promise of effective legal assistance for indigent persons facing
criminal charges. In some countries, for instance, mandatory legal aid for the
poor is secured by their various laws while in others the development of legal
aid systems is still at an early stage. In South Africa, in addition to the
enactment of enabling legislation in respect of legal aid, the government has
injected massive amounts of money into the system to launch the framework and
to keep it afloat.179 An analysis of South African legal aid system
would be more instructive at this stage.
4.3.1 Brief overview of the South African legal
framework
The first attempt to establish an organised legal aid system
in South Africa was made in 1935 when the South African Institute of Race
Relations in consultation with the Department of Justice and the incorporated
law society of the Transvaal, convened a conference on the
matter.180
179 Fore more details see Hennie, supra note 5, 65.
180 See further details in Abramowitz Legal aid in South
Africa (1960) 353; Cited by Hennie, supra note 5, 55.
As Van Hennie181 writes, before this intervention,
a disjointed semblance of legal aid existed in the country in the form of
fragmented legislative instruments that attempted to address the legal needs of
the poor through gratuitous services rendered by members of the profession by
way of pro bono182 and in forma
pauperis183 procedures.184 As in the United Kingdom,
lawyers are divided into advocates 185 (barristers), and
attorneys186 (solicitors). Notably, this system is changing with
certain attorneys being given the right to appear in the high
courts.187
A brief analysis of the South African legal aid system reveals
that South Africa has wide-ranging legislation in as far as legal aid for the
needy and disadvantaged people are concerned. Apart from recognising the right
to access to justice in its Constitution,188 the state provides
access to justice through the Legal Aid Board189. It should be noted
that one of the objectives of the Legal Aid Board, as provided for in the legal
aid act, is to provide legal representation at the expense of the state, in
accordance with the Constitution190.
4.3.1.2 Constitutional protection of the right to legal
representation
The South African Constitution embodies a number of
significant values that aim to protect the rights of the disadvantaged. These
rights include the right of children to have a legal practitioner assigned to
them by the state, and at state expense in proceedings affecting the
child.191 This provision also appears in Rwandan
legislation,192 although in
181 Hennie, supra note 5.
182 See supra note 166.
183 For details about this, see DJ McQuoid-Mason An Outline
of Legal Aid in South Africa (1982) 17-22.
184 Ibid.
185 Largely practise in the High Courts. See Right of Appearance
in Courts Act 62 of 1995 in South Africa
186 This Act also provides that these work mainly in the Lower
Courts and brief advocates for High Court.
187 Attorneys who wish to appear in the high court must hold the
LLB degree or at least 3 years practical experience. See Right of Appearance in
Courts Act 62 of 1995 in South Africa.
188 Constitution of the Republic of South Africa Act No 108 of
1996.
189 It worthwhile to note that the Legal Aid Board has been set
up by the Apartheid Government in terms of the Legal Aid Act, 22, 1969.
190 See Section 3 of the Legal Aid Act, 22 of 1969 as amended by
the legal aid amendment Act, 20 of 1996.
191 Ibid. S. 28(1) (h).
192 See Article 21 of the Law No 27/2001 on the rights and
protection of children against violence. See also article 185 of the Law No
13/2004 of 17/5/2004 on the code of criminal procedure as Amended and completed
by the Law No 20/2006 of 22/04/2006, Official Journal Special No 27 May
2006.
practice the state is not always able to assign a legal
practitioner to every child in court for civil and criminal proceedings.
Also, the South African constitution protects the right of
detained persons, including sentenced prisoners193 and accused
persons194 to have a legal practitioner assigned to them by the
state, and at state expense if substantial injustice would otherwise result and
to be informed of this right promptly. The substantial injustice would
otherwise result where an accused was not provided legal representation at
state expense if the accused could not afford the cost of his or her own
representation to name but one among others circumstances.195
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