Chairperson, colleagues, this is indeed a very important occasion for us in the justice community to introduce a piece of legislation that brings pride to our country and nation. It makes us proud to be able to claim that we are one of the leading nations in the world that is able, at the state's expense, to provide free legal assistance to the indigent.
In fact, some two months ago Legal Aid South Africa convened an international conference in Johannesburg, which was attended by a number of countries, where we were able to share some of the positive experiences. This resulted in the United Nations' identifying South Africa as a model system that could be used anywhere else in the world, including the developed world.
The South African legal system is anchored in the rule of law, democratic values and principles enshrined in our democratic Constitution, and embraced by all our people, including of course, the ANC and its government. Section 28(1)(h) of the Constitution of the Republic of South Africa, 1996, states that:
Every child has a right to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; if such assistance is not provided. Section 35(2)(c) of the Constitution states that everyone who is detained, including every sentenced prisoner, has the right to have a legal practitioner assigned to the detained person by the state and at state expense if substantial injustice would otherwise result, and to be informed of this right promptly.
Hon members, whilst Legal Aid South Africa has a fine reputation for carrying out its statutory mandate, one of the main objectives of the Bill is to put in place a legislative framework that facilitates good governance. Let me also at this juncture acknowledge how, especially under the leadership of the current chair of the board, Judge President Mlambo, Legal Aid has been turned around from a situation where it was almost bankrupt to a situation where, for 12 years in succession, it has maintained clean records. And its financial status has remained sound.
The Legal Aid Act, 1969, the current Act, regulates matters relating to the provision of legal aid. The Act was passed in 1969 and has been amended on a piecemeal basis on numerous occasions. Its revision and substitution are long overdue, because many of its provisions do not accord with the changed circumstances. Furthermore, its application gives rise to challenges, often of an administrative nature, that are sought to be addressed by this particular Bill.
The Bill, amongst other things, therefore seeks to create an entity that is to be called Legal Aid South Africa, and that will be governed by a board of directors. This is the current practice. It will streamline the provision of legal aid by substituting the provisions of the Legal Aid Act, which currently gives rise to challenges and impact negatively on service delivery.
The new and important statutory mandate of Legal Aid South Africa, introduced by the Bill, is that it must provide education and information concerning legal rights and obligations to citizens. A new provision is inserted to enable Legal Aid South Africa to do quality control and assess whether the private practitioners who are contracted by Legal Aid South Africa to provide legal assistance are allocated to cases and are monitored properly to ensure quality in the provision of their services.
Allow me to emphasise that the right to legal aid that we as the ANC-led government are honouring is part of our commitment to ensuring access to justice for our people. Access to justice also includes making sure that justice is affordable to all, irrespective of their financial or economic status.
Let me thank the chairperson of the portfolio committee and members of the committee for the hard work they put in, and also acknowledge the continued leadership and support of the Director-General of the Department of Justice and Correctional Services and also express warm appreciation in particular to Judge President Mlambo for his continued leadership in ensuring that Legal Aid South Africa continues to be the excellent institution and organisation that it is. Thank you very much. [Applause.]
Hon House Chairperson, educated people do not repeat what they have already said. The question of access to justice in general and legal representation in particular remains equally important in our country. Section 34 of the Constitution addresses access to justice in general, but section 35 addresses legal representation of accused persons in particular. Up till now legal representation took precedence over the representation of persons in civil matters. That has created a perception amongst the people that the Constitution and the law favour the criminals over the victims.
This is a matter that needs to be addressed with speed, because the extent to which a legal system is legitimate depends on popular perception as well. For legal systems to remain legitimate, they have to speak to the popular sense of justice. It is for that reason that we think the proposal of the Justice committee to the effect that we should not neglect the public interest law is important. In a country like ours, which requires radical socioeconomic transformation, but this will take some time because of the legacy of apartheid, we need to address the social ills arising from these degrading and dehumanising social conditions which lead to petty crimes, that unfortunately end up in the normal courts because there are no other forums to deal with them.
You therefore find that we have many young people from these degrading human settlements ending up in prison for things that actually could be resolved through community structures. So, I think that the justice committee made a pointed observation and came up with a very important proposal that I hope this august House will support.
We can also recall that in the country now researchers are saying only 46% of the population understand the Constitution, which means that constitutional literacy in our country is very important. We are therefore delighted that the new Bill also emphasises legal education and the information to address that. But we also need to learn from history, because in this country even the noisemakers on my left are aware that we focus more on Roman-Dutch law and English common law at the expense of indigenous African law, which results in the use of foreign systems to address indigenous legal questions, which in turn amounts the majority of the people being denied justice.
I think we should follow the example of Mozambique and Zimbabwe that, after liberation, took into account the popular sense of justice and came up with appropriate legislation, like that introducing primary courts in Zimbabwe. In South Africa that process was hijacked, because our people had began to develop people's courts or community courts, but they were infiltrated by the apartheid system and delegitimised. Kobie Coetzee took advantage of the vacuum and introduced alternative dispute resolution mechanisms from Canada. So, I think the right of our people to self-determination also includes the right to evolve their own common law that has the same status as the English and Roman-Dutch law. After all, the Romans have disappeared from the face of the earth and why should we then be guided by the sense of justice of people that are no more.
Lastly, hon House Chairperson ... [Interjections.] ... the new law also allows Legal Aid to support people who have lodged land claims. I think that is very important because the Oxfam report shows that our people are hungry, not because they cannot produce food, not because they cannot help themselves, but because we need to speed up the land claims. [Interjections.] This law, made by the ANC, is going to address that. It is not true that the ANC is not addressing the issue. [Interjections.]
On a point of order, Chair!
Order, hon member! What is the point of order, hon member?
The point of order is: This hon member is misleading the House. [Interjections.] He is actually lying. There is no law that he has mentioned that deals with the land question. Why is he misleading this House? [Interjections.] He must sit down now! Nothing he said is true. [Interjections.]
Hon member! Take your seat. Hon member, that is not a point of order. [Interjections.]
There is no land reform programme in this country ... [Interjections.]
Hon member, take your seat! Hon Motshekga, you must wrap up your speech now, please! [Interjections.]
Hon Chair!
Yes, hon member.
I thought the procedure is that when a point of order is raised, the hon member who is at the podium must sit down. The hon Mngxitam was raising a point of order and the hon Motshekga continued to stand. He must respect this House, please! [Interjections.]
Hon Shivambu, hon Shivambu, take your seat, please! Hon Motshekga, complete your speech, please!
Of course, you see those who want ... [Interjections.]
Hon Motshekga! Hon Motshekga!
Hon Chair, it is parliamentary for a member to call another member ... or to say to another member that he is lying. I want you to rule on that.
Hon Motshekga, complete your speech, please!
Those who have listened to me would have understood that I said the legal aid regime in South Africa also makes provision for the support of land claimants. I am therefore saying that the ANC is doing what needs to be done to make the land accessible to the people so that they can produce food to feed themselves and make sure that we do not get another report like the Oxfam report. But, of course, maybe when people are still young, they rejoice in howling, but I will not be offended by howlers. Thank you very much! [Applause.]
Hon Mngxitam! Hon Mngxitam, you called ... [Interjections.] Hon member!
On a point of order, Chair.
No, no, before you get to a point of order. I confirmed with the NA Table that you used the words, "the member is lying". That is unparliamentary and you must withdraw that remark, please!
Thanks, Chair. I have no problem with that ... [Interjections.]
No! No! No! You must withdraw the remark!
Oh! The what? Which part must I withdraw now?
You called the member a liar.
I thought he was, but I will withdraw for the purposes of the business of this House ... [Interjections.]
It must be unconditional, hon member!
Ja, no; I withdraw! I withdraw!
Do you have another point of order?
Yes. Thank you, Chair. The member who was there must be called back to the podium. He called members of this House "howlers". Who are the howlers? Because he was howling all the time when he was at the podium. [Interjections.]
Hon member, that is not a point of order. The next ... [Interjections.] Order, hon members!
Chairperson, on a point of clarity: Is it parliamentary to refer to members of this House as "howlers"? [Interjections.] Should we use such language when we speak here, or what? [Interjections.] Here is a person who was waffling throughout and ... [Interjections.]
Hon member, take your seat, please! [Interjections.]
So, can we use that word as well ... [Interjections.]
Take your seat, please! Take your seat! I will check the exact words that the hon member has used and I will make a ruling in due course. [Applause.]
House Chairperson, recent events in South Africa reminded us of the saying that if you are the accused in a criminal case, it may well be better to be guilty and rich rather than innocent and poor. The ideal, of course, is that justice should be blind.
The moral force of justice is universally depicted by lady justice, the well-known figure balancing the scales while being blindfolded. And while lady justice is best known as the Roman goddess Justitia, it is interesting to note that the ancient Egyptian goddess Isis is also sometimes depicted as holding the scales of justice. This blindfold represents the objectivity, impartiality and fairness with which justice should be handed out, regardless of the identity, wealth, power or social status of the person being judged.
This ideal has been encapsulated in several international human rights declarations, amongst others, the Protocol to the African Charter on Human and Peoples' Rights. Locally our Constitution also embraces these universal principles of equality before the law and the right to a fair trial, which in turn centres, amongst other things, on the right to legal representation at a trial.
The reality is unfortunately often far removed from this ideal. As is the case with many fundamental rights those most at risk of their rights being violated are the poor. In 1941, Justice Black in the United States' Supreme Court in the case of Betts v Brady said the following:
A practice cannot be reconciled with 'common and fundamental ideas of fairness and right', which subjects innocent men to increased dangers of conviction merely because of their poverty. Whether a man is innocent cannot be determined from a trial in which ... denial of counsel has made it impossible to conclude with any satisfactory degree of certainty that the defendant's case was adequately presented.
Apart from respecting and upholding fundamental human rights by making available legal aid to the poor, legal aid is therefore an essential part of an integrated approach to the fight against poverty. Locally, as the Minister has alluded, the Legal Aid Board was first introduced in 1969. The Bill under discussion seeks to replace this Act, and establish Legal Aid SA an entity founded on the principles of modern governance and administration. It is indeed fitting that this should happen to this institution as it is a shining example and possible case study for those interested in successfully implemented turnaround strategies.
Since the late 1990s the shambles that was then Legal Aid SA has been turned around and indeed the institution has received an unqualified audit for the past 13 years. For five of the past six years the Auditor-General did not even find any matters of emphasis. In this respect the financial governance at Legal Aid SA provides the answer to the question nowadays being thrown around about what a so-called "clean audit" really is, as if it is something unreal and unattainable.
We are, therefore, satisfied that this Act will enable Legal Aid SA to fulfill its core function and hopefully embark on a further process of modernisation, which should include addressing the perception that sometimes the quality of representation by Legal Aid practitioners is, to quote Chief Justice Mogoeng Mogoeng, "patchy at best."
The so-called unfunded mandates of Legal Aid SA remain a possible threat to the sustainability of the entity as well. The nugatory appeal of Legal Aid SA against the High Court order forcing it to pay for the legal representation of the families of deceased Marikana workers at the commission of inquiry unfortunately gave no final answers on this matter. The way in which matters like these will be handled in future should be clarified by this legislature as soon as possible.
Another popular saying on justice is that justice must not only be done, but also to be seen to be done. When becoming law, this Bill will assist Legal Aid SA to play its part in making justice a reality for those South Africans who are most at risk of having the scales of justice tilted against them. Thank you. [Applause.]
Hon Chair, the Zulu people have a saying that goes, "Umuntu akalahlwa". [Do not give up on a person.] So, despite continuous disappointment with the ruling party, for the sake of the poor, the EFF did vote in favour of this Bill, for it provides services to the poor. However, there are massive issues with the Legal Aid Bill as it stands.
The very first one is that, 20 years down the line, we are only now changing a 1969 Act. I mean, that is shameful. Somebody once said that the real violence in society is not in the actual physical violence, but lies in the recording of history, the capturing of the legal records, the propagation of the media, the command, control and centralisation of the truth in order to misinform. I want to argue that we have been misinformed, not only as Parliament, but as society. We have listened to numerous people telling us that they have good stories to tell when they are actually subjecting the whole country to a law of 1969. But then it is not surprising, because if you look at how the security forces are being used, you can tell who swallowed this draconian trio that was started by Malan, Le Grange and a third person. We know who swallowed them hook, line and sinker; they are sitting on our right. The fruit of what they swallowed is coming out now. [Applause.] For if this Legal Aid Bill was really thorough we would have captured the issue of funding of commissions. They will come here and tell you that no, that issue will be dealt with in a separate policy, one supplementary to the Bill. I guess the people sitting here on my left - who service the poor communities and who get caught up in the unjust acts of the system - have to answer this question: Is this matter so serious that it warrants being captured in the Legal Aid Bill or should it be relegated to a separate policy? Because I do not think that the Marikana widows bargained on and planned for what happened to them. Overnight they woke up and needed legal cover. We know what happened; it took going to court countless times for Legal Aid to be able to cover them.
Perhaps another thing that is indicative of a clear lack of fundamental transformation in this Bill is the fact that in the public hearings of the committee on this Bill the gender-based groups, in its application, lamented the fact that Legal Aid is very, very selective in covering gender- based violence. But again I come back to what I elaborated on before. Who swallowed the National Party hook, line and sinker? Remember, during apartheid, domestic violence was a personal issue between man and wife. So, the fact that Legal Aid is a law dating back to 1969 law and does not cover this is indicative of the fact that the National Party is still rearing its head in the party on my right. One cannot swallow a party like that. [Applause.]
Perhaps another thing that is also indicative of the problems with this Legal Aid Bill, is who do we ask? Do we ask Legal Aid to come and tell us if they are performing well? That is another National Party tendency. Remember, its aim was not democracy, but to suppress. We should be bringing to public hearings the recipients of Legal Aid. They will come and tell the horror stories that Legal Aid is not telling us. I mean, there are stories as horrible as the recipients telling you that they put a lawyer who has just graduated from school on a murder case.. If that is what you call justice for the poor, people on my right, then I do not know what justice is. But then, you know, somebody also once said: "In the absence of the best, the worst becomes the best." So, in the worst that they are giving us, for the sake of the poor, we are forced to say, let this Bill go through. But we are not deceived in the knowledge that it is not clear and fundamental transformation.
And just on the note of going forward, for those who are interested, both on the right and perhaps on the left, the EFF has issued its conference documents and one of them is deals with thorough legal transformation.
Hon member, your time has expired.
You can laugh all you want, but the fact that you are subjecting us to a 1969 Bill means that you have no answers to offer. [Applause.]
Hon Chairperson, I have been following the work of this committee through the parliamentary working group reports, so I have an understanding of what has been going on in the committee. Adequate and competent legal representation in our courts of law is the fundamental right of every South African citizen. We are all equal before the law and we all have the right to equal protection and benefit of the law.
In practice, however, we see a vastly different scenario playing itself out, a scenario in which the more money you have available to pay for lawyers and advocates will directly equate to the level of equality and protection you receive from the law. Under our current legal dispensation, all South Africans are definitely not equal before the law and there have been many high profile cases that clearly illustrate this point.
However, in supporting this Bill, we welcome the increase in legal aid services to our paralegal and community law and advice centres. These community-based centres are the coalface of the vast majority of citizens' foray into the legal system for legal redress, advice and protection. We must therefore ensure that the legal advice and protection they receive are correct and will assist and not, as is often the case, hinder their efforts to achieve redress.
Issues to be addressed in moving forward include accessibility of Legal Aid offices. Our understanding is that these offices are situated in urban areas and many people do not have easy access to them. Even if they do have access, many of them are made to wait in long queues and are sometimes not attended to and have to return the next day to try and get some sort of support from these Legal Aid offices. This needs to be looked into very, very urgently.
The other area that needs to be considered is the quality of lawyers that are assigned by the Legal Aid Board. The last speaker is quite correct that the hon Chief Justice of our country even made the comment - it was raised by the speaker from the DA - that the quality of lawyers in the pool of Legal Aid lawyers sometimes leaves a lot to be desired. To this extent we would like the hon Minister to inform this House whether consideration has been given to community service, that is, for law graduates to serve the community after graduating. Along these lines, why can't private practitioners be used for Legal Aid, because they have the experience and have the wherewithal. And, as part of their contribution to society, should we not regulate that private practitioners should also be used in the pool of Legal Aid lawyers?
We find that the Law Society does offer a pro bono service, but it is 24 hours per attorney who is registered per year. Twenty-four hours a year of service is offered by an attorney. That is not acceptable. And I think the Legal Aid Board - the new institution that has been set up - in moving forward, needs to look into these issues, because our people in our country deserve justice. Thank you very much. [Applause.]
Hon Chairperson, the right to legal aid is a fundamental human right. It ensures that even a person who does not have money is put on a par with the prosecutor in criminal cases, or with the opposite lawyer in civil cases. It is one of the demands made in that famous, honourable document, the Freedom Charter, which provided that: "All shall be equal before the law."
When the ANC took over government, it entrenched this right in the Constitution. The Constitution therefore obliges the state at its expense to provide legal representation to the detained and sentenced prisoners, and to the accused persons as part of a right to a fair trial, and to children in civil matters. These provisions are in section 35(2), section 35(3) and in section 28(1) respectively.
The government therefore decided to create a legal framework to realise this right. Earlier on there was the Legal Aid Act, No 22 of 1969, which was amended several times. You also get section 73(2)(a), section 309(d) of the Criminal Procedure Act; sections 82(1), and 82(2) of the Child Justice Act, which provides that every child has the right to legal assistance.
There is section 149(a) of the Labour Relations Act, which also assists people who cannot afford legal representation; section 4(5) of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act and Rule 53(8) of the Magistrates Court Rules.
However, this right is not without limitations. In criminal cases, the Constitution provides that one would only be entitled to the right to have a legal practitioner offered to him or her at the state's expense if substantial injustice would otherwise result. The mandate of the Legal Aid Act, as amended, provides for legal aid for indigent persons.
The Supreme Court of Appeal in the case of Porritt vs Bennett, which is found in 2011(1) SACR 166, held that the right to legal aid at the state's expense where substantial injustice may arise involves two elements, namely the complexity of the case as well as the ability of the accused to afford the cost of legal representation from his or her resources. In determining if an accused is able to afford the costs of legal representation, the means test, as applied by the Legal Aid South Africa, should be applied.
This principle also applies to civil cases. This limitation is caused by finance. I hear that my learned friends have come here and said that poor or new legal representatives like students can't; I am not sure if they can pop out a lot of money for the well-qualified lawyers to assist, but it would be helpful.
Secondly, I think, my learned friend, I am not sure how much of the law you know. I am not saying you don't know ... [Interjections.] ... but surely in each and every court in South Africa, no accused goes without being represented. [Interjections.] And it is better to have a student at the time or somebody who is fresh from school, rather than to have a person who doesn't know anything about law. [Interjections.]
Thirdly, I know that when you don't know ...
Hon Chair, on a point of order: Could you please ask the hon member to address the subject and not the person? [Interjections.]
Hon member, that is not a point of order. Hon member, continue please. [Interjections.]
When we discuss this Bill ...
Hon member, just take your seat, there is another point of order.
Hon House Chair, I am raising this because I don't want this to become a precedent. It is practiced in this House that when a member is at the podium, they address members through you, House Chair, and not the member concerned directly.
Continue, hon member.
Hon Chairperson, the Legal Aid Act, which predates the Constitution, has been amended several times on a piecemeal basis to accommodate the provisions of the Constitution. It is therefore a very comprehensive Bill that covers quite a lot that is in the interest of the people of South Africa.
Anybody who is interested in assisting the indigent people of South Africa would support the passing of the Bill. I therefore respectfully request this honourable House unanimously to pass this Bill in the interests of the indigent people of South Africa. I thank you. [Applause.]
Hon Chairperson, Ministers, Deputy Ministers, and hon members, good afternoon. The NFP, as a patriotic and progressive opposition, supports the Legal Aid Bill. However, we wish to put the following on record. We are in agreement that Legal Aid, as envisaged in the Bill, will contribute significantly to the entrenchment of a wider social security system that would focus on the poor and needy in the context of a developmental, capable and ethical state that treats its citizens with dignity.
We welcome the proposed structure of the board, believing that such a structure will enable the board to retain its independence and the legal integrity of the services it provides.
However, we express reservation on the extent to which legal aid will be made available for civil litigation and ask for clarity on whether legal aid will be available only where an indigent person has to defend against a civil claim, or whether it will also be available in instances where an indigent person wishes to institute civil action against a third party?
In particular, we are not clear on what the cost implications would be if legal aid were available to indigent people who wished to institute civil action and where such action were to fail. We all know that when the court dismisses the case or when the court rules against you, you are required to pay the costs. That is where our concern lies. What will happen in those instances? We wish that clear guidelines should be provided to determine when an indigent person qualifies for legal aid.
We strongly support the notion that legal aid should be available to represent indigent people at commissions of inquiry such as the Marikana commission, as we believe that justice would not be served if their voices are not adequately represented in the absence of legal representation in such proceedings and that undue prejudice will occur.
We wish to congratulate the Portfolio Committee on Justice and Constitutional Development for drafting such a coherent and well-considered Bill. I thank you. [Applause.]
Hon Chairperson, the Legal Aid Bill was overdue for an overhaul for a long time. Its predecessor, the much-patched and bandaged Legal Aid Act of 1969, faced frequent challenges, because it was born in a time when circumstances were different. The remaking of the old legislation also became necessary because of the pressure to render legal advice as well as legal aid at state expense, as contemplated in the Constitution and other legislation.
For Legal Aid to work well, it is necessary for government to provide accurate information concerning both the rights as well as the obligations of citizens. The Bill before us is an improvement on what we have had up to now, but it still needs more work in moving forward.
The power entrusted to the executive has been routinely abused. The appointment of boards and officials has generally been an unmitigated disaster. Politics has continued to trump merit and passion for service. In every Bill, there should indeed be a provision for the proper authentication of a qualification of candidates who are being considered for appointment to a board or position.
A provision should also exist for the easy firing of the board member or official if any impropriety, financial misconduct, abuse of office, nepotism, absence or poor performance is alleged and proved. Our country today is overindebted and the need to stretch every rand is a dire necessity. Every board that is constituted must therefore be beyond reproach.
As the board is the accounting authority of Legal Aid South Africa its members must show that they have a firm understanding of the Public Finance Management Act as well. Only then will the board be able to achieve the level of governance we require. In Cope's view, it is not enough to require a board member to be a fit and proper person who is broadly representative of the diversity of the South African population, but they also need to possess certain skills.
It is time that the executive and the legislature learn from the glaring shortcomings of substandard appointments that have brought government into serious disrepute. We must learn from our past mistakes. Cope supports the Bill. I thank you.
Mohl Modulasetulo, Ditona le Batlat?atona bao ba hlomphegago, maloko ao a hlomphegago, thobela. E re ke thome ka go swayaswaya ... (Translation of Sepedi paragraph follows.) [Mrs M R M MOTHAPO: Greetings to the hon Chairperson, hon Ministers, hon Deputy Ministers and hon members. Let me start by commenting ...]
No, this is royal blue. It's royal blue; it is not DA blue! [Laughter.] [Interjections.] Let me start by responding to issues raised by hon members, hon Litchfield-Tshabalala and hon Singh. It is true, the current Act is a 1969 Act. However, it has been amended periodically to provide for the legal representation of children in terms of the Child Justice Act, which is a very recent Act. And again, it is providing legal aid in specific maintenance matters. Maintenance matters are regulated in terms of the 1998 Act.
The current Act has been amended to provide legal aid for section 204 people, witnesses and persons facing extradition. It also clarifies the granting of legal aid in commissions of inquiry. It has also been amended to provide legal aid in respect of civil matters.
Ka baka leo, a re tlogeleng go bolela t?e Molao wo wa bjale, e lego Legal Aid, o sa di bolelago. [Let's stop talking about what is not mentioned in the current Legal Aid Act.]
When coming to issues of competencies regarding the conviction rate, through you, Chair, as alluded to by hon Litchfield-Tshabalala, I would like to put on record that legal practitioners assigned by Legal Aid South Africa to handle cases on behalf of clients have a higher percentage of conviction- she knows that very well - more than 80%. Therefore, competency and conviction rates are very high.
May I also respond to the issue raised by hon Mncwabe of the NFP about clear guidelines? Fortunately, as I am talking now, the current Act provides for a Legal Aid Guide in an effort to put things in context. It is important briefly to speak about the Legal Aid Guide that is currently in use and, and its purpose before I go to the regulations and manual, as provided for in the present Bill.
The Legal Aid Act requires the board of Legal Aid South Africa, in consultation with the Minister of Justice and Constitutional Development, as in the current Act, to set out the policies and procedures for the provision of legal services in the form of a Legal Aid Guide and to enable rendering a fair, equitable and transparent legal aid management process. What this means is that while the Legal Aid Act provides for the enabling framework for the realisation of the right to legal aid, the Legal Aid Guide sets out in detail the operational processes and procedures involved in exercising the right to legal aid. For example, who should qualify for legal aid - a sort of means test - which legal aid matters are covered, etc.
However, in terms of the new Bill under discussion, Clause 23, hon Mncwabe, through you, Chair, provides that the board must compile, review, amend, and approve a Legal Aid Manual, which will be reviewed at least every second year. The manual is intended to deal with administrative issues relating to the provision of legal aid in respect of which a legislative instrument is not necessary.
It goes further, to say which matters are included in the manual, namely the procedures in terms of which applications for legal aid are administered; the systems and methods whereby legal aid is delivered and the requirements and criteria for accreditation of private legal practitioners as well as the terms and conditions subject to which such instructions are allocated, including the fees and disbursements that are payable.
The Bill under discussion also makes provision for regulations in terms of clause 24, which provides that the Minister must, after receipt of the recommendation of the board, make regulations relating to the following: the types of civil and criminal matters in respect of which legal aid is both provided and not provided as well as the circumstances in which limited legal aid is provided; the requirements or criteria that an applicant must comply with to qualify for legal aid as well as the terms and conditions according to which such legal aid is made available to the applicant.
Therefore, this continues to tell that very good story in line with our ... [Interjections.] ... constitutional imperatives in terms of section 9, concerning equality in law, and section 35, the rights of detainees and arrested persons. This is a very good story indeed. [Interjections.] [Applause.] It is a very good story. You may not like to hear it, but it is a very good story indeed. [Interjections.]
As we continue with the regulations, there is also the policy relating to the approval or refusal of legal aid, the termination of legal aid and appeals against refusal or termination of legal aid; and any matter which makes it necessary or expedient to prescribe the proper implementation or administration of this Act.
It is therefore our wish, as the ruling party, the governing party, that this progressive Bill be passed into law to cater for the legal needs of our indigent. Thank you. [Applause.] [Interjections.] This is royal blue! I am royal. I am royal. [Time expired.][Applause.]
Hon Chairperson, the ACDP supports this Bill. Legal Aid South Africa is an exemplary institution in South Africa and we yet again wish to commend Judge President Mlambo and his team for being world leaders in the provision of legal aid.
The Bill seeks to take Legal Aid South Africa to a higher level by establishing a national public entity independently governed by a board of directors. There is a new provision that will enable it also to conduct public awareness programmes concerning legal rights and obligations.
This is very important as there are increasing incidents of communities taking the law into their own hands in defence of victims of crime. They believe that these victims have had their rights disregarded in favour of criminals and they believe that those criminals are receiving better treatment.
We in the Justice committee believe that this is a consequence of a perceived uneven implementation of sections 34 and 35 of the Constitution, which deal with the rights of arrested and detained members. We say that this imbalance appears to have skewed the scale in favour of accused persons, while seemingly disregarding the rights and needs of victims of crime.
While part of the solution lies in increasing access to legal aid for civil matters and public interest law, as pointed out by the hon Dr Motshekga, the ACDP believes we again need to look at compensation for the victims of crime.
We already have sections 297 and 300 of the Criminal Procedure Act. There is compensation for victims of human trafficking, and we have the Criminal Assets Recovery Account, an account for the Asset Forfeiture Unit. However, the question is: How often are these provisions applied in court?
In addition to these provisions, the ACDP believes that we should think about and debate again the issue of a fund for victims of violent crime, similar to that in other countries. There was support in principle when this proposal was made by the hon Dianne Kohler-Barnard in a Private Members' Bill in 2007, but the feeling then was that the Bill was premature. Should Parliament not be reconsidering this issue in view of the concerns expressed by many members of communities, namely that the scales of justice are in favour of the criminals?
Will this not balance the scales? We in the ACDP believe so. The ACDP also had initial reservations about the board and its composition, and after hearing compelling arguments by the Deputy Minister, John Jeffery, as well as Judge President Mlambo, who argued that the requirement for organised members from the organised professions is no longer necessary, we agreed to the composition of that Bill as it results in cost-saving in this regard.
So, the ACDP will support this Bill. It is also noteworthy that this Bill was accepted by all parties in the Justice portfolio committee. It is the first Bill that was done by the Justice portfolio committee, and we trust that this will be a way forward so that we can find ourselves and parties across political perspectives, and reach consensus on issues in the Justice portfolio committee. I thank you. [Applause.]
Hon House Chairperson, hon members, Legal Aid SA provides legal representation to detained and sentenced prisoners in accordance with section 35(2) of the Act; the right to a fair trial of every accused person in accordance with section 35(3) of the Act and the right to legal presentation in respect of children in accordance with section 28(1) of the Act.
As the Legal Aid Act predated the Constitution, it needed to be aligned with the final Constitution of the Republic of South Africa, and its founding principles and values, which was passed in 1996. Its mandate provides legal aid for indigent persons and for that purpose to establish a Legal Aid Board to define its functions.
And, of course, as we are listening, there seems to be a little bit of confusion in terms of what the intention of the Bill is all about. When it comes to the provision for children, which we appreciate, I do realise that there are some members who genuinely have a concern in terms of its coverage of representation of women. But, hon Litchfield-Tshabalala, when you actually alluded to domestic violence, I think you are quoting something that cannot be covered directly by this Act.
It is quite evident that South Africa as a country has ratified international, regional and subregional treaties and protocols that were assimilated into some of the Acts that we have; Acts of Parliament that work directly with violence against women, like the Domestic Violence Act. So, you wouldn't be in the position to actually find such elaborate provisions for domestic violence in this Act as we have enacted laws for that in South Africa.
What is actually important is to try and put a magnifying glass on the Bill itself in terms of its coverage of the rights of women. Hon Horn, I think the blindfolded Lady Justice theory is misleading in a system that is still played by the biased stereotypes, engineered by ingenious fork-tongued, two- timing tendencies for gaining cheap political mileage.
You see, if you live in a country that is fair, a country of people who will accept it when good things are done, like now, as we are passing this Bill that you supported in the committee, then you can come with the blindfolded Lady Justice theory. I am not blindfolded and I wouldn't actually buy that theory. [Interjections.]
Hon members, don't engage in dialogue when the speaker is on the podium. Hon member, address the Chairperson and not individual members, please.
The Bill provides for access to justice and the realisation of the right of a person to have legal representation, as envisaged in the Constitution, and to render or make legal aid and legal advice available, for the purpose of establishing an entity called Legal Aid SA with a board of directors and to define its objects, powers, functions, duties and composition; to provide for the independence and impartiality of Legal Aid SA; to provide for the appointment of a board of directors and qualifications for membership thereof; to provide for the appointment of a chairperson and a deputy chairperson; to provide for the term of appointment of a member of the board of directors; to provide for the termination of membership of the board of directors; to provide for meetings of the board of directors, quorum and procedure; to provide for the establishment of committees by the board of directors; to provide for the delegation of powers and the assignment of duties or functions of the board of directors; to provide for the appointment of a chief executive officer and his or her functions; to provide for the appointment of employees and the designation of certain officials as agents of Legal Aid SA and their terms and conditions of employment; to provide for the protection of client privilege in certain circumstances; to provide for the recovery of costs by Legal Aid SA; to provide for the finances of Legal Aid SA; to provide for the provision of legal aid by direction of courts in criminal matters and to provide for making regulations and the manual.
Quite evidently, this Bill provides for the availability of legal representation in South Africa for all South African citizens so that nobody finds himself or herself going to court without it.
Hon member, your time has expired.
That is actually a clear demonstration of liberty. The ANC supports the Bill. Thank you. [Applause.]
Hon Chairperson, look, I think it is quite clear that this is a Bill that has the support of all the parties in the House. It is a good Bill that will do good. It is an institution that is already there and that is exemplary, as we have heard from many of the speakers.
It is unfortunate that, but I suppose it's natural, some parties' members would use the opportunity to wax political on the issue. But let me just respond to some of them. Maybe I will just start with the hon Litchfield- Tshabalala, who says that it is shameful that we are only changing a 1969 Act now.
I mean, as with many of the things that the EFF says, they may make good sound bytes, but what do they actually mean. What exactly, hon Litchfield- Tshabalala, was wrong with the old Legal Practice Act that we are repealing? Did you know that the Department of Justice and Constitutional Development has 158 statutes, laws, that it administers; major laws. Fifty of them are pre-1970, from 1969 and earlier.
It might sound very good, but it is terrible, that we are taking so long to amend a Bill that was originally passed in 1969; but it is actually meaningless.
It is also very good, hon Litchfield-Tshabalala, to go and criticise and say, oh no, Legal Aid SA uses people who have just graduated from law school, to represent murder accused. You know that that's not possible because you can't appear in the regional court, which is the lowest court in which a murder case could be heard, without having completed your articles some time before.
The issue is, let's not damage the institution. Legal Aid SA has an extremely good reputation, as you have heard. One of the other issues is that, amongst law firms, it is the second most sought-after legal body to work for. The most sought-after is one of the top five, then it is Legal Aid SA. Where there is criticism, take it up properly and don't just moan. Take them up, because those avenues exist.
As far as hon Singh's points are concerned, the reason that Legal Aid SA has moved to employing lawyers rather than using the judicare system that existed before 1994, when Legal Aid SA paid private lawyers to do the work is that it is much more cost-effective for them to employ their own lawyers. It costs about half of each case for which a person is represented. It is about half the cost than if it were done by a private lawyer.
There is still provision for private lawyers, but it is very limited because of the cost of it. There is provision in the Legal Practice Act for community service, for law graduates and for private practitioners. In fact, the private practitioners have to do community service to be able to practise and that period will be set by the Legal Practice Council.
You are correct that the Law Society sets a number of hours. Some of the law firms do a lot more than that. Some I think do only that. The issue is really with legal aid and it is also a question of civil representation. Constitutionally Legal Aid SA has to represent the accused in criminal matters where a substantial injustice would occur if they were not represented. That's the first priority that needs to be covered.
They are extending this to cover civil matters, but it depends on the funding. Linked to that is the issue of support, and this was also one of the hon Litchfield-Tshabalala's points. The issue is the fact that the Bill doesn't provide for the funding of commissions.
Remember that in a commission of inquiry, nobody can be ordered to pay any money, in terms of damages, as you would get in a civil court. Nobody can be punished or sent to jail. They are basically just recommendations, I suppose, similar to other bodies' recommendations. The issue that one has to look at is whether that is the most effective way of spending money? Would it be better if there were representation in a civil claim or representation if somebody is accused of committing murder?
We have different types of commissions of inquiry. The hon Leader of the Opposition has now left. His party or his leader had a commission of inquiry in the Western Cape on policing. Should Legal Aid SA have provided legal representation for people from Khayelitsha. It wouldn't have been cost-effective. I want to thank everybody for participating in the debate and to express appreciation for those who have brought support for the Bill. I hope that the House will approve the Bill.
Debate concluded.
Bill read a second time.