On 24 March 2017, Samuel Khanye and Victor Moyo took their Constitutional breathes of fresh air outside Kgosi Mampuru II Correctional Centre. The pair had, in 2004, been sentenced for murder and robbery by the High Court in North West. Their conviction and sentence had been set aside by the Constitutional Court of South Africa that day, and ordered their immediate release. Theirs is a painful story of what can happen to an accused life, (or any other person’s life who comes in contact with the justice system), who cannot afford legal representation or no legal representation at all. That life can unravel and there is not much one can do!
A mere newspaper report about a case that just concluded or is still pending before court, be it the selling of a pensioner’s house or eviction of hundreds of shack dwellers, in the thick of night, during winter by a landlord or a government agency, compels one to pause and ask themselves, surely this is not right, what should’ve and can be done under the circumstances.
South Africa has been dubbed the most unequal society in the world. Commentators are always on television giving interviews on how, the gap between the rich and the poor is a mere dollar a day. How the average South African family survive on one dollar a day is a problem. If one is confronted with the justice system, either as an accused or trying to defend an eviction by the rich landlord, a dollar will not stretch a distance and come to one’s rescue I can tell you that!
Section 34 of the Constitution of the Republic of South Africa, provides: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.
Section 35 (2) of the Constitution also provides the following in respect of arrested, detained and sentenced prisoners: “ Everyone who is detained, including every sentenced prisoner, has the right- (a) to be informed promptly of the reason for being detained; (b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly; (c) 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;”
The above-mentioned Constitutional rights enshrined in the Constitution serve three main purposes- first, they seek to ensure that, any dispute which one may have with another person, is brought before a competent court or appropriate forum, second, such dispute is not decided at a secret corner where one might be intimidated, pressured into agreeing into something that is prejudicial to them, third, a party to the dispute, can bring his or her legal representative or “suitably qualified” person, (this is usually the case in a matter between employer and employee whereby, a union representative or fellow employee is allowed to represent the employee facing disciplinary action) to assist him or her. If a legal representative is not available, one must be made available to you, at State expense. This right to legal representation, like other rights in the Bill of Rights, is not absolute.
South Africa has a population, according to the figures from StatsSA, of 55.6 million people. Out of that figure, 26.5% are unemployed. The participation rate in the economy is at 59.2%. Out of that figure, the majority of people don’t afford legal representation.
We then turn to the State for refuge, as stated above, to provide that legal representation. On 24 August 2014, members of the South African Police Service opened fire on striking mineworkers in Marikana outside Rustenburg. A commission of inquiry was set up to investigate the cause(s) of the massacre, at huge emotional, financial expense on the sides of the miners and the families of the victims of the massacre. Lawyers who offered their services, free of charge, to represent the miners as well as the families who sought to participate in the commission, had to approach the Courts for relief because, the State failed to provide legal aid. One of the reasons proffered by the State in its refusal was that, since the commission of inquiry was an investigative commission and not a judicial one, it fell outside the mandate of Legal Aid South Africa. How the commission was to come to the truth, without the full participation of the miners was beyond anyone’s imagination. The irony of it all was that, the mines (at their own expense), as well as cabinet ministers who had to answer for their participation leading up to the massacre, were legally represented, at taxpayers’ expense.
It must be stressed that, it is the fairness of the right to be heard and not the correctness of the proceedings which parties are entitled to, as of right. Furthermore, the purpose of the right to access to justice is to prevent arbitrariness showing its ugly head, especially in cases whereby, one of the parties is unrepresented by a legal practitioner.
The Constitutional Court in the above-mentioned matte, Legal Aid South Africa v Magidiwana & Others 2015 (6) SA 494 (CC) at paragraph  held the following: “If the application does not meet the requirements for funding, Legal Aid will be free to decline it, regardless of the fact that section 34 applies to the matter before the commission. This is so because even in criminal cases, the Constitution does not guarantee legal representation at state expense in all matters. The right to claim legal representation at state expense is limited to cases where substantial injustice would occur. Even where this right is available to an applicant, Legal Aid may still refuse to fund legal representation, if for example the applicant is a person who indisputably can afford to pay for legal representation”.On the assumption that section 34 of the Constitution does indeed embrace that right, it would be the fairness and not the correctness of the court proceedings to which litigants would be entitled.
In recent years, there has been a perception that has been created, whether likely to be true or not, that access to justice is for the rich and famous, for people with the right surname and right social currency. Section 34 of the Constitution is unequivocal in its pronouncement that “Everyone has the right to have any dispute…”. It is unfortunate bordering on sad that, with a healthy bank account, one is able to access the best legal representative(s) money can buy. Oscar Pistorious, Cyril Ramaphosa, Winnie Mandela, Tokyo Sexwale and their recent bouts with the justice system, are just a few examples that come into mind. What about Samuel Khanye and Victor Moyo, or Thabo, Piet and Zakes who survive on one dollar a day?
For those who cannot afford a lawyer, or don’t have legal insurance that is offered by companies on the market, at a monthly premium of course, where can one go in order to have legal representation, when you are an accused or an evictee, by the notorious Red Ants at a shanty town called Winnie Mandela or Cyril Ramaphosa? The Legal Aid Board is one of the many options available. Its mandate “to provide legal aid to those who cannot afford their own legal representation”. This includes: “poor people and vulnerable groups such as women, children and the rural poor”. In keeping with its mandate, the Legal Aid Board provide legal service, at the State’s expense and within its means, “in an independent and unbias manner with the intention of enhancing justice and public confidence in the law and administration of justice”. There are offices in every province and major town and cities where, the indigent and people who qualify using the means test, can approach the Legal Aid Board for legal assistance. The Legal Aid Board offers the following services: (a) family matters; (b) evictions; (c) employment matters; (d) contractual disputes; (e) impact litigation; and (f) criminal cases.
Furthermore, every university in the Republic has a law clinic whereby, members of the public who stay within the surrounding residential area of the university can simply walk in and request legal assistance, provided that you meet the means tests that is used to establish whether, you can afford your own lawyer. The average means tests is usually a person earning not more than R9000.00 per month but, the threshold it is subject to each law clinic policies in place.
If one is far or it is not convenient to reach the office of the Legal Aid Board or law clinic, one can approach the pro bono offices situated at every High Court or Magistrate Courts during office hours. For instance, the Rules of the Law Society of the Northern Provinces provides that all members, (attorneys practicing in Gauteng, Limpopo, Mpumalanga and North West Provinces), must render at least twenty-four hours of pro bono service per calendar year. Pro bono legal services are legal services that are rendered free of charge. The client is only responsible for the cost of disbursements, such as sheriff’s fees. The attorney charges no fees.
Members of the public can apply for assistance under the pro bono Scheme, provided that they meet certain requirements that are pre-determined. Of equal importance, members of Society of Advocates practicing in the various courts in the Republic, are also expected to do twenty-four hours of pro bono legal services, free of charge, to members of the public. The work is sourced from the various law clinics and pro bono offices mentioned above. Members of the various societies of advocates are not allowed to take work directly from members of the public.
It is a very sad state of affairs that, more than twenty years into democracy, majority of South Africans can’t have access to justice due to lack of financial resources. It is also disturbing that, many can spend years in prison due to amongst others, an incapacitated, under resourced public legal system, while innocent, as was the case of Samual Khanye and Victor Moyo.
The #FeesMustFall movement over the past three years, has seen thousands of university students been arrested for public violence, malicious damage to property and other related crimes. Many of them, still have cases pending before the various courts. Furthermore, many spent days, weeks, and even months in prisons because they could not afford to have lawyers represent them. Others could not access legal aid because of some or other reasons which remain a mystery to this day. It got so bad that Bonginkosi Khanyile, an activists in Kwazulu Natal, spent half of his final year behind bars, only to approach the Constitutional Court to grant him bail of R250.00. Is that what must be done to access justice in this country? One must have lawyers willing to approach the highest court in the land to ask for bail? In what world?
We live in an unequal society whereby even having your day in court, which is a Constitutional right, comes at a very high premium. The State cannot be everything to everyone at once. There are institutions such as the Legal Aid Board, law clinics, pro bono offices and members of the advocate’s profession who are providing legal assistance, free of charge, to release the burden of an already burdened judicial system.
There are various other non-governmental institutions like the Human Rights Commission, Legal Resources Centre, the Socio-Economic Rights Institute of South Africa, and many unsung heroes and heroines, who dedicate their time, in order to ensure that not only justice is done.
The Legal Practice Act will also be coming into effect during the third quarter of the year, which, amongst other things, will seek to provide broader access to justice for all South Africans, transform the legal profession, and strengthen the independence of the legal profession. Hopefully, when all these changes come into effect, Justice Will Not Only Be Done, But Will Be Seen to Be Done!