Lecture by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, “Towards a transformed and accessible justice system for all” held at the University of South Africa (UNISA), Unisa Satellite Campus, Parow, Cape Town, 16 May 2017
Ladies and gentlemen
In September 2015, countries adopted a set of goals to end poverty, protect the planet, and ensure prosperity for all as part of a new sustainable development agenda.
Each goal has specific targets to be achieved over the next 15 years.
Each and every one of us - governments, the private sector, civil society, academia, communities and each and every individual - have a role to play, if these goals are to succeed.
Global Goal 16.3 calls upon all countries to: “Promote the rule of law at the national and international levels and ensure equal access to justice for all.”
We support this fully and view that access to justice must also contain an element inclusive economic growth.
One of my Department’s primary aims is to ensure an accessible justice system that promotes constitutional values and to provide transparent, responsive and accountable justice services.
Access to justice is a constitutional imperative.
It is a fundamental right that unlocks access to all the other rights enshrined in our Constitution.
This right has the power to transform our society into a just and equitable one.
Our Constitution, along with our National Development Plan: Vision 2030 form the bedrock of our quest to improve the quality of life for all in South Africa.
The NDP has also identified poverty, unemployment and inequality as the main challenges facing South Africa.
In finding solutions to these critical challenges we need an integrated approach.
By ensuring effective access to justice, we will also improve social and economic conditions.
This is so because, to a large extend, in order to address poverty and inequality, persons and communities have to be aware of their constitutional rights.
The NDP therefore also identified all citizen’s participation as crucial – an active citizenry is essential.
What this illustrates is that there is still much to do – especially in two key areas, namely that of constitutional rights awareness and that of the attainment of socio-economic rights.
The reality is that, still today – after more than two decades of freedom and democracy - many economic, structural, and institutional factors still hinder access to justice, such as the complexity and cost of legal processes, lengthy legal processes, infrastructure, and financial, geographical and physical constraints.
Many people, even those whom we would describe as “middle class” - will simply say that the legal system is too daunting and/or too costly.
Others, especially those in vulnerable and marginalized groups, neither recognize their problems as legal issues, nor identify the potential legal remedies available to them.
In other words, they have no idea how to enforce their rights, nor where to go for legal assistance and the thought of a day in court terrifies them.
Cost, including opportunity cost, and trust in the justice system are also important factors in determining whether or not persons even seek legal assistance or take legal action at all.
Access to justice is traditionally understood in terms of legal rights, processes and procedure, often overshadowing the socio-economic elements, particularly that of poverty.
The link between justice and poverty is the inevitable impact on poor and marginalized communities, the majority of whom are women or female-headed households, who are often deprived of choices, opportunities and access to basic resources.
As part of our Access to Justice Programme we therefore continue to commit a substantial amount of our budget towards building additional courts and service delivery points to ensure that we reach out to rural communities.
We have continued to build, in ever-increasing numbers, court buildings where there were none before.
We also ensure that these courts are more accessible to the users, including people with disabilities.
One of the ways we are trying to ensure that all people, even the poorest of the poor, are in a position to approach our courts, is through the establishment of accessible courts in all corners of our country.
This includes, in particular, initiatives we have put in place such as Small Claims Courts.
Small Claims Courts is a powerful mechanism to provide access to justice, especially to the poor. These Courts function on the basis of speed, simplicity and cost effectiveness.
These courts provide a forum for the resolution of certain civil claims up to R15 000.00.
No legal representatives are allowed in these Courts. Small Claims Courts were created with the view to eliminate time-consuming adversarial procedures before and during the trial.
We now have a functioning small claims courts in every magisterial district across the country.
We are also correcting the old magisterial districts which were informed by racial and geo-political boundaries of the now defunct self-governing states or so-called homelands.
It is a two-pronged approach: on the one hand, we need to re-furbish the Branch Courts in former Black and rural areas and confer upon them adequate jurisdiction, support services and resources to function as fully-fledged courts. At the same time, we must ensure the alignment of the magisterial districts with the municipal boundaries established under the new constitutional dispensation.
Formal justice sector institutions are indeed only one of the paths followed by citizens or businesses to resolve their legal issues, yet accessibility of, and trust in, our courts as the ultimate providers of justice services is critical for the rest of the system to be effective.
We have created courts specialised in a particular area, such as family law, sexual offences, commercial crimes, tax matters, labour law matters, in order to centralise the related disputes in those areas and thus provide more effective and justice services in that regard.
We have however also created alternative dispute resolution mechanisms through arbitration and mediation possibilities.
Traditional courts are an indispensable part of the administration of justice, therefore we have prioritized our new Traditional Courts Bill.
Chapter 12 of the Constitution recognises the institution, status and role of traditional leadership according to customary law, subject to the Constitution. Schedule 6 of the Constitution recognises the existence of traditional courts.
The Constitution recognises customary law and legislation must thus provide for it.
Traditional courts exist - it is therefore a constitutional imperative that they be transformed to suit our constitutional dispensation.
There is a need for the transformation of the traditional courts which still operate under the regulatory framework of the apartheid era that was enacted in 1927.
People continue to suffer the debilitating consequences of a system which was manipulated to serve the interests of the colonial and apartheid regimes.
It is in this context that we have stepped-up efforts to transform the traditional courts to bring them in conformity with the Constitution.
Traditional courts, are courts of law under customary law, with the specific purpose of promoting the equitable and fair resolution of disputes, in a manner that is underpinned by the value system applicable in customary law and custom, and function in terms of the Constitution.
Their focus is on preventing conflict, maintaining harmony and resolving disputes in a manner that promotes restorative justice, social cohesion and reconciliation.
Constitutional values, for instance the right to dignity, achievement of equality, the promotion of non-racialism and non-sexism, freedom of sexual orientation and identity, as well as characteristics such as restorative justice and reconciliation through mediation must all be integral to the functioning of our traditional courts.
These courts must bear in mind the existence of systemic unfair discrimination and inequalities or attitudes which are in conflict with the Constitution or which the propensity of precluding voluntary participation in court proceedings by any person or group of persons, particularly in respect of gender, gender identity, sexual orientation, age, disability, religion, language, marital status and race brought about by colonialism, apartheid and patriarchy.
A further focus is in the voluntary nature of customary law and customary courts which are accessible to those should they voluntarily subject themselves to the customary law and traditional courts.
The Bill recognises the other levels of dispute resolution in the traditional justice system.
The main object of the Bill is to create a uniform legislative framework, regulating the role and functions of traditional courts in the resolution of certain disputes, in accordance with constitutional imperatives and values.
The Bill is intended to improve access to justice services by enhancing the effectiveness, efficiency and integrity of traditional courts for purposes of resolving disputes, with the view to promoting social cohesion, co-existence and peace and harmony.
The thrust of the Bill can be linked to the NDP targets of realising a developmental, capable and ethical state that treats citizens with dignity, broadening social cohesion and supporting the role of women as leaders in all sectors of society.
We are also promoting the use of indigenous languages in the courts, including court proceedings and legal processes as required by the Constitution.
To this effect, the Department has started preparing a Discussion Document on the use of African Languages in court proceedings and court processes in order to address the repeal of the language provisions in the Magistrates Courts Act, to improve court interpretation and to building of capacity for translation.
It should also address issues of curriculum change to incorporate African languages in LLB degrees.
In the interim, the Department will amend the Rules Board for Courts Act by providing for rules for judicial officers, parties in a suit and officers of court to use any official language in court proceedings.
One of our most important initiatives under the Access to Justice Programme is the joint initiative with the Foundation for Human Rights and the European Union through which we aim to empower various Community Advice Centres across the country.
Community Advice Offices are small, non-profit organisations that offer free legal and human rights information, advice and services.
In addition to rights-based information, CAOs educate communities on how and where to access services offered by government departments and agencies.
Today community advice offices provide services that contribute to social justice and facilitate access to government services for the poor and marginalised. Community-based paralegals working within these offices provide the support and front-line assistance to many who do not have the means to access other forms of legal services.
Over the years, CAOs have provided much needed services to millions of poor and marginalised South Africans.
To further enable access to legal services by the poor and vulnerable, Legal Aid SA’s strategic commitment is to provide quality legal service that is efficient, independent and contributing to effective justice system that builds safer communities.
Consequently, Legal Aid SA has a toll-free Legal Aid Advice line through which people can phone in to receive legal advice.
Legal Aid SA’s online self-help system enable potential clients to access information on their matters (e.g. steps on how to institute divorce proceedings).
At the very heart of our newly promulgated Legal Practice Act lies the desire to ensure that all our people have access to affordable legal services of a high standard.
For this reason, the Act provides that the new Legal Practice Council must, within two years after the commencement of Chapter 2 of the Act, investigate and make recommendations to the Minister on the statutory recognition of paralegals, with the view to legislative and other interventions in order to improve access to the legal profession and access to justice generally.
Achieving equal access to justice requires the implementation of a number of complementary strategies, especially in the context of current financial constraints.
Some of these strategies and interventions identified and implemented include making essential legal assistance and representation services available to everyone.
We have modernised legal aid and we are addressing transformation in the legal profession, increasing pro bono efforts, expanding the range of qualified legal service providers (such as paralegals), and promoting more holistic and integrated justice service delivery.
We have also implemented and are continuing to promote a special focus on victim empowerment and ensuring that victims and witnesses are treated fairly and are fully supported through amongst others our Charter on the Rights of Victims.
On the issue of criminal justice, significant progress has been made on the Review of the Criminal Justice System and on the modernisation of the Criminal Justice System through the Integrated Criminal Justice System Programme.
An Integrated Criminal Justice System which will address challenges and shortcomings across the criminal justice value chain.
It is geared towards strengthening the cooperation and integration of law enforcement agencies in realising the strategic objective of the National Development Plan – of building safer communities and creating a resilient anti-corruption Criminal Justice System.
Transformation of the legal profession in our country is one of the most important factors of a transformed justice system.
A few days ago an opinion piece appeared in Business Day wherein attorney, Lucien Pierce, writes the following –
I smiled the last time I watched Khumisi Kganare drive off in his clapped-out old Toyota Corolla. We had just co-presented a practice management seminar for the Law Society.
Kganare is a bright, young commercial lawyer specialising in information and communications technology law, an area regarded as cutting-edge. He and his partner run their own firm and have been in business for about three years.
Firms such as Kganare’s and mine do not face a level playing field. We are disadvantaged from the outset, making it difficult to build the capacity to compete with even medium-sized white-owned law firms.”
Then he continues:
“Black-owned commercial law firms are outnumbered.
In 2016, there were 12,373 law firms in SA and only 31 of them had more than 20 attorneys. According to the Law Society of SA, 20% of firms are black-owned.
This means that, at best, there may only be six black-owned law firms with more than 20 attorneys. My gut feel is there are actually fewer.
So, why is it that 23 years into democracy, no more than six black-owned law firms have grown to the size of a medium-sized law firm? …
First, some public and many private-sector institutions still believe that black-owned firms are incapable of competently handling complex matters or matters perceived as falling within specialised areas of law.
They prefer briefing black-owned firms on matters that are less challenging and uncomplicated — for example straightforward litigation, collections and conveyancing.
If it wasn’t for bias, Kganare’s firm would be getting more than enough information and communications technology law work, but sadly it is not.
Second, it is my experience that private-sector corporates try to show that they buy into transforming the legal profession, but do not seem able to follow through. So, as black commercial lawyers in this country, we face difficult circumstances.
We are not trusted as competent by many in the government, state-owned entities and the corporate sector because they still believe that "white is right"….
So, like Kganare, we have to drive our Corollas, we have to soldier on, we have to change perceptions and we have to accept that, for now, black lawyers are on their own.
SA needs genuine radical economic transformation. It needs black-owned and black-run professional enterprises to grow and prosper.”
From the side of Government, our figures show that that we have met our targets in respect of briefs allocated to PDI legal practitioners.
We must ensure that briefs are given as widely as possible, in other words, that it’s not the same people who are continuously briefed and that female and Black practitioners are exposed to many different types of work, so as to build expertise in a variety of areas.
We have initiated the development of policies aimed at transforming the delivery of state legal services broadly. The developed policies are:
• The Policy on Briefing Counsel and a Fee parameter and a Framework for the Management of State Litigation,
• The Policy for State Legal Representation and
• The Policy on Mediation.
The Department has also drafted a Litigation Strategy for 2016 to 2020, which sets out the medium to long term strategies for to achieve a turnaround in the performance of the State Attorneys.
The appointment of the Solicitor-General in line with the State Attorney Act is also a major step forward, as the Solicitor-General will oversee all litigation of the state, for all government departments.
We have, as a Department, taken bold steps to increase the allocation of briefs to previously disadvantaged individuals.
For example, for the first 3 quarters of 2015/16 a total of 3335 briefs were given, of those male advocates received 62% and female advocates 37,7% of briefs. African advocates received 58,9% of the briefs, Coloured advocates 8,9%, Indian advocates 18,3%, and White advocates 13,8%.
But one should not only look at the number of briefs, but also at the monetary value thereof.
The brief mentioned total an amount of R524,6 million.
Of that total: R414,3 million went to male advocates (78,9%), while R110,2 million was paid to female advocates (21%).
African advocates received briefs to the value of R301,5 million (57,48%).
Coloured advocates received briefs to the value of R33,5 million (6,39%).
Indian advocates received briefs to the value of R57,5 million (10,9%).
White advocates received briefs to the value of R131,9 million (25,1%).
African females received briefs to the value of R56,8 million (10.8%).
In addition, we are making efforts to ensure that the process of briefing is open and transparent, therefore the names of all the advocates being briefed by the State are now available on the Department of Justice and Constitutional Development’s website.
The judiciary itself is doing its bit to ensure transformation in the allocation of work.
Gauteng High Court Judge President Dunstan Mlambo has recently directed court staff to record the race and gender of every advocate appearing in the motion court in the High Court in Pretoria.
In October last year Judge President Mlambo remarked that in his experience some court rolls was overwhelmingly dominated by white men.
By now collecting the data, we will be able to determine how advocates of certain race and gender groups tend to dominate certain areas of litigation.
This then becomes a useful tool to assist transformation in the legal profession.
For a long time in the history of our legal profession, Black people and women were almost entirely absent from the ranks of senior partners in large firms of attorneys and senior counsel at the Bar.
Unfortunately although there is better representation in these upper echelons they are no way close to reflecting the race and gender demographics of the country.
They were also largely absent from the controlling bodies of the Bar Councils and Law Societies until recently, when steps were taken to make these bodies more representative.
Some of the main challenges clearly evident are the need to make the legal profession representative of the diversity of South African society and the need to make the legal profession more accessible to the public.
Therefore the Legal Practice Act was passed to transform the legal profession.
The Act was signed into law by the President in 2014.
The Act paved a way for the establishment of a National Forum.
The Forum will develop election procedure for constituting the South African Legal Practice Council which will serve as a regulatory authority of the legal profession in South Africa.
The Forum will also make recommendations for, amongst others, the establishment of the Provincial Councils and their areas of jurisdiction, composition, functions and manner of their election.
It will also set all the practical vocational training requirements that candidate attorneys must comply with before they can be admitted by the court as legal practitioners; prepare and publish a code of conduct for legal practitioners, candidate legal practitioners and juristic entities.
The National Forum on the Legal Profession held its eighth meeting on 6 May 2017.
Having been granted a six-month extension to submit its recommendations to the Minister of Justice, the National Forum must finalise its recommendations before the extended deadline of 1 August 2017.
Although it has finalised most of the rules and regulations required, there seem to be strong differences between attorneys and advocates as regards practical vocational training. These are holding back some of the education-related rules, and thus the entire set from being gazetted for comment.
Before the rules and regulations made by the Forum can be presented to the Minister, they must be gazetted for public comment.
These relate to the following issues:
- A competency-based examination or assessment for candidate legal practitioners, conveyancers and notaries;
- the minimum conditions and procedures for the registration and administration of practical vocational training;
- the procedure and directions pertaining to the assessment of persons undergoing practical vocational training;
- the criteria for a person, institution, organisation or association to qualify to conduct an assessment;
- the procedures to be followed by disciplinary bodies;
- the manner and form in which complaints of misconduct relating to legal practitioners, candidate legal practitioners or juristic entities must be lodged with the Council; and
- any other matter in respect of which rules must be made.
The Legal Practice Amendment Bill provides that the existing provincial law societies will continue to regulate attorneys for six months while the Legal Practice Council is being set up before being abolished six months after Chapter 2 of the Act comes into effect. The LPC will then take over regulation of all legal practitioners.
As you can see, practical vocational training and legal education are quite contentious areas.
With regards to the LLB review, many of you will be aware of the recent decision by the Council for Higher Education to issue certain institutions with a notice of withdrawal for LLB law programmes, citing as reasons poor standards in the curriculum. Unisa is one of the four universities affected.
In this regard, the Minister of Higher Education has said that the review of the LLB programme at these universities will not affect previously acquired LLB qualifications or students who are currently enrolled at the universities.
Notices of withdrawal of accreditation of the programme do not affect graduates who obtained their LLB degrees before this announcement. So it does not apply retrospectively. Their qualifications remain valid no matter what the final decision of the Higher Education Quality Council is.
Current students enrolled in the respective LLB programmes are not adversely affected by the notices as they enrolled for the respective programmes while they were fully accredited by the CHE and legitimately part of the institutions programme.
The Council of Higher Education has furthermore given universities six months to rectify any concerns identified.
Also when we consider issues of legal education in our country, we should deal with the interface and relationship between Roman-Dutch law, English common law and customary law.
There always seems to be a presumption one is more superior to the other – Roman-Dutch law is seen as being superior to the common law. Add customary law to the equation and the debate intensifies further.
But perhaps the important point that many people miss is quite simply this: that the Constitution is supreme.
Ladies and gentlemen,
To conclude, Government has committed itself to redressing inequalities and improving the lives of all its people through promoting and entrenching a human rights culture and ensuring access to justice.
But it is not a task that Government can undertake on its own – all role-players have to play their part.
In so doing, we can ensure equal, affordable and accessible justice for all.I thank you.