Welcoming address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP at the International Legal Aid Group Conference, Crowne Plaza Hotel, 14 June 2017
Chairperson of the International Legal Aid Group, Professor Alan Paterson
Judge-President and Chairperson of the Board of Legal Aid South Africa, Judge President Mlambo
Ladies and gentlemen
Good afternoon. I am honoured to welcome you, as members of the International Legal Aid Group, attending this event hosted here in our beautiful country.
This conference is very important to us as we view access to justice as a fundamental component of our democracy.
The South African Government will continue to strive to ensure the provision of accessible, sustainable, ethical, quality and independent legal services to all who cannot afford it.
For too long in our history – in the era before democracy – our people suffered injustice because they either did not know their rights or could not access their rights.
Last week was a rather interesting week for legal aid across the world – for example, in its effort to make legal aid easily accessible to marginalized communities living in rural areas, the Government of India launched “Tele-Law”, a video conferencing system where paralegals at local service centres connect members of the public to lawyers which provide legal aid services.
In Scotland, the Law Society set out a series of recommendations in its submission to an independent review of legal aid in Scotland, saying that the current system was overly complex and bureaucratic. The Law Society has also called for increased investment, less bureaucracy and better use of technology to ensure the long-term sustainability of legal aid in Scotland.
In the US, media reports are claiming that many children, unaccompanied and without a legal guardian, are fleeing parts of Central America to the US to escape gang violence. These children don’t have legal aid to assist them with asylum processes in the US because the funds for legal aid are depleted.
In Jordan, the Jordan Bar Association has claimed that legal aid centres are harming the legal profession as, it claims, legal aid centres do not work to provide legal representation to those in need, but are instead also taking on cases of property disputes, drugs, income tax and custom fees evasion.
In Hong Kong a study found that while their legal aid system provides an extremely valuable service the system mainly focuses on representation in court. As many people need legal advice earlier, before a matter reaches the court, the report proposes that a community advice centre should be established as an entry point for those needing help.
Staying in Hong Kong, their Legal Aid department has put a blanket ban on an elderly citizen from applying for legal aid for the next three years because of allegedly abusing the legal aid system. Mr Kwok Cheuk-kin, who is 78, and is known as the “king of judicial review” has made 21 legal aid applications over the last three years.
As the decision to ban him from applying for legal aid is an administrative decision he will, I have no doubt, probably be applying for judicial review of that too.
What all of these reports and developments show is that legal aid is relevant, it is topical and it is of immense interest to and value for the person in the street.
It shows that legal aid is an absolute necessity in a well-functioning justice system.
Role-players in different legal jurisdictions may differ on the detail and hold different views as to whom legal aid should be provided and in what form, but the right to legal aid is fundamental.
This is evidenced by the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems which were unanimously adopted by the General Assembly in 2012.
These Principles and Guidelines bring us a step closer to ensuring universal access to human rights - rights that remain illusory if they are only accessible to those with financial means – a situation prevalent in many parts of the world.
Here in South Africa, we have long accepted that access to a properly funded legal aid scheme is vital if the poor, the vulnerable and the marginalised are to have access to justice.
Legal representation gives meaning to the transformative rights in our Constitution.
We view the rights in the Bill of Rights as a means of not only protecting the rights of all people, but also in achieving transformation towards a society based on human dignity, equality and freedom.
The duty on the state under section 7(2) of the Constitution to fulfil these rights, obliges the state to take measures to enable people to achieve and enforce their rights.
The establishment, maintaining of and funding of Legal Aid SA is a central vehicle our government has chosen to ensure we meet our Constitutional obligations and I am proud to say that Legal Aid SA is excelling in meeting these obligations.
Section 35 of our Constitution makes special provision for fair trial rights of criminal accused, including far-reaching rights to legal representation in criminal matters, at the expense of the state in certain circumstances.
Section 35(3), in particular, protects the rights of arrested, accused and detained persons and they are afforded the right to legal representation. If they are not able to afford the cost of their own legal representation, then they have the right to a legal representative at state expense.
Bearing in mind that we are a developmental state with limited resources it is understandable that our Constitutional Court has held that 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 criminal cases where substantial injustice would occur.
Even where this right is available to an applicant, Legal Aid SA may still refuse to fund legal representation, if for example the applicant is a person who indisputably can afford to pay for legal representation.
Legal Aid South Africa provides professional legal advice and representation to, as far as is possible, all persons who can’t afford it in criminal matters and to a lesser extent in civil matters.
Despite the demand for legal aid in civil matters exceeding the supply, Legal Aid SA has continuously helped as many poor people as they could within budgetary constraints. They have also focused on vulnerable groups such as women, children and the rural poor.
Budgetary constraints impact on two important legal aid considerations, namely the provision of legal aid in civil matters and legal aid and assistance to the so-called “missing middle.”
No doubt, we would like to extend the provision of legal aid to more persons in need in of assistance in civil matters, but the state fiscus does not have an unlimited purse.
Budgetary realities means doing the best with what we have available. In this regard, Legal Aid SA’s toll-free legal aid advice line has become an innovative way in assisting the public.
The missing middle are those who fall through the proverbial cracks – not affluent enough to afford the services of private legal practitioners, but being above the means test threshold and thus not being able to qualify for legal aid.
They are called the “missing middle” – not so poor or indigent that they qualify for state assistance, but also not rich enough to be able to afford to pay for legal services.
Many of you will also have heard the term being applied to students in terms of the recent #FeesMustFall protests calling for free higher education. The "missing middle" are the many students who do not make the National Student Financial Aid Scheme’s threshold, but are still unable to afford university fees.
I would venture to say that the missing middle – whether we talk about students or whether we talk about persons needing legal assistance – are the people who really need us to come up with creative solutions to ensure that they are not left behind.
A legal aid system can only be effective if there is the political will to support and strengthen it.
Unlike countries where legal aid has suffered budget cuts, our government has steadily increased budget grants to Legal Aid SA over many years.
In the past we had a system where we paid private practitioners to provide legal aid. We now make use of a mixed model where most legal assistance practitioners are salaried practitioners in the employee of Legal Aid SA and where the work can be properly dispersed and shared and quality can be monitored.
The other parts of the mixed legal aid model comprise portions of work allocated to private practitioners and law clinics at universities.
We are extremely proud of the work done by Legal Aid SA. And the figures speak for itself:
Dealing with criminal cases, evictions, family matters, impact litigation, employment issues and contract issues, Legal Aid SA finalized more than 445 000 matters in 2016/17, just over 18 000 of these involved a child. In the same period it provided general advice on nearly 323 000 instances, making a rights based approach a reality to the people of our country.
Legal Aid SA is a success story and we are proud that it is sharing best practices with others in the region, on our continent and internationally.
In this regard the role that Legal Aid South Africa has played in partnering with the United Nations Development Programme (UNDP) to improve and provide global access to legal aid is also welcomed.
I am told that ILAG - the network of legal aid specialists from over two dozen countries - focuses, primarily, on issues raised in jurisdictions which have established highly developed systems of legal aid.
I want to commend ILAG for expanding its brief to now also include jurisdictions with less developed systems.
I also want to commend Legal Aid SA for inviting 18 other African countries to share in these discussions at this conference.
On behalf of the Government of South Africa I want to wish you all a warm welcome and best wishes for a very successful event.
May you build on the successes of previous initiatives such as the Johannesburg Declaration which emanated from the International Conference on Access to Legal Aid in Criminal Justice Systems which was held in June 2014 also here in Johannesburg.
Here participants from 67 countries sought to propose practical and achievable solutions in the provision of effective legal aid services in criminal justice systems. I believe we have made good progress since then and I am confident that this conference will continue with the work started in this regard.
The outcomes of the conference will, no doubt, benefit legal aid across the world.
I thank you.