IILACE 10 TH Anniversary Conference Access to Justice in South Africa: A Combined Effort Required

1. IILACE 10TH Anniversary Conference Access to Justice in South Africa: A Combined Effort Required presented by Patrick Hundermark Legal Development Executive Legal Aid Board South Africa Access to Justice

2. Introduction • SA Constitution Protects Rights • Achieved by enabling access to the courts to resolve all justiciable disputes (both civil and criminal) • Must be open access to courts • Must have right to legal representation • Must be assisted if unable to afford the cost of such legal representation. Access to Justice

3. What is access to justice? • Able to approach a court free of barriers or obstacles • Legal representation integral to access to justice • Unable to afford private legal representation, then state to provide where substantial injustice arises • Effectively enforce the court order Access to Justice

4. A clearer right? • Children under 18 in both criminal and civil matters (Section 28(1)(h) & 35(3)) • Accused Persons (Section 35(3)) Access to Justice

5. Limitation of rights? • Section 36 - all the rights capable of limitation in terms of a law of general application • Legal Aid Act empowers scheme to be set out in LAG which contains limitation on types of matters and sets means/affordability test • Abuse right of access to the courts becoming vexatious litigants Access to Justice

6. Historical Context • Prior to 1994 access to justice not constitutional right  • Apartheid era Acts of parliament limited access to justice by imposing limitations relating to time frames for launching proceedings and shortened prescription periods - More so where organs of state sued in delictual claims • Right to legal representation recognised but no right to legal aid where not able to afford Access to Justice

7. Human Rights Instruments • Various Instruments Internationally • South Africa is a signatory to • International Covenant on Civil and Political Rights • African Charter on Human and Peoples Rights. Access to Justice

8. SA Constitution • Four main provisions which relate to access to justice • Civil Matters • Section 28(1)(h) • Section 34 • Criminal Matters • Section 35(2)(b) • Section 35(3)(f) & (g) Access to Justice

9. SA Courts Approach • S v Makwanyane and Others - death sentence found unconstitutional • S v Vermaas; S v Du Plessis – Legal representation at state expense and own choice • S v Steyn – Leave to appeal found unconstitutional • Shinga v The State and Another – New Leave to Appeal provisions found constitutional Access to Justice

10. SA Courts Approach • Beinash v Ernst and Young – Limitation in Vexatious Proceedings Act • Bernstein v Bester NO - Section 22 of the Interim Constitution contained no right to a fair civil trial. The court also refused to imply that there was a right to a fair civil trial. This has, however, been remedied by section 34 which now guarantees the right to a fair civil trial Access to Justice

11. SA Courts Approach • Nkuzi Development Association v Government of the Republic of South Africa -the right to legal representation • Found that the duty remains that of the State despite creation of Legal Aid Board Access to Justice

12. Reasons for Increased Civil Legal Aid • Constitutional right to a fair civil trial  • Legal representation gives effect to transformative rights in our constitution  • Parliament has recognised the need and placed an obligation on the LAB to provide without funding  • Substantial public demand for civil legal aid  • Equitable and accessible justice system is necessary for sustainable development  • State may be increasingly sued to do so • There is a need for a coherent and affordable system for providing civil legal aid Access to Justice

13. Delivery of Access to Justice • Legal Aid Board – 396 068 • Salaried Legal Practitioners • Judicare • Co-operation Partners • Impact Litigation • Para-legals Access to Justice

14. Delivery of Access to Justice • Organised Legal Profession - ? Matters • Public Interest Departments • Pro Bono • Pro Amico • Pro Deo • In forma Pauperis • Contingency Fee (No win no fee) Access to Justice

15. Delivery of Access to Justice • University Law Clinics – 18 000 matters • Services provided by student • Main purpose is practical training • Access to Justice Ancillary • NGO’s - ? matters • LRC • LHR • Pro Bono.org • Women’s Legal Centre Access to Justice

16. Funding • State – R 700 million currently • Profession ? • Donors ? Access to Justice

17. Lessons • Public Purposes Funds • Para-legals • Hong Kong – Civil Funding Model Access to Justice

18. Innovations • Call Centres • Rural Links • Services for not so poor • Legal Insurance Access to Justice

19. Conclusion As I mentioned at the start, Government or the Legal Aid Board cannot on their own ensure access to justice for all. It must be a combined effort and it is hoped that the all role players can plan together to ensure access to justice for all. Access to Justice