Mungo Soggot
MINISTER of Justice, Dullah Omar, is considering a change in the Constitution to rein in hefty legal aid pay-outs and shield the state from a deluge of unaffordable claims.
Omar floated the possibility in a letter this week to the parliamentary justice committee, which is investigating the struggling Legal Aid Board. The board said recently that demand for legal aid was increasing by 40% a year and that it was already R150-million in the red.
The Constitution says that citizens are entitled to a lawyer at the state’s expense if “substantial injustice would otherwise result”. The Constitution also specifies that citizens must be informed of this right.
Omar’s comments follow a Johannesburg High Court ruling this month which freed a convicted hijacker, Patrick Mgcina, who had not been informed he was entitled to a free lawyer. Mgcina served 15 months of a 10- year sentence.
Lawyers say the judgment could trigger a flood of applications for free legal defence. The ruling means that magistrates will have to ensure they fully inform those on trial of their rights.
Omar’s office said his letter to the justice committee was not a direct reaction to it – it was rather a reflection of a “general concern” about the board’s financial state and abuse of the system.
The board, which has been stung by allegations of mismanagement, said recently that it had accepted 115 000 out of 125 000 applications for “constitutional” legal aid, which helped lift the board’s total pay-out to R93-million for the year to March. In his letter, Omar expressed concern about the board’s 35600 unpaid lawyers’ accounts.
Omar’s spokesman said the minister was reluctant to change the Constitution, which requires a two-thirds majority in Parliament, but it is possible he could tighten the legal rules with legislation within the framework of the existing Constitution.
A leading legal commentator, Professor Dennis Davis, said he hoped the government would alter the Constitution only as a last resort. He hoped Omar was being given adequate advice on the state of legal aid and the way forward.
“Before you start tinkering with the Constitution you should ensure that every possible alternative has been exhausted,” Davis said.
The current “Rolls Royce” legal aid system – which paid out private-sector lawyers to defend the poor – was probably unsustainable, he said. The government should investigate replacing it with a national “public defender” network.