Barry Streek
The consensus reached nearly two years ago on the transformation of the delivery of legal aid in South Africa through the establishment of justice centres has not resulted in much delivery, the Deputy Minister of Justice, Cheryl Gillwald, has admitted.
It is “sad that little has been done to give effect” to the model of justice centres through the use of state-salaried employees who would deliver legal aid services to as wide a spectrum of communities as possible, she said at a legal aid workshop in Pretoria last weekend.
Gillwald, a surprise appointment by President Thabo Mbeki as deputy minister, made it clear that the provision of legal support to the poor would be one of her priorities.
She admits she took up office with little knowledge or experience of the legal system, “but one thing I had experienced was the frustration of trying to secure legal assistance for indigent people”. In her constituency office in the northern Free State she personally experienced the difficulties involved in trying to secure assistance for her constituents.
When the Consultative Forum on Legal Aid met in January 1998 there was consensus on the need for transformation on the structures responsible for the delivery of legal aid and the way in which services were delivered. “There was clear recognition of the fact that South African can no longer afford to provide legal assistance by way of the Judicare system,” she said.
The Legal Aid Board itself acknowledged this and presented the plan for the establishment of justice centres, but little had been achieved since then.
Gillwald also said she had come across a number of references to the independence or autonomy of the Legal Aid Board. “The impression I have gained would seem to suggest that the board in no way feels accountable to the executive arm of the government. The problem was that the ministry and department of justice were held accountable by the Cabinet, Parliament and the public for the board’s actions. The Legal Aid Act established the board as a body corporate and implicit in the law was the theme of autonomy. I contend, though, that the legislation never intended the creation of absolute autonomy. Neither did it intend the creation of an independent institution aloof and unresponsive to the community and society of which it is an integral part.”
The ministry and department are engaged in a process of rationalisation and transformation, and the board has to be part of this process, she said. “The object of transformation is to bring about change which serves the best interests of the public. This means that we have to do away with practices of the past which are inappropriate in our new democracy,” she argued.
If legal aid for civil matters were provided by funding-approved NGOs and perhaps academic institutions, as was the case in the US, the administrative red tape at the Legal Aid Board would be reduced, Gillwald said.
Gillwald added that the Legal Aid Board established its own pilot project public defender office in Johannesburg in 1992 and “by all accounts, this has been a successful project”.
The figures presented at the Legal Aid Forum in January 1998 indicated that the cost of defending someone through the public defender averages out at less than half of the cost of Judicare, the current legal aid system.
“Despite this, the project has not been expanded to other courts. We need to know why. We need to know whether the public defender system ensures that the state’s constitutional obligation to provide legal representation in criminal matters is met.”
Gillwald clearly gave notice that she is going to push hard to take justice to those who cannot afford lawyers. She also promised to engage civil institutions and NGOs to find new ways to provide “relevant and community-orientated services, especially to the most disadvantaged and needy”, pointing out that the Constitution laid down that anyone had a right to defence by a legal practitioner at state expense.