Barry Streek
New steps to reduce legal costs through the employment of public defenders and the establishment of “justice centres” – seven to 10 will be started this financial year – have been disclosed by Minister of Justice and Constitutional Development Penuell Maduna.
He said “a completely new approach to legal aid” will be implemented and discussions with the Legal Aid Board are being “continuously held” to remedy the current situation and place legal aid on a sound footing.
Maduna’s announcement follows the statement last year by Deputy Minister of Justice and Constitutional Development Cheryl Gillwald that the consensus reached two years previously on the transformation of the delivery of legal aid through the establishment of justice centres had not resulted in much delivery.
At a consultative forum in January 1998 there had been “clear recognition of the fact that South Africa can no longer afford to provide legal assistance by way of the judicare system”.
She said then that although the Legal Aid Board had successfully established its own pilot public defender office in Johannesburg and the cost of defending someone through the public defender system averaged out at less than half of the cost of judicare, the project had not been expanded to other courts. (The Johannesburg public defender office was established in 1992, and has 10 defence lawyers and 15 candidate attorneys, paid by the state.)
Maduna said in reply to a question, tabled in the National Assembly by the New National Party’s Sheila Camerer, that the new approach entails the use of public defenders in the place of judicare, fast-tracking of a new legislative framework, and the drafting of business plans to implement the use of justice centres and public defenders, and also to deal with the present legal aid system.
These plans are already taking shape. The Board, the National Director of Public Prosecutions, Bulelani Ngcuka and other role players are currently engaged in discussions to identify areas for the establishment of seven to 10 justice centres during the current financial year.
“This will result in a larger core of salaried public defenders in criminal cases,” he said.
Negotiations are also taking place with NGOs to provide legal services for the indigent criminal accused at a rate even lower than the Board’s reduced tariff, which was introduced in November last year.
“In that regard, the Board has informed me that the reduced tariff has made it possible for it to continue issuing new instructions. It also resulted in the Board’s contingent liability being drastically reduced and has put it on the road to solvency,” said Maduna.
The director of the Centre of Applied Legal Studies at the University of the Witwatersrand, David Unterhalter, told the Mail & Guardian he is concerned the new system would not be able to cover the whole country because only seven to 10 justice centres are to be established, probably in the major cities, and because of budget constraints.
He said it had been argued that it would have been cheaper and more effective to use the existing infrastucture in the judicare system, and while he is not opposed to the establishment of the justice centres, he would have preferred a mixed system so that the results and cost of both approaches could be compared.
“I am concerned that the coverage of the centres will be a bit limited,” said Unterhalter. “What are we going to do for the rural poor who always end up with the least resources from publicly promoted efforts?”
But it appears the government had concluded that the existing judicare system was so open to abuse that it was impossible to fix.
The government is trying to take two steps at one time – to resolve the insolvency of the Legal Aid Board and to look for a better system of providing legal aid for the poor, said Unterhalter. However, the establishment of seven to 10 justice centres in the first phase “would seem to be pretty slight” and while he hopes the justice centre system will prove to be effective, his instinct is to opt for a mixed system until the new centres have proved themselves.