Legal Aid South Africa
Legal Aid SA (LASA) is mandated to ensure access to justice and the realisation of the people’s rights to have legal representation as envisaged in the Constitution.
To this end, LASA has identified the following priority groups:
- children’s matters
- detained persons, including sentenced prisoners
- accused persons who wish to appeal or review a court’s decision in a higher court
- women, particularly in divorce, maintenance and domestic violence cases
- the landless, especially in eviction cases.
LASA met more than 90% of the set targets in the Business Plan for 2017/18 and spent 98.7% of the approved budget. Its staff establishment was reduced by 3.6% from 2 863 to 2 761, mainly due to budgetary constraints. The organisation was named a Top Employer in South Africa for the ninth consecutive year, as well as Industry Leader in the Public Sector for the third consecutive year as a measure of excellence in people management.
Special Investigating Unit
The SIU is a public entity with powers of both investigation and litigation. Following the issuing of a presidential proclamation by the President, the SIU has powers to subpoena, search, seize and interrogate witnesses under oath.
The SIU was created in terms of the Special Investigating Unit and Special Tribunals Act, 1996 (Act 74 of 1996). The SIU functions in a manner similar to a commission of inquiry in that the President refers cases to it by issuing a proclamation.
It may investigate any matter set out in Section 2 of the Special Investigating Unit and Special Tribunals Act of 1996, including:
- serious maladministration in connection with the affairs of any State institution
- improper or unlawful conduct by employees of any State institution
- unlawful appropriation or expenditure of public money or property
- any unlawful, irregular or unapproved acquisitive act, transaction, measure or practice that has a bearing on State property
- intentional or negligent loss of public money or damage to public property
- corruption in connection with the affairs of any State institution
- unlawful or improper conduct by any person who has cause or may cause serious harm to the interest of the public or any category thereof.
The SIU can also take civil action to correct any wrongdoing it discovers during an investigation. For example, it can obtain a court order to:
- compel a person to pay back any wrongful benefit received
- cancel contracts when the proper procedures were not followed
- stop transactions or other actions that were not properly authorised.
The SIU litigates its cases in the Special Tribunal, a specialised court that deals specifically with its cases. This avoids some of the delays usually associated with civil litigation.
Where criminal conduct is uncovered, it will bring the matter to the attention of its partners, the Hawks, an independent directorate in the South African Police Service (SAPS), as well as the NPA. It works closely with these institutions to ensure that there is an effective investigation and prosecution.
The SIU also works closely with the AFU in the NPA, where its powers are more appropriate or effective in recovering the proceeds of crime.
During the 2017/18 fiancial year:
- A total of 1 556 investigations closed out under a published proclamation.
- 15 final investigation reports were submitted to The Presidency.
- R299 million of money and/or assets potentially recoverable.
- R34 million of money and/or assets actually recovered.
- R407 million of potential loss prevented.
- The value of R 797 million of contract(s) and/or administrative decision(s)/ action(s) set aside or deemed invalid.
- The value of R2,7 billion of matters in respect of which evidence was referred for the institution or defence/opposition of civil proceedings (including arbitration or counter civil proceedings).
South African Law Reform Commission (SALRC)
The SALRC is a statutory body established in terms of the South African Law Reform Commission Act, 1973 (Act 19 of 1973)
The mission of the SALRC is the continuous reform of the law of South Africa in accordance with the principles and values of the Constitution to meet the needs of a changing society operating under the rule of law.
The objectives of the commission are to do research with reference to all branches of the law of the country and to study and investigate all such branches to make recommendations for the development, improvement, modernisation or reform thereof.
The SALRC is chaired by a judge and consists of members from the judiciary, legal professions and academic institutions. It conducts research with reference to all branches of South African law to make recommendations to government for the development, improvement, modernisation or reform of the law. This includes the following functions:
- repealing obsolete or unnecessary provisions
- removing anomalies
- bringing about uniformity in the law
- consolidating or codifying any branch of the law
- making common law more readily available.
To achieve its objectives, the SALRC investigates matters appearing on a programme approved by the Minister of Justice and Constitutional Development. Reports and other documents published by the commission are made available on the SALRC website for general information.
During the 2017/18 financial year, 16 research papers were completed and submitted to the SALRC) for consideration and approval. These included the:
- Discussion Paper on Project 25: Statutory Law Revision: Review of Legislation Administered by the South African Police Services.
- Draft report on Project 25: The Review of Legislation Administered by the Department of Public Service and Administration.
- Draft report on Project 138: The Practice of Ukuthwala.
- Draft report on Project 25: The Review of Legislation Administered by the Department of Social Development.
- Draft report on Project 25: The Review of Legislation Administered by the Department of Trade and Industry.
- Report on Project 25: Statutory Law Revision: Review of Legislation Administered by the Department of Arts and Culture.
- Report on Project 137: Review of the Expungement of Certain Criminal Records.
- Report on Project 139: Review of the Interpretation Act 33 of 1957.
- Issue Paper on Project 140 on the Right to Knowledge of One’ s Own Biological Origins.
- Issue Paper on Project 141 on Medico-legal Claims.
- Issue Paper on Project 100: Review of Aspects of Matrimonial Property Law.
- Proposal Paper on Project 143: Maternity and Paternity Benefits for Self-employed Workers.
- Proposal Paper on Preliminary Investigation into the Regulatory, Compliance and Reporting Burden on Local Government.
- Proposal Paper on Preliminary Investigation into the Position of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Persons who are Incarcerated.
- Proposal Paper on the Development of Criminal Sanctions for Breach of the Constitution.
- Preliminary Investigation Proposal Paper on Judicial Interruption of Extinctive Prescription.
National Prosecuting Authority of South Africa
The NPA was established in 1998 and comprises the National Director, deputy national directors of public prosecutions, special directors and other members of the prosecuting authority appointed at or assigned to the NPA, and members of the administrative staff.
The NPA has the power to:
- institute and conduct criminal proceedings on behalf of the State
- carry out any necessary functions incidental to instituting and conducting such criminal proceedings (this includes investigation)
- discontinue criminal proceedings.
The deputy national directors of public prosecutions are responsible for the following divisions:
- National Prosecutions Service (NPS)
- Legal Affairs
- Administration and Office for Witness Protection (OWP).
Special directors of public prosecution head the following specialised units:
- Sexual Offences and Community Affairs Unit (SOCA)
- Specialised Commercial Crime Unit (SCCU)
- Priority Crimes Litigation Unit (PCLU).
The NPA continued to provide a coordinated prosecution service, ensuring that justice is delivered to the victims of crime through general and specialized prosecutions; that profit is removed from crime and that witnesses and related persons are protected.
The period 2017/18 was characterized by excellent performance in many spheres of the organization, notwithstanding the budgetary and resource constraints, which remain a challenge. Increased focus in the fight against crime, especially government priorities, remained a focal point for the organization.
Great strides have been made to ensure that high conviction rates were maintained and improved on, in all court forums.
Historically, the high courts have fluctuated from 91% in 2014/15, 89.9% in 2015/16, back to 91% in 2016/17 and then to 91.7% for the period 2017/18 against a target of 87%.
The regional courts have also gradually increased from 76.6% in 2014/15 to 78.4% in 2015/16, 80% in 2016/17 and 81% in 2017/18 against a target of 74%.
In the district courts, the DoJCD increased its performance from 94.2% in 2014/15 to 94.7% and 95.6% in the years thereafter, with 96.1% in 2017/18 against a target of 88%.
National Prosecuting Service (NPS)
The NPS is a division of the NPA managing the performance of directors of public prosecutions and lower courts countrywide.
All the public prosecutors and state advocates manning the district, regional and high courts report to the directors of public prosecutions in their respective areas of jurisdiction.
Office for Witness Protection
Under the auspices of the NPA, the OWP provides specialised services to all law enforcement agencies in South Africa, the NPA and any judicial proceedings. The OWP provides the following:
- assistance and cooperation to other countries, tribunals and special courts in the field of witness protection
- support services to vulnerable and intimidated witnesses and related persons in any judicial proceedings and in the CJS.
All OWP functions and duties are classified secret in terms of the Witness Protection Act of 1998.
The OWP maintained its performance record for the last 17 years in ensuring that no witnesses and related persons were harmed, threatened or killed whilst on the witness protection programme.
Asset Forfeiture Unit
The AFU was established in May 1999 as a division of the NPA to focus on the implementation of Chapter 5 and Chapter 6 of the POCA of 1998. The AFU was created to ensure that the powers in the Act to seize criminal assets would be used to their maximum effect in the fight against crime, in particular organised crime.
The AFU has set itself a number of key strategic objectives, namely to:
- develop the law by taking test cases to court and creating the legal precedents that are necessary to allow the effective use of the law
- build the capacity to ensure that asset forfeiture is used as widely as possible to make a real impact in the fight against crime
- make an impact on selected categories of priority crimes
- establish a national presence
- establish excellent relationships with its key partners, especially the SAPS, and the South African Revenue Service (SARS)
- build the AFU into a professional and representative organisation.
The AFU continued to play a critical role in the fight against corruption and has delivered significant returns in the past few years showing that crime does not pay.
In the endeavour to curb the increase of corruption, the AFU obtained freezing orders to the value of R4.4 billion. An amount of R3.8 billion relating to corruption was frozen where the amount involved is more than R5 million.
Recoveries in terms of the POCA to the value of R302.8 million were also recorded during the financial year. In line with its operational plan, the AFU has adopted a strategy that not only seeks to extend the footprint of asset forfeiture in the fight against crime, but one that also seeks to deliver maximum impact in several identified focus areas. An overall success rate of 99,1% was recorded in the AFU.
Specialised Commercial Crime Unit
A division of the NPA, the SCCU’s mandate is to prosecute complex commercial crime cases emanating from the commercial branches of the SAPS. The client base of the unit comprises a broad spectrum of complainants in commercial cases, ranging from private individuals and corporate bodies to state departments.
The SCCU obtained a conviction rate of 94.1% in relation to complex commercial crime matters over the last year against a target of 93%.
Special focus was once again placed on the prosecution of cybercrime cases to curb this growing international phenomenon.
This is evident in the conviction rate of 98,5% in the prosecution of cybercrime cases which should be viewed against the nature and complexity of these crimes and the high level of technical evidence required in the prosecution of cybercrime cases.
Organised crime prosecution achieved a conviction rate of 93,8% and the number of convictions (346) exceeded the annual expectations of 269 convictions.
Priority Crimes Litigation Unit
The PCLU is mandated to tackle cases that threaten national security. It was created by presidential proclamation, falling under the NPA, and is allocated categories of cases either by the President or by the National Director of Public Prosecutions.
The primary function of the PCLU is to manage and direct investigations and prosecutions in respect of the following areas:
- the non-proliferation of weapons of mass destruction (nuclear, chemical and biological)
- the regulation of conventional military arms
- the regulation of mercenary and related activities
- the International Court created by the Statute of Rome
- national and international terrorism
- prosecution of persons who were refused or failed to apply for amnesty in terms of the TRC processes.
Sexual Offences and Community Affairs Unit
SOCA is a division of the NPA that acts against the victimisation of vulnerable groups, mainly women and children. The unit develops strategy and policy, and oversees the management of cases relating to sexual offences, domestic violence, human trafficking, maintenance offences and children in conflict with the law.
SOCA aims to:
- improve the conviction rate in gender-based crimes and crimes against children
- protect vulnerable groups from abuse and violence
- ensure access to maintenance support
- reduce secondary victimisation.
One of the SOCA’s key achievements in ensuring government’s commitment to the fight against sexual offences and gender-based violence is the establishment of Thuthuzela care centres (TCCs).
TCCs are one-stop facilities located in public hospitals in communities where sexual assault is rife. These one-stop facilities are aimed at reducing secondary victimisation, improving conviction rates and reducing the cycle time for the finalisation of rape cases.
Increased focus was placed on sexual offences and gender based violence matters. The improved conviction rate in sexual offences of 72,7% is an all-time high, reflecting a firm commitment to deliver justice for the most vulnerable members of society: the victims of sexual offences and GBV.
The SOCA unit established 55 operational TCCs, in support of the victims of crime, particularly the victims of sexual offences who are mainly women and children.
Funds have been allocated from the Criminal Assets Recovery Account for the rollout of another five TCC’s over the next three years. A remarkable conviction rate of 74,5%, with 1 899 convictions, was recorded in relation to TCC reported cases.
The Family Violence, Child Protection and Sexual Offences (FCS) units
The FCS employs a network of highly skilled forensic social workers to assist with assessment of abused children and the compilation of court reports and provision of expert testimony in court. By April 2016, there were 176 FCS units nationwide.
The FCS is involved in the policing of sexual offences against children, person-directed crimes, illegal removal of children under 12 and electronic media facilitated crime. Two areas of particular concern for the FCS are child pornography and sexual offences.
The SAPS currently has 1 045 designated victim-friendly rooms at police stations and police contact points all over the country. Victim-friendly rooms are an extension of the community service centres.
The value of a victim-friendly room is that it assists in preserving the dignity of victims by making space available where a statement can be taken in privacy, in accordance with the SAPS’s mandate.
At those police stations that are not yet equipped with these facilities, a room is made available for victims to be interviewed in private.
Provision has also been made to create special sexual offences courts or establish facilities the sensitive and safe treatment of victims of sexual offences.
Rules Board for Courts of Law
The Rules Board for the Courts of Law may review existing rules of Court to efficient, expeditious and uniform administration of justice in the Supreme Court of Appeal, high courts and magistrates’ courts.
Subject to the approval of the Minister, it may enact, amend or repeal rules for the above courts.
The board is headed by a Constitutional Court judge and includes experts in procedural law drawn from the judiciary, legal profession and academic institutions.
Its mandate includes:
- improving and modernising the rules of courts in accordance with technological changes and constitutional imperatives
- addressing challenges to the constitutionality of specific rules and effecting amendments precipitated by such challenges
- simplifying the courts’ rules to promote access to justice
- harmonising rules of superior and lower courts
- reviewing the civil justice system to address inadequacies
- conducting legal and comparative research to determine viable solutions
- stimulating discussion with role players and interested and/or affected parties in the process of amending rules
- unifying and harmonising rules, regulations and procedures to transform the courts and to make justice accessible to all.
Judicial Service Commission
The JSC selects fit and proper people for appointment as judges and investigates complaints about judicial officers. It also advises government on any matters relating to the judiciary or to the administration of justice.
When appointments have to be made, the JSC publishes a notice giving details of the vacancies that exist and calls for nominations.It shortlists suitable candidates and invites them for interviews.
Professional bodies and members of the public have the opportunity to comment prior to the interviews or to make representations concerning the candidates to the commission.
The interviews are conducted in public, after which the commission deliberates and makes its decisions in private. Its recommendations are communicated to the President, who then makes the appointments.
In terms of the Constitution, the President, in consultation with the commission, appoints the chief justice and the deputy chief justice, and the president and deputy president of the Supreme Court of Appeal.
The President appoints other judges on the advice of the commission. In the case of the chief justice and the deputy chief justice, the leaders of parties represented in the National Assembly are also consulted.
Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Commission)
The CRL Commission’s role of fostering social cohesion remains relevant as democracy continues to grow in South Africa. It is incumbent upon the CRL Commission to develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities. Its mandate is to make sure that democracy manifests itself in all aspects of the lives of South Africans.
There are still communities that feel marginalised because they are not part of the accepted, mainstream South African culture. However, most South Africans have gained awareness of their rights concerning language, religion and culture, and are beginning to make demands for better recognition.
The Magistrates’ Commission ensures that the appointment, promotion, transfer or discharge of, or disciplinary steps against, judicial officers in the lower courts take place without favour or prejudice, and that the applicable laws and administrative directions in connection with such actions are applied uniformly and correctly.
In terms of the Magistrates’ Act of 1993, the Minister appoints a magistrate after consultation with the Magistrates’ Commission.
The commission also investigates grievances and complaints about magistrates and submits reports and recommendations to the Minister, who in turn tables them in Parliament.
The commission has established committees to deal with appointments, misconduct, disciplinary inquiries and incapacity, grievances, salary and service conditions, and the training of magistrates.
South African Board for Sheriffs
Significant strides have been made in transforming the sheriff’s profession in the country. Sheriffs have an important role in the CJS, as they act as a third party to serve court process and execute the warrants and orders of the court, which are issued in terms of the regulations of the different courts.
In terms of transformation, the sheriff’s profession is gradually becoming more representative. The sheriffs’ profession plays an important part in justice service delivery because they serve court processes and execute warrants and orders of court.
In July 2017, some 33 sheriffs were appointed to serve a wide range of communities in our country.
The newly appointed sheriffs enhance transformation of the profession as they reflect the demographics of the country in respect of race and gender.
Office of the Family Advocate
The role of the Family Advocate is to promote and protect the best interests of children in civil disputes over parental rights and responsibilities.
This is achieved by monitoring pleadings filed at court, conducting enquiries, filing reports, appearing in court during the hearing of the application or trial, and providing mediation services in respect of disputes over the parental rights and responsibilities of fathers of children born out of wedlock.
In certain instances, the Family Advocate also assists the courts in matters involving domestic violence and maintenance. The sections of the Children’s Act of 2005 that came into operation on 1 July 2007 have expanded the Family Advocate’s responsibilities and scope of duties, as the Act makes the Family Advocate central to all family-law civil litigation.
Furthermore, litigants are obliged to mediate their disputes before resorting to litigation. Unmarried fathers can approach the Family Advocate directly for assistance without instituting any litigation.
Children’s rights to participate in, and consult on, decisions affecting them have been entrenched; the Family Advocate is the mechanism whereby the voice of the child is heard.
Truth and Reconciliation Commission
The TRC was dissolved in March 2002 by way of proclamation in the Government Gazette. The TRC made recommendations to government regarding reparations to victims and measures to prevent the future violation of human rights and abuses experienced during the apartheid years.
Government approved categories of recommendations in June 2003 for implementation, namely:
- final reparations
- TRC-identified victims
- symbols and monuments
- medical benefits and other forms of social assistance
- community rehabilitation.
The implementation of the recommendations of the TRC remains one of the important initiatives that could help bring about healing and closure for crimes committed during apartheid.
One of the key projects implemented has been education assistance for the next-of-kin of TRC-identified victims. For the academic year of 2018, a total of 1 200 beneficiaries for basic education and 457 for higher education were positively verified and referred for payment of benefits.
The Pretoria Gallows Exhumation Project which started in 2016 continued into the 2017/18 financial year. Of the remains of 83 people identified for this project, 46 remains have been exhumed, with 32 of these completed in the 2017/18 financial year.
The 32 of these included 15 UDF activists who were part of political turmoil in the Eastern Cape in 1985 and 1986.
The DoJCD plans to finalise the exhumation project in the 2018/19 financial year.
Source: South Africa Yearbook 2017/18