Legal Aid SA (LASA) provides legal aid and legal advice to eligible people at the state’s expense. The entity 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:
- 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 contributes to the National Development Plan’s vision of a South Africa in which all people are safe at home, school and work, and enjoy life without fear. Achieving this vision requires a criminal justice system that serves everyone in South Africa fairly and equitably. In support of this objective, over the medium term, the entity will continue providing legal aid and representation at the state’s expense to people who cannot afford it. As such, the entity plans to enter into strategic partnerships with legal practitioners in the private sector, non-governmental organisations and university law clinics, and maintain a national footprint of 64 legal aid local offices and 64 satellite offices supported by six provincial offices and a national office.
Spending in the legal aid services programme accounts for an estimated 78.9% (R6.4 billion) of the entity’s total budget between 2018/19 and 2021/22. Compensation for the entity’s 2 707 employees is set to continue to be the main driver of spending over the MTEF period, accounting for a projected 82.6% (R5.2 billion) of the total budget. Expenditure on compensation of employees is set to increase at an average annual rate of 6.6%, from R1.5 billion in 2018/19 to R1.8 billion in 2021/22.
The entity’s coverage of legal aid practitioners per district court is expected to be maintained at 83% per year over the medium term, and its coverage in regional courts at 93 per cent. To maintain a sufficient number of legal practitioners in the court system over the medium term, the entity is set to receive additional funding of R309.2 million for compensation of employees, of which R104.5 million comprises funding reprioritised from the department.
LASA funds its operations through transfers from the department. These are expected to increase at an average annual rate of 6.7%, from R1.8 billion in 2018/19 to R2.2 billion in 2021/22.
The SIU investigates and litigates on serious malpractice, maladministration and corruption in connection with the administration of state institutions. The unit is also empowered to institute and conduct civil proceedings in any court of law or special tribunal in its own name or on behalf of other state institutions.
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.
Recent SALRC programmes included:
- statutory law revision: legislation administered by the Department of Police
- statutory law revision: legislation administered by the Department of Trade and Industry
- statutory law revision: legislation administered by the Department of Social Development
- statutory law revision: legislation administered by the Department of Public Service and Administration
- statutory law revision in respect of legislation administered by the Department of Water and Sanitation
- statutory law revision: legislation administered by the Department of Arts and Culture
- reviewing the Witchcraft Suppression Act, 1957 (Act 3 of 1957)
- revised discussion paper on the practice of ukuthwala
- statutory law revision: legislation administered by the Department of Environmental Affairs.
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).
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%.
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.
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 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.
By the end of March, the AFU had recovered R685 million in respect of corruption cases involving R5 million or more.
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 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.
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.
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.
More than 6 000 members within the Family Violence, Child Protection and Sexual Offences units nationally have been trained by the SAPS on various aspects of dealing with 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 for the sensitive and safe treatment of victims of sexual offences.
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.
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.
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.
The role of the Family Advocate is to promote and protect the best interests of the 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.
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.
- Child justice
- Children’s Act of 2005
The Department of Social Development is the lead department for the implementation of the Children’s Act of 2005. The DoJ&CD’s main responsibility is towards Children’s Court operations relating to the Act.
Embracing information and communication technology (ICT) has allowed the DoJ&CD to extend its reach on modern-day platforms that are more accessible to children, thereby increasing access and engagement with potentially vulnerable or threatened children that would otherwise not have access to the department and, therefore, support and assistence.
The department has developed a child-friendly Frequently Asked Questions link on its website. In addition, the department created an email address, email@example.com, which the public may use to contact the department on issues relating to children.
The Children’s Court is the DoJ&CD’s principal legal mechanism to intervene and assist children who are in need of care and protection. To gather statistics from the children’s courts, the department developed the Children’s Court Monitoring Tool. Data about matters coming to court relating to children in need of care is gathered monthly.
Section 14 of the Children’s Act of 2005 states that every child has the right to bring a matter to the Children’s Court.
This means that every Children’s Court can serve as a direct entry point for a child to seek help and protection. Children’s courts have been rendered highly accessible through the Act.
Source: South Africa Yearbook 2018/19