Impact of Appeals: briefing

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Justice and Correctional Services

18 March 2003
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
19 March 2003
IMPACT OF APPEALS: BRIEFING


Chairperson: Adv J H de Lange (ANC)

Documents handed out:
Statistical Evidence on the Impact of Appeals on the Administration of Justice
Legal Aid Board briefing on Criminal Appeals (Appendix)

SUMMARY
The Committee was briefed by the Department of Justice and the Legal Aid Board concerning the state of criminal appeals since the Steyn judgement changed the appeals procedure. The Steyn ruling put into effect an automatic right of appeal. The Committee requested the Department to compile more detailed and reliable information concerning the appeals process. The Department should assemble a team to deal with the court challenges that will arise.

MINUTES
The Criminal Procedures Act (CPA was amended by the Ntuli judgement in 1997 and the Steyn judgement in 2001. The Chairperson noted that evidence should be gathered concerning appeals as soon as possible. Should the Department face a court challenge in this respect soon, it should make out the court case now.

Mr Pieter du Rand of the Department of Justice began his presentation, "Statistical Evidence on the Impact of Appeals on the Administration of Justice: a Trend Analysis."

The Department separated the evidence into four periods in which procedures relating to appeals were different. The first period was prior to the Ntuli decision in 1997. The second was the period from 1997-1999 when the Ntuli ruling was in effect. The third period was from 2000 to June 2001 in which the procedure had been modified. Finally, the fourth period was after the Steyn ruling, from June 2001 to the present.

He noted that while these periods were easily definable and separable, there were many cases in which an appeal in the lower court during one period did not proceeded to the High Court until the next period. Information was obtained for a ten-year period for the lower courts and an eight-year period for the High Courts.

The Chairperson asked where the information came from.

Mr du Rand answered that the information was obtained from the Department's Annual Return and from the special survey of the High Courts.

Adv de Lange determined that the information would have more validity if it is cross-referenced with the National Prosecuting Authority, the clerks and the register. The document would be much stronger with the addition of more sources. The sources must be collected before the trial.

Mr du Rand assured Adv de Lange that the Department was collecting those resources.

He summarised the main findings for the lower courts:
-The number of appeals was increasing by 22% during the first period prior to the Ntuli case.
-The number of appeals declined by 29% during the second period, contrary to what was expected.

The Chairperson interrupted Mr du Rand and noted that the decline in the second period may be explained by the decline in political cases and upsurge of violence cases that occurred in post-apartheid South Africa. The Department should get an answer to that.

Adv de Lange stated that these statistics did not mean anything if they were not put into the context of the number of arrests, complaints, and cases during the respective periods. That information would have to be included.

Mr du Rand continued, stating that the increase in appeals since the Steyn ruling in June 2001 has been great.

He turned the Committee's attention to Figure 2 in the document, which dealt with the number of appeals received by the High Courts. The saturation rate—the greatest number of appeals that the High Court could handle—was 5 000 per year and has been reached.

Dr J T Delsport (DP) asked Mr du Rand why Figure 2 did not tally with Table 4, which listed the number of appeals dismissed and upheld by the High Court. The number received was twice as large as the number of cases dismissed and upheld.

Mr du Rand answered that the numbers did not add up because a number of cases were withdrawn or remitted to lower courts. These cases were unaccounted for in Table 4, but the information can be found in the document as well.

The Chairperson asserted that Table 3 should be shown before the other tables to avoid confusion. The Department needed to explain the discrepancy between the number of appeals the High Court received and the number of appeals that were petitioned from the lower courts. The Department should bring an auditor in to get the proper information.

Mr du Rand turned to Figure 4 and explained that the number of pending appeals cases has been lowered since the Steyn judgement because extra measures have been taken to reduce the backlog.

The Chairperson stated that he would have to list which extra measures were taken and what effect they had on the number of appeals cases.

Mr P Brits from the Legal Aid Board added that many appeals have not being withdrawn since the Steyn judgement because the government, through the Legal Aid Board, was financing those appeals.

The Chairperson countered that there should be more dismissals after the Steyn judgement.

Mr Brits reminded him that there was a time lapse because it took a long time for the cases affected by the Steyn judgement to reach the High Courts.

The Chairperson agreed with his logic and told Mr du Rand to make a note in the report that the effects of changing the appeals process are not seen until later.

Mr du Rand continued, illustrating that it took twelve months of extra measures to work down the backlog in the High Court, and that those measures could not be easily sustained.

Adv de Lange declared that the Department must show the backlog for each court and then explain how the extra measures affected that backlog. For each High Court the Department must separate the number of civil appeals from the number of criminal appeals. The report must note the number of judges in each court. He instructed the Department to gather more information and then further break down the categories. Once the Department has a snapshot of one High Court, the report will have much more power.

The Chairperson asked why the lower courts sent up 4 000 more cases than the High Courts acknowledged receiving.

Mr Brits suggested that many lawyers appeal and do not follow up the case.

Adv de Lange told Mr du Rand that his Department had a lot of work to do and a lot more information to obtain, but that the report took a step in the right direction. He gave Mr Brits a chance to address the Committee.

Mr Brits stated that the submission was put together on short notice and that the information was not complete as the information from three divisions was not reported and two other divisions were incomplete. The number 4 075, listed as the accepted criminal appeals applications, therefore, has been understated.

He listed the Legal Aid Board's three major problems with relation to staff members.
-The salaries are not competitive. The Legal Aid Board is attempting to raise salaries to the equivalent levels of the National Prosecuting Authority.
-Most of the professional staff is hired on a contract basis, and many of the lawyers hired are entering the legal profession and practising at a young age.
-Certain sectors have resisted the idea of salaried legal practitioners.

Adv de Lange stated that the third problem should not be an issue. He was angered at the notion that Legal Aid lawyers were not trusted by the judiciary. The Legal Aid Guide should clear up this problem. If it does not, Parliament will take the matter to court if need be. This is unacceptable.

Mr Brits added that there was no legal impediment to them practising, but that it had been suggested that private practitioners were superior.

Adv de Lange was adamant that this had to be stopped. He posed that the scenario was interesting since most of the Legal Aid Board lawyers are black law students that were kept out of jobs at white firms. He acknowledged that many were young and were learning on the job, but that they would become quality attorneys with experience. He was distraught by the racial implications of these statements.

Adv de Lange wanted to be updated on this situation and reiterated that Parliament would take the matter to court if it had to.

The Chairperson turned his attention back to Mr du Rand and summarised the Department's tasks. In addition to compiling more detailed and reliable information concerning the appeals process, the Department should assemble a team to deal with the court challenges that will arise.

Mr du Rand responded that a Court Operations Centre was being formed within the Department.

Adv de Lange reminded the Committee that they would participate on an oversight visit from 29 April to 7 May. They would visit and observe a police station, prison, and court in one region to get a better sense of the criminal justice system.

Mr du Rand was aware of the fact that the Department had already begun planning for the visit.

The meeting was adjourned.

Appendix:
LEGAL AID BOARD
REPORT TO THE JUSTICE PORTFOLIO COMMITTEE
19 MARCH 2003

Subject: Criminal Appeals

1. Introduction.
The Legal Aid Board is requested to report to the Justice Portfolio Committee on the impact of the 'Steyn' judgement.

2. Applications for Legal Aid
During the period 1 January 2002 - 28 February 2003, the Legal Aid Board received 5895 applications for legal aid for criminal appeal. This figure, and the statistics that follow hereunder1 do not include the Northern Cape Division, the Transkei Division or the North West Division from which areas statistics were not timeously received. The figures in respect of the Transvaal Provincial Division are also understated in that January and February 2002 are not included. In respect of the Durban and Coast Local Division, the figures for January and February 2003 have been omitted.

3. Applications granted
Of the various application received, 4 075 were granted. The 2002 Legal Aid Guide introduced a provision to the effect that the Legal Aid Officers should reject applications for legal aid in respect of a criminal appeal made more than six months after sentence. Legal aid applicants have the right to appeal to the CEO setting out reasons why they believe that, despite the gross failure to comply with the Uniform Rules, a court will nevertheless grant condonation.

4. Judicare Legal Aid instructions
Judicare instructions were granted in 2 206 matters. At an average cost per matter of RI 221 (excluding VAT), this represents a commitment of R2 693 526,00. The relatively high number of judicare instructions is directly related to the difficulties experienced in recruiting suitably experienced professional staff for the High Court units of the Legal Aid Board. The Legal Aid Board's planning is that at each seat of the High Court, its local Justice Centre should incorporate a High Court unit to handle criminal trials and appeals in the High Court as well as other High Court work.

5. Instructions dealt with by Justice Centres
Justice Centres were instructed in respect of 1 807 criminal appeals. At and average cost per matter of R453 (excluding VAT), this represents a commitment of R818 571,00.

6. Justice Centre Appeals enrolled as at 18 March 2003
Justice Centres reported having enrolled 974 appeals as at 18 March
2003. The vast majority of these relate to the Transvaal Provincial
Division and the Witwatersrand Local Division, where the Legal Aid
Board's High Court units have been in existence for longer.

7. Justice Centre Appeals being prepared as at 18 March 2003
Justice Centres reported being in the process of preparing 444 appeals as at 18 March 2003. Again, the vast majority of these relate to the Transvaal Provincial Division and the Witwatersrand Local Division.

8. Justice Centre Appeals ready to be enrolled as at 18 March 2003
Justice Centres reported 299 appeals ready to be enrolled as at 18 March 2003.

9. High Court backlogs
Information available to the Legal Aid Board indicates the following approximate backlogs.
a. Venda Division - 103
b. Transvaal Provincial Division - 880 (with a further 1 000 waiting to be set down)
c. Witwatersrand Local Division - 1 400
d. North West Division - unknown
e. Eastern Cape Division -300

f. Transkei Division - nil (this figure is artificial because no appeals are prepared because the Registrar claims to have no funds for the transcription of records. The local prison has a list of 315
prisoners who wish to appeal)
g. Ciskei Division - nil
h. Free State Provincial Division -600
I. Cape of Good Hope Provincial Division - unknown but the rolls are full until after April 2004.
j. Northern Cape Division - 18
k. Natal Provincial Division - 302 (Pietermaritzburg - 76; Durban -226)
Supreme Court of Appeal - appeals 34, petitions -41

10. Comments
a.
In KwaZulu Natal, High Court units connected to the Durban and Pietermaritzburg Justice Centres commenced operating on 1 March 2003. These units anticipate being able to absorb and deal with the relatively moderate backlogs in that province.
b. In addition to the problems with transcriptions, the advocates of the Transkei Bar are in general unwilling to take on legal aid criminal appeals, believing that the fees provided in the Legal Aid tariff are insufficient.
c. Several centres report difficulties in obtaining records.
d. There is a low rate of success, possibly as low as 10%, with the reinstatement of the automatic right of appeal after the 'Steyn 'case.
e. Several centres report a growing awareness amongst prisoners of their right to appeal.
f. The capacity of some divisions of the High Court to handle the existing load of criminal appeals timeously appears to be overstrained. This is probably serving as a brake on the growth in criminal appeals, which would otherwise be more rapid.

Peter Brits
Legal Support Services Executive

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