ATC140919: Report of the Portfolio Committee on Justice and Correctional Services on the Legal Aid Bill [B8-2014], dated 10 September 2014

Report of the Portfolio Committee on Justice and Correctional Services on the Legal Aid Bill [B8-2014], dated 10 September 2014:

The Portfolio Committee on Justice and Correctional Services, having considered the Legal Aid Bill [B8-2014], reports the Bill with amendments [B8A-2014].

The Committee reports further as follows:

1. The Portfolio Committee on Justice and Correctional Services (the Committee) welcomes the Legal Aid Bill which seeks to repeal the Legal Aid Act (Act No 22 of 1969). The 1969 legislation predates South Africa’s democracy, and was therefore not aligned with our Constitution. We believe that the proposed legislation will in defining Legal Aid South Africa’s powers, mandates and functions, and in formalising the establishment of the institution, accelerate the delivery of legal services (advice and representation) to all South Africans who cannot afford such services. Given the above-mentioned focus of the proposed legislation, we have recommended that the title be amended to read ‘Legal Aid South Africa Bill’.

2. The Committee has noted with growing concern the increased incidence of communities taking the law into their own hands, in defence of victims of crime who are considered to have had their rights disregarded in favour of those of the ‘criminals’ accused of having perpetrated crimes against them. We believe that this is the consequence of the perceived uneven implementation of sections 34 and 35 of the Constitution. This imbalance appears to have skewed the scale in favour of accused persons, while seemingly disregarding the rights and needs of victims of crime.

3. The Committee understands that limited resources constrain the type and extent of the services Legal Aid South Africa is able to provide. At present, Legal Aid South Africa provides professional legal advice and representation to those who cannot otherwise afford it, in criminal matters and, to a limited degree in civil matters. The focus has been on the Constitutional imperative to provide legal representation in criminal matters, while the obligation to ensure access to courts for ‘any dispute that can be resolved by the application of law’ (in section 34), also a Constitutional imperative, has been severely neglected.

4. That Legal Aid South Africa has in recent years embarked on a process of progressively expanding its civil work has been noted. The Committee however is acutely aware of the potential hardship the inability to afford legal services can cause those who require civil legal assistance. In order to increase access to justice for victims in particular, the allocation of additional resources for the expansion of civil work must receive the necessary attention.

5. The Committee is of the view that paralegals, and community law and advice centres play a major role in the area of public interest law by providing legal assistance to those who would not otherwise be able to access legal services. These structures assist in making legal services available to those in black townships and rural communities in particular, but their role is constrained by the lack of statutory recognition and the need for financial assistance.

6. We believe that to ensure greater access to legal services, paralegal services and community law and advice centres should be recognised, and regulated. In addition, organisations that provide such services should be provided with the necessary support in order for them to complement services provided by Legal Aid South Africa. If access to the legal profession, and to justice generally is to be improved, the statutory recognition of paralegal services has to be expedited. We recommend that legislation to this effect be prioritised, and emphasise that all relevant parties should be consulted during that process.

7. T he promotion of legal assistance through, amongst others, the recognition and adequate resourcing of paralegal services and community law and advice centres, and reaching a balance between legal aid for civil, as well as criminal matters, will contribute to establishing a less adversarial, and more inquisitorial approach to conflict resolution. The Committee believes that such an approach is integral to the success of restorative justice efforts.

Report to be considered.