Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
24 February 2009

Concourt: elitist or pro-poor?

A reader pointed out that this morning on TV a person said that the Constitutional Court was not accesible to the poor, suggesting that poor people do not have faith in the Constitutional Court. This is an important issue: all South Africans must feel that they have access to the legal system for that legal system to gain legitimacy and for it not to be undermined by unscrupolous politicians (of which there are many waiting in the wings – Julius are you listening?).

Sadly very few people who are not rich have real access to the legal system. If one is indigent and is charged with a serious crime you will be ¨lucky¨ enough to get a Legal Aid Board Lawyer. Although I cannot make a generalisation, the Legal Aid lawyers I have seen in action were really, really bad. One guy I saw in action cross examined his client in a bail application and the magistrate had to stop him because he was incriminating his own client.

And, of course the Legal Aid Board gives very little money to civil litigation cases (although there has been a slight improvement in the past year or two). But lawyers are expensive: I imagine Mr Jacob Zuma`s Senior Councel would charge at least R15 000 to R20 000 a day. Given the fact that both criminal cases and civil cases can only be dealt with properly if one spends many days – even weeks – preparing for them, this means that most people on a salary will not be able to get access to lawyers and will be exposed to the system.

Access to justice is one of the things the ANC has spoken about – also at Polokwane – but sadly ithe ANC government does not seem to want to put its money where its mouth is. (Or is this a case of the famous two centres of power?) When the ANC speaks of access to justice it often uses this as shorthand for the transformation of the legal profession and the packing of courts with ANC lackeys.

But whether a black judge or white judger hear your case, or whether the judge is a ANC man or a closet Helen Zille fan, if you do not have access to lawyers you are going to be in trouble, so this kind of transformation is not going to help the poor.

What is required is for the government – via the Legal Aid Board – to put far more money into legal aid for poor people – both in criminal and civil matters. But once Mr Zuma is elected I am sure this issue will again be forgotten and access to justice will once again become shorthand for a judiciary transformed in the image of the ANC.

Meanwhile only 30 or so cases a year get to the Constitutional Court, but this does not seem to me to be the big problem. The Constitutional Court makes law and every case it hears sets a precdent that can affect millions of South Africans. So while the Women`s Legal Centre could take Ms Bhe`s case to the Constitutional Court, millions of women who live in customary law relationships and were discriminated against because of that benefited from this judgment.

As the Bhe case demonstrates, if one has a precedent setting case, the chances are good that one will be able to pursuade an NGO to take on your case – all the way to the Constitutional Court if necessary. The fact that most poor people do not have access to the Constitutional Court is therefore not the problem. The problem is that ordinary people do not have access to the legal system in a way that would make the legal system work for them.

The real problem is therefore that ordinary people who need the law to protect them against discrimination and exploitation feel helpless in the face of a legal system that seems incomprehensible, inaccessible and heartless. And the only thing that is going to change that is money, money, money. After all, lawyers – like doctors – would not work for free, now would they?

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