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Other legal role-players and structures
Legal practitioners
The legal profession is divided into two branches - advocates
and attorneys - who are subject to a strict ethical code.
Advocates are organised into Bar associations or societies,
one each at the seat of the various divisions of the High Court.
The General Council of the Bar of South Africa is the
co-ordinating body of the various Bar associations. There is a
law society for attorneys in each of the provinces. A practising
attorney is ipso jure a member of at least one of these
societies, which seek to promote the interests of the
profession.
The
Law Society of South Africa is the co-ordinating body of
the various independent law societies.
In terms of the
Right of Appearance in Courts Act, 1995 (Act
62 of 1995) [PDF], advocates can appear in any court, while attorneys
may be heard in all of the country's lower courts and can also
acquire the right of appearance in the superior courts. Attorneys who wish to represent their clients in the High
Court are required to apply to the registrar of a provincial
division of the High Court. Such an attorney may also appear in
the Constitutional Court. All attorneys who hold an LLB or equivalent degree, or
who have at least three years' experience, may acquire the right
of audience in the High Court.
The Attorneys Amendment Act, 1993 (Act 115 of 1993), provides
for alternative routes for admission as an attorney. One of
these routes is that a persons who intend to be admitted as
attorneys and who have satisfied certain degree requirements
prescribed in the Act are exempted from service under articles or
clerkship. However, such persons must satisfy the society
concerned that they have at least five years' appropriate
legal experience.
State law advisers give legal advice to ministers, government
departments and provincial administrations and a
number of statutory bodies. In addition, they draft Bills and
assist the minister concerned with the passage of Bills through
Parliament. They also assist in criminal and constitutional
matters.
Other legal practitioners
In terms of the
National Prosecuting Authority (NPA) Act, 1998 (Act 32 of 1998) [PDF], state advocates and
prosecutors are separated from the Public Service in
certain respects, notably by the determination of salaries.
State attorneys derive their power from the State
Attorney Act, 1957 (Act 56 of 1957), and protect the interests
of the State in the most cost-effective manner possible. They do this by acting on behalf of the State in legal matters
covering a wide spectrum of the law.
State attorneys draft contracts
for the State and also act on behalf of elected
and appointed officials acting in the performance of their
duties, e.g. civil and criminal actions instituted against
ministers and government officials in their official capacities.
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Masters of the High Court
The Master of the High Court is involved with the
administration of justice in estates of deceased persons and
those declared insolvent, the liquidation of companies and close
corporations, and the registration of trusts.
Each year, the value of estates under the supervision
of the masters’ offices amounts to about
R18 billion. This includes about R4 billion in the
Guardians' Fund.
The key statutory functions of the masters’ offices are to:
- control the administration of deceased and
curatorship estates
- control the administration of insolvent estates and
the liquidation of companies and close corporations
- control the registration and administration of both
testamentary and inter vivos trusts
- manage the Guardian's Fund
- assess estate duty and certain functions with regard
thereto
- accept and take custodianship of wills in deceased
estates
- act as an office of record.
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Deceased estates
On 15 October 2004, the Constitutional Court
declared Section 23 and regulations of the Black
Administration Act, 1927 unconstitutional.
In 2005, legislation to repeal the Black
Administration Act, 1927 was finalised. This decision implied that the Master of the High Court takes over the powers of supervision in all
deceased estates, and that all estates have to be
administered in terms of the Administration of
Estates Act, 1965 (Act 66 of 1965), as amended.
All
intestate estates must be administered in terms of
the Intestate Succession Act, 1987 (Act 81 of
1987), as amended. This will ensure that all South Africans are treated
equally, and that the dignity of each person is
respected.
The institutional structures are the following:
- The Chief Master heads the national office and is
responsible for co-ordinating all the activities of
the masters’ offices.
- There are masters’ offices in Bhisho, Bloemfontein,
Cape Town, Durban, Grahamstown, Johannesburg,
Kimberley, Mafikeng, Polokwane, Port Elizabeth,
Pietermaritzburg, Pretoria, Thohoyandou and
Mthatha.
- Suboffices are located in places where the High
Court does not have a seat, but where workloads
require the presence of at least one assistant
master.
- At service points, officials attached to the
Branch: Court Services deliver services on behalf
of, and under the direction of, the Master. Each
magistrate’s court is a service point. Each service
point has at least one designated official
who is the office manager or a person of equal
rank. They only appoint masters’ representatives
in intestate estates of R50 000 or less, in terms
of Section 18(3) of the Administration of Estates Amended Act, 2002 [PDF] (Act 47 of 2002).
[ Top ] Curatorships
On 26 December 2004, the Mental Healthcare Act,
2002 [PDF] (Act 17 of 2002), came into operation, recalling
the Mental Health Act, 1973 [PDF] (Act 18 of 1973).
The new Act provides that where a person falls
within the ambit of this Act, the Master can appoint
an administrator to handle the affairs of the person.
The administrator, in this instance, replaces the
appointment of a curator, as done in the past.
In terms of the Prevention of Organised Crime
Act, 1998 [PDF] (Act 121 of 1998), the Master also appoints curators in
these estates to administer the assets of persons
and legal entities attached by the Asset Forfeiture Unit (AFU), in terms of a
court order.
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Guardian’s Fund
The fund holds and administers funds, which are
paid to the Master on behalf of various persons,
known or unknown.
These include minors, persons
incapable of managing their own affairs, unborn
heirs, missing or absent persons, or persons
having an interest in the money of an usufructuary,
fiduciary or fideicommissary nature.
The money in the
Guardians' Fund is invested
with the Public Investment Commission and is audited
annually. Interest is calculated monthly at
a rate per year determined from time to time by the
Minister of Finance. The interest is compounded
annually at 31 March. Interest is paid for a period
from a month after receipt up to five years after it
has become claimable, unless it is legally claimed
before such expiration.
Five years after the money has
become claimable, the Master pays the unclaimed
money to the Receiver of Revenue Payment
Register. This does not mean that the owner of the
money cannot claim the money from the Guardian’s
Fund. However, 30 years after the
money has become claimable, the money is forfeited to the State. Every September, the master
advertises unclaimed amounts in the Government
Gazette.
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Rules Board for Courts of Law
The Rules Board for Courts of Law was established
by the Rules Board for Courts of Law Act, 1985 (Act
107 of 1985) [PDF], to review the rules of court and to
make, amend or repeal rules, subject to the
approval of the Minister of Justice and
Constitutional Development.
The Rules Board Secretariat provides secretarial
and administrative support to the board. The
secretariat also conducts research into the rules of
court.
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Justice College
The Justice College provides vocational training to
all officials of the Department of Justice and Constitutional Development. It also presents
training to autonomous professions such as magistrates and
prosecutors.
Training is integral to the department’s efforts to
widen and improve citizens’ access to justice, enable the department to meet its strategic
objectives and empower employees to heighten
their performance. The
Justice College is being transformed by reviewing
governance structures, processes and systems, and
revamping the curriculum to ensure that the college
serves the training and development needs of all its
stakeholders.
The transformed college will extend training to all
professionals and officials of the department,
including state attorneys, masters, family advocates,
registrars, court managers and interpreters.
Training interpreters is also a departmental
priority. The college continues presenting courses
that focus on complex concepts including, but not
limited to, environmental crimes; cyber crimes; the
National Credit Act, 2005 (Act 34 of 2005) [PDF]; and
developing terminology in indigenous languages.
The college is developing curricula on crosscutting,
non-legal, but essential training
programmes, such as management and leadership,
project management, service excellence and
general administrative training.
[ Top ]
Office of the Family Advocate
The role of the Family Advocate is to assist the
courts in establishing the best interest of minor
children in civil legal disputes involving such
children.
The Family Advocate derives its duties and
obligations from the Mediation in Certain Divorce
Matters Act, 1987 (Act 24 of 1987), and other
related legislation. In certain instances, the Family
Advocate also assists the courts in matters
involving domestic violence and maintenance.
The Office of the Chief Family Advocate is the
designated central authority regarding the
implementation of the Hague Convention on the
Civil Aspects of International Child Abduction, to
which South Africa became a signatory in 1996.
Under this Act, the Chief Family Advocate assists
in securing the return of, or access to, children
abducted or unlawfully retained by their parents or
caregivers.
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Legal Aid Board
By mid-2007, the Legal Aid Board has completed the roll-out of a
national infrastructure of four regional offices, 58
justice centres, 35 satellite offices and 13 high-court
units. It employs
more than 1 700 staff of whom more than 1 300
are legal professionals.
The LAB continues to provide legal assistance
to the indigent, in accordance with the Constitution and other legislative requirements. This is done through a system of in-house outsourcing to private
lawyers (a system of judicare) and co-operation
partners.
With its national infrastructure in place, the LAB
focuses on improving access to clients and communities,
and on improving the quality of delivery of
legal services.
The LAB and the South African Police Service (SAPS) are working on systems that
will allow legal-aid applications to be submitted
electronically from police stations, to facilitate
access to legal representation and ensure that
arrested people have legal representation when
they first appear in court. This is expected to reduce
delays caused by accused people having to find
attorneys.
As a public defender in criminal matters, the LAB
is important in defending indigent accused people
and protecting children’s rights. In 2006/07, the
LAB defended and protected the interests of
indigent and vulnerable people in some 400 000
cases, which was 15% more than the case load
handled in 2005/06.
In 2007/08, R574 million was granted to the LAB
to continue providing public defender services in
courts across South Africa. This represented an
additional R20 million allocated to the LAB for
2007/08, which will enable improvements in
service delivery and increases to the legal services’
capacity for service delivery at LAB centres
countrywide.
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Public Protector
The Public Protector was established in terms of
Chapter Nine of the Constitution to strengthen
constitutional democracy. The Public Protector
investigates any conduct in state affairs or public
administration (including national, provincial and
municipal administrations, or government entities
such as Eskom and Transnet) that is suspected to
be improper or that results in impropriety or
prejudice. The Public Protector may not investigate
court decisions.
Despite the high-profile cases involving
politicians that have been investigated, most of the
office’s work involves complaints from people in
townships, shack dwellers and those in rural areas
who are struggling to access services to which they
are entitled.
Some of the cases investigated include long
delays in pension payouts from government and
parastatals; the adverse impact of a decision or
policy on individuals, institutions or groups; denial
of access to information, and insufficient reasons
provided for a decision taken.
With a staff complement of about 200, the Public
Protector resolves about 17 000 cases per year. The
bulk of the cases are resolved within three months.
The Public Protector’s services are free and
available to anyone who has a complaint.
Complainants’ names are kept confidential as far
as possible.
The President appoints the Public Protector on
recommendation of the National Assembly and in
terms of the Constitution for a non-renewable
period of seven years. The Public Protector is
subject only to the Constitution and the law, and
functions independently from government or any
political party. No person or organ of state may
interfere with the functions of the Public Protector.
The Public Protector has the power to report a
matter to Parliament, which will debate it and
ensure that the Public Protector’s recommendations
are followed.
[ Top ]
Magistrate's Commission
The Magistrate's 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.
The commission also attends to grievances, complaints and
misconduct investigations against magistrates.
It advises the
Minister of Justice and Constitutional Development on matters such as the appointment of magistrates,
promotions, salaries and legislation.
The commission has established committees to deal with
appointments and promotions; misconduct, disciplinary inquiries
and incapacity; grievances; salary and service conditions; and
the training of magistrates.
[ Top ]
South African Law Reform
Commission (SALRC)
The SALRC is an independent statutory body,
established by the SALRC Act, 1973 (Act 19 of
1973) [PDF]. The SALRC and its secretariat are responsible
for research in respect of the law of South
Africa with a view to advising government on the
development, improvement, modernisation and
reform of the law of South Africa in all its facets by
performing, among other things, the following functions:
- executing the law-reform programme of the
SALRC by conducting legal research, including
legal comparative research, by developing proposals
for law reform and, where appropriate, by
promoting uniformity in the law
- preparing legislative proposals
- establishing a permanent, simplified, coherent
and generally accessible statute book, complying
with the principles of the Constitution
- consolidating or codifying any branch of the law
- assisting parliamentary committees during the deliberation of draft legislation emanating from
the SALRC
- advising ministers and state departments on
proposed legislation and recommendations of
the SALRC.
The commission’s investigation into statutory law
revision is one of considerable magnitude that
Cabinet has endorsed. It requires scrutiny of all
post-1910 legislation for purposes of identifying
unconstitutional, redundant and obsolete
provisions.
As part of the investigation, the Discussion Paper
on the Review of the Interpretation Act, 1957 (Act
33 of 1957) was published for general information
and comment in October 2006.
An investigation into Hindu marriages from a
constitutional viewpoint is also conducted as part of
statutory law revision.
Another crucial issue that the commission is
investigating is human trafficking. The commission’s
investigation aims to develop legislative measures to
counter trafficking in persons.
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Judicial Service Commission (JSC)
In terms of the Constitution, the President, in
consultation with the JSC, 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 JSC.
In the case of the Chief Justice and the Deputy Chief
Justice, the leaders of the parties represented in the National
Assembly are also consulted.
The JSC was established in terms of Section 178 of the
Constitution to perform this function. It also advises
government on any matters relating to the judiciary or to the
administration of justice.
When appointments have to be made, the commission gives
public notice of the vacancies that exist and calls for
nominations.
The
JSC shortlists suitable candidates and invites them for interviews. Professional bodies and
members of the public are afforded the opportunity to comment
before the interviews or to make representations concerning the
candidates to the commission.
The JSC has determined
criteria and guidelines for appointments, which
have been made public.
The interviews are conducted as public hearings and may be
attended by anyone who wishes to do so. Following the
interviews, the JSC deliberates and makes its decisions in
private. Its recommendations are communicated to the President,
who then makes the appointments.
[ Top ]
South African Human Rights Commission (SAHRC)
In terms of Section 184(1) of South Africa’s
Constitution, the SAHRC must:
- promote respect for human rights and a culture
of human rights
- promote the protection, development and attainment
of human rights
- monitor and assess the observance of human
rights in South Africa.
The operations of the SAHRC consist of the
following programmes:
- Strategic Management and Support Services
- Commissioners
- Education, Training and Public Awareness
- Legal Services
- Research and Documentation
- Parliamentary Liaison and Legislation and Treaty
Body Monitoring
- Information and Communication
- Special Programmes
- Co-ordinators
- Civil-Society Advocacy Project.
Structure
The SAHRC is made up of two sections: the
commission, which sets out policy; and a secretariat,
which implements policy. The Chairperson is overall
head, and the Chief Executive Officer is head of the
Secretariat, accountable for the finances of the
SAHRC and responsible for the employment of staff.
As set out in Section Five of the Human Rights
Commission Act, 1994 [PDF] (Act 54 of 1994), the SAHRC
has established standing committees to advise and
assist it in its work. The SAHRC appoints the
members of the standing committees, each of which
is chaired by a commissioner.
The SAHRC has also established provincial
offices to ensure its services are widely accesible.
Education and training
The objectives of the Education and Training
Subprogramme are to conduct training workshops,
seminars, presentations, and capacity-building
programmes on equality, economic and social
rights, promotion of access to information and
other focus areas of the SAHRC. The SAHRC
continues its collaboration with the Southern African Development Community (SADC) region.
Advocacy, public awareness and community
outreach
The SAHRC has developed the community-outreach
initiative, “Omnibus”. The Omnibus
encompasses a range of educational interventions
ranging from workshops, seminars, presentations,
site visits and walkabouts to widespread
campaigns, events and advocacy initiatives. The
annual Human Rights Week Campaign, built around
Human Rights Day on 21 March, continues to be
convened and organised under this subprogramme.
Legal Services
This subprogramme implements the commission’s
protection mandate and deals primarily with
complaints of human-rights violations in pursuance
of redress, monitoring the agencies of the justice
system and submitting recommendations, and
conducting hearings and public inquiries.
Research and Documentation
This subprogramme implements the commission’s
monitoring and assessment of the observance of
the human-rights mandate. It has three
components: the Equality Unit, the Economic and
Social Rights Unit and the Library.
[ Top ]
Commission on Gender Equality (CGE)
Chapter 9 of the Constitution provides for the establishment
of the
CGE. Section 187 of the Constitution specifically grants the CGE powers to promote respect for, and to protect, develop and attain gender equality.
The composition, functions and objectives of
the CGE are outlined in the CGE Act, 1996 (Act 39 of 1996) [PDF].
The CGE has the following powers and functions:
- developing, conducting or managing information
and education programmes to foster public
understanding of matters pertaining to the
promotion of gender equality and the role and
activities of the commission
- monitoring and evaluating the policies and practices of
state organs, statutory and public bodies, as well as the
private sector, to promote gender equality
- investigating any gender-related complaints received or on its own initiative
- liaising with institutions, bodies or authorities with
similar objectives
- conducting research to further the objectives of the CGE.
Complaints are received from the public at large
and dealt with either through personal
consultations, telephonically or in writing, including
electronically.
In cases where the complaint does not fall within
the CGE’s mandate, it may be referred to a relevant
institution or forum.
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Truth and Reconciliation Commission (TRC) Unit
The TRC was dissolved in March 2002 by way of
proclamation in the Government Gazette. The TRC
handed its final report to the President in March
2003.
The TRC made recommendations to government
in respect of reparations to victims and measures
to prevent the future violation of human rights. In
keeping with the presidential mandate given on 15
April 2003 in Parliament, the TRC Unit was
established in the Department of Justice and Constitutional Development in September 2005,
with a view to audit, monitor and co-ordinate the
implementation of the TRC’s recommendations and
render victim-support services.
The TRC Unit works closely with the President’s
Fund, which is located in the Office of the Chief
Financial Officer in the Department of Justice and
Constitutional Development. The President’s Fund
has been giving effect to the payment of both
urgent interim reparations and the once-off
individual grants of R30 000 each to the 16 837
victims who applied for reparations and were
approved by the TRC.
By March 2007, 15 610 beneficiaries had
received reparations. Of the 1 227 still to be paid,
357 were deceased and 260 were in the process of
being paid.
By March 2007, R50 million had been paid in
respect of urgent interim reparations and R469 million in respect of once-off individual
grants, amounting to a total of R519 million.
The TRC Unit’s activities also include the
engagement of TRC-identified victims and
organisations representing victims, as well as the
drafting of an exhumation policy in respect of
missing-person cases reported to the TRC. In
respect of the exhumation process, the TRC Unit
has rendered assistance to affected families
regarding applications for reparations and special
pensions (where relevant) and obtaining death
certificates. The Department of Justice and
Constitutional Development has also made ex
gratia payments of R15 000 each to contribute
towards reburial costs.
Efforts in this regard have included awareness
campaigns via the print and electronic media. The
Government Communication and Information System is also conducting door-to-door campaigns
via its regional structures.
The unit was facilitating the drafting of
regulations to enable access to the monies in the
President’s Fund, in accordance with the Promotion of National Unity and Reconciliation Act, 1995 (Act 34 of 1995) [PDF]. The remaining monies in the fund
will be used to implement broader reparation
programmes, including community rehabilitation.
Source: South Africa Yearbook 2007/08
Editor: D Burger. Government Communication and Information System
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Last modified: 18 April 2008 08:13:50. |
