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Other legal role-players and structures
Legal practitioners
The legal profession is divided into two branches– advocates and attorneys – that are subject to
strict ethical codes.
Advocates are organised into bar associations
or societies, one each at the seat of the various
divisions of the High Court.
There are voluntary associations of advocates such as the General Council of the Bar of South Africa and other formations of independent bars. There are four regional societies for attorneys, each made up of a number of provinces. A practising attorney is ipso jure (by the operation of the law) 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 a voluntary association established to coordinate the various regional 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) [PDF], provides for alternative routes for admission as an attorney, should a person not be qualified and accepted as an attorney yet. One of these is that 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, 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.
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Services of the Master of the High Court
The Office of the Master remains one of the key service-delivery programmes as it impacts on the vulnerable members of society. The department provides appropriate skills to the staff in the masters' offices to improve turnaround times.
The Department of Justice and Constitutional Development provides for the following services of the Master of the High Court:
- deceased estates
- liquidations
- registration of trusts
- administration of the Guardian's Fund.
Each year, the value of estates under the supervision of the masters' office amounts to about R18 billion. This includes some R6,7 billion in the Guardian's 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 Guardians' Fund
- assess estate duty and certain functions with regard to estate duty
- accept and take custodianship of wills in deceased estates
- act as an office of record.
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Deceased estates
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 ensures all South Africans are treated equally, and that the dignity of each person is restored.
The institutional structures are the following:
- The Chief Master heads the national office and is responsible for coordinating all the activities of the masters' offices.
- There are masters' offices in Bhisho, Bloemfontein, Cape Town, Durban, Grahamstown, Johannesburg, Kimberley, Mahikeng, 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. Masters' representatives are only appointed in intestate estates of R50 000 or less, in terms of Section 18(3) of the Administration of Estates Amended Act, 2002 (Act 47 of 2002) [PDF].
A cooperation agreement was signed with Legal Aid South Africa in which it undertakes to assist in the administration of deceased estates where minor heirs are concerned. The cooperation agreement is part of the Master's drive to identify measures continuously to ensure the protection of vulnerable and poor people, especially in the administration of estates. The agreement gives Legal Aid South Africa a mandate to protect children and minors' interests by administering estates on their behalf. It regulates the provision of administration of estates where minors are heirs and qualify for assistance.
The Master's services have been extended to widows who entered into customary marriages without their registration at the Department of Home Affairs. Although registration of a customary marriage is peremptory in terms of the Customary Marriages Act, 1998 (Act 120 of 1998) [PDF], Section 4(9), which provides that failure to register a customary marriage does not affect the validity of that marriage. It makes no difference whether the customary marriage was concluded before or after the Act.
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On 26 December 2004, the Mental Healthcare Act,
2002 (Act 17 of 2002) [PDF], came into effect, repealing
the Mental Health Act, 1973 (Act 18 of 1973) [PDF].
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 was
done in the past.
In terms of the Prevention of Organised Crime
Act, 1998 (Act 121 of 1998) [PDF], the Master also appoints curators in
these estates to administer the assets of persons
and legal entities attached by the Asset Forfeiture Unit, in terms of
a court order.
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Guardian’s Fund
The fund holds and administers funds that 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 a usufructuary, fiduciary or fideicommissary nature.
The money in the Guardian's Fund is invested with the Public Investment Corporation 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.
The computerisation of the administration of the Guardian's Fund allows for more accurate reporting on the activities of the fund and reduces the opportunity to manipulate the system for purposes of committing fraud and corruption.
The department aims to ensure that 80% of the beneficiaries receive their entitlements within 40 days of submitting their applications from the Guardian's Fund.
The Department of Home Affairs developed the online Home Affairs National Identity System.
This system has been made available to masters of the Supreme Court to verify the identity of claimants against the Guardian's Fund. The Guardian's Fund has the Master's Own Verification IT that is linked to the Department of Home Affairs, and which verifies identities within three minutes. The system proved most valuable when tested in the pilot sites of Pretoria, Pietermaritzburg and Cape Town; and further roll-out to the remainder of the masters' offices and 402 service points is planned.
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Justice College
The Justice College is the training branch of the Department of Justice and Constitutional Development. It has a range of training interventions, which target:
- prosecutors
- masters of the High Court
- family advocates
- court interpreters
- legislative drafters
- registrars of the High Court
- clerks
- court and area court managers
- administration personnel
- other legal professionals.
The college has evolved into two distinctive institutions with the coming into effect
of the South African Judicial Education Institute Act, 2008 (Act 14 of 2008) [PDF] came into effect.
The training offered by the college assists in capacitating the department's officials both in terms of the acquisition of knowledge and the demonstration of requisite skills in the workplace.
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Office of the Family Advocate
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 parental rights and responsibilities of fathers of children born out of wedlock.
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.
The sections of the Children’s Act, 2005 [PDF] which came into operation on 1 July 2007, have significantly 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 now obliged to mediate their disputes before resorting to litigation, and unmarried fathers can approach the Family Advocate directly for assistance without instituting any litigation at all.
In addition, children's rights to participate in, and consult on, decisions affecting them have been entrenched and the Family Advocate is the mechanism whereby the voice of the child is heard.
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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 made recommendations to government in respect of reparations to victims and measures to prevent the future violation of human rights and abuses.
Four categories of recommendations were approved by government in June 2003 for implementation, namely:
- final reparations: the provision of a once-off individual grant of R30 000 to individual TRC-identified victims
- symbols and monuments: academic and formal records of history, cultural and art forms, as well as erecting symbols and monuments to exalt the freedom struggle, including new geographic and place names
- medical benefits and other forms of social assistance: education assistance, provision of housing and other forms of social assistance to address the needs of TRC-identified victims
- community rehabilitation: rehabilitating whole communities that were subject to intense acts of violence and destruction, and which are still in distress.
The TRC Unit, located within the Department of Justice and Constitutional Development, was established in 2005 to monitor, coordinate and audit the implementation of the TRC's recommendations.
The TRC identified 21 769 people as victims of human-rights violations. Of these 16 837 applied for reparations.
By June 2011, 15 962 beneficiaries had been paid once-off grants of R30 000 as a final reparation. These payments are made from the President's Fund, established in terms of Section 42 of the Promotion
of National Unity and Reconciliation Act, 1995
(Act 34 of 1995) [PDF].
The fund is located within the Office of the
Chief Financial Officer in the Department of Justice and Constitutional Development.
The department has experienced difficulties tracing some of the beneficiaries because of incorrect or changed addresses, or in some cases where the victims had died.
The database of the Independent Electoral Commission and the South
African Social Security Agency (Sassa) was used to send letters to beneficiaries. In 2011, a process to verify those traced was underway. The Department of Justice and Constitutional Development developed Regulations on Exhumation, Reburial and Symbolic Burial of Missing Persons, which were finalised in 2010. Monies in the President's Fund can be accessed for exhumation and reburial purposes. The regulations provide mainly for the following allowances:
- travel and subsistence for exhumations for a maximum of four people
- a once-off grant of R17 000 for the reburial, or a once-off grant of R8 500 for a symbolic burial.
The regulations also provide for their retrospective application. This is to ensure that families who buried the remains of their family members before the date of implementation of the regulations, and who have not received any assistance through other avenues, also receive assistance. By June 2011, 36 out of 39 families had been paid.
The department developed two sets of draft regulations in conjunction with the departments of basic education and higher education and training, which deal with assistance to TRC victims.
The department also developed and gazetted draft regulations related to physical and mental health assistance to victims.
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Special Investigating Unit
The SIU, created in terms of the SIU and
Special Tribunals Act, 1996 (Act 74 of 1996) [PDF], is an independent
statutory body that is directly accountable
to Parliament and the President of South Africa. It
was established to conduct investigations at the
President’s request, and to report to him on the
outcomes of these.
The SIU functions in a manner similar to a
commission of inquiry, in that the President refers
cases to it by way of a proclamation. It may investigate
any matter set out in Section Two of the SIU
and Special Tribunals Act, 1996 regarding:
- serious maladministration concerning the
affairs of any state institution
- improper or unlawful conduct by employees of
any state institution
- unlawful appropriation or expenditure of public
money or property, and any unlawful, irregular
or unapproved acquisitive act, transaction,
measure or practice that has a bearing on state
property
- intentional or negligent loss of public money or
damage to public property
- corruption in connection with the affairs of any
state institution
- unlawful or improper conduct by any person
who has cause to or may cause serious harm
to the interest of the public or any category of
the public.
The unit can also take civil action to correct any
wrongdoing it uncovers during an investigation
and can therefore, for example, obtain a court
order to:
- compel a person to pay back any wrongful benefit received
- cancel contracts when the proper procedures were not followed
- stop transactions or other actions that were not properly authorised.
A critical factor contributing towards the success
of the SIU has been the development of an integrated
forensic service to state institutions that
requires an intervention to address allegations of
corruption, maladministration and fraud, which
include:
- forensic audit and investigation
- remedial
legal actions encompassing civil, criminal and disciplinary
action
- recommendation
and facilitation of systemic recommendations.
The SIU’s output-driven approach to investigations
is supported by an effective national
presence and excellent relations with other law
agencies such as the National Prosecution Service
(NPS), the core prosecuting division of the
NPA, and other attached divisions, such as the
Specialised Commercial Crime Unit (SCCU) in the
case of fraud and other related matters, and the
Asset Forfeiture Unit (AFU) in cases where the
powers of this unit are more suitable for recovering
the proceeds of crime.
By December 2011, the Siu had almost 1 000 individual investigations underway. Of these, nearly 600 were related to procurement, while 360 conflicts of interests on contracts valued at R3,5 billion were also under investigation.
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National Prosecuting Authority of South Africa
Overview
South African society post-1994 has been marked by profound political changes and the establishment of progressive legislation, policies and programmes that have served to lay the basis for a new society. Key milestones along the way have been the adoption of the Constitution in 1996 that outlined the formation of the NPA and Section 179 of the Constitution of the Republic of South Africa, 1996, which created a single NPA.
Also vital within the criminal justice system
(CJS) was the formation of the Office of the National Director of Public Prosecutions (NDPP), established in 1998.
The Office of the NDPP consists of deputy NDPPs, and special DPPs who head the specialised units – the Sexual Offences and Community Affairs Unit (Soca), the Special Commercial Crimes Unit (SCCU), Priority Crimes Litigation Unit (PCLU) and Office for Witness Protection (OWP).
These units were established through presidential proclamations relevant to their specific focus areas such as sexual offences, special commercial crimes and priority crimes litigation. The Asset Forfeiture Unit (AFU) was also created to ensure that the powers in the Prevention of Organised Crime Act, 1998 (Act 121 of 1998), to seize criminal assets are used effectively to remove the profits of crime.
Legislation governing the prosecuting authority is the NPA Act, 1998 (Act 32 of 1998) [PDF]. The Constitution, read with this Act, provides the prosecuting authority with the power to institute criminal proceedings on behalf of the State and to carry out any necessary functions incidental to instituting criminal proceedings.
The NPA Amendment Act, 2008 (Act 56 of 2008) [PDF], and the South African Police Service (SAPS) Amendment Act, 2008 (Act 57 of 2008) [PDF], provided for the dissolution of the Directorate: Special Operations (DSO). The DSO and SAPS Organised Crime Unit became a single agency known as the Directorate: Priority Crime Investigation (DPCI), within the SAPS. The Acts are expected to strengthen the investigative capacity of the police in relation to organised and serious crime.
While the core work of the NPA will remain prosecutions and being "the people's lawyer", the NPA Strategy seeks to ensure that the organisation becomes more proactive so as to:
- contribute to economic growth
- contribute to freedom from crime
- contribute to social development
- promote a culture of civic morality
- reduce crime
- ensure public confidence in the CJS.
National Prosecutions Service (NPS)
A significant majority of the NPA's prosecutors are housed in the NPS, the organisation's biggest unit. The NPS is headed by the Deputy Directors of Public Prosecutions (DPPs). They head the respective regional jurisdictions, which are attached to the high courts of the country.
All the public prosecutors and state advocates manning the district, regional and high courts report to the DPPs in their respective areas of jurisdiction.
Office for Witness Protection
The OWP was created in 2001, in terms of the Witness Protection Act, 1998 (Act 112 of 1998) [PDF].
The OWP provides a support service to the CJS by protecting threatened or intimidated witnesses and related persons by placing them under protection, ensuring that they testify in criminal and other defined proceedings. The OWP has maintained a proud record of no witnesses or family members in the programme being harmed or threatened since the office was established.
Asset Forfeiture Unit
The AFU was created in 1999 in terms of the Prevention of Organised Crime Act, 1998 (Act 121 of 1998) [PDF]. The unit focuses on restraining and forfeiting the proceeds of crime or the property used to commit crime. The AFU has two major strategic objectives, namely to:
- develop the law by taking test cases to court and creating the legal precedents necessary to allow for the effective use of the law
- build capacity to ensure that asset forfeiture is used as widely as possible to have a real effect in the fight against crime.
Specialised Commercial Crime Unit
The SCCU was established in 1999 as a pilot project to combat the deteriorating situation pertaining to commercial crime. The SCCU aims to reduce commercial crime by the effective investigation and prosecution of complex commercial crime.
The SCCU's mandate is to effectively prosecute complex commercial crime cases emanating from the commercial branches of the SAPS. The client base of the SCCU comprises a broad spectrum of complainants in commercial cases, ranging from private individuals and corporate bodies to state departments.
Priority Crimes Litigation Unit
The PCLU is a specialist unit mandated to tackle cases that threaten national security. The PCLU was created by Presidential proclamation and is allocated categories of cases either by the President or by the NDPP. 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 Statue of Rome
- national and international terrorism
- prosecutions of persons who were refused or failed to apply for amnesty in terms of the Truth and Reconciliation Commission (TRC) processes.
Sexual Offences and Community Affairs Unit
Soca 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 unit'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).
The TCC concept is recognised by the UN General Assembly as a "world best-practice model" in the field of gender-violence management and response. The TCCs are one-stop facilities located in public hospitals in communities where the incidence of rape is particularly high.
The TCCs aim to provide survivors with a broad range of essential services – from emergency medical-care counselling to court preparation – in a holistic, integrated and victim-friendly manner.
By December 2011, there were 27 fully operational TCCs in the country.
The Thuthuzela Project is supported by the roll-out of victim support rooms (VSRs) in an effort to show empathy to victims of violent crime, especially in cases of sexual offences, child abuse and domestic violence. In 2011, the department increased the number of VSRs from 806 to 900 across the country. These rooms are used for interviews, taking statements and other consultations.
Source: South Africa Yearbook 2011/12
Editor: D Burger. Government Communication and Information System
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Last modified: 12 December 2012 13:36:36. |
