Minister defends Legal Practice Bill Published in: Legalbrief Today

Category: Policy
Issue No: 3283

Justice and Constitutional Development Deputy Minister Andries Nel has refuted allegations that provisions in the Legal Practice Bill that seek to empower the Minister to appoint three members of the proposed Legal Practice Council out of a total of 21 are a deliberate move by government to control it, reports Legalbrief Policy Watch.

Reiterating government’s commitment to strengthening the independence, dignity, accessibility and effectiveness of the courts as part of the process of transforming the legal profession as a whole, Nel told the annual meeting of the Black Lawyers Association that ‘the untransformed state of the legal profession’ not only constitutes a ‘stumbling block’ to greater access to legal services and justice: it also impedes the further transformation of the judiciary.

While it will be the role of the Minister’s appointees to assist the council in its efforts to address this, they will not be in a position to drive the process. According to the Deputy Minister, ‘elites … who have done well under the current rules’ consider government attempts at transformation as ‘akin to … tyranny’, projecting themselves as victims. SA ‘s Constitution does not give an elite the right to carry out decisions ‘in an opaque way for their own benefit’, or to ‘permanently engage in … vices’ that prevent others from ‘ascending the ladders of the legal profession’, Nel said.
Full Legalbrief Policy Watch report

Immigration: SA still not dealing effectively with asylum seekers

SA attracts the largest number of asylum seekers in the world, but grants refugee status to very few, ranking only 36th in the world for the size of its refugee population, which the UN Refugee Agency (UNHCR) puts at about 58 000, notes an Irin report.

The Department of Home Affairs approved just 15.5% of the applications it processed in 2011, less than half the global average recognition rate of 38%, according to UNHCR.

Researchers and activists have repeatedly pointed to serious flaws in the country’s refugee status determination process, including the lack of individualised assessments, misapplications of both local and international refugee law, and high levels of corruption among Home Affairs officials. The government’s routine response has been that its asylum system is simply overwhelmed by the sheer number of applications it receives.

Source: LegalBrief

UN General Assembly Enacts Global Standards on Access to Legal Aid

The United Nations General Assembly has adopted the world’s first international instrument dedicated to the provision of legal aid. The new UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, approved on December 20, are groundbreaking: they represent some of the most progressive principles and guidelines on legal aid, that are grounded on the  emerging best practices and evolving jurisprudential and normative developments around the world.

The important components recognized include:

  • Prompt access to effective legal aid from the outset of police custody, through all stages of the criminal justice process;
  • A right to be informed about a right to legal aid and other procedural safeguards from the moment of deprivation of liberty and before any questioning, including of the right to remain silent;
  • The involvement of a range of legal aid providers including lawyers, paralegals, civil society group, and university legal clinicians and; and
  • The development of a nationwide legal aid system with designated legal aid management authorities that are sufficiently staffed and resourced and are independent from undue political pressure to ensure effective and quality legal aid services delivery.

NOTE: The Street Law South Africa founder and Chairman of the Board, Prof. David McQuoid-Mason, was involved in drafting the resolution discussed in this post as well as the Lilongwe Declaration on which it was based.

Inquiry into ‘Marikana Massacre’ opens in South Africa

A retired judge toured the spot where South African police killed 34 striking miners in August as he opened a judicial inquiry into the incident. Street Law Director Prof Steve Naidoo is part of the forensic investigation.

The hearing is being heard in the platinum belt city of Rustenburg, 120km northwest of Johannesburg, the town closest to the Lonmin-owned Marikana mine.

Ian Farlam has four months to uncover the events surrounding the 16 August “Marikana massacre”.

The incident sparked intense criticism not only of the police but also of mining bosses, unions, the ruling African National Congress and President Jacob Zuma.

The names of the 34 dead, most of them from the poor Eastern Cape province, were read out at the start of the inquiry before lawyers for the police, victims’ families and 270 miners arrested after the shootings locked horns over procedure.

The commission and its findings could be politically damaging to Mr Zuma and the ANC, especially if security forces are found to have been as trigger-happy and ruthless as their apartheid predecessors.

However, the inquiry’s four-month timetable means its final findings will come after an internal ANC leadership election in mid-December.

Mr Zuma is expected to be re-elected head of the ANC in the vote – teeing him up to win a second five-year term as South African president in 2014 – although he may face a serious challenge from Deputy President Kgalema Motlanthe.

As well as probing the 16 August shootings, the Marikana commission has a broader remit to look into labour relations, pay and accommodation in South Africa’s mines – issues seen as behind the wildcat strike that preceded the killings.

Source: http://www.rte.ie/news/2012/1001/south-africa-marikana.html

NCR disputes lawyers’ interpretation of in duplum rule

The National Credit Regulator (NCR) has differed with lawyers’ interpretation of a key piece of legislation which forms the lifeblood of SA’s debt collection industry, says a Moneyweb report. The conflict centres on the interpretation of the in duplum rule as contained within the National Credit Act (NCA) – and as sparked by a Moneyweb investigation which revealed an apparent abuse of unsecured borrowers by collection attorneys.

The NCR’s Lesiba Mashapa said the statutory in duplum caps the fees lawyers may charge in connection with the collection of loans. Under the NCA’s extended version of in duplum collection, costs – together with interest and other fees that accrue when the consumer is in default – should not exceed the unpaid balance of the capital amount of the loan. However, the report notes, Mashapa’s interpretation of the law differs fundamentally from the interpretation which is put into practice by the majority of collection attorneys.

Lawyers maintain that in duplum does not include lawyers’ fees, effectively allowing them to charge defaulters amounts well in excess of the principal amount of the loan. This interpretation has allowed for situations where SA workers had been charged apparently exploitative amounts – upwards of 10 times the principal – for the recovery of outstanding debt. By Mashapa’s interpretation, this practice – believed to be widespread – is illegal.

– Extract from Legal Brief, 27/09/2012