BE FAIR: Democracy is undermined when those who are accused are denied the right to access legal representation because of public opinion, says the writer.

Patrick Hundermark

SOUTH Africa lives by the creed: “Innocent until proven guilty.” Yet, for many, the idea of justice being extended to all seems unpalatable in the light of our high crime rate – particularly in terms of growing frustration regarding the high rate of crimes against children.

The recent assault of an advocate, who travelled to rural Mpumalanga to defend the accused in the kidnapping and murder of a toddler, highlights this challenge. The advocate was assaulted by a mob in Tonga as they could not understand how he could represent suspected child killers.

The accused have been charged with murder following the disappearance of a three-year-old girl last year. Threatened with his life, the advocate thought he was going to die as the crowd kicked and hit him as they screamed for him to be killed, until police intervened.

Yet, despite being repeatedly assaulted outside the Tonga Magistrate’s Court, the lawyer is determined to proceed, saying that everyone is entitled to legal representation. “I can’t just abandon them,” he told reporters.

The rule of law remains an essential pillar of our democracy. Access to justice by everyone is a fundamental human right.

Without it, we cannot have a fair trial as this would undermine our criminal justice system and further erode respect for the rule of law.

Unfortunately, experience has taught us that not all accused persons are the actual perpetrators of the crime for which they have been charged. We have had experiences where the accused – despite their arrest by the police, as well as the communities’ strongly held views of guilt – are in fact shown not to be the perpetrators of the crime.

This happened to six accused in the Northern Cape a few years back, who, six months after their arrest for the murder and rape of a young child, were positively excluded as the perpetrators. The actual perpetrator was later arrested and convicted as a result of the DNA evidence.

A well-functioning justice system promotes a culture of human rights as it protects the rights of victims and witnesses in the criminal justice process. Access to representation ensures that justice can be served.

The process of a fair trial is there to protect the innocent, and communities should ask themselves the question: “What if it was my child who was accused, and he told me that he was innocent?” Would they not want him to have a fair trial in which he could prove his/her innocence? Surely they would want that for their own child.

As this includes access to representation, it would be untenable for lawyers to feel that taking on certain cases might endanger them and their families for simply doing their jobs. We must ensure that we separate our distaste for the crime from those involved in the process.

Surely, we want the actual perpetrator to be held to account for their deeds, and not an innocent person who is incorrectly accused of committing the crime.

We can acknowledge the frustration that members of the community might have in accessing justice for victims. It is true that South Africa faces major challenges in access to quality legal services, but we have come a long way from the days when South Africans were refused access to justice during apartheid.

We can never return to the situation where innocent people are convicted and suppressed without the benefit of competent legal representation merely because they are poor. Our constitution is a “never again” promise to all South Africans.

We know that the justice system is under-resourced, with a scarcity of legal representation in poor rural areas. South Africa is marked by inequality. Contrast the access to justice for the rich with that of the poor. However, we need to ensure that everyone can access legal services.

The Law Society of South Africa estimates that there are about 22 500 lawyers in the country – about one attorney to every 2 350 people. But these are mostly practising in urban areas.

Through its coverage of all criminal courts in South Africa, Legal Aid SA ensures that all persons who qualify for legal aid are represented in criminal matters. This objective of ensuring a fair trial for the poor is only undermined if practitioners are discouraged from representing accused persons such as happened in Tonga.

This does not serve justice. What serves justice is an effective criminal justice system whereby a crime is reported, properly investigated, and the perpetrator convicted by a competent court after a fair trial, which includes the right to competent legal representation.

Many destitute, marginalised and vulnerable persons have been assisted as a response to calls from citizens for increased legal services. The aim of Legal Aid SA is to provide access to justice for all through decreasing the challenges brought by the high cost of legal services, undue delays and excessive formalities within the legal process.

According to the SA Human Rights Commission, the right to access justice has the potential to foster an egalitarian and transformed society, where everyone’s fundamental human dignity is respected and protected.

We know that if we are to deal with South Africa’s structural inequalities, justice must be made more accessible as access to justice unlocks all other rights in the constitution.

When people are not able to access their rights, this could lead to a breakdown in the rule of law, which is the cornerstone of our democracy. We cannot condone and accept vigilante action. If we want to ensure justice within rule of law, it starts with even the criminally accused having the right to access competent legal representation.

Extending justice to all underpins our democracy.

l Hundermark is Chief Legal Executive, Legal Aid South Africa