ST210909(07) Judge President of Legal Aid Board Dunstan Mlambo during an interview for the position at Constitutional Court.Picture:Bonile Bam

Legal assistance for the destitute is written into SA’s constitution, writes Robyn Leslie.

On a warm summer’s morning in June 1961, a penniless odd-jobber by the name of Gideon Clarence was discovered in a seedy bar in Panama City, a town in the state of Florida, the US.

When the police tracked him down, he was described as drinking on the morning shift, his trousers “hanging low, weighted by exactly $25.28 in coins”. Clarence, with a history of theft, drifting and destitution, was arrested under suspicion of breaking and entering a pool hall the evening before, supposedly walking off with a few bottles of liquor and the change from the juke-box machine. The evidence? A few convenient witnesses, his history of criminal activity – and, of course, the change sagging in his trouser pocket, which he claimed was the lucky outcome of a poker game.

During his trial, Clarence strongly protested his innocence and demanded the state provide him with legal representation as he had no way of paying for a lawyer.

This request was denied, the provision of legal assistance for the destitute being then reserved for defendants in cases where they might be liable for the death penalty. Within a month of his arrest, he received a guilty verdict and the maximum sentence of five years in prison, which is the first part of Clarence’s remarkable story.

The fate of this indigent man would change the course of American legal history, and his case brings the right to a fair trial starkly into relief.

What does this right – guaranteed by South Africa’s constitution – actually mean? As armchair spectators, the public sees two sides: the defence lawyer attempting to convince of a client’s innocence and the prosecution advocating for as many nails to be hammered into the accused’s coffin as the court will allow. A judge sits, impassive and attentive, absorbing all arguments and weighing the balance of each.

But the truth is far more interesting. The premise underpinning rule of law – the set of guidelines and codes that govern our country and thus our way of life – is that correct procedure must be followed. Guilt or innocence is not for either defence or prosecution to decide. If we look at criminal justice through this lens, instead of a predatory defence lawyer “protecting” a vicious criminal, we can see criminal defence as a guardian of due process.

For example, imagine a criminal defence lawyer demanding, during a trial for narcotics dealing, a demonstrable link between drugs produced as evidence and the person accused of dealing. If the prosecution cannot produce such a link, then the case falls apart. Due procedure has not been followed as the custody of the important evidence chain has not been well managed.

In a scenario like this, the rule of law premise implies contestation by the defence will improve systems in the future. The custody of evidence for the next drugs arrest will hopefully be watertight, resulting in accurate and compelling evidence being produced at the trial. Thus, criminal defence processes ultimately improve the functioning of the justice machine as a whole.

In the case of the indigent or destitute, accessing the correct and fair criminal procedure is impossible without sponsored legal representation. In his speech, given last week at the opening of the International Conference on Access to Legal Aid in Criminal Justice Systems, Judge President of Gauteng (and chairman of Legal Aid South Africa) Dunstan Mlambo called access to legal aid a “foundational human right” – a right that has been internationalised through the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems and domesticated in our constitution.

But in order to guarantee this right and due process, both defence and prosecution need to know what they’re doing.

This was Clarence’s argument, and in 1962, after obtaining a pencil and some prison-letter-headed stationery, he wrote a five-page plea to the Supreme Court (America’s highest), stating that a fair trial was impossible without a lawyer. As he had represented himself at this trial, he argued that coming up against an experienced prosecutor had been farcical.

In his handwritten appeal, he urged the Supreme Court to reconsider his case and assign him legal representation. In a twist of fate almost as unbelievable as the eventual outcome, the Supreme Court not only received this mailed missive, they singled it out of many other petitions as one to act on.

Granting his request, the ensuing re-trial – where Clarence was represented by a court-appointed lawyer – resulted in his acquittal on all charges. He had spent two years in prison for a crime he did not commit, but his judgment had the immense implication that all indigent accused in America should be provided with a lawyer if they couldn’t afford to hire one.

In South Africa, the provision of free legal assistance for those who need it is rightly regarded as one of our proudest public services. Legal Aid South Africa handles the bulk of South Africa’s criminal cases, taking on thousands of clients who meet their means test – a test you don’t have to undergo if you are receiving social grants of any description.

This translated into about 380 000 criminal cases handled by this state-funded body in the last year, despite being under financial constraints, as their budget assigned from Parliament was not robust last year: Legal Aid South Africa’s operations were funded by R1.25 billion, whereas the National Prosecuting Authority’s 2012/2013 Annual Report pegs its spend at R2.83bn.

As the institution that handles so much of our criminal case work, the crucial role Legal Aid South Africa plays, as guardians of due process and thus guardians of the rule of law, should not be overlooked.

What should also not be overlooked is the importance of the quality of services they provide. As Clarence’s case attests, without good representation, a trial is not fair – and the outcome can be, at worst, a gross violation.

The Wits Justice Project’s time is spent on cases like Clarence’s, where a chequered past or being in the wrong place at the wrong time can land you in prison. South Africa’s criminally accused – some of them career criminals, but many of them caught in a fraught cycle of poverty and violence – are guaranteed a fair process by our constitution and Legal Aid South Africa lawyers are usually the ones providing for it.

As with all organisations, providing services to a big population, Legal Aid South Africa’s work is not always above reproach. The Wits Justice Project has written about the desperate cases of Thuba Sithole and David Mkhwanazi, who were both wrongfully arrested in tragic cases of mistaken identity and poor police work – and had their disastrous situations exacerbated by poor state legal aid. But while we work to hold these individual lawyers accountable, it should not deter us from recognising the importance of our state-funded legal assistance programme, which guarantees the right to a fair trial for everyone – regardless of wealth or social status.

From Clarence’s 1960s prison cell to global recognition at the UN, state-funded legal assistance is rightly here to stay. The importance of using criminal defence work to push our justice systems into improvement and robust function is now an international norm and South Africans should recognise the value this spend from tax-payer coffers adds to our democracy.

*Robyn Leslie is a researcher with the Wits Justice Project, which investigates miscarriages of justice, including cases of wrongfully convicted and awaiting-trial prisoners.

** The views expressed here are not necessarily those of Independent Newspapers

The Star