Implementing the Right to Counsel in Post-Apartheid South Africa

Article excerpt

I. INTRODUCTION

Like most things in South Africa under apartheid, the legal system existed as a tangled web of racial division and nuance. During my first visit there, in the process of researching a legal question, I saw them on the library shelf; six tomes, thick and heavy with the required English and Afrikaans translations. Six volumes of the country's legislative code solely devoted to the governance of blacks, labeled simply "BLACKS, Volumes I-VI."

I knew, of course, that apartheid had not just been a state-of mind in South Africa. I had read about laws that divided South Africa into separate residential areas. I knew the government had regulated education, as well as all other aspects of public and private life, according to race. Yet my American sensibilities left me unprepared to see it all there, on the shelf, ready to be used for ordinary legal research. I spent the next three days sifting through the volumes in disbelief over their content. There it was, in the lofty pretentious logical language of the law: blacks could not own certain property,1 vote,2 marry people of other races,3 work in certain areas,4 or attend schools outside of the Bantu education system.5 After those three days I knew that whatever camaraderie I had felt with South African blacks based on my experiences as an African-American woman, it was limited by my confidence that American whites would not, or could not, legislate racial hatred quite so starkly.

I arrived in South Africa, in 1994, at a turning point in its history. Faced with enormous poverty and too few people trained to assist them, many blacks were unable to obtain legal assistance.6 Overwhelmingly complex barriers to admission into legal practice confronted prospective black lawyers. At the same time, two significant legal developments-a new constitution and an amendment to the Attorneys Act of 1979 (Attorneys Act)7-set the stage for innovative proposals to expand the access of blacks to both legal representation and the legal profession. One of the most important of such proposals, and a major focus of this Article, involves the expansion of law-school clinical programs.

In the new constitution of the Republic of South Africa, indigent accused are granted the right to free legal representation for the first time as one of twenty-five enumerated fundamental rights.8 This right exists in cases where "substantial injustice" would otherwise result? By including this right in the new constitution, the drafters clearly intended to alleviate both the plight of South Africa's unrepresented indigent accused and prohibit politically motivated police practices, such as lengthy and uninformed interrogations and detention.

It will be an enormous task for South Africa to provide representation to its indigent accused. South Africa's population is over thirty million, not including those living in the so-called homelands.10 Over sixty-five percent of the population is black African and fewer than twenty percent is white.ll The remainder is "coloured" or Asian.l2 Over two million people per year are charged with criminal offenses and most of those accused are black.ls More than 684,000 people were unrepresented in 1992, the latest year for which data are available.l4 Of those, approximately seventeen percent-114,000 people-were convicted and sent to prison.l5 During the same year an additional 22,000 people were incarcerated while awaiting trial, unable to make bail and unrepresented by counsel.ls

A nationwide government-sponsored public-defender system is not feasible as the immediate solution to this problem for two reasons. First, many blacks are distrustful of government-sponsored legal aid due to the legacy of apartheid.l7 This distrust stems from previous government efforts to provide legal assistance to the poor; efforts that were sporadic and politically manipulated.lg Second, the numerous other inequities caused by apartheid will cost millions of dollars to remedy. …