IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO CCT / 1/94 CCT /2 /94
In the matter between
WESSEL ALBERTUS VERMAAS APPLICANT JOHAN PETRUS LAFRAS DU PLESSIS APPLICANT
and
THE STATE RESPONDENT
AFFIDAVIT
I the undersigned Noluthando Dorian Bahedile Orleyn, hereby make oath and say 1. I am an adult female Attorney working for the Legal Resources Centre, 4th
Floor, Elizabeth House, 18 Pritchard St, Johannesburg. I am the Director of the Johannesburg office and am du(y authorised to make this Affidavit and Application on behalf of the Legal Resources Centre.
The above mentioned matters will come before this Honourable Court on the 28 th February 1995. The Applicants allege that they are indigent and wish to be provided with legal aid at State expense. By virtue of circumstances which are set out more fully hereinafter the Legal Resources Centre is desirous of being admitted as an amicus curiae, lodging written argument and presenting oral argument to this Honourable Court.
3. Accordingly, the LRC wrote letters to the Attorneys of the Applicants and the Attorney-General of the Transvaal on January 12 1994 requesting that written consent be given in terms of the Rules of this Honourable Court. A copy of the letter to the Attorney-General in the Vermaas matter is annexed
hereto marked "A". This letter is similar to the others refered to in this paragraph.
4. Attorneys representing the Applicant Vermaas filed such a consent on the 19th January 1 995 and those representing Du Plessis on the 1 3th January 1995. These have been filed with the Court. Copies of the letters are attached and are marked "B" and "C" respectively.
5. The Attorney-General replied by letter dated the 16th January 1995 indicating that he required further information before deciding whether to consent or not. A copy of this letter is annexed hereto marked " D " . 6. The LRC responded to Annexure "D" by letter dated 20 th January 1995
supplying the information requested. A copy of the said letter is annexed hereto marked "E".
7. After receiving the letter Annexure "E" the Attorney-General declined to consent to the LRC being admitted as an amicus curiae by letter dated 24th January 1995. A copy of this letter is annexed hereto marked "F".
8. An application to this Honourable Court is therefore necessary in terms of rule 9(4).
9. The Attorney-General declined to consent to the LRC intervening as an Amicus Curiae because the Directive of the Court allegedly did not permit argument on the wider issue of legal aid in general. Secondly the Attorney- General espoused the view that the task of the Court was to address the issues arising out of specific litigation and could not be expected to function as a commission or research body.
10. Para 3{a){iii) invites the Accused to answer the question whether the provisions of section 241 (8) were applicable to the proceedings before the Court a quo and whether the Accused was entitled to rely on the provisions of Section 25(3).
11. Para 3(a)(iv) asks the Accused to deal with the question of his personal choice of a legal representative should the question posed in the previous paragraph be answered in the affirmative.
12. While it is true that the Court will be dealing specifically with the cases of Vermaas and Du Plessis, it will inevitably have to interpret and thereby give content to the fundamental right contained in Section 25(3)(e). The meaning given to the right by the Court will have an impact not only the accused in the above two cases, but will indirectly affect the rights of clients of the LRC. I submit that the issue of legal aid in general will inevitably be
considered in these two cases and that the need for argument in respect of this issue is implicit in the directions given by the President.
13. Rule 9(6)(a) requires that a party briefly describe its interest in the proceedings. The LRC has, according to its Mission Statement, the aim of
"developing a democratic society which functions in accordance with the principles of social justice and human rights". It undertakes legal work on behalf of indigent clients in matters of public interest. Furthermore, most of its clients are illiterate and unfamiliar with court procedure. Should the Court determine the extent of legal aid required by the provisions of the Constitution, the LRC would then determine how its resources be made available to those who do not qualify under such a system. The LRC, therefore, has an interest in the interpretation that the Constitutional Court will give to the right to legal representation at state expense as embodied in Section 25(3){e) of the Constitution.
14. The Accused in casu fall into a category of sophisticated and educated men who are charged with what is loosely termed white collar crime. Counsel for such Accused will emphasise the need for legal aid for their clients. The judgement of the Court will have to address the receipt or otherwise by such Accused of legal aid. The LRC would be anxious that the Court should not lose sight of that part of the population, namely the poor and unsophisticated, who will inevitably be affected by the judgment. It would be extremely difficult for the Court to formulate a rule or order which would be narrow enough to cover Vermaas and Du Plessis and not affect the traditional clientele of LRC. The LRC as a public interest legal organisation has an interest in presenting the position of the broader population who will be affected by the outcome of these cases.
15. Section 7{4)(b){v) of the Constitution allows locus stand/ to a party who acts in the public interest. It is therefore submitted that an amicus curiae should be in no worse position.
16. Rule 9(6){b) requires that the amicus curiae identify the position to be adopted in the proceedings. Based on the conclusions of the study undertaken by Prof Steytler, the LRC will propose that the Argersinger-ru\e should be adopted by the Court as the test for whether a person qualifies, in terms of sec 25(3)(e) of the Constitution, for legal representation at State expense. See Argerst'nger v Ham/in 407 US 25 (1972). The test advocated by Prof Steytler includes the following factors:
(a) An accused may not be sentenced to actual imprisonment without having had the opportunity to be represented by a lawyer.
(b) Excluded from the rule is an accused sentenced to a fine with
imprisonment as an alternative, who defaults on immediate payment and is sent to prison.
(c) Suspended prison sentences are also excluded.
(d) The accused must be indigent.
17. Premised on the Argersinger-xu\e, it is submitted that the Prof Steytler's study shows that
(a) the number of indigent accused persons entitled to legal aid because they probably face a prison sentence, would range between 120 000 and 150 000;
(b) a diversified legal aid scheme, adopting a variety of service delivery methods, would cost around R70m which is well within the range of the present level of funding; and
(c) there are sufficient lawyers to provide the service and the law faculties will be producing sufficient numbers of law graduates eager to take up positions as candidate attorneys.
18. The LRC will submit that there are thus no practical impediments in adopting an Argers/nger-ru\e.
19. Rule 9(6}(c) provides that the amicus curiae shall clearly, succinctly and without unnecessary elaboration set out the submissions to be advanced by the amicus curiae, their relevance to the proceedings and his or her reasons for believing that the submissions will be useful to the Court and different from those of the other parties.
20. The State makes very fimited submissions on the issue of legal representation. Apart from referring in both Heads to the remarks of Hartzenburg J to the effect that the provisions of Sect 25(3){e) do not allow an accused a choice of lawyer, no further authority is cited. On the question of the standard to be adopted, both heads opt for the standard enunciated in S v Khanyile 1988 3 SA 795 (N) and no further authority is mentioned. No facts are tendered nor are submissions made as to the feasibility of legal aid for the Accused in question or for a wider legal aid program.
2 1 . In the du Plessis and Vermaas Heads, both Counsel give attention to the question of the choice of a legal representative and the circumstances under which the courts should grant legal aid. Counsel quote European and American authority in aid of their submissions. LRC will be citing authority from other jurisdictions to assist the court in arriving at its decision.
22. Counsel in the Vermaas matter restricts his submissions to legal representation in the Supreme Court, advocating an extension of the pro deo system to all Supreme Court criminal matters. No mention is made of feasibility in the du Plessis Heads of Argument. Clients of the LRC will be appearing in other courts, apart from the Supreme Court, and findings are made by Prof Steytler as to the feasibility of such receiving assistance from the State in the form of, inter alia, Legal Aid or assistance by a Public Defender.
23. The Court will also need to know the financial implications involved in extending legal aid in arriving at its judgment on the criteria to be determined. As set out above little information is placed before the Court in this regard. Professor Steytfer has made a detailed study which includes an assessment of the numbers of accused persons involved, the nature of the crimes which could potentially result in them receiving a jail sentence, the financial implications and the availability of legal personnel to staff such a system. Without such information, the Court will not be able to assess whether any proposed principle or rule is within the means of the State. It is precisely on this point, in the case of S v Rudman 1992 1 SA 343 at 389 A-J, that the Appellate Division balked and declined to adopt the rule in Khanyile. The AD in fact called for the sort of material which Professor Steytler will provide to this Court.
24. As I have indicated, Prof Steytler recommends a blend of schemes to provide legal representation including a Public Defender system. The question of personal choice of a legal representative in such circumstances becomes problematic. The LRC would also like to make submissions on the question of personal choice in the selection of legal representative.
25. In all the circumstances it is submitted that this is a proper case for the Legal Resources Centre to be admitted as an amicus curiae. I therefore pray that this Honourable Court grant an order in terms of the Notice of Motion prefixed hereto.
I certify that on this 31st day of January 1994 in my presence at Johannesburg the Deponent signed this declaration and declared that she
(a) knew and understood the contents thereof;
(b) has no objection to taking this oath;
(c) considered this oath to be binding on her conscience and uttered the words "!
swear that the contents of this declaration are true, so help me God".
COMMISSIONER OF OATHS
Commissioner of Oaths (Ex Ot'icio) by .i u>£ ^ my office <. k- TJ" I-, r^'.\ ••"•} Vxe^zzw o l
The Stand. - " - . .-. i-i Limtled Reg. No. •'
LIBRARY ^\J.- . - iir,AJCrt
57 Presvdent Street, Johannesburg
