Andries Nel says transformation not what it should be in legal sector

The government is concerned about the pace of transformation of the legal sector through briefing patterns as questionable practices in the system persist.

Deputy minister of justice Andries Nel told parliament that to promote unity and encourage fairness within the legal profession across both public and the private sectors, the department successfully paid 88% of the rand value of briefs to previously disadvantaged legal practitioners and 30% to female legal practitioners.

“As much as a lot of progress has been made in terms of contributing to the transformation of the profession through briefing patterns, there are still a number of very concerning trends within the overall state attorney system which point to a lack of transparency and certain questionable practices in the briefing of practitioners,” he said.

He was addressing the justice portfolio committee on Tuesday before the auditor-general's office presented its audit findings about the department and its entities.

Nel said the department was in the process of establishing the Legal Sector Charter Council after trade, industry and competition minister Parks Tau gazetted the legal sector code of good practice on September 20.

“I think that’s a major step forward,” said Nel.

The legal sector code seeks to implement targeted interventions within the legal sector.

“The gazetting of this legal sector code marks a momentous development in the efforts to transform the legal profession and to rid the sector of inadequate access to quality work, discrimination in procurement of specialised work, inequitable briefing patterns from state organs and SOEs, and unequal access to senior positions within the profession particularly based on race and gender.”

Nel acknowledged that the payment of legal practitioners within the prescribed period remained a concern in some of the provinces but this continued to receive focused attention.

As South Africa’s constitutional democracy is celebrating its 30th anniversary, the government needs to recommit itself to the attainment of the noble ideals for which so many people fought and died.

To improve access to justice services, the department has renovated and upgraded 74 court facilities through the minor capital works programme. A further 66 courts have complied with the requirement of universal access for people with disabilities, said Nel.

The masters' office remained a critical focus for addressing service delivery issues. He said since December 2023, the department implemented an online deceased-estate registration system for all masters offices, which the public can access from home.

A turnaround plan to address service delivery challenges has been developed and the department has successfully engaged a number of programmes on service delivery that include 703 awareness sessions that were conducted to educate people about the services rendered by the department, and also to improve things like human rights education.

While the department retained its unqualified audit outcome from the auditor-general for the financial year which ended in March 2024, auditors raised a number of concerns about some of its service delivery failures.

The AG’s Aphendule Mantiyane said while progress has been made in minor works refurbishments, significant maintenance issues remained in more than 746 magistrates' courts, including the Pretoria magistrate’s court, which caught fire in 2010 and had not been restored by March 31 2024.

At the same date, there were 37,497 backlog cases, increasing to 37,838 by June 30 2024, she said.

Mantiyane said managing these cases was challenging due to insufficient data, and while backlog cases were documented, confirming the completeness of the data was difficult.

This is due to the lack of an integrated system within the criminal justice system to track a case from registration with the SAPS through to judgment, incarceration, and eventual reintegration into society. The predominant contributors to this backlog are cases originating from the Western Cape and Gauteng.

When comparing the current year to the prior year, it was noted that the number of backlog cases increased by 13%, increasing from 33,358 to 37,838.

“There is, however, no apparent reason for the significant increase in the number of backlog cases.”

Mantiyane noted that some alleged perpetrators in these backlog cases were out on bail, creating significant challenges as they maintain contact with their victims, leading to mental strain.

“Some may even take advantage of this situation to intimidate victims and witnesses or disrupt ongoing investigations. Additionally, there are reports of offenders committing further crimes while on bail.

“It is crucial to address these issues decisively to protect victims and uphold the integrity of the legal process.”

The top three charges associated with the backlog cases are rape, murder and assault. While the numbers may not appear significant, it is concerning that victims of sexual offences have to endure waiting periods of more than 12 months to obtain justice in a country with a high incidence of sexual offences.

A number of cases of sexual assault remained unreported due to the fear of not receiving justice, she said. Therefore, expediting the resolution of these cases would contribute positively to instilling trust in the justice system and encouraging victims to come forward and report such incidents.

She highlighted challenges in the master's office, saying the lack of or ineffective application of preventive controls and control weaknesses increased the risk of fraud.

The AG’s office found poor controls over the administration of deceased estates and recommended that management should consider the control weaknesses identified in relation to the fraud risks and develop a response for each to improve the control environment.

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