Free Defenders Aid Black Africans

THE notion of free legal representation for criminal offenders is so unfamiliar in South Africa that Alfred Ndebele did not even think of asking prison or justice officials whether he had a right to an attorney.

The first indication he had that such an option existed was when the remand magistrate informed him about the free services of a public defender.

"I think the public-defender system is very helpful, and I would like to see it made permanent," says Mr. Ndebele.

Ndebele, who worked as a gardener for two white South African families in Johannesburg, was arrested on New Year's Eve last year and charged with housebreaking with intent to steal a video machine belonging to one of his employers.

He is one of tens of thousands of black South Africans convicted each year of minor offenses in the country's courts. Because of congestion and overcrowding, people often spend months in custody before their cases are heard.

When they finally reach court, the proceedings are usually held in Afrikaans. At worst, the defendant has no knowledge of the language; at best, it would be the third or fourth choice.

A public-defender system was introduced as a pilot project in the Johannesburg courts in January this year. Until then, the majority of South Africans were unfamiliar with the concept, taken for granted in the United States for the past 25 years.

"While I was in detention, I was always worried that I would be convicted even though I did not know why I had been arrested in the first place," says Ndebele, a man with little knowledge about his legal rights.

Ndebele, who earns the equivalent of $125 a month to support his unemployed wife and child, was acquitted on the basis of mistaken identity after being represented by one of 10 lawyers who are taking part in the public-defender program modeled along the lines of its US counterpart.

A month after Ndebele's arrest, public defender Sandra Buys made a successful bail application on his behalf so that he could rejoin his (then) pregnant wife.

"Not everyone charged with crime is a criminal," says senior public defender Carol Bruyns.

"Many of those who pass through our courts are ordinary people who happened to find themselves in circumstances which led them to fall into temptation to do something which is a breach of the law."

Legal reform in South Africa has acquired a new urgency since political negotiations for a transition to democracy began 10 months ago. The concept of a constitutional state based on an independent judiciary and a justiciable Bill of Rights is already common cause for the main negotiating parties.

"The government's aim and commitment is a totally new, just dispensation wherein each citizen can enjoy equal rights, treatment, and opportunities in all spheres - political, social, and economic," says Deputy Justice Minister Danie Schutte.

While many apartheid laws have been dismantled - and the death penalty suspended - in the past two years, the legacy of apartheid poses a major challenge to the democratization of the legal process.

More than two million people pass through South Africa's courts each year of whom less than 20 percent are represented by a lawyer. More than 100,000 of the 1.6 million unrepresented defendants are convicted by the courts annually.

The overwhelming majority are black South Africans who cannot afford legal representation and have not been aware of the inadequate and bureaucratic legal aid system that existed before the public-defender experiment was launched.

Most defendants are unaware of the new system, despite posters advertising the scheme that have begun appearing in prisons and courts. Magistrates and prison officials are supposed to tell defendants of their rights.

The pilot public-defender program is one example of legal reform that could help correct the overwhelming impression among blacks that the decks of the country's "independent judiciary" are stacked against them. The system could help restore respect for the law and end violations against the Rule of Law that became a feature of the apartheid era.

The project has an annual budget of $1 million and operates with 10 lawyers and five administrative staff from offices in downtown Johannesburg. Once a client has been interviewed, the application for legal representation is processed in minutes - on the basis of a means test. Two of the defenders and one of the administrative staff are blacks.

"We process an application in three minutes rather than the three weeks it took to process an application under the old Legal Aid Bureau system," says Mrs. Bruyns, who was formerly in private practice, specializing in criminal work.

F the two-year pilot project is successful, it will be extended to a national network of 600 lawyers at an estimated cost of $18 million.

"It is the most hopeful and substantive initiative that has been taken to create a truly nonracial judicial system," says lawyer Geoff Budlender of the Legal Resources Center (LRC), which is represented on the steering committee of the public-defender project.

"There are two serious flaws in the present judicial system," he says. "The first is that the majority of the people have no say in the making of the laws. The second is the white face of the judiciary." Last year, South Africa appointed its first black judge, and senior black magistrates are few and far between.

"This is a classic case for affirmative action," says Mr. Budlender.

Last October, South Africa's highest court, the Appeal Court, ruled that nothing in the country's present law requires that an accused person who cannot afford a lawyer is entitled to free legal representation. A subsequent ruling found that there can be no fair trial without legal representation.

"The public-defender system is an absolute necessity if there is to be a true transition to democracy in this country," says David Winer, an American lawyer who served as a public defender in Chicago for four years before coming to South Africa. He is now part of the pilot project here in Johannesburg.

"I think what they have done here is remarkable in relation to the resources that have gone into the project," Mr. Winer says.

"Here the defendant has to go to the public-defender's office to seek assistance, so there is a heavy reliance on the prison system and the magistrates. As a result, a high percentage of defendants don't know of the existence of public defenders," says Winer.

"In the United States, the judge appoints a public defender on the defendant's behalf. I have no doubt that the public defender is here to stay."