Legal Aid SA: A Successful Post- Apartheid Institution Supporting the Rule of Law

Publication Type:

Book Chapter


p.171–187 (2021)




<p>This chapter describes and assesses the institutional work done in transforming the apartheid-era organisation, the Legal Aid Board, into the post-apartheid Legal Aid South Africa (Legal Aid SA). This organisation is generally regarded as one of the more successful postapartheid units in the public administration. Its continuing and daunting task is to address the gap of access to justice in South Africa by providing legal services to the poor, primarily in the criminal justice system but also to some extent in the field of civil justice. In addition to the value of analysing a successful case of building a postapartheid public institution, an account of Legal Aid SA is significant in demonstrating the state of the rule of law in contemporary South Africa. The rule of law may be nurtured (or eroded) just as much inside the organisations that comprise the public administration as advanced or withdrawn in other locations in the legal system. The resources of time, funding, political will, and expertise devoted to the transformation of Legal Aid SA were significant and have yielded an organisation with a principled internal culture and with the capacity to play a leading role in achieving access to justice in South Africa. Its institutionalisation concerns the transformation of the &lsquo;old&rsquo; Legal Aid Board into the &lsquo;new&rsquo; Legal Aid SA over the period from 1994 to 2007. This entailed a set of coordinated movements of budget, personnel, operating practices, organisational form and legal mandate. The organisation shifted from the system of judicare (where lawyers in private practice are hired to represent specific accused persons) to one of salaried lawyering (where accused persons are represented by salaried lawyers directly employed by the organisation). It also developed a nationwide network of justice centres, building the largest legal services organisation in contemporary South Africa in the process. This was accomplished without rupturing constructive relations with one of the key constituencies of the rule of law, legal professionals. This is remarkable since a number of these lawyers under the previous legal aid scheme enjoyed significant financial opportunities defending those without means. Law was a key part of this phase of institutionalisation but it was not the law of litigation and the judiciary. Law played its role largely in the form of the internal rules, practices and principles of this organisation set within the prescripts and practices of South Africa&rsquo;s public administration. Through the case study of Legal Aid SA, this chapter thus explores the process of institutionalisation in South Africa&rsquo;s contemporary constitutional democracy, a process at the interface of the public administration and the judiciary and crucial to maintaining the rule of law.</p>

Law and Personhood

The assembling of a new set of South African and global citizenships has taken on new urgency and a new plurality twenty years after the supposed advent of freedom. Categories make persons and persons make categories, as Jones and Dlamini have recently pointed out. In the South African constitutional text – where the phrase ‘categories of persons’ is written – race is but one of sixteen categories on the formal list. The Constitutional Court has added more.  Indeed, the effort of desegregating publics now takes place without the freshness of new symbols and with potentially stale institutions. In the public sphere, some responses to this era of citizenship reformation harken back to earlier times – either to times of forward-thinking, to times of social-making, or even to times of separating. Other responses rest in a consumptive present or appear as mere promised rhetorical bridges into the future. In this project WISER will examine the new questions that scholars in law, society and the humanities are posing themselves and others. What are the complex fashions in which bounded enclaves and social categories are fraying and unravelling or reforming? How, if at all, are persons remaking themselves as citizens? At the same time that these questions pose themselves, new fields of play are emerging with the changing audiences of the fashion shops and the sports terrains as well as the changing forms and formats of affluence and the new middle class. The very concept of a person as well as their categorical boundaries may shift with the movement of blood, organs, and self-awareness.