Legal Aid South Africa 2022/23 Annual Performance Plan

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Justice and Correctional Services

06 May 2022
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

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Legal Aid SA

In a virtual meeting, Legal Aid South Africa (LASA) presented its annual performance plan and budget for 2022/2023.

The Committee heard that the 2022/23 budget allocation was cut by 10% and this has had a negative impact on service delivery as 80% of the budget is spent on employee costs and legal practitioners make up 79% of the total staff component. Vacant permanent positions have not been filled due to the lack of certainty on future funding requirements.

The Committee expressed its concern for the budget cuts LASA are expecting, specifically considering the backlog of cases that COVID created.

LASA highlighted that the target for legal aid in criminal matters were District Courts (80%), Regional Courts (90%) and High Court (100%). The target for the number of clients assisted in civil matters was 51 777

The Committee received an update on Legal Aid SA’s takeover of the legal representation function (and related budget) currently undertaken by the Land Rights Management Facility of the Department of Agriculture, Land Reform and Rural Development on 01 January 2022. This development will fundamentally place Legal Aid SA at the centre of efforts towards land justice in South Africa.

Members asked about this additional mandate and the transfer of funds.

Meeting report

The Chairperson welcomed Legal Aid South Africa (LASA) and invited the entity to begin its presentation.

Legal Aid South Africa Annual Performance Plan (APP) and Budget 2022-2023

Judge Motsamai Makume, Board Chairperson, LASA, said that the entity’s annual performance plan was submitted to the executive authority on 31 January 2022 and was tabled before Parliament on 23 March 2022.

Ms Mantiti Kola, CEO, LASA, reported that Legal Aid SA, like all state-funded institutions, has experienced a reduction in budget allocation over the MTEF periods. The decline in funding is continuing in the current MTEF period. The 2022/23 budget allocation was cut by 10% and it is expected that further cuts by 5% in the 2023/24 financial years respectively, as per the 2022/23-24/25 MTEF allocations. The total reduction in the current MTEF cycle is R352 million (15%). This has had a negative impact on service delivery as 80% of the budget is spent on employee costs and legal practitioners make up 79% of the total staff component. Vacant permanent positions have not been filled due to the lack of certainty on future funding requirements.

Salaries and related costs continue to be the largest driver of spending, these account for 79% of the allocation. Operating budget is the second highest driver accounting for 12% of the allocation. 73% of the operating budget is contractual obligations, these include office rental, cleaning services, wide area network etc. Other direct expenditure relates to expenditure that is directly linked to the provision of Legal services. The remaining 2% is for the replacement of capital assets according to the CARP.

LASA reported on the targets and indicators for 2022/23. Some of the highlights:

- The aim is to deliver quality client-focused legal aid in criminal matters, particularly for indigent and vulnerable persons. The court coverage targets were presented as follows: District Courts (80%), Regional Courts (90%) and High Court (100%).

-The target for the number of clients assisted in civil matters was 51 777

- In the delivery of legal services, Legal Aid SA will continue to use a mixed model delivery system which entails entering into strategic partnerships with legal practitioners in private practice through our Judicare and Agency Agreement model as well as with legal sector NGOs and University Law Clinics through Co-operation Agreements. The mixed model enables us to supplement our staff resources in order to facilitate easier access to justice for our clients. Legal services will continue to be provided through our national footprint of 64 Legal Aid SA Local Offices and 64 Legal Aid SA Satellite Offices, supported by 6 Legal Aid SA Provincial Offices, as well as our National Office

Mr Thabiso Mbhense, Legal Executive: Land Rights Management, LASA, presented an update on the Land Rights Management Unit (LRMU) January - April 2022.

In December 2019, the Inter-Ministerial Committee on Land Reform recommended the transfer of the Land Rights Management Facility (LRMF) from the Department of Agriculture, Land Reform and Rural Development (DALRRD) to Legal Aid SA.  The Legal Aid SA Strategic Plan 2020 -2025 stated that legal representation function (and related budget) undertaken by the LMRF of the DARD&LR will be transferred to Legal Aid SA placing Legal Aid SA at the centre of the efforts towards land justice.

In February 2020, a Task Team comprising DoJ& CD, DALRRD and Legal Aid SA   was established to facilitate the interim transfer of the legal representation function from the LMRF to Legal Aid SA. From July - December 2021 Legal Aid SA started working alongside DALRRD in preparation for the agreed takeover date of 1 January 2022.

On 1 January 2022, Legal Aid SA took over the management of the legal component of the LRMF. The Land Rights Management Unit (LRMU) has received 33 referrals from the DALRRD to date.

The DoJ &CD is engaging National Treasury to secure requisite funding to implement the LRMU s internal management and service delivery structure for land-related matters.

In the first year 2022/2023, Legal Aid SA manages the LRMU from National Office until the requisite funding to cover the roll out of the proposed national footprint is received.

MRU priorities include:

-Improve the internal delivery model with due regard to the demand for legal representation in land-related matters.

-Support the  DoJ &CD  in finalizing the MTEF funding with   National Treasury to ensure a fully funded mandate.

-Collaborate with DARD&LR  and CLCC to optimize the LRMU operations.

-Train the internal Legal Practitioners and Judicare Practitioners.

-Roll out the Provincial footprint.

-Monitor the Judicare Partners legal service delivery offering.

-Collaborate with all Stakeholders in the land justice cluster.

Judge Motsamai Makume said that LASA’s staff are doing everything they can to mitigate all shortcomings. Budget cuts are inevitable, and they are not the fault of LASA staff. LASA is seeking assistance from the Legal Practice Council.The biggest problem is the constitutional mandate. The district court will suffer the most as a result. The Minister is aware of the situation.

(See Presentation)


Discussion
Mr W Horn (DA) wanted to address the Land Rights Management Unit (LRMU). It is the Committee’s understanding that along with the transfer of the mandate, there would have been a transfer of funds from the Department of Agriculture, Land Reform and Rural Development, or at least a part of the vote. The presentation had not clarified whether this has materialised: has it? If it did not happen, why?


In terms of the proposed staffing of provinces and regions (slide 34) and an immediate shortfall of R50 million this year, how will the functioning of the unit be made effective?
If LASA’s circumstances are swayed by savings and surpluses that do not remain consistent year-to-year, can LASA afford the proposed staffing or will it have to resort to Judicare?


The Land Court Bill affords LASA many responsibilities – it is the Committee’s understanding that this would cause an increase in mandate. Taking into account that the Bill is not costed, where does LASA currently stand? Has LASA been involved in a costing process?

The budget cuts shown in slides 23, 24 and 25 paint a worrying picture. Does this reduction of LASA’s previous court coverage factor in how fewer cases were enrolled in the past two years due to COVID? In the pandemic climate, budget cuts did not have the foreseen impact. If backlogs are to be addressed – assuming that enrolment of new cases continues on its current trajectory – then LASA may be underestimating its ability to maintain coverage. Has this also been factored into planning?

LASA has a R440 000 expense for data costs per month due to remote working. While there are uncertainties pertaining to the future of the pandemic, the current stance is for a full return to office in the public sector. If this were to happen, what would the projected impact be on this expense?

The Department of Justice has been said to be accommodating LASA in some offices, which can assist in the saving of funds. However, there used to be a perception amongst the criminally accused that LASA practitioners are “government lawyers”. At one point LASA took strides to combat this attitude and prove the quality of its services, which included separating itself from governmental services for the perception of independence. Has LASA made these considerations, should there be a full-scale cohabitation with the Department of Justice?


Dr W Newhoudt-Druchen (ANC) said the Committee is mindful of the difficulties under which LASA operates, especially given its budget cuts. However, questions still need to be asked.
With regard to the Land Rights Management Unit, is LASA saying that there will be only four practitioners working per province?

Her constituency office is in Malmesbury, but the area covers three municipalities: Swartland, Saldanha and a part of the Cape Metro. With the budget limitations, how would LASA work to cover such vast areas, and how would delegate different numbers of staff to different offices?
The Malmesbury LASA is in a building that is not accessible to the elderly and people with disabilities. Lawyers refuse to work outside of the building to accommodate such people. Can a compromise be made, since the building is not accessible?

The Committee has done oversight in some of the Master’s offices. What is LASA’s relationship with the Master’s office? How can LASA make the Master’s office services accessible to their clients? Does LASA have a relationship to facilitate Master’s office services?

The Committee has been encouraging people to get their COVID vaccines. Does LASA provide any mitigating circumstances to employees not willing to get vaccinated? In other workplaces, there are mitigating circumstances for staff who refuse to get vaccinated. How has LASA handled such employees?

The Department of Justice has set up sexual offence courts. Is LASA prepared to assist the victims who have to come before sexual offence courts? With consideration of the budget cuts, will LASA be able to provide such services?

The Chairperson asked Dr Newhoudt-Druchen whether the inaccessible Malmesbury office is the only building in the area.

Dr Newhoudt-Druchen confirmed that it is the only office of LASA that covers the three municipalities, including Atlantis and Saldanha. The practitioners will not even go directly outside of the building to meet clients.

The Chairperson asked Dr Newhoudt-Druchen where the closest alternative buildings are.

Dr Newhoudt-Druchen did not know where the closest alternative buildings are.

Adv G Breytenbach (DA) said that the Department of Justice and the National Prosecuting Authority have been setting up special house commercial crime courts across the country, even though there might not be a demand for them. Does LASA have the capacity to properly accommodate dealing with the workflow that will arise from these courts?

What specialised training do LASA representatives get to equip them to deal with sexual offences and complex commercial matters?

The expenditure on data has increased exponentially each month as a result of people working from home. Is this sustainable? How is LASA planning on dealing with the increasing expenditure?

Dr Newhoudt-Druchen said that in KwaZulu-Natal, the LASA satellite office burnt down. Can the Committee be updated on any further developments? Was another office set up?

The Chairperson said that there seems to be a salary gap between LASA and the National Prosecuting Authority. Has LASA experienced attorneys and advocates resigning for the higher-paying positions in the National Prosecuting Authority?

Ms Kola said that LASA does experience staff leaving to join the National Prosecuting Authority for a salary increase from time to time.


There was an undertaking by the Minister of Agriculture and the Minister of Justice for the Land Rights Management to be a funded mandate. The joint task team of the Department of Justice, LASA and National Treasury has managed to enable the transfer of the R33 million from the Department of Agriculture. LASA receives these funds via the Department of Justice.
The joint team creates an end-term budget allocation. This allocation was late, but it will be received in January from the mid-term budget. In the presentation, it was specifically mentioned that LASA will not aggressively recruit staff until the necessary funds are received.

There is constant engagement between departments on LASA’s contingent liability.

The Land Rights Management unit executive will address the rollout of the funding from the Department of Agriculture. LASA will adopt a conservative approach in the use of these funds.

LASA practitioners always guard their professionalism. Cohabitation only occurs when specific offices experience problematic landlords and other issues with office accommodation.

Mr Mbhense said that the Land Rights Management unit is currently operating from the national office. The unit is entirely dependent on private legal practitioners, however, LASA is hoping to develop capacity to be independent in this regard.

The Land Court Bill has not yet been costed.

The proposed staffing structure of the Land Rights Management unit is as follows: each province is dived into x number of regions, and each region is staffed by four people. For example, the Western Cape has been divided into four regions which are each allocated four staff members, meaning there are a total of 16 staff members in the province.


Mr Sethopo Mamotheti, Chief Operations Officer, LASA, said that despite data costs being high, working from home reduces other expenses such as office space requirements. LASA has recently ordered a virtual private network (VPN) contract. Staff are closely monitored in their use of the internet. Access to certain websites is prohibited. The CFO is hopeful that data costs will be reduced and that the expense will be made more sustainable in the future.

LASA has adopted a hybrid work model – some staff work from the office full-time while others work between the office and their homes. More staff have been coming into the office, which will reduce the high data costs. Legal practitioners mostly work from the court and only come to the office once a week. Paralegals and advise-line officers are in the office every day of the week. Support staff are in the office at least four days a week.

A record is kept of employees who have been vaccinated. As of the beginning of May, 54% of all LASA staff were vaccinated. Getting COVID vaccines is not compulsory for staff members. LASA follows the guidelines of the Department of Health; no recommendation has yet been made for compulsory vaccinations. However, staff are continuously encouraged to get their vaccinations. The offices with lower rates of vaccinations are targeted with educational resources such as workshops and visits from Human Resources to further persuade staff. Wearing masks and maintaining social distance is highly encouraged in all offices to minimise the spread of the virus.


Ms Mpho Kgabi, Acting National Operations Executive, LASA, said that there is capacity for accommodation in all specialised commercial crimes courts. A budget has been received from the Department of Justice as requested. As soon as a new court is established LASA ensures capacity, as in the case of the sexual offences court. Specialised training is made available in sexual offences courts as well as commercial crimes courts. There is a budget dedicated to such training.
 

LASA circulates surveys to all offices to monitor accessibility. If the Malmesbury office does not meet accessibility guidelines it would be due to the building being the only accommodation option, which is often the case in small areas. The issue of the Malmesbury office will be followed up on with the provincial executive in order for disabled and elderly clients to be assisted. In some of the satellite offices LASA practitioners meet clients in offices within the local courts. Paralegals usually work in these offices to assist disabled people and the elderly. In the future, LASA will ensure accessibility when seeking new accommodation. LASA already requires landlords to provide elevators for accessibility where accommodation spans multiple stories.

Arrangements are still being made in service of the burnt satellite office in KwaZulu-Natal. Property management is busy looking for accommodation. In the meantime, the paralegals are able to assist clients from court offices. The site of the burnt office is being reconstructed.

Adv Wilna Lambley, Gauteng Provincial Executive, LASA, said that LASA has a service-level agreement with the Master’s office where LASA assists in estates that are of a minor value – those that are less than R250 000. This includes the constitutional mandate of providing legal assistance in civil matters were a child’s rights are involved. LASA currently is dealing with approximately 6 070 estates. LASA is constantly in consultation with the Master’s office in resolving issues of mutual concern. LASA has recently had fruitful interactions with the Master’s office. There have been issues in the past including, that key positions are vacant. Provincial committees have been set up to liaise with the Master’s office to ensure that estates are handled within a 12-month period. LASA is confident in the cooperation agreement with the master’s office. It will continue to be monitored, and when an issue arises LASA will take it up with the chief master’s.

It is true that COVID created a backlog of cases. LASA are part of the provincial and national committees dedicated to problem-solving this concern. LASA’s coverage is not understated provided that no additional courts are established. In many provinces, there is pressure to request backlog courts. Unless funding is made available on a project basis to accommodate additional courts, LASA’s coverage would be understated in this case. LASA has developed a system based on the number of courts in the country.

LASA is encouraging a focused approach to the backlog by investigating whether cases can be resolved by alternative dispute resolution mechanisms and prioritising cases based on age analysis.

The Chairperson observed that there was one question not yet answered: that of the R50 million shortfall on slide 34.

Ms Kola said that there is an undertaking by both the Ministers of Justice and Agriculture for this land mandate to be funded. LASA is battling budget cuts on the core mandate and will not be able to take on an additional expense.

LASA would like its service delivery model to include the presence of legal practitioners across the nation. They would also like to have a mixed delivery system that incorporates Judicare, with an intention to eventually build internal legal capacity. This is the reason why LASA is operating from the national office currently. The regional structures can only be rolled out after the funding from the end-term allocation and the contribution towards the 740 matters taken over on 1 January has been received.

The Chairperson asked whether any Members feel their questions have not been answered.
LASA employees being referred to as government lawyers continue to this day. This judgement is only passed when cases are lost. However, LASA has been successful in a number of cases, proving that the fact that they are funded by the government does not make them government lawyers. Looking at how 26 000 people have called into LASA’s call centre proves the necessity for such work.

Judge Makume wanted to follow up on how it was stated that lawyers are only going to the office once a week. Where do they get time to do quality consultations?

Adv Lambley clarified that this is the case for satellite offices, which do not house the High Court practitioners. The bulk of High Court clients are in custody; therefore, most consultations happen in correctional facilities. There is also an opportunity for consultation in court. High Court practitioners are required to go into the office more than just once a week.

The Chairperson asked if anyone has anything further to add or comment upon.

Dr Newhoudt-Druchen said that there have been labour disputes with regard to employees who refuse to get vaccinated, against company policy. Has LASA had any such cases?

Adv Lambley said that LASA has not been approached with any cases to that description. If they were approached with such a case, LASA would gladly investigate its merits, even on a test-case basis.
NGOs or other beneficiaries are encouraged to approach LASA if they feel they could benefit from LASA’s strategic litigation unit to determine whether a test case might have weight in court.

Judge Makume expressed appreciation to the Committee for their support and engagement. LASA has other stakeholders that are being consulted with regard to LASA’s difficult current situation.

The Chairperson thanked LASA and its executives. LASA is an organisation that makes the Committee proud as it offers assistance to some of the most vulnerable people. The Committee trusts in LASA’s governance and will do whatever it takes to have more resources invested. It is encouraging to witness LASA’s innovation at work. The current financial crunch is not going anywhere, and it demands creative solutions.

The Committee still intends to plan visits to LASA’s offices, including its national office.

The meeting was adjourned.

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