Legal Aid South Africa on its Annual Report for 2012/13; Legal Aid Guide 2013: briefing

Meeting report

Legal Aid South Africa 2012/13 Annual Report briefing
The Chairperson said that since the recent Court judgment the performance of Legal Aid SA had taken on particular significance, and asked if the presenters could give their thoughts on the significance of that judgment and how it might affect what Legal Aid SA was requesting of the Committee.

Judge Dunstan Mlambo, Chairperson, Legal Aid South Africa, said that Legal Aid SA always looked forward to engaging with the Committee, as it was aware that this helped to keep the Legal Aid SA on track. He said that the board members of Legal Aid SA were still studying the High Court judgment handed down on the previous day and it was hoped to express a combined Board view by the following day.

Ms M Smuts (DA) noted that the Department of Justice and Constitutional Development (DOJ&CD) had mentioned that some additional amounts had been secured and wondered whether they were intended for this type of matter.

Ms Christine Silkstone, Committee Content Adviser, indicated that she did not think they were. 

Mr S Swart (ACDP) thought that this funding may have been intended to fund the two commissions of inquiry presently running, as both were being extended.  Any decision that the Board may take on the judgment may have financial implications, and the Committee would then input on those points as well. he suggested that the Committee should note the possibility of a further request being made by Legal Aid SA for additional funding, and suggested that the Board be allowed to make a further written submission, once it had reached a decision.
 
The Chairperson said that questions had been raised but this Committee had both support and sympathy for the requests for finding additional resources for Legal Aid SA.

Judge Mlambo was heartened by this response. The Legal SA objective was that nobody who was deserving of legal aid assistance should be in danger of not receiving it.

Judge Mlambo then introduced the 2012/13 Annual Report of Legal Aid SA and noted that this was the t first year of implementation of the five-year strategic plan. Performance was on track and targets were achieved. Just over 700 000 legal matters had been handled. As demonstrated over the years, sound financial management practices were maintained. Legal Aid SA had obtained a clean audit. it had spent 98.7% of the budget of R1.4 billion .

He noted that the Legal Aid SA was already involved in Marikana, representing the families of both deceased miners and police who required assistance. The sum total of the involvement took the Legal Aid SA budget to around R17 million.

Ms Vidhu Vedalankar, Chief Executive Officer, Legal Aid SA said that it had cost about R2 million to assist the families of the deceased so far, and the Farlam Commission of Inquiry into events at Marikana was going to be extended. The Legal Aid SA had been requested to fund legal services for injured and arrested miners and South African Police Service (SAPS) members. Legal Aid SA thought this would cost R17 million, but it did not have the money in the budget, which  meant it would have to be taken from the judicare budget or cut backs in other areas, unless government could give more funding.

She tabled slides on legal services delivery. Legal Aid SA was on track and able to deliver services. There were budget cuts of about R64 million which linked to efficiency cuts from National Treasury, and R30 million linked to Occupation Specific Dispensation (OSD) funding that did not come through. Legal Aid SA was still able to keep on track and had managed to provide services. It would be able to continue without cutting back. There were over 2 600 staff and she tabled the national footprint and staff and office numbers. Legal Aid SA had recruited up to a 96% staff level, which ensured that services could be delivered. 79% of staff were legally qualified, lawyers or paralegals.

She then outlined the coverage; which was 87% of district and 99% of regional courts. Legal Aid SA dealt with all matters requiring legal aid in the criminal courts. She then outlined the figures of criminal and civil matters and noted that in this year the percentage of civil matters increased to 14%.  There were 438 000 matters for which assistance were given.

She spoke to increasing access to justice, and the service delivery systems. The bulk of work was done through the Justice Centres (Legal Aid SA's own offices) but it also used judicare practitioners outsourced to private lawyers in 3% of cases, and agency agreements and cooperation partners.

She outlined the types of work, and again indicated that the bulk of the matters were heard in the lower courts, but said that this represented 83% of criminal matters heard in those courts. The drop in High Court matters financed was partially due to increased jurisdiction in Regional Courts, but also to better screening of matters.

 Legal Aid SA was keeping track of matters finalised. In district courts it had finalised 102% of cases, and this figure took into account some cases carried forward from the previous financial year. In the civil matters, finalisation was at 77%.

The types of matters were outlined and Ms Vedalankar pointed out that the bulk of work in the criminal matters related to aggressive and economic crimes. In civil work, most related to family matters but it also financed 43% land cases, and 19% involving with children, because it assisted children with estate matters linked to the Master's office.

Her next slide spoke to the pending matters. Ms Vedalankar explained that one of the targets was that no matter would still be ongoing in a district court for longer than six months. Legal Aid SA was managing to stay within its targets for limiting the backlogs. These, however, had increased, particularly in the High Court.

In relation to children, Ms Vedalankar said that 26% of child-related matters were for children in conflict with the law, and in respect of the criminal matters the decrease showed that children were actually being diverted out of the criminal justice system, and out of the courts.

For general advice matters, there had been a marginal increase to 17%, and the advice was given by Justice Centre paralegals and satellite offices, whilst the Legal Aid Advice Link provided assistance to 44 000 people through the toll free number. The advice lines were also linked to paralegals who worked in the prisons with awaiting trial detainees (ATDs). Call centres mostly dealt with civil case enquiries, although 12% were looking for assistance with criminal matters.

Automatic reviews had been tracked over the years, and in this year there was a reduction of 19%, with 5 566 automatic reviews. The issue of quality was critical to Legal Aid SA, and it kept track of and  assessed the quality of the legal practitioners that it used. In all categories, at a general level, targets had been reached and exceeded. It also kept track of individual practitioners who did not meet targets. Only 5% were not meeting targets and they got additional supervision and support to ensure that they would improve over the next financial year.

Ms Vedalankar said that Legal Aid SA recorded the outcomes of criminal matters. There was a  64% success rates in all appeals. In Impact matters, which were matters taken on because they affected communities, or had a special effect, there were 90% success rates. Very few matters that Legal Aid SA assisted with did in fact go to trial, so that the acquittal rate out of all cases taken on was 18%. Only 13% were finalised by means of guilty pleas. There had been allegations in the past that Legal Aid practitioners were simply telling their clients to plead guilty, but these figures indicated that the problem was not endemic as some claimed.

Mr Jerry Makokoane, Chief Operations Officer, Legal Aid SA, spoke to performance in the support platform. There was a budget for 2 694 employees, and the recruitment drive up to the end of the financial year had managed to ensure that 95.6% of posts were filled. Of these, as mentioned before, 79% were legal or paralegal posts. However, despite that, there were some challenges. Legal Aid SA was unable to meet the target for recruiting several candidate attorneys, which had been a focus for growing the legal platform. There was also a challenge in retaining IT staff in the past financial year. The staff turnover rate was 5.6%, excluding candidate attorneys, but 18.22% if they were counted, because they were serving with Legal Aid SA for only one or two-year contracts, and would leave to be employed elsewhere if no posts were available when they qualified.

Employment equity showed that positions held by women, African women and disabled (a particular concern) were lower than desired. The overall staff totals meant that Legal Aid SA was able to improve its recruitment of disabled employees to 1.6%, below the target of 2%, after concerted effort to ensure representation of those with disability. The recruitment and turnover rates per province were outlined. Eastern Cape had a recruitment rate at 96%, and Mpumalanga showed the lowest turnover rate. The regions were therefore not performing at the same rate.

The Employment Value Proposition (EVP) was launched to establish partnerships between employer and employee, and this was essentially a kind of marketing tool to show what Legal Aid SA could provide for potential employees, including stating the values of the organisation, the focus on developing employees and giving them opportunities for engagement. It would try to meet what potential employees might be looking for in the broader sense. Legal Aid SA would expect responsibility and commitment in return. Mentoring and coaching programmes were introduced, to ensure that there was quality of service. A succession-planning programme focused on making sure that all managers had the necessary insight and knowledge insofar as leadership management was concerned. 30 managers were on the leadership development programme, which was contracted to Wits University. It was responding to the need to bring on board the middle managers, into the management advancement programme. All of this was geared to attracting and retaining skilled and capable employees. The training and development targets focused on leadership development and capacity. Legal Aid SA was trying to make the work environment effective, and the principles it was upholding and endorsing would promote employee engagement and empowerment. It was further trying to stimulate innovation by encouraging employees to submit proposals on new practices. A Vicarious Trauma programme had been introduced; in recognition that some employees may be psychologically affected by the cases they were handling. HIV and Aids voluntary counseling and testing were less than target, at 28% rather than 30%. Employee relations remained effective, with 18 staff grievances (against the target of 51) but disciplinary matters were 3.7% higher than target.

Moving on to ICT systems, Mr Makokoane noted that Legal Aid SA had an in-house system called Ad Infinitum, which focused on core business operations. This had been introduced in 2004, and had performed fairly well at the start, but there were challenges now with the capacity of the system, and this required consistent monitoring. The Legal Aid SA Board had therefore resolved, earlier in the year, to replace the system, and it was, over the next twelve months, developing a replacement to Ad Infinitum, to respond to service provided. The current system was still functional and it was able to perform to expected levels.

Mr Makokoane next spoke to the branding of Legal Aid SA. The desire to ensure that Legal Aid SA remained strong in the public image required it to look into alternative measures of communication. In branding itself, it was using billboards, radio adverts, targeting African language stations and media and TV coverage. It was monition the media interaction (see attached presentation for statistics). The national omnibus survey was commissioned through independent researchers to assess the usage and understanding of the brand. There was 59% awareness of the brand. This was supported also by the marketing strategy.

He outlined the external communications. Stakeholder relations were recognised as playing a critical part; government and Parliament, the legal fraternity, NGOs, CBOs and the media and international bodies were all engaged. This added value to the strategic direction, and would ensure the realisation of an effective justice system and the vision for access to justice for many South Africans.

Ms Rebecca Hlabatau, Chief Financial Officer, Legal Aid SA, presented the financial statements. There was conservative spending, to ensure that there was no overspending, with a final spending figure of 98.7%. She tabled the balance sheet and explained the increase from the previous year. The revenue had increased, to R1.2 billion, whilst direct and operational expenses were R1.25 billion. Overall, there was a surplus of R24.6 million which was due to the way that capital expenditure was accounted for separately. The cash flow statements were presented. There was an increase in cash and cash equivalents of R342 million at the end of the year. Certain funds were invested with the CPD. She explained that these were committed funds to settle short and long term liabilities, including judicare provisions accounted for under creditors.

The budget was reviewed part way through the year, and she tabled a comparison of approved and final budget. The difference of R4.9 million in revenue was mainly because of a rollover. There was variance of R42 million in expenses, mainly in respect of judicare commitments, which were disclosed but not accounted for under that section of the balance sheet.

Ms Hlabatau noted that Legal SA had now received its twelfth successive unqualified audit report and the eight clean audit with no matters of emphasis. Only housekeeping issues were raised by the Auditor- General.

The Committee expressed its appreciation at this achievement.

Mr Brian Nair, National Operations Executive, Legal Aid SA, set out that key changes were required in terms of the National Treasury guidelines. The overall view of the Medium Term Expenditure Framework (MTEF) was presented. In the current year, the budget was R1.378 billion, increasing to R1.68 billion by 2016/17. Programmes had to be kept in line with this budget. The bulk of the budget was taken up with salaries, at 73.5%, and there was 2.4% allocated to the case backlog. There was direct expenditure of 6.5%. Programme proposals were presented to the MTEF Committee, asking for additional funding, focusing on the next five years with about R181 million for the first year and about half a billion rand for the whole period.  This included increasing capacity at regional and district courts; additional staff to cover absences, and a hopeful increase of ratios at district and regional to cover courts where practitioners were not available. The proposal envisaged having 252 staff. The major growth area was the need to increase civil capacity.  Many of the offices needed to be upgraded to Justice Centres from satellite offices. Legal Aid SA was dependent on ICT systems and there was a need to increase broadband. As the legal staff increased, so too must the support staff, with 31 new support staff posts ideally required.

He highlighted some specific funding challenges. There was a need to convert the backlog courts to permanent courts and Legal Aid SA supported that proposal, although it was not simply a matter of converting posts to permanent posts; a different funding approach applied. If all were converted, then Legal Aid SA would be short of R29 million. There were proposals to create additional magistrate court positions – with 116 in the first phase, and 42 of the backlog courts posts may be included. Legal Aid SA had done some cost estimates, and if there were more regional court posts it would need R60 million. If the posts were for magistrate's courts positions that would lead to new courts, Legal Aid SA would have to get still further budget to ensure that it had practitioners to cover those courts. Lastly, the new sexual offences courts would have an impact; many would be conversions, but where there were new court that would pose a challenge, as it did not have spare capacity at present.

Ms Vedalankar said that if the Legal Aid SA had to fund Commissions of Inquiry, it would need additional funding. When commissions were established, ideally at the same time, funding should be provided for indigent people to participate.

She then referred to the Budget Review and Recommendation Report findings from the previous year. Last year, the Committee recommended additional funding to Parliament, and Legal Aid had received R20 million and had used that to create seven civil posts and conversions of three civil posts. This was set off against the budget cuts, and additional costs were absorbed by cutting back on operational costs.

R2.5 million was allocated for the implementation of the Child Justice Act. R1.8 million was used to create specific posts, and R577 000 was used to help a medical pilot project. R8.3 million was allocated for implementation of the Children's Act, used to create new practitioner posts, and for operational costs.

Judge Edwin Molahlelhi, Deputy Chairperson, Legal Aid SA, gave a summary of the performance in 2012/13. He reiterated that the budget was R1.4 billion and he repeated that the expenditure levels remained fairly constant from the previous year. Over the last four years Legal Aid SA had been adjudged best employer. He summarised that the budget constraints resulted in inadequate coverage of courts, high practitioner caseloads and supervisory ratios, and lack of relief capacity. The information indicated that no new funding would be available for the programmes. Hopefully there might be more funding made available by the Minister in the forthcoming adjustment budget. He noted that targets for finalising matters were exceeded in regional and high courts. The number of ATDs remained high, and some were held for more than two years. The support platform had not been able to be increased. Systems remained unstable; and there was intermittent instability even after elements were addressed by the service providers and IT staff, which was why new systems were planned. He concluded that Legal Aid SA was able to successfully implement its Annual Performance Plan for 2012/13. The legal aid services delivery increased marginally by 2%, and 17% in advice matters, because of the fact that budget was not increased. Financial management remained sound, with a clean audit, and overall he was pleased to say that Legal Aid SA remained sustainable and able to continue delivering on its mandate for the next period.

Mr Mlambo wanted to report that he saw tremendous commitment from the Board. He asked Mr Jan Maree, Board Member, to speak to the effectiveness of the Board.

Mr Maree noted that the Legal Aid SA Board had an effective succession plan. If new appointments were made, the Board gave input to the Minister, who was cooperative, and the Board identified skills required, may head-hunt, hold interviews with people identified and try to get the best people on the board. Training was done through the Institute of Development and it had put social and ethics requirement in the Companies Act to a separate committee; although it was not an obligation, it was though that this was useful. There was effective leadership in the Board, and he believed, comparative to other boards of his experience, that its performance was exceptional. It was a pleasure to report that the Board was functioning well.

Discussion
Mr S Swart (ACDP) welcomed the good news from the Legal Aid SA and he commended the entity on the audit report, reaching 90% of targets, and overall excellent performance. This was particularly impressive given its huge improvement from the days when it was plagued with massive backlogs. His appreciation was echoed by all Members who subsequently spoke.

Judge Mlambo thanked all Members for their encouraging remarks.

Mr Swart asked about the R17 million additional funding for the Marikana Commission. He asked if this figure was based on the present interpretation of the mandate, not the new judgment. Depending on what decision Legal Aid SA might take, there might be even greater financial constraints if the latest judgment applied.

Judge Mlambo said that this figure would include the implications of the judgment.

Mr Swart proposed that this Committee must note the budget constraints, and support the request of Legal Aid SA for extra funding.

Mr Swart asked about the large numbers of alternative dispute resolution matters, at 143 000, and he asked if Legal SA kept statistics on how many matters went this route, and diversion in terms of the Child Justice Act, or mediation matters.

Mr Nair responded that mediation and diversion were accounted for in these figures. 73% of matters did not go through a trial process because they were withdrawn, or a warrant was issued, or they were struck from the roll. When the Legal Aid SA was handling a matter that was removed, it would mark it as a withdrawal. He could provide figures from the last financial year. A lot of these were settled by informal mediation.

Ms D Schäfer also believed that Legal Aid SA deserved extra funding; it was handling its matters properly and needed more. She asked about maintenance matters and whether those were included under the family law heading and if there were any figures on how many per year.

Mr Nair said that the Board had made a policy decision to extend the service in maintenance. Numerous people required such assistance and whilst Legal Aid SA could not help all. it would take on those matters where a person had remained unattended to for a period of twelve months. The persons would still have to fulfill the means test requirement.

Ms Schäfer asked since when this had been happening.

Mr Nair said that the Board had taken the decision last year, and it was implemented from the time that the decision was made, he could not recall exactly when. It would be included in the amendments being proposed to the Legal Aid Guide.

Judge Mlambo added that maintenance assistance for children was automatically given.

Ms Schäfer asked about the success rate in the Supreme Court of Appeal matters, and asked whether this was due to better screening, or the fact that the Legal Aid SA might only take on worthwhile matters.

Judge Mlambo said that the Legal Aid SA would not refuse applications, if people passed the means test and would only refuse to take on matters when they did not. However, he qualified that further by adding that there was now an elaborate system that allowed for people to appeal against the decision of the Board to refuse legal aid, and the courts could still ask Legal Aid SA to provide representation where it had initially refused.

Mr Nair said that there had, over many years, been a perception that Legal Aid SA used junior and inexperienced practitioners, but the results for these appeals demonstrated that this was not so. There were senior and competent practitioners in the High Court, and Legal Aid SA had a number of practitioners, of varying experience and capabilities, to handle matters in all courts in the country. There was also emphasis given to the need for quality legal services. In the criminal courts, Legal Aid SA was a dominant player in terms of representation. Its practitioners continued to serve clients, whose experience was recorded and many compared very favourably to practitioners in private practice.

Ms Schäfer asked why the National Head Office of Legal Aid SA showed the highest staff turnover.

Mr Makokoane said that within Legal Aid SA there was an employer value proposition, and he summarised that passion for justice, service excellence, people-centred development and service excellence were key. Legal Aid SA wanted those in the organisation to be a good role model.

Ms Vedalankar added that the figures were probably higher at national office because this office hired more ICT staff, who tended to be more mobile.

Ms Schäfer said that the Committee would need to look at funding of commissions in general, as a separate item. The Department had also commented that it would simply be required, from time to time, to pay for commissions, without having set aside budget, despite the fact that budgets had already been cut. She agreed that it was time to look at having a separate budget for commissions, and for all the implications to be taken into account when they were created.

Judge Mlambo said that he had discussed this point with the Minster; there were numerous commissions in which the Legal Aid SA was becoming involved and it believed that the floodgates had opened. The Minister had agreed with the principles that specific provisions should be made for funding and he welcomed the support of the Committee on this point.

Ms S Shope-Sithole wondered if Legal Aid SA could offer any assistance to others, saying that many other boards would be able to learn much from it. She was impressed that it recognised both the Companies Act and King III, with which many boards seemed to have difficulties.

Ms Shope-Sithole noted that Limpopo only had seven satellite offices. She asked whether the budget allowed for an increase of presence in that province, which was particularly hindered by lack of knowledge of the presence of the Board, backwardness and poverty.

Judge Mlambo reported that there was a new contractor on the new High Court site and in the next ten months the new High Court in Limpopo should be completed. He had also toured the whole province to check the seat of the second court and location of the Magistrate’s court and had engaged with the Regional Executive about placement of staff. The Thoyandou High Court would be servicing other areas further north. There would be more exposure from Legal Aid SA and it would take to heart the need to respond. He noted that in his position as Judge President of Gauteng, he covered this area.

Ms C Pilane-Majake (ANC) asked about the targets for women employment and what had informed them, noting that they were not using a 50% target. She also wondered how many cases that Legal Aid SA took on related to women, and if it would be possible to get statistics of the cases declined.

Ms Vedalankar said that the economically active population figures were used, so that was why the target was not 50%.

Ms Pilane-Majake said that surely this was disadvantaging women, and hoped it would be realigned.

Ms Vedalankar said that actually, by setting the targets against the economically active population, Legal Aid SA was ensuring that it was targeting the right pool. However consideration would be given to linking the targets to the natural demographics.

Mr Nair confirmed that Legal Aid SA could make available the percentage of women represented, but offhand could say that in the criminal matters, more males were represented, and more females in civil matter. He said that the only reason why Legal SA would decline to take on a case was where the applicant for legal aid did not pass the means test, or where the Legal Aid Guide did not provide for legal aid to be granted. He could provide this information but repeated that Legal Aid SA would try not to decline, even where capacity at a particular justice centre might be low, and would try to refer people to another centre or to a judicare practitioner.

Ms Pilane-Majake noted that on average there were 82% convictions and she asked how this was seen, in terms of performance, and whether this was seen as reflecting upon the quality of legal services.

Mr Nair reminded the Committee that the 82% of convictions were matters that went to court and as Mr Swart had noted earlier, the bulk of cases were actually never at that stage. He emphasised that the Legal Aid SA was not saying, in its targets, that clients must necessarily be acquitted, but rather was trying to ensure that they received a fair trial and were assisted by a competent and able practitioner. Legal Aid SA believed it was doing a good job and that the conviction rate did not imply in any way that the practitioners were not doing their jobs. Magistrates gave particularly good feedback about the quality of the justice centre practitioners and their work in court.

Judge Mlambo added that Legal Aid had always collected this information in the past but had tended not to publish it because it was accused then of providing below-par services. The question was not so much how many were convicted, but how many innocent people Legal Aid SA succeeded in having acquitted. It must be remembered that the National Prosecuting Authority (NPA) would go through a screening process and certainly would not convict all those who had been charged. He reiterated that Legal Aid SA was trying to ensure fair hearings.

Ms Pilane-Majake wanted to stress the need to ensure that those represented had a fair trial. She wondered if perhaps the way in which the target was stated was a little misleading, and noted that she had asked a similar question of the Asset Forfeiture Unit. Perhaps the quality of legal services needed to be included in the target.

Ms Pilane-Majake asked why 52% of High Court matters were pending.

Mr Nair said that the targeted turnaround time for High Court matters was twelve months, and after that they would be referred to as backlog cases. There were over 50% of those. Legal Aid SA looked carefully into whether it was in any way contributing to the delays and tried to identify what it could do to work with the stakeholders to speed up and possibly try to process cases through the special backlog courts.

Judge Mlambo added that he saw the statistics regularly and was able to confirm that the finalisation rate for High Court cases was less than that of the Magistrate’s Courts. At the end of each term, reports would be generated about movement on the court rolls, and this was positive because then both the NPA and the Legal Aid SA knew that they would be called to account for why less than the targets of cases were finalised, a system successfully instituted when regional court judges had acted in the high courts. This, however, was work in progress. It must also be remembered that Legal Aid SA could not dictate the pace to the court.

Mr J Sibanyoni (ANC), in adding his commendation to Legal Aid SA, wondered in jest if he should take some of the credit for its vast improvement since 1995, as legal aid had been a focal area of his throughout his parliamentary career. He was particularly pleased to note the increase in civil litigation despite the fact that Parliament in the past had asked it to focus on criminal matters. He asked whether the practitioners at the justice centres were getting exposure to civil cases.

Mr Nair responded that Legal Aid SA had two streams of work. In each justice centre, there were separate criminal and civil units, with dedicated practitioners who tended now to specialise in different fields. There were also over 600 candidate attorneys and as part of their training, they would be moved around to ensure their exposure to all types of work.

Legal Aid Guide 2013
Mr Patrick Hundermark: Chief Legal Executive, Legal Aid SA, tabled the proposals for amendment of the Legal Aid Guide of 2012, noting that when these were passed they would be incorporated into the new 2013 Legal Aid Guide. He also tabbed a booklet that he described as a “client version” of the Legal Aid Guide (LAG). He summarised the mandate as contained in the Constitution and Legal Aid Act and said that when the LAG was amended, it would have to be brought into operation within three months of having been approved by Parliament. The Legal Aid Act did not set out how legal aid should be rendered but it did provide that a Legal Aid Guide must be drawn, setting out clearly the policies and procedures, of what legal aid was available, the procedures, and how a client could apply for legal aid. Section 3A(2) of the existing Act (as the new Bill still had to be approved) said that both Houses had to ratify.

When he had last appeared before the Committee, he ha note that there were no specific provision in the LAG for children in conflict with the law, but provisions had been implemented by way of a Circular. The relevant amendments were now being inserted into the 2013 LAG. Although some cases were not listed in the district court – namely for minor and traffic offences – it was noted that no child could be refused legal aid, even if the specific matters were not listed. Legal aid was extended, since preliminary enquiries were regarded as the first appearance.

In cases where an accused might not initially have decided to appeal, but did subsequently decide to do so, there was provision that the same legal practitioner who handled the matter in the lower court may be briefed to deal with the Leave to Appeal application, as this person would be in a better position to deal with the matter.

Mr Hundermark said that there was a limitation on the number of civil cases that Legal Aid SA would fund for one litigant, in view of the fact that various applicants had sometimes abused the system. There was also provision being made that the Regional Office Executives would have discretion to approve the granting of legal aid in matters where they were satisfied that there was a chance of success, and where the cost of the case was justified by the potential benefit to the applicant for legal aid.

To answer concerns that the elderly were often involved in domestic violence matters, and their vulnerability, the Board had approved that legal aid should be made available to elderly persons, but they were those over the age of 60, and similar requirements to the social services legislation applied. Maintenance matters had been mentioned earlier. Legal Aid SA had note d that about 250 000 maintenance matters were handled a year; it could provide advice, but if the opposing party was legally represented, or where the maintenance matters had been outstanding for longer than twelve months, or where there was an abuse by the other party, such as hiding assets or giving false addressed, the Legal Aid SA could grant assistance, but only to this limited scope.

Mr Hundermark noted that at the moment “small estates” under section 18(3) of the Administration of Deceased Estates Act were define as those with a value of R120 000. Legal Aid SA would grant legal aid where children were involved, to protect their rights, in such estates, with a further exception that it could provide assistance also in an estate that fell outside this limitation, but where the sole asset was an immovable property worth no more than R500 000. 

He reiterated that legal aid could be granted for civil matters, but only where the Board was satisfied, on the balance of probabilities, that the case had merit. In some cases, however, merit reports would  not even have to be drawn – namely, for simple divorces, evictions (to allow the parties to negotiate that extra time be given to allow the occupant to find alternative accommodation), for uncontested divorce, in domestic violence cases, to protect the best interests of the client, and in the administration of small deceased estates involving children.

Legal Aid SA had run a project to test whether mediation service could be provided, bringing in judicare and private practitioners trained in mediation, but there had been some problems around conflict of interest. Another amendment was essentially thus removing the restriction around bringing in judicare practitioners on such matters.

Mr Hundermark noted that the question of Commissions of Enquiry had been discussed that morning. A proposal was now made that where mandated and funded by the establishing authority, legal representation could be provided for matters connected to the Commission.  Legal Aid SA would retain a discretion in some instances to try to allocate assistance (subject to availability of resources) H listed the criteria (see attached presentation, slide headed “3.3”).This proposal was, however, prepared prior to the judgment handed down that week. It was very difficult to deal with a mandate where there were uncertainties.  It made more sense for the funding to be made available by the establishing authority.

The next amendment related to section 204 witnesses used by the state who might be able to negotiate a stay of, or exemption from prosecution in exchange for their evidence. It had not originally been provided for in the LAG, but it was possible that the courts may wish to be addressed on whether the witness should qualify for the exemption, and it was that aspect for which legal aid could be granted.

Extradition was another matter not previously covered.  Legal Aid SA accepted that those faced with extradition orders may face a substantial injustice if not represented. If Legal Aid SA made use of judicare the civil tariffs would apply, despite the fact that extradition courts were sui generis.

The next amendment addressed a management policy issue around tax clearance certification and procurement policies, when Legal Aid SA, at the request of a firm or NGO, hired private practitioners to render services to clients, which could happen particularly where impact litigation or cooperation agreements with university law clinics were involved. The organisation being appointed would have to comply with certain requirements, including tax clearance certification.

Legal Aid SA had its own automated system that did automatic allocations of judicare work, taking into account broad based black economic empowerment requirements, and fees paid over a period of time, not just the number of cases. The system would rank practitioners in line with what they had already received. If the first practitioner accepted via SMS, the case would be allocated to him; if not, after 24 hours it would be allocated to the next practitioner on the list. A problem had arisen there on tax clearance, since the system would block those who had not submitted tax clearance certificates. This had been tightened, and other requirements such as regular proof that the person was in good standing with their professional association, was required. Independent bar associations would have to be verified before their members were. Any misrepresentation on status would lead to removal from the accreditation system.

Mr Hundermark explained the new procedure for appeals where applicants were refused legal aid on the ground that they fell outside the means test. The Constitutional requirement was that legal aid should be granted to those who could not, without it, be able to afford legal representation. The justice centres and regions had a limited discretion to approve legal aid where the person might fall outside this by a certain amount, but more than that meant that the mater would have to go to the National Committee. In some cases, applicants who fell outside the means test could be asked to make a contribution, in monthly instalments, and more specific procedures on that were set out.

Mr Hundermark finally noted that the legal aid tariffs in criminal and civil matters were being increased, on average by 5.2%, for civil and criminal work. He summarised that the LAG was essential to the effectiveness and efficient functioning of the Legal Aid SA, on a sustainable basis and requested the Committee to recommend it for ratification to the National Assembly.

Discussion
Ms Schäfer asked why the contribution policy was confined only to some matters and suggested that clients should surely be asked to contribute anything that they could while they were working.

Ms Pilane-Majake questioned whether the concept of “affordability” was not too open-ended.

Mr Sibanyoni asked how the ready availability of legal aid might impact on, in particular, sole legal practitioners wanting to open their own practices in a small town, whose work had already also been whittled away by the Small Claims Court jurisdiction being raised to R12 000. He reminded Legal Aid SA that in the past its difficulties with practitioners had caused many to close their doors and even get struck off.

Mr Hundermark responded that at this stage, Legal Aid SA had discretion to grant legal aid to those who complied with the means test, although there was a broader discretion where there was an appeal against refusal of legal aid. Clearly, some people whose income was higher than the threshold still could not afford to hire a private legal practitioner, but this was a matter for the broader legal profession to address. The question of affordability arose in relation to criminal defences, where Legal Aid SA had to evaluate affordability against assets and income, and took into account that the longer the trial the less likely that the client could keep paying. Affordability tests brought in a degree of subjectivity, so greater consistency was obtained through the means test, with an additional appeal procedure.

Mr Hundermark understood small practitioners’ concerns, but said that it must also be remembered that Legal Aid SA was not only an organisation that had created enormous employment opportunities within Legal Aid SA over the last fifteen years, but that it also contracted in private practitioners on the judicare system, particularly in the case where it might have a conflict. There were in fact at the moment not enough accredited practitioners with tax clearance certificates to do legal aid work.

Ms Pilane Majake clarified that she had actually been asking about affordability for Legal Aid SA itself, and whether there was a way to ensure that it did not end up being expected to provide services that were unaffordable.

Mr Hundermark said that Legal Aid SA had a constitutional mandate that it must comply with for criminal matters, although there was a need for the profession to look at the gap group and consider how to grow the market for legal services. However, legal aid in civil matters would have to be progressively realised, subject to availability of resources. One justice centre may not have capacity or resources to assist but it must then consult with the regional heads to see whether services could be obtained elsewhere.

Prof L Ndabanadaba (ANC) asked how successful the hotline was. He quipped that he would be failing in his duty as an academic if he failed to award Legal Aid SA a cum laude on performance.

Judge Mlambo said it had apparently served as an excellent deterrent against legal aid clients being asked by a legal aid practitioner to make a separate payment. 

The Chairperson wanted to congratulate Judge Mlambo and his team and noted that today’s presentation was a huge improvement from 1994, when Legal Aid SA had effectively been bankrupt and was surviving on annual bail-outs, had dreadful audit findings, and was unable to pay practitioners, with serious consideration being given to closing it down. He commented that Mr Swart had previously said that the media should report on success stories of which Legal Aid SA was certainly a prime example, and he wished other entities would follow its example.  He was encouraged by the fact that the Minister of Justice had taken a decision in principle to review the Commissions and their funding, and agreed that authorities establishing the commissions should determine the source of their funding.

The Chairperson noted that the Committee was not quorated, and would adopt the new LAG on the following day.

The meeting was adjourned.