Legal Aid Board: Strategic Plan & Budget 2009/10 briefing

Meeting report

Legal Aid Board: Strategic Plan and budget 2009/10 briefing
Judge Dunstan Mlambo, Chairperson, Legal Aid Board, gave some introductory remarks that focused on the mandate of the Legal Aid Board  (LAB or the Board), the legislative framework and the historical challenges faced by the legal aid system in South Africa. He also pointed out that increased staffing had occurred and noted with pride that in 2000 there had been only 8 offices, but that in 2009 there were now 62 Justice Centers. He highlighted to the Committee that the budget for this financial year was just slightly above R900million. He also highlighted that for the past four years the LAB had an unqualified audit, which it considered to be an outstanding achievement.

Ms Vidhu Vedalankar, CEO, Legal Aid South Africa, gave a presentation on service delivery and noted that there was a need to increase the numbers of civil cases. She highlighted that the practitioner quality scores were high, and that the Board had furthermore increased the number of qualified attorneys on the staff. She then focused on finance and sustainability (see attached document) and listed the challenges to the delivery of legal aid (see attached document).

Discussion
Mr J Jeffery (ANC) congratulated the Board for an impressive presentation. He highlighted that the Board should be congratulated for the work it had done, saying that a comparison between where the Board was and what it used to be, and its achievements to date showed “an impressive and dramatic” improvement. He added that prevailing perceptions of the Legal Aid Board such as the notion that it took too long to finalise matters because practitioners never arrived for the cases were anecdotal. He would therefore suggest that what the Committee needed to do, as part of its oversight duties, was to make unannounced visits in provinces to really assess the workings of the system. In addition the Committee also needed to visit courts, as this would allow Members to meet the actual role players.
 
Judge Mlambo replied that the Board would very much welcome these visits because they would enable the Committee to gain an insight into the running of the Legal Aid Board. He added that he would be more than happy to have more Members come to the justice centers unannounced and check how the Board was treated.
 
Mr Jeffery asked the Board to explain the difference between a Justice Center and a satellite office. 
 
Mr Brian Nair, National Operations Executive, Legal Aid South Africa, replied that the Board’s primary delivery system was through the Justice Centres. However, because one Justice Centre covered more than 200 square meters, practitioners had to travel long distances to reach the courts, and this was neither efficient nor effective. Therefore, a satellite office was a branch office of the Justice Centre, equipped with practitioners and assistants. These offices allowed the Legal Aid Board to perform its duties more efficiently and effectively and cover more area, and resultantly increase its footprint. 
 
Mr Jeffery asked if the Board had looked into the option of making visits to remote areas on a weekly or fortnightly basis, in an effort to increase the accessibility of the Board. He made this suggestion in relation to areas like the Northern Cape since he argued that such constituencies were very vast with many remote areas that may not have a satellite office or a Justice Centre. These remote areas also tended to house poor people who needed the services of the Legal Aid Board.

Mr Jeffery asked for an update on the farm dwellers’ issue, and on the issue of the outstanding fees to practitioners.
 
Mr Patrick Hundermark, Legal Development Executive, Legal Aid South Africa, replied that in relation to farm dwellers he wanted to clarify that the Board had two programmes running, and land restitution was being handled by the Ministry of Rural Development and Land Reform. The Legal Aid Board had tried to set up a cooperation agreement between the Ministry and itself, but this did not work out and the Department decided to go with its own scheme. The Board had invited tenders for eviction cases, and the tender was won by a private law firm. However, the Board had concerns over the sustainability of such a system.
 
Mr J Sibanyoni (ANC) agreed with Mr Jeffery, and added that the issue of the outstanding fees had not only, in the past, led only to the near-collapse of the Legal Aid Board, but had in fact led to the collapse of sole practitioners who were waiting for the payment of the fees. This was an important matter, and he was happy to know that the issue had been turned around.
 
Mr S Holomisa (ANC) commented that he too was glad to hear that the problem of non-payment of legal practitioners’ fees had been resolved. He requested that the Committee be given more information on this collaboration with lawyers, as he used to hear a lot of complaints over this issue.
 
Mr Sibanyoni asked for the amount the Board had paid in relation to Judicare. He wanted to make a comparison as to how much it would cost to have a legal practitioner take a matter on a legal aid basis, and was furthermore wanting to analyse whether the payments were so small that they might discourage legal practitioners from taking up legal aid matters.
 
Judge Mlambo replied that he was not exactly sure of the number of cases but in respect of the matters that were dealt with on the judicare basis, which were less than 50 000 in number, this had cost around R89 million.
 
Mr Sibanyoni asked if the Board was working on improving the public perceptions about itself. He noted that past experience had shown that if an unrepresented accused was asked if he wanted to have the services of a Legal Aid lawyer, he would often refuse, because they assumed that since the State was prosecuting, a State Legal Aid lawyer would not give them fair representation. They had also held the opinion that such lawyers did shoddy work, and would thus prefer to proceed to trial without legal representation.

Mr Hundermark replied that the Legal Aid Board was engaging with the Justice College, who trained the interpreters. He pointed out that the interpreters normally interpreted what a competent authority asked them to convey to the accused about his or her constitutional rights, and both magistrates and interpreters were being trained how to read out and inform the accused persons of their rights and explain the position properly. In addition the Board’s regional representative would go to the Justice College with the sole purpose of giving interpretation training.

Judge Mlambo added that the bad public perceptions were a legacy of the judicare system, and the practitioners who still consulted with clients only in the courts, shortly before the trial, would invariably be judicare practitioners who had no time for consultations. He was happy to highlight to the Committee that judges and magistrates preferred to deal with Legal Aid’s in-house practitioners as opposed to judicare attorneys.

Mr Sibanyoni highlighted that when the Committee had visited Pollsmoor one of the key issues raised was that Legal Aid Board practitioners never bothered to consult with their clients whilst they were being held in prison, and in most cases consulted with their clients for the first time in court.
 
Ms Cordelia Robertson, Regional Operations Executive, Legal Aid South Africa, replied that the Board was experiencing some very special challenges with Pollsmoor prison. In most cases the Board was not allowed to see its clients, or, if the legal practitioners did make arrangements to meet with their clients, they would often be told, at the time arranged for the consultation, that the clients could not be found. This had been the situation two weeks ago, when she had made arrangements to consult with a client in Pollsmoor. After waiting for two hours, without the client being found, she had had to leave without consulting with the client. In addition, Pollsmoor prison did not allow consultation after 14:00 on any day, so the Board had to visit as early as possible. These challenges were being dealt with, and the Legal Aid Board had called a meeting with the Area Commissioner to discuss that issue.
 
Mr Nair agreed that there were a lot of cases where the Board was accused of not consulting with the clients prior to the court date. However, the Board was very particular on what it required of its practitioners, and as a whole had met the consultation requirements. Those clients who were only consulted on the actual court date were the exception, but this was claimed to be the norm. He pointed that whenever consultation occurred on the date of trial, there would be good reason for this. Some cases might be because of Ms Robertson’s point that the prison claimed that the client could not be located. In other cases the clients were out on bail, and they failed to come to the Legal Aid offices, perhaps due to shortage of funds to pay for transport. The Legal Aid practitioners could do nothing about such situations other than be forced to consult in court, which was embarrassing. However, the Board, in order to ensure that this was kept to a minimum, would require its practitioners to make a note as to the reason why consultation took place only on the day of the trial, in cases where this did happen.
 
Mr Sibanyoni asked for an update on the Boeremag case, whether it was nearly finalised, and how much had been spent on the case.

Mr Nair replied that the Board was expecting the matter to be finalised in the next financial year, since the State had closed its case, the defence was now in progress, and more than half of the case had been dealt with. The case had already cost in excess of R20 million.
 
Mr Holomisa asked if the Board had interventions when it came to legislation that obliged the Board to be involved, but where it might later discover that the Department of Justice and Constitutional Development (DOJ) had not made financial provisions for the Board, resulting in unfunded mandates. He further asked if the Board monitored the passage of the legislation so that when it came to funding it could hold the Department responsible for funding.
 
Mr Hundermark replied that the Board did monitor how legislation was likely to impact on the Board and its potential client base, and one of the issues looked at was the costing of the implementation of the legislation. As a result the Board had made various presentations to the Committee regarding legislation that was likely to have an impact. Another problem was that the issue of impact was invariably linked to statistics, and most of the statistics were not one hundred percent accurate, so that the Board was relying on dubious or incomplete statistics. He thought that the issue was really how the money was being allocated and divided.
 
Mr Holomisa asked what measures the Board had put in place to increase the accessibility of the Board to poor people in rural areas, and whether it had ever looked into using traditional authorities to become more accessible to those needing the Board’s services.

Judge Mlambo replied that some time ago he had attended the opening of the (as then named) Umtata Justice Centre, and had expressed his thanks for the opening of an office in what was then considered to be a rural area. He had always been particularly interested in the outreach to rural areas, which was good. He added that the Board also had to bear in mind that it was not just a question of whether the Board could reach the people, but whether the people found the Board to be accessible. However, this was a continuing issue, which he promised would continue to receive attention.

Mr Nair added that the Board had good working relations with the traditional leaders, but had not previously considered the option of using their offices.
 
Mr Sibanyoni asked, in respect of restitution of land rights, whether the Board acted on a case-by-case basis, as each person submitted a claim, or whether it would deal with joint actions, or deal with all people evicted.

Mr Holomisa remarked that in respect of land restitution, Extension of Security of Tenure Act matters and Prevention of Illegal Occupation Act matters, he had noted a remark, on slide 69, that funds were yet to be made available. He asked whether it was because the formerly named Department of Land Affairs was reluctant to hand over the funds to the Legal Aid Board, or whether the Department had wanted to set up its own lawyers and system. He had understood that funds had already been allocated, so he was not sure why they had not been released.

Judge Mlambo replied that the Board’s presentation had mentioned that the money was still to be made available, but in actual fact the matter had now taken another direction, as the Department of Land Affairs had decided to outsource this work, and the tender was won by Cheadle, Thompson and Haysom, a firm of attorneys, on a judicare basis. The Board had its own views on the sustainability of this system, but referred any matters of this nature to this firm of attorneys. The Board had tried to establish a cooperative relationship with the Department of Land Affairs, but the Department had decided to go though the judicare route. He still believed that the Legal Aid Board, on a national basis, had the resources, including in rural areas, that would enable the work to be done, and he noted that the Board had proved that using in-house practitioners was more cost effective. 
 
Mr Holomisa referred the Board to page 59 and asked what it meant by co-operating partners.
 
Mr Nair replied that the Board would enter into agreements with partners such as Non- Governmental Organisations (NGOs), universities or clinics to render legal aid services on its behalf when the Board itself might not have a have a particular skill, or where it may not reach certain areas, to ensure that the gap was nonetheless filled, and the Board would then fund the cases being taken up by its partners.

Mr Holomisa asked what was direct expenditure, as opposed to other expenditure such as operational expenditure.
 
Ms Rebecca Hlabatau, Chief Financial Officer, Legal Aid South Africa, replied that this was expenditure incurred in the direct delivery of services. 
 
Ms N Michael (DA) remarked that the Board had done an exceptionally good job, considering its constraints. She recommended that the Board be made more visible, especially to final year law students, as a viable option for articles training. She said that, regrettably, working in the Legal Aid Board was perceived as “unglamorous” compared to working with a private law firm, and that when she had finished her legal studies she was not even aware that she could have done her articles with the Legal Aid Board.

Judge Mlambo highlighted that the Legal Aid Board did have representatives visiting the universities to advertise and promote the Board, but perhaps it was less visible than the law firms that came with specific recruitment purposes. He conceded that this might be one of the areas that need to be worked on.
 
Ms Michael recommended that the work of the Legal Aid Board be built into the legal education system, as she felt that the law schools were offering a number of subjects that were of little use.

Judge Mlambo agreed that this was a good suggestion.
 
Ms Michael asked if there was no discretion built into the means test that the Board used to determine who qualified for legal aid, particularly if there were extenuating circumstances. She cited a particular instance that she had recently come across, where a woman had earned more than R10 000 after tax, and thus fell outside the means test, but the fact was that she was a single mother of four children, and had no money to spare for legal fees. Her application had been rejected by the Board.

Mr Hundermark replied that the means test did specify a figure, but that there was some discretion allowed. In terms of paragraph 2.2(a) of the Legal Aid Guide, the National Operations Executive had had a discretion to consider the application of a person who might not qualify under the means test, but who, when judged objectively, was indigent or required special consideration under the circumstances. Not only was there this discretion, but everyone who had been refused legal aid was advised, by way of a standard letter, what they could do and what process should be followed to appeal against the refusal. The means test did not spell the end, but it was rather a starting point to determine whether a person was deemed indigent. The fact that one might be able to afford a trial did not necessarily mean that one could afford a long drawn-out trial. This was another of the factors being examined. About 5% of cases fell into the bracket where further consideration should be given to other factors, and there was a special committee that dealt with such issues in terms of the Legal Aid Guide.
 
Mr M Gungubele (ANC) asked the Board why and in what form the Legal Aid Board was created.

Judge Mlambo said that he understood Mr Gungubele to be asking for the context in which the Board cast its strategic plan. He said that the Board had dealt with this comprehensively in its Strategic Plan document, which was available. This Strategic Plan had been submitted last year to the Minister, in terms of the regulatory requirements. This information was also going to be in the document packs the Board would be giving later. He added that he was more than happy to come back and discuss the strategic plan with the Committee if it so wished, and that he had not dealt with it in depth today because this would have made the presentation too long.

Mr Jeffery asked what training relationships there were between Justice Centres, the Legal Aid Board staff and Community Development Service workers, noting that the latter were playing an increased role at the local government level, in terms of giving advice.

Mr Nair replied that the interaction of the Legal Aid Board staff with the Community Organisations was aimed at increasing access. All heads of all offices of the Board were to network with NGOs, and make them aware of what services were being provided, so that they would know when and where to refer the clients. The Board was going even further in areas where the Board was not receiving as many “walk-in” clients as it expected, by sending out some of its paralegals on regular days to go and give advice at community facilities and increase the awareness of the Board.

The meeting was adjourned.