Legal Aid Guide 2001: briefing & adoption; Report on the suspension of Magistrate Zulu: adoption; Department Legislative Program

Meeting report

JUSTICE PORTFOLIO COMMITTEE
12 February 2002
LEGAL AID GUIDE 2001: BRIEFING & ADOPTION; REPORT ON THE SUSPENSION OF MAGISTRATE ZULU: ADOPTION; DEPARTMENT'S LEGISLATIVE PROGRAMME: BRIEFING

Documents handed out:
Legal Aid Guide 2001
Report on the Suspension and Removal from Office of Mr HZ Zulu, additional Magistrate, Port Shepstone (please email [email protected])
Extended Legislative Programme of the Department of Justice: 2002 (see Appendix 1)
Resolution of Committees on Legislation of Department of Justice (1999)
Resolution of Committees on Legislation of Department of Justice (2000)
Resolution of Committees on Legislation of Department of Justice (2001)

Chairperson: Mr JH De Lange

SUMMARY
The Committee passed the Legal Aid Guide after being briefed by the Legal Aid Board.

The Chairperson strongly felt it is immoral to give PAGAD accused special treatment in letting their attorneys be remunerated on a higher scale than other practitioners. He said the situation should be changed and the Board should report back to him on the matter.

The Chairperson also felt that the remuneration paid to professional assistants at the Legal Aid was hopelessly inadequate. The Board has to seriously consider the salaries of top and middle category employees to enable them to view their jobs as long-term careers. It was imperative that these be brought in parity with employees in the Public Service doing the same kind of work such as prosecutors. He asked the Board to keep him posted on the matter.

The Committee adopted its report on the suspension of Mr Zulu, Additional Magistrate, Port Shepstone.

The Department went through its legislative programme for the year, or rather an audit of Bills it has before Parliament and those it intends bringing before Parliament in the course of the year.

MINUTES
The Legal Aid Guide 2001
The Chairperson reminded members that the Committee passed the Legal Aid Amendment Act (Act No 20 of 1996), which provides for a Guide on how the legal aid is to operate.

The Legal Aid Board team comprised of Mr Ashley Ally, CEO; Mr Peter Brits, Executive of Corporate Services; Mr Kuruman Naidoo, Chief Director: IT & Finance.

Mr Brits explained that Chapter 3 contains the principles on the kind of cases which the justice centres work on and priorities. The introduction to the chapter lists cases cited in the Constitution, namely under Sections 28(1)(h), 35(2)(c), 35(3)(g) and 35(3)(o), vulnerable groups, particularly women, children and the landless. The focus is on defendants accused of serious criminal matters. After these the Legal Aid Board (LAB) would prioritise vulnerable groups such as women and children and then the landless.

Mr Brits said regarding criminal matters, the LAB no longer provides assistance for petty offences because these take up resources. The LAB would assist with appeals where a person has been given an unsuspended sentence of more than three months imprisonment without the option of a fine and cannot afford to pay for an appeal. The Board is busy trying to set up an Appeal Sector to handle these matters.

The LAB does not take on Judicare claims sounding in money. The rationale for this is that claimants would be able to fund these on a contingency basis where they have good prospects for success.

Other matters that are prioritised by the LAB are asylum seeker matters and the Hague Convention matters.

The Chairperson expressed concern that the Guide is quiet about people who have problems regarding housing. He recognised that the Guide mentioned the landless but felt this was not enough. He asked how the Board intends dealing with those people taking the TRC on review.

Mr Brits said these would be dealt with like any other applicant in civil matters.

The Chairperson said he has heard that in the PAGAD cases the tariff has been increased. Why is this so?

Mr Brits said this was because the case is more complex.

The Chairperson said he does not believe that people who unleash violence on the public should be given priority or special treatment. It is immoral to do so and they should be given pro deo counsel. He said he has spoken to judges who said that in these matters every trick in the book has been tried because the accused are not paying themselves.

The Board's CEO, Mr Ally, said they have looked at these matters very carefully but have been faced with threats of withdrawal from attorneys.

The Chairperson stressed that if anyone needs special treatment it would be the vulnerable groups, not people who decide that they are going to overthrow the Constitution of the country. He said the Board should give him a report that the situation has been changed.

The Annexures to the Guide
Mr Brits said tariffs payable on Judicare are set out in annexure E and F.
-E1 sets out the previous tariff.
-E2 sets out tariffs in respect of appeals. Mr Brits said there has been a surcharge of 10 per cent introduced in 2001 to cater for inflation.
-E3 sets out tariffs in respect of criminal trials. He said the work is to be verified on the court record. No provision is made for preparation as this cannot be verified but that payment for this is included in the trial fee.
-F1 provides for general matters.
-F2 sets out tariffs in respect of civil matters generally. Mr Brits said the tariff no longer works like the statutory tariffs set out in the Rules of Court.
-F3 provides for disbursements.
-F4 sets out tariffs in respect of domestic violence.
-F5 sets out tariffs in respect of asylum seeker and Hague Convention matters.

Mr Brits said that acceptance of applicants for Legal Aid assistance is determined by a means test as set out in Chapter 2 of the Guide. The actual test is in annexure G. The test makes provision for considering income and property so that one who has no income but property is still catered for by the test. The constitutional test is affordability while the means test is whether or not one is indigent.

Mr Brits said the important principle set out in annexure O is that public defenders are given the work first and where they have no capacity it is given to practitioners on Judicare.

The Chairperson said he feels Legal Aid staff should not have a choice whether or not they want to do matters. They are public employees and should work as prosecutors.

Mr Ally said the Board has benchmarked cases that are done by the LAB in the Regional Courts and have found that about 60 per cent of matters in the regional court are done by Legal Aid.

Mr Brits said the move from Judicare towards Justice Centres is a huge saving to the Board. In the past the Board spent about R210 million on Judicare while about R160 million runs the clinics. Salaries for legal aid professional assistants amount to R5000 for a first year, R6600 for a second year and R8000 for a third year. There are no benefits attached to the salary except the statutory leave.

Adv de Lange said the LAB has to look at parity with people doing the same kind of work in the public service such as prosecutors, to enable people to make a career of their employment at legal aid. He thought that the salaries cited by Mr Brits sounded inadequate. This is especially important regarding top and middle category people because the Board is not going to attract quality people with the kind of salaries it currently pays (its Professional Assistants). The Board should seriously consider that it pays decent salaries and allow for a possibility of making a career for top and middle category people. He asked the LAB to keep him posted on the issue.

Mr Brits said there is no choice to the applicant on who to represent them. Annexure O provides for a fair distribution of Judicare by the Legal Aid Officer. The remainder of the Guide provides for the contractual relationship between the Board and practitioners.

The Chairperson praised the Board on the good work done on the Guide and suggested that the Committee pass the Guide. He read the resolution of the Committee and the Guide was passed unanimously.

The Suspension of Magistrate Zulu
Adv de Lange was asked to approve the suspension of the Additional Magistrate of Portshepstone, Mr Zulu. The Committee did not approve this on the basis of the independence of the Judiciary.

He referred to the report currently before the Committee which said the House should remove the matter from the Order Paper since the Minister of Justice had reinstated Mr Zulu and paid his remuneration for the period of suspension on the ground that proper procedures were not followed.

The Report further says that the Department of Justice should review the misconduct procedures relating to magistrates in terms of the Magistrate's Act, 1993 and the Regulations for Judicial Officers in Lower Courts, 1994, in view of problems experienced regarding this matter. The Department has to report back to the Committee regarding the matter.

The Report was adopted.

Extended Legislative Programme of the Department of Justice: 2002
The Chairperson said he wants a schedule from the Department on non-legal matters because at times it happens that the National Assembly passes these matters but for some reason it does not go through the National Council of Provinces.

Outstanding issues were the Protocol on Criminal Court for Africa, the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (UNAFRI), which the Department is no longer interested in pursuing since a number of states indicated that there is no longer a need for it. He wondered if the Department should not withdraw it from Parliament.

Mr Rudman (Department) presented the programme of the Department on legislation to the Committee.

The Chairperson identified the important Bills named in the Extended Legislative Programme of the Department of Justice and Constitutional Development: 2002:
1. Superior Courts Bill;
2. Special Investigating Units and Special Tribunals Amendment Bill
3. Legal Practice Bill;
4. Sexual Offences Bill;
5. Criminal Procedure Amendment Bill;
6. Judicial Matters Amendment Bill (SA Law Commission Amendments, bail and other urgent ad hoc amendments)
7. Administration of Estates Amendment Bill. The Chairperson said this Bill needs rethinking to look at creating a whole new system of intestate estates not just regarding Blacks. He said the matter regarding the making available of dockets to the defence was also vitally important.

Also important are the South African Human Rights Amendment Bill, Compulsory HIV Testing for Sexual Offenders.

The meeting was adjourned.

Appendix 1:

EXTENDED LEGISLATIVE PROGRAMME OF THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT: 2002

A: BILLS BEFORE PARLIAMENT:
1. Institution of Legal Proceedings Against Organs of State Bill [B65B-99]
2. International Criminal Court Bill [B42-2001]
3. Interception and Monitoring Bill [B50-2001]
4. Judicial Officers Amendment Bill [B72-2001]
(4)
B: BILLS TO BE INTRODUCED INTO PARLIAMENT DURING THE FIRST 6 MONTHS OF 2002:
1. Constitution of the Republic of South Africa Amendment Bill ("crossing the floor" at local level of government)
2. Constitution of the Republic of South Africa Second Amendment Bill (consequential redetermination of NCOP composition in event of "crossing the floor")
3. Prevention of Corruption Bill
4. Child Justice Bill
5. Re-enrollment of Certain Legal Practitioners Bill
6. Compulsory HIV Testing of Sexual Offenders Bill
7. Insolvency Amendment Bill
8. Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill
(4+8=12)

C: BILLS TO BE INTRODUCED INTO PARLIAMENT DURING THE LAST 6 MONTHS OF 2002:
1. Superior Courts Bill
2. International Arbitration Bill
3. Domestic Arbitration Bill
4. Prevention of Organised Crime Amendment Bill
5. Special Investigating Units and Special Tribunals Amendment Bill
6. Legal Practice Bill
7. Sexual Offences Bill
8. Criminal Procedure Amendment Bill (Steyn judgment)
9. Judicial Matters Amendment Bill (Provisional: SA Law Commission amendments, bail and other urgent ad hoc amendments)
10. Administration of Estates Amendment Bill
11. Customary Law of Succession Amendment Bill
12. Promotion of Access to Information Amendment Bill
(12+12=24)

D: OTHER BILLS TO BE INTRODUCED INTO PARLIAMENT AS SOON AS CIRCUMSTANCES PERMIT, EITHER DURING 2002 OR LATER:
1. Sharing of Pension Benefits Bill
2. Criminal Procedure Amendment Bill (Appeals by the State)
3. Access to Minor Children Bill
4. Public Interest and Class Actions Bill
5. South African Human Rights Commission Amendment Bill
6. Prohibition of Hate Speech Bill
7. Sentencing Bill
8. Extradition Amendment Bill
9. Traditional Courts Bill
10. Application of Customary Law Bill
11. Compensation of Victims of Crime Fund Bill
12. Control of Unreasonableness or Oppressive in Contract or Terms Bill
13. Rules Board for Courts of Law Amendment Bill
14. Review of the Insolvency legislation
15. Constitutional Jurisdiction of Lower Courts Bill
(24+15=39)

E: LEGISLATION PASSED DURING 2001:
1. Special Investigating Units and Special Tribunals Amendment Act, 2001
2. Supreme Court Decree (Ciskei) Amendment Act, 2001
3. Criminal Procedure Amendment Act, 2001
4. Administration of Estates Laws Interim Rationalisation Act, 2001
5. Constitution of the Republic of South Africa Amendment Act
6. Interim Rationalisation of Jurisdiction of High Courts act, 2001
7. Judicial Matters Amendment Act, 2001
8. Judges' Remuneration and Conditions of Employment Act, 2001
9. Constitution of the Republic of South Africa Second Amendment Act, 2001
10. Criminal Procedure Second Amendment Act, 2001