Legal Aid Guide: briefing by Legal Aid Board

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
19 March 2002
LEGAL AID GUIDE: BRIEFING BY LEGAL AID BOARD

Chairperson: Chief M Mokoena (ANC)

Relevant Document:
Legal Aid Guide 2001

SUMMARY
After a briefing on the Legal Aid Guide 2001, the Committee moved to recommend that the NCOP ratify the Guide, subject to the Legal Aid Board's assurances that the Board would cooperate with other stakeholders to ensure that information concerning the right to legal aid is adequately disseminated to the public, particularly in rural communities.

MINUTES
The Chair noted the requirement of the Legal Aid Act (Act 22 of 1969), as amended by the Legal Aid Amendment Act (Act 20 of 1996), that the Legal Aid Board annually submit the Legal Aid Guide to the Justice Minister, who must then pass it on to Parliament for ratification.

Mr. Ashley Ally, the Board's CEO, and his colleague, Mr. Peter Brits, author of the revised 2001 Guide, were present to brief the Committee on the key details and revisions to this document.

The presentation by Brits began with his observation that there has been debate on whether to split the Guide into separate administrative procedure and policy components, which may occur in future.

He then summarized the 2001 Guide as follows:
- Chapter 1 deals with introductory issues, but also covers the biggest policy change: instead of providing legal aid via private practitioners, the Board will endeavour to provide it via salaried public employees operating from "Justice Centres" spread throughout SA (27 of which are established, with 60 to be operational by 2004). This will reduce costs by roughly 50% while effectively delivering services. In the interim, via cooperative agreements with the Board, NGOs and specialized and localized legal clinics will continue to supplement services rendered via private practitioners and Justice Centres.

- Chapter 2 discusses the "means test" which determines whether an individual qualifies for legal aid. Brits noted that income thresholds have been marginally raised, and that in civil matters spousal income is relevant, unlike in constitutional matters, and that legal aid is now available to certain juridical entities such as rural land trusts. He also called attention to the Guide's new anti-fraud provisions concerning the means test.

- Chapter 3 is the Guide's main provision, addressing when legal aid is rendered, that is, as a matter of right certain instances pursuant to the Constitution. He remarked that the Board is "nervous" of the expansion of such rights to criminal appellate matters in the wake of current case law, which could lead to a huge increase in the Board's case load, with attendant capacity stress. He expressed optimism that amendments to the Criminal Procedure Act will minimise this risk. He noted that legal aid is unavailable for "minor criminal matters", that is, those carrying less than 3 months imprisonment as a penalty or a fine that can be paid within a reasonable period, and for ordinary theft or assault charges, and for many district court matters. Legal aid is also unavailable for financial disputes, since private practitioners can now handle such cases on a contingency fee basis, but may be supplied in divorce cases, with a stress on use of the more efficient specialised divorce courts. The Guide also contains new sections on land rights and labour tenant matters, and on limited legal aid for refugees/asylum seekers and for Hague Convention matters.

- Chapter 4 describes Legal Aid Officer functions and procedures, and has been updated in accordance with recent administrative justice legislation.

- Chapter 5 describes the Board's relationship with private practitioners it instructs, and sets standards and establishes procedures. Brits remarked that these governing provisions have been tightened, and that there is a new requirement for arbitration of disputes.

- Chapter 6 delineates the Board's VAT position.

- Chapter 7 concerns the Board CEO's discretionary powers, most of which can be delegated, except for fee setting authority. Brits called attention to the Board's practitioner referral procedures, which acknowledge the trend to use of Justice Centres. It directs that instructions not be issued to private practitioners where a Justice Centre could handle the matter, unless the Justice Centre does not exercise its "right of first refusal" to take an instruction. He indicated that the Justice Portfolio Committee had suggested that Justice Centres take all instructions except in special circumstances (conflicts of interest, lack of skills/capacity), but that while the Board agreed with the principle, it recently suggested that other alternatives to such a proposed amendment be considered first.

Discussion
In answer to members' questions, the Board officials made the following points:

It was acknowledged that heterosexual cohabiting couples are not included in the Guide's definition of "spouse", due to the difficulty of monitoring the bona fides of such relationships, but it was stated that such unions will be recognised in the context of legal aid matters to the extent courts do so.

Concerning monitoring of the allocation of instructions to private practitioners, while past abuses of such rosters were acknowledged, a new "quality management system" and other monitoring systems were cited as having improved the situation, with other control mechanisms to be considered as necessary and appropriate.

It was noted that the number of Justice Centres is continually expanding, with new locations primarily in rural areas, and with Department of Justice officials serving as Board "agents" in locales where there is no Justice Centre.