Committee. The focus areas in respect of legal service delivery, support services and governance were fully outlined. LASA was still trying to increase access to justice, within its financial resource constraints, to improve the practitioner per court ratio, and to improve specialist capacity, particularly in labour matters. It was consolidating staff development and needed to improve the IT platform. New client call centres had been launched in this year, and agency agreements were implemented to improve coverage of courts in rural areas. Thirteen civil units were established in the large justice centres, which also supported smaller justice centres, to improve coverage of civil matters. LASA had achieved its tenth consecutive unqualified audit report. It operated in a strong governance framework. Details were provided of the new centres and their locations, the staffing structure, pointing out that 78% of staff were legally trained, the civil and criminal maters undertaken, and the sixteen impact litigation matters. 96% of LASA’s work was now undertaken by its own justice centres, with 3% done under Judicare. The numbers of persons assisted had increased to about 421 000, although less children were now represented, probably because more matters were being diverted. 257 000 people were assisted with advice. LASA tracked cases, and performance of its practitioners, carefully, aimed to reduce the numbers of accused who were not represented in the lower courts, and tried to maintain strong recruitment levels, within budget, and to offer staff training and leadership and succession planning.
The report on financial performance indicated that LASA had spent 99.2% of its budget, and had achieved a surplus, compared to the deficit of the previous year. However, it had made a request to National Treasury for additional funding of R233 million, for increased practitioner numbers, to increase civil capacity, to expand the national footprint with conversion of satellite offices and establishment of new offices, and to upgrade its system. LASA also provided feedback on matters raised by the Committee in respect of the Budget Review and Recommendations Report, in relation to Occupation Specific Dispensation, which was now included in the baseline, increased court coverage, and how matters would be allocated, an allocation of R11.2 million to increase civil capacity, and how LASA was training and implementing the Child Justice Act. The five cooperative agreements and five agency agreements were outlined. LASA cited its challenges as including only 80% coverage of district courts, high caseloads, access to offices, and the limited capacity to offer legal aid for civil matters, as well as financial constraints that had caused it to seek donor funding. However, LASA maintained that it showed strong and excellent performance overall.
Members were unanimous in their appreciation of the work done by LASA, and expressed their particular thanks to the Chairperson. They questioned some complaints about access, since stakeholders in
Legal Aid South Africa Annual Report 2010/11
Judge Dunstan Mlambo, Chairperson, Legal Aid South Africa, noted that the Annual Report for 2010/11 was the first integrated report containing both financial and non-financial performance matters, and it reported on the “triple bottom line” of social, economic and environmental considerations. This Annual Report also included reports on an overview of Legal Aid South Africa (LASA) and its operating context, including issues and trends impacting on the organisation, sustainability, corporate social investment and stakeholder engagement. LASA took its stakeholders very seriously. This report also reported on compliance with global sustainability reporting initiatives.
The financial year 2010/11 represented the second period of the 2009 to 2012 strategic plan. There was a focus on legal services delivery, to try to increase access to justice within resource constraints, to increase the practitioner per court ratio, to improve specialist capacity to serve vulnerable groups, particularly in labour matters, to consolidate the brand, and implement programmes and projects from the Criminal Justice System (CJS) Review.
The main focus of support services was intended to increase financial maturity, to consolidate people development programmes, to enhance the IT platform, and to improve the LASA Corporate Electronic Dashboard. He noted that LASA was on target, overall, on performance.
In respect of service delivery, he noted that client call centres had been launched, and LASA had introduced agency agreements to improve coverage of courts in rural areas. Thirteen civil units were established in the large justice centres, which also supported smaller justice centres, to improve coverage of civil matters. In support of delivery, LASA had maintained its strong governance and financial management platforms. It had achieved its tenth consecutive unqualified audit report. It was accredited as second best employer.
LASA operated in a strong governance framework, with an effective and functioning governing Board and Audit Committee. It complied fully with relevant legislation, and had implemented all of the King III recommendations on corporate governance. It had complied also with the two requests for information that it had received in terms of the Promotion of Access to Information Act (PAIA). The Board had held five meetings. Two of the Board Members’ terms of office expired, and three resigned, but another four were appointed to replace them. There was still one vacancy on the Board. LASA had completed its first external valuation undertaken by the
Ms Vidhu Vedalankar, Chief Executive Officer, LASA, noted that all the details of performance were in the Annual Report. She noted the opening of one new satellite office, thirteen new justice centres and a call centre. She tabled the location of the justice centres and satellite offices. A graph showed growth in staff from 2001 to 2011, and she pointed out that 78% of staff were legally trained. She also tabled slides showing the criminal and civil matters handled in the financial year (see attached presentation for full details). LASA had undertaken 16 impact matters. 96% of its work was now done by its own justice centres, with 3% done under Judicare. All figures were compared to those in the previous financial year.
Ms Vedalankar then tabled schedules of new and finalised matters, by court type (see attached presentation), including civil and labour matters. She noted that the types of matters were split, with about 60% of matters relating to aggressive crime and 18% to economic. The bulk of the civil work was related to family law matters, and there was about 19% civil work and 21% involving children. The numbers of persons assisted with legal aid had increased to more than 421 000.
Ms Vedalankar reported that LASA was keeping a close track on the progress of cases, and tried to ensure that they were not pending for longer than six months, as well as limiting the targets for the numbers of cases that could potentially take this long. There was a substantial drop noted in the number of child-related matters, primarily because of the Child Justice Act, which had resulted in far more matters being diverted. 257 000 people were assisted with advice, which was a substantial increase from the previous two years, and she pointed out that of these numbers, about 13 962 were handled by the advice line, and this was likely to rise.
LASA also tracked the number of automatic reviews, when clients were unrepresented in the lower courts, and tried to reduce that figure. In this financial year, about 7 000 people, or about 23%, were unrepresented. LASA was also tracking quality scores of practitioners, and planned interventions to improve their quality, with higher targets for quality of practitioners than applied to the candidate attorneys and professional assistants. However, all targets had been achieved.
Ms Vedalankar reported that LASA had consolidated its management practices, through matrix management and risk based management. Business intelligence was rolled out as a tool for information management and decision making, and this was now available to all practitioners who were able to check their own performance. In the last year, LASA had achieved 95.9% recruitment levels. The turnover for staff, excluding candidate attorneys on contract, was 8.46%. In addition to recruitment, there were leadership development programmes. The leadership pipeline and competency framework had been finalised, and succession planning was implemented, with psychometric assessments for managers. There was a programme to build value-based leadership, and thirty candidates had completed the
LASA had moved to the Virtual Private Network (VPN) on the IT platform front. Because of the number of offices and the distances between them, LASA was heavily dependent on IT, and its networks were not yet sufficient.
Ms Rebecca Hlabatau, Chief Financial Officer, LASA, then tabled the reports on the financial performance. The total budget of LASA for 2010/11 was R1.2 billion, and 99.2% of budget had been spent. She outlined the different line items, showing that more than 97% of allocated funding was spent on each item. About 7% of expenditure went to salaries, as LASA was human-capital intensive.
She then presented the balance sheet, showing also a comparison to the previous financial year (see attached presentation). In the previous financial year there was a deficit resulting from non-cash-flow items, but in this financial year LASA had achieved a surplus of R32.7 million. There was an increase in the cash flow statement because of an increase for Judicare provisions.
Ms Hlabatau then noted that the budget and expenditure patterns throughout the year were more or less in line with each other. She repeated that 99.2% of the budget had been spent, with no over-expenditure, and this had in fact been the trend for the past seven years. There was efficient asset management, and a functional and efficient supply chain management committee was in place. 99.9% of creditors were paid within 30 days, as required by the Public Finance Management Act (PFMA) and 99.6% of judicare accounts were paid within 30 days. She reiterated that this was the tenth year in succession in which LASA had achieved an unqualified audit report, and the sixth year in succession in which the Auditor-General raised no matters of emphasis.
Ms Hlabatau noted that in the outer years of the Medium Term Expenditure Framework (MTEF), no allocations were made for the case backlog, and there had been budget cuts throughout government. Capital expenditure would be higher in the 2013/14 financial year as many assets would require to be replaced. LASA had made a request for additional funding of R233 million, which was approved by the Board and submitted to National Treasury. Additional funding was requested for increased practitioner numbers, so that LASA could have 100% coverage in all district courts, and higher coverage in regional and high courts.R54 million had been requested to increase civil capacity. LASA had requested another R37 million for expansion of the national footprint, as it would like to convert six satellite offices to justice centres, and to establish another four satellite offices and one additional completely new justice centre. As mentioned before, LASA was very dependent on IT, and had requested another R7.5 million to upgrade these systems. National Treasury had not yet provided a response on these requests.
Budget Review Recommendations Report 2009/10
Ms Vedalankar noted that a number of matters had been raised by the Committee in relation to the last Budget Review and Recommendations Report. The first issue questioned the progress on Occupation Specific Dispensation (OSD) and she reported that this was now resolved, with phase II being implemented, and OSD was included now in the baseline allocation.
The next question related to court coverage, and in response to this, she tabled a schedule showing how R20 million additional funding had been allocated to increasing legal capacity, with R8.8 million used to increase capacity for criminal legal aid, and R11.2 million to increase civil capacity. District court coverage improved from 80% to 83%, and regional court coverage improved from 95% to 96%. This meant that LASA had a presence at every court. In the district Court it covered the courts for four days a week, and on the fifth day the LASA employees would not attend court, but deal with preparation. In the
In relation to the questions on civil legal aid, she reiterated that R11.2 million of the MTEF additional funding had been allocated to increasing civil capacity. A table set out the various categories and numbers of cases (see attached presentation, slide 60).
The Committee had also questioned what LASA was doing in relation to the Child Justice Act, and the level of implementation of this Act. She noted that all LASA practitioners had undergone training, but there was currently no requirement that legal representation be available for all preliminary inquiries. There was a decrease in the number of children’s matters handled, attributed to the diversion being implemented under the Child Justice Act.
Ms Vedalankar finally noted that LASA had five cooperative agreements and five agency agreements, as set out in the presentation.
Judge Mlambo then summarised the challenges of 2010/11. Many had been mentioned earlier. The coverage of district courts was still only at 80% overall, and LASA practitioners still carried high caseloads. Access to LASA offices remained a challenge, as well as the limited capacity to render civil legal aid services. Linkages with community organisations and non-government organisations (NGOs) could be improved. There was an ongoing need to monitor and improve the quality of legal services, which was the reason why LASA was intent on tracking quality, rather than being complacent. Branding and stakeholder relationships also still needed to be further addressed. From a financial point of view, escalations in rentals and costs of premises were higher than the increased funding allocated to LASA, and LASA was lobbying for donor funding. In relation to employees, employment equity targets still had to be met, but LASA was working on this. It wanted to continue to build an effective and responsive IT platform.
Judge Mlambo summarised the performance achievements, described in more detail earlier. He was particularly pleased to note that the paralegal assistance, or front line assistance, was working well, in addition to other new matters taken on and finalised. Quality targets were achieved for all categories of practitioners. He reiterated the achievements in relation to the finances and sustainability, business processes, and employee and organisational strategies. He noted that there had been good scores and there was substantial outreach to citizens. The project with the Master’s Office had been rolled out to all offices. The excellent performance of several employees was recognised at the Achievers Awards.
Mr J Jeffery (ANC) noted that LASA’s presentation was once again very impressive and professional, and he thanked Judge Mlambo and his staff.
Mr Jeffery raised a question around access, noting that during a recent visit to the
Mr Brian Nair, National Operations Executive, LASA, noted that about 75% of LASA employees were candidate attorneys. They were required to attend the Practical Training Schools, and to write their Board examinations. However, the dates for this were known and LASA was trying to plan around these dates, with the stakeholders. In many cases, the planning was well done and effective, but there were certain courts in which legal aid matters played such a dominant role that absence of LASA practitioners would cause disruption. It was possible to appoint judicare practitioners during the absence of the LASA candidate attorneys but some cases may still not be able to proceed. One way to overcome this problem might be to change the model. However, he wanted to stress that LASA played a significant role in employing candidate attorneys and providing access to the profession, particularly where there were partnerships.
Ms Martha Mbhele, Regional Operations Executive, LASA, added that in the
Judge E Molahlehi, Deputy Chairperson, LASA, added that one of the key challenges that LASA faced was the integration of electronic case management flow. The LASA Board was able to track issues, and look at quality of practitioners, but the same was not true of other stakeholders, and they had not yet reached the stage of other countries, where as soon as a case was opened by the police, this information would be available to prosecutors, defence lawyers and magistrates, so that they could try to manage the case flow. He said that some of the complaints suggested that LASA was reneging on its duties by not always having sufficient practitioners available. He too wished to stress that LASA was in fact providing high training capacity, and was insistent that all its candidates must be given the opportunity for training and to write their examinations.
Mr Jeffery asked for a further explanation about the agency agreements, and how these differed from Judicare. He noted that the areas where the agencies were based did not seem to be deep rural areas, and he wondered if these should be covered rather by the justice centres.
Ms D Schäfer asked why UCT was not part of the university-under-cooperation agreements.
Mr Nair said that a cooperation agreement implied funding, but not full funding, as the agency would also bring in something; in a typical example operational costs might be paid by the cooperation partner, whilst LASA might pay for lawyers. An agency agreement involved a contract between LASA and a practitioner who had an office near a particular court. The attorney would handle all LASA matters at that court, and would be paid a rate 25% lower than what LASA normally paid for Judicare. In relation to the location of the offices, he noted that the schedule might be misleading, as “
Mr Jeffery still did not understand the purpose of the agency agreements, saying that they seemed, like Judicare, to essentially involve sub-contracting work to private practitioners, and he wondered why agency agreements would be sought if LASA had found that it was more effective to have Justice Centres. He also felt that more information was required on the offices and their location.
Mr Nair explained that the “Bloemfontein Justice Centre” in fact dealt with agency agreements in a number of other areas, and the same was true of every other Justice Centre named in the schedule. The primary reason why LASA would contract out the work under an agency agreement was that it would be too expensive, because of distance, for the Justice Centre to travel to that court, and there were not enough judicare practitioners in these remote areas. LASA would engage with the law societies and, with their cooperation, invite practitioners to bid, provided that they were prepared to open a local office close to that court and guarantee their availability each day.
Judge Mlambo added that the Board had taken a policy decision that it would not allow its staff to drive more than 100 km to a court, and it was more cost effective if a local attorney established a local office and was paid to undertake the work.
Mr Jeffery accepted that decision, but still thought that the reports needed to reflect the position more accurately.
Mr S Swart (ACDP) also wished to congratulate LASA on its achievements, and said that it stood as an excellent example of what could be achieved. He noted the R34 million budget cut across all departments, and asked how this would impact on LASA’s performance, and whether it was expected that further budget cuts would follow. The Committee would try to support LASA’s requests for additional funding. He asked if there had been any indication from National Treasury as to its response to the requests for more funding.
Ms Vedalankar said that additional funding was usually not allocated for any specific purpose by National Treasury, so LASA could assess where the greatest need was. However, LASA would not like to have to choose between the four items for which additional funds were requested. In the past, no funding had been sought for IT but in view of its increasing dependence on IT, it had now put in the request. LASA would, whatever it received, adjust its recruitment levels so that it did not jeopardise service delivery, and would only take on what it could handle. Recruitment was high, but in light of the budget cuts it was likely to be kept at around 97%.
Mr Jerry Makokoane, Chief Operations Officer, LASA, said he had received the impression that National Treasury was sympathetic to the four requests, but
Mr Swart asked if there was tracking of the numbers of cases that were plea-bargained, and asked how compliance and quality control were monitored in that regard.
Mr Nair confirmed that LASA did track these cases, and all lawyers were obliged to advise specifically of plea bargains, although they were not necessarily separately reported.
Mr Jeffery questioned the number of the cases that were referred to as “impact litigation”, and asked if LASA was involved in the cases referred to in the booklet handed to Members. Page 101 of the Annual Report seemed to indicate that money was not being spent on impact litigation.
Mr Swart also asked about the impact litigation, and cited, in particular, a case involving four children, which was taken to the Supreme Court of Appeal (SCA). He asked how decisions were taken on what matters would be taken on. This particular case seemed to show a litany of errors, including the non-appointment of a curator ad litem, a lack of mandate from the children, and a letter addressed by the Supreme Court of Appeal that alerted LASA to a jurisdictional problem. There were huge costs involved, and he questioned the value of the legal advice obtained from Counsel in pursuing this matter.
Mr Patrick Hundermark, Legal Development Executive, LASA, noted that in the initial stages, LASA would fund NGOs or private law firms to become involved in impact litigation, and this would be done according to a specific budget. However, in other cases, Justice Centres or units could be involved, and some of the cases cited in the booklet were done by LASA itself, and some by NGOs. The budget for each case would not always be used, and it was necessary to manage the progression of the case carefully, and perhaps even to cut the budgets.
Mr Hundermark noted that the matter questioned by Mr Swart related to the interpretation of section 28(1)(h) of the Constitution, and specifically to whether LASA would, in these matters, have to appoint a curator ad litem in addition to a legal representative. The Centre for Child Law, who was cited as amicus curiae supported the view of LASA, and the decision in the KwaZulu Natal court ruled that a curator should be appointed. LASA wanted to have further clarity on the matter, and therefore proceeded, in its own name, not the children’s names, to get a declaratory judgment from the Supreme Court of Appeal. The claim that mandates of the children were not obtained was raised by the mother. He noted that any decisions on impact legislation were taken by a committee at the national office, and not by individuals, and merit reports would be required and extensive debate would be held.
Mr Swart followed up on this point, noting that it should surely have been fairly obvious that the case would not succeed on appeal, and, particularly in view of the budget shortfalls, he wondered if it was justified. LASA had received a letter pointing out that there seemed to be a jurisdictional problem, yet the litigation proceeded.
Mr Hundermark noted that LASA would always obtain Counsel’s advice in these matters. Although the letters to LASA had been received at a very late stage, LASA still hoped to convince the Court of its arguments, but in this case the Supreme Court of Appeal’s ruling went against LASA. He said that it was important to try to pursue impact litigation cases, because they did provide direction on how LASA should deal with issues.
Judge Mlambo added that the Board had a policy in respect of what level of cases would be taken on, and further to the case management committee, Board members could be approached. This particular case, however, was not referred to the Board, and he conceded that there might have been an error of judgment, but noted that he would call for a full report on this case to the Board. Had he known that a letter was received from the Supreme Court of Appeal, he would have advised LASA not to proceed with the matter.
Ms Schäfer was pleased to note the increase in the civil work that LASA undertook, but thought that maintenance matters needed to be listed separately, and to receive special consideration. There was a dire need to offer legal aid to women who could not afford lawyers’ fees to pursue maintenance claims. Many complaints were lodged about the number of times that cases were postponed, and although this was not always attributable to LASA, she felt that at the least, LASA should be able to assist these women to know of their rights.
Judge Mlambo said that LASA did not become involved in maintenance inquiries, but said that LASA would be open to assisting wherever it could. Clearly, LASA needed to look at the trends in the areas it was covering.
Mr Patrick Hundermark added that LASA did provide first-level advice on maintenance, but would not provide representation unless the other party was also legally represented. There were around 250 000 maintenance cases each year, and if LASA had to provide representation, it would require substantially more capacity. However, LASA was looking further into this, as it felt that the maintenance system was prejudicial to children, as the non-custodial parent was essentially permitted to litigate at the cost of the child. The first issue was therefore that LASA should try to change the legislation. The other issues related to systemic problems in the courts, and the need to improve efficiencies.
Ms Schäfer was interested to see the comment that LASA was providing services in the “full-time Sexual Offences Courts”, since the Committee had recently heard from the Department of Justice and Constitutional Development (the Department) that no such “full-time” courts existed. She asked for clarity on this, and also asked if those courts were more effective in dealing with sexual offences than the normal district or regional courts.
Judge Mlambo said that during the Access to Justice Conference, a former Chief Justice had descried the fact that the Sexual Offences Courts were decreasing in number. LASA would like to know exactly what the Department intended to do on this matter. Some of the LASA professional assistants did indeed service the Sexual Offences Courts only, and there were still full-time Sexual Offences courts that were operational. At the start, they had experienced delays, but he noted that they had now improved, and he had perceived a better rate of finalisation of sexual offences cases in these courts.
Ms M Smuts (ANC) noted that the Committee, on a recent visit to the Supreme Court of Appeal, had learned that the
Judge Mlambo said that he did not know about the trust funding, although he was aware of the contention between the various courts and wondered if this was not being used as ammunition for the arguments. He did not believe that there was anything improper about raising funds outside of government, to bolster the work of the courts, provided that there was proper governance. He noted that LASA had initially received funding from a Swiss donor, to run a community service project for one year. This was very successful and had assisted law graduates as well as added capacity to LASA. However, the executive must take a decision whether this should be pursued. Some problems had been identified and separate funding was received to deal with this. However, in general, there might be objections from within
Ms Vedalankar added that often foreign or outside donors tried to impose their own conditions on projects, and this was problematic. However, LASA could access money for special projects, such as the client call centre.
Adv S Holomisa (ANC) said that he had heard the comments on impact legislation, but wondered to what extent LASA assisted vulnerable people to realise their Constitutional rights in respect of land reform and land redistribution, and the Labour Tenant Act. It seemed to be mostly the landowners with the means to hire lawyers who were pursuing matters in court.
Mr Hundermark said that the Land Restitution Commission had initially had an agreement with LASA to make legal aid available to those who would otherwise not be able to pursue their claims. However, LASA had wanted this agreement to be run in terms of the overall legal aid scheme, but the Land Restitution Commission preferred to appoint its own practitioners. There was currently a limited possibility of legal aid being granted for litigation against the Commission. In relation to the Extension of Security of Tenure Act (ESTA), the Department of Rural Development and Land Reform (DRDLR) had brokered a land rights management facility, in terms of which a private firm would manage the appointment of legal representatives, including community property associations. The contract between DRDLR and that law firm was to run until the end of November 2012. Queries would be directed through the DRDLR to the practitioners, who would then allocate a practitioner to deal with them.
Mr Hundermark added that LASA had funded cases in the
Judge Mlambo said that the Committee had discussed this issue earlier. The Committee and LASA were of the opinion that if the funding had been made available to LASA, it could have covered more cases, more successfully, and indeed it would have liked to have done this work and made practitioners available to assist clients through an established system.
Ms Vedalankar added that although LASA had tried to engage with the DRDLR it had not been successful, but it would pick up on issues as necessary, provided that it had sufficient capacity, to protect the vulnerable.
Adv Holomisa asked if LASA had the impression that justice was being done properly.
Judge Molahlehi said that there was a need to follow up so that if it was felt that people had not been given the right to justice, they would not be left without a remedy.
Ms Vedalankar said that some stakeholders still held the view that LASA should deal with these matters. In the past, this Committee had tried to engage with the Portfolio Committee on Rural Development and Land Reform, and take the issue up at Ministerial level, and LASA had also requested additional funding in the past to set up specialist units to deal with these matters. However, she stressed that where LASA might engage with other departments, it was insistent that the Legal Aid Guide should apply, and there should not be any other discussions on indicators for performance, but retention of the same systems. She said that it would be helpful if this Committee could engage again with its counterpart for Rural Development and Land Reform.
Mr Jeffery noted that the Board Members of LASA who were in the employ of the State were undertaking their tasks for no remuneration and should be very highly commended.
Mr Swart asked about Judge Mlambo’s term of office. He again commended Judge Mlambo, the board, and all staff members on a very positive report.
Judge Mlambo responded that his term of office had been extended to the end of this year, but that the other responsibilities placed upon him had made him reconsider whether he was able to carry on in this position. He added that the fact that the Deputy Chairperson was present perhaps signalled a change.
The Chairperson said that it was unlikely that the Committee would engage again with Judge Mlambo in his capacity as Chairperson of LASA. He said that LASA was an excellent example of an institution that provided effective, transparent and accountable governance, in line with section 41 of the Constitution. He suggested that all citizens should have the right to expect State institutions to operate along these lines, and he hoped to see the day when other institutions would also, as a matter of course, receive unqualified audit reports, similar to LASA. He expressed his particular gratitude to Judge Mlambo for bringing LASA to where it was today, to the other members of the Board and staff who were present, and asked that he convey the Committee’s appreciation to all the staff who assisted in service delivery. He assured LASA that the Committee would look carefully at its requests.
The meeting was adjourned.
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