Legal Aid Guide: Proposed amendments and request for ratification

NCOP Security and Justice

01 November 2011
Chairperson: Mr T Mofokeng (ANC, Free State)
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Meeting Summary

The discussions on the Military Ombud Bill were postponed to 10 November.

Legal Aid South Africa (LASA) presented the proposed amendments to the Legal Aid Guide (LAG), setting out the purpose and scope of each amendment. It was noted that the LAG must remain relevant and available in plain language. The amendments were described: firstly, the
offence of reckless and negligent driving was being added to the list of offences for which legal aid would be available in the District Courts. The provision of legal representation before an administrative tribunal was excluded, save that legal aid may be available to review the decision of such Tribunal. There was a restriction placed on the number of civil matters that would be financed, for each applicant, to discourage overly-litigious applicants. The means test had been clarified. There were also increases in the means test monthly and asset amounts. It was stressed that Justice Centre and Regional Executives had a certain discretion to depart from the strict means test, up to certain limits. A policy and procedure for dealing with subsidised legal aid in criminal cases was detailed. The grounds for refusal were set out. Legal aid would be refused in criminal cases if the matter was not listed for the District Court, (subject to the discretion of the Justice Centre Executive) or where the applicant did  not qualify under the means test. In civil cases, it was explained that LASA must always be satisfied that there were merits to the case, and legal aid would be made available also in civil cases if substantial injustice could otherwise result. It was, however, subject to the availability of resources as well as the requirements of the Legal Aid Guide. A fourth stage provision for interrogating means had been provided, as clarified in a recent Supreme Court of Appeal case. Justice Centres were delegated with the power to approve Judicare and this was extended to include cases where they lacked capacity to adequately represent applicants for legal aid. Electronic systems continued to be used to automatically select practitioners, who were ranked according to their firm’s BEE status. The provision for expert witnesses was included in the Guide. In respect of payment, it was decided that the contract between judicare practitioners and LASA would in future specify that they must submit their accounts within four months, failing which LASA could refuse to pay, and that a three month period was allowed for disputes on payment. In future, consent would also be sought from clients and practitioners to audit judicare practitioner files, as was the case with LASA practitioner files. The legal aid tariffs had been updated.

Members were concerned about the visibility of LASA and asked about its communication campaign, stressed that the LAG should be available in a number of languages, asked about its presence in remote or rural areas, and said that information must be disseminated about matters relevant to the people. It was noted that in fact the LAG was available in seven languages. The campaigns were outlined, although LASA conceded that it was finding it difficult to achieve coverage. Members also questioned some misperceptions about the services, including those instances in the past where clients might have been persuaded to plead guilty, instances where judicare practitioners had not attended court, or where the assistance was not considered helpful. They asked what quality control measures and checks were put in place by LASA. Members also asked a number of questions about the means test and the circumstances in which a person might qualify for assistance as also the discretion allowed, and the distinction between civil and criminal cases. They questioned whether services could be provided for parole board or tribunal hearings, asked about LASA’s involvement in the Terreblanche murder trial,
questioned how the automatic electronic practitioner selection worked, enquired how LASA sought to attract and retain staff, and the hotline. Members agreed that the amendments be accepted.

Meeting report

Military Ombud Bill tabling
Various representatives from the Department of Defence were present, but it became apparent that there had been some misunderstanding and miscommunication between the departments.

The Chairperson ruled, after discussing the matter with the representatives, and with the Parliamentary Legal Advisors, that the Military Ombud Bill would not be discussed at this meeting, but would be postponed until Thursday 10 November, during a meeting to be held in KwaZulu Natal.

Legal Aid South Africa: Presentation of amendments to Legal Aid Guide
Judge Dunstan Mlambo, Chairperson, Legal Aid South Africa, presented the amendments that Legal Aid South Africa (LASA) proposed to the Legal Aid Guide (LAG). He briefly set out the purpose and scope of the amendments.

Mr Patrick Hundermark, Regional Executive, Legal Development Executive, presented a power point presentation of the proposed amendments to the Legal Aid Guide.

Some Committee Members objected at this point to the tabling of the presentation on screen, and requested that they must be provided with hard copies. A short adjournment was allowed for the printing and distribution of the copies.

Mr Hundermark resumed that the Legal Aid Act, No 22 of 1969, was being amended, in particular to ensure that it reflected a post-Constitutional image. It was important that the LAG must remain relevant in South Africa. It should be in plain language so it was accessible to all. He noted that the document contained a preamble, followed by a statement of policy, and then the Legal Aid procedure.

He noted that the 2009 Legal Aid Guide had been ratified by Parliament on 11 November 2008. It was implemented with effect from 10 February 2009.

Mr Hundermark then set out the proposed amendments to the Legal Aid Guide. The
offence of reckless and negligent driving was being added to the list of offences for which legal aid would be available in the District Courts. The provision of legal representation before an administrative tribunal was excluded, save that legal aid may be available to review the decision of such Tribunal. There was a restriction placed on the number of civil matters that would be financed, for each applicant, to discourage overly-litigious applicants. The means test had been clarified. There were also increases, so that the amount of net monthly income had been increased from R5 000 to R5 500 per month, or for households from R5 000 to R6000 per month. The permissible asset value had been increased from R75 000 to R100 000, where there was no immovable property, and from R300 000 to R500 000 where there was immovable property.

Mr Hundermark then tabled the means test limits for applicants (see attached presentation) and noted that the Justice Centre Executives had a discretion relating to R1 000 in all matters, whilst the Regional Office Executives had a discretion to consider variations of R3 000 per month and R100 000 in respect of net assets, in respect of all assets.

A policy and procedure for dealing with subsidised legal aid in criminal cases was detailed. The grounds for refusal were set out. He summarised that legal aid would be refused in criminal cases if the matter was
not listed for the District Court, (subject to the discretion of the Justice Centre Executive) or where the applicant did  not qualify under the means test.

In respect of civil cases, he explained that LASA must always be satisfied that there were merits to the case. If there was little or no prospect of success, and enforcement on a balance of probabilities, legal aid would be refused. He said that legal aid would be made available in civil matters where substantial injustice would otherwise result. It was, however, subject to the availability of resources as well as the requirements of the Legal Aid Guide.

The Regional Office Executives (ROEs) had a discretion to approve
fully subsidised legal aid where the means test was exceeded, and the amount of the divergence had been increased from a difference of R2 000 per month up to R3 000 per month. He reiterated that there was now discretion also where the divergence between the LAG’s provisions and asset value was up to R100 000.

Mr Hundermark explained that a fourth stage provision had now been included, to provide for a section 3B procedure, as clarified by the Supreme Court of Appeal in the case of Legal Aid South Africa v Poritt and Bennett.
The Court had ruled that the lifestyle of the applicants did not exhibit the requirements of indigence, and an obiter remark was made on the 3B procedure, that applicants could be called in and cross-examined on their circumstances. This was illustrative of the need to change the policy and to introduce a fourth step allowing for a subpoena of the applicants, witnesses and documents.
 
Mr Hundermark noted that the Justice Centres were delegated with the power to approve Judicare and this was extended to include cases where they lacked capacity to adequately represent applicants for legal aid.

A Committee Member briefly interrupted to ask whether an applicant who did not pass the means test, but who could also not afford to pay the legal expenses, would be required to contribute.


Mr Hundermark responded that sometimes applicants were not entirely honest, and that the merits of the issue could be investigated by LASA.
 
Judge Dunstan Mlambo said that the Supreme Court of Appeal (SCA) had clarified the process, but that it had also been noted that some people hid their assets and then applied for Legal Aid assistance. He considered this to be a tactic to obstruct legal process.

Mr Hundermark continued with his presentation and said that the allocation of judicare was centralised at National Legal Aid Offices. He confirmed that an electronic system had been implemented to rank practitioners, in terms of their firm’s black economic empowerment (BEE) status. This electronic system automatically generated four top rank practitioners in combination of fee-earning capacity. The practitioner was advised that he/she had been selected, and must indicate his or her availability. If not available, the next ranked practitioner would be informed automatically. An audit trail had also been implemented. He confirmed that the system worked well and it could be handed down to regional offices. He also confirmed that accreditation lists were reviewed regularly.

Mr Hundermark said that where appropriate, expert witnesses were budgeted for but procurement procedures had to be followed.

Mr Hundermark further observed that generally practitioners were slow to submit claims for payment. However, LASA’s books show that 99.7% of practitioners were paid within 30 days of submitting their claim. To facilitate payments to practitioners, LASA had contracted that practitioners must, within four months after completion of a case, submit their claim. If the practitioners did not comply, then LASA did not consider itself obliged to pay. Where practitioners disputed the non-payment, LASA allowed a three-month period for lodging of notice of dispute. However, the Chief Executive Officer had a discretion to resolve disputes.

LASA had introduced Quality Control (QC) Tests and measures that ensured that all practitioners were audited within a two year period. Basically these QC tests required LASA to have sight of the files, notes to the files, notes on conferences and research. Practitioner auditors would also visit the courts to observe court proceedings and listen to recordings of court proceedings. He said that the consent of
Legal Aid applicants and Judicare practitioners was sought to quality control tests on Judicare practitioner files

Finally, he clarified that the Legal Aid tariffs in both civil and criminal matters were set out in Annexures E and F. LASA’s tariffs were not commensurate with commercial fees, but the fees were reasonable, were reviewed annually and kept pace with inflation. Annexure O bound judicare practitioners to certain terms. It included a requirement that judicare practitioners, in the interest of protecting clients, must have at least two years experience.

Mr Hundermark concluded that the
LAG was essential to the effective and efficient functioning of LASA. The last Legal Aid Guide was ratified by the National Assembly on 23 October 2008 and by the National Council of Provinces on 11 November 2008. This Committee was therefore requested to approve the 2011 Legal Aid Guide.

Discussion

Mr J Gunda (ID, Northern Cape) asked whether LASA planned a road show to inform communities. He stressed that the LAG should be available to the people in at least four national languages.

Mr Hundermark said that during 2010 the LAG was distributed in a “People’s Version” and was made available in seven languages. 5 million copies were distributed.  

Mr Gunda asked what the acronym “JCE” meant.

Mr Gunda referred to the proposals in relation to the questioning around assets. He asked what the approach would be if an applicant had plenty of assets, but no income.

Mr A Matila (ANC, Gauteng) also asked how a destitute person, who might stand to inherit in future, would be regarded.

Judge Mlambo confirmed that it was necessary for LASA to apply a means test as it could not afford to assist everybody. Some applicants still “tried their luck” to qualify for free legal representation. He also confirmed that discretionary rules were in place in order to avoid injustices, for instance, to ensure that LASA services were not provided to those who had hidden their assets, or who may be wealthy in fact but pleaded poverty. Where an applicant did have money, but this was not sufficient to cover the entire legal process/trial, LASA had the discretion to provide assistance and call for a contribution.

He stated that the proposed amendments were sought to close gaps in the system. District courts were able to impose some stiff sentences and it was felt that those charged should not go without legal representation.  Where applicants were asset rich but cash strapped, he said that LASA would review the refusal statistics, and hopefully implement a more lenient approach. LASA would in future be able to enquire how they were able to maintain assets, if they were really cash-strapped. He noted that if injustice would result from a refusal of legal aid, irrespective of the economic/financial position of the applicant, LASA would have to assist. He reiterated that LASA had severe budgetary constraints, and confirmed that all applicants, irrespective of financial background, were audited.

Mr Hundermark added that LASA had also investigated the possibility of introducing Pro Bono services to deal with earners, in the R6000 to R12000 income bracket.

Mr A Matila (ANC, Gauteng) said that he knew of cases where LASA representatives had allegedly coerced innocent clients to enter a guilty plea, to facilitate the negotiation of more lenient sentences. He wanted to know how this was monitored to prevent abuse.

Mr B Nesi (ANC, Eastern Cape) said that this situation was also found pre-democracy, in Grahamstown, and for this reason people had been reluctant to approach LASA.

Judge Mlambo conceded that an instance of this had indeed been found, in 2002. However, LASA had prevented this practice since by vigilantly monitoring those cases where guilty pleas were entered. He said that he was grateful that such injustices were no longer the norm, especially not in areas where LASA services were administered. He confirmed that statistics were available to prove LASA’s position.


He further referred to criticisms in the past about judicare lawyers’ performance, or absenteeism, and stressed that no LASA lawyers were guilty of such conduct. All LASA lawyers were aware of their responsibilities to provide good services.

Mr Matila noted that the unemployment levels were already high, and rising all the time, and asked whether the proposed fee increase was intended to cater for those who had money, or those who did not. He felt also that increasing the means test would exclude more people from access to Legal Aid, so the poor would continue to suffer, whilst the rich would continue to have access to assistance.

Judge Mlambo reiterated that LASA was unable to pay current commercial rates. The Constitutional obligation to assist those in need of assistance required that the means test be used, to limit those who could afford their own private attorneys claiming from the State.

Mr L Nzimande (ANC, KwaZulu-Natal) commented on the scope of LASA’s services, and asked whether these services only applied to the defendant, and whether an applicant or complainant could be assisted.

Mr Nzimande felt that the proposed amendments were good and he observed that LASA was continuously trying to increase legal services to clients, ensuring proper access to those who need. He was however concerned about the distinction between civil and criminal matters, and the matters in lower courts, and asked for further clarification on this.

Mr L Nzimande (ANC, KwaZulu-Natal) enquired whether there was a limitation in criminal cases as well.

Mr Hundermark said that civil matters amounted to 7,5% of the case load, while criminal matters took up the rest. He confirmed that, despite budgetary restrictions, LASA aimed to cover the expenses of a trial as well as the costs of the application for leave to appeal the sentence. In matters where a judge had refused to grant leave for appeal, LASA would continue to provide legal assistance throughout the consecutive stages of the legal process, since LASA’s services were not limited to the first trial only. However, he stressed that in matters where assistance was required beyond leave to appeal, the merits of the case were reviewed and the process was audited.

Mr Nzimande asked whether LASA was providing services or seeking to provide services for tribunal matters.

Judge Mlambo reported that LASA had opted to provide Legal Aid representation to those applicants who wished to dispute or contest unjust or unfair Parole Board decisions, but could not provide for initial legal representation for applicants at Tribunals.

Mr Nzimande enquired as to the rationale behind the proposed amendment to limit the numbers of matters that could be covered in the Legal Aid process. Using an example of the murder trial of Eugene Terreblanche, a high profile case with much media attention; he said that it would seem that the correct process and protocols were lacking in the investigation. In this matter, the appointed attorneys had recused themselves from the case. Mr Nzimande enquired what LASA’s approach would be in such a case.

Judge Mlambo commented on the Terreblanche case, confirming that here there had indeed been a change in legal representation. However, he noted that the LASA lawyers had been dismissed and the private lawyers were hired and promised cash payments. Later it transpired that LASA’s assistance was in fact needed, and applications for LASA assistance were submitted at a late stage of the legal process. Although LASA was blamed for the delay in legal representation of the accused, the blame should actually be apportioned to those lawyers in private practice who had sought media attention and who were motivated by greed.

Mr Nzimande also enquired about the Judicare accreditation tariffs as well as the automatic or electronic system to allocate case load, and wanted to know whether this was based on already approved parties in the system, whether LASA continuously added new practitioners to the data base, and what the process was to keep up with providing proper and adequate services.

Mr Matila asked how LASA ensured that it always employed the best practitioners.

Mr Gunda asked what mechanisms LASA employed to attract and keep good attorneys.

Judge Mlambo said that the implementation of the Occupation Specific Dispensation (OSD), from 2008, had helped to address some of the inconsistencies in services. LASA believed that lawyers in the public service were well enough paid.

Mr Gunda said he had heard complaints that sometimes LASA officials had appeared to be unapproachable, and reluctant to assist. He noted that many people requiring legal assistance were illiterate and in need of guidance. He stressed that he also was concerned about clients’ rights, and enquired what measures LASA had introduced to mitigate LASA representatives’ negligence.

The Chairperson asked whether LASA had the mechanisms in place to address incompetence and negligence to ensure fair justice.

Judge Mlambo responded to the questions around quality assurance. LASA had implemented a toll-free Legal Aid Ethics hotline to record deviant actions by lawyers. LASA consisted of 2 000 members so it was therefore impossible to keep a check on all members all the time, but it recognised that nothing would be done if incorrect conduct was not reported, which was why it encouraged the public to report where necessary. LASA did not allow newly-qualified lawyers to act as judicare practitioners. LASA had also phased out the use of candidate attorneys, as they were inexperienced and unqualified to render the best of service to clients.

Commenting on the 2002 statistics of Automatic Review, Judge Mlambo observed that LASA was effective as an organisation, but there was a general public perception that Legal Aid lawyers were not good enough. To counteract this negative perception, LASA had in 2002, monitored cases where convictions were handed down. Judge Mlambo confirmed that this monitoring exercise showed that there definitely was a lack of confidence in Legal Aid, but in his opinion this was the result of a general social perception that free services were useless. LASA had embarked on a campaign to reduce this negative perception by engaging magistrates to advise qualifying clients to avail themselves of legal services through LASA. Judge Mlambo confirmed that this process, although tenuous, had placed dignity in the Legal Aid process. As a result, the changes made on review cases had been reduced nationally from 32 000 to 8 000. Legal Aid had created confidence on the ground.

Judge Mlambo added that quality assurance units were implemented to ensure that public funds were put to good use and not squandered on poor quality services. No service could be perfect. However, LASA was confident that quality assurance units were working and that the necessary support structures for quality service delivery were in place.

Finally, Judge Mlambo observed that all lawyers received the same education and had to pass the same examinations to practice law, so it was incorrect to assume that LASA lawyers were of lower standard.

Mr Gunda asked for a further explanation of the comment that consent was being sought to conduct quality control tests on judicare practitioner files.

Mr J Gunda expressed his concern that only those who could read Afrikaans and English had access to LASA’s services, and stressed that illiterate people were actually the ones in need of Legal Aid. Many people desperately in need of LASA’s services had no means of accessing such services. He further expressed his concern that LASA’s information did not reach the people on the ground. He stressed that there was a genuine need for LASA’s services in the Upington area, but that LASA should be more visible and accessible.

Judge Mlambo noted that LASA also tried to ensure that communities were made aware of LASA services. Justice Centres were available in most communities, but it was not economically viable in some rural areas to set up a fully-staffed Centre. In these cases, satellite offices would be provided. He confirmed that both the satellite offices and justice centres were also monitored for performance. In all places, LASA’s encouraged communities to assess and report deviant conduct by LASA representatives.

Mr Hundermark confirmed that LASA operated 64 justice centres and 64 satellite offices nationwide. Paralegals were on duty in satellite offices. Three to four practitioners were directly linked to satellite offices. This mechanism had cut down on travel for attorneys. Mr Hundermark reaffirmed that LASA’s call centre was toll free and that practitioners reverted and responded regularly and appropriately. However, he lamented that providing LASA services in rural areas remained a challenge. LASA was trying to do other outreach and researching of client service delivery. LASA had started a pilot project with the South African Security Services Agency (SASSA) to provide services at Pension Payout Points and clinics, despite resource restrictions.

Mr D Joseph (ANC) commented on LASA’s vision and mission objectives. He enquired who at LASA determined the discretion and what the criteria were.

Mr Joseph enquired about the accessibility to the courts by those people living in remote areas.

Judge Mlambo could not dispute that LASA was not accessible to all people and acknowledged that LASA had to be more in touch with the people. He stressed that strategic partnerships were important and that LASA promoted these partnerships. He reiterated that LASA operated on a limited budget and thus resources needed to be allocated economically, especially in sparsely populated rural areas.

Mr Joseph asked about the restrictions on civil matters, and asked if they applied to either party to the dispute.

Mr Joseph wanted more detail on the BEE scoring and rating, asking if the person who was highest ranked, according to the random selection, would automatically take the case, and if this meant that no opportunities would be given to others. He also requested clarification on the parameters of the BEE ratings and scorings.
 
Judge Mlambo replied that the detail about BEE scoring and ratings was already in the existing Legal Aid Guide.

Mr Gunda observed that information was a powerful tool, but that communities must be informed of their right to access legal assistance. He suggested that television and community radio stations be used to facilitate such access, as LASA was simply not visible enough.

Mr Hundermark agreed that LASA was aware that communication and information were critical. The implementation of LASA’s Client Call Centre had been an effective nationwide campaign. He said that further campaigns on LASA’s agenda included awareness and outreach to schools through the medium of sports.
 
Mr Nesi observed that in principle he was happy with the proposed amendments. However, he also proposed that LASA work together with political offices as well as community radio stations to gain access to the people. He stressed that access was important, but it had to be combined with information dissemination.

Mr D Bloem (COPE, Free State) commended the Legal Aid team, observing that the proposed amendments were a step in the right direction. He said that he was aware of where LASA started and conceded that there was a definite improvement.

Mr Bloem asked that LASA should not defend confirmed corrupters and criminals, given the prevalence of corruption..

Mr Hundermark noted that the Legal Aid Guide and legal principles were clear that a person was charged with an offence, s/he was regarded as until proven guilty. He conceded, however, that it was of importance to maintain the balance in respect of resource allocation.

Mr Matila asked whether it was possible to persuade LASA to defend farm workers, saying that currently they did not have access to LASA services.

Mr J Gunda said that he had studied all the amendments, found them useful and proposed that they be supported.

The amendments were formally proposed, seconded and adopted by the Committee.

The meeting was adjourned.


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