Discussion of Correctional Services Portfolio Committee programme; Briefing by Legal Aid South Africa

Meeting report

Discussion of Committee Programme
The Chairperson noted that countries still had to be decided on for the overseas visit. It had been decided to focus on the role of judicial inspectorates and social reintegration, but countries had not been found that were strong on both counts. European countries were strong in respect of judicial inspectorates, and South American ones were strong with regard to social reintegration. Cuba was an option to look at for social reintegration, and the judicial inspectorates of England, Scotland and Wales could be worth looking at.

Mr J Selfe (DA) said that documents had only just been received, and time was needed to study them. It could be possible that there were countries which were strong on both counts.

The Chairperson requested that there be a time frame for that, and suggested that time be granted until the fifteenth. There would be a colloquium (informal meeting for an exchange of views) on overcrowding on 19 and 20 November. The scheduled Committee meeting for 21 November would fall away, as the House Chairperson had placed a request for no committee meetings on that day. The Committee programme required a meeting with the DCS about the fencing project, and the issue of renewal of the nutrition contract. The current Committee position was that the contract could be renewed for a given period, but there had to be advertising and transparency, and it had to be fair in terms of supply chain management. The time period to be granted had to be decided upon by Monday 19 November.

Mr Selfe remarked that in spite of a stated commitment to do so, the DCS had as yet not been willing and able to in-source nutrition. The practical situation was that there were 160 000 people who had to be fed. He suggested an extension period of three months. This would allow enough time to advertise in terms of the Constitution. The debate about DCS core business was still ongoing. The question was whether food production was part of the DCS’s core business.

Mr S Abram (ANC) remarked that the principle of self-sufficiency was involved. The DCS was ostensibly not ready for in-sourcing. The DCS had undertaken to inform the PC about kitchen readiness, and had to tell the Committee why they had failed to do so. If inmates were used to cook and perform kitchen duties, they could acquire skills. That was the only route to rehabilitation. If outsourcing was allowed to continue, officials would soon point to something else that was supposedly not core business. The next thing to be outsourced would probably be farming.  He warned that once the floodgates of outsourcing had been opened, there would never again be control. He was not happy with the decision. The DCS had done no research. There were many ways to solve the problem.  Nothing was being done to address problems of poverty and unemployment.  A monster was being created. The DCS was heading for the Public/Private Partnership option, and would be reduced to a mere shell.  He warned that it was a dangerous road that was being embarked upon.

The Chairperson cautioned that it was unfair to open a debate without the DCS being present.

Ms W Ngwenya (ANC) remarked that the DCS had said that they would be ready for insourcing in 2013. She believed that three months were not enough.  It would put the DCS under too much pressure.

The Chairperson said that there would be a meeting with the department on 19 February. It was unacceptable that the contract be extended, as in the past. It could not be for a year. The extension had to be short, and then there had to be a decision on whether it was a core business or not.
 
Briefing by Legal Aid South Africa
Judge President Dunstan Mlambo, Chairperson of the Board of Legal Aid South Africa, set out the issues that Legal Aid wished to cover. These included no consultation with remand detainees until they came to court, cases delayed without explanation, and the quality of Legal Aid lawyers and their heavy case loads. He referred to a sitting in August where there had been allegations against Legal Aid from inmates. Legal Aid would show the PC which issues had been followed up.  People had supposedly been forced to plead guilty, but that was not true. It was not true that Legal Aid SA had claimed to have an insufficient budget.  There was in-house quality assurance. Teams observed lawyers in court.

Ms Vidhu Vedalankar, Legal Aid CEO, took the Committee through an overview of Legal Aid for 2012. Performance indicators considered included legal aid delivery and people development. There were statistics on new matters involving children, grant allocations and budget cuts, and practitioner per court ratios.

Ms Wilna Lambley, Regional Operations Executive for Gauteng, discussed Legal Aid programmes linked to remand detainees; the Legal Aid link to correctional centres; Legal Aid services to remand detainees in courts; bail applications; the management of guilty pleas; and the Children Awaiting Trial (CAT) programme.

Linkage with the Judicial Inspectorate for Correctional Services was discussed, as were legal quality monitoring programmes.

Mr Vela Mdaka, Regional Operations Executive for KwaZulu-Natal, discussed matters arising from previous PC visits to correctional centres.  Practitioner case load management was discussed, case backlogs and stakeholder feedback.

Judge Edwin Molahleli, Deputy Chairperson of the Board of legal Aid South Africa, provided concluding comments.  He noted that Legal Aid SA were not naïve, and were not denying problems. He assured the Committee that remand detainees and awaiting trial detainees would be legally represented. There was a commitment to work closely with the Portfolio Committee and the DCS.

Discussion
The Chairperson asked where Legal Aid SA met with offenders when they were taken to Fox Street in Johannesburg.  The Constitution prescribed that there had to be adequate time and facilities for meetings with Legal Aid SA. The Committee had heard that offenders were seen only at court, and that there was no consultation at the centres.

Ms Lambley responded that people would claim that they had not seen a lawyer, when in fact they had.

The Chairperson asked about the monitoring of bail. There had been 6 000 inmates who could not afford bail of R1 500.  Legal Aid SA had said that it monitored bail, but he asked if that was happening at centres like Johannesburg and St Albans.

Mr Hundermark replied that Legal Aid SA did not set bail.  If legal Aid was unhappy, they brought a bail appeal.  A judge could be held to two-stage bail.

Ms Lambley added that bail applications were taken on review. where bail applications had been brought and refused. The presiding officer had to decide how much bail could be afforded.

The Chairperson asked if Legal Aid fought for a more reasonable bail amount, where large amounts were concerned.

Ms Lambley replied that they did so.

Judge Mlambo added that that the issue of affordable bail had been taken up with magistrates.

The Chairperson noted that the Committee had visited Johannesburg with the National Prosecuting Authority (NPA). There had been allegations of collusion between an investigating officer and a court practitioner. Offenders had had to bribe the investigating officer to appear in court. If Legal Aid were present only at court, such practices would be missed out on.

Ms Lambley replied that Legal Aid was looking at the situation in holding cells, and talking to the DCS about it. There were paralegals at Johannesburg centre. They were there four days a week, and had spoken to 2 000 inmates. It was hard to consult at prisons. It was a challenge to access prisons. The DCS had been spoken to, and Memorandums of Understanding (MOUs) had been entered into in the regions. When there were allegations, paralegals went into prisons to question how people were being held without a warrant from the court.

The Chairperson remarked that an investigating officer had to be present when a person was detained. He advised that Legal Aid look into unlawful detention.

Judge Mlambo added that the scheduling of court appearances was controlled by the court. Legal Aid ensured that people got to courts.

Mr J Selfe (DA) asked about proper consultation. A case had come to his notice where a man had been sentenced to 15 years on the basis of a confession of one and a half pages. He asked if there had been an opportunity to go into extenuating circumstances.

Mr Selfe alluded to the fact that some people in detention did not qualify for Legal Aid.  Legal Aid was taking risks when small crimes were excluded, because people became criminalized through incarceration.  First time offenders, guilty of minor crimes, needed help.

Mr Selfe commented that foreign nationals in Johannesburg complained that it was hard for them to find help.

Judge Mlambo replied that interpreters charged exorbitant fees.

Mr M Cele (ANC) asked about budget constraints and cases finalized, and about the reasons why clients did not honour appointments with Legal Aid.

Ms Lambley replied that this happened when people were out on bail.

Mr V Magagula (ANC) asked Judge Mlambo why there had been a name change from the Legal Aid Board, to Legal Aid South Africa.

Judge Mlambo said that the old name was associated with perceptions from a corrupt era. The name change implied that Legal Aid had become a different entity. The Legal Aid Act had been changed through its efforts.

Mr Magagula noted that during oversight visits to centres like Umtata, it became evident that people were being kept in prison for their inability to pay fines of R500. Prisoners were saying that Legal Aid had advised them to plead guilty. People were kept in custody at a cost greater than the fine they could not pay. They were held for three months for failure to pay a R500 fine. The question was whether lawyers were working with the state or against it. He remarked that Legal Aid liked to postpone matters. This was justified by saying that the case load was heavy. Offenders were saying that Legal Aid saw them only on the day of their appearance in court.

Judge Mlambo replied that it was a bigger problem when offenders lacked resources to obtain aid for serious cases. For less serious offences, Legal Aid could make contributions. The Judge said that he could not answer Mr Magagula about what prisoners were saying. Those were perceptions, not facts.

Mr Patrick Hundermark, Legal Development Executive, added that the Constitution prescribed that there had to be assistance for those who could not pay fines. There was a means test that could be applied. Legal Aid had systems and processes to review judgments.  That applied especially when sentences were handed down by inexperienced magistrates.

Mr Hope Bambiso, Regional Operations Executive for the Eastern Cape, said that Legal Aid paralegals had visited Umtata.  Legal clinics had advised prisoners of their rights. There was a working relationship with independent visitors from the Judicial Inspectorate for Correctional Services. Visitors informed Legal Aid if offenders had been forced to plead guilty. He had recently met with an independent visitor, who was happy about the situation at St Albans.

The Chairperson told Mr Bambiso that he could tell him horror stories about St Albans.

Ms Ngwenya reminded Legal Aid that the Portfolio Committee visited centres.  What they said was not hearsay. It would be good if representatives from Legal Aid could accompany the PC on oversight visits.  Judge Mlambo had defended Legal Aid by saying that allegations about them were not true. The community had to understand the duty of Legal Aid. The question was how Legal Aid advertised itself. She advised Legal Aid to get someone to testify for them. Legal Aid services had to be advertised in prison. Legal Aid had to ask themselves what they wanted to achieve with their visits.

Mr Hundermark responded that Legal Aid marketed itself in prisons and through TV advertisements. There was a call centre, with one national number.

Ms Ngwenya remarked that unaffordable bail was a challenge, in that it contributed to overcrowding.   A lawyer could assist In minor cases.  Where fines had been imposed, ways had to be found to keep people out of prison. She asked about assistance to awaiting-trial children.

Ms M Phaliso (ANC) asked about the relationship between Legal Aid and stakeholders. The PC had seen a mentally challenged inmate at Kroonstad centre who was clearly not functioning normally. His bail had been set at R100. When asked if Legal Aid had represented him, he could not answer. Legal Aid should have picked up in court that he was mentally challenged.

Ms Phaliso referred to the Waterkloof case, where only two out of four people accused of the same crime, had obtained parole. She asked if Legal Aid had got involved in such cases.

Mr L Max (DA) remarked that the perception of Legal Aid was not good.  Legal Aid claimed that there had been a change in attitude, and a new management culture. The CEO had mentioned structures to ensure Legal Aid presence.  He asked for a record of the success rate with that.

Mr Max asked about average case loads. Were paralegals trained to represent people in court?

Mr Abram remarked that Legal Aid entered the picture only when someone was arrested. He asked about procedures to be followed when Legal Aid assistance was required. Did the DCS advise people about Legal Aid?

Mr Abram asked about interaction with clients. The Constitution prescribed that adequate time be spent with them. He asked if one hour could be deemed adequate. Had individuals complained to Legal Aid about ill treatment?

Mr Hundermark answered that once arrested, a person had to appear in court within 48 hours. Legal Aid could link up with police to enquire who would need assistance. But systems had to be linked. There were practitioners with forms at court.  Presiding officers had to explain rights to those arrested. The problem was that presiding officers would postpone a case to a day when Legal Aid practitioners were not in court.

The Chairperson told Legal Aid that the Committee was concerned about their workload.  Legal Aid had stated that they went to the Johannesburg centre once a week. There was one Legal Aid person for 6 000 people. The Committee needed to be convinced that practitioners could deal with the caseload. There had to be a Legal Aid footprint.

Mr Hundermark responded that Legal Aid had to perform a balancing act. To provide more coverage would cost money, and there was no budget for that. Legal Aid practitioners had only one day off.

The Chairperson questioned the quality of paralegals. There was the perception that paralegals were not very experienced, and fresh from school, or students.

Ms Lambley responded that paralegals had practical training. They did not go to court. In the districts, they were supervised candidate attorneys. Qualified attorneys were used in the district courts. For the regional court, five years’ experience was necessary, and seven years’ in the high court.

The Chairperson asked if Legal Aid had been involved in the case of the “Waterkloof Four” that Ms Phaliso had alluded to.

The Chairperson asked if illiterate children who had been incarcerated, had had a fair trial.

Mr Hundermark replied that there had been a case of a child who stole a chocolate and was fined R100. There was no one to pay the amount, and the child was sent to prison, and was raped there. Legal Aid had got the sentence set aside, but could not prevent the child’s ordeal. Legal Aid looked at remand detainees who were being held for longer than two years.

Judge Mlambo said that Legal Aid were not there to defend themselves, but to report on what they did. Issues not properly covered would be discussed, and Legal Aid would come back to the Committee. Ms Phaliso had been offended that her name appeared in the report, but she had only been quoted. There was a convictions-driven approach in the country. Legal Aid tracked those things. People were asked in court if they had money for legal representation, and if they did not, Legal Aid was there to assist. Some people indicated that they did not want to make use of Legal Aid services.

Judge Mlambo asked that what was said about Legal Aid should not be taken for granted. When a case was lost, people would say that the lawyer was not good.

The chairperson adjourned the meeting.