NICRO, the Commission for Gender Equality, Legal Aid South Africa and the Women’s Legal Centre presented their submissions on the Legal Aid Bill. The focus of all the submissions aside from Legal Aid South Africa, was on the need to ensure that more comprehensive legal aid is provided, particularly legal assistance and representation to vulnerable sectors of society. NICRO’s submission included an analysis of the biological development of children and the resultant need for special attention when a child comes into contact with the law. The Commission for Gender Equality presented on the legal obligation to provide comprehensive legal aid to women and empirical evidence on the disproportionate benefit men receive from legal aid, as more men receive legal aid in terms of section 35 of the Constitution. It submitted that explicit provision should be made for comprehensive legal aid to women. The Women’s Legal Centre presented more statistics on the disproportionate benefit to men, using their own client intake as evidence. It submitted that provision be made for the re-evaluation of the means test to track inflation and for certain matters to be dealt with by legal aid. Legal Aid South Africa’s submission focused on the institutional arrangements, particularly on the appointment, composition and term of the board.
The discussion centred around the nuances of providing comprehensive legal aid, particularly the costs involved and current legal aid efforts. There was also debate about what the purpose of the Bill is, with some members supporting the inclusion of comprehensive legal aid provisions in the Bill and others taking a more specific stance of the Bill merely dealing with the institutional arrangements of Legal Aid South Africa. Mention was also made of the affordability concerns around Legal Aid South Africa’s activities, particularly on the matter of commissions of enquiry.
The Chairperson opened the meeting by saying that he had gone through the submissions and he was disappointed by some of them, because they seemed to deal with technicalities and forget that the law applies to human beings, and in this area specifically women and children. He commended the NICRO and the Commission for Gender Equality (CGE) submissions for bringing in this element. He felt that the other submissions merely demonstrated a power struggle among the other institutions for control in the area of legal aid. He hoped that the Committee would apply itself to bettering people’s lives.
Mr W Horn (DA) addressed the Chairperson saying that while he agreed that the Portfolio Committee ought to be focused on improving people’s lives through its work. Part of its work is dealing with the legislation before it. If the Committee fails to submit legislation which is technically sound, then the people which the Committee is trying to serve, will suffer.
The Chairperson replied that he could not agree more that the Committee must ensure that the law is technically correct. However, if only the formal aspects of the law are dealt with and the substantive content is flawed then the Committee has equally failed the people. He had made his initial statement, because the Committee is used to dealing with the technicalities of legislation and he did not want it to neglect the importance of the substance.
National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) submission
Ms Venessa Padayachee, NICRO National Manager: Advocacy & Lobbying, said that NICRO was not a technical law institution and was more concerned with ensuring that children have access to legal aid. NICRO had interpreted the Bill as providing for the comprehensive provision of legal aid. However the Bill speaks mostly to the establishment, governance and procedures of Legal Aid South Africa. NICRO understands that its submissions may need to dealt with through amendment of the present legislation or the drafting of regulations. By comprehensive legal aid provision, NICRO means legal aid which includes legal advice, assistance and representation; education; mechanisms for restorative justice and alternative dispute resolution. Further, this legal aid does not have to come from lawyers, but could include community and traditional avenues for assistance.
The submission focused on what it means to provide comprehensive access to legal aid for the most vulnerable groups such as access to legal aid for children, specifically child and adolescent behaviors and how this affects criminal capacity and offending trends. The Legal Practice Bill speaks specifically about regulations of continued professional development of legal representatives. NICRO therefore proposes the drafting of regulations, for the Legal Practice Bill, which would detail the manner in which this development is to take place in relation to children. NICRO’s main concern is the negative effect the penal criminal justice system has on children. Ms Padayachee said that although the Child Justice Act was supposed to divert child offenders into an alternative system of criminal justice, this has not happened and this is largely due to a lack of training. NICRO, therefore called for additional sections in the Legal Aid Bill which deal specifically with the provision of comprehensive legal aid to vulnerable groups.
Ms Padayachee moved on to the international and regional legal framework for the provision of comprehensive legal aid to vulnerable groups. The Lilongwe Declaration of Accessing Legal Aid and the Criminal Justice System in Africa 2004, characterised access to legal aid as a human right, mainly in the criminal law context. It called on governments to allocate sufficient funds to ensure that the mechanisms set up for provision of legal aid to the vulnerable and poor, particularly women and children, is done in a transparent and efficient manner. The submission referred to the United Nations Convention on the Rights of the Child, which on the legal representation of children, states that a system of just assistance should take into account evolving capacity and other issues pertinent to the needs of the child, which have implications for training of legal representatives. The UN Standard Minimum Rules for the Administration of Juvenile Justice recommends in-service training, refresher courses and other forms of instruction to all people dealing with juvenile cases. The UN Committee on the Rights of the Child said that legal aid can also be provided by social workers, paralegals and others; but cautioned that anyone who does this must have sufficient competency in the processes of juvenile justice and be trained to work with children who come into contact with the law. These instruments formed part of the basis of NICRO’s submission.
Ms Padayachee said that the aim ought to be the provision of legal services on par with private sector representation and although Legal Aid South Africa (LASA) had made strides towards this there were still gaps. She shared some anecdotes from clients and professionals to demonstrate the shortcomings of the present system. Clients had said “I only saw the legal aid attorney once and then again at court; I don’t know what is happening [with] my case”; and “My attorney did not appear in court today and my case was remanded; the Judge said that this was because my attorney was not in court”. Professionals had said “legal aid attorneys sometimes do not understand the processes of the Child Justice Act and the Children’s Act and do not ask the right questions when it comes to children”. Other concerns were cases not being fought on the merits and an absence of human rights activism - with legal aid attorneys pushing accused persons, even children, to plead guilty focusing on legalities and the charge.
Ms Padayachee said that NICRO was aware of the systemic problems with the administration of justice. What it has experienced in the legal aid system was inexperience among attorneys which manifests in delays in justice. This is due to lack of access to information, inadequate preparation and lack of capacity to deal with the needs of the poor and vulnerable. Cases are at times senselessly postponed and legal aid attorneys are not of the caliber where they are able to question this. Legal aid attorneys also do not do enough to advocate for alternative sentencing and attorneys are unaware of diversion or non-custodial sentencing and the difference between these.
The heart of NICRO’s submission was to raise the questions which need to be asked about legal aid: what is status of providing representation to children, are they treated differently to adults, is there an adequate understanding of what the difference is, are there adequate resources for the services which these children need for effective rehabilitation and reintegration? Legal, social and cultural norms, as well as the practical concerns complicate justice for children and lead to the need for legal aid to be made child friendly. The rights of children who come into contact with the law are especially important, because the decisions made may affect the rest of their lives and there are indications of daily violations of children’s rights in South Africa. These violations include being detained with adult prisoners; being exposed to torture, physical and emotional abuse; and the state of child care centres is questionable in the absence of independent oversight. NICRO therefore submits that a robust discussion of how to best provide children with meaningful, effective, affordable and age appropriate legal assistance, is needed.
Ms Padayachee gave a definition of child friendly legal aid, which she wanted to inform the subsequent comments by her colleague around developmental factors which affect children’s interaction with the law and how this affects legal proceedings. UNICEF and UNODC define child friendly legal aid as “the provision of assistance to children in criminal, civil and administrative proceedings, that is accessible, age appropriate, multi-dimensional, effective and that is responsive to the range of legal and social needs faced by children and the youth. Child friendly legal aid is delivered by lawyers and non-lawyers who are trained in children’s law and adolescent development and who are able to communicate effectively with children and their caretakers”.
Ms Arina Smit, NICRO Programme Design & Development Manager, presented on why legislation is needed dealing specifically with children. Although there is the Child Justice Act and the diversion process it sets up, NICRO still finds children not being treated as children within the criminal justice system. The focus is generally on procedures, at the expense of the needs of the child. She emphasised that it is important for legal aid attorneys representing children and other actors in the process to understand the real difference between adults and children. The importance of the difference lies in development, rather than mere age.
She said the development of the brain is particularly important and what children can and cannot comprehend must be understood. Misunderstandings lead to children being treated as adults, even though they do not fully comprehend what is happening. MRI research has shown that the maturation process of the developing brain shows significant differences when a child’s, adolescent’s and adult’s brains are compared. Even adolescents may not have the capacity expected of them, because the maturation process is incomplete. Evolution from a child’s to an adult’s brain is marked with significant physical, emotional and cognitive changes and these changes have a significant impact on how children present themselves and what they understand, which has implications for the needs of children in contact with the law. NICRO therefore submits that the biological basis of the differences in capacity is important, when dealing with children in the justice system. She related two findings of importance for understanding the ability for children to participate in legal proceedings and their offending behavior. First, the frontal lobe, which is the seat of judgment, is not fully developed even in young adults up until the age of 26 - this being the last part of the brain to mature. This leads to people who do not have fully developed frontal lobes being unable to fully think through the consequences of their actions, particularly when under stress from environmental factors. It has also been found that children rely more on the parts of the brain responsible for emotional and instinctive behavior, as these are more developed. This impacts on their risk taking, impulsivity and long range decision making; therefore their ability to make legal decisions and communication with legal practitioners is diminished.
Ms Smit concluded by referring to social factors, such as the child’s experience of divorce or other trauma, and the lack of representation in these civil matters affecting them. This indicates the need for legal assistance to come before vulnerable children are involved in the criminal process. Where the child is already in the criminal justice system, it is important to decide where the legal aid assistance begins, whether it is at the arrest, at the preliminary inquiry the Child Justice Act applies or only at the trial stage. Also, for what period is the legal aid attorney involved and how the child interacts with other professionals in the process.
Ms M Pilane-Majake (ANC) commented that she appreciated NICRO’s submissions on children’s justice and noted the challenges raised in relation to NICRO’s work in this area.
Mr W Horn (DA) referred to page 5 of NICRO’s submission, dealing with the Convention on the Rights of the Child and legal aid being provided by social workers, paralegals and others who have sufficient knowledge of the child justice procedures. How will this work, seeing as even Legal Aid’s representatives are said to focus too much on the process, particularly whether knowledge of the process is sufficient to give legal advice and whether this advice will be given in conjunction with a lawyer. He asked about the feasibility of a process being driven within Legal Aid South Africa (LASA) to create specialists for dealing with children in all LASA offices.
Mr B Bongo (ANC) echoing Mr Horn, wanted to know if it would not be better to work within LASA to ensure there is capacity to deal with children’s matters, through efforts such as training, rather than now raising issues which are meant to deal with child justice under the present Bill. Perhaps legal aid could assist NICRO, and vice versa, to have the capacity to deal with child justice particularly in light of the financial restraints in this area.
Ms Vidhu Vedalankar, Chief Executive Officer: Legal Aid South Africa, said that she agreed with the comments relating to the Child Justice Act, but wanted to note that the involvement of LASA had been discussed in the Portfolio Committee in the process of drafting that Act and it was decided that only upon request from the presiding officer would LASA become involved due to funding constraints. A lot of issues around the quality of LASA’s work in this area and that LASA had an alternative view, but she was not sure whether it was the appropriate forum to present it, although the Committee had been informed of LASA’s efforts previously. Secondly, the way issues are dealt with in the Bill and how the work of LASA is focused should be debated by the Committee through regulations, because legislating on this point would be onerous and restrict the flexibility of the institution. The split of focus between civil and criminal matters relates to this and account must be taken of historical factors such as the constitutional injunction and influence of court decisions on this split. Further, that if the Committee wants to shift the workload more onto the civil aspect, then the constitutional imperative contained in section 35 will have to be considered. Lastly, LASA does provide legal assistance, in addition to legal representation, with paralegals at all of their offices and further advice offices around the country.
The Chairperson said that these issues raised the question of whether lawyers are sufficiently qualified to deal with the social aspects which affect the application of the law. LASA had said that it supports paralegals and advice centres. Could this perhaps be dealt with better in a community advice centre, in order to relieve the burden on legal aid attorneys. He also appreciated the empirical evidence which NICRO and the Women’s Legal Centre provided to the Committee. He was also still worried that the focus was on technicalities, rather than substantive justice.
Ms Padayachee said that she welcomed the comments and wanted to clarify that NICRO had not intended its submission to imply that LASA is not doing its best to provide comprehensive legal aid, but that in NICRO’s experience there were difficulties, particularly with the division of LASA’s budget. She said NICRO was aware that the Legal Aid Bill deals with many of the issues raised here and therefore supports their being dealt with through regulations. Responding to Mr Horn, she said it is important to have trained people dealing with children’s cases and liked the suggestion that the institutions could work in conjunction with each other, so that the child’s best interests can be protected in both the judicial process and elsewhere. She admitted that there was a gap in cooperation with other institutions, including community fora as suggested by the Chairperson.
The Chairperson wanted to note the fact that the Law Society of South Africa and the General Council of the Bar had merely made written submissions and had not come to engage with the Committee, which is an indication of how seriously they take Parliament.
Commission for Gender Equality submission
Adv Kamraj Anirudhra, Commission for Gender Equality, Director: Parliamentary Office, asked leave to withdraw the document initially submitted, and replace it with what he was to present that day.
The Chairperson said it was poor reflection on the institution that it produced two completely different documents, but that the Committee would consider both documents.
Adv Anirudhra introduced the CGE by saying that its gender equality protection and promotion mandate stems from section 187(1) of the Constitution and national legislation such as the Commission for Gender Equality Act 39 of 1996. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, expands this to include the institution of actions in the Equality Court. He reminded the committees of South Africa’s international obligations under CEDAW, particularly Article 15 which requires women ought to have the same ability to defend themselves in maintenance and divorce matters. Men tend to be breadwinners leading them to have more ability to defend themselves in litigation, even to the extent that they willfully default on the maintenance order. The SADC protocol on Gender and Development enjoins states to, inter alia, provide equal access to justice and eliminate practices which deny access to such rights for women. He lastly referred to section 9 of the Constitution which speaks of the need for legislative and other measures designed to protect or advance persons disadvantaged by unfair discrimination.
Adv Anirudha said that the CGE welcomed and supported the Legal Aid Bill, it did however have recommendations for the gender mainstreaming of the Bill. He raised a concern with clause 4(f) of the Bill, saying in its present form, it did not realise this obligation as it is geared too much towards legal aid in the criminal justice system; evidenced by Legal Aid South Africa (LASA) having taken up 438 844 new criminal matters compared to 55 277 civil matters in the 2013/14 financial year. He noted that 90% of South Africa’s prisoner population is male, as an indication of the gender split in criminal matters. This results in an unfair split of the resources of LASA. The CGE therefore recommended an express provision undertaking to focus on divorce, domestic violence and related matters; legal representation in the equality court; and an express clause for legal representation in impact litigation with the aim at protecting women more generally, such as Modjagi v Mayelani which dealt with the right of the first wife in a customary marriage to refuse to allow the marriage to a second wife and was fought all the way to the Constitutional Court.
The CGE recommends that Clause 6 be amended to require the Board of Directors to be gender representative, but is encouraged by clause 7(c), which seeks to encourage diversity. The CGE also proposed a clause which will ensure that judicare matters that are historically disadvantaged and women lawyers are able to benefit from this work.
The Chairperson commented that the needs of the most vulnerable are not taken into account in this area. Further, that no distinction is being made between legal representation and legal assistance. He was concerned that “criminals” were getting more than the victims and encouraged Members to consider the absurdity of giving more resources to aggressors.
Women’s Legal Centre submission
Ms Sanja Bornman, Attorney at the Women’s Legal Centre, introduced the Women’s Legal Centre (WLC) saying it is a non-governmental organisation whose objective is to advance and protect the human rights of women in South Africa and its mandate is to conduct constitutional and impact litigation on behalf of women in order to advance gender equality. The types of cases dealt with by the WLC are similar to those referred to by CGE and the WLC was involved in State v Jezile case which centres around ukhutwala. In addition to litigation the WLC promotes access to justice for women and girls, by providing free legal advice to women who make queries at the WLC office.
Ms Bornman said that equality forms a central pillar of the constitutional scheme and section 9 prescribes that everyone must enjoy equal treatment, as well as benefit from the law. This section has been interpreted by the Constitutional Court as requiring substantive, as opposed to formal equality, meaning equality in outcome rather than identical treatment. Identical treatment by the law is problematic regarding women, because the prejudice they experience often intersects along gender, as well as racial lines. Women continue to be the poorest demographic in South Africa and unfair and indirect discrimination against women, especially poor black women, sees their constitutional rights to access to justice and access to courts being disproportionately eroded compared to men. The WLC therefore encouraged the Committee to be mindful of section 9’s injunction to eradicate past patterns of disadvantage by ensuring the Bill takes account of women’s unequal position in society.
Ms Bornman said that the national crime statistics do not differentiate between male and female perpetrators, however they do indicate that women suffer the brunt of domestic violence, assault, and certain sexual offences. Domestic violence has been a prominent feature of post-apartheid South Africa and the Domestic Violence Act 116 of 1998 and Protection from Harassment Act 17 of 2011 provide protection through civil law protection orders issued by magistrates. These processes although intended to be easy to use and accessible, are not, with the process still being conducted as a trial where rules of cross examination and evidence apply. The main challenges identified by the WLC are that women are not sufficiently assisted with application forms resulting in failed applications or protection orders which do not speak to the woman’s lived reality. Women often have to face perpetrators who are represented where they cannot afford such assistance, with the technical nature of the process defeating valid cases.
Ms Bornman turned to the WLC’s experience with divorce, maintenance and family law matters; which are all civil matters. She spoke to a table which detailed the numbers of clients with queries in this area against the total number of queries received by the WLC. This table shows that over the period 2007 to 2013 these queries averaged around half of all the queries dealt with by the WLC. She emphasised that these women do not come to the WLC seeking legal advice only, but also legal representation.
The mandate of the WLC is to do constitutional and impact litigation, therefore clients have to be referred to other institutions, including LASA. To access legal aid, the client must pass a means test which determines whether the person truly cannot afford private representation based on the amount they earn and assets they own. While many of their clients fail the means test, they are in reality not able to afford private representation and often the assets assessed are the subject of the very legal dispute which is in question. Pro bono assistance from private attorneys through the Law Society makes use of the very same means test and further there are restrictions on the matters which may be undertaken pro bono, all leading to a restriction of access to justice.
Ms Bornman said that the WLC’s main critique of the Bill as it stands was that the regulatory emphasis was on representation for defendants in criminal matters, at the expense of civil matters, as evidenced by clause 22. This is problematic, because the majority of matters in which women require legal assistance and representation are civil matters and the consequences of these cases can be as weighty as those of criminal cases. This aggravates contextual factors such as women being the main victims of domestic violence, their burden as primary caregivers and the non-recognition of relationships such as Muslim marriages. The fact that the Bill does not explicitly provide for legal aid and representation in certain civil matters leads to indirect discrimination against women, as more men benefit from legal aid than women.
The WLC’s core recommendations were to explicitly provide for periodic re-evaluation of the means test, to ensure the legal aid is accessible given inflation and the lived reality of women. This will close the gap between those who qualify for legal aid and those who do not, but genuinely cannot afford it. The second recommendation was that the type of matters for which legal aid representation is provided be reconsidered and extended to matters which are not opposed or defended, that run in civil courts and relate to domestic violence or harassment.
The Chairperson said it is clear that the system is weighted in favour of criminals. This raises the question whether legal education is adequate, because merely knowing the rules without understanding society cannot provide justice. From the submission it is clear that legal advice is important, but the focus is on legal representation. Perhaps there is even a need for legal advice centres, to take up the burden being carried by civil society.
Legal Aid South Africa (LASA) submission
Mr Patrick Huntsman, Chief Legal Executive: Legal Aid South Africa, said he did not intend to respond to the concerns raised, but it must be remembered that what has been recommended is currently contained in the Legal Aid Guide and will be dealt with in the regulations. It was important to also remember that the implementation of these recommendations carries a financial burden, which must be understood beforehand. The various inputs were appreciated and would be considered by LASA.
Turning to LASA’s submission, Mr Huntsman said the first item related to the composition and appointment of the board. Clause 6(1) of the Bill provides for the appointment of 14 board members by the Minister. Paragraph (a) provides for the Chief Justice to nominate an active judge who becomes the Board Chairperson. However at present there is no requirement for this being after consultation with the board and LASA submits and this should be amended in this fashion. This amendment will promote transparency and good governance, particularly with succession planning for a sustainable board.
LASA’s second submission was on clause 7 which deals with qualification for membership of the board. LASA submitted that it would be sufficient to make reference to section 69 of the Companies Act 7 of 2008, which provides grounds for disqualification from being a director.
The third submission dealt with the term of appointment, which currently stood at a period of no less than three years, with a maximum of five years, with the possibility of renewal for only one additional term. LASA submitted that the restriction on renewals be removed, this is to ensure the board is sustainable and the retention of scarce skills, expertise and institutional memory. Furthermore, this is in line with the King III Report on corporate governance. Mr Huntsman warned that if the ability of the board to balance is restricted by legislation, this could compromise efficiency of the board.
Lastly, LASA dealt with the termination of membership of the board in clause 10(1). While the Companies Act provides for termination of membership upon expiry of term of office, the Bill does not. LASA therefore recommended the amendment of the clause, to ensure that a member’s term automatically terminates upon completion of their term of office, unless such term is renewed.
Mr Huntsman said that to aid the flow of the Bill, clause 23 and 24 should be swopped around. This is because the current clause 24 deals with the regulations, a more substantive aspect; whereas the legal aid manual of section 23 should logically come afterwards, as it deals with the procedural aspects of acquiring legal aid.
The Chairperson said there is one issue that will have to be addressed, that the law that is being replaced is from a time when South Africa had a minority government and the issues raised in all the submissions were irrelevant. LASA as the subject of the Bill is meant to deliver justice and its submission focused merely on the restructuring of LASA. He cautioned that it would be fatal to not look at the social realities and substantive issues which are the key to radical transformation in the field of legal aid.
The Chairperson said that he felt that the CGE and NICRO should be given an opportunity to make further submissions, in response to the discussion in the Committee, preferably before the Department of Justice and Correctional Services presented on Friday so that it could also engage therewith.
Mr Redelinghuys (DA) commented that Members ought to keep in mind that this Bill deals with the succession of the institution responsible for legal aid and he felt that perhaps this Bill should be re-titled to reflect its focus on the entity and its functions, mandate and powers. There is a common lament about legal aid generally, with the stakeholders having said that LASA ought to be involved in several matters, including a constitutional court case. The question is whether LASA has been approached, because it is not in its mandate to proactively involve itself in matters. The LASA submission had indicated that there was an unnecessary duplication as the Companies Act could be referred to and he wanted to know if the Companies Act has the requirement of 'fitness and propriety' for qualification as a director as this is important because LASA is a public entity. The Bill does not require the Committee to consider or review the regulations, which are to be drafted by the Minister and tabled. Addressing this should be should considered.
The Chairperson asked Mr Redelinghuys where legal aid principles generally should be placed if not here in the Bill. Further, on LASA "having to be approached", whether Mr Redelinghuys feels that most people in South Africa are capable of seeking out the assistance of Legal Aid.
Mr Redelinghuys said that if the Bill should deal with LASA generally then it is horribly deficient, because that is not its purpose if the preamble and long title are looked at. Therefore, perhaps a drastic overhaul of the present Bill or the drafting of separate legislation needs to be considered. On approaching LASA, everyone who is a defendant in a matter ought to be advised by the presiding officer who ought to inform the person that there are these channels available. Elsewhere, it is for the relevant organ of state to advise people of LASA’s services, rather than LASA actively seeking out cases.
Mr Bongo echoed the opening comments of the Chairperson and said that it informed the submissions of NICRO, the CGE and WLC. This was part of the greater project of dealing with societal problems and the Committee is doing all that is possible regarding women. He agreed with the CGE and WLC that women deserve 50% of the aid under the Bill. However, section 35 is very clear in that legal aid must be provided to detained and accused person, if substantial injustice would otherwise occur. On the matters of the means test and divorce proceedings, these must be dealt with however rather in the regulations than in the legislation itself. It is clear that the stakeholders are not opposed to the Bill, but merely seek to raise societal issues for Members to be alive to dealing with these matters in the Bill and even in other legislation.
The Chairperson said that the focus is generally on women’s empowerment, but today he felt that children ought to have their needs and problems addressed. Particularly because if it is said that these children are the future of South Africa, then these children need to be protected and helped.
Ms M Pilane-Majake said that she is in full support of the WLC and CGE’s submissions. The WLC has put forward re-evaluating the means test and the types of matters which legal aid representation is provided for, which she agreed should be looked into. She referred to page 12 of the CGE’s submission on clause 6 being revised to ensure gender representivity, saying she supported this. The current clause 7 was supported by the CGE and she echoed its view. She wondered about LASA's involvement in cases supported by the Chapter Nine Institutions and other amicus curiae; particularly on Marikana and gender matters. She raised affordability of comprehensive legal aid and asked LASA to indicate the manner in which this can be dealt with in the Bill. She supported Mr Redelinghuys’ comment that the Bill is geared towards structure, although Chapter 5 on General Provisions does deal with other matters to some extent.
The Chairperson appreciated Ms Pilane-Majake raising the Marikana question, particularly why LASA’s involvement is necessary because the nature of a Commission of Enquiry is not adversarial and he could not see where the need for legal representation is required.
Mr Horn said that he wished to raise the submissions made by the absentees, the Law Society of South Africa and the General Council of the Bar. The General Council of the Bar argues that the profession ought to be represented on the board of LASA, to enhance its independence and LASA. The Law Society argues for its participation on the board, because all attorneys and candidates attorneys fall under the Law Society, leading to it having a vested interest; further its involvement could be useful in the coordination and training efforts of LASA. He said he would like to hear the view of LASA on these submissions.
The Chairperson said that the absentees have chosen to not attend the Committee meeting, where issues of national interest are discussed and as a result they are not able to put forward their views where clarity is sought. Further, in light of the content of their submissions, their concerns were narrow, disregarding the issues relating to paralegals and community justice - allowing for the view to be taken that they are merely concerned with maintaining the status quo within the organisation.
Mr Horn said that he understood the Chairperson’s frustration, but said that as the submissions were formally tabled and are before the Committee, it would be irresponsible for the Committee to simply ignore them due to the absence of the institutions.
The Chairperson replied that he agreed and had wanted to record the Committee’s dissatisfaction with their absence from the meeting, yet seek the Committee to form a favourable view on their submissions.
Mr L Mpumlwana (ANC) wanted to know from the CGE on its submission regarding clause 4(f), whether the main thrust of the CGE’s argument could not be catered for through a broad interpretation of the paragraph. Further, whether the submission on clause 6 could be covered by clause 7(c), which requires the board to be representative of the country’s demographic. He wanted to know if it is it necessary to dictate to the board through legislation, when it could be covered in the regulations.
The Chairperson said that perhaps other vulnerable groups should be made mention of in dealing with specifics of the composition of the board.
Ms Vedalankar said that she wanted to agree with the Members' comments on where the Bill ought to fit into the scheme of legal aid. The Bill is intended to create a mechanism for the provision of legal aid by the government and what needs to be done is to set up the institutional arrangements. Thereafter, policy will follow from government which will dictate the focus areas of LASA and interaction with civil society organisations. The policy will also dictate how the institution operates under other pieces of legislation such as the Child Justice Act. Finances will have to be directed by Parliament or the Department of Justice and Correctional Services towards the areas which are identified under the policy, consequent to this being presented in the strategic plan based on the policy. The last step will be for LASA to proceduralise the policy, through efforts such as the Legal Aid Guide.
She wanted to assure the Committee that the means test is reviewed annually, at the same time as the Legal Aid Guide, with an attempt to synergise it with tests used by other government departments. On the types of matters dealt with, the discussions on the Child Justice Act had led to the Portfolio Committee deciding, contrary to submissions by LASA and others, that the process ought to be speedy and cost efficient, resulting in LASA’s involvement only being at the instance of the presiding officer. Further, the budget allocation was provided on this basis, leading to LASA being able to recruit and train people to deal specifically with children. The concerns raised by the submissions were fully agreed with by LASA. However one had to look at the societal context, constitutional imperatives and government directives in order to determine how to allocate its limited resources. She suggested that this would be better dealt with through the Committee’s engagement on LASA’s strategic plan, rather than by legislating for this. Civil society has an important role, as government is unable to do everything and LASA has a robust stakeholder engagement program at local, provincial and national levels in order to address the synergising of efforts towards access to justice. Lastly, on the submissions of the Law Society of South Africa and the General Council of the Bar, she said having a stakeholder board is seen as bad governance by the King III Report on corporate governance, because the primary concern of members of the board should be their fiduciary duty to the organisation and therefore LASA disagrees with this approach. Further, the present board, which has stakeholders represented on it, supports this position.
The Chairperson said that the LASA is attaching a narrow interpretation to legal aid, restricting it to legal representation of criminals. The preamble of the Bill speaks to legal assistance, which generally is required by victims. Therefore, on LASA’s interpretation criminals are being supported at the expense of victims, which is unjust. He had similar concerns about the insufficiency of the legal education of the public, also mentioned in the preamble. He appreciated LASA’s recognition of the role of civil society, but said that this was equally an unfunded mandate.
Ms Vedalankar said that LASA does not only do criminal matters and clarified that it does not represent criminals, it represents accused persons as required by the Constitution. She said on the civil matters, that LASA has grown the number of civil matters dealt with, despite parliamentary committees saying that LASA should not be involved in civil matters. Lastly, LASA does give legal advice.
The Chairperson said that as public representatives, Members are concerned with public perception. This raises the issue of public education, because LASA is to blame if it has not educated the public about its efforts and as a result the public sees them as defending criminals rather than accused persons.
Ms Pilane-Majake said that she did not receive a response to her questions on affordability and whether LASA is in a position to be involved as amicus curiae in cases where Chapter Nine institutions have become involved. She would also like to know about assistance in the equality courts, as indicated by the CGE. Lastly, she did not understand what was said regarding LASA funding civil society.
Ms Vedalankar replied that LASA has people trained in equality court matters in every office and it does deal with these matters. On the involvement of LASA as amicus, it engages with other litigants to determine how it could be of assistance and said that LASA has been involved in funding matters all the way to the Constitutional Court. On funding civil society, LASA was not involved in this focusing on service delivery, although the Department of Justice and Correctional Development does do so by channelling funds through the Foundation for Human Rights.
The Chairperson said the cooperative efforts between LASA and other stakeholders should not be discretionary and there must be certainty around the interaction. He also said there is perhaps need to meet with the Foundation for Human Rights, because he was concerned about the organisations which are funded, where ordinary people require this funding more.
Mr Huntsman dealt with the affordability question, saying that the means test which is used is a simple administrative tool, to apply where legal aid is requested. This is not the only test, because there is a process where the question of substantive injustice is decided. The whole issue of affordability needs to be dealt with more comprehensively, with the complexities of the case, the person’s ability to represent themselves, the person’s ability to afford the cost and the duration of the matter. LASA will have a committee at national level to look into these four aspects. The ability of LASA to look beyond the means test is dealt with in the Bill where a review procedure is set up to allow reconsideration of the particulars of the case.
The Chairperson said that the General Council of the Bar’s submission that reviews of LASA’s board’s decisions be conducted through the court displays self-interest and it would be better to make use of arbitration in this context.
Ms Pilane-Majake wanted to follow up, because her concern went beyond whether an individual qualifies for legal aid and was more concerned with instances which consume large amounts of LASA’s operational budget, such as Marikana, and asked whether there are any provisions which enable a contingency plan to be made in this case.
Mr Huntsman, said that LASA has to remain within the allocation in line with the Public Finance Management Act. Where a case comes up which seems as though it would consume the budget of LASA, it approaches the Minister, and with their assistance, Treasury, so as to avoid an audit finding as a result of overspending.
The Chairperson asked if the Department of Justice and Correctional Services or Treasury has a reserve fund available for LASA to augment any deficits.
Ms Pilane-Majake clarified her question asking how LASA funds litigation and avoids exposing itself to situations which require large amounts of money, because an open ended system would lead to situations where the objects of LASA are impossible to achieve.
Ms Vedalankar said that for the bulk of its work LASA uses in-house and judicare practitioners. However, some matters fall outside this; for example there is a question mark surrounding the funding of commissions of enquiry which is going to be taken on review in the Supreme Court of Appeal. The poor people need to be heard in commissions of enquiry, but the problem is if these are funded, then something else will not be. Further, the activities of LASA are guided by the Constitution and laws of general application and where LASA cannot afford to carry out its mandate then it becomes a legal process and she offered to send the Committee a report of judgements in this regard.
The Chairperson asked for written correspondence to be sent to clarify what exactly a commission of enquiry is, particularly on whether it is inquisitorial or adversarial nature. This is especially because this can be solved through Parliament, to ensure that the most vulnerable get the resources they require. He supported LASA’s decision to take the question on review and wished them luck.
Mr Maila said that he thought commissions of enquiry were to establish the truth around a particular matter and his question was whether the outcomes of these could lead to criminal proceedings.
The Chairperson replied that what is at issue is the composition and nature of the commissions of inquiry, rather than the consequences of the findings.
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Correctional Services, said that the Department will be ready with its responses to submissions on Friday.
The Chairperson declared the meeting adjourned.
- Commission for Gender Equality presentation
- Commission for Gender Equality submission
- Vincent Mayisela submission
- Legal Aid South Africa submission
- Women’s Legal Centre submission on Legal Aid Bill [B8-2014]
- Law Society of South Africa (LSSA) submission on Legal Aid Bill [B8-2014]
- Cape Bar Council commentary on Legal Aid Bill [B8-2014]
- NICRO Submission on Legal Aid Bill [B8-2014]
- NICRO: Creating A Legal Aid System in South Africa For Children & Youth presentation
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