Legal Aid Bill [B8-2014]: Department Response to Submissions

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Justice and Correctional Services

28 August 2014
Chairperson: Mr M Motshekga (ANC)
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Meeting Summary

The Department of Justice and Correctional Services provided responses to the submissions received on the Legal Aid Bill. Clauses which had submissions and/or responses which were of interest to the Committee included clause 6, on the composition of the board of Legal Aid South Africa; clause 9, on the terms of appointment / reappointment of the board; clause 22, on a court ordering the provision of legal aid where it has been refused; and clause 24, on regulations about the means test and Parliament’s role on regulations.

Discussion included an in-depth interrogation of the pros and cons of having a stakeholder representative board for Legal Aid South Africa as submitted by the Cape Bar Council and Law Society of South Africa in clause 9. The Law Society argued for its inclusion on the board, because the organised legal profession is a critical stakeholder in the activities of Legal Aid South Africa. This was countered by Legal Aid South Africa which argued that it is contrary to good governance principles, particularly as board members will be conflicted between their fiduciary duty to the organisation and to the stakeholder they represent.

The second major point of discussion was whether and to what extent civil matters should be dealt with by Legal Aid South Africa and whether it ought to appear in the Bill. The Chairperson raised the concerns of NICRO and Commission for Gender Equality on the need for additional civil matters to be taken up by Legal Aid South Africa. Legal Aid South Africa stated that this had been pursued in the past, but had been declined by previous Portfolio Committees. LASA had been incrementally increasing its civil caseload. It provided examples of how it provided legal assistance for children through its Justice Centres and work with the Master’s Office on matters dealing with estates.

Limited concerns were raised on the propriety of courts ordering the provision of legal aid which had been refused; the revision of the means test to determine qualification for legal aid; appointment of board members, particularly the Minister appointing the Deputy Chairperson.

Meeting report

The Chairperson opened the meeting welcoming Mr William Booth, an attorney representing the Cape Law Society and the Law Society of South Africa. His presence was appreciated because with the written submissions, Members might have questions about them, yet there are no representatives to answer the Committee. One might as well treat the submissions as not made.

Mr S Swart (ACDP) asked for clarity on the Committee requiring attendance consequent to making written submissions, because he was under the impression that it was up to Parliament to invite parties which had made written submissions in line with practical convention.

The Chairperson replied that his instructions were to have the parties represented in the Committee, particularly a body like the Law Society of South Africa which was a key role-player. He agreed that in future the Committee should decide who it wishes to be present at the meeting.

Department’s Responses to submissions on the Legal Aid Bill
Adv Lawrence Bassett, Deputy Chief State Law Advisor: Department of Justice and Correctional Services, said that the department’s responses were based on the intentions with which the Bill was introduced to Parliament, namely to review and overhaul the current institution responsible for the provision of legal aid in South Africa so as to bring it in line with present realities and the constitutional dispensation. If this approach is adopted then perhaps consideration should be given to changing the short title of the Bill from Legal Aid Bill to Legal Aid South Africa Bill.

Long title  
Adv Bassett said the NICRO submission referred to the preamble, while there is no preamble, there is a long title and the Department responded on this basis. The submission was that mention should be made of the poor and vulnerable; while in the present Legal Aid Act 1969 refers to indigent persons. The Department’s response was that the long title refers to two aspects, access to justice and the realisation of the right to legal representation in line with the Constitution: "To ensure access to justice and the realisation of the right of a person to have legal representation as envisaged in the Constitution".

The Department’s submission was that the Bill’s purpose goes beyond provision of legal aid to indigent persons, envisaging the provision of legal aid to people facing substantial injustice, but who may not necessary be indigent. It is therefore unnecessary to refer specifically to the poor and vulnerable as they are included within the above concept.

The Cape Bar Council supports the removal of reference to indigent persons, from the present Legal Aid Act, as this is in line with constitutional imperatives. The Department argues that as the Bill stands it incorporates the poor and vulnerable and court cases have indicated that legal aid should be provided to people who cannot afford representation wholly or in part. Aspects such as the complexity of the matter have to be considered alongside the financial standing of the person. The Department is however not opposed to the inclusion of vulnerable, because this is consistent with the overall aim of legal aid.

Clause 4 Powers, functions and duties of Board
Adv Bassett said clause 4(1)(a) provides that the board may do all that is necessary or expedient to achieve the objects mentioned in section 3, including providing legal services, advice and representation through the hiring of legal practitioners, paralegals and procuring the services of legal practitioners in private practice. Adv Mayisela submitted that candidate attorneys should also be included and the Department supports the consideration of the submission. The Law Society of South Arica submitted that paralegals should not be allowed to sign pleadings or appear in court; and that they must work under supervision. The Department responded that the concerns have been addressed by the law regulating attorneys and advocates, and that paralegals in the employ of Legal Aid South Africa (LASA) would in any event be working under a legal practitioner in LASA’s employ.

Commission for Gender Equality (CGE) had submitted on clause 4(1)(f), that explicit mention be made of legal representation will be provided to protect women from gender based violence. The Department accepted that this is an important matter and the matters for which legal aid is currently provided are set out in the Legal Aid Guide, however in terms of clause 24 this will be dealt with in the regulations. A positive of the Bill is that these matters will now be dealt with through subordinate legislation, rather than a mere guide which has no legislative status.

LASA had submitted on clause 6(1), dealing with the composition and appointment of the board, that it should provide for the nominations for candidates to be made by the Chief Justice after consultation with the LASA. The Department has no objection, seeing as it did have this in a previous version of the Bill, which the State Law Advisors had taken out during certification, citing impracticality.

Adv Bassett said that the CGE submitted that clause 6 should provide that 50% of members of LASA’s board must be women. The Department’s response is that clause 7(c) already covers this by requiring the board to be broadly representative of racial and gender make up of South Africa. However, the Committee may consider incorporating a clause similar to that contained in the Legal Practice Bill, which would require the board to be representative of the gender and racial makeup of South Africa as far as is practicable.

Clause 6  Composition and appointment of Board 
He moved on to the Cape Bar Council’s submission on clause 6, which suggests the Bill refer directly to practicing attorneys, advocates, representatives from the State Attorneys and National Prosecuting Authority in the composition of the board. The Legal Aid Act at present in section 4 requires one practicing advocate and four practicing attorneys nominated by the General Council of the Bar and LSSA. LASA had earlier indicated its view on this and this was shared by the Department, in that the King III report had stated that each board member has a fiduciary duty to the organization and must act with the utmost good faith in relation to the organisation; and it would be a breach of good governance standards should the interests of stakeholders be placed above the organisation’s. Further, the composition of the board is important in as much as it determines the ability of the board to provide appropriate leadership to the organisation, requiring a diverse range of skills and knowledge. Although good governance codes increasingly make reference to stakeholder interests this does not translate into recommending a stakeholder board. Principle 1.1 of the King III Report states that the board is the link between the organisation and stakeholders, and they should be engaged in such a manner that they have trust and confidence in the organisation. Principle 8.1 provides that a stakeholder-inclusive corporate governance approach recognises that stakeholders affect the long term goals of the organisation and the board must develop a strategy for managing its relations with the wide range of stakeholders. When the Legal Aid Act was passed, legal aid was being provided through judicare practitioners who were contracted by the board to provide legal aid and this resulted in the organised profession being represented on the board. Further, now the bulk of legal aid is provided by in-house practitioners. Lastly, there is a problem with current section 4, because it stipulates that the practicing advocate must be nominated by the General Council of the Bar, however there are more organisations of advocates at present and which umbrella body ought to make the nomination?

The Chairperson interjected saying that the submissions of NICRO and CGE had indicated that the definition of legal aid should be wide enough to cover, because it only covers legal representation, contrary to the Lilongwe declaration. Even if this is explicitly provided to vulnerable persons, this is not sufficient. There are both legal practitioners and paralegals, further that there are paralegals in the employ of LASA and others who are community based. This needs to be catered for, because not all people seeking assistance require representation; therefore why can the Bill not be structured to cover both legal practitioners and paralegals? This is important for substantive justice, so that the funds are not used in a suboptimal manner.

Mr Swart spoke to the composition of the board, saying that while he accepts the point on fiduciary duties, it is equally problematic to have no representation for the organised professions. This could be solved by having a requirement of one or two members on the board; if not, some other solution could possibly be found. He wanted to clarify that the other umbrella organisations of advocates are represented under the General Council of the Bar and therefore this does not present an obstacle.

Mr William Booth, attorney representing the Cape Law Society and Law Society of South Africa, said that he agrees with Mr Swart and perhaps the required number of representatives could be reduced. It must be remembered that all attorneys and candidate attorneys, including those in the employ of LASA, fall under the jurisdiction of law society in their particular area. Attorneys could provide significant benefit to the board and that attorneys are in court alongside the legal aid practitioners, leading them to know the grassroots concerns. It must be remembered that there is provision for representation of LASA on the Legal Practice Council, under the Legal Practice Bill. When it comes to advocates there are many bodies of advocates and there is no overarching regulator under the bar councils, which are voluntary organisations. If the advocate’s profession is to be represented on the board then it must be from a properly regulated body. Lastly, that it must be remembered that the Legal Practice Bill seeks to do away with the distinction between attorneys and advocates and this should be kept in mind.

 Mr Booth then answered the concern of the Chairperson about paralegals. He said while their work was valuable as they help members of the public who cannot necessarily afford a legal practitioner, the affairs of paralegals need to be regulated. This is because there could be instances where vulnerable members of the public receive incorrect legal advice and some kind of formalised training is needed to ensure the quality of the assistance provided. A further aspect was that the Law Societies provide pro bono legal assistance at a minimum of 24 hours per year.

The Chairperson replied that insisting on the inclusion of organised legal practitioners could make the implementation of the Bill problematic, because twenty years into democracy, there are still tensions in the organised profession which lead to the creation of bodies such as the Black Lawyers Association, Lawyers for Human Rights and yet lawyers lag in transformation. The formation of LSSA did not resolve this and it is still organised on a federal basis, which is indicative of tensions within the profession, perhaps based on racial mistrust. The proliferation of unregulated advocate’s bodies is also problematic. Therefore, if representation of this sector of society is required the problems it is experiencing organising itself may be transferred to the board of LASA. Further, lawyers are an interested party. Can the board not be trusted to function properly given the requirements for appointment to the board? He agreed that paralegals need to be regulated. There needs to be a distinction between commercial legal practice and public interest legal practice, with public interest practice having access to funds from LASA, because of the nature of the work they are engaged in.

Mr Swart asked if representation of the profession could not be managed by having the interim consultative forum under the Legal Practice Bill nominating two practitioners to sit on the board, because this is an overarching body for the whole profession. His concern was that there would be no representation of the organised legal profession on the board. He encouraged this to be considered during deliberations. On the funding of paralegals by LASA, then a regulatory system would definitely be required, because this would have public finance implications and for the Legal Aid board itself, as it would be problematic to fund an unregulated profession.

Ms Pilane-Mjake supported the view of the composition of the board being augmented by nomination by the interim structure under the Legal Practice Bill. However the composition of that body needs to be looked at first. She agreed that the regulation of paralegals needs to be decided upon, perhaps through their umbrella body, taking into consideration the close work done with communities and formalisation of the types of skills which would allow someone to act as a paralegal. Mention had been made about the nomination of a judge as chairperson of the Legal Aid board by the Chief Justice, whether this should be in consultation or after consultation. This may unnecessarily complicate matters and should be left as is.

The Chairperson commented that the orientation of the Bill favours the established profession and despite the requirement of a board member with community knowledge no suggestion was made that a paralegal be appointed, betraying a bias towards the profession. He t suggested that public interest legal practice, including paralegals, be represented if lawyers are represented on the board. He agreed that the regulation of paralegals was important and noted that the training of paralegals has been on-going since the 1980s and this should therefore not be seen as an obstacle to the recognition of paralegals.

Mr Bassett replied to the Chairperson’s concerns on the definition of legal aid saying that the objects of legal aid are contained in clause 3 of the Bill, which includes the provision of advice, assistance and representation.

The Chairperson said that his concern was that it would be provided solely by legal practitioners to the detriment of other possible role-players, including paralegals.

Adv Bassett said that the Department’s response had not canvassed the issues raised, but paralegals play an important role and an early version of the Legal Practice Bill contained a chapter regulating paralegals, however this was decided against. On the National Forum for Legal Practitioners, mentioned by Mr Swart and Ms Pilane-Majake, Adv Bassett said that it is constituted in terms of clause 96 of the Legal Practice Bill which will continue for three years and is composed of 16 legal practitioners. Eight of whom are attorneys designated by LSSA, two nominated by the National Association of Democratic Lawyers (NADEL), two from the Black Lawyers Association (BLA) and one from each of the four statutory law societies. There are a further eight advocates on the Forum: five from the General Council of the Bar, one from National Bar Council of South Africa, one from the National Forum of Advocates and one from the Advocates Support Formation. Further representatives are one teacher of law, two persons designated by the Minister, one person designated by LASA and a representative from the Attorneys Fidelity Fund.

The Chairperson said that looking at the composition of the above Forum, his point on the tensions in the legal profession would arise about the nominees to the board of LASA. He had had a discussion with the Deputy Minister of Justice and Correctional Services, who indicated that it could be advisable to have separate legislation. Regardless, it is important that the Legal Aid Bill is crafted to ensure that paralegals, however regulated, have access to LASA funding.

Ms Pilane-Majake said that her comments on the Forum nominating legal practitioners to the LASA board was merely to inform the discussion. She then indicated her support for separate legislation for paralegals and the suggestion that it be incorporated in the Legal Aid Bill. LASA fund their parts of their activities.

Ms K Tshabalala (EFF) agreed with the sentiments of the Chairperson on the use of paralegals for legal aid at grassroots level.

Mr Booth argued for legal profession’s representation on the board of LASA, saying that in addition to the attorneys employed by Legal Aid being part of the LSSA, that the judicare work which LASA refers to private attorneys adds weight to the need for legal profession representation. He agreed with the Chairperson’s comments about the fractured nature of the organised profession. He had always felt that BLA and NADEL were required at a certain stage, but the times have moved past this and attorneys need to stand as a unified group. Further, that the Law Societies do have a certain percentage of representation from BLA, NADEL and the statutory law societies. The law society perhaps needs to be cognisant that the proliferation of organisations is problematic and that this needs to be put in order; however there are councils at LSSA level which have universal representation and this is echoed at the provincial level. Lastly, the issue of paralegals if not dealt with in the Legal Practice Bill, needs to be dealt with in separate legislation which deals with the training and regulatory functions. He felt this would need to involve input from all parties, including the profession and community organisations like NICRO. This could provide for a situation where the profession is able to lend its services to aid the work of paralegals, for the best interests of the people of South Africa.

The Chairperson said that it is agreed that the regulation of paralegals ought to be dealt with in separate legislation, but that the Legal Aid Bill must provide for public interest law practice to be funded. He was also concerned that LASA has in house practitioners, because this may lead to a situation where young attorneys are restricted from practicing in rural areas, because the funding which attaches to the LASA office is not available in these areas, thereby depriving poor people access to justice.

Ms Pilane-Majake said that her concern was in engaging with this Bill, sight was being lost of the provisions of other relevant legislative efforts such as the Legal Practice Bill. Perhaps the concerns of the Chairperson could be addressed through the community service provisions of the Legal Practice Bill. She asked Adv Bassett if he could look into the issues with this added dimension, with the view to marry the clause in the Legal Practice Bill with the provisions of the Legal Aid Bill.

Ms Vidhu Vedalankar, LASA CEO, asked to reiterate the points made by LASA in their initial submissions on the Bill around the composition of the board. She said in both private and public entities stakeholder boards are no longer seen as good governance, rather the King III Report speaks to parallel engagement with stakeholders, with the board solely representing the best interests of the organisation. Legislatively, requiring representation of the legal profession on the board is unnecessary, because the Minister who is charged with setting up the board, in applying his mind, is likely to ensure that there is at least a member of the legal profession. It was more appropriate to legislate the skills required by the board, such as public interest law, rather than the sector from which the member should come. This approach speaks to the fact that no organisation or sector is represented on the board; rather the board is representative of the organisation's interests. If a sector wishes to have its interests represented then it needs to engage the board to convince it that it is in the organisation's best interest as well. This indicates the difference between the council of regulatory body, such as LSSA, and the board of a public entity.

Ms Vedalankar then assured the Committee that LASA has a footprint throughout the country, with a presence at every court. This is done mostly through LASA offices, but also through partnerships with private firms or with corporation firms. Where there is a gap is civil matter assessments in rural areas, which is a gap due to financial constraints. In order to cover this gap, LASA is expanding its service by having all the justice centres linked to advice offices, in cooperation with the Association of Advice Offices (AAO), leading to LASA covering all areas which the AAO covers. The fact that people cannot always travel has led to the setting up of a call centre which provides free legal advice in various languages; which does referrals to justice centres in the event that legal representation is required.

The Chairperson agreed with LASA’s position on the downfalls of a stakeholder board, but said there is weakness in LASA’s relationship with community legal services and advice centres in that money is still being dedicated to legal practitioners. He said that in merely associating with advice centres and public interest practitioners, without funding them, there is an imbalance. Further, this mere association disadvantages the majority of people in rural areas.

Ms Pilane-Majake was concerned about LASA’s argument that the King II Report supports parallel engagement with stakeholders, rather than a stakeholder-inclusive board. She said in LASA fulfilling its mandate and providing a public service, it will necessarily need to interact with stakeholders and how will they ensure their input is taken on. She appreciated being informed that LASA was present in all courts. She cautioned that a proper system will be required to ensure that the service remains affordable, particularly with additional civil matters. She inquired about the justice centres Ms Vedalankar had made reference to, wanting to know how they differ from advice centres, how many there were and where they are located.

The Chairperson asked for a map indicating the spread of justice centres. He maintained that the approach of justice centres was biased towards western legal principles, which does not relate to the majority of people. While South Africa may have a modern and workable legal system, this cannot be at the expense of the inclusion of the people. even when the consultations on the paralegal legislation are conducted, the people who most need their services should be heard.

Mr Vedalankar replied that the justice centres are their local offices and there are 64 of these at the present. Linking to these are a further 64 satellite offices, bring the total to 128. LASA had provided maps of the locations of these offices and will provide more in the Annual Report. On the stakeholder board, she had not intended to say that stakeholders input would not be taken into account, and that there is a structured way in which LASA has to engage stakeholders and this is reported on to Parliament and the Minister. Stakeholders are not limited to the organised professions, as the Chairperson had indicated, and engagement spanned over the community’s making use of the service, non-governmental organisations working in the public interest legal services and at community level. All of these parties are not be represented on the board and therefore the stakeholder engagement process is how LASA mediates the services it provides and the interests of these parties; under the guidance of government. This has alerted them to the need for sustainability and community engagement. Separate from this board has a duty to carry out the mandate set out by government and Parliament, which hold the board to account based on the Public Finance Management Act and the Legal Aid Act.

The Chairperson said that the point Ms Pilane-Majake raised was that while consultation with stakeholders is good, the decisions of the organisation are still taken afterwards, with the discretion to take into account the input received. As the stakeholders are the beneficiaries of the service, there is also a question of LASA’s accountability to them, he therefore agreed with Ms Pilane-Majake’s suggestion that stakeholder representation be interrogated.

Mr Booth said that it had been argued that it is likely that the Minister will feel it appropriate to appoint an attorney or an advocate to the board of LASA. However, clause 6 indicates that the board will consist of 14 voting members appointed by the Minister in writing, eight of whom must collectively have skills contained in clause 7(b). Clause 7(b) includes reference to legal services, and does this necessarily mean a legal practitioner, but could mean a member of the board of an organisation like NICRO or a paralegal. The uncertainty in the Bill ought to be clarified.

The Chairperson said that the Lilongwe Declaration and UNESCO definition of comprehensive legal aid make it clear that these legal services include paralegals and social workers. Conventionally legal services are said to exclude legal assistance and legal advice, but this has been dealt with. LASA should be a people centred organisation and the people ought to participate in holding it accountable.

Ms Pilane-Majake asked to engage on LASA funding civil litigation, particularly the process how it is decided whether a particular matter will be funded and for examples of such cases.

The Chairperson said that he had seen that the bias of the case load still favours criminal cases, with 438 844 new criminal matters compared to 55 277 civil matters. He asked why this was so.

Ms Vedalankar replied that in the last financial year LASA had given approximately 300 000 instances of legal advice and handled 500 000 legal matters and only 13% of these matters are civil cases. This has to be understand in light of the historical context, as in the late 1990s government ran into problems with legal aid and decided that if it was to continue with legal aid it would have to limit it to what is necessary. This was defined as what has been required by the Constitution and the courts. The situation was reversed at that point. LASA came to the Portfolio Committee seeking funds to do civil work but the Committee decided that government did not have the money and it was not within its mandate.

The Chairperson asked if the Constitution does not speak of legal representation.

Ms Vedalankar said that section 35 speaks specifically of legal representation at state expense in criminal matters and courts were able to hold LASA to this. LASA supports a broader reading of Section 34 of the Constitution and the transformative nature of the Bill of Rights and Constitution, to mandate the provision of civil legal aid. It was only in the late 2000s that the Committee began to support LASA providing civil legal aid and this has incrementally grown to the present 13%. Additional funds have been requested through the medium term expenditure framework to allow LASA to engage in both legal assistance and legal representation, to satisfy the demand for these services. The question is for the Minister and Parliament to decide on the alteration of the split.

Ms Pilane-Majake interjected that before it can be decided whether the change in the bias is warranted, the Committee will need to know how it is decided whether or not to fund a particular civil matter and provide examples of the types of legal matters LASA is presently involved in, to justify state involvement.

The Chairperson referred to the section 34 of the Constitution which reads “Everyone has the right to have any dispute which can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”. This would justify equality in the balance between civil and criminal matters and the detailed reference to representation for arrested, detained and accused persons which exists in section 35 must understood in light of the injustices of apartheid. Therefore, section 35 cannot be read so as to exclude civil representation under section 34. This constitutional imperative cannot be limited by the financial dictates of the Department, because if the victims of criminals sees the government as defending these criminals then it will result is situations such vigilantism.

Ms Vedalankar agreed with the Chairperson and said that this is exactly what LASA had argued. This has also been brought to light through engagement with stakeholders, who mainly request LASA to do more civil matters. On the types of civil law services which LASA provides, all children’s matters civil or criminal are taken up in line with section 28 of the Constitution. The means test is used for both civil and criminal. Further, that LASA handles eviction matters under the Prevention of Illegal Evictions Act and Extension of Security of Tenure Act; labour matters only at labour court level; and any other matter which there is capacity to handle, which is not excluded by the Legal Aid Guide. An example of a civil matter that LASA is presently involved in is where children are involved in matters relating to estates. An example of excluded matters is claims for money, because the potential for the recovery of costs allows the procurement of private representation. She said the bulk of the civil work done by LASA relates to family matters such as divorce and children.

Ms Pilane-Majake asked if LASA had ever been involved with civil matters against the state.

Ms Vedalankar said that it is possible that impact litigation would have involved the state.

The Chairperson said that the Committee has been armed with a lot of information and seeing as the Department and LASA will be present the following week, the interim should be used to interrogate the issues raised so that everyone may come back fully prepared. He then asked that the Department be allowed to finish relating its responses to the submissions.

Clause 7 Qualification for membership of Board
Adv Bassett began with submissions on Clause 7, which sets out the requirements for qualification to the board of LASA. LASA had submitted that the grounds for disqualification be drafted as a reference to section 69 of the Companies Act. Section 69 (8) of the Companies sets out disqualification to be a director where a court has prohibited said person from being a director or declared them delinquent in terms of section of 162 of the Companies Act or section 147 Closed Corporation Act. Further, if the person is an unrehabilitated insolvent; is prohibited by any public regulation from being a director of a company; or has been removed from an office of trust on grounds of misconduct involving dishonesty. Lastly if the person has been convicted in the Republic elsewhere, and imprisoned without the option of a fine or a fine higher than a prescribed amount, for theft, fraud, forgery, perjury or an offence involving fraud misrepresentation or dishonesty; in connection with the promotion, or management of a company or any act in terms of subsection 69 (2) or various pieces of legislation. He said clause 7 contains provisions which have not been included in the Companies Act, also the Legal Practice Bill contains more provisions, and it may be worthwhile including some of these elements.

Ms W Louw, State Law Advisor, said that the Legal Practice Bill contains provisions for disqualification based on being an unrehabilitated insolvent; being declared of unsound mind; not have been convicted in a court of first instance for an offence and sentenced to more than 12 months imprisonment, without the option of a fine or of an offence which has any element of dishonesty. Another set of wording to be presented is drawn from the Constitution, which is similar.

Adv Bassett said what is useful from the Companies Act provisions is the mention of being removed from an office of trust or been prohibited from being a director.

Clause 8 Chairperson and deputy chairperson
Adv Bassett said the Cape Bar Society and LSSA submissions question the requirement that the Minister must appoint the Deputy Chairperson and if the board should not be able to do so. The Department’s response was that it felt that this was correct and submitted other pieces of legislation which evidenced that the Minister is generally involved in the appointment of the Deputy Chair.

Clause 9 deals Term of appointment
This prescribed that the Chairperson, Deputy Chairperson and directors hold office for a minimum of three years and a maximum of five years and may be appointed for an additional term. LASA submitted that this should not be limited, because god governance does not require this and succession planning and continuity will be hampered. The Department’s response was that other pieces of legislation both restrict appointments and allow multiple reappointments and it has no strong view either way and leaves it up to the Committee.

The Chairperson asked what general practice was for reappointments.

Ms Pilane-Majake replied that a reappointment of one term is general practice, as is the case in terms of Chapter 9 Institutions, and good governance should support this as it avoid people being entrenched in a position for too long.

Mr L Mpumlwana (ANC) said that he was concerned about the situation where an excellent board member will have completed their term and there is no possibility for reappointment. He said perhaps it should not be limited in the statute.

The Chairperson said that this is why he had asked what general practice was, because he was concerned that leaving people in positions for too long could lead to problems such as corruption. He also said that South Africa is a dynamic country and a variety of voices should be heard, including those which are not skilled enough to hold these positions at present.

Ms Vedalankar said that all board members are appointed by the Minister. Further, that it is not general practice to have a single re-appointment, as Adv Bassett had said, rather the practice is differentiate among various legislation. LASA had queried this based on the King III report stating that reappointment was not necessarily bad for corporate governance, however after a certain period the board members independence needs to be reassessed. This is particularly for members involved in aspect such as the audit committee. The notion of independence needs to be balanced against the benefits for institutional memory and continuity.

The Chairperson said that if the approach of LASA and Mr Mpumlwana is taken, then there are sufficient checks on the appointment, with it being done by the Minister, that the independence of the board is not threatened.

Ms Pilane-Majake said that the Chairperson had just raised the fact that South Africa is an evolving country and that people need to be given a chance and regardless of how good people are they cannot be good alone forever, which raises the need for skills transfer. The corporate governance credence of limitless reappointments is questionable, because institutional memory need not be a problem and appointments could be staggered to resolve any issues. Sa counter to institutional memory is stagnation, because without the incorporation of new people an institution may not grow.

The Chairperson carried the point saying that surely a Deputy Chairperson who has been that for five years is ready to be appointed as a Chairperson.

Mr Booth added that the public perception is also important and while a person may be particularly good, there are other who are equally as good. Therefore, from a public perception and common sense point of view 10 years is a significant point of time.

Mr Mpumlwana said that he did not support restrictive legislation and it must be remembered that the discretion would fall on a Minister. Why can a Minister not be trusted to properly exercise their discretion and appoint appropriately.

Clause 10 Termination of membership of the board
LASA had submitted the it should be explicit that a members term terminates immediately upon the expiry of the time limit, unless this is renewed. The Department agreed with this submission.

Clause 13  Committees of the board
The CGE had submitted that 50% of each of the board’s committee’s members should be women. The Department’s response was that wording from the Legal Practice Bill ought to be used which stipulates the need for the committee to be broadly representative of South Africa’s gender and racial makeup as far as is practicable be considered when establishing a committee.

Clause 15  Appointment of Chief Executive Officer
 Adv Bassett said that Adv Mayisela had submitted that this person ought to be legally qualified. The Department disagrees with this submission, because the ultimate responsibility for the management of an organisation and they are also responsible for developing and recommending to the board long term strategies for t the organisation. Further, the focus of their skills ought to be overall management, rather than technical skills related to the core business of the organisation. Clause 15 requires the Chief Executive Officer to be a fit and proper person with appropriate skills and experience; which the Department feels is appropriate. Adv Mayisela, further said that the Chief Executive Officer ought not to be appointed indefinitely and the Department left this to the Committee.

Clause 17  Employees and agents of Legal Aid South Africa
Clause 17(1)(b) which empowers the Chief Executive Officer to, in consultation with the board, appoint as many senior employees as is deemed necessary and as many other employees and agents as is necessary. Adv Mayisela submitted that a problem may arise, because agent is defined as an employee of the Department. The Department’s response was to submit that the words “and agents” be deleted and a new sub-clause (c) be inserted which reads “appoint agents in conjunction with the Department of Justice and Correctional Services”.

Adv Bassett said the CGE had submitted that the Chief Operations Officer consider section 174(2) in carrying out the clause 17(1) appointments. Section 174(2) requires the need for the judiciary to broadly reflect the racial and gender composition of South Africa to be considered in appointments of judicial officers. The Department left this to the committee’s consideration

Adv Bassett noted that the Cape Bar Council supports clause 19 which deals with the protection of client privilege in certain circumstances.

Clause  22 Provision of legal aid by direction of courts in criminal matters
Ms Wilma Louw, State Law Adviser, Department of Justice and Correctional Services, turned to clause 22(1)(b) provides for the direction of the provision of legal aid, at state expense, in criminal matters only if the court has, subject to subsection 3, referred the matter together with any report the court considers necessary to LASA for it to evaluate and report whether the person qualifies for legal aid. The Cape Bar Council and LSSA have similar submissions. The submissions were concerned that the wording of the clause creates the impression that legal aid may only be directed once LASA has made a recommendation to this effect. Amended wording proposed read “… subject to subsection 3, referred the matter together with any report the court considers necessary for the attention LASA for it to evaluate and report and that the court has received and considered this report”. The Department feels that this clause applies only in criminal matters where legal aid has been refused and the wording should be amended to this effect; therefore the Department leaves this to the Committee.

The Chairperson said that if LASA has refused legal aid because it does not have the funds and is then directed by the court to provide this, where is LASA to get the money.

Ms PIlane-Majake asked whether the refusal of legal aid was by LASA or by the defendant.

The Chairperson said that the refusal is by legal aid. The responsibility is then transferred to the court and the legal practitioners who will argue that this is LASA is responsible for this and if LASA does not have the funds, then it will lead to a crisis.

Ms Vedalankar said the Criminal Procedure Act gives presiding officers the right to conduct a fair trial, which includes ordering the state to provide legal aid. If such an order is made, then LASA must comply, unless it feels the decision is clearly wrong in which case it takes the decision on review. Where LASA receives such as order, then it will reallocate funds to cater for the situation. She indicated that LASA is not opposed to this provision.

Ms Pilane-Majake said that the Chairperson’s point was valid on the affordability question and what Ms Vedalankar says is justifiable, but is it acceptable to make a provision which may lead to the situation where it is financially impossible to do what the court has ordered.

The Chairperson said that perhaps the provision could be qualified the provision to mend the concern. It is also troubling that the funds meant to be used for legal aid is being used to fight reviews and the Committee ought to consider this problem.

Ms Louw turned to clause 22(3) which provides that a court may only order the provision of legal aid, in terms of section 22(1)(b), where the person concerned has applied for legal aid, been refused and exhausted the internal appeal mechanisms. The Cape Bar Council submitted that this clause be deleted as it will create unnecessary delays and duplications in criminal trials. The Department’s response is that if courts are empowered to order legal aid where there has been no application that this will result in a dual system of legal aid, which is unsustainable. Also, the requirement of exhausting internal appeals is in line with administrative justice and if all these have been unsuccessfully pursued then a court may refer the case for evaluation and report. After considering this report then it is appropriate for the court to order the provision of legal aid.

Mr Booth said that in practice every court has a duty to advise every accused person of their right to legal representation in terms of the Constitution. In all courts in the major centres there are representatives from LASA who are ready to begin the application process, where an accused has been advised of his right and wishes to make use of it.

The Chairperson said that it is important to distinguish referral to legal aid and an order directing the provision of legal aid.

Ms Louw moved on to clause 22(4)(b) which provides that LASA may in any review proceedings referred to in paragraph 8(2) not be required to pay more than the maximum amount determined in the legal aid manual in terms of section 23(1)(c). The Cape Bar Council proposed a caveat to this clause to provide for an exception where there is negligence, mala fides or any other exceptional circumstance on the part of LASA. The Department does not agree with the submission, because a distinction must be made between legal aid judicare tariffs as provided for in the legal aid manual and costs orders by courts, this clause deals with the fees of lawyers and this has nothing to do with the actions of LASA. Further, LASA has a set tariff system for the payment of practitioners who are briefed and this should not be determined by the court.

Ms Louw turned to clause 22(6) which provides in determining whether a person is entitled to legal aid at state expense, and before this is ordered by a court, the legal aid applicant bears the onus of proving on a balance of probabilities that they are unable to afford their own representation and has made full disclosure of all facts and documents related to their inability to pay, lives a lifestyle consistent with their alleged inability to afford and has cooperated fully with any investigation by LASA. The Cape Bar Councils submits that the onus and requirement to prove the negative concepts in the sub-clause are open to constitutional challenge and the clause should be deleted and replaced with one indicating that LASA can recover from a beneficiary who misrepresented their financial state. The Department does not agree with the submission, because the only way that LASA can determine whether a person qualifies for legal aid is on the strength of what is presented to it and there would be an immense administrative and financial burden if all applications were to be accepted and recoveries done retrospectively. The obligation placed on the applicant is appropriate; because they are in the position to access the relevant information and LASA cannot afford to provide legal aid to persons who can afford representation, but intentionally misrepresent their financial status.

Clause 23 Legal Aid Manual
LASA proposes that Clauses 23 and 24 are swapped, because regulations have legislative status and they ought to precede administrative issues. The Department has no objection to this suggestion.

Clause 24  Regulations
Ms Louw turned to 24(1)(a)(i) provides that the Minister after receipt of recommendations from the board make regulations relating to the types of matters in respect of which LASA does not provide legal aid. The Cape Bar Council submitted that the provision which requires the types of matters which LASA does not deal with is too wide and inflexible, allowing no room for any discretion. The Department’s response is that the Cape Bar Council concedes that there will be circumstances where legal aid will be refused. Further, clauses 3 and 4(1)(g) dealing with the objects of legal aid and powers of the board indicate unambiguously that legal aid must be made available in terms of the constitution, the Legal Aid Act and any other law. When regulations are prepared and promulgated by the Minister, upon recommendation of the board will in the normal course ensure satisfaction of constitutional imperatives and be justifiable. This is in light of the limited financial resources available and the limitation of the right to legal aid can be justified if done by a law of general application.

The Chairperson agreed with the position of the Department.

Ms Louw said that the Women’s legal Centre also made submissions on clause 24(1)(a), saying that the types of matters for which legal aid is provided should be reconsidered and stipulated in the legislation itself. The Department’s response is that this is currently dealt with in the Legal Aid Guide, which has no legislative status and this will be dealt with in the regulations, which have the force of law and which Parliament has oversight over. It is more expedient to deal with issues of this nature in regulations, which can be amended fairly speedily to accommodate changing conditions and stakeholders will be engaged for comment in drafting the regulations.

The Chairperson asked which provision ensures that there is parliamentary oversight over the regulations.

Adv Bassett replied that clause 24 requires the tabling of the regulations at least 30 days before they are published in the gazette. He added that there have been instances in past legislation and because such a vital issue is being addressed, that clause 24 should require approval by Parliament above mere tabling.

Ms Pilane-Majake said that approval may be beneficial, because the issues deal with are contentious and as these are enabling regulations Parliament will be able to ensure that they do not misapply the intentions of the Act.

Ms Louw turned to clause 24(1)(b) which provides that the Minister must make regulations relating to the requirements or criteria that an applicant must comply with to qualify for legal aid, also known as the means test. The Women’s Legal Centre submitted that the clause should expressly provide for the periodic reassessment of the means test. The Department’s response is that the means test will be manifested in the regulations and perhaps a clause similar to 23(1) could be inserted whereby the regulations envisaged must be reviewed every two years. Alternatively, a provision could be included which requires LASA to report on this to Parliament in their annual reports.

Ms Pilane-Majake said that the review of regulations every two years will be too onerous for LASA and perhaps a provision which says from time to time or whenever there is need will serve the purpose. Especially, because the Committee will be involved in this process.

Ms Tshabala agreed that two years could be too much, but a restriction would be equally problematic where something needs to be changed. Perhaps, “two years if required” could be flexible enough.

The Chairperson suggested the use of “when need arises”.

Adv Bassett reiterated the Department’s second suggestion that LASA be required to report on this aspect.

The Chairperson agreed and said that the Committee can then determine the need for review.

Mr Booth asked for clarity on the current position on review of the means test.

Ms Vedalankar replied that the means test is currently contained in the Legal Aid Guide and it is to be reviewed annually. It is submitted for review annually; however it is never processed and completed annually leading to the process taking two years. She therefore agreed with the Members who have indicated that it is an administrative burden.

Clause 26  Transitional arrangement
This provides that the Minister must as soon as possible after the commencement of the Act, but not longer than three months thereafter designate one of the persons designated in paragraph (a) to as Deputy Chairperson for the 12 month transitional period. The Cape Bar Council and LSSA submitted that they do not agree that the Minister must designate the Deputy Chairperson. The Department’s response in this regard is the same as that for clause 8, with a trend having been identified in legislation providing for the Minister to appoint Deputy Chairpersons.

The Chairperson questioned the rationale behind allowing the Minister to appoint the Chairperson, but not the Deputy Chair and asked for the LSSA’s view on this point.

Mr Booth replied that the argument is that the board will be in a better position to make this decision as to who should be the Deputy Chairperson.

The Chairperson replied that this argument does not make any substantive ground, because this is general practice and the Minister is deemed fit to appoint the Chairperson of the board.

Ms Louw then turned to the general recommendations and comments which had been received by the Department. First, Adv Mayisela submitted that the Bill does not take into account the provisions of the Legal Practice Bill; to which the Department responded that the Legal Practice Bill provides for incremental implementation and this cannot delay the Legal Aid Bill. Second, the CGE submitted that legal aid must empower women in the legal profession; the Departments response to this is that the Bill does address this and provide for diversity. Thirdly, NICRO’s submission on the quality and service delivery of LASA and its practitioners, particularly  children; to which the Department responded that this falls outside the ambit of the Bill and should be dealt with in other relevant legislation.

The Chairperson asked if not in this Bill, then how are children in conflict with the law to access legal aid.

Ms Louw replied that this would be achieved through the interaction between various pieces of legislation, such as the Child Justice Act and Children’s Act, with the Legal Aid Bill will achieve this. The Legal Aid Guide and Legal Aid Manual must also be read with these statutes, as it provides for legal aid to children. Further, that while there may be issues with providing legal aid to children that it would confuse the issues in the Bill for this to be addressed here.

The Chairperson asked if children are not part of the vulnerable people mentioned in the Bill.

Adv Bassett replied that the point is taken, however children are specifically catered for in the Legal Aid Guide and will be catered for in the regulations. The Child Justice Act has a detailed provision which deals with legal representation of children and this is perhaps the focus of NICRO’s concerns.

Ms Louw continued with the general recommendations and comments from the submissions, saying that the CGE had submitted that a provision be inserted to ensure that judicare matters must be allocated disadvantaged, disabled and female practitioners. The Department’s response is that the accreditation, including the black economic empowerment policy, of judicare practitioners is contained in chapter 8 of the Legal Aid Guide and will be contained in the Legal Aid Manual if the Bill is passed. Further, that it is not advisable to place such a provision in the Bill as criteria may be missed and the best placed to regulate this would be in the regulation which is also a statutory instrument.

The Chairperson asked if there was any other comment from Members.

Mr Mpumlwana said that the Department must not forget the items which the Committee has left to the care of the Department.

The Chairperson the declared the meeting adjourned.

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