Legal Aid Bill [B8-2014]: deliberations

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Justice and Correctional Services

01 September 2014
Chairperson: Mr M Motshekga (ANC)
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Meeting Summary

The Chairperson observed that during previous deliberations, there were comments about restructuring access to justice. There was the perception within society that the law favoured criminals more than society. Others indicated that the focus on the accused persons by the Committee was a constitutional imperative. There was a concern that the Committee dealt more with Section 35 (Accused, detained and accused persons) of the Constitution rather than Section 34 (Access to courts) which dealt with justice and applied to both the society and accused persons. Another question raised was why resources should be allocated only to legal practitioners and not paralegals. There was an opinion that paralegals should have been dealt with in the Legal Practice Bill rather than in separate legislation. All these observations he noted must be borne on mind during deliberations.

The Committee were taken through the first working draft of the Bill after all public comments had been considered by the Committee. There was consensus that the title of the bill - Legal Aid Bill - should remain as is. Due to a concern that women and children were not well catered for under the current provisions nor was the need for legal advice, this phrase was inserted into the Long Title: “and to render or make legal aid and legal advice available to vulnerable persons”.

The proposed insertions in Clause 1 was the definition of “candidate attorney means a person undergoing practical vocational training (articles of clerkship) with a view to being admitted and enrolled as an attorney.” Further, it was proposed in the footnote that since Clause 4(1)(a) now referred to candidate attorneys, the question was raised whether the definition of “candidate attorney” as in the Legal Practice Bill recently approved by the Parliament, should be included in the Bill and if included, then the question is further raised if reference to advocate's pupils should be made as well in the Bill. The Legal Aid SA and the Department’s stance was that the suggested inclusions were welcomed as it would afford people the opportunity to undergo pupillage and would create employment opportunities for them to be employed by Legal Aid SA. Inclusion of pupils would have to be in consultation with the organisations representing advocates and the Department was happy to consult with them as the inclusion would make a lot of difference. This issue was deliberated on extensively. The unanimous decision was that the inclusion of pupils would be postponed until the implementation of the Legal Practice Bill.

In Clause 3, the concern raised by Legal Aid SA was the inclusion of “any other law” in the subsection (b). They were of the opinion that if any other law came in the future, it might impact negatively on the mandate of Legal Aid SA or impose obligations without the accompanying funding for the mandate. Decision on this was flagged.

The proposed inclusions in Clause 4 were (1)(a)(i) “and candidate attorneys” and (1)(f) “and render or make legal aid and legal advice available to vulnerable persons”. The Chairperson queried that the section did not address public interest law practice but only accommodated paralegals in the employ of Legal Aid SA. Could Legal Aid SA make funding available to paralegals outside its employ especially in areas where the people did  not have access to legal advice? Could other legislation dealing with the regulation of paralegals outside of Legal Aid SA, be considered whilst making sure that these paralegals also have access to legal aid funding? The Legal Aid SA board chairperson undertook to assist in locating any piece of legislation that would locate public interest legal practice within the frame work of access to justice. This was welcomed by the Committee.

The proposed inclusions for Clause 6 were in (1)(a) “after consultation with the Board” and (1)(b) “as a whole” whilst the word “collectively” should be deleted. A comparison had been made with other boards and it was observed that the word “collectively” was generally not used in this context. It was decided that for uniformity and for easier judicial interpretation, the same wording as used in other acts (which was “as a whole”) should be used. The Legal Aid SA board chairperson responded to concerns about board composition, saying that the current provisions in the Act had the legal profession specifically represented on the Board. He explained the historical reasons for this provision. Two out of the four attorneys on the Board were to be appointed by the Law Society of South Africa (LSSA), then the third one was appointed also by LSSA but must be from the Black Lawyers Association (BLA) and the fourth attorney would be from the National Association of Democratic Lawyers (NADEL). He proposed that the Committee should move away from the stakeholder issue completely because it always generated problems. He assured the Committee that there would always be an advocate on the board but it should not be via the stakeholder gate-keeping mechanism. The Board had always been conscious of the need to have a member in the Board who had the knowledge of Public Interest Law. The Board had always ensured that there was a board member that would add that perspective. He said it would be very irresponsible of the board to ignore those dynamics and come with a completely business-minded approach. The Legal Aid SA Chief Executive Officer commented that it was imperative for the Committee to bear in mind that with this opportunity of drafting new legislation in a period where boards were core to good governance, it would be important that the Committee did not revert to the era of stakeholder boards which was when people with different “hats” and who represented their personal interests sat on the board. Board members should be there with just one “hat” with the sole aim of representing the interests of the organization in which they were serving as a member of the board. Every board member should therefore see how best they could fulfill the mandate of the organization in which they were serving in terms of the Constitution and the Act. There was unanimous consensus on the exclusion of stakeholders from the Board based on the compelling argument put forward by the Legal Aid SA board chairperson and supported by the CEO. The LSSA submission had suggested the Bill should provide for 2 LSSA officers and 3 employees of Legal Aid SA to be appointed as voting members and this proposal the Department indicated was not in any way in conflict with good governance as set out in King 3 Report.

Clause 7 dealt with the qualifications for membership of the Board. The suggested inclusions were: (c) “as a whole”, (d) “as a whole”, “experience in, or knowledge of, any one or more o the following fields”, (d)(iii) “including experience as a practising attorney and advocate”, (d)(vii) “knowledge in public interest law”. The suggested deletions were: (c) “collectively”, (d) “collectively”, “skills”, “which include”, (d)(v) “skills”. Three alternative options were proposed for section (e) for the Committee’s consideration. The first option was based on the wording of section 47 of the Constitution, the second options dealt with the wording used in the Legal Practice Bill whilst the third option included the provisions of section 69 of the 2008 Companies Act, dealing with the eligibility and disqualification of persons to be directors of companies as suggested by Legal Aid SA. A further alternative was proposed for Clause 7 which was, the inclusion of: (7)(1) “subject to subsection (2)”, (b) “and” and the whole of Clause (7)(2). The deletions proposed were: (7)(c), (7)(d)(i), (ii), (iii), (iv), (v), (vi). The last option of including Clause (7)(2) was opted for because the word ‘practicable’ was included and it would give flexibility in constituting the Board, would deal with preferential representation and any other relevant criteria. The Committee supported and opted for the second option.

The Committee agreed that Clause 8 should be left as is: “.....the Minister in writing must designate one of the directors referred to in section 6(1)(b) as Deputy Chairperson of the Board....”. It agreed that the limitation in Clause 9 should be left to two terms which would give room for new blood on the Board. It agreed that the inclusion in Clause 10(3) of “before removing a person from office in terms of subsection (2), the Minister must afford the person an opportunity to be heard” was in line with natural justice. It agreed to the inclusion in Clause 13(3): “when constituting a committee, the following factors must, as far as is practicable, be taken into account: (a) the racial and gender composition of South Africa, (b) the objects of the Committee in question and (c) representation of persons with disabilities.” The Committee agreed to the present position of the Bill on delegation of powers in Clause 14.

It agreed there was no need to swap Clause 15 and Clause 16 and the changes in Clause 17 were accepted  as was the technical amendment in Clause 22. The proposal that the regulations should be subject to parliamentary approval in Clause 23 was accepted after some debate.

Meeting report

While waiting for two committee members to arrive, Mr B Bongo (ANC) commented that he had read in the newspapers about the magistrate matter which was discussed by the Committee. He felt that the report was a distortion of the deliberations by the Committee. He wondered who could have spoken to the press to produce such an erroneous report.

The Chairperson replied that there would always be different interpretations and people should be free to express their opinions whether it was right or wrong. However, the Committee has a mandate not to rubber stamp what the Minister had said but to carefully consider what had been presented and come up with their own opinion.

Ms K Litchfield-Tshabalala (EFF) said that she detested when the word “they” is used because it could sow discord in a Committee. Any Committee member who spoke to the press must be bold enough to disclose his or her identity if what he or she said was true.

Mr S Swart (ACDP) cautioned the Committee that the discussion on the table was not on the agenda and should therefore be postponed until another time. If the issue must be discussed, then the media report must be circulated for all to have a better understanding of the discussion. He however appreciated the comment by the Chairperson that every individual is entitled to freedom of speech..

The Chairperson replied that the meeting had not started but he allowed some feedback based on the issue raised by Mr Bongo. The relationship of the media and the public had always been such that they claimed that they could not disclose the identity of their sources as those individuals would cease to be sources in future. However as Members of Parliament, the right of the media to conduct their business and the right of individuals to their opinion must be respected.

The Chairperson welcomed everyone, noting the presence of Judge Dunstan Mlambo, Board Chairperson of Legal Aid South Africa. He noted that the Legal Aid Bill [B8-2014] was tabled in Parliament and referred to the Portfolio Committee of DOL & CD on 21 July 2014. The Committee advertised for public comments on the parliamentary website and the media in August 2014 and seven submissions were received. Public hearings were held on 26 August 2014 and the Department responded to these submission on 29 August 2014.

Each clause would now be considered and amendments would be agreed on by the majority of members. When all the amendments had been agreed on, an A list reflecting all amendments would be prepared for the Committee’s consideration. The amendments would be incorporated into a B version of the bill which would be adopted by the Committee and then tabled in the National Assembly for referral to the NCOP after which Bill would be adopted.

He observed that during previous deliberations, there were comments about restructuring access to justice. There was the perception within society that the law favoured criminals more than society. Others indicated that the focus on the accused persons by the Committee was a constitutional imperative. There was a concern that the Committee dealt more with Section 35 (Accused, detained and accused persons) of the Constitution rather than Section 34 (Access to courts) which dealt with justice and applied to both the society and accused persons. Another question raised was why resources should be allocated only to legal practitioners and not paralegals. There was an opinion that paralegals should have been dealt with in the Legal Practice Bill rather than in separate legislation. All these observations he noted must be borne on mind during deliberations.

Legal Aid Bill [B8-2014]
Adv Lawrence Bassett, Chief Director: Legislative Drafting, Department of Justice and Correctional Services (DOJ&CS) took the Committee through the new Working Draft of the Bill, indicating where amendments had been proposed by the Committee:

Title
Mr W Horn (DA) reminded the Committee that at the previous meeting, it was suggested that for a better identification of the bill, it should be renamed “Legal Aid Bill South Africa”. In his opinion however, renaming the bill did not really make a difference.

The Chairperson was of the same opinion as Mr Horn.

Judge Dunstan Mlambo, Board Chairperson of Legal Aid South Africa, was also in agreement. He said that the title as it is now broadly described the legal aid scheme of the country.

There was a general consensus that the title of the bill should remain as it was – Legal Aid Bill.

Long Title
The Chairperson said that there was a concern that women and children were not properly catered for in the current provisions. It was therefore suggested that “vulnerable groups” should be included in the long title.

Adv Bassett commented that there were a few organizations that felt that it was important to include vulnerable groups. The consideration was not really on indigent persons but on vulnerable people that needed legal aid, particularly in civil matters. Already included in the Long Title was the right of the person to have legal representation as envisaged in the Constitution. A phrase had been included - for the Committee’s consideration: “and to render or make legal aid and legal advice available to vulnerable persons”. Why it was necessary to add legal aid and legal advice was because clause 3 provides that, the objects of Legal Aid South Africa are two; “to render or make available legal aid, legal advice and to provide legal presentation to persons at state expense as envisaged in the Constitution, this Act and any other law, and to provide education and information concerning legal rights and obligations”. The Committee might want to deliberate on the question of why legal aid and legal advice were split up and not lumped together and why legal aid and legal representation were not used instead.

The Chairperson replied that during deliberations, a concern was raised on the level of emphasis that was being placed on legal representation rather than on legal assistance. There were some people that may not necessarily appear in court but would need legal advice or assistance rather than a legal representation. The question of who gave legal advice was raised and it was observed that paralegals were also involved in giving legal advice. This discourse ushered in the issue of public interest legal practice. The distinction between legal aid and legal advice was then suggested which Adv Bassett and his team had effected into the Working Draft of the Bill.

There was a unanimous consensus on the suggested inclusion.

Adv Bassett said the suggested insertions were: line 2 - “and to render or make legal aid and legal advice available to vulnerable persons”, line 15 – “the designation of certain officials as agents”, and line 20 – “to provide for the making of regulations”. He explained that the inclusion of “the designation of certain officials as agents” was based on the intended inclusion in clause 17(1)(c) – “The chief executive officer must, subject to subsection (3)34 and section18 designate certain officials as agents in conjunction with the Department of Justice and Constitutional Development.”

The Chairperson wanted clarification between who an employee and an agent of Legal Aid SA is.

Mr Bassett explained that employees were appointed by the board but agents were officials of the Department who assisted Legal Aid SA in its mandate. Therefore if the board was in need of an agent to carry out its duty, then these agents must be designated by Legal Aid SA in conjunction with the Department.

Judge Mlambo explained further that in areas where there was no Legal Aid SA employee available in the court and an individual signified that he was in need of Legal Aid, then the staff of the Department at the court would be designated to assist the legal aid applicant with the completion of the Legal Aid application forms which wouldbe passed to the agency lawyers in the area. These agents would be known by the presiding officers as an agent for Legal Aid SA.

The Chairperson asked why well qualified paralegals could not be called in to assist in the completion of Legal Aid application forms in these specified areas.

Judge Mlambo replied that there were paralegals in the employment of Legal Aid SA and since they were employees, there was no need to further delegate them to act on behalf of Legal Aid SA but the issue at hand was about someone who was not in the employment of Legal Aid SA but could be designated to assist with Legal Aid work where the presence of Legal Aid was not easily accessible.

Ms C Pilane-Majake (ANC) chipped in that the intention of the clause was to take care of the arrangements regarding the appointment of staff within an entity and in this case within Legal Aid SA. In her opinion, there were some issues that could be left to be included as a part of enabling regulations that would appear in the manual of Legal Aid SA.

The Chairperson accepted the explanations and the clarifications to which the other members of the Committee agreed to.

Adv Bassett said that it was suggested during the deliberations that Clauses 23 and 24 be swapped. Regulations (Clause 23), which have the same status of legislation, should be dealt with first and then the administrative issues which were dealt with in the Legal Aid Manual (Clause 24) should come after. Based on the Committee's unanimous agreement, the swapping had been effected and included in the long title.

There was a general consensus from the members.

Clause 1 Definitions
Adv Bassett said in the defining the word “agent” the word “appointed” would be deleted and substituted with “designated” as discussed earlier on. The proposed insertion was the definition of “candidate attorney means a person undergoing practical vocational training (articles of clerkship) with a view to being admitted and enrolled as an attorney.” He noted the proposal in the footnote that since Clause 4(1)(a) now referred to candidate attorneys, the question was raised whether the definition of “candidate attorney” as in the Legal Practice Bill recently approved by Parliament, should be included in the Bill. If included, then the question arises whether reference to pupils should be made as well. Pupils were people undergoing vocational training to become advocates. The Department’s view was that the suggested inclusions were welcomed as it would afford people the opportunity to undergo pupillage and would create employment opportunities for those in pupillage at Legal Aid SA with the view to their becoming advocates. However, there was a provision for the appointment of candidate attorneys by the Legal Aid SA in the Attorneys Act, therefore making it possible to include candidate attorney in this Bill however, there was no provision made for pupils in the Advocates Act. This inclusion of pupils would have to be in consultation with the organisations representing advocates. The Department would be happy to consult with them as the inclusion would make a lot of difference.

The Chairperson inquired on the issue of the Legal Aid Board that dealt with attorneys. Could attorneys that took instructions directly from the public also employ students?

Judge Mlambo replied that Legal Aid SA was in support of pupil inclusion in the Bill. For the past eight years as Chairperson of Legal Aid SA, he had tried to get the General Council of Bar (GCB), the body which controlled the entry into the advocates rank, to support the initiative but an agreement had never been reached. One of the reasons was no legislative scheme backed the inclusion up. However; he was of the view that Legal Aid SA would be able to enable people who were unable to make it easily to the advocate level. He hoped that when the Legal Practice Bill was implemented, the issue would be sorted out.

The Chairperson replied that in his opinion, it was a crucial matter that had to be sorted and may not have to wait until the Legal Practice Bill was implemented. The perception of law graduates was that there were some form of gate keeping that barred access to the legal profession. If Legal Aid SA could provide an alternative training, then the opportunity should be taken advantage of.

Mr Horn commented that if any provision was included now with regards to pupils, then it must be carefully drafted so as not to change the current system but await implementation of the Legal Practice Bill as an Act.

Mr Swart reminded the Committee that these issues had been raised in previous discussions especially about discipline and those who were subject to the disciplinary action of the GCB. As much as he understood and agreed with the sentiments of the matter at hand, such action must be taken with caution and with careful consultation before included in the Bill.

The Chairperson indicated that there was a difference between the law and reality. It was reality that advocates in the employment of Legal Aid SA have pupils attached to them and if they were not given the needed space, they would be denied access to the legal profession and there was no way to compensate them for this delay.

Mr Swart was doubtful if currently there were pupils with Legal Aid SA. He assumed that the inclusion of pupils into the Bill was just to make a provision in the long term for pupils.

The Judge confirmed that currently, Legal Aid SA was not allowed to take pupils so there were presently no pupils with them as much as they would love to have pupils.

The Chairperson asked whether the members were comfortable with postponing the inclusion of pupils until the implementation of the Legal Practice Bill, to which the members signalled their agreement.

Clause 3 Objects of the Act
The proposed inclusions were to divide the mandate of Legal Aid SA into three subparagraphs and then to include: (a) “to vulnerable persons” and delete “and to”, (b) to delete “,” and “to”.

The Chairperson asked why the objects did not explicitly state the utilisation of paralegals.

Adv Bassett replied that it was already included in Clause 4. He noted that Legal Aid SA had raised a concern about the inclusion of “any other law” in the subsection (b). They were of the opinion that if any other law came in the future, it might impact negatively on the mandate of Legal Aid SA or impose obligations on them without the accompanying funding for the mandate.

The Chairperson voiced his doubt that the Committee would make such an uninformed decision but Legal Aid SA was free to persuade the Committee on this.

Judge Mlambo explained that that the concern was about unfunded mandate. It would give Legal Aid SA serious problems if there were laws that mandated anyone needing legal assistance to approach Legal Aid SA when no accompanying funding was attached.

The Chairperson asked for feedback from members. He expressed his own position, saying he understood the difficulty that Legal Aid SA was trying to address because other laws may come in the future that would interpret their mandate in such a way that would require legal aid which would be unaffordable. This could have grave consequences for Legal Aid SA.

Mr Swart said that as much as he agreed with the sentiments put forward by Legal Aid SA, were they referring to existing laws or were they concerned with future laws?

Judge Mlambo replied that one of the concerns was about people requiring legal assistance in land disputes. The Extension of Security of Tenure Act (ESTA) had specific provisions that called for funding to be made available not to Legal Aid SA but to appointed agencies to give legal assistance to people who required it. So the concern is partially for existing regulations but much more for future laws. Currently, there was no provision that mandates anyone needing legal aid to approach Legal Aid SA. There had been times that the court had ordered Legal Aid SA to provide legal assistance to individuals after Legal Aid SA had declined doing so.

Mr Swart asked, based on the explanation given, if excluding those proposed words would not impact negatively on people’s rights. However he was not opposed to the deletion of those two words as all the members understood the financial constraints of Legal Aid SA.

The Chairperson was inquisitive to know if it was normal practice for the court to use its prerogative to insist that Legal Aid SA assist people. Would this court injunction not negatively impact the budget of Legal Aid SA?

Judge Mlambo responded that the danger of Legal Aid SA exceeding the budget was a reality but up till now, Legal Aid SA had been able to deal with the situation as in the Marikana issue where the court ordered Legal Aid SA to provide legal funding. However, it is not sustainable. If for example five High Courts ordered us to provide legal funding for high profile matters, then the funding would be depleted in no time.

The Chairperson wondered what the nature of the Commission of Inquiry was. In his opinion, legal aid and legal representation should not be provided when it is not necessary or needed.

Ms Pilane-Majake chipped in that she was in support of the removal of “any other law”, however, caution must be taken so that a constitutional crisis was not created because of a piece of legislation that was not sustainable. As a country, there must be a democratic system that is fair and allowed people to be well represented but it must be within the confines available resources.

Mr Swart wanted to know whether Judge Mlambo or the Department knew of any existing laws that required legal representation by Legal Aid SA or where legal aid is envisaged.

Ms Wilma Louw, State Law Adviser: DOJ&CD, replied that she knew of only section 30 that dealt with regulations and which made reference to legal representation by Legal Aid SA.

Adv Bassett added that the definition of the Act included the regulations which stipulated where legal aid was made available. He did not know of any other Act besides section 30.

The Chairperson was in agreement with the proposition that “any other law” should be deleted so as not to create a situation of uncertainty.

Ms Litchfield-Tshabalala wondered why “any other law” was included initially. She asked whether Judge Mlambo could give the Committee some assurance that the deletion of those words would not disadvantage a vulnerable person in any way if they needed legal aid.

Ms G Breytenbach (DA) raised concerns about the removal of the words. She said it could remove or limit existing rights. There was a need to be sure of this before the deletion of “any other law.”

Judge Mlambo assured the Committee that the exclusion of “any other law” would in no way disadvantage a vulnerable person because the general drift of the Legal Aid Bill was to represent anyone who could not represent himself at his own expense. He agreed however that the decision on the removal of “any other law” could be deferred so that they could check if there were any Acts that could be impacted negatively if the words were removed.

The Chairperson replied that the deletion of “any other law” would be accepted unless the findings of the Department pointed to the contrary. The Committee agreed.

Mr Swart quickly chipped in that maybe the word existing should be added to “any other law” to make “any other existing law” as this would streamline the possibility of future laws and would cover the Equality Act which may have conflicting provisions.

To this the Committee gave its approval.

Clause 4
Adv Bassett said that the proposed inclusions were in (1)(a)(i) “and candidate attorneys” and (1)(f) “and render or make legal aid and legal advice available to vulnerable persons”. He noted that the inclusion in (1)(a)(i) had been discussed in preceding clauses and had been agreed upon by the members whilst the (1)(f) had also been previously discussed.
 
The Chairperson queried why the section did not address the issue of public interest law practice but
only accommodated paralegals in the employment of Legal Aid SA. Could Legal Aid SA make funding
available to paralegals outside its employment especially those in areas where the people did not have
access to legal advice? Could other legislation that dealt with the regulation of paralegals outside Legal Aid SA be considered whilst making sure that these paralegals also have access to legal aid funding.

Adv Bassett responded that from the stance of the Department, the issue should be dealt with by the Committee in another piece of legislation since Legal Aid SA did not deal with any other paralegals aside those in their employ. He asked for clarification as to whether the Committee meant that funding should be made available to organisations in the rural areas where there were no direct access to Legal Aid SA. If that was the case, then the challenge that would arise would be to address accountability for the funds given to those organizations.

Judge Mlambo added that it would be difficult for Legal Aid SA to fund organisations as was being suggested. He however agreed with the notion that public interest law be supported. He undertook to assist in locating any piece of legislation that would locate public interest legal practice within the frame work of access to justice.

The Chairperson welcomed the idea of having separate legislation to deal with the matter. On behalf of the Committee, he gladly accepted the offer made by Judge Mlambo to assist in the matter.

Mr Horn asked for clarification on the exact definition of vulnerable persons so as to curb different definitions or understanding of the term.

Adv Bassett replied that defining the term was quite difficult and he would have to consult with his colleagues on the matter.

Mr Swart insisted that the Committee should not bother delving into the matter of definition as it was a very broad term. In practice, the Legal Aid Manual with other practices and conventions would be used to determine if an individual could get access to legal aid in terms of the particular vulnerability of the person.

The Chairperson was in agreement that the definition of the term should be left to those who had been empowered to preside over those groups of people and those who were well informed on the matter. They would be in the best position to differentiate who was vulnerable and who was not.
 
Clause 6
Adv Bassett read out the proposed inclusions which were in (1)(a) “after consultation with the Board” and (1)(b) “as a whole” whilst the word “collectively” should be deleted. A comparison had been made with other boards and it was observed that the word “collectively” was generally not used in this context.

Ms Louw added that when comparisons were made with the Medical Scheme Act and the Council of Higher Education Act, it was observed that the word “collectively” was not used but “as a whole” was used.
 
The Chairperson quipped that the word “collectively” and “as a whole” did not mean different things but was just a matter of choice of words.

Mr Horn was of the opinion that uniformity among words used in legislation was essential. It would be much easier for judicial interpretation if the Committee followed that same wording that had been used in other acts.

The Chairperson asked Adv Bassett which of the options he was comfortable with.

Adv Bassett suggested that the one known in legislation should be used for uniformity and for easy interpretation in litigation. On the other hand, Clause (6)(b) could be deleted since provision had been made for it in (7)(d).

The Chairperson commented that another issue that this formulation could address was the insistence of having the legal profession represented on the Board. If the Board is chaired by a judge who is part of the collective, how then was it possible that the legal profession was not represented and that another representative was needed.

Responding, Mr Swart reminded the Committee that he had debated on this issue previously. Under the previous Act, there were 1 advocate and 4 attorneys and there was a difference between a judge chairing the Board and having a representation from the profession. He made the recommendation that someone from the National Forum of Legal Practitioners should be appointed. One member of the Legal Aid Board must sit on the National Practice Council.

The Chairperson remarked that the legal profession had been perceived to be the slowest in terms of transformation of the profession itself. They had constituted several groups that were not responsible to each other. If there must be representation on the board, then it may take a year to reach an agreement on who should represent the legal profession on the board. This would destabilise the provisions and mandate of Legal Aid SA itself. The Committee would not want the full operation of the Legal Aid Bill to be delayed until the implementation of the Legal Practice Bill.
 
Ms Pilane-Majake pointed out that another sentiment that was expressed was the representation of stakeholders on the Board.

Judge Mlambo replied that it was correct that based on the current provisions in the Act, the legal profession must be specifically represented on the Board. He explained the historical reasons for this provision. Two out of the four attorneys on the Board were to be appointed by the Law Society of South Africa (LSSA), the third was appointed by LSSA but must be from Black Lawyers Association (BLA) and the fourth attorney would be from the National Association of Democratic Lawyers (NADEL). The challenge however arose when a new advocate was appointed into the Board and for the first year, the advocate would believe that he was appointed to the Board to advance stakeholder interest. It would take a year for him to realise that he was on the Board for board business and not for stakeholder interest. He proposed that the Committee should move away from the stakeholder concept completely because it always generated problems. He assured the Committee that there would always be an advocate on the board but it should not be via the stakeholder’s gate-keeping mechanism.

The Chairperson indicated that if citizen stakeholders were placed on the board, they would not represent their own interest but the interests of the community who were consumers of the legal services but the lawyers placed on the Board were business people who may want to advance their own interests. What was Judge Mlambo’s view? Why would the lawyers who were business minded and who might want to advance their own interests be preferred to stakeholders who were recipients of the legal services. These recipients may have issues with the way they were treated, the extent to which they were taken seriously, and the quality of services received.

Judge Mlambo responded that the Board had always been conscious of the need to have a member on the Board who had the knowledge of public interest law. The Board had always ensured that there was a board member that would add that perspective to the Board. It would be very irresponsible of the board to ignore those dynamics and come with a completely business-minded approach.

Ms Pilane-Majake hinted that it was always best for the Bill to cover every gap that may arise as a result of assumptions. It was good that there would be a person on the Board that would add the perspective of public interest law and cover the interest of the stakeholders. Her concern however was the lack of uniformity that had been observed in the classification of lawyers in South Africa. What could be done about this? In her opinion, some kind of provision should be made for this in the legislation.

Ms Vidhu Vedalankar, Chief Executive Officer: Legal Aid SA, commented that it was really important that people who had the knowledge of matters relating to poverty, sociology and community were brought onto the Board. It was also crucial that provisions be made on the Board for experienced practicing advocates and attorneys and not only experts with academic knowledge. She said emphatically that it was imperative for the Committee to bear in mind that since there was an opportunity for drafting new legislation in a period where boards were core to good governance, it was important that the Committee do not revert back to the time of stakeholder boards which was when people with different “hats” who represented their personal interests sat on the board. This should not be the case. Board members should be there with just one “hat” which is the sole aim of representing the interest of the organization in which they were serving as a member of the Board. Every board member should therefore see best how to fulfill the mandate of the organization in terms of the Constitution and the Act.

The Chairperson said that he was comfortable with the stance of the Legal Aid Board having heard the good case presented by them, of why stakeholders should not be included on its board, but would ensure that those with the relevant legal expertise were appointed. It was essential that lawyers appointed would not represent one group or another, such as a BLA slot or NADEL slot, so as not to create issues in the legal profession. He agreed that board members should not have several “hats” and be representatives of interest groups. He asked if any member disagreed with this approach.

Mr Swart commenting said that he was more than persuaded by the compelling argument put forward by Judge Mlambo. He supported the decision of stakeholder exclusion from the Board especially when Clause (6)(4) is considered. This stated that “in the case of directors referred to in subsection (1)(b), the Board must, whenever necessary, invite nominations for the appointment of persons as directors in the manner determined by the Minister in consultation with the Board”. This clause introduced the discretionary aspect which was necessarily not bad.

Adv Bassett said that in terms of (6)(1), “the Board consists of the following 14 voting members, appointed by the Minster in Writing:”, the LSSA suggested that the Bill should provide for 2 LSSA officers and 3 employees of Legal Aid SA to be appointed as voting members. It had been suggested that this provision was in conflict with good governance. However, the Department indicated that the proposition did not in any way conflict with good governance as set out in the King III report.

Ms Vedalankar confirmed that King III did not raise any objections to executives being on the Board. For companies who were driven by corporate governance, they always had executives on their Board who have full voting rights. However those board members who were also executives obviously would not be part of deliberations concerning themselves or issues relating to their own remuneration.

The Chairperson asked the Committee whether they were comfortable with the position taken on the issue. The Committee indicated agreement.

Clause 7
Adv Bassett said that the Clause dealt with the qualifications for membership of the Board. He explained the suggested inclusions. They were: (c) “as a whole”, (d) “as a whole”, “experience in, or knowledge of, any one or more o the following fields”, (d)(iii) “including experience as a practising attorney and advocate”, (d)(vii) “knowledge in public interest law”. The suggested deletions were: (c) “collectively”, (d) “collectively”, “skills”, “which include”, (d)(v) “skills”. For section (e) of the clause, the Committee enquired why the wording of the Constitution was not followed. Three alternative options were proposed for the Committee’s consideration. The first option was based on the wording of section 47 of the Constitution, the second option used the wording as in the Legal Practice Bill, while the third option used the provisions of section 69 of the Companies Act, dealing with the eligibility and disqualification of persons to be directors of companies as suggested by Legal Aid SA.

Another proposed amendment in Clause 7 was the inclusion of: (7)(1) “subject to subsection (2)”, (b) “and” and the whole of Clause (7)(2). The deletions proposed were: (7)(c), (7)(d)(i), (ii), (iii), (iv), (v), (vi). He agreed that too many options had been put forward for the Committees’ consideration, however, the Department thought it wise that recently passed legislation should be considered.

The Chairperson asked Adv Bassett which of the options would be preferable.

Adv Bassett replied that the last option was preferable because the word ‘practicable’ was included and would give the constituting of the Board the flexibility that it needed, would deal with preferential representation and any other criteria relevant to the constitution of the Board.

The Chairperson asked the Judge what his preference was.

Judge Mlambo agreed that the last option seemed to be the most preferable.

The Chairperson asked the Portfolio Committee members what their preferences were.

Ms M Mathapo was in agreement with Judge Mlambo and Adv Bassett. However, she wanted clarification on Clause (7)(2)(vii) – “legal education and training”.

Ms Pilane-Majake voiced her concern on how the factors to be considered when constituting a Board would be prioritised.

Adv Bassett replied that “legal education and training” was categorized under the objects of the Bill. One of the objects of the Board which was an important one was to provide education and information concerning legal rights and obligations. Prioritisation might be difficult and that was why the word “practicable” was included.

Judge Mlambo commented that, based on his experience as the Board Chairperson, there would be individuals who have a number of those attributes listed, and these attributes would be recognised in the board committees. The Board has the powers to co-opt specialists onto these committees. The board committees do a lot of work and most of the successes recorded by Legal Aid SA could be attributed to the board committees.

Adv Bassett reminded them that they were yet to agree on one of the three options for Clause (7)(e).

Ms Pilane-Majake on behalf of the Committee opted for the second option which was based on the wording in the Legal Practice Bill. All members indicated their approval of the second option.

Clause 8
Adv Bassett remarked that at the previous meeting, the Committee did not give a final instruction on whether the Minister should appoint the Deputy Chairperson of the Board. He said that when the clause was compared with other legislation, it was established that the Minster appointed the Deputy Chairperson in most cases.

The Committee agreed to leave the appointment of the Deputy Chairperson as is – “.....the Minister in writing must designate one of the directors referred to in section 6(1)(b) as Deputy Chairperson of the Board....”

Clause 9
Adv Bassett said the term of appointment allowed only four members to be appointed for one additional term. The clause meant that no member could serve on the Board for more than 10 years. The decision to make was should the term be left open-ended or should a restriction be placed on the term.
 
The Chairperson pointed out that it was only one member that proposed that the restriction be removed. The rest of the Committee agreed that a ten-year restriction must be put in place. He asked members what their take was on the issue.

Ms Pilane-Majake assured the Chairperson that the position of the Committee was still the same.

The Chairperson agreed that the limitation should be left to two terms which would give room for new blood on the Board. This was agreed on by the members.

Clause 10
On the termination of board membership, Adv Bassett said the Committee had already accepted a change in section (d) “his or her term of office as director expires”. The other insertion was 10(3) where it was proposed that a process for the removal of a director by the Minister be inserted. Research showed that in other Acts, reference was only made to “due process” or “the right to be heard”. A full procedure was not prescribed. The Department therefore suggested this insertion in 10(3): “before removing a person from office in terms of subsection (2), the Minister must afford the person an opportunity to be heard”. This wording was in line with other legislation.

The Chairperson said the proposal was in line with natural justice. The Committee agreed to the inclusion.

Clause 13
Adv Bassett noted that the Commission on Gender Equality had stressed that when board committees are constituted, representation needed to be taken into account. With that in mind, 13(3) was inserted to read: “when constituting a Committee, the following factors must, as far as is practicable, be taken into account: (a) the racial and gender composition of South Africa, (b) the objects of the Committee in question and (c) representation of persons with disabilities.”

The Committee approved.

Clause 14 Designation Of Powers And Assignment Of Duties Or Functions of the Board
Adv Bassett said it was suggested in the previous meeting that the Board should only delegate to the CEO to avoid tensions and possible confusion. However, in numerous other similar Acts, delegations were to two other persons other than the CEO. He put this forward for the Committee to consider.

The Chairperson reiterated the Judge’s comment that lots of work went on in board committees. Why then should delegation be to an individual who then delegates further to another person. Was delegation by the collective not better than delegation by an individual?

The Committee members agreed with the present position of the Bill.

Adv Bassett handed over to Ms Louw to take the Committee through the rest of the clauses.

Clause 15  Appointment of Chief Executive Officer
Ms Louw referred to the previous meeting where it was proposed that Clause 15 and Clause 16 (Functions of Chief Executive Officer) should be swapped around.

Adv Bassett suggested that it remain unchanged and this was and this was agreed to.

Ms Louw said that section (2)(i) stated that “the Chief Executive Officer holds office for an agreed term not exceeding five years, which may be renewed”. The statement did not stipulate the number of times the renewal could be made. In many of the some Acts, the CEO is supported for a specific term for re-election but in other Acts, it was left open. It was not limited in most Acts.

Adv Bassett said that the stance of the Department was that it should remain as it was with no limitation especially with the apparent shortage of skills.

The Committee agreed with the position.

Clause 17
Mrs Louw remarked that the insertions were: (17)(1) “subsection (3)34 and”, (17)(1)(c) “designate certain officials as agents in conjunction with the Department of Justice and Constitutional Development”, (17)(3) “when appointing employees and designating agents as contemplated in subsection (1), the following factors must, as far as is practicable, be taken into account: (a) the racial and gender composition of South Africa,( b) the objects of Legal Aid South Africa and the Board: and (c) representation of person with disabilities”.

The changes were unanimously agreed to by the Committee.

Clause 22
Ms Louw said a technical amendment was proposed in 22(1)(b) to replace “that” with “whether”.

The Chairperson suggested the replacement should be “whether or not”. This inclusion was agreed to by all.

Clause 23
Ms Louw noted a technical amendment due to swapping around Clauses 23 and 24. In the new Clause 23(2), there was an insertion “before publication thereof in the Gazette”, “for approval”. In the previous meeting, it was indicated that the regulations should be approved by Parliament, bearing in mind that the regulations would determine broadly which matters do or do not qualify for legal aid.

Adv Bassett commented that as important as it was for parliamentary approval to determine what would or would not qualify for legal aid, one needed to consider the creation of delays if regulations were subject to parliamentary approval.

The Chairperson wanted to know whether the approval was subject to ratification. In his opinion, there should not be a problem if the regulations were not subject to parliamentary approval.

Ms Vedalankar commented that because of budgetary constraints, Legal Aid SA had not been able to provide legal aid on all matters and as a result excluded specific matters especially on certain kinds of civil matters. However as the budgetary allocation increased, the previously excluded matters could be included. Therefore provisions should be made such that whilst awaiting parliamentary approval, implementation of the regulations could still be ongoing.

The Chairperson asked what the current practice was for other regulations. Were other regulations always subject to parliamentary approval?

Adv Bassett responded that there was no particular trend, as some regulations were approved and some were not. However in his experience in this Committee, approvals were subject to the importance of the issue at hand.

Mr Bongo said that since regulations had the same standing as legislation, the Portfolio Committee as an oversight body must ensure the regulations get the approval of the Committee before they were implemented.

Judge Mlambo responded that it was a welcomed development if the regulations were approved before implementation.

It was agreed that the regulations would be subject to parliamentary approval.

Ms Louw stated that it had been proposed that 23(4) be included. However since the Committee now agreed that the regulations were subject to the Committee’s approval, then 23(4) was no longer relevant. Subclause (4) was an alternative if the regulations were not subject to Committee’s approval.
 
Responding, Adv Bassett said that all the recommendations of the Committee had been noted and would be effected by the Department and an A version of the Bill would be produced.

The Chairperson asked whether the final version of the Bill would be available the next day, to which there was an answer in the affirmative.

Ms Pilane-Majake wanted to know the kind of cases that were handled by Legal Aid SA.

Ms Vedalankar responded that Legal Aid SA handled all matters except those that were specifically excluded in the Legal Aid Guide. Family matters which included divorce and assistance in other related issues, housing matters, matters relating to labour in the labour courts and other general matters were handled by Legal Aid SA. An example of matters Legal Aid SA specifically excluded were those involving claiming money on a contingency fee basis. This exclusion allowed for private practitioners to deal with such matters in terms of the regulations.

The Chairperson asked how the exclusions made by Legal Aid SA could be addressed as the exclusions may negatively impact some people in the community.

Ms Vedalankar replied that the Legal Aid Guide covered inclusions and exclusions. The Guide though not approved by Parliament was ratified by Parliament but it is approved by the Minister. The Legal Aid Guide is meant to be revised and reviewed annually.

The Chairperson appreciated everyone’s attendance especially Judge Mlambo who brought his practical experience on board to assist the Committee.

The meeting was adjourned.

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