The Department of Justice and Correctional Services ran through the Portfolio Committee proposed amendments to the Legal Aid Bill, as reflected in the B version of the Bill. During the meeting further amendments were made by the Committee. These included removal of the reference to “vulnerable persons” throughout the Bill and substituting "in conjunction with" for "in cooperation" with in clause 17.
The provisions leading to the most discussion were clauses 17 and 22, dealing with the designation of agents and the power of the court to order the provision of legal aid.
Presentation of proposed amendments
Adv Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice and Correctional Services, proceeded to go through the Bill clause by clause detailing the drafting of the amendments proposed by the Committee for their approval. Relevant clauses include the following:
Clause 1: Definitions
The definition of “agent” substituted "designated" for "appointed" to clarify that these people are employees of the Department of Justice and Correctional Services. A definition for “candidate attorney” was inserted to cater for the power given to the board of Legal Aid South Africa (LASA) to hire candidate attorneys as proposed in clause 4(f).
Clause 3: Objects of Legal Aid South Africa
Clause 3 was entirely deleted and replaced with a new clause outlining the objects of LASA in three sub-clauses. Adv Bassett, subsequent to the previous day’s discussion, suggested removing the reference to “vulnerable groups” in the working draft of the Bill and “other law” be replaced by “existing law”. A further change was the introduction of the phrase: “as envisaged in the Constitution, this Act and any other law” at the end of the clause, leading to the constitutional grounding carrying throughout the clause.
The Chairperson inquired if the Members and LASA agreed with the suggestions.
Judge Dunstan Mlambo, Legal Aid SA Board Chairperson, indicated his agreement.
Ms Pilane-Majake (ANC) said she felt it was a good way of dealing with the clause.
Clause 4: Powers, functions and duties of Board
Here the main change was to 4(f) where the Department proposed the inclusion of “and render or make legal aid and advice available” and removal of removal of “vulnerable persons”. This would lead to LASA having the power to provide more than only legal representation. It also allowed it to focus on situations where substantial injustice would otherwise occur, rather than purely the indigence of the applicant.
Clause 6: Composition and appointment of Board
Here the proposed amendment required the Deputy Chairperson to be appointed after consultation with the board.
Clause 7: Qualification for membership of Board
Adv Bassett said the new clause had been drafted based on the Committee discussion. Clause 7(1) was a merger of provisions from the Companies Act, the Legal Aid Act and the Legal Practice Bill. Examples include not having been prohibited from being a director of a company and not have been removed from an office of trust, on the grounds of misconduct involving dishonesty; both from the Companies Act. Clause 7(2) prescribed in more detail the factors which should as far as practicably possible be considered in appointing the board, including the racial and gender composition of South Africa, provincial representation and the objects of LASA and the board. A list of areas of expertise which the board should have, including the provision of legal services, including experience in practice; community-based knowledge relevant to legal aid; and knowledge in public interest law.
Mr L Mpumlwana (ANC) asked for clarity on the nature of the bar to office for conviction. For example, if a person had been convicted 20 years before and incarcerated for more than the maximum period prescribed, would this still constitute a bar to office?
Adv Bassett replied that the crimes for which sentences of more than a year are imposed are of a serious nature and as such they do not qualify for expungement in terms of the Criminal Procedure Act. The person would be barred, unless they received a presidential pardon.
Clause 10: Termination of membership of Board
Adv Bassett said most of the amendments were technical, grammatical changes. The more substantive amendments were the insertion of a new paragraph in 10(1) to provide for the automatic termination of membership upon the expiry of a member’s term of office. Secondly, there was the insertion of 10(3), providing for the minister to give the member an opportunity to be heard before being removed.
Clause 13: Committees of Board
A new sub-clause listed the factors to be as far as practicably possible observed in constituting a committee, including the racial and gender composition of South Africa and the objects of the committee.
Clause 17: Employees and agents of Legal Aid South Africa
Adv Bassett said many of these amendments here were technical. Reference to appointing agents was deleted from 17(1)(b) and a new paragraph inserted which provided for the designation of certain officials as agents in conjunction with the Department of Justice and Correctional Services. Further, a new sub-clause encouraged the consideration of disability representation and the objects of LASA in appointing employees and designating agents.
Mr S Swart (ACDP) asked if the use of the term “in conjunction” was part of legislation drafting convention and how does this differ from requiring consultation.
The Chairperson said that he had been thinking the same thing and what he had thought was that mere consultation would not be sufficient where the employees of the Department were in question.
Adv Bassett replied that “in conjunction” was not a term often found in legislation and “perhaps in consultation” or “in cooperation with" could also work.
Mr Mpumlwana asked what effect “as far as practically possible” has and perhaps it should be left out.
The Chairperson responded that it requires the board to have exhausted all reasonable steps, but no liability for non-compliance post those efforts.
Mr Mpumlwana said that he was not convinced of its utility.
The Chairperson said it is better that the law says something, rather than remain silent on the point in the eventuality that the situation comes about.
Mr Mpumlwana said that because it is a clause dealing with transformation then the law must be peremptory, otherwise transformation is being left up to what the institution views as practicably possible.
The Chairperson said South Africa has challenges with skills shortages and there may be sectors of society from which one cannot draw a suitable person. He asked for it to be accepted as safety measure and for the people on board to be trusted to do their utmost best;
Mr W Horn (DA) asked whether the Committee had decided on a position on whether to make use “in conjunction” in clause 17(1)(c).
The Chairperson replied that “in cooperation” would be preferred.
Clause 22: Provision of legal aid by direction of courts in criminal matters
The phrase “whether or not” replaced “that” in 22(3)(b), leading to it reading: “…and Legal Aid South Africa has made a recommendation whether or not the person qualifies for legal representation”. The reference to clauses 23 and 24 were also amended.
The Chairperson asked if the court’s authority to direct LASA to provide legal aid to an individual was based on a statute or precedent.
Adv Bassett replied that in terms of the Criminal Procedure Act, courts have the right to conduct a fair trial in criminal matters. Further, the courts inherent jurisdiction would provide the ground for courts to direct LASA in civil matters. The clause was worded so as to curb the discretion which the courts have, but still leave it intact. Review proceedings are envisaged where people are unhappy with the refusal of legal aid.
The Chairperson clarified his question saying that he was under the impression that the clause dealt with the situation where legal aid has been refused and now the courts are ordering its provision.
Ms Vidhu Vedalankar, Chief Executive Officer: Legal Aid SA, replied that she agreed and that the clause as she read it intended to afford LASA the opportunity to express its views on the matter before the court makes its order. In the past there have been instances where courts have not corresponded with Legal Aid SA or received its report on a particular applicant and directed the provision of legal aid nonetheless. This impacts on the affordability of the service and this provision will help by putting a legislative process in place which courts will have to follow.
The Chairperson asked if LASA was satisfied that the provision will achieve what is intended.
Ms Vedalankar replied that as the discretion cannot be removed completely, structuring the process is the optimal solution.
Judge Mlambo replied that the formulation presented was because LASA had identified a trend of courts disrespecting its internal processes for deciding to provide legal aid or not. He reminded the committee of the Porritt and Bennett matter, where a clearly undeserving person almost received legal aid under direction of the court and this led to LASA’s efforts to amend this provision.
Mr Horn said that for consistency an “or not” should be inserted after the “whether” in 22(2)(c)(iii).
The Chairperson asked for Members to indicate their agreement, which they did.
Clause 23 Regulations and Clause 24 Legal Aid Manual
Adv Bassett said that the clauses had been swopped around so clause 23 now dealt with Regulations. A second amendment to clause 23 provided for the tabling of the regulations in Parliament by the Minister, for approval.
Mr Swart asked if the repetition of review in clause 24(1) was necessary, particularly the first use of the word.
Adv Bassett replied that removal seemed appropriate.
Mr Swart clarified that the second time 'review' was used would entitle the board to review the Legal Aid Manual whenever it felt it necessary, but at least every two years.
Adv Bassett said that although the long title appears at the beginning of the Bill, it is legislative convention to deal with it at the end of the proposed amendments. Here “and render or make legal aid and advice available” was to be inserted after “Constitution”. He noted that the reference to vulnerable persons would be removed, consequent to the morning’s discussion. A further amendment was to insert “the designation of certain officials as” after the line dealing with the appointment of employees.
Adv Bassett then listed the changes made in this meeting: the Approved Amendments will see the removal of "vulnerable persons" and "existing law" throughout. Also, the Committee approved the amendment of clause 3. "In conjunction" would have to be replaced with "in cooperation" in clause 7 and the first instance of review must be deleted from clause 24. The Memorandum on the Objects of the Bill would have to be altered in line with the amendments to the Approved Amendments.
The Chairperson said it would be helpful if the Department and LASA could remain in close contact through the good relationship between Adv Bassett and Judge Mlambo. He said he enjoyed the proceedings, these being the first he presided over as Chairperson. The contribution and consensus reached through the process will lead to the adoption of the Bill being a mere formality. The Chairperson thanked Ms Vedalankar for her ‘fighting spirit’ throughout the process, saying that it was useful.
Adoption of Committee Minutes
The Committee adopted the minutes of 1, 2, 3, 4, 8, 10 and 11 July 2014.
The Chairperson declared the meeting adjourned.
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