Legal Aid South Africa Bill: input from Department of Justice and Correctional Services, Law Society of South Africa & Legal Aid south Africa

Meeting report

Legal Aid South Africa Bill: Law Society South Africa submission
Mr Busani Mabunda, Representative of Law Society South Africa, made a submission on behalf of the Law Society of South Africa (LSSA) on the Legal Aid South Africa Bill (the Bill).

He noted that the legislation was quite clear in relation to who made appointments, and the LSSA questioned why the Minister, in addition to appointing members to the Legal Aid Board, should also be required to appoint the Chairperson.

The LSSA also wanted to raise a concern also in relation to corporate governance, asking for consideration into the membership on the board. The work that Legal Aid South Africa did ultimately affected the legal profession, and the question must be asked whether those serving on the board were in fact serving the interests of the board, or their own personal interest. It was of course expected that legal professionals, who were used to representing others, must not be swayed by personal interests, and it was particularly important that the board should not be populated by those who had no comprehension of legal practice. The Legal Practice Act recognised that the Council of that body should be populated with legal practitioners and those trained in law. LSSA therefore questioned why the same should not apply also to the Legal Aid South Africa board. There was consensus that a member representing legal aid should serve on the board of the new regulatory body to be set up under the Legal Practice Act, in recognition of the role that Legal Aid South Africa played for the people of South Africa and this raised the question why the Legal Aid South Africa board was excluding representation from the regulatory body. It was suggested that Legal Aid South Africa and the LSSA could work together in the hope that they would set their personal interests aside and work to the good of the organisation.

LSSA commented on clause 22(2). which stipulated that a court may only refer a matter, in terms of subsection (1)(b), if the person concerned had applied to Legal Aid South Africa for legal representation at state expense. Mr Mabunda made the point that administrative nightmares could occur when good intentions had unforeseen consequences. An entitlement to legal aid was one measure that reduced the possibility of an injustice and enhanced the right to a fair trial.

Discussion
Mr M Mohapi (ANC, Free State) asked if the Department of Justice and Constitutional Development (DOJ&CD or the Department) could make its presentation,suggesting that issues raised by that Department might confirm, reject or put a new light on the points raised by the LSSA.

Ms G Manopole (ANC, Northern Cape) agreed with this suggestion.

The Chairperson asked for comment from the Department at this point.

Department of Justice and Constitutional Development submission
Mr Lawrence Bassett, Deputy Chief State Law Adviser, DOJ&CD, said that the comments he would make now were also raised to the Portfolio Committee, in answer to submissions that had been made around the composition of the Board and its membership.

The Department noted that the comment it had made at that time were that the King III report on corporate governance had reiterated that directors had a fiduciary responsibility towards the organisation they served, and were obliged to show the utmost good faith towards that organisation. Therefore, the composition of the Board was an important point, and the board in this case would have diverse membership, which was deemed very important.

The current (and long-standing) Chairperson of the Legal Aid South Africa board, Judge-President Dunstan Mlambo, had also responded in the Portfolio Committee meetings to the board's concerns. Mr Bassett read out from the Parliamentary Monitoring Group (PMG) report on the meeting, which stated: "The Legal Aid South Africa Board Chairperson responded to concerns about board composition, saying the current provision in the Act had the legal profession specifically represented on the board. He explained the historical reasons for this provision, and added that two out of the four attorney board members were to be appointed by the Law Society of South Africa, the third one  was to be appointed by Black Lawyers Association (BLA) and the fourth by 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 be always an "etiquette" on the board, but it should not be via a stakeholder gate-keeping mechanism. The board had always been conscious of the need to have a  member in the board who had knowledge of public interest law. It would be very irresponsible for the board to ignore such dynamics, and come up with a completely business minded approach.”

The Legal Aid South Africa's Chief Executive Officer also commented that it was imperative for the Committee to bear in mind  that this opportunity of drafting new legislation came in the period where boards were called upon to see to good governance. It was important that the Committee should not revert to what had happened in a previous era - where specific stakeholders were represented, and she had pointed out that people "wearing different hats", who represented their  personal interests, sat on the board. Board membership should be under one sole aim; the mission to serve the interests of the  organisation. There was unanimous consensus about the exclusion of the stakeholder-based representation from the board, based on compelling arguments put forward by Legal Aid South Africa, its Chairperson Judge-President Mlambo, and the Chief Executive Officer.

Mr Bassett noted that the question went further - if one specific stakeholder had a guaranteed membership, then what would happen to others who were also interested in serving on the board, and where would the line be drawn? The Bill as introduced referred to seven sets of experience  in legal service. The Portfolio Committee had suggested that the words "a practising advocate or attorney" must be inserted, and this would accommodate the experience required.

Legal Aid South Africa Briefing
Mr Patrick Hundermark, Chief Legal Executive, Legal Aid South Africa, reiterated the point that if one specific stakeholder was permitted to have permanent representation on the board, there was then no sound basis to exclude others, and this would be problematic, given that community-based organisations and civil society were also interested in being part of the board. The King III report spoke to stakeholders' interaction, but said that there should be a structured manner in which to engage with stakeholders. The Legal Aid South Africa had started with the strategic plan and had given a platform for all stakeholders to inform and feed in to the strategic plan. The stakeholders' concerns were also taken into account, although some may not be fully addressed due to limited resources. Clause 22(3)(c) read that “A court may only refer a matter in terms of subsection (10 (b) if the person has been refused legal representation at state expense by Legal Aid South Africa  and the court is of the opinion that there are particular circumstances that need to be brought to the attention of the Legal Aid South Africa by the court referred to subsection (1)(a) (ii)".This indicated that internal remedies were available, and if there was an unreasonable delay that seemed to affect justice, then the Court had discretion to call the Legal Aid South Africa to explain  the delay.

Discussion
Ms Manopole noted that the LSSA was a regulator and it was a key stakeholder in relation to the implementation of legal aid. She raised a concern on the impartiality of the Law Society, and why it was seeking a specific place on the board, saying that this seemed to imply that the LSSA would be both a referee and player at the same time. She pointed out that the LSSA aims and objectives included that it must “safeguard and maintain the independence  of activity and integrity of the profession’ She asked if being part of the Legal Aid South Africa board could not be compromising the objectives.
 
Mr Mohapi asked what was considered so negative about the Minister appointing the board chairperson, given he had appointed other members of the board. He asked what had prompted the Law Society to express a wish to actually be part of the board, rather than developing a working relationship  as a stakeholder with the board.

Mr Mabunda replied that it was a fact that the LSSA, as the regulator, was a key stakeholder. It was, however, important to put the matter in context. The Law Society played a role in advertising the board membership and boosting knowledge on the expertise required, upon which its members who wanted to be part of the Legal Aid South Africa were taken through the process of application. LSSA was not suggesting that it should move away from this role. It was also not suggesting that the LSSA council members be part of the Legal Aid board, since in fact if they were to be appointed to the board, they would have to resign from the LSSA Council.  This comment addressed the issue of impartiality. What was essential was the board members' awareness that they carried a responsibility around corporate governance. As an example, tertiary institution had stakeholders in their council, but they were trained to  exercise and act with impartiality. Lawyers similarly had the training and ability to be impartial, due to the nature of their work. However, what the LSSA was trying to stress was that it would not be considered proper if Legal Aid South Africa wanted to go to the public at large, and choose representatives from there, without consulting with the regulators or taking them into account.  In relation to appointments, Mr Mabunda said that he believed that there was too much emphasis placed on trying to follow exactly what the King III report said, to the letter. He suggested that the context and circumstances must be taken into account, rather than regarding King III as the completely definitive approach on corporate governance.

He proposed that, instead of the Minister appointing the Chairperson, the members of the board should themselves appoint  their chairperson at the beginning of the term.

Mr Mabunda went on to state that stakeholders were key to the process, and that must be recognised, whatever language was used to describe the situation, and this was why the LSSA expressed its concerns to this Committee. He pleaded that the excuse of stakeholder interaction in other forums should not be used as a way to remove certain stakeholders from membership of the board. It was imperative for Legal Aid South Africa to interact with stakeholders, and it should surely seek to do "the noble thing" and trying to give audience to as broad a range as possible.

Ms T Wana (ANC) asked how many stakeholders were sitting, because the Department had made mention of "all the stakeholders". She asked whether other fraternities were being monitored.

Mr Mohapi noted that when Members put questions to the Committee, these were intended to seek clarity. He made the point that boards differed from one institution to the other. He asked the Department of Justice and Constitutional Development what had prompted the reviewing of the board composition.

Mr Bassett replied that the board had experienced  challenges over the years and had tried to address this by changing legislation. The Department did quite some research to see whether what the Legal Aid wanted was competent in law.

Mr Hundermark spoke to the issue of composition of the Board, saying that at the moment there was representation from the General Council of the Bar, and there were four attorneys and other members appointed by the ministers.  There were five specific Ministerial appointments.

Mr Mohapi asked if those historically disadvantaged were still to be specifically included in the new board

Ms Wana sought clarity from LASA and the Department about the previous arrangements.

Mr Bassett replied that the appointments would come from the relevant Law Society .and one nomination was from the Ministry of Justice.

Mr Mabunda noted that a trend had been seen, with members who practised, both as regular or as ad hoc appointments, that when a member practitioner was a regulator and  board member, the person would resign from the other posts. He noted that the historical background was important, and this statement had been made for genuine and good reasons. He said that there was a risk of some sensitivity in the negotiations with the legal profession when dealing with the Legal Practice Act, which had the potential to shape the direction of the legal profession. The National Forum, with the inclusion of Black Lawyers Association and NADEL, was to discuss the composition of the Legal Practice Council board.

Mr Mohapi asked if the Law Society had made submissions to the National Assembly when it was considering the Bill.

Mr Mabunda replied that there were submissions made in behalf of the Law Society of South Africa to the National Assembly, hence some of the submissions made here were not new. However the Law Society still held a certain view on some clauses.

Mr Bassett noted that the proposal was that there would be nominations of admitted attorneys, and from these the Minister would choose board members. This route was to be followed because the Legal Aid South Africa board had limited in -house capacity from which to choose the necessary skills for smooth running of the operation.

The Chairperson thanked Mr Mabunda for the submissions, and the Law Society members were permitted to leave the venue.

The Committee Members deliberated on the submission. Some believed that the Department of Justice and Constitutional Development would need to give more input. However, other Members pointed out that it had already given feedback, as was the mandate.

Members agreed that there was no need to make amendments to the Bill but did have some suggestions to make in regard to the legislative policy.

The Committee agreed to note the input from the LASA, but did not agree that its submission warranted an amendment to the Bill before the Committee. Members were in support of the Bill.

Adoption of Committee minutes
Members of the Committee adopted the Minutes of 29 October 2014, with amendments to indicate the time that the meeting closed, and a grammatical correction to the last page of the minutes.

Draft First Term Programme
Members considered the draft programme. Some expressed concern on the oversight tour, in respect of the destinations to be visited. They also queried the processing of the reports relating to the oversight tour to Pietermaritzburg. They decided to revisit and discuss these topics in more detail in the following week.

The programme was adopted.

The meeting was adjourned.