Legal Aid SA was in the third year of implementation of its current Strategic Plan. It was contextualised to ensure that the service delivery footprint responded to population demographics, in-migration patterns and urban/rural divide, i.e. legal aid services should be accessible. The overall strategic shift to be achieved in the 2015-2020 period was increasing organisational maturity and sustainable high performance and excellence in all segments of the organisation over the next decade, positively touching the lives of many more South Africans and thus ensuring the outcome of quality justice for all.
National Treasury indicated reductions/cuts to the baseline allocation of R61.8 million in the 2015/16 and R92.7 million in the 2016/17 financial years. The new funding of R26 million in 2014/15 consisted of R5 million for increase in legal capacity and R21 million for the system development project. The new funding of R23 million in 2015/16 consisted of a R5 million increase for legal capacity and R18 million to increase legal practitioners for court expansion programme. The case backlog amount of R21.1million in 2015/16 and its carry through costs over the Medium Term Expenditure Framework (MTEF) period was the top-up funding for conversion of temporary posts to permanent posts. Salaries and related costs increased by 5% and other direct expenditure decreased by 12% due to rollover funding relating to impact litigation (mainly for the Marikana Commission) which was included in the 2014/2015 financial year. The reductions in budget allocations would be funded from Legal Aid SA's cash and cash equivalent. This means that service delivery would not be negatively impacted by these reductions. The expenditure focus over the five year period was on the delivery of legal services which was the core business of Legal Aid SA. More than 70% of Legal Aid SA's budget had been allocated to the Client and Community component of the balance scorecard which was directly linked to the delivery of legal services. This was the trend over the five year period ending 31 March 2020. The balance of the budget was allocated towards programmes that supported the delivery of legal services. Only 2% of the budget had been allocated to capital expenditure. This was not adequate to replace assets and the organisation had implemented measures to extend the lifespan of the assets taking into account the current budget constraints.
The current civil capacity was limited; such that it consisted of about 12% of total legal aid matters (criminal matters remain dominant). Civil demand exceeded the current capacity of a number of Justice Centres despite limiting civil legal services to priority cases. Civil supervisory capacity was critical to improve and maintain the quality of civil services at offices although currently 13 offices required such civil supervisory or additional supervisory capacity. This impacted negatively on clients who could not be assisted or whose cases were delayed due to the limited availability of civil legal aid practitioners. The proposal sought to increase civil legal aid practitioner capacity by 18 professional attorneys and 13 civil supervisory attorney positions. This would ensure the progressive increase in access to legal aid in civil matters and alleviate to a limited extent civil capacity constraints.
The Committee unanimously commended and congratulated Legal Aid SA for the organisation’s ranking as a top employer for young South Africans, the organisation’s unqualified audit opinion with no matters of emphasis for the thirteenth year in a row and for their ability to address and attend to issues the Committee highlighted in previous engagements. Members focused on the decrease in the organisation’s capital expenditure (70%), the lack of relief capacity in the regional court sector and the contributions Legal Aid made to the Provincial Efficiency Enhancement Committee (PEECs). These committees focused on remand detainees and identified the reasons why some cases took so long to be finalised. The Committee emphasised the importance of attending to remand detainees because this issue was central to access to justice.
Members expressed concern whether the budget cuts would impact service delivery and asked urged Legal Aid SA to establish forums to engage in the sharing of best practices with other organisation in the interest of transparency and accountability in the public sector.
[PMG missed the first 20 minutes of the meeting]
Legal Aid South Africa Strategic Plan 2015-2020, Annual Performance Plan 2015/16 and Budget 2015/16
Legal Aid SA was in the third year of implementation of its current Strategic Plan. It was contextualised to ensure that the service delivery footprint responded to population demographics, in-migration patterns and urban/rural divide, i.e. legal aid services should be accessible. It should respond to unemployment and poverty, the impact of recession on government revenue and expenditure and the National Development Plan (NDP). The overall strategic shift to be achieved in the 2015-2020 period was increasing organisational maturity and sustainable high performance and excellence in all segments of the organisation over the next decade, positively touching the lives of many more South Africans and thus ensuring the outcome of quality justice for all. The strategic outcomes were:
- Quality justice for all, focusing on the poor and vulnerable, thus contributing to building safer communities. The second strategic outcome; and a
-respected, accessible, high performing and sustainable public entity impacting positively on society, the economy and the environment
The Programmes of Legal Aid SA (listed below) were outlined with the alignment to the strategic outcomes and objectives of the organisation.
Programme 1: To deliver quality criminal legal aid services that were client focused
Programme 2: Deliver quality civil legal aid services that were client focused with a priority for constitutional rights
Programme 3: To deliver quality legal advice services that were client focused
Programme 4: To give content to the constitution through impact litigation, which would be able to address constitutional rights and socio-economic rights and develop juris prudence on social justice matters
Programme 5: To participate in, contribute to and influence structures aimed at improving the functioning of courts and justice system
Programme 6: To account and provide assurance to the Department of Justice and Correctional Services and Parliament on performance and governance
Programme 7: To improve financial planning (budgeting)
Programme 8: Ensure strong and best practice financial reporting to ensure unqualified audit and optimum financial maturity
Programme 9: To ensure best governance practices (PFMA compliance, King III guidelines and other relevant statutory requirements)
Programme 10: Independent monitoring and oversight unit providing combined assurance
Programme 11: An effective and strategic Board providing leadership and oversight of delivery on performance
Programme 12: Ensure the promulgation and implementation of the rewritten Legal Aid Act and the gazetting/implementation of the policy regulations and procedures handbook
Programme 13: To maintain a strong supply chain management framework and practices
Programme 14: Appropriately staff all service delivery points
Programme 15: To strengthen and improve organisational competences and expertise required for delivery of quality outcomes
Programme 16: Maintain a modern IT platform (including hardware, software, middleware and IT network infrastructure)
Ms Rebecca Hlabatau, CFO, Legal Aid SA, said National Treasury indicated reductions/cuts to the baseline allocation of R61.8 million in the 2015/16 and R92.7 million in the 2016/17 financial years. National Treasury guidelines required entities to reprioritise spending pressures within the budget allocation. Service delivery would not be negatively impacted by the budget reduction. The new funding of R26 million in 2014/15 consisted of R5 million for increase in legal capacity and R21 million for the system development project. The new funding of R23 million in 2015/16 consisted of a R5 million increase for legal capacity and R18 million to increase legal practitioners for court expansion programme. The case backlog amount of R21.1million in 2015/16 and its carry through costs over the Medium Term Expenditure Framework (MTEF) period was the top-up funding for conversion of temporary posts to permanent posts. Salaries and related costs increased by 5% and other direct expenditure decreased by 12% due to rollover funding relating to impact litigation (mainly for the Marikana Commission) which was included in the 2014/2015 financial year.
The reductions in budget allocations would be funded from Legal Aid SA's cash and cash equivalent. This means that service delivery would not be negatively impacted by these reductions. The expenditure focus over the five year period was on the delivery of legal services which was the core business of Legal Aid SA. More than 70% of Legal Aid SA's budget had been allocated to the Client and Community component of the balance scorecard which was directly linked to the delivery of legal services. This was the trend over the five year period ending 31 March 2020. The balance of the budget was allocated towards programmes that support the delivery of legal services. Only 2% of the budget had been allocated to capital expenditure. This was not adequate to replace assets and the organisation had implemented measures to extend the lifespan of the assets taking into account the current budget constraints.
Mr Patrick Hundermark, Chief Legal Executive, Legal Aid SA, said the current civil capacity was limited; such that it consisted of about 12% of total legal aid matters (criminal matters remain dominant). Civil demand exceeded the current capacity a number of Justice Centres despite limiting civil legal services to priority cases. Civil supervisory capacity was critical to improve and maintain the quality of civil services at offices although currently 13 offices required such civil supervisory or additional supervisory capacity. This impacted negatively on clients who cannot be assisted or whose cases were delayed due to the limited availability of civil legal aid practitioners. The proposal sought to increase civil legal aid practitioner capacity by 18 professional attorneys and 13 civil supervisory attorney positions. This would ensure the progressive increase in access to legal aid in civil matters and alleviate to a limited extent civil capacity constraints. Legal Aid SA was committed to building a sustainable organisation, with a capacity for continuance. The organisation had also developed a Sustainability Strategy which positioned it to ensure that sustainability was embedded into the business practice and to promote sustainable growth through economic, social and environmental value creation.
In conclusion, Judge Dunstan Mlambo, Chairperson, Legal Aid SA, said the organisation’s aim to contribute to an effective justice system resonated throughout the Strategic Plan and the Annual Performance Plan of the organisation. The biggest issue that gave the criminal justice system a bad name was slow movement of cases through the courts. As of end of April there were about 175 awaiting trial detainees who had been in custody for five years and longer. Legal Aid South Africa represented a number of these people and had been blamed for the delays in past. It was a proven myth and the organisation had been assisting committees that had been established to track and identify the reasons why these cases took so long to be processed and finalised. In each Provincial Efficiency Enhancement Committee (PEEC) in which Legal Aid SA participated, a report was created that listed the top 20 inmates who had been in custody the longest with the reasons for the delays. This had helped because the agencies that contributed to this problem had been exposed and corrective actions were being taken. The number was going down, because it had been over 200 detainees last year with the biggest numbers in Gauteng (76) and the Western Cape (51). Legal Aid SA provided the information that enabled committees to identify the problems and to ensure accountability and finalisation of cases.
The Chairperson congratulated Legal Aid SA for being rated among one of the best employers for the youth of SA. This was evident during a recent visit to a Legal Aid SA branch in Alexandra. The Chairperson also commended how Legal Aid SA addressed the Committee’s concerns on the importance of a balance between criminal and civil cases, as well as addressing issues concerning the poor and vulnerable and the establishment of advice centres to service the poor. There was limited time for responses to Members’ questions and he told the delegation outstanding responses should be forwarded to the Committee in writing.
Ms G Breytenbach (DA) expressed concern about the drop in regional court coverage. Regional court was a busy criminal arena and it was a concern that people would perhaps not be adequately represented. There was a growing tendency for the South African Police Services (SAPS) and the National Prosecuting Authority (NPA) to return to the specialised units that were disbanded some time ago and she asked if Legal Aid SA had addressed this issue and what the organisation’s plans were in allowing for specialisation in these particularly types of investigations, especially with the sexual offences court in mind. She asked if the delays and the committees used to address these delays could be elaborated on.
Judge Malambo replied that these committees were in a very good position to interrogate each role player in the justice sector that had an impact on the accumulation of remand detainees and the cases that took too long to be finalised. These committees were established by the Chief Justice and were the PEECs which were chaired by the Judge President of each region. The key deliverable in each of the PEECs was the tracking and reduction of remand detainee matters. Legal Aid SA provided these committees with the number of people whose trials had been ongoing and who had been in custody for long periods. The organisation also had to account to these committees in follow up meetings if the numbers had gone down and the reasons why the numbers were not decreasing. Legal Aid SA had done a survey on the biggest causes of roll collapses because it led to matters not continuing before courts. The results of the survey showed that Legal Aid SA ranked the lowest as the cause for roll collapses and judicial officer availability ranked highest. Other entities like the NPA, the Department and the Office of the Chief Justice that represented judicial officers should also come and account why cases took so long to be finalised. Legal Aid SA made sure that their lawyers involved in matters were not given new briefs until old work had been finalised. The efforts of Legal Aid SA would continue and the number of remand detainees would continue to decrease.
The Chairperson asked Legal Aid SA to provide a brief for the Committee on the issue of remand detainees, because this issue was central to access to justice.
Adv S Swart (ACDP) congratulated the organisation for being world class in its field and for the organisation’s unqualified audit opinions 13 years straight without any matters of emphasis. He asked if Legal Aid SA was having discussions with the Department on impact litigation because the Department also had a unit that dealt with litigation that impacted the Constitution and socio-economic rights. There was a drastic reduction in capital expenditure (75%) and he asked what impact it would have on service delivery. He cautioned against the use of the words “economic recession” because this was not a recession, but rather a budgetary constraints period. He asked what the impact on the criminal justice system was in terms of what Legal Aid SA termed “a lack of relief capacity”. From a civil perspective, he asked to what extent did the entity assist maintenance and domestic abuse matters or if such assistance would create a conflict of interest.
Mr Hundermark replied that there was no overlap in terms of impact litigation, because Legal Aid SA litigated for indigent persons and communities and the Department represented other departments that might be involved in constitutional type litigation. The organisation currently provided legal representation for maintenance and domestic abuse matters in limited circumstances. Such representation only took place once merit had been established, if the other party had legal representation or in circumstances where the system had failed the applicant where the applicant for more than 12 months had not been able to obtain or enforce a maintenance order. These cases made up about 3.2% of Legal Aid SA’s approximately 55 000 cases per annum. The question then became if the organisation was able to do more, but it would be a challenge, because if Legal Aid SA took just 10% of all new domestic abuse or maintenance cases, it would amount to almost 40 000 cases and would take up most of the organisation’s capacity. This was being reviewed to see how some of the challenges could be addressed incrementally in terms of vulnerable group representation.
Ms Hlabatau replied that the reduction in capital expenditure was unrelated to the budget cut, because the budget cut was funded through cash reserves already allocated to Legal Aid SA. The budget cut would not impact the organisation at all. The reduction in capital expenditure was due to the once off funding that was included in the 2014/15 budget for the system funding project, funding allocated to the acquisition of a building and leasehold improvements. All these were once off projects and would not recur in subsequent financial years.
Judge Mlambo replied that the lack of relief capacity could be perceived as contributing to roll collapses, because it was true that the organisation did not have as many “troupes” as the NPA. However, Legal Aid SA adopted a “practitioner per court” approach. If a judicial officer became available in a different court, the organisation tried by all means to ensure that matters drawn from other rolls went into other courts, because Legal Aid SA practitioners were given enough time to prepare for cases and such cases would not be adequately prepared for. With the funds allocated, the organisation tried to grow its legal representative capacity, especially in regional courts in particular. If more funds were available a lot more posts would be created similarly to the NPA who adopted a “practitioner per case” model.
Mr B Bongo (ANC) also congratulated Legal Aid SA on the good work being done and proposed the establishment of information forums with similar organisations for information sharing purposes. He referred to the new High Court that would be established in Polokwane and he asked Legal Aid SA to comment on the organisation’s preparedness for this new court and for the new court planned in Mpumalanga. He expressed his hope that the Judicare system would also help historically disadvantaged legal practitioners.
Mr Hundermark replied that in terms of information sharing, Legal Aid SA signed a memorandum of understanding with the South African National Aids Council (SANAC) would see the roll-out of a campaign where the call centre would be a contact point for persons facing discrimination to link them with advice and representation specifically to their needs. There had also been discussions with the South African Human Rights Commission (SAHRC) in terms of a call centre for the intake of complaints and issues and Legal Aid SA had taken them through itssystems and discussed how this technology could be shared. There was a system of BEE rankings in place for giving out Judicare instructions that made up about 5% of the workload which also equaled about R100 million annually. The BEE rankings were done especially for those firms that registered and were accredited to ensure that practitioners from disadvantaged backgrounds were able to benefit from these instructions.
Judge Mlambo replied that Legal Aid SA participated in all the structures that would see the establishment of the new High Court in Limpopo. He assured the Committee of the organisation’s preparedness and said work related to that High Court was already happening in Limpopo. The organisation was similarly ready for the new court that would start functioning in Mpumalanga next year. The organisation also shared knowledge by responding to invitations locally and speaking about experiences, but most of the international travels were through countries inviting Legal Aid SA to share best practices. The United Nations (UN) Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems was the brainchild of this country in a sense that it was led by South Africa internationally until its adoption by the UN. About six weeks ago the last intergovernmental expert group meeting on the revision of the standard rules for the treatment of prisoners, Legal Aid SA was requested to chair that meeting and it was the only expert group meeting that achieved consensus since 2011.
Ms M Mothapo (ANC) asked why Legal Aid SA used only five official languages and what the challenges were in terms of accessibility to rural areas and the plans in place to address those challenges. She asked on what matters legal advice were mostly given, what was being done to office accommodation shortages and what the organisation was planning to do about unfunded mandates such as the Marikana Commission.
Mr Hundermark replied that currently five official languages were used in the call centres and more languages were available depending on the call centre agents. Increasing the use of more official languages would be looked at, but most of the callers were being assisted. In the courts and in criminal matters, it was always a priority to provide assistance in the language of choice. There was a budget available to make use of the service of interpreters if assistance could not be provided by Legal Aid SA employees. Civil matters that could consist of contracts, deeds, consumer matters and evictions made up about 36% of advice and family issues made up about 15% and labour matters amounted to approximately 13%. More details would be given in the written response. In terms of the unfunded mandates, Legal Aid SA was being very careful and tracked legislation to make sure that where there was a responsibility for the organisation to understand the cost and resource implications and to not obtain an unfunded mandated. It made it very difficult for the organisation to operate sustainably and Legal Aid SA would engage with this Committee on the Child Justice Act and the Children’s Act to understand the implication and to cost such mandates quite carefully.
Mr W Horn (DA) said there had been previous plans to redevelop the IT platforms of the organisation and he asked if the budgetary provision was sufficient. If it was a phased project, he wanted to know over how many years the project was planned and whether the glitches in the current system would be sufficiently addressed. It was previously reported to the Committee that there was a pilot programme on the rights and needs of children with regard to estate services launched in Bloemfontein and he asked for feedback as to the success, further planning and any work the organisation was planning in terms of the Child Justice Act. In terms of the unfunded mandates, it was known that Legal Aid SA had decided to appeal the North Gauteng High Court ruling and the Supreme Court of Appeal (SCA) ruling and he asked what the current status of that appeal was.
Mr Hundermark replied that the estate services programme had been rolled out nationally and was in place at all the Masters’ offices. For the 2014/15 financial year, R45 million had been paid out by the Legal Aid SA trust account and about R43 million of that money related to estates for children. Legal Aid SA would be arguing the Marikana issue before the Constitutional Court on 15 May 2015. It should be reiterated that the organisation did not seek to recover monies already paid, it was a more principled issue on unfunded mandates and what courts could and could not authorise.
Ms C Pilane-Majake (ANC) she asked for clarification on the Employment Equity (EE) targets that talked to race, gender and vulnerable groups such as disabled people. In previous meeting the possibility of Legal Aid SA funding women fighting maintenance cases had been discussed, because it did not make sense that somebody would have money to pay a lawyer, but claimed an inability to pay maintenance. She asked how far the process was to assist these women and whether the organisation had been able to represent any such cases. She commended the attention given to remand detainees and she urged Legal Aid SA to do more in terms of community based client service centres, especially in rural areas. The Committee would be looking at the Traditional Courts Bill to transform systems in South Africa. She asked whether the reduction in capital expenditure was as a result of not having capital expenditure projects.
Mr Hundermark agreed that the money spent on lawyers was most probably more than the increase in maintenance in most of the cases before court and it should be investigated. Legal Aid SA had 128 contact points, 64 justice centres and 64 satellite offices. Each of the satellite offices had a paralegal and in addition, a programme was in place that allowed paralegals to go out to community offices, community contact points and courts.
Ms S Shope-Sithole (ANC) said Legal Aid SA was exemplary on what accountability on transparency should be. She agreed with Mr Bongo that the entity should create forums with other sectors to discuss the importance of accountability and transparency in the public sector.
The Chairperson said there was concern that there was no indication of when the Traditional Courts Bill would be re-introduced and the Chief Justice stated that the continued unregulated performance of these courts would tarnish the image of the judiciary. He agreed with Ms Pilane-Majake that Legal Aid SA should look into assisting in this regard. It was not necessarily within the competence of Legal Aid SA, but the land claims issues was a great threat to this country’s democracy, because land grabbing had even become part of some political parties’ policies. It could damage the reputation of the justice system and it could create racial conflict. If the opportunity presented itself, Legal Aid SA should raise this matter within its circles and also with the Ministry.
The Chairperson thanked Legal Aid SA and the meeting was adjourned.