Legal Aid South Africa on its Annual performance plan

Meeting report

Legal Aid SA Annual Performance Plan

Judge Dunstan Mlambo, Chairperson: Legal Aid SA, introduced the newly appointed board Deputy Chairperson, Judge Motsamai Makume, to the Committee, after which Ms Vidhu Vedalankar, the Chief Executive Officer (CEO), presented the entity’s annual performance plan (APP) for 2017-18. She said that the new theme for the financial year was around budget cuts.

Legal Aid SA would have a budget shortfall of R202 million in the Medium Term Expenditure Framework (MTEF) period, 2017-2020. The 2017/18 APP would be implemented amid financial challenges and a budget shortfall of R45 million. The budget shortfall would be managed by focusing on a cap on the compensation of employees and implementing cost-cutting efficiency measures, while no new and additional programs would be undertaken in the new financial year.

Mr Brian Nair, National Operations Executive: Legal Aid SA, highlighted the third quarter performance for 2016/17. He said that legal aid delivery was well within reaching its target, as 321 560 (87%) of cases had already been delivered against the annual target of 385 705. The national delivery footprint consisted of 64 justice centres, 64 satellite offices, 13 high court units and 13 civil units. 70% of the budget had been spent in the third quarter, and Legal Aid SA had been accredited as best employer for the eight consecutive year.

On strategies, programmes and targets, he said that due to limited civil capacity and practitioners exceeding new matter targets by 15%, Legal Aid had had to implement a waiting period for assistance in non-priority matters. The reduction in the salary budget might also impact on the number of clients given a waiting period.

Judge Mlambo said that critical to Legal Aid SA’s strategy was that it continued to balance its budget, despite significant pressures due to budget constraints. He noted the development of an electronic Legal Aid Administration (eLAA) system which had commenced during the 2016/17financial year, the project had been 50% complete as at January 2017.

Ms Rebecca Hlabatau, Chief Finance Officer, outlined the financial performance of Legal Aid SA. The budget increased steadily during the MTEF period, driven largely by employee compensation expenditure. Salaries and related costs increased by 6%, driven largely by the consumer price index (CPI). The recruitment level budget had been reviewed and would reduce from 96% to 95% to cater for the salary budget shortfall.

National Treasury had confirmed in the final allocation letter that Legal Aid SA would not have a cut in its baseline funding for the 2017/18 financial year. However there was a budget shortfall of R45 million arising from the difference between the macro increase and the higher cost of living increase, and the shortfall had been funded from the baseline allocation. Moving forward, cash flow would be managed effectively to ensure that service delivery was not impacted negatively due to budget constraints.

The overall operating budget had increased by only 1% due to budget constraints. Only operational expenditure line items with contractual obligations had been increased. Non-contractual operating expenditure was reduced by 11.7%, as compared to 2016/17. Overall capital expenditure also decreased by 62%. The decrease was due to once-off rollover funding relating to projects and procurement of capital assets, which included the electronic eLAA project and building procurement. These funds had been included in the 2016/17 budget, but not in the 2017/18 budget.

Other direct expenditures had decreased by 5.8% due to the reduction in the Judicare budget by 7%, to supplement the budget shortfall. There had also been no increase in the impact litigation budget. The Judicare budget would be increased during the year from savings raised within the budget.

Judge Mlambo emphasised that Legal Aid SA was not going to reduce service delivery owing to the budget constraints. It had come up with strategies to ensure that service delivery was not compromised. It would not be able to embark on new programmes, but would ensure that it maintained current levels of service delivery.

He remarked that there were cases of judicial officers striking matters off court rolls, and it was an issue of concern as it sent the wrong message to victims of crime. It was an irregularity he was tracking in the two provinces he headed. He suggested it may be prudent for the Committee to look into that, as the extent to which it was happening was alarming. Legal Aid SA did not support the unnecessary striking off of matters from the court roll. An example was Palm Ridge Magistrates Court, where prisoners awaiting trial were held in cells and not brought to court, and when their names were called in the court, they were considered absent. Judicial officers then struck those matters off the court roll, and court orderlies would release the accused persons because their matters had been struck of the court roll. He said this had been documented, and he had engaged the judicial officers at Palm Ridge. Such irregularities eroded public confidence in the judicial system.

Discussion

The Chairperson expressed shock, and commented that the Department of Justice was flooding the Committee with amendments to act on, but it had heard little about the efficiency of the administration of justice itself. He said the Committee had to ensure that these types of issues did not happen.

He said it was common knowledge that black people in South Africa had been dispossessed of 87% of arable land. The consequences were the triple challenge of unemployment, poverty and inequality, and the deepening moral crisis. It was indubitable that the situation was producing more criminals in the form of people claiming land dispossessed in the past. The State was not making resources available for the acquisition of land, which meant the root cause of crime was not being addressed. He remarked that there were going to be more people being arrested for land invasions, and Legal Aid would be required to provide a defence to those people and the National Prosecuting Authority (NPA) was going to need more money. Government and the legislature had to deal with the land question, as the country was heading into a crisis which would discredit the foundational ethos of the constitution. The ball was in the court of politicians, but Legal Aid SA would have to deal with a crisis not of its own making if the land question was not addressed.

Mr W Horn (DA) commended Legal Aid SA for the style and content of the presentation. Noting the revelations by Judge Mlambo around irregularities within courts, he said the Committee had to look at the scheduling of appearances so that Legal Aid appeared first before the National Prosecuting Authority and the Department of Justice and Constitutional Development in future. He asked how Legal Aid was experiencing the work of the efficiency enhancement committee. Were the efficiency enhancement committees adding value, given the issues in the public domain around dwindling court hours, conviction rates and numbers? He commented that it was contemplated that an electronic link from the South African Police Service (SAPS) to Legal Aid SA, alerting it of cases even before the first court appearance of people who would want to apply for legal assistance, would be established. He asked if the link had been established, and if it was up and running.

Mr L Mpumlwana (ANC) expressed shock at the revelations made by Judge Mlambo, and remarked that it could be a widespread issue, and called for urgent attention. He asked if it was possible to use the audio-visual remand (AVR) protocol during court processes.  He commented on the need to use African languages, particularly in criminal cases. He asked for Legal Aid’s comment, and if it was ready for a language policy in that direction. He commented that accounts were distorted from the moment police took statements, to the interpreters relaying messages in courts, owing to the use of languages that some people may have little command in. He asked what form of legislation could be applied to help the situation. What financial resources did Legal Aid need to carry out its mandates effectively?

Mr B Bongo (ANC) commended the work that was being done by Legal Aid. Its success model had to be shared with other entities that received funding from government. The issue of funding was not unique to Legal Aid, but was a challenge countrywide. He remarked that the land question was paramount in alleviating people’s plights. He also commended Legal Aid’s audit outcomes. He asked how case management linked to the integrated criminal justice system could be done. Minor cases that could be settled through mediation clogged systems, and there was need to explore alternative dispute resolution (ADR) mechanisms.

Mr M Maila (ANC) said budget shortfalls left much to be desired, as they had telling consequences on the service delivery footprint. He asked if Legal Aid complied with the Employment Equity Act. He also expressed shock at the Palm Ridge irregularities as outlined by Judge Mlambo, and asked for some clarity on the issue. He added that if the Executive established a court and Legal Aid was compelled to represent people, the Executive had to fund such courts so as not to put a strain on Legal Aid’s finances.

Ms C Pilane-Majake (ANC) asked if there was any progress in the legal representation of women in cases such as maintenance claims. Women should not be left without legal representation, or prejudiced in such instances. She noted that Legal Aid was leasing its premises, and advised it to look into purchasing its own premises so as to reduce costs in the long run. There were government buildings not in use that could be renovated and used as work premises. She noted that a lot of money was being spent on paying for consultancy services at the expense of service delivery, and asked Legal Aid to look into that. She asked about its relationship with paralegals, commenting that paralegals could add value to the work Legal Aid was doing, and emphasised the need for engagement with legal aid clinics.

Judge Mlambo said he had not “dropped a bombshell,” but had shared information with the Committee. He had identified Palm Ridge because it was under his watch as Judge President of the province, but it was a nationwide issue. His eyes had been opened upon learning that close to 2 000 matters had been struck off the court roll in a Mpumalanga province cluster, as they were deemed to have been on the roll for too long. Judicial officers had to account for this, especially in the lower courts. It was not a trivial matter, but a deep justice issue that had to be looked into. Matters were being struck off because investigations were taking long, and he did not support that, as officers had to be accountable for such delays. Striking off matters was not a solution. He had once confronted judicial officers to ask if they were unwittingly aiding corruption. The Committee had to look into this to enhance accountability.

On the effectiveness of the enhancement committees, Judge Mlambo replied that Legal Aid was instrumental in assisting provincial enhancement committees to make sure there was accountability. Legal Aid had information about matters on court rolls through its electronic system, which helped in tracking and enforcing accountability.

He said AVR was being tracked closely, as it was effective. There was no appetite for using the AVR system, however,  and that was suspicious.

With regard to the establishment of new courts, the issue had been raised that the justice system had to fund such courts and had to factor in Legal Aid’s lean budget.

On a land unit within Legal Aid to deal with land claims, he said the entity had been given the parameters and budget, and it would attend to it. Government took decisions as to how the matter had to be handled, and that was the stage Legal Aid was at.

Responding to Ms Pilane-Majake’s question on the legal representation of women, he said the issue of maintenance was complex. The root cause was that maintenance officers were accountable to no one. A Bill was to be tabled soon to ensure that issues around the legal representation of women were addressed.

The Chairperson remarked that the country needed lawyers with a social conscience and social responsibility. It could not only be Judge Mlambo who waqs witnessing the irregularities in the courts. Where were the rest of the lawyers, and were they aware of such a serious matter?

Judge Makume replied to Ms Pilane-Majake that there was a need to differentiate at which level Legal Aid should intervene in maintenance-related cases. There were three levels: the man disputing paternity; the scenario where there was already a maintenance order and one party wanted to increase claims and pay-outs; and lastly, initial maintenance applications handled by maintenance officers.

Ms Pilane-Majake clarified that she wanted to hear about representation at the second and third levels.

Mr Brian Nair said on average between 200 000 and 250 000 maintenance applications were made per year. Legal Aid’s capacity was fewer than 55 000 cases per annum, with 3% to 4% being maintenance-related. If there was merit and one applicant was not represented, Legal Aid assisted.

Mr Lawrence Bassett, Chief Director: Legislation Development, Department of Justice, said that the Department had information on the number of cases being struck off the roll, and would furnish it so that the Committee could look into current trends countrywide. On AVR, he said the Department had set a target of12 000 cases for the financial year, and the target had been exceeded. However, there were challenges, such as a lack of appetite from role players, particularly prosecutors. There was a need to address these challenges, and there was scope to extend the AVR protocol to other areas.

Ms Vedalankar commented on thebudget cuts. The R250 million budget shortfall over the next three years would mean a freezing of 100 posts, so service delivery could be compromised.

On the issue of Legal Aid handling cases on the land matters, she said implementation had to be phased in to allow for capacity building. Legal Aid did not have the capacity currently.

Ms Vedalankar said Legal Aid enjoyed a good working relationship and strong cooperation with paralegals. It employed about 200 paralegals. However, it was not in a position to fully manage paralegals.

She agreed that the Executive had to fund new courts, such as commissions, and Legal Aid regulations had been amended to spell that out more explicitly.

Mr Nair replied to Mr Horn’s question on whether the link between Legal Aid and SAPS had been established. He said the link was established and up and running. Legal Aid was receiving information on accused persons who might require legal aid from SAPS. It was adjusting its systems so that the information was used effectively. 

On Legal Aid’s compliance with the Employment Equity Act, Judge Makume said its employment equity plan had been formulated and submitted to the Department of Labour in 2015, subsequent to a review of the past five years, which showed significant improvement. As at December 2016, out of 16 executives, 50% were women and 25% were Africans. Legal Aid had surpassed the national target and, in the main, it was confident that where there were opportunities to make the changes required, they would be effected.

Legal Aid was of the view that clients should engage in the language with which they were most comfortable. He added that the use of indigenous languages during court processes was necessary, as dual translation took a lot of time.

The Chairperson commented that there were many institutions coming before the Committee asking for money. Legal Aid was the most deserving of support, as the Committee saw value in their work and would recommend to the National Assembly that it received more resources. A land unit to handle land-related disputes must be re-established, but with a separate budget for all land claims. The land question was an issue that would sustain or destroy South African democracy.

On matters being struck off court rolls, he said the Department owed the Committee an explanation on whether it was aware of the irregularities.

On language policy, the government was to blame as it was itself undermining African languages. Government had closed down departments of languages in universities. There was a need for the courts to run in indigenous languages if need be. A robust language policy spoke to comprehensive transformation.

Ms Pilane- Majake supported the Chairperson’s proposals, and said a report on allegations of matters being struck off rolls had to be submitted. Immediate action had to be taken against magistrates in the lower courts involved in such irregularities.

Mr Mpumlwana commented that Legal Aid was operating under significant budget constraints. He asked the Chairperson what could be done.

The Chairperson said the Committee had to recommend boldly that Legal Aid be given more money. The land question was a time bomb. and Legal Aid SA was the only institution that had the framework to save the country in that regard.

Mr Horn (DA) cautioned that the issue of cases being struck off the roll had to be investigated before jumping to conclusions. He advised the Committee to ascertain the facts before pronouncing any judgments. 

The Chairperson emphasised that the Committee was not apportioning blame on any institution for cases being struck off rolls, and said the Department had to submit a comprehensive report on the matter. He added that the Committee supported an increase in Legal Aid’s budget whole-heartedly, and was going to deliberate and come up with a well formulated proposal to be presented before the National Assembly.

On the question of Legal Aid acquiring its own property, Ms Vedalankar said it actually owned its national office. A viable real estate strategy was being formulated, and it was in the process of finalising seven purchases. However, financial constraints were the biggest challenge, and finding premises that were accessible to the public and also closer to the courts were other considerations.

She agreed that consultancy expenditure had to be reduced. A consultancy reduction plan was being monitored, and it was only for specialised skills that Legal Aid engaged consultants.

Draft Regulations: Legal Aid South Africa Act, 2014

Ms Kalay Pillay, Deputy Director General: Legislative Development, Department of Justice (DoJ) took the Committee through the 39 draft regulations in terms of the Legal Aid South Africa Act of 2014, proposed for consideration. Before they were finalised and approved by Legal Aid South Africa, the draft regulations had been sent to various stakeholders for comments. Comments had been received from the Cape Bar Council and the National Bar Council of South Africa.

Mr Bassett said that the regulations, read with the manual, did not change the current position as provided for in terms of the Legal Aid Guide, which had been issued in 2014 and was required to be ratified by Parliament in terms of section 3A of the repealed Legal Aid Act of 1969. The procedures and policy as contained in the regulations and the manual,were similar to the existing guide and there were therefore no budgetary and staffing implications.

Members unanimously agreed that the regulations were straight forward and there was no need for going through each and every one of them during the meeting. The Department had to highlight what was important and new.

Mr Bassett said that legal aid regulations had been presented before the Committee in October 2013 and November 2014. In terms of what was provided for in the regulations, Department of Justice took exactly what had been in the guide and brought it into the regulations. Little had changed. Major highlights were changes in the nature of civil matters, where Legal Aid would provide representation, such as regulation around maintenance cases where one party was represented, and specific guidelines in terms of the representation of children. The other critical element was the means test -- on who qualified in terms of the means test, and the criteria. The means test only had been increased, and three levels of discretion had been added.

Representation in civil matters was provided only if there were merits. Representation could be availed to both parties in civil matters, specifically when both parties had an arguable case.  

Mr Bassett pointed out that the land issue had been brought into the regulations. Legal Aid would provide representation on land matters, subject to it receiving funding. On commissions of enquiry, he said regulations clarified that Legal Aid would assist only provided it received funding to establish such special courts. The challenge was that processes such as commissions of enquiry took place on an ad hoc basis, and Legal Aid’s budget did not provide for such expenditure.

The Chairperson made observations on regulations 17 and 18. He commented that regulation 17 stated that legal aid may be granted for cases relating to land rights, and provision was made for funding by the Land Claims Commissioner. Regulation 18, however, limited the scope by specifically dealing with land tenants. The situation in the country was that African people had been driven away from land, and therefore refused to work on the land because the salary that was offered was the right to sleep within the premises under dispute. Farmers thereafter had brought foreigners to work on the land. Referring to land tenants in regulation 18 would mean protecting foreigners, most of whom were working on those farms illegally. The critical issue was to provide legal representation to people who had been driven away from the land and wanted restitution. Protecting the rights of land tenants, but not the rights of the land claimants, was problematic.

Ms M Mothapo (ANC) suggested that regulation 18 be worded as “land rights,” rather than specifically restricting it to tenants, so as to cater for claimants.   

Mr Bongo felt that the issues raised by the Chairperson were covered by regulation 17. Regulation 18 did not limit regulation 17. It spoke only to specific issues relating to land tenants.

Mr Bassett agreed with Mr Bongo.

Ms Mothapo suggested that a mechanism be devised that would see Legal Aid become part of the process outlined in regulation 17. She said the processes at the Land Claims Commissioner’s offices were cumbersome.

Mr Maila suggested that the value of R6 000, pegged in 2014 on the means test, be adjusted for inflation.

Judge Mlambo acknowledged that Mr Maila’s concern was valid. The monetary value had not been revised upwards, and would be revised on an annual basis moving forward.

Mr Bongo commended Mr Bassett’s emphasis on the fact that Legal Aid considered representation of cases based on their individual merits; there were no hard and fast rules. This made him comfortable that justice to the people of South Africa would be served.  

In concluding, the Chairperson thanked Judge Mlambo for collaborating with the Department, and noted that the spirit of teamwork was helping. He also thanked Mr Bassett for working with Legal Aid, as it helped in expediting the work at hand.

The meeting was adjourned.