Legal Aid South Africa on its Annual Report and Legal Aid amendment regulations

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Justice and Correctional Services

16 October 2018
Chairperson: Ms M Mothapo (ANC)
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Meeting Summary

Annual Reports 2017/18

The term of the Legal Aid SA board has reached its end for most board members. Words of appreciation circulated the room for the dedication and good work which this board has done to date. Legal Aid SA obtained its 17th clean audit and was accredited for the 10th year as a Top Employer in South Africa..

Of key concern has been the Legal Aid budget cuts. Some of the limitations that resonated include:
• Shortfall in the budget baseline that is currently at 2.6% and is expected to reach 10% by 2020/21.
• Staff reduction by 282 or 10.2% of staff complement.
• Reduction in court coverage by 7% in District Courts from 86% to 79% and reduction by 10% from 95% to 85% in Regional Courts.
• Non-salary items on the budget have been reduced by 13% over three years and over a decade by 21%.
• Service delivery affected as cuts reduced legal aid capacity by 51 675 matters or 11.6% of matters.

Conclusively with such cuts, performance is reduced, and the efficiency of Legal Aid SA is affected. The Chief Executive Officer of Legal Aid SA pleaded to the Portfolio Committee to assist the organisation to avoid additional cuts.

Legal Aid SA is currently awaiting feedback on the form and source of funding available for them to engage in land reform and tenure matters. They do not want to commit yet to something that is not financed given the current budget cuts.

The Legal Aid amendment regulations deal with changes to the means test due to inflation:
•  There are slight changes that must be done to the means test that assesses if one qualifies for legal aid.
•  The means test, which has changed since 2013, factors in the following changes: minimum gross monthly income less tax and net assets increases from R5 500 to R7 392 for single applicants and from R6 000 to R8 000 for household applicants.
•  Where no immovable property is involved, the value increases to R128 000 and where both movable and immovable property is involved, the value increases from R500 000 to R640 000.

Members asked about the language medium used in courts; overcrowding for those awaiting trial; about the plan to link Legal Aid SA to the Integrated Justice IT system;  if irregular expenditure is of a repetitive nature such as a multi-year lease of buildings and the strategy to curb this;  if there was any consequences for those found responsible for irregular or fruitless expenditure, what is really happening with the recruitment of women in senior management. The Committee assured Legal Aid SA that the Committee is ready to assist.


Meeting report

Judge President Dunstan Mlambo, Legal Aid SA board chairperson, introduced his team and said that things are working well for the board of Legal Aid SA. His term is coming to an end as well as that of several other board members and thus a transitional period is upon the organisation. The Minister of Justice has been approached and notified about the process for people to apply to be board members for Legal Aid SA. The Minister will then approve from amongst those who have been nominated. He apologised for the Deputy Chair who was away at a meeting in Johannesburg.

The Chief Executive Officer of Legal Aid SA, Ms Vidhu Vedalankar, said that the entity has done well and has delivered on its business plan. They work on promoting the rule of law at national and international levels and ensuring equal justice for all continues. It provided legal advice and assistance in 731 856 matters, which included:
•  426 617 new legal matters
- 371 202 (87%) Criminal legal matters
- 55 415 (13%) Civil legal matters
•  305 239 advice matters
•  25 new impact litigation matters.

Legal Aid SA is happy with the quality of its service. They have obtained the 17th unqualified audit. People development programmes are well in place and this has reflected through Legal Aid SA being accredited for the 10th year as a Top Employer in South Africa.

Mr Brian Nair, National Operations Executive of Legal Aid SA, said that despite budget constraints, their delivery exceeded the target by two percent in Regional Courts and three percent in the District Courts. District Courts cover 84%, Regional Courts cover 15% and High Courts cover 1% of criminal legal matters. The bulk of matters are of an aggressive nature and the highest numbers are handled at the District Court. Legal Aid SA has 64 local offices and 64 satellite offices. Staff numbers have gone down, however the recruitment rate was 95.1%. There is a drop in criminal matters due to improved screening at Courts where there is a decrease in the number of cases that go through the Court system and an increased number of matters finalised by the NPA using informal mediation. Legal Aid SA has a programme in place to ensure the provision of quality legal services. Legal Aid SA participates actively in local, provincial and national matters to engage with stakeholders.

Mr Patrick Hundermark, Chief Legal Executive of Legal Aid SA, said that representation of vulnerable groups takes place as follows: children (16%), women (51%), mental healthcare users (0.2%), the elderly (12%) and in land/eviction matters (10%). In 23.9% of civil matters exceeded the target turnaround time of 18 months, but this was still within their target of 30%. Legal Aid SA provides outreach services in civil matters and assisted 10 674 clients at their civil legal aid clinics. Legal aid was provided to children in 16 350 matters. Legal Aid SA provided legal advice services, no clients were turned away in the financial year.

Ms Rebecca Hlabatau, Legal Aid SA CFO, said that the 2018/19 budget was approved by the Board before the commencement of the financial year after adjusting for a five percent budget cut. They had a good cash flow management despite a grant allocation reduction of R92 million. The main source of revenue is through a government grant of R1.7 billion. They spent 99% of the budget. Legal Aid SA paid 85.4% of their Judicare and 99.3% of their trade creditors within 30 days of the invoice date. The low payment rate for Judicare was due to invoices submitted during the December period and delay in the submission of additional information from Judicare/creditors.

Legal Aid SA incurred irregular, fruitless and wasteful expenditure but this was reduced by more than 38% from the previous year. The Auditor General unqualified audit opinion had six findings with four findings listed as other important matters and two being administrative matters. Non-current assets amount increased because of the acquisition of assets. Current liabilities increased because of provisions. There is a deficit of R2.8 million due to funds from the cash reserves being used as opposed to funds from the government grant. Legal Aid SA has a Legal Quality Assurance Unit within its Internal Audit department that is tasked to work independently to assess the quality of legal practitioners and it completed 99.83% of its assessments. Legal Aid SA improved its level of risk maturity. Legal Aid SA is complying with all legislation.

Ms Hlabatau said that the meeting of employment equity targets for African females at senior management levels was a key challenge. Normal staff numbers for women is 8.7% higher than the target. In senior management, blacks are 10.5% lower than the target, Africans are 16.8% lower than target and women are 4.7% lower than the target. There is an expectation that these figures will remain the same in the next two to three years. She highlighted that they are at the final stages of developing their Electronic Legal Aid System (eLAA) and their VPN upgrade is 90% complete due to unavailability of infrastructure from the service provider. The latest National Brand Perception Survey had a result of 66%, this was a result of Legal SA’s marketing initiatives, community outreach and education, call centre services and corporate branding and advertisements.

Ms Vedalankar said that Legal Aid SA was on track in terms of their strategic goals.

Mr Hundermark said that there are ongoing talks with the Department of Rural Development and Land Reform (DRDLR) and the Chief Land Claims Commissioner on Legal Aid SA providing legal representation in land reform and tenure matters. Legal Aid SA is still waiting to see what kind of funding is available for this initiative. They do not want to commit to something that is unfunded due to their budget constraints.

Ms Vedalankar highlighted that the biggest challenge that Legal Aid faces pertain to budget cuts. This has a direct impact on staffing salaries, service delivery and not enabling the entity to fulfil its constitutional mandate. There has already been a five percent cut to the baseline allocation. Currently there is a 2.6% shortfall, the prediction is that in 2018/19 it will go up to 7.5%, 8.6% in 2019/20 and in 2020/21 by 10%. Conclusively a total of R503 million between 2018/19 and 2020/21 is predicted to be the budget cut. Budget cuts over the 2017/18 to 2020/21 have reduced staff by 282 or 10.2% of staff complement. In terms of service delivery, budget cuts reduced legal aid capacity by 51 675 matters or 11.6% of matters.

Court coverage reduced by seven percent in District Courts from 86% to 79% and reduced by 10% in Regional Courts from 95% to 85%. Performance is reduced, and turnaround time for resolution will be longer. Non-salary items on the budget have been reduced by 13% over three years and over a decade by 21%. She understands that budget cuts are nation-wide. However, one size fits all does not work for Legal Aid SA. She pleaded with the Committee that Legal Aid SA must not have any further budget cuts as this is affecting its work.

Judge President Mlambo said that engagement with the Minister on budget cuts is already taking place. The suggestion by the Committee to incorporate land cases is almost impossible given the financial constraints.

The Acting Chairperson thanked Legal Aid for the presentation and asked it to address the amendments.

Legal Aid amendment regulations
Mr Hundermark said that in terms of the Legal Aid Guide, Section 23 stipulates the conditions with which one need to comply to qualify for legal aid. The proposed amendments deal with the means test, which is an early administrative and financial test to determine if an applicant qualifies for legal aid. The means test deals with 99.5% of the cases. In terms of Section 27(1) to qualify for legal aid in a civil or a criminal case, the applicant gross monthly income less tax and net assets must fall within a certain parameter. Income of an applicant who is single should be less than R5 500 per month to qualify and for a household it should be R6 000. If they have immovable assets, they need to be worth less than R500 000. Movable assets where there are no immovable assets need to be worth less than R100 000. The basis of the amendment is to factor in inflation and increase the 2013 means test. The means test is projected to increase annually by 34.4%. This means that income will increase from R5 500 to R7 392 per month for single applicants and from R6 000 to R8 000 for household applicants. The value of movable assets, where there are no immovable property increases from R100 000 to R128 000 and where there is immovable property from R500 000 to R640 000.

The Chairperson commended Legal Aid for the clean audit and for being a top employer. She commended them after visiting the Limpopo Provincial Office around 4pm unannounced and found everyone at work.

Mr L Mpumlwana (ANC) thanked Legal Aid for their presentation. He asked about the plan to link Legal Aid SA and SAP system? What is the position on this? In terms of cash flow management, what is the impact on this in reducing the backlog of cases if any? What is being done to reduce overcrowding in prisons and what is the role of Legal Aid in this? What is the attitude of Legal Aid SA in dealing with both civil and criminal matters? There are many mental health patients in correctional facilities, some of these people cannot plead. How do you assist? In terms of language, a statement is taken by a policeman, the accused speaks in an African language and the policeman is not an interpreter, then the matter is the presented to Legal Aid SA, what is the impact of this? Is it not better to write this in an African language? Does this not affect the case?

Ms G Breytenbach (DA) asked if the irregular expenditure is of a repetitive nature such as a multi-year lease of buildings? Is there a strategy in place to curb this? Legal Aid SA’s planning programme is commendable. She asked Legal Aid SA to share more on this.

Mr G Skosana (ANC) congratulated Legal Aid SA for achieving the clean audit and for achieving most of their targets and spending 99% of the budget. He asked about the irregular expenditure of R6 million that relates to the leasing of buildings from landlords without valid tax certificates. How did this happen? The budget cut is a serious challenge and is affecting Legal Aid SA severely. If 80% of their budget is used for the compensation of employees, it is a red flag on its own. It means that only 20% of the budget is used for core business. As a Committee, practical steps should be taken to support Legal Aid SA.

A committee member asked if there was irregular or fruitless expenditure, was there any consequences for those found responsible for this. What is really happening with the recruitment of women for senior management? How is Legal Aid SA assisting to end overcrowding? He thanked the Judge President for his good work.

A committee member asked if Legal Aid SA assists those that are unemployed.

The Chairperson asked what Legal Aid SA meant in the employment equity (EE) section when it used the term African/Blacks. She sympathised with Legal Aid SA; despite the budget cuts, they performed well. She referred to FNB logo which says, “How can we help you?" The Committee is ready to assist.

Judge President Mlambo replied that an unemployed person qualified automatically for legal aid. He responded about overcrowding, saying that sometimes people have waited for trial for ten years in one instance. Legal Aid SA tries to push for trial dates to be moved earlier. Regional Courts carry the heaviest load of such cases. In cases were Legal Aid SA gets knowledge of the underperformance of their lawyers, they take the necessary measures to address this. In terms of the EE targets, recruitment opportunities will resolve the numbers. The EE Act stipulates who is Black and African.

Mr Hundermark replied that the integration with the SAP is work in progress. Legal Aid SA is part of the Integrated Justice Project (IJP). Legal Aid SA is committed to ensuring that there are no delays in the system.

Ms Hlabatau said that a lease tender is issued every five years. At the beginning of the tender the service provider could be compliant but at the end of the tender period, they might be non-compliant and Legal Aid SA continues with the lease whilst they look for alternative premises. Legal Aid SA is working to ensure that this challenge is limited. Employees responsible for fruitless and wasteful expenditure are made to pay.

The Chairperson asked about Legal Aid SA involvement in mediation.

Mr Hundermark replied that Legal Aid SA does participate in mediation but budget cuts play an important role in limiting this engagement. In Life Esidimeni, Legal Aid SA assisted 67 families. However, they do not have capacity in terms of criminal matters around Life Esidimeni.

Judge President Mlambo replied about the language medium saying that an accused person and witnesses can write their statements in any language. Capacity plays an important issue with this, SAPS cannot be expected to employ interpreters.

Mr Mpumlwana stated his concern about language. The concentration of the country is on the promotion of English as a form of first language and not on achieving justice. He said one must try as much as possible to incorporate other languages into the justice system.

Judge President Mlambo said that in terms of language Legal Aid SA will ensure that justice is served correctly despite the language that one uses.

Mr Hundermark clarified that in terms of the means test, anyone that is unemployed qualifies for legal aid assistance.

The Chairperson thanked Legal Aid SA.

The Chairperson noted Mr D van Rooyen (ANC) and Mr G Skosana (ANC) as new members of the Portfolio Committee.

The meeting was adjourned.


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