Legal Aid SA draft regulations

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Justice and Correctional Services

13 February 2019
Chairperson: Ms R Mothapo (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Correctional Services welcomed recommendations to amend regulations governing the means test which is used to determine if the legal aid applicant qualifies for legal aid on the basis the applicant cannot afford the cost of his or her own legal representation.
 
The regulations set out parameters in terms of income within which the applicants could fall in order to qualify for legal aid in either the civil or criminal case. The recommended increase in the means test took into account all the inflation based increments that were implemented for the judicare tariffs with effect from 2013. The proposed amendments to the means test constitute 34.4% compounded annually on an average of 5% increase with effect from 2013 until 1 April 2018. It was further noted the current means test was last reviewed in 2012. Legal Aid SA stated the impact would remain minimal because most applicants would still be assisted if they could not afford the cost of their own legal representation.
 
After a full review of the means test, the Board of Legal Aid SA recommended to the Minister that the means test should be amended by increasing the monetary amounts of the means tests as currently contained in the regulations. The proposed amendments would be made to regulation 27 (2), (3) and (4) to increase the net income of an individual and household, and to regulation 27 (5) and (6) to increase the net value of movable and immovable assets so that individuals could qualify for legal aid in a civil or criminal matter.
 
Members remarked the proposed recommendations were referring to people who were currently earning an income while those not earning were still covered already by Legal Aid SA, and they saw this as a good move because it would expose more people to justice; wanted to understand if the client was going to suffer substantial injustice if partial legal aid was not granted; commented the increase was done by looking at the consumer price index and indicated this was going to minimise access to justice instead of maximising it and  would downplay what Legal Aid has been standing for; wanted to know the steps Legal Aid has taken to arrive at a particular figure for a means test or if it just came up with a figure and decided to add a percentage; and wanted to find out the circumstance under which the court could direct Legal Aid SA to provide legal assistance or support to where it was refused.
 
The Committee then voted on the report. Six votes against one were in favour of the recommendations for amending the regulations. The committee adopted the report.
 

Meeting report

Briefing by Legal Aid SA

Mr Tshepang Morane, Legal Support Practitioner, Legal Aid SA, informed the Committee the proposed amendments to the regulations of the Legal Aid SA Act (39 of 2014) were related only to the criteria that an applicant must meet in order to qualify for legal aid. The criteria related specifically to the means test to determine if the applicant qualifies for legal aid on the basis that the applicants cannot afford the cost of their own legal representation.

He stated that in terms of regulation 27 (1) of the Act, in order to qualify for legal aid in either civil or criminal case, the applicant’s  gross monthly income and net assets should fall within the following parametres:

  • In a criminal case, an applicant must have a net monthly income of R5500 or less
  • In a civil case an applicant must have a net monthly income of R5500 or less
  • In a civil case where the applicant is married or forms part of a household, the applicant must have a net monthly income of R6000
  • A legal aid applicant or an applicant who is a member of a household and who does not own immovable property must have net movable assets of less than R100 000 in either a civil or criminal matter
  • A legal aid applicant or an applicant who is a member of a household who owns immovable property must have a net of immovable and movable assets of less than R500 000 on condition that the legal aid applicant or a member of the household must physically reside in the immovable property or in at least one of the immovable properties, if there is more than one, unless Legal Aid SA decides to the contrary.

Mr Morane indicated that Legal Aid SA has taken into account that the current means test was last reviewed in 2012, and inflation has had an impact on the appropriateness of the current means test. Legal Aid SA was also of the view that an increase in the means test would have less impact because most applicants would still be covered or assisted if they could not afford the cost of their own legal representative to avoid suffering substantial injustice. The proposed amendments to the means test constitute 34.4% compounded annually on an average of 5% increase with effect from 2013 until 1 April 2018. As a result, the means test for single applicants has increased from R5500 to R7 392.00 and for household from R6000 to R8 063.00. These amounts were rounded off to R7 400 and R8000, respectively. The asset value for movables increased from R100 000 to R128 000 and for immovable from R500 000 to R640 000, respectively.

After a full review of the means test, the Board of Legal Aid SA recommended to the Minister that the means test should be amended by increasing the monetary amounts of the means tests as currently contained in the regulations. The proposed amendments would be made to regulation 27 (2), (3) and (4) to increase the net income of an individual and household, and to regulation 27 (5) and (6) to increase the net value of movable and immovable assets so that individuals could qualify for legal aid in a civil or criminal matter.

Discussion

Mr W Horn (DA) stated that at the time when the request was made to review the means test he was of the view that the Legal Aid should look at whether the means test was not excluding many people from qualifying for legal aid. The principle view was not to leave out the major segment of the population from accessing fair justice. The last time there was a meeting on this matter there was a clear request to wait for the implementation of the National Minimum Wage Bill recommendations. He could not understand why the means test was now just an inflationary exercise. From his point of view, the increase was done by looking at the consumer price index and this was going to minimise access to justice instead of maximising it and would downplay what Legal Aid has been standing for.

Mr Morane explained that the Legal Aid Board produced a report which considered the living conditions in society and made a comparative study. It also considered the period the means test was not reviewed and took into cognisance wheher the current means test would benefit many. The issue of inflation also played a part.

Ms G Breytenbach (DA) wanted to understand if the client was going to suffer substantial injustice if partial legal aid was not granted.

Mr Cobus Esterhuizen, Head of Cape Town Legal Aid Office, said the means test was the first thing to look at when a client applied for legal aid. This applied not only in criminal cases, but in civil cases as well to ensure the applicant had reasonable chances of success. Even if the person’s income exceeded the means test by R3000, there were provisions for legal assistance by looking at other circumstances where Legal Aid SA would draft a merit report according to the regulations and then make a decision. If the client’s application was declined, an appeal for the client would be drafted to help the applicant have access to legal aid. From his own experience, when they looked at the financial circumstances of the clients, discretion was granted for legal aid when the clients could not afford the fees of a private lawyer. In civil cases, they not only looked at the income, but at the expenses that exceeded the income. If a person does not have a legal representation that person would suffer substantial injustice and this would depend on the seriousness of the offence if the case was a criminal matter. If the client appeared to have no money for a private lawyer, then legal aid would be provided after assessing the person’s circumstances.

Ms Breytenbach left the meeting at this point

Mr Morane also added there was a contribution scheme or policy where the client is asked to contribute a portion to the costs if the case to be handled by the legal aid is too expensive or if the applicant’s circumstances change subsequent to the granting of partial legal aid.

Mr L Mpumlwana (ANC) wanted to know about the steps Legal Aid has taken to arrive at a particular figure for a means test or if it just came up with a figure and decided to add a percentage. For example, he wanted to know if Legal Aid SA would look at the bank or municipal evaluation if the figure for your immovable property was R500 000 if you could not service your debt due to a job loss.

Mr Esterhuizen stated if the person was residing in the property, then that was not an issue because there are circumstances that get considered, especially when there are children involved and the movable property had a depreciating value. It becomes a big issue when the person had property and his income exceeds the means test and the value of the property.

Mr Morane added that they arrived at the figure for the means test by adding the inflation amount of 2013 to 2018. They got the report from the consumer price index from 2013 to 2018. They multiplied R5 500 by 34.4% and rounded it off to R7000 for individual net/income, for instance.

Mr G Skosana (ANC) wanted to know what informed the R5500 in 2002.

Mr Esterhuizen explained there has not been a consistent guide for Legal Aid on this matter since 1969, 2002 and 2009. It could be that Legal Aid got more and more civil cases in addition to criminal cases. He was not sure how the R5500 of 2002 came about, but he speculated it could have started around 2000.

Mr Skosana remarked that it should be part of the regulations that the means test has to be reviewed, for example, after two years instead of waiting for the Legal Aid Board to decide when it has to be reviewed.

Mr M Maila (ANC) commented that the recommendations to amend the regulations should be supported because they were good. it did not look bad. For example, through the discretion of Legal Aid a person who was earning R10 000 could be covered. He requested the review of the means test be done at regular intervals.

Mr S Tleane (ANC) remarked that the proposed recommendations were referring to people who were earning an income while those not earning were still covered already by Legal Aid SA. This was a good move because it would expose more people to justice, and the review should be made mandatory and be done every two years. The recommendations should be supported.

The Chairperson wanted to find out the circumstance under which the court could direct Legal Aid SA to provide legal assistance or support to where it was refused.

Mr Esterhuizen stated that according to section 22 of the Act, if Legal Aid SA exercised its discretion not to assist the client with legal aid, the court could look at all the personal circumstances of the applicant and ask Legal Aid SA to provide facts for not granting the discretion. Everything is subject to review by the High Court at the instance of the person affected and the court had the right to order Legal Aid SA to provide free legal assistance where it was most required.

The Chairperson then asked members to move for the adoption of the Legal Aid Recommendations Report.

Mr Maila moved for the adoption of the report.

Mr Tleane seconded the proposition.

The report was adopted with no amendments.

The Chairperson asked members to vote on the report. Six votes were in favour of the report against one from the DA. The Chairperson confirmed that members have duly considered the report.

The meeting was adjourned.

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