Government Departments & Entities 2019/20 Annual Performance Plan (APP)
The Committee was briefed by Legal Aid South Africa (LASA) on its annual performance plan and budget for 2019/20. The presentation highlighted the challenges the institution faced because of budget constraints, pointing out that they impacted on the quality of legal services rendered to the poorest and most vulnerable people. As a result of budget cuts, LASA had had to freeze staff posts to avoid overexpenditure. The challenges included:
- Cuts to staff posts, delivery targets, coverage of courts and operational expenditure;
- Non-delivery of constitutional obligations;
- Negative impact on the functioning of the criminal justice system; and
- Delays in the finalisation of cases.
LASA had maintained a clean audit outcome for the last 17 years and the Board was now fully constituted. It provided both criminal and civil law services. 95% of its services were delivered by employees, and 5% by private legal practitioners. It had satellite offices in rural areas and at least one paralegal would be located in these offices to provide legal advice.
Members raised concerns about the accessibility of LASA’s services for people with different disabilities. In particular, deaf people were expected to bring their own sign language interpreters to the offices and their cases were often delayed in court when an interpreter had not been formally appointed. They were not satisfied with the status of staff recruitment and the number of law graduates LASA employed. They drew attention to the location of offices which were not near to areas where people who were seeking the services were situated. Another issue was the ‘means test’ and the exclusionary threshold it created, and the entity was asked whether the threshold was adjusted to respond to the changing socio-economic needs of the society. Members wanted the employment equity targets to be submitted in writing, so that the Committee could check that categories of disabled people and women were being employed in the organisation. They also raised concern at the extent of the representation of children in domestic violence and divorce matters.
Mr Motsamai Makume, Chairperson of the Board: Legal Aid SA (LASA), said the presentation would highlight the challenges Legal Aid SA faced under budget constraints. LASA provided legal services to indigent and vulnerable people. Its mandate was informed by the Constitution, relevant legislation and the common law. The Constitution demanded it protect the rights of detainees, children and environmental groups. Sometimes a high court would order the organisation to provide legal services to people. An example of this was in the Marikana case. If a client did not fall within the organisation’s mandate, certain procedures had to be followed. People had the right to go to court and demand that they be legally represented.
Legal Aid South Africa: Annual Performance Plan
Ms Vidhu Vedalankar, Chief Executive Officer (CEO): LASA, said the Annual Performance Plan (APP) was linked to the strategic plan. It had 64 offices across South Africa and provided services directly to clients through the legal practitioners it employed. It provided both criminal and civil law services. It was wholly dependent on government for grant funding. A ‘means test’ was used to determine whether a person qualified for legal aid. If a person earned below the ‘means test,’ they would qualify. If they earned above the ‘means test’, there were specific instances where services would still be rendered, such as a court may find that substantial injustice would result if services were not provided. There was also an advice call line where people could phone in and receive legal advice.
Legal Aid SA was in its last year of completing its five-year strategic plan. Strategic risks that would hinder the ability to deliver services were being managed. LASA saw itself as part of the justice system and its focus was on improving access to justice. Local offices deliver more than 95% of its services and less than 5% were done by private legal practitioners. Since 2002/3, it had maintained an unqualified audit report. There was a strong record of expenditure, so that money did not have to be returned. It spends only what is budgeted for. As a result of budget cuts, there had been turbulence in trying to freeze posts to prevent spending money which was not available.
Mr Brian Nair, National Operations Executive: LASA, said its coverage of criminal matters was 84% for district courts, 94% for regional courts and 100% for high courts. It participated in one meeting with the National Efficiency Enhancement Committee (NEEC) and 36 meetings with the Provincial Efficiency Enhancement Committee (PEEC). It provides quarterly reports on its performance and governance to the executive authority.
Mr Patrick Hundermark, Chief Legal Executive: LASA, said civil law matters made up about 13% of Legal Aid’s total representation. The civil law target had been exceeded by 9%. The delivery of quality legal advice services was done by paralegals in both local and satellite offices. Each office was required to have at least one paralegal to assist people with advice before it amounted to a legal problem. The Legal Aid Advice Line also rendered advice to people. LASA had worked with the Legal Resources Centre in the Life Esidimeni case, where it had funded the families of the deceased and represented survivors and their families. 17 out of 19 impact matters had been finalised with a successful outcome.
Ms Rebecca Hlabatau, Chief Financial Officer: LASA, said its target was to have a balanced budget. The budget cut of R98 million for 2019/20 had been reversed, and the shortfall remained. It had spent 98% of the 2018/19 budget to prevent overspending. The mid-year financial statements for 2018/19 had been presented to the audit committee and the board in November of last year. It had received an unqualified audit opinion from the Auditor-General of South Africa (AGSA). It was also materially compliant with the relevant legislation on governance practices. It had achieved 102% of the audit coverage plan because six additional plans outside of it were also completed. The board was now fully constituted.
Mr Hundermark said the amendments to the Legal Aid Act had been approved by the board and submitted to the Department of Justice and Constitutional Development (DOJ & CD). Legal aid regulations were reviewed every two years. The legal aid manual contained the procedures. It is tabled in Parliament, but the Minister gazettes it immediately. Legal Aid SA had achieved 100% compliance with the relevant legislation on the supply chain management (SCM) project.
Mr Nair said staff recruitment was at 92.8% as a result of the moratorium placed on recruitment after the budget cuts and the shortfall. Regarding the employment equity (EE) project, it had made good progress on disability recruitment, as this had grown from 0.9% to 1.75%.
Ms Hlabatau said LASA’s main source of revenue was grant funding. This was supplemented with investment interest income. An insignificant amount (under R500 000) was realised as sundry income. The largest portion of the budget went to the client, community and stakeholder programmes, followed by employee salaries and organisational capacity programmes. Overall the budget had grown by 5.9%. The baseline capital budget was high because it included rollover funds from the previous financial year. The operating expenditure budget had increased at a far lower rate so that LASA could cover its fixed costs, such as salaries. Salaries cost about 80% of the budget and because they were fixed costs, it had no option but to apply the rates. Going forward, budget cuts would make the situation worse.
Mr Nair said LASA faced a number of challenges. It was still experiencing budget cuts, notwithstanding the reversal which took place last year, and it had required the organisation to reduce every segment of the budget. The main impacts that had to be managed were cuts to staff posts, as well as cuts to delivery targets and coverage of the courts. The operating budget had decreased by 23%. There may not be enough support for legal practitioners, and Legal Aid SA may be compromised in the services it provides.
Mr Matome Leseilane, Board member and Chairperson of the Remuneration, Social and Ethics Committee of the Board: LASA, said the entity had a strong culture of work ethic and integrity. It had zero tolerance for fraud and corruption. It would manage the impact of budget constraints on employees by increasing communication, providing support to staff and strengthening the organisational culture. It would also continue to identify efficiencies and cost effectiveness in its operations.
Ms N Maseko-Jele (ANC) said the presentation was encouraging under the circumstances of budget cuts. The team had been able to think creatively and come up with ways of saving. Did they have an internship programme to help with staff recruitment? Under what circumstances did the team require external experts to render services? How many board members did they have now? Was the issue of retention and experience in the organisation going to continue without undermining anyone? The location of LASA’s offices was far from the very people it aimed to help -- was it possible to have the offices closer to the townships? People had to take taxis to access their services, and this was a problem.
The Chairperson added that where townships were spoken about, rural areas should also be included.
Mr X Nqola (ANC) said it was important for Members to receive truthful reflections of what was happening on the ground so that the Committee could contribute to a better working Legal Aid SA. The central mandate of LASA was to represent indigent and vulnerable South Africans. The Committee had a special interest in protecting these groups of people and to ensuring their rights were taken seriously. There was generally a lot of discontent around issues relating to the Masters Office and matters concerning the administration of deceased estates. Could clarity be provided on this?
He said the ‘means test’ created a certain threshold. Did LASA consider that social and economic situations of people would change? Would the threshold be revisited, or was it going to stay stagnant? It should change from time to time in accordance with the needs of society. How was the threshold applied in different circumstances? For example, in the cases of someone who was accused of stealing a sheep, or someone who worked for the local municipality and was facing a labour dispute, was the pay slip of the municipal employee reflected in the threshold? How was the general threshold applied in civil law matters?
How was LASA’s staff structured? Members needed a breakdown of this to test the actual capacity of the organisation and its ability to deal with matters. The South African Human Rights Commission (SAHRC) had said it received the smallest budget, but the presentation today indicated LASA received the smallest share. What was the correct answer to this? The DOJ & CD may be better able to answer.
Mr Nqola asked if there was a budget allocated to private practitioners. If so, how much was the budget and how do LASA arrive on the audit amount? Were there incidents where paralegals litigated matters just to reach a resolution even when matters did not need to be taken to court? Were paralegals doing work for the benefit of the people? Budget cuts had become a common phenomenon. The Committee needed to check the underpinning factors, such as the gross domestic product (GDP). Was there a budget allocated for legal costs when LASA lost a case?
Adv T Mulaudzi (EFF) congratulated LASA for achieving an unqualified audit outcome since 2002. This must continue. The new board must not come in and collapse the system and the good work done. On the staff statistics, could this be broken down into categories, such as women and those with disabilities, so that Members could see if there was equity? On the interest investment amount, where do they invest the money? On the issue of internships, were they assisting lawyer graduates? What were the numbers on this?
Mr Mulaudzi said Legal Aid SA was an old institution established under the 1969 Act, and this had been replaced by the 2014 Act. Where did it operate? Did it plan to have its own building? Could it afford the rental costs? Did it have outreach programmes in disadvantaged communities and townships? Many poor people did not know about the services LASA provides. How did they reach the people? Were radios broadcasting their services? How far were they on the group life insurance policy matter? Legal Aid SA had to cover its budget shortfall -- had people lost their jobs as a result of this?
Mr W Horn (DA) referred to the role of LASA in the NEEC, and asked if one meeting per year was sufficient involvement? If not, had they tried to amend the situation? Members knew from the presentation by the Office of the Chief Justice (OCJ) that quarterly reports would be submitted on this. How could Members receive quarterly reports when there was only one meeting in the year? Last year there had been an issue where Judicare was not paid due to system issues. What was the update on this?
Ms W Newhoudt-Druchen (ANC) observed that targets had increased for people with disabilities. How many people was that? Did the toll-free line include an SMS or an email? Deaf people could not call unless there was a sign language interpreter present. It was becoming more and more concerning that deaf people did not have access to the justice system because sign language interpreters were not available. Deaf people could access Legal Aid SA only if either a social worker or interpreter was with them. Most of the time, they were expected to bring an interpreter themselves. There were also delays in court processes because an interpreter had not been appointed. How in the future could LASA assist to ensure legal services were accessible for people with different disabilities?
Mr H Mohamed (ANC) congratulated LASA for its clean audit outcome. It had made an amendment to represent children in civil court matters. How far had it taken this mandate? Did it include children affected by divorce or domestic violence matters? Criminal matters were the primary operation of Legal Aid SA, but civil matters must be given equal weight. What was the determining factor between the cases it took? Despite where there was an imminent threat to life, there was very little mandate allocated to children in matters of divorce and domestic violence.
Legal Aid South Africa’s response
Mr Makume replied that there was a general problem of interpretations. How did legal practitioners cope with the fact that most of LASA clients spoke Xhosa or only Afrikaans? An effort needed to be initiated where legal practitioners themselves learnt the language of the client. Universities needed to be engaged with too. Second year LLB students should start learning the language in the area they would practice law. LASA provided services to accused persons who came from different areas with different languages. This was as a result of the influx of people who came to South Africa. An accused person from Zimbabwe or Mozambique would inform LASA there were more than seven dialects. The DOJ & CD, universities and LASA itself must come together to deal with the issue of interpretations.
Ms Vedalankar said that some answers would be provided in writing because they required data. On the structure of the staff, 80% were legal staff and paralegals. The main internship component was the candidate attorneys programme. Law graduates went through a training period and were employed for one to two years. Legal Aid SA was the largest employer of legal graduates, employing about 300 graduates per year.
Only 3% of legal matters were handled by Judicare. It was used when matters were taken to the high courts, or where there was more than one accused and each had to be represented separately otherwise there would be a conflict of interest. Legal Aid SA had built up expertise in criminal matters. The turnover rate of employees was less than 6%. On average, an employee stayed for 10 years and in this way the organisation had built up expertise itself.
Ms Vedalankar said the board had five new members and five old members. It was confident it would ensure continuity with the good work Legal Aid SA had done. The location of its offices and providing services was very important. Its offices were closest to the courts, because most of its work was court-based. This reduced travel time for lawyers. There were satellite offices in rural areas and townships. Legal Aid SA tried to ensure its offices were located close to public transport routes. Civil law clients were the only ones who accessed lawyers at the offices.
She said the ‘means test’ had been increased last year in response to changing socio-economic needs. It was also balanced against LASA’s budget. Legal Aid SA did research of the subsidies provided by the Department of Social Development (DSD) and the Department of Human Settlements (DHS). The ‘means test’ would continue to be tracked and monitored. The categories of staff were distinguished against the different levels of courts. Strategic litigation employees were more senior lawyers who specialised in this type of work. Legal Aid SA does not have one type of lawyer -- they were matched to a case, depending on the kind of matter.
The SAHRC and Public Protector were chapter 9 institutions and received less than Legal Aid SA. She had not been referring to them when she spoke about budget cuts. On the budget for Judicare, actual figures would be provided to Members. On employment equity, Members would also be provided with figures. Paralegals would not do work which was reserved for lawyers. On the investment income, this was cash which was put into interest-bearing accounts. On the offices, there were 135 sites in which Legal Aid SA operated across the country. The property was not owned by Legal Aid SA, but it had made efforts to try and reduce rental costs.
Ms Vedalankar referred to the staffing concern, as the media had said staff were unhappy with the reduction of employee benefits. Legal Aid SA had cut its budget across all segments because of budget constraints. It had cut not only from the staffing segment, but also from operational costs. It had identified areas where it could cut further, and this was a trade-off between the number of staff and existing staff. Existing staff had been reduced so that LA SA could continue to hire lawyers. If there were no lawyers, no services could be provided. LASA disagreed with employee demands because it could not afford them, but employees had the constitutional right to protest.
The issue of budget cuts should be looked at because Legal Aid SA’s services reached the poorest people in the country. The board had made representations to the National Treasury (NT) on its good track record of financial management and delivery. As a result, the NT had reversed the 5% budget cut, which meant LASA had not had to reduce its staff. No one had lost jobs because of the reversal. The NT had required LASA to plan for the next Medium-Term Expenditure Framework (MTEF) period. If there were budget cuts, it would have to reduce posts and people would be affected. Salaries always got affected because it was the largest part of the budget.
Mr Nair said that savings had been transferred to Judicare. The accreditation system was important for lawyers to qualify. Experience was also important when looking at the categories of employees. If a lawyer was newly qualified, they were confined to working in district courts. If a lawyer had at least seven years of experience, they may work in the high courts. Legal Aid SA allocated employees in terms of black economic empowerment (BEE) rankings. The allocation of employees was aligned to certain legislation. The challenge was that three-quarters of LASA’s accredited lawyers were male and only one quarter were female. As soon as the new system was in place, Legal Aid SA planned to employ more women.
He said 85% of LASA’s accounts were paid within 30 days. Delays were caused when the required documents were not all in place. The issue of the payment rate was being addressed, and it had made some good strides. Almost all legal practitioners were paid within 14 days of accounts received by the office. On external experts, all employees were independently allowed to make a decision on whether they required an expert to advance a particular legal angle. They needed to source time in terms of the supply chain policy, and then they could make a motivation to use an external expert. Legal Aid SA did not limit its legal practitioners.
Mr Nair said LASA looked at various factors when it came to the ‘means test’. The nature of the matter involved, and whether the person would be able to afford the cost on an ongoing basis, were two of the factors. Legal Aid SA had an option to grant legal aid, with some sort of contribution from the client. There had been a case where doctors hadqualified for legal aid because they would not be able to afford years of litigation.
Regarding its involvement with the NEEC, the national structure was scheduled to meet twice a year, but it had taken place only once last year. Two meetings per year was not an unreasonable number. Legal Aid SA participated in many local committees. The EE targets would be provided to Members in writing.
Mr Makume said that payments were delayed when legal practitioners were not tax compliant. They would also not be accredited on this basis.
Mr Hundermark replied that LASA did not deal with the administration of estates unless there was an agreement between itself and the Masters Office, and the case involved a minor. Where estates amounted to R250 000 or lower, it protected the interests of the minor involved. The money went into the Guardian’s Fund. About R60 million in Legal Aid SA’s trust account was linked to this.
It had regular meetings with the Chief Master. Sometimes there were difficulties, but nothing that could not be overcome. Any estate which was valued above R250 000 required the formal appointment of an administrator, and that person had to give security. The administrator was usually an attorney or bank. The Masters Office did not hold the responsibility to administer estates, but checked that those who did were doing it properly.
He said the threshold for the ‘means test’ included both income and assets. There was discretion in terms of the Legal Aid regulations. If anyone was above the ‘means test’, there was a committee at the national level which would consider it and take into account contributions in criminal matters. Each office had paralegals who were involved in resolving disputes.
Legal Aid SA had training programmes to upskill paralegals. On legal costs, it was recovering R11 million from the mining companies in the silicosis matter. There were matters where it did recover costs, but where it acted on behalf of a client, it did not recover costs. The attorney remained liable for those costs. Clients were warned of this risk. Legal Aid SA would not take on civil matters where there was not sufficient merit.
Mr Hundermark said the Department of Communications (DOC) reached out to people through both radio and television. Legal Aid SA received more calls when they were advertised on television. It was looking into putting its toll-free number on the back of match boxes. It paid for some adverts to go out on community radios, and at other times legal practitioners spoke about its services on the radio. Services were advertised at taxi points and pension pay points. The paralegals who were linked to satellite offices in rural areas were required to go to outreach points like courts, clinics and pension pay points.
There was already a system where people could send “PleaseCallMe’s.” On the LASA website, there was a section where one could indicate if one needed special assistance, such as a sign language interpreter. This request went straight to the call centre. An email would be the easiest form, but LASA did not have this function. There were no sign language interpreters at the offices, so it was easier for the client to bring one themselves. If those services needed to be procured, Legal Aid SA would have to go through the supply chain system and this would cause a delay. LASA sought the client’s help in this regard.
Mr Hundermark said Legal Aid SA’s mandate, as it applied to children, was taken very seriously. Children’s rights were a priority focus area. The reality was that there were limited resources. The statistics of domestic violence and harassment cases per year was huge. It did not have the capacity to address this huge demand. Most people ended up going to the maintenance court, and where they were unable to afford their own legal representation, LASA would assist if the case had merits and the other party was represented. Domestic violence cases represented about 4% of the civil law work LASA did.
Ms Hlabatau said Legal Aid SA did not use the grant received from National Treasury all at once, so the excess cash was invested with the Reserve Bank. Cash was available to settle all creditor claims when needed. It was unlikely this cash would be used all at once. It received investment interest from the funds in the Reserve Bank, and it was used to supplement the budget.
The Chairperson asked if Members had any follow-up questions on the responses.
Ms Newhoudt-Druchen said technology was getting better every day, and asked if LASA could look into SMS’s and “PleaseCallMe’s” so that deaf people could send messages when they needed legal services.
Mr Hundermark said that LASA learnt as technology advanced. WhatsApp would be looked into, as well as an email address which went straight into the call centre.
The Chairperson said Legal Aid SA should partner with the Department of Copmmunications (DOC). The DOC had a studio that could be used to conduct outreach programmes.
He thanked the team for their presentation, and said the Committee would continue the good fight to ensure budget cuts were not severe. It was important to be creative with the use of public resources and areas where maximum impact could be felt. The Committee was happy with the work Legal Aid SA did. He welcomed Mr Makume to the Board. In this MTEF, Legal Aid SA should start off with clean audits.
The meeting was adjourned.
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