Legal Aid South Africa 2018/19 Annual Report

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Justice and Correctional Services

10 October 2019
Chairperson: Adv H Mohamed (ANC)
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Meeting Summary

Annual Reports 2018/2019

Legal Aid South Africa (LASA) presented an overview of their annual performance report for the 2018/19 financial year, and gave the Committee details of their achievements against targets and their service delivery based on their five-year strategic plan since 2015.

The ensuing discussion focused on the impact of budget cuts with regard to court coverage and employee morale. Members probed aspects involving amendments to the means test; the accessibility of LASA’s offices and its ability to communicate its services to remote rural areas; its ongoing challenges in its relationship with sheriffs; the digitalisation of its processes and the training of personnel to keep up with technological advances; and the need for exit interviews to understand the main reasons for the high staff turnover rate.

The Committee commended the entity for its overall performance under constrained financial circumstances, paying particular tribute to the retiring CEO.

Meeting report

Legal Aid South Africa (LASA) Annual Report

The delegation from Legal Aid South Africa (LASA) combined to give a collective presentation on the entity’s annual performance report (APR) for 2018/19. The presenters were:

  • Judge Motsamai Abraham Makume, Chairperson of the LASA Board, who provided an introduction to the APR;
  • Ms Vidhu Vedalankar, Chief Executive Officer (CEO), who provided the performance highlights, and also spoke to the strategic plan for 2015-2020;
  • Mr Brian Nair, National Operations Executive; Mr Hope Bambiso, Provincial Executive: Eastern Cape; and Mr Patrick Hundermark, Chief Legal Executive, who delivered the reports on the performance in relation to LASA’s clients, the community, stakeholders and shareholders;
  • Ms Rebecca Hlabatau, Chief Financial Officer; and Dr Jerry Makokoane, Chief Operations Officer, who addressed finance and sustainability, as well as internal business processes for 2018/19.

2018/19 was the fourth year of the implementation of LASA’s five-year strategic plan, during which the organisation had met over 90% of the set targets in the business plan. It had delivered on its constitutional and legislative mandate by increasing access to justice through providing legal assistance and delivering programmes within budget. The Board had operated within a strong governance framework, guided by the best practices on corporate governance. It was fully functional and had effectively executed its oversight responsibilities over the top risks of the organisation, its quarterly performance, and reviewing organisational strategies and policies. The Board had ensured compliance with statutory, Public Finances Management Act (PFMA) and King IV prescripts and requirements, whilst fulfilling its responsibility of disclosing and reporting on performance to the Executive. All Board and committee meetings had been quorate and held according to schedule. It had been the final year of the term of the Board, which had been appointed and begun its functions on 1 March 2016. It had evaluated its performance at the end of the 2018/19 financial year (FY), which had culminated in a handover report for the incoming Board which had assumed its duties on 1 March 2019. The Board had rated its overall performance during its term at over 90%, which translated into consistently good to excellent performance.

During the year under review, legal advice and assistance was provided in 724 253 matters, including assistance to children in 16 173 matters. LASA had continued to implement a mixed model delivery system of local offices (96%), Judicare (3%), and cooperation partners and agency agreements (1%). There had been consistent service delivery across the country, despite budget cuts, and efficient provision of staff capacity at all courts. An independent assessment of quality conducted by the Legal Quality Assurance Unit had found that the quality of legal services had been sustained, with 99% of internal legal practitioners meeting legal quality targets. The quality assurance programme that was extended to review the work of Judicare practitioners handling cases on behalf of LASA had found that 97% of practitioners met their quality targets. The court stakeholder relationship management programme confirmed that presiding officers were satisfied with the quality of legal services, and LASA had achieved an 89.4% success rate for 19 finalised impact matters. It had actively participated in all criminal justice system structures to contribute to an efficient and effective operation of the justice system.

At end of 2018/19, 98% of the annual budget of R1.861 billion had been spent. Judicare payments within 30 days were at 97.7%, and creditors’ payments within 30 days were at 99.3%. Unauthorised, irregular, fruitless and wasteful expenditure had been reduced by 38.7%, although the appointment of sheriffs, and office lease procurement, had contributed to a high level of irregular expenditure. Internal audit had completed 99% of the approved coverage plan in conducting fraud and corruption campaigns, and ethics and lifestyle audits, as well as six additional projects. Sound financial management had resulted in the 18th consecutive unqualified audit from Auditor-General South Africa (AGSA).

People development programmes were on track and being improved. LASA had maintained a high recruitment level of 2 557 personnel at 92.8% of the organisational structure, and a low staff turnover rate of 5.8%. Leadership development had progressed well. Community outreach programmes had been conducted and targets surpassed, and the organisation had Intensified its presence on social media platforms. LASA’s external website had been revamped and implemented with new functionalities, and its Information Technology (IT) stability maintained with system availability of over 99%. A newly developed electronic Legal Aid Administration System (eLAAP) had been piloted and deployed, and was running in parallel with the legacy system with a target to go live in the third quarter of this FY.

The report on the performance in terms of clients, the community, stakeholders and shareholders was presented. Under legal aid in criminal matters, the programme aimed to deliver quality criminal legal services that were client focused and within budget constraints, and all targets at district courts (DCs), regional courts (RCs) and high courts (HCs) had been met. New criminal legal aid matters had numbered 362 213, of which 85% were dealt with at DCs, 14% at RCs and 1% at HCs. The Supreme Court of Appeal (SCA) had dealt with 11 appeals, with a success rate of 55%. Aggressive crimes constituted 40% of all matters, economic crimes constituted 28%, narcotics crimes 14%, sexual crimes 6%, statutory offences 5%, and other crimes amounted to 7%. The DCs handled 85% of the matters, while RCs handled 14% and HCs handled 1%. There were 175 628 matters pending by the end of the FY, of which 123 000 were criminal.

Under legal aid delivery, the national footprint included 64 local offices and 64 satellite offices, with 2 557 staff (92.8%) recruited, and 1 274 Judicare practitioners accredited. There was a mixed model delivery system in which local offices handled 96% of new legal matters. 410 396 matters had been finalised during 2018/19. Under the total of 416 203 new legal matters, the criminal matters represented 87% and the civil matters 13%. The decrease in criminal statistics was attributed to improved screening of cases, an increased number of matters finalised using mediation, and a decrease in cases going through court system. The decrease in new civil matters was due to the freezing of posts to accommodate budget cuts. Local offices took 96.7% of criminal matters and 88.5% of civil matters, Judicare took 2.7% of criminal matters and 2.7% of civil matters, and cooperation agreements, agency agreements and impact litigation took 0.6% of criminal matters and 8.8% of civil matters.

There were a number of programmes in place to ensure the provision of quality legal services. Fewer than 1% of legal practitioners, who have now been given support by legal managers, had not met their quality targets. For the effective functioning of the justice system, there was a programme aimed at participating in, contributing to and influencing structures in order to improve the functioning of the courts and justice system. The target was to participate in national and provincial efficiency enhancement structures, in terms of which LASA attended 36 meetings of the National Efficiency Enhancement Committee (NEEC) and the Provincial Efficiency Enhancement Committee (PEEC). Under legal aid in civil matters, the programme aimed at delivering quality civil legal aid services that were client-focused, with a priority focus on constitutional rights.

In terms of the targets, 53 990 new civil matters were taken, of which local offices took 88.5%, which was 9% higher than target. 2.7% of civil matters were allocated to Judicare, and 8.8% was done by cooperation partners, in line with the budget allocation. Vulnerable groups in civil legal matters included children (18%), women (58%), elderly (15.7%), victims of land/eviction (11.8%) and mental health users (0.2%). An 89.4% success rate was achieved in impact matters. There was an increased use of Hotdocs, by generating 57 404 documents, which was double the previous year’s figure.  LASA also provided outreach services in civil matters, where 10 061 clients were assisted. Family matters constituted 45%, children’s matters 18%, land matters 13%, civil claims 9%, applications 7%, other civil matters 5%, and labour matters 3%.

Legal aid was provided to children in 16 173 matters. They were assisted in 3 984 preliminary inquiries. As at end of March 2019, 15 children were awaiting trial in custody for longer than one month. There was a 6.5% decrease in new children’s criminal matters, while assistance to children in civil matters increased by 7.7% in comparison to the previous FY. Out of a total of 16 173 matters, 59% were criminal and 41% civil.

The legal aid advice programme aimed to deliver quality legal advice services. General advice was provided to 308 050 clients at LASA offices, through the Legal Aid Advice Line, and to remand detainees and sentenced inmates – an increase of 0.9%. The impact services programmes aimed to give content to the Constitution through impact litigation. 30 new impact litigation matters were approved, and an 89.4% success rate achieved for 19 matters finalised with an outcome. The programme for accounting to the Executive Authority and Parliament aimed to account and provide assurance to the Department of Justice (DOJ) and Parliament on performance and governance. Four quarterly performance reports and the Annual Report for 2018/19 had been submitted, and two briefing sessions were held with the Portfolio Committee.

The aim of the programme on finance and sustainability was to improve financial planning, including managing the budget cuts to ensure a balanced budget, as well as to ensure strong and best practice financial reporting to ensure an unqualified audit and optimum financial maturity. The medium term expenditure framework (MTEF) targets were approved by the Board and submitted to National Treasury and the Department of Justice (DOJ). The 2019/20 budget had been approved, and the annual financial statements (AFS) prepared and submitted to the Auditor-General (AG) and National Treasury (NT) timeously, with no material adjustments.

There was good cash flow management, despite a grant allocation reduction of R92 million, and healthy financial ratios were maintained. The main source of revenue was the government grant of R1.7 billion. The liquidity ratio remained at 1:2:1. 98% of the budget was spent and committed, and the supply chain management (SCM) policy was reviewed and aligned with updated regulations. There were functional and effective Bid Committees. More than 97.7% of Judicare and 99.3% of trade creditors were paid within 30 days of invoice. Unauthorised, irregular, fruitless and wasteful expenditure increased from 38 to 529 incidences, of which 93% were as a result of payments to sheriffs who were not registered.

The AGSA management report had four findings, three being important matters and one being administrative. It indicated that LASA maintained best practice of required preventative or detective controls for all dimensions. Under expenditure levels, R1 384 037 408 (99.7%) of the budget for salaries and related costs, R132 967 562 (98%) of the direct expenditure budget, R276 233 780 (92%) of the operating expenditure budget, and R62 087 328 (92%) of the capex budget was spent, resulting in a total expenditure of R1 861 260 058, or 98% of the total budget.

The summarised statement of LASA’s financial position as at 31 March 2019 indicated net assets and liabilities of R529 515 612. The summarised statement of its financial performance indicated revenue which amounted to R1.8 million, with expenses amounting to R1.789 million, leaving a surplus of R37 556 411. The summarised cash flow statement indicated an amount of R261 334 044 in cash and cash equivalents, representing an increase in cash and cash equivalents of R26 million.

Under governance, there was 98% compliance with statutory requirements. All incidents of non-compliance with the Preferential Procurement Policy Framework Act (PPPFA) and Public Finance Management Act (PFMA) were related to the conduct of individual employees and suppliers, resulting in irregular expenditure. Under combined assurance, aimed at independent monitoring and an oversight unit providing combined assurance, 99% of the audit coverage plan target was achieved. The internal audit department (IAD) provided third level assurance on the adequacy and effectiveness of controls and systems. Six additional projects were completed outside the approved coverage plan, resulting in an overall achievement of 172 (102%) audit projects against the annual target. Fraud awareness workshops were conducted at eight local offices. The legal quality assurance unit completed 99.7% of the assessments planned for 2018/19.

There was an improved level of risk maturity in the organisation. A risk management strategy and plan was in place to manage and mitigate risks. Risk was effectively managed during the year, receiving risk registers for review and scrutiny. The Board had approved the risk appetite and risk tolerance levels. The combined assurance model ensured that LASA had an adequate and effective system control environment. The combined assurance report was refined to include further risks, and quarterly reports were completed by all assurance providers and submitted to the Board.

Regarding internal business processes, the regulatory framework programme aimed at ensuring the promulgation and implementation of the Legal Aid Act and the gazetting of the Legal Aid Regulations (policy) and Legal Aid Manual (procedures). There were no new amendments to the LASA Act, although there were amendments awaiting legislation. The means test as contained in the Regulations was amended, and came into operation on 29 March 2019. Increases to the Judicare tariffs as contained in the Manual, to cater for fees and disbursements payable to private practitioners, had been gazetted on 1 October 2018 and came into operation on 30 November 2018.

Under financial management, the aim was to maintain a strong SCM framework and practices. The SCM policy was implemented, and deviations above R1 million were reported to National Treasury for approval and submitted to the Board for noting. Fruitless and wasteful expenditure of R1 619 was incurred and R649 recovered, and irregular expenditure of R4 760 659 was incurred due to challenges in procuring office accommodation.

Regarding employee and organisational capacity and innovation and learning for 2018/19, the staffing programme aimed for appropriate staff at all service delivery points. All service delivery points were appropriately staffed, with staff recruitment at 92.8%, which was lower than the target of more than 95% due to budgetary uncertainty, and staff turnover was at 5.8%. The annual training plan (ATP) and annual training report (ATR) was submitted timeously to the Safety and Security Sector Education and Training Authority (SASSETA). There would be a significant change in the performance against set targets for employment equity due to budgetary constraints and low levels of staff turnover. Staff training had been completed and targets for training of support staff and paralegals exceeded, while legal staff training had reached 79% of the annual target.

The employment value proposition (EVP) had exprienced pressure due to budgetary constraints and lower total cost of employment. While EVP remained effective in talent attraction and retention, employee satisfaction levels declined due to the reduction in financial aspects. In respect of the Top Employer standards, Top Employer South Africa accreditation was received for the tenth consecutive year, and industry winner for the public sector segment for the fourth year. Under employee relations, grievances and disciplinary matters were addressed timeously, and were within the annual target. The annual Achiever Awards ceremony took place, and special day events were held by employees. The Leadership Development Programme was supported by continued education and training in critical leadership competencies.

The aim of the IT programme was to maintain and modernise the IT platform. There was Wide Area Network (WAN) availability at an average of 96.64% in relation to the target of 95%, with the user experience survey on IT systems rated from fair to good. In terms of LASA media, marketing activities and stakeholder management, the last independent brand study showed brand awareness increase to 66%, but due to budgetary constraints the survey was now conducted biennially. The programmes which drove the increase in brand awareness were:

  • LASA’s marketing initiatives;
  • Community outreach and public education;
  • Legal Aid Advice Line services; and
  • Corporate branding and advertisements.

59 media engagements were held with journalists and editors; there were 2 431 media mentions in print and broadcast media; 579 roundtable discussions were held with partners to enhance access to justice with communities; and quarterly stakeholder newsletters continued to spread information on LASA’s service offerings to clients.

The 2015-2020 strategic plan was successfully implemented through the 2018/19 business plan, and more than 90% of targets were delivered. In the climate of fiscal constraints, all programmes in the strategic plan were maintained at the best levels possible and the review for 2019/20 was completed and approved by the Board. Strategic shifts set for 2015-2020 were tracked through the performance on outcomes and maturity scales.

Discussion

The Chairperson commented that one could immediately express concern over the effect that the budget cuts would have on the court coverage, where LASA had indicated that it had dropped by about 7% in the DCs and 10% in the HCs. The factor here was that notwithstanding the engagement with National Treasury, there was still a R92 million shortfall for 2019/20, as well as for the next three years. This was of great concern, because it affected the whole chain of the court system. LASA had said that about 80% of representation was at the HC, and 70% at the DC for all appearances in criminal courts. This meant that in matters or trials, almost 95% of cases held hearings, and could not proceed with that matter. This was one of the cardinal aspects of postponements. This was noted with great concern, and the Committee would certainly engage with the necessary parties themselves.

LASA said that there had been a 6.5% decrease in new children’s criminal matters. How was the Committee to perceive this? He did not want to think that there were fewer offences committed by children. Was it just that the children did not reach LASA? Were they being represented somewhere else? Were they in the community? It was understood that the means test of LASA had been changed in March. What was the impact of this? When LASA said that they had reported 52% of clients were awaiting trial and 21% had rejected bail, this had attracted his attention. At what level were the amounts? Were they high or low? LASA could submit this if they had that kind of information, but perhaps it had assumed a position with the National Prosecuting Authority (NPA), in which case it should indicate so.

Ms N Maseko-Jele (ANC) commended the good work by the outgoing CEO, Ms Vedalankar. As a Committee, it would be proper to thank her for the work that she had done. She would have to come back and visit the Committee and share her experiences with the new CEO. How far was the process of recruiting a new CEO? Although it was seen that the staff were back after some grievances had been made to LASA, and the staff having to strike, could the Committee get a report or assurance plan as to how to avoid this going forward? Although the issue of the reductions was noted and the presentation had mentioned the morale of the staff due to the reductions, what could be done to keep the momentum so that the Committee and LASA did not find themselves in a situation where the poor and vulnerable got affected because of future strikes?

She referred to the issue of those who were using hearing aids, where it was reported that something had been done on the website to provide assistance. However, what had been done for those people who did not have access to technology, and those from rural areas? What plan did LASA have in assisting them, in also having the information shared with them? Regarding the procurement of offices and sheriffs, what was LASA thinking of in terms of ensuring that it was not repeated in their work going forward? Lastly, regarding the rental of offices and considering the state of the economy and reductions, was there any way that LASA could try to get some offices where payment was not necessary? There were government facilities that were not used. A new problem was being encountered where government buildings that were dilapidated and not being used, were being occupied by people making use of them. Some of the buildings were not even being renovated, as people were just being used to hire the buildings for payment of money. There had been a lot of reports on this issue, especially concerning public buildings. Could LASA not also look into this and see whether they could get something from it?

The Chairperson clarified the issue in relation to the sheriffs. The Committee knew that the sheriffs had not been on the Central Securities Depository (CSD). Should this not be taken up with the Ministry? Before the sheriffs were appointed, this would be one of the conditions for appointment every year, or this would arise within the regulations. Ultimately, if one did not pay, they were in a tight corner – something which was known.

Mr W Horn (DA) expressed the Committee’s appreciation for the long years of dedicated service of Ms Vedalankar and wished her well wherever she went, but hoped that she somehow stayed within the system to add value somewhere. The outgoing CEO had forecast that the budget cuts would ultimately have an impact. It could be seen from the presentation that LASA was of the view that there was more mediation and other avenues pursued by the NPA, so he got the sense that LASA was still at this stage satisfied that no one was left unattended to. Could the Committee be appraised as to whether LASA foresaw that representation of those who could not afford their own representation would be impacted in the near future if the budget cuts continued?

With reference to the enhancement committees, LASA possibly sat with a situation where they were represented as an entity. Could the Committee be appraised as to whether LASA felt that the enhancement committee was efficient and whether there was more work that needed to be done? Had it become a ‘tick-box’ exercise? It could be gathered from the statistics that there were more or less four meetings per year for the enhancement committee, and one for national. Was this in itself sufficient? Were the issues tabled at one meeting resolved, or was there at least an improvement by the next? As a public representative, he was approached two days ago by somebody who wanted to complain about someone at LASA. He realised that the Committee had never been informed about a complaints line, so could it be informed as to where people went if they wanted to complain about the service they received from an employee or official of LASA? 

Mr X Nqola (ANC) raised some issues because the Committee was preparing for the Budgetary Review and Recommendations Report (BRRR). He commended how the Board itself had been composed as it reflected South African demographics. However, for future purposes, it was necessary to have an addition of young blood on the Board. It was important for Parliament to commend the accessibility and responsiveness of Legal Aid practitioners. The Committee had come back from recess this week. Back at home, in his rural area, there was a court called Dalasile Magistrate’s Court. Here it could be found, on a daily basis, that when there was a court sitting there was a Legal Aid practitioner who was able to assist when a need arose. This needed to be shared with the Committee and LASA because, although there might be some challenges, it could be seen LASA was trying to stretch its wings across the board. The concept of those who were vulnerable was a very important aspect which needed to be contextualised into the legal aid context. What was meant when LASA said that they represented the poor and the vulnerable? There had been an amendment to the means test -- could the Committee be briefed about it? What had actually been the necessity for the amendment? How had it been amended?

There had been reference to buildings that were used as offices, some of which they had ownership over or were being leased out. Could the Committee be given a detailed account on the use of the offices by LASA? How many offices were there in the country? How many were owned and how many were leased? What were the challenges relating to this in terms of the LASA operations? How could it be planned so that the majority of offices utilised were owned by them?

It was inevitable that the Committee and LASA had ended up in the digital world, where a number of things were done through networks. The time for physical paperwork was diminishing slowly but surely. How far had LASA gone in digitalising its operations to ensure that there was efficiency and effectiveness? If steps had been taken, how had it affected the LASA clientele, which was made up mostly of illiterate people from remote areas? If operations had been moved towards digitalisation, had LASA been able to train employees to keep up with the new systems?

It was important for the Committee, when hosting these entities, not to merely base their engagements with them on the negatives and challenges. It was important to note where they had performed well so as to enhance their morale. The Committee had taken the position that they were not going to congratulate LASA, as it was incorrect to say congratulations when they had not done what they were supposed to have done. The Committee could not congratulate a fish for swimming. However, it commended the sterling work that LASA had consistently been showing, as it related to the Auditor-General’s annual assessment. It was important for LASA to remain a strategic instrument to create employment in the country. When the Committee went around and spoke to people, part of the central things noted was the rise in the unemployment rate. However, LASA had been at the centre in addressing such a calamity in our society. This was something where the Committee had to applaud LASA for doing such sterling work, as they had led consistently. Some institutions were doing well in addressing the unemployment rate, which was caused by many factors, some of which were beyond the control of the Committee or LASA. LASA had been consistent in this regard, and it was worth noting that it was in a strategic sector in addressing issues of unemployment.

Mr Q Dyanti (ANC) thought the LASA presentation was quite long, adding that if he had been chairing the Committee, he would have asked LASA to summarise. LASA had given the Committee the report, so when they had come to the meeting, he had been of the view that there should just be questions. LASA had said that legal assistance and advice was provided in 724 253 matters. He was interested in the matters where LASA had missed out. This number was what LASA took in because of their capacity and what they could do. Did LASA know the number of matters out there that had been missed out? This needed to be shared with the Committee, because once they knew the number it completed the picture for adding more pressure regarding budget cuts. For now, the picture was incomplete. He asked for details of cases to be broken down by provinces, offices and communities involved. They needed to identify where people had to pay for transport to access LASA offices because of their location.  

He addressed the incoming CEO, Ms Rebecca Hlabatau, saying she was stepping into big shoes, and urged her to provide her own footprint by taking LASA’s successes to a new level in her own way.

Budget cuts had occurred in all departments across the country, and it was not certain whether LASA had made a case for pushing against them. The case should not be that LASA had maintained an unqualified audit, as this was expected of them. Could LASA share three things that could make a case as to why the Committee should support it in saying that its operations should be insulated from budget cuts? It was no use to just hope for National Treasury to look the other way when LASA was not aggressively making a case. The case should mention the work that LASA did so that when the budget was cut, it meant that in practical terms communities and people would not have access to legal services. He looked to LASA coming back and talking to this point so that there was a case to put forward.

Under his watch, irregular expenditure was a no-no. There was irregular expenditure from R7.1 million to R10 million awaiting condonation. This was irregular expenditure, yet LASA complained about budget cuts. It had not been done by an external force, and was supposed to be within LASA’s control in most cases. There was a need to explain this. The Committee needed to be given a proper plan as to how to avoid this irregular expenditure, as it was the first thing that would kill LASA’s case. What had this irregular expenditure been, and what were the consequences for those involved?

He said the sheriffs were in the same home as the DOJ and Correctional Services – they were a part of the Committee. A way needed to be found so as to not deal with them as outsiders. If the sheriffs were such a standard challenge in LASA’s work, what were LASA’s suggested plans, given the fact that they were all found within one portfolio, without saying that they must do their work because it was legal aid? Could a more constructive engagement be found in this regard?

Could LASA provide detail as to how the budget cuts would affect their posts and coverage at the courts? Had LASA had a session with National Treasury to discuss the cuts with them? If so, what had been the outcome, and if not, had LASA thought about having one? This had also been done by the Public Protector.

There was no legal aid without people and employees. LASA might receive awards, but they were being judged on how they managed their people. He referred to the annual report, and said what was presented to the Committee was what LASA chose to present. The report provided more detail than what was presented. Sometimes, the hidden problems which the Committee needed to get into were never presented. Table 17 on page 101 of the annual report depicted the problems and vacancies per province. The Western Cape, for example, had the biggest rate of vacancies at 9.9%. Was there any explanation for this? What was the reason for this besides the budget cuts? Page 102 referred to employment changes. What the report was missing was that it did not state what period this was for. Does one assume that this was the reporting period? When one did not state it, then it was not clear. However, his interests lay with a consistent question. There were one or two levels which gave life to an organisation -- the professionally qualified and skilled workers. In this regard, LASA had 269 appointments in this reporting period and 286 terminations, which meant that in 12 months more people had left the organisation than had entered. What were the reasons for this? People were leaving LASA, the best employer. What was the issue here? Why were employees running away? Or was LASA so good that they had trained the employees for better jobs? The reasons given were resignations (117) and end of contracts (256). However, LASA did not state what period this was for. Thus, the picture did not look good for an award-winning organisation. LASA needed to ask in the exit interviews why employees were resigning in such big numbers. Were exit interviews being done?

Table 21 on page 103 referred to Labour Relations: Misconduct and Disciplinary Action. For 12 months, this was an alarming number, as there were 10 verbal warnings and 26 written warnings. What was happening here? Was there instability? Were they fired? Was discipline being lost? This was what the report was saying – it was not being taken from anywhere else. There were also five final written warnings. Perhaps the positive thing was that it had stopped here, because no dismissals could be seen during the reporting period.

The Chairperson commented that now Mr Dyanti knew why he had added the proposition about the sheriffs, and thought that he could get around it.

LASA’s response

Judge Makume said that some of the questions could be answered immediately, but LASA would have to come back with written responses for others.

In response to the question as to how far LASA was with the appointment of the new CEO, it seemed as though Ms Hlabatau was not aware that she was present at the meeting, and he thought that she should speak for herself. There was currently a handover process.

One of the issues that had come up regularly was around the sheriffs and expenditure. It was possible for this to be itemised, but LASA was not responsible for the appointment of sheriffs who were the main people influencing the irregular expenditure. The second issue concerned landlords. When entering into contracts, a facility would qualify but somewhere down the line they no longer met LASA’s needs. It was in need of space to be able to deliver services. It had entered into five-year contracts and could not pull out immediately because of them. Thus, it was trapped in the situation.

Sheriffs were a constant problem that had been discussed with the Sheriff’s Board. There was a time when LASA had engaged with the Board itself to ask its members to comply, as it did not have jurisdiction over them, but there had been no response.

Ms Vedalankar thought that LASA should be able to respond to most of the questions in the time that they had left. For the remaining questions which required data, LASA would send the Committee written responses.

Regarding the extent to which LASA had engaged Treasury on the budget cuts and what had been happening, since the budget cuts it had engaged Treasury on an ongoing basis within various departments. LASA and the Chairperson of the Board had met with the Minister to discuss the impact of this. 2018/19 had been the worst year in terms of the budget cuts, including both the shortfall and the 5% cut of R164 million. Because of these representations and engagements, an explanation was that over the years, because of the efficiencies that LASA had introduced, it was very hard for them to cut any further. A breakdown of the budget and its different aspects had been explained, which was why Treasury had then taken away the 5% cut for 2019/20. This engagement had assisted LASA and left them with the remaining shortfall. However, when looking at how court coverage had dropped, this was an indication of the impact of that budget cut. Although LASA would continue to serve clients, because of the fact that the percentage coverage of the courts had been reduced, which reflected the percentage time at each court, it meant that it took longer for people to get assisted. This would result in greater case backlogs and therefore the criminal justice system itself would work slower. The biggest concern was whether there would be further budget cuts, which Treasury was still to announce in November after the Minister’s medium term budget policy statement (MTBPS) speech. This would result in serious issues if LASA was to have the 5% cuts. In addition, this would impact on staff, which would impact on services and court coverage, so fewer people would be assisted. This was already being seen in numbers and the reduction of court coverage, as seen in the reduction of civil matters. There was no doubt that this had affected LASA. It was mindful that government as a whole had budget cuts, and that it was not unique to LASA. In the end, government could only spend what it had. If this meant reduced services, it was in this spirit that LASA had made representations, but understood that this was something that they had to deal with – they were just clarifying what the impact was.

On the issues relating to staffing in the annual report, this was for the reporting period and could be taken as 12 months. Regarding the way that LASA compiled the presentations, it was happy if the Committee wanted them to respond to questions. It had prepared the briefing because this was the way in which it was done, and what they had been requested to do. It would be fine if in future the Committee wanted to change this.

Regarding all of the questions that had been raised on irregular expenditure and HR, LASA did not believe that the figures in the report were something to be alarmed about. When looking at it in terms of being benchmarked against any best practice, this was in fact lower than the norm. This was why, for example, when LASA reported on the turnover of staff, they had said that it was less than 6%. Any industry norm was over 10%, and this reflected that people were staying. Numbers could not be used, as it had to be looked at in this context. Whether one was looking at discipline, this was also benchmarked, and it was less than 1%. The point was that where LASA had to manage performance, they would continue to manage performance and address issues as they arose. If in this context those were the numbers that came through, they showed that people were being held accountable for their performance so that where they were not performing, LASA would respond to it. This was not something that was cause for alarm, as LASA saw it as an organisation that was in charge of its staff.

On the issue relating to staff relations, this was something that would have concerned most people when they read about what was seemingly a strike. There was a strike, but it had lasted for two days and had largely affected the Gauteng court. LASA had a full report on the number of courts that were affected, which had been provided to the Board and the Minister. This had been directly linked to the budget cuts. The reality was that budget cuts had created difficult choices in relation to balancing the cuts between services to communities by reducing staffing, or through cuts in staff benefits. It was within the balancing of these two alternatives that LASA had had to make cuts to staff benefits. This had impacted on staff and was why they had been feeling unsettled, because it could affect jobs as a result of the budget cuts that were continuing. These issues would continue as long as the financial uncertainties and constraints remained.

Mr Nair addressed the budget cuts and their implications for the courts. Any reduction in capacity would result in a reduction in court coverage. There was an ongoing process at the moment within the cluster to look at the courts and their usage, and whether the infrastructure should be rationalised in order to accommodate the cuts. This was a very important project, as LASA felt that there were some courts which could be reduced in terms of the number of days they sat, as some courts were not as productive as they should be. If there was a reduction in the infrastructure and the number of courts that needed to be served, it would to a certain extent cushion the fact that numbers had decreased within the sector. When looking at the numbers provided for the three years, as indicated in the presentation, one would notice that the number of new matters coming through the courts had also decreased. To a certain extent this also played a cushioning effect in terms of the reduction in court coverage.

LASA had reached a stage now where any further cuts may not necessarily be able to be absorbed without it actually impacting negatively. The number of backlogged matters at the RC and HC had increased. A reason for this was that there had been a reduction in capacity. This meant that, legally, if LASA reduced their capacity by 10, 100 or 200 staff members, the number of new matters would not decrease because LASA would still have to take them on. However, the time and manpower that LASA had to process this would be reduced.

Regarding children’s matters, and how to proceed in the reduction thereof, to a certain extent LASA and the Committee should be happy but concerned at the same time. They should be happy in the sense that the Child Justice Act was intended to ensure that the number of children that were processed through the criminal justice system was reduced. Reducing the number of children meant that the impact of the Act may be realising its results. The Committee could be assured that LASA was really observant and monitored children in custody very vigilantly. When a child was in custody, LASA would immediately liaise with the relevant stakeholders and ensure that all children were represented. There were some studies currently taking place to determine if the numbers were caused by the fact that children were not being arrested and processed or diverted etc. LASA was happy that when children entered the criminal justice system, it ensured that they were immediately represented. With regard to the 42% in custody as at the end of the FY, this would be at that particular point in time, and could be matters that went to court on that day or the previous day.

Regrettably the systems at the moment did not necessarily input the bail amounts for each person. LASA was relying on other stakeholders to provide this information. LASA did receive information, for example, on how many people were on bail for R1 000, and had started to monitor this. In the recent past, it had now started to look at bail very closely, such as what the bail amounts were, and had started to put this into their system. LASA was also looking at whether periods had been extended beyond what they should have been, to process this through the system. This was an indicator that LASA wanted to work with closely, in respect of those who were in custody. The Committee could also note that LASA worked a lot with remand detainees who were in custody for over two years. A particular programme would be supported, plus the provision of information on each person in custody for two years, so that other departments could also assist.

With regard to Legal Aid, those being refused and the outcome of appeals, in terms of criminal legal aid services, more than 99% of people who apply for legal aid were actually granted legal aid. There were very few people within the criminal legal services who were refused because of their means. Where people were excluded due to the means test, LASA always looked at the constitutional impact of being refused and how it would affect the person. When LASA found that a person would not be able to afford legal representation for the duration of a matter, legal aid was still provided alongside a small contribution from the person involved.

The impact budget was mostly covered. The National Executive Committee (NEC) met only once or twice a year, so the impact was not very significant in getting the key leadership players in each sector and getting an opportunity for the Chief Justice to delve into key issues. There was an important role for each one to play and it was about ensuring that the leadership of each structure took responsibility for the obstacles. The key work was done by the Provincial Executive Committee (PEC), where all committees and provincial executives were actively involved.

With regard to the success rate of the efficiency within the committees, this was largely dependent on the role of the Judge President in that province. When the Judge President was active and could see the benefits of it, only then would the committee benefit. Where the Judge President did not take the committee seriously, regrettably other committees would have to be formed to ensure that there was good and efficient coordination within the sector.

With regard to the number of matters missed out on, a study had been done a year or two ago, where LASA had tracked every person through the process of a three-month period, and only 1% of accused who appeared at the trial stage of proceedings at the HC and RC who had been unrepresented. This was not because they had not been offered legal aid, as they would have been offered this many times but may have been pressurised by the Presiding Officers to refuse. In the DC, there had been 6%, so by and large in the criminal justice system, there were very few matters that were missed and those who were unrepresented were not as a result of their not being offered legal aid.

Mr Hundermark dealt with the means test, which was contained in the Legal Aid Regulations. Any changes to the regulations required Parliamentary involvement, and therefore the Committees in both the National Assembly and National Council of Provinces had been required to consider any changes to the regulations. Thus, the means test had come through the previous Committee and was subsequently gazetted. The increase meant that more people would be covered by the Legal Aid Scheme, and it had been becuse LASA had not adjusted the means test over a number of years. When looking at the value for money in terms of Consumer Price Index, LASA needed to adjust it so that they did not have people who should fall within the means test, falling out because the value of money had decreased. Two assets were looked at -- income after tax, and assets in terms of whether they were moveable or immovable, so that the fixed assets could be set in terms of the means test. When looking at a single person, it was R7 500 after tax, R8 000 household income after tax, and immovable assets up to R128 000, such cash in the bank or immovable property with a R650 000 net value. So, one had a house of valued at R1 million but owed R500 000 on the bond, the net value of the property would be R500 000, so one would not be excluded. The means test was an easy administrative way for LASA to determine whether one qualified, but it was not the be all and end all. Both offices had discretion in relation to income by allowing someone to exceed by up to R1 500 a month. The Provincial Heads could allow someone to exceed up to R3 000 in income and up to R100 000 in assets. If someone still fell beyond this, there was a further level of appeal, where LASA in essence applied a constitutional means test, which asked whether one was able to afford the costs of representation, specifically in terms of the complexity and duration of the case which impacted the costs, as well as what their income and expenses were, and whether they would be able to afford the costs or not. In criminal cases, this specifically became the driver behind LASA in terms of what they would consider and whether they would grant Legal Aid. In those instances where persons did exceed the specified amounts, in criminal cases LASA did levy a contribution in terms of what was allowed in the Regulations, read with the Manual.

In terms of Legal Aid refused, specifically on the civil side, the three main areas that would be refused were matters that were excluded from Legal Aid. The Regulations set out the matters that were not covered or excluded -- matters where LASA would assist but with certain limitations, like in maintenance and domestic violence matters, where there were limitations because of the issues on quantities, matters which fell beyond the means test where they exceeded beyond where LASA could assist, and merits in civil cases. Merits were not looked at in criminal cases, as one was entitled to representation as of right, irrespective of what was thought regarding merit. In civil matters, merit was considered very carefully in that to spend the taxpayer’s money on unmeritorious cases would not be a good use of expenditure, and would therefore exclude others from assistance. Thus, the merit test was done very carefully as to what the prospects of success for the case was.

On the sheriffs issue, LASA had engaged at National Treasury with the DOJ, the Minister’s Office, and the Sheriff’s Board.. It did not get to a stage where it had been resolved. This specifically prejudiced civil clients, because when one wanted to initiate any civil process one had to use a sheriff of a district to be able to serve the process. National Treasury understood the issue and the difficulty was that LASA could not force sheriffs that were appointed. LASA had asked that in the process of appointment, the issue of CSD be added be added in the criteria as a requirement in terms of the legislation for Sheriffs to be appointed. It was currently not a requirement, which was the difficulty that was being faced. Therefore, the legislation would have to be amended to include it as a requirement that Sheriffs must be registered with the CSD. Sheriffs did not generally get work from LASA, as most of their work came from private practitioners. 50% of the sheriffs around the country were registered, but it was the others that did not want to go through the process. This was why LASA put systems into place so that when sheriffs were used, they would be able to say exactly what they were being used for and how much was spent, so that exact numbers could be given to the Committee.

To define the poor and vulnerable, and what was meant by this, LASA had changed to the word ‘indigent’. For LASA, it was more of an issue around what the Constitution required of them. The means test said that anyone who was unemployed or did not have an income would be regarded as having qualified for assistance, subject to whether it fell within the types of matters that LASA was authorised to attend to in terms of the Regulations. Vulnerable groups obviously included women, children, persons with disabilities and mental health care patients. Recently it had been found that there were about 600 000 children with disabilities who were not at school. LASA had followed up after hearing this statistic, which came from StatsSA, and there was already engagement with another service provider, LASA had been engaging with the National Association for the Physically Disabled to be able to understand how to better support people who had disabilities.

Regarding the gap, and how many matters were being missed, Mr Nair referred to the studies and research done, and there was an attempt to do similar research from a civil perspective, but this was very difficult. General numbers could be taken out of it. It was known that there were 250 000 new maintenance matters lodged in a court in a year. There were also 250 000 domestic violence requests lodged every year. Around 150 000 matters went to the Commission for Conciliation, Mediation and Arbitration (CCMA). If a total was taken, it could be two to three million, of which LASA was assisting on 50 000 from a civil perspective within the available capacity. It was very difficult to determine, because a record that was not kept at the courts was how many people were going to court unrepresented. One would physically have to look at every single court file to research this and be able to quantify how many matters were going to court unrepresented. However, LASA did know the numbers going to court, the numbers they represented and the gap between the two. It was difficult to give a definitive answer, but LASA could share the numbers that they had in terms of research.

When considering the issue of budget cuts, the number of employees that had left had been higher than the number brought back in. It should be understood that for the first nine months of the FY reported, LASA was expecting a budget cut in the following year, where more posts would have had to go. It could not justify recruiting someone who was coming in for six months, after which there was no position for them, as the principle of last-in-first-out would come into play. Thus, LASA had frozen the posts. When looking at civil legal aid statistics, at the end of Q3 for the FY, there was 3.8% fewer staff than in the previous FY. In Q4, it had increased by 0.4% because LASA was able to start recruiting, as they had realised that they would not have budget cuts this year. This was the impact around the uncertainty of getting budget cuts, because one did not want it to impact on people’s lives. This was LASA’s concern, as it was about people, their lives and their employment.

Ms Hlabatau responded on the numbers of offices being leased, and said there were 64 local offices, 64 satellite offices, six provincial offices and one national office. In total there were 135 offices, and LASA owned seven buildings, while the Port Elizabeth building was in the process of being transferred into their name. Three offices were being leased from the courts, which left a substantial number of 124 offices which were being leased. On average, LASA went out on tender to get 25 offices, because the leases were over a five-year period. It was through this that it could be found that, especially in the deep rural areas where some of the landlords who had been CSD or tax compliant, were no longer tax compliant, and in order to ensure continuity of service delivery LASA would continue with the lease to improve on irregular expenditure. Regarding the use of vacant buildings, especially those belonging to government, LASA had engaged the Department of Public Works but had not been really fortunate, although they would continue their search.

For irregular expenditure, LASA had zero tolerance, as it did not target to include any irregular expenditure. The irregular expenditure was mainly caused by the office leases and sheriffs, but it had not increased year on year.

Mr Horn followed up on his request for someone to send a complainant to. He hoped that this was not an indication that there was no system.

Mr Hundermark explained that a complainant could normally go to the heads of the national or provincial offices. Their contact details could be found on the back of the report. LASA had also introduced as call centre which could also act in taking complaints. There was a web page, so every single call that came through the centre would be recorded and placed on to the web page. This would be sent to the heads of offices to investigate, respond and deal with the complaint in terms of the web page. LASA, as their own initiative, also did client service surveys through the call centre. He was pleased to say that in terms of the calls received by the call centre from clients, in a random sample used, StatsSA had brought out reports in terms of their survey which used to be the Crime Survey and was now Governance Justice Survey, which indicated client satisfaction from persons that were assisted by Legal Aid at 89%. It was good to get this independent confirmation from the StatsSA survey and the research that they had done. Every six months LASA would also send an SMS to clients, with the call centre number, asking whether they had a complaint and if so, to call the call centre. This SMS was sent out to all clients the day before the Minister came to answer calls at the call centre. If there were any complaints, the number was 0 800 110 110, where they could phone and log their complaint at the call centre. There was also an ethics hotline, which dealt with the unethical practices of practitioners, which was independently managed outside the organisation. This went through the internal auditor, who managed the process from an ethics perspective.

Judge Makume thanked the Committee for having engaged LASA. It was important for LASA to prepare for the next meeting in terms of what the Committee expected of them. The questions would be taken very seriously, and all questions would be attended to.

The Chairperson indicated that the Committee would certainly keep the communication lines open. It bade farewell to Ms Vedalankar, and welcomed the new CEO.  This was a new Committee so whatever had been said about the previous Parliament would be forgotten -- the new Committee would be starting fresh. It wanted to get more involved in this critical area of access to justice. Despite the good work, there had been limited access to justice for the poor, except for those who could afford representation – particularly in civil cases. The person accused of a criminal offence received automatic assistance. However, progress could be seen in the civil cases. The Committee would be more interested in this area moving forward and would do their bit where they could.

After the next week the Committee would be busy with the BRRR. It now had some kind of definite initiative as to how to engage Treasury on certain aspects. It would look at the quarterly report and if there were any issues, they would be raised at the next meeting.

The meeting was adjourned.

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