Legal Aid South Africa Quarterly performance

Meeting report

Mr Nkosana Mvundlela, Deputy Chairperson: Legal Aid South Africa (LASA), briefed the Committee on the performance of the organisation in Quarter 4 of 2019/20 and Quarter 1 of 2020/21.

He said the impact of COVID-19 had meant that only priority cases could be attended to, and that meetings had had to be rescheduled to comply with statutory deadlines. Although training had been affected, e-learning had allowed LASA to meet its training targets. General legal advice services were not available under Level 5 of the national lockdown. Its budget had been decreased by R23 million due to a donation that it had made to the COVID-19 Fund. The organisation had also noted the budget cut of R104 213 000 it faced from January 2021, in line with adjustments made to national expenditure.

New responsibilities which had arisen for LASA as a result of the government’s policy direction related to justice in land matters and the new Land Court Bill. It had been involved in a number of meetings with the Department of Agriculture, Land Reform and Rural Development (DALRRD) and the Department of Justice and Constitutional Development (DJCD), relating to the Bill. There was also the interim transfer of the land rights management facility to LASA, pending the implementation of the Land Court Bill.

Discussion

Ms G Breytenbach (DA) asked whether Legal Aid SA had been asked to defend anyone of the 300 000 plus people arrested for breaches of the national lockdown regulations, and how many had qualified for legal aid and were being assisted. How had this affected the organisation’s workload? She also asked about the current status of the transfer of the land rights management facility to LASA, and whether it was fully resourced.

Ms J Mofokeng (ANC) asked what the role of LASA had been in regard to unlawful evictions, labour and family matters during the national lockdown. She congratulated it on its successful appeal against the labour court judgment on one of the organisation’s employees. She asked whether the organisation has a plan to embrace the fourth industrial revolution (4IR) to advance technology. What was the role of the organisation in the Emergency Response Action Plan (ERAP) tabled by the President, and the three related bills? Did LASA have any programmes to support the Lesbian, gay, bisexual, transgender, queer and questioning, intersex, asexual and more (LBGTQIA+) community and immigrants?

Ms W Newhoudt- Druchen (ANC) pointed out that LASA’s presentation had not included any numbers on its equity targets with regard to gender and persons with disabilities. She asked whether the organisation had been using virtual platforms for training. Did it have access to the Department’s audio-visual facilities in the courts? She expressed concern about the R104 million set to be cut from its budget, and asked what the impact of the budget cuts would be on its services and its functioning. Was there any way to mitigate the impact of the budget cut?

The Chairperson asked for a breakdown of the cases covered by the strategic impact litigations, and a breakdown of its briefing patterns for the 5% of outsourced lawyers.

Mr Mvundlela handed over to his colleagues to answer the questions posed by the Committee.

Mr Sethopo Mamotheti, Chief Operating Officer, LASA, said the organisation had already embraced fourth industrial revolution technology, and gave the example of its evaluation of its cyber security. It utilised cloud services and Microsoft Teams. Business intelligence had been used to enable the organisation to move forward. He commented that the utilisation of virtual training aids was very slow, but that the organisation’s employees had been encouraged to seek out online courses in the third quarter of this year.

Mr Patrick Hundermark, Chief Legal Executive, LASA, said organisation’s executive authority had been in discussions and the Department of Agriculture, Rural Development and Land Reform about the transfer of the land rights management facility. Currently, there had been no transfer of functions or budgets. The interim transfer was in discussion, but nothing had yet been effected. The first aspect of the Land Court Bill had continued to run through its normal processes.

The organisation had not been given an opportunity to resource and train employees for the facility.

Replying to the question regarding the ERAP and the three related bills, he said there was a fourth bill from the Department of Social Development (DSD), which was linked to vulnerable groups in relation to gender-based violence (GBV) that should be mentioned. The challenge there was the issue of budget and the effective costing of what was required from LASA.

Under the organisation’s current mandate, Legal Aid SA would be able to assist persons who qualified. However, it does not cover personal injury claims under its current mandate, which would be the majority of those cases, particularly where there had been assaults and rapes.

LASA had commented and furnished inputs on the three bills, including comments to the DSD on its proposed bill. It was monitoring ERAP to ensure that the organisation was resourced to take on issues where it was required.

Mr Hundermark said that training had moved on to online spaces, utilising webinars, and the organisation had converted training for practitioners on to virtual platforms. It had divided its team into two in order to mitigate the spread of COVID-19. The difficulty was that not all LASA’s paralegals had internet connectivity at their homes and could participate only in the weeks that they were in the office. It had its own internal e-learning systems which it used to continue training.

He responded to Ms Mofokeng’s question about unlawful evictions, and said that the list of matters which LASA had and was currently funding was available as a booklet on the organisation’s website. These were cases which were usually precedent-setting matters, or assisted a large group of persons. It had received a request for funding linked to the Western Cape and evictions in Cape Town.

He gave an example of how LASA had funded the Legal Resources Centre (LRC) in the silicosis litigation, and said the second silicosis matter had been settled and was in the process of being implemented. It was currently involved in a matter relating to the succession of the chieftainship in Limpopo and the Ramabulana case, which had gone to the Supreme Court of Appeals (SCA), but had been referred to the Limpopo High Court.

LASA had been involved in the evictions in Wolwespruit and farm evictions. Wolwespruit had set a precedent about consultation with communities affected by evictions, where it had been ruled that consultation could not be limited to only the chiefs and traditional leaders.

The Chairperson asked whether R23 million that LASA had donated to the COVID-19 Solidarity Fund had been donated out of the organisation’s budget. If so, why had it done so in light of the financial challenges it faced?

Mr Mamotheti said that the R23 million had been financed from LASA’s savings. It had been decided that it was not enough for the organisation to say that it was pressed financially and that it could not donate.

He responded to Ms Newhoudt-Druchen’s question about the organisation’s equity target for persons with disabilities, and said that the target was 2% and that the organisation was currently at 1.7%. He cited a lack of persons with disabilities in the pool of applicants.

Mr Brian Nair, National Operations Executive: LASA, answered part of the question regarding briefing patterns, but had technical communication difficulties and some of his answers were inaudible. He said that LASA used private practitioners for 3% to 5% of its matters. Currently, it had just over 1 000 private practitioners accredited for its Adjudicare system. This system was aligned to the Broad-Based Black Economic Empowerment (BBBEE) Act.

Ms Mantiti Kola, Chief Executive Officer: LASA, said that within the pool of external legal practitioners in the Adjudicare system, more than 70% were black Africans, and in the current financial year a policy had been approved to increase women’s representation. The organisation had witnessed an improved number of women on the panel of private practitioners due to the amendment.

The Chairperson asked about the briefing pattern on the bar.

Ms Kola said that LASA tried to ensure that the bar was representative, but that the challenge was availability. Often when services were required, those available were not in line with the organisation’s transformation agenda. She said that transformation targets were included in the briefing pattern.

Mr Hundermark said that the briefing patterns and policies contained within LASA’s manual needed to be reviewed every two years in line with the regulations of the Legal Aid Act. Currently, there were amendments which would be tabled in Parliament in the week following the meeting before the Minister could gazette them. He stated that if the Committee would like to review the details of how the policy was set out, these were contained in clause 4.4.2 of the manual on page 44.

The organisation monitored the Adjudicare system and the practitioners receiving funding. It balanced the number of cases per practitioner, based on how much these practitioners were earning, to get a fair distribution of earnings across the Adjudicare system. He described Adjudicare as an automated system that ranked according to its empowerment criteria, and then usually called up four people for an instruction and sent out the instruction via SMS. The practitioners were then given 24 hours to accept the instruction. If the person ranked number one out of the four answered before 24 hours, they were automatically allocated the instruction.

Ms N Maseko-Jele (ANC) asked about Ms Kola’s comment on availability, and whether Legal Aid SA could provide the Committee with the details of those who were contacted but were not available.

Mr Mvundlela thanked the Committee for the opportunity to make LASA’s presentation. He expressed his concern regarding the organisation’s budget cut, which would affect its court coverage.

The Chairperson said he would await the information requested by Ms Maseko-Jele, as it was important in respect of the Committee’s inquiry into LASA’s briefing patterns.

The Committee did not support the organisation’s budget being cut because of its important mandate to represent those who could not afford legal representation. The effect of the budget cut was not only a financial matter, but a constitutional one, as people were being deprived of proper legal representation.

The Committee was pleased with the briefing provided by LASA, which was “a high performer.” The organisation had provided reasonable explanations for situations where targets had not been met. He noted the organisation’s 19 consecutive clean audits and that it had received the “employer of choice” 11 times. He spoke of a request that he had made in the past for the sharing of best practice between LASA and the Department of Justice and Correctional Services, which had not been able to qualify for a clean audit. This would help with an improvement in the performance of the justice system. He said there was a need to approach the Minister again regarding this.

The meeting was adjourned.