Legal Aid SA on allegations aired on Enca; Adoption of Recognition of Customary Marriages Amendment Bill

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Justice and Correctional Services

12 February 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services, 12 February 2021

The Committee was briefed by Legal Aid South Africa (LASA) in a virtual meeting on the allegations that were aired in an eNCA Checkpoint episode on 26 January 2021, which had highlighted its incapacity to render adequate service delivery as mandated by the Constitution.

The LASA delegation initially requested that the Committee reschedule the meeting to allow its Board of Directors to adopt a unified view and establish the processes that would be followed going forward. This was rejected by the Committee, which argued that LASA should have already met to consider what was a very serious matter. This type of delay was the very issue that people were complaining about.  

LASA reported that the complaints aired during the broadcast were relating to four divorce matters. All the issues were being fully reviewed and consultations being arranged with the relevant clients to furnish feedback and obtain further instructions where required, and to determine the way forward. While some of the allegations were unfounded, LASA’s independent investigation had revealed that there were gaps in the delivery of the affected clients’ service offerings, especially relating to unnecessary delays. These were being addressed to prevent a recurrence.

Members expressed concern regarding LASA’s process for the selection of its legal practitioners, and the measures in place to monitor the work done. There was a need to move away from a paper-based system, where nothing was filed electronically, and embrace a modern digitised system. There also needed to be a foolproof system to ensure files did not go missing. Members said it was clear that LASA was very aware of its challenges, especially regarding the huge caseload of its legal practitioners. They also acknowledged that clients were happy only when they had won their cases.

The Committee appreciated LASA’s frank admission that its existing controls pertaining to the delivery of quality legal services had been bypassed, with its own systems not being able to identify unethical conduct and unethical legal practitioners. It was paramount that the LASA Board look into tightening up these control processes. LASA was one of the best performing entities in South Africa, and the challenges identified must be addressed immediately to ensure that its standards were maintained.

Regarding the letters of complaint against the Head of the SIU and the process that had been followed, the Committee had received correspondence from the Ministry that a panel had been appointed to investigate the allegations that had been levelled. There were challenges involved, as the Ministry had to determine who the employer of the Head of the SIU was. This required further discussion with the Ministry and the Presidency.

The Chairperson read from the Committee’s draft report that the Committee, having considered the Recognition of Customary Marriages Amendment Bill [B12-2019], passed by the National Council of Provinces and returned to the National Assembly for concurrence, agreed with the amended Bill. The draft report was adopted.

Meeting report

Introductory remarks

The Chairperson welcomed Members and the delegation from Legal Aid South Africa (LASA), which consisted of:

Judge Motsamai Makume, Chairperson of the Board of Directors

Mr Nkosana Mvundlela, Deputy Chairperson

Ms Mantiti Kola, Chief Executive Officer

Mr Patrick Hundermark, Chief Legal Executive

Adv Brian Nair, National Operations Executive

Mr Sethopo Mamotheti, Chief Operations Officer

The purpose of this meeting was for the Committee to be briefed by LASA on the allegations that were aired on the eNCA Checkpoint episode of 26 January 2021, which highlighted the incapacity of LASA to render adequate service delivery, as mandated by the Constitution. The second item on the agenda was for the Committee to discuss the letters of complaint regarding the Head of the Special Investigating Unit (SIU) and the process that was followed in that regard. The last item on the agenda was for the Committee to consider the draft report on the Recognition of Customary Marriages Amendment Bill [B12-2019].

The Chairperson said it was of utmost importance that the matters raised to the Committee, such as the allegations against LASA, were addressed as a matter of urgency.

LASA request to postpone the briefing

Judge Makume, Board Chairperson, thanked the Committee for the opportunity to respond to the allegations made. He indicated that the Board of Directors had not yet adopted the report that was before the Committee. The Board had delegated this issue to fast-track the adoption of the report. It would not be fair to the Committee to receive a briefing based on a report that had not yet been adopted by LASA’s Board.

Mr Mvundlela, Deputy Chairperson, thanked the Committee for the speed at which it intended to deal with and resolve the matter. Given that the Board had not yet adopted a unified view or established the processes that would be followed going forward, he requested leeway from the Committee for the Board to thoroughly discuss the matter before being called upon again in the future to appear before the Committee. The Board had scheduled an urgent meeting on the matter this month to review the complaints received. He requested that the Committee consider rescheduling the briefing.

The Chairperson noted the request to postpone the briefing to another date that would accommodate LASA’s Board of Directors, acknowledging Mr Mvundlela’s contention that the Board had not yet had an opportunity to discuss the matter.

Mr Mvundlela emphasised that LASA did not tolerate unprofessionalism or non-adherence to its constitutional mandate. The relevant issues involved would be escalated to the South African Law Society if necessary, and consequence management would be effected on those found guilty of misconduct. LASA was not making excuses on behalf of those involved.

Discussion

Mr Q Dyantyi (ANC) said that LASA had reported that its Board of Directors had not met, even though the allegations were taken very seriously. It did not intend to call a meeting of its Board before its scheduled meeting later in February. If the matter was truly that important to LASA, a meeting could have been scheduled earlier to accommodate Parliament, which deemed it important enough to address the matter immediately. The reasoning of LASA was inexcusable and illogical. It had failed to translate the seriousness of the issue by failing to call a meeting. It was practically vindicating the issues that had been complained of --that LASA postponed matters that it “takes very seriously.” This was the issue that the people of South Africa were complaining to Parliament about. There were no compelling reasons why the meeting should not proceed.

Adv G Breytenbach (DA) agreed with Mr Dyantyi on the reasons why the Committee must refuse the request from LASA, which had been deemed as the crown jewel of the justice cluster in South Africa, with many areas in which it excelled. The matter of the allegations against it had been aired on national television and was fresh in the minds of the people of South Africa. LASA’s approach to this meeting before a Parliamentary Committee was disappointing, and it had been expected that its Board of Directors would have met before appearing before the Committee. It was a day and age where Zoom was available for everyone to use as an online tool for meetings, which rendered its excuses insufficient. The matter before the Committee deserved urgent attention. The Committee should hear the briefing by LASA and exercise its oversight role and functions. If it was necessary, the Board could be called to appear before the Committee again in the future. The Committee had a heavy workload, and it was expected from LASA to accommodate Parliament in its schedule, and not vice versa.

Mr S Swart (ACDP) agreed with the sentiments expressed by Members. It was disappointing that Legal Aid’s Board had not been able to schedule a virtual meeting on this important issue before appearing before the Committee. LASA had always set a remarkably high standard, so the Committee should continue with the briefing with the added caveat that the Board had not considered or adopted the report yet. He agreed with Adv Breytenbach that the Committee had a heavy workload, and it was expected from LASA to accommodate Parliament in its schedule.

Ms W Newhoudt-Druchen (ANC) expressed disappointment that the public’s frustrations with LASA were now being carried over to the Committee. The public was waiting to hear its responses to the allegations that were aired on national television. She agreed with Mr Swart that the approach of LASA was disappointing in that it had not been able to schedule a virtual meeting on this important issue.

Ms J Mofokeng (ANC) agreed that it was paramount that the Committee hear the briefing and report by LASA without further delay. South Africans and the involved clients were waiting for responses on this matter.

The Chairperson said that the Committee noted that the Board of Directors had not yet considered or adopted the report on the allegations aired on the eNCA’s Checkpoint episode. However, the matter and the allegations involved were profoundly serious and could not be delayed without just cause. The request to postpone the meeting was refused, and LASA directed to present its briefing to the Committee. Its report responded to the allegations that had been made, and it was in the public’s interest that it was afforded the opportunity to respond without delay. This would enhance future service delivery.

He emphasised the point raised by Members that LASA was expected to have made every reasonable attempt to convene a meeting of its Board before appearing before the Committee. It was disappointing that despite the fact that the matter was regarded as urgent, LASA felt that there was no need for an urgent meeting of its Board. Allegations such as those that were raised in the eNCA’s Checkpoint episode were taken very seriously by the Committee.

Judge Makume said that the concerns of the Committee were noted, and that LASA would not go against the ruling of the Chairperson in deciding to continue with the briefing during this meeting. He said the Board would be meeting on 27 February regarding the allegations raised by eNCA.

Briefing by LASA on allegations aired on eNCA

The allegations that were aired on the eNCA Checkpoint episode of 26 January 2021 had highlighted the incapacity of LASA to render adequate service delivery, as mandated by the Constitution.

Ms Kola, Chief Executive Officer, presented an overview of the four media-related client complaints:

Issues and complaints had been raised relating to four matters on divorces. In two of these divorce matters, the mandates of LASA with the clients had been terminated -- in September 2018 and March 2020, respectively. All the matters were being fully reviewed and consultations being arranged with the relevant clients to furnish feedback and obtain further instructions where required, to determine the way forward. Where the mandates of LASA were terminated with the involved clients, the clients would be required to submit new applications for legal assistance.

Details of the four major complaints:

First complaint

In the first matter involved in the media complaints, the client had applied for LASA’s assistance in 2015 in connection with the divorce of a customary law marriage that was disputed by the other party. The matter was allocated to a legal practitioner in 2016 who had conducted a pre-trial conference and done the relevant work for pre-trial and expert notices.

In May 2019, the client had lodged a complaint with the Principal Attorney for Civil Matters, and the matter had been reallocated to another legal practitioner. The initial legal practitioner had resigned in June 2019 subsequent to being served with a notice for a disciplinary inquiry and a pending investigation that had commenced before the complaint was lodged.

During the period between May 2019 and December 2020, an investigation was conducted and found no evidence of work having been done, as the case files could not be found. This had resulted in significant delays in LASA’s ability to proceed with the matter. The client had paid out of pocket for an expert report, based on the advice of the initial legal practitioner, despite funding being allocated by LASA for when experts were required. LASA had requested proof of payment so that the client could be refunded. Payment of “cooldrink money” had been raised by the eNCA report on the matter, and criminal charges would be considered against the legal practitioner once evidence was gathered.

A follow-up consultation scheduled by LASA for 26 January had not been honoured by the client, and a new date for 10 February was set. The client’s instructions were currently outstanding.

Second complaint

Regarding the second matter, the client had applied for LASA’s assistance in September 2017 at a stage when pleadings in the court case were already closed. In the matter, the plaintiff wanted forfeiture of a government subsidy house in her favour. However, to establish a case, the plaintiff had to have contributed more to the estate, to show that there were grounds for forfeiture. The case was difficult, as both parties would have received the government subsidy and the client did not understand this aspect of the law. Five legal practitioners attended to this matter, resulting from three practitioners resigning and another practitioner who faced a language barrier with the client.

Because the defendant in the matter was unrepresented, attempts were made on 12 February 2018 to convene a round-table conference to settle the matter. This process was unsuccessful. The legal practitioner had withdrawn from the case in August 2018, citing that the client did not respond to various communications, and the file was closed. These facts were disputed by the client, who re-applied for LASA assistance in January 2019. A pre-trial date was sought on 29 January 2019, but a date was never allocated until a request was resubmitted on 7 August 2019. The pre-trial date was then allocated for 6 December 2019, for which the defendant did not arrive.

The client registered a complaint on 27 February 2020 regarding the delays in finalising the case. A court date for the opposed matter was requested on 5 March 2020, and a date was given for 1 June 2020. On that date, the matter was postponed. The matter did not proceed due to the COVID-19 lockdown regulations, as the court was not able to hear opposed divorces. Another client complaint was received on 18 August 2020, where it was explained that the delay was as a result of the courts not issuing new court dates for opposed divorces.

On 5 October 2020, the client requested a settlement agreement, as the defendant had been convinced by their mutual daughter to give the house to the client. The defendant refused to sign the settlement agreement, and the matter could not proceed on the court’s roll for unopposed divorces. Because of a language barrier, a fifth practitioner was appointed, and the way forward was explained to the client. A pre-trial date was allocated by the court for 12 March 2021. A consultation was held on 29 January at the Kuilsriver Magistrates’ Court with the client, where the concerns relating to proving the grounds for forfeiture were explained, as well as the purpose of a new pre-trial meeting. The court would allocate a trial date after the pre-trial proceedings were concluded. A letter detailing the discussion had been prepared in Afrikaans for the client.

Third complaint

In the third matter involved in the media complaints, LASA reported that the complainant was not currently a client. The complainant had lodged the complaint in March 2020 with the Acting Principal Attorney for Civil Matters, and had appointed a private legal practitioner who went on record on 22 June 2020. The matter was closed at LASA in September 2020, as the mandate was terminated. The client complained that the LASA legal practitioner at the Potchefstroom Local Office had not represented her at the Maintenance Court or at the Domestic Violence Court. The client had instituted both the Maintenance and Domestic Violence Court matters on her own.

At the first consultation on 5 March 2018, the complainant had advised that the matters were on the court’s roll for the next day (6 March) and requested the assistance of LASA. The Civil Manager had gone to court and found that the respondent was not legally represented in either matter. Regulation 13(2) determined that LASA could not provide legal representation when the other party was not legally represented. Both the complainant and the court were verbally informed that LASA could not assist due to this exclusion in the policy.

The complainant alleged that LASA did not assist with ensuring that she obtained primary care of the children. This was incorrect, as custody of the children was requested in the plea and counter claim served and filed on behalf of the client in the divorce matter. The client’s husband had also sought primary care of the children, and a Family Advocate’s report was sought, as per the legal requirements, to make a recommendation to the court as to primary care and contact. The Family Advocate conducted an inquiry and brought a report in August 2019, recommending that primary care be given to the father. The client alleged that there was a court order giving custody to the husband. LASA was unaware of such a court order, as the Family Advocate’s report was a recommendation to the court and did not bind the court. Legal representatives were not permitted into the meetings relating to the Family Advocate’s investigation. It was evident from the Family Advocate’s report that the complainant had placed the children in the care of the father, as she had found employment in Johannesburg and could not care for them there. The Johannesburg Legal Aid office confirmed receipt of the request to transfer the client’s file on 27 May 2019. The matter could not proceed until the Family Advocate’s report was available.

There was no record of a written termination of LASA’s mandate and a request for its file in the matter. A formal letter would be addressed to the client via her current attorney to determine if she wanted to seek the assistance of LASA again.

Fourth complaint

The fourth matter -- which was not featured in eNCA’s Checkpoint episode -- was received via eNCA. The complainant involved in the matter was not currently a client of LASA as its mandate in the divorce was terminated in September 2017. Since 2012, the complainant had been assisted with a maintenance matter, an eviction, an increase in maintenance, and a divorce action. In terms of LASA’s document management policy, all files were destroyed after five years had passed after a matter had been concluded. The maintenance order was granted against the client in 2012. The client sought legal representation in 2019 for a matter that was instituted to increase the maintenance order granted in 2012. The matter was dismissed by the court, and the original maintenance order remained in force.

The client’s divorce matter had commenced in 2012, and the local Pretoria Legal Aid office had initially assisted. When the complainant moved to Rustenburg, the client was assisted by a private law firm. An application was made for legal aid on 4 July 2016 and consultations were arranged which the client often could not attend because of ill-health. A consultation had been arranged with the client to seek her instructions in the divorce matter, to ensure that the mandate of the private attorney was terminated, and to obtain the case file.

There were two challenges in this matter, which included determining whether the original pleadings were in the court case file (which was difficult because access to the Office of the Court’s Registrar was prohibited during the COVID-19 lockdown), and to determine the whereabouts of the plaintiff in the case (who was the client’s spouse).

Assessment of the complaints received

The complaints which were identified from the four matters outlined above included failures by LASA in a variety of areas, such as a lack of communication from legal practitioners on the progress of a case, and that legal practitioners did not revert back when contacted. Legal practitioners were accused of telling clients that they had too much work to do and that if a client ‘buys them a cold drink,’ that would speed up the matter. Legal practitioners were also accused of refusing to follow the client’s instructions, and that LASA required the client to pay for an expert’s report that had been obtained in their case. Another complaint was that a legal practitioner took a case file home, which had resulted in the contents of the file being lost. The complaints also included LASA’s failure to assist with cases involving maintenance payments and orders, or domestic violence matters where clients were instructed to go to court alone. A legal practitioner had also been accused of telling a client to get a job and find themselves private attorneys. Furthermore, legal practitioners did not assist a client with getting custody of her children, and LASA’s legal practitioners were accused of sending clients to court on their own and causing significant delays.

Legal Aid’s response regarding these four matters

While some of the allegations were unfounded, Legal Aid’s independent investigation into the complaints revealed that there were gaps in the delivery of the affected clients’ service offerings, especially relating to unnecessary delays. The existing controls pertaining to delivery of quality legal services had been bypassed, with LASA’s own systems not being able to identify unethical conduct and unethical legal practitioners. The investigation had identified the gaps, with the mitigating measures (current programmes, procedures and systems) that were in place to ensure quality legal services, and measures against those bypassing the standard operating procedures and process system enhancements were currently being undertaken.

Four main gaps had been identified in the quality of the legal services by LASA.

  • Legal interventions, monitoring and support did not translate into the attributes required for individual legal practitioners to ensure positive client treatment.
  • The attributes of legal practitioners did not lead to the required legal actions and outcomes. The turnover in legal practitioners and loss of capacity was due to severe budget restraints spanning several years, which had led to an increase in delays.
  • Legal managers were not effectively managing and monitoring the quality of the implementation of clients’ instructions, as issued to legal practitioners.
  • Clients’ understandings did not always align to the legal or factual position, which leads to misunderstandings.

LASA’s legal services delivery environment:

LASA currently had several programmes, procedures and systems that were in place to measure the quality of its legal services. These consisted of its legal quality framework, client complaints, professional negligence, practitioners’ caseloads, quality assessments, and the backlog of cases. LASA’s quality assessments had shown a consistent average score over the last four financial years, with a score of 92% for the 2019/20 financial year and a score of 91% for the 2020/21 financial year. It had taken on 51 177 new civil matters and 351 061 new criminal matters in the 2019/20 financial year. The pending workload at the end of the 2019/20 financial year stood at 57 392 outstanding civil matters, and 143 789 outstanding criminal matters. The number of client complaints in the 2019/20 financial year amounted to 2 490 complaints, which meant that less than 0.6% of all clients had lodged a complaint about the service they received.

The turnaround times in criminal and civil matters were determined in conjunction with relevant stakeholders, and the matters beyond the turnaround time were regarded as backlog matters. In the District Magistrates’ Courts, less than 15% of cases take longer than six months. In the Regional Magistrates’ Courts, less than 20% of cases take longer than six months. In the High Courts, less than 30% of cases take longer than six months. In civil cases, less than 30% of cases take longer than six months.

Conclusion -- and the way forward:

LASA reported that all complainants involved in the allegations aired on eNCA had been contacted to provide feedback and to obtain instructions or schedule further consultations with LASA’s legal practitioners. Specific service recovery interventions were being rolled out, and would be undertaken by its management and employees to ensure that the process of ensuring access to justice was enhanced in accordance with LASA’s constitutional mandate.

It expressed its commitment to ensuring that its clients were assisted to make choices in legal matters by professional and ethical legal practitioners and paralegals, and to ensuring that LASA’s clients were treated with dignity and respect, and their human rights were protected and defended.

Discussion

Ms Newhoudt-Druchen asked how LASA screened its legal practitioners to ensure that they were able to do their job efficiently, or was any legal practitioner appointed, based on the area they were located in? How did LASA follow up on the work the legal practitioner was tasked with, to ensure that the work had been done? How did each Legal Aid office monitor to ensure that legal practitioners kept their files up to date and drafted the necessary reports?

It had been reported in the eNCA Checkpoint episode that LASA followed a very paper-based system, and that nothing was filed electronically. The world was transforming into the Fourth Industrial Revolution, and this was unacceptable.

Regarding the legal practitioners resigning, she asked whether LASA conducted exit interviews to establish why there were these resignations. Did it enable clients to complete a client satisfaction survey to establish whether the client was satisfied with the service provided? She expressed concern that Regulation 13(2), which stated that it was LASA’s policy not to represent someone if the other party was unrepresented, operated discriminatorily and caused cases to drag on indefinitely. Did this not discriminate against people who were looking for legal representation?

She added that LASA had only a contact number listed, which presented problems for members of the deaf community to obtain assistance and forced them to go to DeafSA to obtain assistance in the communication process, causing even more delays. It would be useful if it included a communication method where clients could send SMSs to book appointments.

Adv Breytenbach expressed sympathy for LASA, and stated that every story had two sides, with the truth being somewhere in between. Clients were generally happy in legal matters only when they had been successful, and when clients were not successful, the legal practitioners were usually blamed. She agreed that clients sometimes had unrealistic expectations of the legal process, and failures in this regard could not always be ascribed to the performance of the legal practitioner. The legal profession was adversarial by nature, and clients tended to lose objectivity regarding their own problems.

It was clear that LASA had comprehensive measures in place to deal with the issues that had been reported. It had been reported in the eNCA Checkpoint episode that LASA had admitted that some files had gone missing. It was understandable, to a degree, that files could go missing. However, there should be a system in place that was more foolproof, and this should have been addressed in LASA’s briefing to the Committee.

The caseload per legal practitioner was overly concerning. It was trite that LASA had only a certain number of legal practitioners available and an exponentially bigger number of clients. It was a risk to have one lawyer to deal with over 200 matters at once and expect them to work effectively and flawlessly. In such circumstances, case files were bound to go missing and mistakes made because of severely divided attention. LASA generally operated very efficiently, but the issue of the enormous caseload per legal practitioner had to be watched carefully by the Committee going forward. LASA provided a very essential service to the people of South Africa. When society was made aware of the limited resources, the significant caseloads of the legal practitioners, and the complexity of cases, then a serious investigation was needed into the resourcing of LASA to increase its budget and resources. If South Africa was going to keep LASA to an exceedingly high standard, then the entity must also be put in a place where it was able to meet those standards because it was adequately resourced. When its legal practitioners were required to handle more than 250 cases at once, then mistakes were bound to happen and bad publicity like the eNCA Checkpoint episode would reccur. Litigation was not an easy profession, and South Africa could not expect to overburden the legal practitioners while complaining about the quality of service. LASA was doing the best it could under the circumstances to manage the allegations regarding the quality of its service and to avoid bad publicity. The Committee must investigate the ways in which it could help it to achieve the high standards that South Africa was expecting, and to give it sufficient resources to provide quality services.

Ms Mofokeng agreed with Ms Newhoudt-Druchen that it seemed as if legal practitioners at LASA were resigning quite frequently. How did it follow up on employees who resigned? Did it not have a system to report and track employees that resigned following the implementation of disciplinary measures? It was unacceptable that language barriers acted as an obstacle to people in their quest to exercise their constitutional right to access to justice.

It was clear that LASA was very aware of its challenges, especially regarding the caseload of legal practitioners and its turnover capacity. How did it follow up on the work the legal practitioner was tasked with, to ensure that the work had been done? Were the legal practitioners who were appointed made adequately aware of their tasks and massive caseloads that they would be expected to handle? She agreed with Ms Newhoudt-Druchen that LASA needed to prepare for the Fourth Industrial Revolution and move towards a higher dependence on technology.

Were there targets for legal practitioners to have a certain number of case files open? LASA had reported that it took on 51 177 new civil matters and 351 061 new criminal matters in the 2019/20 financial year. It was surprising that the civil matters had a higher number of pending cases, given that there were seven times fewer criminal matters that were taken on. She emphasised that LASA needed to educate citizens on its available complaint mechanisms.

Mr Swart agreed with Adv Breytenbach’s sentiments regarding the adversarial nature of the legal profession. In litigation matters, there would almost always be clients who were not satisfied with the services rendered, which was directly tied to the outcome of their case. LASA faced severe challenges, especially around its budget and resources, and now as a result of the COVID-19 pandemic, it was limited in what it could achieve in court settings. The question that arose from the eNCA Checkpoint episode was how widespread the issues were within LASA.

Regarding divorce issues, the Committee appreciated that LASA had provided background to the matters and the allegations made. It had to be appreciated that issues such as gender-based violence (GBV) were implicit in these matters, and that LASA often assisted very vulnerable women who went through very tough times.

He expressed appreciation for the gaps that were frankly and adequately identified by LASA in its service delivery processes. However, the Board of Directors must consider whether its complaint mechanisms were working and effective enough. The issues of the loss of case files and a paper-based system must be addressed with urgency. He requested that the Board reconsider the policy regarding the destruction of files five years after a matter had been closed, especially given that subsequent matters did arise from previously concluded matters.

The Committee appreciated the frank admission that the existing controls pertaining to delivery of quality legal services had been bypassed, with LASA’s own systems not being able to identify unethical conduct and unethical legal practitioners. It was paramount that the Board look into tightening up these control processes. LASA was one of the best performing entities in South Africa, and to ensure that its standards were maintained, the challenges identified must be addressed immediately. Did it enable its clients to complete a client satisfaction survey to establish whether the client was satisfied with the service provided? Doing so would greatly enhance its existing complaint mechanisms.

Mr X Nqola (ANC) said that LASA had to do better in its communication with its clients and society. There would be deficiencies if the public was not adequately aware of its programmes and processes. Instituting criminal charges against the legal practitioner involved in the ‘cooldrink money’ upon production of proof of payment was not practical, because these payments were almost never done electronically.

LASA had to intervene and reconsider the caseloads of legal practitioners, because a legal practitioner could not be expected to revert back to every one of their 300 clients on a timely basis. It must be on the ground in the communities to assess the quality of its services. The narratives about LASA practitioners must be investigated to determine whether the people of South Africa felt represented by it in a fair manner that was impartial from the government and prosecutors.

The issue of the loss of case files was unfortunate, because LASA had been requested many times by Parliament to provide details of a move towards digital capturing of information. A proper report or briefing to the Committee was required on this issue.

The Chairperson asked the delegation to focus on answering Members’ questions pertaining to those issues that were operational and within the purview of the Board. Some issues raised by Members would require the Board to take policy decisions, and would thus need deliberation. There were also issues raised that required the Board to appear before the Committee again after it had considered and adopted the report on the matter. Engagements with LASA were necessary to obtain its understanding of the Fourth Industrial Revolution on the cost of doing business. The Board would have to apply their minds regarding the issues that had been raised by Members. LASA needed a comprehensive ICT strategy that would result in a comprehensive programm of automation that could address its operational needs and improve its quality and speed of service delivery.

LASA’s responses

Mr Mvundlela thanked Members for their comments and questions. It was imperative that LASA learnt from the community regarding how it could improve its systems to maximise productivity in assisting the public with their legal matters. He agreed with the Chairperson that some issues raised by Members would require the Board to take policy decisions, and thus needed deliberation. Some concerns of Members also required the Board to reconsider some of LASA’s policies.

More than 40% of South Africans at one point in their lives required its assistance. This exacerbated the fact that the case loads of its practitioners were not commensurate with the number of legal practitioners. He agreed with Adv Breytenbach’s sentiments that clients were generally happy in legal matters only when they had been successful, and when clients were not successful the legal practitioners were usually blamed. He agreed that clients sometimes had unrealistic expectations of the legal process and failures in this regard could not always be ascribed to the performance of the legal practitioner.

Ms Kola said that LASA welcomed any client feedback, as it was the basis for continuous improvement in its processes and enhanced its approach in dealing with matters as reported by the eNCA Checkpoint episode. It was committed to dealing with the allegations raised and to be transparent in doing so. She expressed disappointment that not all of the engagements with eNCA and LASA’s feedback had been aired in the Checkpoint episode, and that the conduct of the clients themselves and systemic issues in South Africa’s justice system were not considered as part of the programme. However, LASA welcomed the narrative of the eNCA, as it had aided in highlighting the gaps in its service delivery processes and quality of legal services.

Regarding the question about LASA’s screening of legal practitioners, she responded that there were about 2 000 legal practitioners in the employ of LASA who were doing their best in their challenging circumstances to manage their onerous caseloads. It should extend its quality assessments to pending files, and not just to closed files.

It conducted exit interviews with legal practitioners who resigned.

Regarding the instituting of criminal charges dependent on proof of payment rendered by the client for the payment of ‘cool drink money’ to a legal practitioner, this was the route that LASA had adopted because the client had reported that they had paid the legal practitioner through the e-Wallet banking service, which was traceable.

In the wake of impending budget cuts in the new financial year, LASA was expected to shed from its already constrained budget. This required a rationing of its limited resources to uphold its standards of service delivery. It would engage with the Committee regarding the effect budget constraints would have on the caseloads of legal practitioners and its overall court coverage.

LASA used to utilise client feedback forms, but it then became evident that the integrity of those surveys was questionable, as some of the staff members would fill them in themselves.

Mr Hundermark said that most of LASA’s systems were still paper based, except for large dockets that were available electronically. Its programme to scan and index files was very resource-intensive and unsustainable, given its limited resources. A process of digitalisation was quite resource-intensive and was an issue that had to be discussed together with the budget. LASA had submitted recommendations to the Ministry of Justice and Constitutional Development on ways in which its overall system could be improved and moved into an electronic era. However, these processes were very dependent on the digitalisation of the Department of Justice and Constitutional Development itself. LASA’s systems were being developed towards integrating its document generation system for standard legal documents. However, a system-wide integration was required to be truly effective. LASA continuously explored how it could become more sustainable in rendering its services through the utilisation of technology.

All of its practitioners were expected to report on a daily basis on the matters they were working on and what work they had done in relation to those matters -- such as whether they had gone to court or drafted documents, etc. Investigations and disciplinary actions were implemented when matters had not received adequate attention for a period of time, such as 60 days.

Regarding Regulation 13(2), there was room for amelioration for legal assistance to be granted where there had been a substantial delay or an abuse of the system of justice. Whether the policy surrounding Regulation 13(2) needed to be amended was a decision that had to be taken by the Board of Directors.

He said LASA had an SMS number and a ‘Please Call Me’ system available, and it was listed in the Get Help section of its webpage. People were also able to submit web enquiries online, which accommodated people with hearing impairments or disabilities. It could work towards improving the website’s navigation to these functions.

LASA had to work towards filling its vacancies, which would aid in slightly reducing the caseloads of the legal practitioners. However, the impact of the budget cuts on its capacity could not be under-emphasised.

Adv Nair said it was the exception to the rule when files were lost. It was not a common practice at LASA as it was continuously monitored on a daily basis. It also had a quarterly pending file verification process that was a controlled process at its offices. During this process, every file that was pending had to be verified by the office manager. The last time this process was conducted was three months ago, where 177 000 files were reviewed, and it was found that only 13 files were not physically present. The monitoring of time spent, and the work done on every case, depended on the legal practitioner recording the detailed work they had done relating to a particular matter.

The Chairperson thanked LASA for the responses, but stated that the matter was not yet concluded as the Committee were awaiting the input of the Board once it had considered the report. The Committee would schedule a meeting in the second quarter of the year to receive a comprehensive briefing from LASA and its Board of Directors regarding the issues discussed in this meeting.

Mr Mvundlela thanked Members for their comments and questions and for the opportunity to engage with the Committee. He appreciated the opportunity granted to it to reassess its policies.

Letters of complaint regarding Head of the SIU

The Chairperson said Members would recall that the Committee secretariat had been asked to circulate the letters of complaints against the Head of the SIU, and that these would be discussed after the briefing from LASA. The Committee should establish timelines to deal with this matter timeously. He had interacted with the relevant Ministry, and the Minister had assured him that a panel had been appointed to investigate the allegations that had been levelled against an executive member of the SIU. There were challenges, as the Ministry had to determine who the employer of the Head of the SIU was.

Mr Swart thanked the Chairperson for the feedback regarding the letters of complaint against the Head of the SIU. The allegations in play were profoundly serious, and had to be addressed expeditiously. He asked for clarity on the nature of the inquiry of the panel appointed by the Minister. The President should have considered an inquiry, because in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996, it was the President who appointed the Head of the SIU. The issue of disciplinary action being taken against the complainant was concerning.

Mr W Horn (DA) said that the Committee must determine whether the issue of the complaints against the SIU fells solely within the Committee’s oversight duties.

Ms Mofokeng said that the processes undertaken by the Ministry with the appointed panel could be the process that took the issue to where it needed to be. The report on the matter would eventually come before the Committee for Members to exercise their oversight duties.

Ms N Maseko-Jele (ANC) said that there had been previous complaints in this regard that were not addressed by the same processes that were being undertaken presently.

The Chairperson responded that it was not true that the Committee had not acted on previous complaints, as the Committee had agreed that the Ministry must conduct its investigation and then report to the Committee, which had been done in February 2020. The Ministry had responded then that the matter was pending a hearing before the Labour Court, and no action could be executed until the matter was finalised before that court. Action had been taken by the Committee in its referral of the matter to the Ministry for investigation. He agreed with Mr Swart that clarity was required on the nature of the inquiry conducted by the Ministry. The Committee must ensure that transparent and effective action was taken by those who were responsible to act in this regard.

Mr Swart said that in section 3(4)(d) of the Special Investigating Units and Special Tribunals Act, which was the enabling legislation, it was provided that the Minister or the President could remove the Head of the SIU. It was paramount that the Committee got clarity on the legal framework of this issue. The Committee must exercise oversight over the degree of expeditiousness with which this issue was resolved.

The Chairperson responded that it would be useful for the legal framework on this issue to be made quite clear so that the process was not vulnerable to legal challenges. He would engage with the Ministry and the Presidency regarding this issue.

Customary Marriages Amendment Bill [B12-2019]

The last item on the agenda was for the Committee to consider the draft report on the Recognition of Customary Marriages Amendment Bill [B12-2019].

The Chairperson read from the Committee’s draft report that the Committee, having considered the Recognition of Customary Marriages Amendment Bill [B12-2019], passed by the National Council of Provinces (the NCOP) and returned to the National Assembly (the NA) for concurrence, agreed with the amended Bill. The Committee’s draft report was adopted.

The meeting was adjourned.

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