Correctional Services A/B: briefing; Legal Aid Amended Regulations: with Deputy Minister

Meeting report

The Chairperson welcomed the Deputy Minister for Correctional Services. The Department of Correctional Services would give a briefing on the Correctional Services Amendment Bill. This Bill was developed to give effect to the Constitutional Court judgment known as the Phaahla judgement. The Constitutional Court judgment dated 3 May 2019 found certain sections of the principal Act unconstitutional and ordered the amendment of these sections by Parliament, within a period of 24 months from the date of the order. The amendments should be in place before 3 May 2021. The Court did provide a read-in provision, pending the amendment by Parliament. She invited the Deputy Minister to take over and take the Committee through the Bill.

Deputy Minister’s introductory remarks
Deputy Minister for Correctional Services, Mr Phathekile Holomisa,  said the Department would appraise the Committee on the proposed amendments in the Correctional Services Amendment Bill and update it on public submissions received on the Bill and the Department's responses to those. The Bill was developed to give effect to the Constitutional Court judgment of 3 May 2019 in the matter of Oupa Chipane Phaahla v Minister of Justice and Correctional Services & Another CCT44/18 [2019] ZACC 18. The Court found certain sections of the Correctional Services Act to be unconstitutional and ordered the amendment of those sections by Parliament. The relevant sections need to be amended before 3 May 2021. As a Department, it was aware that it should have tabled the Amendment Bill much earlier than it did. It tendered its apology for its tardiness in the hope that as important as the provisions in the Bill are; it is short enough for it to be concluded within the stipulated time.

It was necessary for him to highlight that the sentences of offenders that stand to benefit from the Phaahla judgment, will still take effect from the date of sentence and not the date of commission of the offence. The date of the commission of the offence, and not the date of sentencing, will be used to determine the parole regime. In other words, this means that lifers who committed crimes before 1 October 2004 but were sentenced after that date, will be considered for parole after having served a period of 20 years as provided for in the previous Act and not 25 years, as provided in the 1998 Act.

The Department was here to solicit the support of the Select Committee for the passage of the Correctional Services Amendment Bill. He handed over to Ms Mlomo to present the Bill.

Correctional Services Amendment Bill [B 32-2020]: briefing
Ms Vuyi Mlomo-Ndlovu, Acting DCS Chief Deputy Commissioner: Remand Detention, said the Constitutional Court in the Phaahla judgement varied and confirmed an order of invalidity given by the High Court of sections 136(1) and 73(6)(b)(iv) of the Act. It declared that the sections were inconsistent with sections 9(1) and (3) and 35(3)(n) of the Constitution. 

Offender Phaahla is serving a sentence of life imprisonment. Offender Phaahla challenged section 136(1) of the Principal Act on the grounds that the use of the date of sentence rather than the date of the commission of the offence violated his rights in s 35(3)(n) and s 9(1) of the Constitution.

Offender Phaahla was convicted on 25 September 2004 for offences committed earlier but was sentenced on 5 October 2004. On 1 October 2004, a new parole regime came into effect, which lengthened the minimum period to be served before a person could be considered for parole which would mean that he would have to serve 25 years before being considered for parole placement. The Court found that the provisions breached the constitutional right to equal treatment before the law and not to be discriminated against unfairly. It also found that it violated the principle of legality.

The Bill has been developed to amend the definition of 'Minister', s 73(6)(a) and s 73(6)(b)(iv), s 136(1) and 136(3)(a) of the principal Act.

If Phaahla was sentenced before 1 October 2004, he would have only had to serve 20 years before being eligible for parole instead of 25 years. The Court found that the provisions left offenders vulnerable to retrospectivity. Other reasons were outlined (see document). Section 35(3)(n) was the basis for finding that an offender was entitled to the least severe of prescribed punishments, and therefore, the grounds for finding the provision unconstitutional.

The Department had to implement the transitional provision which was included in the court judgment. It had developed a circular and policy to guide its implementation. The number of offenders found to qualify to benefit from the Phaahla judgement were 1690 offenders serving life imprisonment and 885 serving determinate sentences. The judgement is used by DCS to determine which parole regime to utilise of the two regimes in place. The old parole regime is informed by the old Act of 1959. It now has the new parole regime which came into effect on 1 October 2004. The date of the commission of the offence regime is critical in determining which regime to use. The difference between the two parole regimes is the minimum detention period to be served before a person can be considered for parole. The minimum detention period in the old parole regime is 20 years for lifers and a third of this for those with a determinate sentence. After 1 October 2004, the minimum detention period for lifers became 25 years. Since not all its documents have the date for of the offence, DCS communicated with SAPS so that it could access the dates. It also updated its ICT system so that it can flag offences from before 1 October 2004.

DCS responses to public submissions
The Department considered the public submissions of:
- Legal Aid South Africa who supported the amendments to the Bill
- Africa Criminal Justice Reform (ACJR) with the Dullah Omar Institute
- Helen Suzman Foundation
- Centre for Applied Legal Studies (CALS)
- Ms GE Mlangeni and
- Mr MG Buthelezi (Vryheid, KZN)

The gist of the submissions and the DCS responses were detailed (see document). DCS said that a number of the concerns would be catered for in the regulations. The Department is expected to tighten its parole regime in response to the pleas of the public. Although it is tightening its parole regime, that tightening is affected by the Phaahla judgment. Inasmuch as there are parole provisions, there are still provisions in the Criminal Procedure Act.

Discussion
The Chairperson asked Members to note that this was the beginning of processing the Bill. They would be given the opportunity to deliberate on the Bill. She noted the urgency of the Bill to meet the Constitutional Court deadline. The Committee would advertise the Bill for public comment during the coming recess.  may meet virtually to try and address public comments that it receives on the Bill. With this being said, she thanked the DM and the officials saying that the Committee would now continue with the rest of its agenda.

Mr K Motsamai (EFF, Gauteng) asked a question in her vernacular language (36:55-38:10).

Ms Cynthia Khathutshelo Ramulifho, DCS Chief Deputy Commissioner: Remand Detention, replied that the reasons for the delay in the submission of the profile reports to the parole board include the outstanding social worker report and psychologist remarks. DCS had put measures in place to address the shortage in this capacity that led to the delays. The submission was currently at the National Council on Corrections (NCC). Timelines have also been put in place as well as a task team to deal with the lifers affected by this skill shortage. There are, however, measures that have been put in place including social workers and psychologists. Her colleague has been running with the project and it would hopefully be addressed in due course.

The Chairperson thanked DCS officials and the Deputy Minister and released them

Legal Aid Draft Amended Regulations
The Chairperson welcomed Legal Aid SA and noted that this was the Committee's first engagement with it as the Sixth Parliament. Section 23(2) of the Legal Aid Act requires that its regulations must be tabled by the Minister before Parliament for approval by both Houses.

Judge Motsamai Makume, Legal Aid Board Chairperson, introduced his team that included the CEO, Ms Mantiti Kola; Deputy Board Chairperson, Mr Nkosana Mvundlela; Chief Legal Executive, Mr Patrick Hundermark who would be leading the discussion together with the CEO. The Committee would notice that the amendment regulations had been submitted to the executive authority of the Department of Justice and Constitutional Development. The DoJ&CD are the ones who are meant to present this to the Committee; however, Legal Aid had brought its team to brief the Committee. The regulations cover a wide spectrum of amendments in keeping with developments. They cover civil cases; maintenance cases; domestic violence; harassment; labour and divorce matters especially children's matters. It also amends the Legal Aid means test to determine what contributions are expected of those on the borderline of the test.

Ms Mantiti Kola, Legal Aid SA CEO,  said that the Board Chairperson had already covered the first component of the presentation. Mr Patrick Hundermark would go through the details of each of the nine regulations it is presenting. It was important to share with the Committee that DoJ&CD had sought comments from several stakeholders on the proposed amendments in September 2020 and the stakeholders were given a month until 30 October to provide comments. No comments were received. Overall, the proposed amendments to the regulations do not result in any significant policy change. As a result, the Presidency Policy and Research Unit exempted DoJ&CD from conducting a socio-economic impact assessment on the proposed amendments.

Mr Patrick Hundermark, Legal Aid SA Chief Legal Executive, said it was correct that Parliament must approve the regulations before they are gazetted. He detailed the proposed amendments:

Regulation 9
Legal Aid SA can grant legal aid 'with or without a waiting period.' The reason for the amendment is that Legal Aid SA already does apply waiting periods and the amendment seeks to confirm this practice providing which matters are to be prioritised when a waiting period is applied. Where applied, civil matters which have a significant impact on client’s lives are to be prioritised. A list was provided of such matters.

Regulation 11
This amendment clarified that Legal Aid can only assist in matters where the claim exceeds the Small Claims Court's jurisdiction by more than 50%.  The Small Claims Court's jurisdiction is currently R20 000; meaning that it would be able to assist with a claim from R30 000 and above.

Regulation 13
This regulation deals specifically with the rendering of legal services in maintenance, domestic violence and divorce matters. Legal aid can only be granted if the applicant has good prospects of success; if the opposing party is represented by a legal practitioner or if someone is over 60 years old, even where the other party is not legally represented. The aim is that due to limited resources, it would like to focus its resources on the elderly and disabled.

Regulation 14
Legal Aid previously assisted with the enforcement of Commission for Conciliation, Mediation and Arbitration (CCMA) awards. It found that there was a duplication of services and felt that it should not duplicate the CCMA who assist in the enforcement of their own awards. In consultation with the CCMA, it would amend the regulation only to provide assistance in instances where the CCMA was not able to successfully execute. The applicant who received the award is then assisted to enforce the award. It sometimes finds in these instances, that companies move, disappear, change partners or change names. Applications then need to be brought to ensure that the award can be enforced and that they are not able to hide from the applicant who received the award. The reasoning for the regulation is to avoid duplication of services and focus on instances where the CCMA is not able to ensure that the award is enforced.

Regulation 15
This regulation deals with divorces and sets out matters in which it is not able to grant legal aid in divorces. The kinds of divorces it excludes are divorce appeals; divorce actions where the applicant is married to a foreigner to enable that foreigner to gain South African citizenship; essentially a marriage of convenience and more detailed in 15(2)(c). Any divorce which falls into these criteria will be unable to be assisted by Legal Aid. There will be self-help made available through its paralegals or via the registrar of a regional court who can assist in completing the necessary papers for divorce. Without these factors, Legal Aid finds that the complexity levels diminish so that someone is able to get their own divorce. This is specifically intended for Legal Aid to focus its resources. Due to budget cuts, it has resource constraints and its ability to take on new matters is currently at about 46 000 a year. With budget reductions, this will probably reduce to about 40 000 matters per year. It therefore needs to manage what legal aid it makes available.

Regulation 23
This deals with children's issues relating to the Small Claims Court. It had changed the wording to make it clear that it is able to assist children with claims, even where the claim does not exceed the jurisdiction of the Small Claims Court. This is a technical amendment reflective of how Legal Ad actually deals with matters. The original wording did not align with what was happening in practice so Legal Aid actually wanted to align the regulation with what it actually does.

Regulation 27
The amounts referred to in 27(2)-(6) will increase annually. Legal Aid has a means test which looks at both income and assets. The fact that one does not have an income or that one falls within its income band does not mean that you have not got assets with which you are able to afford your own legal representation costs. This provision means that instead of every two years having to return to Parliament to adjust the means test and delay the increase; it could simply automatically increase it by the Consumer Price Index (CPI) as announced by Stats SÁ. In this way, it would be implemented annually on 1 April and would align with the new financial year. Each of the amounts in the subsections will be adjusted by the CPI increase. In this way it will keep pace with changes in inflation and with salary increases.

Regulation 31
Here the wording providing for partially subsidised legal aid only in criminal matters has been removed. The amendment then opens it up to civil assistance where it meets the other requirements of regulation 9(1) and it can assist them with partially subsidised legal aid. Legal Aid will then levy a contribution. It opens it up to applicants who exceed the means test but would be able to make a contribution, and yet are unable to afford the full cost of their legal representation; thus, opening them up to prejudice in any matters they may be involved in.

Regulation 32
This regulation only provided for contributions for criminal matters and how it would deal with this. This is a consequent amendment providing for civil matters. It sets the conditions for which partially subsidised legal aid can be provided in civil matters.

For Legal Aid SA, the regulations will not result in a significant policy change. The regulations would only come into effect after being approved by both Houses.

Discussion
The Chairperson referred to Regulation 13(2). She asked for clarity on cases where a person married a South African to obtain citizenship. The purpose of the Legal Aid is to assist vulnerable persons. Vulnerable women and their children would be in need in this case. Secondly, Legal Aid SA had mentioned its dwindling resources. With the fiscal environment in which the nation finds itself, she did not see budget increases in the near future. With the decrease in resources, would it would be able to implement the regulations as amended.  

Ms Kola, Legal Aid SA CEO,  replied that the budget cuts are going to be on the compensation of employees (COE). Over the period of the Medium-Term Expenditure Framework (MTEF), it is to reduce the COE by R225 million. This would invariably have an adverse impact on the extent of its delivery of services. It will be able to fulfil the proposed regulations in the sense that with civil matters, it had already introduced waiting periods and it had also prioritised what civil matters it could deliver. The proposed amendments aim to provide more clarity on which services are offered and under what circumstances. They are not a significant deviation from the existing policy.

Judge Motsamai replied that persons married to foreigners were not excluded. There was a proviso that where the marriage was entered into to defraud the law, then such cases will not be allowed.

Mr Hundermark said that the Judge had dealt with this correctly. Generally, assistance will not be granted where the parties have not lived together and financial transactions took place. Where the marriage was genuinely entered into, there would be assistance. There were fraudulent marriages; however, these were a separate matter and were different to a divorce. Legal Aid is currently busy with a project with the Wits Law Clinic assisting a large number of women who were not married but are registered with Home Affairs as being married to foreigners. In these cases, it is setting aside these marriages. The regulation does not cover these kinds of circumstance. The concern  is where it was done for a financial purpose and with that very clear intention to gain citizenship fraudulently.

Judge Motsamai asked Mr Hundermark to clarify the position of children from those marriages where the intention was initially to bypass the immigration law, but where children are born. He asked to explain whether these children are excluded.

Mr Hundermark replied that children born in South Africa  or where one of the parents is South African are regarded as South African. Assistance to children specifically in relation to their needs will not be excluded.

As there were no other questions, the Chairperson thanked the Legal Aid SA Board Chairperson and his team for their participation and responses.

The minutes of 8 December 2020 and 10, 17, 24 February 2021 were adopted.

The Chairperson adjourned the meeting.