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JUSTICE AND CONSTITUTIONAL DEVELOPMENT AD HOC COMMITTEE
15 June 2004
JUSTICE BUDGET: INPUT FROM LEGAL AID BOARD
Chairperson: Ms F Chohan-Kota (ANC)
Presentation by Legal Aid Board on Budget
The presentation outlined the objectives of the Legal Aid Board as well as its infrastructure, its staffing complement, its local presence at courts, its delivery mechanism and its motivation for funding.
During the discussion Members asked the Legal Aid Board to explain why it had not yet been able to provide legal representation to all accused in criminal matters, whether it had been provided with the necessary support for the sexual offences courts, why it had surplus funds from the 2003 financial year, the reasons for the delay in the Boeremag trial, whether the Board has established a programme to deal with the problem of awaiting trial prisoners, the process undertaken by the Board to establish more justice centres in the Northern Cape. The Board was asked to explain its application procedure for legal aid because it did not appear to be uniform.
Introductory remarks by Chairperson of Legal Aid Board
Judge Mlambo, Chairperson of the Legal Aid Board (LAB), stated that when he took over from his predecessor he had two objectives: the first was to ensure that the work he had started in making the LAB a stable and credible organisation was fulfilled and, secondly, to complete the national coverage objective by providing legal services throughout the country. He stated that the objective was to do away with situations in which those who cannot afford legal representation appear before a court without legal representation, and assured the Committee that the LAB was steadfastly working towards the achievement of this objective.
He stated that he also aimed to ensure that the LAB increased its civil matters focus. To date most of the matters that have gone to the Constitutional Court regarding civil liberties in whatever form have gone though people who can still afford to pay for their own representation. He assured Members that the LAB would focus on its constitutional responsibility, which was to provide legal representation to the criminal accused. Most of the LAB budget and efforts have gone towards meeting that need.
The LAB has completed that task it set for itself in 1999 which was to establish justice centres across the country. They have been opened and are all operational. He remained confident that the correct approach followed was to opt for salaried lawyers as opposed to adjudicate lawyers, as this system enabled the LAB to provide more cost-effective services. On the one hand it has granted the LAB the control it needed with regard to the tracking and monitoring performance at the courts, as well as taking corrective action.
A major part of the criticism that was leveled against the LAB in the past was the quality of the services provided. But having moved to the justice centre model, the LAB was now able to monitor the performance of its lawyers and also allowed it to identify and respond to the gaps. The LAB has also initiated a host of training programmes for its lawyers. The reality was that as the LAB completes the opening of the justice centres, there were major gaps in the provision of civil legal aid as well as to the criminal work involving the new initiatives from the Department. The LAB had devised programmes to provide adequate staff, but it still needed financial muscle to enable it to meet the personnel needs so that it could provide quality services.
He stated that the civil aspects of the LAB's work has not enjoyed much prominence simply because the view has been expressed that the Constitution itself only required the LAB to focus on the criminal aspects. The LAB was facing the prospect of the consequences of the Nkunzi judgment in which the court ordered the LAB to provide civil legal aid in one form or another. The LAB wants to be proactive in this direction and wants to create the necessary capacity to ensure it does more civil work.
Briefing on Legal Aid Board Budget
Ms Vidhu Vedalankar, LAB CEO, conducted the presentation (document attached) which focused on the LAB national infrastructure, its staffing complement breakdown, the local presence at courts, the LAB delivery mechanism, the primary focus of the LAB and its motivations for funding.
The Chair stated that there was much sympathy for the civil work done by the LAB. The LAB suggests that its mandate is to provide access to justice for all, whereas that was properly the mandate of the Department. The mandate of the LAB was specifically to provide legal representation to all who did not have the necessary funds to secure such services, and who were accused first and foremost in a criminal matter. The LAB itself conceded that it had not fulfilled this mandate completely because it was a new initiative. Under the circumstances it did seem peculiar that the LAB would focus on civil matters when its first priority was criminal matters, and this was where the approach of the LAB and the Committee differed.
The LAB has done phenomenally well over the last few years and has continued to make strides far beyond the initial expectations. She stated that she had mentioned this to both the Minister and the Deputy Minister. Yet at this point in time priority the LAB should focus first and foremost on providing legal representation to all criminal matters in which the accused did not have such representation.
Judge Mlambo replied that it was informative for the LAB to understand the view of the Committee, and stated that the LAB would continue to engage the Committee on the matter.
Ms Vedalankar added that the LAB had almost achieved total coverage as far as provision of legal representation in criminal matters were concerned, and once that was fully provided government would then have to decide whether it would want the LAB to focus more of its attention and resources on civil matters.
The Chair asked whether each of the justice centres would be attached to a single court, or would they instead facilitate two or three.
Ms Vedalankar responded that they were attached to several courts. She stated that the LAB could provide Members with the document which provided a breakdown of the courts that belonged to each of the justice centres.
The Chair asked whether the LAB has put in place measures to track the turnaround time for each case it dealt with.
Ms Vedalankar replied that the LAB did not have such figures. She stated that some of the problems were that it was a reactive system and as such did not determine the court roll. The clearing of the awaiting-trial prisoners backlog depended largely on the co-operation received from the prosecution and the Department.
The Chair asked whether the LAB had received the necessary support in establishing the sexual offences courts.
Ms Vedalankar replied that it would probably not work in the larger courts because they had a larger volume of cases.
Mr Peter Brits, LAB Legal Support Services Executive and Acting National Operations Executive, added that the LAB was engaged in discussions with the Department, the prosecution authorities and other stakeholders in a joint committee. In principle it had agreed that a working team should work on proposals to implement this initiative. It has thus not yet been implemented.
The Chair encouraged the LAB to complete this process as soon as possible because it will make a difference.
Mr Brits responded that such courts have already been established in Soweto, Johannesburg, Benoni and Germiston.
Ms S Camerer (DA) asked why the LAB had unspent funds from the previous financial year and whether it had received permission to spend those funds.
Ms Vedalankar replied that there was certain roll over from the previous year and the LAB motivated for this to Treasury. It contended that it was different from any other department that was undergoing a transition in that it moved from one system to another, and it was containing a financial collapse. It was in this context that the LAB motivated to Treasury to allow it to retain the accumulated surplus to establish the infrastructure needed. Treasury allowed the LAB to keep part of the money during the previous and current financial year, and there will be no further accumulated surplus in the next financial year.
The last report received from the Office of the Auditor-General was the second unqualified audit report that was received by the LAB, and this year would be the third year. There were also no emphases of matter. The report did encourage the LAB to ensure stronger financial management systems were put in place, which the LAB has done by recruiting people in the current financial year. A new CFO, Mr Bruce Gordon, has also been appointed and this would strengthen the financial management structure.
Ms Camerer stated that Gauteng and Western Cape had 8 justice centres, whereas Western Cape had a much larger population yet had the same amount.
The Chair stated that there was also much disparity within the Gauteng province, because there were no justice centres in the western regions of the province. This was odd as an NPA report indicated that most criminal activities took place in that western region.
Ms Vedalankar responded that Gauteng was reasonably covered and the Roodepoort office was relocated to Krugersdorp, and this office would then cover the western part of Gauteng.
Ms Wilna Lambley, LAB Regional Operations Executive: Kopenang, agreed with Ms Vedalankar. She stated that Soweto also covered that area, and Randfontein contain a satellite office which also covered the western region of Gauteng. The 8 justice centres in Gauteng consists of 268 lawyers, whereas the Western Cape consists of 169 lawyers. This gave an indication that although the two provinces had the same number of centres, the staff compliment in Gauteng was that much greater.
Ms Vedalankar stated that these were the historical inequities. The Mitchells Plain justice centre would now be linked back to the Athlone district, and the number of justice centres in the Western Cape would then be reduced to 7.
The Chair suggested that the Department has now establish a court nerve centre which identified in a scientific manner, the top 20 courts that handled the top 25% of all the cases in the country. She encouraged the LAB to consider that study so that it could assess its performance and progress.
Ms Vedalankar replied that the LAB had devised a national coverage plan which did this as well. It linked the LAB's coverage and service to population, to new matters that arose as well as to issues such as poverty and socio-economic status. This information could be submitted to the Committee. The present situation with awaiting trial prisoners could also be explored using this data.
Ms Camerer asked whether new sexual offences courts would be established or whether existing courts would simply be renamed.
Judge Mlambo stated that he had attended the launch of the Knysna sexual offences courts and at that ceremony the Minister announced the establishment of 56 new sexual offences courts.
Ms Lambley added that during the previous financial year there were approximately 12 sexual offences courts were established, 7 of which were newly established courts whereas the others simply had their duties rearranged to deal with sexual offences. A total of 10 of the 56 new sexual offences courts would involve the rearrangement of duties, and the remaining 46 were new courts.
The Chair stated that she was amazed at the 87% conviction rate in the sexual offences court
Ms Vedalankar responded that has, in a sense, gone overboard regarding the "hype of convictions". The accused is always innocent until proven guilty, and the focus should instead be placed on the number of matters dealt with and the total number of cases finalised rather than on the conviction rate.
Mr L Landers (ANC) stated that the important question here is the LAB's acquittal rate, whereas the conviction rate applied more to the National Prosecuting Authority (NPA).
The Chair agreed.
Ms Vedalankar replied that focusing on acquittal rates would not provide an accurate picture of the LAB's performance, because in fact the prosecution could decide not to place a certain case on the roll if it does not believe it has a case against the LAB. Thus this depended not really on the arguing of the case by the LAB but rather on the prosecution's prospects of success.
Mr Patrick Hundermark, LAB Regional Operations Executive: Eastern Cape and Free State, added that the 2002 conviction statistics on district courts stood at about 75% and the regional courts stood at approximately 69%. The LAB then looked at setting the converse figure which would be used as a management tool
The Chair stated that the statistics on all the cases in which the prosecution has decided not to proceed should be included, because this would be a success for the LAB. This would provide a clearer picture on the LAB's performance. The court nerve centre should be consulted to compile these statistics.
Judge Mlambo agreed, but stated that the figures were not the purpose of the LAB functions
The Chair agreed.
Ms M Meruti (ANC) sought clarity on why the Boeremag trial had been delayed.
Ms Vedalankar replied that this trial was underway, but delaying tactics were being used.
Mr Brits added that there were 23 accused and one pleaded guilty, with 22 remaining.
Ms Vedalankar stated that of the 22 accused 13 had not required legal aid because they had their own funds to secure legal representation, and these 13 stated that they would apply for Legal Aid once their funds ran out. The LAB agreed but only if they met the requirements for legal aid. The legal representatives of these 13 accused then took the LAB to court because they demanded legal fees well in excess of the maximum LAB tariff. The Pretoria High Court ruled in the LAB's favour and held that the court could not set the rates for the LAB. The legal representatives then took the case on review.
Mr Brits stated that the second case was really a recanvassing of the first case, and they were unsuccessful in the second case as well. The case established that the fixing of a maximum tariff was not an unreasonable thing to do for an organisation such as the LAB which had to operate within budgets, that courts should be cautious in getting involved in matters involving budgets and that courts should likewise be cautious of getting involved in which particular practitioners are to be appointed in any case.
Ms Vedalankar stated that all the accused were now on Legal Aid at the LAB's rates.
Mr Brits stated that the approximate cost per day of the Boermag trial stood in the order of
R15 000, excluding the LAB's own staff.
Ms Vedalankar added that the latest costs tally stood at close to R500 000 per year for the LAB, and the initial period of 2 years expected for this to extend to 8 years.
The Chair asked whether a special rates dispensation should not be introduced to prevent this kind of abuse.
Judge Mlambo responded that the practice thus far has been that if the legal representatives lose this civil matter they would be ordered by the courts to pay the LAB's costs.
Mr Brits added that the LAB does have two costs orders against the legal representatives, yet the recoverability of those costs was not certain. One the second occasion the LAB threatened to seek an order against the attorney and advocate involved de bonis propris which ultimately resulted in their capitulation.
The Chair asked whether the costs owed to the LAB could be set off against the costs which the LAB owed them.
Mr Brits replied that there were no costs orders against the LAB.
Judge Mlambo stated that Mr Brits is saying that the LAB can only recover costs from an attorney if the court awards the de bonis propris order. Yet courts were sparingly exercising this option.
Ms Camerer sought clarity on how the LAB plans to extend the civil case assistance service.
Secondly, Ms Camerer asked whether the LAB still had backlogs in the judicare payments.
Judge Mlambo replied that he was surprised that such complaints were still being mentioned. The only backlog the LAB had at the moment was its attempts to float the Ad Infinitum software programme. Even then it was not beyond 60 days in which practitioner accounts were being paid. The baseline stood at 30 days and the LAB was doing quite well.
The Chair stated that this matter was being raised because the Chief Justice and magistrates had raised this concern with the Committee on Friday, and if matters are as Judge Mlambo indicated, then the record has to be set straight.
Judge Mlambo replied that he would provide a report to the Committee.
Ms Camerer sought clarity on the programme that the LAB has identified for awaiting trial prisoners
Ms Vedalankar responded that the LAB planned to look at who long they were in prison, beginning with those who have been imprisoned for longer than 6 months and to work with other stakeholders to increase the turnaround time in terms of which they come to court. Linked to this was parole, as some awaiting trial prisoners were there for minor offences. This would then have to be co-ordinated and the LAB would have to consult with the Department, Department of Correctional Services and the NPA.
Mr Brian Nair, LAB Regional Operations Executive: Kwazulu-Natal and Mpumalanga, added that this was a multi-focused approach. One was examining the court rolls and then analysing the representation of people per matter. Legal practitioner would then go to the prisons on a daily basis two weeks before the scheduled court appearance to offer the services of the LAB to them. He stated that he was confident that these dedicated focus areas allowed the LAB to attract more unrepresented accused. In many cases people believed they were innocent and that the securing of legal representation indicated that they were guilty. This must be addressed.
Ms Lambley stated that, with regard to appeals, in the Transvaal Provincial Division and the Witwatersrand Local Division there was an appeals backlog which was estimated between 6000-8000, but which was still being dealt with under the old system prior to 1 January 2004. Various tests were being conducted by the LAB to identify whether the appeal had any merit, but this was placing an enormous strain on the LAB resources.
Mr Hundermark stated that the LAB has had valuable interaction with the Inspecting Judge of Prisons who has compiled very useful statistics on awaiting trial prisoners. It was found that approximately 20-25% of South African prisons contained 75-80% of all awaiting trial prisoners, but then a study would also have to be undertaken which sought to identify whether there were certain courts which tended not to grant bail for certain offences. This kind of court would then have to be dealt with at a justice centre level. He stated that the LAB also had legal practitioner posted at awaiting trial prisoners centres, and they informed the accused of his rights to legal representation.
The Chair asked for the maximum acceptable time that the LAB has set for itself in terms of a person can await a trial.
Mr Hundermark responded that the target at district court level was 6 months, whereas the regional court target was 12 months.
The Chair asked by what date would no awaiting trial prisoners be held in custody for longer than 12 months.
Ms Vedalankar replied that the safest option would be for the LAB to get back to the Committee with a time.
The Chair requested that the LAB provide the Committee with continuous reports on these matters, especially those cases which it was unable to resolve.
The Chair stated that new initiatives should be explored which would divert accused away from the prison system.
Ms Vedalankar responded that the LAB has launched a restorative justice pilot project which aims to do this exactly. It was based on a model employed in New York which was very successful.
Imam Solomon stated that he could not understand how accused persons could still appear in court without any legal representation, especially in view of the constitutional directive. The judicial officers cannot allow such cases on the roll. He also questioned the process of application as well which allowed for unrepresented accused to appear before court.
Judge Mlambo responded that the LAB was very aware of this issue. There were a number of reasons why this happened. The LAB did provide a legal aid officer in those courts in which it did not have a legal practitioner or candidate attorney in place, and this official would identify the persons who were appearing before a court and who required legal aid. This information would then be fed to the justice centre in order to approve the applications.
One of the reasons why people still go unrepresentated was because the legal aid lawyers were still regarded as "free government lawyers", but the good work done by LAB practitioners was slowly eroding that perception. There were several cases in which people went through a number of postponements and claimed they would provide their own legal representation until the judge ordered that no further postponements would be entertained, at which stage the accused then opts to represent himself rather than to apply for legal aid. It was thus an education problem, but the LAB's awaiting trial prisoners initiative aimed to address this problem.
Thus the LAB was not "the culprit" here. Instead it did function reactively as Ms Vedalankar stated because unrepresented accused were given a choice, but only regarded legal aid as a last resort. The LAB has recognised this and was focused on limiting these numbers.
Ms Meruti stated that the Northern Cape required more justice centres, because it was a vast province and had high crime rates. She asked whether Namaqua could be considered as a site for a justice centre.
Mr Mervyn Doralingo, LAB Justice Centre Executive, replied that the LAB was already in the process of expanding its services in the Northern Cape in terms of the National Coverage Plan. A satellite office was being opened in Springbok and a professional assistant has already been appointed, and it was hoped that more staff would be appointed there over the next few months. A satellite office was already operational in Posmansberg and it would be fully staffed over the next few months. The LAB was currently setting up a justice centre in Colesberg which would service De Aar, Richmond and Pretoria West. A justice centre executive would be appointed by the end of July, two professional assistants have already been appointed and hopefully it would be fully staffed over the next quarter. .
The Chair asked whether the plan was to get rid of adjudicare completely and, if not, what was the envisaged role for adjudicare in the future.
Mr C Burgess (ID) asked the LAB to explain the progress it has made with fraudulent cases and practitioners.
Secondly, Mr Burgess asked the LAB to explain its policy against repeat offenders.
Thirdly, Mr Burgess asked whether an LAB official dealt with the quality control of its legal practitioners.
The Chair requested the LAB to explain its application procedure, because there appeared to be no uniform procedure or who approved them.
Judge Mlambo responded that the approval of legal aid applications were no longer at its head office but was decentralised to the justice centres, and this process happened much quicker. The delays were caused in cases in which legal aid was refused, because the LAB's internal appeal procedures were then activated.
Ms Vedalankar added that there should be no reason for a backlog in the turnaround time for the application procedure, as applications were processed immediately. In fact in most cases the benefit of the doubt was given to the client. The basic requirement was the means test and in this case most applicants were successful.
Mr Nair stated that there were very few backlogs with the new decentralised approach. There were always delays in the appeals however and the LAN was putting a programme in place to manage the appeal process.
The Chair asked what happened to the application in the case of adjudicare, as there were no justice centres.
Judge Mlambo replied that in those courts in which the LAB did not have a presence, the matter would then be referred to the justice centre which covered that court and that justice centre would then process the application.
He stated that the delays in processing the applications also applied to the launch of the Ad Infinitum project. The LAB has issued a directive to its justice centres to resort to the old approval procedure in cases in which there were backlogs, as this was aimed at removing the delays in the system.
Mr Brits stated that by and large the application procedure did work efficiently. There was an occasional hiccup but the LAB did eventually sort it out. There was some difficulty at the moment in getting the message through to other stakeholders in the legal justice context, that the people they should deal with were at the local justice centre and not Ms Vedalankar.
The Chair asked whether, in terms of the LAB's stated targets, the LAB was satisfied that 75% of all the matters that came before courts were currently, or whether this figure referred to the 75% of all 742 South African courts that were covered by the LAB.
Ms Vedalankar responded that the 75% refers to the LAB's confidence that more than 75% coverage was already achieved, although it did not have an actual figure on the unrepresented accused. Every court was covered by the LAB, whether through the justice centre or adjudicare. There were people who were going through the system unrepresented. The LAB was able to station legal practitioners at the courts all day and every day in order to ensure that no-one is unrepresented. The LAB was also proposing a court of first appearance, as was the case in foreign systems, and here too the LAB would post a dedicated legal practitioner.
The problem at the moment was identifying that gap and bridging it. During 2003 the LAB ensured that at least once or twice a month it ran a Legal Aid clinic at every prison, and focused especially on awaiting trial prisoners. This ensured that the legal aid service could be accessed. During this year the LAB would look into posting legal practitioners at police stations, so that these legal practitioners could be called in from stand by to provide legal assistance.
The Chair suggested that the LAB compile a model of its ideal court model, including the number of LAB practitioners posted at each court. This would give the Committee a good picture.
The Chair asked what the R20,9m allocated would then by used on.
Ms Vedalankar replied that these funds would be used to fill vacanies. The aim was to provide coverage to all court rooms.
The Chair asked whether this meant that there were only a total of 145 court rooms in South Africa that were not covered by the LAB. Conversly, once the 145 LAB legal practitioner were employed there should not be a single court room in South Africa that did not have a legal practitioner who would represent an unrepresented accused.
Ms Vedalankar agreed.
Concluding remarks my Chairperson
The Chair stated that she looked forward to continued interaction with the LAB and urged Judge Mlambo to inform his legal practitioner that the Committee appreciated the wonderful work they did. She guaranteed the Committee's support.
The meeting was adjourned.