Legal Aid Board

Meeting report

JUSTICE PORTFOLIO COMMITTEE MEETING
17 May 1999
LEGAL AID BOARD

Documents handed out:
Business Plan of the Legal Aid Board
Letters from the Legal Aid Board requesting the approval of additional posts
Unaudited Balance Sheet of 1999/2000

SUMMARY
The Legal Aid Board made a presentation of their new business plan which they are optimistic will turn around the extremely serious financial difficulties they were in at the end of last year. They are moving away from the use of private practitioners to a network in the justice system where the Board employs the lawyers providing the service. They addressed issues concerning corruption and fraudulent claims, the reduction of tariffs, the ability of the Board to meet their payment obligations, the implementation of the new systems for administration and payment, the timetable of deadlines, the appointment of three new positions dealing with financial control, information technology and human resource needs . The Board then responded to questions from the floor.

MINUTES
Mr Delport (DP) opened the meeting by apologising for the absence of the Committee's Chair, Mr de Lange due to illness. He welcomed the deputation from the Legal Aid Board (LAB): Acting Chief Executive Officer, Mr P Britz, the Chairperson , Judge M Navse, and Head of Finance, Mr H Daniels.

Legal Aid Board
Judge Navsa began by apologising for his non-appearance at the previous meeting of this nature, and thanked the committee for the opportunity to address them. He outlined the main points of the Business Plan as dealing with the following issues:

- He began by retracing the development of the LAB. He reminded committee members that the LAB was initially set up to deal with the poor, but has become involved in a morass of increased responsibilities, resulting in its inability to do the very thing which it was set up for - to serve the poor. The increase in constitutional rights has led to the LAB becoming over-extended serving the criminally accused.
- This has resulted in a large increase in cases :
1989 24 281
1994 85 231
1995 113 774
1999 210 921
- The LAB is not equipped to handle the accompanying administrative and infrastructure pressures.
- Extra responsibilities have been added by amongst others the Truth and reconciliation Commission process, the restitution of land rights, labour tenants, the extension of the Security of Tenure Act, child maintenance, family violence, labour and constitutional claims. There has been no concomitant increase in funds.
- Consultants were brought in to deal with the Auditor-General's considerable concerns.
- There was a complete loss of administrative control - practitioners had been unpaid for up to seven years.
- There was corruption on the part of both practitioners and staff.
- The downturn in cases from 1999 - 2000 has been the result of a unilateral decision to reduce Legal Aid tariffs resulting from the fact that tariffs at the level which were being enjoyed would have led to the demise of the LAB. At the time that Judge Navsa took over, the recommendations from auditors were to close down the LAB and use the remaining funds to settle debts - a process which would still have produced a shortfall of funds.
- Most cases were being lost as there were a small number of 'good merit' cases. Cases were also running for extremely long periods of time, causing payouts by the LAB to practitioners to run into hundreds of thousands of rands. Practitioners were making an extremely good living from LAB cases.
- A decision was taken to cut civil litigation and rates. Certain categories of petty crime were cut from the list of LAB cases.
- The result of these decisions has been that fewer cases are being represented, there is a stricter application of the 'means test' and the reduction of tariff payouts.
- Judge Navsa went on pilgrimage for two months, and returned to chaos reigning. Interdepartmental strife, malicious leaks to the press and a breakdown in payments to practitioners were the result of a loss of control of the LAB by Mr Britz and Mr Daniels, a situation for which they are prepared to take responsibility.
- The good news from the LAB is that by the end of the year (barring any unforeseen circumstances) the board will have broken even for the first time, but this would not have happened without the reduction in tariffs.
- There is a desperate need for the application of new posts. These have been asked for again and again, and there are 250 posts allocated within the current budget.
- The LAB is still facing some difficulties in administration and payments, but they have a timetable set up showing the increase in payment capacity as a result of the increased software capacity.
- There is the need for three posts to be approved "yesterday" - the candidates have been identified and have backgrounds in finance (1 candidate) and information technology (1 candidate).
- There is a need for the establishment of a Human Resource department and one of the three candidates identified above has a strong Human Resources background.
- Although condemnatory reports are still expected from the Auditor-General until the backlog has been cleared and flawed data has been dealt with, there is a new culture of effective management and accountability.
- The way forward for the LAB begins with the new positions, changes from the judicare system to one of salaried employees and the publication of a Legal Aid Guide.
- The needs of the rural poor will be addressed with the aid of University Law Schools, and proposals for association between the LAB and NGOs are welcomed.

Mr Daniels continued as follows:
- Mr Daniels was appointed to the LAB as a consultant primarily to deal with and defend the LAB against challenges from the Auditor General.
- There has been a marked change in the LAB under the leadership of Judge Navsa.
- There were problems with consultants, computer systems, unreliable figures and uncontrolled information.
- Practitioners were not being paid for long periods of time.
- The accounting system used for payments allowed figures to be changed when cheques were printed, amounts to be paid over and over again. Money paid in error was kept by practitioners as part settlement of debts outstanding to them, resulting in an inability to keep track of accounts.
- New systems were developed, an audit trail set up and controls instituted.
- Staff were trained, irregularities in account payments and submissions were monitored and details of cases were checked.
- The reduction of tariffs and stringent payment controls have resulted in the reduction of the average account from R3000 to R1500.
- The contingent liability has been reduced from R 561 million to R 283 million. There is an anticipation that this will continue to drop within the next 2 - 3 years to a level which is payable within budgetary allocations.
- The document imaging system used in the past as an accounting system has been replaced with a new system which allows for unlimited payment capacity per day.
- The LAB has paid in the last three months, the equivalent of the amount paid in the last 9 months of last year.
- The introduction of Justice Centres will reduce the reliance on Judicare.
- This will result that the LAB will no longer require more funds than allocated as per their budget.
- The proposed budget include the costs of establishing the new Justice Centres - and these capital costs will cease after three years after which there will only be maintenance costs.
- Finalised financial statements are due in about 2 months (once the new computer system is completely installed)
- The LAB will be completely contained within a period of 24 months.

Justice Navsa added the following points:
- Unless the Justice Centres are implemented, the LAB will be in extremely serious trouble.
- The worst case scenario for the year will see a R1 or 2 million carry-over due to unforeseen circumstances which might arise in the final stages of clearing the administrative morass.
- The small core of disenchanted staff members as a result of the drive to efficiency should be dealt with soon.

Discussion
The Chair asked the LAB Board for clarification of the following issues:
- The policy regarding civil matters
- The salaried employee model as opposed to the Judicare system.

Mr Britz responded as follows:
- With effect from 1 November 1999 no money claim cases would be handled by Judicare practitioners, but would be handled by the LAB's salaried staff. All LAB work relating to divorce must be handled in the Divorce Court and not in the High Court. The number of civil cases have been cut by the elimination of Legal Aid for petty crimes. This is effected by the application of the Khanyile test, although there are still cases where this test is not being applied correctly. Investigation into the application of the test is being undertaken.
- There has been a move away from the Judicare system toward more salaried practitioners for the LAB. But in order for the LAB to be able to deal with the interests of the poor, posts need to be approved, as without these, the justice system will grind to a halt. It is not envisaged that the LAB would provide long-term career opportunities for practitioners, but rather that it will be used as a method of gaining experience for new graduates while serving an "internship" and giving back to the community.

Adv Schmidt (DP) asked the LAB to respond on the following issues:
- Is there any possibility of an extension to Mr Daniels' contract as he is due to leave the LAB at the end of May 2000?
- Is the General Bar Council being informed of developments within the LAB?
- When will the Justice Centres be implemented?

Judge Navsa responded as follows:
- The reality is that the LAB cannot afford Mr Daniels any longer. Internally and externally there is the feeling that the relationship should terminate. The association between Mr Daniels and the LAB has been a fruitful one, but the approval of the three posts as discussed above would ensure that the LAB continues to move forward in the same vein it has started.
- The LAB accepts the criticisms levelled at it by the General Bar Council, and the responsibility for the breakdown in payments within the 45-day promised time period is being borne by Judge Navsa, Mr Britz and Mr Daniels, and a hope is expressed that the LAB will be able to regain the confidence of practitioners and the General Bar Council as a result of the Board's new efficient management.
- Justice Centres will be implemented as soon as possible in order to alleviate justice backlog.

Mr Swart (ACDP) asked the LAB to respond on the following issues:
- To what extent could the "unknown factor" have an impact on the carryover of extra funds needed?
- What will be the result of the stopping of civil proceedings?

Judge Navsa responded as follows:
- The "unknown factor" is causing the LAB sleepless nights and has the Auditor General concerned. A unique numbering system would be required to eliminate this completely and this is too great a logistical problem. There are millions of files, and it will be a while before all accounts have been tagged. By the end of October, the last of these files will be organised, and the threat of the "unknown factor" will be completely eliminated. Although this factor is not completely insignificant, the possibility is not large.
- The fact that civil proceeding will stop will result in an increase of Pro Bono work by professionals.

Imam Solomons (ANC) congratulated Judge Navsa and his colleagues on their excellent exercise in effective management. He asked the LAB to respond to the following issues:
- The timeframes for implementation of the three new posts?
- The streamlining of consultants and contract staff dependency.

Judge Navsa responded as follows:
- The appointment of the three posts were reliant on the Justice Director-General, Mr Pikoli - and it was hoped that these would be effective from 1 July. A Human Resources policy would then be a matter of priority, with the Finance Manager being able to deal with concerns of the Auditor General.
- The consultants which are left are acceptable : Q-Data, Mancola and a Human Resources consultant

Mr Pikoli was asked to respond at this point. He stated that the three new positions do not come cheaply, and that their combined salaries amount to R 1.4 million annually. He said that the decision needed to be made with the Ministers of Justice and Finance as their salaries were well above public service salaries. He said that he would make positive recommendations to the ministers.

The Chairperson said that the Portfolio Committee supported the posts.

Mr Molewa (ANC) asked the LAB to respond to the following issues:
- What criteria are being used to ensure that the poor / indigent rural people were being served?
- What is being done about people who do not know about Legal Aid?
- Petty crime may be petty to members of the LAB, but these issues may not be petty to the accused.

Judge Navsa responded as follows:
- The judge agreed that more should be done to inculcate the LAB in the lives of the rural poor. Budgetary constraints led to frustration that more cannot be done. The LAB is willing to take submissions into partnerships with NGOs and the positioning of the Justice Centres to best serve the rural poor.
- The Legal Aid Guide is hoped to fill this need partly
- The test in S v Khanyile is based on the following factors: the strength of the case against the accused; the ability of the accused to understand the proceedings; and the consequences of the case (e.g. imprisonment).

Mr Magwanishe (ANC) asked the LAB to respond to the following issues:
- How representative is the staff of the LAB?
- How many of the consultants are from previously disadvantaged backgrounds?

Judge Navsa responded as follows:
- The LAB now mainly employs black people and it is hoped that this will be improved further by the utilisation of Black graduates. The new Human Resources person is a Black female and it is hoped that she will lead the transformation process. The other two appointees are one White person and one Indian person.
- Q Data is majority Black-owned, the Human Resources consultants have been referred, and the lawyer representing them is Black. Mancola were recommended by Justice.

Adv Masutha (ANC) complimented the LAB for their commitment to skills development.
- He questioned what had happened since 1968? He questioned whether systems (including oversight by Parliament and the Auditor General) were simply not working and what can be learned in order to ensure that this does not happen again?
- He questioned the influence of the constitutional rights of children on the LAB, and how far the negotiations between Justice, Welfare and Legal Aid are.

Judge Navsa responded as follows:
- The LAB has failed its staff in terms of staff development. Under the old regime the needs of the poor were not dealt with, and no-one expected the mushrooming of cases. Professionals were being engaged too expensively, resulting in collapse and chaos. The sustained management transition will ensure that the new positive direction is maintained.
- Provision has been made in the budget for R 26 million to be allocated to children's issues.

Ms Botha (ANC) asked the LAB to respond to the following issues:
- She is very hopeful of the new vision as presented in this meeting. She questioned whether the new Justice Centres were not re-inventing the advice centres of previous years. She proposed a link with NGOs to best serve the communities.

Judge Navsa responded as follows:
- Judge Navsa told the meeting that he was involved in the advice centres during the early years of his career. He stated that he is careful about moving the gravy train from one track to another. The process needs to be structured and controlled. The LAB is happy to negotiate with any NGOs / lawyers groups prepared to take a sustainable role.

Mr Mgidi (ANC) expressed the concern that as a result of the abandonment of the Judicare system, the limited salaries offered to the new lawyers would result in them leaving as soon as they have experience. How many will be left to do the job?

Judge Navsa responded by saying that the Karoo and Overberg regions were already working, and clinics were also working in a cost effective way. The LAB does not expect to draw people wanting to make this a career objective, but rather to use it as a stepping stone, to gain experience.

The Chair, in closing, applauded the LAB for their honesty in addressing the problems facing their organisation and congratulated them on their success thus far.