Legal Aid Board Annual Report: briefing

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Justice and Correctional Services

09 October 2007
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
10 October 2007
LEGAL AID BOARD ANNUAL REPORT: BRIEFING

Chairperson:
Mr Y Carrim (ANC)

Documents handed out:
Legal Aid Board Strategic Overview: PowerPoint Presentation
Legal Aid Board Annual Report 2006/2007: PowerPoint Presentation
Legal Aid Board Justice for All Annual Report 2006/2007
Summary and Analysis of the Annual Report of the Legal Aid Board (LAB) 2006/007

Audio recording of meeting

SUMMARY
The Committee engaged with the Legal Aid Board on the Annual Report for 2006/7. The presenters outlined the mandate and strategic focus of the Board, and noted that a particular problem was the fact that the Legal Aid Guide was last approved in 2002, and the failure to update it since was hampering the Board, which had been relying on a system of circulars, which was inconvenient. They key areas of the work were highlighted. A major challenge was unequal resourcing in the justice cluster; although the Board dealt with about 85% of criminal matters, it was under-resourced. The small ration of practitioners per court hindered proper preparation. External and internal risks were highlighted. The Board was entering the final phase of the five-phase transformation process, where it would expand its footprint and achieve high performance with strong governance and people development. The outcomes and objectives were tabled. The three main strategies were summarised - to deliver quality legal services promoting the protection and defence of Constitutional rights, to develop and maintain human capital to support deliver, and to develop and maintain the institutional capacity. The programme achievements for 2006/07 were tabled. Focus was placed on children’s units, awaiting trial prisoners and legal training. The Board had achieved an unqualified audit report. The expenditure was 99.5% of budget, and there were sound systems for fixed asset management, supply chain management and creditor management. The budget for the following year was R613,4 million. The financial position as at March 2007 was tabled. Challenges included the need to improve access of the court systems, particularly in rural areas, continuous improvement on the quality of services, attending to ratios of practitioners per court, and remuneration of legal practitioners, both of which were skewed in relation to the rest of the justice cluster. The delays in approval of the Legal Aid Guide by parliament, and the re-write of the Legal Aid Act impacted on the Board.

Members commented favourably on the Board’s report and turnaround. Questions were raised on the relationship with employees, the number of complaints against the Board sent to the Public Protector, the percentage of funding awarded to children’s matters, the means test and the need to assist those people who could not afford legal representation, although they did not meet the means test criteria, poor public perceptions and the problem of court interpreters and magistrates who did not articulate the role of the LAB properly. The Board was asked how it would deal with the challenges, what programmes were in place at courts, the reasons for the perception of low quality. The Committee commented favourably on the training given to candidate attorneys. Further questions related to civil litigation funding, particularly in eviction cases, monitoring of cases withdrawn, the messaging system awarding cases under Judicare, employing members of the rebel bars, meeting of employment equity targets, and the relationship between population numbers and numbers of cases. The Committee promised to use six months of its time to help have the Legal Aid Guide approved and updated.

The Committee distributed its legislative programme and noted that this would be approved the following week.

MINUTES
Legal Aid Board (LAB) Annual Report Briefing
Judge Duncan Mlambo, Chairperson, LAB spoke briefly about the main mandate of the LAB.
He began by highlighting the fact that the Legal Aid Guide was last approved in 2002. The updated approval of the Guide was essential to the LAB because the guide laid out how the legal scheme should be run, matters that the legal Aid Board could take up, and the fees. Since there had not been any recent approved updates, the Board was now operating on a system of circulars, which was highly inconvenient.

The key areas of the LAB's work were highlighted as ensuring that environmental matters were considered when strategising and implementing policies, improving on their overall oversight, increasing the Board’s coverage, increase finalisation of matters and strive for the maintenance of high quality services. The major challenge for the board was the unequal resourcing in the justice cluster. LAB dealt with around 85% of the criminal matters, but was under-resourced in comparison. The small ratio of practitioners per court hindered practitioners from properly preparing for their cases. Lastly there was the perception of the private sector that the Legal Aid Board was seen as not providing quality services. He did not think that measuring acquittal rates was the best way to measure the Board’s work. The external and internal risks were fully summarised in the presentation.

Ms Vidhu Vedalankar, Chief Executive Officer, LAB then briefed the Committee on the strategic overview of the Board and its alignment to the Medium Term Economic Framework (MTEF). She set out the transformation and re-organisation of the Board since the 1990s, and stated that the upcoming final phase concerned the implementation of the expansion of the footprint, and continuing consolidation to achieve high performance with strong governance and people development. The outcomes and objectives were tabled and aligned with the three main strategies, to deliver quality legal services promoting the protection and defence of Constitutional rights, to develop and maintain human capital to support deliver, and to develop and maintain the institutional capacity. She set out the programme achievements for 2006/07, noting that legal aid board services were now available at all criminal courts, and access increased. Children’s units were significant, and so was focus on awaiting trial prisoners. There was focus on better prepared practitioners, and legal training. Stakeholder forums had been convened and the National Access to Justice conference was hosted. Public education campaigns continued and brand awareness was confirmed. The Board had participated in Justice Cluster initiatives. Tables showing the justice centers per province, staff per province, new matters taken on, including judicare and justice centre matters, and civil and criminal matters over the last three years. The cooperation partners were tabled.

Ms Vedalankar noted that there had been an unqualified audit report, with no emphasis of matter. The expenditure was 99.5% of budget, and there were sound systems for fixed asset management, supply chain management and creditor management. The 2006/07 funding included an additional allocation of R35 million, over an above the grant of R510 million, which was for the legal representation of children. In the following year R50 million additional allocation was given for funding of new programmes. The budget for the following year would be R613,4 million. The financial position as at March 2007 was tabled. The human resources strategic priorities were set out, and it was noted that the Board had implemented extensive training programmes, was achieving targets on employment equity, that there was succession planning, and steps taken to improve leadership at middle and senior management levels. Strategic and operational risk management plans were in place, including IT risks.

Finally Ms Vedalankar noted that the challenges included the need to improve access of the court systems, particularly in rural areas, continuous improvement on the quality of services, attending to ratios of practitioners per court, and remuneration of legal practitioners, both of which were skewed in relation to the rest of the justice cluster. The delays in approval of the Legal Aid Guide by parliament, and the re-write of the Legal Aid Act impacted on the policy environment of the Legal Aid Board.

Discussion
Mr L Joubert (DA) told the LAB that the Committee had received petitions from legal practitioners in relation to doing work for the Board, but noted that this matter was receiving attention from the Board.

Mr Jerry Makokoane, Chief Operations Officer, LAB replied that this was a matter of consolidation. There had been a demonstration at about the same time as the organised labour demonstration against the government, but the Board was independently concerned with the matter. Management sat down with the major unions periodically and felt they needed to showcase beyond the measure of their engagement. They did notice that the unions were quite informed about their services and processes

As for the occupational dispensation, the LAB was part of the Department of Public Service and Administration (DPSA) task team and the areas of parity were being finalised in relation to the whether there would be any normative remuneration. The benchmarks were job description, qualifications and experience of the practitioner. The Board had looked further at the legal field and its performance, and also at specialised areas such as land matters.

Mr Joubert informed the LAB that the last time the Public Protector was before the Committee he had said that 10% of complaints to his office concerned the Legal Aid Board.

Mr Brian Nair, National Operations Executive, LAB replied that the Board also received complaints; it received letters from prisoners on a daily basis, which were copied to about ten other organisations. In most cases LAB would have dealt with the letters, which often concerned refusal of legal aid. He acknowledged that LAB had a relationship with the Public Protector and other organisations, who would also refer complaints to them. He said that he did not think that the letters were ever going to stop but LAB was working on improving its response.

Adv C Johnson (ANC) asked if there were any figures, and comparative percentages, as to how many juveniles were awaiting trial and how much was allocated to children.

Mr Nair replied that he did not have the statistics with him, but he was sure that the percentage was above 10%, and the majority of the cases were in the criminal justice system. He added that whilst in the civil matters the children were not directly involved there were issues such as divorce that impacted upon them. LAB never refused a child legal aid, irrespective of the fact that the parents could afford legal representation. They did this because they did not want juveniles to be under represented.

Ms Johnson asked what LAB were doing in terms of access to justice because when they applied the means test there were people who were falling through the cracks.|

Ms Vedalankar replied that the reality of all subsidy systems was that there were some people that would fall within the cracks. There were ongoing dialogues between the practitioners and the LAB about the Justice Centres, which meant effectively there was less work being referred to the private practitioners and this had caused tension. She wanted to challenge the legal community to do something about the people that were not covered when the means test was applied, as they often could not afford legal representation.

Judge Mlambo added that the people who failed the means test should be an opportunity for the private sector to fulfill their pro bono initiative and he was challenging this sector. He said that it was unfortunate that the pro bono initiative in South Africa was very weak, and perhaps needed to be boosted, and an accreditation system was a possibility. It had been mooted that if private practitioners did pro bono work they would earn a certain amount of points. There was work ongoing on how to strengthen the pro bono initiative in South Africa.

Mr J Sibanyoni (ANC) commended that the current Legal Aid Board on its work and said that he was especially impressed by their reports, especially considering the dysfunctional history.

Mr S Swart (ACDP) echoed the comments of Mr Sibanyoni on this point and commended the Board for a turnaround job well done.

Mr Sibanyoni remarked that he was worried about the interpretation given in courts to the accused, which often carried with it connotations of incompetent state practitioners. Many accused preferred to speak for themselves as opposed to having a Legal Aid Practitioner.

Mr Nair replied that the LAB had noticed this particular problem and was currently engaged in a programme to informally meet with interpreters in an effort to build a common rapport, so that they could portray the LAB and its rules more positively and accurately. They were of the opinion that interpreters played an important role. LAB was also trying to ensure that when the magistrates articulated the rights of the accused they did so correctly, without referring to the LAB as “state lawyers”.

The Chairperson asked for the specifics of this programme and he also asked for a projection of its effectiveness.

Judge Mlambo replied that he from his experience the problem arose from people’s attitudes. He said that in the districts he had visited, where the magistrate was favourably inclined to the LAB, he took the time to explain to the accused the benefits of having an LAB practitioner. However, those magistrates that did not want to engage with the LAB would not do so; their main goal was to finalise the case. As a result LAB practitioners were complaining that their reputation was in tatters.

The Chairperson asked how LAB planned to deal with the challenge of reaching out to the magistrates. He was of the opinion that the Minister should be informed of this dynamic and added that the Committee was going to raise this issue in parliament.

Mr Nair replied that there was a supervisory officer who met and interacted with the relevant stakeholders. He also discussed how to improve programmes. The problem was that many people unconsciously perceived LAB practitioners as “state lawyers”, and the challenge was to promote the correct view. A further programme involved visits to courts on an annual basis, like the sub clusters, where the LAB would engage with them on problems they had picked up. This allowed the Board to establish relationships that would help in the changing of perceptions. At the national level people like himself or the legal development officer met with lower court management, and raised all the problematic issues, and they in turn would raise these issues with their cluster heads. The engagement could also be at the local level but would focus primarily on emphasising proper articulation of the functions of the LAB. .

The Chairperson commented that if ensuring that their work was of high quality and standard would go a long way to change the negative perceptions.

Judge Mlambo remarked that the perception of low quality was fuelled by the private sector. This was due to the tension created when the LAB began using the Justice Centres as opposed to sourcing practitioners from the private sector. Many private practitioners that relied on the LAB lost out, but LAB noted that Justice Centres were infinitely cheaper than outsourcing. However, this had led to private practitioners who badmouthed the LAB at every opportunity, and although some of the poor perceptions had been healed, they would continue for some time. However, he had to add that the bad perception has somewhat alleviated but this was going to continue.

Ms Vedalankar added that people tended to forget that in criminal matters the prosecuting authority had its own target goal of getting at least a 70% conviction rate. Prisoners simply wanted an outright acquittal, and would not always understand the dynamics of pleas on a lesser charge. To suggest that the LAB’s work was of poor quality because they did not succeed in obtaining a certain number of acquittals was not fair.

Mr Jan Maree, Board Member, LAB, added that the perception started about five years back when the LAB was not allowed to employ full time practitioners and could only employ candidate attorneys. He noted that the perception from the broad based legal society had changed and the LAB had come a long way since 1998.

Mr Sibanyoni informed the committee that he once made an unannounced visit to the Legal Aid Board and found them training new candidate attorneys. He thought the training they were getting was far superior to the training they would have received at a private law firm. However, there was still the problem of the misperception that the Legal Aid Board gave low quality work.

Mr Sibanyoni asked whether legal aid was based only on an indigence test, or if the LAB would also considered the nature of the charges.

Mr Nair replied that the starting point was the means test, based on indigence, but in criminal matters LAB also looked at the type of the case and whether the accused could pay part of the fees.

Mr Swart informed the LAB that he had previously talked to the Minister about the status of civil litigation in the LAB. The Minister informed him that there were efforts to increase the LAB’s civil capacity. He enquired whether this had borne fruit yet. He noted that civil actions were needed under legislation such as that concerning illegal evictions, and he was concerned that if the budgetary constraints prevented the Board from taking on such work, it might end up being sued by potential litigants.

Mr Nair replied that in civil cases the first consideration was also indigence but the LAB also looked at the nature of the case and its merits and whether the proposed solution was of benefit to the client. Indigence was not the only material aspect in civil litigation.

Mr Swart asked if the decrease in the civil matters was due to the budget constraints.

Mr Nair replied that he did not have the statistics at hand. Because of the funding, LAB would deliver more criminal cases than civil cases, and there was not capacity for civil litigation that would ensure an increase in civil cases as opposed to criminal litigation.

Mr Swart proposed that the next time they went to Pollsmoor Correctional Centre the Committee should also take with them a member of the Board, to answer the questions the Committee could not answer - such as what was in place for prisoners awaiting trial. He thought that this could go a long way in the changing of perceptions.

The Chairperson thought that this was an excellent idea that should be implemented immediately.

Mr Swart asked if the Board monitored withdrawn cases and if these were considered finalised matters or whether they could be re-introduced on the roll at a later date.

Mr Nair replied that the State did not withdraw cases unless for good cause. The LAB lawyers played a very active role in showing that a case could not be made out against the accused and that the matter should not continue. Even on the issue of convictions, LAB would succeed in about 12% of cases, in having convictions reduced to the lesser charge. A “withdrawn” matter would only ever be placed back on the roll as an entirely new charge.

Ms Vedalankar added that in their effort to increase justice to all LAB was working with the South African Police Services (SAPS) on a computer grid system that would enable the Board to be aware of and keep track of arrests by the police. The arrest would appear on their grid and the Board could then decide if it wanted or was able to take up the case. The LAB had also looked at the option of servicing police stations but the problem was lack of resources, which was why the LAB would target only certain stations with a large number of arrests.

Judge Mlambo added that on the issue of civil aid he was glad that LAB was no longer being accused of providing an unfunded mandate. He had met with the Minister and the Director General of Justice, and together they had discussed how civil aid was supposed to be funded, so that civil matters should be increased, although the Board must ensure that it was not taking on too many matters too fast.

Mr J Jeffery (ANC) asked what was being done in terms of civil cases that dealt with land evictions. He understood that the LAB had a relationship with the KwaZulu-Natal province, where there was a land / legal cluster. He was concerned about this matter because there were people unaware of their rights who were being evicted from farms although they had no other homes, and could not afford legal representation.

Ms Vedalankar replied that this was one of the areas of civil law where the LAB was struggling to obtain funding, and in its last meeting it had requested about R10 million to deal with precisely this issue. In addition to the above mentioned corporate agreement the LAB also had an agreement with the rural trusts, with the help of the Department of Land Affairs, which would provide about R5 million that would be used by the Justice Centres to engage with land issues.

Mr Jeffery asked if this was going to be an ongoing matter.

Ms Vedalankar replied that the Board was trying to have the Department of Land Affairs take over the current arrangement.

The Chairperson noted the progress. He added that it was the Committee’s duty to highlight to the Minister and Parliament the challenges the Board was facing. The Committee would therefore draft a report to Parliament, a copy of which would go to the LAB.

Mr Swart added that part of the dilemma was that there was legislation that mandated the Board to offer legal aid in certain cases, but no funding to implement it.

Mr Jeffery asked if they was any linkage between new cases and the population; he highlighted that Limpopo and the Northern Cape had vast differences in population but had the same number of cases. Highly populated areas like KwaZulu- Natal had fewer cases than the lower-populated Western Cape.

Ms Vedalankar replied that there was no correlation between the number of cases and the population. Rather, the number of cases was related to the number of arrests made which resulted in charges. The Board would be investigating how the number of cases should balance out with the population.

Mr Jeffery asked if the statistics meant that there was more crime in the Western Cape than in KwaZulu-Natal.

Ms Vedalankar replied that she could not comment, but it certainly could mean that the Western Cape Province’s police were more efficient.

Judge Mlambo added that the Committee should not forget that the Western Cape had more Legal Aid infrastructure than other provinces, as a legacy of apartheid, and this had its own impacts.

Mr Jeffery remarked that the maps tabled were incorrect; Kokstad and Lusikisiki were included in an incorrect province.

Ms Vedalankar apologised for the mistake.

The Chairperson remarked that the Committee was regarding all matters seriously.

Mr Sibanyoni asked if the practitioners had mastered the SMS service, and what would happen if the SMS was not returned.

Ms Vedalankar replied that the LAB was using a system where they accredited the Judicare Practitioners, who would receive an SMS when a matter cropped up. The first practitioner to respond got the brief. If there was no response they did not follow up, because it was a matter if first come, first served.

Judge Mlambo added that recently the LAB had to look at the question of whether they should employ the services of the practitioners in the rebel bars, as there were certain concerns relating to their quality of work. It was also a question of political correctness as most of the practitioners in the rebel bar had come from previously disadvantaged backgrounds or had disciplinary issues. The Board was hoping to resolve the matter shortly.

Ms Johnson asked whether in the spirit of transformation they had a specific target of employing people from previously disadvantaged backgrounds and women.

Ms Vedalankar replied that the LAB did have a policy in favor of black practitioners and allocations for white, black, Indian, and coloured practitioners, but the policy fell short of specifically targeting women.

The Chairperson asked if the LAB was allowed to raise external funds.

Ms Vedalankar replied that it could, but this was limited to very small projects.

The Chairperson suggested firstly that the LAB use the same format in their annual report as they had done in the presentation, which had been focusing on the very issues the Committee was interested in. He agreed with the researchers that the report was a little vague, but the presentation was much clearer and more focused.

The Chairperson asked if the LAB had creative ways to source money. He said that the fact that the Guide had still not been approved was appalling. The Committee would invest six months into engaging with the Department on the issue. He emphasised that any entity reporting to the Committee should never gloss over its challenges and problems because this would not enable the Committee to engage with and pressurise the Department. He commended the LAB for having an unqualified report six years in a row.

Committee business
The Chairperson noted that the Committee’s legislative programme would be finalized and adopted next Tuesday. It was important for the Committee to find a balance between their legislative and oversight roles. This would set the basis of the programme until 2009 but the Committee must ensure it was not mechanical, but flexible, in its approach. He suggested that Fridays should be kept open to deal with matters referred back from the NCOP – such as the Sexual Offences Bill. The Committee must also prioritise bills which had been pending for a long time. Quarterly reports would also be prioritised and though it was not possible to go through every one in depth, Members would need to engage with as many issues as possible.

The meeting was adjourned.

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