Legal Aid Guide 2008: Ratification, Judicial Officers salary increases: approval

NCOP Security and Justice

22 October 2008
Chairperson: Mr L Mokoena (ANC, Limpopo)
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Meeting Summary

The Legal Aid Board tabled and took the Committee through the proposals contained in the 2008 Legal Aid Guide. It was noted that if an accused had been charged with a criminal matter in a High or Regional Magistrates Court he or she would qualify for legal aid without further enquiry into the nature and seriousness of the charge, if unable to afford the costs. In the District Court there would be assistance only if the accused qualified on the means test and if the matter was not included on the list of offences contained in the Legal Aid Guide. In civil matters, legal aid was made available only in cases where substantial injustice would otherwise result and depending on the availability of funds. Children and farm workers received priority in civil matters. Legal Aid for claims under the Restitution of Land Rights Act was limited to those cases where the Land Claims Commissioner had made funds available to the Board to fund these matters or where the Commissioner had been the opposing party to the litigation. Legal aid was guaranteed to asylum seekers that had applied or intended to apply for asylum under Chapter 3 and 4 of the Refugees Act of 1998. The 2008 Guide would further define “indigent person”, and the new means test set a threshold of R5 000 net income after taxation for individuals and R5 5000 for households after taxation.

Members asked whether the Legal Aid Board would be involved in the proposed Integrated Justice System, queried the procedures when applicants approached the Board, in particular the allegations that they had waited several years for decisions, and that they were required to produce other documentation, questioned the wording of the Guide, which was still based on the old Legal Aid Act, and asked about the effectiveness of both the Board’s services and their mobile offices in rural areas. Queries were also raised as to how the provision of legal aid compared to the rest of the world, the fact that legal aid was automatically granted to asylum seekers yet not to land claimants, how the Board measured its success rates, and what type of training and supervision was given to candidate attorneys. Members resolved to ratify the Legal Aid Guide.

The Committee then received a presentation from the Department of Justice on the Moseneke proposals for increases in the salaries of Constitutional Court judges, other judges and magistrates, and resolved to approve the proposals.

Meeting report

2008 Legal Aid Guide
Mr Patrick Hundermark, Legal Development Executive, Legal Aid Board, tabled and read through the presentation on the 2008 Legal Aid Guide and summarised the changes that had been made.

He noted that if an accused had been charged on a criminal matter in a High or Regional Magistrates’ Court then that accused would qualify for legal aid without further enquiry into the nature and seriousness of the charge, if the accused was unable to afford the legal costs. He added that an accused would only be assisted in a District Court if the accused qualified for legal aid along the usual enquiry lines, and if the matter was not included on the list of offences contained in the Legal Aid Guide.

He noted that legal aid would be made available to applicants in civil matters if substantial injustice would otherwise result, and taking into account the availability of funds.  Children received priority in civil matters.

Legal aid was not available for claims under the Restitution of Land Rights Act, except where the Land Claims Commissioner (LCC) made funds available to the LAB to fund these matters, or where the LCC had been the opposing party to the litigation.

The Legal Aid Guide also guaranteed legal aid to asylum seekers that had applied or intended to apply for asylum under Chapter 3 and 4 of the Refugees Act of 1998.

The Legal Aid Act did not define “indigent person” and the 2008 Guide wished to rectify that via the means test that had been revised over the past few years. The means test would thus determine indigence for the purpose of considering legal advice. The threshold to qualify for legal aid was set at income of R5 000 for single applicants, net after income taxation, and R5 500 net for households after income had been taxed.

Adv Pieter Du Randt, Chief Director, Court Services, Department of Justice, said that Legal Aid Guide was last ratified in 2002 but had been updated annually to align it with current developments. He noted that the Legal Aid Board (LAB) had been in discussion with the Department of Justice (DoJ) to amend the Legal Aid Act, which was outdated.

Discussion

The Chairperson said that he was delighted to finally have a briefing by the Legal Aid Board (LAB), as the Committee had always wanted to engage with the Board.

Mr Z Ntuli (ANC, Kwazulu Natal) asked whether the LAB would be involved in the proposed Integrated Justice System planning and consultation processes.

Ms Vidhu Vedalankar, Chief Executive Officer, Legal Aid Board, said that the LAB had been approached by the Department of Justice to be part of the Criminal Justice Review and that it had already engaged with the Deputy Minister on Justice on the issue.

Mr M Mzizi (IFP, Gauteng) commented that often the complaint was made that when poor people approached the LAB, they would be sent from pillar to post, and that in some instances they had been sent to the police station to make an affidavit, which, in many instances, was quite far away from the LAB’s own offices. He found this strange, as every attorney automatically became a Commissioner of Oaths once he or she had been admitted to practice.

Ms Vedalankar replied that at no time would people be asked to bring a bank statement or any other form of documentation, including affidavits, that attested to their financial position, as there had been one standardised form that had to be completed by the applicant. She added that Mr Mzizi should furnish her with the relevant details of the complainant in this instance, so that she could address the matter as soon as possible.

Mr Cobus Esterhuizen, Justice Centre Executive, Legal Aid Board, added that no LAB office had been mandated to send people to police stations for an affidavit, and that instructions on this matter had been forwarded to all offices.

Mr N Mack (ANC, Western Cape) said that “Senate” on page 4 of the LAB Presentation had to read “National Council of Provinces”.

Mr Hundermark replied that “Senate” would be substituted with “National Council of Provinces”, and the reference to it still stood as it had been taken from the Legal Aid Act of 1969.

Mr Du Rand added that the proposed amendments to the Legal Aid Act would aim to align the old Legal Aid Act with current developments as well as the Constitution.

Mr A Moseki (ANC, North West) said that at times the means test used by the LAB was problematic. He suggested that some people had to wait for years on a response from the LAB, and cited a family in his constituency who had waited for over two years for a response from the LAB.

Ms Vedalankar replied that there had to be criteria that could determine eligibility. This was so that legal aid could be limited to those who really needed it, as otherwise it would be completely unaffordable for the State.  She added that the means test had been broadened so that more people could possibly qualify.

Mr Hundermark added that one of the reasons why this issue cited by Mr Moseki might have taken long to be resolved could be attributed to the LAB reviewing evidence and other related matters. He added that he would look into the matter.

Mr Moseki asked how effective and visible the LAB had been in rural areas.

Mr J Le Roux (DA, Eastern Cape) asked how the South African Legal Aid System compared with others internationally.
 
Ms Vedalankar replied that South Africa’s legal aid system compared favourably to the rest of the world. It dealt with about 400 000 cases per year, on a R700 million budget.

Mr Hundermark noted that the United Kingdom spent about 2 billion pounds sterling on legal aid, but even that high figure had not been enough to deal with all the cases.

Mr Le Roux noted that he found it strange that asylum seekers qualified automatically for legal aid, whilst South Africans had been subjected to a means test.

Mr B Mkhaliphi (ANC, Mpumalanga) asked whether the LAB had adequate resources to their disposal, pointing out that the current vehicles that they had been using as mobile units were not suited for deep rural areas.

Mr Hundermark replied that the LAB was currently busy with a review of all of its assets and that there definitely was a need for new vehicles that could access remote rural areas. He added that the LAB currently had 49 satellite offices and 69 Justice Centers. He admitted that more had to be done to assist rural communities.

Mr D Worth (DA, Free State) asked whether the LAB had the capacity to assist in civil matters.

Ms Vedalankar replied that the LAB could not assist all applicants in civil matters as it did not have the funds. The policy directives from the Ministry of Justice had given priority to children and farm workers on civil matters. She noted that 10 % of the 400 000 cases that the LAB dealt with annually had been civil cases.

Mr Worth asked how many of the cases handled by the LAB had successful results.

Ms Vedalankar replied that the LAB did not measure their success in terms of acquittals, but rather on whether the accused had received a fair hearing. In the case of bail applications, they would judge the success on whether the outcome was reasonable. In most cases State Prosecutors would only prosecute the cases that they felt would have a reasonable chance of resulting in a conviction. The LAB, on the other hand, had to provide assistance to a person who was financially needy, regardless of whether or not it considered that the matter might be successfully defended. At the moment 24% of the LAB’s cases had resulted in acquittals.

Mr Du Rand added that in many instances the State Prosecutor and the defense attorney would compromise on the extent of the sentence and / or the plea.

Mr Moseki asked whether the LAB provided adequate assistance to candidate attorneys.

Mr Hundermark replied that the LAB had set up quality control mechanisms to monitor the performance of their candidate attorneys, and that it had an in-house candidate training course, besides the five week course that had been offered by the Law Society.

He added that each candidate attorney was supervised by a more senior and experienced legal practitioner, who received daily updates on the status of the cases and checked that all relevant steps and research had been conducted. In addition, candidate attorneys were also assessed whilst in court, and if they performed below par then the LAB instituted corrective measures. Candidate attorneys were also not allowed to represent clients in the Regional or High Courts.

Mr Moseki asked that the LAB Guide be printed in a booklet form and distributed to constituency offices for access by the people.

Ms Vedalankar said that it would be done.

Ms F Nyanda (ANC, Mpumalanga) asked how many legal practitioners were at the LAB.

The question went unanswered.

Mr Ntuli asked whether the LAB made use of Section 62 (f) of the Criminal Procedure Act.

Mr Mokoena noted that he was not entirely satisfied with the criteria of cases that the LAB took on. Many people could not afford to hire their own legal representatives in land restitution cases, illegal occupation and eviction cases, yet asylum seekers qualified automatically for assistance. He also noted that it would be desirable for the LAB to assist people involved in claims against the Road Accident Fund, instead of the private law firms, but noted also that this proposal had created a furore when it was mentioned.

The Committee then considered the ratification of the Legal Aid Guide, and voted unanimously to ratify it.

Salaries of Constitutional Court Judges, Judges and Magistrates: Moseneke Proposals
Mr Johan de Lange, Principal State Law Advisor, DoJ, briefed the Committee on the proposals by Deputy Chief Justice Moseneke for the increases of the salaries of Constitutional Court judges, other judges and magistrates.

He noted that the salary of the Chief Justice had been raised to R1 896 546 million, that for the Deputy Chief Justice it was proposed at R1 706 847 and R1 706 847 for the President of the of the Supreme Court of Appeals. The remainder of the salaries were indicated on the attached document.

He then noted that the salaries of the Special Grade Chief Magistrate and the President of the Regional Court had been increased to R853 479. He noted that concern had been raised over the increase of the President of the Divorce Court as it was on par with the latter. Mr de Lange said that the Committee could agree on the salary increases, but that the matter of the Divorce Court president would be sorted out.

The proposals were agreed to by the Committee.

The meeting was adjourned

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