Strengthening Legal Aid: Overview of Legal Aid Bill 2014

1. BRIEFING TO PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES ON LEGAL AID BILL, 2014 ON 29 JULY 2014

2. BACKGROUND • Legal aid is currently regulated by the Legal Aid Act, 1969 (Act 22 of 1969)(the Act). • The Act is outdated and requires revision in its entirety to replace it with a new Act to streamline its application. • The Legal Aid Bill (the Bill) is the product of a task team comprised of representatives of the Department from the Branches: Legislative Development, Legal Advisory Services, Court Services and the Policy Chief Directorate, as well as representatives of Legal Aid South Africa's current Board .

3. clause 1: Definitions Currently the Act only defines “Board” and “Minister”. Several new self-explanatory definitions are inserted in the Bill.

4. Clause 2: Establishment of lasa • Legal Aid South Africa (LASA) is established. • It is a national public entity. A national public entity is a national government business enterprise; or a board, commission, company, corporation, fund or other entity, other than a national government business enterprise, which is established in terms of national legislation; fully or substantially funded either from the National Revenue Fund, or by way of a tax, levy or other money imposed in terms of national legislation; and accountable to Parliament. • LASA is governed by a Board of Directors.

5. Clause 3: Objects OF LASA • Render or make available legal aid and legal advice, • provide legal representation to persons at State expense as envisaged in the Constitution, this Act and any other law, and • provide education and information concerning legal rights and obligations.

6. clause 4: Powers and functions OF BOARD • Employ legal practitioners and paralegals and procure legal services of practitioners in private practice. • Determine its staff establishment and conditions of employment. • Purchase or acquire or hold or alienate any movable or, with the approval of the Minister acting in consultation with the Minister of Finance, any immovable property. • Hire or let any movable or immovable property. • Fix conditions subject to which legal aid is to be rendered.

7. Powers and functions (cont) • Provide legal representation at State expense as envisaged in the Constitution, this Act and any other law, where substantial injustice would otherwise result. • Conduct public awareness programmes. (This is a new function) • Pay out of the funds of LASA remuneration and allowances to members of the Board, their alternates and any committee members appointed who are not in the full-time service of the State. • Do all things and perform all functions as may be necessary for, or incidental to, the attainment of the objects of Legal Aid South Africa.

8. Clause 5: Independence and impartiality • LASA, • its directors, • its employees and agents, must serve impartially and independently. • They exercise their powers and perform their duties and functions in good faith and without fear, favour, bias or prejudice. • This is a new provision.

9. clause 6: Composition of Board • 14 members (all appointed by Minister): (Currently there are 18 members) • A judge of the Constitutional Court, Supreme Court of Appeal or high court, nominated by Chief Justice. • 8 members who, collectively, have skills which include business management, information technology, legal services, corporate governance, accounting or auditing skills, or community-based knowledge relevant to legal aid. • The CEO. • 3 persons who hold senior executive positions in LASA, nominated by the Board. • The Director-General: Justice and Constitutional Development or his or her nominee • Alternates may be appointed by the Minister. • Any vacancy is filled in accordance with this clause.

10. Clause 7: Qualifications for membership of the Board Members must be- • fit and proper persons; • South African citizens; • collectively, be broadly representative of the diversity of the South African population; • collectively, have skills which include business management, information technology, legal services, corporate governance, accounting or auditing skills, or community-based knowledge relevant to legal aid; and • not have been convicted of theft, fraud, perjury, or an offence under the anti-corruption legislation of 2004 or have been convicted after the commencement of the Constitution of an offence referred to in Schedule 1 to the Criminal Procedure Act, 1977.

11. clause 8: Chairperson AND DEPUTY CHAIRPERSON • The judge is the chairperson. • Minister must designate in writing one of the directors as deputy chairperson who acts if the chairperson is unavailable. • If both the chairperson and deputy chairperson are absent from a meeting of the Board, a person elected by the directors present from among themselves, acts. • Deputy chair has all the powers, duties and functions of chairperson when acting as such.

12. clause 9: Term of appointment • The judge, 8 members, and 3 LASA members hold term for not less than three years and not more than five years, as determined by the Minister, in writing, at the time of appointment. • They may be reappointed for one additional term only.

13. clause 10: Termination of membership A person ceases to be a director when he or she - • resigns; • becomes disqualified; or • in the case of LASA employees, leaves LASA’s employ. The Minister may remove a director from office for – • misconduct; • failure to perform; • permanent incapacity; • being absent from three consecutive meetings without leave and without good reason; or • engaging in any activity that is reasonably capable of undermining the integrity of LASA.

14. clause 11: Meetings of Board • Board must meet at least four times per year. (This is in accordance with the King III Report recommendations.) • The secretary of the Board must, at any time, upon the request of the – • Chairperson; or • at least four directors (one of whom must be the judge or one of the 8 members), convene a special meeting of the Board.

15. clause 12: Quorum • The quorum at any meeting of the Board is half of its members, plus one. • A decision must be taken by the majority of directors present, plus 1. • The Board may determine the procedure of its meetings.

16. Clause 13: committees • Clause 13 provides for establishment of committees. • The Board must determine the powers, duties and functions of a committee; designate a member of a committee as chairperson and may designate a member of a committee as deputy chairperson. • The Board may, at any time, remove a member of a committee or dissolve a committee. • The Board may determine the procedure for the conduct of meetings of a committee. • This clause is considered necessary for Board's smooth operation. • There is no similar provision in the Act.

17. clause 14: Delegation of powers • Subject to the PFMA the Board may delegate any of its powers, duties or functions to any director, committee, employee or agent of LASA. • A delegation or assignment is subject to conditions and directions of the Board. • A delegation does not divest the Board of the responsibility for the exercise of the power or the performance of the duty or function.

18. Clause 15: Appointment of chief executive officer • All the provisions relating to the CEO are new aspects as it is not provided for in the Act. • The Board must, whenever necessary, appoint a CEO of LASA. • The CEO is appointed for a term of 5 years, which is renewable. • The remuneration package of the CEO is determined by the Board in accordance with clause 18 of the Bill. • An acting CEO must be a senior executive of LASA.

19. Clause 16: Functions of CEO • Is responsible for the general administration of LASA. • Must manage and direct LASA’s activities to promote and give effect to the objects of LASA. • Must supervise its staff. • Subject to the provisions of section 56 of the PMFA, has the powers, duties and functions as may, in writing, be delegated or assigned to him or her by the Board.

20. clause 17: Employees • This provision differs from the Act, as the Board currently appoints. • The CEO must in consultation with the Board, and subject to clause 18 appoint as many senior employees; andappoint as many other employees and agents as may be necessary. • LASA has the right to operate its offices and justice centres without having to seek accreditation from any law society and is entitled to employ candidate attorneys, subject to the provisions of the Attorneys Act, 1979. • Attorneys and candidate attorneys employed by LASA must be members, in good standing, of the law society having jurisdiction and are subject to the disciplinary control of the law society in question.

21. clause 18: Terms and conditions of employment • LASA employees and CEO are employed subject to terms and conditions determined by the Board in consultation with the Minister of DOJ&CS and the Minister of Finance. • Expenditure arising may not exceed the appropriated budget allocation to LASA in terms of the PFMA. • The terms and conditions of employment must comply with the basic values and principles set out in section 195 of the Constitution. • The provisions of the Labour Relations Act, 1995 relating to collective bargaining are applicable .

22. Clause 19: CLIENT Privilege • There is no similar provision in the Act. • A private legal practitioner must, when requested by LASA, grant access to the information and documents contained in the file relating to the person in question for the sole purpose of conducting a quality assessment of the work done by the legal practitioner. • The information and documents remain privileged information against any other party as information between attorney and client, despite having been made available to LASA.

23. Clause 19: Privilege (cont) • This clause is necessary to enable LASA to do quality control and assess whether private practitioners conduct cases allocated to them properly. • Currently, when there is a complaint, LASA cannot access the case file due to the privilege rule, to detriment of client and LASA.

24. Clause 20: Recovery of costs • This clause is the same as section 8A of the current Act. • Whenever legal aid is rendered and costs become payable, it is deemed that the litigant or other person has ceded his or her rights to those costs to LASA. • A litigant , person, his or her legal representative or LASA must, at any time before payment of the costs give the person by whom the costs are to be paid and the registrar or clerk of the court concerned notice in writing that legal aid is being or has been rendered.

25. Clause 20: Recovery of costs (cont) • LASA may proceed in its own name to have those costs taxed and to recover them. • The costs must be calculated and the bill of costs must be taxed or agreed as if the litigant or person to whom legal aid was rendered, had obtained the services of the legal representative acting on his or her behalf in the proceedings or dispute concerned, without the aid of LASA.

26. clause 21: Finances • The funds of LASA consist of money appropriated by Parliament, and money received from any other source. • The money must be budgeted for, dealt with, managed and accounted for, in terms of the PFMA. • Chapter 6 of PFMA deals with all these aspects and is applicable. PFMA applies to public entities listed in Schedule 2 or 3 to the PFMA. LASA listed in Schedule 3. • PFMA provides for all aspects necessary to ensure proper financial management.

27. clause 22: Direction for legal aid by court in criminal matters • Similar to section 3B of Act. • The clause prescribes what a court has to take into consideration, and what steps must have been taken, before it gives a direction that a person should receive legal aid at state expense. • A decision by LASA is subject to review by the High Court. • A new aspect that is inserted in the Bill is a reference to certain aspects of POCA.

28. clause 23: Legal Aid Guide/Manual • The Bill provides for a Manual, which is currently called the Guide. • The Board must compile, review amend and approve the Legal Aid Manual at least every 2nd year. • It provides mainly for administrative matters to be included. • The Manual and any amendments must be submitted to the Minister who must table them in Parliament and simultaneously give notice thereof in Gazette. It takes effect 60 working days after publication. • LASA must publish the manual and any amendments thereof on its website and a copy thereof must be available for inspection at all offices of LASA.

29. Clause 24: Regulations • The Minister must make regulations after receipt of recommendations of the Board, regarding – • types of matters for which aid is provided or not provided; • requirements an applicant must comply with to qualify for aid; • the policy relating to approval, refusal and termination of aid. • Regulations made must be tabled in Parliament by the Minister at least 30 days before they are published in the Gazette. • The regulations made may provide that any person who contravenes a provision thereof or fails to comply therewith is guilty of an offence. • There is no provision in the Act for regulations.

30. Clause 25: Repeal of laws • The Act is repealed and legislation referring to the repealed Act is amended to refer to the new legislation.

31. Clause 26: Transitional Provisions • The current Board members are deemed to have been appointed under Bill and remain for 12 months after commencement of the new Act. • The CEO and the three persons referred to in clause 6(1)(d) (that is the LASA managers) become members of the transitional Board. • The transitional Board, in 12 months, must facilitate the composition and appointment of new Board. • LASA requested this to ensure a smooth transition and continuity. • CEO holding office at commencement of Bill remains in office and is deemed to have been appointed in terms of the Bill and is eligible for re-appointment. • Anything done in terms of a law repealed and which could have been done in terms of this Act is regarded as having been done in terms of this Act.

32. Transitional Provisions (cont) • Measures regarding remuneration, pension, leave and any other terms and conditions of service, continue in operation and apply, until they are amended or repealed by this Act. • All assets, rights, liabilities and obligations which, immediately prior to the commencement of this Act, vested in the Legal Aid Board pass to LASA on the date of commencement . • The Legal Aid Guide in force on the date of commencement remains in force until it is withdrawn and replaced by regulations and the Legal Aid Manual . • The first regulations and Legal Aid Manual must be made and published within 24 months after the commencement of this Act.

33. Clause 27: Short title and commencement • Act will come into operation on a date fixed by the President by proclamation in the Gazette.