1 / 22

DRAFT REGULATIONS IN TERMS OF LEGAL AID SOUTH AFRICA ACT, 2014

DRAFT REGULATIONS IN TERMS OF LEGAL AID SOUTH AFRICA ACT, 2014. BRIEFING TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES 31 MARCH 2017. INTRODUCTION.

dmullen
Download Presentation

DRAFT REGULATIONS IN TERMS OF LEGAL AID SOUTH AFRICA ACT, 2014

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. DRAFT REGULATIONS IN TERMS OF LEGAL AID SOUTH AFRICA ACT, 2014 BRIEFING TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES 31 MARCH 2017

  2. INTRODUCTION • The Legal Aid South Africa Act, 2014 (the Act) came into operation on 1 March 2015, repealing the outdated Legal Aid Act, 1969. • The policies and procedures for the provision of legal aid are currently set out in the Legal Aid Guide that was issued by Legal Aid South Africa under the repealed Legal Aid Act, 1969. • As a transitional arrangement the new Act provides that the existing Legal Aid Guide remains in force until it is withdrawn and replaced by regulations and the Legal Aid Manual made in terms of the new Act. • In terms of the new Act the first regulations and Legal Aid Manual must be made and published within 24 months after commencement of the Act, in other words before 1 March 2017. The deadline was not met. • The processes and procedures required to be followed in the preparation and finalisation of the regulations took much longer than is usually the case, giving rise to the unfortunate delay. • In this regard legal opinions were sought to clarify the position with regard to the guide and the manual in light of the regulations not being timeously promulgated

  3. INTRODUCTION contd • The OCSLA have provided an opinion which concludes, on a literal interpretation, that the Legal Aid Guide and Manual falls away after 28 February 2017, seeing that the new regulations have still not come into force. The Department and Legal Aid SA do not agree with this opinion. • A legal opinion from Senior Counsel was sought and it concludes as follows: “The existing Legal Aid Guide will remain in force after 28 February 2017 until such time as the new Regulations and Manual are made under section 23(1) and published under Section 24(1) respectively. Although the Guide will not be invalidated by any delay on the part of the Minister or Legal Aid SA after 28 February 2017, Legal Aid SA and the Minister will be in default of their statutory duties under section 26(6)(b) for each day that passes after 1 March 2017, without the new Regulations and Manual being put into effect. Legal Aid SA should accordingly take all reasonable steps to ensure that the new Regulations and Manual come into force as soon as possible.”. • This conclusion in the legal opinion has resulted in Parliament being approached and requested to finalise the matter as soon as circumstances permit.

  4. ENABLING PROVISIONS Section 23(1) and (2) of the Act provides as follows: • The Minister must, after receipt of recommendations of the Board of Legal Aid SA, make regulations relating to— • the types of matters, both civil and criminal, in respect of which Legal Aid SA— (i) provides legal aid; (ii) does not provide legal aid; and (iii) provides limited legal aid and the circumstances in which it does so; • the criteria that an applicant must comply with in order to qualify for legal aid and the terms and conditions on which such legal aid is made available to the applicant; • the policy relating to the approval or refusal of legal aid, the termination of legal aid and appeals against such refusal or termination of legal aid; and • any matter which is necessary to prescribe for the proper implementation or administration of the Act. • Any regulations made must, before publication thereof in the Gazette, be tabled in Parliament by the Minister for approval.

  5. ENABLING PROVISIONS contd • Section 24(1) of the Act provides that the Board must compile, amend and approve a Legal Aid Manual relating to— (a) the procedures in terms of which applications for legal aid are administered; • the systems and methods whereby legal aid is delivered; • the requirements and criteria for the accreditation of private legal practitioners who render legal services to legal aid recipients on the instructions of Legal Aid SA and the terms and conditions; and • the regulation of any other administrative matter.

  6. COST IMPLICATIONS AND CONSULTATION • The draft regulations, before they were finalised and approved by Legal Aid South Africa, were sent to the following stakeholders for comments: Rules Board for Courts of Law, the DTI, the DPSA, National Treasury, the NDPP, the Law Society of South Africa, the GCB; The BLA, NADEL, the National Bar Council of South Africa, the National Forum of Advocates, AFT, Chapter 9 Institutions and Lawyers for Human Rights. • Comments were received from the Cape Bar Council and the National Bar Council of South Africa. • The regulations, read with the Manual, do not change the current position as provided for in terms of the Legal Aid Guide, which was issued as recently as 2014 and was required to be ratified by Parliament in terms of section 3A of the repealed Legal Aid Act, 1969. • The procedures and policy as contained in the regulations and the Manual are similar to the existing Guide and there are therefore no budgetary and staffing implications.

  7. DISCUSSION OF THE REGULATIONS • The regulations, empowered by the Act, are intended to provide the detail on policy matters relating to the provision of legal aid, which may change from time to time as circumstances change, for instance the amounts which need to be adjusted in order to keep pace with inflation. • Each of the 39 regulations is discussed below in chronological order. • Most are self-explanatory in nature. • During this discussion important key policy issues will be highlighted, among others, the means test in regulation 27 and the types of matters which qualify for legal aid. • The types of matters which qualify for legal aid are dealt with in terms of general principles, exclusions, limitations and inclusions. • A document which provides further detail on the provision of legal aid can be made available as well.

  8. DISCUSSION OF THE REGULATIONS • Regulation 1 contains definitions. Noteworthy definitions are “household” and “spouse”. “Household” means family members, spouses, partners, children and parents who live together. “Spouse” means a person married in terms of the Marriage Act, 1961, in terms of the Recognition of Customary Marriages Act, 1998 or in terms of the Civil Union Act, 2006. • Regulation 2 sets out the general policy relating to the provision of legal aid, for instance that legal aid is only available to natural persons and to persons who are physically resident in the Republic. This regulation sets the basic rules, as it were, for the more detailed ensuing regulations. • Regulation 3 provides for the provision of legal aid to a sentenced or detained person or an accused person in criminal trials if it is likely that such person would suffer substantial injustice, for instance if the person might be subjected to a term of imprisonment. Matters for which legal aid may be granted or refused are listed. They remain the same as in the existing Legal Aid Guide.

  9. DISCUSSION OF THE REGULATIONS • Regulation 4 allows legal aid to be granted to a witness in certain circumstances, namely where the witness has been warned by the court to provide incriminating evidence against himself or herself. • In terms of regulation 5 legal aid can be granted to a person in an extradition matter. • Regulation 6 deals with criminal appeals and legal aid may be granted in certain circumstances, for instance the convicted person has been sentenced to imprisonment with an unsuspended portion of more than 3 months.  • In terms of regulation 7 legal aid may only be granted for one bail application.

  10. DISCUSSION OF THE REGULATIONS • Regulation 8 prohibits the granting of legal aid to an accused person who does not qualify for legal aid in terms of the regulations, unless this is directed by a court order in terms of section 22 of the Act. • Regulation 9 sets out the circumstances in which legal aid may be granted for civil matters, for example if the matter has good prospects of success, based on a written merit report where such report is applicable. A merit report, as defined in regulation 1 is a report by a legal practitioner which is an assessment of the facts and law pertaining to an applicant’s case in order to determine the prospects of success in the provision of legal aid in civil matters. A merit report is not necessary in the case of divorces, eviction cases, domestic violence, the administration of estates and maintenance. • The position in respect of civil matters remains the same as in the current Legal Aid Guide.

  11. DISCUSSION OF THE REGULATIONS • In terms of regulation 10 legal aid may be granted in order to progressively implement section 7 of the Constitution. Section 7, among others, requires the State to respect, protect, promote and fulfil the rights in the Bill of Rights. Regulation 10 also set out the criteria which must be taken into account when granting legal aid in this type of case, for instance the seriousness of the implications for the applicant, the complexity of the law in question, the applicant’s chances of success and whether the applicant has a substantial disadvantage compared to the other party. • Regulation 11 sets out the circumstances where civil legal aid is limited or excluded. It also lists the types of cases for which legal aid cannot be granted, for example where there is no substantial and identifiable material benefit to the applicant and in the case of sequestration. • Regulation 12 allows for the granting of legal aid for civil appeals where there is a good prospect of success.

  12. DISCUSSION OF THE REGULATIONS • Regulation 13 provides for the granting of legal aid in maintenance, domestic violence and harassment cases, that is for an initial consultation in order to obtain legal advice and for legal representation at a court hearing if certain criteria are met, for instance if the opposing party is represented by a lawyer and the applicant has a good prospect of success. • Regulation 14 provides for the granting of legal aid labour cases, for instance in the case of assistance to certain matters relating to farm workers. • Regulation 15 deals with the granting of legal aid in divorce and family law cases, when it may be granted (eg in divorce appeals and if the applicant married a foreigner to enable the foreigner to obtain RSA citizenship), and when it may not be granted (eg if the issue in dispute deals with the care of or contact with children).

  13. DISCUSSION OF THE REGULATIONS • Regulation 16 allows for the granting of legal aid for specialist or expert advice in certain circumstances. • In terms of regulation 17 legal aid may be granted for cases relating to land rights. Provision is made for funding by the Land Claims Commissioner. • Regulation 18 provides for the granting of legal aid for cases relating to the Land Reform (Labour Tenants) Act, 1996, the Extension of Security of Tenure Act, 1997 and Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1988. Funding must, however, be made available by the relevant Government Department. • In terms of regulation 19 legal aid may be granted to asylum seekers. • Regulation 20 provides for the granting of legal aid in Hague Convention cases. (The Hague Convention is a multi-lateral treaty to which South Africa is a party and which provides an expeditious method to return a child who is abducted internationally by a parent from one member country to another).

  14. DISCUSSION OF THE REGULATIONS • Regulation 21 allows for the granting of legal aid in Equality Court cases in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. • Regulation 22 provides for the granting of legal aid to a child who may suffer substantial injustice in a civil case, after taking into account certain factors, for instance the financial situation of the child or his or her parents and the child’s chances of success. • Regulation 23 regulates the provision of legal aid to children who require legal representation for purposes of matters in terms of other legislation in which they have a direct interest, for instance to intervene in divorce, care or maintenance proceedings between the parents of the child if substantial justice would otherwise result. Further examples include matters arising out of the administration of a deceased estate, RAF claims and domestic violence matters.

  15. DISCUSSION OF THE REGULATIONS • Regulation 24 lists the types of Children’s Act matters where legal representation can be ordered by the court in terms of section 55 of the Children’s Act. • Regulation 25 provides for the granting of legal aid to mental health care users in terms of the Mental Health Care Act, 2002. • Regulation 26 allows for the granting of legal aid for legal representation for a person appearing before a commission of inquiry established in terms of the Commissions Act, 1947. Funds must, however, be made available for the provision of legal aid by the establishing authority of the commission as contemplated in the Commissions Act, 1947.

  16. DISCUSSION OF THE REGULATIONS * Regulation 27 plays a pivotal role in the determination of legal aid. It provides for the means test in terms of which it is determined if a person qualifies financially for legal aid. * A person in a criminal case who has a net monthly income of R5 500 a month, or less, may qualify for legal aid. The same applies in a civil case if the person is single. * In a civil case, if a person has a spouse or is a member of a household the amount is R6 000. * Assets and property are also taken into consideration. A legal aid applicant who does not own immovable property and has net movable assets of less than R100 000 in value, or who owns property and has net immovable assets and movable assets in value of up to R500 000, may qualify for legal aid for a civil or criminal matter.

  17. DISCUSSION OF THE REGULATIONS • Regulation 28 prescribes which amounts are included or excluded in the application of the means test, for example a grant paid by the South African Social Security Agency is excluded, while spousal maintenance or child support received by an applicant is included. • Regulation 29 provides that a legal aid applicant does not have the right to choose a legal practitioner. • Regulation 30 gives Legal Aid SA a discretion to grant legal aid to a person who exceeds the means test in certain prescribed circumstances. • Regulation 31 provides that if an applicant who does not qualify for legal aid in terms of the means test in a criminal matter, Legal Aid SA may provide partial legal aid and require the applicant to contribute to the cost of the legal aid. Legal Aid SA must take into account various factors when deciding on partial legal aid, for instance whether applicant will suffer substantial injustice if legal aid is not provided.

  18. DISCUSSION OF THE REGULATIONS • Regulation 32 sets out how the contributions referred to in regulation 31 must be paid by the legal aid recipient. • Regulation 33 sets out the circumstances in which Legal Aid South Africa can terminate a legal aid recipient’s legal aid because of the conduct of the legal aid recipient, for instance the recipient fails to appear in court timeously, unreasonably refuses to accept a settlement or makes it impossible for the instructed legal practitioner to carry out his or her mandate. • Regulation 34 provides that a legal aid applicant whose application for aid was refused has the right of appeal according to processes as determined in the Manual.

  19. DISCUSSION OF THE REGULATIONS • Regulation 35 provides for legal aid for litigation or other legal work which has the potential to positively affect the lives of a larger number of indigent persons than the person or persons to whom legal services are rendered directly, namely impact legal services. Impact legal services include matters which may establish a legal precedent or clarify an aspect of the law that will be followed in dealing with indigent persons in similar matters, which may have the potential of resolving a large number of disputes or which may improve the lives of a group of persons or a sizeable portion of such a group.

  20. DISCUSSION OF THE REGULATIONS • Regulation 36 provides that a person’s medical, travelling and witness costs are not paid for by legal aid. • Regulation 37 provides that a legal practitioner may not receive other monies (other than those allowed in terms of the regulations) from a legal aid recipient or from any other source after receiving a legal aid instruction in a particular matter.

  21. DISCUSSION OF THE REGULATIONS • Regulation 38 regulates the payment of certain financial benefits to Legal Aid SA. It provides that a litigant must pay a percentage of his or her financial benefit to Legal Aid SA as determined in the Manual which provides as follows: * The payment is equitable and not to the detriment of any vulnerable or indigent person. * The percentage benefit payable to Legal Aid SA is calculated as follows: • If the benefit obtained is less than R20,000, 0% must be paid to Legal Aid SA; • If the benefit obtained is between the amounts of R20,001 and R100,000, 5% of the amount over R20,000 must be paid to Legal Aid SA; or • If the benefit obtained is above the amount of R100,000, R4,000 plus 10% of the amount over R100,000 must be paid to Legal Aid SA.

  22. DISCUSSION OF THE REGULATIONS Regulation 39 is a transitional provision and provides that any legal aid instruction that was issued before these regulations come into operation, must be continued to be dealt with in terms of these regulations.

More Related