BRIEFING TO SELECT COMMITTEE ON SECURITY AND JUSTICE ON THE LEGAL AID SOUTH AFRICA BILL, 2014

1. BRIEFING TO SELECT COMMITTEE ON SECURITY AND JUSTICE ON THE LEGAL AID SOUTH AFRICA BILL, 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 • The Act is outdated and requires revision in its entirety to replace it with a new Act in order to streamline its application. • The Legal Aid South Africa Bill (the Bill) is to be considered by the National Assembly on 30 October 2014 for approval.

3. BACKGROUND (cont) • The main purpose of the Bill is to establish an entity called Legal Aid South Africa with a Board of Directors and to define its objects, powers, functions, duties and composition.

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

5. Clause 2: Establishment of lEGALaIDsa • Legal Aid South Africa 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. • Legal Aid South Africa is governed by a Board of Directors.

6. Clause 3: Objects OF Legal Aid South Africa • Render or make available legal aid and legal advice, • provide legal representation to persons at State expense, and • provide education and information concerning legal rights and obligations as envisaged in the Constitution and this Act.

7. clause 4: Powers and functions OF BOARD • Employ legal practitioners, candidate attorneys and paralegals and procure legal services of practitioners in private practice. • Determine its staff establishment and conditions of employment of its staff members in consultation with the Minister and Minister of Finance. • 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.

8. Powers and functions (cont) • Provide legal representation at State expense as envisaged in the Constitution and this Act, where substantial injustice would otherwise result, or make legal aid and advice available. • Conduct public awareness programmes. (This is a new function) • Pay out of the funds of Legal Aid South Africa 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.

9. Clause 5: Independence and impartiality • Legal Aid South Africa, • 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.

10. 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, after consultation with the Board; • 8 members who, as a whole, have skills which include business management, information technology, legal services, corporate governance, accounting or auditing skills, or community-based knowledge relevant to legal aid (these members are appointed after a nomination process determined by the Minister in consultation with the Board)

11. Composition of Board (cont) • The CEO; • 3 persons who hold senior executive positions in Legal Aid South Africa, 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.

12. Clause 7: Qualifications for membership of the Board Members must be- • fit and proper persons; • South African citizens; • not be an unrehabilitated insolvent; • not have been declared to be of unsound mind; • not have been convicted of certain offences; • not have been removed as a director of a company or an office of trust.

13. Qualifications for membership of the Board (cont) When constituting the Board, several aspects must be taken into account, including- • the racial and gender composition of the South African population; • the objects of Legal Aid SA and the Board; • representation of persons with disabilities; • provincial representation; and • experience in and knowledge of, business management, information technology, legal services, corporate governance, accounting or auditing skills, community-based knowledge relevant to legal aid and public interest law, among others.

14. clause 8: Chairperson AND DEPUTY CHAIRPERSON • The judge is the chairperson. • The 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. • The deputy chairperson has all the powers, duties and functions of the chairperson when so acting.

15. clause 9: Term of appointment • The judge, 8 members, and 3 Legal Aid South Africa 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.

16. clause 10: Termination of membership A person ceases to be a director when he or she - • resigns; • becomes disqualified; or • in the case of Legal Aid South Africa employees, leaves Legal Aid SA’s employ. The Minister may remove a director from office for – • failure to perform his or her duties diligently; • 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 Legal Aid South Africa.

17. clause 11: Meetings of Board • The 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.

18. 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 votes of directors present. • The Board may determine the procedure of its meetings.

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

20. 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 Legal Aid South Africa. • 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.

21. Clause 15: Appointment of chief executive officer • All the provisions relating to the CEO are new and there is no similar provision in the Act. • The Board must, whenever necessary, appoint a CEO of Legal Aid South Africa. • The CEO is appointed for a maximum 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 Legal Aid South Africa.

22. Clause 16: Functions of CEO • The CEO is responsible for the general administration of Legal Aid South Africa. • He or she must manage and direct LASA’s activities to promote and give effect to the objects of Legal Aid South Africa and supervise its staff. • Subject to the provisions of section 56 of the PMFA, the CEO has the powers, duties and functions as may, in writing, be delegated or assigned to him or her by the Board.

23. clause 17: Employees • This provision differs from the Act, as the Board currently appoints employees. • The CEO must, in consultation with the Board, and subject to clause 18, appoint as senior and other employees and designate agents, as may be necessary. • Legal Aid South Africa 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.

24. Employees (cont) • Attorneys and candidate attorneys employed by Legal Aid South Africa 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. • When appointing employees and agents, equity considerations must be taken into account.

25. clause 18: Terms and conditions of employment • Legal Aid South Africa employees and CEO are employed subject to conditions and remuneration as determined by the Board in consultation with the Minister and the Minister of Finance. • The provisions of the Labour Relations Act, 1995 relating to collective bargaining, are applicable . • Expenditure under this clause may not exceed the appropriated budget allocation to Legal Aid South Africa in terms of the PFMA.

26. Clause 19: CLIENT Privilege • There is no similar provision in the Act. • A private legal practitioner must, when requested by Legal Aid South Africa, 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 Legal Aid South Africa.

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

28. 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 Legal Aid South Africa. • A litigant , person, his or her legal representative or Legal Aid South Africa 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.

29. Clause 20: Recovery of costs (cont) • Legal Aid South Africa 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 Legal Aid South Africa.

30. clause 21: Finances • The funds of Legal Aid South Africa 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. Legal Aid South Africa listed in Schedule 3. • PFMA provides for all aspects necessary to ensure proper financial management.

31. clause 22: legal aid BY Direction OF court in criminal matters • This clause is 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 Legal Aid South Africa is subject to review by the High Court. • A new aspect that is inserted in the Bill is a reference to certain aspects of the Prevention of Organised Crime Act, 1998.

32. clause 23: Regulations • The Minister must make regulations after receipt of recommendations from the Board, regarding – • the 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 for approval. • The regulations 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.

33. clause 24: Legal Aid Guide/Manual • The Bill provides for a Legal Aid Manual, currently called the Legal Aid Guide. • The Board must compile, amend and approve a Legal Aid Manual and review it at least every 2nd year. • It will provide mainly for administrative matters and procedures. • The Manual and any amendment must be submitted by the Board to the Minister, who must table it in Parliament and simultaneously give notice thereof in the Gazette. It takes effect 60 working days after publication. • Legal Aid South Africa must publish the manual and any amendments thereof on its website and a copy thereof must be available for inspection at all offices of Legal Aid South Africa.

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

35. 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 Legal Aid South Africa managers) become members of the transitional Board. • The transitional Board, in the 12 month period, must facilitate the composition and appointment of new Board. • Legal Aid South Africa requested this to ensure a smooth transition and continuity.

36. Transitional Provisions (cont) • The CEO holding office at the 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.

37. Transitional Provisions (cont) • Measures regarding remuneration, pension, leave and any other terms and conditions of service for staff members, 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 Legal Aid South Africa 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.

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