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Presented by Judge Dunstan Mlambo (Chairperson) and Patrick Hundermark (LDE)

BRIEFING OF THE SELECT COMMITTEE – SECURITY AND CONSTITUTIONAL DEVELOPMENT ON THE RATIFICATION OF THE 2011 LEGAL AID GUIDE ON 2 NOVEMBER 2011. Presented by Judge Dunstan Mlambo (Chairperson) and Patrick Hundermark (LDE). Overview of Presentation. 1. LAB Mandate

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Presented by Judge Dunstan Mlambo (Chairperson) and Patrick Hundermark (LDE)

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  1. BRIEFING OF THE SELECT COMMITTEE – SECURITY AND CONSTITUTIONAL DEVELOPMENT ON THE RATIFICATION OF THE 2011 LEGAL AID GUIDE ON 2 NOVEMBER 2011 Presented by Judge Dunstan Mlambo (Chairperson) and Patrick Hundermark (LDE)

  2. Overview of Presentation 1. LAB Mandate 2. LAG Ratification – Legislative Requirement 3. Structure of LAG 4. Amendments sought to the 2009 Legal Aid Guide 5.1 Legal Aid Matter Type 5.1.1 Criminal 5.1.2 Civil 6. Qualifying for Legal Aid 7. Conclusion 22

  3. 1. Legal Aid Board Mandate • The Constitution of RSA • Section 35(2) “Everyone who is detained, including every sentenced prisoner, has the right – • (c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; …” • (a) … • Section 35(3) “Every accused person has a right to a fair trial, which includes the right – • (a) … • (g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; …” • Section 28(1) “Every child has the right, • (a) … • (h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; …” Legal Aid Act (Act 22 of 1969) Section 3“The objects of the board shall be to render or make available legal aid to indigent persons and to provide legal representation at state expense as contemplated in the Constitution, ...” Other legislationalso provides for legal assistance at state expense 33

  4. 2. Legal Aid Guide Ratification Section 3A(1)(a) Subject to the provisions of this act and in order to attain its objects and to exercise its powers referred to in section 3 (d) and (dA), the board shall, in consultation with the Minister, include particulars of the scheme under which legal aid is rendered or made available and the procedure for its administration in a guide called the Legal Aid Guide. Section 3A(2) The board shall, in addition to the submission of its annual report as contemplated in section 9 (11), submit the Legal Aid Guide at least once every year to the Minister and the Minister shall forthwith cause the Legal Aid Guide to be tabled in the National Assembly and the Senate for ratification, and pending such ratification the Legal Aid Guide then in operation shall continue to apply. 44

  5. 3. Structure of the Legal Aid Guide • How to use this Legal Aid Guide • Abbreviations and acronyms • Explanations of Useful words Part 1 – Preamble Part 2 – Legal Aid Policy Part 3 – Legal Aid Procedure • Annexures • Subject Index 55

  6. 4. Amendments sought to the Guide • The offence of reckless & negligent driving is being added to the list of offences for which legal aid is available in district court • Legal representation before administrative tribunal is excluded, save that legal aid may be available to review the decision of such tribunal • Restriction on number of civil matters per applicant to discourage litigious applicants • The means test is clarified and amended in various respect and is increased as follows: Net monthly income is increased from R5 000 to R5 500 p/m & for households from R5 500 to R6000 p/m Net permissible asset value is increased from R75000 to R100 000 where there is no immovable property and from R300 000 to R500 000 where there is immovable property • A policy and procedure for subsidized legal aid in criminal cases is detailed

  7. 4. Amendments sought to the Guide • ROE`s discretion to approve fully subsidized legal aid where the means test is exceeded is increased from R2000 p/m to R3000 p/m for income & introduces a discretion in respect of assets of up to R100 000. • A 4th stage has now been included, where a court wants to order the provision legal aid, to provide for the 3B procedure as clarified by the SCA in Legal Aid SA v Poritt and Bennet • Justice Centres are delegated the power to approve Judicare and this is extended to include where they lack capacity to adequately represent applicants for legal aid. • The procedure concerning expert witnesses is clarified and brought in line with procurement procedures

  8. 4. Amendments sought to the Guide • It is proposed that a contractually agreed period of 4 months be implemented for the submission of accounts by Judicare practitioners and 3 months fro practitioners to dispute the amount paid, whereafter the claim prescribes. • Legal Aid applicant`s and Judicare practitioners consent is sought to conduct quality control tests of Judicare practitioner files • Legal Aid tariffs in both civil & criminal matters are clarified • Policy & procedure provisions contained in annexure O are incorporated into the main body of Legal Aid Guide.

  9. 5.1.1 Legal Aid Matters - Criminal High Court and Regional Court If an accused is charged in the High Court or the Magistrates' Court for a regional division (a Regional Court), an accused will qualify for legal aid without further enquiry into the nature and seriousness of the charge if the accused is unable to afford the cost of his/her own legal representation District Court Where a legal aid applicant is charged in a district Magistrates' Court (a District Court), the accused will qualify for legal aid, provided the accused is unable to afford the cost of his/her own legal representation, if the matter is included in the list of offences contained in Paragraphs 4.3.2(a) to (c) of the Legal Aid Guide 99

  10. 5.1.1 Legal Aid Matters - Criminal • JCE Discretion in District Court Matters • A JCE in determining if an applicant for legal aid charged with an offence in the District Court, which is excluded from the legal aid scheme, should determine whether the applicant will suffer Substantial injustice considering the totality of the following factors: • The inherent simplicity or complexity of the case in law and in fact, including the imposition of an appropriate sentence; • The accused’s general ability to fend for himself/herself, and • The gravity of the case which depends on the nature of the charge against the accused and the possible consequences to him/her of a conviction. 1010

  11. 5.1.1 Legal Aid Matters - Criminal • Legal Aid in Criminal Appeals • It is necessary to limit the right to legal aid in appeals due to limited resources available to the Legal Aid Board. The right to Legal Aid in an appeal will extend to assistance with the following: • An application for leave to appeal to the trial court that sentenced the client • An application/petition for leave to appeal to a Higher Court if leave to appeal is refused by the trial court • An Appeal, if leave to appeal is granted or an automatic right of appeal is applicable to the accused. Any further assistance with an appeal beyond what is stipulated above shall only be granted if there are prospects of success in proceeding further with the appeal. 1111

  12. 5.1.1 Legal Aid Matters - Criminal Co-accused Whenever possible only one legal practitioner will be appointed to represent all the accused in any one criminal trial or appeal, but this should not generally exceed 5 accused per practitioner Bail Applications There may not be more than one bail application for an accused in a case on a legal aid basis without the prior written consent of the JCE and only if the JCE is satisfied that there are changed circumstances that justify a further bail application. Bail Appeals Legal aid may not be granted in Bail appeals without the JCE’s consent. The JCE must be satisfied that on a balance of probabilities that there is a chance that the bail appeal will succeed. 1212

  13. 5.1.2 Legal Aid Matters - Civil Civil Matters Legal aid is available in civil matters Guide where substantial injustice would otherwise result and subject to the availability of resources as well as the requirements of the Legal Aid Guide Exclusions Legal aid may not be granted for cases listed below, but a decision not to grant legal aid in these kinds of cases must be consistent with the LAB’s obligationsunder Section 7 of the Constitution read with the relevant legislation giving content to such constitutional rights : 1313

  14. 5.1.2 Legal Aid Matters – Civil Exclusions • Financial Inquiry- under Sections 65 and Administration Orders under Section 74 of Magistrates‘ Courts Act Legal aid is not available to judgement debtors for these proceedings under section 65 and 74 of the Magistrate Courts Act 32 of 1944 (b) Administration of Estates and Insolvency cases For the administration, voluntary surrender or sequestration of an estate, or the liquidation of a legal person or assisting with an application for the rehabilitation of an unrehabilitated insolvent. Provided that legal aid may be granted for the administration of estate where it is required to protect the best interest of the child/children in terms of S28(1)(h) of the Constitution and the child qualifies for legal aid (c) Certain personal damages cases In an action claiming damages on the grounds of defamation, breach of an engagement contract, infringement of privacy, seduction, adultery or inducing someone to desert or stay away from his/her spouse. Legal Aid may, however, be granted to defend such actions.   1414

  15. 5.1.2 Legal Aid Matters – Civil Exclusions (d)Small Claims Court cases For any action that an applicant could institute in a Small Claims Court and legal aid is not available for the prosecution of a claim that does not exceed the quantitative jurisdiction of the Small Claims Court by more than 50%. The reason is that the likely costs of the case rarely justify legal action, and it can easily be brought within the jurisdiction of the Small Claims Court by abandoning (giving up) part of the claim. (e) Insufficient prospects of success, enforcement and costs recovery on balance of probabilities In any civil matter in which the JCE has not been satisfied on a balance of probabilities that there are prospects of success, enforcement and, where applicable, recovery of costs. (f) No substantial and identifiable material benefit In cases where, in the opinion of the JCE, there is no substantial and identifiable material benefit to the client. Provided that burial disputes will not be excluded where they may be resolved by means of ADR. The institution and defence of court actions in burial disputes remain excluded. 1515

  16. 5.1.2 Legal Aid Matters – Civil Exclusions (g) Civil appeals The NOE must give consent for legal aid in a civil appeal. The NOE must be satisfied that: On a balance of probabilities, there is a chance that the appeal will succeed, and the costs of the appeal will justify the benefit to the legal aid applicant. (h) LAB exclusions In cases excluded by the Board from time to time. (i) Costs outweigh benefits In any case in which, in the opinion of the JCE, the benefit or the potential benefit to the client does not justify the anticipated costs of the case. (j) Prescription of claim In a legal aid application for a claim that has prescribed or is unlikely to be acted on within the time left before prescription and where condonation is unlikely to be obtained. 1616

  17. 5.1.2 Legal Aid Matters – Civil Exclusions (k) Conveyancing and notarial matters In any case in which the main provider of legal services is a notary or a conveyancer. In these matters clients should be referred to the relevant Law Society for pro bono assistance. (l) Matters not involving litigation In any non-litigious matter, including any arbitration or mediation. This limitation applies to Judicare cases, but not to: Justice Centres or Co-operation Partners. Labour tenant, Extension of Security of Tenure Act (ESTA) or Prevention of Illegal Occupation and Eviction from Land Act (PIE) matters. Proceedings to enforce Commission for Conciliation, Mediation and Arbitration (CCMA) awards. Litigation in the Labour Courts and Labour Appeal Courts. 1717

  18. 5.1.2 Legal Aid Matters – Civil Exclusions • (m) Applicant already receiving legal representation • In a civil matter where the legal aid applicant is already entitled to legal representation at the expense of • the State Attorney or a government department. • (n) Road accident fund and personal injury claims • For institution of claims against the Road Accident Fund and for the institution of personal injury claims save where a minor child is the claimant, as assisted by their guardian. • These matters should be done on a contingency fee basis by private practitioners. •  (o) Unrealistic expectations • In all civil cases where client has unrealistic expectations in terms of the relief required • Administrative tribunals Legal Aid is not available for hearings before administrative tribunals but may be granted to review decisions of administrative tribunals • Restrictions on a number of civil matters Applicants are restricted to one civil matter on legal aid at a time 1818

  19. 5.1.2 Legal Aid Matters – Civil Limitations • MAINTENANCE AND DOMESTIC VIOLENCE CASES • In maintenance and domestic violence cases, the LAB may provide indigent legal aid • applicants with: • (a) An initial consultation • An initial consultation to advise a possible litigant on his/her rights, the procedure to be followed and the prospects of success. • (b) Legal representation under conditions • Legal representation in any court hearing, but only if: • The legal aid recipient’s claims or defences have a prospect of success on balance of probabilities, and • The opposing party is represented by an admitted legal practitioner or is an admitted legal practitioner 1919

  20. 5.1.2 Legal Aid Matters – Civil Limitations • LABOUR CASES • The LAB may grant legal aid for: • Legal representation in Labour and Labour Appeal Courts • Assistance to farm workers in finalizing their rights in terms of LRA as required in terms of Section 8(3) of ESTA • Assistance to LAB clients to enforce CCMA awards except where there is no prospect of recovery as stipulated in paragraph 4.9.1(e) Section 149(1)(b) of the Labour Relations Act 66 of 1995 allows the CCMA, in co-ordination with the LAB, to further provide for legal assistance and advice in non-litigious forms of dispute resolution. When arrangements are made to implement this provision, stakeholders will be advised by Circular. The LAB does not provide legal representation for conciliation and arbitration proceedings at the CCMA or Bargaining Councils.

  21. 5.1.2 Legal Aid Matters – Civil Limitations • DIVORCE AND FAMILY LAW CASES • If legal aid is granted for the institution of a divorce action, the action must be started in the Divorce Court, unless the JCE grants approval for instituting action in another court. • Limits on Divorce Assistance • Legal aid will not be granted: • For a divorce appeal case. • In a divorce if the JCE is satisfied that there are, on a balance of probabilities, not prospects of success for the legal aid client to obtain the relief sought by the client. • Where it is established that client married a foreigner for payment so that the foreigner can obtain South African citizenship. Custody or Access to Children Legal aid may only be granted to proceed with the variation or enforcement of a divorce order when: • The issue in dispute deals with the custody of children or access to children, and • The application is supported by a report of a social worker or the Family Advocate. 2121

  22. 5.1.2 Legal Aid Matters – Civil Limitations • NON-LITIGIOUS ASSISTANCE THROUGH JUSTICE CENTRES • Legal aid may only be given for non-litigious legal services, including arbitration and mediation, if the main service provider is: • A salaried legal practitioner employed by a Justice Centre or Co-operation Partner. • A person working under the control and supervision of a salaried legal practitioner employed by a Justice Centre or Co-operation Partner. LAND RESTITUTION CASES Legal aid is excluded for claims under the Restitution of Land Rights Act except where the Land Claims Commissioner makes funds available to the LAB to fund these matters or where the Land Claims Commission is the opposing party to the litigation/contemplated litigation and only for proceedings before the Land Claims Court and matters reasonably linked to these proceedings. Legal aid is not available for the claim lodgement and investigation. 2222

  23. 5.1.2 Legal Aid Matters – Civil Limitations • LABOUR TENANT, ESTA AND PIE CASES • Legal Aid may be available for persons affected by the Land Reform (Labour Tenants) Act 3 of 1996, the Extension of Security of Tenure Act 62 of 1997 (ESTA) and the Prevention of Illegal Occupation and Eviction from Land Act 19 of 1998 (PIE) but this is subject to funding being made available to the Legal Aid Board by government. • ASYLUM SEEKERS • Legal aid is available to Asylum seekersapplying or intending to apply for Asylum under Chapters 3 and 4 of the Refugees Act 130 of 1998. This includes assistance for a decision by a Refugee Status Determination Officer (Section 24), a Review by the Standing Committee (Section 25) and an Appeal to the Appeal Board (Section 26). • Exemption from Residence Requirements • It is not necessary for an Asylum seeker applying for legal aid for an Asylum case to be physically resident in South Africa. • It is sufficient if, at the date of the application for legal aid, an Asylum seeker is physically present in South Africa. 2323

  24. 5.1.2 Legal Aid Matters – Civil Limitations HAGUE CONVENTION CASES Depending on the availability of resources, legal aid is available for Hague Convention cases. These are cases when the Central Authority in South Africa complies with its duties under Articles 7g and 26 of the Schedule to the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 – the Hague Convention. This must be read with sections 274 to section 280 of the Children’s Act dealing with Hague Convention matters once the relevant sections have been brought into operation. EQUALITY COURTS Legal aid is available for matters in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 provided that the equality claim is not instituted for the purposes of circumventing the restriction on personal damages claims 2424

  25. 5.1.2 Legal Aid Matters – Civil Limitations CHILDRENS CIVIL MATTERS Legal aid is available to children under the Legal Aid Act, provisions of the Constitution and other relevant legislation such as the Children’s Act. The Constitution provides that legal representation must be granted at State expense in civil proceedings affecting a child “if substantial injustice would otherwise result” (Section 28(1)(h) The provisions contained in the Legal Aid Guide relating to an application for legal aid are mutatis mutandis applicable to an application for legal aid by a child subject to a few specific provisions 2525

  26. 5.1.2 Legal Aid Matters – Civil Limitations • CHILDRENS CIVIL MATTERS Continued • The provisions contained in the Legal Aid Guide relating to the means test are applicable to an application for legal aid by a child save that:  • Where the child is not assisted by his/her parents/guardians, then the child’s means will be considered; • Where the child is assisted by his/her parents/guardian, then the parents/guardians means will be considered; • If the child is assisted by his/her parents/guardians and they exceed the means test and they are able to afford to provide legal representation for the child but they fail, refuse and or neglect to so, then legal aid will be provided to the child if substantial injustice would otherwise result and the LAB may institute proceedings against the parents/guardian to recover the costs incurred, if the parents/guardian could afford to provide legal representation for the child as a part of their duty of support and they neglected, failed and/or refused to provide legal representation for the child. 2626

  27. 5.1.2 Legal Aid Matters – Civil Limitations • CHILDRENS CIVIL MATTERS Continued • Assistance is provided to Children in the following civil matters: • All matters in the Children’s Act 38 of 2005 (By Court order only in terms of Section 55) • Intervention in Divorce, Maintenance or Custody Proceedings • Administration of Estates • Road accident fund and personal injury claims • Domestic Violence Act • Refugee Act – Unaccompanied Foreign Minors • Claims Sounding in money • Curator Ad Litem and Curator Bonis Applications 2727

  28. 5.1.2 Legal Aid Matters – Civil Limitations MENTAL HEALTH CARE ACT USERS Legal aid is available to Healthcare users, where substantial injustice would otherwise result, in accordance with section 15 of the Mental Healthcare Act. 2828

  29. 6. Qualifying for Legal Aid There are 2 steps for determining qualification for legal aid through the means test in criminal or civil matters and a 3rd step in criminal matters being heard before the Regional and High Courts where the means test was exceeded by the applicant. All these stage 3 cases will be referred to the Constitutional Case Management Committee at National Office The means test for households is applicable to children or their parents/guardians in all civil matters An applicant who is in receipt of a state grant or a state old age pension is automatically entitled to legal aid.MEANS TEST LIMIT Nett Income after tax: Single Applicants - R 5 500 pmNett Income after tax: Households - R 6 000 pmNett Assets : No Immovable Property - R 100 000Nett Assets : With Immovable property - R 500 000(Must be physically resident in the property or at least one of the properties)JCE Discretion - R 1 000 pm for all mattersROE Discretion: R 3 000pm and R 100 000 for nett assets in respect of all matters

  30. 6. Qualifying for Legal Aid • Grounds for refusal of Legal Aid • Legal aid will be refused in criminal cases if: • The matter is not listed for the District Court, subject to the JCE’s discretion, and/or • The applicant does not qualify under the means test In civil cases, the LAB must always be satisfied that there are merits to the case. If there is little or no prospect of success and enforcement on a balance of probabilities, legal aid will be refused.

  31. 6. Qualifying for Legal Aid SECTION 3B COURT ORDERS – ORDERING LEGAL AID If Legal Aid is refused by the Legal Aid Board and the applicant has exhausted his/her internal appeals, then the court may order the Legal Aid Board to provide legal aid Under Section 3B(1) of the Act, a court must, before directing that a person has a right to legal representation at State expense, refer the case for evaluation and report by the LAB. The court may, after considering the report from the LAB, order the granting of legal aid despite the original refusal by the LAB

  32. 7. Conclusion The Legal Aid Guide is essential to the effective and efficient functioning of the Legal Aid Board. The last Legal Aid Guide was ratified by the National Assembly on 23 October 2008 and by the National Council of Provinces on 11 November 2008. The Portfolio Committee is accordingly requested to approve the 2011 Legal Aid Guide for ratification by both house of Parliament

  33. Thank you

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