Justice Budget: input by Legal Aid Board & SA Human Rights Commission

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
11 June 2003
JUSTICE BUDGET: INPUT BY LEGAL AID BOARD & SA HUMAN RIGHTS COMMISSION

Chairperson: Adv J H de Lange

Relevant documents:
Powerpoint Presentation by Legal Aid Board
Media Statement by Legal Aid Board: 9 June 2003(see Appendix 1)
SA Human Rights Commission presentation: 11 June 2003 (Appendix 2)
SAHRC Sixth Annual Report: April 2001 - March 2002:cover chapter 1 and 2 chapter 3 and 4
SA Human Rights Commission 2000-02 Economic & Social Rights Report
email [email protected] for the following documents:

Legal Aid Board: Organisational Performance Review Report - Executive Summary:
Legal Aid Board 2003/04 Budget Executive Summary


SA Human Rights Commission website

SUMMARY
The new management team of the Legal Aid Board took the Committee through their plans to expand the network of Justice Centres. The Board motivated that they be allowed to roll-over part of their funding to strategically plan for a sustainable growth. The Board also sought to justify their stance on the provision of high levels of Legal Aid funding to the Boeremag accused. The Committee criticised this and contrasted it with the treatment by legal-aid practitioners of children in Durban-Westville prison. The Committee commended the turnaround of the Legal Aid Board that was started in the last few years and is continuing. The Board was asked to provide a memorandum on the interference by judges in Legal Aid Board appointed representation.

The South African Human Rights Commission pointed out that resources had improved over the years, which saw a significant rise in the budget. It reported on the expenditure of the budget over the past year. As part of their submissions the SAHRC reported on their future plans with an emphasis on the financial implications of those plans and projections. Both quantitative and qualitative success and failures were also outlined.

The Committee was concerned about the implementation of the Equality Act and believed that the SAHRC should be the first with some test cases. Children in prisons and the need for grassroots relevance were other concerns raised.

MINUTES
The Chair opened the meeting by welcoming the delegation from the Legal Aid Board and apologizing for being late. He said he had been asked to give a radio interview on issues raised by the Chief Justice when he had addressed the Portfolio Committee recently.

The Chair said that the Legal Aid Board, despite a bad first few years, had managed an exemplary turn around. He said that this was due to the sterling work of the previous chairperson which was now being carried on by Judge Mlambo, the new chair. The Chair stressed that the Portfolio Committee were always available to discuss issues facing the Legal Aid Board and that a fruitful two-way dialogue was how he hoped the Legal Aid Board and the Committee's relationship would develop.

The Chair warned the Legal Aid Board that the Committee was vigorous in their questioning of delegations and that they had all been on site visits recently so they had first-hand knowledge of the situation on the ground.

Judge Mlambo said that the Committee must remember that for a township boy to come to Parliament was a very daunting prospect, so if his voice seemed to quiver, that was why. Ms Camerer (DA) and the Chair told him - now he knows what it feel like for people to go to court!

The Judge introduced the team he had brought with him and he and the Chief Executive Officer, Ms Vidhu Vedalankar, took the Committee through the Legal Aid Board's presentation.

Legal Aid Board presentation
Judge Mlambo told the Committee that the Legal Aid Board worked on the premise that it was better to employ its own lawyers than to pass over work to contract attorneys from whom they heard nothing again until they wanted to be paid.

When the Judge took over as Chair, there were 36 Justice Centres. Now there are 46 and there will be 59 by the end of the financial year. It had been hoped that these new centres would have been operational sooner, but there had been problems in finding professional staff as they had to pass a forensic test. Many applicants had failed but the Legal Aid Board was battling on with filling the posts.

Problems in the Western Cape had led to the creation of two Legal Aid Board High Court units which were assisting with the backlog of appeals and other business.

Strategic Plan
The Legal Aid Board wanted to work with other agencies to assist with developing a respect and understanding of the Rule of Law. Then, it was hoped, many of the problems the Legal Aid Board was called upon to fund would not exist.

The Chair asked for a break down on the percentage of funding that goes to the Clinics. He was informed that R57 million (13%) goes to Judicare (the outsourcing of work to private attorneys); R10 million (2%) goes to Co-operative Partners; and R370 million (85%) goes to Justice Centres.

Challenges
The main challenge to the Legal Aid Board was to ensure that the justice system worked. The Judge was pleased to report that there was a perceptible improvement in the quality of legal services offered by state defenders.

Finances
Ms Vedalankar, CEO, took the Committee through the finances. She noted that the Legal Aid Board was in a period of transition from Judicare to the Justice Centres. However, she was pleased to say that this was now in a stabilising phase. She asked the Committee to please interpret the roll-over amounts on this basis. She said that in order to plan strategically, monies had been held back each year in the budget in order that the Legal Aid Board would be in a position to predict their spending over a three year period and not one. This had been agreed in the previous financial year with Treasury and Legal Aid had been asked to motivate to Treasury and the Portfolio Committee on this year's proposed roll-over. This would allow a figure of R358 million to be available for next year which would sustain the 59 clinics. The Chair cautioned that the clinics must be sustainable for the future too.

The Legal Aid Board was also in the process of setting up satellite offices in areas which could not easily access the Justice Centres. The Chair asked whether these were to be permanent, temporary or part-time. It was explained that sometimes these were temporary, for example when they mirrored a circuit court, but others were permanent. It was further explained that these offices had no administrative support, therefore, the only cost was that of the legal professionals and the office. The Chair asked the CEO and the Judge to closely monitor this as he felt that it would be far better for one of the Justice Centres to send staff to the satellite areas one day a week, for example, than to set up permanent units.

The CEO referred the Committee to the slide which detailed the money the Legal Aid Board needed. Slide 32 showed how the indirect costs were being minimised to ensure that the maximum amount of money was going into the provision of legal services. She said that some of the indirect costs should have been further ring fenced and transferred to the direct costs, such as the financial controls of Judicare, so the real split should be 25% of the budget went to indirect costs with 75% going to direct costs.

Auditor General's Report on the Legal Aid Board
The delegation went quickly through the Auditor General's Report as most of the issues had already been resolved with the exception of the issue relating to internal controls. Mr Nassum, the acting Chief Financial Officer, had to be appointed because the Chief Financial Officer was facing disciplinary proceedings relating to fraud allegedly perpetrated whilst he worked at Internal Audit. The CEO assured the Chair that following the disciplinary hearings there would be criminal and civil actions against him.

The middle management was also to be doubled up as this was proving to be a major challenge to implementing the aims of the Board. The Chair asked that when the clinics were being set up, were sufficient checks and balances being incorporated to ensure that when the staff became "clever" they would still not be able to commit fraud? The CEO said that the offices had an approved delegation of authority which ensured that the offices were run better. Also a Fraud Audit Policy was being drawn up. The clinics also had to carry out quarterly internal audits which would be monitored randomly.

The CEO said she was also happy to report that the Board had been given an unqualified audit report last year and a further unqualified report was due for this year.

Clinics
The Legal Aid Board sought long term sustainability through ensuring that there was a functioning legal justice system, working with stakeholders and assisting with the creation of a culture of rights and respect for the Rule of Law.

Fifty five percent of the legal work funded by the Legal Aid Board was carried out by the Justice Centres last year. This figure will increase this year.

The CEO referred the Committee to Slide 19 which detailed the number of Offices presently in existence and the projected number of offices per area. Mpumalanga was included with KwaZulu Natal and the area "Kopanong" included Limpopo, Gauteng and North West Province. There were presently four Regional Offices but, as the number of Justice Centres grew, this figure would grow too.

The Chair asked for a map to be made available to the Committee highlighting the position of all the offices. The Chair asked what the criteria for making the regions were?

The CEO said that it related to municipal boundaries to ensure wall-to-wall coverage but that there were other requirements. Mr Brits, a Legal Services Executive, added that also taken into account on a macro level are factors such as: the size of the population, the number of criminal cases in each district, the previous demand for legal aid and the poverty levels from census reports. On a micro level they also look at the location of the courts and whether it is accessible for the clients.

The Chair asked if the Board had details of the number of backlog cases? He said it was very important that this was a factor taken into account because he saw it as being critical. However as the Board had not mentioned backlog cases, they could not regard it as critical. When asking Justice Centre staff on the ground they had answered that they would simply need to call in contract staff. But the Chair pointed out that this would undermine the whole system. Ways must be found (via plea bargaining or other means) to reduce the appeals backlog.

Mr Mathibe said that the statistics were available in each of the Justice Centres and that the Board had improved methods to encourage high calibre staff.

The Chair said that there may well be initiatives in place, but as the Board did not present the figures to the Committee it showed that they did not consider the problem to be as bad as he did.

The CEO turned the Committee's attention to slide 22 which showed the breakdown between Civil and Criminal cases. She said that the number of civil cases was set to rise.

The Chair disagreed. He said that there was a constitutional obligation to do criminal cases and a Public Defender was needed in court at all times. He said that the management of the lawyer's times in the Justice Centres must allocate a person to do the civil work and not expect an individual to do both civil and criminal. The Courts must work with the Legal Aid Board on this issue and must send all the Public Defenders' work to the Court they are present in and not have the Public Defender running from one court to another. There is a plan in Port Elizabeth to create eight (8) Legal Aid Courts which is a very feasible idea. Then the Prosecutor would send all the Legal Aid work to those Courts.

The Chair asked if the Legal Aid Board had figures on the number of cases each professional Attorney was carrying out presently?

Mr Mathibe said that the system was flexible enough to ensure that staff were moved around to "right-size" the Centres and units.

The Chair said he needed to see the figures of individual productivity for each attorney.

The CEO said that the aim was for every Court to be serviced by a Justice Centre but if demand became too great then Judicare would step in. The Chair asked what criteria was used to determine where the Public Defenders were posted? He asked if it was up to the people on the ground, because then there was a fear that the magistrate or judge which shouted loudest would get a Public Defender but that may not be where the real need lay.

Ms Robertson Roe, the Regional Executive for the Western Cape, said that in the George area there are currently only three professional attorneys, which is causing a problem. This figure is to be raised to ten.

The Judge assured the Committee that it was policy and not personality which guided the allocation of public defenders. However, he said that the Chair was correct in saying that some judges and magistrates had made personal requests. The Judge had also identified other problems relating to judges trying to control the Legal Aid Board and he would be raising them all at the next Judicial Conference.

The Chair asked the Board to clarify why it had taken the position it did in relation to the Boeremag accused who were demanding that their choice of counsel be accepted by the Legal Aid Board. He said that it was anachronistic that groups who sought to overthrow the Government should be given special dispensation, expensive senior counsel and additional attorneys. He asked why the poor were not able to demand these things? He asked why women were not the ones benefiting from the discretion the Legal Aid Board has?

The CEO asked the Committee to look at slide 24 which showed the decrease in the monies allocated to Judicare each year. The Chair asked if the Board's Guide ensured that Justice Centres could not defer work to private attorneys? Mr Brits said yes, and read the section from Annexure O of the Guide which prevents this. The Chair commended them on the clarity of the wording.

The CEO said that slide 26 showed the means by which the Board sought to improve client access. She specifically noted the plans to link with prisons in the area of the Justice Centres.

Questions
The Chair said that a major challenge to the Board was the high turnover of staff. He asked how this had been worked into their programme? The Prosecution Service dealt with this by selecting 50 practioners every year to be sent on Justice College training to ensure that the institution is always improving itself and promoting in-house.

Mr Brits replied that the Board was making use of existing institutional training schemes but the Chair said that it was important the Board had an in-house training scheme too. The Judge added that the Board were piloting a Legal Intention Course which would link with a more holistic approach to training.

The Chair said that he would like to put it on record that the ANC were the only party to have a clear commitment to introducing a community service proponent into the candidate attorneys' programme and that the Justice Centres would be a major beneficiary of this programme.

Ms Camerer (DA) asked why, if the claim had been made that the Justice Centres would be far more efficient, was this not borne out by the figures? She said that from a budget of R57 million Judicare had managed to finalise 38% of the cases, whereas the Justice Centres with over R300 million had only dealt with 55% of the cases.

The CEO said that this was a simplistic understanding of the figures as only the Justice Centre figures related to the current year.

The Chair and Ms Camerer asked for another slide to be produced which clearly showed the cost benefit of the Justice Centres.

The CEO said it was important to know that the Board was not empire building but actually trying to improve a service for the poor.

The CEO said that the methods of monitoring attempted take-up of the service were being improved to now register why people were turned away.

Ms Camerer (DA) asked when the new Board had taken over as she did not recognise the people who had come to give the presentation. The Chair told her that when the Committee had undertaken its site visit to Pretoria, they had been told that there had always been a plan to hand over after three years to a new management team. The CEO added that the management team were on three year contracts but that the legal professionals were on permanent contracts.

Adv Masutha (ANC) asked if the Board knew the demand on their services. He said he often had constituency complaints that poor people were not receiving the assistance they needed. The Chair reminded him that the Board were restrained by Government funding and the Committee's pressure to limit their uptake of civil matters.

Adv Masutha (ANC) singled out children and said that there had been a problem with the Child Justice Bill in that the Department of Welfare had drafted the legislation to say that children were to receive legal assistance in Children's Courts, but it was not prepared to pay for these services. Had this issue been resolved?

Mr Brits replied that the Board was committed to the current draft of the Child Justice Bill and had agreed to meet that need. However, if the Bill was amended, it may need to reconsider its position.

Ms Chohan-Kota (ANC) asked where the bulk of the Judicare monies was spent? She said that if the Guide was being followed as Mr Brits had indicated the Justice Centre staff were instructed, the number of cases would be lower. So was it the case that people who had lawyers, then ran out of money, had their original lawyer paid for?

The CEO said that to receive legal aid the procedure was clear. Information had to be provided from which the most important details were the financial statements. However, factors such as the length of the case were also important to determine whether the accused would run out of money during the case.

In the Boeremag case, the number of accused persons were very high (20 requiring assistance). The Board feels it is too limiting to see itself as one large law firm so in future there will be clash of interests if another Justice Centre acts on behalf of a co-accused. There is also the possibility of employing contract lawyers. The CEO said that the judge is to make a decision on the legal aid position of some of the accused. If the judge compromises the position of the Board, the CEO advised the Committee that the matter will be taken to Review.

The CEO said that two of the accused were being granted legal aid of R1600 per court day and that a third was being granted funding for two counsel at R1000 per day. In addition, they were being granted R180 per hour for two hours per day in preparation for trial.

The Chair said that, if one compared these figures to those noted in the presentation on the Justice Centre costs, they were double.

This was confirmed but the CEO said it must be remembered that this was a very serious case so per diem lawyers could not be used.

The Chair said that he could not accept that argument because per diem lawyers were used in murder cases and the consequences were exactly the same.

The Chair said that the stance of the Board was setting a very dangerous precedent whereby someone who does not want to accept a female or of colour attorney simply needs to appoint their own legal team then tell the Legal Aid Board that they have a lawyer but they cannot afford to pay for him.

The CEO said that the counsel in this case had not dictated terms to the Board, the Board only offered to pay as much as it was willing to pay - and indeed one of the legal teams walked away because the fees offered were too low.

The CEO said that they could justify their position on other high profile cases where leading politicians were involved. In the Tony Yengeni case, for example, he tried to argue that whilst he had the means, the money was tied up so he could not get access to it. This was not accepted by the Board. In the Alan Boesak case, he was given Legal Aid at the higher Judicare rate.

The Chair said that the Judge must draw up a clearer policy on this issue.

The Judge reminded the Committee that Legal Aid had paid such sums of money over before and that it must be remembered that the legal team included very senior people.

However, the Chair insisted that rules needed to be drawn up to ensure that the Board were not stuck with accepting the lawyers people brought to them.

The CEO said that the Boeremag case on Tuesday may result in the Judge ordering the Board to provide a fresh lawyer to replace the one the accused rejected. In the last few months the Board had been asked to present four reports to the Court, then the Judge rejected what the Board submitted and ordered them to do the contrary to what they wished. Because this was not a final decision, the Board were unable to take the matter up on Review. The Board was seeking a change introduced into the law to prevent Judges from doing this in the future.

The Chair asked her to send an urgent Memorandum to him regarding this issue. He asked if the Board had Counsel for the Review and the CEO confirmed that they had.

In answer to Mr Magwanishe (ANC) asking if the Board had statistics on the number of women, persons of colour and persons with disabilities employed as its professional legal staff, the CEO promised to forward the figures to the Committee.

Adv Masutha asked if the Board was working with other stakeholders to ensure that they minimised the gap through which people can fall.

Ms Camerer (DA) said that many people complained to her that there were constant court delays because the legal aid practitioners only became involved when the case was called in court. Therefore, a delay was inevitable.

The CEO asked her to provide concrete examples of this in order that the problem could be traced and the faults in the system rectified.

Ms Camerer also led a discussion on why women were finding it so difficult to get legal aid for civil matters such as divorces.

The CEO said that the clinics had to deal with these issues in terms of the Guide. There were certain actions for which legal aid was not allowed. These would be reviewed soon and the Committee would be asked to approve any changes.

Mr Landers (ANC) asked specifically about the awaiting trial prisoners at Durban-Westville prison who complained that they had never seen their lawyer. When the children were in Court, the lawyers never spoke to them or addressed the Court. The children said they were receiving no legal advice. He asked how operational the Justice Centres were that covered that prison as there seemed to be a problem with the Magistrate's Court in Pinetown? He said it was very important that at a time when the Board was giving such amounts of money to the Boeremag, black children were being denied the legal provisions they were entitled to.

The CEO agreed that the situation in that prison was dire and there was no excuse for it having become such a crisis point. However, the Board took steps to rectify the problem by establishing the new Justice Centres in Pinetown and Durban-Westville to supplement the Durban office. Also, this issue had been one of the main motivations for changing the priority of the Justice Centres and seeking to ensure that they linked up with local prisons.

Mr Landers (ANC) added that these children were Zulu speaking, yet they had been appointed non-Zulu speaking lawyers. In some cases the prison wardens had to translate for them.

The Chair ended the meeting by saying that he had a warm glow from the knowledge that the good work which had been started in the last few years by the Board was continuing. He likened the turnaround to the process of turning around a large super tanker. He said that usually it never looked good that money was not being spent, but he said the position the Board had taken showed foresight and good strategic planning. He was also pleased that as capacity was increasing, the correct systems and processes were being put into place.

He pressed the CEO to provide the Memorandum on the interference by Judges.

SAHRC Presentation on the Budget
Ms Lindiwe Mokate, Chief Executive Officer, outlined the vision and mission of the SAHRC, which was centred on the respect, observance of, and the protection of human rights without fear or favour. The mandate of the SAHRC according to Section 184 of the Constitution was the promotion of respect for human rights and a culture of human rights, the promotion of the protection, development and attainment of human rights and the monitoring and assessing of the observance of human rights in the Republic. Ms Mokate introduced the main aims of the SAHRC as the alleviation of poverty and the achievement of equality with an emphasis on equality, economic and social rights and access to information to ensure human rights for all and access to essential human dignity.

Ms Mokate reported that there had been a rise in the budget from R22 612 000 in the 2001/02 period to R27 401 000 in the 2002/03 period. Sources of Income in the 2002/03 period totalled R30 586 806 which was made up of a government grant of R27 401 000, donor funds of R2 991 040, interest of R138 053 and other sources R38 713. Total expenditure totalled R29 576 926 with expenditure per standard item as Personnel 33%, Administrative 14%, Inventories 4%, Equipment 2%, Rent 11% and Professional Services 36%.

Expenditure per programme (inclusive of provinces and commissioners) was Commission R4 747 487, Management R9 914 648, Advocacy R2 470 988, Legal Services R3 101 224, Research and Documentation R2 801 367, Education and Training R1 949 280 and Provinces at R4 597 932. She highlighted that there was a change to the organisational structure planned for the period 2003/04 that involved an office being opened in the Northern Cape.

There had been an increase in the outreach programmes, which is a focal point of the SAHRC because of the importance of reaching the public through different mediums. 45 700 people were reached through the Human Rights Awards, there were 588 177 website hits and publications reached 87 230 people. Generally speaking there had been increases in outputs and service delivery based on the indicators.

The representative reported that the complaints received per office totalled 5 591 with the Head Office in Gauteng receiving 2 293 of the complaints. This was due to the head office receiving complaints from provinces without offices and enquiries to make reports in other provinces. The complaints centred on equality, human dignity, labour relations, health care, food, water and social security, arrested, detained and accused persons.

For the period 2003/2004 the SAHRC plans to continue to improve the outcomes of the programmes of the SAHRC with an emphasis on reaching farline areas, as this was a criticism of the 2002/03 period. The SAHRC presented a rigorous strategic plan, which had a strong emphasis on external and internal service delivery. It was noted that the budgetary requirements for the period 2003/04 were presented as R38 103 000 but the amount received was R32 728 000 with a shortfall of R5 375 000.

Discussion
The Chair felt that the SAHRC needed to move from the intellectual arena to the practical arena. He asked where and how have the resources moved to the people who need them. He added that if a health complaint comes from Mpumalanga, how is it dealt with? Are there staff members going out to more grassroots projects and is it taking members and showing them the reality - in other words, hands-on interventions.

He commented that hands-on interventions should be part of presentations because budgets have more meaning when they show the proportion of physical interventions to poor people. He said that the funding and time of specific projects should be included as it gives the budget more legitimacy and basis for funding. He stated that the SAHRC should involve the press more because the public would be able to see its intervention - therefore giving an idea of what is going on. In the SAHRC budget the practicalities of time and money did not come out clearly. In other words, the budget should quantify person power i.e. rands and cents.

Ms Chohan-Kota (ANC) asked SAHRC to state how many cases had been finalised this year. She also asked who dealt with complaints as opposed to education or research.

Mr Jodi Kollapen (SAHRC Commissioner) pointed out that the figures were reflecting cases that had bee successfully disposed of. However, he expressed concern at the current turnaround time of 90 days.

Mr Solomon (ANC) questioned the exact process of the follow-up to a complaint and how the SAHRC recorded their successes.

Mr Kollapen (SAHRC) agreed that the Commission did not talk about their successes properly.

Adv Leon Wessels (SAHRC Commissioner) explained that once a complaint was received it went to the Complaints committee who would then contextualise the complaint and decide a way forward. He said that the process involved a joint management approach and recommendations. He added that it was a very difficult process. He remarked that sometimes a weak complaint ignored the uniqueness of human rights violations. He pointed out that not only are all developments in jurisprudence recorded but they are also tabled on the SAHRC website. He added that there were only two incidents where the recommendations to the respondents were not complied.

Mr Solomon (ANC) further asked what the target groups of the SAHRC were. He wanted to know what the SAHRC did with the custodians of the law.

Mr Moodley (SAHRC) explained that a complaint would normally go through a fair amount of screening before it left the Complaints committee. He clarified that his department had 4 interns and 6 legal officers and that monitored referrals did happen. The legal department has a mini Complaints committee and that at every provincial office there must be a legal officer and advocacy. He highlighted that the Commission had increased recognition in adjudicating issues on human rights. They provided a platform of debate and due to the power issues, are strategic in their referrals. He said that there is a concern around the amount of referrals and the lack of knowledge around relevance.

Mr Malahlela (ANC) asked the SAHRC that when dealing with Xenophobia to what extent do the Commissioners engage with non-nationals and to what extent were they dealing with South African nationals who persecuted non nationals.

Mr Kollapen responded by saying that not only was there direct engagement between Commissioners and non-nationals but that there were interactions with other organisations when dealing with Xenophobia campaigns. Through the facilitation of cases it had become clear that South Africans had no idea who the UN were and that when awareness increased things will happen. Although they had direct engagement with refugees through programmes such as skill workshops and the 'Roll Back Xenophobia' campaigns, increasingly refugees were living in their own communities. This made awareness difficult as geographical areas managed by non-nationals were being created.

Mr Malahlela (ANC) asked what the success rate was in disability interventions.

Ms Charlotte McClain (SAHRC Commissioner) explained that the Commission used a systematic approach. A study had been launched and a report/booklet was published that involved all South Africans who needed to know about people with disabilities. The booklet dealt with human dignity for the disabled. Not all interventions had been successful but that this was due to the lack of co-operation. A future initiative of the Commission was the development of a Secretariat for the Disabled, which was in line with the 'African decade of Disability and Awareness'.

The Chair asked how the SAHRC interacted with other institutions as far as results were concerned. In respect of the Equality Act that was to become operational on the 16 June, he whether the SAHRC in its strategic plan had conducted test cases in the provinces and also whether the courts were capacitated to deal with equality because by 16 June, human rights issues should be at the fore in these courts.

Mr Kollapen pointed out that they had done Education campaigns around the Equality Act in schools but he admitted that more work needed to be done as they could only reach a small number. An area of concern was the interpretation of the Act as the training of Magistrates had been depressing because of the turnout and expectations on the judicial system. He pointed out that it was wrong to entrust the implementation of the Act to Magistrates because the training had been limited and wrong.

Prof Govender added that another problem with the Equality Act was that before some people were happy with an apology, therefore the Act weakens the many levels of interventions and mediations. He pointed out that he foresaw the Courts referring cases to the Commission. He summarised the problem by saying that the people first need to understand the Act and that the magistrates and the judicial system must be able to deliver and they must be trained.

The Chair asked if there was going to be parts of the Act that would be hard to implement.

Prof Govender replied that it was going to be hard to implement the Act because firstly there were issues that went beyond the Act and secondly it was a piece of legislation that both the public and the system needed to work with.

The Chair noted that the SAHRC had to push and create a precedent in the area of human rights and the Equality Act. It was dangerous to expect Magistrates to implement something that they did not know hence ongoing training was important. The Commission needed to find small cases to win in order to show the public the work that they do. He mentioned again that the SAHRC should bring in the first cases in the Equality Courts.

Ms Camerer (DA) asked for clarity around Economic and Social Rights as to what had been done and who monitored tasks.Also what had been done about money in the past year and what the SAHRC proposed to do?

Mr Kollapen explained that the Commission produced their Economic and Social Rights Report in April. He indicated that there was maturity in the document and it did advance human rights.

Ms Camerer (DA) questioned the Child Justice Bill. She was concerned with whether the SAHRC had focused on children in prison or whether the issue had been raised at all.

Mr Kollapen responded by explaining that the SAHRC had prison attendants who did monitor the prisons. These attendants did not have enough clout to ensure change. Someone with clout was needed to change the mindsets of the prosecutors and to get co-operation to change the whole system. A lot of work needed to be done and that the SAHRC would have to source resources in order to tackle this project which was a concern of theirs.

The Chair commented that the issue of children prisoners was critical. He pointed out that there were no laws linking children's laws and prison laws. The whole issue needed to be looked into, because there was no education or healthcare for children awaiting sentence. An Act needed to be developed with Social Development and that 62(a) of the Criminal Procedure Act needed to be looked at concerning the bail of a child. He brought up the issue of children sentenced to reform schools particularly in cases where there were no reform schools as in the Eastern Cape. In Port Elizabeth 31 children were found in prison waiting for placements in reform schools. There needed to be a linking up and a change of practice on children in prisons because gang life was infiltrating the prisons. He concluded that a lot of work needed to be done.

Ms McClain pointed out that Children's Rights were a focal point for the Commission. A donor funded enquiry was done of the criminal justice system based on children who had been sexually abused. The enquiry had been countrywide and due to logistical problems it was reduced to the Gauteng Province. The enquiry was based on all areas that work with these children and it was discovered that the Criminal Justice system did not protect children. The report had recommendations for Health care, Justice and the like. There has been a new initiative of engaging with specific sectors through meetings. It was a policy of the SAHRC to be heavily involved with children and that more work needs to be done around interventions and the mainstreaming of focus groups.

The Chair noted that the Commission should be strategic with the report and send it to the Speaker. He added that vulnerable groups should be included with the three focus groups of the SAHRC.

Mr Kollapen said that some affluent groups have been able to use the Constitution to their benefit whilst weaker groups did not know how to use it which was a serious concern.

The Chair asked whether the issue about finance had been dealt with. He also asked if the Commission only had to account to the donor in regards to donor money and who was funding the African Secretariat of Human Rights (ASHR).

Ms Mokate explained that the position had been ratified and that the finance issue had been a matter of substance. She pointed out that donor money had formed part of the budget report and that according to law it had to be reported because it was money coming in. Reports on how the money was spent depended on the donor. She stated that the sustainability of the ASHR was based on an agreement with member countries that contributions would come from them - therefore money would not just come from their SAHRC. Donor funding covers the project life of a project.

The Chair thanked the presenters for their presentation and the meeting was adjourned.

Appendix 1
LEGAL AID BOARD

MEDIA STATEMENT: 09 JUNE 2003

LEGAL AID BOARD FRUSTRATED AS ACCUSED IN BOEREMAG TRIAL DELAY ACCEPTANCE OF LEGAL AID
The Legal Aid Board today expressed frustration as representatives of the accused in the Boeremag trial again baulked at accepting the offer of the legal aid.

"It is our belief that the ball is in their court - they must accept legal aid on the terms on offer or make their own legal arrangements," said Legal Aid Board CEO Vidhu Vedalankar.

"We believe that the issues regarding legal aid for accused 1,2, and 3; and 11 and 12; can be readily resolved according to our legislative and constitutional mandate. However for accused 5,6,7,8,9,13,15,17,18,21 and 22 we will re-submit our offer in the interests of this trial and afford them an opportunity to request clarity on the matter. This is despite considerable correspondence and contact over the last two weeks regarding our proposals for their legal aid".

"The primary interest of the legal aid board is protecting the defending the Constitutional rights of all South Africans, including the rights of the accused. We have consistently attempted to accommodate all requests on an equitable, fair and unbiased basis in the light of the seriousness of the charges. We have treated matters as urgent - but we have faced countless delays from the accused who have been uncooperative on our attempts to establish meaningful dialogue on this matter. "Vedalankar concluded.

Statement by Legal Aid Board (LAB) CEO Vjdhu Vedalankar regarding the granting of legal aid for the Boeremag accused,

Sunday, 8 June 2003, Johannesburg

In the last two weeks, the Legal Aid Board has received both written and verbal representation from legal representatives of the Boeremag accused. These representations have focused on requests by the accused for legal aid on their terms and at their rates, rather than according to South Africa's legislative and constitutional provisions.

Despite this preoccupation of the accused to secure lawyers of their own choice the LAB has communicated with them to reach some finalisation on their legal representation to allow the trial to proceed without compromising its (LAB's) own mandate, policies and regulations.

The Legal Aid Board has processed the applications in a manner, not different to that it would apply to any other applicant for legal aid. It assessed the accused's eligibility for legal aid and for those that qualified for legal aid, assigned them lawyers with the necessary skills and experience to adequately and competently represent them in the trial.

An issue requiring consideration in the finalisation of the legal team was the current or potential conflict of interest existing between the accused. In keeping with sound legal practice, separate legal representatives have to be assigned to those accused/groups of accused who have conflicts of interest. The LAB in reaching its decision, has taken this into account.

In summary, the Legal Aid Board's decision on legal representation to the 21 accused that applied for legal aid is as follows:

· Appointed an LAB legal practitioner to represent 2 of the accused;
· Appointed three legal practitioners at LAB tariffs to represent four groups of accused (total number = 5 accused) between whom conflicts of interest exist; These external lawyers include lawyers currently acting for the accused who were prepared to accept LAB's tariffs;
· A proposal to appoint legal practitioners to represent 12 accused who indicated they currently have funds to proceed with the trial, on the proviso that they contribute to the costs with the funds available to them; This proposal has been rejected by lawyers representing these accused and hence they have not been granted legal aid;
· No legal aid had been finalized for 1 applicant due to his application being incomplete and requests for the finalisation of this not being heeded;
· No legal aid given to 1 accused who has indicated he has funds and does not require assistance at this stage.

The Legal Aid Board is satisfied that the process it has followed in arriving at this position has applied the Constitution, the Legal Aid Act, and the Legal Aid Guide and is in keeping with our greater mandate to ensure justice for all.

Background information

The Legal Aid Board provides tax-funded legal help to indigent South Africans in criminal and civil cases, and places a particular emphasis on vulnerable groups. It does this in terms of its legislative mandate and in order to protect, respect and defend constitutional rights when these are violated.

In achieving its aim of "Justice for All", the Legal Aid Board is constrained by its limited budget and the increasing demands for its services as democracy consolidates in our country.

In order to ensure that legal aid is granted fairly, accountably, responsibly and transparently in an environment of limited funds, all applicants for legal aid must complete a means test. This is a legislative requirement of the Legal Aid Act via the Legal Aid Guide. The means test is only considered when it is complete - in other words, when it is signed and backed by acceptable proof of income. The bulk of the initial delay in finalising legal aid for the Boeremag accused related to the means test.

One of the ways that the Legal Aid Board has managed to increase the supply of its services has been through replacing the predominant pre-1994 Judicare service delivery mechanism (of contracting private sector lawyers) with a system of hiring and using in-house lawyers.

This has been a deliberate strategy to invoke economies of scale and to develop a new cadre of public defenders and human rights lawyers in the legal aid board.

By using its own lawyers from its own justice centres as its main delivery mechanism, the legal aid board has managed to double the number of clients it serves. But it still needs to make strategic choices as to where it spends its money - the acid test for this is based on the impact of the litigation, the number of people each case assists, and the ability of that case to protect and defend basic human rights - especially for children, women, the landless, and detainees.
The decision we have on the applications by the accused in the Boeremag trial is as follows and will be explained in greater detail in court tomorrow.

· Accused one and two qualify for legal aid and will be represented by the Legal Aid Board's in house team.

· Accused three qualifies for legal aid. There is a potential conflict of interest between accused one and three, necessitating the appointment of a legal team from a separate office for accused three. The accused's own lawyers have disqualified themselves from representing any of the accused and the Legal Aid Board will appoint a separate legal team in consultation with the professional committee of the Pretoria Bar. The team will be appointed according to Legal Aid tariffs.

· Accused four qualifies for legal aid. The attorney for accused four will represent him at state expense according to Legal Aid tariffs.

Accused 19 has not applied for legal aid.

· Accused 5, 6, 7, 8, 9,13,15,17,18, 20, 21, and 22 applied for legal aid but noted that they currently have funds to finance their defence. It is the LAB's usual policy to refuse legal aid to persons who have funds at the time that their legal aid application is made. However in the interests of continuity of representation for and an effective treason trial, the Legal Aid Board proposed granting legal aid to the accused with the provision that they make a contribution to the costs incurred from the funds available to them. The accused have informed the Legal Aid Board through their representatives that they have decided against this proposal and in the circumstances the Legal Aid Board has decided that no legal aid for these accused will be forthcoming.

· Accused 10 and 12 qualify for legal aid and an agreement has been reached with their current attorney to represent them at Legal Aid tariffs.

· Accused 11 submitted a very late and incomplete application for legal aid and his current legal representative has not resp6nded to a request to furnish the LAB with the information and documents needed to consider his request. Accordingly his application cannot be considered.

· Accused 16 qualifies for legal aid and last-minute details regarding his representation are being finalised at time of going to press.

· Accused 23 has advised the Legal Aid Board that he is currently in funds for his legal fees and that an application for legal aid will be made later if and when this becomes necessary.

Appendix 2
THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION

STATEMENT TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL AFFAIRS ON THE OCCASION OF THE BUDGET VOTE OF THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION HELD AT PARLIAMENT ON THE 11^TH JUNE 2003.

Chairperson and honourable members of the Committee on behalf of my fellow Commissioners and the Chief Executive Officer and staff of the South African Human Rights Commission we wish to thank you for this opportunity to allow us to present to you our vision as a Commission 3 report on the work that we have undertaken and our plans for the future. We regard our relationship with Parliament and this Committee as critical to the discharge of our mandate and value your insights and observations.

The first term of the Commission ended on the 30111 September 2002 and on that very day 6 Commissioners were appointed as members of the Commission for its second term S full time Commissioners and I part time Commissioner. At the first meeting of the Commission attended by the Minister of Justice I was elected as Chairperson and my colleague Dr. Zonke Majodina as Deputy Chairperson.

The commencement of a new term with a new team gave us the opportunity' to reflect on the role and place of the Commission within the democratic landscape give thought to the future mission and priorities we sought to pursue and importantly examine issues such as our independence and how we interpreted it as well as our relationship with a host of role-players including Parliament Executive the public and civil society'.

While we value our independence and regard it as essential to enable us to discharge our mandate we are mindful that independence does not exist in the air and that we are indeed part of a broader democratic process and accordingly must exist and function in relation to those other actors must dialogue with them in a substantive way with a view to ensuring that in the discharge of our mandate we take cognizance of the national reality and the broader challenges that face us as a nation. We do want to work in a fashion that makes us so independent that we function in splendid isolation while at the same time we are mindful that we are enjoined to discharge our mandate without fear favour or prejudice and that those who seek our services and assistance must do so in the fullest confidence in our ability' to act independently.
We accordingly resolved to focus in this term substantially on two areas of work - using a rights approach and in particular our mandate in terms of Section 184 to contribute to the alleviation of poverty and underdevelopment and secondly to pursue our work in the area of the prevention of unfair discrimination and the achievement of equality. In this regard we see these areas of work as inextricably linked to the current challenges facing our society' and believe that as a national institution we must amongst other things ensure that our work to those communities who are most vulnerable and the report from the CEO will indicate how we have begun to reach deep lying rural communities - of course more needs to be done and the opening of an office later this year in Upington will strengthen our work in rural communities so that we can ensure that human rights are not perceived as the exclusive preserve of educated urban communities. Our monitoring and reporting mandate in respect of socio-economic rights and we hope the soon to be implemented Promotion of Equality and Prevention of Unfair Discrimination Act provides the Commission with the tools and opportunities to sharpen even further our work in these two focus areas.

On the matter of relationships we remain concerned that are work is often not understood and this end we have sought to meet more regularly with government in order to share our work and our mission hear from them what their priorities difficulties and challenges are and explore ways of working together where this is possible. Of course a tension does and perhaps must exist it is not a destructive tension but perhaps a necessary one as the role of the Commission includes support and assistance to their human rights obligations.

We believe that while relationship with Parliament does exist there is considerable room to enrich and intensify that relationship and we hope that the process that has commenced looking at the Oversight and Accountability' mandate of Parliament will culminate (soon we hope) in the kind of relationship that I have alluded to. It will on the one hand enable us to be properly accountable to Parliament while we have do doubt that I will assist Parliament considerably in it's oversight role of the Executive. Our recent Socio-Economic Rights Report is being debated by various Provincial legislatures - this is a move we certainly welcome and we hope that it can he replicated at the level of Parliament in respect of our various reports.

The credibility and trust that the Commission has developed both at the national and international level is in many respects a tribute to the growing maturity of our youn(1 democracy.

At another level the Commission has become a focal point nationally for human rights discourse, it's services, assistance and interventions is sought
an increasing number of role-players including government departments organizations in civil society, parastatals; courts including the Constitutional Court has referred matters to the Commission for it's attention. The Commission continues to play an important role at the international level - it participates in the work of the African Commission on Human and People's Rights, the International Co-ordinating Committee on National Institutions
we have been requested to host the Secretariat for a African National Institutions a structure that will seek to share good practice and developments, provide support to countries who seek to set up Human Rights Commissions and encourage networking amongst African National Institutions. We see this development as important for the Continent as well as having the potential to support the human rights imperatives found in the Constitutive Act of the African Union and NEPAD.

We are however realistic in understanding that the work that awaits this and that remains unfinished is formidable. We have no illusions, given the democratic deficit that we started with, that there is much to be (lone that will require energy commitment and dedication. We believe that as an institution we are well placed to continue discharging the ever-increasing mandate we have and we value and appreciate the support of your Committee and the genuine interest you show in our work.


Jody Kollapen
Chairperson
9^th June 2003