Deputy Chair, Chairperson of the NCOP, Chief Whip of the Council, special delegates from our provinces, Deputy Minister of Finance, in absentia, members of this august House, the Select Committee on Security and Justice received a letter from the Minister of Justice and Correctional Services, dated 16 February 2018, for the committee to consider, on an informal basis, the draft regulations made in terms of section 23(1) of the Legal Aid South Africa Act, Act 39 of 2014, prior to its formal tabling in Parliament. The draft regulations, once they are formally tabled, cannot be amended without formal withdrawal, amendment and retabling. The Minister and Legal Aid South Africa therefore
consulted the committee on the draft regulations to the Legal Aid South Africa Act, Act 39 of 2014.
Legal Aid SA makes available legal aid and legal advice; provides legal representation to persons at the state's expense; and provides education and information concerning legal rights and obligations, as envisaged in the Constitution and the Act. These proposed amendments to Regulation 27 increase the threshold amounts applied by Legal Aid SA when determining who qualifies for legal aid. This means that more people will be allowed to access legal aid in South Africa and therefore have broader access to justice.
Regulation 27 provides for the means test to determine whether a person qualifies for legal aid. The test is necessary to decide whether a person can or cannot afford his or her own legal representation. The main factor in the test is the applicant's net monthly income, but the applicant's assets and property are taken into consideration, as well.
Regulation 27(1) remains the same, providing that "in order to qualify for legal aid in either civil or criminal cases, the legal aid applicant's gross monthly income ... [Interjections.]
Let me apologise on his behalf, on behalf of the House to you. [Interjections.] No, no, no. I noticed a mistake there and I take responsibility ... [Interjections.] ... I apologise to the member on behalf of the House. Will you proceed with your speech?
Thank you, Deputy Chairperson. Regulation 27(1) remains the same, providing that in order to qualify for legal aid in either civil or criminal cases, the legal aid applicant's gross monthly income less tax and net assets must fall within the parameters contemplated in subregulations (2) to (6), before legal aid may be granted.
The proposed amendment to Regulation 27(2) increases the qualifying monthly net income of an applicant for legal aid in a criminal case from R5 500 per month to R7 400 per month.
The proposed amendment to Regulation 27(3) increases the qualifying monthly net income in a civil case from R5 500 to R7 400 in the case of a single person - that is, an applicant who does not have a spouse or is not a member of a household. If the applicant for legal aid in a civil case has a spouse or is a member of a household, the
qualifying monthly net income increases from R6 000 to R8 000. That is contained in Regulation 27(4).
Assets and property are also taken into consideration.
Regulation 27(5) provides that a legal aid applicant or an applicant who is a member of a household, who does not own immoveable property, and who has net moveable assets that are less than R128 000 in value may qualify for legal aid in a criminal or civil matter. This amount increases from R100 000.
Regulation 27(6) provides that an applicant for legal aid who owns immoveable property and net immoveable and moveable assets worth R640 000, or less, may qualify for legal aid for a criminal or civil matter. The proposed amendment increases the amount from R500 000, or less, to R640 000, or less. Although an applicant's income or property and assets may exceed the threshold amounts set in terms of the means test, he or she may still qualify for legal aid. In this respect, a number of Regulations are pertinent.
Regulation 28 sets out amounts that are included or excluded when calculating monthly income. For example, a grant paid by the SA Social Security Agency, Sassa, is excluded. However, spousal or child maintenance is included.
Regulation 30 gives Legal Aid SA the discretion to grant legal aid to a person who exceeds the means test, in certain circumstances. Regulation 31 provides that if an applicant does not qualify for legal aid in terms of the means test in a criminal matter, Legal Aid SA may provide partial legal aid and require the applicant to contribute to the cost of legal aid. When making its decision to partially subsidise a matter, Legal Aid SA must take into account certain factors, such as whether the applicant will suffer substantial injustice if legal aid is not provided. Regulation 34 provides that a legal aid applicant whose application for legal aid is refused has the right of appeal.
Legal Aid SA provides representation to children in both civil and criminal matters. [Interjections.] It's a report, Deputy Chairperson. It's not a motion. [Interjections.]
In terms of section 22 of the Act, a court can direct Legal Aid SA to provide legal aid in criminal matters where legal aid has been refused if it is of the opinion that there are particular circumstances that need to be brought to Legal Aid SA's attention.
The select committee met with Legal Aid SA on 20 June 2018. The interaction clarified a number of the committee's concerns.
Hon member, your time has expired.
Recommendations ... [Interjections.]
Your time has expired, hon member. [Interjections.] No. Your time has expired. Your time has expired. The Hansard will receive your speech. [Interjections.]
Debate concluded.
What I have found interesting about this ... [Interjections.] ... Hon members, what I have found interesting about this statement while listening to it is this. That is exactly what we are here for. That statement addresses access to justice and how the poorest of the poor will be able to access it ...
Exclusive! Exclusive!
... and we are busy disturbing the member who is providing such vital information to society.
Now, hon Mokwele, I have a monitor here, a monitor that alerts all of us when a member's time has expired. I don't know why it is that ... Hon members ... Hon Mokwele! We know that you are here. You don't have to make us aware of that. We know! We know! It's an interesting season that we are in. [Interjections.] We all want to be seen to be in Parliament and doing something. Yes, we acknowledge that. We are here. We are aware that you are here. Can we be in order, hon members?
It was a private conversation.
I've never had a private conversation with you.
Question put: That the Report be adopted.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Report accordingly adopted in accordance of section 65 of the Constitution.