For the first time in its decades-long history, the Legal Aid Board is being run like a proper company
Khadija Magardie
Ashley Ally is the new skipper at the helm of the Legal Aid Board. His vision, he says, is simply to fulfil the mandate of the board ensuring “justice for all”. As chief executive officer, he will preside over the running of the body given the task of providing legal assistance to the poor and, perhaps most importantly, control its purse strings. The board has a parliamentary-
approved budget of R300-million, in addition to its donor funding.
Late last year, following years of haggling, the Ministry of Finance finally approved the creation of top-level management posts to run the once-beleaguered state agency. The latest appointments, of a CEO as well as a finance and information technology manager, herald a new era in the delivery of legal aid to the indigent in South Africa. Originally from Port Elizabeth, Ally studied for several years in Germany before returning to South Africa in 1995 to work for local government. He has done stints as the head of metropolitan planning, and was involved in the economic development and transport departments in the Gauteng government. Headhunted for the Legal Aid Board post by a recruitment agency last year, he says he had several “cushy” options in the private sector. “But in the end, I still decided to go for the less sane option,” he laughs.
Luckily for him, it will be fairly plain sailing. Barely a year ago the board was a sinking ship. Bordering on insolvency the organisation had been all but crippled by chronic mismanagement. The books were in disarray, opening the door to suggestions that dishonest attorneys were enriching themselves at the state’s expense by inflating their fees and, in some cases, charging for cases they had not even finished.
The institution had also earned the dubious distinction in legal circles as an agency that could not honour its debts. Hundreds of legal professionals throughout the country complained of not being paid, although their accounts had long been finalised, taxed and approved.
As a result, attorneys, followed by advocates, began refusing to take on new work at the board’s request. Others pulled out of existing cases after being told they would be paid less than originally agreed to. This then translated into scores of indigent, unrepresented accused languishing in prison cells, clogged court rolls, and valuable court hours lost. Despite this, the Ministries of Finance and Public Service were reluctant to heed requests by the Department of Justice for managers to save the cash-strapped board. The thorny issue was that of salaries for the prospective appointees insiders emphasised they should be competitive and “market-related”, but the government argued that they had to be in line with the limitations imposed by all managers engaged in civil service employment. But in the middle of last year the government had a change of heart. Largely due, say insiders, to the winds of change that swept through the board. Its chair, Judge Mohamed Navsa, introduced drastic measures to unravel the mess, including drasti- cally cutting attorney tariffs. He was also involved in consolidating the administration of the board to speed up the processing of attorneys’ accounts and the finalisation of cases. According to Ally, a primary objective of management is to “cut out the middleman” when it comes to accessing legal aid. This means involving as few legal practitioners as possible in individual cases, making it easier for them to be processed, dealt with and speedily finalised. The “judi-care” system, where attorneys and advocates are instructed to take on cases on behalf of the board, will be phased out. The new “in-house” system will be based on a Public Defender model. This is the establishment of special offices where defence lawyers paid by the state are on hand to provide “emergency” legal assistance. The legal aid system, by contrast, where an accused applies to the board to have an attorney engaged on his or her behalf, involved laborious consultations, assessments and other impediments to a speedy trial. Existing structures, such as law clinics attached to universities, advice offices and Legal Aid Board regional offices, will pool their resources to provide legal assist- ance to the needy. The attorneys, candidate attorneys and paralegals employed and salaried by the various bodies will be under contract to the board to provide certain services, at a certain rate.
The architects behind the new system have mooted the establishment of one-stop “justice centres”, which will make it easier for clients, particularly from rural areas, to access legal aid. The first was opened in Benoni, on the East Rand, last week. It has been assisting in various legal matters, from criminal cases to child support and land restitution. It is expected that similar offices will be opened countrywide.
Despite their “justice for all” feel, these centres are bound to ruffle feathers. Engaging the services of private attorneys and advocates will now be “very limited” and only in circumstances where specialist knowledge is required. This will mean a loss of revenue for some, especially attorneys in small practices. “The days of certain legal professionals treating the board as a cash cow are over,” says Ally.
He emphasised that attorneys who enriched themselves at the board’s expense were far and few between, and that, generally, responses by attorneys to the new system had been positive. But he said the time had come to plug the huge drain on the board’s financial resources that came with paying out private practitioners. “In any event, it makes financial sense,” he says. Ally is upbeat, saying that without internal maladministration to worry about, the agency can concentrate on the constitutionally guaranteed delivery of legal aid. One of the plans is to alter the “narrow interpretation” of what constitutes legal aid there is a perception in many circles that legal aid is primarily “for defending crooks”. The challenge, says Ally, is to take on a range of non-criminal cases, including those that may set legal precedents.
Environmental cases and personal injury litigation brought by poorer communities against big companies will receive attention from the board. Last week the Mail & Guardian reported that residents of a village in the Northern Province have instituted a multimillion-rand lawsuit against a petroleum giant and its agents for selling them contami- nated paraffin. The litigants are being represented by a local legal aid clinic.
Critics of the new system argue that the new alternative to legal aid delivery will exclude small firms, especially those serving disadvantaged clients, and will further skew the composition of the legal profession. But Ally says there are several plans to make the profession more inclusive, such as engaging the services of paralegals and providing work experience to candidate attorneys, young blacks in particular, who cannot secure articles at the bigger firms. As always, it will be a juggling act to fulfil the task and at the same time ensure that legal practitioners are paid their dues. But the bottom line, he says, is that the main aim of the agency should not be lost. “We should consider it an honour to be part of such a noble aim,” says Ally.