Pro bono work under the Legal Practice Act

December 1st, 2017

Attorney Ilan Lax was a facilitator at a consultative workshop on community service and pro bono under the Legal Practice Act 28 of 2014, hosted in Johannesburg in October.

By Ricardo Wyngaard

The Law Society of South Africa (LSSA), together with its six constituent members, (the Black Lawyers Association, National Association of Democratic Lawyers, the Law Society of the Northern Province’s, the Cape Law Society, the Law Society of the Free State and the Law Society of Kwa-Zulu Natal, incorporated as the Natal Law Society) have with the support of the Foundation for Human Rights undertaken a dialogue project aimed at investigating relevant models for the implementation of a national model for the delivery of pro bono/community services by the South African legal profession.

One of the purposes of Legal Practice Act 28 of 2014  (LPA) is to broaden access to justice by putting measures in place to provide for the rendering of community service by candidate legal practitioners and practising legal practitioners. The LPA compels the Minister of Justice and Correctional Services, Michael Masutha, to prescribe the requirements for community service after consultation with the South African Legal Practice Council.

The consultative workshops took place in Bloemfontein, Cape Town, East London, Johannesburg and Pietermaritzburg and were attended by legal practitioners and a diverse range of stakeholders. Attorney and facilitator, Ilan Lax, provided an introduction to s 29 of the LPA, which captures the provisions relating to community service and then juxtaposed that with the current Rules for the Attorneys’ Profession r 25 dealing with pro bono services. The discussion reviewed the context and implications of the status quo and how the envisaged system might work.

Some of the key issues emanating from discussions, include:

  • That pro bono services are not explicitly encapsulated under the concept of community service envisaged under the Act.
  • That the Act should be amended to specifically include pro bono
  • To what extent technology can be used to ease the administrative cost and burden of implementing a community service/pro bono framework for the legal profession.
  • Mechanisms for incentivising participation by legal practitioners.
  • The possibility of extending this framework in some other way to law students and judges.

Judge of the Western Cape Division of the High Court in Cape Town (WCC), Taswell Papier, briefly addressed participants after the Cape Town workshop and he expressed the view that the application of the community service provision is timeous. ‘I remain enormously proud of our legal practitioners and firms who dedicated time and effort in the infancy phase of the [pro bono] project,’ Judge Papier said.

‘The enactment of the community service provision in the Act is timeous and offers an enormous opportunity to the profession to take the pro bono project to its next level with vigour, innovation and commitment. We must always be mindful that community service must not be rendered at a lesser quality. The time has come to revisit the establishment of a clearing house for pro bono,’ Judge Papier added.

Judge Papier emphasised the constitutional promise: Access to justice and social justice for all.

Judge Papier replied to a question that suggested that the pro bono framework could be funded through a grant under s 46(a)(i)(cc) of the Attorneys Act 53 of 1979 from the public funds accumulated by the Attorneys’ Fidelity Fund for the purpose of ‘furtherance of the administration or dispensation of justice’. ‘This would be one of the strongest options of funding a clearing house in line with this purpose,’ Judge Papier said.

Other judges who were present from the WCC at the cocktail function held at the community service/pro bono workshop were –

  • Judge Siraj Desai;
  • Judge Vincent Saldanha;
  • Judge Nolwazi Boqwana;
  • Judge Lister Nuku;
  • Judge Mokgoatji Dolamo; and
  • Acting Judge Mushtak Parker.

Ricardo Wyngaard, Senior Legal Officer, Professional Affairs, Law Society of South Africa,

This article was first published in De Rebus in 2017 (Dec) DR 21.