By Erica Emdon
This article looks at whether the provisions relating to community services contained in s 29 of the Legal Practice Act 28 of 2014 (the LPA) have addressed the issue of pro bono service by the legal profession in a manner that is unambiguous and that gives clear direction to legal practitioners regarding their responsibility to undertake pro bono service.
In the first place, s 29 of the LPA makes no explicit reference to pro bono legal services. The LPA states that –
‘(1) The Minister must, after consultation with the Council, prescribe the requirements for community service from a date to be determined by the Minister, and such requirements may include –
(a) community service as a component of practical vocational training by candidate legal practitioners; or
(b) a minimum period of recurring community service by practising legal practitioners upon which continued enrolment as a legal practitioner is dependent.’
Community service is to be rendered on the one hand by candidate attorneys (CAs), or on the other by practising legal practitioners. The ‘or’ implies that it is one or the other, and not both. Thus if you did community service as a CA, you may not need to do it again as a practising legal practitioner. Or if you did not do it as a CA you must do it as a practising legal practitioner.
Pro bono
What we refer to as pro bono comes for the Latin pro bono publico. This means ‘for the public good.’ It describes legal work undertaken by legal practitioners without remuneration
as a public service, and for which pro bono clients do not have to pay.
Section 34 of the Constitution provides that everyone has a right to have a dispute resolved by the application of law decided in a fair public hearing before a court. This clause of the Constitution can only be made real for impoverished people living in South Africa if they have access to legal representation, and the private legal profession has acknowledged that it has an obligation to assist. Most bar councils and provincial law societies have adopted pro bono rules in the past six years, indicating a commitment to the ideal of providing free legal services ‘for the public good.’
Current provincial law society and bar council rules
Currently, r 25 of the Rules for the Attorneys’ Profession promulgated in 2016, regulates pro bono among attorneys (the Cape Law Society has its own rule) (see
r 25 of the ‘Rules for the Attorneys’ Profession’ published under the authority of the Attorneys Act 53 of 1979 GenN2 GG39740/26-2-2016). This rule is similar to the various provincial law society rules that had been adopted by the KwaZulu-Natal Law Society, Free State Law Society, Law Society of the Northern Provinces and Cape Law Society, from around 2010 onwards. The General Council of the Bar, Johannesburg Bar Council, Pretoria Bar Council, Cape Bar Council and Eastern Cape Society of Advocates all have pro bono rules that apply to advocates.
It can be argued that these rules do not go far enough to protect the rights of the indigent to have access to pro bono legal services and an explicit reference to pro bono service provision should have been included in the LPA. The various rules adopted by the profession in its own professional bodies must be strengthened and the best way to do it is through legislation.
Reading pro bono into the LPA
Seeing that there is no clear reference to pro bono legal services, the question arises as to whether we can read the concept of pro bono legal services into the community service provisions of s 29.
This is not an easy task and requires some imaginative reasoning. Leaving out CAs for the moment, one can see that it is not clear at all whether recurring legal service by legal practitioners, for which enrolment as a legal practitioner is dependent, is actually what we know as recurring pro bono service that law bodies require legal practitioners to fulfil every year.
If one looks at the types of activities that are set out in the LPA as community service activities (although the list is not limited), the drafters of the LPA could easily have had something else in mind. It could be argued that what was intended was that the various activities listed under s 29(2) as community service activities are paid activities. The activities are as follows –
‘(a) service in the State, approved by the Minister, in consultation with the Council;
(b) service at the South African Human Rights Commission [SAHRC];
(c) service, without remuneration, as a judicial officer in the case of legal practitioners, including as a commissioner in the small claims court;
(d) the provision of legal education and training on behalf of the Council, or on behalf of an academic institution or non-governmental organisation [NGO]; or
(e) any other service which the candidate legal practitioner or the legal practitioner may want to perform, with the approval of the Minister.’ (My italics.)
One notices that the words ‘without remuneration’ are only used in respect of judicial officers in the small claims courts. By implication one could argue that the other forms of community service listed are ones that would be remunerated. If one adopts this reading of the LPA, then doing a few months (or longer) a year, of paid work for the state, the SAHRC, an academic institution or NGO, might be the community service envisaged by the legislature for legal practitioners (s 29(2)(e) of the LPA allows for the list of services to be extended on approval by the minister).
A different reading is to propose that the intention of the legislature was to see recurring community service rendered by legal practitioners every year referred to in s 29(1)(b), as what we know of as pro bono legal service. On this reading the words ‘recurring community service by practising legal practitioners …’ would mean something similar to what we currently know as pro bono services covered by various rules of law societies. As mentioned the LPA states that this recurring community service (now being interpreted as pro bono) may be done in service of the state, at the SAHRC, as a judicial officer at a small claims court, providing legal education or any other approved service. The problem still arises, however, with the words ‘without remuneration’ only being stated in regard to ‘small claims court’ service.
On this latter interpretation, there are still further problems. The list makes it possible for the minister to add other approved services, which means for instance, he could add other Chapter 9 institutions, and perhaps a few other options. If the community service provisions in s 29 were aimed at making access to justice more accessible to indigent members of our society, would the LPA not have included a direct and explicit mention to this by stating at
s 29(2) that one form of community service could be service for indigent people and the organisations that represent them? The fact that the list of services does not include this type of service is highly problematic and certainly does not ensure that access to justice will be made real for indigent people.
CAs
CA community service – if we follow the interpretation above – appears to be paid and is a component of practical vocational training. Service as a judicial officer in the small claims court would be excluded for CAs as they would not be qualified to perform this function. But they could undertake service in the state, at the SAHRC (or another Chapter 9 institution), or could provide legal education. There is no clarity regarding the length of time for CA community service, or whether it should be during articles or after articles.
Without any clarity, two options could be looked at, namely –
The section below is written with CAs in mind, as there is still uncertainty regarding LLB graduate that undertake pupillage. For instance, it is unclear if pupillage will still exist or whether all law graduates will be required to undertake articles and then do pupillage afterwards.
There are statutory provisions regulating articles. In particular only certain institutions may offer articles because supervision of CAs is prescribed. In addition to law firms, Legal Aid South Africa (Legal Aid SA), legal clinics at universities, the state attorney’s office and certain NGOs (those that are accredited and certified as legal clinics) can offer articles.
There are only a small number of opportunities for LLB graduates to obtain articles at these institutions, so for the rest, the only option is to undertake articles at a law firm. Some CAs have the opportunity to serve in the pro bono departments at these firms, and that time could constitute community service. However, there are a limited number of firms that can provide this opportunity, and most of these firms cannot accommodate all their own CAs in these departments during their articles.
Thus we can see that currently the opportunity to undertake community service within one’s articles remains limited. It must be borne in mind that anywhere that a CA does community service, while doing articles, requires the highest level of supervision, given that the CA has not been admitted. Also, as mentioned the list of services to be regarded as community service is limited not making it clear that community service includes providing legal services to indigent people.
An optimal period of time to undertake community service while serving articles needs to be considered. Should it be 30 days, three months, six months or a year? If the CA were fortunate enough to find articles in a legal NGO, Legal Aid SA or a university clinic, would this by default constitute that person’s community service?
Or alternatively, the most practical way to undertake community service during articles would be for CA community service to be pro bono service under the supervision of his or her principal. Perhaps for CAs the amount of hours could be higher – maybe 30 hours, or even 100, instead of the 24 hours that the principal would be required to serve in terms of various pro bono rules.
Another option is that the CAs could undertake a period of community service after they have completed articles in the institutions mentioned above in s 29(2) (as supplemented). Such post-articles community service could be made a prerequisite for admission. If this form of community service provides a service to the state, albeit indirectly, the state ought to pay for it. Examples that spring to mind are service in courts assisting the public, service in parastatals or Legal Aid SA. There are many other examples, including the legal departments of different state departments. For example, the Department of Labour, Social Development, Health, Rural Development and Land Reform, Cooperative Governance and Traditional Affairs, Home Affairs and, in addition, Land Claims Court. Moreover, there could be opportunities at South African Police Service charge offices, at correctional service institutions, and options at the Competition Commission, the Financial Services Board, various ombuds offices, the SAHRC (which is already listed in s 29(2)), other Chapter 9 institutions, including the Public Protector.
The advantage of placing CAs that have completed articles in these institutions is that there would not need the same high levels of supervision that would be needed if community service were to be done within articles.
Agreement would need to be reached on the time periods for community service if it is done after articles. It has to be realistic and doable, and not become a drudge. Somehow community service should be incentivised not commanded, if possible.
Conclusion
There are obvious problems with the LPA regarding pro bono. If the National Forum on the Legal Profession or any voluntary law associations and bodies formed do not pass pro bono rules, the only place to look for the regulation of pro bono would be the LPA. If the section on community service does not mention pro bono services to make access to justice for the indigent a reality, and it can be interpreted to refer to some form of paid community service, then the situation is extremely problematic to those of us who strive to introduce pro bono work as an integral part of legal practice. There might be ways to ‘read’ pro bono into the LPA but this is unsatisfactory. It is not clear, with the current wording of s 29 whether the minister is even empowered to make a pro bono rule.
Because of these questions, it is necessary to decide on a way in which to take these concerns forward.
Erica Emdon BA (Hons) LLB MA (Wits) is an attorney at ProBono.Org in Johannesburg.
This article was first published in De Rebus in 2017 (Jan/Feb) DR 26.
