The Department of Justice and Constitutional Development published a notice on 11 August 2023 on the rendering of community service by candidate legal practitioners and legal practitioners (Legal Practice Act 28 of 2014: Amendment of Regulations made under Section 94(1), GN R3788 GG49104/11-8-2023).
In the notice, the meaning of ‘community service’ is the one that is set out in s 29(2) of the Legal Practice Act (LPA) as –
In addition, ‘community service’ is defined to include the provision of legal services at no fee or a reduced fee to ‘individuals, groups or organisations seeking to secure or protect civil rights, civil liberties or public rights’ or ‘to charitable, religious, civic, community and educational organisations’ to further their organisational purposes, where payment of standard legal fees would cause them hardship.
The regulations provide that pro bono services, defined as free services principally to benefit poor, underprivileged or marginalised persons or communities, are now considered to be a form of community service (ss 4A(6) and 4B(6)).
Candidate legal practitioners must render such services for at least eight hours annually and be supervised by their principal, while qualified legal practitioners must perform 40 hours of community service per annum.
On the 18 September 2023, the LPC sent a notice to legal practitioners and candidate legal practitioners alerting them to the new requirements for community service. The notice states that the LPC is currently establishing guidelines to assist.
The problem with these community service requirements is they give legal practitioners such a wide range of options to perform their community service obligations that the real purpose of community service by legal professionals is lost. The Preamble of the LPA sets the framework for creating a legal system that addresses the fact that legal service provision is skewed toward the privileged and not a reality for most South Africans. It aims to ‘ensure that legal services are accessible’ and recognises that access to legal services ‘is not a reality for most South Africans’.
South Africa (SA) is one of the most unequal societies in the world, and this inequality is evidenced in the vast disparity of access to justice and legal services between the rich and the poor. We have a population of about 60 million, with around 30 000 practising attorneys nationwide. This equates to approximately one lawyer for every 2 000 people in South Africa, and because most lawyers operate for profit and only serve the more affluent community in urban areas, the ratio in poorer communities is much higher. There is an enormous unmet need and a solid imperative to increase the availability of legal services for the poor in South Africa.
The South African Law Reform Commission (SALRC) identified several reasons why people requiring legal services are not accessing them in its 2021 Project 142: Investigation into Legal Fees. These included the legacy of Apartheid, an emphasis on criminal justice over civil justice in state spending, and prohibitively high legal fees that make access to the courts a privilege of the wealthy. Various academics, including Jonathan Klaaren and Theo Broodryk, have indicated that hourly rates for legal services are exorbitant and way out of reach of the majority of the population. The high costs of legal services in South Africa create significant obstacles for most citizens to access justice, exposing the inequality within the country’s legal system.
While it is to be commended that the community service regulations have now been published, filling the hiatus that has existed since the promulgation of the LPA on 22 September 2014, which effectively put the pro bono rules on hold, since reporting and monitoring came to a standstill, they do not impose on the legal profession sufficient obligations to meet the justice needs of the poor.
Now legal practitioners have various choices they can make, as to how they render their community service. These options enable legal practitioners to provide services that are far removed from the lives of the poor. Yes, many of the institutions listed in s 29(2) and in the new regulations may indirectly help poor people, but service in those institutions does not give poor people the direct access to legal practitioners that they require.
Many legal practitioners may choose the more convenient and easy options for complying with the regulations. It is far easier to sit in one’s office taking instructions by e-mail from a non-governmental organization (NGO), the LPC, a staff member at the SAHRC or an educational institution than appears in a magistrate court or attend a legal clinic. It is challenging to assist a poor person about to be evicted from their home or a refugee about to lose their right to stay in the country. It is easier to draft the Memorandum of Incorporation for a newly established church than to spend two hours taking down a statement from a woman experiencing domestic violence and assisting her in obtaining a protection order.
In 2002, a conference was held attended by the profession, including judges, politicians and other stakeholders, entitled ‘The Responsibility of Lawyers in South Africa to undertake Pro Bono Publico and Public Interest Work’, at which the concept of pro bono giving by the legal profession was recognised as the central way to address the disparity in access.
Pro bono publico means ‘for the public good’ in Latin and sees this as professional work undertaken by legal practitioners without remuneration for the poor and needy. Following the 2002 conference, the Cape Law Society, followed by the other law societies, all published pro bono rules, consolidated into one rule, rule 25, in 2016 that required attorneys to undertake 24 pro bono hours per annum (rule 25.1 of the Rules for the Attorney’s Profession in GenN2 GG39740/26-2-2016).
Rule 25 provided that pro bono is legal work that includes giving advice, opinions or aiding in matters falling within the professional competence of a legal practitioner to facilitate access to justice for those unable to pay for such services. Pro bono services had to be provided through recognised structures, be recorded and submitted to the law society. Recognised structures included advice offices, university law clinics, NGOs and small claims courts.
While rule 25 might have complicated the matter of provision of pro bono services by requiring them to be rendered through recognised structures, there is much value in the pro bono system that it regulated. Some of the elements that enhanced access to justice for the poor should be included in the guidelines the LPC will be producing. The rendering of pro bono was focused on the poor and aimed to enable them to access pro bono services. Some law societies, for example the Law Society of the Northern Provinces (LSNP) stipulated that pro bono work could only be provided to those with a gross monthly income below the regulated amount, which in 2016 was R 7 000 per month.
The LSNP provided that it was permissible to undertake pro bono work for non-governmental or non-profit or community-based or public benefit corporate or unincorporated bodies, trusts, foundations or charities ‘working for the public interest or working to secure or to protect human rights, which are mainly funded by donations’ (rule 79A.1.1.4). Provision of pro bono services to these organisations could only be done where payment of legal fees would deplete the organisation’s resources and adversely affect their ability to carry out charitable or public interest work.
Other wording of the LSNP rule that indicated the focus was on the poor stated that the pro bono should be ‘performed on a gratuitous basis with an altruistic or philanthropic intent’ and should be ‘primarily designed to address the needs of persons of limited means’. Section 4A(1)(a)(ii) and 4B(1)(a)(ii) of the regulations have reproduced this sentiment.
One reason why the rule 25 was widely accepted, was because it enabled firms to allocate all the pro bono work in a firm to one legal practitioner (or a few). This would cumulatively equal the number of legal practitioners multiplied by 24 hours per practitioner and enabled firms to allocate pro bono work to specific practitioners employed to do pro bono work, which many of the more prominent commercial law firms were doing. Some argue that this option allows some legal practitioners never to undertake their pro bono obligations since in their firms, others undertake them on their behalf. This is viewed as problematic because there is an assumption that doing pro bono for the poor is good for the legal practitioner. If pro bono work aims to ensure service to the poor, and if consolidating hours results in a more effective and comprehensive service for them, then it should be considered acceptable from a pragmatic standpoint. Doing pro bono work has been shown to increase the psychological well-being of lawyers who benefit from stepping away from their usual high-pressure commercial work to give back and make a difference in someone’s life. But the rationale for pro bono should be kept in focus, which is to enhance delivery to those who cannot access legal assistance.
A list of the kinds of services legal practitioners could perform as part of their pro bono contribution was published, and included:
It would be useful, if the guidelines that the LPC issues on pro bono, set out what work is to be regarded as pro bono drawn from the list above, and includes a few additional areas. There may be many areas of law to add, but some are:
The focus should be on providing services to individuals experiencing conflicts and problems of a legal nature in their lives. While high-impact Constitutional Court cases are important, they are generally funded by donor organisations that promote rights-based litigation. Or litigants can apply for funding from Legal Aid South Africa, which has a unit that supports these types of cases. The gap that requires filling is for the ordinary person on the street, unable to afford to pay private legal fees, to be able to see a legal practitioner for assistance.
The guidelines that are prepared by the LPC should promote a focus on pro bono service provision rather than on service to the state, SAHRC, LPC, and other institutions. The council must be mindful that the unmet need for legal services is vast and should stress the importance of legal practitioners meeting it. The council and the profession should build and nurture an ethos to use our skills to benefit the broader social good. By taking this stance, we remain faithful to the Constitution and the LPA.
Erica Emdon BA (Hons) Socio LLB MA (Wits) is a director at the Public Interest Practice, is the former director of ProBono.Org.
This article was first published in De Rebus in 2023 (Dec) DR 57.
