High cost of civil and criminal litigation is one of the main barriers to accessing justice

July 1st, 2022

The South African Law Reform Commission (SALRC) handed over a report on Project 142: Investigation into legal fees, including access to justice and other interventions, with final recommendations to the Minister of Justice and Correctional Services, Ronald Lamola in March 2022. Along with the SALRC’s final recommendation for law reform, a proposed draft Bill, titled ‘Justice Laws General Amendment Bill’ was included.

The SALRC said the report follows on Issue Paper 36 and Discussion Paper 150, which were published for general information and comment on 7 May 2019 and 18 September 2020 respectively. The organisation added that the discussion papers considered all the input and comment received from its stakeholders, including items from community workshops held in all nine provinces of South Africa (SA), as well as the international conference on ‘Access to Justice, Legal and Other Interventions’ held in November 2018 in Durban.

In some parts of the summary the SALRC stated that the right to access to courts is a fundamental human right embodied in s 34 of the Constitution. Access to justice comprises of many aspects. These include –

  • access to legal information;
  • advice or mediation services;
  • the use of courts and tribunals; and
  • the ability to engage in legal advocacy services.

The introduction of the Legal Practice Act 28 of 2014 (LPA) signals the intention of the Legislature and the Executive that appropriate actions must be taken to address the lack of access to justice for the majority of the South African people.

The SALRC added that legal fees and costs are associated with access to justice at every stage of the legal process. Such expenses constitute a major barrier for those who cannot afford them, and the majority of South African people are unable to access legal practitioners because of unattainable legal fees. The report pointed out that many South Africans live in rural areas, making travelling to a legal practitioner’s office a financial battle. The SALRC said that s 35(4) and (5) of the LPA, which came into operation with effect from 1 November 2018, set out the parameters of the investigation to be undertaken by the SALRC within two years, calculated from the latter mentioned date. Section 35(4) of the LPA mandates the SALRC to investigate and report back to the Minister with recommendations on the following –

‘(a) the manner in which to address the circumstances giving rise to legal fees that are unattainable for most people;

(b) legislative and other interventions in order to improve access to justice by members of the public;

(c) the desirability of establishing a mechanism which will be responsible for determining fees and tariffs payable to legal practitioners;

(d) the composition of the mechanism contemplated in paragraph (c) and the processes it should follow in determining fees or tariffs;

(e) the desirability of giving users of legal services the option of voluntarily agreeing to pay fees for legal services less or in excess of any amount that may be set by the mechanism contemplated in paragraph (c); and

(f) the obligation by a legal practitioner to conclude a mandatory fee arrangement with a client when that client secures that legal practitioner’s services’.

In giving effect to this mandate, the SALRC must, in terms of s 35(5), take the following into consideration:

‘(a) Best international practices;

(b) the public interest;

(c) the interests of the legal profession; and

(d) the use of contingency fee agreements as provided for in the Contingency Fees Act, 1997 (66 of 1997)’.

The SALRC said that although the LPA retains, to a large degree, the structure of the divided Bar with its origins in both the Roman-Dutch and English law, however, s 34(2)(b) of the LPA has introduced a third category of a legal practitioner, that is, an advocate that can accept a brief directly from a member of the public or a justice centre for that service, provided that they are in possession of a Fidelity Fund Certificate and have notified the Legal Practice Council (LPC) of their intention of doing so. Section 3(c) of the LPA provides that the purpose of this Act is to ‘create a single unified statutory body to regulate the affairs of all legal practitioners and all candidate legal practitioners in pursuit of the goal of an accountable, efficient, and independent legal profession.’

The SALRC added that it is required to investigate how the existing mechanism for the recovery of fees and costs (party-and-party costs) and attorney-and-client fees payable to legal practitioners for litigious and non-litigious legal services can be improved in order to broaden access to justice by members of the public. The SALRC noted that the overall aim of the Commission’s investigation is to find ways to broaden access to justice and to make legal services more affordable to the people while considering the interests of the public and the legal profession.

The SALRC pointed out that the final proposals as set out in the report and the accompanying Justice Laws General Amendment Bill can be summarised as follows:

In line with the categorisation of legal costs as provided in ch 1 of this Report, the mechanism contemplated in s 35(4) of the LPA can be divided into two components, namely –

  • a mechanism for party-and-party costs; and
  • a mechanism for attorney-and-client fees.

In some parts of the mechanism for party-and-party costs the SALRC is of a view that the Rules Board for the Courts of Law (Rules Board), as presently constituted institutionally in terms of s 3 of the Rules Board for Courts of Law Act 107 of 1985, read with s 5(1) of the LPA, is the appropriate existing mechanism for determining recoverable legal fees and tariffs payable to legal practitioners and juristic entities in litigious matters. Therefore, the SALRC recommended that the mechanism (Rules Board) must adopt an effective consultative process of all the stakeholders involved before determining legal fees and tariffs. That the following stakeholders and role-players, among others, must be consulted –

  • the LPC;
  • consumers of legal services;
  • members and representatives of the legal profession;
  • members and representatives of the judiciary;
  • representatives of civil society organisations;
  • the Minister, or their representative;
  • the Competition Commission;
  • Legal Aid South Africa;
  • law clinics;
  • juristic entities;
  • the National Economic Development and Labour Council; and
  • the Human Sciences Research Council.

With regards to the mechanism for attorney-and-client fees, the SALRC is of a view that the current status quo in terms of which there is neither a statutory tariff nor fee guidelines for legal services is contrary to the purpose of the LPA as envisaged in s 3(b)(i) and, therefore, undesirable. Furthermore, it is clear from the representations received, that the current status quo is denying many people access to justice. For the reasons advanced in ch 7 of the Report, the SALRC concurs with the view of many respondents who submitted that the imposition of a universal and compulsory tariff is undesirable not only for the legal profession but for the economy of SA too.

The SALRC added that the proposal of having attorney-and-client fees pegged at the same level and determined on the same tariff as party-party costs in litigious matters in respect of users of legal services in the lower and middle-income bands, it might at first glance, not find favour with many legal practitioners. However, there are credible arguments in favour of this option. First, this proposal is limited to a certain category of users of legal services, and second, only to certain fora (district and regional/magistrates’ courts), where it is not in dispute that legal fees will be lower compared to other fora. Third, the fact that a successful litigant in all respects is still required to pay legal (attorney-and-client) fees despite their success in the matter seems unreasonable to many potential users that legal fees are payable regardless of the outcome of the case. Fourth, considering that courts only grant costs on the attorney-and-client scale in exceptional circumstances, these factors taken may serve as a deterrent to anyone contemplating litigation, notwithstanding the advice a user may obtain to the effect that the prospect of winning the case are high.

The SALRC pointed out that this cannot be in the interest of justice that someone who has an imminently winnable case is deterred from going to court or other fora by the prospect, even in the event of success, of having to pay attorney-and-client fees.

The report among other things includes–

  • scenarios to deal with attorney-and-client fees;
  • proposed legislative intervention;
  • other proposed amendment to the LPA;
  • proposed amendments to the Rules Board for the Courts of Law Act.

Mr Lamola said that the report on Project 142, aims to address some of the major problems bedevilling the South African civil justice system. He pointed out that it takes too long to resolve legal disputes, the system excludes those who cannot afford to litigate in the courts, the average time it takes to resolve a legal dispute range between three to six years, and legal fees have escalated to a point where the majority of people are excluded from the system of dispute resolution. Mr Lamola added that the high cost of litigation in both civil and criminal matters is one of the main barriers to access to justice and questions that must be asked are: What are the factors that give rise to unaffordable legal service? What interventions can be devised to address these challenges in SA? He pointed out that the report deals with these questions.

The full report can be accessed at https://justice.gov.za/.

Comment from the LSSA

The Law Society of South Africa (LSSA) submitted comprehensive comments to the SALRC on both the Issue Paper 36 and the Discussion Paper 150, after extensive consultation with members of the legal profession. The LSSA’s submissions are available at www.LSSA.org.za.

There are some recommendations that the LSSA supported, particularly those that will make the system more effective and efficient. The LSSA noted that there are systemic problems that require a holistic approach and that access to justice will not be achieved without the government playing its part in improving service delivery.

However, some of the recommendations were not supported, notably those regarding a fixed tariff with limited targeting which will, if implemented, have serious and far-reaching consequences for the public and the legal profession.

The LSSA noted with disappointment that its submissions on this crucial aspect were not accepted in the report and will continue to engage in this regard.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2022 (July) DR 8.