By Kevin O’Reilly

The Law Society of South Africa’s (LSSA) specialist Legal Aid, Pro Bono and Small Claims Court Committee (the Committee) met on 13 April 2023 to deliberate on several matters pertaining to its area of specialisation. The issues listed below were taken into consideration:

Provincial associations

The Committee considered reaching out to the various provinces, noting there are associations being formed in each province, with particular reference to small claims courts. It was noted that in the past an LSSA Small Claims Court Committee existed where members from various provinces were represented, which gave a feel for what was going on in the provinces. It is important for the Committee to not lose the provincial footprint. The Committee will approach the various provincial associations and task teams to identify the Small Claims Courts Commissioners in their province, who can then choose someone to represent them on the provincial structure for the Committee to liaise with.

Discussion Paper: Project 142 – Investigation into Legal Fees

The South African Law Reform Commission concluded its investigation and submitted its final Report on Discussion Paper: Project 142: Investigation into Legal Fees – Including Access to Justice and other Interventions (s 35 of the Legal Practice Act 28 of 2014 (LPA)) to the Minister of Justice and Correctional Service. The LSSA made extensive submissions on the initial Issue Paper, the Discussion Paper and the final Report to the Minister, and requested an opportunity to engage with the Minister on some aspects pertaining to the Report.

Practitioners are urged to read the Report, as it contains significant legislative proposals, which are likely to impact on the profession and access to justice. The Report and the LSSA’s submissions can be accessed at the following link: www.lssa.org.za.

Pro bono legal assistance

Even though the regulation of pro bono services is the responsibility of the Legal Practice Council, the LSSA has an interest in what is happening on the ground. The Committee is of the view that the provincial associations should be engaged to help formulate some form of incentive to encourage practitioners to take up more pro bono work, and to educate practitioners on how the regulations for community service under the LPA are going to be implemented, what is being affected, the hours required, etcetera. Practitioners should also be encouraged to serve a Small Claims Court Commissioners as part of their pro bono service.

Sheriffs

The Committee noted the importance of ongoing discussions between the LSSA and the South African Board for Sheriffs because the issue of sheriffs’ fees has an impact on access to justice.

The Committee also noted with concern the lack of sheriffs in certain areas. It was noted that the Department of Justice deals with the appointment of Sheriffs.

A follow-up meeting will be held with the South African Board for Sheriffs to discuss these and other issues.

Juristic persons in small claims courts

The Committee discussed the possibility of lobbying for the extension of the jurisdiction of the small claims courts to include juristic persons. Small businesses often want to have this expedited process but are prevented from instituting action in these courts. The Committee earmarked this issue for follow up.

Meeting held with Legal Aid South Africa

A joint meeting of Legal Aid South Africa and the LSSA Committee was held on 30 August 2022 in which the following items were discussed: Wills Week, Legal Aid Manual, judicare, new mandate regarding land rights, candidate attorney programme, and women empowerment.

Community service

Section 94(1)(j) of the LPA provides for regulations regarding the rendering of community service and s 29(1)(a) and (b) provides that community service as a component of practical vocational training by candidate legal practitioners may be required, or that a minimum period of recurring community service by practitioners may be required.

Draft regulations were published for comment and the LSSA invited the input of legal practitioners, which were included as part of the LSSA’s submission. The LSSA’s submission can be accessed at the following link: www.lssa.org.za.

It was noted that time spent providing supervision to candidate legal practitioners who are rendering community service is attributed to that legal practitioner’s community service. Candidate legal practitioners will also be able to render pro bono legal services as opposed to community service.

The Committee also noted the importance of taking note of the definition of ‘pro bono’ and ‘community service’, which has a wider definition and how this relates to services one can render.

Kevin O’ Reilly MA (NMU) is a sub-editor at De Rebus.

This article was first published in De Rebus in 2023 (June) DR 6.