By Nomfundo Manyathi-Jele
The third annual Public Interest Law Gathering was held from 10 to 12 July at the University of the Witwatersrand’s School of Law. Topics discussed at the gathering included the ethics of compulsory community service in the Legal Practice Bill (B20 of 2012), customary law, corporate obligations in respect of human rights and the ‘criminal injustice system’.
Speakers included the Deputy Minister of the Justice Department, John Jeffery; the director of the Centre for Applied Legal Studies (CALS), Bonita Meyersfeld; SECTION27 attorney, Umunyana Rugege and Kenyan human rights attorney, Korir Sing’Oei.
The general consensus at the gathering was that South African legislation was progressive and that the country had the best Constitution in the world, but that it only seemed that way on paper and not in reality.
The Legal Practice Bill
The panellists that spoke on the Bill were –
The panellists discussed the Bill, community service, pro bono work, and the ethics of legal representation. In introducing the discussion, panel facilitator advocate Jacob van Garderen, who is the National Director of Lawyers for Human Rights said that the Bill provides that requirements regarding community service may be prescribed. He said that a possibility that may be prescribed is that law students may have to undertake a certain number of hours of community service in order to qualify as attorneys, adding that such a requirement is laudable in that it is directed at providing countless people, who would otherwise not be able to afford legal advice, with access to justice.
Mr Van Garderen said that the provisions have been the subject of much debate among law students, legal practitioners, law firms and government and added that the Bill provides that regulations will be promulgated regarding community service. However, before such regulations are promulgated, it is necessary to consider the ethics and implications of compulsory community service and how to balance the right to access to justice with the need to ensure quality legal advice for those who need it, he said.
Mr Van Garderen said that the questions that the panellists will be exploring will be:
Ms Davis spoke about the SLSJ and gave a brief background of the initiative. Ms Davis said that the SLSJ was dedicated to protecting human rights and promoting social justice and the rule of law. She said it was formed in partnership with students at the various universities in South Africa with the aim of transforming legal education and facilitating access to justice.
Ms Davis said that SLSJ was formed by six students based at UCT in response to the dominant emphasis in the teaching of law as a tool to get rich and serve the rich. She added that South Africa has a history in which lawyers, often in conjunction with mass movements, use law to resist injustice and to create opportunities for political and social progress, yet this aspect of the protection of the law is confined to constitutional and administrative law lectures and is often undermined by lecturers and students. ‘A component of our campaign is the call for the transformation of the LLB degree’, she said.
‘The SLSJ uses the Constitution and the law as a tool for social justice. There are 11 universities across the country that are part of SLSJ. It has a campaign that advocates for community service for law graduates, which seeks to address two shortcomings’, said Ms Davis. The first is the shortcomings in the provision of basic legal services and legal representation, such as access to justice, and the second is providing law students with practical training that they do not obtain in their degree and exposing them to the realities of the operation of the law in the daily lives of people, said Ms Davis. She added that the problem with implementing such a programme was that the current state of legal education in the country needed to be transformed.
Ms Davis said private law was being pushed at universities and that the ‘successful attorney’ was seen as the one working at a top law firm. She said universities needed to encourage students to practice street law adding that, given the current state of the LLB degree, it would be a huge injustice to send current graduates out to provide legal advice.
‘We are taught the law as an abstract, without much of a practical element’, she said. Ms Davis made an example of civil and criminal procedure courses and said: ‘It is a very abstract concept; no one knows what to do with it. With contract law, none of us have ever drafted a contract and yet I have done almost two years of contract law’.
Ms Davis said the Constitution was often referred to as an afterthought and the fact that it was treated as a separate course, even though it forms all laws, was highly problematic. She said there was also a huge emphasis on private law as opposed to public law and that students were encouraged to work for corporate firms rather than doing any public interest law work. ‘That is why we feel it is so important to have a year of community service’, said Ms Davis, adding that the LLB curricula at the various universities were not standerdised.
Ms Davis said that the SLSJ believes that, given their legal education, it would be unethical for law students to perform community service, because as it stands they are ill-equipped to give any form of legal advice. She added that students would not necessarily have to give legal advice to fulfil their community service requirements, but that they could be involved in advocacy and education programmes on the content of their rights and how to enforce those rights.
Ms Davis concluded her speech by saying: ‘The Bill, as it stands, is ill-defined around community service. It does not explain whether it will be law students who will be required to do community service. SLSJ wholeheartedly believes that we should be required to do community service’.
Ms Jain said there was a critical need for reform in legal education. She said law schools needed to make the law practical and that the proposed Bill, with its reference to community service, was a vehicle to achieving this. She said the structure of community service in the Bill would assist with access to justice and would also improve the standard of legal education.
Ms Jain said in 1998 the late former Chief Justice, Arthur Chaskalson, mentioned that there was a need for mandatory community service, adding that legal education and training were to inextricably linked to making legal services more accessible and effective to citizens.
Ms Jain said there were many gaps in the Bill pertaining to community service, for example, there was no clear definition of what community service would constitute. She said there also needed to be a clear understanding of the point at which one would be expected to engage in community service, since there was confusion of whether it should be at student level or after admission into the profession. Another issue is the implications on individuals who choose not to practice. ‘Would they be required to do community service and what would the conditions of service be?’ she queried.
She added that other areas that needed to be looked at were whether community service volunteers would be paid a stipend or a salary, what the period of service would be and whether those deployed in rural areas would be given a rural allowance. She also queried the supervision and training for community service and questioned the implications community service would have on the legal profession if law students were required to do community service. She asked: ‘Would there be more resources given to law faculties and clinics in order to meet the requirements necessary to supervise and train students? How would hours be documented and how would the service be administered? Would there be a council to oversee the implementation of this requirement?’
Ms Jain said the Bill suggests that there would be some type of supervisory function by the government in respect of legal education and questioned whether law faculties would still have the ability to decide how to structure their LLB curricula themselves. Ms Jain said there was currently ‘an incredible amount’ of variation on the LLB curricula across universities. ‘Would there be any attempt to harmonise the curricula so that there is at least a base minimum of certain skills, subjects and values that are being taught by all faculties?’ she asked. She concluded by saying that these were the issues that needed further discussion.
Mr Jeffery said there was a division between the portfolio committee and parliament on the Bill. He said the portfolio committee had not yet made any amendments to the Bill but was currently working through the provisions clause by clause, adding that they had done one run through the Bill thus far.
At the time of going to print the committee was scheduled to sit again later in July. Mr Jeffery said the intention was to finalise the Bill before the 2014 elections.
Mr Jeffery said that, from practical experience as an attorney, he can relate to the points Ms Davis made of the criminal procedure, civil procedure and evidence courses being very boring subjects. He admitted that he barely passed criminal procedure and evidence, adding that the problem was that one cannot relate it to reality. ‘You go out to do your articles as a candidate attorney and suddenly all this theoretical stuff becomes vital. I learnt more evidence and criminal law while practising, than during the course,’ he said.
Giving a history of the Bill, Mr Jeffery said that it had been in the pipeline for too long. He said that drafting began more than a decade ago under the first post-apartheid Justice Minister, Dullah Omar, adding that it was reintroduced to parliament in 2012. Mr Jeffery said the reason it is taking so long was because the legal profession is very entrenched in their thinking and that there were huge divisions between the attorneys and advocates. ‘That is also why it is so important for this parliament to [finalise] the Bill, otherwise all the work done will have to go to a new parliament and it will have to be redone’, he said.
Mr Jeffery said that the changes to a Bill are made by parliament, and not by the minister. He said that the powers of the minister are limited to being able to withdraw the Bill but not to insist on a particular amendment. He added that that is why there is a division between the portfolio committee and the ministry.
Mr Jeffrey said the main complaint that lawyers had about the Bill was that they felt it interfered with the independence of the legal profession. Mr Jeffery said South Africa comes from a British Commonwealth heritage and that if one looked at other Commonwealth countries; one would see that they have also undergone a review of their legal profession. He said what was interesting to note was that other Commonwealth countries – such as Nigeria, Zimbabwe, Namibia, New Zealand and parts of Australia – that come from the tradition of having two Bars, have abolished that tradition and now only have one unified profession.
Mr Jeffery said that, at the moment, pupils do not get paid for pupillage, which makes it difficult for aspiring advocates and limited accessbility to the profession. He added that the Bill would change this. Mr Jeffery added that he was surprised that the problem of pupils not being paid has never been raised since South Africa’s democracy.
Mr Jeffery said that the community service clause (ch 3(29)) in the Bill reads:
‘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 legal practitioners upon which continued registration as a legal practitioner is dependent.
(2) For the purposes of this section, ‘‘community service’’ includes service involving –
(a) the delivery of free legal services to the public in terms of an agreement between the candidate legal practitioner or the legal practitioner with a community-based organisation, trade union or non-governmental organisation;
(b) the provision of legal education and training on behalf of the Council, or on behalf of an academic institution or non-governmental organisation approved by the Council;
(c) service as a judicial officer, including as a commissioner in the small claims court;
(d) service to the State, approved by the Minister after consultation with theCouncil;
(e) service on regulatory structures established or recognised in terms of this Act;
(f) any other service as may be determined by the Council in the rules; or
(g) any other service which the candidate legal practitioner or the legal practitioner may want to perform with the approval of the Minister.’
Mr Jeffery said that a ‘candidate legal practitioner’ was defined as a candidate attorney or pupil and did not include law students at this stage. He added that the list may include law students as it is open. Mr Jeffery said there is therefore some form of definition for the requirements of community service, but that this definition was open. He said that community service was added to the Bill as a regulation.
Mr Jeffery said that community service at universities was not covered in the Bill. He added that there was not much opposition regarding community service for candidate legal practitioners and that opposition was mainly received with regard to recurring community service for existing practitioners, since practitioners felt that it would be punitive. Mr Jeffery said that this was not the Bill’s intention; the intention was that lawyers give back by imparting their skills to others.
Mr Jeffery added that other problems with community service work was how the envisioned National Legal Council would monitor it without it costing too much; that it was voluntary, which meant that it would not be remunerated; and that practitioners that are new entrants to the profession usually had limited time, hence them not having time to do community service.
Mr Jeffery noted that the country’s legal fees were ‘astronomically high’, much higher than those in any other part of the world. In conclusion he said that the definitions of community service, still needed to be finalised.
The future of asylum
On the first day of the gathering, a one-day seminar on refugee protection was held, delegates explored the future of asylum seekers in South Africa. The seminar focused on the closure of refugee reception areas in Cape Town and Port Elizabeth.
The closure of these centres meant that refugees found it difficult to file asylum applications. There was also a discussion on xenophobia, which looked at the legal and social challenges faced by refugees and asylum seekers who engaged in informal trading. David Rossouw from the Nelson Mandela Metropolitan University’s Refugee Rights Centre said that, despite several judgments declaring the closure of the Port Elizabeth refugee office unlawful and court orders granted to reopen it, the office remained closed.
Southern Africa regional representative at the United Nations High Commissioner for Refugees, Clementine Nkweta-Salami said that South Africa was the recipient of the largest number of refugees in the world, adding that most of the refugees came from Zimbabwe.
Ms Nkweta-Salami said that South Africa had the best refugee legislation in the world, adding that it was the implementation of the rights that was a problem. She said refugees contributed to the economy of the country because they set up small businesses.
She said that government needed to consult extensively with stakeholders before taking ‘big decisions’ such as closing refugee offices, adding that South Africa needed to place refugee protection on its national agenda, since ad hoc responses cannot resolve issues.
The criminal injustice system: Gatherings in law and practice
In this session the panel explored protests and unprotected strikes, focusing on the Regulations of Gatherings Act 205 of 1993 (the Act).
The moderator for the session, Simon Delaney, of Delaney Attorneys, said that the Act, although passed in the apartheid era, was ‘not a bad Act’. He said that the downside of the Act was that it has become a ‘permission-seeking’ Act, which was never the intention.
Mr Delaney said the reality was that many marches are prohibited because the Act states that marchers must get written permission from the person they are marching against, which impedes their constitutional right to freedom of expression.
Kathleen Hardy who is an attorney at the CALS spoke on her experience with the Act during the march by the women of Marikana in September last year. She discussed the women’s march after the Marikana massacre to illustrate how authorities react to protests. Ms Hardy said that a number of women wanted to march about the massacre because they were scared and had seen loved ones being intimidated. She said their experience on giving their notification of the march just proved that the Act was ‘political and nothing else’.
Ms Hardy shared how the women on submission of their notice to march, were kept waiting for a response, and then told that they had not given enough notice of the march. She added that the Act states that notice must be given within seven days of the march, but not less than 48 hours, which the women had done. They were asked to postpone their march by a week, which they obliged to, and reapplied for the notice of the march.
Ms Hardy said the women were then told to decrease the number of demonstrators from 500 to 250, which they agreed to do, only to be told that the purpose of the march did not meet the requirements of the Act, hence their march being unprotected. Ms Hardy said that the women received a court order at 11.15pm a day before their march. She said that they had followed the rules and laws but were still stopped, adding that criminal courts have become decision makers on gatherings, which require lawyers that cost money.
Mr Delaney closed the session by saying that this issue needed constitutional scrutiny. He said the law serves those who have money and those who can afford lawyers, adding that the issue was not unique to South Africa but that it was happening worldwide.
Nomfundo Manyathi-Jele, nomfundo@derebus.org.za
This article was first published in De Rebus in 2013 (Aug) DR 8.
