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This second article will briefly analyse the community service regulations, their implications and then make some concluding remarks and observations (see part one: Ilan Lax ‘Navigating the community service regulations for legal practitioners: Section 29 of the Legal Practice Act’ 2024 (June) DR 14).
The regulations introduce two new provisions dealing respectively with the rendering of community service by candidate (reg 4A) and practising (reg 4B) legal practitioners (CLPs and PLPs).
Both regulations define ‘community service’ and ‘pro bono services’ in identical terms. Regulation 4B is quoted with ‘CLP’ indicated where it would occur in regulation 4A.
As a general observation, it is worth noting that the previous Rules for the Attorneys’ Profession (the Uniform Rules) contained a framework and terminology that was settled. The introduction of new terminology will create unnecessary confusion and contestation. It is surprising that the prior framework was, despite requests, not accommodated.
Regulation 4B(1)(a) defines ‘community service’ in two distinct types:
‘(i) the provision of free legal services by a [CLP] practising legal practitioner through structures as contemplated in section 29(2) of the Act; and
(ii) the provision of legal services at no fee or at 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 in matters, in furtherance of the organisational purposes, where the payment of standard legal fees would cause hardship’.
Regulation 4B(1)(a)(i) refers to community service via ‘structures as contemplated in section 29(2)’ specifically and requires any such service provision to be free. Note that no structure is mentioned in s 29(2)(e). The regulations make no provision for how this aspect of community service will be administered or implemented. Note that free services are not specifically provided for except in one instance. This provision could thus: be subject to challenge; be found to ultra vires the Legal Practice Act 28 of 2014 (LPA) and the Minister’s powers; and create unnecessary confusion and uncertainty.
Regulation 4B(1)(a)(ii) refers to a different kind of community service by: range of recipients; objectives to be achieved; and the kinds of fees to be charged.
The recipients comprise two broad groups –
This will allow for many different avenues for rendering community service which is a positive development of access to justice.
Besides the South African Human Rights Commission (s 29(2)(b)) other Chapter 9 institutions are omitted. This is unfortunate. It could be argued that such bodies are included implicitly as part of ‘the State’ (s 29(2)(a)). It was hoped that this might be addressed in a proposed amendment to s 29. Nevertheless, this development is welcomed as under the Uniform Rules pro bono services could only be rendered to ‘recognised structures’.
The objectives to be achieved are –
The fees that may be charged are –
The first of these matters is clear. The second could be problematic without further clarification. ‘Hardship’ is not defined. This concept is both relative and subjective. This should be defined with reference to objective criteria, for example, means tests (despite their problems) have been used for decades to determine the eligibility threshold for pro bono and legal aid services. Better clarity and definition are required to avoid unnecessary contestation.
‘In forma pauperis instructions from a registrar of a Division of the High Court will be regarded as community service’ (reg 4B(7)). This is a welcome addition of free legal services to the indigent. While consistent with the concept of community service and pro bono services, its inclusion through regulation and without amending the LPA, creates uncertainty and possible contestation.
‘Any lectures or training presented to candidate legal practitioners by legal practitioners, at no charge and with no remuneration, will be regarded as community service’ (reg 4B(9)). This is consistent with the provisions of s 29(2)(d), current and previous pro bono best practice.
Regulation 4B(1)(b) defines ‘pro bono services’ as:
‘legal services by a [CLP] practising legal practitioner of a quality equal to that afforded to paying clients, at no fee or expectation of compensation, and principally to benefit poor, underprivileged or marginalised persons or communities or the organisations that assist them.’
The definition can also be analysed in terms of the: range of recipients, objectives to be achieved, quality, and kinds of fees to be charged.
The recipients are ‘poor, underprivileged or marginalised persons or communities or the organisations that assist them.’ While this is a broad range of people and organisations that can now benefit from improved access to legal services, which is welcomed, these terms do not align with current and previous pro bono best practice.
The objectives are: ‘principally to benefit’ the recipients. Both the terms ‘principally’ and ‘to benefit’ are somewhat vague. While this encourages a broader interpretation of the concepts, it also creates uncertainty.
All these terms should be more clearly defined with reference to objective criteria. This would avoid unnecessary confusion and contestation.
The quality is: ‘equal to that afforded to paying clients.’ This is self-evident. Put differently, this means that just because recipients are not paying for the service rendered, does not mean it can be of a lesser quality. This is in line with the ethics and standards expected of CLPs and PLPs, current and previous pro bono best practice.
The fees to be charged are: ‘at no fee or expectation of compensation’. This is clear and certain and should pose no difficulties in interpretation. This is also in line with current and previous pro bono best practice.
Regulations 4A(6) and 4B(6) provide that ‘any pro bono services rendered by a [CLP or a PLP] will be recognised as community service.’ This brings pro bono services within the rubric of community service. However, the inclusion of these provisions through regulation makes their validity questionable, probably ultra vires and open to challenge.
The regulations provide for ancillary matters:
Annexure D (PLP Certificate) refers to: ‘Hours remunerated in terms of contingency fee’. There is no reference in the LPA or elsewhere in the regulations to contingency fees agreements (CFAs). While CFAs may facilitate access to justice in some respects, these are not ‘reduced fees’. On the contrary, CFAs provide for increased fees that are often excessive in the circumstances. The LPC receives many complaints by recipients of legal services which require much policing. The inclusion of CFAs in the context of community service is regrettable, inappropriate and requires further discussion and clarification to avoid unnecessary confusion or contestation.
The regulations do not indicate the period for which the Certificate pertains or when it should be submitted. However, the LPC has recently published draft ‘guidelines’ for comment by the profession. These ‘guidelines’ provide that the period to be covered by such a Certificate is a calendar year, namely, 1 January to 31 December. The Certificate must be reported to the LPC by 31 January each year. It would be advisable to note the sentence in my previous article: ‘Unfortunately the “guidelines” which purport to be advisory, but which in fact have serious and peremptory effect, appear to further muddy the waters and will require serious reconsideration before they can be implemented.
One innovation to minimise inconvenience to PLPs and CLPs, would be an electronic platform to facilitate the submission of certificates. Certificates could be uploaded iteratively over the course of a reporting period as and when community service is rendered, rather than once a year.
The certificate makes provision for the client’s signature. This is impractical and problematic if the client (for whatever reason) refuses or is unable to sign. The previous framework required certificates to be attested under oath. This is a simpler and less onerous way of ensuring the veracity of certificates and provides adequate assurance to the LPC.
Section 92 deals with the recovery of costs by PLPs rendering free legal services. Clarification of how this will be reconciled with free community service is required. Section 92 should only apply to community service at a reduced fee. Uncertainty remains as to how taxed costs for the full fees due in such matters would be recovered, who they would be due to and how they would be dealt with. This requires further discussion and clarity to avoid unnecessary confusion and contestation. Paying fees earned into a ‘disbursement fund’ may be a useful innovation.
A final issue is the established practice under the Uniform Rules, permitting the aggregation of hours served by some PLPs in a practice, being averaged across all the PLPs in the practice, for example, some large practices have established pro bono departments that provide such services on a permanent basis. The hours rendered through such departments are then aggregated across the entire practice. The regulations do not provide for this. While there are pros and cons in relation to this practice, its omission requires explanation and further discussion.
The regulations have not been drafted with sufficient clarity and definition to avoid the uncertainty, contestation and potential pitfalls noted. They fail to deal with a number of important considerations arising out of s 29 and in particular how s 29(2)(e) will be administered and implemented.
There is no provision for what will happen in the event of inability or non-compliance by CLPs or PLPs. Given that entry or ‘continued enrolment as a legal practitioner is dependent’ on performing this community service, it is vital to understand how will this be dealt with? The consequences for non-compliance are part of the ‘requirements’ the Minister must prescribe. The failure to provide for the enforcement of these ‘requirements’ is a grave shortcoming.
We understand the LPC has prepared ‘guidelines’ as opposed to ‘rules’ for this framework. However, there is no provision empowering this in the LPA. Section 95(1)(s) only pertains to exemptions under s 29(3). In any event, what will be the efficacy of guidelines in the context of non-compliance without clear consequences? These matters require clarity to ensure effective implementation of this framework.
Attention is drawn to s 85(5) of the LPA which provides for incentives in relation to the rendering of community service. These are a better way of ensuring compliance and promoting the commitment of CLPs and PLPs. This must be reconsidered as the regulations do not provide for this.
It is distressing for many who contributed to developing this community service dispensation, that many of the practical and workable suggestions made, appear to have been ignored. This framework is problematic, possibly ultra vires, confusing and open to contestation.
It is my view that the solutions lie in amending s 29 of the LPA (as previously requested) to include pro bono services as clearly defined, among the specific community service options. The regulations would then appropriately provide the detailed requirements, clarity and objective criteria noted above, needed for effective implementation of this important framework.
It is recommended that for now the regulations should be taken as an interim framework, to be expeditiously and iteratively amended. The profession should despite the shortcomings, in good faith, use its best efforts to facilitate implementation, so that we can be seen to be fulfilling the objects of the LPA and the Constitution, in particular, doing our best to broaden access to justice in South Africa.
Ilan Lax BProc (UNP) is a legal practitioner at Ilan Lax Attorney in Pietermaritzburg.
This article was first published in De Rebus in 2024 (July) DR 12.
