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The imminent commencement of the obligation on practising and candidate legal practitioners (PLPs and CLPs) to render community service pursuant to s 29 of the Legal Practice Act 28 of 2014 (LPA) is raising confusion, many questions and concerns. This, despite the promulgation of regulations intended to facilitate this process. The Legal Practice Council (LPC) has recently published draft ‘guidelines’ for comment by the profession. Unfortunately, the ‘guidelines’ which purport to 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.
In this two-part article I will briefly analyse the content of s 29 and the community service regulations, their efficacy and implications and then make some concluding remarks and observations.
Unpacking s 29
Section 29(1) of the LPA provides that the Minister:
‘must … prescribe the requirements for community service … 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 practising legal practitioners upon which continued enrolment as a legal practitioner is dependent’ (my italics).
Section 29(2) of the LPA then spells out the kinds of community service to be rendered by PLPs and CLPs:
‘Community service for the purposes of this section may include, but is not limited, to the following:
(a) Service in the State, approved by the Minister, in consultation with the Council;
(b) service at the South African Human Rights Commission;
(c) service, without any remuneration, as a judicial officer in the case of legal practitioners, including as a commissioner in the small claims courts;
(d) the provision of legal education and training on behalf of the Council, or on behalf of an academic institution or non-governmental organisation; or
(e) any other service which the candidate legal practitioner or the legal practitioner may want to perform, with the approval of the Minister’ (my italics).
Note these are a wide range of avenues for rendering community service. Note also that providing free services on a pro bono basis is not included among them. This is why an amendment of the LPA was requested to make specific provision for this. Instead, this has now been provided for in the regulations which is potentially problematic as is explained below.
The use of the words ‘may include’ appears to suggest an open list. Note, however, that no provision is made for prescribing or indicating how the other forms of community service are to be included. The only manifestly ‘open’ type of community service is referred to in s 29(2)(e) as ‘any other service’ CLPs or PLPs ‘may want to perform’ ‘with the approval of the Minister’. Such approval would logically require an assessment of whether the proposed service was similar in nature to those noted in s 29(2) and whether it would be consistent with the objectives of the LPA. This approval is clearly a different power to that required to prescribe regulations. This is the only listed community service which is ‘not limited’ and could thus ‘include’ other activities within its ambit.
Also note the requirements of s 94(2)(a) and 94(3) which require consultation with the LPC and the approval of Parliament respectively. Note the use of the conjunctive ‘or’ at the end of subs 29(2)(d). This points to a class of alternative activities. Thus, despite the use of the words ‘not limited’ it is suggested that the list is nevertheless a closed one.
Section 94(1)(j) (which empowers the Minister to prescribe the regulations) only refers to the ‘rendering of community service as contemplated in section 29(1)’ it makes no reference to s 29(2). This only refers to the Minister prescribing the ‘requirements for community service’ and not the kinds of service to be rendered.
Because the LPA imposes significant obligations on CLPs/PLPs with serious consequences and implications, it can be argued that these provisions must be interpreted restrictively. It is thus doubtful that the regulations are proper in this regard.
Section 29(1) specifies that –
Thus, given these significant implications, namely, the right to enter the profession or to continue to practice in the profession, is dependent on doing community service, it is logical that the requirements must be known. It thus makes sense why the LPA creates a peremptory duty that the Minister must prescribe the requirements for community service.
‘Requirement’ is defined in various dictionaries as:
‘1. a thing that is needed or wanted; 2. a thing that is compulsory; a necessary condition’ (A Stevenson and M Waite (ed) Concise Oxford English Dictionary 12ed (New York: Oxford University Press 2011)); or ‘something that you must do, or something you need’ (Cambridge Dictionary (https://dictionary.cambridge.org, accessed 6-5-2024)).
So, in this sense, the Minister must set the requirements, namely, what must be done to perform the s 29(1)(a) or (b) duty on CLPs or PLPs respectively and then promulgate them in the Government Gazette. ‘Requirements’ in this sense is different to the type of the activities or kinds of service to be performed. That is dealt with in s 29(2) which indicates what sorts of activities may fall within the ambit of ‘community service’ and as noted above and below, the section fails to create an open list.
Firstly, note that only s 29(2)(c) specifies ‘service, without any remuneration’. All the other subsections of s 29(2) speak only of ‘service’ of various kinds. Section 29(2)(e) notes an open-ended ‘any other service which the candidate legal practitioner or the legal practitioner may want to perform, with the approval of the Minister’. This suggests that the other kinds of community service (s 29(2)(a), (b), (d) and (e)) are or could thus be service rendered with some kind of remuneration. I say this because why else would the ‘without’ be specified in only one instance? On the other hand, it is a fair argument to suggest that some kinds of ‘community service’ are normally regarded as voluntary unpaid service. However, this is not the case for intern medical practitioners which is a scenario similar to s 29(1)(a). This proposition can thus be argued both ways. However, on a strict interpretation, where something is specifically stated in a regulatory provision, it is usually regarded as an indication of an exception.
Also note that the Minister’s approval of ‘any other service’ that a CLP or PLP ‘may want to perform’ (per s 29(2)(e)) is subject to a request for this option that is considered on its merits. This is not a general provision. Note also that consultation with the Council is only required in relation to s 29(2)(a). This provides all the more reason why s 29(2)(e) should be interpreted as a specific provision that is premised of necessity, logically on individual requests.
Unfortunately, the regulations make no provision as to how this kind of request will be implemented. It is thus unclear how the Minister will be in a position to receive, consider and approve such requests. The framework cannot work and will cause confusion and contestation.
Conclusion
It is my respectful view that the LPA does not give the Minister the wide powers (being assumed) to ‘legislate by regulation’ in order to fill in the gaps in the Act and thus promulgate, inter alia, what ‘community service’ is. This is Parliament’s function. In the absence of an express provision allowing for this, the Minister cannot act outside such express powers. Prescribing the requirements for community service is specifically provided for. But as has been argued herein, that is a different subject matter to determining the nature of the activities that comprise community service. This is precisely why an amendment of the LPA was requested by the profession to avoid this problem. It is most unfortunate that this has not been effected or expedited.
It is concerning that with so many people having contributed towards bringing this new dispensation of community service into operation, many of the simple and workable suggestions made, appear to have been ignored and that the framework is in some respects problematic and possibly ultra vires, confusing and open to challenge.
It is my respectful 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 legislation.
It is recommended that 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.
The next article will unpack the regulations, their efficacy and implications and then make some concluding remarks and observations about how the profession should deal with the situation that has arisen.
Ilan Lax BProc (UNP) is a legal practitioner at Ilan Lax Attorney in Pietermaritzburg.
This article was first published in De Rebus in 2024 (June) DR 14.
