By Nomfundo Manyathi-Jele

The National Association of Democratic Lawyers (NADEL) recently held a national stakeholder engagement workshop to inform provincial dialogues on pro bono and community service. The workshop was held in Kempton Park in March.

Seehaam Samaai from the Foundation for Human Rights speaking at the National Association of Democratic Lawyers’ recent national stakeholder engagement workshop to inform provincial dialogues on pro bono and community service.

Seehaam Samaai from the Foundation for Human Rights (FHR) addressed delegates on the NADEL pro bono project. She said that the purpose of the stakeholder engagement was to inform what should happen in the provincial dialogues. She added that there was a need for both attorneys and advocates to indicate what was taking place in terms of pro bono services.  Ms Samaai said the intention of the engagement was to investigate relevant models for the delivery of legal services and enhancing discussions on the launching of social activism among the legal profession.

The project had been conceptualised by the FHR in conjunction with NADEL.

According to Ms Samaai, the expectation was that the outcomes of the
provincial dialogues would be engagement on the development of social justice consciousness among the legal profession, discussions on the implication of the community service provision, discussions on the modalities for provision of pro bono services by the legal profession and the development of mechanisms to give effect to community service provisions in the Legal Practice Act 28 of 2014 (the Act). It was noted that s 29 of the Act – which formed the legal framework that would govern community service by legal practitioners – must be considered.

Ms Samaai highlighted the following:

• The decline in social activism within the legal profession after 1994.
• The poverty and inequality characterising South Africa, with the majority of citizens unable to afford legal services from attorneys or advocates.
• Section 24 of the Act empowered the Justice Minister to prescribe requirements for community service.
• No express provision catered for pro bono in the Act.
• Pro bono services should not be limited to court appearances but should also include a wide range of services such as education, support through community-based offices, cooperation and mediation.
• Community advice offices or centres were key. Legal practitioners in these centres assisted communities by providing easier access to law and social services to people. Legal practitioners in community-advice offices informed people of their rights, conducted public education programmes and took up individual cases. They also encourage people to resolve matters through alternative dispute resolution mechanisms and mediation.
• Most community advice centres were accredited, allowing attorneys to claim pro bono hours for the time spent assisting the communities.
• There were more than 250 community advice offices in the country.

Ms Samaai said that in terms of output, it was expected that there would be reports on the provincial workshops on pro bono services, discussion documents on the delivery of pro bono services best practice models, discussion documents in relation to what should form part of the pro bono scheme, as well as recommendations to the Justice Department on the framework of the national pro bono scheme and also an information legal framework. She said the whole process was anticipated to take some 18 months.

According to Ms Samaai, the engagements in the provinces had been linked with the four provincial law societies to make it easy for adequate representation. She said the intention would be to have four dialogues with participation by key stakeholders. ‘Because of the vast geographical area covered by the Cape, consideration would be given to hold another dialogue in the Eastern Cape… ,’
she said.

The stakeholder engagements would ultimately result in a report to and engagement with the National Forum on the Legal Profession in terms of the community service provision in the Act.

Ilan Lax from NADEL and the chairperson of the Law Society of South Africa’s (LSSA) Pro Bono Committee, advised that the Act did not make provision for pro bono although the rules of the attorneys’ profession did so.  He said that the rules had not been satisfactory in terms of providing guidance on what could and could not be done. His view was that the discussion had to focus on what the Act meant by referring to community service. He said it would be important for the stakeholders to shape the definition of community service in terms of what they wanted to achieve by it. This could include pro bono as part of community service or as a separate concept on its own. ‘Failure to do so would result in the Justice Department imposing a definition of community service,’ he said.

The LSSA’s Manager of Professional Affairs, Lizette Burger, said that at the time that the LSSA made submissions on the Legal Practice Bill to the Justice Portfolio Committee, the view of the Portfolio Committee was that pro bono was not community service. She added: ‘However, the Portfolio Committee had also advised that there was nothing that would prevent the Legal Practice Council from making rules regarding pro bono.  The legal profession’s view was that pro bono should form an element of the broader community service concept.’

A suggestion was made that community service could be defined as any activity or project that one would do before being admitted as a practitioner.

It was suggested that there was a need to clarify the implications of not having pro bono in the Act, but rather catered for in the rules of the profession. Further, the implications of community service in the Act had not been defined.  Provincial law societies defined pro bono in different ways. The law societies could be required to summarise what they were doing in terms of pro bono and how that would feed into s 29 of the Act.  There was a need to ascertain if the activities would fit into the provision of s 29.

• The provincial dialogues must be completed by August.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2016 (May) DR 8.