By Ricardo Wyngaard

On 11 August 2023, the Minister of Justice and Correctional Services, Ronald Lamola, published the amendment of Regulations made under s 94(1) concerning the rendering of community service by practising legal practitioners and candidate legal practitioners in GN R3788 GG49104/11-8-2023. The Regulations came into operation on 11 August 2023 and the following questions , among other, have been addressed:

What is regarded as community service?

The Legal Practice Act 28 of 2014 (the LPA) does not offer a definition for community service. However, s 29(2) contains a non-exhaustive list of services that may include community service, including –

• service in the state;
• service at the South African Human Rights Commission (SAHRC); and
• the provision of legal education and training on behalf of the Legal Practice Council (LPC), or on behalf of an academic institution or non-governmental organisation (NGO).

Services, without remuneration, by legal practitioners as judicial officers and small claims court commissioners also qualify as community service. Provision is also made for any other service, which the candidate legal practitioner or the legal practitioner may want to perform, with the approval of the Minister.

Community service as defined under the Regulations

The Regulations define community service, in relation to candidate legal practitioners, as free legal services rendered through structures referred to under s 29(2) of the LPA, for example: The state, the SAHRC, LPC, academic institutions and NGOs.

Community service, for purposes of the Regulations, includes 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
• 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.

Pro bono services, for purposes of the Regulations, are legal services ‘at no fee or expectation of compensation from the client, and principally to benefit poor, underprivileged or marginalised persons or communities or the organisations that assist them.’

The definition of community service for practising legal practitioner mirrors the above definition applicable to candidate legal practitioners.

Does community service include pro bono legal services?

Yes, although the LPA makes no reference to pro bono legal services. The Law Society of South Africa has advocated that community service should include pro bono legal services.

The Regulations now define ‘pro bono services’ and specifically states that any pro bono services rendered by a candidate and practising legal practitioner ‘will be recognised as community service’.

Is community service compulsory?

Section 29(1) empowers the Minister to prescribe the ‘requirements for community service’ which may include, with reference to a candidate legal practitioner, ‘community service as a component of practical vocational training’ and, with reference to a practising legal practitioner, a minimum period of community service as a prerequisite for continued enrolment.

The Regulations make it compulsory to render community service. Candidate legal practitioners must render at least eight hours of community service per annum and practising legal practitioners, at least 40 hours.

Supervision of candidate legal practitioners

Candidate attorneys must be supervised by their principal while pupils must be supervised by the engaging advocate. The principal and engaging advocate are allowed to direct someone to do the supervision.

The legal practitioner’s time spent on –

• providing supervision to a candidate legal practitioner who is rendering community service is attributable to community service; and
• presenting lectures or training to candidate legal practitioners at no charge and with no remuneration is regarded as community service.

Important aspects to keep in mind:

• Practitioner versus practice: The regulations compel a practising legal practitioner to render community service for at least 40 hours per annum. This obligation is not imposed on the legal practice as a collective. This means that the legal practitioner cannot, in our understanding, shift this responsibility to another legal practitioner or candidate legal practitioner within the firm.
• Allocation of community service: It is imperative for legal practitioners to initiate the rendering of such community service to allow enough time to complete the required minimum hours before the annual date of submission of certificates, which will be determined by the LPC. The obligation to render community service is not subject to a legal practitioner obtaining an instruction from the LPC or any other institution to render such community service to an individual, organisation or community.
• Recipients of community service: The legal practitioner must ensure that the recipients of the community service sign a certificate that substantially correspond with the form published under the Regulations.
• Means test: The Regulations do not require the implementation of a means test. The ostensible benchmark with reference to –

– community service is where the ‘payment of standard legal fees would cause hardship’; and

– pro bono services is that it must principally benefit poor, underprivileged or marginalised persons or communities or the organisations that assist them.

• Reduced fees: Legal services rendered at a reduced fee to recipients of community service will also qualify for community service.

Ricardo Wyngaard is the Senior Legal Officer at the Law Society of South Africa.

This article was first published in De Rebus in 2023 (Sept) DR 3.