Show me the money: A discussion on access to justice v legal fees

March 1st, 2019

Mapula Sedutla – Editor

The Law Society of South Africa (LSSA) held a meeting in February to discuss the International Conference on Access to Justice, Legal Costs and Other Interventions, which was hosted by the South African Law Reform Commission (SALRC) in 2018. The aim of the meeting was to tackle issues connected with legal costs, particularly in view of s 35 of the Legal Practice Act 28 of 2014 (LPA). Below is a summary of what was discussed at the meeting.

A while ago, the LSSA wrote to the Justice Minister requesting the suspension of subss 35(1), (2), (3) and (7) up to and including (12), which deal with fees for legal services until the SALRC has completed its investigation on legal fees and there has been proper consultation. This means that only subss (4), (5) and (6) of s 35 have come into operation.

During the meeting, the view that the suspended subsections may potentially be implemented before the expiry of the two-year period after the LPA came into operation was expressed. The LPA refers to the ‘desirability’ of establishing a mechanism, which will be responsible for determining fees and tariffs payable to legal practitioners. This begs the question whether the mechanism proposed by s 35 is desirable. Diverse views were expressed as to whether it is reasonable or practically possible to provide a client with a cost estimate or indication of fees.

According to the LPA, the purpose of s 35 is to increase access to justice. It appears that the state has interpreted this as the legal profession being obligated to provide such access to justice, whereas this is primarily a government function.

Legal Aid South Africa (Legal Aid SA), the biggest provider of legal services to indigent persons in the country has undergone budget cuts, which will impact on access to justice. Legal Aid SA should also expand access to justice in civil matters. The LSSA should advocate for increased focus on civil matters and appropriate allocation of resources to fulfil this expanded mandate.

The meeting also highlighted the fact that s 35 should be considered within the context of competition legislation. If tariffs are set through legislation, it should not create a problem because litigious tariffs have, through legislation, been in existence for some time.

Another point that was highlighted during the meeting is the fact that the independence of the legal profession must be maintained while the profession contributes to access to justice. The legal profession must express its commitment to access to justice, but also take into account that access to justice might be unattainable due to macro-economic and structural problems. Neither government nor the legal profession can independently solve socio-economic problems.

On the issue of community service, it was noted that community service presents a great opportunity to facilitate access to justice, if compensation is reasonable. The state has a role to play in facilitating access to justice by supporting skills development for junior legal practitioners who carry out community or pro bono services. It will be important to consider the potential consequences and impact, which proposed measures aimed at improving access to justice may have on the legal profession and the practice of law as legal practitioners are also subject to resource constraints.  South Africa’s (SA’s) attorney-citizen ratio should be considered in considering measures to increase access to justice. Comparative research on the legal profession should compare SA in the context of other African countries.

In conclusion, it was proposed that the LSSA should engage with the SALRC and the Department of Justice in addressing the relevant factors identified above and re-affirming the profession’s commitment to facilitate access to justice. The legal profession and state should jointly confront the challenge of access to justice and the legal profession should not be seen to shift this challenge to the state. The LSSA should advocate for Legal Aid SA to be funded appropriately to comply with its mandate, with particular reference to an expanded mandate on civil matters. Most importantly s 35 of the LPA requires revision in order for access to justice to become a reality.

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This article was first published in De Rebus in 2019 (March) DR 3.