Transformation of the Legal Profession: Discussion Paper

1. Introduction

2. Identifying the issues

3. Addressing the issues

3.1 Qualification for admission to the profession

3.2 Uniform regulation of the profession

3.3 A representative legal profession

3.4 Improving the public's access to legal services

Conclusion

 

 

 

1. Introduction

In Justice Vision 2000 it was recognised that the legal profession has to be transformed in order to be able to respond properly to the needs of all the people of South Africa and it was stated that the Department of Justice would be giving attention to the transformation of the legal profession. The main challenges identified were the need to make the legal profession representative of the diversity of South African society and the need to make the legal profession more accessible to the public. It is also necessary to effect rationalization to bring the structure of the legal profession and the laws which regulate it into line with the new constitutional dispensation and the rationalization of the High Courts.

During 1998 the Policy Unit of the Department of Justice developed an Issue Paper, which sought to identify the issues on which the transformation process needs to focus. Following initial consultation with professional organisations, the Policy Unit has redrafted the Issue Paper as a Discussion Paper, which will form the basis for further consultation and lead to the formulation of legislation.

[ Top ]

2. Identifying the issues

Transformation means change. The change which is desired is change which will improve the circumstances of the people of South Africa and which reflects the values enshrined in the Constitution of our new democratic state. In order to be able to identify the issues on which the transformation process should focus, it is necessary to examine the prevailing situation critically to ascertain whether it presents problems and anomalies which call for change and rationalization.

An examination of the legal profession as it has been in the past and as it still exists, reveals a number of problems and anomalies, namely:

1. The legal profession does not represent the diversity of South African society. The number of black lawyers in private practice and in the public service sector is comparatively low, as is the number of women. Black people and women are almost entirely absent from the ranks of senior partners in large firms of attorneys and senior counsel at the Bar. They were, accordingly, also largely absent from the controlling bodies of the Bar Councils and Law Societies until recently, when steps were taken to make these bodies more representative.

2. The distribution of practising lawyers who deliver legal services to the public is skewed. Most lawyers practise in cities and they service corporations and relatively wealthy people. Rural attorneys tend to be white, male and Afrikaans speaking. They generally provide legal services to the white farmers and local businesses. There are very few lawyers who service the areas in which most black people live - the townships and rural settlements. The few that exist generally have poor resources.

3. Disadvantaged law graduates experience difficulty in entering the legal profession and establishing themselves as successful legal practitioners.

4. The broad middle class of South African society, although not indigent, is not able to afford the fees which practising lawyers charge.

5. Practising lawyers are not sufficiently involved in providing legal-aid services to indigent persons.

6. Paralegal practitioners are not recognised or regulated by statute, despite the fact that they have been rendering legal services to communities for many years.

7. Prosecutors, particularly those serving in the lower courts, are not recognised as a fully-fledged branch of the practising legal profession.

8. Lawyers employed by commercial corporations, governmental agencies and non-governmental organizations are not recognised or regulated by statute as members of the practising legal profession.

9. There is a lack of equality within the legal profession with regard to qualification requirements for admission to legal practice which leads to the undesirable perception that some lawyers have a higher status than others.

   More particularly :

   • until recently the academic qualifications for admission to the attorneys' and advocates' professions were different in that attorneys could be admitted with an undergraduate BProc. degree, while advocates required an LLB which was offered only as a second degree
   • attorneys are required by statute to undergo a two-year (eighteen-month if they attend the Practical Training School) period of vocational training, whereas there is no statutory vocational-training requirement for advocates and the vocational-training period for advocates who want to become members of the constituent Bars of the General Council of the Bar is six months or less
   • attorneys are obliged by statute to pass an admission exam before they can be admitted to practice, whereas advocates can be admitted to practice without subjecting themselves to an admission exam and are required to pass the bar exam only if they want to be a member of one of the constituent Bars of the General Council of the Bar
   • corporate legal advisers are not required to do any practical vocational training or pass any vocational exams
   • lawyers who work for the Department of Justice and appear on behalf the state in criminal matters as prosecutors in the lower courts do not have to be admitted as legal practitioners and often become magistrates without ever having been admitted as legal practitioners or ever having had any experience of civil-court work

10. There are anomalous differences in the way in which and rules according to which the various branches of the profession are regulated:

• attorneys are obliged by statute to be members of a law society which exercises professional control over them, whereas membership of societies of advocates is voluntary and many advocates are now practising without being subject to the control of any regulatory authority other than the High Courts

• an advocate may not accept an instruction from a member of the public without an instruction (brief) from an attorney, irrespective of whether the advocate is a member of one of the constituent Bars of the General Council of the Bar - see Society of Advocates of Natal v De Freitas and another 1997 (4) SA 1134 (N) and General Council of the Bar of South Africa v van der Spuy 1999 (1) SA 577 (T)

• until recently, attorneys were precluded from appearing in the High Court and still have to apply to the Registrar of the High Court for right of appearance

• corporate legal advisers are not considered to be part of the practising legal profession and may not be admitted as practitioners of the courts, nor may a corporate legal adviser represent his or her employer in the High Court, although he or she may do so in the magistrates' courts

• until recently judicial office in the superior courts was reserved almost exclusively to advocates who had attained the rank of Senior Counsel, and is still not considered by most attorneys or prosecutors to be a career option

• the four statutory Law Societies which exist in terms of the Attorneys Act 1979 and the statutory Law Societies which exist in terms of TBVC legislation are no longer representative of the provinces of the Republic of South Africa as established in terms of the Constitution

• the constituent Bar Councils of the General Council of the Bar may find themselves inappropriately structured and/or situated once the rationalization of the High Courts has taken place, as required by the Constitution. The Superior Courts Bill, which aims to effect this rationalization will probably become law by the end of 1999

• misconduct and corruption on the part of legal practitioners is not always adequately investigated and acted upon, as is evidenced by the recent disclosures concerning the conduct of attorneys handling claims against the Road Accident Fund, which has given rise to considerable public concern and debate

These problems and anomalies need to be addressed because they are prejudicial to large sections of the population and to sections of the profession and they contribute to perceptions of inequality, which may or may not be correct. Equality is a cornerstone of our new democracy. We must ensure that all lawyers are accorded equality of status and opportunity within the profession and that legal professional services are available to all who need them. The object of the quest for equality is not to reduce the standards for the profession to the lowest common denominator, as has been suggested, but rather to ensure that all legal practitioners attain a high standard of competence, are treated with dignity and serve with dignity, no matter to which branch of the profession they belong.

[ Top ]

3. Addressing the issues

3.1 Qualification for admission to the profession

3.1.1 Academic qualification

The first step in the transformation of the legal profession has already taken place with the introduction of a single qualifying degree for admission to legal practice as a lawyer. The Qualification of Legal Practitioners Amendment Act 1997 amended the Admission of Advocates Act 1964 and the Attorneys Act 1979 by introducing a four-year undergraduate LLB degree as the minimum academic qualification for admission to practice either as an advocate or as an attorney. All of the twenty-one law schools in the country have now introduced this degree.

The principal motivation for the introduction of a single academic qualification was the desire to move away from a situation in which there are perceived to be different classes of practising lawyers and some are perceived to be better qualified than others. In future all aspirant lawyers, whether they intend to practice in the private sector or the public service, will have to obtain an LLB degree. This change has been brought about as a result of an extensive consultative process which produced consensus between attorneys, advocates, teachers of law and the Department of Justice.

3.1.2 Practical vocational legal training

Consensus has not yet been reached with regard to practical vocational legal training and admission exams. Stark differences between the admission requirements of the two branches of the private practising profession existed in the past. Little more than a decade ago, advocates were not required to do pupillage or write an admission exam. Attorneys, on the other hand, were required to do two years of articles and pass a notoriously difficult exam. Certain changes have taken place in recent years, which make the differences in the requirements for admission to the two branches of the profession less stark. Advocates who wish to join a constituent bar of the General Council of the Bar must now do pupillage (4 - 6 months) and write a bar exam. The attorneys' profession recognised that inability to obtain articles prevented a high percentage of law graduates from becoming attorneys and, in response, set up practical training schools and created alternative routes into the profession. It has also indicated that it is prepared to reduce the required period of practical legal training to one year.

Consideration needs to be given to the introduction of uniform requirements for the period of practical vocational training which lawyers are required to complete before being admitted to practice. Consideration must also be given to the suggestion that all aspirant legal practitioners should be required to do a period of community service.

Some of the options which can be considered with regard to vocational training and community service are:

• A uniform period of community service for all aspirant legal practitioners which takes the place of articles, pupillage and any other form of training for admission

• A uniform period of community service for all aspirant legal practitioners plus a period of vocational training specific to the branch of the profession which the candidate intends entering (not necessarily in that order)

• The option to do a uniform period of community service and/or specific vocational training and/or an accredited vocational training course offered by an academic institution or professional organization

Within the above three options there are numerous sub-options. For instance, a candidate legal practitioner might be allowed to choose any one of a number of routes to enter the profession, or might be required to undergo a specific kind of vocational training for a particular branch of the profession. As far as community service is concerned, this might refer only to legal aid work in a clinic or public defender office, or it might refer to a wide range of work including, for instance, prosecuting, assisting a clerk of the court or registrar, clerking for a judge, working in offices which handle deceased estates or working in a deeds office. There is also a range of options with regard to the time periods and the degree of prescription involved.

The following proposal is made for consideration:

• All graduates who want to be admitted as legal practitioners should be required to undergo a minimum of one year of practical vocational training, during which time they will be known as legal interns

• At least six months of the period of internship should be devoted to performing one or more of the types of community service prescribed

• During the remaining six month period of internship legal interns may undergo one or more of the types of vocational training prescribed (such as articles or pupillage), or attend an accredited practical training course offered by an academic institution or a professional organization, or continue to perform community service

3.1.3 Admission exams

Admission exams are probably the most thorny issue still to be dealt with. Both the Law Societies and the Bar Councils insist that they must continue to administer their own admission exams, while organizations representing lawyers who were marginalised under the apartheid regime are adamant that these exams present a barrier to entry to the profession and must go. One of the issues is whether these exams should be prescribed by statute as a qualification for admission to the profession. At present the attorneys' admission exam is prescribed by statute, while the Bar exam is not. In response to the Issue Paper, which preceded this Discussion Paper, the Law Society of South Africa has indicated that the attorneys' profession is prepared to consider replacing the national admission exam with other forms of evaluation of the performance of candidate attorneys.

It may be argued that the only justifiable reason for regulating entry into a profession by way of statute is protection of the public interest. If the public interest requires this regulation, then a way must be found to ensure that all aspirant legal practitioners meet minimum standards of proficiency. There is some doubt as to whether the present Law Society and Bar exams test only minimum standards of proficiency or whether they set some higher standard which screens out aspirant legal practitioners who do meet minimum standards of proficiency. If the object is protection of the public interest, then a minimum standards test is appropriate and may be all that can be justified by way of legislative requirements in view of sections 22 and 36 of the Constitution. Section 22 guarantees a person's freedom to choose a profession, but provides that the practice of a profession may be regulated by law. Section 36 requires laws which limit rights, to be reasonable and justifiable.

This raises the issue of whether voluntary organisations of practitioners should be able to prescribe admission exams, which test whatever standard of proficiency they choose, for practitioners who wish to join them. The principle of freedom of association dictates that they should be able to do so, but this may perpetuate an elitism which tends, because of South Africa's history, to reflect racial division in the profession. Legislation prohibiting such admission exams would have to be justifiable in terms of section 18 of the Constitution which guarantees freedom of association.

If there were to be a uniform national exam which tests minimum standards of proficiency for everyone who wishes to be admitted to legal practice, then questions would arise as to who should administer that exam and whether there should be one exam for all branches of the profession or separate exams for different branches. A single exam for all branches would probably have to be administered by a statutory examining body. Separate exams could be administered by statutory controlling bodies of the different branches of the profession by virtue of statutory authority.

Another option would be to have no statutory admission exam at all, allowing any LLB graduate who has done the statutorily required practical vocational training to be admitted to practice. This would necessitate the formation of a statutory body which would ensure that the LLB degrees offered by all the various universities meet minimum requirements.

[ Top ]

 

3.2 Uniform regulation of the profession

Justice Vision 2000 suggests the possibility of integration of the profession and the creation of a single controlling body for the profession. The inclination of the Ministry of Justice and Constitutional Development is not to force integration but to facilitate developments in this direction. It is therefore necessary to consider whether the continued regulation of the profession by way of separate statutes is justifiable and in the public interest.

The following aspects of professional practice need to regulated in the public interest:

• Standards of education and training
• Qualification for admission to the profession
• Licence to practice
• Discipline in respect of improper conduct
• Public indemnity in respect of the misappropriation of funds

All except the last of these clearly apply to both professions, but even the last will become necessary with regard to the advocates' profession if the prohibition against taking instructions from members of the public without a brief from an attorney is removed. Now that attorneys have right of appearance in the High Court, it seems fair that advocates should be allowed to take instructions directly from clients and in this situation they might well find themselves handling clients' funds. It might be appropriate simply to require any legal practitioner who handles funds on behalf of a client to be in possession of a Fidelity Fund certificate and to restructure the Board of the Fidelity Fund so that it is representative of all private legal practitioners and sufficiently representative of consumers of legal services.

There is much to be said for creating a statutory authority, or a number of specialized statutory authorities, to control these aspects of legal practice in respect of the whole profession. This does not necessarily mean the end of the Law Societies, Bar Councils and other lawyers' professional organizations as we know them. They could exist as voluntary associations. The primary function of a statutory authority, would be to look after the interests of the public. The primary purpose of voluntary professional associations would be to look after the interests of their members. This would avoid the inherent conflict of interests which exists when professional bodies try to perform both functions. This conflict is recognised in the Constitution of the Law Society of the Republic of South Africa, which provides that the first object of that Law Society will be "... to promote on a national basis the common interests of members of the profession and the welfare of the profession, having regard at all times to the broader interests of the public whom the profession serves, and to endeavour to reconcile, where they may conflict, the interests of the profession and the public".

The alternative is to create a statutory controlling body for each of the branches of the private legal profession, give it authority to exercise control over the profession in so far as control is necessary to protect the public interest, and introduce a statutory requirement that obliges every practising member of the profession to belong to one of the statutory bodies. These provisions would have to be justifiable in terms of the Constitution. If there is an alternative means of achieving the object of protection of the public which does not infringe upon, or which infringes to a lesser extent upon, the rights of freedom of association and the right to practise a chosen profession, then provisions of this nature will not be justifiable.

Another issue which should be considered is whether there is a need for the establishment of the office of an ombudsman for the legal profession. Recent media reports indicate a strong perception that the professional bodies which presently regulate the legal profession are not effectively performing the function of investigating complaints of malpractice and protecting the public interest. An ombudsman would facilitate access to justice for members of the public and that office could be appropriately resourced to enable it to investigate complaints in a proactive manner and recommend an appropriate course of action.

With regard to the regulation of standards of education and training and qualification for admission to the profession, it is important to note that the legal profession is obliged, in terms of the South African Qualifications Authority Act 1995, to establish one or more Standards Generating Bodies to accredit qualifications for legal practice as part of the National Qualifications Framework. The process of establishing such a body, in consultation with all role players, has already commenced. In view of the requirements of the South African Qualifications Authority Act 1995, it is clearly necessary to establish a statutory body dedicated to the regulation of standards of education and training and qualification for admission to the legal practice.

The following structures for the regulation of the legal practice are proposed for consideration:

Option 1

• A Standards Generating Body, formed in terms of the South African Qualifications Authority Act 1995, to make recommendations for the approval of the South African Qualification Authority with regard to standards of education and training and qualifications for legal practice

• A Legal Practice Registrar to maintain a central roll of legal practitioners and paralegal practitioners

• An ombudsman's office to investigate complaints of malpractice and make recommendations, where it believes that action is warranted, to voluntary professional associations, the Legal Practice Registrar or the National Director of Public Prosecutions

• A legal practice fidelity fund to compensate members of the public in respect of moneys misappropriated by legal practitioners and paralegal practitioners, and to utilise its funds to promote the attainment of high professional standards of legal practice

The High Court should continue to be the ultimate regulating authority in respect of legal and paralegal practitioners and all professional organizations and the above statutory authorities should have standing to bring matters concerning practitioners before the Court.

Option 2

• A National South African Legal Practice Council appointed by the Minister of Justice, in consultation with the Chief Justice and the President of the Constitutional Court, comprising persons nominated by professional organizations representative of legal and paralegal practitioners and persons who represent the public interest, which will:
  • prescribe qualifications for admission to legal and paralegal practice, subject to relevant legislation
  • maintain a roll of registered legal and paralegal practitioners
  • prescribe and levy annual fees for licence to practice
  • collect interest on trust accounts for transmission to the Fidelity Fund and issue Fidelity Fund certificates
  • deal with complaints of malpractice through regional complaints tribunals and the office of a national ombudsman

• A South African Legal Practice Fidelity Fund to compensate members of the public in respect of monies misappropriated by legal and paralegal practitioners and to promote the achievement of high professional standards of legal and paralegal practice, the board of control of which will be nominated by the Minister of Justice in consultation with the South African Legal Practice Council

[ Top ]

3.3 A representative legal profession

In Justice Vision 2000 it was suggested that, in order to achieve the goal of having a representative group of people enter the legal profession, policies should be developed which support uniform standards for entry into all branches of the profession and alternative ways of entering the profession. This has been addressed under paragraph 1 above.

Each year the law graduates being produced by the universities become more representative of South African society, but many of these graduates are unable to gain access to the profession, or to their chosen branch of the profession. If they do gain access, many find themselves practising in circumstances which set them up for failure. This applies particularly to graduates from disadvantaged groups and, more particularly, to graduates of the historically black universities (HBUs), which were a product of the apartheid regime. The HBUs always have been, and still are, severely lacking in financial, material and human resources, which means that their graduates, almost all of whom are black, suffer a serious inherent disadvantage. Building capacity in these law schools is one of the most important challenges which the legal profession and the government face.

The goal of transformation must be a legal profession which represents the diversity of South African society in all branches and at all levels. To achieve this we must ensure that disadvantaged graduates have the same opportunities to become successful as do advantaged graduates. We must ensure that they are set up for success.

The following strategies should be considered:

• Capacity-building in the HBUs by, inter alia:
  • encouraging legal academics and practitioners to teach in these institutions
  • providing training and support programmes for staff at these institutions
  • dramatically increasing library and other research resources
  • arranging lecturer and student exchange schemes
  • encouraging joint programmes with well-established law schools
  • encouraging well-established law schools to share resources
  • encouraging practitioners to offer vacation internships to students from these law schools

• Black and women graduates must be empowered by being exposed to meaningful legal work in the structures in which they are employed

• Empowerment of disadvantaged legal practitioners who set up practice on their own or in new group practices by providing them with access to:
  • advisory services
  • management-support systems
  • financial-support systems
  • research-support systems
  • continuing legal and professional education
  • legal aid work

• Ensuring mobility within the legal profession so that practitioners who are not succeeding in their chosen branch of the profession can change to a different branch

• Recognising the role played by paralegals, the majority of whom are representative of disadvantaged groups in South African society

• Diversity sensitisation within the legal profession (including the judiciary)

• Diversity sensitisation of consumers of legal services
  

  [ Top ]

3.4 Improving the public's access to legal services

The factors which prevent people from having access to legal services include:

• The high cost of legal services
• The legal profession's lack of representivity
• The uneven geographical distribution of lawyers
• The lack of recognition of the role played by paralegal practitioners
• Lack of information about the availability of legal services
• The intimidating image which lawyers have
• Limited small claims court services
• The lack of legal insurance schemes
• The limited effectiveness of the state legal aid scheme
• Failure on the part of many lawyers to provide any community service

Each of these factors will be considered in the following section.

3.4.1 Cost of legal services

There are two broad strategies for addressing this problem, namely:

1. Increase regulation of fees to achieve a reduction of legal costs by cutting present maximum tariff ceilings and introducing maximum tariff limits for the delivery of services which are not presently subject to maximum tariffs. This would have an adverse impact on established practitioners who carry high overhead costs in order to deliver services in a manner to which their clients are accustomed. The extent to which tariffs could be reduced would accordingly be limited and would probably do little to increase access to legal services for the majority of the population. It is also difficult to justify increased regulation with all its attendant costs.

2. The abolition of all regulation of fees except with regard to the recovery of party-and-party costs. The motivation for this would be that practising lawyers need to have the freedom to adapt the fees they charge and the services they deliver to the market they serve. In some countries there are lawyers who operate 'sidewalk practices'. A lawyer who operates under a sunshade on a sidewalk or under a tree in a rural village has no overhead expense and does not need to charge the same fees as a lawyer who occupies an expensive suite of offices and employs a large staff contingent. The Law Societies and Bar Councils have taken no account of this reality - practitioners who charge low fees have traditionally been regarded as being guilty of unethical conduct. This is a policy which needs to be reviewed. Deregulation would mean that the market would dictate the fee and practitioners would be able to offer appropriate services at competitive rates.

3.4.2 The profession's lack of representivity

Members of disadvantaged sections of society are likely to feel less intimidated about approaching a lawyer who speaks the same language as they do and shares their cultural experience than they would be about approaching a lawyer whose language and culture is foreign to them. Strategies for addressing lack of representivity in the profession have been explored above.

3.4.3 The uneven geographical distribution of lawyers

Many disadvantaged people live in rural areas where there are few or no practising lawyers. Lawyers who are willing to practise in rural areas should be encouraged to do so and should be empowered in the manner set out in section 3 above, with special attention to their specific needs. The introduction of the flexibility to establish a practice which is appropriate for a particular market, as suggested in paragraph 3.4.1 above, would probably encourage rural practice.

3.4.4 Recognition of the role played by paralegal practitioners

It is important that recognition be given to paralegal practitioners who offer primary legal services to disadvantaged communities, particularly in rural areas. Paralegals are generally drawn from the community and are therefore representative of the community and geographically accessible. Their closeness to the community enables them to understand its particular needs.

3.4.5 Lack of information about legal services

Strategies which could be used to address this problem include:

• The provision of information to the public by professional bodies
• The provision of information to the public by the Legal Aid Board
• A public awareness campaign in the media
• Increased advertising on the part of practitioners
• The development of street law programmes
• The inclusion of the topic in school curricula

3.4.6 The intimidating image of lawyers

Many people are afraid of lawyers and avoid consulting them unless it is absolutely necessary. Possible strategies are:

• An image building campaign in the media
• Encouraging lawyers to behave in a more friendly manner
• Encouraging lawyers to play a role in community life
• Encouraging lawyers to speak to community groups, school children and other groups about the services they provide

3.4.7 Small claims courts

In places where small claims courts have been established, they are extensively used by the public and have achieved their objective of providing access to justice to individuals for the enforcement of small claims. Unfortunately there are still large areas of the country in which it has not yet been possible to establish small claims courts. The Department of Justice has been greatly assisted by practitioners in the establishment and operation of these courts. The Department and the legal profession should make a concerted effort to ensure that these courts operate throughout the country. Consideration should also be given to increasing the limit of jurisdiction of these courts and making them available for use by small business enterprises.

3.4.8 The lack of legal insurance schemes

The establishment of legal insurance schemes which cover legal costs need to be encouraged. Specialised legal insurance services need to be developed and companies offering policies which provide general cover need to be encouraged to include cover for legal costs necessarily incurred. In many other countries general insurance policies include cover for legal costs and benefit a high percentage of the population.

3.4.9 Legal Aid

The state legal aid scheme established by the Legal Aid Act 1969 has been limited in its effectiveness. In the first fifteen years of its existence it made little impact because it had a ridiculously low budget, applied restrictive bureaucratic procedures and was regarded with suspicion by the majority of the population, who identified it with the apartheid government of the day. In the late 1980s and early 1990s the budget of the scheme was increased and the Legal Aid Board became more proactive about the delivery of legal aid services in that it established a pilot project Public Defender office and began to fund joint-venture legal aid clinics.

With the coming into operation of a constitutional Bill of Rights, in 1994, the state became obliged to provide a legal practitioner to represent accused persons in every case in which substantial injustice would otherwise result. Despite the allocation of additional funds to it to enable it to meet this obligation, the Legal Aid Board has not been able to fulfill its constitutional obligation effectively and is in a state of financial crisis.

The legal profession has played a fundamental role in the provision of legal aid services since inception of the scheme, because the primary method of delivery of legal aid services has been by way of judicare. In terms of the judicare system the Legal Aid Board instructs private practitioners to provide legal services and pays their fees according to a tariff. This method of delivery of legal aid services has proved to be unacceptably expensive and cumbersome to administer. At the National Legal Aid Forum, which took place in January 1998, consensus was reached that the judicare method of delivery should be drastically scaled down and replaced with the delivery of services by salaried employees in legal aid clinics, advice offices and public defender offices.

If the method of delivery of legal aid services is changed in this way, a new role could be developed for legal practitioners to enable them to contribute towards the provision of legal services to indigent people and to provide work and experience for legal practitioners who have not yet built up a sustainable practice. These practitioners could be employed in law clinics or advice offices, or as public defenders, for part of their working time instead of being given judicare instructions. This would provide a steady income for practitioners who rely on legal aid work. The advantage for the state would be that the amount being spent on the delivery of legal aid services could be controlled and budgeted for with some degree of certainty, and monitoring of the quality of service delivery would be possible. The problem with the judicare system is that it is virtually impossible to quantify the amount which is required to pay the fees of legal practitioners.

3.4.10 Community service by qualified legal practitioners

There has been a great deal of debate about the suggestion that law graduates should perform community service as a requirement for qualification to practice. Part of the suggestion is that this would assist the state because recent graduates could be employed at low rates to provide legal aid services and, perhaps, other legal services. The problem with the suggestion is that recent graduates are inexperienced, therefore, they do not deliver services very efficiently and they require supervision and training. The cost to the state of going this route would be high, because it would not only have to pay the salaries of the graduates, but would have to establish a well developed structure, and employ experienced legal practitioners to receive, supervise and train the two to three thousand graduates produced by the law faculties each year.

The only way that community service will make a significant impact upon the delivery of legal services and the efficiency of the administration of justice is if all legal practitioners, interns and law students are required to do a minimum period of community service. The following proposal is put forward for consideration:

1. All law students should be required to perform two hundred hours of un-remunerated community service during the course of their LLB degree as a requirement for the degree. A wide range of services could be included such as law clinic and advice office work; street law teaching; manning citizen advice desks at courts; working in pre-trial services offices at courts; assisting in maintenance matters; providing victim support services; acting as intermediaries for child witnesses; assisting public defenders, prosecutors and family advocates. Law faculties could structure their requirements, in consultation with the Department of Justice, so that students are exposed to a wide range of legal experiences during the course of their law degrees.

2. Students registered for para-legal courses should also be required to do a minimum number of hours un-remunerated community service to obtain their qualifications. The range of options would be similar to that for law students.

3. Interns should be required to do six months of community service in their post-graduate year of practical vocational training. They should be remunerated during this time at a reasonable subsistence rate. The range of options available to interns could include service in a law clinic; service as a public defender; service as a prosecutor; service as a research clerk for a judge of the High Court, Supreme Court of Appeal or Constitutional Court; and pro Deo public interest work in the employment of a firm of attorneys or an organisation such as the Legal Resources Centre.

4. All qualified legal practitioners who have been in practice for more than five years might be required to do 48 certified hours of un-remunerated community service each year. A wide range of activities could qualify as community service, for instance: service as an assistant magistrate; service as a small claims court commissioner; service in a law clinic providing legal services or supervising and training students and interns; provision of back-up legal services for para-legal advice offices; service as a public defender conducting pro Deo defences; the conduct of prosecutions on behalf of the National Director of Public Prosecutions; lecturing for law faculties and for accredited legal and paralegal training courses; pro Deo public interest work; and providing legal services to any organ of state or approved non-governmental organisation without remuneration.

   [ Top ]

4. Conclusion

The purpose of this Discussion Paper is to stimulate debate on the issues raised and to provide a basis for consultation with members of the legal profession and other interested role-players with regard to these issues and any other issues which might be raised. The Department of Justice and Constitutional Development would like to introduce legislation concerning the legal profession into Parliament in the year 2000. It is accordingly necessary to begin the process of drafting legislation now. All role-players and stakeholders are requested to consider the issues raised and to make written submissions to the Policy Unit of the Department of Justice and Constitutional Development by mid-October 1999. The Policy Unit will organize a consultative conference, which will take place in November.

Submissions and enquiries should be addressed to:

Professor Cheryl Loots
Policy Unit
Department of Justice
Private Bag X276
Pretoria 0001

Fax: 012 323-0177
Telephone: 012 315-1073/4 or cell: 082 461 3226