Address by the Deputy Minister of Justice and Constitutional Development, The Honourable JH Jeffery, MP, at the SASLAW Pro Bono NPC launch, held at the Saxon Hotel, Sandhurst, Johannesburg
Programme Director,
Members of SASLAW,
Judges of the Labour Court and Labour Appeals Court
Legal Practitioners,
Ladies and gentlemen,
Colleagues and friends.
Jeremy Sarkin wrote an article in the SAJHR entitled “Promoting Access to Justice in South Africa: Should the Legal Profession have a voluntary or mandatory role in providing legal services to the poor?” In the article he starts off by saying that “although democracy was meant to level the playing the fields as far as access to justice is concerned, the exorbitant cost of legal services in South Africa still renders it the privilege of the few who are wealthy.”
The article was written in 2002. Now, some 12 years later, the words remain as true as the day they were written. Indeed it appears that the question of pro bono work is not a new one and not one that is particular to South Africa. Writing in the 1980 New York University Law Review Professor David Shapiro says that - “For centuries, lawyers have given their services without charge to causes they thought worthwhile, and to clients who could not afford to pay.
During this period and especially in recent decades, the question as to whether and to what extent they could, as lawyers, be required to serve without compensation has frequently been raised. And if the vehemence with which the discussion has been carried on is any indication, the issue is far from being resolved.”
One nearly has a sense of déjà vu, because, to paraphrase Professor Shapiro, if the vehemence with which the discussion on pro bono work and community service in the Legal Practice Bill is any indication, then the issue is also far from being resolved here in South Africa.
I have been asked to share some thoughts with you on access to justice, in particular the role of the legal profession and other stakeholders in the light of the Legal Practice Bill. But before I turn to that, let me say the following on the issue of pro bono legal services: It is a known fact that most South Africans, particularly the working and middle class, across all races, battle to afford the services of private attorneys. It is also a known fact that most people, the ones who have no legal background or training, find the legal process and the justice system complicated and overwhelming.
In most cases, people know that they have rights, but they have no idea how to go about enforcing those rights. And especially in your field of expertise, the area of labour law, where there is what Professor Barney Jordaan calls, “the inherently unequal relationship between employer and employee”, the need for legal services becomes all the more apparent.
I recently heard someone comment that “the law is a social process”. This is very true, as the law is often the vehicle that brings about change in our society and addresses various civil, political and socio-economic issues. In a country such as ours the disparity between rich and poor, between the haves and the have-nots, is glaringly obvious, and we are still struggling to redress the injustices of the past.
As Sarkin wrote, the playing fields are not level. Access to justice is very often still the privilege of the wealthy. This, in turn means that the demands for pro bono services and legal aid are ever-increasing.
If we have more legal practitioners doing more pro bono work it will make a significant contribution to increased access to justice. In South Africa bono work is governed by the rules of each province’s law society and the various bar councils. There have been significant contributions made by way of mandatory pro bono work, especially by some of our large law firms, who often go above and beyond the requirements set by the law societies.
As an example, one firm, as early as 2006, contributed 8 432 hours to pro bono work. This amounted to 34 hours per practitioner, ranging from candidate attorneys to senior partners. In monetary terms, in 2006, this amounted to R6,5 million. That same firm has in the past few years upped their commitment to pro bono work to 50 hours per year per practitioner.
I want to talk a little bit about community service which is also one of the provisions of the Legal Practice Bill, namely mandatory community service to ensure the continued registration of legal practitioners.
The Bill provides that community service may include, but is not limited to, service in the State, service at the South African Human Rights Commission, service without any remuneration as a judicial officer in the case of legal practitioners including as a commissioner in the small claims courts, the provision of legal education and training on behalf of the Council, or on behalf of an academic institution or non-governmental organisation, or any other service which the candidate legal practitioner or the legal practitioner may want to perform, with the approval of the Minister.
The Council may, on application and on good cause shown, exempt any candidate legal practitioner or legal practitioner from performing community service, as set out in the rules.
During the deliberations on the Bill there were many complaints about the community service clause, mainly that it will be impractical to implement, it is too vague and unclear, for instance who will monitor the process, who will remunerate them and who will have to serve and for how long.
It appears that there is not much opposition regarding community service for candidate legal practitioners and that opposition was mainly received with regard to recurring community service for existing practitioners, since practitioners felt that it would be punitive. This was not the Bill’s intention. The intention was that lawyers give back by imparting their skills to others.
But the Bill is but one aspect relating to improved access to justice. From the side of the Department we have undertaken a variety of other initiatives and interventions to improve access to justice for all our people. We have well on-track in establishing small claims courts in every magisterial district in the country.
We have significantly increased the funding to Legal Aid South Africa. The recently passed Superior Courts Act establishes a division of the High Court in each of the 9 Provinces. This will bring courts closer to the people, thus significantly enhancing access to justice for all South Africans. We also need to finalise the legislation on Traditional Courts to bring their operation in line with the Constitution as these courts exist and provide access to justice and a mechanism for dispute resolution to many people in the rural areas.
Programme Director,
At the end of 2010, the then Judge President of the Labour Court, Judge Mlambo, requested that SASLAW initiate a project for litigants in the labour courts to receive advice in their labour law matters on pro bono basis, from professional and experienced labour attorneys.
Following the pilot SASLAW Pro Bono project at the Labour Court in Johannesburg, the Pro Bono initiative has now been established as an indispensable cornerstone of the administration of justice at the four Labour Courts around the country. This is demonstrated by the almost 7 500 clients who have been assisted nationally since the inception of the project in February 2011 to date.
When I was reading about the valuable work being done by SASLAW and the contribution of the Pro Bono NPC to make justice accessible to our people, I was particularly struck by the words of Samantha Herselman of Barkers Attorneys who said that - In my experience there are two types of people who come to our Pro Bono project for assistance.
The first are those who simply don't understand what the legal processes set out in our Labour Law are, and so feel aggrieved with how they have been treated. Most of these people simply need someone who is kind and patient enough to listen and explain the situation. The issue is usually resolved without going any further, by one person just through taking the time to educate another.
The second types are those who have genuinely been subjected to unfair labour practices and who are unable, without our assistance, to protect their rights. For me, there is inherent injustice in the idea that only those with sufficient means are able to litigate in the Labour Court, especially where the infringement of their right to fair labour practices has resulted in the loss of their (and often their family's) only source of income. It's a cycle which places poor people in an exceptionally vulnerable position, and the Pro Bono project allows us to try to put an end to it."
Let me take the opportunity to thank and commend SASLAW and the members of its pro bono project and to wish you all the best in the endeavours of the Pro Bono NPC. Every single person who is being assisted by this project is a person who is, through the project and its work, being guaranteed access to justice. Access to justice builds confidence and trust not only in the judicial system, but in the rule of law, our democracy and our constitutional dispensation.
I thank you!
