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Government’s proposed compulsory community service for lawyers is a noble plan, but needs to be properly structured, especially for candidate attorneys entering the legal sector, said the Law Society of SA (LSSA).
The Department of Justice and Constitutional Development has invited comments on the legislation of the community service in terms of Section 29 of the Legal Practice Act, which governs the legal sector in the country.
The gazetted regulation proposes that a candidate lawyer must, as part of their vocational training, do a yearly eight hours of community service at any institution approved by the justice minister.
Practising advocates and attorneys are required to do 40 hours a year.
The community service rendered by a candidate attorney must be supervised by their principal.
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LSSA pro bono committee chairperson Shaun Hangone, who is also a practising attorney, welcomed the proposal. However, he added, such a community service should not be confused with the pro bono practice, a free service from a lawyer.
“There was always a debate among us years back when we were asked to help at the local court, and we would raise the fact that that’s not pro bono, that’s fulfilling a government service. Pro bono is offering legal service for the community without remuneration, not for the government.”
According to Hangone, the concerning issue is that junior aspiring lawyers have limited areas where free services can be rendered.
“I think one such place to go to was the SA Human Rights Commission (SAHRC), so the first concern is, is community service equal to pro bono? The answer to that is a resounding no. In this instance, pro bono should not be a substitute for state service.”
“There’s tension there…and that’s why community service is being used as all-encompassing. Community service is a great idea, but it needs to be thought out in respect of the two categories – if juniors are joining the profession, we need structured proposal cognisance of the fact that they are young practitioners without experience and shouldn’t be unleashed on the public.”
Young aspirant lawyers, said Hangone, needed training and help the same as the person requiring legal assistance and cannot be expected to disseminate mature litigation.
“There has to be a structured environment for candidate attorneys, whether they are asked to go help deal with the backlog at the Master’s office or go to the high court to assist with filing, then there’s a positive spin for it.
“I am happy with it if it’s a structured plan. Also, there is Legal Aid SA, which can accommodate community service… they are spread across the country and their candidates are in courts every day. I think from a principled point of view, community service should not have a private or trainee practitioner doing civil service work,” he said.
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Advocate Simon Lekalakala, who practices in the corporate sector in Johannesburg, welcomed the proposed legislative measures.
He said most legal practitioners do not take pro bono services seriously, and only help out to qualify for positions such as senior counsel.
“When I was at university, we used to do work at law clinics where we would have a qualified attorney supervising us. A course called Practical Legal Studies enabled us to tackle real cases under supervision.
“I think it’s good that it be formally legislated. We do get pro bono requests and briefs, but people don’t take them seriously, it is done voluntarily through, for example, the Johannesburg Bar.”
He said advocates have been required to detail their work done at no cost for the needy in their application for higher criteria, and many do free litigation just so they can qualify.
“It is an important part of our work, get it legislated and hopefully, there will be more work flowing to those who need access to justice the most,” said Lekalakala.
Attorneys and advocates in South Africa are registered with the Legal Practice Council (LPC).
The LSSA has represented the attorneys’ profession since 1998. According to its website, the LSSA brings together the Black Lawyers Association, the National Association of Democratic Lawyers and provincial attorneys’ associations, in representing the attorneys’ profession in the country.
State attorney services Legal Aid South Africa said it envisaged that legal community service will replace pro bono practice.
Spokesperson Godfrey Matsobe said community service would work better if it was regulated and enforced to broaden access to justice to vulnerable persons including women, children, people with disabilities, refugees, asylum seekers and migrant workers, thus contributing to a culture of service.
“Although there are several legal practitioners that give their time free and often, such as small claims court commissioners and practitioners doing pro bono work, it can be improved upon if it is better regulated and enforced.”
At least 3% of Legal Aid SA’s work is allocated to private lawyers in what Matsobe referred to as a “mixed model delivery system.”
“96% of the work is done by our employed legal practitioners and 1% by co-operation partners. Private practitioners may be accredited with Legal Aid South Africa and are issued with instructions in instances where there is a conflict of interest, where we have capacity constraints or where we do not have a footprint. Legal Aid South Africa works with all justice cluster stakeholders to reduce the backlogs.” Matsobe said.
Legal Aid SA issued 90 pro bono instructions in the previous financial year, he added.
Approximately 88.5% of its work comprises criminal cases and 11.5 % of civil cases.
“Our resource allocation for civil work can fulfil our constitutional mandate as well as assist the most vulnerable with civil cases. However, there is a bigger demand for work that is excluded from Legal Aid South Africa, due to capacity constraints and budget availability.
“Legislated and properly managed compulsory community services will greatly assist with issues such as, but not limited to wills, estates and burial disputes,” said Matsobe.
The closing date for comment on the regulations closes on 20 June.
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