South Africa needs to up its pro bono, law for public good, game

20 May 2016

 If individuals who earn about R1.5m per annum struggle to fund labour dispute type litigation, what chance does the common man stand to defend their basic rights and freedoms through the courts.

Sibonelo Radebe

The desperate cry for help to fund legal costs by three senior civil servants, Robert McBride, Ivan Pillay and Anwa Dramat signals a serious crisis for the country’s justice system.

In a statement released this week the trio, McBride, Dramat and Pillay, was essentially asking for help to fund their legal costs. They concluded their politically explosive statement with this plea: “We call on those in business, civil society, organised labour, NGOs and the general public who value and want to defend our constitutional democracy, to assist our efforts with legal advice and expertise and legal and financial resources.”

McBride is a suspended Executive Director: Independent Police Investigative Directorate (IPID), Dramat is a former National Head of the Hawks (The Directorate for Priority Crime Investigation) and Pillay is a former South African Revenue Service (SARS) Deputy Commissioner.

For a moment, forget about the shambolic state of leadership in the security cluster as projected by the trio. Think access to the justice system for the common man. Consider Section 34 of the Constitution under the Bill of Rights: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

Ask yourself: If individuals who earn about R1.5m per annum struggle to fund labour dispute type litigation, what chance does the common man stand to defend their basic rights and freedoms through the courts.

This question is rising into a national concern by the day as many more people fall outside the elite that can afford legal representation. The challenge was also recently displayed in the case of one Nkosana Makate who took on telecoms giant Vodacom in the Please Call Me case. It is clear that justice would not be served without the without the help Makate received from a strange business called Sterling Rand.

Call for South Africa to up its pro bono game

The trios cause, albeit political, comes to meet a rising concern about increasing inaccessibility of the justice system to the common man due to unaffordable legal fees.

This has led to a call that South Africa’s legal fraternity needs to broaden its pro bono service universe to justify, to give meaning and to defend its position as a host of one of the most progressive constitutions in the world. Fundamentalist would rather speak of ‘public interest lawyering.’ Let’s stick to the pro bono concept for today and address public lawyering on another day.

It is believed that a more robust pro bono service will also help South Africa avoid political conflagration. It can be argued that low confidence on the justice system drives many South Africans to act outside the law. Cases of communities burning public property to register political protest that can be handled by the justice system are rising towards alarming levels. Consider the Malamulele situation where a demarcation issue caused 20 schools to be burnt by members of the community.

The call for South Africa to up its pro bono game is not new by any means but is gaining momentum on the back of skyrocketing costs of living. Seen against the stagnation of a significant percentage of the population in the underclass category, inflation is not only eating money value but also nullifying the Section 34 of the constitution.

The pro bono ethic remains low in South Africa even after considerable progress has been made on the regulatory front. The pro bono ethic is currently organised from provincial law societies and bar councils. These entities have in recent years included into their rules pro bono stipulations all of which gravitate around the following standard: Each member is expected to provide pro bono service amounting to 24 hours every year to deserving clients who earn no more than R7 000 per month.

This standard plus the fact that South African lawyers are not enthusiastic pro bono service providers leaves much to be desired.

Poor pro bono ethic

An academic paper penned in 2013 by Dave Holness lays bare the South African pro bono gaps. Holness says while the law societies tag their pro bono rules as mandatory, this is theoretical at best. “The word theoretically is added as there has been very little enforcement of this requirement and to date there has been no report of an attorney having been disciplined for failing to undertake pro bono work.”

Advocate Andy Bester from the Johannesburg Bar recently weighed in on the pro bono matter through a piece he penned for the April 2016 edition of the Advocate publication.

Using the national average household income figures, Bester notes that in 2011 the average monthly household income was R9 962. “The average household income of a black family was R5 803 and that of households headed by a woman, black or white, R5 903.”

And then Bester provides the cost of legal services in Johannesburg where he says members of the bar typically charge from R6 000 to R 8 000 per day immediately after pupillage.

These numbers make it clear that very few South Africans can afford a lawyer.

Bester notes that “The inability of millions to access legal services (more than two decades after the country became a democracy) is not only unjust; it also perpetuates inequality, thus maintaining an untransformed society.”

The Constitutional Court does not miss an opportunity to express itself on the matter. In the recent Nkandla judgement the Chief Justice Mogoeng Mogoeng touched the issues saying: “The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen.”

A pro bono view from around the world

The pro bono matters debate is a global one and is defined by different choices. While South Africa chose to adopt mandatory rules a few years ago, the US which has a stronger pro bono ethic runs with a voluntary approach. Imposed by the American Bar Association this voluntary approach is intelligently tagged as a responsibility as follows: “Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility…”

The US minimum pro bono standard is 50 hours per year more than double the South African standard of 24 hours per year.

There are tougher pro bono prescriptions across the globe. Spain comes to mind where lawyers who are obliged to represent civil cases of indigent citizens are allocated lawyers. A fee is payable by lawyer who wishes to be exempted on an annual bases. In Belgium the pro bono ethic starts with a three years long compulsory community service or apprenticeship for newly admitted lawyers. Pro bono cases are allocated to the legal apprentices.

The voluntary pro bono ethic is said to be propelled by both moral and commercial reason. A paper published in the Harvard Law School journal and penned by Kevin Lapp Alexa Shabecoff states that many law firms have discovered the benefits of pro bono work. “It is an inexpensive and efficient way for the firm to professionally develop its young associates. The nature of many pro bono cases often puts young associates in new situations—conducting client interviews, questioning witnesses during a deposition, or even appearing in court—that give them a kind of hands-on training that firms often cannot provide.”

Holness also highlights a more fundamental rationale. He says it has been widely argued that “it is the very nature of their profession that requires lawyers to perform pro bono work, as evidenced by the embodiment of their aspirations concerning justice in their codes of professional ethics.

“It is argued that lawyers have a special responsibility to provide legal assistance to the poor because of the profession’s public commitment to justice.”

Holness also flagged the argument that “pro bono work can help to counter negative attitudes toward the legal profession and help restore the tarnished reputation of the legal profession…

“If members of the legal profession show the public that they are contributing to the broader interest of society, this will hopefully enhance the sense of the integrity of the legal profession.”

The broader pro bono concept can be extended to institutional state interventions like the Legal Aid SA which offers tax funded legal representation to people who cannot afford legal fees. Legal Aid runs with a means test that limits its service to individuals from households earning less than R6000 per month.

The pro bono ecosystem also extends to Section 9 institutions like the South African Human Rights Council, Public Protector and the Gender Commission. This ecosystem also extends to the world of NGOs who do public interest lawyering like the university linked law clinics and Legal Resources Centre, Section 27, TAC etc. A newish phenomenon around the globe and in South Africa is the emergence of pro bono cases clearing houses like ProBono.org. These entities serve as pro bono case galvanisers and filters. They take the frontline of interacting with citizens who seek pro bono service, assess the cases, select the deserving ones and package them for law firms. With the advancement of information and communication technologies, the filtering services are moving online. A South Africa private initiative called ProBonoMatters is taking the new legal media space by storm.

Everyone agrees that the demand for pro bono is far greater than the supply. Something drastic needs to happen to tilt the scale towards equilibrium.

Of-course this space could be radically transformed under the force of the unfolding, Legal Practice Act, which among other things promises to introduce a community service regime in process of getting admitted into the law profession. But a view which says a crisis of ethic cannot be addressed through legislation persists.

Sibonelo Radebe is founder of ProBonoMatters, an online platform designed to facilitate delivery of free legal service to deserving cases.

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