Lawyers probe pro bono Bill
The proposal in the Legal Practice Bill that law graduates be compelled to provide free community service has been widely welcomed as progressive — but students and practitioners are scrambling for clues as to how it would be implemented.
Tabled in Parliament two weeks ago after more than a decade of discussion, the Bill makes provision for the compulsory provision by law graduates of services to communities on a pro bono basis among its range of proposals, some of which have been contested by private law companies.
This, the Bill proposes, would be done as part of practical vocational training. Jeff Radebe, the minister of justice and constitutional development, has punted the Bill as a landmark trajectory towards improving access to justice among the country’s poor communities.
It is proposed in the Bill that compulsory community service may be a component of practical vocational training for candidate attorneys. This proposal is entwined with a requirement that would result in practicing legal practitioners also carrying out minimum pro bono services.
Method of implementation
Law educators agree that the proposal is important, but the results would largely depend on how it is implemented.
The requirement for graduates to perform community service is not objectionable, said Pamela-Jane Schwikkard, the dean of the law faculty at the University of Cape Town. But “the contentious issue is how the requirement is to be implemented and how existing community service initiatives will be integrated”.
“It is a bit more complex than simply requiring an extra year of community service,” said Vivienne Lawack-Davids, the dean of the faculty of law at Nelson Mandela Metropolitan University, who is also president of the South African Law Deans Association, but spoke in her personal capacity.
Deans have started discussing the new requirement with the Law Society of South Africa and one of the issues for consideration is that a number of law faculties already have law clinics. Universities such as the University of Cape Town and the Nelson Mandela Metropolitan University already promote community service before students graduate.
All final-year LLB students at the Nelson Mandela Metropolitan University are required to undergo compulsory legal-practice modules.
This involves six months at the law clinic and six months doing street law, the practice of educating communities on their rights. “This is in addition to voluntary community engagement that our students do in collaboration with the law student society,” said Lawack-Davids.
“What is not clear is whether this would be in addition to a compulsory community service year, as if the students have not been exposed to community service while they are furthering their LLB studies.”
The University of Cape Town’s LLB students are required to do 60 hours of community service as a compulsory component of the degree. But after graduating attorney candidates from these universities still have to undertake a full two years of articles.
“This degree requirement has no impact on articles or any other training requirements in the country,” said Schwikkard. “The purpose of the requirement is to assist in developing graduate attributes that we think are desirable, namely an ethos of service and an appreciation of the unequal access to social justice prevalent in South Africa.”
The Wits Law Clinic, one of the biggest in the country, offers a compulsory practical course for the university’s final-year law students. It also provides opportunities for graduates to carry out their articles.
Michael Kidd, the chairperson of the Association of University Legal Aid Institutions, said compulsory community service for graduates was a good idea in principle, “but its effectiveness will depend very much on how it is implemented, once again resources being a critical concern”.
The success of compulsory legal assistance would depend on government funding community service initiatives properly, Kidd said.
What law students say
The proposal has gained support among law students, who largely view it as an opportunity to broaden access to justice in black communities. The Black Lawyers Association student chapter said it welcomed the provision of the Bill for community service as it would be part of practical vocational training.
“The Bill seeks to address the impediments and/or challenges relating to access to justice or lack thereof by the majority of the indigenous consumers for basic legal services who are largely domiciled within the rural areas of our country,” said William Maodi, president of the association. But without stipends, the new requirement could serve as “some form of social punishment for black graduates”.
Sipho Shabalala, a final-year LLB student at the University of Pretoria, believes graduates would need some money to sustain them.
“Graduates, especially black graduates, would need stipends to survive. It is rough out there. I would go for the programme because I know that people in rural areas need assistance to understand their rights,” said Shabalala, who hails from Tweefontein, a rural area in KwaMhlanga, Mpumalanga.
A young black attorney practising at a Gauteng law clinic said that requiring graduates to work without remuneration could prove problematic. “It would be unfair to expect graduates to work for free in these difficult economic times,” she said.
The Black Lawyers Association would formulate its stance on the Bill in a conference scheduled for this weekend, said its president, Busani Mabunda.
Pro Bono culture
Nongovernmental legal organisation Pro Bono believes that, if implemented properly, the requirement has the potential to create a good pro bono culture among new professionals.
But the organisation’s head of general law, Kisha Candasamy, said clarity on details was needed. “The regulation of the system will be important. Section 29(2)(a) talks about agreement with NGOs and other bodies, [but] how will these be decided on? [Would it be done through] accreditation or on application process to the council? How will reporting of hours take place and to whom? Lack of clarity at this stage makes it difficult to comment fully,” she said.
Jobst Bodenstein, vice-president of the Association of University Legal Aid Institutions, said: “It is not clear what the government envisages community service consisting of. It is not clear why students should not already be included [in pro bono work] during their LLB studies. Community service could be combined with practical training at law clinics.”
Discussion on the Bill is expected to start in earnest in Parliament over the next few months.
“I am of the view that this [requirement for law graduates] should be more widely debated and possibly piloted for a while before it is implemented on a wider scale,” said Lawack-Davids.