Legal advice offices will again face crisis if the government does not take the initiative Piers Pigou
Poverty is arguably the greatest challenge facing South Africa, and the urgent need to address the inequities of South Africa’s racial economy was clearly recognised by the drafters of the Constitution through specific provisions for a range of social, economic and supporting rights.
The government is certainly not alone in addressing the challenge of poverty, and a range of institutions and individuals are deeply involved at all levels. Despite this the areas and people in greatest need are typically the most poorly serviced. A central service component addressing these areas of concern is the network of advice offices, a number of which have been operating for many years, often in very remote locations. Between 300 and 350 offices of varying size and capacity operate with different levels of sophistication across all nine provinces. Work focuses primarily on three interrelated areas: service delivery, development and human rights. All advice offices are dependent, most entirely, on donor funding.
Over the last few years several international agencies have contributed tens of millions of rands to support approximately 150 offices. A number of other offices receive alternative support, while some continue to exist on handouts and voluntary staffing. The largest donor, the Swedish International Development Agency (Sida), supports 120 offices, as well as the National Community Based Paralegal Association (NCBPA) and its fledgeling provincial structures. Sida support was premised on an (unwritten) understanding that the state would pick up financial responsibility for advice offices as they were incorporated into an expanded legal aid system.
In 1990 Penuell Maduna (now Minister of Justice and Constitutional Development) told a conference in Cape Town that paralegals would be “part and parcel of the building materials that we will use to construct a new society and develop a new legal system”. He acknowledged that they had played a pivotal role and that they would continue to “help people understand and protect their rights, freedoms and interests and to make justice eventually accessible to the ordinary indigent person”.
Ten years later, and four years on since the formation of the NCBPA, the process of developing a “new legal system” is now at a critical juncture. International donor funding, having reached unprecedented levels, is now likely to decrease incrementally over the next three to five years. The NCBPA now faces a massive task to coordinate and facilitate the development of many advice offices and related processes. There are considerable disparities between the type and quality of services provided by these offices and an urgent evaluation of capacity and needs is required. The Free State, for example, has only a handful of such offices.
The NCBPA has initiated a number of crucial interrelated processes, including the development of a two-year paralegal diploma course that will provide for professional recognition, and the development of a case-logging database designed to determine and cost the cases dealt with by the network. It has also lobbied for paralegal inclusion in new legislation being developed to transform the legal profession. In addition the NCBPA is involved in efforts to develop contractual arrangements with the Legal Aid Board as part of its new initiative to promote a range of new contractual legal aid services.
In a context of perennial financial vulnerability, the prospects of widespread advice office inclusion in a transformed legal aid system holds great appeal within the paralegal movement. Not surprisingly some were cautious of being associated with state funding of any variation. Recommendations regarding the expansion of legal aid and the role for paralegals and advice offices that were made at the January 1998 Access to Justice Forum, convened by the Department of Justice and Constitutional Development and subsequently endorsed by the government in its National Action Plan for the Promotion and Protection of Human Rights, have not been implemented. The clock is ticking and there is now a very real possibility that the bulk of advice offices will face acute financial problems if no alternative relief is secured as international donors phase out their support. This could mean many offices close, with serious consequences for serviced communities.
Both the Legal Aid Board and the justice and constitutional development department, responsible for the National Action Plan for the Promotion and Protection of Human Rights and programmes to enhance access to justice, have been preoccupied with resolving a range of other administrative and financial problems. In particular, the envisaged expansion of legal aid services has been held hostage by a need to reduce costs through the diversification of service delivery, thereby facilitating a move away from the costly judicare system of providing criminal and civil representation through private legal practitioners. No effort has been made to amend the Legal Aid Guide which sets out what services can be provided and by whom.
Despite this slow progress the Legal Aid Board’s business plan, released in May this year, set out its intention to establish 35 justice centres across the country over the next three years, as well as the development of contracted services to legal NGOs, universities and others. Opportunities for paralegal and advice office inclusion will be largely dependent on the types of services that will be contracted and in this regard there are pressing concerns that most of the existing services provided by the advice office sector will not be included. This would include, for example, assistance to secure pensions and working benefits. The exclusion of such services is extremely worrying given their (potential) impact on poverty alleviation and relief among indigent communities, as many people are entirely reliant on advice offices for this kind of assistance.
A meaningful investment to develop and maintain the advice office movement is urgently required if the government and other agencies supporting democracy and development are to capitalise on the promise and potential of this cutting-edge service. Problems around the allocation of funding, as opposed to a lack of funds, appear to be major obstacles. Much could have been done, for example, with a fraction of the unspent R500-million from the Poverty Relief Fund.
It is simply unrealistic to expect the NCBPA to drive this process on the basis of its current funding and capacity, particularly at provincial and local level. A range of key actors in both the private and public sector must be engaged. This would include the National Development Agency, and government departments and agencies at all levels, as well as NGOs and other service providers. In the United Kingdom and Australia, for example, local government is responsible for funding advice bureaus in their local communities. Although fundamental progress in enhancing access to justice is dependent on development and implementation at the local level, the national government has a pivotal role to play at this juncture to ensure that the current investment is not lost.
If the vision outlined by Maduna is to be realised and advice offices are to be given a more meaningful and secure role in the provision of services and other assistance, they must urgently be given the necessary support they need to maintain and develop their operations. As the government increasingly comes under fire for policies and practices that exacerbate disparities in wealth and income, and the advice office movement is once again faced with prospects of financial vulnerability and closures, it remains to be seen whether the government will take the necessary steps to maintain and develop this essential front-line service in the ongoing struggle against poverty. The current situation presents a very real opportunity to transform rhetoric into reality, but time is running out. Piers Pigou is a former Truth and Reconciliation Commission investigator