There is no final agreement yet on a Legal Services Charter but finalising it is urgent, the Department of Justice and Constitutional Development said on Friday.
”There has been general acceptance of a certain number of issues,” said Director General of Justice and Constitutional Development Menzi Simelane. He was speaking after a two-day consultative conference with the legal profession in Sandton on the charter.
Simelane said the department will now travel around the country to consult the legal profession further, and then redraft charter details, although its principles are unlikely to change.
”The deadlines are yesterday because the impact is today,” he said, but did not give a timeline for the process. ”There is great urgency; this should have been in place long ago. It’s long overdue.”
He emphasised that the process ”would have an outcome” and that this would capture the majority view. ”The biggest driver of the policy is access to justice.”
Simelane said disagreements include arguments over the process itself. The charter is a government-driven initiative that some legal practitioners oppose.
While there is broad agreement on the need for transformation of ownership of traditionally white firms, there is no agreement on black economic empowerment quotas. The draft charter proposes 35% black ownership, with at least 50% women and 4% disabled people.
There is broad agreement on some issues, such as the need for paralegals in the profession. ”Paralegals have a critical role to play in the provision of legal services,” said Simelane.
There is agreement on the need for skills development, particularly for new graduates who have the qualifications but not the skills to practise.
There is opposition to some aspects of the charter from advocates through the General Council of the Bar (GCB), particularly to regulation of the profession. The GCB argues that the profession should be self- and not government regulated.
”There are areas of opposition and quite strong opposition,” said Simelane.
There is disagreement over the proposal for a single regulatory body instead of, or in addition to, the existing multiple structures for different sectors of the profession.
A key debate is around barriers to access to the profession. The cost to would-be professionals of low- or unpaid articles of clerkship or pupilage required to progress in the profession blocks those from poorer backgrounds.
”What it means is that as your judges retire or leave the bench, and as your magistrates retire or leave the magistracy, your pool of practitioners from which to choose gets smaller and smaller. So, it puts pressure on your bench and the quality of your judiciary is poor. So, then as a nation you are impoverished.”
Simelane said there is a ”greater appreciation and common cause” that these issues need addressing.
The charter is intended to be a policy document on broadening access to the legal profession and to justice. It was drafted by a steering committee headed by Simelane and including individuals from a range of legal sectors.
”The critical element is: How do we give meaning to the rights that our Constitution gives to ordinary people, in a way that those rights are exercised and promoted in an affordable way and in an accessible way?” — Sapa