Justice for the poor and more work for black lawyers.
If one had to summarise the aim of the recently adopted legal services sector charter in one sentence, that would be it.
The charter, hailed as a breakthrough for the transformation of the legal profession in South Africa, was adopted by all the country’s lawyers and advocates at the end of last year and presented to Justice and Constitutional Development Minister Brigitte Mabandla on December 10.
On the day of presentation Mabandla’s department issued the following statement: “The legal services sector and the legal profession are typified by inaccessible and unequal distribution of services and the need for transformation of the judicial system, legal profession and legal services sector is eminent. The adoption of the legal services charter by the legal profession is therefore a historic event, as this unity will lead to true transformation of the legal profession.”
Former co-chairpeople of the Law Society of South Africa (LSSA) Henry Msimang and David Gush also praised the adoption of the charter by the country’s legal practitioners, calling it “a historic achievement and a milestone”.
South Africa’s post-1994 legal fraternity has been plagued by allegations of racism and an unwillingness to transform.
The number of black lawyers and advocates is still relatively low compared with their white counterparts and the majority of judges are still white men.
The charter aims to redress these inequalities, and to advance the rights of the poor to access the courts.
Access to justice
The charter emphasises the historical disadvantages of people seeking access to legal services and says this should not happen again.
“The systemic social and economic inequality that characterise South African society have distorted the ability of persons to access legal services. Socio-economic status, race, gender, disability and geographic location are significant obstacles to access justice,” the charter reads.
Now the legal profession undertakes to recognise its “ethical obligation” towards disadvantaged people by carrying out pro bono (free) work and developing a system that makes it compulsory for all lawyers to assist communities free of charge, to establish a community service programme that provides legal education and training and to investigate the affordability of legal fees.
Government has to play its part in this major new strategy to take justice to the people.
According to the charter, government undertakes to:
Facilitate access to legal services in rural and other underserviced areas through the appropriate provision of courts and infrastructure;
Enhance the Legal Aid Board’s ability to provide legal services to the indigent;
Provide for the regulation of non-commercial, community-based paralegal practitioners so as to provide access to primary legal services in rural, poor and marginalised communities; and
Consider the development of an in forma pauperis system in the courts to enable judges and magistrates to assist people in need of legal representation, in consultation with the legal profession and the Legal Aid Board
.
Lack of black lawyers
The charter further acknowledges the shortage of black legal practitioners in South Africa and says this is because of “historical barriers to entry into the profession”.
The challenge facing the legal profession is to make it representative of the racial and gender composition of the country “so as to ensure a body of well-trained and competent professional providers of legal services and to enable appointments to be made to the judiciary which reflects the demographics of South Africa”.
The profession aims to address challenges of entry into the legal profession and ensure standardisation and availability of legal training and education; provide skills development and skills transfer programmes; ensure that legal training and education includes social context awareness training; and develop mentorship programmes by legal practitioners and academics.
Another burning issue that the charter addresses is skewed briefing patterns, often based along racial lines due to the advantages white legal practitioners experienced under apartheid.
Chairperson of the KwaZulu-Natal Bar and deputy national chair of Advocates for Transformation Tayob Aboobaker told the Mail & Guardian last year that the KwaZulu-Natal division was stuck in a time warp and that there was no real desire to change. “I know many senior counsel who have not seen a brief from a white law firm for years,” he said.
The charter now places the ball in the hands of the single largest user of legal services — government — to change this.
“The overriding challenge is to ensure equitable procurement from historically disadvantaged individuals within the legal service sector by complying with procurement strategies that will enhance and promote equality, thereby creating opportunities for the establishment of new enterprises and the development of existing enterprises,” the charter reads.
Government undertakes to identify and implement “equitable procurement strategies” to increase the legal work going to black lawyers and advocates. Although often tied by their clients’ choices, law firms also undertake to identify ways in which to ensure a just distribution of work.
The final step is the finalisation of a Legal Practice Bill, based on the charter, to govern the legal profession. When promulgated, the Act will also make provision for a national regulatory body — the Legal Practice Council.
This council’s powers would include the prescription of qualifications for admission to legal practice and dealing with complaints of malpractice and misconduct.