Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the AGM of the Black Lawyers Association, “The Right to Legal Representation, 20 Years into Democracy,” Lagoon Beach Conference Centre, 18 October 2014
President of BLA, Mr Busani Mabunda
Deputy-President, Secretary-General and Members of the National Executive Council of BLA
Prof Barney Pityana
Judge Bernard Ngoepe
Ladies and gentlemen
The birth of our new democracy brought with it more than a historical break from our horrific past. With our Constitution we ushered in a culture of justification, a culture of human rights and a commitment to freedom, dignity and equality; something our people were deprived of for centuries under colonialism and apartheid.
Along with the dawn of our constitutional democracy came many initiatives and interventions to make justice more accessible, in particular to those millions of our people who were previously denied access to justice.
We have, from the side of government, built new courts, renovated old ones, and brought the courts closer to the people. Where, in the past, courts were mostly in urban, or predominantly white areas, this is no longer the case and the rationalisation of magisterial districts so as to align them with municipal boundaries, which commences in the Northwest and Gauteng Provinces on 1 December, is a consolidation of this. We have rolled out Small Claims Courts and strengthened the capacity and funding of Legal Aid SA. We have transformed our judiciary, passed many ground-breaking new laws and undertook education and awareness programs to inform people of their human rights.
So where does legal representation come in? Legal representation fundamentally impacts on access to justice.
Jackie Dugard, writing in the 2008 South African Journal on Human Rights, states that “the first hurdle a poor person must overcome in any justice system is accessing that system. Access to justice means more than mere physical access to courts – it incorporates the ability to be effectively heard.”
And she continues by arguing that – “Without legal representation, already disadvantaged people are further disempowered when confronted with complex legal issues and proceedings. They risk an inequitable decision, particularly where the matter involves a socio-economic power imbalance (for example a dispute between a landlord and a tenant), and where the other side has legal representation.”
Most people in our country still cannot afford the services of a private legal practitioner. So, to use the words of Jackie Dugard, they are still disempowered.
This, however, does not mean that we have not made significant inroads since 1994.
Whilst the Legal Aid Board was established in 1969, legal services and the legal aid offered to the majority of our people were either non-existing or completely inadequate. For example, in criminal matters, in 1992, a mere two years before the dawn of our democracy, a staggering 150 890 convicted persons were sentenced to imprisonment without any legal representation.
At the dawn of democracy in 1994, we inherited a legal aid dispensation that was unable to meet the growing demands of our new democracy; a democracy with a Constitution which now guaranteed certain categories of persons legal representation by the state and at state expense.
Many legal practitioners ask why the Legal Aid Board decided to move away from the judicare system of briefing private attorneys. Initially the Board chose the judicare model of referrals to private lawyers and this remained the main method of delivery for some time. After the introduction of the new Constitution in 1994 the Board became responsible for providing legal aid in criminal cases where accused persons could not afford lawyers and “a substantial injustice would otherwise result” if they were not represented.
As a result, the Board was inundated with requests for legal aid in criminal cases and the judicare system started to break down. At the same time expenditure on private lawyers began to escalate out of control. For example, during the period of 2003/04 the average cost of a judicare case was R2 152 and the average cost of a justice centre case R1 090. Thus the judicare model was considerably more expensive than the salaried lawyer scheme. The Board was subsequently compelled to consider other models of delivery. And the justice center model that is currently in place, effectively means that more people can be assisted.
Legal Aid SA, as it’s now called, has grown significantly over the past 20 years and has become a best practice model internationally. Where there were a total of 79 501 matters in 1993/94, the number of total cases has grown dramatically. Legal Aid SA helped more than three-quarters of a million people in the past year. With a total of 776 301 persons served in the 2013/14 financial year, the organisation remains on track to realise its vision of ensuring equality, justice and quality of life for all. Legal Aid SA represented 390, 000 people in criminal matters, 57 000 in civil matters, 21 in impact litigation matters, and provided legal advice to a further nearly 329 000. The Legal Aid Advice Line offers free telephone legal advice in five official languages.
But legal aid only encompasses one aspect of legal representation. Far more people require the services of private legal practitioners. But can they afford it?
Samuel Butler, the English writer, said in the late 1800s that – “In law, nothing is certain, but the expense.”
It is no secret that the costs of private legal services are out of reach of most South Africans. Our country may have enough legal practitioners to meet the demand, but the costs involved put it out of reach of most.
In this regard, Prof David McQuoid-Mason writes that the South African legal profession consists of approximately 20 000 practising attorneys and 2000 practising advocates who serve about 50 million people. This yields a ratio of lawyers to the general population of one lawyer for every 2273 people. This is a high ratio of lawyers to ordinary people for an African country.
But, he argues, it is most unlikely that more than 30% of the population, or about 15 million people, can afford the services of lawyers. This then means that for the affordable part of our society there is a ratio of one lawyer for approximately 682 people. This ratio of people to lawyers– in respect of those estimated to be able to afford lawyers – is higher than that in several European countries as well as the United States, Brazil and New Zealand.
So although it appears that there are enough lawyers to provide legal services, this is only the case for those who can afford it.
In light of the reality of legal costs, something had to be done. Government could not sit idly by and allow a situation to continue whereby we know that most of our people are unable to afford the services of private counsel and are therefore being deprived of access to justice.
And while the very poor and indigent will fall within the means test of Legal Aid SA and therefore qualify for legal aid, the working and middle classes are effectively falling through the cracks when it comes to legal representation.
This was one of the main considerations behind the Legal Practice Bill, as it then was. And you are no doubt all aware of the protracted battle, more than 15 years, in bringing this piece of legislation to fruition. At the very heart of the Legal Practice Act lies the desire to ensure that all our people have access to affordable legal services of a high standard.
I am pleased to see that BLA has welcomed the Legal Practice Act. BLA has been in the forefront calling for the transformation of the legal profession and we want to convey our thanks to BLA for its valued contributions in the debates and submissions which culminated in the passing of this piece of legislation.
The LPA is a major step towards the transformation of the legal profession. We no doubt agree with BLA that this Act which will drastically redress, to a larger extent, the imbalances experienced in the past, within the legal profession.
And the imbalances are this – while the legal profession is still overwhelmingly white and male, the majority of law graduates are Black and female. In 2013, there were 2039 African, 362 Indian, 277 Coloured and 1 092 white graduates. Of these graduates, 2129 were women and 1649 were men. As you move up the profession the inequalities become more apparent the higher up you go. In the period 1 April 2013 – 31 March 2014, according to the Law Society of South Africa, there were 1 000 African candidate attorneys to 1048 white candidate attorneys.
In the attorneys profession as a whole there are 22 476 practicing attorneys nationwide – of these 14 385 are men and 8 102 are women. 14 189 are white but only 4930 are African, with 1 092 Coloureds and 2 002 Indians. In the senior ranks the number of Black practitioners and female practitioners decreases substantially.
When the Act comes into effect the legal profession, both attorneys and advocates, will be regulated by a Legal Practice Council. One of the objects of the Council is to promote access to the profession, in pursuit of a legal profession that broadly reflects the demographics of South Africa. The Council also has a responsibility to develop programmes to empower historically disadvantaged legal practitioners as well as candidate legal practitioners. The Council may also make recommendations to the Minister regarding legislative and other interventions to improve access to the profession.
The Act specifies that the racial and gender composition of South Africa must be taken into account when constituting the Council. The Legal Practice Council must progressively establish Provincial Councils, starting with at least four and eventually having one Provincial Council for each Province.
Before the Legal Practice Council can be established a National Forum on the Legal Profession must make recommendations to the Minister on issues such as the election procedure for constituting the Legal Practice Council and the composition, powers and functions of the Provincial Councils. The National Forum has two years to make such recommendations. The Minister can extend the time-frame for a further year, but if they fail to reach agreement the Minister must make the regulations after consultation with the Forum.
There are 8 attorneys on the Forum – of which 2 must come from BLA and 2 from NADEL.
The Legal Practice Council will only be established after the conclusion of this process and in the interim, regulation will still be done by the various Law Societies and Bar Councils. However, once the Council is constituted the four provincial law societies will be disestablished as the repeal of the legislation creating them, will come into effect.
The Act creates the Legal Services Ombud. The President must appoint a judge discharged from active service as the Legal Services Ombud. The Ombud is competent to investigate, on his or her own initiative or on receipt of a complaint, any alleged maladministration or abuse or unjustifiable exercise of power or unfair or other improper conduct or undue delay in performing a function in terms of the Act or any act or omission which results in unlawful or improper prejudice to any person, which the Ombud considers may affect the integrity and independence of the legal profession and public perceptions in respect thereof. This is an independent and cost-effective mechanism to assist the public. The findings of the Ombud will be recommendatory.
It is also worth mentioning that disciplinary proceedings will now be open to public scrutiny and a non-lawyer has to be part of a disciplinary panel.
Importantly, let me highlight the issue of community service. The LPA provides that the Minister of Justice must, after consultation with the Council, prescribe the requirements for community service which could include community service as a component of practical vocational training by candidate legal practitioners; or a minimum period of recurring community service by practising legal practitioners upon which continued enrolment as a legal practitioner is dependent.
Last month, an American lawyer wrote about community service in the publication “Law Practice Today.” She says: “I’m not advocating community service in hopes that your bleeding heart will succumb to doing good unto others. Or because it’s your duty. Or because it will make you feel good. I’m advocating community service because of the incredible tangible benefits it brings to the lawyer.”
And she argues, correctly, in my view, that community service also helps lawyers to develop skills beyond their substantive practice area. Particularly for young or newly admitted legal practitioners community service very often helps to these skills are not taught in law school, but are essential to success in the workplace, skills such as leadership, communication, decision-making, and confidence.
So these are some of the main provisions of the Legal Practice Act. To re-emphasise, as far as the transformation of the profession, the LPC will have a key role to play in that regard. But is this enough and must we wait for another 3 years for this work to begin? The answer is obviously no.
The state is a major consumer of legal services, mostly making use of private advocates as Government has its own attorneys, namely the State Attorney. A target of 75% of briefs being allocated to Previously Disadvantaged Individuals has been set and this target has largely been met, but there are still complaints from black advocates and, as the Minister and I discovered at a meeting with Advocates for Transformation recently, an African woman can be given a brief to draft the pleadings in a matter but then the brief to appear in the more lucrative trial is given to someone else.
This is an area that needs greater attention. Ensuring that Black advocates are given the opportunity to learn by getting briefs that will develop them is also key. The appointment of a Solicitor-General as head of the State Attorney’s office, in terms of the recent State Attorney Amendment Act, will play an important role in this regard.
As I’ve said, National and Provincial Government do not, on a large scale, make use of private attorneys, as the State Attorney acts for them. This use of the State Attorney, however, does not apply to municipalities and state owned enterprises and these entities need to be challenged to play their part in the development of black attorneys. This does not necessarily mean that these bodies must instruct black attorneys’ firms only, but it also means that where they do make use of bigger corporate law firms, they should insist that black attorneys play a prominent role in the actual work being done and that younger black attorneys must trained in the areas of work, so that development and a proper skills-transfer take place. In other words, Eskom should be saying to the corporate law firms handling their work that they expect a certain minimum number of black attorneys to be involved and that in, for example, five years’ time they expect that number to be increased.
I wish BLA and its members a very successful and fruitful AGM. Together we, government with the legal profession, are moving in the right direction. With every step we get closer to making justice accessible to our people. This is the only way we can make our Constitution a reality for them and create a better life for all.
Sonia Maria Sotomayor, Associate Justice of the US Supreme Court and the first female justice of Hispanic heritage, perhaps says it best:
“We educated, privileged lawyers have a professional and moral duty to represent the underrepresented in our society.”
I thank you.