Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP at the 1st National Conference on Paralegalism hosted by the Department of Law, Tshwane University of Technology at the ABSA Conference Centre, Montana, Tshwane, 23 February 2015
Conference Convenors, Prof Ally and Mrs Van Coller
Delegates, ladies and gentlemen, friends
Thank you for the kind invitation, it is indeed a pleasure for me to be here at the very first National Conference on Paralegalism.
The role played by paralegals in the history of our country is closely linked to our struggle for freedom.
Under apartheid the justice system was repressive, brutal and dehumanizing. Legal services and legal advice were generally unavailable to Black people. The majority of our country’s people had nowhere to go when faced with legal problems.
Whilst Legal Aid did exist in theory, in reality it was ineffective and inaccessible. For example, from 1975–1976, only 810 applications were approved by Legal Aid for legal aid in criminal cases. If one imagines the large number of criminal cases, where predominantly Black people, but also others, faced charges under draconian apartheid laws it is clear that Legal Aid was simply unable to deliver.
So where did they go for assistance? They went to paralegals, mostly working in community advice offices, or CAOs, as we call them. Paralegals were at the coal-face. They were often the very first port of call for those who had nowhere else to turn.
Jackie Dugard and Katherine Drage, in an article on paralegalism, highlight the work of the Black Sash. The Black Sash set up paralegals in community advice officers in urban areas to assist black people who contravened the apartheid laws, particularly those that restricted freedom of movement. These offices provided support and free paralegal services, addressing concerns around housing, unemployment, pensions, influx control, and detention without trial.
Between the 1960s and the 1980s, Black Sash CAOs flourished, and provided evidence with which the group informed its public protests and its monitoring of government policy, legislation, and action, as well as court activities. This allowed the Black Sash to also monitor and record protests, rallies, arrests, detentions, and deaths.
Today paralegals are still, in most cases, the first line of assistance. Many people, in particular people who are poor, marginalised and vulnerable and do not have the resources to access private lawyers, turn to paralegals.
In short, paralegals play many roles. They are often more than paralegals, they are also activists, counsellors, educators.
A paralegal needs to have knowledge of the law and its procedures, has to know about conflict resolution and must be an activist too, with the commitment, attitude and skill to help people and communities with their legal, human rights, administrative, constitutional and developmental problems, while at the same time empowering them.
The ambit of a paralegal’s role is a wide one: a paralegal may investigate and refer matters to lawyers or relevant bodies for them to deal with. They can become educators of the law and rights for people in their communities. They can play a leading and supportive role in campaigns for improving community living standards and general community development. They fulfil a very important role in the broader justice system.
From the side of government, we value the role of paralegals in the quest for justice for all. Our Department, the Department of Justice and Constitutional Development, is pleased to announce that we have recently placed 200 paralegals at our courts, so as to provide capacity on quasi-judicial processes.
Legal Aid SA is one of the biggest employers of paralegals in the country. Their 2014 Annual Report also makes mention of its paralegal capacity. Providing general legal advice is an important part of Legal Aid SA’s service delivery programme. This is done through the dedicated paralegal capacity at their 128 offices as well as the national call centre, the Legal Aid SA Advice Line. In the last financial year, a total of 328, 979 general advice consultations were conducted. This represents a growth of 10% over the previous financial year.
On the issue of the broader justice system and access to justice, let me say that we still have many challenges, the most fundamental being how to enhance access to justice given limited resources. The reality is that many people live in rural areas and not all South Africans are literate. Even for those who are literate, the law and the legal system are complex, often overwhelming and not always easy to understand.
Since 1994 there have been many initiatives and interventions to make justice more accessible. From the side of our Department, we have rolled out 330 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.
We have built new courts, renovated old ones, and brought the courts closer to the people. The construction of new high Courts in Limpopo and Mpumalanga is underway and these courts will be opened as part of the Presidential projects during 2015 and 2016 respectively.
Improving access to justice for all and enhancing the rule of law have been critical priorities for Government and consequently, in the last two decades, specific initiatives were undertaken to extend access to justice – especially to the more rural areas.
Many of you may be familiar with the new Legal Practice Act. In this Conference’s Call for Papers it refers to the Legal Practice Bill, as it then was, and states that “it is noteworthy that no mention has been made about paralegals in the present draft.”
The Bill has since been enacted and I can assure you that there is indeed specific mention of paralegal in the new Legal Practice Act.
Section 34(9) of the Act provides that the Council must, within two years after the commencement of Chapter 2 of the Act, investigate and make recommendations to the Minister on the statutory recognition of paralegals, taking into account best international practices, the public interest and the interests of the legal profession, with the view to legislative and other interventions in order to improve access to the legal profession and access to justice generally.
This provision was inserted into the Legal Practice Bill by the Portfolio Committee in the National Assembly after representations were received from paralegal organisations to ensure that provision was made for the finalisation of legislation.
As it will still take about three years for the Legal Practice Council to be established, we need to consider whether this is still the best way to go or whether work should not start earlier on legislation relating to paralegals.
We are aware of the problems being faced by paralegals, in particular issues of funding and formal recognition. For example, last week it was reported that the Paralegal Advice Office in Gugulethu will soon be forced to close down if it is unable to secure funding by April this year. Founded in 1998, the advice office has assisted hundreds of people with a variety of legal issues, ranging from consumer rights to social grant deductions and mediation matters.
The office coordinator, a paralegal, Matthews Tshofuthi, said: “At this stage we are running dry. I don’t even know if we will be able to pay the telephone bill for January. The ward councillor is helping us with the office we work from because we can’t afford to pay rent.”
We know that many community paralegals, working in NGOs, community advice offices and other grassroots institutions, face the same problem of struggling to get the funding it needs to keep the projects going.
Paralegals play a pivotal role not only in assisting people with issues such as housing benefits, social grants and consumer rights, but also, importantly, in the criminal justice process. A 2010 World Bank report states that –
“paralegal services should be viewed as especially necessary in sub-Saharan Africa because of the poor extent of access to justice available to most Africans.
In systems suffering from high prisoner remand populations and extensive court delays, there can be little or no case for bolstering the private legal profession or even the government public defender offices while the more urgent need for paralegal services is neglected. Paralegals should be viewed as a priority in building credible systems of justice in Africa.”
According to the December 2012 SA Crime Quarterly, international legal and regulatory frameworks have supported the existence of paralegals as service providers in the criminal justice process since 2004. The Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africaprovides that the delivery of effective legal aid to the maximum number of persons must rely on paralegals.
The Lilongwe Declaration and its associated Plan of Actionwere adopted by the African Commission on Human and Peoples’ Rights in 2006 and by the UN Economic and Social Council (ECOSOC) in 2007. The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems urge states to recognise the role played byparalegals inproviding legal aid services.
According to the UN Principles states should, in consultation with civil society, justice agencies and professional associations,introduce measures to develop a nationwidescheme of paralegal services with standardisedtraining curricula and accreditation schemes. States must also ensure that quality standards for paralegalservices are set and that paralegals receiveadequate training and operate under thesupervision of qualified lawyers. States are encouraged to ensure access for accredited paralegals who areassigned to provide legal aid to police stations,facilities of detention, pre-trial detentioncentres and prisons and toallow court-accredited and duly trainedparalegals to participate in court proceedings.
Dugard and Drage argue, in their article published in 2013, that –
“Although post-Apartheid constitutional reforms guaranteed a broad range of rights and benefits to all South Africans, including the right to legal assistance, accessing many of these benefits remains a challenge for those who live in remote areas and those who cannot afford legal representation.
Community-based paralegals fill this gap by providing dispute resolution and legal support that is both geographically and financially accessible and informed by a deep understanding of the social issues and everyday challenges facing their clients. Despite the prevalence and importance of paralegals in the South African justice sector, their role remains largely under-formalized and understudied.”
They argue that without formal regulation or recognition, paralegals working in community advice offices face, what they describe as “the twin problems of insufficient funding and inadequate training.”
These problems often prevent paralegals from taking on more strategic, proactive empowerment on behalf of the communities they serve.
These are some of the very vital aspects which will need to be discussed and debated in greater detail when we embark on the process of creating specific legislation for paralegals.
And there are other important considerations too, for example a report by the Wits Justice Project states that the paralegal landscape is undefined and the definition of a paralegal is broad, compared to other countries.
South Africa has a varied practitioner group, that all identify themselves as paralegals. This raises the question of who is a paralegal? Is a person who might not have a formal qualification, but is doing invaluable work within a community a paralegal or not?
There is the issue of accountability. For example, who ensures that a paralegal gives reliable advice? How are the public going to hold paralegals accountable to the advice they give communities? And where do clients go to complain if a paralegal has rendered a bad service?
These are all issues that need to be addressed in the very near future, if we envisage drafting specific legislation for the paralegal profession.
Ladies and gentlemen,
I wish you a very successful conference. I think what is important for all of us here today, practitioners, academics, civil society and us in government, is the question of how do we enhance and strengthen the position of paralegals.
Paralegals provide vital access to justice services and legal redress in our country. Having one of the most progressive Constitutions in the world means very little to communities if they are unaware of their rights or unaware of where to go for assistance in exercising these rights.
Every single paralegal in our country is able to better the human condition of others. They are skilled and able to assist in human rights struggles within their communities. They can make justice a reality.
I thank you.