Legal Practice Bill: Oral Submissions from National Alliance for the Development of Community Advice Offices (NADCAO) and National Task Team on Community Based Paralegals
Ms Nomboniso Maqubela, Interim Director, National Alliance for Development of Community Advice Offices (NADCAO), noted that there were about 320 community-based advice offices in the country, mostly run by around 500 community based paralegals, who were providing legal advice, information and services to communities. There was a referral network - particularly with Legal Aid South Africa - who had processed about 1 500 cases last year. These advice offices were therefore an integral part of the justice system.
Mr Seth Mnguni, Spokesperson for the Task Team on Community Based Paralegals, gave a board overview of who the paralegals were, and how they were associated with alternative dispute resolution (ADR). This system originated in traditional communities, but, over time, became less used by urban communities, until a time when people had lost trust in the state machinery and reverted back to community structures. These structures had been particularly important in the apartheid years, taking up matters such as forced removals, detention without trial, family and neighborhood disputes and other social issues. They also served as information centres. However, since it was recognised that community structures may be used as a springboard for self-interest if not regulated, an Advice Centre Association was formed in 1983 to coordinate the advice offices. In the run up to the democratic elections, this had mediated disputes between political organisations, such as the conflicts between IFP and ANC, to try to help the structures to help each other.
After 1994, paralegals across the country met to discuss their future role in the new dispensation and decided that the role of the Community Advice Offices (CAOs) was even more relevant to build a democratic society, complement government's work and ensure that the democracy was vibrant and participatory and to give life to the Constitution. In 1996 the national structure – National Community-Based Paralegal Association (NCBPA) was formed to take it forward. Numerous positive discussions with government resulted in recognition by government that the role of these offices was indeed important. The Legal Services Charter was drawn. The Association however was forced to close after 2005 because its sole funder, the ICJ, had changed focus. However, in 2012, after numerous consultative meetings, provincial leadership met and a decision was taken to form the Association of Community Advice Offices of South Africa (ACAOSA) to self-regulate. This would be officially launched in December 2013.
The request today was the same as that made to Dr Dullah Omar, then Minister of Justice, when the Legal Practice Bill was first drafted. The Association was asking for recognition and regulation of community-based paralegals. It was happy to hear of government wanting to "partner" with civil society and asked for the formalisation of the partnership. Secondly, it wanted government and its partners to invest in the scale-up of community based advice offices, to ensure that all citizens deserved access to primary justice services. Thirdly, state recognition should not entail state control, and the role of paralegals should not be hindered.
Adv Anil Naidoo, Technical Adviser to the two organisations, emphasised that the submission was made on behalf of community-based paralegals who were working in advice offices. In the Western Cape alone, more than 8 000 cases were reported in 2008 by the advice offices. Black Sash had a similar number of cases in 2011, and one paralegal organisation, Community Law and Rural Development Centre in KwaZulu Natal (KZN) had managed to obtain, for its rural clients in the most remote areas, R4.5 million due to them, which clearly demonstrated the value that paralegals brought to the formal justice sector.
When the organisations engaged with the DOJ&CD on this latest draft of the Bill, it was told that a decision had been taken to settle the regulation of legal practitioners first, before addressing a framework for paralegals. There had been an earlier commitment by the Department, as mentioned, to establish a separate legislative framework for paralegals, but it had not emerged. This was a significant set-back, and it had required the groups to rethink their strategy, which was part of the reason for now approaching Parliament.
He noted that there was growing recognition of the role of community based paralegals in the justice system across the world. Sierra Leone specifically provided for them to complement legal-based services and Malawi recognised them also. In Zimbabwe, the Labour Court had agreed that a right of appearance be afforded to paralegals and the Council for Education had agreed to set up a formal course for them. Overseas, several countries were encouraging the development of curricula, accreditation and recognition. He emphasised again that community-based paralegals and advice offices had a prime role to play in enhancing access to justice for the poor. Far from being in competition with attorneys, they worked carefully with them, referring carefully screened and assessed matters for litigation to the firms. Nine out of ten matters that were referred in this way, on a contingency basis, were successfully pursued, with party and party costs being awarded and many rural practices in South Africa relied heavily on these kinds of arrangements.
In conclusion, Adv Naidoo noted that creating a completely separate framework for paralegals would set them apart from the mainstream sector, but this would be against the spirit of the Bill, which aimed to bring the professions together. The present Minister had described the Bill as a landmark in improving access to justice for the poor, but it was difficult to see how this could happen without community based offices, staffed by recognised paralegals. By giving recognition, responsibility and duties to community based paralegals, in line with policy intentions, access to justice and unification of the legal profession would be promoted.
Discussion
Ms L Adams(COPE) asked if there were any set qualifications for the paralegals at present.
Ms Schäfer believed that community-based paralegals did perform a valuable service but did not understand why it was felt that it was so essential to include them now in the Bill. They had been functioning without being legislated for in the past, and she also enquired whether there would be an objection to having separate legislation for paralegals alone. They could not consider themselves in the same category as attorneys and advocates. She also wanted to know if there was any body monitoring and controlling standards and ethics, whether there was any disciplinary function, and shared Ms Adams’ concerns about qualifications.
Ms Smuts also wanted to know more about the qualifications. She pointed out that a Deputy Judge President, Mr Mojapelo, had expressed concern that even graduates with LLB degrees were not properly trained to represent the interests of clients and it was entirely relevant to know what qualifications were contemplated.
Ms Smuts understood that one of the main factors behind calling for recognition related to funding.
Ms Schäfer also noted the comment that the body wished to be sustainable and she asked how exactly it envisaged that funding would be given. That would have huge implications for the Bill, and this was one reason why it would be very difficult to incorporate the paralegals into the Bill now. The other professions could not be expected to fund.
Ms Smuts, like her colleagues, recognised that community-based offices played an invaluable role. She was interested in the comment about many rural firms depending on relationships and referrals from paralegals, and wondered if any numbers could be given in support of this statement, and where such firms might be based. NADCAO seemed to represent only about 230 organisations with about 500 paralegals, and she would be interested to know how many firms of attorneys were also involved, because it was very important to consider their role when discussing the Bill.
Mr Jeffery also stressed that he was fully supportive of the concept of community based advice offices and paralegals, and he thought that regulation was needed. However, he pointed out that, from a practical standpoint, it would be very difficult to add anything into the current Bill, at this stage. He recognised that all branches of the profession had waited almost twenty years for this Bill, and it was true that initially, it was intended that the paralegals be included. The public hearings on the Bill had been held back in the hope that the attorneys and advocates’ professions would find common ground. He explained the technicality of this Bill needing to be brought before both Houses, and stressed that there was a firm intention to pass it this year. He suggested that the Committee could consider adopting a Report that emphasised the need to address paralegal recognition, and perhaps that required the Minister of Justice to report to Parliament, by a certain date, about progress, to keep up the pressure.
Mr Jeffery also made the point that the effect of legislation would be the same, no matter where the clauses appeared. He fully understood the desire for recognition for paralegals to be included in the Legal Practice Bill, but pointed out that it was still possible to pass that Bill in its present form, and then amend it by passing a later amendment Bill that would insert a chapter dealing with paralegals. The fact that the current Bill was at a certain stage would not preclude paralegals for all time from being recognised under the final Act.
Mr Jeffery noted Ms Schäfer’s question on discipline and ethics, and said that a community paralegal might be a person with substantial legal knowledge, or simply an activist, and he noted that regulation was needed because people could purport to be attorneys or advocates, and charge money to the poor. He asked how far the organisation had gone with discussion around this point, and presumed that considerable engagement would be needed with paralegal bodies and advice offices to see how this would work.
Ms Pilane-Majake also acknowledged the good work done by advice offices, particularly in mediation which was often better understood by communities, and that was perhaps where paralegals would find their niche. She agreed that regulation and formalisation were important points. However, she also noted that this required certain broad principles to be settled, which should be done by the organisations themselves. In the submission, paragraphs 4.3 and 4.9 really dealt with the work necessary on structures, skills, accreditation and other issues and she suggested that the organisation should craft preferred wording and submit it to the Department for refining and incorporating into legislation. At the moment, there was no set definition of who would be a paralegal.
The Chairperson added his voice to recognition of the outstanding work of advice offices. He wanted to comment, in particular, upon the funding. The submission had clearly stated that the paralegals wanted to remain independent. However, it was suggested that the State be asked to wholly subsidise the costs. He assured NADCAO that if it were to accept state funding, its independence would be severely constrained, and urged it to think the request through very carefully. The state would not simply give money and not expect the organisation to come and account to Parliament - and that would extend to this Committee questioning the organisation about the cases that its members were taking on. He would hate to see community-based organisations’ excellent work come to a halt through linking them to state bodies. He noted the argument that these offices in fact attended to work that should be done by the state, but this was “the hard truth”.
Ms Maqubela first responded to questions on qualifications, noting that a diploma course was offered by the Universities of KZN, and of Free State. It was correct that NADCAO was asking for formal recognition and regulation, and she pointed out again that it had not departed from its original requests made some ten years ago, when it was accepted by the DOJ&CD that there was indeed space for the paralegal recognition, but the question was why the clauses dealing with this did not appear in the current Bill. NADCAO was asking for them to be reinstated.
Ms Maqubela heard the comments on funding, and confirmed that indeed this was one of the considerations. There were other countries where the type of model suggested in the submission had worked, and it was stressed that funding should not buy dependence, but should be regarded as a way to enable the provision of services. There was a need to find collaborative ways of working and funding that would in fact not impinge on independence. Communities were affected by advice offices and EU was putting money into them, but the real question was why this money should come from overseas instead of from the South African government, who well knew how hard-fought democracy had been. There was a need to think collaboratively about the impact of the work of advice offices, how they augmented the state’s ability to deliver services, and how funding could be better shared.
Ms Maqubela similarly noted the points about a separate bill for paralegals, and said that she had discussed this already with Mr Bassett, but NADCAO was not yet fully convinced on the matter, and wanted to know exactly what it would have to do if there was further clarification required on any point. She stressed that in fact communities were at the heart of government, and would welcome any suggestions that could advance the work of community advice offices.
Ms Maqubela also agreed fully on the need for regulation and confirmed that there were some unscrupulous people sitting around the courts, taking money illegally from the poor, and this trend would continue if the sector was not regulated. NADCAO was essentially appealing to the Committee to help with this.
Adv Naidoo said it was difficult to answer the questions on the numbers of attorneys’ firms, because a national baseline survey had not ever been done on the characteristics of advice offices and community-based paralegals, but NADCAO had been in discussion with National Treasury to try to bring more empirical evidence to the fore. In KZN, especially in the Midlands, he knew that there were a number of attorneys’ firms that were dependent on arrangement with paralegals.
Adv Naidoo said that the submission was only partly to do with funding, because even if the paralegals were completely funded and sustainable, they would still like to be formally recognised and regulated. Sustainability went beyond finances, and covered training and accreditation. He reminded Members of his earlier comments on the value of the community-based offices to rural communities and said that if they were not in existence, he doubted that the DOJ&CD or the state could absorb the cases, and the lack of access to justice would have a negative impact on the justice sector. He argued again that if the clauses about the recognition of paralegals had been accepted for previous drafts, it should not be difficult to create them again.
Ms Maqubela said that when the previous entity had had to close, for lack of funding, NADCAO was formed and it had essentially picked up on the same services, including driving the regulation and ethics of the sector. Provincial offices had been taken to task and some offices had been asked to close down, or their members were expelled, if they failed to honour the correct standards. Self-regulation was working at the advice offices.
Mr Mnguni agreed with Mr Jeffery’s point that “unofficial paralegals” were operating, and the request for regulation was intended to control that. The advice offices gave a free service, picking up on the constitutional obligations of government to give access to justice to the indigent. However, there were other unscrupulous people who were charging money and the advice offices could do nothing to stop that because they were not recognised formally. Although not every aspect of regulation may not be settled now, the principle was clearly that regulation was needed.
The Chairperson assured the entities that their pleas had been heard, but because of practical considerations, given the stage that the Bill had already reached, it would be best to look at crafting another piece of legislation to deal with the community advice offices.
Ms Pilane-Majake asked if the offices were engaging with the Department of Justice.
Ms Maqubela replied that they had had conversations.