DRAFT FOR DISCUSSION
2nd DRAFT
LEGAL SERVICES CHARTER
JULY 2007
PREPARED BY THE FOCUS WORKING GROUP OF THE LEGAL SERVICES CHARTER
TABLE OF CONTENTS
FOREWORD BY THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
To be inserted later.
CHAPTER ONE
1.PREAMBLE[c1]
Recognising the injustices of the past, the accumulated disadvantages suffered by historically disadvantaged individuals, communities and social groups on the one hand, and the accumulated advantages by the historically advantaged on the other hand;
Whereas recognition of the inherent dignity and of equal and inalienable rights of all members of the human family is the foundation upon which civilised society pursues its quest for freedom, justiceand equality;
Whereas the attainment of these rights has for so long been denied, impeded and frustrated for the majority of the people of South Africa by the policies of apartheid and racial segregation by successive Government;
Whereas significant progress has been made in restructuring and transforming our society and its institutions, systemic inequalities and unfair discrimination remain deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy;
Whereas the Constitution enjoins government to promote the achievement of equality through legislation and other measures designed to protect or advance persons, or categories of persons, historically disadvantaged by unfair discrimination; and
Whereas the Constitution dictates that all constitutional obligations must be performed diligently and without delay;
Whereas the State has a duty and responsibility to promote and achieve equality, and where necessary or appropriate with the assistance of relevant constitutional institutions to develop codes of practice or other measures and implement programmes aimed at promoting equality, and provide advice, assistance and training on issues of equality;
Recognising that an independent and representative judiciary depends upon a strong, independent and representative legal services sector;
Whereas the Charter endeavours to facilitate a democratic society, united in its diversity dedicated to secure to all its citizens—
- Justice, economic, social and political; and
- Equality,of status and opportunity;
NOW THEREFORE the people of the Republic of South Africa, Government and the stakeholders in the legal services sector adopt this Charter to be a binding and guiding principle to eradicate the inequalities of the past perpetuated by the policies of apartheid and racial segregation.
2.DEFINITIONS AND INTERPRETATION
In this Charter, unless the context indicates a contrary intention, the following words shall have the meaning ascribed to them:
“access to justice” includes having the capacity and means to obtain and use affordable and responsive legal services in South Africa in a manner that is fair and equitable;
“access to the legal profession” means opportunity to qualify and practise in any field of law, including but not limited academia and the judiciary;
“access to legal work” means access to opportunity to sell one’s legal services such as legal advice, litigation services, legal drafting and legislative policy, and includes access to state legal briefs and other contracts;
“access to legal services” includes the provision of legal advise or services intended to benefit any individual, community, group or organisation which is disempowered financially, socially or by any other means;
“BEE Act” means the Broad-Based Black Economic Empowerment Act, 2003 (Act 53 of 2003);
“black people” is a generic term which includes Africans, Coloureds and Indians;
“black person” has a corresponding meaning with black people;
“broad-based black economic empowerment” means the economic empowerment of all black people including women, workers, youth, people with disabilities and people living in rural areas through diverse but integrated socio-economic strategies that include, but are not limited to—
(a)increasing the number of black people that manage, own and control enterprises and productive assets;
(b)facilitating ownership and management of enterprises and productive assets by communities, workers, cooperatives and other collective enterprises;
(c)human resource and skills development;
(d)achieving equitable representation in all occupational categories and levels in the workforce;
(e)preferential procurement; and
(f)investment in enterprises that are owned or managed by black people; (definition from BEE Act);
“Cabinet” means the Cabinet of the Republic of South Africa;
“Charter” means the Legal Services Charter;
“company” means an enterprise registered in terms of the Companies Act, 1973 (Act 61 of 1973), close corporations, trusts and any other such enterprise formed for business purposes, a legal entity registered in accordance with the laws of the Republic of South Africa for the purpose of conducting business;
“consumer” means any person who seeks or utilises any form of legal advice or service, and includes an individual, community, group or organisation which is disempowered financially, socially or by any other means;
“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996);
“control” includes the authority and power to manage assets, the direction of business operations, the right or the ability to direct or otherwise control the majority of the votes attaching to the shareholders’ issued shares, the right or ability to appoint or remove directors holding a majority of voting rights at meetings of the board of directors and the right to control the management of the enterprise, and to participate in equitable sharing of the profits;
“direct ownership” means ownership of an equity interest together with control over voting rights attaching to that equity interest;
“discrimination” means discrimination as defined in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000);
“employment equity” has the meaning ascribed to it in the Employment Equity Act, 1998, (Act 55 of 1998);
“Equality Act” means to the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000;
“enterprise development” means investment in, or development of or joint ventures with black owned or black empowered enterprises and SMMEs, with real economic benefit flowing to the recipient enterprise allowing it to be set up and run on a sustainable basis;
“equity” means the fair and rational distribution of an affordable package of quality legal services to the entire population of South Africa, ability to pay for such services and irrespective of their race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth; and ‘equitable’ has a corresponding meaning;
“fronting" means any entity, mechanism or structure established in order to circumvent the BEE requirements as required under various policy instruments and this Charter;
“Historically Disadvantaged Individual (HDI)” means black people, women and people with disabilities;
“lawyer” means any person with a legal degree and who is engaged in a legal career and is a member of a legal services sector, an attorney, advocate, or legal practitioner;
“Legal Services Charter Council” means a Council that is broadly inclusive of stakeholders in the legal services that is charged with monitoring, evaluating and enforcing the implementation of the charter;
“law firm” means a company, organisation, business enterprise, concern, partnership or corporation in the practice of the law;
“legal services” means any form of legal advice, or drafting of documents, or representation of any person that requires the expertise of a person trained in the practice of law;
“legal practitioner” means a person engaged in the provision of legal services including a paralegal[c2];
“Organised Legal Profession” means all Law Societies and Bar Councils;
“paralegal” means a person who has knowledge and understanding of the law, its procedures and its social context acquired through training, education, work experience and/or a national registered qualification in paralegal practice[c3];
“paralegal services” means provision of primary legal services to the general public, especially the poor, marginalised, indigent individuals, groups or community[c4].
“parties” mean parties to this Charter;
“pro bono” meansthe provision of legal services to poor, marginalized and indigent individuals, groups or community without a fee or expectation of compensation, in order to enhance access to justice for such people who cannot afford to pay for legal services;
“procurement” means procedures and expenditure, including capital expenditure, for the purpose of acquiring goods or services which, in the case of the public sector, are governed by legislation;
“public sector” means government departments, organs of state and institutions exercising a public power or performing a public function in terms of legislation;
“quality” in relation to legal services, means input of such a nature and applied in such a manner as to ensure optimum results within the available resources and the circumstances of each case, taking into account the constitutional rights of the consumer, including, but not limited to the rights to life, human dignity, freedom and security of the person, bodily and psychological integrity, freedom of religion, belief and opinion and privacy;
“skills development” means the process of enhancing individuals’ specialised capabilities in order to provide them with career advancement opportunities;
“State legal services” means legal services that are rendered within the state services;
“sustainability” means having a reasonable prospect of continued, successful existence in the present and the foreseeable future with regard to those critical success factors that define and affect the viability of a particular enterprise over time.
3.OBJECTIVES
To adopt a Charter which gives effect to the Constitution, the Equality Act and the BEE Act through facilitating transformation of the legal services sector and promoting empowerment of HDI’s so as to effect access to justice This includes:
3.1Enhancing access to justice for all the people of the Republic of South Africa by:
3.1.1Identifying the challenges relating to access to justice and outlining responsibilities and obligations of stakeholders in addressing those challenges.
3.1.2Devising measures relating to, amongst others, paralegal services, the pro bono work system, and the in forma pauperis system to improve access to universal and affordable legal services to all the people of South Africa, including the marginalized, poor and rural communities.
3.1.3Improving the quality of legal services by encouraging continuous and sustained programmes for skill enhancement, quality apprenticeship opportunities, and professional qualifications.
3.1.4Improving the quality of legal services by monitoring and evaluating the input, throughput and output of academic qualifications and apprenticeship of professional qualifications.
3.1.5Improving the regulation of legal services through the development of common ethical standards for all practitioners and the establishment of an effective complaints management system.
3.2Facilitating transformation of the legal services sector to be representative of the demography of the South African society by:
3.2.1Enabling the legal services sector and the provision of legal services broadly to
transform in line with the constitutional vision of the achievement of equality.
3.2.2Devising measures to address the disparities in legal services provision and eliminate barriers to equal opportunities.
3.2.3Addressing challenges of entry to the legal profession with specific emphasis on socio-economic challenges experienced by previously disadvantaged individuals.
3.2.4Achieving fundamental change in the racial and gender composition of the
judiciary.
3.2.5 Standardising legal training and education, including continued legal training.
3.2.5Ensuring that governance structures are unified, transformed, inclusive and have balanced representation with regard to race, gender, and disability.
3.2.6Creating an enabling environment through which the diversity of our society is affirmed and measures for reasonable accommodation and the promotion of equality and the prevention of discrimination are taken.
3.3Enabling empowerment of HDI’s to ensure equal participation of HDI’s in economic opportunities by:
3.3.1Effectively and meaningfully promoting the equitable distribution of legal work
with regard to race, gender and disability.
3.3.2Promoting and implementing skills development measures intended to empower
legal professionals, in particular HDIs, in fields of expertise where they
previously did not have access.
3.3.3Enhancing and promoting representivity in respect of ownership, management
and control of legal practises or enterprises by black legal practitioners, including
women, persons with disabilities and amongst rural communities.
3.3.4Creating conditions conducive to ensuring that HDI legal service providers are
able to start, manage and build sustainable practices or enterprises.
3.4Ensuring the effective governance, implementation and monitoring of the charter by establishing a Charter Council comprised of representatives form government, consumers and providers of legal services.
3.5Supporting the attainment of the objectives of, inter alia, the Employment Equity Act, BEE Act and other equality and equity laws.
4.SCOPE AND APPLICATION OF CHARTER
4.1This Charter shall apply to all persons engaged in the practice of law; the organised legal profession, all public and private institutions/bodies rendering legal services; and all private or public institutions/bodies and persons who consume legal services, including the State.
4.2In the event of one or more charters being applicable to persons or companies envisaged in 4.1, the provisions of the Legal Services Charter shall take precedent.
CHAPTER TWO
5. ACCESS TO JUSTICE
5.1OVERVIEW
5.2THE PRINCIPLE OF ACCESS TO JUSTICE
5.2.1The rule of law requires all persons to have access to justice. Section 34 of the Constitution guarantees everyone ‘the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or … tribunal’. Section 9 provides that everyone has the right to ‘equal protection and benefit of the law’ and may not be subject to unfair discrimination. Access to justice is a cornerstone of this Charter both in terms of the equal ability of persons to access and use legal services, including courts, and in terms of their equal treatment within these services and institutions.
5.2.2Access to justice envisages quality legal services. Quality legal services are provided by competent legal professionals, which are efficient, ethical, and cost effective, and which uphold the interests of justice and the rule of law. Quality legal services also require effective and efficient courts.
5.2.3Access to justice also envisages affordable legal services. No person should be denied justice because they are unable to afford it. People thus have the right of access to an adequate system of State funded legal services.
5.2.4All people seeking legal services/clients have the right to be treated with dignity and respect and without discrimination. They have the right of access of access to information on the availability of legal services. They have the right of access to a legal practitioner of their choice, [subject to available resources and the principle of transformation[c5].; to be informed of all matters related to the adjudication of their legal disputes, to have their matters dealt with in utmost good faith by legal practitioners, and to have any dispute with a legal practitioner dealt with absolute impartiality by appropriate regulatory bodies
5.3THE CONTEXT AND CHALLENGES
5.3.1The Charter seeks to address the following conditions and factors that undermine and prevent access to legal services, in particular for historically disadvantaged communities. The systemic social and economic inequality that characterises South African society has distorted the ability of persons to access courts and legal services, particularly on the basis of race, gender and disability. Socio-economic status and geographic location are also significant obstacles to people’s ability to access to justice.
5.3.2The ability to access legal services and courts is dependent upon affordability, knowledge of the different services and information about them, physical access and location, as well as the range of services that are available, the number and distribution of courts and legal practitioners and the responses of the providers of the services to those seeking access.
5.3.3Legal services are unevenly spread across the country, and tend to be clustered in urban areas, meaning that rural, peri-urban areas and townships are often under-serviced and the particular needs of their communities are not met. Where services are available, they are often limited to paralegal assistance or poorly resourced small legal firms. This compromises the quality of legal services for these groups. Although Legal Aid Board has significantly extended its reach through the expansion of Justice Centres, the services are not yet available to everyone who requires such services and the responsiveness of the services needs continuous improvement.
5.3.4There is generally a shortage in numbers and distribution of legal practitioners in the country. This particularly affects the provision of legal services in rural and historically black communities. Where these communities are served by small practices, the communities benefit from the reasonable fees that are charged. However this positive aspect is affected when smaller practices close down or are subsumed by bigger firms. This is primarily as a result of small practices not being able to access legal work. Paralegal practitioners, who play a significant role in expanding access to justice, are insufficiently recognised and regulated. They are also concentrated in metropolitan centres.
5.3.5While it is important to ensure that the legal profession is transformed, it is equally important to remember that the majority of South Africans cannot afford to pay for legal services, and many cannot afford to pay the level of fees charged. There remains an urgent need for a legal system that is able to provide legal services to all, and especially to poor and marginalised communities. This means the expansion and effective regulation of a range of services for people who cannot pay, or who cannot pay at the level charged. These services include the Legal Aid Board, pro bono work by legal practitioners, the in forma pauperis system and legal insurance.
5.3.6Access to courts is uneven. In general, courts are clustered in urban and peri-urban areas, and some courts, such as the Small Claims Courts are not available in many rural areas. Courts are also often inefficient, with huge case backlogs. Courts do not provide a quality service and the rules of court do not always facilitate access. [please develop]
5.3.7In general, persons who access legal services are not always provided a quality service and may be subject to discriminatory treatment by legal practitioners and other service providers. Disabled persons experience particular problems within the legal system. When discriminatory treatment is experienced, the avenues for redress are limited, difficult to access and lengthy. As a result, the public finds it difficult to achieve resolution for complaints of inferior services, or of discriminatory or unethical conduct.