Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at an International Conference on Access to Justice, Legal Costs and other interventions, hosted by the South African Law Reform Commission, held at the Garden Court Marine Parade, Durban, 1 November 2018
Yesterday, Chapter 2 – with the exclusion of section 14 – of the Legal Practice Act came into operation. Chapter 2 provides for the establishment, powers and functions of the Legal Practice Council.
Today, most of the remaining Chapters – pertaining to, amongst others, definitions, the regulation of legal practitioners, professional conduct and disciplinary bodies, the legal practitioners’ fidelity fund and the handling of trust monies - also came into effect.
The coming into operation of these sections bring with it a new era in the legal profession in our country.
The first purpose of the Act is to provide a legislative framework for the transformation and restructuring of the legal profession that embraces the values of the Constitution and ensures that the rule of law is upheld.
The second is to broaden access to justice by putting in place a mechanism to determine fees chargeable by legal practitioners for legal services rendered that are within reach of the public.
Ladies and Gentlemen,
I doubt if there is anyone here who will dispute that the amounts charged as fees put consulting private lawyers and access to the courts beyond the reach of the vast majority of South Africans.
Yes, we have Legal Aid South Africa which provides legal representation in criminal matters where substantial injustice would otherwise result, as well as limited access to civil law assistance (limited because of budget constraints) but this is only available to individuals who earn less than R5500 per month after tax or R6 000 in the case of a household.
A 2016 Review done by LexisNexis into the attorneys’ profession in South Africa found that 61% of salaried partners bill between R1000-R3000 per hour – that was in 2016, so one can assume that it has further increased since then.
If one breaks it down further, 25% of salaried partners billed between R2000 and R3000 per hour. And there are those who charge even more – with 4% charging between R3000 and R4000 per hour, another 3% charging between R4000 and R5000 per hour and 2% charging more than R5000 per hour.
So let’s imagine you are a worker earning R7000 per month after tax. This means your total monthly wage will give you 3 billable hours with a salaried partner.
This raises many issues. Is this fair? Is this what we mean by access to justice?
Legal costs are a significant barrier. In a recent study commissioned by the Department which was undertaken by the Human Sciences Research Council to assess the impact of the decisions of the apex courts on the transformation of society, the HSRC report states that costs are an essential issue in relation to access to justice in all legal matters.
Fifty nine percent of South African Social Attitudes Survey respondents in the most recent survey on courts in 2014 indicated that they felt that lack of funds to pay legal expenses were a significant barrier to accessing justice from the courts.
Although the Law Societies were empowered by legislation to prescribe the tariff of fees and costs for professional services, where no tariff is prescribed by legislation, a number of problems have emerged in the recent past about the legality of the fee guidelines issued by them, as well as the contingency fee agreements that do not comply with provisions of the Contingency Fees Act.
A number of cases have been brought before court in the past couple of years where it was evident that the professional fees and costs charged by certain legal practitioners are in excess of the limits prescribed in the Act.
Of note is the famous – or perhaps infamous - case of De La Guerre v Ronald Bobroff which upheld the law relating to the conclusion of contingency fee agreements strictly in terms of the Act.
Whilst the issue of the abuse of such agreements in matters relating to RAF claims was settled in the above case, we have now started to note an increase in the number of medical negligence claims, the majority of which are brought on the basis of contingency fee agreements.
This is why Parliament, when considering the Legal Practice Bill, made provision for the South African Law Reform Commission to investigate and report back to the Minister of Justice within two years after the commencement of Chapter 2 of the Act – this would mean two years from now - with recommendations on:
- the manner in which to address the circumstances giving rise to legal fees that are unattainable for most people;
- legislative and other interventions in order to improve access to justice by members of the public;
- the desirability of establishing a mechanism which will be responsible for determining fees and tariffs payable to legal practitioners;
- the desirability of allowing clients to opt out of these provisions and pay the practitioner more or less, and
- lastly, the obligation by a legal practitioner to conclude a mandatory fee arrangement with a client.
We are pleased that the SA Law Reform Commission did not wait for these sections of the Act to come into effect and has proactively convened this conference on legal costs and related matters.
We accept that the issues, from the perspective of legal practitioners, are complex.
When we look at the legal profession itself we see a similar scenario as in broader society – at the top end, there are practitioners making huge sums of money, whilst at the other end there are practitioners who are battling to keep afloat and struggling to pay overheads and keep their practices going.
This is also linked to established practitioners charging huge amounts. For example, having to pay a legal practitioner R120 000 to read a book or R7 million to investigate corruption in a municipal metro - whilst those practitioners who are still trying to establish themselves, charge a lot less.
We need to take note of the fact that South Africa does not have enough legal practitioners to service the population if you look at comparisons with other countries.
Last year, countrywide, we had 25 283 practising attorneys and 2915 advocates at the Bar. This gives us a total of just over 28 000 practising legal professionals.
This may seem like a lot – but consider the fact that 28 000 legal practitioners have to render services to a country with a population of 55,7 million people. That means that there’s just under 2000 people to 1 practising legal professional.
If we look internationally we note that our ratio is much higher than other countries. The New Zealand Law Society’s magazine LawTalk says that New Zealand has a ratio of 1 lawyer to every 372 New Zealanders. The United States’ ratio is 1 lawyer for every 256 people.
And if we look at one of our BRICS partners, Brazil, their ratio is one lawyer for every 316.
We compare badly to the rest of the world as our ratio of 1: 1989 is very high. And this might explain why many people in our country do not have adequate access to legal services. However, we cannot have more lawyers in South Africa unless they can have an income.
The issue of high legal costs so concerned Parliament that it put in interim arrangements in the LPA to assist the public by providing that, until the SA Law Reform Commission investigation is completed, fees must be in accordance with tariffs set by the Rules Board for Courts of Law – the Rules Board being the statutory authority that make rules for all court procedures as well as set tariffs for fees in litigation.
This would have entailed the Rules Board setting tariffs for non-litigious work.
Unfortunately, the Rules Board has requested that this should only be done once the SALRC has completed its investigation, so that it does not have to second guess, investigate or deal with similar issues that the SALRC will deal with.
But this was clearly not the intention of Parliament in inserting section 35(1) in the Bill.
It had wanted some form of immediate interim relief for the public. As these concerns were only raised recently, the Minister agreed that these sections should not come into effect for the moment, but we cannot have the status quo continuing for a further two years. If needs be, we need to engage further on the issue.
We are, nonetheless, appreciative of the fact that the Rules Board is addressing the issue of tariffs for advocates who are currently not subjected to tariffs at all.
The Rules Board has recently sent out, for comment, draft tariffs which it intends introducing in respect of advocates’ fees - in terms of Uniform rule 69 - that may be claimed under taxation. Once these tariffs are determined, it will assist the public in knowing upfront what fees can be claimed in litigation when the bill is taxed.
On the issue of fee estimates, some members of the profession have raised concerns, saying that the estimates are not practical. Once again, these concerns were only raised recently – even though the Act was assented to 4 years ago.
The relevant section has not been put into effect as yet, but we need to urgently address the concerns and address Parliaments’ objective that a client must have some idea as to how much litigation will cost them when they approach an attorney.
From Government’s side we have put other measures in place to make the cost of justice more accessible.
The establishment of Small Claims Courts, with at least one in each magisterial district and sub-districts in South Africa, is a major step forward in terms of enhancing access to justice. The aim of the small claims system is to improve access to justice and make civil justice inexpensive and accessible to those who cannot afford litigation in the ordinary civil courts and whose claims do not exceed R15 000. These courts are used to settle minor civil disputes and claims between parties without representation by a legal practitioner, in an informal manner.
The monetary jurisdiction of the Small Claims Courts is increased on a regular basis, informed by discussions with relevant role players. The aim is to resolve civil disputes in a quick and affordable manner. There are presently 422 Small Claims Courts country-wide and 30 additional places of sitting.
The Department of Justice and Constitutional Development embarked upon a project to introduce mediation at the courts to assist people to settle their disputes in a way which is more user-friendly and cost-effective than litigation. The purpose of this new initiative was to make justice more accessible in the civil and family courts as part of a larger Civil Justice Reform Project.
The implementation of the Mediation Rules has brought fundamental reforms to the South African civil justice system. Court-annexed mediation provides a less intimidating process in which parties can explore a range of options and have control of the decision of their case.
It also provides an opportunity for disputants to express their views without fear that their legal rights will be comprised or their relationships jeopardised by dispute resolution. The mediators are guided by a strict code of ethics which include confidentiality both in respect of the parties and mediation.
Early settlement of civil disputes has the potential of averting huge costs in instances where legal proceedings had not commenced or a significant reduction of costs where the mediated settlement was achieved during the instituted court proceedings. Mediation therefore has a positive outcome in any dispute - before it reaches the court or when already in court.
Another vehicle to assist communities in the attainment and protection of their human rights is Community Advice Offices (CAOs). These offices are small, non-profit organisations that offer free legal and human rights information, advice and services.
In addition to rights-based information, CAOs educate communities on how and where to access services offered by government departments and agencies. Today community advice offices provide services that contribute to social justice and facilitate access to government services for the poor and marginalised.
Community-based paralegals working within these offices provide the support and front-line assistance to many who do not have the means to access other forms of legal services. Over the years, CAOs have provided much needed services to millions of poor and marginalised South Africans.
We are pleased that the SALRC has included a session on community legal services in the programme. As Government, we are very mindful of the need to provide for statutory regulation of paralegals as well as tackling the issue of sustainable funding for CAOs.
We need to recognise the two broad competing interests at play – the desire of the profession to make a reasonable income and the need for South Africans to be able to access justice.
I would caution that, in its consultations, the SALRC does not prioritise the profession over the public – almost like asking the turkeys to be the authoritative voice on what should be on the table for Christmas dinner, whilst ignoring the impact of the decision on the geese, chickens and pigs.
One can understand that many legal practitioners will not be enthusiastic about their ability to make money being restricted in any way. For example, we know that professional bodies have opposed measures such as the limitations on the use of attorneys and advocates in the CCMA and the Road Accident Fund.
Attorneys also objected to provisions for paralegals in the Legal Practice Act and that matter has been referred to the Legal Practice Council to, 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.
In some instances, attorneys in small towns were not keen on the establishment of a small claims court in the town, fearing that it would deprive them of their bread and butter income.
Let me also add that, with regard to paralegals, our Department is working on legislation for paralegals who work on a voluntary basis in Community-based Advice Offices. This narrowed focus is as a result of initial research being conducted and it being found that paralegals fall into many categories, many employed in different sectors of the economy, and others serving in CAO’s without remuneration.
The new Bill should provide for a regulatory body that would, inter alia, deal with matters such as regulation, discipline and the registration of CAOs and community-based paralegals (CBPs), the requirements to operate a CAO, and finally requirements to practise as a CBP, including the necessary qualifications.
We are hoping that the impact of the LPA will be two-fold: to help the profession, by making it more efficient and transformed, and to also help the public be able to access quality and affordable legal services.
Government continues developing and implementing policies that bring about improved access to justice and making people aware of their rights.
As much as our Constitution has been lauded across the globe as being a highly progressive and transformative one, a progressive Constitution alone will not realise rights if the people living within our country either are not made aware of their rights, nor have the means to access their rights.
These are all issues which need to be discussed at this conference. These are not simple matters, but matters that will require to be debated and deliberated upon at length.
In the novel Lorna Doone, the issue of the meaning of curia vult advisari is raised and the author RD Blackmore writes -
“Curia vult advisari,’ as the lawyers say; [which] means, ‘Let us have another glass, and then we can think about it.'”
So whether we discuss these issues in our sessions over the next two days or whether we find other avenue to debate it, these are all matters which are crucial to access to justice – and therefore we must find solutions.I thank you.