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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP at the South African University Law Clinics Association (SAULCA) Workshop 2019, held at The Venue Country Hotel, Pelindaba Road, Broederstroom, 18 November 2019

Programme Director,
President and Members of SAULCA’s Executive Committee,
Members of academia,
Members of the legal profession,
Ladies and gentlemen, friends

Professor McQuoid-Mason of the University of KwaZulu-Natal, writing about law clinics at African universities, says that the provision of legal services and access to justice - while at the same time teaching law students’ practical skills - has been the driving force for the establishment of university law clinics in most African countries.

He also argues that universities in Africa are, and I quote, “often surrounded by a sea of poverty and cannot afford the luxury of running purely simulated clinical legal education programmes as is sometimes done in the developed world.”

Poverty, unemployment and inequality remain an existential threat to the rule of law in our country. In 2018 the Foundation for Human Rights undertook a Baseline Survey on Constitutional Awareness and found that higher levels of poverty are associated with lower levels of awareness of the Constitution and the Bill of Rights.
At the heart of any discussion about access to justice lies the realisation that access to constitutional rights is not enjoyed equally by all. 
Very few people can afford the fees of private legal practitioners or they live in rural or deep rural areas where law firms or other bodies offering legal services are not present or easily accessible.
This results in a very real lack of access to justice for vulnerable and marginalised people.

University law clinics are an essential part of making access to justice a reality in our country.
Through the provision of free legal services to indigent communities and the practical legal education of senior law students and candidate attorneys, law clinics contribute to ensuring access to justice and in fostering public confidence in the law and the administration of justice.

The Legal Practice Act, 2014, recognizes law clinics and regulates them, to some extent, by way of section 34(8).
I’ve therefore been asked to deal specifically with two issues: firstly, whether legal practitioners under the Legal Practice Act should offer pro bono work and whether University Law Clinics should be exempt from operating trust accounts.

On the first issue, namely pro bono work, the Legal Practice Act does not refer to “pro bono work” but uses the term “community service”.
Section 29 of the Act provides that community service may be a part of practical vocational training or a requirement for the continued enrolment as a legal practitioner.
The details thereof, such as the duration of such service, the places where such service must be rendered and all other requirements, must be prescribed by regulations, to be made by the Minister after consultation with the Legal Practice Council. Section 3(b)(ii) of the Act lists, as a purpose of the Act, to broaden access to justice by putting in place measures to provide for the rendering of community service by candidate legal practitioners and practicing legal practitioners. During the legislative process the Portfolio Committee on Justice and Correctional Services discussed this provision at length.

The transformational aspect of compulsory service is important. The idea of including community service in the university LLB curriculum was considered, but was rejected by the Portfolio Committee, so as not to infringe on academic freedom. However, in terms of section 6(5)(b) of the Act, the Legal Practice Council may advise the Council on Higher Education, established in terms of the Higher Education Act, regarding matters relevant to education in law, including the desirability of including in the LLB curriculum a form of community service to be undertaken by all law students.

Some sentiments expressed during the Parliamentary debates on community service deserve mention and should be borne in mind when shaping the development of a well-functioning and meaningful community service regime.  Most members of the Parliamentary Committees were in agreement that, whilst there should be compulsory community service for practicing legal practitioners and candidate legal practitioners, this, particularly in the case of practicing legal practitioners, should not place a burden on them and impact negatively on their practices, especially attorneys in one-person practices. Community service should rather be seen as an important way in which practitioners can give back to society, as community service provides a vehicle to serve the needs of the community.

It was agreed that the provision in the Bill dealing with the rendering of community service should set out, in broad terms, the need for compulsory community service, but should leave the detail for later, which detail must be fleshed out in regulations, to be made by the Minister after consultation with the Legal Practice Council. The advantages of compulsory community service to society are evident. It will enhance access to legal services, one of the objects of the Act. Practitioners would also be sensitized to the needs of the indigent, especially in rural areas where access to legal services is particularly lacking.

To date there has been no primary legislative framework in respect of community service.
Under the rules made by the former law societies in terms of the (repealed) Attorneys Act, 1979, attorneys were compelled to do 24 hours pro bono service per year at structures recognised by the law societies. This included service at the office of the Registrars of the High Court when issuing in forma pauperis instructions, at small claims courts, at community advice offices, at university law clinics, at non-government organisations, at the office of the Inspectorate of Prisons and at circle and specialist committees of the law societies. Non-compliance was considered to be unprofessional conduct. There were no similar obligations for candidate attorneys. 

It should also be noted that pro bono service and community service are distinct from each other.  
The policy considerations must be dealt with in a consultative manner to bring in all relevant stakeholders.
In order to initiate the processes which will culminate in the full application of section 29, the Minister has requested several stakeholders’ views and proposals, including that of SAULCA.
The Executive Dean of the Faculty of Law of the University of Johannesburg has submitted comments to the Minister, which are appreciated. Draft regulations are being developed and will be submitted for comment in due course.

With regards to the second issue,  pertaining to University Law Clinics’ exemption from operating trust accounts, section 84(1) of the Act sets out who must possess Fidelity Fund certificates, namely every practicing attorney or any advocate referred to in section 34(2)(b) of the Act.  Section 84(1), however, exempts legal practitioners in the full-time employment of the South African Human Rights Commission or the State as a state attorney or state advocate from having to obtain a Fidelity Fund certificate.  Section 84(7) of the Act exempts a legal practitioner who practices as such in the full-time employment of Legal Aid South Africa. 

Previously, attorneys who worked at university law clinics were exempted by the former law societies from having to obtain a Fidelity Fund certificate, as required by the (now repealed) Attorneys Act, 1979.  The reason for this is because it is not possible to keep trust accounts in a university financial and banking environment. 
There are also cost implications in the keeping and auditing of trust accounts that will impact negatively on the crucial services offered by law clinics. 
It is important to note that section 34(8)(c) of the Act provides that legal services rendered by a law clinic must, among others, be rendered free of charge, except that they may recover any amounts actually disbursed on behalf of their clients.  Section 92 of the Act allows for the recovery of costs by legal practitioners who render free legal services.  In the case of university law clinics these moneys are deposited in the university’s bank account. 

Another aspect which I’ve not been asked to address specifically, but might be of interest are current developments around the regulation of the Community Advice Office sector and the regulation of community-based paralegals. In this regard, we are currently working on a draft Policy Paper which will be presented at a national consultative workshop for the CAO sector and other stakeholders and will be followed by a White Paper. We know that SAULCA also supports a number of CAOs with technical expertise and funding and some law clinics provide support, training and back-up legal services to CAOs in their respective provinces. We are of the view that, in light of CAOs’ positive contribution to access to justice in South Africa and in order to address the challenges they are facing, consideration should be given to the CAO sector and community-based paralegals being regulated in terms of legislation.
However, our thinking at this stage of the process, is that paralegals working at the University Law Clinics should not be the subject of the future legislation for a number of reasons.

Programme Director,
University law clinics are essential to ensure access to justice and democracy.
Prof McQuoid-Mason writes that university law clinics began developing in South Africa, Zimbabwe, Ethiopia, Tanzania and Uganda during the 1970's, in Botswana and Nigeria in the 1980's, in Kenya in the 1990's, and in Lesotho, Zambia, Mozambique, Malawi, Rwanda and Sierra Leone during the 21st century.
Most South African law clinics began as general practice clinics and many still do general practice work, but since 1994, the types of law problems that arise now involve constitutional issues.
This has led to a number of law clinics having specific and specialist programs and he mentions, as an example, the University of KwaZulu-Natal’s law clinic which specializes in problems concerning women and children, social justice and HIV/AIDS.

If one looks at the general services rendered by all law clinics, one notices that these are issues which affect peoples’ lives in a very real and direct way – for example, basic civil claims, including money claims, defamation matters, motor vehicle accidents, civil assault claims, claims against the State, eviction matters, the drafting of Wills (but excluding the Administration of Estates), divorces and family law, including custody and children’s court matters, domestic matters and maintenance matters.

I’m also advised that some clinics have also expanded their services to also include criminal law matters, labour law matters, debt counselling matters and refugee law matters.
A very important aspect of the services of Law Clinics is that they assist with Clinical Legal Education. In this way, students also provide additional access to justice to the public by assisting poor and vulnerable members of society - over and above those who are assisted by the professional attorneys and candidate attorneys.

Some recent areas where law clinics are offering assistance are areas which affect the most vulnerable in our society in real and meaningful ways – for example, I’m told that the law clinic at Wits is helping those trapped in fraudulent marriages and who are unable to reverse such marriages. The Wits Law Clinic has said it has seen an increase in the number of victims whose lives have been destroyed by this issue.

I also read that the Stellenbosch University law clinic has filed papers in the Western Cape High Court in a proposed class-action lawsuit against more than a dozen online loan companies.
The companies have allegedly misled thousands of consumers into entering into agreements.
Consumers would go onto websites of companies which create an impression that they are there to give people loans or to assist them with loan-finding services. People would then click on the link to apply – only to find that after they entered their details, amounts are being debited from their bank accounts every month.

I want to commend law clinics on the services they are rendering and their contribution to social justice.
I know that the “education versus access to justice” debate does sometimes arise when we talk about law clinics. Sometimes the question is asked whether law clinics exist primarily to serve clients or to teach enrolled students.

How much emphasis is placed on each of these goals and how are resources used and managed to be able to give effect to both?
I read a very useful article by Stephan van der Merwe in the November 2018 De Rebus where he discusses how some practitioners argue that the provision of services should be the main aim, whilst others say that clinical legal education should not be seen as secondary to access to justice.
I personally think that both goals are achievable, albeit perhaps to varying degrees and that they shouldn’t be seen as an “either/or”, but as complementary goals in the pursuit of justice.

I think for all of us working in the area of the provision of justice services, one of the main challenges we continue to face is how to make people aware of their rights and also that they know where to go when these rights are infringed.
How do people know about law clinics?
Do they know when and where they can go to seek assistance from a law clinic?

In this regard, community newspapers and community radio stations are good vehicles to utilise – for example, I know that the Rhodes Law Clinic conducts a talk show on Radio Grahamstown on the second and fourth Friday of every month and hosts workshops on various topics to make people aware of their rights. I’m sure there are other law clinics which have similar awareness programs.

Programme Director,
In conclusion, I want to wish you all a very successful and very productive workshop. Please be assured that, from the side of government, you can rely on our support.
May our university law clinics continue to flourish – because if they flourish, access to justice, the rule of law and democracy will also flourish.

I thank you.