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23 December 2013
The South African government recently published a draft legal services transformation charter for public comment. This follows the adoption of similar transformation charters by various other sectors of the South African economy, such as financial services, mining, petroleum, construction, property and maritime.
These transformation charters do not have the status of legislation, but do bind the signatories - the private-sector participants in the particular sector who subscribe to the charter.
These various charters function as a roadmap and are intended, pursuant to the provisions of the Broad Based Black Economic Empowerment Act 53 of 2003, to ultimately achieve the transformation of South African society, skewed as it is by the legacies of apartheid, sector by sector.
It is envisaged that the various transformation charters will in due course be elevated to the status of legislation by the promulgation of a sector code binding both the state and the particular sector. That stage has not yet been reached by any sector of the economy. Eventually the process will include every industry, and the professions, covering all the sectors.
The draft transformation charter for legal services proposes to bind attorneys (solicitors) and advocates (barristers), as well as state law advisers, state-owned enterprises, prosecutors, presiding officers in the high and magistrates' courts, academics and paralegals.
The charter seeks to transform the provision of legal services in a number of respects. The steering committee that prepared the draft was constituted by the government and the product of the six months of deliberation has provoked widespread criticism, mostly justified, because of an unfortunate lack of clarity and focus.
The transformation charter was widely welcomed, though, as being long-overdue.
The proposals in the charter include:
•Eliminating those barriers that prevent access to the professions by "historically disadvantaged individuals", which means black people, women and people with disabilities. 'Black people' is a generic term that includes Africans, coloured people and Indians, all of whom were historically disadvantaged by apartheid.
•Setting up a single regulatory body for all providers of legal services and the creation of a complaints tribunal and a national ombudsman. The charter proposes a unified legal profession. It acknowledges that a process has still to be identified to address issues arising from this approach.
•Providers of legal services and the judiciary becoming sensitised to the social context within which they operate and creating an affirming environment for everyone, regardless of race, gender, sexual orientation or physical disabilities.
•Economically empowering historically disadvantaged individuals. This seeks to advance their share in the ownership, control and management of providers of legal services, as well as their skills development, their employment and appointment to positions of real and meaningful responsibility. Public and private institutions are enjoined to procure services from historically disadvantaged individuals and black enterprises. Established law firms should assist in nurturing viable black enterprises.
•Providing access to legal services in townships and rural communities where such services are largely unaffordable or unavailable. The legal professions should devote at least 5 per cent of total billing hours per month to pro bono work. The state attorney proposes, on behalf of the government as one of the biggest consumers of legal services, to assign 50 per cent of its instructions to black attorneys and advocates. This will apply to all levels of government, including local municipalities.
•Promoting a judiciary that is representative of the demographics of the country. The charter recognises that this will require "innovative measures to broaden the pool of candidates who are eligible for judicial appointments", while ensuring that there is not a lowering of standards.
•Increasing emphasis on alternative dispute resolution mechanisms and the provision of a complaints procedure, which is currently largely non-existent for errant or under-performing judicial officers.
•Promoting affordable and equitable access to justice to give meaning to the bill of rights contained in the Constitution of the Republic of South Africa. The poor, who comprise the majority of the population, lack access to legal services and find court processes and the means to exercise their rights particularly hostile and inaccessible.
A number of measures to meet these challenges are proposed for consideration and debate. These include an increase in the jurisdiction of the small claims courts, which is an informal court staffed exclusively by volunteer attorneys and advocates.
Another proposal is to introduce paralegals to provide primary legal services to the poor. It is envisaged that paralegals would be subject to the same ethical standards and enjoy the same protection currently afforded by the Attorneys Fidelity Fund to the public in regard to misappropriation of monies entrusted to attorneys.
Work in progressMuch more research, however, has to be done, particularly considering that almost 70 per cent of South Africa's 17,000 attorneys practise either alone or with one other partner. The scope for transformation and empowerment of these small practices is limited and no research has been undertaken to determine the viability and profitability of such practices.
On the other hand, most of the country's large (50-partner plus) legal firms have embraced transformation and there is a scramble among them for the best black talent. The focus in the charter on taking work away from them to the benefit of small practices appears to be misplaced, as the large legal firms provide an excellent training ground - and the means - to produce truly excellent and highly skilled black lawyers.
The fact is that the large firms make up a small proportion of the legal profession. Those ills that require drastic cures are found more commonly in the small, particularly rural, practices.
Around 40 per cent of qualified attorneys are black and the majority of them qualified in the past 15 years. Often they have not had the benefit of exposure to quality legal work and their skills have not developed as a result.
Until recently there were 21 law faculties scattered at universities across the country and the quality of the legal education offered by some is inferior to others'. In other words, some lawyers are better trained than others.
The absence of large numbers of women in the profession gets special attention in the charter, but legal firms the world over struggle to retain proficient female lawyers.
•George van Niekerk is vice-president of the Cape Law Society and a director at Edward Nathan Sonnenbergs