THIS whole week I’ve been hearing and writing about angry responses from sections of the legal profession to the government’s proposed Legal Practice Bill.
So it was something of a surprise when, on Tuesday, I was approached by organisations representing SA’s community advice offices and the paralegals working with them. They wanted to discuss their submissions to Parliament on the bill – the essence of which is that they are distressed to have been left out of its ambit.
Advocates and attorneys are in the midst of earnest debate about whether the bill is a good thing: whether it infringes on the independence of the legal profession, gives the minister of justice and constitutional development too much power and is secretly aimed at crushing the Bar as we know it.
During a debate last week organised by the Constitutional Court Clerks’ Alumni Association, two prominent advocates, briefed to argue opposing positions for the purposes of the debate, differed on this question. Referring to the proposed new council that would run the profession, Roger Owen SC argued that representatives chosen by the profession would have most seats, with ministerial influence kept to a minimum.
David Unterhalter SC, on the other hand, said the minister could exert undue influence on the council through his appointees.
The proposed scheme put the independence of the legal profession – and ultimately judicial independence – at risk, he stated.
Referring to those institutions widely regarded as under threat, he said: “We are not doing well at maintaining independence.”
Both also addressed the problem of wider access to justice for people unable to afford fees charged by most members of the profession, but debate was largely focused on fee caps and compulsory pro bono work.
This is where the paralegals believe they come in, providing a crucial service that no one else offers. They form a wide network and already offer free basic legal help in many of the poorest communities, even in remote areas.
In their submissions on the bill they say it is logical for them to be included in any scheme aimed at achieving broad legal access and that they should be properly funded by the state.
According to Seth Mnguni, spokesman for the national task team on community-based paralegals, they operate in all nine provinces and are forming a national structure.
Mnguni told me that after promising discussions with former ministers of justice on earlier versions of the bill, his organisation was surprised to find that paralegals had been left out of the latest draft. Their submissions – due to be handed in tomorrow, the deadline for comments on the bill – aim to persuade the drafters to include them after all.
Mnguni said their vision was of a national paralegal committee whose representatives would sit with representatives of other branches of the legal profession on the council to be established under the draft legislation.
In their submissions, Mnguni’s grouping say that, given the central role paralegals play in “enhancing access to justice for the poor and vulnerable”, it should surely be a matter of wide concern that they have not yet been recognised as practitioners.
They say they are no threat to the established legal profession: they often work closely with attorneys, referring “carefully screened and potentially successful matters” to them for litigation to be handled on a contingency basis. And in any case, their clients were generally so poor that they would not be able to afford the fees charged by attorneys.
One of the criticisms I often hear concerning the bill is this:|it proclaims to have, as one of its purposes, improvement of access to justice, but nowhere in the text is there any clear indication of how this promise will be met. The paralegals, picking up on this contradiction, have an answer.
In their submissions they recall that the minister of justice described the bill as “a landmark in improving access to justice for poor communities”. And they comment: “It is difficult to comprehend how this might be possible without the continued services of the community advice offices and the community-based paralegals who work for them.”
In other words, if the minister wants to make his boast on this issue a reality, he must provide a proper place within the scheme he devises for the people delivering legal advice to those reached by no one else.
Take a look at their submissions: the reasoning is hard to fault.