WITHOUT any sense of irony, a South African insurance company can offer cover against legal costs and proclaim: “There aren’t many advantages that go with being indigent, except for all the free legal services.”
It is ironic in more than one sense but it is true that legal aid is available in South Africa – as long as you are poor enough.
For South Africans earning more than R5 500 a month, after tax, our legal system is off limits, unless they are prepared to mortgage their homes to the hilt and empty their savings accounts. Legal Aid automatically disqualifies people who own their homes – or have ever owned their home in the past. You can be indigent but once you’ve owned property, no legal aid for you.
The facts are that only the super-rich or large corporations dare to appeal to the courts. All but the bravest individuals can risk it.
Is this an exaggeration? Well, consider this. A good advocate demands R1 200 an hour. That is R9 600 a day (assuming an eight-hour day) or R48 000 a week. Assuming 20 working days a month, a first-class advocate earns R192 000 a month. Even after giving the receiver of revenue his cut, it is a shed-load of money to pocket every 30 days – and an awful lot of cash for his client to find.
The advocate’s fee is, of course, not the only thing a private plaintiff will find on his bill. Substantially more than an eight-hour day may be spent on the case. There are other items too numerous to list here, but the point is made. Litigation is beyond the reach of the average white-collar worker as well as skilled trades people – whatever his or her colour.
Lawyering does very well. There are at least 20 000 registered lawyers who employ 40 000 more who are “support staff”. Apart from the mining industry and the civil service, it is difficult to find another sector of the economy employing more people.
Such are the potential awards that the number of students studying law is rising; some estimate 3 000 qualify every year.
One can only guess at the value of the lawyer business. Not every lawyer is an advocate. Most earn their livings from property law, conveyancing, and related matters, contracts, and estate administration.
It is true that there are a few who give their services free (again, only to the poor). Some will gamble on getting a settlement in cash, taking a percentage of the client’s winnings instead of charging by the hour – and getting nothing if they lose the case.
But if you are indigent, there are a host of lawyers willing to plead your case for nothing, even if you are accused of a crime. No advocate will defend you for free if you are not deemed poor. The poor are protected. Working stiffs are on their own.
Everything said so far is a non-professional’s view. What do lawyers say? They measure their fees against those in other countries such as Australia and Britain – a developing country measured against developed economies.
They will point to the pro bono scheme under which lawyers will not charge for services. But it depends on whether your case is deemed worthy enough, and there is a means test. Nevertheless, it is a worthy service, even though it is mandated by section 35 of the constitution, so it is hardly an example of generosity. They have to do it.
There is also another free service. It is called the First Interview Scheme. This, too, has a catch. You do not have to be indigent and you do get a free consultation with an attorney – once. After that first free interview, you pay. It is described by the Law Society as a service for “those members of the public who would not normally make use of the services of an attorney, or who may hesitate to consult an attorney for fear of the possible high fees resulting from their services, or for those who do not qualify for pro bono assistance”.
What a relief, the non-indigent may think. However, it turns out that: “Any legal steps which may be taken, or any further consultations arising from the interview, are payable at the normal tariff, which must be agreed upon between the attorney and the client. The client will then become a paying client of the attorney.” Mr Average you are still on your own.
Appeal to the courts if you dare. If you want to gamble, far better visit a casino, the odds of success might be superior.
If you’re feeling unlucky, take out legal insurance and pay every month, just in case. And read the fine print. Lawyers probably wrote it.
Keith Bryer is a retired communications consultant.