Bridging the gap between legal rights and access to justice
Mangale is part of a legal team, led by national practice head and director Jacquie Cassette, that is solely committed to pro bono and human rights work. “We are blessed to have a constitution that is considered one of the best, if not the best, in the world,” says Mangale. “It allows us to function as the society that was envisioned in 1994, and protects and empowers us.”
However, there is often a gap between what the law says and access to those laws. “The lack of legal knowledge means that people often don’t know that they have done something wrong until they are dragged to court, or that they have rights that are being infringed,” Mangale says.
They aim to bridge the gap, allowing people to understand and enforce their rights. To this end, they provide workshops involving training on the law, and legal clinics, during which CDH attorneys go into a community to give community members the opportunity to bring any legal issues to them.
There is no point rolling out projects on legal issues that are not pressing in that community, though, says Mangale. “So we engage with NGOs working within communities because they have their ear to the ground.”
In the Western Cape, these include Ikamva Labantu, which spans several communities, and Just Grace, which provides support to the Langa community. “For example, Ikamva might tell us that people facing eviction do not know their rights in terms of their lease agreement. We then approach our real estate team to prepare a workshop that addresses this. So, we find the issues then respond accordingly.”
Often, people do not have the financial means to access legal services, so the team provides this pro bono, within a set framework.
“The first step is a financial assessment, with slight variation in criteria between Gauteng and the Western Cape. In the Western Cape, to qualify for pro bono assistance, the individual must earn a gross monthly salary of less than R5500, and/or live in a household with a gross monthly income that does not exceed R6000, and/or own immovable property valued at less than R300000,” explains Mangale. Those who do not meet these criteria are still entitled to legal assistance but may not be able to obtain this free.
The next step is a merit assessment. CDH focuses on matters of public interest that have effects that extend beyond the individual or organisation who approaches them. “A community member might say, ‘Isn’t it unfair that your landlord is able to do this?’ And in resolving their issue, there may be far-reaching effects on others in similar circumstances,” Mangale explains.
Within the Cape Town practice, the cases are varied. One involves a community that was forcibly removed under the apartheid era.
“In 1996, they lodged a land claim and have yet to receive the land,” says Mangale. “We are engaging with the commission to resolve this as quickly as possible.”
In another case, assistance is being provided to a mother and her child whose landlord forcibly removed them from their home and left their belongings on the street.
“The law recognises that women and children are among the most vulnerable members of our community, and affords them the appropriate protection,” says Mangale. She points to the PIE Act, as an example.
“The Prevention of Illegal Eviction (PIE) from and Unlawful Occupation of Land Act deals with how a landlord can evict a tenant. Before granting an eviction order, the Act requires a magistrate or judge to consider whether the family or person being evicted is a woman- or child-led household.”
The practice is also involved in the oldest sexual assault case that is being prosecuted. Last year, a change in the criminal law took place. “The 20-year prescription period for the lodging of charges related to rape and other sexual assault was declared unconstitutional,” says Mangale. “Now, no matter how long it takes you to find the strength and courage to lay the charges, you can do so. Two sisters learnt of this and pressed charges based on sexual assaults that happened in the 1970s.”
Now the practice is considering whether this is an opportunity to develop the law within the civil context, in the same way that the criminal context was developed.
The need for pro bono services is great. “If we can’t assist,” says Mangale, “I do my best to point them in the right direction, because our practice is committed to promoting access to justice.”
REQUIREMENTS FOR LAWYERS
The requirements for pro bono work are set out in the Rules for the Attorneys’ Profession, published by the Law Society of South Africa in 2016. Pro bono is defined as legal work done free of charge, in the public interest, for those who cannot afford it.
Practising members are required to do a minimum of 24 hours of pro bono work a year, subject to being asked to do so, and may not turn down a request to take on such work if the minimum of 24 hours has not been completed.
Members are required to submit reports of the pro bono work they have done to their provincial law society, which keeps a record of such work.
Members may do pro bono work through recognised structures such as relevant NGOs.
ProBono.Org is an NGO that facilitates the provision of free legal services for the poor by volunteer private lawyers. According to its website, it “channels millions of rands of top quality legal assistance, pro bono, to the most vulnerable and marginalised people”.
The organisation screens, matches and refers clients to volunteer lawyers. Its services include legal clinics, specific community projects, education and training, and mediation.