Improving Access to Justice through Law Graduate Post-Study Community Service in South Africa

Keywords: Law graduates, community service, Legal Practice Act, South Africa, constitutional rights, legal aid, civil legal matters, supervision

Abstract

Access to justice for all in South Africa, as most clearly set out in sections 34 and 35 of the Constitution of the Republic of South Africa, 1996, is necessary to realise various other fundamental rights and to improve living standards. There are insufficient free legal services available to the indigent in South Africa, especially in civil matters, thereby often making meaningful access to justice unattainable. This study considers possible approaches, challenges and opportunities for law graduate community service in South Africa (hereinafter "community service") to expand the ambit and impact of free legal services to the indigent. This would promote the constitutional imperative of access to justice, focussing on civil matters. This study concentrates on the access to justice potential of and challenges to such community service. Such challenges will be shown to include its proper utilisation and control through the adequate supervision of graduates. This paper argues that graduate community service has the capacity to promote better access to justice and hence that steps should be taken for its introduction in some form.

Community service and means for law graduates to perform this as a necessary part of vocational training before entering the legal profession are provided for in section 29 of the Legal Practice Act 28 of 2014 (LPA). But despite parts of the Act being operative, community service is neither in operation nor do regulations yet exist for its implementation.

The specific vocational training element(s) for law graduates is worthy of separate study and is not the focus of this paper. Such a separate study would include opportunity creation - such as gaining the necessary practical experience and the establishment of employment opportunities - and training challenges for graduates during community service.

In the pre-LPA era it would have been necessary to focus more on whether community service for law graduates should be included in legislation or not as part of graduates' vocational training and as a key component of free legal service delivery. Some such arguments are alluded to as community service has yet to be implemented and its implementation is not a fait accompli. But because it is now included in the LPA as a legal aid service delivery possibility, this study instead focusses on the need for the effective and appropriate implementation and operation of community service to turn the requirements and encouraging promise of the LPA on community service into reality. The paper explores issues such as the necessary and appropriate supervision and placement of law graduates completing community service. The research very briefly touches on whether community service would best be compulsory for graduates as part of their vocational training or merely one possible route towards admission to the legal profession. Lessons are sought for legal community service in South Africa from existing medical post-study community service schemes as to the role which such schemes have played in expanded service provision and impediments experienced in reaching such goals. These lessons are applied to proposals for the implementation and operation of law graduate community service.

This study considers how community service could and should be a key component of a multi-faceted and co-ordinated approach to expand and improve free legal services for the indigent in civil matters in South Africa with its gross inequality, unemployment and poverty. For this goal to be realised, there must be mechanisms for its effective roll-out and operation.

 

GS50.png     

References

Holness D Coordinating Free Legal Services in Civil Matters for Indigent People in eThekwini: A Model for Improved Access to Justice (Doctoral thesis Nelson Mandela (Metropolitan) University 2015)

Holness D "The Need for Recognition and Regulation of Paralegals: An Analysis of the Roles, Training, Remuneration and Impact of Community Based Paralegals in South Africa" 2013 JJS 78-105

Holness D "Improving Access to Justice through Compulsory Student Work at University Law Clinics" 2013 PELJ 328-349

Holness D "Recent Developments in the Provision of Pro Bono Legal Services by Attorneys in South Africa" 2013 PELJ 129-164

Holness D "The Constitutional Justification for Free Legal Services in Civil Matters in South Africa" 2013 SJ 1-21

Kautzky K and Tollman S "A Perspective on Primary Health Care in South Africa" 2008 SAHR 17-30

Manyathi-Jele N "The Legal Practice Bill and Community Service" 2013 De Rebus 8-10

McQuoid-Mason D "Access to Justice in South Africa" 1999 Windsor YB Access Just 1-16

Omole O, Maricowitz G and Ogunbanjo G "Perceptions of Hospital Managers Regarding the Impact of Dr's Community Service" 2005 SAFP 55-59

Padfield L "Reframing the Frame: Reflections of a Community Service Psychologist" 2013 PPSA 61-92

Perold H and Omar R Community Service in Higher Education: A Concept Paper (Joint Education Trust Johannesburg 1997)

Pillay A and Harvey B "The Experiences of the First South African Community Service Clinical Psychologists" 2006 SAJP 259-280

Rohleder P, Miller M and Smith R "Doing Time: Clinical Psychologists' Experience of Community Service in a Prison Placement" 2006 SAJP 795-812

Van As H "Taking Legal Aid to the People: Unleashing Local Potential in South Africa" 2005 Obiter 187-206

Vawda Y "Access to Justice: From Legal Representation to Promotion of Equality and Social Justice – Addressing the Legal Isolation of the Poor" 2005 Obiter 234-247

Constitution of the Republic of South Africa, 1996

Legal Practice Act 28 of 2014

Legal Practice Amendment Act 16 of 2017

GN 627 in GG 40955 of 30 June 2017 (National Health Insurance Policy)

GN R921 in GG 41879 of 31 August 2018

Chaskalson A "Legal Interns Could Solve Legal Aid Problems" 1997 (Dec) De Rebus 782 http://www.derebus.org.za/category/issues/December-1997/ accessed 14 January 2013

Conco D and Reid S 2012 Monitoring the Implementation of Community Service http://www.hst.org.za/uploads/files/chapter17_99pdf accessed 30 December 2013

De Vos P "Health Care Rights" in Khoza S (ed) Socio-Economic Rights Resource Book 2nd ed (Dullah Omar Institute Cape Town 2007) ch 8 https://dullahomarinstitute.org.za/socio-economic-rights/research-and-publications/resource-book/Chapter%208%20-%20Health%20Care%20Rights.pdf accessed 16 January 2012

Department of Health 2006 Community Service to Improve Access to Quality healthcare to All South Africans http://www.doh.gov.za/docs/pr/2006/pr0105.html accessed 2 October 2012

Department of Health 2019 PHILA http://phila.org.za/ accessed 10 December 2019

Government of the Republic of South Africa 2017 National Development Plan 2030 https://www.gov.za/issues/national-development-plan-2030 accessed 10 December 2019

Legal Aid South Africa 2017 Legal Aid South Africa Integrated Annual-Report 2016/2017 http://www.legal-aid.co.za/wp-content/uploads/2017/09/ANR-Legal-Aid-SA_2017.pdf accessed 6 August 2018

Legal Aid South Africa 2017 Legal Aid South Africa Integrated Annual-Report 2016/2017 http://www.legal-aid.co.za/wp-content/uploads/2017/09/ANR-Legal-Aid-SA_2017.pdf accessed 6 August 2018

Legal Resources Centre 2018 Contact Us http://lrc.org.za/contact/ accessed 11 August 2018

Mabuza E 2018 "Legal Aid SA Budget Cuts Bad News for Poor and Vulnerable Seeking Justice" Times Live (17 October 2018) https://www.timeslive.co.za/news/southafrica/2018-10-17-legal-aid-sa-budget-cuts-bad-news-for-poor-and-vulnerable-seeking-justice/ accessed 20 January 2019

PHILA 1996 Legislative Update; SAMJ: HealthLink http://www.healthlink.org.za/pphc/Phila/mandserv.htm accessed 20 September 2013

Witsvuvuzela 2012 New Law for Lawyers http://witsvuvuzela.com/2012/09/27/new-law-for-lawyers/ accessed 10 October 2013

Published
2020-01-16
How to Cite
Holness, D. (2020). Improving Access to Justice through Law Graduate Post-Study Community Service in South Africa. Potchefstroom Electronic Law Journal, 23, 1-25. https://doi.org/10.17159/1727-3781/2020/v23i0a5968
Section
Articles