The Department of Justice, the National Alliance for the Development of Community Advice Offices (NADCAO), and the Association of Community Advice Offices of South Africa (ACAOSA) reported on legislation to regulate paralegals, the blueprint for community courts, and the Scottish model for legal aid.
The Department of Justice explained that government needs to spend about R50 million per annum on community-based advice offices (CAOs).
ACAOSA presented lessons learned from a study visit to the Scottish Legal Aid Board in September 2016.
The Department of Justice then explained that proposed community courts are aimed at restitution, rehabilitation, victim-offender reconciliation, community crime prevention, and volunteer based services for offenders and victims.
Members queried the non-inclusion of African countries in the search for best practices on legal aid. They were displeased that reporting on the visit to Scotland was made nearly one year after the visit. They sought clarity on the merits of the Scottish model of legal aid, given that Scotland shares little in common with South Africa, and the extent of collaboration with Legal Aid South Africa (LASA). They asked for clarity on the mandate of LASA to handle land matters; the proposed funding model for CAOs, progress on the draft Bill on paralegals, and the geographic distribution of CAOs. The Chairperson stressed the need for a bottom-up approach to justice based on the traditional justice system and expressed concern about potential bureaucratic bottlenecks for CAOs which intermediary fund management may cause.
Legislation to regulate paralegals: Department of Justice presentation
Ms Kalay Pillay, Deputy Director General: Legislative Development, Department of Justice (DoJ), explained that the initial focus of the DoJ had been to develop a concept paper to cover salaried and non-salaried paralegals. The DoJ is now focussed on developing legislation for regulating paralegals. A Bill has been drafted to provide for:
• A regulatory body that would regulate, discipline, and register Community-based Advice Offices (CAOs) and Community Based Paralegals (CBP).
• Requirements for operating a CAO; and,
• Requirements to practise as a CBP, especially qualifications.
In 2016, the Association of Community Advice Offices of South Africa (ACAOSA) submitted to the Department a draft Bill and a Policy Paper on ‘The Statutory Regulation of Community Advice Offices and Community-Based Paralegals.’ This policy document proposes that government fund CAOs. The estimated annual funding for 236 CAOs is R50 million. The DoJ is working on a funding model for paralegals.
Association of Community Advice Offices of South Africa (ACAOSA) on access to justice support
Mr Simbongile Kamtshe, ACAOSA CEO, presented lessons learned from a study visit to the Scottish Legal Aid Board in September 2016. The visit was supported by the Open Society Foundation of South Africa. He noted that although Scotland is within the United Kingdom, it is regarded as a third world country within the context of development in the European Union. It was affected by the financial crisis of 2008, but has taken measures to improve its social welfare. A notable measure beneficial to South Africa is its mixed model system of donor funding involving state and non-state actors. Scotland also utilises a participatory approach involving civil society. Its legal aid is governed by the Legal Aid Act of 1986, which created the Scottish Legal Aid Board, a non-departmental public body. The Scottish Legal Aid Board uses solicitors and private legal practitioners, who render advisory and legal representation services. It coordinates legal aid between pro bono law firms and NGOs. It ensures availability and accessibility of legal aid services, including employment of solicitors on a 24-hour hotline.
Some lessons learned from the study trip are:
- Protection of citizens from poverty and the economic hardships of welfare reform.
- Strong bias towards tackling the root causes of injustice and inequality.
- Encouragement of alternative dispute resolution.
- Combination of legal aid with monitoring and systematic reporting of legal aid funding.
ACAOSA proposes for South Africa that:
- The 348 CAOs in South Africa have a vital role to play in civil education, especially constitutional awareness. The Constitution should be interiorised by communities, and not only resorted to when someone has a legal problem.
- Funding of CAOs should pass through an intermediary body to ensure proper monitoring and accountability. The Legal Aid Board is well-suited to perform this role.
- A basket fund is needed for both state funds and funds from donor agencies.
- The independence of CAOs should be maintained to ensure community trust and harmony. Unlike magistrate courts, CAOs have better understanding of the root causes of disputes.
- Municipalities should be encouraged to provide office space for CAOs, some of which have not had funding for ten years. CAOs in rural areas survive because community members volunteer office space. This is not the case with CAOs in urban areas.
DoJ Deputy Director General: Court Services, Adv Jacob Skosana, DDG: Court Services, added that the Scottish experience was enriching. This experience has been shared with Legal Aid South Africa, which focuses on criminal cases and neglects land restitution claims. He noted that the EU is winding down its donor support to legal aid in South Africa.
Ms G Breytenbach (DA) sought clarity on the merits and demerits of mediation officers in CAOs, progress on the concept paper for paralegals, and timeline for the draft Bill on paralegals. She asked the delegation to clarify the role of the Deputy Speaker of Parliament in the visit to Scotland, the remark that Scotland operates as a third world country, why the study visit took nearly one year to report, and how the Scottish model compares with the South African model of legal aid. She asked about the extent of collaboration with Legal Aid South Africa (LASA) on the study visit, and whether the mandate of LASA empowers it to handle land matters. Finally, she asked for clarity on the centralised management of donor funds.
Mr N Matiase (EFF) asked DoJ to explain the legal non-recognition of paralegals. He asked the delegation why it did not include best practices from African countries in its report. What form of legal aid assistance is provided by the Scottish government?
Mr L Mpumlwana (ANC) sought clarity on DoJ’s proposed funding model for CAOs. He asked whether constitutional values reflect African values in the context of CAOs.
Mr M Maila (ANC) sought clarity on the geographic distribution of the 348 CAOs in South Africa. He noted that some communities find it difficult to access their municipal offices. He commended the amicable settlement of disputes in CAOs. He queried the value of relying on the Scottish model, given that Scotland shares little in common with South Africa.
Ms C Pilane-Majake (ANC) queried the veracity of 348 CAOs and their geographic distribution, wondering if all of them are active. She expressed displeasure that the Committee was not timeously informed of the outcomes of the study visit to Scotland.
The Chairperson commended the presentations. He remarked that Parliament should not be perceived to be transplanting the Scottish legal aid system into South Africa. A persuasive case needs to be made that paralegal legislation is desirable. An important part of this case is a bottom-up development of the law. Although constitutional awareness is important, awareness of, and protection of women’s rights are arguably more important. The justice system creates a conflict situation because of its adversarial nature. This is different from the traditional justice system, which is more conciliatory. Municipalities should fund CAOs because they are close to the people. Using intermediaries for the funding of CAOs may contribute to bureaucratic bottlenecks. Finally, law students should be stakeholders in the paralegal project, and should therefore be engaged through centres such as the Dullah Omar Institute at the University of Western Cape.
Responding, Mr Kamtshe stated that law students are interested in legal aid, and have been positioned in CAOs in Gauteng and Mpumalanga. On conflict between the European and African justice systems, Scotland is not the only country where best practices are being drawn. Best practices are drawn from African countries such as Rwanda, Sierra Leone, and Malawi. An invitation was sent to Parliament for the Scotland visit. Scotland was classified as a third world country within the EU based on the problems being faced there in the economic sector. The visit was beneficial due to the manner of state funding of community legal aid services. The basket fund is an attempt to pull together funds from the donor community and government.
Mr Seth Nnguni, ACAOSA chairperson, explained that the distribution of CAOs is being worked on and will be on a needs and funding-capability basis. Mediation is the favoured approach of CAOs. This approach uses indigenous systems of dispute resolution as much as possible.
Mr Langa Mtshali, National Alliance for the Development of Community Advice Offices (NADCAO) chairperson and acting director, added that there is no networking link between stakeholders in community justice in Africa.
Mr Skosana remarked that LASA has the institutional framework to support the work of paralegals. It merely needs funding capacity.
Blueprint for community courts and Community Courts Bill
Mr Skosana explained that the proposed community courts are based on elements of restorative justice such as restitution, rehabilitation, victim-offender reconciliation, community crime prevention, and volunteer based services for offenders and victims. The underlying principles for the courts are:
- Transformation imperative
- Restoring public confidence in the justice system
- Increased access to justice
- Advancement of community justice
- Community participation in justice dispensation
- Increased community safety
- Corrective, rather than punitive measures
- Addressing petty crimes
- Law enforcement for which magistrate courts are not equipped to deal with
- Optimal use of paralegals and justices of the peace
- Lessened caseload in mainstream courts
- Reduced cost.
The DoJ had conducted a comparative study on jurisdictions such as Philippines, Rwanda, India, Mozambique, Bangladesh, Colombia, Peru, USA, Queensland, and Namibia. Community courts take the form of traditional courts in Africa. The DoJ believes the Traditional Courts Bill should be enacted first to provide principles that will guide the community courts. It plans to complete the Community Court Policy Framework and the accompanying Community Courts Bill in the current administration term.
Mr Matiase asked why community courts are being separated from traditional courts instead of merged into one. He asked for clarity on the criteria for determining petty crimes.
The Chairperson supported Mr Matiase’ suggestion to merge traditional courts with community courts.
Mr Mpumlwana noted that in Europe, law is the same as customary law. Conversely, customary law is different from state law in Africa. Justice under customary law is communal and restorative. These features, which are disappearing, are not compatible with justice in the Westernised courts of the state. Accordingly, what operational environment is envisaged for community courts?
The Chairperson added that the idea of community courts has been around since Oliver Tambo and others muted this idea on the basis of pro bono services. Community courts have taken off in other countries, while South Africa is lagging. He recalled that Parliament’s March 2017 request for a conference on community justice has not been acted on. This conference is needed – latest by October 2017, while legislation on paralegals and traditional courts is also needed. Where government delays in initiating a bill, Parliament itself can initiate it.
He said the Committee advised the DoJ to work on the paralegals legislation and act on its recommendations for the Community Courts Bill.
The meeting adjourned.
- Progress Report on Legislation to Regulate Paralegals: Department of Justice and Constitutional Development presentation
- Community Courts as Basis for Community Courts Bill: Department of Justice and Constitutional Development presentation
- Association of Community Advice Offices of South Africa (ACAOSA) presentation Scottish Legal Aid Board Model of Supporting Access to Justice