It is universally accepted that the rule of law is essential for a prosperous economy, the protection of rights, control of abuse of power and resolution of conflicts. The ability to access the justice system is imperative in giving content to these rights. In contrast to this, the non-adherence to the rule of law and the absence legal protection is often inextricably linked to poverty.
Improving access to justice can directly improve the welfare of the poor. In the South African context specifically, the justice system can be used as a powerful tool in the distribution of power and rights, to compel State delivery of crucial poverty alleviating public services and to compel the implementation of poverty reduction programs. Accessing justice is therefore not only about the ability to resolve disputes through the formal justice systems. It is about utilising the justice system to respond to the needs of the poor, to hold government accountable and redress power imbalances that lead to the concentration of power and resources in the hands of the economically elite.
The Constitution prescribes that everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. Ironically, the poor and disadvantaged, who most require the protection of the justice system, are those who are least able to access it. The poor are therefore amongst the least likely to take action to address legal problems which can often have grave financial consequences. This is because meaningful access is often prevented by issues such as the prohibitive costs of using the system, the lack of affordable legal representation and the formalistic, complex legal procedures which remains the territory of only those with legal training.
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Increasing access to justice by providing services on a pro bono basis
With an estimated 40 per cent of the South African population living in poverty, consideration ought to be given by the legal profession to the role it can play in poverty alleviation strategies. One way is to assist in increasing access to the justice system for the poor and vulnerable through the rendering of meaningful pro bono services free of charge for the public good to help those who are unable to afford legal assistance.
Pro bono schemes have existed for some time through, for example, the in forma pauperis procedure in the rules of the high court, legal aid, law clinics and work being done by NGOs. Despite the historic existence of such schemes, there is still a wide gap between the need for pro bono assistance and responsibility being taken individually and collectively by legal practitioners in meeting those needs. This shortfall can be attributed to the fact that the rendering of pro bono services has generally been dependent on the goodwill and social conscience of a few practitioners and on the nature of law practice where the highest fee earners are those most applauded.
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Why do pro bono work?
In recent times, a paradigm shift has started emerging. Several law firms are moving away from a strictly profit-centric approach to institutions that owe a social responsibility to a wider circle of interests. This change in mindset is reflected in the establishment of many dedicated pro bono programmes and units in several private law firms. Such a shift is not intended to detract from the profit-making goals of practitioners whose profits are important in being able to facilitate the rendering of pro bono services. It is simply a matter of balancing profit-making goals with a particular professional responsibility to give back to the community.
This change in attitude is mirrored by a change in the rules of provincial Law Societies, which impose legal aid obligations on members in order to increase access to justice. The Law Society of the Northern Provinces, for example, with effect from 2010, requires most practising members to render 24 hours of pro bono work per calendar year to people and non-profit organisations that qualify for assistance. The Cape Law Society has a similar rule. It appears that the KwaZulu-Natal Law Society likewise intends introducing a similar rule in the near future. And the South African Bar Council requires the local Bar Councils to compel its members to undertake pro bono work.
There is also business case for doing good. This includes the Broad Based Black Economic Empowerment Act (the Act). The seventh element of the generic scorecard is socio-economic development that focuses on facilitating black people's (defined as a generic term which means Africans, Coloureds and Indians) access to the economy, whether directly or indirectly. Facilitating black people’s access to justice facilitates their access to the economy. Thus pro bono legal services rendered to black people, or the organisations that support black people, fall to be considered under the socio-economic development element of the generic scorecard. According to the Codes of Good Practice to the Act, 80 per cent of the value of time spent on such qualifying pro bono matters could be counted. The target for this element of the generic scorecard is 1 per cent of net profit after tax.
Another incentive for rendering pro bono services is that it is a useful tool in attracting the best legal talent towards one's practice. Annual surveys conducted by the South African Graduate Recruitment Association amongst law graduates show that whether or not a law firm has pro bono and corporate social responsibility programmes is increasingly becoming an important factor to graduates when considering where to apply for articles of clerkship. Once such talent is attracted however it is imperative that a top-down approach is maintained since young impressionable lawyers more often than not seek to emulate their seniors.
The important role pro bono work can play in addressing the social imbalances that exist in South Africa cannot be overemphasised. The manner in which pro bono work is approached, however, will play a crucial role in the progress that can be made. A legalistic, box-ticking mentality will probably only serve to perpetuate the stereotype that lawyers are only interested in making money and grudgingly undertake free work because they are forced to do so. A healthier and more productive approach would be to recognise that we face a moral choice – to help or not to help. We live in a country with one of the most progressive Constitutions in the world and a citizenry largely unable to access the rights afforded to them. If those of us who have the skills and ability to address this problem do nothing, what does that say about us? Pro bono work, undertaken in the right spirit, offers a golden opportunity to dispel negative perceptions that persist about the legal profession.
Pro bono work also affords law practitioners an opportunity to reflect on their initial reasons for their chosen field of study. Many would cite wanting to make a difference and to help people as being the main initial reasons. Pro bono work breathes new life into that old dream and serves to restore the human face on law. Not to mention the satisfaction that comes from helping the downtrodden of society.
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Finding suitable pro bono work
The legal fraternity has potential to play a valuable role in tangibly improving the plight of the poor through the rendering of pro bono services. If every lawyer commits himself or herself to at least the minimum number of pro bono hours, there is greater likelihood of those efforts enhancing a broader access to justice and in turn having a greater impact on poverty alleviation efforts. As more and more practitioners agree to give up a fragment of their time for free, more and more South Africans will no longer being forced to accept their fate of being unable to pursue their rights by application of the law. This will in turn reflect off the legal profession in a positive light overall.
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