Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon John Jeffery, MP, at the Closing Ceremony of the Dullah Omar School, University of KZN, Durban Westville Campus, 29 January 2016
In an interview with Dullah Omar in October 1994, a few months after he was appointed as the first Justice Minister of a democratic South Africa, he talks about the importance of developing a human rights culture in our country. He says-
“The rights based approach is completely alien to the South African legal tradition. Therefore we need to re-educate ourselves at every level to enable us to play an effective role in building up a new constitutionalism in our country.
Secondly, we need to go to the public to ensure that we transform the legal culture which exists at present and that we also participate in changing the attitudes of people so as to develop a human rights culture in our land.
This can be done by developing closer links with non-lawyer organisations and helping ordinary citizens to claim their rights.”
Helping ordinary citizens claim their rights is why paralegals and community advice offices are so important. They offer a wide range of services to communities - services ranging from legal to social to financial.
On this issue of financial assistance, some of you may have seen a report in the media and on social media this past weekend involving a person working as a gardener who had bought a new washing machine at Lewis.
He had been charged R17 955 for a R5 999 twin tub washing machine which he bought in January at the local Lewis branch in George.
The cost of insurance alone was almost equal to the price of the washing machine. The contract, in Afrikaans, apparently showed a double charge of R2 052 and R3 785 for exactly the same insurance, just different wording: monthly payment for customer protection insurance and protection insurance for clients, payable monthly.
The man’s employer, a Mr Vegter, then took up the fight on his behalf. Says Mr Vegter:
"He was told by the store salesman it would cost him R498 per month for 36 months, and told where he must sign, but even after they delivered the washing machine to him, he still did not receive a copy of the contract. He had to phone again to insist on it, and finally received his copy of the contract. He had not read or understood the contract and the various amounts properly. It's pages and pages of small print."
On Mr Vegter's advice, the customer and a family member went back to the store to have the contract cancelled because it was just too expensive for him. Apart from the R5 999, the charges included a "R975 contract fee; R750 delivery fee; maintenance agreement R1 311; interest at a whopping 23% pa, far more than double the prime rate; customer protection insurance R2 052; protection insurance for clients R3 785; Grand total: R17 955.”
My question is this, how many thousands of other consumers are in the same boat – and possibly not even aware of it. How many people have entered into similar contracts and do not know their rights under our consumer protection or credit legislation? This is where community advice offices can and do assist.
The value of the services rendered by paralegals and community advice offices is further evident by the results of a research project which was undertaken by the Human Sciences Research Council in 2014.
The study entailed visits to 19 CAO offices in 5 provinces - Eastern Cape, Free State, Gauteng, Limpopo and Western Cape. It tells us who makes most use of CAOs.
The largest proportion of respondents reported having some secondary education (38%) followed closely by 34% of respondents who reported either having no education, some primary education or having completed their primary education.
The majority of respondents (48%) fall within the R1001-R3000 per month income category. The smallest proportion of respondents (18%) reported earning more than R3000 per month.
Over a third of respondents (40%) highlighted assistance with legal cases or labour disputes as the main reason for their visit. This also included assistance with divorce, harassment, payment of damages and widow inheritance.
About one in ten of respondents revealed assistance with IDs, birth certificates or marriage certificates as the reason for their visit, and 14% of respondents indicated they required assistance with social problems including children not attending school and various poverty related issues.
The largest proportion (48%) of respondents who reported visiting the office for assistance with birth certificates and IDs, earned less than R1000 in the monthly household income.
The largest proportion (61%) who reported needing assistance with pension and grant applications earned between R1001 and R3000. 71% of respondents who sought assistance with financial matters, such as loans or/and bonds, earned between R1001 and R3000 income per household monthly.
Lastly, the mid-level earning respondents also revealed the largest proportion (57%) of respondents who reported needing assistance with social problems.
This tells us two important things – Firstly, the users of community advice offices are those facing dire poverty, and secondly, the range of work done and services offered by CAO’s are indeed vast.
When asked about their satisfaction with CAOs services concerning their helpfulness, professionalism and level of knowledge about the services offered, an overwhelming majority of respondents (96%) indicated that they were very satisfied with the helpfulness of CAO staff.
The study makes a few recommendations. The most pertinent being that “serious and urgent consideration should be given to the fiscal funding of 236 CAOs in South Africa” and that, separate from the issue of public funding and related arrangements, too many CAOs reported continued unnecessarily adversarial relations with some departments and municipalities. Therefore, says the report, “public recognition of the sector needs to be enhanced at a national level.”
So where are we with the issue of public recognition?
Our Department recognizes the important role of paralegals in our society. In South Africa, paralegals belong to five categories -
- Those who are formally employed by private law firms, government structures and agencies, private companies and trade unions. Their focus is on the delivery of ‘corporate’ services to their institutions, clients, or as in the case of trade unions, their members;
- Those who are employed by NGOs, Legal Aid South Africa and public interest law firms;
- Those who are lay assessors and who assist magistrates and judges in criminal cases;
- Those who are Community Development Workers (CDWs), in local municipal offices. Their role is to enhance community participation in local government; and
- Those who are employed by or volunteer with Community Advice Offices (CAOs). These are Community-Based Paralegals, mostly residents of oppressed communities, trained in basic advice-giving, legal and community education skills, whose role it is to serve and be accountable to the community they are working in. Their services are rendered free of charge.
As you know, the occupation of paralegal is currently not regulated by statute. Voluntary organisations have been established to which some paralegals belong.
Individual paralegals and organisations have expressed the need for legislative regulation and statutory recognition of paralegals and the paralegal occupation and to, among other aspects, introduce national standards and occupationalize the community advice office sector.
Section 34(9) of the Legal Practice Act provides that the Legal Practice Council must, within two years after the commencement of Chapter 2 of this Act, investigate and make recommendations to the Minister on the statutory recognition of paralegals, taking into account best international practices, the public interest and the interests of the legal occupation, with the view to legislative and other interventions in order to improve access to the legal occupation and access to justice generally.
However, section 34 of the Legal Practice Act is in a chapter that will only come into operation at a later stage, approximately three years from now.
Recognizing the importance of formalizing the paralegal occupation and in order to expedite the matter, it was decided to now commence with the process rather than to leave it solely to the Legal Practice Council, which might only be in a position to address this mandate several years into the future.
Currently there is no regulatory body for paralegals. The creation of a body by statute is central to the regulation of any occupation. It must still be determined what such a body’s composition, objects, powers and functions should be.
The funding of the regulatory body must be specifically addressed, as the establishment and maintenance thereof will have cost implications for its members. Government-funded legal aid is through Legal Aid South Africa, who employs paralegals. The question arising is from where the funding of the regulatory body should be sourced.
Currently no minimum qualifications are prescribed for paralegals. Legislation will have to provide for this aspect.
Several colleges and universities present courses for paralegal training and workplace training is common. Legislative provision will also have to be made for the continued training of paralegals after registration.
The issue of a possible requirement of vocational training or a period of working under supervision should be addressed. The legislation will have to examine a transitional provision for persons working as paralegals when the legislation comes into effect, but do not comply with the statutory requirements.
Legislation should also provide for the development of a code of conduct that is applicable to all paralegals. This relates to how the occupation is practised, as well as intentional or unintentional unethical behaviour.
Aspects that should be included are, inter alia, paralegals taking on matters they do not have the knowledge of, making poor decisions, creating unrealistic expectations, assisting beyond their limitations or legal authority. Provision must consequently be made for the establishment of disciplinary bodies, their procedures, appeal and sanctions.
A related issue that must be addressed is the possible recourse that will be available to a client that suffers a loss due to incorrect advice given by a paralegal, or by his or her misconduct or unethical behaviour.
Should paralegals, for example, be obliged to take out insurance? This issue is relevant for the protection of the public.
A meeting was held in September last year between representatives of the Department, including Justice College, Legal Aid South Africa, and organisations representing paralegals, namely ACAOSA and NADCAO.
At that meeting there was agreement that there is a need to develop a regulatory framework for paralegals and issues that need to be considered include, amongst others, a curriculum for paralegals and an international comparison.
The discussions to date indicate that there are two broad categories of paralegals, namely those who work for a salary, for instance at Legal Aid South Africa, in the courts and for attorneys, among others, and those who work on a voluntary basis and who do so mostly without any reward. It may be appropriate to deal with these two broad categories separately.
I am told that the first day of this programme touched on the issue of Legal Empowerment. Many of you will be familiar with the new Sustainable Development Goals which seek to build on the Millennium Development Goals and complete what these did not achieve. Goal 16 of the SDGs speaks to access to justice and inclusive institutions at all levels.
The Dullah Omar School is an exciting platform that is designed to generate a new cadre of activist paralegals that will greatly improve access to justice to the people of South Africa.
It is fitting that this school is named after Dullah Omar. Dullah Omar played an instrumental role in the recognition of the work of this sector and in the area of enhanced access to justice for everyone.
The work that each and every one of you are doing everyday gives expression to his extraordinary vision.
I thank you.