Proposed regulations governing compulsory community service for the legal profession may be out of kilter with their spirit and intention: to enhance meaningful access to justice.

The draft regulations, published by the Minister of Justice in terms of the Legal Practice Act, make provision for legal professionals and candidate attorneys to do compulsory community service as part of their work. The proposals are open for public comment until June 20.

Legal tech giant LexisNexis South Africa this week called on members of the public, especially legal professionals, to weigh in on Section 29 of the Act to enable constructive debate and ensure essential access to the law is achieved.

Said LNSA CEO Videsha Proothveerajh: “We are committed to advancing the rule of law. Key to this is enabling access to the law, particularly for the most vulnerable. It’s absolutely essential that legal professionals, young and old, take the time to share their views on the proposals to ensure the true intent of community service is realised.”

While the Act does not define “community service”, it does suggest that it would include working for no pay for the State, the South African Human Rights Commission, acting as a judicial officer, or providing legal education and training on behalf of the Legal Practice Council, an NGO or an academic institution.

In essence, the regulations  propose that all legal practitioners (advocates and attorneys) will be required to do 40 hours community service a year.

But the regulations state that any pro bono services - free legal services to indigent and needy people -  rendered by a practising legal practitioner will be recognised as community service. And they propose that candidate attorneys and pupil advocates only do eight hours of community service a year.

Attorney Shaun Hangone, Law Society of South Africa pro bono committee member, explained that prior to the enactment of the LPA, attorneys were required to do 24 hours of pro bono service a year.

This was monitored by provincial pro-bono coordinators under the auspices of the provincial law societies, now replaced by the Legal Practice Council (LPC).

The provision that pro bono work be considered as community service, meant that little would change for legal practitioners, except for the  number of hours required. “They increase the hours but not onerously so,” he said.

“And eight hours of community service  for candidate attorneys is just not enough for them to give anything meaningful or get back anything meaningful.”

Hangone said what was missing from the proposed regulations were the nuts and bolts of how community service could be rendered and to whom and how this would be effectively monitored.

“The logistics are not in place. It seems it has not been thoroughly thought through as to how service delivery, access to justice, can be addressed through community service,” he said.

“There is a golden opportunity, if done correctly, to  allow for young aspiring lawyers to have some positive impact on the community, but if there is no interplay between the civil service/NGO hub and the private sector, it will be lost. We should be working towards a system where qualifying as a lawyer is dependent on rendering meaningful community service while obtaining across the board experience.”

Sithuthukile Mkhize, the head of the Civil and Political Justice programme at the Centre for Applied Legal Studies at the University of the Witwatersrand, said the proposed regulations were confusing in that it was not clear exactly how much community service work, as opposed to pro bono work, lawyers in practice were expected to do and the minister appeared to have conflated community service with pro bono.

“The idea behind a requirement to do community service is a good one. It allows exposure for candidate legal practitioners to various areas of practice and opens up more opportunities for them.

“In turn, it increases the capacity of the institutions where community work is done. If the community service system is monitored well or measures are put in place for it to function effectively, it can be a great win for those who stand to benefit,” she said.

Comments on the draft regulations can be emailed Ms W Louw at WiLouw@justice.gov.za. For postal, hand deliveries and fax options, access further details here.