at the Fish River Sun
24 October 1999
Honored Guests, Comrades, Ladies and Gentlemen
I am pleased to be with you this evening for the opening of the Annual General Meeting of the Cape Law Society. This is the last meeting you will hold in this millennium, so perhaps this is a good moment to look at the role that your profession has played in the past in delivering legal services to the people of South Africa. For as we all know, the pressure to deliver these services will only increase in the future. The future is certain to be tougher than the past. We must deliver to more people and across a wider range of issues than ever before.
The declared mission of the Ministry and the Department of Justice and Constitutional Development is to ensure access to justice for all. This is an ambitious goal in a country where the majority of the population has little or no access to legal services. It is a goal that cannot be achieved without the assistance of the private practicing legal profession.
Attorneys play an important role in providing access to justice. Legal practitioners are generally the first port of call for people who require any form of legal assistance. From the drafting of an ante-nuptial contract or will, to the formation of a business and the conduct of complex litigation, the public requires the services of attorneys in much the same way that they need a doctor or - heaven forbid - a dentist!
We all know that most South Africans cannot afford to pay the fees of private practitioners. Access to Justice, cost of legal services - what a conundrum. This vexing question has become my problem because, in terms of the Constitution and the Legal Aid Act of 1969, the State is obliged to provide legal aid for indigent people.
Since taking office I have spent a great deal of time investigating the problems that have beset the provision of legal aid in South Africa. We need to find a way forward that will enable us to meet our obligations in a way that is socially, economically and politically acceptable.
The Legal Aid Board and the Ministry have recently announced measures, which will be implemented with effect from 1 November, to bring the spending of the Board under control. Most significantly for legal practitioners, our policy will be to incrementally replace judicare with an integrated system of justice centres, an expanded public defender programme and the use of legal aid clinics and advice centres.
This announcement should not come as a surprise, because the decision to move in this direction was reached by general consensus at the National Legal Aid Forum in January 1998 and was widely publicized at the time.
We have chosen this route because the provision of legal aid by way of Judicare has proven to be exorbitantly expensive - more than twice as expensive as the provision of legal aid by means of salaried employees and other legal grant nominees. Not only has Judicare been expensive, it has been difficult to monitor and manage.
Furthermore, budgeting accurately for Judicare is well nigh impossible and a solution to establishing an appropriate accountability framework for Judicare has yet to be formulated.
Our Judicare system was modeled on the British Legal Aid format. It is noteworthy that far-reaching changes to that system have now been proposed there. In terms of the Access to Justice Bill the national Legal Aid Board is to be replaced by a Legal Services Commission. This Commission is required to establish and manage the Community Legal Service, a scheme that funds civil cases.
The Commission will also establish and manage the Criminal Defense Service, which will fund criminal matters referred to it. The Community Legal Service will not only grant funding to law firms, it will also make state funding available to voluntary agencies and local government advice centres.
The Criminal Defense Service might evolve into a system providing legal services through lawyers in its direct employ; that is if the Lord Chancellor succeeds in his attempts to include this power in the proposed legislation.
The British government's rationale for introducing the new legislation is to control legal aid expenditure within a manageable and service oriented framework. This is something the South African government also needs desperately to do.
I know that many attorneys are unhappy about the decision to move away from Judicare. But the current position of the Legal Aid Board leaves us no other alternatives and we are certain that with the proposed integrated approach to legal aid provision, we will be able to reach the most marginalised, more effectively.
I must use this platform to urge attorneys to respond to this situation constructively and to explore alternative and more appropriate ways of participating in the delivery of legal aid services.
The Ministry believes that this integrated approach will provide more flexible options for responding to the needs of those requiring legal aid.
We have piloted a scheme, in the Overberg in the Western Cape, which illustrates one solution to the question of how to provide legal aid services to the poor and rurally marginalised. In this pilot, the Legal Aid Board places candidate attorneys in the offices of local practicing attorneys.
The Board pays the salaries of the candidate attorneys, in return for which they are required to spend a certain percentage of their time delivering legal aid services under the supervision of the principal attorney. The balance of their time can be spent on the business of the principal. This scheme is reportedly working well and seems to suit the needs of that area.
The Department's Policy Unit, in its Discussion Paper on Transformation of the Legal Profession, suggests that new roles could be developed for legal practitioners in the delivery of legal aid services that would provide work and experience for legal practitioners who have not yet built up a sustainable practice.
For instance, these practitioners could be employed in law clinics or advice offices, or as public defenders, for part of their working time. This would provide a steady income for practitioners who rely on legal aid work. The advantage for the state would be that the amount we spend on the delivery of legal aid services can be controlled and budgeted for with some degree of certainty. We will also be able to monitor the quality of our service delivery.
An opportunity has been created for legal practitioners by the Legal Aid Board's announcement that it will no longer provide legal aid in personal injury cases. As we all know, recent legislation now allows practitioners to accept instructions in these matters on a contingency fee basis.
Being able to act on a contingency fee basis requires the development of a whole new approach by legal practitioners. It provides the opportunity for you to assess the risk of a situation and act upon that decision.
When a client approaches you with such a matter you will need to apply your legal expertise to assess whether the claim is one that is likely to succeed, or not. You will have to judge whether it is worth your while to work on a case where settlement and payment is based on a contingency fee.
High risk, high profit - it is one of the elementary laws of basic business practice.
Those of you in private practice are all business men and women. But there is a strategic difference between you and most players competing in the commercial world: you came to the business environment equipped with excellent qualifications as well as extensive skills and expertise.
Attorneys who are good at risk assessment will benefit from this opportunity and the injured party whose claim is sound will also reap the benefits of the system.
I believe that there are many prospects for growth in legal practice. The rule that previously prevented attorneys from appearing in the High Court has been lifted and many are taking advantage of the opportunity to conduct full-scale litigation practice.
The rules that restrict attorneys from advertising the services they offer have been relaxed. More people are taking out insurance cover to enable them to pay legal fees. In developed countries, like Denmark, eighty percent of the population carry legal insurance as part of their comprehensive insurance. As socio-economic conditions in South Africa improve we will move in this direction, enabling more and more people to use the services offered by private legal practitioners.
I have sensed a tendency for the legal profession to be defensive about its turf, often complaining about the inroads which other sectors are making. In my experience a defensive attitude is generally counter-productive. Clients will come to you if you offer the best service at the most cost-effective price. Clients will feel confident about using your services if they know that you represent a well-regulated profession, for this constitutes an endorsement of your competence and integrity. These are the factors that make for a successful and respected profession.
It is in the interests of nation building that the legal profession should be successful and play a constructive role in our society. Our Constitution guarantees a wide range of human rights which people are entitled to have enforced and they look to the legal profession to enforce those rights on their behalf . A democratic society requires effective administration of justice. This will best be achieved if the state and the private sector act in partnership to promote the values enshrined in the Constitution.
As I said at the beginning, the demands will increase. As we move into the twenty-first century, more people will need more services across an increasing range of issues.
The Ministry and Department want to work with you to design the most cost-effective, practical and deliverable solutions. We need a collaborative effort. We need your inputs for constructive and affordable solutions.
We believe that the initiatives I have mentioned help to put us on the right track. But we need more. We need a willingness for exploration of new ideas, not a reflex defense of the old status quo.
On this note, I wish you all well with your Annual General Meeting and trust that the business concluded here over the next few days, lives up to you collective expectations.
Thank you.