By Sandile Tshabalala · 30 Sep 2014
Twenty years since the dawn of our democracy, many South Africans remain marginalized and unable to reach their full potential due to a series of obstacles. Our constitutional democracy gives equal rights to all citizens. However, inequality remains a challenge. Poverty, crime and xenophobia haunt our society on a daily basis. In the midst of a legal order that affords equal rights to all, the lived experience of ordinary South Africans is of critical concern. Their access to justice is severely restricted.
But this could be on course for change. On September 20th this year, sixteen years after Justice Arthur Chaskalson articulated his vision for “community service” to be introduced to all law graduates in order to improve access to justice, parliament passed the Legal Practice Bill, which was signed into law by President Jacob Zuma. The Legal Practice Act is set to transform the legal system in South Africa, potentially making access to justice easier for many South Africans because Section 29 of the Act contains a provision for community service.
This is a significant milestone for the transformation of legal education. The Act seeks to transform legal education in a manner that allows law graduates to develop skills that are relevant and of interest to the needs of our society. In essence, law graduates can no longer attain their law degrees without mandatory exposure to the social, political and economic realities of all South Africans.
This change is in line with constitutional imperatives. Section 3 (2) of the South African Constitution provides that “we are all subjects to the duties and responsibilities of citizenships.” It is within this constitutional context that law graduates are obliged to make a difference in our society.
In a constitutional democracy, legal education plays a vital role in ensuring that members of society are aware of their human rights, have adequate access to courts and legal representation as well as certainty that justice will be served.
Accordingly, the prevailing standard of law graduates going straight from law schools to law firms will be deterred by time first spent in a specific community, working alongside public interest law firms, law clinics or courts targeted at giving the most marginalized members of our society access to justice.
This shift will enable law graduates to have a deeper understanding of our legal system, its attempt to heal the wounds of the past, restore the dignity of all and envision a future that upholds the values of Ubuntu. In turn, ordinary members of our society will have easier access to legal information. They will have law graduates assisting them with their legal cases and thus circumvent the need to appoint lawyers that charge exuberant fees.
Perhaps, the notion that our legal system favours the wealthy may change because poor people will finally have access to law graduates who are not pursuing wealth from the moment they graduate, but rather inserted into a programme that exposes them to achieving justice for common good in the early stages of their careers.
The provision of community service for law graduates is aligned with Justice Yvonne Makgoro’s call for Ubuntu as new jurisprudence for South Africa. Ubuntu means, “A human being is a human being because of other human beings.” This alludes to the collective social ideals of group solidarity, humaneness and morality. Ubuntu should be evident in our everyday interactions with other South Africans regardless of their race, gender or class. The value of Ubuntu pertains to the reality of people living through the help of others, such as letting your individual welfare be the welfare of the nation. When law graduates find themselves in various diverse communities serving the needs of the people, such practice will be incorporating Ubuntu into the legal practice.
The Legal Practice Act is public-centred and serves a major governmental mandate to achieve various constitutional goals. Principally it is aimed at “healing the divisions of the past and establishing a society based on democratic values of social justice and human rights.” Certainly the new dispensation in our legal system will ensure that lawyers cannot afford to sit back and watch the transformative goals of our constitution slide into disrepute.
This is echoed in the recent Social Inclusion Policy Framework of the Department of Higher Education and Training, which calls for all higher education institutions to develop holistic social policies that are focused on the most marginalized sections of our society. In other words, the policy encourages universities to establish socially responsive projects for all students, to foster community engagement and invest in transformative change in our society.
Much work remains to be done before the Legal Practice Act is effectively implemented. Law graduates will only meet the legal needs of South Africans with enthusiasm if consensus between them and the Department of Justice and Constitutional Development (DOJ & CD) is reached on the logistical processes of implementing the Act. It is crucial that the DOJ & CD takes to heart the concerns and opinions of law graduates prior to the implementation of Section 29. Students must be allowed to negotiate all matters relating to the provision of community service.
The DOJ & CD should avoid reaching a point where students get their degrees and leave the country because of disagreements with the processes and standards set out for community service. Quite significantly, the implementation of Section 29 should contribute to the skills development of law graduates such that after doing community service, they are competent lawyers beyond doubt.
It is undeniable that South Africa is moving into a new phase of legal education that goes beyond lecture halls, tutorial rooms and libraries. The Legal Practice Act represents a wonderful opportunity to increase access to justice for the poor by including community service as a core component of learning. It is now incumbent upon all to make this new system work not just for communities, but for law graduates too.
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Difficulty of Interpretation
You say "in essence, law graduates can no longer attain their law degrees without mandatory exposure to the social, political and economic realities of all South Africans."
But the act does not mandate community service for law students, but graduates. So essentially they can obtain their degrees without mandatory exposure. Whether or not they can be registered is a different story. Your article is couched in terms that suggest that it will change legal education DURING a law degree, and not AFTER as the Act is suggesting.
"Clause 29(1) provides that the Minister must, after consultation with the Council, prescribe the requirements for community service. Community service MAY be a component of practical vocational training OR a minimum period of recurring service by legal practitioners upon which continued enrollment as a legal practitioner is dependent."
The Act does not make community service a requirement until the Minister's proclamation does. In this regard he is offered a choice. Again, your article is couched in terms that make it seem as it is a definite. Jumping the gun a little?
Nevertheless, I am myself having interpretive issues with the provision.
Another Brick in the Wall - Pink Floyd
>>"...Ubuntu as new jurisprudence for South Africa. Ubuntu means, "A human being is a human being because of other human beings." This alludes to the collective social ideals of group solidarityâ€¦"
Collective social ideals of group solidarity? New jurisprudence? Big words indeed. But what does it means in practice?
Where does the individual, individual preferences and freedom fit into this doctrine?
"We strive to be like all our brother men, for all men must be alike." Over the portals of the Palace of the World Council, there are words cut in the marble, which we repeat to ourselves whenever we are tempted:
"WE ARE ONE IN ALL AND ALL IN ONE.
THERE ARE NO MEN BUT ONLY THE GREAT WE,
ONE, INDIVISIBLE AND FOREVER."
"We repeat this to ourselves, but it helps us notâ€¦" Ayn Rand from 'Anthem".
My understanding is that Ubuntu is basically a selfish concept boiling down to 'my own first always.'
And I notice that Ubuntu means precisely whatever a particular speaker wishes it to mean and it differs from speaker to speaker and occasion to occasion.
That is why the word and the vagueness surrounding it, are such powerful tools in the hands of among others those collectivists that benefit most from slavery, servitude and forced labour in disguised forms, duly prohibited by Section 13 of the Constitution, 1996.
These uncanny operators manipulate people and situations from their commanding heights. Forced â€˜community serviceâ€™ without due remuneration disabling graduates to service their study loans and ignoring sustenance requirements is a prime example of undue manipulation. Students that pay their own way through university owe nobody anything. Expect a major backlash. Those with bursaries have in many cases negotiated contractual obligations that they must fulfil.
This Ubuntu collectivism denying individual rights is in my opinion the root of feudal tribalism. It dis-empowers individuals by overemphasizing collectivism in conflict with Article 1 of the UN Universal Declaration of Human Rights that strike a balance between 'brotherhood' on the one hand and freedom on the other hand-
'All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.'
What were the Multi-Party Negotiators thinking in 1993?
>>"Certainly the new dispensation in our legal system will ensure that lawyers cannot afford to sit back and watch the transformative goals of our constitution slide into disrepute."
This remark made me think about the role of lawyers in a democracy.
What are the origins of this social justice obligation placed on the judiciary/courts and how does it tie in with the separation of powers between the legislature, executive and judiciary?
Are the practicing lawyers of SA in fact guilty of dereliction of duty and if so, what must be done about it? Forced labour is not my idea of freedom.
I think we must be more realistic than idealistic.
Lawyers can merely be lawyers and nothing more. Some social justice exponents overburden them with idealism and expectations that they apparently cannot meet. The best they can do jointly and severally is in my opinion not to make anything worse. This is unfortunately what is happening.
Society is complicated and the fact that politicians blatantly ignore court orders and lately also the public protector, is indicative of a malfunctioning relationship between the judiciary and the executive that exposed the limited power and jurisdiction of the judiciary for all to see.
"Accordingly, we should not immediately be alarmed when debates about the proper ambit of judicial power arises. It is a debate that is endemic in democracies. But the question of the proper role of the courts, and the Constitutional Court in relation to policy is a recurring question in our democracy." Justice Kate O'Regan
"So the 'attractive' solution of a public protector (read lawyers) heroically ordering the government to mend its ways would change far less than those who always prefer the judgments of lawyers to the uncertainties of democracy would have us believe. And it may prove dangerous to the constitution, to democracy, and to citizens seeking to hold the government to account.
In democracies, law is important but politics is decisive. It will take a political battle to tame corruption: the law can at best offer support. 'Solutions' that want to replace politics rather than making it work are more likely to weaken democracy than to end wrongdoing." Dr STEVEN FRIEDMAN. (My insert)
Maybe the Multi-Party Negotiators were too idealistic when formulating constitutional principles VI and VII of the Constitution, 1993. Maybe they were under the wrong impression that the executive will have ready-made policies and unlimited financial capacity, logistics and manpower on tap so to speak, in post-apartheid South Africa.
There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.
The judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.
The "safeguarding and enforcing" of fundamental rights by the courts need to be defined more carefully if South Africans are in fact serious about the rule of law and the correction of the compromised authority of Chapter 8 and 9 institutions.