Access to Justice- Legal Costs and Other Interventions
Dealing with costs of Access to Justice, Legal Costs and Other Interventions
through Community Advice Offices
Paper Presented by Seth Mnguni: Chairperson of the Association of Community Advice
Offices of South Africa.
1. Abstract
This paper shows that marginalised communities in South Africa do not have access to
justice because of the exorbitant costs and sophisticated processes from government
services. It also proposes an alternative to address this, asking the Government to support
the work of community Advice Offices as alternative structures that facilitate access to
justice to marginalised communities in rural and peri-urban areas in South Africa. Drawing
from years of practices in the sector, the paper demonstrates how cost-effective the services
of Community Advice Office practitioners are compared to Government Services.
The South African Government, in terms of the Constitution as well as under various
international instruments, has an obligation to ensure access to justice for all citizens, as a
basic human right. However, many communities, and particularly rural communities, do not
have access to legal advice as a result of cost, ignorance of the existence of state equivalent
centers, a fear of engaging the legal aid system, and the distances they have to travel to get
to such centers. In addition, in poor and/or rural communities served by Community Advice
Offices (CAOs), many potential social service beneficiaries are unaware of their eligibility for
social benefits, or are daunted by the administrative requirements involved in applying for
them.
Throughout the years, Community Advice Offices have been assisting their clients
through legal advice, but also in community conflict resolution, labour disputes, job-
seeking, counselling, filling out forms and even aiding in the process of documentation
and providing assistance with transport to access government services. In other words,
in many rural communities, Community Advice Offices are conduits for individuals to
gain access to a variety of state services which make a huge contribution to their own
and to community welfare.
In 2014, the National Alliance for the Development of Community Advice Offices
commissioned a study that made a cost benefit analysis of the services of Community
Advice Offices in South Africa. The study showed that the services of Community
Advice Offices were more cost effective compared to government services.
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Access to Justice- Legal Costs and Other Interventions
The Department of justice and Constitutional Development has the mandate to deliver
access to justice to all in South Africa. It is aware of the value of CAOs, as they provide
first-stop or ‗early action‘ paralegal services as well as a range of other advice and
assistance functions, despite the lack of financial support. That is why it is important to
empower institutions that are working at the grassroots levels, and interacting with
communities, especially in rural areas.
2. Introduction
― Everyone has the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum. ( Constitution of South Africa, section
34).
In South Africa, when a person or client needs an attorney, the main question that is in the
person‘s mind is how much it is going to cost. Going to an attorney for legal advice or legal
service comes at a cost and most of the time at a very expensive if not unaffordable cost.
Let‘s take the scenario of a person who wants to approach a legal professional. The
process starts by making an appointment, not being sure if the practitioner is available.
Despite the urgency of the case, the client needs to check the availability of the legal
professional. After the appointment is set, the process of explaining the problem to the
attorney comes with its own challenges, for example to prove that the case really needs the
intervention and the services of the legal professional. If the client succeeds in
demonstrating that the case needs the attorney, the following step is to discuss the costs in
terms of money that will be spent. Most of the times, these are estimates, costs that might
fluctuate if things get complicated or if things take longer than expected.
In this scenario, the client is at the mercy of the legal professional and the processes. The
application of this section of the constitution cited above becomes almost a myth because
the resolution of the dispute is dependent on the availability of representation, of the
processes and contingent of the costs. This is true for those who can financially afford the
costs and for those who cannot afford the services of the legal professional.
The Constitution of the Republic of South Africa is one of the most progressive, and despite
the great provisions and great intentions, one needs to acknowledge that the country is still a
young democracy with its own challenges. The economy of the country is still developing, a
country that is trying to fix the negative legacies of apartheid. South Africa remains an
unequal society, where many people live in abject poverty, many living in rural areas.
Affording legal services for this category of people who make the majority of South Africa is
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Access to Justice- Legal Costs and Other Interventions
an impossibility. Equality is the basis from which the constitution is founded, but many
cannot afford legal services, particularly in civil matters. For the majority of the population in
South Africa, these services are not available.
Amongst the barriers to access these services are the socio-economic status, the
geographical location, the level of education, etc. Because of these barriers, I argue that
South Africa remains an unequal society in terms of access to legal services and that the
majority of its population cannot afford these services. This paper therefore sustains that
South Africa remains an unequal society and as a corollary, the majority of its population
does not have access to legal services, or cannot afford these services because of their
costs. The paper proposes an alternative that deals with these costs; a complimentary
system that promotes the work of community justice institutions who work with the majority
of populations living in rural areas, and for whom legal costs are unaffordable.
This paper is divided in two sections: Section 1 will demonstrate that the costs of legal
services are exorbitant, and for this reason, ordinary South Africans cannot afford these
despite the provisions of our progressive constitution. This section will touch on the
complexities around the formal judiciary system, which processes are a hinderance to
access to justice for the majority of South Africans.
The second section will propose alternative mechanism to reduce these costs. Having
worked in the Community Advice Office sector for decades, I have experienced first-hand
the challenges faced by ordinary South Africans when it comes to access to justice, access
to legal services. My experience as a Community Advice Office practitioner; having worked
with communities at grassroots, I have knowledge of the successes of alternative dispute
resolutions in our communities , which successes have restored harmony between
antagonist parties through mediation processes and at no cost to clients. This section will
therefore militate for the recognition of the work of Community Advice Offices as
complementary system to the formal judiciary system and supporting our work will reduce
the costs of legal services for our communities and for many in South Africa.
3. Legal costs and processes in South Africa
This section will briefly demonstrate that for the majority of South Africans, legal costs and
processes are too complex and unaffordable. The first subsection will briefly focus on
demonstrating that legal processes are too complex, costly and take long. The last
subsection will show that the majority of South Africans cannot afford legal services,
because of the costs.
3.1. Legal processes in South Africa
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Access to Justice- Legal Costs and Other Interventions
― It is often difficult for clients to get clarity on what to expect in the way of feed. …It
takes a long time before the case gets to trial and judgment is granted awarding
costs1.‖
In South Africa, when a person wants to approach an attorney for legal advice or legal
services, the process starts by identifying the appropriate attorney. It is almost a gamble
and attorneys are asked to advise their potential clients regarding the costs for their
services, the complexities around the processes and the time that will be spent for the
undertakings to be concluded.
The Law Society of South Africa lists the rights of a client2 and I have selected some points
that are relevant to this paper.
― As the client of an attorney, you have the right
to agree to the type of service you can expect and receive;
to clear explanations in terms you can understand;
to find out from the start of the consultation what you are hoping to achieve, and aim
to make sure that your expectations are realistic;
to be advised on the likely success of your matter and not to do unnecessary work
that will lead to unnecessary expenses;
to an explanation of the cost implications and how the costs are likely to be
calculated;
to be kept informed of costs, so that you can work out if a particular course of action
is worth following financially.
to be kept updated on developments and on progress as work on your matter
proceeds….‖
The provided list applies to those who are able to afford an attorney, and in principle, every
client should be able to tick this checklist. However, as stated above, many attorneys do
not talk about the costs implications, they do not talk about how much money will be spent.
Many clients go to attorneys with expectations, but they are not made aware of the
exorbitant fees that they will have to pay.
1
( MA Cooper Attorneys & Conveyancers, MA Cooper Attorneys & Conveyancers( 2018) The prickly matter of
legal costs, Available at https://www.cooper3e.co.za/legalinfo/legalcosts.html
2
Law Society of South Africa: Your rights and responsibilities as the client of an attorney. Available at
http://www.lssa.org.za/public/complaining-about-an-attorney/your-rights-and-responsibilities-as-the-client-of-an-
attorney
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Access to Justice- Legal Costs and Other Interventions
In terms of duration, courts procedures do take long, and it is the responsibility of the
attorney to inform the client regarding this. But in most of times, attorneys do not control the
time factor, and the clients are at the mercy of the attorney and the more the case takes long,
the more costs are incurred. Providing reasons for which people are dissatisfied with the
way courts generally deal with perpetrators of crime, Statistics South Africa 3 indicated that
many households (16.1%) felt that matters dragged for too long.
In terms of providing clear information, the attorney is requested to provide a ―clear
explanation of what the client can understand.‖ In most of the cases, legal documents and
judgements are written in jargons that only those who are legally literate can understand.
Even those who can afford an attorney do not understand the language. In actual facts,
attorneys do not explain the complicated concepts to their clients.
The same report provides figures of South African‘s perception on how courts deal with
matters in terms of fairness. The report indicates that the majority (45,8%) of the households
felt that the courts were too lenient on criminals when passing judgement. This proves that
people do not understand how courts function or what is punishable of not punishable.
When it comes to pieces of legislation passed by the national legislature, passed at
provincial and local levels; some of which need to be explained as they also cater for the
needs of individuals and communities. Unfortunately, for many in South Africa, access to
legal information is an impossibility.
3.2. Legal Services unaffordable for most South Africans
It is now widely recognised, especially on the African continent, that access to lawyers
simply is not a reality for many - not only because of the prohibitive cost4 that such services
represent, but also because in many jurisdictions there are not enough lawyers to represent
all those who need their services. Legal representation in court is usually not a function
exercised by paralegals but by lawyers, and paralegals therefore complement the work of
lawyers by performing other forms of legal aid or assistance and hence facilitating access to
justice.
A study commissioned by the National Alliance for the Development of Community Advice
Offices and the Technical Support & Dialogue Platform (TSDP) in 20145 found that despite
3
Statistics South Africa. Victims of Crime Survey, 206/2017. Available at
https://www.statssa.gov.za/publications/P0341/P03412016.pdf, accessed on 15 September 2018
4
Gwenaelle Dereymaeker. 2016. Formalising the role of paralegals in Africa: A review of legislative and policy developments
5
HSRC. 2014. Towards a Sustainable and effective Community Advice Office sector in South Africa: A Cost Benefit and
Qualitative Analysis
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Access to Justice- Legal Costs and Other Interventions
advances in access to legal services, barriers continue to persist in democratic South Africa.
These barriers are strongly correlated with poverty, location, gender and education levels.
That is to say, individuals who have inadequate access to justice are often women with low
education and low income levels, who live in rural areas, in historical townships or informal
settlements. Poorer South Africans remain under-served when it comes to access to justice,
and this reality prevails also in access to basic legal advice.
There are costs attached to access to justice or legal services and these constitute a major
barrier for the majority of South Africans, many who cannot afford these costs. Studies that
done by the UN commission on Legal empowerment and Statistics South Africa confirm this
assertion. On the global scale, a gap exists for two thirds of the population of the world in
terms of access to justice and in South Africa, 52% of the population living in rural areas are
unemployed and 32% households depend on government grants6. These people are not
able to afford legal costs or legal services as provided by the formal judiciary system.
Clearly, the architecture of the formal justice system excluded the most vulnerable of our
society, and these constitute the majority of South African population. The costs, the length
of procedures, the lack of legal education are amongst some hindrances and these make
the costs of legal services unaffordable for the majority of the population in South Africa. It
is therefore important to find complementary mechanisms that can fill the gap and that can
deliver access to justice to the marginalised communities and other groups who cannot
afford the costs attached to legal services. The following section will focus on demonstrating
that Community Justice institutions have been delivering access to justice at a very low cost
and these institutions, if supported they can be the ones that will help in reducing the costs
attached to legal services in our communities.
4. Community Advice Offices to deal with costs of Access to Justice, Legal
Costs and Other Interventions
After serving in the community Advice Office sector for decades in South Africa, I have met
ordinary citizens in need of legal advice and services. These ordinary people have been
complaining about the costs of accessing justice in the formal judiciary system. They have
complained about the complexity of the system, about the length of the procedures and
about the lack of information. Throughout the years, my work has been to help these people,
offering them advice and facilitating legal services for them. This section will therefore focus
on the work that community Advice Offices and how they are beneficial to communities
6
www. statssa.gov.za. accessed 14 September 2018
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where they operate from. I will first focus on the history of Community Advice Offices in
South Africa and finally, I will briefly talk about the work that we do at the Ntsu community
Advice Office in Pretoria North, in the Gauteng province. I will conclude this section by
showing how cost effective are the services offered by community Advice Offices.
4.1. Brief history of community Advice Offices in South Africa and their nature
Community Advice Offices (CAOs) and paralegal services in South Africa date back to the
late 1930s with the establishment of the legal aid bureau in Johannesburg. CAOs, according
to a study commissioned by The Atlantic Philanthropies, witnessed an unprecedented
growth in the 1980s with increasing repression and violence as the apartheid state went into
crisis (Benjamin, 2012). Many of these CAOs had strong links with the United Democratic
Front (UDF) and many present officials of the African National Congress (ANC) worked as
paralegals for CAOs in the 1980s. However, the CAO sector remained challenged by
fragmentation and the absence of a clear policy framework for its work.
In 1996, a new player—the National Community-Based Paralegal Association (NCBPA)—
emerged as a network of 9 provincial paralegal associations. Its overarching mandate was to
strengthen the fragmented sector and institutionalize paralegal services. Although the
NCBPA eventually disbanded, Black Sash and five other association members pooled
resources and created the first alliance in the NGO sector in South Africa. A key objective of
forming NADCAO for the Black Sash was to contribute to the resilience of the community-
advice office sector. Thus, NADCAO was born out of a donor-driven exercise—in
comparison to NCBPA NADCAO was neither a representative structure of community-based
paralegals nor would it raise funds for individual Community Advice Offices.
Community Advice Offices are small, non-profit organisations that offer free basic legal and
human rights information, advice and services to people who are marginalised through
poverty, social circumstances and geographical location. They are non-partisan and non–
political in their operation. CAOs deliver their services with limited funding, where necessary
by pooling community resources and staff labour and time capacity. CAOs and paralegals
were considered separate entities in South Africa in the past, but have now unified in the
discourse. As Benjamin (2012:4) indicates, CAOs and paralegals have been part of the
social and political landscape in South Africa since the 1930s. Over time, the integration of
paralegal work to assist communities in need appears to have become core to the perceived
value and effectiveness of CAOs. It is ‗here in the CAOs that paralegals contribute the most
broadly to the promotion and enforcement of access to justice across South Africa‘ (Dugard
& Drage, 2013:12). NADCAO (2007:6) also emphasised how the ‗key imperative is access
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Access to Justice- Legal Costs and Other Interventions
to social justice by the poor in South Africa, and in this sense, the advice office sector
remains the key advocate and service provider for the very poor and marginalised in the
country‘
Dugard and Drage (2013) highlight how CAOs often fill a critical gap by providing dispute
resolution and legal support which is both geographically and financially accessible and,
given CAO embeddedness in community contexts, tends to be informed by a deep
understanding of the social issues and everyday challenges confronting their users. CAOs
look out for those members of society who often struggle to look out for themselves, those
whom may be described as vulnerable. Quite often, as McQuoid-Mason (2013) highlight,
this includes, women and children, the urban and rural poor, and other indigent marginalised
groups. Within this context paralegals not only give legal advice and assistance, but also
attempt to resolve disputes through alternative dispute resolutions. Furthermore, in response
to need, the literature indicates that many offices have also built up expertise in specific
areas of HIV/AIDS, pensions, unemployment, insurance and unfair dismissals.
I focus below on briefly describing that I have done at the Ntsu Advice Office, demonstrating
how our work has serviced our communities, facilitating access to justice almost at no cost.
4.2. Ntsu Community Advice Office
The Ntsu Advice Office started operating in 1996, then called the Mabopane Advice Centre.
The Office covers a big area, operating in communities that include Mabopane, Winterveldt,
Soshanguve, Brits, Ga-Rankuwa and Hammarskraal. Like other advice offices, its location
suggests that it serves the marginalised, who feel like state institutions have not provided for
them. The vulnerable, unserviced, and those who cannot afford the courts come to this place
for assistance – a majority of who make up the stated communities. For many of these
people, the Advice Office is their only hope for justice as they are excluded from both private
and government services owing to their socio-economic status.
Access to justice remains elusive to millions of South Africans, and many more could be cut
off if community advice offices were to close their doors and the Ntsu community Advice
Office that I coordinate and that I founded, has been working to close the gap.
When the Advice Office started, it was receiving a few cases, and resources were scarce.
Today, the Advice Office is always full, and has even extended its service to Saturdays to
accommodate the growing case volume. The Office is generally busy as people come to
consult and receive advice. There is usually a number of people lining up to wait for their
turn to be attended to, and these are assisted accordingly. Most of the cases dealt with are
supposed to be dealt with by government departments, but this is not always possible.
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The Office can get up to more than 15 cases a day, and these come as referrals from the
Magistrate Court, from Legal Aid and from ordinary people.
Matters dealt with range from family disputes, neighbourhood disputes, debt problems,
unfair dismissals, problems regarding the attainment of death certificates, burial society,
child maintenance, Road Accident Fund cases, social grants, land issues, among others. In
2016, for instance, the Office recorded more than 1 500 cases on the Case Management
System database. More than 80% of the cases are solved within the office and the
remaining 20% are referred to the Small Claims Courts. Some of the cases that we are
unable to handle are referred to other higher courts.
One of the most common tools we and the paralegals use to help people with both
neighbour and family disputes is mediation. The work of community advice offices consists
of giving people space to talk and express themselves as most people want peace and that
is always achieved through mediation. This facilitates peace, justice, and community welfare.
The Ntsu Community Advice Office brings the law to the community and uses the law to
connect people together, demystifying the perception of the law as dividing people, our
efforts have helped reducing the processes and the costs.
4.3. Cost effective
I referred to a study7 that investigated the economic benefits as well as the socio-economic
advantages that are derived from the services provided by Community Advice Offices, which
are frequently provided in areas where government institutions and departments are not
available or are at considerable distance away from citizens. The study provided a fuller
qualitative and quantitative picture of the performance, successes and limitations of CAOs
which would need to be addressed in order ensure that public funds are used efficiently and
in keeping the principles of good financial governance.
The case of the Ntsu Community Advice Office mentioned is an illustration of how costs can
be cut if public funds were directed in supporting the work of community based paralegals.
Because if the successes recorded by the advice office, a partnership was established with
the Ga-Rankuwa magistrate court that refers cases to the Advice Office and the advice
office does the same.
The testimony of the chief magistrate goes as follows:
7
Cost Benefit Analysis, Nadcao 2014
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Access to Justice- Legal Costs and Other Interventions
―If I compare the time I take in order to finalise a case with the time that Mr Mnguni
spends on a case, I can say without any doubt that Ntsu Advice Office is saving time.
In my case, from the time when the case comes to me, to go through the normal
procedure, it takes months to resolve. In the case of mediation, it is immediate; it is
efficient in terms of time. In my case, from the time an affidavit is brought to me, I
need to get confirmation from the complainant, I need to find witnesses, I need to
cross-examine the witnesses, there can be postponements, etc. The whole process
takes months to finalise. … The affidavit, confirmations, witnesses, cross-
examination, postponements - the whole procedure takes months.‖
Mediation is immediate and cost-effective. For those people who cannot afford the
expensive courts or where the government cannot help, the community advice office steps in.
The Magistrate at Ga-Rankuwa agreed with this:
―Most of the people who come in for help are those coming from disadvantaged
backgrounds and cannot afford the expensive legal advice/assistance. These are
able to receive free and fair legal service at the Ntsu Community Advice Office‖.
Community Advice Offices deal with a large number of cases. The 1 500 cases mentioned
above per year are an indication of the importance of their work, the number of people they
receive and the costs are minimal. The Cost benefit Analysis referred to above argue that in
terms of cost implications, the Community Advice Offices will cost government less than
courts. The study suggested that an annual CAO funding of a minimum of R 200 000 for
operational costs could suffice to make the office efficient. This is very efficient in terms of
reducing legal costs for communities if we were to compare the 1500 cases resolved by a
Community Advice Office per year to the same number of cases resolved in courts in terms
of costs, the length of processes. In addition to this, one needs to consider the emotional
effects on people.
5. Concluding notes
There is a lot happening in the Community Advice sector and that cannot be put in this
paper. Having worked in the CAO sector for decades, I have experienced first-hand that
feeling of being rejected by the judiciary system; the people we serve in our communities
feel the same because they cannot afford the costs attached to legal services. We have
worked tirelessly and we will continue asking Government to support the work of Community
Justice institutions. Our first request has been the recognition of the work we do and its
value to our communities and to the state. We are working towards the regulation of the
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Access to Justice- Legal Costs and Other Interventions
Community Advice Sector. We have asked government to support the work of community
based paralegals, because at the end of the day, we step in to fill the gap where government
cannot reach. And in terms of demography, we can say without fear that we service the
majority of the population.
Community Advice Offices deliver in the most difficult conditions, yet they serve
marginalised and unserviced constituencies. Given the challenges in access to justice in
South Africa‘s poor communities, it would be difficult to imagine a scenario where all the
people serviced Community were not attended to. Without their work, a huge section of the
society would be unable to access some of basic legal services and enjoy their rights
because of the costs of legal advice and services. Therein lies the relevance of a
community Advice Offices, and the importance of collaborative work with the formal justice
system in pursuing access to justice. Supporting these grassroot institutions will definitely
reduce legal costs and services in South Africa.
Bibliography
Benjamin, S. 2012. Joining Forces for the poor. Alliance-building for social justice in South
Africa and the story of the National Alliance for the Development of Community Advice
Offices. Study Commissioned by The Atlantic Philanthropies. Online Available:
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poor.pdf
Dugard, J. and Drage, K. (2013). To Whom Do The People Take Their Issues? The
Contribution of Community-Based Paralegals to Access to Justice in South Africa’. Justice
and Development. Working Paper Series 21/2013.
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McQuoid-Mason, D. (2013). Access to ustice in South Africa: Are there Enough Lawyers
O ati Socio-Legal Series. 3 (3): 561-579.
NADCAO (2007). Research on Sustainability Options for the Advice Office sector in
KwaZulu-Natal. Indiba-Africa.
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