Improving Access to Justice through Law Graduate Post-Study Community Service in South Africa

Abstract

Access to justice for all in South Africa, as most clearly set out in sections 34 and 35 of the Constitution of the Republic of South Africa, 1996, is necessary to realise various other fundamental rights and to improve living standards. There are insufficient free legal services available to the indigent in South Africa, especially in civil matters, thereby often making meaningful access to justice unattainable. This study considers possible approaches, challenges and opportunities for law graduate community service in South Africa (hereinafter "community service") to expand the ambit and impact of free legal services to the indigent. This would promote the constitutional imperative of access to justice, focussing on civil matters. This study concentrates on the access to justice potential of and challenges to such community service. Such challenges will be shown to include its proper utilisation and control through the adequate supervision of graduates. This paper argues that graduate community service has the capacity to promote better access to justice and hence that steps should be taken for its introduction in some form.

Community service and means for law graduates to perform this as a necessary part of vocational training before entering the legal profession are provided for in section 29 of the Legal Practice Act 28 of 2014 (LPA). But despite parts of the Act being operative, community service is neither in operation nor do regulations yet exist for its implementation.

The specific vocational training element(s) for law graduates is worthy of separate study and is not the focus of this paper. Such a separate study would include opportunity creation - such as gaining the necessary practical experience and the establishment of employment opportunities - and training challenges for graduates during community service.

In the pre-LPA era it would have been necessary to focus more on whether community service for law graduates should be included in legislation or not as part of graduates' vocational training and as a key component of free legal service delivery. Some such arguments are alluded to as community service has yet to be implemented and its implementation is not a fait accompli. But because it is now included in the LPA as a legal aid service delivery possibility, this study instead focusses on the need for the effective and appropriate implementation and operation of community service to turn the requirements and encouraging promise of the LPA on community service into reality. The paper explores issues such as the necessary and appropriate supervision and placement of law graduates completing community service. The research very briefly touches on whether community service would best be compulsory for graduates as part of their vocational training or merely one possible route towards admission to the legal profession. Lessons are sought for legal community service in South Africa from existing medical post-study community service schemes as to the role which such schemes have played in expanded service provision and impediments experienced in reaching such goals. These lessons are applied to proposals for the implementation and operation of law graduate community service.

This study considers how community service could and should be a key component of a multi-faceted and co-ordinated approach to expand and improve free legal services for the indigent in civil matters in South Africa with its gross inequality, unemployment and poverty. For this goal to be realised, there must be mechanisms for its effective roll-out and operation.