About the Initial 2015 PILS Research Project
Commissioned by the Ford Foundation and the RAITH Foundation, the Socio-Economic Rights Institute of South Africa (SERI) conducted a study about the public interest legal services sector in 2014 and 2015. The study considerd:
- the nature of the public interest legal services sector in South Africa;
- the context in which it operates; how its value and impact can be best characterised and measured;
- to what ends organisations within the sector coordinate their activities and collaborate with each other;
- and what role public interest legal services play in expanding access to justice given the high cost of legal services.
The researchers consulted a wide range of people within, and connected to, the public interest legal services sector. These included legal practitioners, researchers, advocates for change, NGO managers, social movement activists, community advice office workers, community-based organisers, donors and judges.
The report first examines the context within which public interest legal services are provided. Second, it discusses what the available literature and our informants say about how to characterise the value and impact of work within the sector. It proposes a multidimensional approach to characterising the value of public interest legal services. This approach focusses on broad “issues” rather than on individual “cases”, while accounting for the direct and indirect material impact of particular interventions, as well as their broader political and symbolic value. Third, the report considers the state of coordination and collaboration within and outside the public interest legal services sector. Fourth, the high cost of legal services is explored as a major obstacle to the public interest legal services sector’s capacity to facilitate access to justice. Finally, the report makes a range of recommendations.
A key finding of the research is that a tougher regulatory approach to fees is required. Many respondents in the sector support the idea of a fees guideline but most are opposed to a cap on fees. Another key conclusion concerns expanding sector capacity to train and retain legal practitioners. Constraints to training and retaining staff include perceptions about public interest law centres at the bar, the requirement that NGOs have to pay costly door membership at some of the individual bars for in-house advocates and constraints to training advocates at public interest law centres. Many respondents spoke about the lack of racial transformation in the public interest legal services sector. Finally, the study identifies the Legal Practices Act as a meaningful opportunity for strategic reform of the legal profession.
A Multi-Dimensional Approach to Value and Impact
In consultations on the draft report, public interest legal services organisations tended to confirm the usefulness of the multi-dimensional approach to characterising their work set out above. We propose, therefore, that donors should consider long term support and investment in recognition of a multi-dimensional approach to impact and to direct support at the development of sustainable organisations in the sector. The organisational focus follows from the emphasis we propose on issues and methods, rather than cases. The multidimensional approach reinforces the need for a broad definition of public interest legal services organisations and should encourage donors to take the under-funded community based advice organisations more into account.
Coordination and Collaboration
Public interest legal services organisations should continue to grow and develop existing initiatives further. Consultations on the draft report emphasised the need for donors to investigate and recognise the existing networks of communication and collaboration within the sector, preferably without imposing onerous new donor reporting requirements. A sector mapping exercise should be undertaken by donors in collaboration with public interest legal services organisations to better define the roles and inter-relationships of the full range of legal services organisations. This may contribute to better understanding the role of non-litigating organisations. The exercise will help establish a “pipeline” through which community advice offices can refer issues and cases to specialised organisations capable to dealing with them. Donors should support community-based legal training; especially case referral systems, training programmes, and the provision of legal supervision. NGOs could play a role in providing to these training needs. Donors should consider a special fund for reactive litigation in response to urgent or unexpected circumstances. Existing capacity in the legal profession is limited in such circumstances as the existing pool of attorneys on which to draw is too small. Increasing capacity in the sector, addressed below, is only part of the solution as it will take time to achieve.
Public Interest Legal Services and the Legal Profession
Donors should develop flexible fee guidelines in consultation with grantees to address concerns about high legal fees in the sector. Respondents generally support the idea of a flexible and discretionary fees guideline – providing guidance based on shared principles applied with a measure of discretion – as opposed to an inflexible cap on fees that would set a maximum fee for counsel per day. The fees guideline should be informed by the existing practices of Legal Aid South Africa, the land reform sector and the historical examples such as the Defence and Aid Fund. The consultations make it clear that the application of these guidelines should be discretionary. Another key conclusion concerns expanding sector capacity to train and retain legal practitioners. To specifically address growing and retaining capacity in the sector, we propose that donors should consider the provision of funding for:
- Training and developing the advocacy skills of attorneys in the public interest legal services sector.
- Increasing the employment of in-house advocates in those organisations that deem it appropriate.
- Providing pupillage bursaries or sabbaticals.
- Developing human resourcing plans to address internal racial and gender transformation.
The study has been published as a Research Report, Executive Summary and an Informational Pamphlet, and makes important recommendations to donors and public interest legal services organisations based on its findings.