In an article on Politicsweb Kameel Premhid of the Helen Suzman Foundation makes some drastic yet misinformed suggestions regarding the transformation of the Bar by using funding from the State, allocated to assist the indigent through Legal Aid SA, for private legal practitioners.

He suggests that Legal Aid SA should reduce its staff, and give the work to advocates presently at the Bar with under five years of practice, so as to address the issue of lack of transformation at the Bar. In this regard he explains that “…. if half of Legal Aid’s 2013 personnel cost of R900m, so R450mil, was assigned to the roughly 860 advocates presently at the Bar with under five years of practice (calculated using the average intake of pupils over 2010 – 2014, assuming perfect retention), each advocate would be guaranteed R500 000 of income per annum.”

He says that the “solution seems obvious.”

Really? What about service delivery to the poor? Premhid seems more concerned about securing private sector Bar members a guaranteed R500 000 per annum income, rather than he is with service delivery to the poor. And, mind you, his criteria for such practitioners to get work is purely that they are Bar members with under 5 years of practice.

Has Premhid read the Constitution at all?

There is nothing obvious about the situation. In fact, there are a host of other factors that Premhid conveniently ignores. Transformation demands a much more nuanced and multi-faceted approach than simply cutting down Legal Aid SA and giving the work to private advocates.

Firstly, the outsourcing model is a doomed model. It did not work and nearly bankrupted Legal Aid. At the dawn of democracy in 1994, we inherited a Legal Aid dispensation that was unable to meet the growing demands of our new democracy; a democracy with a Constitution which now guaranteed certain categories of persons legal representation by the state and at state expense. The Legal Aid Board, as it was then called, became responsible for providing legal aid in criminal cases where accused persons could not afford lawyers and “a substantial injustice would otherwise result” if they were not represented.

This brought with it its own problems, as the judicare model of referring cases to private attorneys - with no possible oversight over their work - simply became unaffordable and unmanageable and the Board was subsequently compelled to consider other, more cost-effective, models of delivery.

This lead to the implementation of a public defender model and sound organizational governance practices.

Legal Aid SA now has maintained a mixed-model legal aid delivery system, with the bulk of the service (96%) provided by in-house salaried lawyers employed at our Justice Centres.

Today we can proudly say that Legal Aid SA has been revamped and remodelled to one of the best legal aid systems in the world. It continues to discharge its mandate to facilitate access to justice by providing public funded legal representation to the poor and the indigent, and has done so in a commendable manner.

Secondly, Premhid further apparently assumes that private legal practitioners must be better at providing a service than Legal Aid practitioners. This cannot be accepted per se. In fact, all legal aid practitioners employed by Legal Aid SA are admitted attorneys or advocates and as such belong to the organised legal profession. Why should they therefore be discriminated against in favour of other Bar members? Another aspect is that the current figures and analysis regarding the lengthy periods of time that remand detainees stay in custody while their matters are being heard indicate that often the long delays are caused by private legal practitioners, not by Legal Aid.

Thirdly, on the issue of transformation, the Bar has had more than 20 years to transform. What did it do in this regard? We need a legal profession, both attorneys and advocates, which is reflective of the race and gender composition of the country.  Do we have this or are we anywhere close? The answer is no. Racially, in terms of the latest available figures, 70% of the Bar is white – while whites make up only 8.9% of the population; 18% of the Bar is African, but Africans make up 79.2% of the population.  From a gender perspective, countrywide, 25% of the Bar are women, but women make up just over half of South Africa’s population – 51.3%.

Surely it is not Legal Aid SA’s responsibility to address this – it is the responsibility of the legal profession itself.

In addition, if we look at the representivity of the legal aid practitioners we find that of the current 1924 legal practitioners only 262 are White (13,6%). Should we now penalise the Legal Aid practitioners, who meet the diversity and other criteria to serve the public, so as to ensure work for private Bar members.

Premhid’s argument shows little understanding of briefing patterns. The issue of briefing patterns is an ongoing concern and one which we are addressing. Government cannot compel the private sector to ensure an equal distribution of briefs. Government can, and does, however, pay particular attention to briefs given by the State.

The State Attorney Amendment Act provides for the development of policy on briefing patterns and mediation.  It is through this process that legal work will be allocated equitably among practitioners. This will help address long-standing concerns about the skewed allocation of briefs.

We have a target of 76% of briefs to be given to Black and female practitioners. We are meeting this goal.

We have, as a Department, taken bold steps to furthermore increase the allocation of briefs to competent previously disadvantaged individuals. We must ensure that briefs are given as widely as possible, in other words, that it’s not the same people who are continuously briefed and that female and Black practitioners are exposed to many different types of work, so as to build expertise in a variety of areas.

The most glaring shortfall in the Bar figures is with regard to African women. What is being proposed is that we need a target within the Previously Disadvantaged category for African women. In particular, we need to break down the 76% and set targets for each group.

Finally, Premhid then talks about “worthy societal goals”. Let’s discuss those goals within the context of the legal profession in South Africa. The private legal profession has had more than 20 years to come to the party on the issue of pro bono legal work. Providing pro bono legal services to the poor and indigent is a vital part of transformation.

Dave Holness of the University of Kwazulu-Natal writes that “the hesitancy of the legal community in much of South Africa to embrace mandatory pro bono work is well illustrated.” As an example, he refers to the fact that pro bono work was initially mandatory only for attorneys practising in the three Cape provinces as the Cape Law Society introduced a minimum requirement of 24 hours a year of mandatory pro bono work in 2003.

Legal Aid SA currently has a voluntary pro bono system in place and has memoranda of understanding with the statutory Law Societies as well as 3 of the 13 Constituent Bars of the GCB and the National Bar Council of South Africa.

In terms of this arrangement, legal practitioners will be required to render pro bono legal services of up to 24 hours per annum. Should a matter exceed the 24 hours in any one year, such additional hours will be counted as pro bono hours for the ensuing years to a maximum of the following 2 years.

But there are only 503 accredited pro bono practitioners who signed up for the programme.

The latest figures show that there are 23 712 practicing attorneys and 2571 advocates in the country. So out of the more than 26 000 private legal practitioners, only 503 are interested in assisting Legal Aid SA with pro bono work.

So, the issue is really much more complex than Premhid suggests.

Transformation of the legal profession is crucial. But taking work from Legal Aid SA and outsourcing it to private legal practitioners is not the answer.

John Jeffery, MP is South Africa's Deputy Minister of Justice and Constitutional Development.