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What does justice cost in South Africa? A research method towards affordable legal services

September 2019
South African Journal on Human Rights 35(3):1-14

DOI:10.1080/02587203.2019.1662326

Authors:

University of the Witwatersrand

Access to justice is not a reality for most South Africans. While it is not the only factor, a significant part of this situation is due to the high cost of legal services. This article outlines and justifies a research method to assess legal costs for the South African and other populations. The proposed research method divides the population into three bands based on economic resources: the poor, the wealthy, and those in between. In each of these three bands, the article preliminarily surveys the costs currently pertaining to legal services in civil justice matters in South Africa.

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What Does Justice Cost in South Africa?: A Research

Method Towards Affordable Legal Services

Journal:

South African Journal on Human Rights

Manuscript ID

SAJHR-0606.R2

Manuscript Type:

Original Article

Keywords:

ACCESS TO JUSTICE, COSTS, SOUTH AFRICAN LAW REFORM

COMMISSION, ECONOMIC ACTIVITY

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The Cost of Justice in South Africa: Towards Affordable Legal Services1

Part One: Introducing An Economic Approach to Access to Justice

Access to justice is not a reality for most South Africans. As Judge J Makume has recently

observed, we as South Africans live in “a time when people around the globe, especially poor

persons, are denied access to justice as they are unable to afford lawyers or if they can afford, their

funds may dry out as such persons cannot sustain the costs associated with continued litigation.”2

This global phenomenon has its specific manifestation in South Africa. As then Chief Justice Pius

Langa observed: “South Africa has its own unique problems when it comes to access to justice. In

the face of high levels of crime, the criminal justice system faces a serious challenge to ensure that

victims have the satisfaction of knowing that those who harmed them or their loved ones are

brought to justice. Legal representation remains beyond the financial reach of many South Africans

and it is true that more money ensures better representation. That is not equal access to justice and

the challenge we face is what strategies we should adopt to rectify the position. The Constitution

should not become a tool of the rich.”3

A number of factors contribute to this reality where justice is inaccessible to most South

Africans. While not the only factor, the high cost of legal services clearly and significantly

contributes to the access to justice gap in South Africa. As indicated in the background materials for

this conference, these legal costs may include fixed fees charged by the state to members of the

public for accessing various public procedures such as filing documents in court, litigious tariffs

regulated by the Rules Board and subject to taxation, and the largely unregulated tariffs charged by

legal practitioners for legal services related to transactions and to litigation. The focus of this article

is on the tariffs charged by legal practitioners for providing legal services – the cost of lawyers.

As a significant step towards assessing and increasing access to justice in general, this article

first argues in this introductory Part One for a specific research method: assessing legal costs and

access to justice for the population in three bands based available economic resources: legal costs

for the poor, legal costs for the wealthy, and legal costs for the middle (those in between the first

two bands, generally individuals and small firms). To employ this research method is an important

initial corrective to the unfortunate reality – that access to justice does not mean the same thing nor

is it realized uniformly within each of these segments of the population. In Part Two, this article

justifies this research method on institutional, rights-based, and pragmatic arguments. Such a

1 NB: This piece is adapted from a submission accepted by the SAJHR in about March 2017, which itself

originated in form as the Cost of Justice seminar paper presented in 2014 in the WiSER Public Positions

seminar. This piece draws from most sections of the SAJHR piece except for Part 2 on the historical waves of

access to justice. In its current guise, this paper was first presented on 1 November 2018 at the SALRC

conference on Access to Justice, Legal Costs, and Other Interventions under the title Towards Affordable Legal

Services: Legal Costs in South Africa and a Comparison with Other Professions. I would like to thank the

participants at the 2014 WiSER event including the respondent, Geoff Budlender, Isabel Schmidt, Morne

Oosthuizen, the anonymous referees of the SAJHR, and the participants at the 2018 SALRC conference for

helpful comments, questions, and suggestions regarding the paper.

2 Judge J Makume, “Is Access to Justice Dependent on One`s Ability to Afford Legal Fees?,” in South African

Law Reform Commission International Conference (Access to Justice, Legal Costs, and Other Interventions,

Durban, South Africa, 2018).

3 Justice Pius Langa, “Transformative Constitutionalism,” Stellenbosch Law Review 17 (2006): 355.

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method should also assist in comparing legal costs with costs in the sectors of healthcare and

financial services. As a next step in Part Three, in each of these three bands, the article will survey

and assess the costs and resources available for civil justice, thus discussing separately and only

preliminarily legal costs in criminal matters. The extent to which there is an access to justice gap for

a potential “missing middle” of South Africans facing legal costs for civil justice matters is thus

specifically explored.

The article aims to employ (or at least demonstrate the utility of employing) an economic

approach to the provision and regulation of legal services, which is a relatively fresh way of thinking

about access to justice in South Africa. Most research and writing on access to justice in the post-

apartheid era has been conducted using non-economic analyses, including doctrinal and and socio-

legal approaches.4 An economic (or regulatory) approach was the sort of thinking that lay behind

the recent reform of legal services in the UK as well as underpinning specific Canadian research into

middle income access to justice.5 In an economic perspective, we can look at the legal sector as a

market for legal services. The sector consists of the producers of legal services, the consumers of

legal services, and the legal services themselves. While the rest of this paper will indeed employ this

approach, it should be recognized that the very definition and discourse of value in the field of

access to justice is not only contested but likely internally contradictory.6

Frank Stephen is a researcher who has approached access to justice from an economics

perspective, focusing most of his research on the market for legal services in the United Kingdom.

While there are numerous significant differences between the market for legal services in the UK

and the market in South Africa, there are significant similarities as well.7 One significant feature of

the UK market over the past 30 years has been the increasing degree of competition among service

providers that public policy has attempted to introduce. While in a different manner and to a

different degree, the South African legal services sector has also been subject to attention from the

4 Socio-Economic Rights Institute, “Public Interest Legal Services in South Africa,” July 2015,

http://www.raith.org.za/docs/Seri_Pils_report_Final.pdf; Jackie Dugard and K Drage, “To Whom Do The

People Take Their Issues? The Contribution of Community-Based Paralegals to Access to Justice in South

Africa,” The Justice and Development Working Paper Series (Washington DC: World Bank, 2013); Jonathan

Klaaren, “Transformation of the Judicial System in South Africa, 2012-2013,” George Washington

International Law Review 47 (2015): 481–508; Mark Heywood and Adila Hassim, “Remedying the Maladies of

‘Lesser Men or Women’: The Personal, Political, and Constitutional Imperatives for Improved Access to

Justice,” South African Journal on Human Rights 24 (2008): 263; AfriMAP and Open Society Foundation for

South Africa, “South Africa Justice Sector and the Rule of Law: A Review” (Open Society Foundation for

South Africa, 2005), http://www.opensocietyfoundations.org/sites/default/files/afrimapreport_20060223.pdf.

5 M. J. Trebilcock, Lorne Sossin, and A. J. Duggan, Middle Income Access to Justice, 1st ed. (Toronto:

University of Toronto Press, 2012); Andrew Boon, “Professionalism under the Legal Services Act 2007,”

International Journal of the Legal Profession 17, no. 3 (November 1, 2010): 195–232,

https://doi.org/10.1080/09695958.2011.580561.

6 Rebecca Sandefur has conducted recent research finding that people’s judgments differ about what factors

count as benefits and what are treated as costs when they consider the implementation of innovative programs to

provide civil legal assistance in America. Rebecca Sandefur, “Making the Case for Civil Legal Assistance in

the United States” (2017 International Legal Aid Group, Johannesburg South Africa, 2017), 1–23,

http://www.internationallegalaidgroup.org/images/miscdocs/Conference_Papers/Rebecca_Sandefur_-

_Session_9.pdf. See also Maurits Barendrecht, José Mulder, and Ivo Giesen, “How to Measure the Price and

Quality of Access to Justice?,” SSRN Scholarly Paper (Rochester, NY: Social Science Research Network,

November 1, 2006), https://papers.ssrn.com/abstract=949209.

7 Patrick Hundermark, “Access to Justice and Legal Costs,” in South African Law Reform Commission

International Conference (Access to Justice, Legal Costs, and Other Interventions, Durban, South Africa, 2018).

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competition authorities and is certainly now subject to greater competition than was the case 30

years or even at apartheid’s end.8

Taking a public interest approach to the analysis of market failure, Stephen’s economic and

regulatory method helps greatly to provide a foundation for the discussion of the cost of justice in

South Africa below. To mention just one of his observations, Stephen points out that legal services

tend to be what economists called “credence goods”. These goods differ fundamentally from the

usual categories of search goods and experience goods. As Stephen explains: “Search goods are

those whose characteristics (including quality) can be judged prior to consumption (for example

fashion goods), while experience goods must be consumed before their quality is assessed (for

example a restaurant meal). Credence goods are such that their characteristics (particularly quality)

cannot be judged by the consumer even after consumption. Indeed some credence goods, for

example legal services, are such that the consumer relies on the professional not only to supply the

service but to diagnose what services are required to meet the consumer’s needs.”9

Due in great part to their character as credence goods, most clients cannot judge the quality

of the legal services provided by lawyers. This reliance by the client on the legal professional for

diagnosis as well as supply leads to a situation of information asymmetry in the market for legal

services. This situation can lead to several market problems including the potential for high-quality

providers of legal services to be driven out of the market because consumers cannot distinguish

between them and the “lemons” (the low-quality lawyers) and the moral hazard of a lawyer, once

selected by a client, over-supplying that client with legal services.

Embracing this economic approach, this article further recognizes that if the market for legal

services is an economy, it is certainly a political economy. We thus must ask some social justice

questions of this market. Over the long term who is meant to bear the costs of justice: the state,

citizens, corporates, law firms, donors, or others? How can we explore and investigate alternative

ways of achieving ends of justice in regulatory regimes outside of the market for legal services?10

There is much to explore in this view of access to justice as a market for legal services, more than

this article can accomplish.

In investigating new ways to address the problems of access to justice in South Africa, we

should pursue evidence-based empirical understandings of the legal services market.11 There is little

data or evidence publicly available concerning the supply and demand for legal services in South

Africa. As has been done in many jurisdictions, the most direct method of assessing the state of

access to justice in South Africa might well be to conduct a national household survey of use of

formal dispute resolution structures. Such a study would assess the consumption, perceived need

8 Jonathan Klaaren, “South Africa: A Profession in Transformation,” in Lawyers in 21st Century Society, ed.

Richard L. Abel and Ole Hammerslev, 1st ed., vol. 1, 2 vols. (Cambridge: Cambridge University Press, 2019).

9 Frank H. Stephen, Lawyers, Markets and Regulation (Edward Elgar Publishing, 2013), 13.

10 One example would be a system of no-fault road accident compensation that provides fairer and better

distribution than a lawsuit-based regime. More ambitiously, one may also look at nudge architectures.

11 Sam Muller and Maurits Barendrecht, “The Justice Innovation Approach: How Justice Sector Leaders in

Development Contexts Can Promote Innovation,” in Legal Innovation and Empowerment for Development, ed.

Hassane Cissé et al., vol. 4, The World Bank Legal Review (World Bank, 2013), 17–29,

https://openknowledge.worldbank.org/bitstream/handle/10986/12229/NonAsciiFileName0.pdf?sequence=1.

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for, use and costs of such services. For instance, Australia has undertaken such a study recently.12

Such a study has not been done in South Africa.13 Furthermore, access to justice and the costs of

legal services have not featured in the general national surveys conducted by Stats South Africa

(SSA). The regular General Household Survey has not included questions relating to access to justice

up to and including 2017.14

Here, the very good news is that SSA is planning to significantly improve its survey research

by including specific questions on access to justice in its national surveys. In fact, some of these

plans are already implemented. Over the past two years, SSA has been re-engineering the Victims of

Crime survey and transforming it into a newly minted Governance , Public Safety and Justice Survey.

SSA received both international and local stakeholder inputs into the design of the questionnaire.

The plan is that in a three year cycle, survey data collection will focus in year 1 on access to justice, in

year 2 on the topic of a capable state and in year 3 on detailed victimization experiences. Access to

justice will thus be one of three primary topics focused upon by SSA in this area. While it is possible

to do more, one cannot go too far too fast. The resources of the SSA are of course limited by its

budgetary allocation. Further, to maintain high-quality data collection, there is limited question

space in these kind of comprehensive and representative national demographic surveys. In the new

cycle embarked upon by SSA, collection for year 1 started in April 2018 and will last until March

2019. That means that the access to justice data collection is occurring as this article is being

finalized. SSA hopes to have the first report, plus an access to justice index, ready by July/August

2019.

Even once the newly devised access to justice survey is completed, there will be much more

work in South Africa to be done. As a matter of theory as well as research method, the true extent

of the access to justice gap may be unknowable. Its extent may be tied up with the boundary of the

public and the private. Different understandings of these spheres and their demarcation would lead

to different understandings of the extent of the gap. In the area of gender-based violence, many

victims are unwilling to proactively seek access to justice.15 As an African jurisdiction, the extent of

the access to justice gap is also interwoven with the boundary between what the anthropologists

term things African and things not so.16 At base, the access to justice gap is fundamentally tied up

with the distinction between substantive and procedural justice. As noted by Austin Sarat, “[a]ccess

to justice is both evocative and double-edged: It argues for legal change, yet reaffirms faith in law

12 Christine Coumarelos et al., Legal Australia-Wide Survey: Legal Need in Australia (Law and Justice

Foundation, 2012).

13 David Holness, “Coordinating Free Legal Services in Civil Matters for Improved Access to Justice for

Indigent People in South Africa” (Twenty Years of South African Constitutionalism, New York Law School:

New York Law School Law Review, 2014), 71, http://www.nylslawreview.com/wp-

content/uploads/sites/16/2014/11/Holness.pdf.

14 Statistics South Africa, “General Household Survey 2014,” 2015,

http://www.statssa.gov.za/publications/P0318/P03182014.pdf.

15 United Nations Women, “Improving Womens Access to Justice: During and After Conflict: Mapping UN

Rule of Law Engagement,” 2011,

http://www.undp.org/content/dam/undp/library/gender/gender%20and%20governance/ImprovingWomensAcces

sToJustice-UNDP-UNWomen-Mapping.pdf.

16 Jean Comaroff and John Comaroff, “The Struggle Between the Constitution and ‘Things African,’”

Interventions 7, no. 3 (November 1, 2005): 299–303, https://doi.org/10.1080/13698010500267918; Sindiso

Mnisi Weeks, “‘Take Your Rights Then and Sleep Outside, on the Street’: Rights, Fora, and the Significance of

Rural South African Women’s Choices,” Wisconsin International Law Journal 29 (2011): 288–318.

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and legal procedure and in the justice they provide.”17 This article by no means attempts to settle

these issues and instead focusing on a pragmatic approach for researching and advancing towards

affordable legal services for all in South Africa.

Part Two: Justifying a Three-Band Economic Analysis of Access to Justice

As an important step advancing access to justice, this article outlines and justifies a research

method of assessing legal costs in three bands determined by economic resources: the poor, the

wealthy, and the middle in between the poor and the wealthy. This is one way to operationalize an

economic analysis of the cost of legal services -- dividing the population of interest (such as the

national population of South Africa) into three classes: poor, middle-class, and rich. Such a three-

part division serves as a relatively rough but also relatively accurate and effective method of

understanding how to increase access to justice. This division into three bands (as opposed to four

or more) as well as the location of the dividing point (e.g. a dividing line of say R5500/month after

tax) is not intended or argued to be a precise one, nor is it not subject to change. These

determinations are perhaps just as much qualitative as they are quantitative matters.

A research method focusing on a three-part division of the market for legal services can be

justified on four grounds. First, as a point of departure, such a research method works within an

understanding of this services sector as an economic market. Of course, the dynamics in different

bands of the market differ significantly. As Stephen notes, the problem of information asymmetry

does not apply to all consumers of legal services. Where the client is a firm or a rich individual with

its, his, or her own in-house lawyer who can evaluate the services offered by external providers of

legal services, the problem of information asymmetry raised by a credence good does not arise.

Likewise, the market dynamics for criminal defence among the South African population in both the

poor and the middle class bands are undoubtedly significantly impacted by the exact placement and

the method of calculation for Legal Aid South Africa’s means test. Currently, Legal Aid will assist

employed individuals who earn less than R5,500 per month after tax has been taken off.

Second, continuing on the theme of legal aid, such a three-banded analysis fits well with and

can be justified by the provision of at least some state-funded legal services for the poor. While such

funding in South Africa is a matter of a constitutional right, even in countries without socioeconomic

rights in their constitutions, there is often some minimal statutory provision for state-funded legal

services for the poor. And at the other end of the spectrum, the access to justice questions for the

rich are in any instances qualitatively different than those for the rest of the population. Of course,

the same rights and duties apply to all. But where the legal resources available to some differ

significantly from the legal resources to others, different questions arise. This is for instance the new

context for old questions like the legality and ethics of arrangements such a third-party litigation

funding. At the moment, the move towards a litigation funding industry is just beginning in South

Africa and it is largely limited to actors within the rich band. For instance, one third-party litigation

provider founded in the past two years is targeting only claims at the level of R30m and above. A

three-tiered analysis not only recognizes these dynamics but can point to particular institutional

solutions. For instance, while its budgetary funding must clearly be the dominant factor, in its

decision where to set the means test, Legal Aid South Africa should also be considering the factor of

17 Austin Sarat, review of Review of Access to Justice, by Mauro Cappelletti et al., Harvard Law Review 94, no.

8 (1981): 1911–24, https://doi.org/10.2307/1340740.

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the effects in the market for legal services, at least within the poor and middle class bands. The

three-banded research method can assist with understanding the role of institutions – including

courts setting fees for access to different levels of courts and public bodies providing “free” legal

services – within these different bands.

As a third justification for the three-tiered research method proposed and pursued here, we

should note that a three-tier analysis may often work well in a country like South Africa for reasons

of politics. This is possibly true elsewhere in Africa and in the Global South. While the regulatory

and state capacity levels are relatively low in jurisdictions such as South Africa, the intensity of

redistributive politics is relatively high. Arguably, the relative dearth of regulatory and state capacity

points to a greater role for the private sector. Yet such a role may only increase the intensity of the

redistributive politics at play. By analogy, these dynamics can be seen in the recent politics of the

education sector in South Africa. Just as “the missing middle” has become an important part of the

policy debate in the provision of higher education, so, I would argue, should the missing middle

become a significant part of the policy debate on achieving access to justice in South Africa.

The fourth and final justification for this research method is a pragmatic one. While the best

data in this area of access to justice will most likely come from national surveys or extensive

qualitative studies, a more basic three-tiered research design can work with rougher forms of

evidence available either anecdotally or in many cases through existing independent regulatory

institutions. Such regulatory bodies include the growing network of African competition authorities.

A three-tiered approach can thus begin to work with and analyse existing data, in order to generate

policy options and approaches to improving access to justice for the whole population. Such an

approach is thus likely to fit well with the existing state of research in most African national

jurisdictions.

Part Three: Access to Civil Justice in South Africa: The Cost of Legal Services

This Part assesses the access to justice gap in South Africa, understanding that gap for these

purposes to be evidenced by the costs of legal representation in South Africa. As part of this

empirical analysis, I outline the legal services market as well as describing to some extent its political

economy.18 Nonetheless, it is beyond the scope of this paper to present a full-scale survey of the

South Africa’s civil justice infrastructure including the contemporary institutional avenues through

which many South Africans access their rights, including the nearly completely re-invented Legal Aid

South Africa, the network of paralegals and community advice offices, the public interest law

community and the work of state institutions such as the Public Protector. Furthermore, without

the fine-grained data of the coming Stats South Africa survey, the evidence presented here is

obviously approximate and provisional.

In their seminal late 1970s work on access to justice, Garth and Cappelletti noted three

features regarding costs and access to justice. First, it was simply apparent that “[a]ny realistic

attempt to confront problems of access [to justice] must begin by recognizing this situation: lawyers

18 In other work, I outline South Africa’s history of access to justice, identifying (at least) three waves of access

to justice, using the well-established comparative paradigm of access to justice. That work also surveys I also

offer some suggestions towards priorities to focus on in building institutions to improve access to justice in

South Africa.

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and their services are quite expensive.”19 Second, “[c]laims involving relatively small sums of money

suffer most from the barrier of cost.”20 Third, delay – such as years to resolve a dispute – “increases

the parties' costs and puts great pressure on the economically weak to abandon their claims or

settle for much less than that to which they are entitled.”21 Each of these propositions appears as

true today as it was four decades ago. As Patrick Hundermark has recently written, “[t]he South

African civil justice system is characterised by the long period it takes to resolve legal disputes. The

average time it takes to resolve a legal dispute ranges between three to six years and legal fees have

escalated to a point where the majority of citizenry are excluded from the system of dispute

resolution.”22 These 1970s global propositions on expense, value, and delay regarding access to

justice can thus continue to serve as a starting point for the South African discussion.

The discussion in this Part covers the expense of civil legal services in South Africa, largely

separating out from this discussion the provision of criminal legal services in South Africa. This is not

to suggest that criminal legal services are not significant, but merely acknowledges that the market

for these services is arguably distinct from that for civil legal services. For the top band, there would

appear to be no access to justice issue for access to criminal legal services in South Africa. Accused

persons with wealth have ready access to competent and skilled criminal defence lawyers. For the

low band, the state-funded statutory body Legal Aid South Africa (Legal Aid SA) provides criminal

defence services for persons below the means test. The organisation has built impressive capacity in

the post-apartheid era; it currently comprises the largest legal services organisation in South Africa.

While funding is always an issue, Legal Aid SA has at least close to the necessary capacity to provide

criminal legal services for its target population. The recent strenuous effort of Legal Aid SA to

monitor and improve the quality of its services is noteworthy. The organisation has instituted

numerous legal quality monitoring programmes such as regular file reviews of practitioner files,

stakeholder feedback, complaints monitoring, and client satisfaction surveys. Additionally, Legal Aid

SA has established a Legal Quality Assurance Unit which is based in its Internal Audit Department

and which conducts its own independent assessments on the quality of services rendered by its

practitioners.23 Moving to the middle band, there appears to be little research on the actual

available of criminal defence services for the middle class in South Africa. Once the SSA data are

available, this area should thus be a focus of analysis.

Legal Services for the Top End

The cost of legal services in South Africa is clearly high. Let us consider first the lawyers who

service individuals with wealth in the top band of the population, as well as lawyers with corporate

firms as clients. Discussions with practitioners in the Johannesburg corporate legal sphere reveal

that a candidate attorney (e.g. an LLB graduate without admission as an attorney) could in 2018

charge more than R1100/hour as a standard rate (excluding VAT and without discount). A

professional associate attorney with five years of experience could charge R2400. A director/partner

19 Bryant G. Garth and Mauro Cappelletti, “Access to Justice: The Newest Wave in the Worldwide Movement

to Make Rights Effective,” Buffalo Law Review 27 (1978): 188.

20 Garth and Cappelletti, 188.

21 Garth and Cappelletti, 190.

22 Hundermark, “Access to Justice and Legal Costs.”

23 Legal Aid South Africa, “South Africa Country Report” (2017 International Legal Aid Group, Johannesburg

South Africa, 2017), 1–26, http://www.internationallegalaidgroup.org/images/miscdocs/SA_Country_report_-

April_2017.pdf.

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with ten years’ experience could charge R4500. A senior director/partner with twenty years of

experience could charge R6000/hour. In the solo and small firms sector for attorneys, the fees may

be half as much but are still substantial.

These figures accord with published sums. According to the 2015 SERI report on Public

Interest Legal Services in South Africa, “a first year junior advocate charges from approximately R550

per hour or R5500 per day. Counsel of ten years’ standing can charge between R1500 and R2400 per

hour (or between R15000 and R24000 a day). Senior counsel who have been given “silk” status by

the President, charge between R25000 and R35000 per day, with some counsel rumoured to charter

up to R60000 per day in high-value commercial matters.”24

Costs do vary, in part by province. In 2015, a High Court judge reported that the fee

parameters for senior counsel in KZN were between R2400 and R4500 per hour for consultations

and on a daily basis between R19200 and R36000 for opposed-application fees (eight times the

consultation fee).25 Gauteng advocates on the whole apparently charge more than those based in

KZN.

As is seen above, the cost of legal services is particularly high in the advocates’ sub-sector.

Indeed, this has drawn the attention of the Constitutional Court, which had occasion in 2012 to

observe that “counsel’s fees have burgeoned in recent years. To say that they have skyrocketed is

no loose metaphor.”26 This was a cause for concern for the Court: “No matter the complexity of the

issues, we can find no justification, in a country where disparities are gross and poverty is rife, to

countenance appellate advocates charging hundreds of thousands of rands to argue an appeal.”27

Legal Services for the Middle Class

Empirical studies which have aimed to present a comprehensive understanding of access to

justice including the middle class have also found the cost of justice high. In 2005, a donor-funded

report on a wide range of rights issues in South Africa concluded that “the major barrier to access to

justice in South Africa remains the high cost of legal services. …[T]he average South African

household would need to save a week’s worth of income in order to afford a one-hour consultation

with an average attorney.”28

A comprehensive pricing survey of legal costs can yield a robust research finding concerning

the costs of legal services in a particular market. One such example is research commissioned by the

UK Legal Services Board and published in April 2016.29 This research covered a number of discrete

legal services or packages of services – such as a basic divorce, a basic transfer of property pursuant

24 Socio-Economic Rights Institute, “Public Interest Legal Services in South Africa,” 103–4.

25 Society of Advocates of Kwazulu - Natal v Levin (4564/13) [2015] ZAKZPHC 35; 2015 (6) SA 50 (KZP) (6

July 2015), accessed December 8, 2015.

26 Camps Bay Ratepayers and Residents Association and Another v Harrison and Another (CCT 76/12) [2012]

ZACC 17; 2012 (11) BCLR 1143 (CC) (September 20, 2012).

27 Camps Bay Ratepayers and Residents Association and Another v Harrison and Another (CCT 76/12) [2012]

ZACC 17; 2012 (11) BCLR 1143 (CC).

28 AfriMAP and Open Society Foundation for South Africa, “South Africa Justice Sector and the Rule of Law:

A Review,” 28. This report also surveyed knowledge of rights, delays in court proceedings, ‘traditional’ justice

systems, official mechanisms to assert rights outside of courts, and alternative dispute resolution.

29 Legal Services Board, “Prices of Individual Consumer Legal Services Research Report,” 2016,

https://research.legalservicesboard.org.uk/wp-content/media/Prices-of-Individual-Consumer-Legal-Services.pdf.

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to a sale, and the basic package of a will, a lasting power of attorney, and estate administration. The

focus of the UK study on standard and basic legal services allows for comparability among different

legal services providers. Indeed, such research not only provides a robust picture of the prices paid

for some key legal services but also develops a methodology that can be repeated in future to

provide an accurate measure of price changes over time.

Consisting of 1,506 telephone interviews with a range of legal service providers, one

interesting finding of this report was that 17% of legal practice firms surveyed displayed their prices

on their websites. Law firms that did display prices on their websites were generally cheaper than

those who did not. Further, according to the 2016 study, legal service providers adopting a fixed fee

approach to charging tended to offer the lowest price on average when compared with those

charging in other ways. A final interesting finding was that fixed fees predominated for less complex

matters (such as conveyancing, wills, power of attorney and for simpler uncontested divorces). As

the services sought became more complex, however, providers were more likely to say they would

charge either an hourly rate or would estimate the total cost.

While a market pricing study is developed and implemented in South Africa, other methods

may approximate the extent of the access gap, although not reveal directly the high cost of legal

services. The figure of lawyers per capita is often used as an interim and rough proxy for access to

justice by development agencies and others. For instance, in providing information on legal aid in

criminal justice systems in Africa in 2011, a report of the UN Office on Drugs and Crime has observed

that “a principle challenge to the provision of legal aid is the low ratio of lawyers to population.”30

South Africa appears to have fewer lawyers per capita than some of its trading and economic peers -

- substantially fewer lawyers per capita than either Brazil or India, though more lawyers per capita

than African countries sharing a British legal tradition, like Kenya and Malawi. 31

As this November 2018 SALRC conference did, it is important in assessing the current state

of access to justice to take into account the numerous contemporary innovations emerging from

both the for-profit and the philanthropic/social responsibility sectors. A growing number of private

sector firms – including a number of large corporates -- provide legal services for the purposes of

profit often without using the traditional structures of the legal profession. For instance, firms such

as Legalwise and Clientele Legal sell legal insurance policies – providing a range of legal services

differing according to the (usually) monthly premium paid.32 Traditional banking groups also provide

legal services. Indeed, the growth in the South African labour market for legal skills in the first

decade of the 21st century has been attributed primarily to the growth of legal services providers

within the financial services industry.33 There is an apparently little-studied network of providers of

legal advice within the financial services and possibly other sectors.

30 Jonathan Klaaren, “The Cost of Justice,” Public Positions (blog), March 24, 2014,

http://wiser.wits.ac.za/system/files/documents/Klaaren%20-%20Cost%20of%20Justice%20-%20%202014.pdf.

31 Klaaren.

32 Holness, “Coordinating Free Legal Services in Civil Matters for Improved Access to Justice for Indigent

People in South Africa,” 50–51.

33 Niall Condon, Matthew Stern, and Sarah Truen, “Professional Services in South Africa: Accounting,

Engineering and Law” (Development Network Africa & World Bank, January 25, 2009),

http://www.dnaeconomics.com/assets/Usegareth/SA_Professional_Services.pdf.

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Finally, within the middle-class band of access to justice, changes in technology are set to

make a major impact, whether in the form of advances in the internet, of increasing capacity in

artificial intelligence, or something else. There is a significant possibility that technological changes

will increase access to justice as traditionally understood in the next five to ten years. The impact of

this change is likely to be felt first and most deeply within the middle band of the population.

Indeed, such changes are not likely to change greatly access to justice among the top band. The

impact of such technological innovations has the potential to spread rapidly from the middle band to

the lower band, given that the primary barrier to entry is participation via smartphone in

telecommunications. Still, at least some of the excitement about the punted Fourth Industrial

Revolution is surely over-stated and it remains to assess the openness and attitude of the legal

profession in South Africa towards the potential that technological change is creating within the

legal services market for professional services.34

Legal Services for the Poor

While legal services of decent quality are in principle available without payment for poor

persons in trouble with the criminal law as noted above, the same cannot be said for poor persons

needing civil justice. Around 85% of the budget of Legal Aid SA is spent on criminal legal services.

Without a publicly-funded statutory body focused on civil justice, poor persons often lack access to

justice and face unaffordable prices for legal services. In 2013, research conducted by a South

African public interest law NGO reported that “clients with a monthly income of R 600 … are

frequently charged fees in the region of R 1,500 … just for an initial consultation.”35 Even in terms of

High Court rules (which are often interpreted loosely) a 15 minute consultation may be charged

R177.50 and a page of photocopying charged R50.36 Such state court fees restrict access to justice

for the poor, especially civil justice.

There is of course significant provision of civil legal services to the poor by South Africa’s

public interest law (PIL) community, which consists of donor-funded NGOs such as the Legal

Resources Centre, Lawyers for Human Rights, and the Centre for Applied Legal Studies and of pro

bono units of commercial law firms. These PIL organisations form a loose network with significant

inter-organisation movement of personnel. Further, what might be termed the legal knowledge

sector consists of the law schools, law clinics, and some NGOs engaged in rights education. This

sector includes the South African Legal Information Institute (SAFLII), an initiative originally of the

Constitutional Court Trust now housed at the University of Cape Town, providing free and open

internet access to law.37 University law clinics provide direct legal services and often work in

partnership with Legal Aid SA.38

34 Benjamin H. Barton and Deborah Rhode, “Access to Justice and Routine Legal Services: New Technologies

Meet Bar Regulators,” May 23, 2018, https://papers.ssrn.com/abstract=3183738.

35 Dugard and Drage, “To Whom Do The People Take Their Issues? The Contribution of Community-Based

Paralegals to Access to Justice in South Africa.”

36 Holness, “Coordinating Free Legal Services in Civil Matters for Improved Access to Justice for Indigent

People in South Africa,” 94.

37 “SAFLII Home,” accessed January 25, 2016, http://www.saflii.org/.

38 Holness, “Coordinating Free Legal Services in Civil Matters for Improved Access to Justice for Indigent

People in South Africa,” 5, 73–93.

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A network of community advice offices and paralegals also provides a significant quantity of

legal advice for poor persons.39 As Dugard and Drage point out “South African paralegals occupy a

critical, albeit as yet underformalized, space within South Africa’s legal and welfare structures.”40

The population of paralegals has been estimated at 3500 persons.41 Indeed, the provision of access

to justice through networks of paralegals and community advice offices appears to interact well with

the direct state-funded provision of advice at local or otherwise decentralized locations, such as the

Refugee Advice helpdesk of the City of Johannesburg, although such initiatives are not widespread.

David Holness has undertaken a study of the provision of free civil legal service provision in

eThekwini, detailing the services provided and consumed at eight separate organisations.42 One

interesting and concerning finding from his research, focused in this instance on Legal Aid SA, is that

civil legal aid (apart from where children are involved or where someone is seeking asylum) is not

generally available to non-citizens.43

Conclusion

The evidence of the cost of civil justice in South Africa presented in this article is primarily of

interim value, pending the completion of already underway research on access to justice and other

planned research. Still, the findings here can serve to guide policy-makers engaged in the current

reform effort as well as those officials currently mandated to achieve access to justice. Further, the

identification and the justification of a three-banded research method based on a economic analysis

of the market for legal services should have application in other emerging economies and poor

jurisdictions in the Global South. In conclusion, it is thus perhaps worthwhile to stress the need to

connect research into access to justice in South Africa with established44 and incipient research

efforts taking place elsewhere in Africa. State agencies in a number of African jurisdictions, including

some from Kenya and Uganda which were represented at the SALRC’s November 2018 conference,

have established records in the provision and structuring of access to justice for their populations as

well as in research on the topic.45 While it may be too soon to speak of a well-resourced and thriving

research field, the topic is no longer the sole preserve of professional bodies and human rights

advocates. As Hundermark has observed, “[i]t is true that South Africa faces major challenges in

access to quality legal services, but we have come a long way from the days when South Africans

39 Socio-Economic Rights Institute, “Public Interest Legal Services in South Africa,” 70–73, 80–83; Holness,

“Coordinating Free Legal Services in Civil Matters for Improved Access to Justice for Indigent People in South

Africa,” 104–19.

40 Dugard and Drage, “To Whom Do The People Take Their Issues? The Contribution of Community-Based

Paralegals to Access to Justice in South Africa.”

41 Nomboniso Maqubela and Seth Mnguni, “Joint Submission to the South African Parliamentary Portfolio

Committee on Justice and Constitutional Development on the Legal Practice Bill [B20-2012],” n.d., sec. 3.1.

42 Holness, “Coordinating Free Legal Services in Civil Matters for Improved Access to Justice for Indigent

People in South Africa,” 30–73.

43 Holness, 48, 51–52.

44 Janine Ubink and Sindiso Mnisi Weeks, “Courting Custom: Regulating Access to Justice in Rural South

Africa and Malawi,” Law & Society Review 51, no. 4 (2017): 825–58, https://doi.org/10.1111/lasr.12298; Joseph

DeGabriele and Jeff Handmaker, “Justice for the People: Strengthening Primary Justice in Malwai,” African

Human Rights Law Journal 5 (2005): 148–70.

45 Frances Katooko, “Costs in Uganda,” in South African Law Reform Commission International Conference

(Access to Justice, Legal Costs, and Other Interventions, Durban, South Africa, 2018).

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were refused access to justice during apartheid.”46 The achievement and the understanding of

access to justice in South Africa face numerous contemporary challenges.

46 Patrick Hundermark, “Everyone’s Innocent until Proven Guilty,” IOL, March 13, 2016,

http://www.iol.co.za/capetimes/everyones-innocent-until-proven-guilty-1997224.

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What Does The Cost of Justice Cost in South Africa?: Towards A Research Method For Towards

Affordable Legal Services1

ReSubmit: MarchFeb 2019

Part One: Introductioning An Economic Regulatory Approach to Access to Justice

Access to justice is not a reality for most South Africans. As High Court Judge of the South

Gauteng High Court J Makume has recently observed, we as South Africans live in “a time when

people around the globe, especially poor persons, are denied access to justice as they are unable to

afford lawyers or if they can afford, their funds may dry out as such persons cannot sustain the costs

associated with continued litigation.”2 This global phenomenon has its specific manifestation in

South Africa. As then Chief Justice Pius Langa statedobserved over a decade ago: “South Africa has

its own unique problems when it comes to access to justice. In the face of high levels of crime, the

criminal justice system faces a serious challenge to ensure that victims have the satisfaction of

knowing that those who harmed them or their loved ones are brought to justice. Legal

representation remains beyond the financial reach of many South Africans and it is true that more

money ensures better representation. That is not equal access to justice and the challenge we face

is what strategies we should adopt to rectify the position. The Constitution should not become a

tool of the rich.”3

A number of factors contribute to thisis realityy where justice is inaccessible to most South

Africans. Certainly, as Justice Langa notes, the limited financial means of much of the South African

population is an important cause. The system of the administration of justice is not as efficient as it

could and should be. Cultural understandings of what justice entails and how it ought to be

deployed are also significantpart of the picture.4 While thus not the only factor, the high cost of

legal services also clearly and significantly contributes to the access to justice gap in South Africa.

TAs indicated in the background materials for this conference, these legal costs may include fixed

fees charged by the state to members of the public for accessing various public procedures such as

filing documents in court, litigious tariffs regulated by the Rules Board and subject to taxation, and

the largely unregulated tariffs charged by legal practitioners for legal services related to transactions

1 NB: Material for this articleThis piece is adapted from a submission accepted by the SAJHR in about March

2017, which itself originated in in form asa the Cost of Justice seminar paper presented in 2014 in the WiSER

Public Positions seminar at the University of the Witwatersrand. This piece draws from most sections of the

SAJHR piece except for Part 2 on the historical waves of access to justice. In its current guise, tA first draft of

this articleThis paper was first presented on 1 November 2018 at the South African Law Reform Commission

(SALRC) conference on Access to Justice, Legal Costs, and Other Interventions under the title Towards

Affordable Legal Services: Legal Costs in South Africa and a Comparison with Other Professions. I would like

to thank the participants at the 2014 WiSER event including the respondent, Geoff Budlender, as well as Isabel

Schmidt, Morne Oosthuizen, Alex van den Heever, the two anonymous referees of the SAJHR, and the

participants at the 2018 SALRC conference for helpful comments, questions, and suggestions regarding the

paper.

2 Judge J Makume, “Is Access to Justice Dependent on One`s Ability to Afford Legal Fees?,” in South African

Law Reform Commission International Conference (Access to Justice, Legal Costs, and Other Interventions,

Durban, South Africa, 2018).

3 Justice Pius Langa, “Transformative Constitutionalism,” Stellenbosch Law Review 17 (2006): 355.

4 Sindiso Mnisi Weeks, Access to Justice and Human Security: Cultural Contradictions in Rural South Africa

(Routledge, 2017).

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and to litigation. The focus of this article is on what is undoubtedly the greatest and certainly the

most prominent of these sometimes expensive legal services, the tariffs charged by legal

practitioners for providing legal services – the cost of lawyers.

Most research and writing on the topic of access to justice in South Africa in the post-

apartheid era has been conducted using either doctrinal orand and socio-legal approaches. Some

writers have explored the degree to which the South African Constitution mandates state funding

for legal services, detailing the reach of this duty in official forums such as the Land Court (which

have first recognized such a duty in the post-apartheid era) as well as in the regular court system.5

Others have researched how civil society may be better coordinated or resourced in order to

facilitate better access to justice in the private sphere.6 Some writers have investigated how the

adjudicatory functions of the state itself might be better organized or structured in order to facilitate

access to justice.7 While theits full depth and contours of this body of research cannot be outlined

here, suffice it to say that there is a vibrant and diverse South African research tradition on access to

justice.

This body of South African research largely fits within and contributes to the mainstream of

the global literature on access to justice.8 However, one important strand in the global literature

does not find much expression in South Africa. This is what might be termed an economic or an

economic regulatory approach, usually taking as its subject matter legal services.9 This approach

was the sort of thinking that lay behind the recent reform of legal services in the UK as well as being

the approach underpinning specific Canadian research into middle income access to justice in that

country.10 For the access to justice movement both globally and in South Africa, it is important that

new ideas, methods, and approaches are discussed and applied. This article tries to fulfil that aim..

5 Geoff Budlender, “Access to Courts,” South African Law Journal 121, no. 2 (2004): 339–58; Mark Heywood

and Adila Hassim, “Remedying the Maladies of ‘Lesser Men or Women’: The Personal, Political, and

Constitutional Imperatives for Improved Access to Justice,” South African Journal on Human Rights 24 (2008):

263; Jeremy Perelman, “Way Ahead - Access-to-Justice, Public Interest Lawyering, and the Right to Legal Aid

in South Africa: The Nkuzi Case, The,” Stanford Journal of International Law 41 (2005): 357.

6 Socio-Economic Rights Institute, “Public Interest Legal Services in South Africa,” July 2015,

http://www.raith.org.za/docs/Seri_Pils_report_Final.pdf; David Holness, “Coordinating Free Legal Services in

Civil Matters for Improved Access to Justice for Indigent People in South Africa” (Twenty Years of South

African Constitutionalism, New York Law School: New York Law School Law Review, 2014), 1–121,

http://www.nylslawreview.com/wp-content/uploads/sites/16/2014/11/Holness.pdf; Jackie Dugard and K Drage,

“To Whom Do The People Take Their Issues? The Contribution of Community-Based Paralegals to Access to

Justice in South Africa,” The Justice and Development Working Paper Series (Washington DC: World Bank,

2013).

7 AfriMAP and Open Society Foundation for South Africa, “South Africa Justice Sector and the Rule of Law:

A Review” (Open Society Foundation for South Africa, 2005),

http://www.opensocietyfoundations.org/sites/default/files/afrimapreport_20060223.pdf.

8 Rebecca L. Sandefur, “Access to Civil Justice and Race, Class, and Gender Inequality,” Annual Review of

Sociology 34, no. 1 (2008): 339–58, https://doi.org/10.1146/annurev.soc.34.040507.134534; Marc Galanter,

“Access to Justice in a World of Expanding Social Capability ABA Symposium on Access to Justice,” Fordham

Urban Law Journal 37 (2010): 115–28.

9 Patrick Hundermark, “Access to Justice and Legal Costs,” in South African Law Reform Commission

International Conference (Access to Justice, Legal Costs, and Other Interventions, Durban, South Africa, 2018).

10 M. J. Trebilcock, Lorne Sossin, and A. J. Duggan, Middle Income Access to Justice, 1st ed. (Toronto:

University of Toronto Press, 2012); Andrew Boon, “Professionalism under the Legal Services Act 2007,”

International Journal of the Legal Profession 17, no. 3 (November 1, 2010): 195–232,

https://doi.org/10.1080/09695958.2011.580561.

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As a significant step towards assessing and increasing access to justice in South Africa and

beyondgeneral, this article first presentsargues in itsthis introductory Part One an economic

approach to access to justice, understood as access to legal services. and for a specific research

method: assessing legal costs and access to justice for the population in three bands based available

economic resources: legal costs for the poor, legal costs for the wealthy, and legal costs for the

middle (those in between the first two bands, generally individuals and small firms). To employ this

research method is an important initial corrective to the unfortunate reality – that access to justice

does not mean the same thing nor is it realized uniformly within each of these segments of the

population. In Part Two then outlines a specific research method to to demonstrate and investigate

the legal costs faced by a population (such as the national population of South Africa): assess the

legal costs for three bands of the population, basing those bands on available economic resources.

Thise suggested method assesses legal costs for the poor, legal costs for the wealthy, and legal costs

for the middle class (those in between the first two bands). Part Two goes on to , this article

justifyies using this research method on institutional, rights-based, and pragmatic

groundsarguments. To employ this research method is an important initial corrective to the

unfortunate reality – that access to justice does not mean the same thing across these three

segments of athe population. Such a method may should also assist in comparing legal costs with

costs in other important the sectors of the economy for a relevant population such asof healthcare

and financial services. IAs a next step in Part Three, in each of these three bands for the South

African population, the article will preliminarily survey and assess the costs and resources available

for civil justice, thus discussing separately and only brieflypreliminarily legal costs in criminal

matters. The extent to which there is an access to justice gap for a potential “missing middle” of

South Africans facing legal costs for civil justice matters is raisedthus specifically explored.

Part One: An Economic Approach to Access to Legal ServicesJustice

This section The article aims to employs (or at least demonstrate the utility of employing)

aims to demonstrate the utility of employing an economic approach to the provision and regulation

of legal services --, which is a relatively fresh way of thinking about access to justice in South Africa.

Most research and writing on access to justice in the post-apartheid era has been conducted using

non-economic analyses, including doctrinal and and socio-legal approaches.11 An economic (or

regulatory) approach was the sort of thinking that lay behind the recent reform of legal services in

the UK as well as underpinning specific Canadian research into middle income access to justice.12 In

an economic perspective, onewe can look at the legal sector as a market for legal services. The

11 Socio-Economic Rights Institute, “Public Interest Legal Services in South Africa,” July 2015,