SHOULD LEGAL PRACTITIONERS CLAIM ADVICE TO FAMILY AND FRIENDS AS COMMUNITY SERVICE?

Since the promulgation of the Legal Practice Act 28 of 2014, on 22 September 2014, legal practitioners waited for the day that the Minister of Justice would promulgate the hours for community service. That day came on 3 May 2022, eight years later. The proposed regulations were published for comment by the Minister of Justice, Mr Ronald Lamola. All interested parties have until 20 June 2022 to comment on the proposed regulations.

The proposed regulations states that community service should be at an institution referred to in section 29(2) of the Act, which states the following:

“Community service for the purposes of this section may include, but not limited to the following:
a) service in the State, approved by the Minister, in consultation with the Council;
b) service at the South African Human Rights Commission;
c) service, without any remuneration, as a judicial officer in the case of legal practitioners, including as a commissioner in the small claims courts;
d) the provision of legal education and training on behalf of the Council, or on behalf of an academic institution or non-governmental organisation;
e) any other service which the candidate legal practitioner or the legal practitioner may want to perform, with the approval of the Minister.”

A question in most legal practitioners’ mind is, can time spent and legal advice given to family and friends be considered as community service?

In my opinion, yes it should be considered as community service, because of the following reasons:

1.1       A member of the public, with no legal expertise, is requesting such advice;
1.2       Service is provided based on the legal practitioner’s expertise;
1.3       No remuneration is received for the service;
1.4       A considerable time is usually required to read through documents to be able to provide adequate advice;
1.5       Alternatively, a reasonable amount of time is spent to attend court proceedings and to provide feedback on the court outcomes.

The following could be ways to regulate the service:

2.1       The legal practitioner can provide a pro forma invoice that will reflect the time spent and work done;
2.2       The advice should be communicated writing;
2.3       The practitioner must depose to an affidavit confirming the work done and attaching the pro forma invoice and the advice provided;
2.4       The family member and/or friend must be requested to depose to a confirmatory affidavit.

Most legal practitioners if not all have been asked to provide free legal advice. This is your opportunity to provide commentary to ensure that this is included in the final regulations. Comments are to be sent to Ms W Louw of email address WiLouw@justice.gov.za before the deadline date of 20 June 2022.

Thembi Zondo

Senior Associate | Litigation Attorney

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