Information Document October 2003 Table of contents
1. In a nutshell: the core concept of the PFLC 1 2. The family law environment in South Africa 1 3. The background and aims of the PFLC 2 4. Services provided by the PFLC 3 5. The PFLC service delivery model 5 6. The role of paralegals in the PFLC service delivery model 5 6. Organisational structure of the PFLC 7 7. The future of the PFLC 8 8. Financial accountability and sustainability 9 9. Annexure A: Letter of support Acronyms used in this document ADR Alternative dispute resolution CBO Community-based organisation DoJCD Department of Justice & Constitutional Development NGO Non-governmental organisation PFLC Peoples Family Law Centre application for the forthcoming United Nations Public Service In a nutshell: the core concept of the PFLC
The Peoples Family Law Centre (PFLC) is a unique South African public service organisation. It is founded on the idea that it is both essential and possible to provide high quality, effective services to South African citizens with family law problems. Not only is this an attainable goal: it can also be achieved in an affordable manner and on a large scale. For the PFLC, building an effective family law sector starts with a new approach to family law service delivery. The cornerstones of this approach are: citizen education; service provision by skilled, professional paralegal and legal staff; swift preparation of sound legal documentation using appropriate and customized automation tools; and effective and well-co-coordinated service workflows from the first contact with a citizen through to the resolution of the matter.
The PFLC has implemented the approach outlined above and offers services to the public through its centres in Cape Town and Johannesburg. The model has proved to be highly successful. As such, it provides a working model of what could be achieved in public sector service delivery in the area of family law. The PFLC model is ideally suited to serve as the front portal of family law service provision within South African courts. Its full-scale implementation as a component of the state’s family law service delivery would have an enormous impact on the capacity and effectiveness of courts currently providing family law services.
The family law environment in South Africa
The South African legal system is divided into three main categories of practice: civil law, criminal law and family law. The Department of Justice & Constitutional Development (DoJCD) is responsible for the provision of services and facilities for the processing and resolution of matters in all three areas of legal practice. It offers services relating to family law through the approximately 550 magistrates’ courts in the country. In addition, some family law matters are only heard at regional and high court level. One of the key priorities for the DoJCD over the last decade has been to ensure that more South Africans gain access to justice services (including family law) in an equitable manner. The fragmentation and duplication inherited by the new government in 1994 is well-documented. The family law system did not escape this trend. For example, in the area of divorce, black South Africans were diverted into distinct, under-resourced parallel court structures , many of these located in the former ‘homelands’. During the first years of democracy, the focus of reconstruction understandably fell towards stream-lining and integrating the institutional structure of the family law system and developing new legislation. At a service delivery level, however, the family law system continues to suffer from decades of neglect, antiquated systems and generally ineffectual outputs. The entire system is buckling under a burgeoning demand for services in a country where there are more than 810 000 births a year and approximately 60% of marriages end in divorce. Two of the key problems currently faced by the DoJCD are:
the lack of integration between the various family law services provided by the department through its courts; and the lack of human and fiscal resources to adequately manage family law matters
Awards
The DoJCD provides family law services to the public in four main legal areas, namely domestic violence, divorce, maintenance and child care matters. Each of these services is currently delivered to the public in a discrete manner, with little exchange of information between the state officials responsible for each. Though it has been a stated policy of the department to create a unified Family Court to integrate these services, little progress has been made in extending current pilot initiatives on a nationwide scale. Family law services remain fragmented and inconsistent within the justice system. In sum, significant progress has been made over the last decade in bringing about an improved institutional umbrella for the family law system. Family law has also benefited from legislative reform and increased political attention, advocacy and research. However, for the most part, most South African citizens often have little more than ‘paper rights’ in the area of family law. It is extremely difficult for citizens to actualise these rights through the country’s generally overwhelmed and under-resourced courts. The DoJCD and civil society have both identified this lack of capacity as the major stumbling block to service provision.
The background and aims of the PFLC
The establishment of the PFLC grew out of an extensive consultation process with the Department of Justice and Constitutional Development. As the PFLC’s proposed model of service delivery was clearly in line with the existing and emerging family law policy of the DoJCD itself an agreement was reached that the PFLC would be created in terms of a non-funding public-private partnership with the DoJCD. The partnership agreement between the PFLC and the DoJCD would allow the state to observe a model of family law service provision at work without disrupting its existing systems. At the same time, the PFLC’s data-capturing and monitoring system would contribute to a focussed picture of the needs of citizens when they engage with the family law system. If and when systemic inefficiencies were identified within the family law system, the PFLC would consider possible ways to improve services and feed these through to the DoJCD for their deliberation. The purpose of establishing the PFLC was thus to contribute to improving the family law system by:
providing the DoJCD with an observable model for the delivery of professional, substantive family law services in an integrated, automated, affordable way; making a viable contribution to the transformation of ‘paper rights’ into real, substantive rights in the area of family law; creating an information-capturing and tracking tool that could be used by the DoJCD to inform decision- making in the area of family law.
The initial aim set by the PFLC was to make its proposed service delivery model work in practice. During 2001, energies were focused on developing the core components of the model. This included the design of effective workflows, the creation of a unique automated case management system, securing premises and infra-structure, the conceptualization and production of audio-visual and print citizen education materials, as well as the recruitment and intensive training of staff. By putting its model to work, the PFLC hoped to increase effective access to justice through the provision of affordable, outcome-based and professional services to citizens in the area of substantive legal service provision. As a secondary outcome, it was hoped that the model being used and tested by the PFLC would inform the future development of DoJCD service provision in the area of family law.
The PFLC opened its doors to the Cape Town public in March 2002 and in April of 2003, the Johannesburg branch of the PFLC was launched. By mid 2003, the PFLC had met its initial aims and undertook a re-evaluation of its strategic direction. On the micro level, the PFLC had already assisted over 3 000 individuals with family law disputes. On the macro level, it had established a viable method of providing low cost but professional family law services, which take into account the specific needs of the South African population. The PFLC had also been involved in the DoJCD’s own policy development process around the establishment of South African family courts.
As an outcome of this process, the DoJCD adopted a set of core policy principles relating to the provision of family law services, supported by a detailed and costed implementation plan to govern the future of family law in South Africa.
The policy principles and plan adopted by the DoJCD drew heavily from the PFLC experience. Against this background, the PFLC is aware that the state has firmly committed itself to providing effective, integrated and substantive legal services to citizens with family law disputes. In the light of these developments in the justice sector, the PFLC has adopted the new primary aim of assisting the DoJCD to implement its ambitious, yet achievable family law objectives. As the state’s new family law service delivery model mirrors the PFLC approach, an appropriate strategic direction for the PFLC at present is to assist its own mainstreaming into the DoJCD system.
Services provided by the PFLC
The only way to resolve a family law matter in South Africa, as in most countries, is through the adjudication of the matter in court. Even where agreement is reached between the parties outside the formal legal process, the agreement itself must still be made an order of court for it to be legally binding. As such, all family law matters in South Africa must pass through the court system. In order for the court system to work optimally, the legal documentation relating to the matters it hears must be complete, accurate and prepared in the best interests of all parties. The preparation of such legal documentation is generally referred to as the pre-processing of matters. It is at this stage that citizens need to make often-difficult decisions regarding their needs and wishes, and where all relevant information has to be considered carefully and presented appropriately for the court’s pending consideration. It is precisely in the pre-processing of matters where the family law system has traditionally let citizens down and put their best interests at risk. For example, consider the options available to a citizen who wants to get divorced or obtain maintenance for her children. Before her matter can be heard in court, she needs the relevant paperwork to be filed at court. To get to this stage, a typical citizen would have very few options. If she is wealthy, she could approach a private sector law firm for assistance. On the other hand, people with little or no income may qualify for limited Legal Aid Board assistance in the area of family law. However, the vast majority of citizens fall between these two options. The DoJCD itself, as well certain NGOs and CBOs, have made attempts to assist citizens with the drafting of pre-processing documentation.
1 For more information in this regard, see two documents prepared by Chaskalson & de Jong Consulting on behalf of the DoJCD. The first document, entitled Family Courts: Draft Discussion Document of November 2002 provides a detailed overview of the existing state of family law in South Africa, examines a number of possible international models and sets out a decision-making framework for the DoJCD. The primary aim of this document was to assist the DoJCD in adopting clear policy principles. The second document, entitled Family Courts Interim Policy, dated 17 December 2002, outlines the policy principles which were subsequently adopted by the DoJCD and details and costs a number of projects that are necessary to actualise the policy principles.
However, the DoJCD administrative clerks and NGO/CBO advice officers normally tasked with this burden are generally under-trained and over-extended. As a result, the ensuing documentation frequently lacks the quality, consistency and attention to detail needed to support family law presiding officers to make informed and equitable rulings. It is thus possible to identify a ‘service gap’ in the landscape of family law service delivery. This gap lies between the ‘top-end’ - but often unaffordable - services provided by the formal legal profession on the one hand and on the other, the services provided for free - but often less effectively - by under-resourced advice offices and the state. The PFLC service delivery model is designed to bridge this gap. The services provided by the PFLC assist citizens to understand their legal situation and options, including the use of alternative dispute resolution. It then helps people to embark on their chosen route through the preparation of high quality, professional pre-processing documentation. The PFLC also ensures that documentation is filed at court, and if appropriate, prepares citizens to represent themselves in court. It also provides on-going telephonic support to citizens as their legal matter progresses, including the tracking of their matter through the court system if necessary. The PFLC offers these services in relation to eight family law areas:
Divorce Mediation Maintenance orders and variations Maintenance Enforcement Domestic Violence protection orders Access Custody Premarital Contracts
To recover the costs of the services it delivers, the PFLC has a sustainability fund. All people making use of PFLC services are required to contribute to this sustainability fund. The PFLC has adopted its own indigent user test and citizens who qualify are only required to pay a nominal fee to the sustainability fund for the services they receive. For those who earn more than R2 200 per month and are thus not considered indigent, the contribution is affordable and far lower than the costs of the formal legal profession. For instance, the preparation of initial divorce papers through the PFLC will cost approximately R750 (exclusive of sheriff’s fees and revenue stamps) while the formal profession may charge a fee ranging from at least R2000 to R5 000 for the same services.
The approach of charging even nominal fees for services has met with some skepticism from the state, NGOs and CBOs. Traditionally the non-governmental sector has shirked the idea of payment for services as it often works with poorer communities. If the PFLC model is mainstreamed as a component of family law service delivery, the question of who pays for services must naturally be viewed in a new light. However, the point remains that no court in South Africa can currently illustrate succinctly how much it costs, on average, to provide a particular family law service to a citizen. The PFLC data-capturing system allows it to track exactly what costs need to be covered per legal area per citizen assisted. Who covers those costs – be it the citizen him- or herself or the state, or some combination –is a factor of how the state defines its obligation to citizens in the family law arena.
2. The DoJCD’s attempts to provide such services have been hampered by resource constraints and the use of inappropriately skilled personnel to provide the requisite substantive legal services. The nominal fee is currently set at R50. R750 is the most expensive PFLC service fee. A full breakdown of fees is available on request.
The role of paralegals in the PFLC service delivery model
The term ‘paralegal’ is used widely and often has different connotations. Paralegalism in the South African context came to the forefront during the apartheid era. Community-based paralegals provided basic legal services to communities who otherwise would have had no access to legal assistance. These community-based paralegals tended to operate as generalists and offered advice over a wide spectrum of legal topics. Notwithstanding the valuable contribution made by the paralegal community in the past, a need has been identified for structured training, accreditation procedures and greater specialization amongst paralegal service providers. Currently the paralegal debate is receiving much attention due to discussions around the restructuring of the legal profession envisaged by the Legal Practice Bill. It is anticipated that this act will formally recognize and possibly even confer rights of appearance on appropriately qualified paralegals and make provision for the removal of previously reserved work for attorneys, thus increasing access to justice. Paralegal staff members play a crucial role in the PFLC service delivery model. It is the paralegals that ultimately listen to the citizens’ concerns, offer appropriate advice and draft the relevant legal documentation. The PFLC paralegals, unlike the traditional generalist paralegals, specialize in family law. All of the paralegals qualified for their duties by completing an intensive, five-week, in-house training course. The course was designed to ensure that they developed a sound understanding of both the legal requirements of the job as well as PFLC operating procedures. The paralegals receive ongoing in house training as a matter of course to enable them to keep up with new developments in family law. The development of this training course involved intensive preparation on the part of the PFLC and resulted in the generation of paralegal training standards and assessment criteria. The PFLC presented its materials to the formal paralegal movement, who have largely been occupied with policy development thus far and welcomed the submission of a comprehensive training model for the area of family law. The PFLC Centre Director was invited to join two relevant bodies, the National Paralegal Institute of South Africa (which is the umbrella paralegal organisation) and POSLEC, which is the education and training authority under which the legal sector falls. It is clear that the PFLC is playing a leading role in the practical implementation of paralegal service delivery in the family law sector. The PFLC welcomes all opportunities to share its ideas and methodologies with the relevant policy makers, think tanks, researches and service providers.
The PFLC service delivery model
The PFLC was established in a context where there was broad consensus that the existing South African models of family law service provision were not working. It was therefore clear that a new and innovative approach would be required. To develop an alternative model, it was necessary to consider issues such as illiteracy, innumeracy, cultural diversity, the quality of service provision, the sustainability of the institution and the need for a holistic solution that incorporated all the diverse aspects of South African family law.
The current family law services provided by the state were all designed to operate in isolation from one another. A further complication in the area of family law is that in recent years there have been several ‘quick fix’ statutory interventions. While well intentioned, this has often had the side effect of creating further disparate workflows and increasing the pressure on the system.
The DoJCD launched an ambitious e-justice project to help automate the manually based legal system but, as yet, little if any attention has been given to family law. The PFLC recognized that the introduction of simple automation in family law service provision would significantly help reduce duplication, streamline service provision workflows and provide an important tool in supporting the paralegal staff in the generation of complex legal documents. The use of simple but effective automation is a cornerstone of the PFLC service delivery model. Another key consideration in the development of the PFLC model was to ensure that it took the realities of the South African situation into account. One the one hand, many South African citizens have no or low literacy and numeracy and as such, generally feel ill equipped to engage with the legal system on their own. On the other hand, a family law system that would require full representation for all citizens in court would place an impossible financial burden on the state, rendering the model unsustainable. Against this background, the PFLC set out to devise an approach that did not assume formal legal representation in all matters. Naturally, in especially complex legal cases, representation would still be required.
But in the vast majority of family law matters, there is no real need for the expense of legal representation, as long as the citizens themselves understand their situation and are well prepared for the legal process. In fact, currently in South Africa’s courts, up to and arguably in excess of 80% of all family law disputes already have one or more parties as unrepresented litigants. The PFLC model is therefore geared to strengthen the capacity of citizens to engage effectively with the family law system and equip them to become self-represented without suffering prejudice to their rights. The PFLC service delivery model includes a number of distinct phases that are common to all its family law services. Whether a citizen is seeking assistance in the area of maintenance, divorce, access, custody or any other PFLC service area, the following steps make up the generic flow of service provision: a) Screening / problem identification The first stage in the process is to find out what kind of assistance the person requires and whether the PFLC can provide it. This initial problem identification can take place telephonically or in person and is conducted, where possible, in mother tongue. If the PFLC can in fact offer assistance, an appointment is booked. The person is informed of what documentation they must bring to the appointment, as well as the amount they will need to contribute to the PFLC sustainability fund. If the PFLC cannot help, the citizen is referred to an appropriate organisation and/or agency. On the day of the appointment, the person will be met at reception by a paralegal and taken into a private consultation room. The first stage of the appointment sees the paralegal confirming the telephonic diagnosis and capturing basic relevant information onto an automated system (which will facilitate the generation of legal documentation at a later stage). The citizen will then be taken into the video room. b) Video adult education The PFLC uses adult education as an essential first step in encouraging individuals to take ownership of their own family law disputes. With the assistance of the PFLC, they will then be able to represent themselves through the formal legal process without in any way being disadvantaged. The adult education session aims to ensure that the person visiting the PFLC has gained a basic knowledge of their rights and obligations and what steps they need to take to obtain relief. This process also helps the person to understand why certain questions are asked in the consultation and draws attention to important issues that they may want to canvass with the paralegal. The PFLC has a dedicated video for each service area. Each video is, at this stage, available in four different languages (English, Afrikaans, Zulu and Xhosa). Each video is approximately 10 – 15 minutes long. c) Reinforcement of adult education and route selection After completing the adult education component, the visitor returns to the paralegal’s office, where some discussion takes place to consolidate the content of the video. In appropriate cases, the option of alternative dispute resolution will be considered. If this route is chosen, the visitor will be referred to the PFLC mediation unit or an external service provider, if desired. If the person chooses to pursue the traditional legal route, the paralegal will ensure that they have a clear understanding of the basic legal requirements of following this route and what will be involved in the legal process ahead. The paralegal can then begin extracting appropriate information to generate the relevant legal documents. d) Information extraction and document generation In order to gather all the relevant information from a visitor, the paralegal is assisted by the automated system. It pre- empts the required workflow in each family law area and helps the paralegal identify and explain appropriate remedies. The system further provides invaluable assistance in the generation of the selected documents. The workflows were plotted by experts in each of the family law fields. Microsoft Word documents were coded to enable the system to prompt the paralegal by asking a number of simple questions. The system then uses the selected responses and inserts them into the legal document. The PFLC paralegals are trained to examine the documents thus produced and to ensure that they are indeed appropriate to the given case. Where further changes must be made, these are simply done by normal computer editing. As a final quality control measure, all documents pass through the scrutiny of a PFLC attorney.
e) Formalization, filing and take-home information booklet After approval from a PFLC attorney, the document will be generated, formalized and filed at the relevant court on behalf of the citizen. He or she will receive an information booklet, which reinforces the process they have been through and sets out the basic steps to be followed after the consultation in order to finalize their matter.
Both the booklet and a sticker (which is placed on the court file) have a unique PFLC reference number. As a result, the court files from PFLC visitors can easily be identified amidst all the standard DoJCD files. This allows the PFLC to track the progress of any client files through the justice system and where necessary, ensure that they are receiving appropriate attention from DoJCD officials. All information relating to each matter after filing is added to the PFLC electronic case management system.
The exception to this rule is domestic violence protection orders where the client files personally so that they can immediately be handed the relevant protection order f) Telephonic support After a citizen has visited the PFLC and received assistance, they may require telephonic support as the legal process unfolds. This support is provided by any of the paralegals, all of whom have electronic access to both the client’s PFLC documentation as well as the information brought back from court. 7. Organisational structure of the PFLC. The PFLC is a Section 21 not-for-profit company. The current structure of the organisation is represented in the diagram below:
Organizational Structure of the PFLC
a) Advisory Board The advisory board was established to provide capacity and advice to the executive and managing directors. It currently consists of the following members: 1. Ms. Lillian Artz Institute of Criminology, UCT 2. Adv. Simon Jiyane Managing Director: Court Services, DoJCD 3. Prof. M M Katz Director: Nedcor 4. Adv. Rashieda Manjoo Commission for Gender Equality 5. Prof. Christina Murray Law, Race and Gender Unit, UCT 6. Mr. Craig Schneider Nominated by the Cape Law Society 7. Mr. Jerome Chaskalson PFLC 8. Mr. Ynze de Jong PFLC 9. Ms. Diane Smart PFLC
Advisory Board Executive Directors Managing Directors
Input from:
•The financial sector •The government / para-statal sector •The legal profession •The NGO sector •The research and academic sector
Skills: •Financial (NGO / Fund management) •Research and analysis (the social landscape) •Litigation •Legal analysis (the legal landscape) •Governmental policy & directions
Dispute Resolution, Paralegals and Support Staff b) Executive Directors The executive directors have been responsible for the development and actualization of the PFLC model, the establishment of the Cape Town and Johannesburg centres, the overall management of the PFLC, donor relations and financial accountability. c) Managing Directors The managing directors, who are formally qualified legal staff, are responsible for the day-to-day functioning of the Cape Town and Johannesburg centres. This includes ensuring that high quality standards are adhered to in all aspects of PFLC service delivery. d) ADR Component The PFLC is a firm believer in alternative dispute resolution (ADR) as a tool for the resolution of family disputes. While ADR is by no means a new concept, the PFLC has integrated its outcome-based approach directly into family law workflows.
e) Paralegal Staff As mentioned earlier in this document it is the paralegals who are at the heart of the PFLC service delivery model. The paralegals currently employed by the PFLC come from diverse backgrounds and include one teacher, seven lawyers and two social workers. All of the paralegals qualified for their duties by completing an intensive, five week, in-house training course. f) Support Staff The paralegals, mediator and management are assisted in their work by support staff, including a receptionist and a messenger at each centre. The messengers play a crucial role by facilitating the filing of PFLC-generated documentation at multiple DoJCD locations across the Cape and Gauteng metropolitan areas. The messenger also liaises with the various sheriffs across both cities to ensure the service of process.
The future of the PFLC
As explained in section 3 of this document, the PFLC model of family law service delivery has proved its effectiveness. It has also informed the DoJCD’s own policy and planning regarding the transformation of family law services. The DoJCD has undertaken an ambitious project to reengineer family law in South Africa. As the only organisation with practical experience of large-scale, automated service delivery in the family law arena, the PFLC believes it is vital to assist the state in whatever way possible during this exciting journey. The PFLC is therefore gearing itself towards assisting its own mainstreaming into family law service provision in South African courts. Such a development would be an appropriate next step in the cycle of need identification, innovation, proof of concept and mainstreaming
Financial accountability and sustainability As a Section 21 company, the PFLC complies with the requirements of all the applicable legislation. KPMG are the auditors of the PFLC and the relevant financial statements can be made available on request.
Annexure A to this document is a letter of support provided by the Deputy Minister of Justice and Constitutional Development in support of the PFLC’s application for the forthcoming United Nations Public Service Awards.